Dover v. Sadowinski

California Court of Appeal Sep 6, 1983 No. Civ. 67056Published

Before: Dalsimer

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Holding. The court held that a plaintiff cannot utilize Code of Civil Procedure section 474 to name a defendant as a 'Doe' when the plaintiff was not actually ignorant of the defendant's identity or the facts giving rise to a cause of action against them.

Issues

Whether a plaintiff may use Code of Civil Procedure section 474 to name a defendant as a 'Doe' when the plaintiff was aware of the defendant's identity and involvement at the time of filing the complaint.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The lack of knowledge of the true name of a defendant, however, must be ‘real and not feigned.’”

“The evidence is clear that the claimed lack of knowledge is not real, but is in fact feigned.”

Opinion

DALSIMER, J.

Plaintiff appeals from an order granting summary judgment in favor of defendant, Dr. Sadowinski. According to the register of actions, no judgment has been entered. Although an order granting summary judgment is not appealable

(Hooks

Southern Cal. Permanente Medical Group

(1980) 107 Cal.App.3d 435, 441 [165 Cal.Rptr. 741]), if no judgment has been entered, an appellate court may, and in this instance we do, amend the order granting summary judgment to make it an appeal-able judgment and construe the notice of appeal as applying to the judgment. (See

Beazell

Schrader

(1963) 59 Cal.2d 577, 579-580 [30 Cal.Rptr. 534, 381 P.2d 390];

Taylor

State Personnel Bd.

(1980) 101 Cal.App.3d 498, 501, fn. 1 [161 Cal.Rptr. 677].)

On September 15, 1980, plaintiff filed a complaint against several named defendants and Does I through XX, inclusive. The complaint, which alleged that the defendants negligently caused the death of plaintiff’s wife, did not name Dr. Sadowinski as a defendant, nor did it refer to him by name in the body of the complaint. Approximately 19 months after filing the complaint, plaintiff served a copy thereof on defendant Sadowinski, as Doe III, together with an amendment to the complaint wherein plaintiff’s attorney declared

[116]

that plaintiff had been ignorant of the true name of defendant Sadowinski at the time of the filing of the complaint.

The trial court granted summary judgment on the ground that the plaintiff had not in fact been ignorant of the identity of Dr. Sadowinski at the time of the filing of the complaint and therefore was unable to come within the provisions of Code of Civil Procedure section 474 for the purpose of tardily bringing defendant Sadowinski into the action as a named defendant. (All references to statutes hereinafter shall be to the Code of Civil Procedure.)

Dover v. Sadowinski

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DALSIMER, J.

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