Wallis v. Southern Pacific Transportation Co.

California Court of Appeal Sep 8, 1976 No. Civ. 38288Published

Before: Scott

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Holding. The court held that the trial court erred in striking the complaint because the respondent failed to provide substantial evidence that the plaintiff lacked a good-faith basis for using fictitious Doe defendants, and because the complaint was served within the statute of limitations.

Issues

Whether the plaintiff's ignorance of the defendant's identity or the facts giving rise to a cause of action justifies the use of fictitious Doe defendants under Code of Civil Procedure section 474.
Whether the respondent provided substantial evidence to support the trial court's finding that the plaintiff's ignorance was not real.
Whether service of the complaint upon the respondent within the statute of limitations period precludes a motion to strike based on the statute of limitations.

Disposition. reversed

Quotations verified verbatim against the opinion

“The question is whether he knew or reasonably should have known that he had a cause of action against respondent.”

“We hold that the assertion of respondent’s attorney is inadequate in that it did not provide the trial court with substantial evidence to make its implied finding in support of its ruling.”

Opinion

SCOTT, J.

Douglas R. Wallis appeals from an order dismissing his complaint with prejudice after the granting of a motion to strike the complaint. The pleadings disclose that on May 15, 1975, Wallis filed a complaint for personal injuries, naming as defendants “Doe One

[785]

through Doe Twenty.” The complaint alleged that by reason of the negligent manufacture, operation and maintenance of certain equipment by the Does, Wallis sustained personal injuries on August 7, 1974. The complaint was served on respondent, Southern Pacific Transportation Company, as Doe One on August 7, 1975. On September 23, 1975, respondent filed a motion to strike the complaint, contending that it could not be properly served as a Doe under California Code of Civil Procedure section 474, and that Wallis’ cause of action was barred by the statute of limitations in that the action had not been commenced within one year from August 7, 1974. (Code Civ. Proc., § 340, subd. 3.) It is from the granting of that motion and subsequent dismissal that Wallis appeals.

The motion to strike the complaint was supported by an affidavit of the attorney for respondent, who declared that he was “informed and believes” that Wallis and/or his attorney knew of respondent’s existence since both had lived and worked in the East Bay for some time; that Wallis’ injury was sustained when he was operating a door on a railroad car; that the existence of defendant as a potential defendant therefore was known or could have been ascertained through information easily available to Wallis on or before the filing of his complaint. The counterdeclaration to the motion came from Wallis’ attorney, who declared that from the time he was retained in May 1975 through and including the time of the filing of the complaint, neither he nor Wallis knew the proper defendant to name in the lawsuit; that he was informed that the injury was sustained by reason of a defective door on a boxcar of a railroad; that neither he nor Wallis knew or had a source of information available to know the owner of the boxcar or the name of the entity which had the responsibility for maintenance and control of the boxcar; that an investigator’s report of July 30, 1975, disclosed the information that respondent was the proper party to bear responsibility for the accident; that he immediately thereafter caused respondent to be served as Doe One.

Wallis v. Southern Pacific Transportation Co.

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SCOTT, J.

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