Opinion
BROWN (G. A.), P. J. Petitioner, Kerr-McGee Chemical Corporation (Kerr-McGee) seeks a writ of mandate directing the superior court to quash service of summons and complaint on the ground that the court does not have jurisdiction over it because Kerr-McGee was not a party to the action. We issued an order to show cause and have heard oral arguments.
A summary of the facts shows that on January 19, 1981, real parties in interest (plaintiffs) filed a complaint for medical malpractice, wrongful death and property damage. The complaint named several defendants, including Trona Medical Clinic (TMC). There was no allegation in the complaint that TMC was a fictitious name nor was Kerr-McGee named as a defendant. No one was ever served with a copy of the complaint.
On December 20, 1983, plaintiffs filed a first amended complaint naming as defendants a hospital, several doctors, “Trona Medical Clinic” (TMC) and Does 1 through 30, inclusive. As to Does 1 through 30, appropriate fictitious name allegations were made pursuant to Code of Civil Procedure section 474.1 Kerr-McGee was not named as a defendant. No fictitious name allegations pursuant to section 474 were made regarding TMC.
On December 21, 1983, Kerr-McGee’s agent for service of process in California was served with a summons and a copy of the first amended complaint.
The relevant part of paragraph 2 of the summons read: “2. Notice to the Person Served: You are served
“a....................... . . .
“b. x As the person sued under the fictitious name of: Trona Medical Clinic
“c. x On behalf of Kerr McGee Chemical Corporation
“Under: x CCP 416.10 (Corporation) . . . .”
[597]On February 28, 1984, petitioner filed a motion to quash service of summons and complaint on the ground that the court did not have jurisdiction over petitioner because petitioner was not a party to the action. On March 19, 1984, plaintiffs filed opposition to the motion to quash and concurrently filed an amendment to their complaint.2 The amendment was entitled “Amendment to Complaint under § 474, C.C.P.” and states: “Upon filing the complaint herein, plaintiffs being ignorant of the true name of a defendant, and having designated said defendant(s) in the complaint by a fictitious name(s), to-wit: Trona Medical Clinic and, having discovered the true name of said defendant to be Kerr-McGee Chemical Corporation, doing business as Trona Medical Clinic hereby amends their complaint by inserting such true name in the place and stead of such fictitious name Trona Medical Clinic wherever it appears in said complaint. ”
At the hearing the trial court orally denied the motion to quash, stating: “All right. I think under the circumstances, obviously there was acceptance of summons, service of summons on behalf of, according to the summons in the file, a copy of the summons in the file that Trona Medical Center [sic] was the party or the person named in the suit and that Kerr-McGee was served on behalf of Trona Medical Center [sic], indicated that being a fictitious name, and the Court feels under Section 473 that furtherance of justice and on terms as may be proper, the Court can allow party to amend any pleading or proceeding by adding or striking out the name of any party or by correcting any mistake in the name of the party. I think it’s reasonable to assume under the circumstances there was apparently some mistake made on the part of the moving party [sic], so the motion to quash is denied.”
Discussion
A person or entity may become a party defendant only in two ways: by being named as a defendant, or by being properly named and served as a fictitiously named defendant pursuant to section 474. Kerr-McGee was not a named defendant. It was served “As the person sued under the fictitious name of: Trona Medical Clinic.” However, the provisions of section 474 were not complied with. There are no allegations in the amended complaint that TMC is a fictitious defendant or that plaintiffs were ignorant of its true name. Section 474 provides in pertinent part: “When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, . . . and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly; ...”
[598]Unless these requirements are met, a plaintiff may not take advantage of the provisions of section 474 and later substitute a person in the place of the fictitious defendant. (Nissan v. Barton (1970) 4 Cal.App.3d 76, 79 [84 Cal.Rptr. 36]; Stephens v. Berry (1967) 249 Cal.App.2d 474, 477 [57 Cal.Rptr. 505]; Armstrong v. Superior Court (1956) 144 Cal.App.2d 420, 424-425 [301 P.2d 51].)
In Stephens v. Berry, supra, 249 Cal.App.2d 474, 477, the court refers to the requirements of section 474 as being mandatory. This specifically includes the requirement that the plaintiff state in the complaint that he is ignorant of the true name of a defendant. In Nissan v. Barton, supra, 4 Cal.App.3d 76, 79-81, as in this case, there was a complete failure to comply with section 474. The court held the trial court lacked jurisdiction over the defendant purportedly served under that section and concluded the default judgment entered as a result of that service was void.
In the trial court and in their return to the order to show cause in this court plaintiffs took the position that Kerr-McGee was properly served under the fictitious name of Trona Medical Clinic. However, in supplementary briefs, and at oral argument before this court, plaintiffs conceded that the statement on the summons that Kerr-McGee was served as the person sued under the fictitious name of Trona Medical Clinic is a legal impossibility. Accordingly, the service of the summons and complaint as made was invalid.
The trial court appears to have attempted to act pursuant to section 473 under the supposition that plaintiffs made a mistake in the names which authorized the trial court to, in effect, substitute “Kerr-McGee Chemical Corporation, doing business as Trona Medical Clinic” as a defendant in place of Trona Medical Clinic.
The germane part of section 473 states: “Allowable amendments. The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”
Cases interpreting this section clearly hold that section 473 does not authorize the addition of a party for the first time whom the plaintiff failed to [599]name in the first instance. Thus, in commenting on the section, the court in Stephens v. Berry, supra, 249 Cal.App.2d 474, 478, said: “Code of Civil Procedure section 473 permits amendment of a pleading by adding or striking out the name of a party, or by correcting a mistake in the name of a party. The cited cases furnish good examples of the scope of the statute where its authority is used to correct a mistake in the name of a party. (Thompson v. Southern Pacific Co., supra, [180 Cal. 730 (183 P. 153)] ‘Southern Pacific Company’ misnamed ‘Southern Pacific Railroad Company’; Nisbet v. Clio Mining Co., supra, [2 Cal.App. 436 (83 P. 1007)] ‘Clio Mining Company’ sued as ‘Clio Mill and Mining Company’; Smith v. Pickwick Stages System, supra, [113 Cal.App. 118 (297 P. 940)] ‘Pickwick Stages System, a corporation’ substituted as a defendant in place of ‘Pickwick Corporation, a corporation. ’) In each of the above cases misnomer is evident, and amendment to correct clerical error was properly allowed. But, as said in 1 Chadbourn, Grossman & Van Alstyne, California Pleading, section 686: ‘Amendment to correct an honest mistake in the naming of a party, however, must be sharply distinguished from the question whether the correctly named party is actually being joined in the litigation for the first time under the guise of a claim of misnomer.’”
In Thompson v. Palmer Corporation (1956) 138 Cal.App.2d 387, 390 [291 Cal.Rptr. 995], the court stated the rule as: “Whether an amendment of a pleading will be allowed to change the description or characterization from an individual, a partnership or other association, after the statute of limitations has run depends on whether the misdescription or mischaracterization is merely a misnomer or defect in the description or characterization, or whether it is a substitution or entire change of parties. In the former case an amendment will be allowed; in the latter, it will not be allowed. [Citation.]” (Fn. omitted.) (See also Milam v. Dickman Construction Co. (1964) 229 Cal.App.2d 208, 211-213 [40 Cal.Rptr. 130]; Kline v. Beauchamp (1938) 29 Cal.App.2d 340, 342 [84 P.2d 194].)
In the case at bench, before the court allowed Kerr-McGee to be substituted into the action pursuant to section 473 it was a stranger to the action. Clearly, the court’s action was nothing less than permitting the addition of a new party to replace a named party defendant. The court’s order permitting such substitution was not authorized by law.3
[600]In their supplementary brief in this court and at oral argument, plaintiffs argued that under the authority of section 473 the trial court in substance allowed the summons to be amended to name Doe 3 as a fictitious defendant instead of TMC. Plaintiffs cite no authority for such a procedure, and we have found none.
The argument is grounded upon fiction. First, it is clear from the record that this is not the action the plaintiffs asked the trial court to take and it is not the action the court took. Secondly, it is clear beyond any shadow of doubt that the description of TMC as a fictitiously named defendant in filling out and serving the summons was not an error or inadvertent mistake.
Through the entire process, from the time the summons was served through the filing of the return to the order to show cause in this court, plaintiffs have taken the position that they intended to serve Kerr-McGee under the fictitious name of Trona Medical Clinic. They argued this position in their opposition to the motion to quash, stating with reference to the offered amendment to the complaint: “To comply with the pertinent parts of § 474, of the Code of Civil Procedure, attached hereto and incorporated by reference herein and marked Exhibit ‘B’ is a copy of an amendment to the complaint under § 474, C.C.P. that was filed concurrently with this opposition. Contained within that amendment to the complaint, plaintiffs’ state that having been ignorant of the true name of the defendant and having designated the defendant in the complaint as Trona Medical Clinic and having discovered that the true name of said defendant was Kerr-McGee Chemical Corporation, dba Trona Medical Clinic, the plaintiff thereby amended the complaint by inserting the true name in place and instead of a designated name, Trona Medical Clinic.”
Similarly, at oral argument, plaintiffs stated: “Mr. Shane: . . . We served Kerr-McGee through their fictitious defendant Trona Medical Center [sic], and the service of process made that quite clear that’s what they were being sued for ....
“In this case, there was no prejudice to Kerr-McGee. We served them as Trona Medical Center [sic] as a fictitious party. The service of summons makes it quite clear who is being sued and what basis.
“And in this case, if you look at the service, it makes it quite clear Trona [601]Medical Center [sz'c] is the fictitious medical center and we’re suing Kerr-McGee on that matter.”
Similar statements were made in this court in plaintiffs’ return to the order to show cause. Thus, it is eminently clear that plaintiffs did exactly what they intended to do and there was no mistake.
Importantly, the trial court did not act upon this basis. It was never asked to.4
Lastly, the net result of such a procedure would be the addition of a party to the action who was not a party before. To permit the attainment of this end by the process of amending the summons pursuant to section 4735 would be a circumvention of the well established principles hereinabove enunciated prohibiting the addition of a new party under the authority of that section.
Let a writ of mandate issue directing the superior court to set aside its order denying Kerr-McGee’s motion to quash service of summons and complaint and to issue a new order granting the motion. Kerr-McGee shall recover costs incident to this writ proceeding.
Martin, J., concurred.
All code references are to the Code of Civil Procedure unless otherwise noted.
After January 19, 1984, plaintiffs could not re-serve the complaint on Kerr-McGee as one of the Doe defendants because on that date the three-year period from the filing of the complaint in which a summons and complaint must be served and returned expired. (§ 581a.)
Our dissenting colleague has cited a mishmash of cases, none of which is on point with the facts of this case. To construe section 473 to allow the substitution in this case would be to convert that statute into a substantive authority to add an entirely new party to a proceeding after the statute of limitations has run, rather than to interpret it as it always has been interpreted, as a procedural statute to authorize correction of obvious and minor mistakes, such as in spelling of a defendant’s name. As has been pointed out, it is important to maintain the distinction between correcting an honest error in the name of a correctly named party and joining a new party in the litigation for the first time under the guise of a claim [600]of misnomer. (Stephens v. Berry, supra, 249 Cal.App.2d 474; Milam v. Dickman Construction Co., supra, 229 Cal.App.2d 208; Thompson v. Palmer Corporation, supra, 138 Cal.App.2d 387; Kline v. Beauchamp, supra, 29 Cal.App.2d 340.) The dissent fails to make this distinction.
If the trial court had been asked to do so, it probably would have been improper for the court to change or modify the description of parties under section 473 unless upon motion of a party. The section allows “a party to amend any pleading . . . .” Presumably the court is not authorized to do so on its own motion.
Section 473 allows amendments to “any pleading or proceeding. ” There is considerable doubt that a summons is a “proceeding,” being defined as “the process by which a court acquires personal jurisdiction over a defendant in a civil action.” (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557 [200 Cal.Rptr. 286].) In light of our resolution of the case on other grounds, this question need not be decided.