Opinion
WHITE, P. J. On March 21, 1981, this court ordered the case of Blose v. Lomas and Nettleton Company be consolidated for the purposes of brief[463]ing, oral argument and decision with the case of Guenter v. Lomas and Nettleton Company. The latter case was commenced by plaintiff and appellant Paul Guenter on March 22, 1976, as a class action on behalf of himself and 27 other beneficiaries named in a second deed of trust claiming damages due to the asserted fraudulent reconveyance of said deed of trust. Appellant Guenter sought class certification. On November 23, 1976, the trial court denied without prejudice appellant Guenter’s motion to certify the action as a class action on the grounds that “the proposed class is not so numerous that joinder of all members is impractical” and “a class action would not provide a superior form of remedy.”
On December 8, 1977, each purported class member, without leave of court, filed in the Guenter action a document entitled “Association of Plaintiff.” The document provides in part as follows: “Now Comes the Undersigned, one of the twenty-eight persons named as members of the purported class herein in documents on file with the Court, and associates himself with this action as a party Plaintiff, naming Jerome Berg, Esquire as counsel of record.”
On June 8, 1979, respondents moved to strike the purported “Association of Plaintiff” and the class action allegations of the first amended complaint. The trial court granted respondents’ motion to strike on June 26, 1979, on the grounds that (1) “the language of the first amended complaint which purports to style this as a class action was mooted on November 23, 1976 when Judge Benson denied plaintiff’s motion for class certification”; and (2) “the ‘Association^] of Plaintiff[s] ’ on file herein were filed by non-parties to this litigation, without leave of Court, and are papers unrecognized by the civil procedure of the State of California.”
On August 8, 1979, appellant Guenter filed a motion seeking orders granting relief from the June 26, 1979, order and permitting him to amend his complaint nunc pro tunc to add the other beneficiaries of the deed of trust as named plaintiffs. Appellant Guenter’s motion was denied on August 31, 1979, and a formal order denying the motion was filed on September 14, 1979.
Also on August 8, 1979, appellant Guenter filed another motion “to certify class action.” The trial court denied the motion for class certification on October 12, 1979, and a formal order was filed on October 23, 1979.
On October 24, 1979, appellant Guenter filed a notice of appeal from (1) the August 31, 1979, order (the formal order was filed on Sept. 14, 1979), and (2) the October 1979 order denying class certification.
On April 17, 1980, Blose and the other beneficiaries under the deed of trust filed a complaint against respondents. Respondents demurred to the [464]complaint on the ground that the statute of limitations barred the Blose action. The trial court sustained the demurrer without leave to amend. On September 10, 1980, judgment was entered dismissing the action. Appellants filed a timely notice of appeal.
In this consolidated appeal appellants contend that (1) the trial court abused its discretion in denying appellant Guenter’s motion for class certification; (2) the trial court abused its discretion in denying appellant Guenter’s August 8, 1979, motion; and (3) the complaint in the Blose action is not barred by the statute of limitations. Respondents, on the other hand, contend on appeal that (1) the August 31, 1979, order is not an appealable order; (2) if the August 31 order is appealable, the order was proper; (3) since no appeal was taken from the November 1976 order denying class certification to the Guenter action, “the finding that this is not a proper class action is res judicata”; and (4) claims of the plaintiffs in the Blose action are barred by the statute of limitations.
Appellant Guenter’s first contention that the trial court abused its discretion in denying his motion for class certification is not properly before this court. The trial court first denied appellant Guenter’s motion for class certification on November 23, 1976. A minute order to this effect was entered in the minute book on November 23, 1976. No appeal was taken from the minute order. A formal order denying class certification was filed on June 6, 1979. On June 27, 1979, the court entered an order striking the class action allegations from appellant Guenter’s complaint. No appeal was taken from this order although appellant Guenter was served with notice of this order on June 29, 1979.
“Following the rationale and holding of Daar v. Yellow Cab Co. [(1967) 67 Cal.2d 695 (63 Cal.Rptr. 724, 433 P.2d 732)], it has now been consistently held that an order, whatever form it may take, which has the effect of denying certification as a class action, is an appealable order.” (Morrissey v. City and County of San Francisco (1977) 75 Cal.App.3d 903, 907 [142 Cal.Rptr. 527]; see also Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470 [174 Cal.Rptr. 515, 629 P.2d 23]; cf. Rosack v. Volvo of America Corp. (1982) 131 Cal.App.3d 741, 747-750 [182 Cal.Rptr. 800].) If no notice of entry of judgment is served upon a party, he has “180 days after the date of entry of the judgment” to timely file a notice of appeal. (Cal. Rules of Court, rule 2(a).) “The date of entry of an appealable order which is entered in the minutes shall be the date of its entry in the permanent minutes, unless such minute order as entered expressly directs that a written order be prepared, signed and filed, in which case the date of entry shall be the date of filing the signed order.” (Cal. Rules of Court, rule 2(b)(2).)
Since the minute order of November 23, 1976, does not direct that a written order be prepared, signed and filed, and since the order denies class [465]certification, the minute order was appealable and appellant Guenter had 180 days from the time the minute order was entered in the permanent minutes (Nov. 23, 1976) to file a timely notice of appeal. Appellant Guenter did not file a notice of appeal from the minute order.
The law of this state does not allow, on an appeal from a judgment or appealable order, a review of any decision or order from which an appeal might previously have been taken. (Code Civ. Proc., § 906; Morrissey v. City and County of San Francisco, supra, 75 Cal.App.3d 903, 906; Woodman v. Ackerman (1967) 249 Cal.App.2d 644, 648 [57 Cal.Rptr. 687].) Since appellant Guenter did not appeal from the November 23, 1976 order, that order is now final and binding upon appellant Guenter and upon this court. (Morrissey v. City and County of San Francisco, supra, at p. 908; see also Reich v. Club Universe (1981) 125 Cal.App.3d 965, 969-970 [178 Cal.Rptr. 473].)
Appellant Guenter asserts that since his motion to certify the action as a class action was denied “without prejudice” on November 23, 1976, the order was not meant to be a final determination of the class action issue, and therefore it was not an appealable order.
“The term ‘without prejudice,’ in its general adaptation, means that there is no decision of the controversy on its merits, and leaves the whole subject in litigation as much open to another application as if no suit had ever been brought.” (Chambreau v. Coughlan (1968) 263 Cal.App.2d 712, 718 [69 Cal.Rptr. 783]; see also Williams v. City of Oakland (1973) 30 Cal.App.3d 64, 69 [106 Cal.Rptr. 101].) “It has been asaid that the ‘purpose and effect of the words “without prejudice” in a decree dismissing a bill is to prevent the defendants from availing themselves of the defense of res adjudicata in any subsequent proceeding by the same plaintiffs on the same subject matter.’” (Williams v. City of Oakland, supra, at p. 69.)
However, the term “without prejudice” in the minute order of November 23, 1976, does not mean that the denial of the motion to certify the action as a class action was not on the merits. It is clear that the term “without prejudice” in this minute order is not used in the usual manner. The minute order sets out two reasons for denying class certification: “(1) Failure to meet requirements of 23(a) of the Federal rules of procedure [28 U.S.C.]— not sufficient number to qualify”; and “(2) Court determines that class action would not be a superior form of remedy.” Accordingly, the denial of class certification on November 23, 1976, was “on its merits.”
Appellant states in his brief that at the November 23, 1976 hearing, the trial court “suggested that a better way to approach the situation might be the ‘association’ of the 27 other beneficiaries” of the deed of trust rather than proceeding as a class action suit. It therefore appears that the term [466]“without prejudice” in the November 26, 1976, minute order meant that appellant Guenter could try another method to litigate the claims of the 27 other beneficiaries in the Guenter action other than in a class action.
To summarize, since the denial of class certification in the November 23, 1976, order was on the merits, said order was an appealable order, and since appellant Guenter did not appeal from said order, that order is final and binding.
Next appellant Guenter contends that the trial court should have granted his August 8, 1979, motion seeking relief from the June 26, 1979, order, striking the “Associations of Plaintiffs” and the class action allegations. Appellant Guenter asserts that his August 8, 1979, motion was made pursuant to Code of Civil Procedure section 473. Section 473 provides in part as follows: “The court may, upon such terms as may be just, relieve a party or his or her legal representative from a judgment, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect.” Appellant contends that relief may be granted under section 473 of the Code of Civil Procedure “for a reasonable mistake of law by a party’s attorney.” In arguing that the court should have granted his motion on the grounds of reasonable mistake, appellant Guenter states: “In the instant case, appellant’s counsel did not realize that the associations of the beneficiaries named under the deed of trust was erroneous since it had been proposed by Judge Benson and since the opposition did not object either to the original effort to certify the class or to the filing of the associations of plaintiffs (for a year and a half). This reliance on the apparent propriety of those procedures was reasonable under the circumstances. ”
Appellant Guenter correctly states that a mistake of law by an attorney may under certain circumstances entitle a party to relief under Code of Civil Procedure section 473. (Svistunoff v. Svistunoff (1952) 108 Cal.App.2d 638, 642-646 [239 P.2d 650].) However, the mistake of law must be of the type which has caused the attorney to fail “to make the showing he could have made at the hearing on the motion.” (City of Los Angeles v. Gleneagle Dev. Co. (1976) 62 Cal.App.3d 543, 553 [133 Cal.Rptr. 212].) The mistake of law by appellant Guenter’s attorney in the instant case was not of the type which prevented appellant Guenter from presenting his case in court. Appellant Guenter had the opportunity of presenting his side in regard to the issue of validity of the documents entitled “Association of Plaintiff” at the original hearing that resulted in the June 26, 1979, order. This is not the type of mistake of law that will entitle a party to relief under section 473 of the Code of Civil Procedure. (See Vartanian v. Croll (1953) 117 Cal.App.2d 639, 644 [256 P.2d 1022].)
We also note that the fact that counsel for respondents did not object to the filing of the documents entitled “Association of Plaintiff” at an earlier [467]date does not change our conclusion. Counsel for appellant was fully capable of determining for himself the validity of the documents entitled “Association of Plaintiff” and he is not entitled to blame opposing counsel for his failure to do so. (Reich v. Club Universe, supra, 125 Cal.App.3d 965, 970.)
“It is axiomatic that a motion for relief under section 473 is addressed to the sound discretion of the trial court. The exercise of that discretion will not be disturbed on appeal absent a clear showing of abuse. More importantly, the discretion to be exercised is that of the trial court, not that of the reviewing court. Thus, even if the reviewing court might have ruled otherwise in the first instance, the trial court’s order will yet not be reversed unless, as a matter of law, it is not supported by the record.” (Martin v. Johnson (1979) 88 Cal.App.3d 595, 604 [151 Cal.Rptr. 816].) Clearly the trial court did not abuse its discretion in denying appellant Guenter’s motion made pursuant to section 473 of the Code of Civil Procedure on the ground of mistake of law.
Next appellant Guenter alleges that the trial court erred in denying his motion to amend his complaint nunc pro tunc to add the other beneficiaries of the deed of trust as named plaintiffs.1
The California Supreme Court has shown a liberal attitude toward allowing amendments of pleadings to avoid the harsh result imposed by a statute of limitations. (E.g., Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932 [136 Cal.Rptr. 269, 559 P.2d 624, 85 A.L.R.3d 121]; Grudt v. City of Los Angeles (1970) 2 Cal.3d 575 [86 Cal.Rptr. 465, 468 P.2d 825]; Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596 [15 Cal.Rptr. 817, 364 P.2d 681].) However, certain requirements must be met in order for an amended pleading to relate back to the time of filing the original complaint. In the case of a change in pleading theory, an amendment is permitted following expiration of the statute of limitations, and the amended complaint will be deemed filed as of the date of the original pleading provided recovery is sought in both pleadings on the same general set of facts. (Austin v. Massachusetts Bonding & Insurance Co., supra, at p. 600.) Plaintiffs have been permitted to amend pleadings and to substitute named defendants for fictitious defendants without incurring the bar of the statute of limitations. (See, e.g., Smeltzley v. Nicholson Mfg. Co., supra, 18 Cal.3d 932; Barnes v. Wilson (1974) 40 Cal.App.3d 199 [114 Cal.Rptr. 839].) “However, a party may only avail himself of the use of naming Doe defendants as parties when the true facts and identities are genuinely unknown to the plaintiff.” (Ingram v. Superior Court, supra, 98 Cal.App.3d 483, 492.)
[468]In certain circumstances a party has been allowed to amend his complaint to add or substitute new plaintiffs after the statute of limitations has run. “Generally, a different plaintiff was substituted in because there was a technical defect in the plaintiff’s status (an administrator for a deceased plaintiff; a stockholder in place of a corporation; etc.); a necessary party was joined; or a nominal plaintiff was removed and the real party in interest took his place.” (Bartalo v. Superior Court (1975) 51 Cal.App.3d 526, 534 [124 Cal.Rptr. 370]; Jensen v. Royal Pools (1975) 48 Cal.App.3d 717 [121 Cal.Rptr. 805], and cases cited therein.) On the other hand it has been stated that “the doctrine of relation-back does not apply where the cause of action in the complaint is in favor of one plaintiff whereas the cause of action in the amended complaint is in favor of another plaintiff [citation].” (Phoenix of Hartford Ins. Companies v. Colony Kitchens (1976) 57 Cal.App.3d 140, 146 [128 Cal.Rptr. 893].)
The instant case represents a situation where an amendment to the complaint adding additional plaintiffs should be permitted and the amendment should relate back to the original complaint. In Jensen v. Royal Pools, supra, 48 Cal.App.3d 717, a condominium owners’ association brought an action to recover damages for a defectively constructed swimming pool. Subsequently, in Friendly Village Community Assn., Inc. v. Silva & Hill Constr. Co. (1973) 31 Cal.App.3d 220 [107 Cal.Rptr. 123], the court held that a similar unincorporated association lacked standing to sue. Thereupon, the plaintiffs in Jensen sought leave, although the statute of limitations had run, to file an amended complaint designating proper parties as plaintiffs. Leave was granted and the appellate court affirmed the trial court.
A case even more in point is Dhuyvetter v. City of Fresno (1980) 110 Cal.App.3d 659 [168 Cal.Rptr. 61].) In Dhuyvetter, plaintiffs brought a class action for damages “resulting from overflights of airplanes using the” Fresno Municipal Airport. Sixteen months after the trial court decertified the class action, the plaintiffs sought leave to amend their complaint to add the children residing with them as plaintiffs. The court in Dhuyvetter, relying upon Jensen, held that the amendment was proper and related “back in time to the filing of the original complaint. ” (Id., at p. 665.) In so holding the court in Dhuyvetter stated: “the parties-plaintiffs to be added by the amendment were alleged in the original complaint, albeit not by name. Nor could it be contended that their injuries and damages (if any) were not of like character and incurred in like manner of their parents who were specifically named. We see no possible prejudice in holding that the amended complaint relates back to the original date of filing.” (Id., at p. 666.)
The same reasoning applies to the instant case. The trial court erred in not allowing plaintiff Guenter to amend his complaint to add the other beneficiaries of the deed of trust as named plaintiffs with such amendment relating back to the original complaint, since such beneficiaries were plain[469]tiffs in the original complaint as they were members of the class appellant Guenter sought to represent.
Since we have determined that the appellants in the Blose action should have been added as named plaintiffs in the Guenter action, it is unnecessary to decide if the Blose suit was improperly dismissed.
The order of September 14, 1979, denying appellant Guenter leave to amend his complaint to add the 27 other beneficiaries of the deed of trust as named plaintiffs is reversed. The appeal from the judgment in the Blose suit is dismissed as moot. (6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 465, pp. 4420-4421.)
Feinberg, J., concurred.
Given the circumstances of the instant case, this order is appealable. (Ingram v. Superior Court (1979) 98 Cal.App.3d 483, 489 [159 Cal.Rptr. 557].)