Metropolitan News-Enterprise


Wednesday, February 10, 2021


Page 1


Court of Appeal:

Forgetfulness Doesn’t Excuse Late Naming of Defendant

Opinion Says Person Can’t Be Added As Defendant After Statute Runs Where His Identity Was Known By the Plaintiff but Forgotten; Contrary Holding by First District Court of Appeal Is Repudiated


By a MetNews Staff Writer


A man who knew the name of the driver of the car that hit his vehicle but forgot it, and sued the wrong party, could not substitute the name of the actual driver after the statute of limitation had run because he was not ignorant of her true identity at the time he filed his complaint, the Court of Appeal for this district has held, repudiating a contrary view expressed in a 1993 First District Court opinion.

Justice Dorothy Kim wrote Monday’s opinion, which was not certified for publication. It affirms a summary judgment granted by the Los Angeles Superior Court in favor of a defendant.

Although the judgment is listed in the opinion as being that of Judge Georgina T. Rizk—and Risk did make the Aug. 12, 2019 ruling in the case—it was Judge Kristin S. Escalante who signed the judgment.

The accident occurred on June 18, 2016, and a two-year statute of limitation applied. On June 5, 2018, Beverly Hills dentist Kenneth Jacobs filed a complaint for negligence against the insured, Oxnard attorney Dana Lynn Pritz, also referred to in the litigation as Danalynn Pritz.

The action against her was timely, but she wasn’t the driver.

At the time of the mishap, Jacobs took a photo of the driver’s license of the woman who crashed into his car, Rachel Ann Pritz, and he later confirmed to an insurance investigator that she was the driver.

On July 19, 2019, Jacobs filed an amendment to the complaint purporting to correct the name of the defendant. Rachel Ann Pritz sought summary judgment, contending that Jacobs did not actually make a “correction” and that his naming of her did not relate back to the time of the filing of the complaint.

Rizk’s Ruling

Rizk agreed, saying in her Aug. 12, 2019 ruling that while a plaintiff may correct the name of a defendant, Jacobs “is not correcting Danalynn’s name,” but “is replacing one Defendant for a different Defendant.”

She set forth:

“Cal. Code Civil Procedure § 474 states that if a Plaintiff is ignorant of the name of a Defendant, Plaintiff must state that fact and designate that Defendant by any name. The complaint must be amended when that person’s identity is discovered.

“The general rule provides that an amended complaint adding a new Defendant does not relate back to the filing of the original complaint for statute of limitations purposes….

“Cal. Code Civil Procedure Section 474 provides for an exception to the general rule by allowing the amendment to relate back if the Plaintiff was actually ignorant of Defendant’s identity at the time the complaint was filed.”

Rizk said Jacobs was not ignorant of Rachel Ann Pritz’s name, having ascertained it in the immediate aftermath of the accident.

Kim’s Opinion

Kim agreed, saying:

“Jacobs may have forgotten Rachel’s identity as the other car’s driver by the time he filed his original complaint almost two years after the accident. Because, however, he had the photograph of Rachel’s driver’s license on his cell phone…, he did not satisfy the requirements of section 474’s relation-back doctrine.”

She noted that this comports with the 1999 Court of Appeal opinion of the Fourth District’s Div. One in Woo v. Superior Court which disallowed a relation-back where the plaintiff, at the time of filing her complaint, had “readily available information likely to refresh…her memory” about the identity of the person she sought later to sue.

Repudiates Earlier Decision

In a footnote, Kim said: “We decline Jacobs’s invitation to follow Balon v. Drost,” a Nov. 1, 1993 decision by Div. Two of the First District Court of Appeal.

She declared that “we find the majority opinion in Balon unpersuasive,” noting that the court in Woo had also rejected it.

Writing for the majority in Balon, Presiding Justice J. Anthony Kline said that a motion to quash service of process on a defendant who was brought into the action after the limitations period had expired was erroneously denied on the ground that the plaintiff had taken down information after the incident which included her identity.

“Even though appellant may have acted negligently when she forgot respondent’s name and never inquired about it, appellant named Doe defendants in her original complaint, which she filed before the statute of limitations expired,” Kline wrote noted. That meant, he declared, that the “subsequent amended complaint naming respondent—which appellant filed a mere two weeks after the original complaint” related back to the time the original complaint was filed.

Then-Justice Michael J. Phelan (now the presiding justice of Div. Three) dissented, commenting:

“The majority’s decision allows a plaintiff to ‘forget’ a defendant’s identity, ignore the abundant available sources for relearning it, and treat her no differently than plaintiffs in complex product liability cases, medical malpractice cases and similar matters, who are excused from the burden of discovery. This is simply a case of ‘wilful ignorance’…and…I would conclude there was no good faith, bona fide ignorance as required by section 474.”

In the Sept. 23, 1999 opinion Woo, which criticized Kline’s opinion in Balon, the Court of Appeal granted a writ of mandate directing the San Diego Superior Court to award summary judgment to a defendant in a medical malpractice case.

Soheilia Zarabi had filed the action on April 25, 1997, naming a hospital, two doctors, and 50 Does. Then on Feb. 3, 1998, she filed an amended complaint naming Dr. Victor L. Woo as an additional defendant, though not substituting him for a Doe.

Woo sought summary judgment on the ground that Zarabi had gained knowledge in May 2016 that he had misinterpreted a mammogram, yet did not sue him within the one-year limitation period. The trial judge held that naming Woo in the amended complaint was the functional equivalent of identifying him as one of the Does and thus related back to the timely filing of the original complaint.

Writing for the appeals court, Justice Alex C. McDonald (since deceased) said:

“Zarabi’s deposition testimony established that in May 1996, she knew Woo’s identity. However, at the time she filed her original complaint in April 1997 she avers she was ignorant of Woo’ identity. Presumably, in the interim, she forgot it.”

He declined to adopt Kline’s reasoning in Balon, commenting “that Balon establishes an undesirable rule for the ‘I knew but forgot’ assertion under section 474.” McDonald remarked:

“We find Justice Phelan’s dissent in Balon persuasive. Justice Phelan rejected the equation of a claimed memory lapse with the actual ignorance requirement of section 474.”

 McDonald added:

“The Balon rule permits plaintiffs to assert they forgot the defendant’s identity even though it is uncontested they knew the identity at an earlier time, and relieves them of any obligation to refresh their memory with readily available information.”

Kim’s opinion comes in Jacobs v. Pritz, B301157.

Pasadena attorney Steven W. Kerekes and Beverly Hills practitioner Daniel C. Lieb represented Jacobs. Fullerton lawyer Cleidin Z. Atanous joined with Brian S. Dewey of the Ventura law firm of Raffalow, Bretoi, Lutz & Stele in arguing for Rachel Ann Pritz.

Danalynn Pritz remains a defendant in the case, and trial of the action is set for next month.


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