Metropolitan News-Enterprise


Tuesday, April 26, 2022


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Court of Appeal:

Actual Ignorance of Identity Justifies Naming a ‘Doe’

Panel Repudiates Decisions Saying That Amendment Inserting True Name Will Not Relate Back to Filing of Complaint If Plaintiff ‘Should Have Known’ Who the Fictitiously Named Defendant Was


By a MetNews Staff Writer


The First District Court of Appeal yesterday rejected the view, expressed in earlier cases, that the actual identity of a Doe defendant may not be inserted after the statute of limitation has run on instituting a lawsuit if the plaintiff “should have known” who the Doe was at the time the litigation was instituted.

Justice Gordon B. Burns wrote for Div. Five in reversing a summary judgment in favor of defendant New York Air Brake. That company, it was learned at a deposition in October 2015, manufactured the braking system used in light rail vehicles with which Richard Hahn—who was suing over having contracted mesothelioma from asbestos exposure—had come in contact during his employment with the San Francisco Municipal Transportation Agency.

Hahn died in 2016 and his widow and others brought a wrongful death action on Oct. 11 of that year. They later learned that the braking system contained asbestos and on March 9, 2018, named Air Brake as one of the Does.

CCP §340.2

San Francisco Superior Court Judge Cynthia Ming-mei Lee granted summary judgment, citing Code of Civil Procedure §340.2(c), which provides:

“In an action for the wrongful death of any plaintiff’s decedent, based upon exposure to asbestos, the time for commencement of an action shall be the later of the following: [¶] (1) Within one year from the date of the death of the plaintiff’s decedent.”

Lee ruled that the plaintiffs “knew or should have known that they had a cause of action against New York Air Brake when they filed this instant lawsuit,” precluding application of Code of Civil Procedure §474 which permits plugging in the name of a defendant original sued under a pseudonym. She pointed to the First District’s 2016 opinion in McClatchy v. Coblentz, Patch, Duffy & Bass, LLP which contains the “should have known” language.

The trial judge was declared to have been in error for applying language in a Court of Appeal opinion.

True Standard

While the plaintiffs knew in 2015 that Air Brake had manufactured the braking system, Burns said, they were not actually aware that the system contained asbestos and what they “should” have realized does not come into play.

He wrote:

“The focus is on the facts that the plaintiff knew, not on whether the plaintiff subjectively knew she had a cause of action based on those facts….While the plaintiffs ignorance must be genuine, and the plaintiff cannot claim ignorance simply because she did not know all the details of the person’s involvement, the plaintiff is not barred from invoking section 474 merely because she suspected the person of wrongdoing based on an incomplete set of facts….

“The trial court applied a more onerous standard: whether the plaintiffs ‘knew or should have known [the facts giving them] a cause of action against’ Air Brake when they filed their complaint. This was error. The trial court’s standard suggests that, when a plaintiff is ignorant of the requisite facts, she has a duty to exercise reasonable diligence to obtain facts that she ‘should have known.’ Section 474 imposes no such duty.”

 Reconciling that view with the one expressed in McClatchy, Burns said Lee “relied on a passing statement in this division’s McClatchy opinion.” He noted that in the previous sentence, “the court identified the correct test—whether ‘the plaintiff is actually ignorant of the facts establishing a cause of action,’ ” remarking:

“Reading these statements together, we conclude the court meant that a plaintiff is not ignorant if she knows enough facts to state a cause of action, without regard to whether she subjectively understands the facts’ legal significance.”

The court in McClatchy was quoting a 1976 opinion by the First District’s Div. Three in Wallis v. Southern Pacific Transportation Co. In that case, one Douglas R. Wallis sued Does for personal injuries, substituting Southern Pacific Transportation Company as the defendant once he learned that it was the party responsible for causing the injuries.

Required Inquiry

The opinion says:

“[T]he fact that Wallis and his attorney knew of respondent’s existence at the time of the commencement of the action is not controlling. The question is whether he knew or reasonably should have known that he had a cause of action against respondent.”

It goes on to indicate:

“Other than respondent’s attorney’s assertion on information and belief that Wallis knew or should have known a cause of action existed against respondent, the affidavit in support of the motion to strike contains no facts upon which the trial court could reasonably find that Wallis actually knew or should have known whom his cause of action was against.”

Burns’s opinion cites the 1979 decision by the Fourth District’s Div. One in Munoz v. Purdy but does not mention that the court in that case expressly repudiated the view expressed in Wallis and in Schroeter v. Lowers, handed down by this district’s Div. Five in 1968, that naming a Doe is improper where the actual identity could have been ascertained.

The case is Hahn v. New York Air Brake, LLC, A161199.


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