Hazel v. Hewlett

Opinion

In this dental malpractice action plaintiff, Rex Hazel, appeals from judgment entered in favor of defendant Edmond Hewlett, D.D.S., and against plaintiff after the trial court sustained defendant’s affirmative defense of the statute of limitations.

Factual and Procedural Background

In June 1983 plaintiff went to the offices of Carl Stasiewicz, D.D.S., for dental treatment. Dr. Stasiewicz determined that it was necessary to extract 13 of plaintiff’s teeth and he extracted 7 of them during plaintiff’s next two visits. On the last of these visits Dr. Stasiewicz told plaintiff the remaining extractions would be performed by Dr. Edmond Hewlett. When plaintiff went to the offices of Dr. Stasiewicz on August 5, 1983, Dr. Hewlett introduced himself to plaintiff by name and then performed the remaining six extractions. On plaintiff’s initial visit he completed a medical questionnaire form wherein he indicated that he had had rheumatic fever. Despite this information neither Dr. Stasiewicz nor Dr. Hewlett administered antibiotics to plaintiff in the course of the extractions. Within two weeks after completion of his dental work, plaintiff experienced total loss of appetite,

The remaining question is whether amendment of the complaint to name Dr. Hewlett in place of Doe 51 related back to the date of filing of the complaint, thus defeating the bar of the statute of limitations.

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, or the affidavit if the action is commenced by affidavit, 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 .. . .” When a complaint sets forth a cause of action against a defendant designated by a fictitious name and his true name thereafter is discovered and substituted by amendment, he is considered a party to the action from its commencement so that the statute of limitations stops running as of the date the original complaint was filed. (Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596 , 599 [ 15 Cal.Rptr. 817 , 364 P.2d 681 ]; Cooper v. Jevne (1976) 56 Cal.App.3d 860 , 873 [ 128 Cal.Rptr. 724 ].) For this rule to apply, it is necessary that the plaintiff actually be ignorant of the name or identity of the fictitiously named defendant at the time the complaint is filed. (Streicher v. Tommy’s Electric Co. (1985) 164 Cal.App.3d 876 , 882 [ 211 Cal.Rptr. 22 ]; Olden v. Hatchell (1984) 154 Cal.App.3d 1032 , 1035, fn. 6 [ 201 Cal.Rptr. 715 ].) The phrase “when the plaintiff is ignorant of the name of a defendant” in section 474 has not been interpreted literally. It includes situations where the plaintiff “ ‘knew the identity of the person but was ignorant of the facts giving him a cause of action against the person [citations], or knew the name and all the facts but was unaware that the law gave him a cause of action against the fictitiously named defendant and discovered that right by reason of decisions rendered after the commencement of the action. [Citation.]’ ” (Marasco v. Wadsworth (1978) 21 Cal.3d 82 , 88 [ 145 Cal.Rptr. 843 , 578 P.2d 90 ], quoting Barnes v. Wilson (1974) 40 Cal.App.3d 199 , 205 [ 114 Cal.Rptr. 839 ].) “The lack of knowledge of the true name of a defendant, however, must be ‘real and not feigned.’ [Citation.] A plaintiff must actually be ignorant of the facts giving

The trial court impliedly resolved the question of good faith against plaintiff. That determination is supported by the following evidence: On August 5, 1983, Dr. Hewlett introduced himself by name to plaintiff before extracting the last of plaintiff’s teeth scheduled for extraction; while Dr. Hewlett prescribed penicillin for plaintiff during his follow-up visit on August 10, 1983, the extractions by that time were completed and he prescribed penicillin because of the condition of plaintiff’s mouth and his complaints of pain, not because of any knowledge of plaintiff’s history of rheumatic fever; plaintiff was aware that Dr. Hewlett did not administer antibiotics on August 5, 1983, the day he made the extractions; on October 1, 1983, plaintiff was told by Dr. Hamm that plaintiff’s SBE was caused by failure to administer antibiotics before, during and after the extractions. Thus, when plaintiff filed his original complaint (Dec. 11, 1984) he knew all of the basic facts constituting a cause of action for professional negligence against Dr. Hewlett.

Plaintiff argues he did not know of the professional relationship between defendants until he learned, from defendant Stasiewicz’s answers to interrogatories, that Dr. Hewlett was Stasiewicz’s “associate” when Hewlett performed the final series of extractions. Plaintiff insists such information was crucial to the existence of a cause of action against Hewlett because without it plaintiff did not know whether he should sue both defendants. It is unnecessary to decide whether the professional relationship of the defendants was an element of plaintiff’s cause of action against Hewlett because the record does not show that plaintiff first learned through discovery that Hewlett was Stasiewicz’s associate. It does not contain Stasiewicz’s answers to interrogatories and in the portion of the record upon which plaintiff relies Stasiewicz testified merely that in his answer to one of the interrogatories he “identified Dr. Hewlett as being a dentist who also worked on Mr. Hazel.” Further, elsewhere in his appellant’s brief plaintiff asserts that when Stasiewicz advised plaintiff that Hewlett was going to finish the extractions he referred to Hewlett as his associate. Thus, plaintiff in effect concedes that he did not first learn Hewlett was Stasiewicz’s associate after the complaint was filed, but on the contrary was given that information before Hewlett performed the final series of extractions.

A like analysis applies to plaintiff’s reliance on the principle that cases should be decided on their merits. (Smeltzley v. Nicholson Mfg. Co., supra, 18 Cal.3d 932 , 939.) That truism does not compensate for plaintiff’s failure to meet the requirements of section 474 in seeking to add Hewlett as a defendant.

This conclusion is not altered by evidence that before plaintiff’s action was filed Drs. Stasiewicz and Hewlett discussed the possibility of a lawsuit against them based on their treatment of plaintiff; Hewlett was aware of the subsequent filing of the complaint naming Stasiewicz as a defendant. Plaintiff relies on the following language in Austin v. Massachusetts Bonding & Insurance Co., supra, 56 Cal.2d 596 , to excuse his failure to name Hewlett as a defendant in the original complaint: “[A] defendant sued by a fictitious name and later brought into the case by an amendment substituting his true name is considered a party to the action from its commencement for purposes of the statute of limitations. A defendant unaware of the suit against him by a fictitious name is in no worse position if, in addition to substituting his true name, the amendment makes other changes in the allegations on the basis of the same general set of facts. And of course, as to a defendant who knows that he has been designated by a fictitious name in the original complaint, application of the modem rule does not affect him differently from a defendant designated by his true name.” (Pp. 602-603.) First, viewing the evidence in a light most favorable to the judgment (Bank of America v. Cory (1985) 164 Cal.App.3d 66 , 85 [ 210 Cal.Rptr. 351 ]), Hewlett did not believe he had been sued as a Doe