Munoz v. Purdy

Defendant Everett K. Purdy, M.D. (Purdy), a board-certified orthopedic surgeon, performed foot surgery on the plaintiff Sonia Munoz on February 16, 1973, at the Paradise Valley Hospital. Shortly after her surgery, she was taken to the radiology department of the hospital for a chest X-ray. She was asked to stand for the X-ray and fainted. She then began to suffer severe headaches and on March 1, complained to Purdy of her symptoms. She consulted counsel on or about March 16, 1973, at which time she believed she had been a victim of medical malpractice. Her records at the Paradise Valley Hospital were copied on March 30, 1973, pursuant to written authorization signed by her on March 26, 1973. Her action for medical malpractice was filed on January 7, 1974; Purdy was not specifically named as a defendant. He was substituted for Doe I on May 22, 1975. Plaintiff appeals from the judgment of dismissal which was entered after Purdy’s motion for summary judgment was granted.

The applicable statute of limitations affecting the plaintiff’s action for medical malpractice is contained in section 340.5. She had one year after she discovered, or through the use of reasonable diligence should have discovered, the injury for which she sought damages. As used in section 340.5, the word “injury” means both the physical condition and its negligent cause. (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93 , 99 [ 132 Cal.Rptr. 657 , 553 P.2d 1129 ].) The plaintiff believed, on or about March 16, 1973, that she was the victim of medical malpractice. If she had deferred filing her complaint until May 22, 1975, the one-year statute of limitations would have been an effective bar to her complaint against all defendants, including Purdy. Possession of “presumptive” as well as “actual” knowledge will commence the running of the statute of limitations. “ ‘[Where] the plaintiff has notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation ... the statute commences to run.’ ” (Id., at p. 101.)

Plaintiff contends Purdy may not assert the one-year period under section 340.5 because when her action was timely filed, she was ignorant

The lack of knowledge of the true name of a defendant, however, must be “real and not feigned.” (Schroeter v. Lowers (1968) 260 Cal.App.2d 695 , 700 [ 67 Cal.Rptr. 270 ].) A plaintiff must actually be ignorant of the facts giving him a cause of action against a defendant. “Ignorance of the facts is the critical issue, and whether it be due to misinformation or negligence is not relevant.” (Breceda v. Gamsby, supra, 267 Cal.App.2d 167 , 174-175; see also Hoffman v. Keeton (1901) 132 Cal. 195 [ 64 P. 264 ]; Irving v. Carpentier (1886) 70 Cal. 23 [ 11 P. 391 ].)

Defendant urges that the standard which must be used in analyzing section 474 is not only that the lack of knowledge of defendant’s true name be real and not feigned, but that knowledge which might be obtained “by some inquiry or resort to information easily accessible” should be considered in assessing whether plaintiff should have known defendant’s identity. (Schroeter v. Lowers, supra, 260 Cal.App.2d 695 , 700; see also Wallis v. Southern Pac. Transportation Co. (1976) 61 Cal.App.3d 782 , 786 [ 132 Cal.Rptr. 631 ].) We disagree. We cannot follow the dicta of Schroeter in view of Supreme Court authority cited above to the contrary and their progeny including Breceda v. Gamsby, supra, 267 Cal.App.2d 167 ; Garrett v. Crown Coach, Corp., supra, and Mishalow v. Horwald, supra, 231 Cal.App.2d 517 , 524. If we were to accept Purdy’s argument, the applicable standard for section 340.5 would be merged with that of section 474. The reasonable diligence required of a plaintiff would continue both before and after the filing of a complaint up to the expiration of the applicable limitation period — a result contrary to case law and at variance with the statutory scheme. Moreover, the interjection of a discovery standard into section 474 would lead to the harmful

The trial court, in granting Purdy’s motion for summaiy judgment, expressly stated that it was not making a finding based upon the declarations that plaintiff knew Purdy’s identity under section 474, as the word “identity” has been amplified, but rather, through the exercise of reasonable diligence, that information could have been obtained within the one-year period. We have concluded the standard applied by the trial court was incorrect.

The judgment is reversed.

Brown (Gerald), P. J., and Ehrenfreund, J.,* concurred.

Respondent’s petition for a hearing by the Supreme Court was denied June 14, 1979.