Jacobs v. Pritz CA2/5 ( 2021 )

Filed 2/8/21 Jacobs v. Pritz CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
KENNETH JACOBS, B301157
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC708960)
v.
RACHEL ANN PRITZ,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Georgina T. Rizk, Judge. Affirmed.
Steven W. Kerekes and Daniel C. Lieb, for Plaintiff and
Appellant.
Law Offices of Cleidin Z. Atanous, Cleidin Z. Atanous;
Raffalow, Bretoi, Lutz & Stele, Brian S. Dewey, for Defendant
and Respondent Rachel Ann Pritz.
I. INTRODUCTION
After his car was struck by another car, Kenneth Jacobs
filed a negligence action against Dana Lynn Pritz,1 an insured
person on the other car. Shortly after the statute of limitations
ran, Jacobs named Rachel Ann Pritz,2 apparently Dana’s
daughter and the other car’s driver, as a defendant in his first
amended complaint through a “Doe” amendment. Jacobs
subsequently filed an “incorrect name” amendment to his first
amended complaint substituting Rachel for Dana as the only
named defendant, asserting he had incorrectly named Dana
rather than Rachel. Relying on the statute of limitations, Rachel
moved for summary judgment and demurred to the incorrect
name amendment. The trial court granted the summary
judgment motion and sustained the demurrer. Jacobs appeals
and we affirm.
II. BACKGROUND
On June 5, 2018, Jacobs filed his original complaint
asserting a single cause of action for negligence against Dana and
Does 1 through 25. Shortly thereafter, on June 22, 2018, Jacobs
1 Pritz also is referred to throughout the record as
“Danalynn.” We have adopted the name her attorneys use on
appeal.
2 Rachel Ann Pritz is also referred to throughout the record
as “Rachael” and her attorneys refer to her alternatively as
“Rachel” and “Rachael.” We have adopted the name listed on the
case caption. For clarity, we will refer to the Pritzes by their first
names.
2
filed his first amended complaint for negligence, again naming
Dana and Does 1 through 25 as defendants. Five days later, on
June 27, 2018, Jacobs filed a Doe amendment substituting Rachel
for defendant Doe 1.
Jacobs’s first amended complaint alleged, in relevant part,
that on June 18, 2016, he was driving his car onto a freeway
onramp when he was negligently rear-ended “by a vehicle being
driven, owned, operated, maintained, and leased by Defendants,”
injuring him. In her answer to the first amended complaint,
Rachel asserted that the negligence cause of action against her
was barred by the two-year statute of limitations in Code of Civil
Procedure section 335.1.3
Rachel moved for summary judgment, arguing that Jacobs
had not brought his negligence action against her within the
limitations period in section 335.1 and his Doe amendment did
not relate back to the timely-filed original complaint under
section 474. Among the evidence Rachel submitted in support of
her motion was the transcript of an interview of Jacobs conducted
two days after the accident by a claims department
representative from the Pritzes’ insurer, Mercury Insurance
Company (Mercury). In the interview, the Mercury
representative and Jacobs had the following exchange:
“[Mercury representative]: Okay. And then I have the
driver listed as a Rachel Prince (PH)?
“[Jacobs]: I’m sorry, say that again?
“[Mercury representative]: Rachel Prince?
“[Jacobs]: Yes, I believe—yes, that was—that was the ID
that we got.”
3 All further statutory references are to the Code of Civil
Procedure.
3
Jacobs told the Mercury representative that after the
accident, he had spoken with the other car’s driver. She was
upset and apologetic. After telling her that she should call her
father, Jacobs and the other car’s driver “started to exchange
information and stuff . . . .”
In his declaration submitted in opposition to Rachel’s
summary judgment motion, Jacobs stated, “On June 19, 2018,
after retaining [a new attorney], I forwarded some photographs
on my [cell phone] relating back to the night of the incident which
I recalled taking. Amongst the photographs were photographs of
the damage to both vehicles, photographs of me and a photograph
of a driver’s license in the name of ‘Pritz, Rachel Ann’, which I
have no recollection of ever examining. I immediately forwarded
the photographs to [my attorney’s] office via email on
June 19, 2018.”
On July 19, 2019, as Rachel’s summary judgment motion
was pending, Jacobs filed an incorrect name amendment to his
first amended complaint stating that he had designated a
defendant in his first amended complaint by the incorrect name—
Dana—and had discovered the defendant’s true name—Rachel.
Rachel demurred to the incorrect name amendment asserting it
was barred by the two-year statute of limitations in section 335.1.
The trial court granted Rachel’s summary judgment motion
and sustained her demurrer. It found that Rachel’s evidence
“establishe[d] without dispute, that [Jacobs] was aware of
[Rachel’s] identity and her involvement in the accident based on
the undisputed material facts.” It ruled that Jacobs’s negligence
action against Rachel was barred by the two-year statute of
limitations in section 335.1 and Jacobs’s Doe amendment naming
Rachel did not relate back to the original complaint’s filing date.
4
Likewise, the statute of limitations barred the incorrect name
amendment.4
III. DISCUSSION
Jacobs contends that the trial court erred in granting
Rachel’s summary judgment motion and sustaining her
demurrer. We disagree, and hold the court properly granted
summary judgment.5
A. Standard of Review
“‘“[A] defendant moving for summary judgment based upon
the assertion of an affirmative defense . . . [‘]has the initial
burden to show that undisputed facts support each element of the
affirmative defense’ . . . . If the defendant does not meet this
burden, the motion must be denied.” [Citations.]’ [Citation.]
‘[T]he burden shifts to the plaintiff to show there is one or more
triable issues of material fact regarding the defense after the
defendant meets the burden of establishing all the elements of
the affirmative defense. [Citations.]’” (Shiver v. Laramee (2018)
4 The court did not decide Dana’s motion for judgment on the
pleadings, ruling it was moot. Jacobs filed his notice of appeal on
September 25, 2019. The court filed the judgment in Rachel’s
favor on October 8, 2019. Although Jacobs’s appeal therefore was
premature, we exercise our discretion to construe the notice of
appeal as filed immediately after the judgment. (Cal. Rules of
Court, rule 8.104(d)(2).)
5 Because we hold the trial court correctly granted summary
judgment, we do not reach its ruling on Rachel’s demurrer.
5
24 Cal.App.5th 395, 400; Jessen v. Mentor Corp. (2008) 158
Cal.App.4th 1480, 1484–1485.)
“On appeal after a motion for summary judgment has been
granted, we review the record de novo, considering all the
evidence set forth in the moving and opposition papers except
that to which objections have been made and sustained.” (Guz v.
Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
B. Analysis
Generally, an amendment to a complaint that adds a new
defendant does not relate back to the date the original complaint
was filed and the statute of limitations is applied as of the date
the amendment was filed. (Woo v. Superior Court (1999) 75
Cal.App.4th 169, 176 (Woo).) Under section 474,6 however, a
plaintiff may substitute a new defendant for a fictitious Doe
defendant named in the original complaint. (Woo, supra, 75
Cal.App.4th at p. 176.) If the plaintiff satisfies section 474’s
requirements, a Doe amendment filed after the statute of
limitations has run is deemed filed on the date the original
complaint was filed. (Woo, supra, 75 Cal.App.4th at p. 176.)
Among the requirements for section 474’s relation-back
doctrine to apply is that the plaintiff must have been genuinely
ignorant of the new defendant’s identity at the time he filed the
6 Section 474 provides, in relevant part, “When the plaintiff
is ignorant of the name of a defendant, he must state that fact in
the complaint . . . 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 . . . .”
6
original complaint. (Woo, supra, 75 Cal.App.4th at p. 177;
McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247
Cal.App.4th 368, 372 [ignorance under section 474 must be
genuine and not feigned]; Hazel v. Hewlett (1988) 201 Cal.App.3d
1458, 1464 [for the relation-back doctrine under section 474 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”].) Without genuine ignorance, the
plaintiff may not add a new defendant after the statute of
limitations has run, even if the delayed filing would not prejudice
the new defendant. (Woo, supra, 75 Cal.App.4th at p. 177.) The
genuine ignorance requirement is met even if it resulted from the
plaintiff’s negligence. (Ibid.)
“[I]f the plaintiff knows the defendant’s identity and then
forgets it at the time the complaint is filed, to use the section 474
relation-back doctrine to avoid the bar of the statute of
limitations the plaintiff must have at least reviewed readily
available information likely to refresh his or her memory. If the
defendant cannot be identified from readily available
information, then section 474 is available; if the defendant can be
identified from the readily available information, then section
474 is unavailable.” (Woo, supra, 75 Cal.App.4th at p. 180.)
The evidence established that Jacobs knew of Rachel’s
identity as the other car’s driver prior to filing his original
complaint. Jacobs told a Mercury representative that after the
accident he spoke with and exchanged information with the other
car’s driver. In his declaration, Jacobs stated he had photographs
on his cell phone that he had taken at the time of the accident
that included a photograph of Rachel’s driver’s license. Two days
after the accident, a Mercury representative told Jacobs that she
7
had the driver listed as “Rachel Prince.” Jacobs said, “Yes, I
believe—yes, that was—that was the ID that we got.”
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—i.e.,
“readily available information likely to refresh his . . . memory”
about her identity—at the time he filed his original complaint, he
did not satisfy the requirements of section 474’s relation-back
doctrine.7 (Woo, supra, 75 Cal.App.4th at p. 180.) Accordingly,
the trial court correctly found that Jacobs’s negligence cause of
action against Rachel was barred by the statute of limitations
and properly granted summary judgment.
7 We decline Jacobs’s invitation to follow Balon v. Drost
(1993) 20 Cal.App.4th 483, 489 (Balon), in which the majority
concluded that a plaintiff who knew defendant’s name but then
forgot it and did not inquire about it before filing a complaint was
entitled to rely on section 474’s relation-back doctrine. Like the
court in Woo, supra, 75 Cal.App.4th at pages 180–181, we find
the majority opinion in Balon unpersuasive.
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IV. DISPOSITION
The judgment is affirmed. Rachel is awarded her costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J.
We concur:
RUBIN, P. J.
MOOR, J.
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