Camacho v. Smithson CA4/1 ( 2022 )

Filed 8/12/22 Camacho v. Smithson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ROSALIE CAMACHO et al., D078434
Plaintiffs and Appellants,
v. (Super. Ct. No. 37-2018-
00041855-CU-MM-NC)
JAMES SMITHSON et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Timothy Casserly, Judge. Affirmed.
Thorsnes Bartolotta McGuire, Kevin F. Quinn; Singleton Schreiber,
Benjamin I. Siminou, Alicia M. Zimmerman, and J. Domenic Martini, for
Plaintiffs and Appellants.
Cole Pedroza, Kenneth R. Pedroza, Alysia B. Carroll; Peabody &
Buccini, Thomas M. Peabody, and Natalie J. Buccini, for Defendant and
Respondent Scott M. Boles.
INTRODUCTION
Ramon Camacho died from a ruptured aortic dissection four days after
he was released from Sharp Memorial Hospital’s Emergency Department.
Surviving family members (collectively, Plaintiffs) sued the hospital, medical
group, the emergency room doctor, and Does 1 through 50 for medical
negligence and wrongful death.
The parties stipulated at a case management conference to dismiss the
Doe defendants. Less than a month later, Sharp Memorial Hospital (Sharp)
notified Plaintiffs its radiologist identified aortic dilation on Camacho’s CT
scan. Shortly thereafter, Plaintiffs filed a motion to amend the complaint to
add Dr. Scott M. Boles, the radiologist who reviewed Camacho’s CT scan
while he was in the emergency department. Boles filed a motion for
summary judgment, contending he lacked liability, the statute of limitations
barred the action, and the relation-back doctrine did not apply because he
was not substituted in for a Doe defendant, as required by Code of Civil
Procedure1 section 474.
The court concluded there were material facts in dispute regarding
liability, but it granted the motion and entered judgment in Boles’s favor
because it concluded the procedural requirements of section 474 had not been
met, and the statute of limitations barred the action. Plaintiffs appeal,
arguing they met the procedural requirements of section 474 because they
were “genuinely ignorant” of Boles’s identity. (See McOwen v. Grossman
(2007) 153 Cal.App.4th 937, 942-945; General Motors Corp. v. Superior Court
(1996) 48 Cal.App.4th 580, 593-596.) They also contend the court abused its
1 Statutory references are to the Code of Civil Procedure unless
otherwise specified.
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discretion by failing to amend the case management conference order
dismissing the Doe defendants so that it could substitute in Boles for a Doe
defendant.
We conclude the court did not abuse its discretion because Plaintiffs
never asked the court to amend the case management conference order
dismissing the Doe defendants. Because there were no Doe defendants to
replace when Plaintiffs filed the amended complaint naming Boles, Plaintiffs
failed to comply with section 474, and the relation-back doctrine is
inapplicable. We further conclude the statute of limitations bars the case
from proceeding against Boles. Because this conclusion is dispositive, we do
not separately evaluate whether Plaintiffs met their burden of demonstrating
“genuine ignorance” regarding Boles. We will affirm the judgment.
BACKGROUND AND PROCEDURAL FACTS
Camacho visited the Sharp Emergency Department on June 1, 2017,
complaining of pain to his flank. Treating physician Dr. James Smithson
identified “aortic pathology such as an aneurysm” as one possible cause of
pain and ordered a CT scan of Camacho’s abdomen.
Boles reviewed the CT scan. His report did not identify any aortic
pathologies.
Smithson discharged Camacho with instructions to follow up with his
primary care physician, and Camacho died four days later from an aortic
aneurism.
Camacho’s surviving family members retained counsel, who issued a
90-day notice of intent to sue to Boles (§ 364).
Plaintiffs retained board-certified radiologist Dr. Fergus Coakley to
review the CT scan and determine whether Boles should have detected
anything to report to the emergency room doctor consistent with “aortic
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pathology such as aneurism.” Coakley informed Plaintiffs’ counsel he did not
see any lapses in Dr. Boles’s standard of care because he did not see “any
findings consistent with ‘aortic pathology.’ ”
On August 20, 2018, Plaintiffs filed a medical negligence and wrongful
death suit naming Smithson, Sharp, Sharp Community Medical Group, and
Does 1 through 50. The complaint alleged the defendants “negligently and
carelessly examined, diagnosed, monitored, cared for, and treated” Camacho,
causing his death.
On May 10, 2019, the parties participated in a case management
conference. They stipulated that no new parties may be added without leave
of court, and that “all unserved, non-appearing and fictitiously named parties
are dismissed forthwith.”
On or about May 30, 2019, Sharp notified Plaintiffs’ counsel that “its
board-certified radiology expert had identified aortic dilation (enlarged
aorta), indicative of aortic pathology, on Mr. Camacho’s CT scan.”
On June 20, 2019, Plaintiffs sought leave to file an amended complaint
naming Boles as a defendant in the “furtherance of justice,” citing section
473. Plaintiffs’ counsel’s declaration explained Boles had been omitted from
the original complaint in reliance on Coakley’s expert opinion, and they only
became aware of Boles’s liability through Sharp’s expert. Defendants did not
oppose the motion.
The trial court granted leave to amend, and Plaintiffs filed an amended
complaint adding Boles and San Diego Diagnostic Radiology Medical Group,
Inc. (San Diego Imaging)2 as named defendants. The amended complaint
lists Boles as a defendant and adds paragraphs to the factual background
section detailing Plaintiffs’ investigation into possible claims against Boles.
2 San Diego Imaging is not a party to the appeal.
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On February 20, 2020, Boles filed a motion for summary judgment, or
in the alternative, summary adjudication, challenging the timeliness and
merits of the claims against him. He argued, among other things, that
Plaintiffs did not meet the requirements of section 474 because Plaintiffs
were aware of potential negligence in 2017, and because Doe defendants had
been dismissed before Boles was added to the suit. Plaintiffs responded that
the amended complaint related back to the initial complaint.
At the hearing on the motion for summary judgment, Plaintiffs
acknowledged the Doe defendants were dismissed before they filed the
amended complaint and so they “did not substitute a Doe the way that the
statute intends.” Plaintiffs argued they had been diligent in adding Boles
once they knew they had a cause of action against him, and they explained “it
falls within the Court’s discretion to grant amendment in these
circumstances when, in just a very short period after Does were dismissed,
plaintiffs discovered information, promptly moved on that information, and
pled a proper relation back in their first amended complaint.”
The trial court granted the motion for summary judgment on
September 8, 2020. In its written order, the court explained that triable
issues of material fact existed regarding whether Boles had violated the
applicable standard of care. However, because “Plaintiffs were aware of
Doctor Boles[’s] involvement in the medical service provided to the Decedent
but chose not to sue Doctor Boles based upon information that they now
believe to be incorrect. . . . [S]ufficient prima facie evidence has been
produced to establish that Plaintiffs were aware enough of Doctor Boles that
the statute of limitations was triggered as to him by July 2017.” It also
concluded that “there were no remaining fictitious ‘doe’ defendants to relate
back to” because the trial court had dismissed “all unserved, non-appearing
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and fictitiously named parties” before the court granted leave to amend the
complaint. Because the claims against Boles could not relate back to
nonexistent Doe defendants, the court concluded those claims were barred by
the statute of limitations. The court entered judgment for Boles.
Plaintiffs timely appealed.
DISCUSSION
Plaintiffs acknowledge that to invoke section 474, a plaintiff should file
an amended complaint substituting the new defendant for a Doe defendant
named in the original complaint. They ask us to find their noncompliance
with that procedural requirement to be curable, and they argue the lack of
compliance did not justify the grant of summary judgment in Boles’s favor.
We review summary judgment de novo. (Buss v. Superior Court (1997)
16 Cal.4th 35, 60.) We review discretionary orders for an abuse of discretion.
(Weingarten v. Block (1980) 102 Cal.App.3d 129, 134 [addressing orders made
under §§ 473 and 576]; Vedder v. Superior Court of Lassen County (1967) 254
Cal.App.2d 627, 629 [addressing requests to amend pleadings].)
“The general rule is that an amended complaint that adds a new
defendant does not relate back to the date of filing the original complaint and
the statute of limitations is applied as of the date the amended complaint is
filed, not the date the original complaint is filed.” (Woo v. Superior Court
(1999) 75 cCal.App.4th 169, 176 (Woo).) Section 474 provides an exception to
this rule by allowing a new defendant to be substituted for a fictitious Doe
defendant. (Ibid.) If the requirements of section 474 are met, the amended
complaint is deemed filed as of the date the original complaint was filed.
(Ibid.) Section 474 states 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
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name, and when his true name is discovered, the pleading or proceeding must
be amended accordingly.” Thus, to comply with section 474, “the new
defendant in an amended complaint must be substituted for an existing
fictitious Doe defendant . . . .” (Woo, at p. 176.)
Here, the court’s case management conference order dismissing Doe
defendants complied with Government Code section 68616, subdivision (h)
because the parties stipulated to the dismissal. The case management
conference order “controls the subsequent course of the action or proceeding
unless it is modified by a subsequent order.” (Cal. Rules of Court, rule 3.730.)
Thus, absent a request to modify the case management conference order, the
dismissal of the fictitious defendants governs in this case.
The Plaintiffs do not argue there was error in dismissing the Doe
defendants following the case management conference. And they
acknowledge they never expressly sought modification of that order. They
recognize that once the fictitious defendants are dismissed as part of a
pretrial conference order, to add a new defendant, a plaintiff first must seek
modification of the pretrial order. Then, once the order has been modified to
allow reinstatement of Doe defendants, a plaintiff should follow the
procedure outlined in section 474, substituting a named defendant for a Doe
defendant. (Gilmore v. Lick Fish & Poultry, Inc. (1968) 265 Cal.App.2d 106,
110-112 (Gilmore).)
But Plaintiffs contend Code of Civil Procedure section 576 authorized
the court to amend the pretrial conference order dismissing Doe defendants
in the furtherance of justice (See Gonzales v. Brennan (1965) 238 Cal.App.2d
69, 74-75), and the court failed to exercise that discretion. Notably, Plaintiffs
did not seek leave of court to substitute Boles for a Doe defendant in their
request to amend the complaint. In the amended complaint, they did not
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allege that Boles was among the Doe defendants named in the original
complaint. Instead, when they sought leave to amend their complaint,
Plaintiffs cited section 473 which gives the court authority, “in furtherance of
justice” to “allow a party to amend any pleading by adding or striking out the
name of any party, . . . ” The court granted this request.
The resulting amended complaint named Boles, as well as “Does 1
through 50,” even though all Doe defendants had previously been dismissed
by stipulation and order. It did not substitute Boles for a Doe defendant; it
included the same number of Doe defendants as the original complaint had.
It added three paragraphs alleging the role Boles played, how Plaintiffs had
“diligently pursued a potential claim against,” but “were reasonably and
objectively unaware that any wrongdoing on Dr. Boles’s part caused Plaintiffs
any harm.”
As Plaintiffs themselves recognized at the hearing on the motion for
summary judgment, they “did not substitute a Doe the way that statute
[section 474] intends.” Although Plaintiffs claim they “invoked [the] spirit [of
section 576] at the hearing on Boles’s motion for summary judgment,”
Plaintiffs did not ask the court to amend the case management conference
order. (See § 576.) It was only after the newly-named defendants argued
their inclusion in the suit was untimely that Plaintiffs contended the
relation-back doctrine applied because the new defendants were really
substitutions for Doe defendants.
We recognize that “the courts of this state have considered
noncompliance with the party substitution requirements of section 474 as a
procedural defect that could be cured and have been lenient in permitting
rectification of the defect.” (Woo, supra, 75 Cal.App.4th at p. 177.) However,
this case is distinguishable from other situations where such corrections to
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procedural defects have been permitted. In Woo, the plaintiffs failed to allege
the defendant was one substituted for a fictitious Doe defendant named in
the original complaint, but Doe defendants were included in the complaint.
(Ibid.) In Gilmore, after a pretrial conference order dismissed fictitious
defendants, the plaintiff moved for an order reinstating certain of them and
for permission to amend the complaint to substitute a named defendant in
place of Doe I. (Gilmore, supra, 265 Cal.App.2d at p. 108.) And in Santa
Catalina Island Co. v. Superior Court of Riverside County (1967) 248
Cal.App.2d 729, 730, after a pretrial conference order dismissed all fictitious
parties, the parties stipulated to amend that order to reinstate two Doe
defendants. The modification of the pretrial order allowed the plaintiffs to
substitute named defendants for the fictitious ones. (Ibid.)
In contrast, here, Plaintiffs never requested a modification to the case
management conference order to reinstate any Doe defendants for
substitution. Their motion to amend the complaint did not make that
request. And they did not make that request in written response to the
motion for summary judgment. While they argued during the hearing on the
motion for summary judgment that “amendment . . . is a discretionary
allowance under this Court’s power,” they “promptly moved to amend” the
complaint to add Boles, and they “pled a proper relation back in their first
amended complaint,” the amended complaint did not ask to substitute Boles
for a Doe defendant.3 In short, not only “did [they] not substitute a Doe the
3 Plaintiffs argued delayed discovery justified the late addition of Boles.
Their motion to amend the complaint identified section 473, which deals with
adding new parties. They argued the discovery rule to delay accrual of the
cause of action applied, citing Fox v. Ethicon Endo-Surgery, Inc. (2005) 35
Cal.4th 797, 807-808, a case which focuses on statutes of limitations, not
section 474 and the relation-back doctrine.
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way that the statute intends,” as they recognized at the summary judgment
hearing, but they never asked the court to exercise its discretion to amend
the pretrial order at all. We cannot say the court abused this discretion when
it was never called upon to apply it.
Because “the statute of limitations is applied as of the date the
amended complaint is filed, not the date the original complaint is filed,” (Woo,
supra, 75 Cal.App.4th at p. 176), by the time Boles was added to the
complaint, the statute of limitations barred the action. (See § 340.5 [statute
of limitations set at one year after plaintiff “through the use of reasonable
diligence should have discovered, the injury”].) Accordingly, the court
properly granted the motion for summary judgment and entered judgment in
favor of Boles.
DISPOSITION
The judgment is affirmed. Parties to bear their own costs.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
DO, J.
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