Filed 11/10/15 Smalls v. Alta Bates Summit Med. Center Surgery Property Co. CA1/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                       FIRST APPELLATE DISTRICT
                                                  DIVISION TWO



LOUISE SMALLS et al.,
    Plaintiffs and Appellants,                                          A139472
    v.
ALTA BATES SUMMIT MEDICAL
CENTER SURGERY PROPERTY                                                 (Alameda County
COMPANY, LLC et al.,                                                    Super. Ct. No. RG08-388794)
    Defendants and Respondents.


         Louise Smalls (Louise) and her husband, Nathaniel Smalls (Nathaniel; collectively
Plaintiffs), voluntarily dismissed without prejudice pursuant to Code of Civil Procedure
section 5811 their claim for medical negligence against Alta Bates Summit Medical
Center Surgery Property Company, LLC (Alta Bates) and the Surgery Center of Alta
Bates Summit Medical Center, LLC (the Surgery Center). On the same day of Plaintiffs’
dismissal, the trial court issued its tentative rulings granting the Surgery Center’s motion
to strike Plaintiffs’ pleading and sustaining without leave to amend Alta Bates’s
demurrer. The trial court vacated Plaintiffs’ dismissal and entered judgments dismissing
their action with prejudice, and Plaintiffs appeal. We affirm the judgments.




         1   All further unspecified code sections refer to the Code of Civil Procedure.

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                                    BACKGROUND
       On March 14, 2007, Dr. Charles Jenkins performed a thyroidectomy on Louise. A
little over one year later, on May 22, 2008, Plaintiffs sued Dr. Jenkins and Does 1 to 25
for medical negligence with regard to the surgery performed at “Alta Bates Summit
Medical Center.” Nathaniel claimed loss of consortium.
       The trial court granted Dr. Jenkins’s motion for summary judgment on March 3,
2010. Judgment was entered in favor of Dr. Jenkins on May 9, 2012, and Plaintiffs
appealed.2
       On July 5, 2012, Plaintiffs filed an amendment to the complaint adding Alta Bates
and the Surgery Center as Doe defendants. Plaintiffs filed a first amended complaint on
August 24, 2012, against Alta Bates and the Surgery Center for negligence related to the
thyroidectomy performed on March 14, 2007.
       The Surgery Center demurred to Plaintiffs’ first amended complaint, arguing that
the statute of limitations barred Plaintiffs’ claim of medical negligence. It also moved to
strike Plaintiffs’ prayer for punitive damages.
       On March 14, 2013, the trial court sustained with leave to amend the Surgery
Center’s unopposed demurrer. The court explained: “Plaintiffs’ claim for general
negligence against [the Surgery Center] is an action for injury against a health care
provider based on alleged professional negligence in performing a thyroidectomy on
March 14, 2007. Claims based on alleged professional negligence in providing medical
care are governed by . . . section 340.5. The limitation period under section 340.5 is three
years from the date of injury or one year from discovery of the injury, whichever occurs
first. The [f]irst [a]mended [c]omplaint was filed on August 24, 2012, more than three
years after the surgery. Plaintiffs were aware of the alleged injury when they filed the
original complaint on May 22, 2008, and the claims against [the Surgery Center] were not




       2 We dismissed Plaintiffs’ appeal on July 10, 2012, for failure to procure the
record on appeal within the time allowed or within any valid extension of time.

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filed within one year thereafter. . . . Leave to amend is granted to plead facts showing
that the limitation period under . . . section 340.5 does not bar Plaintiffs’ claims.”
       On April 9, 2013, Plaintiffs filed their seconded amended complaint (SAC) against
the Surgery Center and Alta Bates. Plaintiffs alleged medical negligence arising out of
the thyroidectomy on March 14, 2007. They asserted that “fraud was a factor and
therefore tolls the statute of limitations.”
       On April 29, 2013, the Surgery Center moved to strike Plaintiffs’ SAC. Alta
Bates demurred to the SAC on May 2, 2013. Plaintiffs did not oppose the motion to
strike or the demurrer. A hearing on the motion to strike and demurrer was set for June
27, 2013.
       The trial court provided its tentative rulings on the Surgery Center’s motion to
strike and Alta Bates’s demurrer on June 24, 2013. The tentative rulings indicated that
the court was granting the Surgery Center’s motion to strike and sustaining without leave
to amend Alta Bates’s demurrer. Plaintiffs did not provide any notice of their intent to
contest the tentative rulings but, on June 24, 2013, they requested dismissal of their
action without prejudice. The clerk of the court dismissed the Surgery Center and Alta
Bates without prejudice on June 24, 2013.
       On June 28, 2013, the trial court ordered Plaintiffs to show cause “why the
dismissal of [the] Surgery Center and [Alta Bates] without prejudice, entered by the
[c]lerk on the day the court published tentative rulings on the unopposed [m]otion to
[s]trike and [d]emurrer, should not be vacated and set aside and why the uncontested
tentative rulings should not be affirmed.” The hearing was set for July 18, 2013.
       After holding the hearing, the trial court on July 18, 2013, vacated and set aside
the dismissal without prejudice of Plaintiffs’ action. The court found that “the
Defendants’ right to judgment in their favor had ripened into inevitability by the time the
dismissals were filed.” The court noted, “Plaintiffs implicitly concede that the dismissals
were entered for strategic reasons only. . . . There has been a determination by the court,
after careful review, that the case has no merit as a matter of law and that Defendants are
entitled to dismissal with prejudice. The policies supporting the result in [Groth Bros.

                                               3
Oldsmobile, Inc. v. Gallagher (2002) 97 Cal.App.4th 60, 66-73], including judicial
economy and prevention of the waste of judicial resources, and the policy protecting
defendants against continuous and harassing litigation, are fully implicated in this case,
and the dismissals filed by Plaintiffs are VACATED on that basis.”
       The trial court sustained Alta Bates’s demurrer without leave to amend and
granted the Surgery Center’s motion to strike Plaintiffs’ entire SAC. The court filed
judgments of dismissal as to the Surgery Center and Alta Bates. Plaintiffs filed a timely
notice of appeal.
                                       DISCUSSION
                                   I. Standard of Review
       Most courts apply a de novo standard when reviewing the trial court’s ruling on a
request to voluntarily dismiss a case pursuant to section 581. (See Lee v. Kwong (2011)
193 Cal.App.4th 1275, 1281 [“The trial court’s application of section 581 to undisputed
facts is a question of law and we review the trial court’s determination de novo.”]; Gogri
v. Jack in the Box, Inc. (2008) 166 Cal.App.4th 255, 262 [“Because the trial court’s
application of section 581 to undisputed facts is a question of law, we apply the
independent standard in reviewing on appeal the trial court’s determination”].)
However, in Tire Distributors, Inc. v. Cobrae (2005) 132 Cal.App.4th 538, the court held
that an abuse of discretion standard is more appropriate, noting that “every court to
consider this issue has based its holding on the facts and circumstances surrounding the
dismissal, evaluating whether allowing the dismissal to stand would be unfair or would
endorse dishonest litigation tactics.” (Id. at p. 544.) The court observed that the
“common thread running through all of these decisions is the notion of fairness, which in
turn depends on the plaintiff’s motivation and intent in dismissing his complaint.” (Id. at
p. 546.) These questions, the Tire Distributors court concluded, were best left to the
sound discretion of the trial court.
       We need not decide whether to apply a de novo or abuse of discretion standard of
review because no error occurred under either standard.


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       II. Limitations on the Right to a Voluntary Dismissal Under Section 581
       Section 581, subdivisions (b)(1) and (c) allow a plaintiff to dismiss voluntarily,
with or without prejudice, an action “prior to the actual commencement of trial.”
Plaintiffs contend that the trial court did not have jurisdiction to vacate their dismissal or
to rule on the demurrer or motion to strike. (See Shapell Industries, Inc. v. Superior
Court (2005) 132 Cal.App.4th 1101, 1108 [voluntary dismissal of an entire action
deprives court of both subject matter and personal jurisdiction in that case, except for the
limited purpose of awarding costs and statutory attorney fees].)
       Plaintiffs ignore that they do not have an absolute right to the voluntary dismissal
of their action. (Zapanta v. Universal Care, Inc. (2003) 107 Cal.App.4th 1167, 1171.) A
plaintiff has a right to dismiss prior to trial, but not after commencement of trial. Section
581, subdivision (a)(6) defines the commencement of trial as “the beginning of the
opening statement or argument of any party or his or her counsel, or if there is no opening
statement, then at the time of the administering of the oath or affirmation to the first
witness, or the introduction of any evidence.”
       If courts permitted a voluntary dismissal after sustaining a demurrer without leave
to amend, “ ‘ “litigation would become interminable, because a party who was led to
suppose a decision would be adverse to him could prevent such decision and begin anew,
thus subjecting the defendant to annoying and continuous litigation.” ’ [Citation.] An
important additional interest has also been identified. ‘But the injustice to the defendant
is not the greatest evil of such a practice; the wasting of the time and money of the people
in a fruitless proceeding in the courts is something far more serious.’ [Citation.]” (Wells
v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 785-786.)
       Indeed, the actual commencement of trial may occur before the trial court makes
an actual ruling on a pending dispositive motion. In Groth Bros. Oldsmobile, Inc. v.
Gallagher, supra, 97 Cal.App.4th 60, the court held that the plaintiff could not
voluntarily dismiss without prejudice the lawsuit after the trial court had announced a
tentative ruling sustaining a demurrer without leave to amend. (Id. at p. 73; see also
Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765, 768-769 [plaintiff not

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permitted to dismiss action without prejudice after adverse tentative summary judgment
ruling announced].)
       The critical factor is whether “the action has proceeded to a determinative
adjudication, or to a decision that is tantamount to adjudication.” (Harris v. Billings
(1993) 16 Cal.App.4th 1396, 1402; Zapanta v. Universal Care, Inc., supra, 107
Cal.App.4th at p. 1171.) After reviewing numerous section 581 cases, the court in
Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187 (Franklin) concluded a
“mere formality” test applied in determining whether a voluntary dismissal is untimely.
(Id. at pp. 199-205.) A voluntary dismissal is untimely under section 581 if either: (1)
there has been “a public and formal indication by the trial court of the legal merits of the
case;” or (2) there has been “some procedural dereliction by the dismissing plaintiff that
made dismissal otherwise inevitable.” (Franklin at p. 200.) Exemplifying an example of
an untimely dismissal under the inevitability test is where a defendant files a summary
judgment motion meeting the defendant’s initial burden of showing that the plaintiff’s
case was without merit and the plaintiff fails to file any timely opposition. (See Cravens
v. State Bd. of Equalization (1997) 52 Cal.App.4th 253, 257.)
                          III. Applying the Mere Formality Test
       Plaintiffs filed their request to dismiss their action against Alta Bates and the
Surgery Center on the same day as the trial court issued its tentative rulings sustaining
without leave to amend Alta Bates’s demurrer and granting the Surgery Center’s motion
to strike Plaintiffs’ FAC. Plaintiffs did not file declarations stating that they filed their
request for dismissal prior to receiving the tentative rulings.
       Even if we presume that Plaintiffs filed their request for dismissal prior to being
apprised of the tentative rulings and therefore the first test set forth in Franklin does not
apply, their dismissal request was still untimely if a procedural dereliction by Plaintiffs
made dismissal inevitable. (Franklin, supra, 148 Cal.App.4th at p. 200.) In the present
case, Plaintiffs’ procedural derelictions in filing a SAC that did not cure the defects in
their first amended complaint and in failing to file any opposition to Surgery Center’s
motion to dismiss and Alta Bates’s demurrer to their SAC have resulted in a situation

                                               6
where a final disposition dismissing this action was inevitable. As we explain, the statute
of limitations clearly bars Plaintiffs’ medical negligence claim.
          Section 340.5 provides that an action for professional negligence against a health
care provider must be commenced three years after the date of the injury or one year after
the plaintiff discovers the injury, whichever occurs first. “While ignorance of the
existence of an injury or cause of action may delay the running of the statute of
limitations until the date of discovery, the general rule in California has been that
ignorance of the identity of the defendant is not essential to a claim and therefore will not
toll the statute.” (Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 932.)
“Aggrieved parties generally need not know the exact manner in which their injuries
were ‘effected, nor the identities of all parties who may have played a role therein.’ ”
(Ibid.)
          Plaintiffs’ lawsuit is based on a thyroidectomy performed on March 14, 2007.
They were aware of their injury by May 22, 2008, the date they filed their original
complaint against Dr. Jenkins. The amendment to the complaint adding Alta Bates and
the Surgery Center as Doe defendants was filed on July 5, 2012, more than one year after
Plaintiffs discovered the injury and more than three years after the surgery.
          Plaintiffs’ amendment to their complaint would be timely if it related back to the
original complaint’s filing date. Generally, an amended complaint that adds a new
defendant does not relate back to the original complaint’s filing date and the statute of
limitations applies as of the amended complaint’s filing date and not the date the original
complaint was filed. (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.) There is
an exception to that general rule when, under section 474, a new defendant is substituted
for a fictitious Doe defendant named in the original complaint. (Woo, at p. 176.) If
section 474’s requirements are satisfied, an amended complaint substituting a new
defendant for a Doe defendant is deemed filed on the date the original complaint was
filed for statute of limitations purposes. (Austin v. Massachusetts Bonding & Ins. Co.
(1961) 56 Cal.2d 596, 602.)


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       Section 474 provides in pertinent part: “When the plaintiff is ignorant of the name
of a defendant, he [or she] must state that fact in the complaint . . . , and such defendant
may be designated in any pleading or proceeding by any name, and when [the] true name
is discovered, the pleading or proceeding must be amended accordingly . . . .”
       Section 474 contains two mandatory requirements. (Stephens v. Berry (1967) 249
Cal.App.2d 474, 477.) The first requirement is the plaintiff’s ignorance of the Doe
defendant’s identity at the time of filing the complaint. (Optical Surplus, Inc. v. Superior
Court (1991) 228 Cal.App.3d 776, 783-784.) A litigant cannot avoid the statute of
limitations by naming a fictitious defendant in a timely complaint and then, after the
statute has run, add by amendment a defendant whose identity and capacity was known
from the outset. (Scherer v. Mark (1976) 64 Cal.App.3d 834.) Here, Plaintiffs’ original
complaint against Dr. Jenkins makes it plain that they were aware of Alta Bates and the
Surgery Center at the time the injury occurred. In their original complaint, they alleged
that Louise was injured when she had surgery on March 14, 2007, at “Alta Bates Summit
Medical Center.”
       The second requirement of section 474 is that the plaintiffs make a clear statement
in their pleading that they are ignorant of the true name of the defendant sued by a
fictitious name. (Stephens v. Berry, supra, 249 Cal.App.2d at p. 477.) The allegations in
Plaintiffs’ original complaint simply indicate that they were suing Dr. Jenkins and Does 1
to 25. The pleading contains no statement that Plaintiffs are ignorant of the true names of
the defendants sued as Does 1 to 25. Accordingly, the amended complaint does not relate
back to the original complaint.
       Furthermore, section 474 allows a plaintiff to identify the person previously
designated by a fictitious name, but this provision does not provide such option
indefinitely. (See Nogart v. Upjohn Co. (1999) 21 Cal.4th 383, 398-399.) Section
583.210, subdivision (a) provides: “The summons and complaint shall be served upon a
defendant within three years after the action is commenced against the defendant. For the
purpose of this subdivision, an action is commenced at the time the complaint is filed.”
Under this provision, after filing suit against one defendant, the plaintiff must name and

                                              8
serve all fictitiously named defendants within a maximum period of three years. If
service is not made within three years, the court must dismiss the action under section
583.250. “The requirements of this article are mandatory and are not subject to
extension, excuse, or exception except as expressly provided by statute.”3 (§ 583.250,
subd. (b).)
       Plaintiffs filed their complaint against Dr. Jenkins and Doe defendants on May 22,
2008. They did not file their amended complaint adding Alta Bates and the Surgery
Center as Doe defendants until July 5, 2012, more than three years after they filed their
original complaint.
       It is also clear that neither the doctrine of equitable tolling nor equitable estoppel
applies to the present case. Equitable tolling suspends the statute of limitations if a
defendant’s fraud conceals a cause of action against the defendant, “but only for that
period during which the claim is undiscovered by plaintiff or until such time as plaintiff,
by the exercise of reasonable diligence, should have discovered it.’ ” (Bernson v.
Browning-Ferris Industries, supra, 7 Cal.4th at p. 931.) “To allege such a cause of action
the fraud must be alleged with the usual particularity required in such actions. The
existence of such fraud must be alleged clearly and unequivocally, and must not rest upon
inferences.” (Bank of America v. Williams (1948) 89 Cal.App.2d 21, 25.) In contrast,
equitable estoppel based on the ignorance of a defendant’s identity does not toll the
statute of limitations but “a defendant may be equitably estopped from asserting the
statute of limitations when, as the result of intentional concealment, the plaintiff is unable
to discover the defendant’s actual identity.” (Bernson, at p. 936.)
       Here, Plaintiffs simply alleged that “fraud was a factor and therefore tolls the
statu[t]e of limitation[s].” They did not plead the particular facts that would show
fraudulent concealment or misrepresentation. Plaintiffs did not set forth any allegations
of equitable estoppel. Moreover, Plaintiffs could not amend their pleading to allege


       3None of the statutory exceptions delineated in sections 583.220, 583.230, and
583.240 applies to the present case.

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equitable tolling or equitable estoppel. Any allegation of fraud with regard to concealing
the injury or the identity of the Surgery Center or Alta Bates is belied by the facts set
forth in their original complaint. Their original complaint established that they were
aware of their injury and the identity of “Alta Bates” in 2008.
       We therefore conclude that Plaintiffs’ request for dismissal without prejudice was
not valid and the trial court did not exceed its jurisdiction in granting Surgery Center’s
motion to strike and sustaining without leave to amend Alta Bates’s demurrer.
                                      DISPOSITION
       The judgments are affirmed. The Plaintiffs are to pay the costs of appeal.

                                                  _________________________
                                                  Kline, P.J.


We concur:


_________________________
Stewart, J.


_________________________
Miller, J.




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