Scherer v. Mark

In Scherer v. Mark (1976) 64 Cal. App. 3d 834, the plaintiff sought to amend her complaint to substitute her physician, Dr. Mark, for a Doe defendant. ( Id. at p. 837.) Plaintiff's knowledge of Dr. Mark's name when she filed the complaint was undisputed. ( Id. at p. 840.) Instead the question was whether, when she filed her complaint, she knew facts giving her a cause of action against Dr. Mark. ( Id. at p. 840.) The court of appeal agreed with the trial court that plaintiff's effort to use section 474 to substitute Dr. Mark for a Doe defendant after the statute of limitations had run was improper. (See id. at p. 841.) The appellate court explained as follows: "Here plaintiff knew all of the basic facts constituting her alleged cause of action when she first filed her original complaint. The attempt to file an amendment under section 474 should be honest and in good faith. The question of the plaintiff's good faith in this regard is for the determination of the trial court. The pivotal question in this regard is 'did plaintiff know facts?' not 'did plaintiff know or believe that she had a cause of action based on those facts?' Nowhere in any pleadings or declarations did plaintiff ever say what new facts she discovered, albeit she made a general conclusionary allegation in her amended complaint that the defendant Mark negligently prescribed drugs and instructions for her care, and that because of her trust and confidence in her doctor, defendant Mark, she did not discover the asserted negligence until November 6, 1973. This pleading is a sham and is belied by the record which shows that the prescribed medicine and care was set forth in the hospital records existing and available to plaintiff on the day of injury! Moreover there is no honest assertion of any fact that the prescribed care or drugs were in fact wrong or mistakenly given. Plaintiff was not ignorant of any facts giving her a cause of action." ( Id. at p. 841.)