Motion to Quash - Section 474 of the California Code of Civil Procedure

In Balon v. Drost (1993) 20 Cal.App.4th 483, the plaintiff was struck by an automobile owned by the grandmother of the defendant's girlfriend. At the time of the accident, the plaintiff exchanged phone numbers and addresses with the defendant. She filed a complaint, naming the grandmother. When her attorney received an accident report indicating that the defendant was involved in the accident, her attorney attempted to amend the complaint, substituting the defendant as a Doe defendant. The First District reversed the trial court's granting of defendant's motion to quash, concluding that the plaintiff had complied with section 474. The court recognized that under section 474, "'A plaintiff has three years under section 581a, subdivision (a) after the commencement of the action to discover the identity of the unknown defendant and effect service of the complaint. When the complaint is amended to substitute the true name of the defendant for the fictional name, the defendant is regarded as a party from the commencement of the suit.' " (Balon, supra, 20 Cal.App.4th at p. 487.) Moreover, application of section 474 is restricted to the knowledge of the plaintiff at the time the complaint is filed, and is dependent on whether the plaintiff was ignorant of the facts. The plaintiff's lack of knowledge of the true name of the defendant must be real and not feigned. Citing Irving v. Carpentier (1886) 70 Cal. 23, the court stated that "'whether the plaintiff's ignorance is from misfortune or negligence, he is alike ignorant, and this is all the statute requires.'" (Balon, at p. 488.) "Under section 474, therefore, a plaintiff has no duty 'to exercise reasonable diligence prior to filing the complaint to discover the defendant's identity.' " (Ibid.) In Balon, the court had the benefit of plaintiff's extensive declaration in which she stated that she remembered receiving a piece of paper with a name on it at the time of the accident, but she was very dazed, and lost the piece of paper. She stated that she only learned the name of the driver when her attorney told her his name after he received the accident report. The Balon court concluded that the plaintiff's conduct demonstrated carelessness, not a willful misuse of section 474, and that if the trial court believed the plaintiff had acted otherwise, the record did not support such a finding. (Balon, supra, 20 Cal.App.4th at p. 490.) Balon has been strongly criticized by the Fourth District in Woo v. Superior Court (1999) 75 Cal.App.4th 169 which states that the better rule for application of section 474 in the case of a plaintiff's "forgetfulness," is "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, at p. 180.) In Woo v. Superior Court (1999) 75 Cal.App.4th 169, the court found that the facts undermined the plaintiff's contention that she acted in good faith to comply with section 474. There, the plaintiff argued that her medical records referred only to a different defendant, but when she produced her medical records, they identified Woo, the defendant she attempted to add. She made the inconsistent arguments that she forgot Woo's identity and that she never knew of Woo's identity. Additionally, her deposition testimony established that she knew Woo's identity in May 1996, well before she filed her complaint in April 1997, when she averred that she was ignorant of his identity. Woo distinguishes Balon on the basis that "in Balon the complaint amendment adding a new defendant was made without delay after an immediate effort by the plaintiff's attorney to determine the identity of the new defendant, and the complaint amendment was correctly made in accordance with the section 474 procedure." (Woo, supra, 75 Cal.App.4th at p. 179.) In Woo, by contrast, the plaintiff made no effort to properly identify Woo and did not correctly follow the section 474 amendment procedure.