Opinion
A129288
01-18-2012
DAVID ERWIN, Plaintiff and Appellant, v. LCA-VISION INC., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. CIVMSC05-01815)
David Erwin (Erwin) brought this negligence action in February 2005 for claimed injury from eye surgery at LasikPlus Vision Center (LasikPlus) in November 2003. He initially named LasikPlus and surgeon George Simon (Simon) as defendants, but a year later added LCA-Vision Inc. (LCA) by a Doe amendment. On a prior appeal by Erwin after a grant of summary judgment in favor of LCA (Erwin v. LCA-Vision, Inc. (Dec. 9, 2008, A117852) [nonpub. opn.]) (Erwin I), we reversed, rejecting conclusions that the action was untimely under the year-from-discovery statute and that the Doe amendment did not relate back (Code Civ. Proc., §§ 340.5, § 474).
All undesignated section references are to the Code of Civil Procedure.
Section 340.5 provides: "In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. . . ."
Section 474 provides in pertinent 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 . . . by any name, and when his true name is discovered, the pleading . . . must be amended accordingly . . . ."
In a second appeal by Erwin (Erwin v. Sjauw (Jan. 29, 2010, A122067) [nonpub. opn.] (Erwin II), we affirmed summary judgment granted by the Hon. Barbara Zuniga (not the judge in Erwin I)to optometrist Stephanie Sjauw, whom Erwin tried to bring into the action as another Doe defendant. The broad issues were similar, but we upheld Judge Zuniga's ruling that, while the action was timely filed, the Doe amendment did not avoid the statute of limitations because Erwin was not ignorant of the identity and operative facts for liability as to Sjauw when he filed suit.
In this third appeal by Erwin, we examine and uphold a further grant of summary judgment to LCA, this time, as in Erwin II, by Judge Zuniga.
Our record contains the order granting summary judgment, and even a notice of entry of that order, but no dismissal to constitute an appealable judgment. Rather than dismiss the appeal as premature, we modify the order to include a dismissal as to LCA. (Dover v. Sadowinski (1983) 147 Cal.App.3d 113, 115; cf. Donohue v. State of California (1986) 178 Cal.App.3d 795, 800.)
BACKGROUND
The first amended complaint (FAC) is nearly identical to an original complaint of February 17, 2005, except for an amended allegation of having served 90 days' notice of intention to sue a health care provider under the Medical Injury Compensation Reform Act (MICRA notice). (§ 364, subd. (a); Woods v. Young (1991) 53 Cal.3d 315, 319-320.) Naming Simon and LasikPlus as defendants, but without specifying who was served, it alleges that Erwin served MICRA notice on or about November 3, 2004, a date within 90 days of the one-year anniversary of the surgery.
The FAC alleges that the named defendants and 50 Does are all responsible for the injuries, and acted as agents and employees of one another, and that Erwin's LASIK (laser assisted in situ keratomieusis) surgery and treatment fell below the standard of care for medical practitioners, and, because defendants minimized the risks, was done without informed consent. A "FIRST CAUSE OF ACTION" is divided into two counts, for health care provider negligence and lack of informed consent.
A "SECOND CAUSE OF ACTION," for product liability, does not concern the named defendants or first 24 Does. Other Does allegedly supplied unsafe or defective drugs, supplies, etc., and still other Does manufactured, sold and distributed them.
On February 2, 2006, 26 months after the surgery, Erwin amended the FAC to substitute LCA for Doe 1. LCA answered, raising the one-year statute of limitations (§ 340.5; fn. 1, ante) as an affirmative defense.
LCA's second motion for summary judgment, filed in March, 2010, was again based on the statute of limitations (§ 340.5) and related effect of the Doe amendment. In most respects, the showing remained the same, and so we borrow from Erwin I for a summary of the basic evidence on basic issues, in timeline form.
"(1) Before undergoing the surgery, Erwin researched LasikPlus by visiting a LasikPlus website. He was also given a LasikPlus brochure that stated: 'LasikPlus is owned by U.S. based, LCA-Vision'; 'LCA-Vision is a publicly traded company'; and 'LCA-Vision owns and operates 32 LasikPlus Vision Centers in the United States.' He was also given a three-page document, titled 'LCA-VISION INC. NOTICE OF PRIVACY RIGHTS' (privacy notice) that described the policies and practices of LCA and employees handling medical information. The privacy notice identified 'LCA-Vision Inc.' 16 times and referred to an Ohio address and phone number for further questions . . . .
"(2) Erwin underwent the operation on November 19, 2003.
"(3) Less than a week later, Erwin reported that his vision was not improving, and within a month, believed that something was wrong. Then through December 2003 and January 2004, he reported blurry vision, seeing double, and difficulty focusing. At the end of January he called Simon to discuss an enhancement procedure.
"(4) Erwin filed his original complaint, naming Simon and LasikPlus, on February 17, 2005.
"(5) Erwin filed his Doe amendment adding LCA on February 2, 2006."
The court and parties this time were, of course, aware of our opinion in Erwin I. On the lawsuit's timeliness as to any defendant, we had noted that, if the alleged MICRA notice was served on any defendant within the last 90 days of the one-year statute, it effectively extended the limitation period to one year and 90 days (Woods v. Young, supra, 53 Cal.3d at p. 329), making the action's commencement on February 17, 2005, timely as measured from a conceded accrual date of November 24, 2003, when Erwin first had enough notice of wrongdoing to file suit. The action thus being timely as to initially named defendants, an issue for the unnamed LCA was whether LCA might have been registered to do business in California under the fictitious name of LasikPlus (Bus. & Prof. Code, § 17910 et seq.), thus rendering service on LasikPlus service on LCA. But we held that issue inadequately raised by the FAC or the motion, and thus that a paucity of admissible evidence on the point did not defeat the timeliness of the action overall.
LCA's 2010 motion for summary judgment fleshed out that issue with direct, undisputed evidence that it was not registered under California's fictitious business name statute and had not received MICRA notice. The court this time ruled that the initial action was not timely served as to LCA, reasoning also that lack of actual MICRA notice did not extend the one-year filing period as to LCA. On this appeal, Erwin does not challenge that ruling or the underlying accrual date of November 24, 2003. Rather, he challenges a further holding that the Doe amendment was not effective to relate back on a theory of LCA having negligently hired Simon.
We frame that issue with the analysis in Erwin I, for Erwin relied on Erwin I as controlling below, and does so here. We started with the general rule "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. [Citations.] A recognized exception to the general rule is the substitution under section 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint. [Citations.] If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed. [Citation.]" (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176 (Woo).) MICRA notice is not needed for a defendant added under section 474. (§ 364, subd. (e); Hazel v. Hewlett (1988) 201 Cal.App.3d 1458, 1463-1464 (Hazel).)
We held that the FAC's standard Doe allegations satisfied section 474, and so proceeded to a further requirement that the plaintiff "must have been genuinely ignorant of [the defendant's] identity at the time she filed her original complaint. [Citations.] The omission of the defendant's identity in the original complaint must be real and not merely a subterfuge for avoiding the requirements of section 474. [Citation.] Furthermore, if the identity ignorance requirement of section 474 is not met, a new defendant may not be added after the statute of limitations has expired even if the new defendant cannot establish prejudice resulting from the delay. [Citation.] However, if the plaintiff is actually ignorant of the defendant's identity, the section 474 relation-back doctrine applies even if that ignorance is the result of the plaintiff's negligence. [Citations.]" (Woo, supra, 75 Cal.App.4th at p. 177.) A plaintiff ordinarily has no duty of inquiry and may even be held ignorant of a defendant's identity if, as this division has held, he once knew the identity but genuinely forgot by the time of filing suit. (Balon v. Drost (1993) 20 Cal.App.4th 483, 487-490 (Balon);but see Woo, supra, 75 Cal.App.4th at pp. 179-180 [adopting Balon dissent view that a plaintiff must use readily available information to refresh memory].)
We observed as well that the phrase "ignorant of the name of a defendant" in section 474 is not taken literally, but "includes situations where the plaintiff ' "knew the identity of the person but was ignorant of the facts giving him a cause of action against the person [citations]. . . ." ' " (Hazel, supra, 201 Cal.App.3d at p. 1464.) " ' "Ignorance of the facts is the critical issue . . . ." [Citations.]' [Citation.] 'The pivotal question in this regard is "did plaintiff know facts?" not "did plaintiff know or believe that [he] had a cause of action based on those facts?" [Citation.]' " (Id. at p. 1465.) We also held that the initial burden of showing Erwin's knowledge of facts giving him a cause of action against LCA at the inception of his lawsuit lay with LCA, as would other aspects of a statute of limitations defense.
Applying those principles, and stressing that the trial court had viewed Erwin's cause of action against Doe I as resting on a theory of respondeat superior, we stated that the undisputed facts known to Erwin when he filed suit "scream[ed] out the prospect of respondeat superior liability." Notably, Erwin knew before his surgery that LCA owned and operated LasikPlus, and had read a privacy notice that identified LCA 16 times, described privacy policies of LCA and LCA employees who handled patients' medical information, and gave, as a contact for further questions, a telephone number for Regina Brown-Hill, identified as Vice President of LCA, at its Cincinnati, Ohio, address.
Erwin had argued, however, that there was no direct evidence that he knew of any employment contracts between Simon and LCA. We noted "a powerful inference [that] . . . Erwin knew enough to sue LCA from the start" on a respondeat superior theory, but reasoned, "We need not decide that question, . . . for respondeat superior was not the sole basis for LCA's liability." Doe allegations in the FAC, as well as discovery responses by Erwin, showed that Erwin relied on a negligent hiring theory as well. Thus, and without actually deciding whether LCA had carried the day on the respondeat superior theory, we sent the case back, observing that "LCA produced no evidence at all on when Erwin became aware of facts supporting negligent hiring."
New undisputed facts, on LCA's 2010 motion, included Erwin's concession in deposition that he believed, upon filing suit, that Simon was always an employee of LCA. His position, however, was that he had not discovered a necessary element for negligent hiring until January 2006. It was then, by doing Google searches for LCA, Simon, and LasikPlus, with search terms like "malpractice," that he discovered a March 2003 article about LASIK surgery and that Simon was a plaintiff in a lawsuit against the American Broadcasting Companies, Inc. over a June 1993 broadcast of ABC Prime Time Live that was critical of an ophthalmic eye clinic known as Desnick Eye Center. Erwin also found, by running Simon's name in the Contra Costa County register of actions, nine lawsuits that he claimed supported a negligent hiring claim, seven of which were filed between 1985 and 1993. Erwin said in deposition that, if one is "clever enough" or "resourceful enough," one can find "a plethora of information online."
Judge Zuniga ruled that the respondeat superior theory was time-barred and that Erwin's Doe amendment did not relate back because he knew the basis for liability when he first filed suit. Again, Erwin does not dispute that ruling, but disputes a further ruling that there was also no relation back as to a negligent-hiring theory.
The court reasoned in that regard: (1) Under section 474, Erwin suspected injury by some wrongful cause by November 24, 2003, and thus "any legal theories based upon the harm he allegedly suffered began to run as of that date." (2) If Erwin wanted to claim "delayed discovery of facts in support of negligent hiring, he was required to show a reasonable investigation and failure to find these facts despite such an investigation, a showing he can not make. A reasonable investigation of Dr. Simon would have revealed facts about his alleged incompetence because all of the discovered facts were in the public domain and available on the [I]nternet or otherwise." (3) The Doe amendment did not meet the requirements of section 474. (4) Since Erwin knew from the outset of the lawsuit LCA's identity and believed LCA was Simon's employer, Erwin "cannot be said to have been genuinely ignorant of LCA's identity" under section 474.
DISCUSSION
"A grant of summary judgment is proper where it appears no triable issues of material fact exist, and judgment is warranted as a matter of law. [Citations.] As the moving party, the defendant must show that the plaintiff 'has not established, and cannot reasonably expect to establish, a prima facie case' on one or more elements of the cause of action. [Citations.] The reviewing court independently examines the record and considers all of the evidence set forth in the moving and opposing papers except that as to which objections have been made and sustained. [Citations.]" (Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 285.) A showing of no prima facie case shifts to the plaintiff a burden of production to show the existence of a triable issue. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
Judge Zuniga ruled that evidentiary objections by Erwin were not considered, as violating rules of court and concerning evidence not relevant to the decision. Erwin does not dispute that ruling.
The key question presented is whether Erwin, having knowledge of facts to state a cause of action against LCA on a respondeat superior theory and thus unable to avoid the statute of limitations through section 474, could nevertheless proceed against LCA under section 474 if he lacked knowledge of facts to alternatively plead his cause of action on a negligent-hiring theory. Stated differently, when section 474 does not allow adding a Doe defendant on one theory of a cause of action, can the plaintiff prevail by invoking an added theory? We shall call this the added-theory postulate.
A threshold issue is whether, as Erwin contends, Erwin I established law of the case on his added-theory postulate, so that the trial court was bound to rule in his favor. We reject the contention. As he recognizes, "The law-of-the-case doctrine binds the trial court as to the law but controls the outcome only if the evidence on retrial or rehearing of an issue is substantially the same as that upon which the appellate ruling was based. [Citations.]" (People v. Mattson (1990) 50 Cal.3d 826, 850.)
Erwin I did not validate the added-theory postulate. The reversal without resolving the respondeat superior theory did encourage the prospect that an added-theory postulate might succeed, but the opinion did not expressly resolve that question or even indicate that the question was posed by the parties in their briefing. Nor, according to our court records, did either party seek a rehearing so as to pose the issue for consideration after the opinion was filed but before it became final. Thus the legal question was not directly posed or considered, arose only by inference, and was not a holding in the opinion. (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2; In re H.E. (2008) 169 Cal.App.4th 710, 721; McGee v. Superior Court (1985) 176 Cal.App.3d 221, 226.) The law-of-the-case doctrine did not apply.
Nor, apparently, had LCA's first motion for summary judgment posed the added-theory postulate for the trial court's consideration. Erwin vigorously disputed knowing of any employee/employer relationship. By contrast, in opposition to the second motion, Erwin this time conceded that he always believed Simon was employed by LCA. Having thus conceded away ignorance of a respondeat superior theory, he squarely posed the question of whether his added-theory postulate was tenable. For that theory, he also conceded knowledge of the employment relationship, but dispute knowing anything about Simon's history that would support LCA having negligently hired Simon.
The final question is whether the trial court correctly held that the Doe amendment did not relate back. In resolving this, we accept Erwin's premise that a negligent-hiring claim requires proof that the principal knew, had reason to know, or with reasonable investigation could have discovered, that the employee's unfitness or incompetence for the task created an undue risk of harm to others. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 842-843; CACI No. 426 (2011 ed.) p. 293.) We also accept for purposes of our analysis that the evidence on the motion establishes that Erwin did not know, until his online research in January 2006, of facts satisfying that element of the tort.
Reflection on the question, now presented and briefed, leads us to reject the added-theory postulate. We first reject Erwin's references to his "cause of action" for respondeat superior and "cause of action" for negligent hiring, for they are misleading. Under California's primary-rights theory of pleading, he has a single injury and thus just one "cause of action." (Bay Cities Paving & Grading, Inc. v. Lawyers' Mutual Ins. Co. (1993) 5 Cal.4th 854, 860 (Bay Cities Paving).) What he has are alternative legal theories for recovery. "[T]he 'cause of action' is based upon the harm suffered, as opposed to the particular theory asserted by the litigant. [Citation.] Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief." (Slater v. Blackwood (1975) 15 Cal.3d 791, 795 (Slater).)
Whether section 474 allows avoidance of the statute of limitations for each theory of a cause of action, or just the cause of action itself, is a question apparently unaddressed in the published decisions, but precedent speaks repeatedly of knowing facts giving rise to "a cause action." (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 942; Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1172; Wallis v. Southern Pac. Transportation Co. (1976) 61 Cal.App.3d 782, 786-787; Breceda v. Gamsby (1968) 267 Cal.App.2d 167, 174, 178 (Breceda).) Discussion of different theories within a cause of action can be found in cases stating a former rule that an amended complaint adding a Doe defendant properly relates back when there is "a mere change in legal theory" so long as it does not "set forth 'a wholly different cause of action,' i.e., 'a wholly different legal liability or obligation.' [Citations.]" (Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 600-601 (Austin). Such discussion largely ended in 1961, however, with our high court's decision in Austin to jettison the test of wholly different causes of action or liabilities in favor of more workable language that Doe amendments relate back so long as they involve "the same general set of facts." (Id. at p. 602; Barnes v. Wilson (1974) 40 Cal.App.3d 199, 203-204; Breceda, supra, 267 Cal.App.2d at pp. 170-171 & fn. 3.)
What remains, however, is the language that a plaintiff must have been ignorant of facts giving him "a cause of action" against the substituted defendant, and this strongly suggests that section 474 cannot be used beyond the point where, on some legal theory, a plaintiff knows facts giving him or her a cause of action. Also supporting this conclusion is that, while case law has been notorious in failing at times to properly distinguish between a cause of action and a legal liability, theory or count underlying a cause of action (Austin, supra, 56 Cal.2d at p. 601 [legal liability]; Slater, supra, 15 Cal.3d at pp. 795-796 [legal theory]; Bay Cities Paving, supra, 5 Cal.4th at p. 860, fn. 1 [count]), the language of the decisions is that the plaintiff must lack knowledge of "a" cause of action, thus again strongly suggesting that, even if case law all these years has sloppily used the term cause of action as encompassing underlying legal theories, the knowledge of just one—"a" cause of action or legal theory—is what sets the outside limit of section 474. Erwin concedes that he knew he had a cause of action against LCA on a theory of respondeat superior because he believed that Erwin had been negligent and that LCA was Erwin's employer. It therefore seems that he cannot avoid the statute of limitations and broaden section 474 by claiming he did not know of LCA's liability on some alternate legal theory—like, negligent hiring.
This interpretation also comports with the policy behind section 474. The section is to be liberally construed, but in furtherance of its purpose. As explained 125 years ago: "The statute . . . is an enabling one, and should be so construed as to cure the evil it was designed to correct and advance the remedy. Persons are sometimes compelled to bring suits in haste. They have not time to ascertain the true names of parties to be made defendants. The statute of limitations may, in a day from the time the preparation of the complaint is commenced, effect a bar. Sometimes there is no means readily accessible of ascertaining the true names. The statute . . . was enacted to afford a remedy in such cases. Should a plaintiff lose his right to have his case tried because of ignorance of the names of parties whom he has a right to sue, and as to whom he may have a good cause of action?" (Irving v. Carpentier (1886) 70 Cal. 23, 26, italics added.)
We cannot resist noting that, even that long ago, reference was to "a good cause of action" (Irving v. Carpentier, supra, 70 Cal. at p. 26), not a mere legal theory or basis of liability.
That is the most commonly cited, but not sole, policy: "We approach application of the [Austin rule of Doe amendments] with two policies in mind. One must be weighed against the other. Statutes of limitation are statutes of repose. They prevent the assertion of stale claims. Properly applied they are meritorious defenses. They 'promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.' [Citation.] The countervailing policy is alluded to in Austin[—]that the law favors the decision of cases on their merits." (Breceda, supra, 267 Cal.App.2d at p. 171.)
Those twin policies also undergird the rule of discovery (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806 (Fox)), which allows a plaintiff to avoid a statute of limitations not by adding a previously unknown defendant after the period has run, but by postponing accrual of the cause of action in the first place, until the plaintiff "discovers" a cause of action. Under the discovery rule, emphasis is, as with the Doe amendment rule, on knowledge of facts, but there is a marked distinction between discovering a cause of action and discovering a legal theory or its elements, upon which to assert the cause of action. "[T]he plaintiff discovers the cause of action when he at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof—when, simply put, he at least 'suspects . . . that someone has done something wrong' to him [citation], 'wrong' being used, not in any technical sense, but rather in accordance with its 'lay understanding' [citation]. He has reason to discover the cause of action when he has reason at least to suspect a factual basis for its elements. [Citation.]" (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397-398, fn. omitted (Norgart).)
"One purpose is to give defendants reasonable repose, thereby protecting parties from 'defending stale claims, where factual obscurity through the loss of time, memory or supporting documentation may present unfair handicaps.' [Citations.] A statute of limitations also stimulates plaintiffs to pursue their claims diligently. [Citations.] A countervailing factor, of course, is the policy favoring disposition of cases on the merits rather than on procedural grounds. [Citations]." (Fox, supra, 35 Cal.4th at p. 806.)
A key difference from the Doe amendment rule is that the discovery rule's focus on reason to discover or suspect wrong imposes a duty on plaintiffs to seek out the facts. "[The plaintiff] has reason to suspect when he has ' " ' "notice or information of circumstances to put a reasonable person on inquiry" ' " ' [citation]: he need not know the 'specific "facts" necessary to establish' the cause of action; rather, he may seek to learn such facts through the 'process contemplated by pretrial discovery'; but, within the applicable limitations period, he must indeed seek to learn the facts necessary to bring the cause of action in the first place—he 'cannot wait for' them 'to find' him and 'sit on' his 'rights'; he 'must go find' them himself if he can and 'file suit' if he does [citation]." (Nogart, supra, 21 Cal.4th at p. 398, fn. omitted.) Suspicion of the "elements" of a cause of action, in that context, means "the 'generic' elements of wrongdoing, causation, and harm. [Citation.] In so using the term 'elements,' we do not take a hypertechnical approach to the application of the discovery rule. Rather than examining whether the plaintiffs suspect facts supporting each specific legal element of a particular cause of action, we look to whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them." (Fox, supra, 35 Cal.4th at p. 807.) "In other words, plaintiffs are required to conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of the information that would have been revealed by such an investigation." (Id. at p. 808.)
The Doe amendment rule, by contrast, does not require reasonable diligence to discover the facts, and there is no issue of inquiry notice, only what the plaintiff actually knew. (Irving v. Carpentier, supra, 70 Cal. at p. 26; Balon, supra, 20 Cal.App.4th at pp. 487-490.) That difference has been explained this way: "[T]he plaintiff may discover, or have reason to discover, the cause of action even if he does not suspect, or have reason to suspect, the identity of the defendant. [Citation.] That is because the identity of the defendant is not an element of any cause of action. [Citation.] It follows that failure to discover, or have reason to discover, the identity of the defendant does not postpone the accrual of a cause of action, whereas a like failure concerning the cause of action itself does. 'Although never fully articulated, the rationale for distinguishing between ignorance' of the defendant and 'ignorance' of the cause of action itself 'appears to be premised on the commonsense assumption that once the plaintiff is aware of the latter, he 'normally' has 'sufficient opportunity,' within the 'applicable limitations period,' 'to discover the identity' of the former. [Citation.] He may 'often effectively extend[]' the limitations period in question 'by the filing' and amendment 'of a Doe complaint' and invocation of the relation-back doctrine. [Citation.] 'Where' he knows the 'identity of at least one defendant . . . , [he] must' proceed thus. [Citation.]" (Norgart, supra, 21 Cal.4th at p. 399, fn. omitted.)
Given the foregoing policies and related doctrines, the policies supporting section 474 should not allow a plaintiff to lack ignorance of the facts supporting one legal theory for a cause of action against a substituted Doe defendant, yet avoid the statute of limitations by claiming ignorance of the facts as to some other legal theory for the cause of action. The discovery rule and accrual doctrines do not countenance distinctions between a cause of action and each legal theory that may support one; nor does section 474. There is no unfairness to a plaintiff from this construction, for the plaintiff who knew the facts supporting one legal theory at the commencement of his action has had a fair opportunity to name the defendant and, if he did, to use an ordinary amendment to his complaint to add new legal theories that might come to light through discovery. A case not cited by either party allows an ordinary amendment of a complaint to add, against a defendant city initially named and sued on a respondeat superior theory, allegations of negligent retention of the subject police officer employees (Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 583-584 (Grudt) [holding that the original and amended complaints sought relief on the same general set of facts]), and Erwin presumably could have done the same had he initially sued LCA. Allowing a plaintiff to forestall filing suit, despite knowledge of a cause of action, and wait until he has discovered all possible legal theories, would also discourage the use of ordinary discovery and needlessly lengthen the period during which, under section 474, the plaintiff has no duty to use reasonable diligence to explore all bases of liability. Our construction also comports with case law holdings that a plaintiff need not be aware of each and every detail concerning a person's involvement before he loses his ignorance. (General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 594-595; Dover v. Sadowinski, supra, 147 Cal.App.3d at pp. 117-118.)
The trial court correctly granted summary judgment in favor of LCA.
Erwin faults—as erroneously looking beyond facts known to him at the commencement of the action and imposing a duty of reasonable diligence under section 474—this part of the court's order: "If [Erwin] wanted to claim delayed discovery of facts in support of negligent hiring, he was required to show a reasonable investigation and failure to find these facts despite such an investigation, a showing he can not make. A reasonable investigation of Dr. Simon would have revealed facts about his alleged incompetence because all of the discovered facts were in the public domain and available on the [I]nternet or otherwise."
Our role is to independently determine the propriety of summary judgment, possible errors of reasoning by the trial court being immaterial. (Barbary Coast Furniture Co. v. Sjolie (1985) 167 Cal.App.3d 319, 331; Johanson Transportation Service v. Rich Pik'd Rite, Inc. (1985) 164 Cal.App.3d 583, 588.) But in any event, we see no reasoning error in the quoted part of the ruling. It was the only part of the ruling that did not cite section 474 and referred not to section 474, but to the notion that, having already named Simon from the start, Erwin readily could have found all of the further information about Simon that he now claimed supported a negligent hiring theory. It also implies that, had he likewise sued LCA from the beginning, solely on a respondeat superior theory, he could have used an ordinary amendment to add allegations of negligent hiring. (Grudt, supra, 2 Cal.3d at pp. 583584.) The court was stressing, in other words, that its rejection of Erwin's construction of section 474 caused him no unfairness.
DISPOSITION
The order granting summary judgment is amended to include a dismissal of LCA from the action, and the appealable judgment thereby created is affirmed.
_____
Kline, P.J.
We concur:
_____
Lambden, J.
_______
Richman, J.