Erwin v. LCS-Vision

Filed 12/9/08 Erwin v. LCS-Vision 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

David Erwin (Erwin) brought this negligence action after undergoing 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 appeal, Erwin challenges summary judgment granted to LCA on twin grounds that (1) the action, filed in February 2005, was untimely under the one-year-from-discovery rule (Code Civ. Proc.,  340.5); and (2) the Doe amendment did not relate back to the actions filing because Erwin was not ignorant of LCAs identity (id.,  474).^[1] We reverse.

Background

Pleadings

A defendants burden on summary judgment being to negate theories of liability as alleged in the complaint (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342-1343 (Tsemetzin)), we begin with the first amended complaint (FAC) filed in Alameda County Superior Court on March 10, 2005.

The FAC was nearly identical to an original complaint filed on February 17, 2005, except for an allegation of having served 90 days notice of intention to sue a health care provider (MICRA notice), a requirement of the Medical Injury Compensation Reform Act ( 364, subd. (a); Woods v. Young (1991) 53 Cal.3d 315, 319-320). The original pleading had nonsensically alleged that MICRA notice predated the surgery. The amended allegation reads: On or about November 3, 2004 plaintiff served his [MICRA notice], which was a date within 90 days of the one year anniversary date of the 11-19-03 surgery . . . . The FAC, which initially named as defendants only Simon and LasikPlus, did not attach and incorporate the MICRA notice or specify who was served.

The FAC alleges that the original named defendants and 50 Does were all responsible for the injuries, and agents and employees of one another. Lasik surgery and attendant treatment performed on Erwin on November 19, 2003, it alleges, fell below the professional standard of care for medical practitioners, to his injury, and, because defendants minimized the attendant risks, was done without informed consent. A first cause of action is strangely divided into two counts, one for health care provider negligence and another for lack of informed consent. The named defendants allegedly provided the medical services in the [C]ity of Concord, County of Alameda [sic].

A second cause of action, for product liability, does not concern the named defendants or first 24 Does. Does 25 through 35 allegedly supplied unsafe or defective drugs, medical supplies, etc., and Does 36 through 50 manufactured, sold and distributed those defective products.

On February 2, 2006, 26 months after the surgery, and after Erwin had the case transferred to Contra Costa County Superior Court, Erwin amended the FAC to substitute LCA for Doe 1. LCA answered, raising as an affirmative defense that the action was time-barred by section 340.5 (fn. 1, ante).

Summary Judgment

LCAs motion for summary judgment, filed September 8, 2006, was based on the statute of limitations ( 340.5) and related effect of the Doe amendment. A separate statement of undisputed facts (separate statement) showed the following material facts, from which we fashion a chronology.

(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 (fn. 11, post).

(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.

Erwins opposition to summary judgment did not dispute anything in LCAs separate statement. His own separate statement offered only this, At all material times, LCA Vision was doing business under the fictitious name of Lasik Plus Vision Center, and it cited the LasikPlus brochure as support. In a declaration, counsel for Erwin declared, without documentary support: I caused Service of First Amended Complaint on Lasik Plus Vision Center (George Simon, Authorized Agent), on 05-18-05. Lasik Plus Vision Center is a fictitious name in which Lasik Vision Inc. does business.

In a reply, counsel for LCA decried lack of support for opposing counsels declaration and wrote (albeit not under oath and without citing to evidence): In fact, LasikPlus Vision Center is not a legal entity, it cannot sue or be sued. It is simply the name of the building where [Erwin] had his surgery. [Erwin] attempts to mislead the court when he claims that [LCA] admits it owned and operated Lasik Plus Vision Center. [LCA] owns the trademark LasikPlus, not an entity entitled Lasik Plus Vision Center. Moreover, LCA Vision, Inc. is not doing business as LasikPlus Vision Center. LCA Vision, Inc. has not filed any fictitious name statements to use Lasik Plus Vision Center as a dba. Lasik Plus Vision Center never should have been named; it [is] not a legal entity; and it could not have been properly served.

The court heard argument and took the matter under submission. It ruled as follows in an order filed January 12, 2007: [LCAs] motion for summary judgment is granted. The entire complaint appears to be untimely since it was not filed within one year after [Erwin] discovered his injury. [( 340.5.)] By not filing any opposition to [LCAs separate statement, he] has apparently conceded these facts, which include that he discovered his injury from the Lasik surgery almost immediately, by November 24, 2003. Inquiry notice is all that is required to commence the running of the statute. [Citations.] Even allowing for the 90 day tolling of the statute pursuant to [section 364, subdivision (d)],^[[2]] the action is still filed outside the limitations period. [] Even if the underlying complaint were timely, the amendment adding [LCA] as a party is not. Based on the conceded, undisputed facts, [Erwin] is not entitled to use [section] 474 to amend his complaint after the statute of limitations has run. [Woo v. Superior Court (1999) 75 Cal.App.4th 169, 180 (Woo)] requires a genuine ignorance regarding the Doe defendant. Undisputed Facts . . . show that prior to the Lasik surgery in November 2003, [Erwin] had information that LCA Vision, Inc. owned and operated the LasikPlus Vision Center. [Erwin] has sued LCA Vision Center on a theory of respondeat superior.

Judgment for LCA was filed on February 13, 2007, with notice of entry of judgment following a week later, on February 20. Erwin brought a motion for new trial, raising most of the points made on this appeal, and the matter was argued and submitted on March 29.

Erwin filed notice of appeal after a lapse of 60 days from the notice of entry of judgment effected a denial of his motion by operation of law ( 660).

Discussion

I. Review Standards

Summary judgment is proper if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law. The burden of persuasion remains with the party moving for summary judgment. [Citation.] When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff does not possess and cannot reasonably obtain, needed evidence. [Citation.] We review the record and the determination of the trial court de novo. [Citation.] (Kahn v. East SideUnionHigh School Dist. (2003) 31 Cal.4th 990, 1002-1003.)

On appeal, we apply[] the same three-step analysis applied by the trial court: First, we identify the issues raised by the pleadings. Second, we determine whether the movant established entitlement to summary judgment, that is, whether the movant showed the opponent could not prevail on any theory raised by the pleadings. Third, if the movant has met its burden, we consider whether the opposition raised triable issues of fact. We review these matters de novo. (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 939-940 (Hawkins).) We decide with respect to each cause of action whether the defendant seeking summary judgment has  negated a necessary element of the plaintiffs case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial . . . . [Citation.] (Id. at p. 940.) This prima facie showing then 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.)  Where the evidence presented by the defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by the plaintiff.  (Hawkins, at p. 940.)

II. Timeliness of the Action

The parties agree that the statute of limitations was one year from the date when Erwin discovered or reasonably should have discovered his injury ( 340.5; fn. 1, ante) or, more generally, the facts essential to his claim (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 897-898). The surgery was on November 19, 2003, and Erwin does not dispute the courts conclusion, based on undisputed facts, that he knew by November 24 that his vision was not improving.^[3] This was supported by Erwins own deposition testimony, a medical record from the latter date, and more general deposition testimony from a brother that Erwin knew within a month that something was not right.

The original complaint was filed on February 17, 2005, nearly 15 months after the conceded accrual, and whether the entire action was untimely hinges on the effect of the MICRA notice. A complaint that shows on its face that a claim is otherwise time-barred must include facts showing tolling (Rogers v. Bank of America (1956) 140 Cal.App.2d 228, 231) or justification for delayed discovery (McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151, 160, fn. 11).^[4] The FAC alleged only that MICRA notice was served on November 3, 2004, within the last 90 days of a one-year period from the surgery. The FAC does not specify who was served, but it implicitly refers to the 90-day tolling occasioned by MICRA notice ( 364, subd. (d); see fn. 1, ante).

Erwin argued below, as he does here, that MICRA notice stopped the one-year clock for 90 days and then allowed it to tick on for the unused part, for a total period of one year and 90 days from accrual. LCA argued that the MICRA notice added only 90 days from the notice, with no further time left because, by then, the original one-year had elapsed. Oral comments by the court at the summary judgment and new trial hearings embraced LCAs position. So does the court order, which uses the accrual date of November 24, 2003, to reason, [e]ven allowing for the 90 day tolling of the statute pursuant to [section 364, subdivision (d)], the action is still filed outside the limitations period.

LCA appears to concede that it misconstrued the law below. We agree. Service of MICRA notice within the last 90 days of a limitation period tolls that period for 90 days, but then allows the rest of the period to play out. Because the statute of limitations is tolled for 90 days and not merely extended by 90 days from the date of service of the notice, this construction results in a period of 1 year and 90 days in which to file the lawsuit. (Woods v. Young, supra, 53 Cal.3d at p. 325.) Using the accrual date of November 24, 2003, the action filed on February 17, 2005, was timely as within one year and 90 days.

That is not the end of the matter, however, for LCA insisted below that it was never served with a MICRA notice, and Erwin insisted that its service of the action on LasikPlus effected service on LCA because LCA used LasikPlus as a fictitious business name. The courts order finding that the action was time-barred [e]ven allowing for the 90 day tolling of the statute implies that the court saw no need to resolve those issues, but we are not confined to those reasons. (Perez v. 222 Sutter St. Partners (1990) 222 Cal.App.3d 938, 943, fn. 4.) Appeal arguments focus on the evidentiary worth of sworn and unsworn statements made below, but the short answer is that LCA did not make a prima facie showing that it never received a MICRA notice.

Summary judgment may be granted to a defendant who was not adequately served with MICRA notice. Because the 90-days notice is designed to encourage negotiations outside the structure and atmosphere of formal litigation, that purpose is thwarted unless the defendant receives actual notice. (Jones v. Catholic Healthcare West (2007) 147 Cal.App.4th 300, 308; Derderian v. Dietrick (1997) 56 Cal.App.4th 892, 899.) MICRA notice was pleaded in the FAC, and while the FAC failed to allege who was served, it should have been simple for LCA to put Erwin to his proof by asserting, as an undisputed fact, that LCA never received the notice. Nevertheless, LCA did not do so in its separate statement. Even if it had done so, it offered no support beyond statements of counsel that were unsworn and hence without evidentiary value. (County of Alameda v. Moore (1995) 33 Cal.App.4th 1422, 1426.) This showing did not satisfy LCAs burden to conclusively negate a necessary element of the case or demonstrate that under no hypothesis was there a material issue of fact requiring trial (Hawkins, supra, 144 Cal.App.4th at p. 940.) One unrefuted hypothesis was that LCA was adequately served with MICRA notice. Another was that if LCA never received the notice, Erwin had nevertheless taken adequate steps to achieve actual notice (Jones v. Catholic Healthcare West, supra, 147 Cal.App.4th at p. 308).

It is unlikely that Erwin would have served LCA with MICRA notice and then overlooked naming LCA as a defendant, but this is an unrefuted possibility. (Cf. Balon v. Drost (1993) 20 Cal.App.4th 483, 487-490 [plaintiff who knew but forgot defendants name could later use a Doe amendment ( 474) with relation-back effect].) Given LCAs failure to shift the burden, the paucity of evidence from Erwin was immaterial (Hawkins, supra, 144 Cal.App.4th at p. 940), and while Erwin could not rely on allegations in his own pleading to overcome a prima facie showing (Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181), there was no prima facie showing to overcome.

Thus the action was timely filed, at least as to the initially named defendants, and the issue is whether LCA had registered to do business as LasikPlus under the fictitious business name statute (Bus. & Prof. Code,  17910 et seq.) so that service upon LasikPlus effected service upon LCA. Registering under the statute does not create a separate legal entity (Pinkertons, Inc. v. Superior Court (1996) 49 Cal.App.4th 1342, 1348), and [a] nonexistent entity may not be effectively served with summons as a named defendant and may not be subjected to jurisdiction of a court by an entry of a general appearance on its behalf (Omega Video Inc. v. Superior Court (1983) 146 Cal.App.3d 470, 477).^[5] But a defendant that has availed itself of the statute cannot claim lack of notice when a plaintiff sues it under the fictitious name. (Billings v. Edwards (1979) 91 Cal.App.3d 826, 831, fn. 1.) Using the fictitious name is effective to bring in a true defendant, although the plaintiff risks winning an invalid judgment against a nonexistent entity should he fail to amend the complaint before judgment to substitute the true identity. (Meller & Snyder v. R & T Properties, Inc. (1998) 62 Cal.App.4th 1303, 1311; Pinkertons, Inc. v. Superior Court, supra, 49 Cal.App.4th at p. 1349.)

There is no direct evidence whether LCA was registered in California to do business as LasikPlus, and this void is mysterious given how easy it should have been to show, if true. It should have been a matter of public record resolved as easily as through website information from a county recorders office. (See Bus. & Prof. Code,  17915 [fictitious business name statement shall be filed with clerk of the county of registrants principal place of business or, if none in this state, Sacramento County].)^[6]

Nevertheless, we have no direct evidence, only debate and assertions. Erwins separate statement claimed as undisputed fact: At all material times, LCA Vision was doing business under the fictitious name of Lasik Plus Vision Center. The evidence cited, however, was the LasikPlus brochure, which said nothing about whether LCA was registered under the statute. It stated, rather, that LCA owned and operated LasikPlus. This showed LCA doing business as LasikPlus in a colloquial sense, but not the legal sense of being registered. Erwins counsel, Edward Nevin, declared under oath that Lasik Plus Vision Center is a fictitious name in which Lasik Vision Inc [sic] does business, but this confusing statement similarly shed no light on the registrant status of LCA. Because this statement came from a lawyer who should know that registration was key, the omitted mention of that element would not seem inadvertent or colloquial. Also, Nevins reference to Lasik Vision Inc., if perhaps in error, did not even concern LCA.^[7]

Faced with that dearth of evidence, the parties now resort to debate about who bore the burden on this issue. Erwin, laying the burden on LCA, argues that LCA failed to negate its registrant status, leaving a reasonable inference from the LasikPlus brochure that LCA was registered. LCA, seemingly laying the burden on Erwin, argues that there was nothing showing that it was registered.

LCA also objects, on a threshold pleading level, that Erwin failed to identify Lasik Plus Vision Center as a fictitious business entity either in his original complaint or in his [FAC] and thus failed to comply with the rules concerning pleading practice against such entities under California law. LCA does not tell us what pleading practice rules it invokes, and this is reason enough to reject the claim out of hand. (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 710-711.) To the extent that LCA means to build on an argument that Erwin failed to properly plead Doe defendants under section 474, we address that in part III (post), adding here only that we know of no authority that Doe allegations must identify a named defendant as a fictitious business entity in order to later bring in the true defendant.

Neither side cites authority on point, but applying general case law, we reject Erwins position that a moving defendant in a case like this has the initial burden of production to negate a seemingly immaterial matter of its registrant status. The burden of a defendant moving for summary judgment only requires that [it] negate plaintiffs theories of liability as alleged in the complaint. A moving party need not . . . refute liability on some theoretical possibility not included in the pleadings. [Citation.] [Citation.] (Tsemetzin, supra, 57 Cal.App.4th at p. 1342.) LCAs registrant status was not an element of any cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)

To reiterate, we find no authority that Doe allegations must identify a named defendant as a fictitious business entity in order to later bring in the true defendant. On the other hand, without such allegations or other notice of the issue, a defendant has no warning that its registrant status will be an issue on summary judgment. Had Erwin substituted LCA for LasikPlus rather than a Doe, this would have signaled through the pleadings an issue of service on LCA under a fictitious business name (Pinkertons, Inc. v. Superior Court, supra, 49 Cal.App.4th at p. 1349; Billings v. Edwards, supra, 91 Cal.App.3d at p. 831, fn. 1), but that did not happen. Erwin apparently made his Doe amendment without a noticed motion (discussed in 4 Witkin, Cal. Procedure (5th ed. 2008) Pleading,  489, p. 626), and he added no allegations to the FAC about LCA being registered in California to operate under a fictitious business name.^[8]

Therefore, this was a   theoretical possibility not included in the pleadings   (Tsemetzin, supra, 57 Cal.App.4th at p. 1342), and LCA had no burden to negate it in the first instance. As it developed, Erwin tried to raise the issue on the motion by claiming as undisputed fact that LCA was doing business under the fictitious name of Lasik Plus Vision Center. Still:   [A] motion for summary judgment must be directed to the issues raised by the pleadings. The [papers] filed in response to a defendants motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. [Citation.] [Citations.] (Tsemetzin, at pp. 1342-1343.)

Moreover, as previously noted, the claimed undisputed fact and cited brochure did not speak to the pertinent issue of registrant status. Thus, Erwin did not carry any burden on the issue, no matter how we might define that burden.

This leaves no need to examine LCAs efforts in reply or the evidentiary worth of the declaration by counsel Nevin that he had effected service of the FAC on Lasik Plus Vision Center (George Simon, Authorized Agent), on 5-18-05.^[9]

Accordingly, the court erred in finding the entire action time-barred. However, nothing on the summary judgment motion established that service was timely effected on LCA, and so we turn to the effect of the Doe amendment.

III. Effect of the Doe Amendment

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. [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, supra, 75 Cal.App.4th at p. 176.) 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.)

One requirement for applying section 474s relation-back doctrine is that the new defendant in an amended complaint be substituted for an existing fictitious Doe defendant named in the original complaint (Woo, supra, 75 Cal.App.4th at p. 176), and LCA sees Erwins allegations as deficient because there are no allegations in the [FAC] that Lasik Plus Vision Center is a fictitious defendant or that [Erwin] was ignorant of its true name. We see no deficiency. The original complaint and FAC each state standard Doe allegations and that all defendants, named or otherwise, were responsible in some manner for the harm and acted as agents and employees of one another.^[10] Substantively indistinguishable allegations were upheld by Division Three of this court as satisfying section 474. (Winding Creek v. McGlashan (1996) 44 Cal.App.4th 933, 938, 941-942.) LCA does not acknowledge the case but argues: Erwin may not rely on the fact that he named Lasik Plus Vision Center in his complaint to support his argument of a relation back. He may not substitute LCA-Vision Inc. in place of Lasik Plus Vision Center, which he never identified as a fictitiously named defendant. A flaw in that logic, however, is that it supposes that LCA was substituted for LasikPlus, when in fact LCA was substituted for a Doe defendant. The allegations were sufficient for a Doe amendment. (Ibid.)

A further and nonprocedural requirement for application of the section 474 relation-back doctrine is that [the plaintiff] must have been genuinely ignorant of [the defendants] identity at the time she filed her original complaint. [Citations.] The omission of the defendants 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 defendants identity, the section 474 relation-back doctrine applies even if that ignorance is the result of the plaintiffs 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 defendants identity if, as this division has held, she once knew the identity but genuinely forgot by the time of filing suit. (Balon v. Drost, supra, 20 Cal.App.4th at pp. 487-490; but see Woo, supra, 75 Cal.App.4th at pp. 179-180 [adopting a dissenting view in Balon, that such a plaintiff must review readily available information to refresh memory].)

There is no claimed memory lapse here. The court found, on undisputed facts, that Erwin knew before his surgery that LCA owned and operated LasikPlus. He had also read the privacy notice that identified LCA 16 times, described the privacy policies of LCA and of LCA employees who handled patients medical information, and listed an Ohio address and telephone number for further inquiries.^[11] Erwin did not raise any challenge to LCAs separate statement or provide affidavits or other evidence explaining what he did or did not know, and when. The court deemed it conceded that Erwin knew LCA owned and operated LasikPlus, and wrote that Erwin ultimately sued LCA based on a theory of respondeat superior.

While conceding that he knew LCAs identity, Erwin challenges whether he knew facts giving him a cause of action against LCA. The phrase when the plaintiff is ignorant of the name of a defendant in section 474 is not taken literally: It 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], . . . [Citation.]   (Hazel v. Hewlett, 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.] [Citation.] (Hazel v. Hewlett, at p. 1465.)

The parties cite no case authority addressing who bears the initial burden on summary judgment of showing, for purposes of section 474, whether a plaintiff knew facts giving him a cause of action against the defendant when suit was filed. We hold that the burden was on the defendant, LCA. The propriety of the Doe amendment went to LCAs pleaded defense of the statute of limitations, and settled law places on a moving defendant the burden of demonstrating each and every element of an affirmative defense. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 467-468.) A defendant who fails to make that showing as to even a single element cannot prevail, even if the plaintiff produces no evidence at all. (Id. at p. 468.)

Such specific case law as we find also supports the conclusion that proof of a plaintiffs lack of true ignorance is part of the moving defendants burden on summary judgment. One court reviewing for substantial evidence a judgment after court trial on a statute of limitations defense (Breceda v. Gamsby (1968) 267 Cal.App.2d 167, 170, 176) found no evidence at all that the plaintiff was aware before filing suit that a defendant added as a Doe had committed the acts for which he was sued (id. at pp. 177-178). The appellate court held that the defendant had the burden of proving such awareness if it existed. (Id. at p. 179.) More recently, a reviewing court treating a demurrer brought and decided on evidence as, in effect, a summary judgment held that a defendant failed to show either prejudice to itself or dilatoriness by the plaintiff in making a Doe amendment. (Barrows v. American Motors Corp. (1983) 144 Cal.App.3d 1, 9-10.) There was no showing that the plaintiff had awareness of the various corporate identities and the interrelationships of the corporations in the total marketing scheme. Use of . . . section 474 in such circumstances is appropriate and well within the purposes of the statute. (Id. at p. 10.)

Thus we turn to LCAs showing. The original complaint reveals that, upon filing on February 17, 2005, Erwin knew he had suffered medical malpractice 15 months earlier at the hands of Simon and perhaps other medical providers at a LasikPlus center owned and operated by LCA.^[12] He sued Simon and LasikPlusSimon for his role in the actual surgery and LasikPlus, alleging that all defendants, named or Does, were responsible in some manner for his injuries, and agents and employees of each other. His first cause of action, as subdivided into health care provider negligence and lack of informed consent, is the only one alleged against Doe 1, for whom LCA would later be substituted. His second cause of action, for products liability, did not concern Doe 1 or either named defendant. Erwins standard Doe allegations stated that he would amend to show true names, capacities and involvement when ascertained, but when he substituted LCA for Doe 1, he added no allegations beyond LCAs name.^[13]

The courts ruling stressed that Erwin sued LCA, as it had LasikPlus, on a theory of respondeat superior. LCAs appeal briefing repeats that notion, adding that the Doe amendment asserted no new facts and [that], furthermore, in his responses to discovery, Erwin indicated only that [LCA] was liable because it was negligent in either contracting with or hiring Dr. Simon, or that it provided staff and other personnel at the center who provided negligent treatment. If this implicit assumption were truethat respondeat superior was the sole basis of liabilitythen LCA would have a much stronger argument that Erwin knew all the facts he needed to know before bringing this action. Erwin knew from the brochure he read, before surgery, that LCA was the owner and operator of the business, and he also knew from the privacy notice he read, also pre-surgery, that LCA had employees and privacy policies affecting its employees use of patients medical information.The notice described medical privacy practices of LCA-Vision Inc. and the practices that will be followed by all LCA-Vision Inc. employees who handle your medical information. It stated: We are committed to protecting medical information about you. We maintain our records and conduct our treatment environment with a goal of providing the highest level of protection for your medical information, while still providing you with the highest level of medical care. This Notice applies to all of the records of your medical care which are received or created by LCA-Vision Inc. It also explained, By becoming a patient of LCA-Vision Inc., you are giving consent for LCA-Vision Inc. to use your protected health information for certain activities, including treatment, payment and other health care operations. Those facts scream out the prospect of respondeat superior liability.

Erwin counters that nothing shows he knew of specific employment contracts between LCA and the people who treated him, and he relies on a rebuttable presumption in Labor Code section 2750.6 that a physician and surgeon who contracts to provide health services for a licensed primary care clinic is an independent contractor rather than an employee. Nevertheless, a powerful inference was that, if respondeat superior were the only basis for LCAs liability, then Erwin knew enough to sue LCA from the start.

We need not decide that question, however, for respondeat superior was not the sole basis for LCAs liability. Under the doctrine of respondeat superior, the innocent principal or employer is liable for the torts of the agent or employee, committed while acting within the scope of employment. It is immaterial that the employee acts in excess of authority or contrary to instructions. (3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment,  165, p. 208.) Here, it is clear from Erwins discovery responses that he charged LCA with negligent hiring, which was affirmative negligent conduct by LCA, rather than liability based merely on LCAs employer status. This is also evident from the complaints standard Doe allegations which, although vague, stated that each defendant was the agent and/or employee of the others but that each was also responsible in some manner for the events and happenings that injured Erwin. (Fn. 10, ante.) Negligent hiring falls within that broad language.

The pertinent question, therefore, is whether LCA carried its initial burden on summary judgment of showing that Erwin knew the facts supporting negligent hiring by LCA. His interrogatory responses spoke of LCA hiring Simon despite Dr. Simons previous history of negligent medical care, and he denied requests to admit that LCA was not negligent . . . . LCA produced no evidence at all on when Erwin became aware of facts supporting negligent hiring.

The court therefore erred in granting summary judgment based on an improper Doe amendment and the action being time barred. Our reversal makes it unnecessary to address a claim, improperly raised for the first time in Erwins reply brief (Stoll v. Shuff (1994) 22 Cal.App.4th 22, 25, fn. 1; Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 641), that the court abused its discretion by denying him an amendment under [section 473] for any delay in making the [Doe] amendment . . . .

Disposition

The judgment of dismissal following summary judgment is reversed.

_________________________

Kline, P.J.

We concur:

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Lambden, J.

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Richman, J.

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^[1] All undesignated section references are to the Code of Civil Procedure.

Simon is not a party to this appeal. Our limited record suggests that he and others remain parties below, but if so, this summary judgment was appealable as rendering the case final as between Erwin and LCA. (Buckaloo v. Johnson (1975) 14 Cal.3d 815, 821, fn. 3.)

Section 340.5 provides: In an action for injury or death against a health care provider based upon such persons alleged professional negligence, the time of 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 . . . .

^[2] If the [MICRA] notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice. ( 364, subd. (d).)

^[3] More fully, Erwin says that he does not dispute the trial court finding in its order of January 12, 2007 that November 24, 2003, was the date of discovery of facts placing plaintiff upon inquiry notice that he had sustained harm that may be attributable to [the] fault of someone. We accept that concession but are mystified by repeated later arguments that LCA failed to establish the expiration of the one-year period because its separate statement never identified the applicable statute, section 340.5, or the expiration date of November 24, 2004. It is hard to view this as anything short of Erwin disputing what he says he does not dispute.

Nevertheless, we reject the argument that LCA had to identify either the one-year statute or its expiration date. Erwin cites no case law support, and the one-year statute was not only undisputed below, but had been identified in LCAs answer as an affirmative defense. One purpose of the separate statement is to afford due process to the parties (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335), and the answer, as well as other moving papers, furnished notice of the statute. As for the expiration date, this was a legal conclusion. A movants separate statement must identify material facts ( 437c, subd. (b)(1)), not material legal conclusions.

^[4] The court below noted a possible argument that continued treatment by Simon might have justified delayed discovery (Gutierrez v. Mofid, supra, 39 Cal.3d 892, 899) but that there were no undisputed facts on the subject. We further observe that Erwin pled no facts to render this an issue for summary judgment.

^[5] A register of actions shows that, before LCA was added and while the case was still in Alameda County, Simon and LasikPlus were jointly represented at an initial case management conference by counsel from The Goldman Law Firm. Erwin submitted a case management statement from LasikPlus and Erwin as showing general appearances. Erwins counsel declared that he had attended that conference and that LasikPlus was now in default. LCA did not employ those counsel when it appeared by answer nine months later. The registers of action for both counties, together extending through June 2007, do not reflect any default judgment taken against LasikPlus. New counsel substituted in for Erwin in September 2005.

^[6] Counsel for LCA insisted that there was no such filing in California, stating in unsworn representations at the hearing on the new trial motion that LCA operated vision centers throughout the nation and had formally elected to do business as LasikPlus Vision Centers in some states, but not in California. Counsel explained: LCA Vision, Inc. is the proper entity, Lasik Plus Vision Center is . . . [n]othing more than a name in this state; Its not recognized in the [Contra Costa County] Recorders Office as being a fictitious name operated by anybody. Counsel for Erwin correctly retorted that these were not facts presented by declaration on the summary judgment motion.

^[7] We say perhaps in error because Nevin offered no correction or explanation below. Also, the Contra Costa County register of actions, included in our record, shows that, six weeks before LCAs summary judgment motion, Erwin amended the FAC to name LCA Vision Medical Associates Inc as Doe 2. This second Doe amendment was not discussed below but suggests that entities may exist beyond those discussed. Two weeks before LCAs motion, Erwin filed a third Doe amendment, substituting Stephanie Sjauw for Doe 3. Erwin alludes to her in his appellate briefing as an optometrist who examined him in connection with the surgery. Those later Doe amendments are not in our record, and we therefore cannot tell what, if any, factual allegations might have accompanied them.

^[8] If Erwin felt that LasikPlus was a registered dba for LCA, he might have pled this in the FAC to explain that his action as against LCA was timely. (Cf. Rogers v. Bank of America, supra, 140 Cal.App.2d at p. 231; McKelvey v. Boeing North American, Inc., supra, 74 Cal.App.4th at p. 160, fn. 11.) The parties point to nothing before the court by way of discovery that anticipated registrant status as an issue. The brochure and privacy notice were explored not to show LCAs vicarious service as LasikPlus, but for purposes of showing that Erwin knew LCAs true identity when he filed suit ( 474; pt. III, post).

^[9] As part of his opposition, Erwin had the court take judicial notice of the original complaint, FAC, and Service of [the FAC] on Lasik Plus Vision Center (George Simon, Authorized Agent), 5-18-05. We have granted a request by LCA to take judicial notice of proofs of service that were omitted from the joint appendix. We see that nothing documents service of the FAC on LasikPlus via Simon as an authorized agent. Proof of service on Simon was as an individual, and Nevin effected service on LCA directly, at its corporate offices in Ohio (the address provided in LCAs privacy notice; fn. 11, post).

Were we to reach this issue, the discrepancy would have to be tested by the rule that a party opposing summary judgment cannot hide behind adept pleading contradicted by discovery. (DAmico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-22.)

^[10] Each complaint states: 3. The true names and capacities, whether individual, corporate, associate or otherwise and the true involvement of defendants sued herein as does 1 through 50, inclusive, are unknown to Plaintiff who therefore sues said defendants by such fictitious names and will amend this Complaint to show the true names, capacities and involvement when ascertained. Plaintiff is informed and believes and thereon alleges that each of the defendants designated as a doe is responsible in some manner for the events and happenings herein referred to and thereby legally caused the injuries and damages herein alleged. [] 4. Plaintiff is informed and believes and thereon alleges that at all times herein mentioned, each of the defendants sued herein was the agent and/or employee of each of the remaining defendants, and each of them, was at all times acting within the purpose and scope of such agency and employment.

^[11] The privacy notice ended: questions? [] If you have any questions regarding this notice, please contact Regina Brown-Hill, Vice President, LCA-Vision Inc., 7840 Montgomery Road, Cincinnati, OH 45236. Phone 513-792-9292, ext. 324.

^[12] It was suggested below that the brochures revelation that LCA owned and operated 32 LasikPlus centers across the United States did not necessarily mean that LCA owned and operated the one in Concord. This was baseless. The brochures margin lists exactly 32 locations, including one in Concord, California.

^[13]We do not have Erwins later Doe amendments adding an optometrist and LCA Vision Medical Associates Inc (see fn. 7, ante), but we presume that Erwin did not include them in our record because they also added no allegations broadening LCAs potential liability.