Maxwell v. Honeycutt

Filed 3/11/08 Maxwell v. Honeycutt CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Tracy Grant, Judge. Affirmed.

Law Offices of Philip P. DeLuca and Philip P. DeLuca for Plaintiffs and Appellants.

Baker, Keener & Nahra, John P. Nahra, Angela S. Haskins, and James D. Hepworth for Defendant and Respondent.

In this action for medical malpractice and loss of consortium, appellants Annette and Kevin Maxwell[1]amended their complaint to name respondent Lori Honeycutt, M.D., as a Doe defendant under Code of Civil Procedure section 474 (the fictitious name statute).[2] The trial court granted Dr. Honeycutts summary judgment motion on grounds that: (1) the fictitious name statute was inapplicable because plaintiffs were not ignorant of Dr. Honeycutts identity or the facts giving rise to a cause of action against her when their original complaint was filed; and (2) without the relation-back provision of the fictitious name statute, the amended complaint against Dr. Honeycutt was barred by the applicable statute of limitations ( 340.5). We affirm the judgment.[3]

BACKGROUND

On August 29, 2005, plaintiffs filed their original complaint against Lakewood Primary Care, Pioneer Medical Group, Marc R. Baskin, M.D., and Dionisio Dabu, M.D. (collectively, defendants), none of whom is a party to this appeal. The complaint alleged that defendants had negligently diagnosed and treated Annettes skin condition between April 2002 and September 2004, which necessarily included the period during which Dr. Honeycutt, who was not named in the complaint, was Annettes dermatologist at Lakewood Primary Care.

In the first cause of action, Annette stated a claim for medical negligence; in the second cause of action, her husband Kevin stated a derivative claim for loss of consortium. Both claims were based on the following allegations. Between April 2002 and September 2004, defendants treated Annette for a skin condition that caused painful patches . . . on her left arm. Defendants negligently misdiagnosed Annettes skin condition as Eczema that Mimics Psoriasis, Psoriasiform Lymphocytic Pervivascular Dermatitis, chronic allergic contact dermatitis, and chronic eczema. The treatment provided by defendants did not resolve Annettes skin condition, which became aggravated. It was not until April 7, 2005, that Annette learned for the first time from a new dermatologist, Alan Heller, M.D., that her skin condition was actually mycosis fungoides. According to plaintiffs expert witness Stanley M. Bierman, M.D., mycosis fungoides is a non-curable cancer that is a form of cutaneous T-cell lymphomas, a malignant disorder of the skin characterized by itching, inflammatory, chronic sealing plaques. The delay resulting from defendants initial misdiagnosis and treatment between April 2002 and September 2004, allegedly caused permanent and potentially fatal injuries that have prevented Annette from working or performing her usual role as a wife.

On May 3, 2006, which was more than a year after Annette was diagnosed with mycosis fungoides, plaintiffs filed a Doe amendment that substituted Dr. Honeycutt for a Doe defendant named in the original complaint. Section 474 provides in relevant 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 or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly . . . . When the requirements of the fictitious name statute are met, the amended complaint is deemed to relate back to the date that the original complaint was filed. (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.) This appeal concerns section 474s requirement that a plaintiffs lack of knowledge of the facts giving rise to a cause of action against a defendant must be real and not feigned.

Dr. Honeycutt moved for summary judgment, contending that the May 3, 2006 Doe amendment was untimely because plaintiffs were not ignorant of either her identity or the facts giving rise to a cause of action against her when they filed their original complaint against those who allegedly had misdiagnosed and treated Annettes skin condition between April 2002 and September 2004. The named defendants included Lakewood Primary Care, Dr. Honeycutts employer. Accordingly, Dr. Honeycutt argued, the Doe amendment was barred by the one-year limitations period of section 340.5,[4]which was raised as an affirmative defense in her answer.

To establish that plaintiffs knew her identity and the facts giving rise to a claim against her when their original complaint was filed on August 29, 2005, Dr. Honeycutt relied on Annettes deposition testimony as to the following. In November or December 2002, Dr. Dabu of Pioneer Medical Group referred Annette to Dr. Honeycutt, a dermatologist at Lakewood Primary Care, regarding her skin condition. At Annettes first appointment, Dr. Honeycutt introduced herself by name and performed a biopsy for diagnostic purposes. Either before or after the biopsy, Dr. Honeycutt stated that she thought Annette had psoriasis. Three weeks after the biopsy, Dr. Honeycutt said that she was checking for lupus or something, and [that] it was negative. Dr. Honeycutt also told Annette [t]o continue using the topical steroids that she had prescribed. Annette continued seeing Dr. Honeycutt at three-week intervals until Dr. Honeycutts departure from Lakewood Primary Care in May 2003, at which point Annette began seeing Michael Castro, M.D.

It was undisputed below that after Annette was diagnosed with mycosis fungoides on April 7, 2005, she went to Lakewood Primary Care on April 12, 2005, and obtained a portion of her medical records. Throughout the records given to Annette on April 12, Dr. Honeycutts name was listed as her treating physician. Annette had the records in her possession for more than four months before she filed her original complaint against defendants, including Lakewood Primary Care, for their allegedly negligent diagnosis and treatment of her skin condition between April 2002 and September 2004.

In opposition to the motion, Annette contended that she did not discover the facts giving rise to her claim against Dr. Honeycutt until April 2006, when her attorney obtained a full set of her medical records from Lakewood Primary Care and others. Annette pointed out that when she was diagnosed with mycosis fungoides by Dr. Heller on April 7, 2005, Dr. Heller did not have a copy of her Lakewood Primary Care records and was unable to advise her as to whether Dr. Honeycutt was negligent in having failed to provide a proper diagnosis between late 2002 and May 2003.

Plaintiffs further argued, supported by a declaration from their counsel, that their original complaint was filed primarily to protect the statute of limitations by including DOE defendants. Plaintiffs contended that because Annette had seen a multitude of health care providers from 2002 and forward, they knew that other defendants may need to be added after they acquired all of her medical records and reviewed the new information contained therein. In April, 2006, plaintiffs counsel had received enough pre-diagnosis medical records to create a time-line and at that point, he suspected that defendants, LORI HONEYCUTT and MICHAEL CASTRO, M.D., along with others not named in the original complaint, were negligent in failing to provide a correct diagnosis and treatment for mycosis fungoides. The DOE amendments adding Drs. HONEYCUTT and CASTRO and others were filed on May 3, 2006. Thereafter, in late May, early June, 2006, . . . Dr. HONEYCUTTs negligence was confirmed to plaintiffs counsel by hired expert, a 46-year dermatologist, Stanley M. Bierman, M.D.

Plaintiffs additionally argued that it would have been remiss for plaintiffs counsel to file suit against health care providers, such as Moving Defendant Dr. HONEYCUTT before he suspected or knew whether she or anyone else for that matter, was negligent. This would have invited a multitude of lawsuits against [counsel] and plaintiffs . . . for malicious prosecution and/or abuse of process. The filing of such vexatious or frivolous lawsuits would be against public policy.

The trial court granted Dr. Honeycutts summary judgment motion after determining that there were no triable issues of material fact. The trial court held that the Doe amendment, which was filed more than a year after Annette had discovered her alleged injuries, was untimely under section 340.5. The relation-back provision of the fictitious name statute did not apply, the trial court concluded, because of Annettes deposition testimony that she knew defendant Dr. HONEYCUTT, knew her name, and had met with Dr. HONEYCUTT as her Dermatologist on multiple occasions. Ms. MAXWELL further testified at her deposition that she was referred to Dr. HONEYCUTT by her Primary Care Physician for treatment of her skin condition and Dr. HONEYCUTT performed a biopsy on her and prescribed medication. Annette was also aware that Dr. HONEYCUTT, a Dermatologist, had treated her for the same condition that was diagnosed on April 7, 2005, as premycotic mycosis fungoides. Plaintiff Ms. MAXWELL was clearly aware at the time plaintiffs filed their original complaint that Dr. HONEYCUTT did not diagnose her with premycotic mycosis fungoides. Plaintiffs argument that they did not have knowledge of the fact that Dr. HONEYCUTT was negligent until a full set of records from defendant LAKEWOOD PRIMARY CARE MEDICAL GROUP, INC. and other medical records pertaining to her care were received by her counsel so that a timeline could be created to ascertain who, if anyone, was negligent for failing to diagnose her condition of mycosis fungoides is not persuasive. The trial court also pointed out that Annette had obtained at least some of her medical records from Lakewood Primary Care before filing her original complaint, and that Dr. Honeycutts name appeared throughout those records. Based on the undisputed evidence that plaintiffs were aware of Dr. Honeycutts identity when they filed their original complaint, the trial court held, as a matter of law, that the relation-back provision of section 474 did not apply and that the Doe amendment was barred by the one-year limitations period of section 340.5.

DISCUSSION

I. Standard of Review

The standard of review for summary judgment is well established. The motion shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., 437c, subd. (c).) A moving defendant has met his burden of showing that a cause of action has no merit by establishing that one or more elements of a cause of action cannot be established or that there is a complete defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850; Lackner v. North (2006) 135 Cal.App.4th 1188, 1196.)

We independently review an order granting summary judgment, viewing the evidence in the light most favorable to the nonmoving party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768; Lackner v. North, supra, 135 Cal.App.4th at p. 1196.) In performing our independent review of the evidence, we apply the same three-step analysis as the trial court. First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue. (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.)

II. The Fictitious Name Statute

In general, 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. (Liberty Transport, Inc. v. Harry W. Gorst Co. (1991) 229 Cal.App.3d 417, 428, disapproved on other grounds in Adams v. Murakami (1991) 54 Cal.3d 105, 115-116 . . . .) (Woo v. Superior Court, supra, 75 Cal.App.4th at p. 176.) But under the fictitious name statute, if a new defendant is substituted for a Doe defendant named in the original complaint, the amended complaint is deemed filed as of the date the original was filed, provided the requirements of section 474 are met. (Ibid.)

The issue before us is whether plaintiffs were ignorant of the facts giving rise to a cause of action against Dr. Honeycutt when they filed their original complaint. Under section 474 a plaintiff is considered to be ignorant of the name of a defendant not only when he lacks knowledge of the defendants identity but also when he knew the identity of the person but was ignorant of the facts giving him a cause of action against the person. (Marasco v. Wadsworth (1978) 21 Cal.3d 82, 88 . . . .) Moreover, there is no requirement under section 474 that a plaintiff exercise reasonable diligence in discovering either the true identity of fictitious defendants or the facts giving him a cause of action against such persons. (Munoz v. Purdy (1979) 91 Cal.App.3d 942, 947 . . . .) (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 376.)

The lack of knowledge of the true name of a defendant, however, must be real and not feigned. [Citation.] A plaintiff must actually be ignorant of the facts giving him a cause of action against a defendant. Ignorance of the facts is the critical issue. . . .  [Citations.] (Munoz v. Purdy[, supra,] 91 Cal.App.3d 942, 947.) 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.] (Scherer v. Mark (1976) 64 Cal.App.3d 834, 841.) The question of the plaintiffsgood faith in this regard is for the determination of the trial court. (Ibid.) (Hazel v. Hewlett (1988) 201 Cal.App.3d 1458, 1464-1465.)

III. Analysis

In this case, the original complaint alleged that Lakewood Primary Care and others were negligent in their diagnosis and treatment of Annettes skin condition between April 2002 and September 2004. According to Annettes deposition testimony and the medical records in Annettes possession since April 12, 2005, there is no dispute that plaintiffs were aware, when they filed their original complaint in August 2005, that Dr. Honeycutt was a Lakewood Primary Care dermatologist who had tested, diagnosed, and treated Annettes skin condition during part of the period alleged in the complaint. Nevertheless, Dr. Honeycutt was not added to the complaint until May 3, 2006, more than a year after Annette was diagnosed with mycosis fungoides on April 7, 2005. The trial court correctly held that under section 340.5, the amended complaint was untimely as a matter of law.

Plaintiffs contend that the amended complaint was not untimely because they were ignorant of the facts giving rise to a claim against Dr. Honeycutt until April 2006, when their attorney received a complete set of Annettes medical records from Lakewood Primary Care and others. Plaintiffs argue that after reviewing the full medical records, their counsel created a timeline that showed, for the first time, that Dr. Honeycutt was responsible for the claims alleged in the original complaint.

We are not persuaded. The gist of the original complaints malpractice claim was that defendants had negligently failed to diagnose and treat Annettes skin condition as mycosis fungoides between April 2002 and September 2004. Given that plaintiffs possessed sufficient information to sue Lakewood Primary Care on August 29, 2005, it is exceedingly difficult to find that they lacked sufficient information to sue Dr. Honeycutt, a Lakewood Primary Care dermatologist who had tested, diagnosed, and treated Annettes skin condition between late 2002 and May 2003.

On this record, no rational trier of fact could conclude that additional medical records were needed to create the timeline that showed Dr. Honeycutts potential liability for the claims alleged in the original complaint. As demonstrated by Annettes deposition testimony, she knew, even without the timeline, that Dr. Honeycutt had treated her between late 2002 and May 2003 for the skin condition. Given the original complaints allegation that Dr. Dabu and Lakewood Primary Care were negligent in failing to diagnose the skin condition as mycosis fungoides, plaintiffs needed no additional records or timeline to name Dr. Honeycutt, who had failed to make the identical diagnosis during the period alleged, as a defendant in the original complaint. The record supports no other reasonable conclusion but that plaintiffs were necessarily aware of the facts giving rise to their claim against Dr. Honeycutt, as a matter of law, when they filed their original complaint in August 2005.

Plaintiffs reliance on Fuller v. Tucker (2000) 84 Cal.App.4th 1163 and McOwen v. Grossman (2007) 153 Cal.App.4th 937 is misplaced. In Fuller, the trial court had erroneously found a Doe amendment to be untimely because of the plaintiffs failure to make a reasonable investigation of the defendants identity and liability. The appellate court reversed, stating that the duty to make a reasonable investigation does not apply under the fictitious name statute. The appellate court stated that under section 474, [t]he only relevant inquiry was whether [the plaintiff] knew of [the defendants] identity and the facts giving rise to a cause of action against him or her. (84 Cal.App.4th at p. 1172.) Unlike in Fuller,the trial court below did not apply an erroneous legal standard.

In Grossman, the court held there was a triable issue of fact as to whether the plaintiff knew facts that indicated the defendant doctor had provided negligent treatment. (McOwen v. Grossman, supra, 153 Cal.App.4th at p. 945.) In this case, as explained above, the evidence was undisputed that plaintiffs knew Dr. Honeycutts identity and the facts giving rise to a cause of action against her when the original complaint was filed.

DISPOSITION

The judgment is affirmed. Respondent is awarded her costs.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P.J.

MANELLA, J.

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[1] When referring to the plaintiffs individually, we will use their first names, with no disrespect intended.

[2] All further statutory references are to the Code of Civil Procedure.

[3] Kevin does not dispute the trial courts ruling that the dismissal of Annettes claim against Dr. Honeycutt is fatal to his claim as well.

[4] In an action for injury or death against a health care provider based upon such persons 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. . . . ( 340.5.)