CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
FIREMAN’S FUND INSURANCE
Plaintiff and Appellant,
SPARKS CONSTRUCTION, INC. et al.,
Defendants and Respondents.
APPEAL from the Superior Court of Riverside County. Christopher J. Sheldon,
Graham & Associates and Bruce N. Graham for Plaintiff and Appellant.
Higgins Harris Sherman & Rohr, John J. Higgins, and Deborah A. Walker for
Defendants and Respondents.
The original complaint in this action contained Doe allegations. The first
amended complaint did not. After filing the first amended complaint, the plaintiff served
two new defendants with the original summons and complaint, along with amendments
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion
is certified for publication with the exception of part II.
purporting to name them as Does. These defendants filed answers, and all parties
proceeded to litigate apace.
Almost a year later, the plaintiff sought leave to file a second amended complaint,
in which these new defendants were explicitly named. This belatedly alerted the new
defendants to the existence of the first amended complaint. The trial court denied leave
to amend; indeed, it granted the new defendants judgment on the pleadings. It reasoned
that the first amended complaint had effectively dismissed all Doe defendants; hence, the
Doe amendments were ineffective, the second amended complaint did not relate back,
and the statute of limitations had run.
In essence, the trial court ruled that, even though the new defendants had
participated in the action for over a year, filing not only answers but also crosscomplaints and even a motion for summary judgment, they had never really been parties
at all. Moreover, it was too late to make them parties. The plaintiff’s procedural gaffes
precluded it from any recovery against them.
By and large, we agree with the trial court’s reasoning -- as far as it went. We will
hold, however, that the new defendants waived any objection to their joinder by filing
answers and thereby making a general appearance. Their waiver was effective even
though they had no reason to suspect, at the time, that they had not been properly joined.
Thus, the action was commenced against them, for purposes of the statute of limitations,
not later than when they filed their answers. We cannot say, as a matter of law, that the
applicable statutes of limitations had run by that date. Hence, we will reverse.
FACTUAL AND PROCEDURAL BACKGROUND
The Original Complaint.
Plaintiff Fireman’s Fund Insurance Company (Fireman’s) filed this action on May
26, 2000. Its attorney was Philip A. Fant. The original complaint named as defendants
Kohler Co. (Kohler) and Does 1 through 10. It asserted two causes of action, for
negligence and for strict products liability.
According to the original complaint, Albert and Ardean Cook owned a home in La
Quinta. As a result of a defective ballcock, their toilet leaked, causing severe property
damage. The leak was discovered on or about June 15, 1999. Fireman’s, as the Cooks’
insurer, paid them $428,804.48. In return, Fireman’s became subrogated to the Cooks’
claims arising out of the leak.
The First Amended Complaint.
On March 30, 2001, Fireman’s filed its first amended complaint, which named as
defendants Kohler, Fluidmaster, Inc. (Fluidmaster), and Preferred Air Conditioning
(Preferred). The first amended complaint had no Doe allegations.
On October 2, 2001, Fireman’s substituted Bruce N. Graham as its attorney in
place of Fant.
On November 30, 2001, Fireman’s filed amendments to the first amended
complaint, purporting to name Sparks Construction, Inc. (Sparks) as Doe 1 and T.D.
Desert Development, LP (T.D.) as Doe 2.
On December 19, 2001, and February 26, 2002, respectively, Fireman’s served the
following documents on T.D. and Sparks: (1) a summons issued on the original
complaint, listing as defendants Kohler and Does 1 through 10; (2) the original
complaint; and (3) the amendments purporting to name Sparks and T.D. as Does.
T.D. and Sparks filed answers on January 7, 2002, and March 27, 2002,
respectively. These were captioned as answers to the “complaint.” Each answer
consisted of a general denial and numerous affirmative defenses, including failure to state
a claim and the statute of limitations, but not including lack of personal jurisdiction.
Sparks and T.D. did not, at that time, move to quash. They also filed cross-complaints
for indemnity against the other defendants.
On September 24, 2002, Sparks and T.D. filed a motion for summary judgment,
on the ground that they “never touched the subject toilet.” The original complaint was
attached as an exhibit to the motion; the motion discussed it as if it were the operative
pleading. The trial court denied the motion.
On November 8, 2002, Fireman’s entered into a settlement with Preferred. As part
of the settlement, Preferred assigned to Fireman’s any rights to indemnity that it had
against its codefendants.
The Second Amended Complaint.
On January 3, 2003, Fireman’s filed a motion for leave to file a second amended
complaint. The original complaint, first amended complaint, and proposed second
amended complaint were all attached as exhibits. The proposed second amended
complaint named as defendants Kohler, Fluidmaster, Sparks, T.D., and “DOES 3 through
100.” However, it contained no Doe allegations. It alleged that Fireman’s had paid the
Cooks a total of $430,457.48 (instead of $428,804.48). It also alleged that the leak was
discovered on or about September 15, 1999 (instead of June 15, 1999). It added three
new causes of action -- for equitable indemnity, contribution, and declaratory relief -based on the rights which Preferred had assigned to Fireman’s.
Sparks and T.D. responded by filing a combined motion to quash and motion for
judgment on the pleadings.
In opposition to the motion, Fireman’s filed declarations by its attorneys, Fant and
Graham. Fant stated that, when he drafted the first amended complaint, he intended to
include Doe allegations; his failure to do so “was an oversight and not done deliberately.”
Graham stated that, when he drafted the Doe amendments, he did not realize that the first
amended complaint lacked any Doe allegations.
On February 7, 2003, the trial court granted the motion for judgment on the
pleadings without leave to amend, denied Fireman’s motion for leave to amend, and
dismissed Fireman’s action as against Sparks and T.D. It ruled: “ . . . Sparks . . . and
T.D. . . . were improperly served. . . . [P]laintiff’s original complaint . . . was
super[s]eded by a first amended complaint . . . . The first amended complaint contained
no charging allegations against any Doe defendant . . . thus dismissing those parties . . . .
When Sparks . . . and T.D. . . . were served with Doe amendments, there were no Doe
defendants . . . in the operative pleading. Plaintiff’s counsel could not file a Doe
amendment to a complaint which has no Doe defendants. . . . Furthermore, the Court
finds that the statute of limitations has run thus barring plaintiff’s ability to bring in these
parties based on the date of loss set forth in plaintiff’s complaint as June, 1999.”
APPEALABILITY OF THE DENIAL
OF THE MOTION FOR LEAVE TO AMEND
Preliminarily, Sparks and T.D. contend that we cannot reach the order denying
Fireman’s motion for leave to amend in this appeal. First, they argue that the denial of a
motion for leave to amend is not appealable. True, it is not separately appealable. (Code
Civ. Proc., § 904.1, subd. (a); Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757,
824, fn. 19 [Fourth Dist., Div. Two]; 9 Witkin, Cal. Procedure (4th ed. 1996) Appeal,
§ 115, pp. 179-180.) But this does not mean it can escape review forever. Like any other
interlocutory ruling, it is reviewable in an appeal from the final judgment. (Code Civ.
Proc., § 906; Grimshaw, at p. 824, fn. 19; see generally In re Matthew C. (1993) 6
Cal.4th 386, 393-394.)
Second, they argue that the notice of appeal did not state that Fireman’s was
appealing from the denial of the motion. As the appeal was properly from the final
judgment, it did not have to. (Gavin W. v. YMCA of Metropolitan Los Angeles (2003)
106 Cal.App.4th 662, 668-669.) Moreover, “[i]t is axiomatic that notices of appeal will
be liberally construed to implement the strong public policy favoring the hearing of
appeals on the merits. [Citation.]” (Norco Delivery Service, Inc. v. Owens-Corning
Fiberglas, Inc. (1998) 64 Cal.App.4th 955, 960.) Absent prejudice to the respondent
(which Sparks and T.D. do not, and cannot, claim), we would construe the notice of
appeal as being from the appropriate appealable order or judgment. (Forsyth v. Jones
(1997) 57 Cal.App.4th 776, 780 [Fourth Dist., Div. Two]; American Advertising & Sales
Co. v. Mid-Western Transport (1984) 152 Cal.App.3d 875, 877.)
In any event, this a tempest in a teapot. In granting the motion for judgment on
the pleadings, the trial court also denied leave to amend. Even assuming we could not,
strictly speaking, review the denial of the motion for leave to amend, we could still
review the denial of leave to amend in connection with the motion for judgment on the
The Effect of the First Amended Complaint.
The trial court ruled that, by filing the first amended complaint, Fireman’s
effectively dismissed all Doe defendants.
It has long been the rule that an amended complaint that omits defendants named
in the original complaint operates as a dismissal as to them. (Lamoreux v. San Diego &
Arizona Eastern Ry. Co. (1957) 48 Cal.2d 617, 627-628; Browner v. Davis (1860) 15
Cal. 9, 11-12; Kuperman v. Great Republic Life Ins. Co. (1987) 195 Cal.App.3d 943,
Fireman’s argues that the only way it could dismiss a defendant was by filing a
request for dismissal. This flies in the face of the cases just cited. Fireman’s relies on
Code of Civil Procedure section 581, subdivision (b)(1), which provides that an action
may be dismissed “[w]ith or without prejudice, upon written request of the plaintiff to the
clerk, filed with papers in the case, or by oral or written request to the court at any time
before the actual commencement of trial . . . .” This provision, however, is neither
exclusive nor mandatory. (Richards v. Bradley (1900) 129 Cal. 670, 672; Holland v.
Morgan & Peacock Properties Co. (1959) 168 Cal.App.2d 212, 213; see also Code Civ.
Proc., § 581, subd. (m).) Even assuming it is exclusive, the first amended complaint
itself would constitute the necessary request for dismissal.
Accordingly, we agree with the trial court that Fireman’s first amended complaint
effectively dismissed all Doe defendants.
Fireman’s also argues that any resulting dismissal necessarily was without
prejudice. We agree (Kuperman v. Great Republic Life Ins., supra, 195 Cal.App.3d at
p. 947), but the point is irrelevant. The trial court implicitly recognized that the dismissal
was without prejudice. It ruled, however, that Fireman’s could not file a new or amended
complaint against Sparks and T.D. because the statute of limitations had run.
The Doe Amendments.
Next, the trial court ruled that the amendments purportedly naming Sparks and
T.D. as Does were ineffective because the first amended complaint contained no Doe
Code of Civil Procedure section 474 allows a plaintiff to name fictitious
defendants, or “Does.” The complaint must state a cause of action against each Doe
defendant. (Pacific Coast Refrigeration, Inc. v. Badger (1975) 52 Cal.App.3d 233, 249250; Milam v. Dickman Const. Co. (1964) 229 Cal.App.2d 208, 213-214.) It must allege
that the plaintiff is ignorant of the Doe defendant’s name. (Code Civ. Proc., § 474;
Stephens v. Berry (1967) 249 Cal.App.2d 474, 477; but cf. Dieckmann v. Superior Court
(1985) 175 Cal.App.3d 345, 353-355.) Moreover, the plaintiff must actually be ignorant
of the Doe defendant’s name, i.e., “ignorant of the facts giving rise to a cause of action
against that defendant.” (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1170.) When the
plaintiff discovers a Doe defendant’s true name, he or she must amend the complaint
accordingly. (Code Civ. Proc., § 474; see Jonson v. Weinstein (1967) 249 Cal.App.2d
954, 957.) Provided these requirements are satisfied, the amendment is deemed to
“relate back” to the filing date of the original complaint for purposes of the statute of
limitations. (Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 930.)
“Code of Civil Procedure section 474 is to be liberally construed. [Citation.]”
(Fuller v. Tucker, supra, 84 Cal.App.4th at p. 1170.) Nevertheless, its requirements, as
so construed, are mandatory. (Stephens v. Berry, supra, 249 Cal.App.2d at p. 477.)
Failure to comply with Code of Civil Procedure section 474 does not prevent a plaintiff
from filing an amendment adding a new defendant; however, it does prevent the
amendment from relating back. (Davis v. Marin (2000) 80 Cal.App.4th 380, 387;
Armstrong v. Superior Court In and For Los Angeles Co. (1956) 144 Cal.App.2d 420,
Here, the first amended complaint had no Doe allegations. “‘It is well established
that an amendatory pleading supersedes the original one, which ceases to perform any
function as a pleading. [Citations.]’ [Citation.]” (Foreman & Clark Corp. v. Fallon
(1971) 3 Cal.3d 875, 884, quoting Meyer v. State Bd. of Equalization (1954) 42 Cal.2d
376, 384.) Hence, as we held in part III.A, ante, by filing the first amended complaint,
Fireman’s effectively dismissed all Doe defendants. Filing Doe amendments when the
operative complaint contained no Doe allegations did not comply with Code of Civil
Procedure section 474.
Thus, we agree with the trial court that the Doe amendments did not relate back to
the filing date of the original complaint.
Service of the Original Summons, Original Complaint, and Doe
The trial court also ruled that Sparks and T.D. had not been properly served.
Strictly speaking, this ruling was not necessary to its decision. The core of its
decision was that, because the Doe amendments did not relate back, the statute of
limitations had already run before the second amended complaint could be filed. The
propriety of the service would matter if, and only if, valid service of summons on Sparks
and T.D. constituted commencement of an action against them for statute of limitations
It did not. An action is commenced when the complaint is filed. (Code Civ. Proc.,
§§ 350, 411.10; Cuadra v. Millan (1998) 17 Cal.4th 855, 859, disapproved on other
grounds in Samuels v. Mix (1999) 22 Cal.4th 1, 16, fn. 4.) “The issuance of summons is
not necessary to the commencement of the action. [Citations.]” (Code Com. Notes,
reprinted at 13A West’s Ann. Code Civ. Proc. (1982 ed.) foll. § 350, p. 561.) It follows
that serving a summons on a person who is not named as a defendant in the underlying
complaint does not stop the statute of limitations from running. Here, when the original
summons was served on Sparks and T.D., there was no underlying action against them.
As we held in part III.B, ante, the Doe amendments purporting to name them were
ineffective. Accordingly, even assuming service of the original summons was effective
to establish personal jurisdiction over them, the statute of limitations continued to run.
Additionally -- and alternatively -- the service was invalid. Absent compliance
with Code of Civil Procedure section 474, service of a summons on a purported Doe
defendant is ineffective. (McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 256,
fn. 3.) “[O]ne ‘who is not named either by his true or a fictitious name or as an unknown
defendant is not a proper party to an action, and service of summons upon such person
upon proper motion should be quashed.’ [Citation.]” (Fuss v. City of Los Angeles (1958)
162 Cal.App.2d 643, 646, quoting Kline v. Beauchamp (1938) 29 Cal.App.2d 340, 342.)
We therefore agree with the trial court that the service of summons on Sparks and
T.D. was invalid and ineffective.
The Filing of Answers and Cross-Complaints by Sparks and T.D.
Fireman’s contends that Sparks and T.D. waived any irregularity in the
proceedings by filing answers, cross-complaints, and a motion for summary judgment.
Although Fireman’s raised this same contention below, the trial court’s ruling failed to
“A general appearance by a party is equivalent to personal service of summons on
such party.” (Code Civ. Proc., § 410.50, subd. (a).) “A general appearance operates as a
consent to jurisdiction of the person, dispensing with the requirement of service of
process, and curing defects in service.” (2 Witkin, Cal. Procedure (4th ed. 1996)
Jurisdiction, § 190, p. 756.) Sparks and T.D. argue that a party “cannot waive service
that has never occurred.” Not so. A general appearance can make up for a complete
failure to serve a summons. (Adoption of Matthew B. (1991) 232 Cal.App.3d 1239,
“An appearance is general if the party contests the merits of the case or raises
other than jurisdictional objections. [Citations.]” (366-388 Geary St., L.P. v. Superior
Court (1990) 219 Cal.App.3d 1186, 1193-1194.) Filing an answer on the merits
constitutes a general appearance. (Code Civ. Proc., § 1014; California Dental Assn. v.
American Dental Assn. (1979) 23 Cal.3d 346, 352.) As we held in part III.C, ante, the
service on Sparks and T.D. was ineffective. Once they filed answers, however, they
became subject to the trial court’s personal jurisdiction and lost their right to quash the
Much the same is true of the failure to name Sparks, T.D., or any Does in the first
amended complaint. A complaint must include the names of all the parties. (Code Civ.
Proc., § 422.40.) However, “[a] party may appear though he is not named in the
complaint.” (Bayle-Lacoste & Co. v. Superior Court (1941) 46 Cal.App.2d 636, 644.)
For example, in Tyrrell v. Baldwin (1885) 67 Cal. 1, the plaintiffs filed a complaint
against various defendants but did not name or serve Charles and Sarah McDonald.
Nevertheless, the McDonalds filed an answer denying the plaintiff’s claims and claiming
an adverse title. The plaintiff obtained a judgment against the McDonalds. (Id. at p. 3.)
The Supreme Court held that the judgment as against the McDonalds was not void. It
reasoned, in part, that: “As soon as the answer was filed the complaint might have been
amended by adding the names of the McDonalds to those of the other defendants in the
action. Did the failure to do so affect the substantial rights of the parties? Clearly not.
And if not the judgment is not affected by reason of that defect in the pleadings or
proceedings. (Code Civil Proc. 475.)” (Id. at p. 4.)
In Farmers etc. Nat. Bank v. Peterson (1936) 5 Cal.2d 601, the Supreme Court
similarly held: “The defendants complain that trustee Boothe, who appeared voluntarily
and filed his answer, was not properly a party defendant because he was not named as a
party in the complaint or the amended complaint, and that consequently the judgment
against him is void. There is, of course, no merit to the point. Boothe invoked the
judgment of the court by his voluntary appearance, and may not now be heard to deny the
jurisdiction of the court to render such judgment. [Citations.] His voluntary appearance
must be deemed to be a waiver of any failure to name him as a defendant. [Citation.]”
(Id. at p. 606; see also Eastern Outfitting Co. v. Myers (1918) 39 Cal.App. 316, 317 [by
filing answer, defendant waived failure to amend complaint to name him as Doe
More recently, in In re Marriage of Williams (1985) 163 Cal.App.3d 753, an exwife sought to satisfy a support order by executing on her ex-husband’s pension fund. In
response to an order to show cause, the pension fund appeared at a hearing and argued
that the ex-wife’s claim was preempted by federal law. (Id. at p. 757.) On appeal, the
pension fund argued that the trial court lacked jurisdiction under former Civil Code
section 4351, which provided that a support order was not enforceable against an
employee pension benefit plan unless the plan had been joined as a party. (Marriage of
Williams, at pp. 757-758.) The appellate court agreed that the failure to join the pension
fund violated former Civil Code section 4351. (Marriage of Williams, at p. 759.) It
further held, however, that the pension fund waived the violation by making a general
appearance at the hearing. (Id. at pp. 759-760.)
If a complete interloper were to answer a complaint, the plaintiff could move to
strike the answer. (See Coburg Oil Co. v. Russell (1950) 100 Cal.App.2d 200, 204-205;
Bayle-Lacoste & Co. v. Superior Court, supra, 46 Cal.App.2d at p. 644; see also Code
Civ. Proc., §§ 435, 436.) Arguably, the plaintiff could also demur to the answer. (Code
Civ. Proc., § 430.20.) If, however, the plaintiff fails to do either in a timely manner -- if
the unnamed, yet answering defendant participates in the action, without any objection
from anybody -- the complaint should be deemed amended. (See Bayle-Lacoste & Co. v.
Superior Court, supra, 46 Cal.App.2d at p. 644; see also Code Civ. Proc., §§ 430.80,
subd. (b) [failure to demur to answer waives all objections other than that answer fails to
state a defense], 435, subds. (b)(1), (e) [motion to strike must be filed within time to
respond to pleading, except that motion to strike may also be made as part of motion for
judgment on the pleadings].)
Sparks and T.D. argue that, having been served with the wrong summons and
complaint, they had no reason to know that the Doe amendments were invalid and the
service ineffective. As far as we can tell from the record, this is true. In hindsight, one
does wonder why the presence of Fluidmaster and Preferred did not tip them off. Of
course, they may have assumed that Fluidmaster and Preferred had also been named as
Sparks and T.D. cite no authority, however, for the proposition that they had to be
aware of these defects before they could waive them. We do not believe they did. In
view of the long, long line of cases holding that a general appearance waives objections
to service (to say nothing of the statute to the same effect), this very absence of authority
“Federal as well as state courts have used the term ‘waiver’ to refer to a number of
different concepts. [Citations.] Generally, ‘waiver’ denotes the voluntary relinquishment
of a known right. But it can also mean the loss of an opportunity or a right as a result of a
party’s failure to perform an act it is required to perform, regardless of the party’s intent
to abandon or relinquish the right. [Citations.]” (Platt Pacific, Inc. v. Andelson (1993) 6
Cal.4th 307, 314-315.)
The rule that a general appearance “waives” objections to defective service is
actually a matter of forfeiture, not waiver. Service of summons is required in order to
give the defendant notice of the action, as due process demands. (Oats v. Oats (1983)
148 Cal.App.3d 416, 420.) But once the defendant appears in the action, this purpose has
been served. “A defendant has a right to demand that process be issued against him in
the manner provided by law, but if process is not so issued and he appears generally
without making objection, such appearance, being the purpose of the process, confers
jurisdiction of the person and the court is empowered to act in the premises.”
(Harrington v. Superior Court (1924) 194 Cal. 185, 189.)
We recognize “the traditional rule . . . that the requirements for service of
summons by publication must be strictly complied with. [Citations.]” (County of
Riverside v. Superior Court (1997) 54 Cal.App.4th 443, 450 [Fourth Dist., Div. Two].)
This is primarily so that, when the defendant has not appeared, the court can proceed with
some confidence that the requisite notice has, in fact, been given. A defendant is allowed
to appear (provided the appearance is special, not general) and to assert that he or she has
not been served in compliance with the statutory requirements, not so much to ensure that
notice has been given in the case then before the court, but rather to ensure that notice
will be given in other cases.
Even then, “‘[p]leas based upon lack of jurisdiction of the person are in their
nature pleas in abatement and find no especial favor in the law. They amount to no more
than the declaration of the defendant that he has had actual notice, is actually in court in a
proper action, but, for informality in the service of process is not legally before the court.
It is purely a dilatory plea, and when a defendant seeks to avail himself of it, he must, for
very obvious reasons, stand upon his naked legal right and seek nothing further from the
court than the enforcement of that right.’” (Raps v. Raps (1942) 20 Cal.2d 382, 385,
quoting Olcese v. Justice’s Court of First Judicial Tp., Contra Costa County (1909) 156
Cal. 82, 87.)
Any rule that a general appearance does not waive objections to service unless the
waiver is knowing and intelligent would exalt form over substance. A defendant who has
actual knowledge of the action and who has submitted to the authority of the court should
not be able to assert a violation of rules which exist only to bring about such knowledge
and submission. We therefore hold that a defendant who makes a general appearance
forfeits any objection to defective service, even when the defendant does not know at the
time that such an objection is available.1
For much the same reasons, the rule that a person can become a defendant by
answering the complaint is a matter of forfeiture, not waiver. Just as a summons serves
as notice of the action, “[t]he complaint . . . serves to frame and limit the issues [citation]
and to apprise the defendant of the basis upon which the plaintiff is seeking recovery
[citations].” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983)
35 Cal.3d 197, 211-212.) If a defendant knows the factual and legal issues well enough
to file an answer, these purposes have been served. Any remaining confusion or
uncertainty can be dispelled, in most cases, by amendments to the pleadings and by
Here, for example, Sparks and T.D. did have notice, via service of the original
complaint, of the general nature of Fireman’s claims. There had been considerable
discovery, which had fleshed out Fireman’s claims. Certainly Sparks and T.D. had
enough notice to file a motion for summary judgment. All Sparks and T.D. lacked was
notice of the differences between the original complaint and the first amended complaint.
Fireman’s offered to cure this by filing a second amended complaint.
Our holding is limited to objections to personal jurisdiction based on either
failure to serve or defective service. This case presents no issue of objections to personal
jurisdiction based on lack of minimum contacts with the state. Certainly there are many
cases holding that a general appearance waives this kind of objection, too. (E.g.,
California Dental Assn. v. American Dental Assn., supra, 23 Cal.3d at p. 351-352.) Also,
it would seem to be a rare case in which a defendant genuinely does not know the facts
underlying a minimum-contacts analysis. Still, it is conceivable that overriding due
[footnote continued on next page]
Sparks and T.D. did not claim that filing the second amended complaint would
prejudice them in any way. If they had claimed prejudice, the trial court could have
denied leave to amend (Bulmash v. Davis (1979) 24 Cal.3d 691, 701-702); then, as the
first amended complaint failed to state a claim against them, they could have moved for
judgment on the pleadings. We need not decide whether the trial court would have had to
grant such a motion. Perhaps it could have just stricken the first amended complaint, as
against Sparks and T.D., because it had never been served on them. We merely observe
that these procedural possibilities were adequate to protect the legitimate interest that
Sparks and T.D. had in notice of the claims against them.
Thus, we also hold that a defendant can forfeit the objection that he or she is not
named as a defendant in the complaint by filing an answer, even when the defendant does
not know at the time that this objection is available. We need not decide whether such
forfeiture follows inevitably, in every case. Here, the purpose of the requirement that
defendants be named in the complaint was served -- or at least could have been served -by allowing Fireman’s to file its second amended complaint.
Incidentally, we note that there is not so much as a whiff of fraud in this case.
Fireman’s attorneys testified that they acted entirely by mistake. There is no contrary
evidence. Moreover, we cannot imagine how Fireman’s could have hoped to benefit.
Sparks and T.D. suggest that Fireman’s dismissed all the Doe defendants intentionally,
then, when it changed its mind and wanted to sue them, served the wrong complaint
[footnote continued from previous page]
process concerns might require a waiver of the minimum-contacts requirement to be
[footnote continued on next page]
intentionally, to conceal the dismissal. This makes no sense. There could be no strategic
reason to omit boilerplate Doe allegations. Moreover, why would Fireman’s keep quiet
for nearly a year (arguably allowing the statute of limitations to run), then suddenly show
its hand by moving for leave to amend? We need not consider whether our holding
would be the same in the event of fraud.
Accordingly, we conclude that even though Sparks and T.D. had not been
properly named as defendants nor properly served, by making a general appearance they
subjected themselves to the court’s personal jurisdiction and became parties to the action.
The Statute of Limitations.
Despite our conclusion that Sparks and T.D. waived their objections, we still must
consider the statute of limitations.
The trial court relied on “the familiar rule that . . . a complaint may not be
amended to add a new defendant after the statute of limitations has run. [Citations.]”
(McGee Street Productions v. Workers’ Comp. Appeals Bd. (2003) 108 Cal.App.4th 717,
724, and authorities cited.) In doing so, it erred; as we held in part III.D ante, Sparks and
T.D. were already parties. If, however, the statute of limitations had already run before
they became parties, the trial court was still required to deny leave to amend (Cloud v.
Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1011) and to grant judgment on
[footnote continued from previous page]
knowing and intelligent.
The relevant causes of action are those in the proposed second amended
complaint. “[A]n amended complaint relates back to the filing of the original complaint,
and thus avoids the bar of the statute of limitations, so long as recovery is sought in both
pleadings on the same general set of facts.” (Smeltzley v. Nicholson Mfg. Co. (1977) 18
Cal.3d 932, 934.) Here, the second amended complaint arose out of the same general set
of facts as all earlier complaints. Accordingly, it related back to the date on which the
action was commenced as against Sparks and T.D.
In the second amended complaint, Fireman’s asserted two causes of action as the
Cooks’ subrogee: for negligence and for strict products liability. On both theories, it
sought to recover for damage that the defect in the ballcock caused to the Cooks’ home
and its contents. These causes of action are therefore governed by the three-year
limitations period applicable to actions for injury to real and personal property. (Code
Civ. Proc., § 338, subds. (b), (c); Regents of University of California v. Hartford Acc. &
Indem. Co. (1978) 21 Cal.3d 624, 630 [negligence]; San Francisco Unified School Dist.
v. W.R. Grace & Co. (1995) 37 Cal.App.4th 1318, 1325 [negligence and strict liability].)
Accrual of these causes of action is subject to the discovery rule; that is, they did not
accrue until discovery of the defect. (Regents of University of California v. Hartford Acc.
& Indem. Co. at p. 630; Angeles Chemical Co. v. Spencer & Jones (1996) 44 Cal.App.4th
Fireman’s argues that the relevant limitations period is either four years or 10
years, applicable to actions based on patent and latent defects, respectively, in an
improvement to real property. (Code Civ. Proc., §§ 337.1, 337.15.) Both of these
periods, however, run from substantial completion of the improvement, not from
discovery of the defect. They may shorten the period that would otherwise apply, but
they cannot lengthen it. (FNB Mortg. Corp. v. Pacific General Group (1999) 76
Cal.App.4th 1116, 1127 [Code Civ. Proc., § 337.15].)
Because this issue comes to us after a motion for judgment on the pleadings, “all
facts alleged in the complaint must be accepted as true. [Citation.]” (Rangel v.
Interinsurance Exchange (1992) 4 Cal.4th 1, 7.) The original complaint alleged that the
leak was discovered in June 1999. The second amended complaint, however, alleged that
it was not discovered until September 1999. We may assume, without deciding, that the
original allegation was binding and could not be contradicted in later pleadings. (See
Colapinto v. County of Riverside (1991) 230 Cal.App.3d 147, 151-152 [Fourth Dist., Div.
Two].) That would mean the three-year limitations period ran in June 2002.
So far, we have not actually decided when the action against Sparks and T.D. was
commenced. We have decided that they waived their objections to service and to joinder
by making a general appearance. This does not necessarily mean, however, that they
waived their objections to being served and joined as Does. If they did, then the second
amended complaint would relate back to the first amended complaint, at least, and
arguably even to the original complaint. If not, however, it would relate back only to
when they became parties. We will assume, without deciding, that the action was not
commenced, as against Sparks and T.D., until they actually filed their answers, on
January 7, 2002 (T.D.), and March 27, 2002 (Sparks). Even if so, this was before the
statute of limitations had run.
Finally, in the second amended complaint, Fireman’s also asserted three causes as
assignee of Preferred: for equitable indemnity, contribution, and declaratory relief.
These causes of action accrued no earlier than November 8, 2002, when Preferred settled
with Fireman’s. (See People ex rel. Dept. of Transportation v. Superior Court (1980) 26
Cal.3d 744, 751-752, 757 [equitable indemnity and contribution causes of action do not
accrue until joint tortfeasor pays injured party’s claim].) This was after Sparks and T.D.
We conclude that the trial court erred by ruling that the statute of limitations
barred the second amended complaint. Sparks and T.D. did not oppose Fireman’s motion
for leave to amend on any other ground. Accordingly, the trial court erred by denying the
motion for leave to amend and by granting the motion for judgment on the pleadings
without leave to amend.
The judgment is reversed. The trial court is directed to (1) grant Fireman’s motion
for leave to file its proposed second amended complaint; (2) deny Sparks and T.D.’s
motion to quash; and (3) deny Sparks and T.D.’s motion for judgment on the pleadings as
moot. Fireman’s is awarded costs on appeal against Sparks and T.D.
CERTIFIED FOR PARTIAL PUBLICATION