Dunson v. State of California

Filed 3/6/07 Dunson v. State of California CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from an order of the Superior Court of Kings County. Peter M. Schultz, Judge.

Ryan & Tabor and Allan M. Tabor for Plaintiff and Appellant.

Bill Lockyer, Attorney General, James Schiavenza, Senior Assistant Attorney General, and Darryl L. Doke and James C. Phillips, Deputy Attorneys General, for Defendants and Respondents.

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Appellant, Lana Campbell Dunson, filed a wrongful death action against respondents, State of California and Corcoran State Prison, alleging that respondents were negligent in the care, diagnosis and treatment of appellants husband while he was a prisoner. At trial, respondents moved to first try their immunity defense under Government Code section 844.6 (a public entity is not liable for an injury to a prisoner). The trial court found respondents were immune and entered judgment in their favor. Appellants motion for a new trial was denied.

Thereafter, appellant filed an ex parte motion requesting leave to amend the complaint to substitute named defendants in place of Doe defendants. This motion was also denied.

This appeal is from the order denying appellants application to amend the complaint. Appellant contends the court erred in finding that the Doe defendants had already been implicitly dismissed by appellant when, at the case management hearing, she failed to advise the court that additional parties might be added.

As discussed below, the trial court did not err when it denied appellants application to amend her complaint. Accordingly, the order will be affirmed.^[1]

DISCUSSION

1. The order is appealable.

Respondents contend the order denying appellants application to amend the complaint is not appealable because it does not affect the judgment or relate to its enforcement. Judgment was entered in favor of respondents on October 7, 2005, and that judgment is final.

Code of Civil Procedure section 904.1, subdivision (a)(2), provides that an appeal may be taken from an order made after a final appealable judgment. Nevertheless, under case law not every such order is appealable. (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651.) Postjudgment orders that lack finality in that they are also preparatory to later proceedings are nonappealable. (Id. at p. 653.) Holding such orders nonappealable merely postpones their appeal. (Ibid.)

Here, however, the order has all the earmarks of a final judgment. There remains nothing for judicial consideration with regard to the action, the order is the only judicial ruling on the Doe defendants, and there is no other opportunity to review the order by appeal. (Cf. Bank of California v. Thornton-Blue Pacific, Inc. (1997) 53 Cal.App.4th 841, 845.) It is a final determination of a matter affecting appellant in the original proceeding. (Lakin v. Watkins Associated Industries, supra, 6 Cal.4th at p. 654.) Accordingly, the order is appealable.

2. The trial court had jurisdiction to hear appellants application.

Respondents argue that the trial court did not have jurisdiction to hear appellants application to amend the complaint because judgment had been entered and the case was terminated. However, an action is deemed to be pending before the trial court until the time for appeal has passed. (Mason & Associates, Inc. v. Guarantee Sav. & Loan Assn. (1969) 269 Cal.App.2d 132, 134.)

Here, appellants motion for new trial was denied on November 23, 2005. Thus, appellants application to amend the complaint filed on December 22, 2005, was filed before the time to appeal had passed, i.e., within 30 days of service of the order denying the motion for new trial. (Cal. Rules of Court, rule 8.108.) Accordingly, the trial court had jurisdiction to hear the application.

3. The application to amend the complaint was properly denied.

Just before this case was to become final, appellant filed an application to amend the complaint to substitute named defendants in place of fictitious/doe defendants. However, appellant neither stated who these defendants were nor provided the court with a proposed amendment.

In denying appellants application to amend the complaint, the trial court noted that in a case management statement filed in May 2005, appellant represented to the court that all parties named in the complaint have been served, or have appeared or have been dismissed. Appellant had the opportunity to, but did not, complete the section in the case management statement form that requires a plaintiff to state if additional parties may be added and if so, to set forth the names, nature of involvement in the case, and the date by which they may be served. Thereafter, the case was set for trial, the trial date was confirmed, and trial commenced on September 26, 2005. At no time before the application to amend the complaint was filed on December 22, 2005, did appellant indicate an intention to add additional parties. Under these circumstances, the trial court found that appellant had implicitly dismissed all Doe defendants.

Appellant contends that she should have been allowed to amend her complaint to substitute named defendants for fictitious defendants. According to appellant, the case management statement was complete when it was filed because no additional parties were contemplated in May 2005. Appellant further argues that under former California Rules of Court, rule 212 (repealed and divided into rules 3.720-3.730 effective January 1, 2007), the Doe defendants were not required to be dismissed at the management conference. Consequently, appellant asserts, the trial court erred in finding that the Doe defendants were implicitly dismissed.

The trial court has wide discretion in allowing the amendment of a complaint and the service of fictitious defendants. (Record v. Reason (1999) 73 Cal.App.4th 472, 486; McIntire v. Superior Court (1975) 52 Cal.App.3d 717, 720.) Accordingly, the trial courts ruling will be upheld in such matters unless a manifest or gross abuse of discretion is shown. (Record v. Reason, supra, 73 Cal.App.4th at p. 486.)

Here, appellant waited until the final hour to attempt to add named defendants to her complaint. Judgment had been entered in respondents favor following a limited trial and the time to appeal had nearly expired. Presumably, these additional defendants would have been the individual medical care providers who had treated appellants decedent. It seems unlikely that, by the time appellant was ready to go to trial, she would not have known who these individuals were. Under these circumstances, the trial courts finding that appellant had implicitly dismissed the Doe defendants was reasonable. To justify the addition of new defendants, a plaintiff must have acted with due diligence to bring them in as parties. (McIntire v. Superior Court, supra, 52 Cal.App.3d at p. 721.)

Moreover, appellant did not submit a proposed amendment adding the new parties with her application. Such a proposed amendment is required. (People ex re. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785.) This omission alone supports the trial courts order denying leave to amend. (Brenner v. City of El Cajon(2003) 113 Cal.App.4th 434, 444.)

DISPOSITION

The order is affirmed. Costs on appeal are awarded to respondents.

_________________________

Levy, J.

WE CONCUR:

_______________________________

Wiseman, Acting P.J.

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Hill, J.

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^[1] Although respondents are no longer parties to this action, they have requested that their brief be considered in opposition to appellants opening brief. Respondents note that, because appellants application was denied, there are no other parties. Under these circumstances, respondents request will be granted.