THE BOARD OF TRUSTEES OF THE LELAND STANFORD JUNIOR

UNIVERSITY v. THE SUPERIORCOURTOFSANTA CLARACOUNTY

Filed 4/18/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

I. INTRODUCTION

Real party in interest Brian J. Umana fell from his dormitory loft bed on February 15, 2003, when he was a sophomore living on campus at petitioner Stanford University (Stanford). Exactly two years after the date of his fall, he filed a personal injury complaint in propria persona alleging that he had sustained a serious head injury in the fall due to Stanfords negligence. When Brians deposition was taken by Stanfords attorney, Brian admitted that he had not actually signed the complaint and that his father, John Umana, had signed the complaint in Brians name at Brians request.[1]

Stanford subsequently filed a motion for summary judgment, contending that Brians action was barred by the two-year statute of limitations (Code Civ. Proc.,  335.1)[2] because a valid complaint signed by either the plaintiff or the plaintiffs California-licensed attorney, as required by section 446, had not been filed during the limitations period. Brian immediately filed a motion for leave to file a first amended complaint that was signed by his attorney.

The trial court granted the motion for leave to file a first amended complaint and denied Stanfords motion for summary judgment. The court found that the evidence showed that Brian had exercised control over the content and filing of the original complaint, and therefore the signature defect could be cured by the filing of a properly signed first amended complaint that related back to the filing of the original complaint.

For reasons that we will explain, we conclude that the trial court did not err and therefore we will deny Stanfords petition for writ of mandate, which seeks extraordinary relief from both the order granting the motion for leave to file an amended complaint and the order denying the motion for summary judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Original Complaint

On February 15, 2005, Brian filed a personal injury complaint in propria persona against Stanford and Vaden Health Center. Brian was a sophomore at Stanford on February 15, 2003, when he allegedly sustained brain and head injuries as the result of a fall from his dormitory bed. According to Brian, at the time of the fall he was sleeping in a lofted bed that had been raised seven to nine feet off the floor with lofting materials provided by Stanford. The unsafe and defective lofting structure was built by his roommates with the university-provided materials and was not properly inspected by Stanford. Brian further claimed that Vaden Health Center, the student health center on campus, did not provide him with adequate medical care after the accident.

The complaint was signed Brian J. Umana, Plaintiff pro se. However, when his deposition was taken by Stanfords attorney on March 9, 2006, Brian testified that the signature on the complaint was mine signed in the hand of my father by my written request.

B. The Motion for Summary Judgment

On April 11, 2006, Stanford filed a motion for summary judgment on the ground that Brians action was barred by the section 335.1 two-year statute of limitations applicable to personal injury actions. Stanford argued that the complaint filed on February 15, 2003, was void because it was undisputed that neither Brian nor his attorney of record had signed the complaint, as required by section 446, subdivision (a) and section 128.7, subdivision (a). In pertinent part, subdivision (a) of section 446 provides, Every pleading shall be subscribed by the party or his or her attorney. Section 128.7, subdivision (a) provides in pertinent part, Every pleading, petition, written notice of motion, or other similar paper shall be signed by at least one attorney of record in the attorneys individual name, or, if the party is not represented by an attorney, shall be signed by the party.

Stanford also relied on the decision in Dixey v. Pollock (1857) 8 Cal. 570 (Dixey) for the proposition that a complaint not signed by the party or a California-licensed attorney is void. In Dixey, the California Supreme Court determined that a complaint signed by the plaintiffs attorney in fact, rather than his attorney at law, was not subscribed, either by the plaintiff or his attorney, and the suit must be considered as having been instituted by an entire stranger [to the plaintiff], and wholly without authority, and, therefore, void. (Dixey, supra, 8 Cal. at pp. 573-574.)

Based on these authorities, Stanford contended that Brians action was time-barred because a valid complaint had not been filed prior to the expiration of the section 335.1 limitations period on February 15, 2005.

C. The Motion for Leave to File a First Amended Complaint

On April 12, 2006, the day after Stanford filed its summary judgment motion, Brian brought an ex parte motion to file a first amended complaint. The proposed first amended complaint attached to the motion included several substantive changes and was signed by Brians attorney of record. The trial court ordered Brian to file a noticed motion for leave to file a first amended complaint and set a hearing date of May 16, 2006.

Thereafter, on April 14, 2006, Brian filed a motion for leave to file a first amended complaint. He argued that he should be allowed to amend the complaint to cure the signature defect pursuant to section 128.7, subdivision (a), which provides in pertinent part that [a]n unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party. Brian also argued that granting leave to file the first amended complaint would not prejudice Stanford and would be in the furtherance of justice.[3]

D. Opposition to the Motion for Leave to File a First Amended Complaint

In its opposition to the motion for leave to file a first amended complaint, Stanford asked the trial court to consider Stanfords summary judgment motion first, because the motion for leave to file a first amended complaint would be rendered moot if the summary judgment motion was granted. Stanford also accused Brian of attempting to circumvent summary judgment procedure by seeking leave to file a first amended complaint. Regarding the merits, Stanford argued, among other things, that there was no evidence to show that Brian was at any time unable to draft pleadings as a pro se litigant in a civil action.

E.The Order Granting Leave to File a First Amended Complaint

On May 31, 2006, the trial court issued a written order granting the motion for leave to file a first amended complaint. During the hearing on the motion, held on May 16, 2006, the trial court stated that its decision to grant the motion was largely based on the policy of the liberality of allowing people to amend their complaints even during the course of the trial.

F. Opposition to the Motion for Summary Judgment

Brian opposed Stanfords summary judgment motion on the ground that the motion was moot in light of the filing of the properly signed first amended complaint on May 26, 2006, which superseded the original complaint. Brian further contended that the signature defect in the original complaint could be cured by amendment because the California Supreme Court indicated in Dixey, supra, 8 Cal. at page 573, that a signature defect in a pleading is a mere irregularity that does not invalidate the complaint. Additionally, Brian asserted his lawsuit had been instituted by a proper party, and not a stranger to the suit, because he had been involved in both the creation and filing of the original complaint as stated in the declarations filed by himself and his father. Finally, Brian maintained that under the relation back doctrine his action was deemed to be filed on the day the original complaint was filed and was not barred by the section 335.1 two-year limitations period.

G. The Order Denying the Summary Judgment Motion

The trial court denied the summary judgment motion in a written order filed on July 6, 2006. Relying on the decisions in Dixey, supra, 8 Cal. 570 and Canadian Bank of Commerce v. Leale (1910) 14 Cal.App. 307, the trial court found that [Brian] presented competent evidence showing that he exercised control over the content of the complaint and the filing of the complaint. In these circumstances, the omission of [Brian]s signature from the complaint is but an irregularity that has now been cured by [Brians] filing of a first amended complaint through his attorney. The filing of the amended complaint relates back to the filing of the original complaint and is within the applicable limitations period.

H. Writ Proceedings

On July 26, 2006, Stanford filed a petition for writ of mandate in which it sought extraordinary relief from both the order granting Brians motion for leave to file a first amended complaint and the order denying Stanfords summary judgment motion. We requested further briefing and issued an order to show cause why the relief sought in the petition should not be granted. For the reasons explained below, we conclude that the petition for writ of mandate should be denied.

III. DISCUSSION

A. The Parties Contentions

In its writ petition, Stanford emphasizes its argument that section 446 and the Dixeydecision must be construed to establish a rule that a complaint not signed by the hand of the plaintiff or his or her California-licensed attorney is of no legal effect and void. Because Brians father, who is not a licensed California attorney, falsely signed the original complaint, Stanford argues that the complaint is void and the fact that Brian authorized his father to sign the complaint is immaterial. Additionally, Stanford asserts that Brians father violated Penal Code section 115[4] when he falsely signed the complaint in Brians name.

Stanford also challenges the trial courts determination that the properly signed first amended complaint related back to the improperly signed original complaint, contending that the relation back doctrine does not apply to a void complaint. Finally, Stanford argues that requiring properly signed complaints and voiding improperly signed ones, serves critically important public policies by firmly deterring each of the following: (1) injurious initiation of actions by non-parties and non-California licensed attorneys; (2) the injurious practice of persons using non-attorneys to initiate actions in their names and then disavowing those actions; and (3) expensive subsequent satellite litigation (of the he said/she said variety) on the difficult issue of whether the non-party and/or non-California licensed attorney was acting under the direction and/or for the benefit of a named plaintiff.

For these reasons, Stanford contends that the trial court should have heard the summary judgment first and granted the motion, then denied the motion for leave to file a first amended complaint as moot.

In opposition to the petition, Brian asserts the signature on the original complaint was valid under the amanuensis[5] rule, which is an argument that he did not expressly make in the trial court. The amanuensis rule provides that [a] signature to an instrument may be attached by . . . the hand of another, at the request of a party . . . . (Kadota Fig Assn. v. Case-Swayne Co. (1946) 73 Cal.App.2d 815, 819; Estate of Stephens, supra, 28 Cal.4th at pp. 670-671.) According to Brian, his father acted as his amanuensis when he subscribed Brians name to the original complaint at Brians direction and with his consent, and therefore the signature was legally effective under section 446.

Alternatively, Brian argues that even if the signature on the original complaint is deemed irregular, the trial court had the discretion to permit the filing of the first amended complain to cure the irregularity. Brian emphasizes the public policies that complaints are to be liberally construed, pursuant to section 452,[6]and disputes should be resolved on their merits. Finally, Brian points out that Penal Code section 115 has never been applied to the filing of a complaint. Brian therefore contends that the trial court correctly granted the motion for leave to file a first amended complaint and denied the motion for summary judgment.

We will first address the order granting the motion for leave to file a first amended complaint, because if that order is correct, the motion for summary judgment is rendered moot.

B. The Order Granting Leave to File a First Amended Complaint.

1. The Standard of Review

Our analysis is governed by the standard of review that applies to an order granting leave to amend a complaint. Leave to amend a complaint is . . . entrusted to the sound discretion of the trial court. . . . The exercise of that discretion will not be disturbed on appeal absent a clear showing of abuse. More importantly, the discretion to be exercised is that of the trial court, not that of the reviewing court. Thus, even if the reviewing court might have ruled otherwise in the first instance, the trial courts order will yet not be reversed unless, as a matter of law, it is not supported by the record. [Citations.] (Branick v. Downey Savings and Loan Assn. (2006) 39 Cal.4th 235, 242, italics omitted.)

However, where the resolution of an issue involves the interpretation of a statute, our review is independent of the trial court. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) We will therefore resolve all questions of statutory interpretation in the present case under the independent standard of review.

2. The General Rules Pertaining to Amendment of Pleadings

The governing rule is set forth in section 473, subdivision (a)(1), which provides in pertinent part: The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect . . . . (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760.) Additionally, section 576 provides, Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading . . . .

It is well established that California courts have a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where the authorization does not prejudice the substantial rights of others.[Citation.] Indeed, it is a rare case in which a court will be justified in refusing a party leave to amend his [or her] pleading so that he [or she] may properly present his [or her] case. [Citation.] (Douglas v. Superior Court (1989) 215 Cal.App.3d 155, 158.) Thus, absent a showing of prejudice to the adverse party, the rule of great liberality in allowing amendment of pleadings will prevail. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564.)

3. Amendment to Correct a Signature Defect

California appellate courts have held that a pleading may be amended for the purpose of curing a signature defect. In United Farm Workers of America v. Agricultural Labor Relations Bd. (1985) 37 Cal.3d 912, 915, the California Supreme Court ruled that failure to verify a pleading, where the verification is required by statute, is a mere defect curable by amendment. Moreover, [a]mendments may cure such a defect even when submitted after the statute of limitations has run on the time to file the original complaint, since verification of a complaint is not a jurisdictional requirement. (Ibid.; see also Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 574 [failure to verify a writ petition is a procedural defect that may be cured by amendment].)

Similarly, it has been held that an unsigned complaint is an irregularity, rather than a nullity, that may be cured by amendment. (Canadian Bank of Commerce v. Leale, supra, 14 Cal.App. at p. 309.) As stated in Hellings v. Wright (1916) 29 Cal.App. 649, 654-655, failure to sign a complaint is a mere matter of form and does not constitute a jurisdictional defect. Thus, a trial courts dismissal of an action due to the omission of counsels signature on a first amended complaint was reversed where it was shown that the defect was curable because counsel is willing (although belatedly) to sign and thereby attest to the arguable legal and evidentiary merit of the allegations. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768-769.)

In accordance with the above authorities, the appellate court in CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146, 1149-1150, rejected the defendants contention that a complaint filed by a corporation was incurably defective and therefore void under section 446 because it was subscribed by the corporations president, rather than the corporations attorney. The appellate court stated, we are persuaded it is more appropriate and just to treat a corporations failure to be represented by an attorney as a defect that may be corrected, on such terms as are just in the sound discretion of the court. First and foremost, this approach honors the cornerstone jurisprudential policies that, in furtherance of justice, complaints are to be liberally construed ( 452) and disputes should be resolved on their merits. [Citation.] (CLD Construction, Inc. v. City of San Ramon, supra, 120 Cal.App.4th at p. 1149.)

4. The Subscription Requirement

The threshold issue in the present case is Stanfords claim that the complaint filed on February 13, 2005, is incurably defective and not subject to amendment because the complaint was signed in the name of the plaintiff, Brian Umana, by the hand of his father, John Umana. Stanford distinguishes the decisions discussed above that allowed amendment to cure a signature defect on the ground that those cases involved an omitted signature, as opposed to (in Stanfords words) the falsely signed complaint at issue here.

To resolve Stanfords claim, we will review the requirement under California law that a complaint be signed. Two sections of the Code of Civil Procedure, section 446 and section 128.7, provide a signature requirement. We will discuss each section in turn.

a. Section 446

Section 446 provides in pertinent part, Every pleading shall be subscribed by the party or his or her attorney. The word subscribe is not defined in section 446 or in the Code of Civil Procedure. However, in 1897 the California Supreme Court defined to subscribe as to attest or give consent, or evidence knowledge, by underwriting usually (but not necessarily) the name of the subscriber. (California Canneries Co. v. Scatena (1897) 117 Cal. 447, 450.) More recently, our Supreme Court stated that [t]he word subscribe is defined as follows: To write (as ones name) underneath: sign (ones name) to a document . . . to sign with ones own hand. (Websters Third New Internat. Dict. (1961).) (People v. Pierce (1967) 66 Cal.2d 53, 59, fn. 5.)

Subsequent appellate court decisions have stated that to subscribe means to sign with ones own hand. (Blum v. Superior Court (2006) 141 Cal.App.4th 418, 427; Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1026; In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1222; People v. Egan (1983) 141 Cal.App.3d 798, 801, fn. 2.) Accordingly, the plain language of section 446 requires a complaint to be signed either by the hand of the plaintiff or by the hand of the plaintiffs attorney.[7]

However, section 446 does not expressly state the purpose of the subscription requirement or provide any remedy for a subscription defect. To construe section 446, we will follow the established principles of statutory interpretation.

[O]ur first task in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the Legislative purpose. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387.) The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutorysections relating to the same subject must be harmonized, both internally and with each other, to the extent possible. [Citations.] Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation. [Citation.] Both the legislative history of the statute and the wider historical circumstances of its enactment may be considered in ascertaining the legislative intent. (Id. at p. 1387; Matea v. Workers Comp. Appeals Bd. (2006) 144 Cal.App.4th 1435, 1444-1445.)

Story continued as Part II ..

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[1] Hereafter, we will refer to Brian Umana and John Umana by their first names for purposes of clarity and not out of disrespect. (See Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)

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

[3] The proposed first amended complaint also included several substantive changes and omitted Vaden Health Center as a defendant. These changes are not at issue in the present writ proceeding.

[4] Penal Code section 115, subdivision (a) provides, (a) Every person who knowingly procures or offers any false or forged instrument to be filed, registered, or recorded in any public office within this state, which instrument, if genuine, might be filed, registered, or recorded under any law of this state or of the United States, is guilty of a felony.

[5] The Oxford English Dictionary (2d ed. 1989) defines amanuensis as one who copies or writes from the dictation of another.  (Estate of Stephens (2002) 28 Cal.4th 665, 671, fn. 1.)

[6] Section 452 provides, PLEADINGS TO BE LIBERALLY CONSTRUED. In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.

[7] We observe that section 17 provides, in pertinent part, that the word subscription includes signature by mark: signature or subscription includes mark, when the person cannot write, his or her name being written near it by a person who writes his or her own name as a witness; provided, that when a signature is by mark it must, in order that the same may be acknowledged or may serve as the signature to any sworn statement, be witnessed by two persons who must subscribe their own names as witness thereto. Additionally, as Brian points out in his return, there is authority for the proposition that a printed signature satisfies the subscription requirement. (Hancock v. Bowman (1874) 49 Cal. 413, 413-414.)