 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Fuller v. Tucker11/17/2000
California, supra, 52 Cal.App.4th at p. 454; Estate of Nichols, supra, 177 Cal.App.3d at p. 1090.)
The trial court also found that Dr. Tucker's name appears unambiguously in Fuller's medical and surgical reports. However, there was no evidence that Fuller had these records. The trial court additionally found that Fuller's records were readily available to Fuller and her attorneys prior to the expiration of the statute of limitations. Since Fuller had no duty to investigate, this is irrelevant.
In order for Dr. Tucker to successfully argue that the Doe amendment was untimely, he had to prove that even if Fuller knew his identity, Fuller also knew facts giving rise to a cause of action against Dr. Tucker. Because the trial court mistakenly utilized the incorrect legal test, the trial court failed to specifically address this pivotal issue. Further, numerous facts suggest that Fuller was ignorant of the cause of her injuries and any connection to Dr. Tucker. (See e.g. Mishalow v. Horwald (1964) 231 Cal.App.2d 517 [Doe amendment timely against anesthesiologist even though plaintiffs knew anesthesiologist's identity as plaintiffs were ignorant of facts giving rise to cause of action against him and did not know he had been negligent].)
To summarize, the trial court applied an erroneous legal standard and made incomplete and erroneous factual findings. These errors are prejudicial, requiring reversal. It is reasonably probable that in the absence of these errors, a result more favorable to Fuller would result.
DISPOSITION
The judgment must be reversed. Costs on appeal awarded to appellant.
CERTIFIED FOR PUBLICATION
ALDRICH, J.
We concur:
CROSKEY, Acting P. J.
KITCHING, J.
Page 1 2 3 4 5 6 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|