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Woo v. Superior Court of San Diego County9/23/1999
CERTIFIED FOR PUBLICATION
Defendant Victor L. Woo filed this petition for writ of mandate challenging the trial court's denial of his motion for summary judgment in a medical malpractice action filed by plaintiff and real party in interest Soheilia Zarabi. Zarabi filed a response to the petition; we issued an order to show cause and heard oral argument from the parties.
This writ proceeding raises two issues: The timeliness of Woo's petition for writ of mandate; and whether Zarabi's amended complaint naming Woo as a defendant relates back to the date of filing her original complaint.
I.
TIMELINESS OF PETITION FOR WRIT OF MANDATE
On August 28, 1998, Woo filed a motion for summary judgment. On October 16, the trial court issued a telephonic ruling granting the motion. On October 30, the trial court heard oral argument on the motion and on November 12 issued a written ruling denying the motion. A degree of uncertainty pervades the procedure that followed. Woo asserts the court clerk served the November 12 written ruling by mail on November 23; Zarabi asserts the court clerk served the November 12 written ruling by mail on November 12. Each party has submitted a proof of service form that supports its position. Exacerbating the uncertainty, each party has submitted a different form of the written ruling claimed to have been served.
We have sought from Woo, Zarabi, another party to the action who is not a party to this writ proceeding and from the trial court explanations of the contradictory documentation submitted to us. Without detailing the various responses to our inquiries, it appears that a substitute trial court clerk on November 12 served by mail pages 1 and 3 of a draft written ruling not signed by the trial court together with the original proof of service. This mailing was received by Zarabi and another party to the action, but not by Woo. When the regular trial court clerk returned, she reviewed the file, which contained the trial court's final signed written ruling but no proof of service. On November 23, she served by mail on all parties the final signed written ruling. The superior court file contains the final written ruling signed by the trial court and the November 23 proof of service; it does not contain the documents submitted to us by Zarabi.
Under these circumstances, we find November 23, 1998, was the date of service by mail of the written notice of order denying Woo's motion for summary judgment. Only the November 23, 1998, service included the complete final written ruling signed by the trial Judge. Woo's petition for writ of mandate was filed on December 18, 1998. Code of Civil Procedure section 437c, subdivision (l) provides that a petition for writ of mandate to review the denial of a motion for summary judgment must be filed within 25 days following service by mail in California of written notice of the order. December 18, 1998, was not more than 25 days following November 23, 1998. Woo's petition for writ of mandate was therefore timely filed.
II.
RELATION BACK OF AMENDED COMPLAINT
A.
Factual and Procedural Background
On April 25, 1997, Zarabi filed a medical malpractice complaint that named as defendants Sharp SMH Cabrillo Hospital, Robert M. Barone, M.D., Joel S. Sigeti, M.D., and Does 1-50. She alleged in her complaint that in February 1996 Sigeti misinterpreted a mammogram of her left breast and inserted incorrectly a breast hookwire, the purpose of which was to identify for surgeon Barone the portion of her breast from which to obtain a biopsy specimen. She further alleged that in May 1996 Barone informed her that Sige
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