Balon v. Drost11/1/1993
COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION TWO
No. A060232
1993.CA.41324 ; 25 Cal. Rptr. 2d 12; 20 Cal. App. 4th 483
Filed: November 1, 1993.
DEANNA BALON, PLAINTIFF AND APPELLANT,
v.
ETHEL DROST ET AL., DEFENDANTS AND RESPONDENTS.
Alameda County Superior Court. Super. Ct. No. 692381-3. Hon. James Lambden, Judge.
Alfred H. Buchta, and Buchta & Murphy, San Ramon, California for Plaintiff and Appellant.
Steven Sheriff Abern, Strickland & Haapala, Oakland, California, for Defendants and Respondents.
Kline, P.J.; Benson, J., Concurring. Phelan, J., Dissenting separately.
Kline
KLINE, P.J.:
INTRODUCTION
Appellant Deanna Balon appeals the trial court's order granting respondent Shawn G. Hurley's motion to quash service of summons and complaint. Appellant contends the trial court erred when it found appellant did not comply with Code of Civil Procedure section 474. We agree, and therefore shall reverse.
STATEMENT OF THE FACTS AND CASE
On December 28, 1990, appellant was involved in a traffic collision with a vehicle driven by Shawn Hurley (hereinafter "respondent"), but owned by Ethel Drost. Immediately after the accident, appellant and respondent went to a nearby doughnut shop to call the police and exchange information.
Once inside the doughnut shop, respondent called the police and his girlfriend. Soon after, respondent's girlfriend arrived; she saw respondent give appellant a piece of paper with respondent's name and other information on it. Appellant, however, felt dazed from the collision, and subsequently forgot about the slip of paper and respondent's identity.
Appellant filed a claim with the owner's insurance carrier, the California State Automobile Association (CSAA). Over the next several months, appellant attempted to work out a settlement with CSAA. Appellant never asked CSAA for the name of the vehicle's driver, and CSAA never offered this information.
On December 6, 1991, appellant retained an attorney. At their initial interview, appellant could not tell her attorney the name of the driver of the vehicle. On December 10, 1991, appellant's attorney requested a copy of the accident report from the Oakland Police Department. On December 26, 1991, two days before the one year statute of limitations under section 340, subdivision (3), was set to expire, appellant's attorney filed a complaint naming Ethel Drost and unknown "Does" as defendants.
Appellant's attorney did not receive the accident report until after the statute of limitations had run. After reading the accident report, he discovered respondent drove the vehicle in question. On January 9, 1992, the attorney filed an amendment to the complaint under section 474 naming respondent as a Doe defendant and declaring -- as the statute requires -- that appellant did not know respondent's identity when she filed the original complaint.
On January 12, 1992, appellant's attorney served Drost and respondent with a summons and complaint. On February 11, 1992, Drost filed an answer to the complaint. On October 15, 1992, respondent entered a special appearance to bring a motion to quash service of the summons and complaint.
On October 20, 1992, appellant's attorney contacted appellant seeking a writte
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