IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON NO. 68512-1-1 DERRICK GALLARD, Appellant, DIVISION ONE "3E- l'vi

- C2 COJOHN ANDERSON and DOLORES ANDERSON and the marital communitythereof, RAYMOND and ARDIS DUMETT and the marital communitythereof, THE RAYMONDARDIS DUMETT TRUST, DOES 1-25, Respondents. UNPUBLISHED OPINION

FILED: November 18, 2013 CO

O



### Leach, C.J.

—Where a plaintiffseeks to amend a complaintto add a new defendant after the expiration of the statute of limitations, RCW 4.16.170 does not toll the statute of limitations unless the requirements of CR 15(c) for relation 

### back ofthe amendment to the original complaint are satisfied. Because Derrick 

### Gallard's amended complaint does not satisfy the requirements of CR 15(c), we affirm the trial court's dismissal of his claims against defendants not named or 

### sufficiently described in his original complaint based on the expiration of the
statute oflimitations. 'fNO. 68512-1-1/2

FACTS On July 13, 2011, Derrick Gallard filed a personal injury suit inWhatcom County Superior Court against John and Dolores Anderson, their marital community, and "Does 1-25." Gallard alleged that he sustained debilitating injuries on July 14, 2008, while performing work at the direction of his landlords, the Andersons. The complaint does not attribute any particular action or status to "Does 1-25." On September 8, 2011, Gallard filed an amended complaint, including the following additional defendants: Raymond and Ardis Dumett, their marital community, and the Raymond-Ardis Dumett Trust. The amended complaint alleges that the Dumetts and the Dumett Trust (Dumetts) owned the property at which the injury occurred and approved and authorized the Andersons to employ Gallard to perform work at the property. Gallard served Ardis Dumettwith the amended complainton September 15, 2011. 

### On January 9, 2012, the Dumetts filed a motion to dismiss, claiming the statute of limitations barred Gallard's suit. In response, Gallard argued that he 

### satisfied the requirements of RCW 4.16.005 and RCW 4.16.170 by filing the initial complaint within three years ofthe incident at issue and serving a named defendant within 90 days. He claimed the amended complaint relates back to 

### the initial complaint under CR 15(c). Gallard also argued that fundamentalNO. 68512-1-1/3
fairness required the trial court to deny the Dumetts' motion. The trial court granted the Dumetts' motion to dismiss. Gallard appeals. ANALYSIS 

### Relying on RCW 4.16.170, Gallard argues that his filing of the initial complaint tolled the statute of limitations for 90 days, during which time he 

### properly commenced the suit against the Dumetts by amending the complaint to include the Dumetts and serving the Dumetts. RCW 4.16.170 provides in pertinent part: For the purpose of tolling any statute of limitations an action shall be deemed commenced when the complaint is filed or summons is served whichever occurs first. If service has not been had on the defendant prior to the filing ofthe complaint, the plaintiffshall cause one or more of the defendants to be served personally, or 

### commence service by publication within ninety days from the date of filing the complaint. 

### Contrary to Gallard's position, "[t]he time period provided for in RCW 

### 4.16.170 is not an extension of the statute oflimitations."1 Instead, the statute allows a plaintiff, 

### who has tentatively commenced an action against a party byfiling a complaint just before the pertinent statute of limitations runs, to perfectthe commencement ofthe action by serving that party, even after the statute runs, as long as it is within 90 days ofthe date the 

### complaintwasfiled.[2] 1Kiehnv. Nelsen's Tire Co., 45 Wn. App.291, 298, 724 P.2d 434 (1986). 

### 2Kiehn, 45Wn. App. at 298. -3-NO. 68512-1-1/4
By filing a complaint within the limitation period and serving at least one named defendantwithin 90 days of filing, a plaintifftolls the statute of limitations as to all named defendants.3 But RCW 4.16.170 does not allow tolling as to unnamed defendants who have not been identified with sufficient particularity before the expiration of the 

### statute oflimitations.4 Although a plaintiff may designate a defendant by any name when the defendant's true name is unknown,5 the substitution of a true
name for an unknown party constitutes an amendment substituting or changing 

### parties.6 Ifthis occurs, the amendment relates back to the date of the original 

### pleading onlywhen therequirements ofCR 15(c) aresatisfied.7 RCW4.16.170 does not "extend the time for naming all necessary parties; any such party not 

### named in the original timely complaint can only be added thereafter under CR 

### 15(c)."8 3 Sidis v. Brodie/Dohrmann, Inc., 117 Wn.2d 325, 329-31, 815 P.2d 781 (1991).

### 4Iwai v. State. 76Wn. App. 308, 312, 884 P.2d 936 (1994) (referencein complaintto "John Doe defendants allegedly 'negligentorotherwise responsible'" did not sufficiently identifyparticular defendant so as to justifytolling); Bresina v. Ace Paving Co., 89 Wn. App. 277, 282, 948 P.2d 870 (1997) (timelyfiling and 

### serving a named defendant will toll period for filing suit against unnamed defendant only if plaintiff identifies unnamed defendant with "reasonable particularity" before statute oflimitations expires). 

### 5CR 10(a)(2). 6Kiehn, 45Wn. App. at 295. 7Kiehn, 45Wn. App. at 295. 8Tellinqhuisen v. King County Council, 103 Wn.2d 221, 223, 691 P.2d 575 (1984). -4-NO. 68512-1-1/5

CR 15(c) provides: Relation Back ofAmendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in 

### the original pleading, the amendmentrelates back to the date of the original pleading. Anamendmentchanging the party againstwhom a claim is asserted relates back if the foregoing provision is 

### satisfied and, withinthe period provided by law for commencing the 

### action against him, the party to be brought in by amendment (1) has received such notice ofthe institution ofthe action that he will 

### not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the 

### identity of the proper party, the action would have been brought against him. 

### We review a trial court's ruling under CR 15(c) to determine whether the 

### requirements of the rule were satisfied.9 Courts liberally construe CR 15(c) in favor ofallowing relation back of an amendment adding or substituting a new 

## partywheretheopposingpartywillbeputtonodisadvantage.10 In addition to the requirements of CR 15(c), an amended complaint 

### changing oradding a defendantwill not relate backiftheoriginal omission of the 

### defendant resulted from "inexcusable neglect."11 Inexcusable neglect exists where a party is ascertainable upon reasonable investigation and no reason for

9Perrin v. Stensland, 158 Wn. App. 185, 193, 240 P.3d 1189(2010). 

### 10Perrin. 158Wn. App. at 194. 11 Haberman v. Wash. Pub. Power Supply Svst., 109Wn.2d 107, 174, 744 

### P.2d 1032, 750 P.2d 254 (1987) ("[l]n cases where leave to amend to add additional defendants has been sought, this court has clearly held that 

### inexcusable neglect alone is asufficientground fordenying the motion."). -5-NO. 68512-1-1/6


### theinitial failure to name theparty appears in therecord.12 Theparty relying on CR15(c) must demonstrate that anyneglectwasexcusable.13 Thefirst CR 15(c) factor is met here. The original and amended complaint arise out ofthe same incident inwhich Gallard sustained injuries while working at the identified property in exchange for a reduction in rent. While the question of prejudice may be arguable, as to the second and third factors, nothing in the record indicates that "within the applicable statute of limitations," the Dumetts received notice of the suit or knew or should have 

### knownthat theactionwould have beenbroughtagainstthem.14 Gallarddoes not argue or identify any evidence in the record to demonstrate that the Dumetts knew of the injuries he suffered on July 14, 2008, or the original complaint he filed on July 13, 2011, any time before he served them with the amended complaint on September 15, 2011. Because the second and third CR 15(c)



### 12 Haberman, 109 Wn.2d at 174. 

### 13 Perrin. 158Wn. App. at 197-99. 14 Teller v. APM Terminals Pac. Ltd.. 134 Wn. App. 696, 706, 142 P.3d 179 (2006) (three conditions of CR 15(c) are (1) claim arising from same conduct 

### in originaland amended pleading; (2) "within the applicable statute of limitations," new party has received notice ofthe action such that itwill not be prejudiced in 

### maintaining a defense on the merits; and (3) "within the applicable statute of limitations," new party knew or should have known that but for a mistake of identity, action would have been brought againstproperparty). -6-NO. 68512-1-1/7

factors were not met, the amended complaint cannot relate back to the timely 

### filed originalcomplaint.15 And Gallard fails to demonstrate that excusable neglect explains his omission of the Dumetts from the original complaint. Gallard admits that the public record discloses Dumetts' ownership of the property where the incident occurred. "[Fjailureto name a party in an original complaint is inexcusable where 

### theomittedparty's identityis amatterofpublicrecord."16 Gallard also asserts, as he did before the trial court, that fundamental fairness requires the denial of the Dumetts' request for dismissal of his claim. We willnot address this argument because Gallard cites no authority to support it.17 In sum, RCW 4.16.170 allowed Gallard to perfect the action he filed on July 13, 2011, within 90 days. Because the Dumetts were not named in the original complaint and the amendment naming the Dumetts did not relate back,



### 15 Kiehn, 45Wn. App. at 296 (where defendant to be added by amended complaint did not receive notice of suit within "the 3-year statute of limitations 

### period" and had no knowledge action would be brought against it, but for a mistake, amended pleading did not relate backto original complaint). 

### 16Teller. 134Wn. App. at 707. 

### 17 RAP 10.3(a)(6); McKee v. Am. Home Prods. Corp.. 113 Wn.2d 701, 705, 782 P.2d 1045 (1989). -7-NO. 68512-1-1/8
the Dumetts were not a party to the July 13, 2011, action. Therefore, the 90-day 

### timeperiodto serveprocess hasno applicationto theDumetts.18
Affirmed.

WE CONCUR:



### 18 Kiehn, 45 Wn. App. at 298. -8- 

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