1

Filed 9/18/20 Richardson v. Hwang CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

CHEVELLE RICHARDSON et al.,

Plaintiffs and Appellants,

v.

STEPHEN HSING HWANG et al.,

Defendants and Respondents.

 A158443

 (Alameda County

 Super. Ct. No. HG18895178)

Stephanie Hwang, while driving her parents’ car, rear-ended plaintiffs 

Chevelle Richardson and Nathaniel Jones. Plaintiffs filed suit, naming as 

defendants only Stephanie’s parents, Stephen and Shirley Hwang,1 and Does 

one through five. Plaintiffs alleged Shirley was the driver.

After the statute of limitations ran, plaintiffs filed a First Amended 

Complaint adding Stephanie as a defendant and alleging she was the driver, 

and retaining Shirley as a defendant and alleging she was a co-owner of the 

vehicle. Stephanie interposed a demurrer on statute of limitations grounds, 

which the trial court sustained with leave to amend. Plaintiffs then filed a 

Second Amended Complaint substituting Stephanie as Doe 1, and retaining 

1 We refer to the Hwangs by their first names to avoid confusion.
2

Shirley as a defendant. Stephanie again interposed a demurrer, which the 

court again sustained, this time without leave to amend. 

Plaintiffs challenge the sustaining of both demurrers, asserting their 

addition of Stephanie as either a named defendant or a Doe defendant 

“relate[d] back” to the date they filed their original complaint. We conclude 

the trial court did not err and affirm the dismissal of Stephanie.

BACKGROUND

After Stephanie rear-ended the vehicle Richardson was driving, and in 

which Jones was riding as a passenger, the parties exchanged information. 

The collision was at a low speed, and there was only slight damage to the two 

vehicles. 

Stephanie provided Jones with the registration and insurance 

certificate of the car she was driving, both of which showed her parents as the 

owners. She also provided Jones with her driver’s license. Jones made a 

handwritten note (on a piece of paper provided by Richardson2) of Stephanie’s 

parents’ names and took at least one photograph of Stephanie’s driver’s 

license. Richardson did not record any information. 

Four days before the two-year statute of limitations ran, plaintiffs filed 

the instant lawsuit, naming as defendants only Stephen and Shirley. 

Plaintiffs alleged two causes of action: (1) negligence against Shirley, 

Stephen, and Does one through five and (2) negligent entrustment against 

Stephen and Does three through five. Plaintiffs referred to Shirley as “Ms. 

Hwang” and alleged “MS HWANG was driving a Honda of unknown age and 

model (the ‘HONDA’), owned by MR. HWANG.” 

2 At oral argument plaintiff’s counsel stated subsequent discovery 

revealed Richardson had written the note, but acknowledged this appeal 

must be decided on the record before the trial court at the time. Nor, as we 

explain, does this slight factual difference matter to outcome here.
3

Three months later, Stephen and Shirley filed an answer, denying 

plaintiffs’ allegations and raising numerous affirmative defenses. 

Three months after that (and six months after the two-year statute of 

limitations ran), plaintiffs filed a motion for leave to amend pursuant to Code 

of Civil Procedure section 473, subdivision (a)(1),3 to add Stephanie as a 

defendant and allege she was liable as the driver. They claimed “the true 

name of the driver was not known at the time of the filing and [the driver] 

was sued under the erroneous belief that her name was Shirley.” 

However, Jones submitted a declaration stating, “I took a picture of the 

driver’s license given to me by the driver of one of the vehicles involved in the 

aforementioned accident,” but “[a]t the time this matter was filed, I did not 

recall the name that appeared on that license, but I believed that the driver 

of the Defendant’s vehicle was named Shirley Hwang based upon the photo 

attached hereto as Exhibit A.”4 Richardson also filed a declaration stating, 

3 All further statutory references are to the Code of Civil Procedure 

unless otherwise indicated. 

4 There are three copies of this exhibit, which is a copy of a cell phone 

photo, in the record. One of these copies is markedly clearer that the others, 

and one of the copies is of the same photo rotated 180 degrees. The clearest 

copy shows the photo is of Stephanie’s driver’s license laying atop Jones’s 

handwritten note of her parents’ names and contact information. The exhibit 

shows only about half of Stephanie’s driver’s license, the half with her photo. 

The exhibit nevertheless establishes, as the trial court would later observe , 

that plaintiffs had in hand Stephanie’s driver’s license, as well as the vehicle 

registration and insurance information showing the car was owned by her 

parents, Stephen and Shirley. 

Stephanie attached to her respondents’ brief a copy of another cell 

phone photo she described as follows: “The photograph identifie[d] where 

this photo was saved in [the] Dropbox, and it is photo #3. Behind Exhibit A 

was another photograph, and this photograph contains Stephanie’s entire 

name. Appellants’ Appendix, page 370 contains a defective Exhibit A. A 

clear picture of Exhibit A shows that Mr. Jones did in fact have Stephanie’s 
4

“To the best of my recollection, I was not aware of the name of the driver of 

the vehicle that hit me on March 4, 2016,” and “[a]t the time the complaint in 

this matter was filed, I did not know the name of the driver of the vehicle 

that hit me.” 

Stephanie opposed the motion, maintaining it was an improper attempt 

to substitute her as a Doe defendant after the statute of limitations ran. 

Reciting that plaintiffs expressly disavowed that they were seeking 

leave to substitute Stephanie as a Doe defendant, the trial court granted the 

motion for leave to amend. The trial court was cognizant of the limitations 

issues Stephanie had raised and made clear she would be able to challenge 

the timeliness of any amended complaint. 

Plaintiffs filed a first amended complaint, changing prior references to 

“Shirley” to “Stephanie” and alleging Stephanie was liable as the driver, and 

substituting Shirley for Doe 3 and alleging she was liable as a co-owner of the 

car. The court (the same judge who had allowed plaintiffs leave to file an 

amended complaint) sustained the demurrer, observing plaintiffs’ claim 

against Stephanie was time barred on the face of the amended pleading and 

plaintiffs had alleged no facts supporting tolling of the limitations period or 

equitable estoppel to raise it as a defense. Plaintiffs also had not sought to 

substitute Stephanie as a Doe defendant, nor had they made the requisite 

allegations of ignorance to her identity required to do so. The court did, 

full name on her driver’s license.” Stephanie did not submit this additional 

photo to the trial court, and it is well-established “[a] reviewing court must 

accept and is bound by the record before it [citations], cannot properly 

consider matters not in the record [citations], and will disregard statements 

of alleged facts in the briefs on appeal which are not contained in the record.”

(Weller v. Chavarria (1965) 233 Cal.App.2d 234, 246). We therefore disregard 

the attachment to Stephanie’s brief. 
5

however, grant plaintiffs leave to amend, commenting it is generally an abuse 

of discretion not to allow at least one opportunity to amend. 

In their second amended complaint, plaintiffs did what they had said 

they were not doing by way of their motion to amend—they substituted

Stephanie as Doe 1, alleging she was the driver of the car. 

Stephanie again demurred on statute of limitations grounds. 

In a detailed and lengthy ruling, which we recite in some detail, infra, 

the court (again, the same judge who had granted leave to amend) granted 

both parties’ requests for judicial notice of other pleadings in the court file 

and sustained the demurrer without leave to amend. The court additionally 

ordered “Plaintiffs’ Second Amended Complaint is DISMISSED WITH 

PREJUDICE as to Defendant Stephanie Hwang.”5 

DISCUSSION6

The First Amended Complaint: Adding Stephanie as a New Defendant 

Under Section 473 Subsection (a)(1)

Section 473, subsection (a)(1) states: “The court may, in furtherance of 

justice, and on any terms as may be proper, allow a party to amend any 

5 “All dismissals ordered by the court shall be in the form of a written 

order signed by the court and filed in the action and those orders when so 

filed shall constitute judgments and be effective for all purposes, and the 

clerk shall note those judgments in the register of actions in the case.”

(§ 581d; see Kahn v. Lasorda’s Dugout, Inc. (2003) 109 Cal.App.4th 1118, 

1120, fn. 1 [treating dismissal order as appealable judgment when order was 

in writing, signed by the court, and filed in the action]; see also Law Offices of 

Dixon R. Howell v. Valley (2005) 129 Cal.App.4th 1076, 1085 [appeal filed 

within 60 days of notice of entry of dismissal was timely and proper subject 

for appellate review]; Vernon v. Great Western Bank (1996) 51 Cal.App.4th 

1007, 1011, fn. 2 [“the order of dismissal was a final, appealable order”].)

6 Our standard of review is well-established: “On review from an order 

sustaining a demurrer, ‘we examine the complaint de novo to determine 

whether it alleges facts sufficient to state a cause of action under any legal 
6

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; and may, upon like terms, enlarge the time for answer or demurrer.” 

Generally, “an amended complaint that adds a new defendant does not 

relate back to the date of filing the original complaint and the statute of 

limitation is applied as of the date the amended complaint is filed, not the 

date the original complaint is filed.” (Woo v. Superior Court (1999) 

75 Cal.App.4th 169, 176 (Woo).)

However, “where an amendment does not add a ‘new’ defendant but 

simply corrects a misnomer by which an ‘old’ defendant was sued, case law 

recognizes an exception to the general rule of no relation back.” (Hawkins v. 

Pacific Coast Bldg. Products, Inc. (2004) 124 Cal.App.4th 1497, 1503 

(Hawkins).)

“The rationale behind allowing an exception to the general no-relationback rule when the plaintiff seeks to correct a mistake in the defendant’s 

name was explained in Mayberry v. Coca Cola Bottling Co. (1966) 

244 Cal.App.2d 350. . . : ‘[T]he general rule supplies no litmus to 

differentiate between erroneous description and change of identity. It ignores 

the difference between a plaintiff who has committed an excusable mistake 

and one who seeks a free option among potential liability targets after the 

statute has run; neither does it consider modern business practices, which 

theory, such facts being assumed true for this purpose. [Citations.]’ 

[Citation.] We may also consider matters that have been judicially noticed. 

[Citations.] ‘ “A demurrer based on a statute of limitations will not lie where 

the action may be, but is not necessarily, barred. [Citation.] In order for the 

bar. . . to be raised by demurrer, the defect must clearly and affirmatively 

appear on the face of the complaint; it is not enough that the complaint shows 

that the action may be barred.” ’ ” (Committee for Green Foothills v. Santa 

Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) 
7

often divide integrated business operations—if only for tax purposes—among 

a group of artificial legal entities. To accommodate the latter factors, an 

“exception to the general rule” has been formulated, which permits correction 

where the plaintiff has committed an excusable mistake attributable to dual 

entities with strikingly similar business names or to the use of fictitious 

names.’ (Id. at pp. 352–353 [allowing amendment of complaint after 

expiration of statute of limitations to change defendant’s name from Coca 

Cola Bottling Company of Sacramento, a partnership, to Coca Cola Bottling 

Company of Sacramento, Ltd. based on a finding his mistake was excusable 

because two entities had strikingly similar business names, were housed on 

the same premises, some personnel worked for both, and because the named 

defendant’s conduct had perpetuated the error ‘beyond the point of repair’]; 

see also Cuadros v. Superior Court (1992) 6 Cal.App.4th 671, 676 . . . 

[allowing amendment of complaint after statute had run to change 

defendants’ names from Budget Rent–A–Car Inc. and K.H. Group, doing 

business as Budget Rent A Car of Santa Monica, to Budget Rent a Car of 

Brentwood, based on findings all entities shared similar names, involved the 

same business, had the same owner and/or officer, used the same address, 

and defense counsel was estopped by their silence from objecting].)” 

(Hawkins, supra, 124 Cal.App.4th at p. 1503.)

Thus, “[w]hether a plaintiff may amend the complaint to change a 

party’s description or characterization ‘after the statute of limitations has run 

depends on whether the misdescription or mischaracterization is merely a 

misnomer or defect in the description or characterization, or whether it is a 

substitution or entire change of parties. In the former case an amendment 

will be allowed; in the later it will not be allowed.’ ” (Hawkins, supra, 

124 Cal.App.4th at p. 1503.)
8

The Hawkins court went on to conclude that “[b]y defectively describing 

‘Pacific Coast dba Basalite’ as Basalite Corporation, Hawkins’s original 

complaint merely misnamed the proper defendant.” (Hawkins, supra, 

124 Cal.App.4th at pp. 1504-1505.) Pacific Coast “admittedly conduct[ed] its 

business dealings in the name of Basalite,” and “[a]llowing Hawkins to 

substitute the correct name for his original misdescription of the only named 

defendant neither changes the nature of the action nor represents an ‘entire 

change of parties.’ ” (Id. at p. 1505.)

While plaintiffs here claim “[t]he name ‘Shirley Hwang’ was a simple 

misnomer for Stephanie Hwang, not an attempt to identify someone else,”

that is simply not the case.

As the trial court explained, Richardson and Jones filed a complaint 

against Stephen and Shirley, identifying Shirley as the driver and Stephen as 

the owner of the vehicle, and asserting two causes of action, the first for 

negligence and the second for negligent entrustment. In their first amended

complaint, plaintiffs added Stephanie as a defendant and alleged she was the 

driver. They also retained Shirley as a defendant and alleged that both she 

and her husband were liable as the owners of the vehicle. 

In short, as the trial court correctly recognized, Stephanie and Shirley 

are two entirely different individuals. Thus, adding Stephanie as a new 

defendant effected an “ ‘entire change’ ” in parties as to plaintiffs’ negligence 

claim and did not “simply correct[] a misnomer by which an ‘old’ defendant 

was sued.” (Hawkins, supra, 124 Cal.App.4th at p. 1503.) 

Plaintiffs’ reliance on Clarkson v. Moir (1921) 53 Cal.App.775, is 

misplaced. In that case, the plaintiff initially named “Lydia F. Moir” as the 

defendant. (Id. at p. 777.) However, after the statute of limitations ran, the 

plaintiff learned the defendant’s name was actually “Lydia M. Moir,” her 
9

mother being “Lydia F. Moir.” (Ibid.) The court held the amendment 

correcting the defendant’s middle initial related back to the date of the filing 

of the original complaint. “[T]he person sued and intended to be sued herein 

was and is the defendant, Lydia M. Moir.” (Ibid.) “[T]here was no 

substitution of one defendant for another, but that by mistake and 

inadvertence the middle initial of the defendant was erroneously inserted.” 

(Ibid.) 

Here, in contrast, there was not merely a correction of the name of the 

defendant. Rather, an entirely new individual was added as a defendant to 

the lawsuit, in which the originally named defendant also remained a party.

Similarly, plaintiffs’ reliance on Canifax v. Hercules Powder Co. (1965) 

237 Cal.App.2d 44 (Canifax), is misplaced. In Canifax, the plaintiffs 

identified the defendant, in both their original and amended complaints, as 

“ ‘Coast Equipment Company.’ ” (Id. at p. 56.) The correct name of the 

company was “Coast Manufacturing and Supply Company.” (Ibid.) In a 

second attempt at service, Coast Manufacturing was served as “ ‘Doe I’ ”, Doe 

I allegedly being liable only on the first cause of action. In its answer, 

however, Coast Manufacturing denied liability as to both the first and second 

causes of action. (Id. at p. 57.) After the statute of limitations ran, the 

manufacturer moved for summary judgement; the plaintiff, in turn, moved to 

amend to correct the company’s name. The trial court denied the motion to 

amend and granted summary judgment. (Ibid.) The Court of Appeal 

reversed, concluding the plaintiffs sought to correct a mere misnomer. (Id. at 

pp. 57–58.) 

“ ‘Such mistakes,’ ” said the court, “ ‘usually are of little consequence, 

representing mere clerical errors which are amendable before judgment. . . . 

Misnomers are simply errors in nomenclature.’ And . . . ‘[i]t is settled in 
10

California that a cause of action pleaded in a seasonably filed complaint is 

not barred by the statute of limitations merely because misnomer of the 

defendant is not corrected until after expiration of the statutory period.’ It is 

pointed out that difficulties arise when, as sometimes occurs, a plaintiff 

under the claim of a misnomer may try to substitute a new defendant.” 

(Canifax, supra, 237 Cal.App.2d at pp. 57–58.) But “ ‘[w]here full notice is 

given and a reasonably prudent person would realize that he is the party 

intended to be named as the defendant, the court will treat the mistake as 

harmless misnomer in order to promote substantive rights.’ [¶] Here there 

was obviously no covert attempt by plaintiffs to substitute a new party for a 

party sued under the guise of a mistake of nomenclature. Plaintiffs merely 

thought that Coast Manufacturing was named ‘Coast Equipment Company.’ ” 

(Id. at p. 58.)

Thus, Canifax is another example of confusion about a company’s name 

in a context where the company has already become involved in the lawsuit 

either directly, as was the case in Canifax, or indirectly through the naming 

of a subsidiary or related entity—in short, where an amendment fairly can be 

said to correct a mere misnomer. Here, plaintiffs’ amendment did far more 

than that—it added an entirely different person as a new defendant, and also 

retained and made new allegations against the existing defendant. 

A far more pertinent authority is Stephens v. Berry (1967) 

249 Cal.App.2d 474, 475 (Berry)—wherein the plaintiffs were involved in an 

accident involving three cars but named as a defendant the driver of only one 

of the vehicles, one Reynolds. Immediately after the accident, the three 

drivers spoke with one another, and the plaintiffs later communicated with 

the other driver, one Berry. (Id. at p. 475.) After the statute of limitations 

ran, the plaintiffs served Berry as a “Doe” defendant. When Berry moved to 
11

strike, plaintiffs sought leave to amend. (Ibid.) The trial court denied leave 

to amend and struck the complaint as against Berry. The Court of Appeal 

affirmed, rejecting plaintiffs’ assertion Berry had properly been substituted 

as a Doe defendant, as well as their claim that adding Berry in place of 

Reynolds merely corrected a misnomer as to the driver of the car that rearended them. (Id. at pp. 477–479.)

With respect to the purported misnomer, the appellate court explained: 

“Here, Reynolds has been a party to the action from the beginning. He was 

the driver of one of the cars involved in the accident out of which appellants’

cause of action arose, and conceivably could have had some responsibility for 

appellants’ injuries and damages. Appellants at first correctly alleged that 

Reynolds was the driver of the DeSoto automobile, but incorrectly alleged 

that it was the DeSoto that ran into them. But it was not until long after the 

statute of limitations had run that appellants sought to amend their 

complaint so as to substitute Berry as a defendant in place of Reynolds. It 

may be that appellants always intended to sue Berry and not Reynolds, but 

that is not what they did. They sued Reynolds and asked to substitute Berry 

only after the statute had run against their claim. The case is not one of 

misnomer, but rather one of failure to name the right party as a defendant, 

and the general rule, supported by the authorities cited, must govern.” 

(Berry, supra, 249 Cal.App.2d at pp. 478–479.)

So, too, here. Failure to name Stephanie was not a case “of misnomer, 

but rather one of failure to name the right party as a defendant.” (Berry, 

supra, 249 Cal.App.2d at p. 479; see Kerr-Mcgee Chemical Corp v. Superior 

Court (1984) 160 Cal.App.3d 594, 600–601 [because “Trona Medical Center” 

was not a fictitious defendant, replacing it with Kerr-McGee “would be the 

addition of a party to the action who was not a party before”]; Ingram v. 
12

Superior Court (1979) 98 Cal.App.3d 483, 490–492 [where the plaintiff had 

failed to name the driver of the car in which he was riding as a defendant and 

named only the other driver as a defendant, an amendment adding the 

omitted driver after the limitations period was not a correction of a 

misnomer; an “[a]mendment to correct a simple mistake in the naming of a 

party must be sharply distinguished from the question of whether the 

correctly named party is actually being joined in that action for the first time 

under the guise of correcting a mistake in form”].)

Accordingly, the trial court did not err in sustaining Stephanie’s 

demurrer to the plaintiffs’ first amended complaint.

B. The Second Amended Complaint: Substituting Stephanie for Doe 3 

Pursuant to Section 474

The use of fictitious Doe defendants in California arises from statute. 

When a plaintiff “is ignorant of the name of a defendant” and plaintiffs “state 

that fact in the complaint . . . such defendant may be designated in any 

pleading or proceeding by any name, and when his true name is discovered, 

the pleading or proceeding must be amended accordingly.” (§ 474.)

An amendment substituting a named defendant for a Doe defendant

can relate back to a timely initial pleading and thereby “defeat[ ] the bar of 

[a] statute of limitations,” so long as the requirements of section 474 are met. 

(Marasco v. Wadsworth (1978) 21 Cal.3d 82, 85; McOwen v. Grossman (2007) 

153 Cal.App.4th 937, 942–943 (McOwen); Woo, supra, 75 Cal.App.4th at 

p. 176 [“If the requirements of section 474 are satisfied, the amended 

complaint substituting a new defendant for a fictitious Doe defendant filed 

after the statute of limitations has expired is deemed filed as of the date the 

original complaint was filed.”].)
13

Thus, section 474 can be characterized as an exception to a statute of 

limitations defense. (Woo, supra, 75 Cal.App.4th at p. 176 [section 474 a 

“recognized exception” to rule that amendments adding new defendants do 

not relate back to earlier complaints].) 

The crucial question is the state of the plaintiff’s knowledge or his or 

her ability to know the relevant facts—was he or she truly ignorant of the 

identity of the party belatedly substituted for a Doe defendant? (See 

McClatchey v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 

368, 371–372; McOwen, supra, 153 Cal.App.4th at p. 942.) “ ‘In keeping with 

th[e] liberal interpretation of section 474, it is now well established that even 

though the plaintiff knows of the existence of the defendant sued by a 

fictitious name, and even though the plaintiff knows the defendant’s actual 

identity (that is, his name), the plaintiff is “ignorant” within the meaning of 

the statute if he lacks knowledge of that person’s connection with the case or 

with his injuries.’ ” (McOwen, at p. 942.)

While plaintiffs alleged in their second amended complaint they were 

“truly ignorant of the name of STEPHANIE HWANG, the true driver of the 

vehicle that hit her,” the trial court refused to accept this allegation as true

given their prior pleadings and submissions, of which the court took judicial 

notice. (See Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6 [“ ‘ “[A] complaint 

otherwise good on its face is subject to demurrer when facts judicially noticed

render it defective.” [Citation.]’ ”]; see also Dodd v. Citizens Bank of Costa 

Mesa (1990) 222 Cal.App.3d 1624, 1627 [“facts appearing in exhibits attached

to the complaint will also be accepted as true and, if contrary to the 

allegations in the pleading, will be given precedence”].)

The trial court pointed out the following: In their original complaint, 

plaintiffs had not alleged any uncertainty as to the identity of the driver, and 
14

while they had included Does 1 through 5, no Doe allegation pertained to the 

driver, rather they pertained to negligent entrustment or were boilerplate 

“ ‘agency’ ” allegations. In their motion for leave to amend, plaintiffs 

expressly disclaimed that they sought to add Stephanie as a defendant in 

place of any Doe defendant. In support of their motion to amend, they 

submitted Jones’s declaration wherein he acknowledged being given 

Stephanie’s driver’s license and taking a cell phone photo of her license atop 

his handwritten note based on the registration and insurance certificate 

showing Stephen and Shirley were the registered owners of the car. In their 

first amended complaint, plaintiffs did not add Stephanie as a defendant in 

place of any Doe defendant. Nor did they allege they were ignorant of 

Stephanie’s identity as the driver. 

Thus, as for plaintiffs’ new allegations in their second amended 

complaint that they were “ ‘truly ignorant’ ” of Stephanie’s identity as the 

driver, the court ruled these allegations were “without basis because 

Plaintiffs took a photograph of Defendant Stephanie Hwang’s driver’s license 

after the accident” and “Plaintiff Jones attached a photocopy of the 

photograph of the driver’s license to his declaration supporting the Motion for 

Leave to Amend.” The court recognized Richardson had not taken the cell 

photo, but pointed out she was at the scene, she and Jones were “represented 

by the same attorneys,” and they had “jointly filed all their pleadings and 

motion papers.” 

The court also rejected plaintiffs’ claim that “equitable considerations” 

warranted allowing them to belatedly add Stephanie as a defendant. “The 

Legislature,” said the court, “has expressed the policy of the People of the 

State of California that all personal injury claims, with specified exceptions, 

must be filed within two years of the date of injury. See [Code of Civil 
15

Procedure] § 335.1. For many years, the statute of limitations was actually 

only one year. Defendant Stephanie Hwang did everything that the law 

expects drivers to do when [an] accident occurs. She provided to Plaintiffs 

information regarding the ownership and registration of the 2006 Honda 

Civic, and she handed her driver’s license to Plaintiffs so that they could take 

a photograph of it for identification purposes. Plaintiffs have not alleged that 

Defendant, her parents, or her insurance company did or said anything to 

cause them to believe that she was not in fact the driver of the vehicle. 

Plaintiffs have not alleged that they misplaced any pertinent information 

when they retained their attorneys to draft the [original] Complaint. . . .” 

The court thus concluded that what was “equitable in this situation” was to 

“objectively” apply the statute of limitations and the Doe pleading statute. 

Given the entirety of the record, of which the trial court took judicial 

notice, the court did not err in concluding plaintiffs could not make the 

requisite showing of being “truly ignorant” that Stephanie was the driver of 

the Honda. 

As they did in the trial court, plaintiffs rely on Balon v. Drost (1993) 

20 Cal.App.4th 483 (Balon), to support their claim that they can use section 

474 to substitute Stephanie as a Doe defendant and thereby cut off a statute 

of limitations defense. In Balon, the plaintiff was involved in a traffic 

collision with another vehicle driven by one Shawn Hurley and owned by one 

Ethel Drost. (Id. at p. 485.) Immediately after the accident the plaintiff and 

driver Hurley exchanged personal identification information; Hurley wrote 

his name and some other information on a piece of paper, which the plaintiff, 

who was “dazed” at the time, subsequently forgot about. (Id. at pp. 485–486.)

The plaintiff contacted an attorney shortly before the statute of limitations 

was to expire but was unable to identify the driver, having forgotten about 
16

the piece of paper. (Id. at p. 486.) Her attorney filed suit against the owner 

Drost and also included a cause of action against fictitiously named Doe 

defendants. He also immediately ordered a copy of the police report. (Ibid.)

Within two weeks of filing suit, the plaintiff’s attorney received the police 

accident report and filed an amended complaint under section 474, 

substituting Hurley for a Doe. (Id. at pp. 486, 489.) The trial court granted 

Hurley’s motion to quash, ruling the plaintiff had ignored, rather than been 

uninformed, of the existence of Hurley, who could easily have been identified. 

(Ibid.) 

In a divided opinion, the appellate court reversed, equating actual 

forgetfulness with the requisite good faith and nonfeigned ignorance of the 

defendant’s identity. It also concluded the plaintiff had no obligation to make 

an effort to obtain readily accessible information to refresh her memory.

(Balon, supra, 20 Cal.App.4th at pp. 489–490.) Citing Irving v. Carpentier

(1886) 70 Cal. 23, the majority concluded that forgetfulness with no effort to 

refresh memory was the equivalent of negligent ignorance, and that negligent 

ignorance of the defendant’s identity did not preclude adding him as a 

defendant under section 474 after the statute of limitations expired. (Balon, 

at pp. 489–490.)

The trial court directly addressed Balon, pointing out the record in the 

instant case differs from that in Balon. Bolan, said the court, “is clearly 

distinguishable because the plaintiff in that case alleged she was truly 

ignorant of the identity of the driver of the other vehicle.” However, the 

record did not show that to be the case here. Indeed, one significant 

distinction is that plaintiffs made no claim of being “dazed” at the time of the 

accident and of forgetting about Jones’s handwritten notes and cell phone 

photos. Moreover, the procedural history of the case demonstrates plaintiffs 
17

sought to substitute Stephanie as a Doe defendant under section 474 months 

after the limitations ran and only as a last resort, after they had disclaimed 

use of the Doe procedure in asking for leave to amend. 

Woo is a more relevant authority. In that case, the plaintiff filed a 

medical malpractice action against several defendants, including a Dr. Sigeti 

who allegedly performed a procedure preparatory to a biopsy. (Woo, supra, 

75 Cal.App.4th at p. 173.) However, after Sigeti’s counsel reviewed medical 

records produced by the plaintiff, it became apparent another doctor, Dr. 

Woo, had performed the procedure, and counsel so advised the plaintiffs. (Id.

at pp. 173–174.) After Sigeti was dismissed and the limitations period ran, 

the plaintiff filed an amended complaint adding Woo as a defendant. (Id. at 

p. 174.) Woo moved for summary judgment, and after the trial court denied 

the motion (id. at pp.174–175), petitioned for a writ of mandate (id. a p. 172), 

which the Court of Appeal granted. (Id. at 180–181.) 

As the appellate court explained, “A further and nonprocedural 

requirement for application of the section 474 relation-back doctrine is that 

Zarabi must have been genuinely ignorant of Woo’s identity at the time she 

filed her original complaint. (Optical Surplus, Inc. v. Superior Court (1991) 

228 Cal.App.3d 776, 783-784 . . . ; Hazel v. Hewlett (1988) 201 Cal.App.3d 

1458, 1464-1466 . . . ; Weil & Brown [Cal. Practice Guide: Civil Procedure 

Before Trail (The Rutter Group 1999)] ¶¶ 6:748, 6:752, at pp. 6-148.1, 6-149.)

The omission of the defendant’s identity in the original complaint must be 

real and not merely a subterfuge for avoiding the requirements of section 

474. (Ingram v. Superior Court, supra, 98 Cal.App.3d 483, 491.) 

Furthermore, if the identity ignorance requirement of section 474 is not met, 

a new defendant may not be added after the statute of limitations has 

expired even if the new defendant cannot establish prejudice resulting from 
18

the delay. (Hazel v. Hewlett, supra, at p. 1466.)” (Woo, supra, 75 Cal.App.4th

at p. 177.)

The court recognized that “if the plaintiff is actually ignorant of the 

defendant’s identity, the section 474 relation-back doctrine applies even if 

that ignorance is the result of the plaintiff’s negligence. (Grinnell Fire 

Protection Systems Co. v. American Sav. & Loan Assn. (1986) 183 Cal.App.3d 

352, 359 . . . ; Munoz v. Purdy (1979) 91 Cal.App.3d 942, 947 . . . ; Joslin v. 

H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 376. . . .)” (Woo, supra, 

75 Cal.App.4th at p. 177.) However, it was clear from the record the plaintiff 

had been apprised of the name of the doctor who performed the procedure at 

issue prior to the time she filed her original complaint, and the court rejected 

her varying and “inconsistent” claims that at the time she filed her complaint 

she had forgotten Dr. Woo performed the procedure, and she only later 

learned Woo had performed the procedure. (Id. at pp. 177–179.) 

The court perceived “two significant differences between Balon and the 

instant case. In Balon the complaint amendment adding a new defendant 

was made without delay after an immediate effort by the plaintiff’s attorney 

to determine the identity of the new defendant, and the complaint 

amendment was correctly made in accordance with the section 474 procedure. 

In the instant case [the plaintiff] made no effort to promptly identify Woo and 

did not correctly follow the section 474 amendment procedure. These 

differences undermine [the plaintiff’s] contention she acted in good faith to 

comply with section 474.” (Woo, supra, 75 Cal.App.4th at p. 179.)

The Woo court went on to question the breadth of Balon’s reasoning. 

“Balon establishes an undesirable rule for the ‘I knew but forgot’ assertion 

under section 474. We find Justice Phelan’s dissent in Balon persuasive. 

Justice Phelan rejected the equation of a claimed memory lapse with the 
19

actual ignorance requirement of section 474. (See Balon v. Drost, supra, 

20 Cal.App.4th at pp. 492, 493 (dis. opn. of Phelan, J.).) We agree with 

Justice Phelan that when the plaintiff had actual knowledge of the 

defendant’s identity prior to filing a complaint, but has forgotten the 

defendant’s identity at the time of filing the complaint, the plaintiff must 

review readily available information that discloses the defendant’s identity to 

invoke the section 474 relation-back doctrine; otherwise, the plaintiff is not in 

good faith using section 474. A requirement of reviewing readily available 

information is not a significant burden, is not inconsistent with the cases that 

impose no duty of inquiry on plaintiffs who never knew the defendant’s 

identity, and assures the good faith of plaintiffs who seek to use the section 

474 relation-back doctrine.” (Woo, supra, 75 Cal.App.4th at pp. 179–180.) 

“The Balon rule permits plaintiffs to assert they forgot the defendant’s 

identity even though it is uncontested they knew the identity at an earlier 

time, and relieves them of any obligation to refresh their memory with 

readily available information. The result is to excise from section 474 the 

importance of actual ignorance of the name of the defendant, because by mere 

assertion of memory loss a plaintiff would always be considered ignorant of 

the name of the defendant. We perceive the better rule to be that if the 

plaintiff knows the defendant’s identity and then forgets it at the time the 

complaint is filed, to use the section 474 relation-back doctrine to avoid the 

bar of the statute of limitations the plaintiff must have at least reviewed 

readily available information likely to refresh his or her memory. If the 

defendant cannot be identified from readily available information, then 

section 474 is available; if the defendant can be identified from the readily 

available information, then section 474 is unavailable. This rule retains 

meaning to the actual ignorance requirement of section 474. In Balon, the 
20

readily available information was contained in the public accident report. In 

the instant case, the readily available information was contained in [the 

plaintiff’s] medical records in her possession from which she obtained Sigeti’s 

name and in which Woo’s identity was also set forth. In our view, [plaintiff]

did not avail herself of readily available information that would have 

refreshed her recollection of Woo’s identity; and therefore she is not entitled 

to use section 474 to amend her complaint after the statute of limitations has 

run. Under these circumstances, ‘. . . there was no good faith, bona fide 

ignorance as required by section 474.’ ” (Woo, supra, 75 Cal.App.4th at 

p. 180, quoting Balon, supra, 20 Cal.App.4th at p. 494 (dis. opn. of Phelan, 

J.).)

Because the record before us also differs from that in Balon, that case 

is, as the trial court concluded, distinguishable. We therefore need not choose 

between the view expressed in Balon and that expressed in Woo, although we 

share the concerns stated in Woo. 

In sum, we conclude the trial court also did not err in ruling plaintiffs’ 

addition of Stephanie as a Doe defendant did not relate back to the filing of 

the original complaint.

DISPOSITION

The judgment of dismissal is affirmed. Costs on appeal to respondent.
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_________________________

Banke, J.

We concur:

_________________________

Humes, P.J.

_________________________

Margulies, J.

A158443, Richardson et al v. Hwang et al.