IN THE COURT OF APPEALS OF THE STATE OF W DIVISION II JESSE POWERS, Appellant,

V. WB MOBILE SERVICES, INC., and JOHN DOE TWO, Respondents, And PREMIER COMMUNITIES, INC., a Washington Corporation; PACIFIC MOBILE STRUCTURES, INC., a Washington Corporation, Defendants. No. 42797 - 4 -II 

### FILED 

## i~OWU OP APPEALS DIVISION 11 2013 OCT 15 

### AVI S: 55 ON 

### TS F J SH GTO# d BY GEPU Y
PUBLISHED OPINION

BJORGEN, J. — Jesse Powers appeals the dismissal ofW.B. Mobile as a defendant in his 

### personal injury case based on the statute oflimitations. Powers argues that his claim was timely under RCW 4. 16. 170 and CR 15(c) because ( 1) he properly identified W. B. Mobile as " John Doe One" in his original complaint, (2) W.B. Mobile had actual notice of Powers' s claim, and 3) Powers' s service on the other defendants tolled the statute for 90 days. We hold that 

### Powers' s claim was timely brought under RCW 4.16. 170 and its implementing case law,but do

not reach whether his amended complaint relates back under CR 15( c). Accordingly, we reverse
and remand for trial on the merits.No. 42797 - 4 -II FACTS L INJURY Premier Communities Inc. and Pacific Mobile Structures Inc. entered into a contract for Pacific to provide numerous mobile structures at Premier' s residential construction sites. 

### Premier decided to relocate one ofthe mobile structures, along with an accompanying handicap ramp, from one construction projectto another. Unknown to Premier, Pacific subcontracted with 

### W.B. Mobileto,install the ramp afterthe structure was relocated. After spending a day installing the ramp, Russ Williams,the ownerand sole employee ofW.B. Mobile realizedthat he lacked sufficient materials to complete thejob. Williams strung yellow caution tape around the 

### incomplete ramp and "wire tied" some boards across the ramp. Clerk's Papers (CP) at 98. He then leftthe site to obtain additional ramp pieces forthe project from Pacific and did not return until the next morning 

### Premier also contracted with Awning Solutions to install an awning on the same 

### relocated mobile structure. Awning Solutions assigned its employee, Powers, to carry outthe 

### installation. On June 2, 2006, the ramp' s platform collapsed when Powers stepped forward on it while carrying an awning. Powers fell backward with the awning.

When Williams returned, he discovered that someone had torn offthe caution tape and 

### removed the boards he had placed across the incomplete ramp. He completed thejob, andthen 

### taped and boarded the ramp up again so that no one would use it before Pacific could backfill the area. Williams did not know that Powers had been there.

2No. 42797 - 4 -II
II. PROCEDURE 

### Powers filed suit on May 28, 2009, five days before expiration ofthe three - year statute of limitations, alleging that the collapse ofthe handicap access ramp caused him severe, permanent, and disabling injuries. Powers identified two defendants by name, Premier and Pacific, along
with two " John Doe" defendants.' CP at 185 -86. The complaint identified "John Doe One" as:

The Defendant, JOHN DOE CONSTRUCTION COMPANY is believed to be a 

### corporation or partnership whose true name and capacity is unknown to Plaintiff. That when the true name and capacity of JOHN DOE CONSTRUCTION is ascertained by Plaintiff,Plaintiffpray [sic] for leave to amend this complaint to so state reasons that JOHN DOE CONSTRUCTION COMPANY is believed to be 

### the builder ofthe handicap access ramp wherethe incident occurred. CP at 186. The complaint identified "John Doe Two" as the corporation or individual 

### responsible forthe maintenance and safety forthe premises where [Powers] sustained injuries involved in this lawsuit." CP at 186. Unknown to Powers, Pacific sent a letterto Williams in July 2009, attaching a copy of 

### the complaint and formallytendering Pacific's defense to W.B. Mobile. Williams forwarded the letterto W.B. Mobile' s insurer, which denied the tender. Before receiving Pacific' s letter, 

### Williams did not knowthat Powers had been injured orthat he had filed a lawsuit. Pacific answered Powers' s complaint in July 2009, alleging as affirmative defenses that 

### nonparties' negligence may have caused Powers' s injuries andthat Powers may have failed to join indispensable parties. In December 2009, Pacific filed a witness disclosure, stating that it might call an employee ofW.B. Mobile to testify attrial "aboutthe terms ofthe contract
CR 10(a)(2) provides: When the plaintiff is ignorant ofthe name ofthe defendant, it shall be so stated in 

### his pleading, and such defendant may be designated in any pleading or proceeding 

### by any name, and when his true name shall be discovered, the pleading or proceeding may be amended accordingly. 3No. 42797 - 4 -II between W.B. Mobile and Pacific Mobile as well as about who installed the ramp where [sic] the plaintiff alleges failed." CP at 337. Shortly thereafter, in January 2010, Powers testified in his deposition that his employer 

### told him that Premier had installed the handicap ramp. In response to Powers' s October 2010 

### discovery request,however, Pacific identified W.B. Mobile asthe installer ofthe ramp. Four months later, in February 2011, Powers filed an amended complaint, substituting W.B. Mobile for "John Doe One," 

### and statingthat he believed W.B. Mobile was "the builder and / or installer of [ the] handicap access.ramp" that caused his injury. CP at 378. W.B. Mobile moved to dismiss Powers' s claims against it under the statute of limitations. The trial court granted the motion and dismissed those claims with prejudice. The trial court also denied Powers' s motion for reconsideration. Powers appeals. 2 ANALYSIS I. STANDARD OF REVIEW 

### We reviewa summaryjudgment order de novo, performing the same inquiry as the trial

court. Smith v. Safeco Ins. Co., 150 Wn.2d 478, 483, 78 P. 3d 1274 (2003). Summaryjudgment 

### is appropriate if,viewing all facts and reasonable inferences inthe light most favorable tothe 

### nonmoving party,no genuine issue ofmaterial fact exists andthe moving party is entitled to judgment as a matter oflaw. Thun v. City ofBonneyLake, 164 Wn.App. 755, 759, 265 P.3d 207 2011), review denied, 173 Wn.2d 1035, 277 P.3d 669 (2012). II. RCW 4. 16. 170 

### 2 Powers, Premier, and Pacific stipulated that they had satisfactorily settled the complaint, and the court dismissed Powers' s claims against both parties. Neither Premier nor Pacific are parties to this appeal. 4No. 42797 - 4 -II Powers argues that under RCW 4. 16. 170, the time period for commencing a negligence action includes the 90 days after the plaintifffiles or serves the complaint. W.B. Mobile responds that RCW 4. 16. 170 does not extend the statute of limitations. We hold that Powers' s claim against WB Mobile was timely brought under RCW 4. 16. 170, which provides: 

### 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 of the complaint, the plaintiff shall 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. 

### Ifthe action is commenced by service on one or more of the defendants or 

### by publication, the plaintiff shall file the summons and complaint within ninety days from the date of service. 

### If following service, the 

### complaint is not so filed, or following filing, service is not so made, the action shall be deemed to not have been commenced for purposes oftolling the statute of limitations. In Sidis v. Brodie / Dohrmann, Inc., 117 Wn.2d 325, 329, 815 P.2d 781 ( 1991) ( quoting RCW 4. 16. 170), our Supreme Court read the phrase "` [ o] ne or more ofthe defendants "' from 

### this statute unambiguously to require that only one ofthe defendants need be served within the 90 - day period to toll the statute oflimitations against all defendants. The Sidis Court disapproved oflanguage in North St.Ass' n v. City ofOlympia, 96 Wn.2d 359, 635 P.2d 721 1981), to the extent that North St.Ass' n interpreted RCW 4. 16. 170 to require a petitioner to 

### serve all necessaryparties within the 90 - day period. Sidis, 117 Wn.2d at 331 -32. Further,the Sidis Court noted in dictum that although the issue ofunnamed defendants was not before it: Respondents assert there is no valid reason to distinguish between named and unnamed defendants for purposes of the tolling statute. That issue is not, however, part of this case.... We note, however, that in some cases, if identified with reasonable particularity, " John Doe" defendants may be appropriately named" for purposes of RCW 4. 16. 170. Sidis, 117 Wn.2d at 331.
ENo. 42797 - 4 -II
In Bresina v. Ace 

### Paving Co., Inc., 89 Wn.App. 277, 282, 948 P.2d 870 ( 1997), we 

### assumed the validity ofthe Sidis dictum: that a plaintiffcan toll the period for suing an unnamed 

### defendant by timely filing and serving anamed defendant, ifthe plaintiffidentifies the unnamed defendantwith "reasonable particularity" before the period forfiling suit expires. We noted that reasonable particularity" depends on avariety offactors, including the "nature ofthe plaintiff's opportunity to identify and accurately name the unnamed defendant." Bresina, 89 Wn.App. at 

### 282. Applying this principle,we held that Bresina had not met its requirements. The plaintiff in Bresina identified the unnamed defendant as " ABC CORPORATION,

whose true identity is unknown," while alleging in her complaint that "ABC CORPORATION may have the same responsibilities described in paragraph III above." Bresina, 89 Wn.App. at 279. The Bresina Court concluded that merely naming "ABC Corporation" afterthree years in which to ascertain the party' s true name, " did not involve a degree ofparticularity that was
reasonable." Bresina, 89 Wn.App. at 282. Therefore, "

### the trial court did not err by ruling that the statute of limitation was not tolled." Bresina, 89 Wn.App. at 282. 

### In contrastto the lack ofparticularity observed in Bresina, Powers' s original complaint 

### did notmerely name aJohn Doe without distinguishing him fromthe named defendants. Rather, Powers' s complaint specified that "John Doe One" referred to the " builder ofthe handicap

access ramp." 

### CP at 186. This ably described the role ofthe unnamed defendant as it related to the lawsuit and distinguished it from the named defendants. Under Bresina, Powers identified 

### the unnamed defendant with reasonable particularitybefore the three - year statute oflimitations expired.

0No. 42797 - 4 -II 

### The Sidis dictum, as applied by Bresina, also requires that at least one ofthe named defendants be served in atimely manner. In Bresina, 89 Wn.App. at 279, at least one ofthe named defendants was served within the three - year statute of limitations, which did not occur 

### here. However,Sidis required onlythat one ofthe defendants be served within the 90 - dayperiod to toll the statute against all defendants, consistently withthe requirement ofRCW4. 16. 170 that one or more ofthe defendants" be served within 90 days offiling. Sidis, 117 Wn.2d at 329 - 32. The Sidis dictum, and Bresina' s application ofit,must be read consistently with this core 

### holding ofSidis. Powers filed suit against Premier Communities, Pacific Mobile Structures, and John Doe 

### One, described as carrying outthe role ofW.B. Mobile,within the three - year statute of limitations. Powers served Premier Communities and Pacific Mobile Structures within 90 days 

### offiling. Under RCW 4. 16. 170, as interpreted by Sidis and Bresina,this tolled the statute of limitations against W.B. Mobile. III. CR 15( c) With our decision that Powers' s claim against W.B. Mobile was timely under RCW 4. 16. 170, we do not reach the separate question whether the amended complaint related back to the date ofthe initial complaint under CR 15(c).

7No. 42797 - 4 -II
IV. CONCLUSION We reverse and remand for trial on the merits.

4