Kerr-McGee Chemical Corp. v. Superior Court
Opinion
Opinion
Thomas T. Anderson and David R. Shane for Real Parties in Interest.
OPINION
BROWN (G.A.), P.J.
Petitioner, Kerr-McGee Chemical Corporation (Kerr-McGee) seeks a writ of mandate directing the superior court to quash service of summons and complaint on the ground that the court does not have jurisdiction over it because Kerr-McGee was not a party to the action. We issued an order to show cause and have heard oral arguments.
A summary of the facts shows that on January 19, 1981, real parties in interest (plaintiffs) filed a complaint for medical malpractice, wrongful death and property damage. The complaint named several defendants, including Trona Medical Clinic (TMC). There was no allegation in the complaint that TMC was a fictitious name nor was Kerr-McGee named as a defendant. No one was ever served with a copy of the complaint.
On December 20, 1983, plaintiffs filed a first amended complaint naming as defendants a hospital, several doctors, "Trona Medical Clinic" (TMC) and Does 1 through 30, inclusive. As to Does 1 through 30, appropriate fictitious name allegations were made pursuant to Code of Civil Procedure section 474. [1] Kerr-McGee was not named as a defendant. No…
dissent Opinion
Andreen, J.
The majority opinion has surface validity, but seems technical in the extreme. Had Kerr-McGee been served with summons as a Doe defendant, there would have been no problem. Yet although the summons gave it better notice of an asserted cause of action against it by serving it “under the fictitious name of: Trona Medical Clinic” (for it then knew in what capacity it was sued), it escapes a decision on the merits.
The majority acknowledges, as it must, that had the complaint contained fictitious name allegations regarding Trona Medical Clinic, the writ should be denied. It also admits that had the person who prepared the summons inserted Doe I after the words on the printed form: “Notice to the Person Served: You are served ... [1] b. As the person sued under the fictitious name of . . .,” the result would be a denial of the writ.
*602 I will establish that the trial court’s judgment denying the motion to quash is supportable on two theories: the amendment to the complaint was properly made and the summons, although defective, was sufficient to assert judicial power over Kerr-McGee. Any other holding results in the spectacle of the most populous state in the nation having…
lead Opinion
Brown, J.
Petitioner, Kerr-McGee Chemical Corporation (Kerr-McGee) seeks a writ of mandate directing the superior court to quash service of summons and complaint on the ground that the court does not have jurisdiction over it because Kerr-McGee was not a party to the action. We issued an order to show cause and have heard oral arguments.
A summary of the facts shows that on January 19, 1981, real parties in interest (plaintiffs) filed a complaint for medical malpractice, wrongful death and property damage. The complaint named several defendants, including Trona Medical Clinic (TMC). There was no allegation in the complaint that TMC was a fictitious name nor was Kerr-McGee named as a defendant. No one was ever served with a copy of the complaint.
On December 20, 1983, plaintiffs filed a first amended complaint naming as defendants a hospital, several doctors, “Trona Medical Clinic” (TMC) and Does 1 through 30, inclusive. As to Does 1 through 30, appropriate fictitious name allegations were made pursuant to Code of Civil Procedure section 474. 1 Kerr-McGee was not named as a defendant. No fictitious name allegations pursuant to section 474 were made regarding TMC.