This is an action for personal injuries arising out of a motor vehicle accident. Plaintiff Laura Castro (“Plaintiff”) alleges that she was injured in a collision with a vehicle driven by defendant Jose Manuel (“Manuel”). At the time of the accident on December 17, 2010, Manuel showed Plaintiff his driver’s license and provided her with his insurance information, and Plaintiff wrote down his information on an envelope. (Defendant’s Separate Statement of Undisputed Facts (“DUF”), ¶¶ 1, 2, 6, 7.) Plaintiff declares that she subsequently forgot both the driver’s identity and the fact that she had written his information on the envelope, and came to believe that defendant Noreen Ang, who was identified by the driver’s insurer as its “insured,” was the driver. (Plaintiff’s Separate Statement of Undisputed Facts (“PUF”), ¶¶ 2-5 5, 13.) On December 7, 2012, Plaintiff filed her original complaint naming Ms. Ang and a number of Doe defendants as the drivers who caused her injuries. (DUF, ¶ 3; Complaint, Motor Vehicle Cause of Action.) The statute of limitations on Plaintiff’s claim ran on December 17, 2012. (DUF, ¶ 4.)

On June 7, 2013, Ms. Ang identified Manuel as the actual driver of the vehicle in response to discovery requests. (PUF, ¶ 12.) On July 9, about a month after receiving Ms. Ang’s discovery responses and about seven months after the statute of limitations had run, Plaintiff filed an amendment to her complaint naming Manuel as a Doe defendant. (DUF, ¶ 4.) Currently before the Court is Manuel’s motion for summary judgment on the ground that Plaintiff’s action against him is time-barred.

Manuel’s request for judicial notice of the complaint and Plaintiff’s amendment naming him as Doe 1 is GRANTED, although not as to the truth of any hearsay statements contained within these documents. (See Evid. Code § 452, subd. (d); Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [courts may take judicial notice of the existence of documents in a court file, including the truth of results reached, but not of the truth of hearsay statements therein].)

The motion for summary judgment is DENIED given that Plaintiff has satisfied her burden to establish a triable issue of fact concerning whether she was genuinely ignorant of Manuel’s identity at the time she filed her complaint. (See Code Civ. Proc., § 474.)

Plaintiff filed her original complaint on December 7, 2012, nearly two years after the accident at issue. Plaintiff declares that at this time, she believed that Ms. Ang was the driver of the car that struck her and had forgotten that the driver had provided a different name at the scene and that she had written it down on a scrap envelope. (Castro decl. at ¶¶ 5-7.) At her deposition on August 1, 2013, after receiving discovery responses that identified Manuel as the driver and amending her complaint to name him, Plaintiff testified that the driver who hit her was a male, and recalled that she had written his information down on an envelope from her car, which she still had at home. (See Ex. B to decl. of Brian J. McShane ISO Def.’s Mtn. for Summary Judgment, Castro depo. trans. at 30:10-20.) Plaintiff states that she still does not have an independent recollection of the name given to her by the driver of the car that struck her, and only remembered the envelope when she was questioned at her deposition. (Castro decl. at ¶ 6.) While Manuel views Plaintiff’s deposition testimony as a concession that she was not genuinely ignorant of his identity when she filed her complaint, the Court must accept Plaintiff’s declaration at this juncture given that it is not directly contradicted by her deposition testimony or anything else in the record. (See Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482 [“A summary judgment should not be based on tacit admissions or fragmentary and equivocal concessions, which are contradicted by other credible evidence.”], disapproved of on another ground by Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Ass’n (2013) 55 Cal.4th 1169, 1179 ; cf. Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 862 [declaration may be disregarded where admissions in earlier deposition “directly and unequivocally” contradict the later statements].)

There is a split of appellate authority on the issue of whether, despite having forgotten Manuel’s identity, Plaintiff was obligated to review “readily available” information to confirm that he was the driver. The leading cases are Woo v. Super. Ct. (Zarabi) (1999) 75 Cal.App.4th 169 (hereinafter, “Woo”), from the Fourth District, and Balon v. Drost (1993) 20 Cal.App.4th 483 (hereinafter, “Balon”), from the First District. Particularly in the context of this motion for summary judgment, the Court adopts the Balon approach, which does not require such diligence so long as the Plaintiff’s ignorance of the defendant’s identity is genuine. (See Auto Equity Sales, Inc. v. Super. Ct. (Hesenflow) (1962) 57 Cal.2d 450, 456 [“where there is more than one appellate court decision, and such appellate decisions are in conflict …, the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions”]; Woo v. Super. Ct., supra, 75 Cal.App.4th at p. 177 [“genuine ignorance” requirement mandates that a plaintiff’s oversight be real and not merely a subterfuge].)

The Woo standard requiring a plaintiff to investigate “readily available” sources is difficult to distinguish from one requiring a reasonable investigation in order to avoid negligence, which the courts agree is not required under section 474. The motivation for abuse of a more forgiving standard by plaintiffs is unclear in light of the fact that the complaint itself must still be filed within the statute of limitations, and as the California Supreme Court noted when it considered this issue in Irving v. Carpentier (1886) 70 Cal. 23, 26, the defendant substituted as a Doe suffers little prejudice by this procedure. On the other hand, the potential for abuse of a stricter standard by defendants is more troubling. If a Plaintiff is required to investigate “readily available” sources, a truly ignorant plaintiff could lose his or her day in court by suing the wrong defendant, even as the correct defendant knowingly failed to inform the plaintiff of his or her mistake.

Further, even if the Woo standard were held to apply, this case is distinguishable from Woo on its facts. The court in Woo did not give credence to the plaintiff’s testimony in light of her “conflicting and inconsistent positions permit[ting] the inference that her claimed ignorance of [the correct defendant’s] identity was not actual and in good faith.” (Woo, supra, 75 Cal.App.4th at p. 178.) Here, as discussed above, Plaintiff’s declaration is not directly contradicted by anything in the record. Plaintiff declares that she had forgotten about the envelope, no police report concerning the accident was available, and by the time she filed her complaint, Manuel’s name “had been supplanted with the name ‘Noreen Ang’” in her mind. (Castro decl. at ¶¶ 3, 5, 7.) Accepting these statements as true for purposes of the present motion, one must infer that Plaintiff had no reason to suspect that Ms. Ang was not the driver, and it would be improper to impose a duty to investigate further upon her under those circumstances even under the Woo standard. Further, the plaintiff in Woo did not correctly follow the section 474 amendment procedure and waited several months to name the correct defendant after he was identified. (Id. at pp. 174, 178-179.) Here, Plaintiff followed the correct procedure and named Manuel within a few weeks of learning his identity.

This case is factually closer to Balon, where the plaintiff sued a female insured, Ethel Drost, although the driver who injured her was a male, Shawn Hurley. (Balon, supra, 20 Cal.App.4th at p. 485.) The plaintiff received the driver’s contact information on a slip of paper on the day of the accident, but forgot both the driver’s identity and the fact that she had the paper. (Id. at p. 486.) She filed suit against Ms. Drost within the statute of limitations and amended the complaint after receiving the accident report identifying the driver a few weeks later. (Id.) The Balon court found this amendment was proper under section 474, holding that “a plaintiff has no duty to exercise reasonable diligence prior to filing the complaint to discover the defendant’s identity.” (Id. at p. 488, internal quotation omitted.) Here, similarly, Plaintiff had no duty to investigate that would negate her establishment of a triable issue of fact as to her genuine ignorance of Manuel’s identity. (See id. at p. 490 [amendment proper where plaintiff “could not recall [the driver’s] name, either due to her mental state at the time of the accident or her own forgetfulness;” such conduct “demonstrates carelessness, not a willful misuse of section 474”], italics added.)