Case Name: Teresa Hershey, et al. v. Intuitive Surgical, Inc., et al.
Case No.: 2013-1-CV-254274

Plaintiff Teresa Hershey and her husband, plaintiff Albert Hershey, bring this action for products liability and related claims against defendant Intuitive Surgical, Inc., the manufacturer of the da Vinci surgical robot used in Ms. Hershey’s hysterectomy.

Before the Court is defendant’s motion for summary judgment on the grounds that the action is time-barred and barred by plaintiffs’ settlement of a prior lawsuit, Hershey v. Desert Regional Medical Center, et al. (Super. Ct. Riverside County, Case No. RIC 1103651) (hereinafter, the “Desert Regional” action). Plaintiffs oppose defendant’s motion, arguing that the delayed discovery rule applies to their claims and Intuitive should be estopped from asserting this defense because it concealed the robot’s dangers. They contend that the release in Desert Regional was not intended to encompass their claims against Intuitive and does not bar these claims.

I. Factual and Procedural Background

In July of 2010, Ms. Hershey consulted with Dr. Lisa Bodon, an OBGYN, presenting with pelvic pain, painful menstrual periods, and abnormal pap smears indicating cell carcinoma. (Complaint, ¶ 27.) Dr. Bodon recommended a da Vinci robot-assisted hysterectomy, representing that this was the safest and most effective method for performing hysterectomies, was less invasive, provided a rapid recovery time, and was perfectly tailored to Ms. Hershey’s active lifestyle. (Id. at ¶ 28.)

On August 31, 2010, Ms. Hershey underwent a da Vinci-assisted hysterectomy at Desert Regional Medical Center in Palm Springs, California. (Complaint, ¶ 29.) After discharge, she experienced symptoms from what was later determined to be postoperative small bowel perforation with intra-abdominal sepsis. (Ibid.) She was forced to undergo multiple invasive procedures over the next year, leaving her permanently scarred and deformed. (Id. at ¶ 30.) She nearly died from her injuries. (Ibid.)

In the period following her surgery, Ms. Hershey did not believe that the da Vinci robotic hysterectomy was the cause of the complications she experienced. (Complaint, ¶ 31.) In February of 2011, plaintiffs filed the Desert Regional action against Ms. Hershey’s medical providers. They settled with the last defendant in that action in November of 2012. According to her declaration filed in opposition to the present motion, Ms. Hershey read a report critical of the da Vinci on “ABC7Chicago.com” in March of 2012, while Desert Regional was ongoing. At this time, she began to suspect the device was to blame for her injuries. She raised this issue with her malpractice attorneys, but they advised her there was an inadequate factual basis to bring Intuitive into the Desert Regional action at the time, and plaintiffs had two years to file a separate action against Intuitive if they chose.

Plaintiffs retained new counsel and filed the present action on October 8, 2013, asserting claims for (1) products liability, (2) negligence, (3) breach of express warranty, (4) breach of implied warranty, (5) unjust enrichment, (6) loss of consortium, and (7) lack of informed consent.

II. Legal Standard for Defendant Seeking Summary Judgment

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; see also Code Civ. Proc., § 437c, subd. (p)(2).)

This standard provides for a shifting burden of production; that is, the burden to make a prima facie showing of evidence sufficient to support the position of the party in question. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) The burden of persuasion remains with the moving party and is shaped by the ultimate burden of proof at trial. (Ibid.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Ibid.) The opposing party must produce substantial responsive evidence that would support such a finding: evidence that gives rise to no more than speculation is insufficient. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163.)

The traditional method for a defendant to meet its burden on summary judgment is by “negat[ing] a necessary element of the plaintiff’s case” or establishing a defense with its own evidence. (Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 334.) The defendant may also demonstrate that an essential element of plaintiff’s claim cannot be established by “present[ing] evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 855.)

Summary judgment “is a drastic remedy eliminating trial and therefore the moving party’s declarations must be strictly construed and the opposing party’s declaration liberally construed.” (Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 717; see also Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64 [the evidence is viewed in the light most favorable to the opposing plaintiff; the court must “liberally construe plaintiff’s evidentiary submissions and strictly scrutinize defendant’s own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff’s favor”].) Summary judgment may not be granted by the court based on inferences reasonably deducible from the papers submitted, if such inferences are contradicted by other inferences which raise a triable issue of fact. (Hepp v. Lockheed-California Co., supra, 86 Cal.App.3d at pp. 717-718.)

III. Evidentiary Issues

Intuitive’s unopposed request for judicial notice of filings in the Desert Regional action is GRANTED. (Evid. Code, § 452, subd. (d).)

With its reply papers, Intuitive filed a number of objections to plaintiffs’ evidence submitted in opposition to Intuitive’s motion. Most notably, defendant objects to the entire Declaration of Teresa Hershey (objection no. 1) because the declaration fails to indicate “that it is certified or declared by [Ms. Hershey] to be true under penalty of perjury” as required by the Code of Civil Procedure. (Code Civ. Proc., § 2015.5.) As urged by Intuitive, the failure to comply with this requirement renders Ms. Hershey’s declaration invalid. (See Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 610-613 [each of the section 2015.5 requirements is mandatory].) However, on July 25, 2017—almost three days before the hearing on this matter—plaintiffs filed a corrected declaration by Ms. Hershey that includes the required language, along with a declaration by counsel explaining that this language was omitted in error. The Court intends to accept this corrected declaration, subject to defendant’s right to challenge it at the hearing. (See Weiss v. Chevron, U.S.A., Inc. (1988) 204 Cal.App.3d 1094, 1098-1099 [in summary judgment proceedings, the trial court has discretion to permit the filing of affidavits in addition to those specifically mentioned in the statute; trial court properly admitted new evidence on reply where opposing party had the opportunity to respond].) The Court’s tentative ruling will address the merits of plaintiffs’ opposition on the assumption that Ms. Hershey’s declaration will ultimately be admitted into evidence.

Turning to defendant’s remaining objections, objection nos. 2-18 are OVERRULED. The challenged statements in plaintiffs’ declarations are relevant to their investigation and knowledge of their claims and are not offered for their truth. Finally, the Court will not rule on objection nos. 19-31, since these objections are immaterial to its ruling below. (See Code Civ. Proc., § 437c, subd. (q) [“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.”].)

IV. Statute of Limitations

The parties agree that all of plaintiffs’ claims are governed by the two-year statute of limitations for personal injury claims. (See Code Civ. Proc., § 335.1; Zamudio-Soto v. Bayer Healthcare Pharmaceuticals Inc. (N.D. Cal., Jan. 27, 2017, No. 15-CV-00209-LHK) 2017 WL 386375, at *5 [California’s two-year statute for personal injury claims applied to claims for negligence, design defect, failure to warn, strict liability, breach of implied warranty, breach of express warranty, negligent misrepresentation, fraudulent misrepresentation, fraud by suppression and concealment, and loss of consortium arising from personal injury from medical device].)

Further, there is no dispute that the two-year limitations period ran out no later than September 2012, before plaintiffs filed their lawsuit. (See Defendant’s Separate Statement of Undisputed Facts (“DSUMF”), nos. 13-20; Plaintiffs’ Opp. thereto [undisputed that plaintiff’s bowel was pierced during her surgery using the da Vinci robot and she and her doctors became aware of the injury within a few weeks].) Consequently, it is plaintiffs’ burden to show that there are triable issues of material fact regarding the applicability of the delayed discovery rule or equitable tolling/estoppel. (See Gryczman v. 4550 Pico Partners, Ltd. (2003) 107 Cal.App.4th 1, 6-7; Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 174.)

A. Delayed Discovery

Plaintiffs argue that the delayed discovery rule applies because, while they quickly became aware that something had gone wrong with Ms. Hershey’s August 2010 hysterectomy and suspected medical malpractice, they had no reason to suspect that Ms. Hershey was injured by the da Vinci robot until she read an article about a similar case in March of 2012.

1. Legal Standard

“Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110.) “A plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her.” (Id. at p. 109.)

A leading California Supreme Court case on delayed discovery, Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, addressed circumstances similar to those at issue in this case. In Fox, the plaintiff experienced immediate complications from her gastric bypass surgery and sued her healthcare providers for medical malpractice. (Id. at pp. 803-804.) When she deposed her doctor—after the limitations period on a products liability claim had expired—he indicated for the first time that her injuries may have resulted from the use of a stapler manufactured by Ethicon. (Id. at p. 804.) Before the deposition, plaintiff had been unaware that her surgery involved the use of a stapler or similar device. (Id. at p. 805.) Plaintiff amended her complaint to add Ethicon as a defendant, and the Supreme Court held that under these circumstances, the complaint would survive demurrer:
It is … consistent with our prior applications of the discovery rule to delay accrual of a products liability cause of action even when a related medical malpractice claim has already accrued, unless the plaintiff has reason to suspect that his or her injury resulted from a defective product. More broadly stated, if a plaintiff’s reasonable and diligent investigation discloses only one kind of wrongdoing when the injury was actually caused by tortious conduct of a wholly different sort, the discovery rule postpones accrual of the statute of limitations on the newly discovered claim.
(At p. 813.)

2. Plaintiffs’ Evidentiary Showing

In support of their opposition, plaintiffs submit a declaration by Ms. Hershey in which she describes her investigation into the cause of her injuries and indicates that she first suspected the da Vinci was to blame in March of 2012. Ms. Hershey declares that in the days following her initial surgery, she repeatedly asked Dr. Bodon and other hospital staff what caused her injuries as they performed a number of tests, but they would not tell her, indicated they did not know, or opined that her pain might be the result of “CO2 gas” in her abdomen. (Decl. of Teresa Hershey ISO Opp., ¶¶ 3-7.) On September 10, 2010, Dr. Bodon performed an exploratory laparotomy and discovered that Ms. Hershey’s bowel had been pierced during her hysterectomy. (Id. at ¶ 6.) Dr. Maria Lombardo, D.O., performed an open surgery to repair the bowel. (Id. at ¶ 7.) When Ms. Hershey awoke from anesthesia after this procedure, she was visited by Dr. Lombardo and Dr. Bodon, who indicated that Ms. Hershey’s bowel had been pierced but that the open surgery had repaired it. (Ibid.) Dr. Bodon was crying and told Ms. Hershey that she did not know what could have caused her injury and that such an injury had never before happened to a patient of hers during a hysterectomy. (Ibid.)

During the following week, the area around Ms. Hershey’s surgical wound became distended and began to leak stool, and Ms. Hershey experienced vaginal bleeding. (Decl. of Teresa Hershey, ¶ 8.) At this point, she sought a second opinion from Peter Jamieson, M.D., who performed a second exploratory laparotomy on September 20, 2010. (Id. at ¶ 9.) The next day, Ms. Hershey’s husband and mother asked Dr. Jamieson what caused Ms. Hershey’s bowel injuries and whether they were caused by Dr. Bodon’s or Dr. Lombardo’s negligence. (Decl. of Albert Hershey ISO Opp., ¶ 4.) Dr. Jamieson stated that he did not know what caused the bowel injuries and told Mr. Hershey and his mother-in-law that “we’ll worry about that later” and it was “not his job” to be concerned about that matter at the time. (Ibid.) Despite these and subsequent inquiries, Dr. Jamieson never suggested that the da Vinci surgical robot was dangerous, defective, or could have caused Ms. Hershey’s injuries. (Id. at ¶ 5.)

On February 28, 2011, the Hersheys filed a medical malpractice action against Desert Regional Medical Center, Dr. Bodon, and Dr. Lombardo in the Superior Court of California, County of Riverside. (Decl. of Teresa Hershey, ¶ 11.) On March 4, 2012, while the Desert Regional action was ongoing, Ms. Hershey read an article on “ABC7Chicago.com” about Juan Fernandez, a man who had suffered a bowel injury similar to hers after a surgery using the da Vinci robot. (Id. at ¶ 12.) She forwarded this article to her attorneys in the malpractice case, who researched the matter, but concluded there was an insufficient factual basis to support the contention that the da Vinci system had injured Ms. Hershey in the same way it injured Mr. Fernandez. (Id. at ¶ 13.) Ms. Hershey’s attorney advised against adding Intuitive as a defendant to the malpractice action. (Ibid.) He told her that his specialty was medical malpractice, not products liability, and that she would have two years from the date of her discovery of Intuitive’s fault for her injuries to file a lawsuit based on that theory. (Ibid.)

While Intuitive introduces evidence tending to show that plaintiffs had earlier actual suspicion or inquiry notice that the da Vinci was to blame for Ms. Hershey’s injuries, plaintiffs’ evidence raises triable issues of fact regarding delayed discovery. A reasonable jury could find that, although Ms. Hershey knew the da Vinci robot had been used in her surgery, there was no reason to suspect it had caused her injuries in light of plaintiffs’ repeated inquiries to multiple doctors, none of whom mentioned the da Vinci as a potential cause of Ms. Hershey’s injuries.

B. Equitable Estoppel

Because plaintiffs have raised triable issues of fact with regard to delayed discovery, the Court need not address their argument that Intuitive should be equitably estoppel from asserting a defense based on the statute of limitations.

V. Impact of Prior Settlement

As discussed above, the Hersheys filed the Desert Regional action on February 28, 2011, naming Desert Regional Medical Center, Dr. Bodon, and Dr. Lombardo as defendants. The action also named Doe defendants including “manufacturers, suppliers, sellers, or distributors” and alleged that defendants provided “manufacturing” and other services in a careless and negligent manner. (Decl. of Caroline Van Ness ISO Opp., Ex. 2, Complaint for Damages, ¶¶ 1, 6.) The complaint asserted causes of action styled as claims for medical malpractice and loss of consortium, but did not allege a products liability claim as such. Plaintiffs settled with each of the named Desert Regional defendants in three separate settlements. (DSUMF, no. 39.) In February 2013, the entire action was dismissed with prejudice. (DSUMF, nos. 43-44.)

Defendant urges that plaintiffs’ settlement of the Desert Regional action bars the present action because plaintiffs released any further claims related to Ms. Hershey’s surgery, the dismissal of the action with prejudice serves as a common law retraxit, and plaintiffs were obligated by Code of Civil Procedure section 474 to proceed against Intuitive, if at all, by amending Desert Regional to add it as a Doe defendant.

A. Release

The release upon which Intuitive bases its arguments is contained in plaintiffs’ November 2012 settlement with Dr. Lombardo, which was the last of the three settlements in Desert Regional. (See DSUMF, no. 39.) That settlement reflects that in exchange for $150,000, plaintiffs released
the defendant, MARIA LOMBARDO, D.O., and her insurer, as well as her attorneys, agents, servants, representatives, employees, subsidiaries, affiliates, partners, predecessors and successors in interest and assigns all other persons, firms or corporations, [sic.] of and from any and all past, present or future claims, … [etc.] of any nature whatsoever …, on account of, or in any way growing out of, or which are the subject of the Complaint, including, without limitation, any and all known or unknown claims for bodily and personal injuries to the Plaintiffs and any consequence thereof, which have resulted or may result from the alleged tortious acts or omissions of the defendant. This release and discharge shall be a fully binding and complete settlement between the parties to the Settlement Agreement and all parties represented by, or claiming through such parties, save only and excepting the executory provisions of this agreement. …

(Van Ness Decl., Ex. 11, p. 1, italics added.)

Focusing on the “all other persons, firms or corporations” language in the release, defendant contends that the settlement reflects a general release of all claims. Plaintiffs argue that the release is ambiguous and present evidence that they did not intend to release any product liability claims against Intuitive through the Desert Regional settlement. Again, Ms. Hershey declares that she was aware she might have a claim against defendant by March of 2012, but was advised by her attorney that she could bring this claim in a separate lawsuit filed within two years of that date. (Decl. of Teresa Hershey, ¶ 13.) In June of 2012, the Medical Board of California produced a report concluding that Dr. Bodon was not negligent in performing Ms. Hershey’s hysterectomy, and Ms. Hershey proceeded to settle her malpractice action. (Id. at ¶¶ 14-15.) She “did not intend this settlement to release Intuitive Surgical, Inc. from my then-potential claim against it, and at the time [she] entered into the settlement, [she] was under the impression” based on her attorney’s representations that she “would still be able to pursue recovery against Intuitive.” (Id. at ¶ 15.)

Interpreting a contract like the release in question
involves a two-step process: First, the court provisionally receives (without actually admitting) all credible evidence concerning the parties’ intentions to determine ambiguity, i.e., whether the language is reasonably susceptible to the interpretation urged by a party. If in light of the extrinsic evidence the court decides the language is reasonably susceptible to the interpretation urged, the extrinsic evidence is then admitted to aid in the second step—interpreting the contract.

(Wolf v. Superior Court (Walt Disney Pictures and Television) (2004) 114 Cal.App.4th 1343, 1351, citing Winet v. Price (1992) 4 Cal.App.4th 1159, 1165, internal quotations omitted.)

Here, the release is reasonably susceptible to the interpretation urged by plaintiffs. Its final clause, which is italicized above and which is not addressed by defendant, is reasonably read to limit the release’s scope to claims “which have resulted or may result from the alleged tortious acts or omissions of the [releasing] defendant,” Dr. Lombardo. This is consistent with the next sentence of the settlement agreement, which reflects that “[t]his release and discharge shall be a fully binding and complete settlement between the parties to the Settlement Agreement and all parties represented by, or claiming through such parties,” but does not indicate that it represents a complete settlement of the entire action or of all claims arising from Ms. Hershey’s surgery. Where there is “an ambiguity in the release, its scope cannot be resolved on summary judgment.” (Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 361; compare Appleton v. Waessil (1994) 27 Cal.App.4th 551, 556 [release of “all persons” was ambiguous where extrinsic evidence raised a triable issue as to whether there was an intent by any of the settling parties to include a known tortfeasor not mentioned by the release] with General Motors Corp. v. Superior Court (Ticich) (1993) 12 Cal.App.4th 435, 440-441 [release of all persons and entities barred claims against all tortfeasors where release language was clear and unambiguous and no evidence was presented to show that releasing parties did not intend to include automobile manufacturer and others]; see also Rodriguez v. Oto (2013) 212 Cal.App.4th 1020, 1033 [courts are reluctant “to grant uncritical literal effect to a global ‘all persons’ clause when there is any evidence of a manifested intent to reserve rights against a stranger to the release”], italics original.)

B. Retraxit

Defendant also contends that plaintiffs’ dismissal of the Desert Regional action with prejudice as to the “[e]ntire action of all parties and all causes of action” (Van Ness Decl., Ex. 3) serves as a common law retraxit of their complaint against Intuitive, a known Doe defendant.

At common law, a retraxit was an open and voluntary renunciation of the suit in open court. The primary features of a common law retraxit were that it was made by the plaintiff in person and in open court. A dismissal with prejudice is the modern name for a common law retraxit.

(Rice v. Crow (2000) 81 Cal.App.4th 725, 733, internal citations and quotations omitted.)

Following the principles of res judicata, “[a] retraxit is a judgment on the merits preventing a subsequent action on the dismissed claim.” (Rice v. Crow, supra, 81 Cal.App.4th at pp. 733-734.) “Since a retraxit ‘invok[es] the principles of res judicata,’ it of course follows that a retraxit only bars claims dismissed with prejudice between the same parties or their privies.” (Id. at p. 735, quoting Datta v. Staab (1959) 173 Cal.App.2d 613, 621.)

Here, Intuitive was not a party to Desert Regional for purposes of res judicata because it was never named as a defendant and served with process in that action. “As a general principle of due process of law, ‘one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he had not been made a party by services of process.’ ” (Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497, 1510, fn. 8, quoting Hansberry v. Lee (1940) 311 U.S. 32, 40; see also Moffett v. Barclay (1995) 32 Cal.App.4th 980, 982-983 [“A party is a person named as a party to an action and subjected to the jurisdiction of the court.”], citing Rest.2d Judgments, § 34.) Conversely, “a person who is not a party to the action is not entitled to the benefit of res judicata. This applies to individuals that are erroneously or fictitiously named.” (Hanna v. Mariposa County Sheriff Dept. (E.D. Cal., June 5, 2014, No. 1:12-CV-00501-AWI) 2014 WL 2547836, at *4, italics added [citing Rest.2d Judgments, § 34 for the proposition that only named defendants and their privies were entitled to receive the benefit of res judicata from a dismissal with prejudice], report and recommendation adopted (E.D. Cal., July 22, 2014, No. 1:12-CV-00501-AWI-SA) 2014 WL 3615779.) Intuitive does not contend that it was in privity with any of the named defendants in that action. Its motion for summary judgment based on retraxit must accordingly fail. (See Roger H. Proulx & Co. v. Crest-Liners, Inc. (2002) 98 Cal.App.4th 182, 201, as modified on denial of reh’g (May 28, 2002) [retraxit was not established on summary judgment where moving defendant presented no facts in its separate statement showing privity with a named defendant to the dismissed action].)

In addition failing for lack of privity, the retraxit argument fails because Intuitive has not shown that the Desert Regional settlement—which is reasonably interpreted as limited to claims arising from Dr. Lombardo’s medical negligence—encompasses claims for product liability. (See Neil Norman, Ltd. v. William Kasper & Co. (1983) 149 Cal.App.3d 942, 948 [“[a] finding on the scope of the settlement agreement [in the dismissed action] was material to the determination of the issue of retraxit” in a subsequent action; no retraxit where settlement pertained to defects in wool sweaters and subsequent action pertained to defects in separate shipment of acrylic sweaters].) In addition to identity of the parties or privity, identity of claims is an element of res judicata, and thus retraxit, that is not addressed by Intuitive. (See ibid.; Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797 [for res judicata to apply, prior action must involve the same claim applying the primary rights theory].)

Lama v. Comcast Cablevision (1993) 14 Cal.App.4th 59 is not to the contrary. In that case, it was held that the settlement and dismissal of a personal injury action with the driver and owner of a vehicle barred a subsequent action against the driver’s employer. In contrast to the circumstances here, the release in Lama clearly and unambiguously extended to any person or entity charged with responsibility for the accident. (Id. at pp. 61, 63.) Further, the settling driver’s employer was clearly in privity with the driver for purposes of res judicata/retraxit, since the employer’s liability was derivative of the driver’s. (See DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 827-828 [“When a defendant’s liability is entirely derivative from that of a party in an earlier action, claim preclusion bars the second action because the second defendant stands in privity with the earlier one.”].)

The motion on the ground of retraxit accordingly fails.

C. Code of Civil Procedure Section 474

Finally, defendant contends that, having named Doe “manufacturer” defendants in the Desert Regional action, plaintiff was obligated by Code of Civil Procedure section 474 to add Intuitive to that action rather than to file a new action against it. Section 474 provides in relevant part:

When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, … and 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….

(Code Civ. Proc., § 474.)

While the statute directs the plaintiff to amend his or her complaint once a Doe defendant is identified, it does not follow that a plaintiff is barred from proceeding against such a defendant by way of a separate action, and Intuitive cites no authority construing section 474 in this fashion. “[T]he purpose of section 474 is to enable a plaintiff to commence suit in time to avoid the bar of limitations where he is ignorant of the identity of the defendant and the statute should be liberally construed to accomplish that purpose.” (General Motors Corp. v. Superior Court (Jeffrey) (1996) 48 Cal.App.4th 580, 593, italics added, citing Barnes v. Wilson (1974) 40 Cal.App.3d 199, 203.) Section 474 is not intended to prevent a plaintiff from pursuing an otherwise timely action, and Intuitive cites no case applying it in this manner. To the contrary, Intuitive’s own authority distinguishes between the accrual and consequent timeliness of a cause of action and the timeliness of a Doe amendment. (See Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1171 [addressing the “distinction between the accrual of a cause of action and the timeliness of a Doe amendment”]; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 399 [“failure to discover, or have reason to discover, the identity of the defendant does not postpone the accrual of a cause of action” since a plaintiff can use the section 474 procedure under these circumstances, “whereas a like failure concerning the cause of action itself does” postpone accrual under the delayed discovery rule].)

Defendant was never served with and never appeared in the Desert Regional action. It does not contend that its rights were impacted by the settlement in that action, or that it has been prejudiced by plaintiffs’ pursuit of their claims against it in this action as opposed to Desert Regional. Under the circumstances, the Court finds no support for Intuitive’s attempt to use section 474 to defeat an action that a jury could find is timely without the need to utilize the section 474 procedure in the first place.
VI. Conclusion and Order

In light of the above, defendant’s motion for summary judgment is DENIED.

The Court will prepare the order.