I dissent. The principal issue we face is this: May a person clearly charged with negligence in a complaint, although not named as a defendant, be added to the complaint after the statute of limitations has passed? I conclude that such person may be added as a defendant.
Decisional law has evolved to the point which requires such a conclusion. My analysis begins with Day v. Western Loan and Bldg. Co. (1940) 42 Cal.App.2d 226 [108 P.2d 702]; there a plaintiff filed a complaint against the driver of an automobile which had injured him, and against Does I to III alleging that the Does may have been the owners of the automobile and controlled it at the time of the accident. Plaintiff was allowed to amend his complaint, after the statute of limitations period, to name as defendant the driver’s employer on a respondeat superior theory. The amended complaint was the first time the respondeat superior theory was asserted. The Court of Appeal held that the allegation that a fictitious defendant “controlled” the automobile sufficiently implied that plaintiff sought recovery on a respondeat superior theory. (Id. at p. 233.) Later, in Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596 [15 Cal.Rptr. 817, 364 P.2d 681], plaintiffs filed a complaint against named defendants and a number of fictitious defendants, alleging that defendants had acted as brokers and agents and refused to deliver securities and moneys received on behalf of plaintiffs, and that defendants had filed a surety bond for faithful performance of the duties as a broker. After the expiration of the time for filing a claim under the terms of the bond, plaintiffs were allowed to amend their complaint to make a claim upon the bond, substituting the bonding company for one of the fictitious defendants. The Supreme Court observed that the policy that cases should be decided on their merits has gradually broadened the right of a party to amend a pleading without incurring the bar of statute of limitations. (Id. at p. 600.) It is noteworthy that amendment was permitted not merely substituting defendant for a fictitious defendant, but changing the allegations against that defendant since no fictitious defendant had been alleged to be liable as surety on the bond. (Id. at pp. 599-601.) The court stated that an amendment that relates back to the original complaint is permissible as long as recovery is sought on the same general set of facts. *494(Id. at p. 601.) And, in Garrett v. Crown Coach Corp. (1968) 259 Cal. App.2d 647 [66 Cal.Rptr. 590], plaintiff filed a complaint for personal injuries against certain defendants and certain fictitious defendants. The complaint alleged that plaintiff was injured when his vehicle was struck by a school bus, and that the fictitious defendants were agents, servants and employees of the Board of Education and defendant school district. Plaintiff was permitted to amend, after the statute of limitations had passed, to substitute Crown Coach Corp. as Doe I and to allege that Crown designed and manufactured the bus negligently. The Court of Appeal held that the amendment was proper even though no claim of negligent design or manufacture was originally pled, relying on Austin v. Massachusetts Bonding & Insurance Co., supra, 56 Cal.2d 596. (Id. at pp. 650-652.)
The last two cases in this line are Grudt v. City of Los Angeles (1970) 2 Cal.3d 575 [86 Cal.Rptr. 465, 468 P.2d 825], and Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932 [136 Cal.Rptr. 269, 559 P.2d 624, 85 A.L.R.3d 121]. In Grudt a plaintiff sued the city on a respondeat superior theory for the wrongful death of her husband when he was killed by two police officers. The Court of Appeal held that plaintiff could amend her complaint after the statute of limitations had passed to allege the negligence of the city in retaining the officers as employees although aware that they were dangerous. The court stated that it did not matter that the amendment stated a different legal theory, since it sought recovery on the same general set of facts. (Id. at pp. 583-585.) Finally, in Smeltzley the Supreme Court reaffirmed (he holding in the above cases. The court ruled that a plaintiff must be allowed to amend his complaint to state a case in products liability against a new defendant, even though the original complaint charged plaintiff’s employers with failure to provide him a safe place to work. The court discussed the precedent and held that the amended complaint related to the same general state of facts. (Id. at p. 939.)
. The present case, as noted by the majority, differs from each of the cases discussed. In his complaint, petitioner specifically alleged that Parks was negligent'and that his negligence caused the injuries to petitioner. Parks was not unknown to petitioner nor was the cause of action against Parks unknown to petitioner. It appears that petitioner failed to sue Parks due to a failure to realize that vicarious liability of the owner of a vehicle is limited in amount. In ruling on the issue of whether petitioner would be allowed to amend his complaint, the trial court noted *495that the original complaint charged Parks with negligence, but relied upon counsel’s subsequent actions to determine whether Parks was intended as a defendant. Since petitioner has not attemped to serve a representative of Parks’ estate and had proceeded only against Slinkard and Richardson, the trial court refused to allow the amendment.
Unlike the majority I conclude that the trial court erred in considering petitioner’s actions subsequent to the filing of the complaint; we must look to the complaint alone to determine whether a cause of action has been stated against Parks. In order to commence an action within the period of the statute of limitations it is necessary only that a complaint be filed. (Code Civ. Proc., § 350.) It is not necessary that defendant be notified of the claim; and lack of diligence after filing the complaint may be remedied by a motion to dismiss. (See 2 Witkin, Cal. Procedure (2d ed. 1970) Actions, § 384, pp. 1218-1219.) The complaint in the instant case was filed within the period of the statute of limitations. Petitioner’s subsequent actions will not cause the statute to run against him if the original complaint was sufficient.
Code of Civil Procedure section 452 and decisional law, the majority agrees, call for a rule of liberal amendments to a complaint. Section 452 reads: “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Nelson v. East Side Grocery Co. (1915) 26 Cal.App. 344 [146 P. 1055], explains that in determining who the parties to an action are the whole body of the complaint is to be taken into account, and not merely the caption. (Id. at p. 347.)
A reading of the complaint in this case shows beyond doubt that Parks is charged with negligently causing petitioner’s injuries. To permit petitioner to amend his complaint to name the estate of Parks as a defendant would be in conformity with the policy of liberally construing pleadings with a view to substantial justice between the parties and the policy that cases should be decided on their merits. (Austin v. Massachusetts Bonding and Insurance Co., supra, 56 Cal.2d, at p. 600.) There will be no more prejudice here, where petitioner has clearly charged Parks with negligence in his complaint, than in the Austin line of cases where plaintiffs were permitted to amend complaints in which they failed to charge the proposed defendants and failed to charge fictitious defendants with the cause of action later asserted. Here, as in those cases, petitioner seeks to amend to state a cause of action based upon the same set of facts in the original complaint.
*496The facts in this case indicate that the amendment would cause no prejudice to the parties. Petitioner filed his suit and negotiated for a settlement. Slinkard, who was Parks’ mother and administrator of his estate, was brought into the action and was informed that petitioner sought recovery for personal injury due to Parks’ negligence. She was represented by her insurance company which also covered Parks. Counsel for Slinkard negotiated with petitioner, and noted at the pretrial conference that an offer had been turned down by petitioner. It was not until the pretrial conference that counsel explained that he would only offer $15,000 since Parks had not been named as a defendant.1 All parties concerned were aware that petitioner sought recovery due to Parks’ negligence and defense counsel was aware of the mistake of counsel for petitioner. Under the circumstances of this case I would hold that petitioner must be permitted to amend his complaint.
I would issue a peremptory writ of mandate ordering the Superior Court of Sutter County to vacate its order striking petitioner’s amendment to his complaint and to allow petitioner to amend his complaint to name as a defendant Mary Lois Slinkard as administrator of the estate of Russell Marvin Parks.
On December 3, 1979, the opinion was modified to read as printed above. Petitioner’s application for a hearing by the Supreme Court was denied January 3, 1980. Bird, C. J., and Mosk, J., were of the opinion that the application should be granted.
Where a party makes promises that a settlement will be reached and thus induces the other party not to bring suit it has been held that the defendant will be estopped from asserting the statute of limitations when the plaintiff fails to file his complaint due to such promises. (See 2 Witkin, Cal. Procedure (2d ed. 1970) Actions, § 396, pp. 1228-1229.) While such action was not alleged here, and defense counsel’s conduct would not appear to reach this level of activity, the defense actions are relevant in that they show that no prejudice would result by the amendment.