Judge: Andrew E. Cooper, Case: 21CHCV00570, Date: 2023-11-15 Tentative Ruling

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Case Number: 21CHCV00570    Hearing Date: March 20, 2024    Dept: F51

MOTION TO QUASH SERVICE OF PROCESS

Motion Filed: 2/23/24

MOVING PARTY: Specially Appearing Defendant Diodes Incorporated (“Diodes”)

RESPONDING PARTY: Plaintiff Tony Laurita (“Plaintiff”)

NOTICE: OK

RELIEF REQUESTED: An order quashing Plaintiff’s service of his First Amended Complaint (“FAC”) and Summons on Diodes.

TENTATIVE RULING: The motion is granted.

REQUEST FOR JUDICIAL NOTICE: Diodes’ request for judicial notice is granted as to the existence, but not the contents, of Exhibits 1–22.

BACKGROUND 

This is a toxic tort action in which Plaintiff Tony Laurita was allegedly employed by Cinmark, LLC (“Cinmark”) between 2002 and 2017, during which time he worked at Cinmark’s principal place of business at 8933 Quartz Avenue, Northridge, California 91324. (FAC ¶ 3.) Nonmoving defendant Micro Matic USA, Inc. (“MM”) was “engaged in the business of making and selling beverage dispensing systems” on a neighboring property, using “land and buildings owned by Defendant Cinmark within the vicinity of the site of contamination.” (Id. at ¶ 6.) 

Plaintiff alleges that between 1980 and 1994, MM used volatile organic compounds (“VOCs”) including perchloroethylene, also known as tetrachloroethylene (“PERC”), to degrease and clean the metal parts of its products. (Id. at ¶ 7.) PERC is a toxic organic compound that may contaminate the air, soil, or groundwater, and cause damage to the human nervous system through respiratory or dermal exposure. (Id. at ¶ 8.) Various governmental and health agencies have listed PERC as a chemical known to cause cancer, and occupational exposure to PERC has been linked to “irreversible central nervous system effects and toxicity to the kidney, liver, and immune system.” (Id. at ¶ 11.) Plaintiff alleges that MM “released hazard wastes containing … PERC in the relevant area. These releases continued until quantities of PERC contaminating the area reached toxicologically significant quantities large enough to cause cancer.” (Id. at ¶ 10.)

Plaintiff alleges that he was “exposed to toxicologically significant quantities of hazardous VOCs including PERC” while working at Cinmark, caused by MM’s degreasing operations. (Id. at ¶ 12.) Plaintiff further alleges that defendants knew, or should have known, about (1) the toxic nature of PERC; and (2) the level of contamination at the relevant site yet failed to “adequately remediate the contamination to protect human health.” (Id. at ¶ 20.) Due to defendants’ alleged conduct, Laurita “sustained serious injuries to his internal organs, including kidney cancer.” (Id. at ¶ 25.)

On 7/30/21, Plaintiff filed his complaint against Cinmark and MM, asserting two causes of action: (1) Negligence; and (2) Fraudulent Concealment. On 12/30/21, Plaintiff dismissed Cinmark from the action without prejudice. On 11/1/22, Plaintiff filed his FAC, alleging against MM and Does 1 through 100 the following causes of action: (1) Negligence; and (2) Premises Liability.

On 12/5/23, Plaintiff filed an amendment to his FAC to name Diodes as Doe defendant 1. On 12/18/23, Plaintiff filed a proof of service indicating that Diodes was served with process via substituted service at 1:12 PM on 12/15/23. Moving defendant Diodes formerly leased the subject facility.

On 2/23/24, Diodes filed the instant motion to quash. On 3/7/24, Plaintiff filed his opposition. On 3/13/24, Diodes filed its reply.

ANALYSIS

A defendant may move, “on or before the last day of his or her time to plead,” to quash the service of summons by alleging a lack of personal jurisdiction, or to dismiss the action on the ground of inconvenient forum. (Code Civ. Proc. § 418.10, subd. (a).) A motion to quash must be granted if the court finds that either (1) there is no basis for exercising personal jurisdiction over the defendant or (2) service on the defendant was improper. (Ziller Elecs. Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1229.)

“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.) “The phrase ‘ignorant of the name of a defendant’ is broadly interpreted to mean not only ignorant of the defendant’s identity, but also ignorant of the facts giving rise to a cause of action against that defendant. … [T]he relevant inquiry when the plaintiff seeks to substitute a real defendant for one sued fictitiously is what facts the plaintiff actually knew at the time the original complaint was filed.” (San Diego Navy Broadway Complex Coalition v. California Coastal Com. (2019) 40 Cal.App.5th 563, 579 [internal quotations and citations omitted].)

Here, Diodes asserts that Plaintiff improperly named it as a Doe defendant because “Mr. Laurita had knowledge of Diodes when he filed the Complaint and is now improperly using the Doe substitution process to circumvent a facially time-barred claim.” (Def.’s Mot. 5:7–9.) Diodes argues that here, as in San Diego Navy, “numerous Public Documents reported Diodes’ connection to the environmental response action in the years leading up to Mr. Laurita’s Complaint filed in July 2021.” (Id. at 7:14–16.) “The Public Database and Public Documents, referenced in the Complaint and FAC and readily available to the public, literally referred to the Quartz Facility as the ‘Former Diodes Incorporated’ facility. Anyone conducting research regarding contamination at the Premises would necessarily have encountered the Public Database and Public Documents. The allegations in the Complaint demonstrate that both Mr. Laurita and his attorneys were aware of this information and had relied on the Public Database and Public Documents to inform the Complaint.” (Id. at 10:3–9.)

“Once a defendant files a motion to quash the burden is on the plaintiff to prove by a preponderance of the evidence the validity of the service and the court’s jurisdiction over the defendant.” (Bolkiah v. Superior Court (1999) 74 Cal.App.4th 984, 991.) Here, Plaintiff contends in opposition that “during the course of discovery between Plaintiff and Defendant Micro Matic, specifically in correspondence between counsel in November of 2023, Defendant Micro Matic [disclosed] information related to Defendant Diodes occupancy of the 8933-building beginning in 1970. Plaintiff filed a Doe Amendment naming Diodes as a defendant on December 5, 2023 and filed a proof of service with the Court on January [sic] 18, 2023.” (Pl.’s Opp. 6:26–7:2.)

Plaintiff argues that “even though the plaintiff knows of the existence of the defendant sued by a fictitious name, and even though the plaintiff knows the defendant’s actual identity (that is, his name), the plaintiff is ‘ignorant’ within the meaning of the statute if he lacks knowledge of that person’s connection with the case or with his injuries.” (Pl.’s Opp. 5:5–9, quoting General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 593–594.) “A plaintiff’s ignorance of the defendant’s name must be genuine (in good faith) and not feigned.” (General Motors Corp., 48 Cal.App.4th at 594.)

However, as Diodes observes in reply, Plaintiff has not proffered any evidence to support his argument, as “neither Mr. Laurita nor his lawyer have submitted declarations attesting that they were genuinely ignorant of Diodes when they filed the Complaint.” (Def.’s Reply 1:20–21.) “Diodes provided evidence that the Public Documents were sufficient to give Mr. Laurita notice and awareness of Diodes’ role in his claim and were relied on by Mr. Laurita and his attorney in drafting the Complaint. Neither Mr. Laurita nor his attorney dispute these assertions.” (Id. at 3:5–8.)

Based on the foregoing, the Court finds that Plaintiff has failed to meet his evidentiary burden to show that he properly named Diodes as Doe defendant 1 in the instant action. As such, “without the Doe substitution, Mr. Laurita has no means by which to make his claims relate back, and, without relation back, Mr. Laurita’s claims [against Diodes] are time-barred by [Code of Civil Procedure] section 340.8’s statute of limitations.” (Def.’s Mot. 12:11–13, citing Hazel v. Hewlett (1988) 201 Cal.App.3d 1458, 1464.) Accordingly, the Court grants the instant motion to quash.

The Court takes note of the parties’ arguments concerning the doctrine of laches but declines to reach them based on the foregoing analysis and based on the parties’ stipulation to continue trial to 6/16/25.

CONCLUSION 

The motion is granted.