Judge: Anne Hwang, Case: 19STCV42029, Date: 2023-08-08 Tentative Ruling

Case Number: 19STCV42029    Hearing Date: August 8, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

            Specially Appearing Defendant Oscar Samayoa (“Samayoa”) appears specially and moves to quash service of the summons and complaint.  He also seeks dismissal for delay in service of process. Lastly, Samayoa moves for monetary sanctions pursuant to Code of Civil Procedure § 128.5. Plaintiff Michael Barakat (“Plaintiff”) opposes the instant motion. Samayoa has filed a reply.

ANALYSIS

Quash Service of Summons

First, Samayoa moves to quash service of summons and complaint for Plaintiff’s failure to comply with Code of Civil Procedure § 474.

California Code of Civil Procedure § 474 permits the designation of a defendant by a fictitious name when the plaintiff is ignorant of the defendant’s name.  (Code Civ. Proc., § 474.)  “Section 474 allows a plaintiff in good faith to delay suing particular persons as named defendants until he has knowledge of sufficient facts to cause a reasonable person to believe liability is probable.” (Dieckmann v. Superior Court (1985) 175 Cal.App.3d 345, 363.) “Absent compliance with Code of Civil Procedure section 474, service of a summons on a purported Doe defendant is ineffective.”  (Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145; see also McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.368, 375 [“‘[i]f the terms of . . .  section 474 have not been complied with, the purported defendant has not been named as such in the complaint.  A service upon one not named in a complaint does not confer jurisdiction to proceed upon the complaint against him, and a motion to quash is proper’”] [quoting Maier Brewing Co. v. Flora Crane Service, Inc. (1969) 270 Cal.App.2d 873, 875].)

“First, section 474 includes an implicit requirement that a plaintiff may not ‘unreasonably delay’ his or her filing of a Doe amendment after learning a defendant’s identity.  Second, a defendant named in an action by a Doe amendment under section 474 may challenge the amendment by way of an evidence-based motion, which argues that the plaintiff ‘unreasonably delayed’ his or her filing of the challenged amendment.  Third, ‘unreasonable delay’ within the meaning of ‘Barrows’ includes a prejudice element, which requires a showing by the defendant that he or she would suffer prejudice from plaintiff’s delay in filing the Doe amendment.”  (A.N. v. County of Los Angeles (2009), 171 Cal.App.4th 1058, 1067 (citing Barrows v. American Motors [Corp.] (1983) 144 Cal.App.3d 1, 9.)

Here, Plaintiff initiated this action on November 22, 2019 by filing his initial complaint against Defendants Charles E. Thomas Company, Inc. (CETC), John Doe and Does 1-50, alleging causes of action for general negligence and motor vehicle negligence. (See generally Compl.) Thereafter, on January 9, 2020, Plaintiff filed a First Amended Complaint, adding a new cause of action for intentional infliction of emotional distress against John Doe only. (See FAC at pg. 6.) On November 8, 2022, trial was continued over defendant CETC’s objection, but the Court expressly stated that discovery was closed as to non-expert discovery and expert discovery was to be completed by April 28, 2023. (November 8, 2022 Minute Order.) On April 25, 2023, Plaintiff filed his Doe Amendment substituting Samayoa as John Doe. On May 2, 2023, trial was continued again over CETC’s objection, with the Court ruling that all discovery and motions were closed.  (May 2, 2023 Minute Order.)  Thereafter, the final status conferences were continued and the parties stipulated to continue trial to June 10, 2024, with all discovery and motion cut-off deadlines remaining in effect pursuant to the Court’s prior order.

Samayoa argues that Plaintiff unreasonably delayed in naming him in this case despite being aware of his identity as the driver involved in the underlying incident through written discovery on October 15, 2020. (Motion at pg. 6, 10; Housman Decl. ¶ 4, Exh. 3.) Furthermore, Plaintiff took the deposition of Samayoa on November 23, 2021 and of his supervisor, Sipriano Contreras, on October 6, 2022, but Plaintiff took no steps to add Samayoa as a named party around those times. (Housman Decl. ¶¶ 5, 6; Exhs. 4-5.) In terms of prejudice, Samayoa argues that he lacks the ability to mount a proper defense or to investigate the claims asserted against him because discovery has closed. (Motion at pg. 12.) In terms of the service that attempted on Samayoa, he argues that Plaintiff failed to attempt personal service and the document served was the original Complaint, not the First Amended Complaint. (Motion at pg. 15.)

In opposition, Plaintiff argues that the delay in filing the Doe Amendment was not intentional, and that the facts that would establish a claim against Samayoa was not discovered until Samayoa’s supervisor was deposed on October 6, 2022. (Opposition at pg. 3; Fradkin Decl. ¶ 7.) Plaintiff further argues that, even if the delay was unreasonable, Samayoa has not shown that he has been prejudiced because trial is set for June 2024, which affords Samayoa sufficient time to conduct any necessary discovery. (Opposition at pg. 3.) Also, Plaintiff argues that service was proper because the process server attempted to personally serve Samayoa at his workplace before effectuating substitute service via Samayoa’s supervisor. (Opposition at pg. 5.)

In reply, Samayoa argues that Plaintiff fails to explain how that the deposition of Samayoa’s supervisor supported a factual basis for the claims now asserted against him. (Reply at pg. 4.) Moreover, Samayoa maintains that he will be severely prejudiced to be forced to mount a defense this late in the case. (Reply at pg. 4.)

The Court finds that Plaintiff has unreasonably delayed in filing his Doe amendment. The initial complaint alleged that Defendant John Doe was operating his vehicle when he negligently merged and collided into Plaintiff’s vehicle.  (Compl. ¶ 15.) An amended complaint was filed on January 9, 2020 alleging intentional infliction of emotional distress as to Defendant John Doe only, due to John Doe’s operation of the vehicle.  (FAC.) Plaintiff then learned the driver’s identity on October 15, 2020. (Housman Decl. ¶ 4.) At this time, Plaintiff should have filed the Doe amendment and served Defendant Samayoa with the First Amendment Complaint.

Nonetheless, Plaintiff then deposed Mr. Samayoa, the driver, on November 23, 2021. (Id. ¶ 5.) No Doe amendment was filed or served.  Plaintiff then deposed Mr. Samayoa’s supervisor on October 6, 2022.  (Id.¶ 6.) No Doe amendment was filed or served. On November 8, 2022, Plaintiff sought a continuance of the November 21, 2022 trial date. No Doe amendment was mentioned.  Defendant CETC opposed the request to continue trial and the Court granted Plaintiff’s request, ordering that fact discovery would be closed.

The Court finds that Plaintiff’s explanation regarding the delay is conclusory and lacks merit. Plaintiff argues that “[f]acts discovered in the deposition of the Safety Supervisor contributed to the factual basis for the claims against Defendant Samayoa,” but does not explain what those facts are.  (Fradkin Decl. ¶ 7.) Plaintiff further explains that the delay “was a misunderstanding and not intentional,” but again does not explain what the misunderstanding was.  (Id.) Plaintiff has not provided any reasonable explanation for the more than 2 ½ year delay after learning of Samayoa’s identity in filing and serving the Doe amendment.

However, Samayoa has not established that prejudice will result. He argues that “[a]t this late stage in the litigation, where trial would have otherwise already occurred and discovery is completed, Mr. Samyoa’s ability to discovery the factual or legal bases for any of the claims asserted against him, retain or designate his own experts to rebut Plaintiff’s claims, or otherwise adequately defend himself or prepare for trial is significantly limited. …” (Motion at pgs. 11-12.) The parties stipulated to continue the trial to June 10, 2024.  Although Samayoa explains that the intentional infliction of emotional distress cause of action was not pled against the current Defendant CETC, Samayoa does not explain why – should the parties stipulate to reopening discovery or should the Court grant any motion to reopen discovery[1] – discovery could not be completed by the current trial date. (See Reply at pg.2.)

Accordingly, Samayoa’s motion to quash is denied.[2]

Dismissal For Failure to Prosecute

Alternatively, Samayoa requests the Court to dismiss the action for Plaintiff’s failure to serve him within the three-year deadline set forth under Code of Civil Procedure § 583.210.

Code of Civil Procedure § 583.210 requires the summons and complaint be served upon a defendant within three years after the complaint is filed.  (Code Civ. Proc., § 583.210, subd. (a).)  If service of the summons and complaint has not been served upon a defendant within the three-year statutory time period, the court shall dismiss the action.  (Code Civ. Proc., § 583.250.)  “The three-year rule applies where the defendant seeking dismissal was served as a Doe defendant named in the original complaint, later amended to show his or her true name.”  (Inversiones Papaluchi S.A.S. v. Superior Court (2018) 20 Cal.App.5th 1055, 1061.)  Thus, “a plaintiff has three years from the date of filing the complaint to identify and serve a Doe defendant.”  (Ibid.) “Service requirements ‘are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute. The Legislature has articulated four conditions that toll the time for service. The conditions ‘must be construed strictly against the plaintiff.’”  (Id. (citations omitted).)

Code of Civil Procedure § 583.240, subdivision (d) excludes the time in which a plaintiff has to identify and serve a Doe defendant after filing the complaint if service was impossible, impractical, or futile because of causes beyond the plaintiff’s control.  Importantly, that subdivision expressly states the “[f]ailure to discover relevant facts or evidence is not a cause beyond the plaintiff’s control . . . .”  (Ibid.) 

Here, Samayoa argues that dismissal is warranted because of Plaintiff’s failure to serve him with a copy of the summons and complaint until May 10, 2023, which is more than three years since this action was initiated on November 22, 2019. (Motion at pg. 14.)

In opposition, Plaintiff merely argues that Code of Civil Procedure § 583.210 is not a basis for which the Court to quash the service of summons. (Opposition at pg. 5.) However, this argument ignores the fact that Samayoa is seeking dismissal from the action pursuant to Code of Civil Procedure § 583.210 and not for the purposes of quashing the service of summons. Notably, Plaintiff does not deny serving Samayoa beyond the three-year deadline. Moreover, Plaintiff has failed to show that service on Samayoa was impossible, impractical, or futile because of causes beyond his control. As the Court has already concluded, Plaintiff has provided no reasonable explanation for the delay.

Accordingly, Samayoa’s dismissal is warranted pursuant Code of Civil Procedure § 583.210.

Sanctions Pursuant to Code of Civil Procedure § 128.5

Lastly, Samayoa seeks monetary sanctions against Plaintiff and his attorney of record pursuant to Code of Civil Procedure § 128.5.

Code of Civil Procedure § 128.5 authorizes every trial court to order payment of reasonable expenses, including attorney fees, incurred due to a litigation opponent’s tactics or actions not based on good faith which are frivolous or which cause unnecessary delay.  (Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4^th 804, 809.) 

The motion is “frivolous” if it is “totally and completely without merit” or filed “for the sole purpose of harassing an opposing party.” (Code Civ. Proc. § 128.5, subd. (b)(2).) Samayoa’s arguments do not support a finding that Plaintiff’s conduct was frivolous or done to cause unnecessary delay.

Accordingly, the request for sanctions is denied.

CONCLUSION AND ORDER

Consequently, the Court denies in part Samayoa’s motion to the extent that it seeks to quash service of the summons and complaint and grants the motion to the extent that he seeks his dismissal pursuant to Code of Civil Procedure § 583.210.  Specially Appearing Defendant Samayoa is dismissed with prejudice. The request for sanctions pursuant to Code of Civil Procedure § 128.5 is denied.

            Samayoa shall provide notice of the Court’s ruling and file a proof of service of such.