Judge: Anne Hwang, Case: 21STCV10767, Date: 2024-02-20 Tentative Ruling

Case Number: 21STCV10767    Hearing Date: February 20, 2024    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.  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

BACKGROUND

On March 19, 2021, Plaintiff J. Arthur Sweatman (“Plaintiff”) filed a complaint against Defendants Sherry Chapman and Does 1 to 50 for strict liability and negligence. Plaintiff alleges that on March 19, 2019, he was bitten by a dog owned by Sherry Chapman (“Chapman”). (Complaint ¶ 5–6.)

On October 17, 2023, Plaintiff filed an amendment to the complaint, naming Julie Hemphill (“Defendant”) as Doe 1. Defendant now moves to strike the Doe Amendment arguing that (1) the amendment is barred by the statute of limitations; (2) it was not filed with leave of court; and (3) the summons and amendment is procedurally defective. Plaintiff opposes and Defendant replies. 

LEGAL STANDARD

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper.  (Code Civ. Proc. §§ 435; 436(a).)  Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders.  (Code Civ. Proc. § 436(b).)  A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer.  (Pierson v Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).)  In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers.  (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.) 

The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.”  (Code Civ. Proc. § 436.) 

MEET AND CONFER

“Before filing a motion to strike . . . the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.”  (Code Civ. Proc., § 435.5, subd. (a).)  If no agreement is reached, the moving party shall file and serve with the motion to strike a declaration stating either: (1) the means by which the parties met and conferred and that the parties did not reach an agreement, or (2) that the party who filed the pleading failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith.  (Code Civ. Proc., § 435.5, subd. (a)(3).)  

According to the Declaration of Rebecca Birmingham, counsel for plaintiff failed to respond to Defendant’s efforts to meet and confer. (Birmingham Decl. ¶ 8.) Therefore, the meet and confer requirement has been satisfied.

ANALYSIS

1. Statute of Limitations

a. Section 474

California Code of Civil Procedure section 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.) 

“When a defendant is properly named under section 474, the amendment relates back to the filing date of the original complaint. [citation.] Section 474 provides a method for adding defendants after the statute of limitations has expired, but this procedure is available only when the plaintiff is actually ignorant of the facts establishing a cause of action against the party to be substituted for a Doe defendant.” (McClatchy v. Coblentz, Patch, Duffy & Bass, LLP¿(2016) 247 Cal.App.4th 368, 371–72.)  

“ ‘The purpose of section 474 is to enable a plaintiff to avoid the bar of the statute of limitations when he [or she] is ignorant of the identity of the defendant.’ [citation.] The cases discussing section 474 deal with whether the plaintiff was truly ignorant of the identity of the person brought into the case as a Doe defendant because if that requirement is met, the amendment to the complaint relates back to the date the complaint was filed and the statute of limitations is preserved. [citation.]” (Davis v. Marin¿(2000) 80 Cal.App.4th 380, 386–87.)  

Here, the Complaint alleges the dog bite occurred on March 19, 2019. The statute of limitations for a personal injury action is two years. (Code Civ. Proc. § 335.1.) Therefore, the statute of limitations expired on March 19, 2021. Here, the Doe Amendment was filed on October 17, 2023. Therefore, based on the pleadings and judicially noticeable material, the amendment was untimely. However, as discussed above, section 474 allows amendments after the statute of limitations has passed. Additionally, a defendant may challenge the amendment by an evidence-based motion. A motion to strike is not suitable for this since the Court may only view the complaint and all matters judicially noticed. Defendant did not request judicial notice in a separate filing. Even so, the discovery documents that Defendant relies on to show Plaintiff had knowledge of Defendant appear to be extrinsic evidence not subject to judicial notice.

b. Sufficient Doe Allegations

Next, Plaintiff argues that the Doe Amendment should be stricken because the complaint fails to state charging allegations against the fictitious defendants. Therefore, Defendant argues the Doe Amendment does not relate back to the allegations in the complaint.

“Even if a plaintiff meets the other requirements of Doe pleading, an amended pleading will not relate back unless the original complaint set forth or attempted to set forth some cause of action against fictitiously named defendants.” (Winding Creek v. McGlashan (1996) 44 Cal.App.4th 933, 941 [“It is not enough, of course, simply to name ‘Doe’ defendants. Rather, the complaint must allege that they were responsible in some way for the acts complained of.”].) Generally, if a plaintiff defines “defendants” as also including the unnamed defendants, it will suffice. (Id. [citing Hollister Canning Co. v. Superior Court (1972) 26 Cal.App.3d 186, 194–196 [charging allegations referring to “defendants” embraced Doe defendants; amendment related back]; Milam v. Dickman Construction Co. (1964) 229 Cal.App.2d 208, 213–214 [allegations were restricted to named defendants; no relation back]; Marasco v. Wadsworth (1978) 21 Cal.3d 82, 87 [allegation that “ ‘defendants and each of them’ ” were negligent supports relation back]].)

In Winding Creek, the court found that the allegations in the first amended complaint related back where every cause of action “incorporated by reference plaintiffs' allegation that ‘... each of the fictitiously named Defendants is responsible in some manner for the occurances [sic ] herein alleged, and that Plaintiffs' damages as herein alleged were proximately caused by those Defendants.’” (Winding Creek, supra, 44 Cal.App.4th at 941, 42.) The pleading also contained allegations each defendant acted as an agent for co-defendants, and the prayer for relief was “against Defendants and each of them”. Therefore, there were sufficient allegations that the fictional defendants were responsible for the plaintiff’s injuries. (Id.) The court noted this was different than other cases where the pleading made no attempt to charge the fictional defendants with responsibility for the plaintiff’s injuries. (Id. [citing Milam v. Dickman Construction Co., supra, 229 Cal.App.2d at pp. 213–214 [charging allegations restricted to named defendants]; Williams v. Goodman (1963) 214 Cal.App.2d 856, 859–860 [original complaint alleged only that Doe defendants' true names were unknown and plaintiff would amend when apprised of their identities]].)

Here, the Complaint alleges: “The true names and capacities, whether individual, corporate, associate, or otherwise, of the defendants designated herein as DOES 1 through 50 are presently unknown to plaintiffs, who, therefore, sue said defendants by such fictitious names. Plaintiff is informed and believes, and thereupon allege, that each of the defendants designated herein as a "Doe" is legally responsible in some manner for the events and happenings hereinafter described, and proximately caused or contributed to the injuries and damages hereinafter alleged.” (Complaint ¶ 4.)   

In each cause of action, Plaintiff alleges “Plaintiff repleads, realleges and incorporates by reference Paragraphs 1 through 8, inclusive, as though fully set forth herein.” (See Complaint ¶ 9, 15.) However, the Complaint also includes various allegations against Defendant (singular) Sherry Chapman. (Id. ¶ 5 [“Defendant Chapman owned a dog . . . owned, leased, controlled, maintained and/ or possessed by Defendant Chapman.”].) Additionally, the prayer for judgment is against Defendant (singular).

However, because it appears that some attempt was made to incorporate the Doe defendants’ responsibility for Plaintiff’s injuries into both causes of action, sufficient charging allegations exist.

Leave of Court

Next, Defendant argues that Plaintiff should have sought leave before filing the amendment to the complaint.

“A party may amend its pleading once without leave of the court at any time before the answer . . . is filed . . . .” (Code Civ. Proc. § 472(a).) “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” (Code Civ. Proc. § 473(a).)

Here, the Amendment to Complaint filed on October 17, 2023 has not been signed by the Court. Because Defendant challenges whether the amendment relates back to the original complaint, the Court finds that Plaintiff should seek leave to amend in a noticed motion.

Summons

To the extent Defendant argues the summons fails to address Defendant under Code of Civil Procedure sections 412.20 and 474, a motion to strike pertains to the pleadings, and thus is not applicable.  Additionally, because Plaintiff’s amendment has not been granted by the Court, the Court declines to rule to Defendant’s arguments surrounding the Statement of Damages.

CONCLUSION AND ORDER

Therefore, the Court grants in part Defendant’s motion to strike.

Defendant shall provide notice of the Court’s order and file a proof of service of such.