Judge: Anne Hwang, Case: 21STCV23528, Date: 2023-11-09 Tentative Ruling

Case Number: 21STCV23528    Hearing Date: March 7, 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 June 24, 2021, Plaintiff Rabin Babazadeh (“Plaintiff”) filed a form complaint against Defendants Harrie Cohen, Evan Cohen, Chuck Hyneman, and Does 1 to 20 for premises liability resulting from a water leak.    

On November 13, 2023, after receiving leave from the Court, Defendants Harrie Cohen and Evan Cohen filed a cross complaint against 118 Clark Homeowners Association.

On January 11, 2024, Plaintiff filed an amendment to the complaint, substituting Defendant 118 Clark Homeowners Association (“Defendant”) as Doe 1.

On February 9, 2024, Plaintiff filed the instant motion for leave to file an amended complaint to assert that Doe 1 is a corporation. Defendant opposes and Plaintiff replies.

LEGAL STANDARD

Amendment to Pleadings: General Provisions

Under Code of Civil Procedure section 576, “[a]ny judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.”

Code of Civil Procedure section 473, subdivision (a)(1) provides, in relevant part: “[t]he 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.”¿ 

“This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.”¿(Kittredge Sports Co. v. Superior Court¿(1989) 213 Cal.App.3d 1045, 1047.)¿ The Court of Appeal in Morgan v. Superior Court held: “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.”  (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530, citations omitted.)  Moreover, “it is an abuse of discretion for the court to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.”  (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [opposing party did not establish harm by the delay in moving to amend the complaint].)

“The court may grant leave to amend the pleadings at any stage of the action.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 6:636 (hereafter Weil & Brown).)  Denial of a motion to amend is rarely justified if the motion is timely made and granting the motion will not prejudice the opposing party. (Id. at ¶ 6:639, citations omitted.)  However, if the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. (Id. at ¶ 6:655, citations omitted. Absent prejudice, any claimed delay alone is not grounds for denial. “If the delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indeed, it is an abuse of discretion to deny leave in such a case even if sought as late as the time of trial. (Id. at ¶ 6:653 (citing Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565).)  “Prejudice exists where the amendment would result in a delay of trial, along with loss of critical evidence, added costs of preparation, increased burden of discovery, etc.  . . .  But the fact that the amendment involves a change in legal theory which would make admissible evidence damaging to the opposing party is not the kind of prejudice the court will consider.”  (Weil & Brown, supra, at ¶ 6:656, citations omitted.)

“Even if some prejudice is shown, the judge may still permit the amendment but impose conditions, as the Court is authorized to grant leave ‘on such terms as may be proper.’”  (Weil & Brown, supra, at ¶ 6:663, citation omitted.)  For example, the court may cause the party seeking the amendment to pay the costs and fees incurred in preparing for trial. (Id. at ¶ 6:664 (citing Fuller v. Vista Del Arroyo Hotel, 42 Cal.App.2d 400, 404).)

California Rules of Court, rule 3.1324:  Procedural Requirements

Pursuant to California Rules of Court, rule 3.1324(a), a motion to amend a pleading before trial must:

“(1) Include a copy of the proposed amendment or amended pleadings, which must be serially numbered to differentiate it from previous pleadings or amendments;

(2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

(3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.”

In addition, under Rule 3.1324(b), a motion to amend a pleading before trial must be accompanied by a separate declaration that specifies the following:

“(1) the effect of the amendment;

 (2) why the amendment is necessary and proper;

(3) when the facts giving rise to the amended allegations were discovered; and

(4) the reasons why the request for amendment was not made earlier.”

DISCUSSION

Relation Back - Doe Amendments

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].)¿¿ 

“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.)¿¿ 

“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]].) 

Analysis

As an initial matter, Plaintiff has satisfied the procedural requirements for making this motion. Plaintiff’s attorney declares that on June 14, 2023, Plaintiff’s expert inspected the subject premises and indicated that Defendant may bear some responsibility for the water leak. (Helmi Decl. ¶ 9.) Plaintiff filed an amendment to add Defendant as Doe 1 on January 11, 2024. However, this motion was brought after meeting and conferring with Defendant’s counsel, who asserted that the action was barred by the statute of limitations since Plaintiff alleged Doe 1 was a natural person, and Defendant is an entity. Plaintiff then filed this motion to correct this characterization.

The parties rely on Milam v. Dickman Const. Co. (1964) 229 Cal.App.2d 208. In Milam, the subject complaint asserted an action against a corporate defendant. After the statute of limitations expired, the plaintiff sought leave to amend the complaint to substitute two natural persons in place of the corporation. (Id. at 209.) The court affirmed the denial of leave to amend, applying the following general rule: a description or characterization of an individual, a partnership or other association can be changed after the statute of limitations has run if the misdescription or mischaracterization is merely a misnomer or defect in the description or characterization. (Id. at 210 [quoting Thompson v. Palmer Corp. (1956) 138 Cal.App.2d 387, 390].) If the change is a substitution or entire change in parties, the amendment will not be allowed. (Ibid.) In Milam, the plaintiff was attempting to substitute entirely different parties. After leave to amend was denied, the plaintiff then substituted the defendants as Does 1 and 2. (Id. at 213.) The court affirmed striking the doe amendments because the original complaint did not contain charging allegations directed at the doe defendants, and thus the doe amendment did not relate back to the complaint.

Milam is not entirely analogous here; nor are the cases which the parties cited. Here, unlike in Milam, the complaint broadly refers to “Defendants,” without naming any particular defendant, and asserts sufficient charging allegations against the named and Doe defendants, specifically that “Defendants, each of them, negligently owned, managed, maintained and operated their property in a manner which caused injury and damage to Plaintiff.  Defendants caused water to leak into Plaintiff's unit causing injury and damage.” (Complaint, 4.) Milam found significant that the complaint failed to state a cause of action against the Doe defendants. (Milam, supra, 229 Cal.App.2d at 214.)

Defendant relies heavily on box 5 of the form complaint, which states that “Each defendant named above is a natural person except defendant (name).” Plaintiff argues that this section does not pertain to Doe defendants, but even if it does, Plaintiff was mistaken and therefore seeks leave to amend. The Court finds that because the charging allegations here sufficiently allege causes of action against all named and Doe defendants, changing the legal status of an unknown Doe is more similar to a misnomer.

CONCLUSION AND ORDER

Accordingly, Plaintiff’s motion for leave to amend their complaint is granted. Plaintiff shall file and serve the amended complaint within 10 days.

Plaintiff to provide notice and file a proof of service of such.