Judge Audra Mori, Case 19STCV30845 2023-03-09 Tentative Ruling

Plaintiff Sergio Fraire (“Plaintiff”) filed this action against defendants Margaritaville Enterprises, LLC, et al. for damages arising from a motor vehicle accident that occurred on September 24, 2017. Plaintiff has filed Amendments to Complaint naming Panda Restaurant Group, Inc. (“Panda”) as Doe 1 and Phuc Doan (“Doan”) as Doe 2 on November 16, 2021, and on October 20, 2022, respectively. Trial is currently set for July 21, 2023.

At this time, Doan moves to quash service of summons on the grounds that complaint against him is barred by the statute of limitations, and that the Doe Amendment Plaintiff filed naming Doan is improper. Plaintiff opposes the motion, and Doan filed a reply.

Doan asserts that Plaintiff filed an Amendment to Complaint naming him as a Doe defendant more than five years after the subject accident. Doan argues that the Court no longer has jurisdiction over him because more than two years have elapsed since the date of the accident, and Plaintiff knew, or should have known, Doan’s identity, so the Doe Amendment does not relate back to the filing of the complaint. Doan asserts that the accident occurred at NBC Universal Studios (“Universal”), and that a comprehensive report was taken by Universal after the accident in 2017 that likely identified Doan. Further, Doan contends that Panda identified Doan in written discovery responses in February 2022.

In opposition, Plaintiff argues that Doan is improperly using a motion to quash as an alternative to a demurrer to challenge the Doe Amendment. Additionally, Plaintiff asserts that Doan was properly added as a Doe defendant under CCP § 474, and that Plaintiff did not know Doan’s identity when the complaint was filed. Plaintiff further argues that he was not required to exercise reasonable diligence to determine the identity of factiously named defendants when the complaint was filed.

In reply, Doan contends that a motion to quash is the correct method to challenge service of a late Doe Amendment, and that the authority Plaintiff relies on in this regard is not applicable to the facts of this case. Doan argues that it is irrelevant that Plaintiff did not know Doan’s true identity at the time the complaint was filed because his identity was easily obtainable, and Plaintiff had information as to identity of Doan that Plaintiff could have reviewed.

Plaintiff contends that Doan’s motion is procedurally improper because it is more akin to a demurrer and is not actually a motion to quash. However, “Improper service of a defendant under [CCP] section 474 may be attacked by a motion to quash. (Optical Surplus, supra, 228 Cal.App.3d at p. 782-783, 279 Cal.Rptr. 194 [trial court is required, as a matter of law, to grant motion to quash service of summons when party is wrongly served as Doe defendant].) ‘If 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.’ [Citations.]” (McClatchy v. Coblentz, Patch, Duffy & Bass, LLP, (2016) 247 Cal. App. 4th 368, 375.) Thus, a motion entitled a “motion to quash” which seeks to present the issue of whether a plaintiff “could avail himself of the Doe amendment procedure authorized by section 474 and bring the Doe Defendants into the case” is a procedurally proper motion. (See A.N., a Minor v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1064.)

The cases cited by Plaintiff, Greener v. Workers' Compo Appeals Bd. (1993) 6 Cal.4th 1028 and Stancil v. Superior Court 3 (2021) 11 Cal. 5th 381, did not address the proper procedural vehicle for challenging a Doe Amendment to a civil complaint. Consequently, Plaintiff fails to show that Doan’s motion is improper. The Court will analyze the motion on the merits.

CCP § 474 provides, “When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, 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 …”

“The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed.” (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.) “A recognized exception to the general rule is the substitution under [CCP §] 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint… If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed.” (Id.) “Among the requirements for application of the section 474 relation-back doctrine is that the new defendant in an amended complaint be substituted for an existing fictitious Doe defendant named in the original complaint.” (Id.)

Designating a defendant by a fictitious name is proper only if plaintiff alleges in the complaint that he or she is “ignorant of the name of a defendant.” CCP § 474. Plaintiff's requisite “ignorance” of defendant's name has been expansively interpreted to mean either:

— plaintiff was unaware of defendant's culpability (facts giving rise to a cause of action against the defendant); or

— the law did not give plaintiff a right of action until after commencement of the action.

(See Marasco v. Wadsworth (1978) 21 Cal.3d 82, 88; Snoke v. Bolen (1991) 235 Cal.App.3d 1427, 1431.)

The 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. (General Motors Corp. v. Sup.Ct. (1996) 48 Cal.App.4th 580, 588.) If the actual knowledge test is satisfied, it is irrelevant that plaintiff was negligent or failed to exercise reasonable diligence in not having discovered defendant's identity or liability earlier. A plaintiff will not be refused the right to use a Doe pleading even where the plaintiff's lack of actual knowledge is attributable to plaintiff's own negligence. (Grinnell Fire Protection System Co. v. American Sav. & Loan Ass'n (1986) 183 Cal.App.3d 352, 359.) Similarly, the fact that there were means by which plaintiff could have determined the identity or capacity of a “Doe” defendant when the complaint was filed is irrelevant to whether plaintiff was “ignorant” of these matters. (General Motors, at 48 Cal.App.4th at 581.) That the cause of action accrued earlier than the date of the Doe amendment does not affect the validity of the amendment because the Doe defendant is deemed a party from the time of commencement of the lawsuit. (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 943.)

CCP § 474 “includes an implicit requirement that a plaintiff may not ‘unreasonably delay’ his or her filing of a Doe amendment after learning of defendant's identity” and unreasonable delay “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, 1066-67.)

Here, Doan argues that it is inconceivable that Plaintiff did not obtain Doan’s name during the two years after the accident occurred or the additional three years after this action was filed. Doan asserts that an incident report was prepared by Universal that likely identified the parties in the accident, though the incident report is heavily redacted. (Mot. Exh. A.) Nowhere in the redacted report attached to the motion is Doan named or identified. Notably, on page two of the report, the section identifying the second person involved in the accident, other than Plaintiff, is redacted and does not show the name of the second person involved in the accident. (Id.) The other documents and photographs attached to the report do not expressly identify Doan. This evidence does not show that Plaintiff was actually aware of Doan’s identity when the action was filed. Plaintiff, in opposition, avers that he was taken from the scene of the accident by ambulance, and Plaintiff did not get any information from the driver of the truck involved in the accident. (Opp. Fraire ¶ 4.) Plaintiff attests he was unaware that Doan was the driver until February 2022. (Id. at ¶¶ 7, 10.) While Doan argues that his identity was easily obtainable to Plaintiff, Doan’s evidence does not otherwise show that Plaintiff was not actually ignorant of Doan’s identity when the complaint was filed. (General Motors Corp., 48 Cal.App.4th at 588.) As to Panda’s February 2022 discovery responses identifying Doan as the driver of the vehicle involved in the accident, this evidence would at most show that Plaintiff delayed for some months in filing the Amendment to Complaint naming Doan as Doe 2.[1] However, even if it was found that Plaintiff delayed in filing the Amendment to Complaint, Doan does not contend nor identify any prejudice that any delayed caused him. (A.N., 171¿Cal.App.4th at 1066 [In order to prevail on a motion to bar amendment under CCP § 474 on grounds of unreasonable delay, a defendant “must show not only that the plaintiff was dilatory but also ‘that defendant suffered¿prejudice from any such delay.”].)

Based on the foregoing, Doan’s motion to quash is denied. Doan is ordered to file his answer or responsive pleading within twenty (20) days.

Hon. Audra Mori

Judge of the Superior Court

[1] Plaintiff argues that it did not delay in naming Doan in part because “[i]t was not until June of 2022 that the Defendant revealed that Doan no longer worked for Panda.” [Opposition at 10:11-12.]