Judge: Christian R. Gullon, Case: 20STCV15419, Date: 2023-11-02 Tentative Ruling

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Case Number: 20STCV15419    Hearing Date: November 2, 2023    Dept: O

Tentative Ruling

SPECIALLY APPEARING CROSSDEFENDANT/CROSS-COMPLAINANT HIWAY SAFETY RENTALS, INC.’S NOTICE OF MOTION AND MOTION TO QUASH PLAINTIFFS EDGARDO PANO, JR. AND JONELLE SOLLNER’S IMPROPER/INCOMPLETE SERVICE OF PROCESS is GRANTED (on the grounds that Plaintiffs were not truly ignorant of the facts nor Hi-Way’s identity at the time of filing their complaint, making the negligence COA asserted against Hi-Way barred by the statute of limitations).

Background[1]

This is a wrongful death case arising from a January 27, 2020 accident wherein Luis Eduardo Rios struck Edgardo Pano, Sr while he was riding his bicycle.

On April 22, 2020, Plaintiff Edgardo Pano, Jr. (“Plaintiff”) filed suit against SERRANO DEVELOPMENT GROUP, INC., a California Corporation; PACIFIC EMPIRE BUILDERS, INC., a California Corporation; AZUSA BLOCK 36, LLC, a California Limited Liability Company; CITY OF AZUSA, a Public Entity; JONELLE SOLLER (“Soller”) for the death of his father who was struck by a truck while riding his bicycle.

On July 23, 2020, Plaintiff files his first amended complaint (FAC).

On January 19, 2021, Soller files her operative complaint.

On March 8, 2022, Defendant/Cross-Defendant Serrano Development Group, Inc.; Pacific Empire Builders, Inc. and Azusa Block 36, LLC (“Developer defendants”) file their CrossComplaint.

On June 10, 2022, Hi-Way Safety Rentals, Inc. (“Hi-Way”) was sued/served by Developer Defendants as Roe 1.

On October 19, 2022, Sun Aggregates LLC (“Sun Aggregates”) filed a Cross Complaint for (1) EQUITABLE INDEMNITY; (2) CONTRIBUTION; (3) EXPRESS INDEMNITY; and (4) DECLARATORY RELIEF against Cross-Defendants Developer Defendants; MANUAL D. TEJEDA TRUCKING INC., a California Corporation; LUIS EDUARDO RIOS MORALES dba RIOS TRUCKING; and RIGHT TRUCK INC.

On March 1, 2023, the court set aside Hi-Way’s default (as to Developer Defendants’ cross-complaint).

On July 20, 2023, Plaintiff JONELLE SOLLER, Successor in Interest to EDGARDO ANTONIO PANO, and in her personal capacity, filed an AMENDMENT TO COMPLAINT naming HI-WAY SAFETY RENTALS, INC. as Doe 7.

On July 26, 2023, Plaintiff EDGARDO PANO, JR., filed an AMENDMENT TO COMPLAINT NAMING DOE 7 as HI-WAY SAFETY RENTALS, INC (“Hi-Way”).

On August 23, 2023, Hi-Way filed the instant motion.[2]

On October 20, 2023, Plaintiffs filed respective oppositions.

On October 25, 2023, Hi-Way filed a consolidated Reply.

Legal Standard

The motion is based upon California Code of Civil Procedure (CCP) sections 335.1, 418.10 (a)(1) and (3), 474 and 583.210 and 583.250. (Motion p. 2:27-28.)[3]

Section 418.10 (Objection to Jurisdiction) provides, in pertinent part, the following:

(a) A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes:

(1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.

. . .

(3) To dismiss the action pursuant to the applicable provisions of Chapter 1.5

In turn, Chapter 1.5 (Dismissal for Delay in Prosecution), provides the following:

(a) The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.

(b) Proof of service of the summons shall be filed within 60 days after the time the summons and complaint must be served upon a defendant.

The delay-in-service statute provides that its requirements “are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.” (Code of Civ. Proc., § 583.250, subd. (b.).)

Timeliness

CCP section 418.10 requires that: “(a) A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion . . . (b) notice shall designate, as the time for making the motion, a date not more than 30 days after filing of the notice.”

The notice of motion was filed and served on August 23, 2023, with a set hearing on November 2, 2023, when 30 days from August 22, 2023 is September 22, 2023.

Plaintiff argues that Hi-Way should have sought ex-parte relief for an earlier hearing date. (Opp. p. 4.)[4]

Here, unlike CCP section 583.250(b), supra, which expressly deprives the court with discretion, CCP 418.10 does not use such language. “Ordinarily, where the Legislature uses a different word or phrase in one part of a statute than it does in other sections or in a similar statute concerning a related subject, it must be presumed that the Legislature intended a different meaning.” (Roy v. Superior Court (2011) 198 Cal.App.4th 1337, 1352.) The omission of language that the motion shall be heard within 30 days of making a motion such and is not “subject to extension, excuse, or exception” suggests that the court has discretion to hear an untimely motion. In fact, arguably, section 418.10 (b) provides for a court with discretion (“except that for good cause shown the court may extend the defendant’s time to plead for an additional period not exceeding 20 days”). And one such discretionary power is the court’s power to enforce proceedings before it. (Code of Civ. Proc., § 128(a)(2).) As the court’s schedule is severely impacted making difficult if not nearly impossible to hear a motion within 30 days of making a motion, the court exercises its discretion to hear the motion. (See also Reply p. 3, citing Olinick v. BMG Entertainment (2006) 128 Cal.App 4th 1286, 1296 [“Further, as Weil and Brown observes: “[S]cheduling a hearing date beyond 30 days should not invalidate a motion to quash. Nothing in [section] 418.10 suggests the court must overlook the lack of personal jurisdiction or proper service because of a defendant's failure to schedule a hearing date within 30 days.” (Weil & Brown, Cal. Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2005) § 3:381.)”].)

Therefore, the court rejects Plaintiffs theory that a belated hearing date on a motion to dismiss under section 418.10 deprives the trial court of jurisdiction to consider the merits of the motion.

Discussion

Hi-Way brings forth the motion on the following grounds:

1.     Both of the Plaintiffs Have Failed to Properly Serve Hi-Way Safety Rentals, Inc. With Process.

2.     Neither of the Plaintiffs Was “Truly Ignorant” of Hi-Way Safety Rentals’ Identify or the Potential Claims That Plaintiffs May Have Against It: Plaintiffs’ Doe Amendments Do Not Relate Back to Their Original Filings

3.     Plaintiffs’ Doe Amendments Are Barred Because They Unreasonably Delayed Amending.

4.     Plaintiff Edgardo Pano, Jr.’s Lawsuit Is Subject to Mandatory Dismissal for Failure to Serve a Doe Defendant Within Three Years of Filing the Original Complaint as Required by Statute

5.     Both Plaintiff’s Direct Claims Against Hi-Way Safety Rentals Are Time Barred by the Applicable Statute of Limitations.

(See Table of Contents.)

1.     Whether Hi-Way Was Properly Served?

Hi-Way explains that Plaintiffs served Hi-Way’s counsel (who is not authorized to accept service on behalf of Hi-Way) via email. (Motion pp. 6-7.) As to Plaintiff Pano, Jr., his counsel sent a subsequent email wherein he included a Summons, the First Amended Complaint and a new Doe Amendment on pleading paper rather than the Judicial Council Form initially transmitted. (Motion p. 6:22-25.)

But in Opposition Plaintiffs explain that the service of process was proper as Hi-Way was personally served on August 10, 2023. In Reply, Hi-Way does not appear to dispute personal service. (Reply p. 4:17-18 [“Still, even assuming that each plaintiff’s subsequent service was perfected . . . .”].)

Therefore, the court determines this issue is moot.

2.     Whether Plaintiffs Were Truly Ignorant of Hi-Way’s Identity?

As summarized by the court in Dover v. Sadowinski (1983) 147 Cal.App.3d 113:

Section 474 provides that when a plaintiff is ignorant of a defendant's identity, plaintiff may state that fact in the complaint and name such defendant by a fictitious name. The section further provides that, upon learning the name of the defendant, the plaintiff must amend his complaint in order to state the true name. The proper construction of section 474 was explained in Barnes v. Wilson (1974) 40 Cal.App.3d 199, 144 Cal.Rptr. 839: “The phrase ‘when the plaintiff is ignorant of the name of a defendant’ in Code of Civil Procedure section 474 has not been interpreted literally. The plaintiff is deemed ‘ignorant of the name’ if he knew the identity of the person but was ignorant of facts giving him a cause of action against the person [citations], or knew the name and all the facts but was unaware that the law gave him a cause of action against the fictitiously named defendant and discovered that right by reason of decisions rendered after commencement of the action. [Citations.]” (Id., at p. 205, 114 Cal.Rptr. 839.) In Munoz v. Purdy (1979) 91 Cal.App.3d 942, 154 Cal.Rptr. 472, section 474 was further construed, and the court held that there is no requirement placed upon a plaintiff to exercise reasonable diligence prior to filing the complaint to discover the defendant's identity or the facts giving him a cause of action against the defendant. (Id., at pp. 947–948, 154 Cal.Rptr. 472.) The court further stated, “The lack of knowledge of the true name of a defendant, however, must be ‘real and not feigned.’ [Citation.] A plaintiff must actually be ignorant of the facts giving him a cause of action against a defendant. ‘Ignorance of the facts is the critical issue, and whether it be due to misinformation or negligence is not relevant.’ [Citations.]” (Id. at pp. 116-117, emphasis added.)[5]

“When a complaint alleges a cause of action against a defendant designated by a fictitious name and his true name is thereafter discovered and substituted by amendment, he is considered a party to the action from its commencement and the statute of limitations stops running as of the date the original complaint was filed.” (Pano Jr., Opp. p. 5, citing Snoke v. Bolen (1991) 235 Cal.App.3d 1427, 1431; see also Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.)

Unless the requirements of section 474 are met, the plaintiff may not take advantage of section 474 and later substitute a person in the place of a fictitious “Doe” defendant. (Motion p. 8, citing Nissan v. Barton (1970) 4 Cal.App.3d 76, 79.) Should the requirements of 474 not be met, a motion to quash is the proper mechanism to challenge the invalid 474 Amendment. (Motion p. 8, citing Optical Surplus, Inc. v. Superior Court (1991) 228 Cal.App.3d 776, 782-783.)

a.     The Facts

Hi-Way argues the following: neither of the plaintiffs was truly ignorant of Hi-Way’s identity or of the factual allegations attributed to it because the factual essence of the claims and theory of the case were clearly asserted; namely that the incident and the resulting death of Edgardo Pano, Sr. was caused because the width of northbound Azusa Avenue in the area of the incident was narrowed by negligently placed concrete barriers (“K-rails”) and that each of the defendants “approved, designed, planned, constructed, . . . built, owned, managed, controlled . . . the southeast corner of Azusa Ave. and Foothill Blvd . . . where the collision occurred, and the placement of concrete barriers along Azusa Ave. . . . (Pano, Jr. Complaint and FAC, ¶¶ 26-27, 60, 63, 66, 74.)[6]  

Similarly, in the Soller complaint, Plaintiff asserted that the K-Rail/concrete barriers were “negligently placed.” (Motion p. 9, quoting Soller Complaint ¶ 3; see also ¶¶ 14-15 [allegations regarding the alleged negligent placement, spacing, warnings and general improper narrowing of the roadway and its “geometry”].)

Thus, each of the plaintiff’s liability theories were copiously set forth in their respective complaints. Effectively, both complaints allege the facts—that there were negligently-placed K-rails—and that that said K-rails were owned or controlled by a (doe) defendant.[7]

b.     The Identity

As for the identity of the doe Defendant, Hi-Way provides a compelling argument and evidence: Hi-Way Safety Rentals was emblazoned in black, block letter stenciling on the K-rails spanning the entirety of the construction project; The 800-phone number for Hi-Way was also noted on the K-rails; publicly available photographs on Google Maps capture Hi-Way’s name on the K-rails. (Motion pp. 10-11 [photos attached].)

What is more, Developer Defendants’ responses to Plaintiff’s special interrogatories seeking the identity of the person “responsible” for the K-rails was given to the Plaintiff on May 16, 2022, according to the attached proof of service. (Motion, Ex. Q, p. 114 of 126.) “Responding Party is informed and believes that the k-rails themselves were owned or leased and installed by Hi-Way Safety Rentals, Inc.” Thus, the response to Interrogatories clearly set forth that Hi-Way Safety Rentals was “responsible” for the K-rails and that it provided those K-rails pursuant to a contract with property owner defendant, Azuza Block 36, LLC. But, since May 16, 2022, Plaintiffs took no action in naming Hi-Way. In fact, even after June 10, 2022, when Hi-Way was named as a cross-defendant, Plaintiffs still did not bring Hi-Way into the action.

a.     Soller

To the extent that Soller files an opposition, she does not rebut the numerous arguments advanced by Hi-Way. Rather, she argues that despite the numerous ways in which Hi-Way’s identity was put on notice, it is “quite a leap” for Plaintiff to have known of Hi-Ways identity. (Opp. p. 6:6-7.) The court is uncertain how drawing the conclusion that Soller knew or should have known of the identity is a “leap” when Soller has yet to explain when exactly and how she learned of Hi-Way’s role. Therefore, as the question of the plaintiff's good faith in this regard is for the determination of the trial court but Soller has not offered any explanation, the court finds her 474 amendment is improper. (Hazel, supra, 201 Cal.App.3d at p. 1465.)

b.     Pano Jr.

To the extent that Pano Jr. files an opposition, he does advance a correct point: A plaintiff is not required to exercise reasonable diligence prior to filing the complaint to discover the defendant's identity. (Opp. pp. 5-6.)[8] But to the extent that Pano Jr. relies upon Balon v. Drost (1993) 20 Cal.App.4th 483, 488 to support his proposition that a plaintiff may even act unreasonable, the court disagrees because Balon contradicts rules by the state’s Supreme Court, as articulated by Justice Phelan's dissent.

In Balon, the plaintiff knew the identity of the driver of the car which struck her (as they exchanged personal identification information) and she also knew the driver was the boyfriend of the granddaughter of the car's owner whom she sued. Yet, she claimed to have forgotten the driver’s name and never inquired about it after the accident. Within two weeks after the limitations period expired plaintiff's attorney obtained the driver’s identity from the public accident report and filed an amended complaint under section 474, adding the driver as a defendant previously named as a fictitious defendant. In a divided opinion, the majority opinion considered forgetfulness with no effort to refresh memory to be negligent ignorance, and held that negligent ignorance of a defendant's identity does not preclude adding a defendant under section 474 after the statute of limitations expired. As set forth in a persuasive dissenting opinion, the majority’s opinion ran contrary to the decision in Irving v. Carpentier (1886) 70 Cal.23. (dis. opn. of Phelan, J.).)  “[W]here resort to ‘readily accessible’ information is available to ascertain a true name, a tardy ‘Doe’ amendment should not be allowed.” (Balon, supra, 25 Cal.App.4th at p. 493, emphasis added; see also Schroeter v. Lowers (1968) 260 Cal.App.2d 695, 700 [“This lack of knowledge of the true name of a defendant must be real and not feigned, and must not be wilful ignorance, or such as might be removed by some inquiry or resort to information easily accessible.”], emphasis added.)

Here, the readily accessible information (the police report, the information on the K-rails, etc.) and some inquiry would have apprised Plaintiffs of Hi-Way’s name.

Moreover, there is a significant difference between Balon and the instant case. In Balon, the complaint amendment adding a new defendant was made without delay after an immediate effort by the plaintiff's attorney to determine the identity of the new defendant, and the complaint amendment was correctly made in accordance with the section 474 procedure. In the instant case, Plaintiffs made no effort to promptly identify Hi-Way. These differences undermine Plaintiffs’ contention they acted in good faith to comply with section 474.

To the extent Pano Jr. argues that he didn’t discover the moving defendant’s identity and any supported potential facts uncovering their liability until July 12, 2023 when the person most knowledgeable (“PMK”) for defendant B.L. Price, Co. testified about their connection, the explanation ignores all the other ways Hi-Way’s identity was readily accessible, notably the interrogatory response issued well over one year ago.

Lastly, if as Pano Jr. contends that Plaintiff “is still unaware of any actual and verified facts supporting a theory of liability” against Hi-Way (Opp. p.7:21-23) such that Hi-Way “may not have a place in this lawsuit” (Opp. p. 3:20-21), then the naming of Hi-Way as a defendant is improper. (See Cal. Civ. Proc. Code § 128.7(b)(4) [“By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met . . . (3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.”] see also Blockrath v. Aldrich Chemical Co., (1999) 21 Cal. 4th 71, 81-83.)

Therefore, as the requirements of 474 are not satisfied the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations does not “relate back” to the filing date of the original complaint.[9] (McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal. App. 4th 368.)[10]

Conclusion

In sum, 474 requirements are not met because Plaintiffs were not truly ignorant of the facts nor Hi-Way’s identity, but rather seemingly chose to ignore the facts and identity. Were they truly ignorant, both oppositions failed to provide a good faith showing. Based on the foregoing, the motion is granted.

The court need not address the other arguments.