Judge Christopher K. Lui, Case Number: 20STCV35697, Date: 2024-03-20 Tentative Ruling

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein. Counsel must contact the staff in Department 76 to inform the Court whether they wish to submit on the tentative, or to argue the matter. As required by Rule 3.1308(a), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, the Court may adopt the tentative ruling as the final ruling.

Plaintiff alleges wage and hour violations and FEHA violations based upon Plaintiff’s physical disabilities and request for accommodations.

Defendant Darrel Benevuto and Defendant Chris Tanimoto demur to the First Amended Complaint.

Defendant Darrell Benevuto’s and Defendant Chris Tanimoto’s demurrers to the First Amended Complaint are SUSTAINED without leave to amend. Doe Defendants Benevuto and Tanimoto are ordered dismissed with prejudice.

Defendants’ request for attorneys’ fees is DENIED without prejudice to a properly noticed-motion. The Court expresses no opinion as to whether such attorney’s fees motion would be successful, so this should not be construed as an endorsement of the right to attorney’s fees.

Because they raise identical arguments, the Court will address the demurrers of Defendants Darrell Benevuto[1] and Chris Tanimoto at the same time.

The Declaration of Andrew M. Wyatt reflects that Defendant’s counsel satisfied the meet and confer requirement set forth in CCP § 430.41.

Defendants Darrell Benevuto and Chris Tanimoto separately demur to the First Amended Complaint as follows:

Defendant argues that the entire Complaint is uncertain as against this Defendant in that there are no facts pled against this Defendant, as opposed to general allegations lumping all Defendants together.

Defendant also argues that Plaintiff did not serve Doe Defendants within the three-year period set forth in Civ. Proc. Code, § 583.210(a).(Inversiones Papaluchi S.A.S. v. Superior Court (2018) 20 Cal.App.5th 1055, 1061.) The action was commenced on September 17, 2020, but the Doe amendment was filed on January 17, 2024. Defendant argues that the Court has no jurisdiction to allow a Doe amendment at this late date. (Civ. Proc. Code, § 583.250.)

Plaintiff argues that the Court has discretion to allow any amendment up to the time of trial (Civ. Proc. Code, § 576.) Plaintiff argues that the Doe amendment relates back to the original filing of the Complaint because the Doe amendment rests on the same general facts, involve the same injury, and refers to the same instrumentality.

Defendant also argues that Plaintiff’s delay in filing the Doe amendment was unreasonable given that Plaintiff was aware of this Doe Defendant’ identity.

Defendant also argues that Plaintiff failed to exhaust administrative remedies prior to filing against this Defendant.

Plaintiff concedes he did not exhaust administrative remedies as to the Doe Defendant and he is not asserting FEHA claims against Doe Defendants.

Defendant argues Plaintiff’s cannot sue this Defendant for the alleged causes of action because Plaintiff was not employed by this Doe Defendant.

Plaintiff concedes he does not seek to hold this Doe Defendant liable for any of the FEHA claims, nor for Labor Code §§ 98.6, 6310, 6311, failure to pay meal and rest breaks and failure to provide accurate wage statement claims. Plaintiff only seeks to hold the Doe Defendant liable for violation of Labor Code § 1102.5 (whistleblower protection) and Labor Code §§ 201, 202 and 203, for failure to pay all wages upon termination. Plaintiff argues that a person need not be an employer to be held liable for these violations.

Defendant argues that the Court should award attorney fees because Plaintiff had no reasonable basis for bringing claims against these Defendants.

The Court will engage in the following analysis applicable to all causes of action asserted against demurring Defendants:

First, Plaintiff’s use of the Doe amendment procedure was improper because Plaintiff demonstrated actual knowledge of Benevuto (identified as Benvenuto in the 1AC) and Tanimoto. The 1AC alleges their names and their words/actions relative to Plaintiff. (See, 1AC, ¶¶ 7, 17, 18, 20, 21, 23.) Yet, they were not named as Defendants in the 1AC.

“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.” (Code Civ. Proc., § 474.) A plaintiff's ignorance must be genuine and based on a lack of knowledge of the defendant's connection with the case. (General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 594, 55 Cal.Rptr.2d 871.) If a plaintiff satisfies those requirements, the amendment relates back to the filing of the original petition or complaint such that the “statute of limitations stops running as of the date the original complaint was filed.” (Id. at p. 589, 55 Cal.Rptr.2d 871.) Trial courts also have discretion, “in furtherance of justice, and on any terms as may be proper, [to] allow a party to amend any pleading or proceeding by adding or striking out the name of any party.” (Code Civ. Proc., § 473, subd. (a)(1).)

(Organizacion Comunidad De Alviso v. City of San Jose (2021) 60 Cal.App.5th 783, 794 [bold emphasis and underlining added].)

The 1AC was filed on May 17, 2021, yet the Doe amendments were not filed until January 17, 2024, long after Plaintiff had demonstrated actual knowledge of Benevuto and Tanimoto’s identities and roles in the underlying causes of action. As such, Plaintiff cannot avail himself of the Doe amendment procedure set forth in Civ. Proc. Code, § 474.

Second, because Plaintiff cannot avail himself of the Doe amendment procedure, Plaintiff’s addition of Defendant Benevuto and Tanimoto as new parties to this action does not relate back to the filing of the original Complaint.

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. (Citations omitted.) A recognized exception to the general rule is the substitution under section 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. (Citations omitted.) 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. (Citation omitted.)

Here, Plaintiff’s employment with Defendant ended on January 18, 2019, which is the last possible day that Plaintiff’s causes of action could have accrued as against Defendants. (1AC, ¶ 6.) The attempted addition of Benevuto and Tanimoto as Defendants occurred on January 17, 2024—five years later. There is no applicable five year statute of limitations, nor any apparent basis for tolling the statute of limitations as against Defendants Benevuto and Tanimoto. As such, all claims are time barred against these two newly-added Defendants.

Third, even if Plaintiff’s use of the Doe amendment were proper, the Doe defendants were untimely served.

The relation-back doctrine applicable to a fictitiously named defendant and the requirement that a plaintiff serve the summons and complaint within three years are independent concepts. Thus, even where the filing of an amended complaint on a Doe defendant relates back to the filing of an original complaint, the plaintiff must nonetheless identify and serve a Doe defendant with a summons and complaint within three years of the commencement of the action. (Lopa v. Superior Court (1975) 46 Cal.App.3d 382, 387-390, 120 Cal.Rptr. 445 [under predecessor to § 583.210, subd. (a)]; see § 583.250, subd. (d) [requirements of § 583.210 et seq. “are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute”].)

Here, the Complaint was filed on September 17, 2020, whereas the Doe Defendant amendments were not even filed until January 17, 2024. As such, the Doe amendments were untimely under Civ. Proc. Code, § 583.210, which requires that the summons and complaint be served upon a defendant within three years after the action is commenced against the defendant. Dismissal of these defendants is mandatory. (Civ. Proc. Code, s 583.250.)

For the foregoing reasons, the both Defendants’ demurrers to the First Amended Complaint are SUSTAINED without leave to amend. Doe Defendants Benevuto and Tanimoto are ordered dismissed with prejudice.

[1] It is unclear whether Defendant’s surname is Benevuto—as set forth in the notice of demurrer—or Benvenuto—as alleged in the 1AC and the Doe 2 Amendment, and also on the demurrer itself, where counsel is identified on behalf of Defendant Darrell Benvenuto. The Court will utilize “Benevuto” in this demurrer.