Judge Daniel M. Crowley, Case Number: 23STCV15666, Date: 2023-10-09 Tentative Ruling

Plaintiff Wow Media Inc.’s motion for leave to serve discovery is granted.

Plaintiff Wow Media Inc. (“Wow Media”) (“Plaintiff”) moves for this Court to grant it leave to serve discovery notwithstanding the 20-day hold on deposition notices after service of the summons in C.C.P. §2025.210(b). (Notice of Motion, pg. 2.)

Plaintiff filed the instant motion on October 2, 2023. On October 9, 2023, Non-party Davidson Kempner Capital Management, LP (“Davidson Kempner”) specially appeared to file an untimely opposition. On October 10, 2023, Plaintiff filed a response.

Plaintiff objects to consideration of Davidson Kempner’s untimely opposition. The Court, in its discretion, considers Davidson Kempner’s untimely opposition.

Plaintiff requests that the Court issue an Order (1) granting leave to serve third-party discovery in this action, and (2) approving the Subpoena issued out of LASC directed at Davidson Kempner, dated July 21, 2023 (“Los Angeles Subpoena”), pursuant to which a New York subpoena was issued on July 27, 2023 (“New York Subpoena”) in an abundance of caution to end any dispute over whether it can proceed with discovery.

C.C.P. §474 allows a plaintiff who is ignorant of a defendant’s identity to commence suit before the statute of limitations runs by using a fictitious name for that defendant and then amending the complaint when the defendant’s true name is discovered. If the statute’s requirements are satisfied, the amendment relates back, and the substituted defendant is considered to have been a party from the action’s start. (Hahn v. New York Brake LLC (2022) 77 Cal.App.5th 895, 897-898.)

“The test [to determine in a plaintiff has properly invoked C.C.P. §474] is whether, at the time the complaint was filed, the plaintiff ‘was ignorant of the facts giving [her] a cause of action against the person.’ [Citation.] The focus is on the facts that the plaintiff knew, not on whether the plaintiff subjectively knew she had a cause of action based on those facts. [Citation.]” (Id. at pg. 899, citations omitted.)

“Code of Civil Procedure ‘[s]ection 474 allows a plaintiff in good faith to delay suing particular persons as named defendants until [plaintiff] has knowledge of sufficient facts to cause a reasonable person to believe liability is probable.’ ‘[S]ection 474 does not impose upon the plaintiff a duty to go in search of facts she does not actually have at the time she files her original pleading.’” (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1172, citations omitted.)

Plaintiff is obligated to act diligently in amending its Complaint and this Court will expect this Action to proceed without delay. (A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1065-1069 [requiring diligence in amending complaint]; Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 936 [approving use of §474 and discovery to identify wrongdoers but noting that the statute of limitations will not be tolled indefinitely].) “[A] plaintiff may not disregard reasonably available avenues of inquiry which, if vigorously pursued, might yield the desired information.” (Bernson, 7 Cal.4th at pg. 936.)

C.C.P. §474 does not require the naming and service of a known defendant in order to initiate a lawsuit and commence discovery. (See C.C.P. §474.) To require the inclusion and service of a named party prior to the commencement of discovery would defeat the entire purpose of the statute, which is to preserve a plaintiff’s legal rights while it pursues discovery necessary to find defendants and, if appropriate, amend the complaint. (See Optical Surplus, Inc. v. Superior Court (1991) 228 Cal.App.3d 776, 783 [holding C.C.P. §474 provides a method for adding defendants after the statute of limitations has expired, but 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]; Grinnell Fire Protection System Co. v. American Savings & Loan Ass’n (1986) 183 Cal.App.3d 352, 359 [holding C.C.P. §474 “is liberally construed . . . [and] 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”].)

C.C.P. §§1986 and 1987, which establish the rules for issuance of subpoenas, do not include any limitation on when subpoenas may be served relating to service of summons on a defendant. Further, C.C.P. §2025.210(b) states, “The plaintiff may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on, or appearance by, any defendant. On motion with or without notice, the court, for good cause shown, may grant to a plaintiff leave to serve a deposition notice on an earlier date.”

Plaintiff has demonstrated good faith in its delay suing particularly named defendants until it has knowledge of sufficient facts to cause a reasonable person to believe liability is probable. Specifically, Plaintiff has demonstrated that the “Outdoor Advertising Review,” dated June 16, 2022 (“OAR”) was first transmitted by email from FHWA to Steven Keck, Caltrans’ Acting Director, on June 23, 2022. (Decl. of Alger ¶14, Exh. G.)

Plaintiff demonstrated Srikanth Balasubramanian (“Balasubramanian”), Deputy Division Chief of Caltrans Division of Traffic Operations, forwarded the OAR to others within Caltrans by email and suggested a meeting with Caltrans’ incoming Director, Tony Tavares (“Tavares”) and the Caltrans Legal Department “either late next week or the July 4th week.” (Decl. of Alger ¶14.) Balasubramanian told the recipients within the agency, “I want us to be prepared with our actions as soon as we can, before discussing this with others internally or externally.” (Decl. of Alger ¶14, Exh. H, emphasis added.)

Plaintiff has demonstrated the OAR questioned the legality of nine of Plaintiff’s digital displays in Inglewood, on the basis that two of the sign structures (located on the right-of-way for La Cienega Boulevard) were visible from Interstate 405, and seven other digital billboards were visible from surface streets that qualified as “principal arterials” subject to the state Outdoor Advertising Act, Bus & Prof. Code §§5200-5486 (“OAA”), but had not received permits from Caltrans. (Decl. of Alger ¶15.)

Plaintiff has demonstrated the OAR was erroneous in alleging that Plaintiff’s surface street digital displays in Inglewood were unlawful and subject to federal and state highway regulations, further confirmed by Caltrans at a meeting on January 19, 2023, between Balasubramanian and City representatives. (Decl. of Alger ¶17, Exh. J.) Balasubramanian wrote: “Caltrans has determined that it lacks prescriptive and enforcement jurisdiction over local roads, which are part of the National Highway System but not part of the State Highway System. Caltrans’ current State legislated oversight authority is limited to State Highway System with regards to ODA enforcement. Therefore, Caltrans has determined that it has jurisdiction only over two of the nine displays that are located within 660 feet of the State highway right-of-way.” (Decl. of Alger ¶17, Exh. J) Balasubramanian further acknowledged that Caltrans had approved Plaintiff’s displays near the San Diego Freeway. (Decl. of Alger ¶17, Exh. J)

Plaintiff demonstrated that the OAR was improperly transmitted to Davidson Kempner – in a manner that was not privileged – supported by internal emails at Caltrans that were produced to Plaintiff pursuant to requests under the California Public Records Act. Plaintiff demonstrates this based on the fact that George Anzo, Jr., Caltrans’ ODA Permits Manager, did not meet with Heidi Quintrell, Acting Chief of Encroachment and Outdoor Advertising Permits, regarding the OAR prior to July 7, 2022. (Decl. of Alger ¶22, Exh. L.) Plaintiff demonstrated Tavares, the Caltrans Director, was not briefed on the OAR until July 12, 2022. (Decl. of Alger ¶22, Exhs. M-N.) Emails show that officials at Caltrans were putting the OAR on the agenda for an upcoming Traffic Operations Board meeting on July 22, 2022. (Decl. of Alger ¶22, Exh. O.) Plaintiff demonstrates these discussions ultimately resulted in Tavares’ response to the FHWA on August 17, 2022, and the transmittal of the OAR by Caltrans to the mayor of Inglewood on August 31, 2023 – two months after the OAR came into the possession of Louis Littman at Davidson Kempner. (Decl. of Alger ¶22.)

Plaintiff sufficiently demonstrates that it does not have knowledge of the person who circulated the OAR, but that Davidson Kempner has information that would be useful in identifying potential defendants in the instant action.

Accordingly, Plaintiff’s motion for leave to leave to serve third-party discovery in this action and approving the Los Angeles Subpoena is granted.

Plaintiff’s motion for leave to leave to serve third-party discovery in this action and approving the Los Angeles Subpoena is granted.

Hon. Daniel M. Crowley

Judge of the Superior Court