Judge: Deborah C. Servino, Case: 30-2017-00914809, Date: 2022-10-14 Tentative Ruling
Defendants Protect-US and Nadiya Aziz’s (“Defendants”) demurrer to Plaintiff Joseph Morinello’s First Amended Complaint (“FAC”) is sustained without leave to amend.
Defendants argue that the claims against them are barred by the statute of limitations. Relevant to this demurrer, Defendants Protect-US and Nadiya Aziz were not named in the original Complaint. Instead, they were added as Doe Defendants Nos. 6 and 8, by amendments dated June 12, 2018. (ROA 90 & 91.) Subsequently, the demurring Defendants were not named in the FAC. (ROA 132.) Defendants were again added by amendments on March 1, 2019, designating them this time as Doe Defendants Nos. 1 and 4. (ROA Nos. 148 and 151.)
“It has long been the rule that an amended complaint that omits defendants named in the original complaint operates as a dismissal as to them.” (Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1142; See also Kuperman v. Great Republic Life Ins. Co. (1987) 195 Cal.App.3d 943, 947). A dismissal by omission is a dismissal without prejudice. (Fireman’s Fund Ins. Co. v. Sparks Construction, Inc., supra, 114 Cal.App.4th at p. 1143; Kuperman v. Great Republic Life Ins. Co., supra, 195 Cal.App.3d at p. 947.)
“The mere filing of an action and dismissing it without prejudice is not a bar to the filing of a subsequent action, within the statutory period, predicated upon the same cause of action.” (Kuperman v. Great Republic Life Ins. Co., supra, 195 Cal.App.3d at p. 947.) However, where the statute of limitations has run, an amendment may not be permitted. (Fireman’s Fund Ins. Co. v. Sparks Construction, Inc., supra, 114 Cal.App.4th at p. 1143.)
Based on the above, moving Defendants were dismissed from the initial Complaint and subsequently added to the FAC by amendment on March 1, 2019. While Plaintiff asserts “Plaintiff did not dismiss the Moving Defendants upon filing the FAC,” Plaintiff cites no authority which supports this conclusion and Plaintiff does not address the authorities cited above. (Opp., at p. 6:19.)
As further noted by Defendants, while Code of Civil Procedure section 474 allows a plaintiff to name fictitious defendants, the Complaint “must allege that the plaintiff is ignorant of the Doe defendant’s name” and “the plaintiff must actually be ignorant of the Doe defendant’s name, i.e., ‘ignorant of the facts giving rise to a cause of action against that defendant.’” (Fireman’s Fund Ins. Co. v. Sparks Construction, Inc., supra, 114 Cal.App.4th at p. 1143.) “The phrase ‘ignorant of the name of a defendant’ is broadly interpreted to mean not only ignorant of the defendant’s identify, but also ignorant of the facts giving rise to a cause of action against that defendant.” (San Diego Navy Broadway Complex Coalition v. California Coastal Com. (2019) 40 Cal.App.5th 563, 579.)
“Provided these requirements are satisfied, the amendment is deemed to ‘relate[] back’ to the filing date of the original complaint for purposes of the statute of limitations.” (Fireman’s Fund Ins. Co. v. Sparks Construction, Inc., supra, 114 Cal.App.4th at p. 1143.) “Failure to comply with Code of Civil Procedures section 474 does not prevent a plaintiff from filing an amendment adding a new defendant; however, it does prevent the amendment from relating back.” (Ibid.) “[T]he 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.” (San Diego Navy Broadway Complex Coalition v. California Coastal Com., supra, 40 Cal.App.5th at p. 579.)
Here, necessarily Plaintiff was not ignorant of the identities of Defendants nor the facts giving rise to their liability, at the time he filed the FAC. Having previously named Defendants in amendments to the original Complaint, Plaintiff cannot reasonably assert he was unaware of their identifies, at the time he included Does 1 through 10 in the First Amended Complaint. Plaintiff gives no indication that he recently discovered new information, as to Defendants’ capacity. Additionally, as noted by Defendants, both the Complaint and the FAC allege the Doe Defendants “were the agents or employees of other named defendants and acted within the scope of that agency or employment.” (Complaint, at ¶ 6; FAC, at ¶ 6.) Additionally, both Complaints allege: “Does 1-10, over-reacted to plaintiff’s reluctance to move to another location to wait for the Uber driver. Specifically, they injured him while attempting to force him to relocate.” (See GN-1 of Complaint and GN-1 of FAC.) Thus, the capacity of the alleged Defendants is unchanged. (Compare Parker v. Robert E. McKee, Inc. (1992) 3 Cal.App.4th 512, 516.) While the amendments on March 1, 2019 added Defendants to this action, the amendments do not comply with Code of Civil Procedure section 474 and, consequently, do not relate back to any earlier pleading. (Fireman’s Fund Ins. Co. v. Sparks Construction, Inc., supra, 114 Cal.App.4th at p. 1144.)
The statute of limitations for “[a]n action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another,” is two-years. (Code Civ. Proc., § 335.1.) The FAC alleges Plaintiff was injured on July 4, 2016, more than two years prior to the amendments dated March 1, 2019. (See GN-1 of FAC.) Plaintiff’s claims against Defendants are barred by the statute of limitations. Plaintiff has failed to articulate how he would amend to cure this defect. Accordingly, the demurrer is sustained without leave to amend.
Defendants shall give notice of the ruling.
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