Judge: Deborah C. Servino, Case: 30-2021-01230020, Date: 2022-10-28 Tentative Ruling
Specially appearing Defendant SF Markets, LLC’s motion to quash is denied.
By filing a Doe amendment, a noticed motion was not required. (Code Civ. Proc., § 474.) “The purpose of section 474 is to enable a plaintiff to avoid the bar of the statute of limitations when he [or she] is ignorant of the identity of the defendant.’ ” (Davis v. Marin (2000) 80 Cal.App.4th 380, 386.) “‘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. at p. 387, fn. omitted.) “‘Section 474, however, . . . is restricted to the knowledge of the plaintiff at the time of the filing of the complaint.’ [Citations.] “The lack of knowledge of the true name of the defendant ... must be 'real and not feigned.' [Citation.]” (Balon v. Drost (1993) 20 Cal.App.4th 483, 488.) Improper service of a defendant under section 474 may be attacked by a motion to quash. (McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 375; see Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145.) A trial court is required, as a matter of law, to grant a motion to quash service of summons when a party is wrongfully served as a Doe defendant. (McClatchy v. Coblentz, Patch, Duffy & Bass, LLP, supra, 247 Cal.App.4th at p. 375 [relying on Optical Surplus, Inc. v. Superior Court (1991) 228 Cal.App.3d 776, 782-783].)
SF Markets argues that “the burden is on the plaintiff to prove the existence of jurisdiction” where “a defendant challenges the court’s personal jurisdiction on the ground of improper service of process.” (Mot., at p. 6:10-14 [citing Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413].) However, SF Markets does not challenge sufficiency of the personal service, completed on August 19, 2022. (See Proof of Svc. [ROA 39].) Instead, SF Markets challenges Plaintiff Ginger Lucero’s compliance with Code of Civil Procedure section 474, which governs Doe amendments. The court declines to determine whether Plaintiff has the burden to prove that she was genuinely ignorant of SF Markets or SF Markets has the burden to prove that Plaintiff was not genuinely ignorant of SF Markets.
In this instance, Defendant asserts the amendment fails, as Plaintiff was not genuinely ignorant of Defendant. To support this claim, Defendant offers photographs which demonstrate that Defendant’s store is clearly labelled as “SPROUTS.” (Melo Decl., ¶ 2 & Exh. A.) Additionally, Defendant asserts that Sprouts has “at least five (5) different cart corrals with signs bearing the Sprouts name in green letters and the Sprouts logo. . .” (Mot., at p. 9:26-28.)
In response, Plaintiff asserts that “the shopping center where Plaintiff fell and injured herself is a strip mall consisting of numerous stores including a large Walmart located adjacent to the Sprouts store and sharing a common parking with Sprouts. . .” (Opp., at p. 2:8-14.) Plaintiff offers pictures of the defective corral, taken at or near the time of Plaintiff’s injury. She claims that a coat hanger on the ground suggested the corral belonged to a store which sells clothing. The pictures offered by Plaintiff do not include the signage for the corral. (Opp., at p. 2:21-28; see Hazin Decl., ¶ 2 & Exh. 2.)
Ultimately, the court has been offered no evidence which establishes the location of Plaintiff’s fall. Absent evidence of the location of Plaintiff’s fall, the court has no means by which to conclude that Plaintiff had knowledge of SF Markets’ identity or liability at the time the Complaint was filed, regardless the burden of proof for this motion. Accordingly, the motion is denied, without prejudice to the issue being raised in a motion for summary judgment. (See, e.g., Hahn v. New York Air Brake LLC (2022) 77 Cal.App.5th 895, 899; Woo v. Superior Court (1999) 75 Cal.App.4th 169.)
Within 15 days, SF Markets shall file a responsive pleading to the Complaint.
CASE MANAGEMENT CONFERENCE
The case management conference is continued to February 24, 2023, at 9 am in Department C21.
Plaintiff shall give notice of the ruling and of the continued case management conference.