Judge: Donald F. Gaffney, Case: Aguirre v. City of Brea, Date: 2023-05-17 Tentative Ruling
TENTATIVE RULING:
For the reasons set forth below, Defendant A&E Consultants Group, Inc.’s motion to quash Doe Amendment to First Amended Complaint is DENIED.
For the reasons set forth below, Defendant A&E Consultants Group, Inc.’s Demurrer to the First Cause of Action for negligence - dangerous conditions of public property under Gov. Code §§ 830 and 835 is SUSTAINED, without leave to amend. The Demurrer to the Second Cause of Action for negligence is OVERRULED.
Motion to Quash
“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.)
“Section 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 her complaint when the defendant's true name is discovered. [Citations.]” (Hahn v. New York Air Brake LLC (2022) 77 Cal.App.5th 895, 897-898 (Hahn).)
“After the statute of limitations has run, the relation-back doctrine can save an amended complaint that identifies a fictitiously-named defendant and asserts a cause of action against that defendant only if: (1) the amended complaint is based on the same general state of facts as the original; (2) the original complaint stated a valid cause of action against the now-identified defendant; and (3) the plaintiff was “genuinely ignorant” of the defendant's identity or the facts rendering defendant liable when the original complaint was filed. [Citations.]” (Eghtesad v. State Farm General Ins. Co. (2020) 51 Cal.App.5th 406, 415.) “If [section 474’s] requirements are satisfied, the amendment relates back and the substituted defendant is considered to have been a party from the action's start. [Citation.]” (Hahn, supra, 77 Cal.App.5th at p. 898.)
With regards to ignorance, “[t]he test 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.]” (Hahn, supra, 77 Cal.App.5th at p. 899.) The defendant challenging the propriety of a doe amendment has the burden of proving that the plaintiff knew facts giving them a cause of action against it. (Id., at p. 900; Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1173.)
Lastly, “section 474 includes an implicit requirement that a plaintiff may not ‘unreasonably delay’ his or her filing of a Doe amendment after learning a defendant's identity. [ ] [A] defendant named in an action by a Doe amendment under section 474 may challenge the amendment by way of an evidence-based motion, which argues that the plaintiff ‘unreasonable delayed’ his or her filing of the challenged amendment. [ ] ‘[U]nreasonable delay’ … includes a prejudice element, which requires a showing by the defendant that he or she would suffer prejudice from plaintiff's delay in filing the Doe amendment.” (A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1066, 1067.)
“Improper service of a defendant under section 474 may be attacked by a motion to quash. [Citation.] ‘If the terms of ... section 474 have not been complied with, the purported defendant has not been named as such in the complaint. A service upon one not named in a complaint does not confer jurisdiction to proceed upon the complaint against him, and a motion to quash is proper.’ [Citations.]” (McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 375.)
Here, Defendant A&E argues that Plaintiff was not genuinely ignorant of its identity when he filed his Doe Amendment because he was put on notice of A&E’s identity when City filed its cross-complaint on June 10, 2020, and Plaintiff has known of A&E for two years through continuous pleadings and discovery that subsequently transpired in this case, including Plaintiff noticing the deposition of A&E’s person most knowledgeable and propounding written discovery on it.
Although Defendant A&E cites to the applicable authority, it incorrectly applies it. A plaintiff’s ignorance of a Doe defendant is evaluated at the time the plaintiff filed the original complaint with the Doe allegations. The Doe allegations serve as a place holder and the plaintiff can subsequently substitute a defendant for the Doe if the requirements of section 474 are met. As such, the issue is whether Plaintiff was ignorant of Defendant A&E at the time he filed the original complaint, not when Plaintiff filed the Doe Amendment.
The original complaint was filed on October 10, 2019. It included Does 1-50 and in the First Cause of Action for negligence against Does 26-50, it alleged they “performed work on the premises resulting in the installation, placement, and presence of an unsafe environment in a dangerous, defective and unsafe condition” and their conduct included negligence “due to failure to differentiate between the make, model, and color of the curb and adjacent parking lot pavement, which created a dangerous condition in the common area within the premises.” [ROA 2, complaint, ¶ 9]
Plaintiff filed the FAC on May 20, 2020. It included Does 1-50, changed the cause of action against Does 26-50 to the Second Cause of Action for negligence, and alleged Does 26-60 “negligently designed, owned, maintained and controlled the curb and the area immediately surrounding the curb;” that as “owners, controllers, installers or designers of the curb and the area immediately surrounding the curb, they owed Plaintiff a duty of reasonable care, which included but was not limited to, ensuring that the curb was designed, manufactured, constructed, maintained, or installed in a reasonably safe condition and to diligently inspect the curb to discover and correct any defects;” and they owed a duty to warn of potential hazards created by the constructing of the curb and surrounding structures.” [ROA 17, FAC, ¶¶ 27-33] The FAC was stricken by the court in March 2021. [ROA 62] After the court vacated the dismissal in September 2021, it ordered all stricken documents to be re-filed. [ROA 88] Plaintiff refiled the FAC on December 3, 2021. [ROA 161] The re-filed FAC is the same as the one filed in May 2020. [Compare ROA 17 with ROA 161] The FAC’s cause of action for negligence against Does 26-50 is based on the same general facts as the original complaint’s negligence cause of action against Does 26-50.
Defendant A&E failed to show that Plaintiff knew of facts giving him a cause of action against A&E at the time he filed the original complaint in October 2019. Instead, it only argues that Plaintiff was put on notice of its identity after Defendant City filed its cross-complaint in June 2020.
Defendant also argues that the Doe Amendment should be quashed because Plaintiff unreasonably delayed in serving it as a Doe defendant. However, Defendant A&E has the burden of showing that it was prejudiced by the delay but only argued, without supporting evidence, that it would be unduly prejudiced because it has not participated as a direct defendant as it relates to Plaintiff’s claims in the litigation.
Because Defendant A&E has not demonstrated that Plaintiff was not truly ignorant of A&E’s identity when he filed the original complaint or that it was prejudiced by his delay in adding it as a Doe defendant, the motion to quash the Doe Amendment is denied.
Demurrer
Defendant A&E demurs to the First and Second Causes of Action in the FAC. As to the First Cause of Action, Defendant A&E argues that it is not a public entity and, therefore, the First Cause of Action against it must fail. As to the Second Cause of Action, Defendant A&E argues that it is barred by the two-year statute of limitations because Plaintiff’s Doe Amendment is a sham and the statute of limitations expired on July 23, 2021.
The First Cause of Action for negligence - dangerous conditions of public property under Gov. Code §§ 830 and 835 is directed against Defendant City and Does 1-25. Defendant A&E was added in place of Doe 27. However, there is some ambiguity in the First Cause of Action as to whether it is directed at Doe 27 because it contains an allegation that Does 1-50 breached their duty to Plaintiff by failing to maintain the curb in good repair. [FAC, ¶ 22] Plaintiff concedes in his opposition that he cannot maintain the First Cause of Action against Defendant A&E because it is not a public entity. In light of Plaintiff’s concession, Defendant A&E’s demurrer to the First Cause of Action is sustained, without leave to amend.
As discussed in the motion to quash, Defendant A&E failed to demonstrate that the Doe Amendment was improper. As such, the Doe Amendment relates back to the date of the original complaint, October 10, 2019. Defendant A&E argues the statute of limitations expired on July 23, 2021. Because Defendant A&E failed to show that the Second Cause of Action is barred by the applicable statute of limitations, the demurrer to the 2nd cause of action for negligence is OVERRULED.
Plaintiff to give notice of ruling.