Judge Douglas W. Stern, Case Number: 21STCV40262, Date: 2023-08-24 Tentative Ruling

Judge: Douglas W. Stern, Case: 21STCV40262, Date: 2023-08-24 Tentative Ruling

Case Number: 21STCV40262 Hearing Date: October 17, 2023 Dept: 68

Motion to Quash Service of Second Amended Complaint

Greis Azucena Sandoval vs. Blaise Dupart, et al., 21STCV40262

Moving Party: Defendant Tatiana Ingman

Responding Party: Plaintiff Greis Azucena Sandoval

Background

Defendant Tatiana Ingman (Defendant) filed this motion to quash service of second amended complaint pursuant to CCP §§ 418.10 and 474. Defendant filed the motion on the basis that Plaintiff Greis Azucena Sandoval (Plaintiff) was not entitled to substitute Defendant as a “Doe” defendant in this action. Defendant argues that Plaintiff was not ignorant of her name, identity, or the facts upon which she purports to state her claims, and she argues that Plaintiff improperly delayed filing the “Doe” amendment until after Defendant Norber Properties Management LLC filed its motion for summary adjudication. The Second Amended Complaint in this case was filed on April 1, 2022. The motion for summary adjudication was filed on May 12, 2023. Tatiana Ingman, who is the attorney for the other Defendants and wife of Blaise Dupart, was added as a Defendant on June 21, 2023.

Plaintiff argues in her opposition that she did not have actual knowledge of Defendant’s potential liability or involvement at the time she filed the suit, and she argues that knowledge of identify does not equate to knowledge of liability.

CONCERN REGARDING AUTHORITY CITED TO THE COURT

Defendant points out in her reply that a couple of the cases cited by Plaintiff in her opposition either do not exist or do not stand for the premise which Plaintiff claims that they do.

Plaintiff cites Miller v. Fortune (2010) 178 Cal.App.4th 1255 stating:

“In Miller v. Fortune (2010) 178 Cal.App.4th 1255, 1261, the court held that it was not mere knowledge of the person but the understanding of their liability that triggers the naming responsibility.” (Opposition g 4:11-13.)

A search for that case shows that this case does not exist. The case that appears at 178 Cal. App. 4^th 1255 is People v. McRoberts (2010) 178 Cal.App.4^th 1249. At page 1261 the case is People v. Katzenberger.

The Court located a case titled Miller v. Fortune Commercial Corporation (2017) 15 Cal. App. 5^th 214. That case did not involve the topic for which Plaintiff cites a Miller v. Fortune case.

Plaintiff also cites Taylor v. Varga (1995) 37 Cal.App.4th 750, 758, claiming that this case stands for the premise that “knowing someone does not equate to knowing their potential liability in a legal dispute.” (Opposition pg. 4:6-7.) While that is a real case, reading that page of that case, there is no mention of the premise which Plaintiff is claiming. Plaintiff’s attorney has violated CCP § 128.7(b)(2) by citing to fake and improper cases. The Court is issuing an order to show cause to address these matters.

Analysis

As for the substance of Defendant’s argument, CCP § 474 states:

“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…”

Defendant argues that for CCP § 474 to apply, a plaintiff must actually be ignorant of the name or identify of the fictitiously named defendant at the time the complaint is filed. (Hazel v. Hewlett (1988) 201 Cal.App.3d 1458, 1464.) Defendant argues that the facts that Plaintiff has alleged indicate that Plaintiff knew of Defendant and Defendant’s actions prior to filing the amended complaint. A review of the Plaintiff’s own declaration shows that she knew of the identity of Defendant Ingman and the conduct that she engaged in prior to filing the lawsuit.

“4. When I worked for the Defendants, I was overworked because the Defendants would require me at times to leave my apartment at 8:00 a.m. when my schedule began at 9:00 a.m. Ms. Tatiana Ingman would drive me to various relatives’ homes and have me clean their houses, and she would rush me so she could drive me back to the NORBER premises to perform my cleaning duties there.

5. I was surprised to learn that Ms. Tatiana Ingman was married to Defendant Dupart because she acted like she was his boss, and he would do whatever she said.

6. I worked and worked, and never did either Defendants, nor Ms. Ingman ever say to me to take a break, or to take a lunch break. I worked each day like this so I thought it was just normal.

11. Instead of accommodating me for my injuries, Defendant Dupart and Ms. Ingman began discriminating against me and making derogatory statements about my pregnancy.

15. On April 30, 2021, Defendant Dupart brought my husband discharge papers.

16. Then Defendant Dupart asked me to come to the office that he wanted to talk to me about a position, but I did not accept Defendants Dupart and NORBER’S offer as resident manager part-time if I dropped my lawsuit. I believe he only offered me that position because Ms. Ingman told him to offer it to me. Ms. Ingman and Defendant Dupart knew I had hired an attorney with regard to the hostility, harassment and degradation I received from them.

20 * * * Defendants and Ms. Ingman were hostile to me, discriminated against me, ridiculed and made fun of my injuries while I was pregnant. Ms. Ingman would make derogatory remarks about my pregnancy and my race; she was very mean to me and her despicable treatment made me so sad. Ms. Ingman treated me as if I did not deserve to be treated humanely.

In the Opposition Plaintiff notes:

“Ms. Ingman's involvement and conduct during her employment, especially her derogatory and discriminatory remarks, render her a suitable defendant in this action. (Sandoval Declaration, ¶¶ 5, 20). Plaintiff contends that Ingman was properly named as a Doe Defendant and that any assertion of improper delay or bad faith amendment is unfounded and self-serving."

Plaintiff knew of the factual basis for naming Ingman as a defendant and the identity of Ingman prior to filing this suit. She was not ignorant of the relevant information and therefore she is not entitled to name Ingman as a “Doe” defendant and obtain the benefit of C.C.P. § 474.

Order

1. The Motion to quash service of the summons and complaint on Ingman as a Doe defendant is GRANTED.

2. The Court is issuing an Order to Show Cause why Plaintiff’s counsel Samuel R. Scherr and Lipeles Law Group APC should not be sanctioned in an amount up to $2,500 and reported to the State Bar of the State of California for the citation of a case that does not appear to exist and the citation of a case for a proposition that is not addressed in the cited case. The OSC hearing shall take place on November 21, 2023 at 8:30 a.m. in Department 68. No later than November 16, 2023 Plaintiff’s counsel Samuel R. Scherr and Lipeles Law Group APC shall file a declaration under oath explaining why the two cases noted herein were cited to the court and how the cases were researched or otherwise found and cited to the court.