Judge Lee S. Arian, Case Number: 20STCV12315, Date: 2023-11-09 Tentative Ruling

On March 27, 2020, Plaintiffs Gaudencio Romero, Alberto Reyes Mena, and Sedgwick Claims Management Services, Inc. (“Plaintiffs”) filed this action against Defendants Indigo Construction Corp. (“Indigo”), Calico Construction, Aragon Glendale Properties Corp. (“Aragon Glendale”), and Does 1 through 20, alleging 1) general negligence and 2) premises liability for injuries arising from an accident at a construction jobsite that occurred on April 16, 2019.

The Complaint was amended on May 25, 2023 to add Aragon LA Construction Mgmt. Corp. (“Aragon LA”) as Doe #4.

On October 18, 2023, Aragon LA, along with Aragon Glendale, Indigo, BLF, Inc. Larrabure Framing, and Cal-Coast Construction Specialties, Inc., brought the instant motion to strike the Doe #4 amendment. On October 27, 2023, Plaintiffs filed an opposition. On November 2, 2023, a reply was filed.

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (CCP §§ 435; 436(a).) Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders. (CCP § 436(b).) A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer. (Pierson v Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).) In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers. (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.) California’s policy of liberal construction applies to motions to strike. (CCP § 452; see also Duffy v. Campbell (1967) 250 Cal.App.2d 662, 666 (noting that courts must resolve all reasonable doubts in favor of the pleading when considering a motion to strike).) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (CCP § 436.)

CCP § 474 provides, “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 …”

“The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed.” (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.) “A recognized exception to the general rule is the substitution under [CCP §] 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint… 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.) “Among the requirements for application of the section 474 relation-back doctrine is that the new defendant in an amended complaint be substituted for an existing fictitious Doe defendant named in the original complaint.” (Id.)

CCP § 474 “includes an implicit requirement that a plaintiff may not ‘unreasonably delay’ his or her filing of a Doe amendment after learning of defendant's identity” and unreasonable 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, 1066-67.)

The parties sufficiently met and conferred prior to Aragon LA bringing this motion. (Roberts Decl. paras. 1, 2.)

Aragon LA moves to strike the Doe #4 amendment on the grounds that Plaintiffs delayed amending the Complaint, the amendment unreasonably burdens Aragon LA without benefiting the case, and striking the Doe #4 amendment would further the interests of justice.

For the following reasons, Aragon LA contends that Plaintiffs unreasonably delayed in making the Doe #4 amendment: (1) its identity has been discoverable since this case was filed on March 27, 2020, as it is a business entity that is searchable through the California state online business search portal; and (2) on April 22, 2022, Aragon Glendale provided business records in response to Plaintiffs’ request for production of documents, set one, containing multiple references to Aragon LA. These records included a subcontract agreement between Aragon Glendale and Indigo identifying Aragon LA as the “Owner Representative.” Additionally, on June 7, 2022, Aragon Glendale supplemented their document production with other business records, including BATES Nos. ARA002156-ARA002163, identifying Aragon LA.

Aragon LA also contends that Plaintiffs lack good faith reasons for including it as a defendant in this action. It contends that Aragon Glendale has already provided all of the discoverable evidence that exists and that Aragon LA has nothing more to provide in the way of documents, witnesses’ names and testimony. Aragon LA also contends that its inclusion in this case will not alter the insurance coverage in any way because the policy limits and coverage will remain the same.

Finally, Aragon LA contends that the interests of justice will be furthered by striking the Doe #4 amendment because Plaintiffs would not be harmed and significant harm to Aragon LA would be avoided. Otherwise, Aragon LA would incur unnecessary, expensive defense costs on the eve of trial.

In opposition, Plaintiffs contend that Defendants Aragon Glendale, Indigo, and Cal-Coast lack standing to bring this motion on behalf of Aragon LA. Plaintiffs also contend that all written discovery and documents produced by Defendants consistently identified Aragon Glendale as being the owner/builder of the subject premises and the general contractor that entered into the subcontract for the construction project. Thus, Plaintiffs contend, they had absolutely no reason to believe Aragon LA should be a named Defendant in the case until the deposition of Russell Belifuss on May, 24, 2023. At that deposition, they learned that Belifuss was employed by Aragon LA as the Senior Project Manager of the construction project and was “overseeing pretty much everything” on the job site at the time of the incident. Plaintiffs also learned that Aragon LA acted as a “Management” entity over Aragon Glendale. Plaintiffs contend they acted diligently and immediately filed the Doe Amendment to add Aragon LA as a Defendant on May 25, 2023, the day after the Belifuss deposition. Furthermore, Plaintiffs contend that because Aragon LA and Aragon Glendale are separate entities, if this motion were granted and the Court were to find Aragon LA partly liable, it would be unable to render judgment against Aragon LA resulting in severe prejudice to Plaintiffs.

In reply, Aragon LA first contends that it has proper standing to bring this motion as well as the other moving defendants, who will be impacted by the inclusion of Aragon LA at the eleventh hour. Next, it argues that Plaintiffs in their opposition simply ignore that Aragon LA’s identity was produced in discovery responses in the subcontract and the insurance policy. Furthermore, regarding Plaintiffs’ contention that it did not learn Aragon LA’s identity until the Belifuss deposition, Aragon LA points out that it was not subserved until four months after the Belifuss deposition. Additionally, Aragon LA contends that any missing discovery is Plaintiffs’ fault because throughout its extensive discovery thus far, Plaintiffs failed to request any information about the role of Aragon LA. Finally, Aragon LA contends that it will be prejudiced if the Court were to deny this motion but that if that were to happen, it is entitled at the very least to a continuance of the current trial date, as it is rapidly approaching.

As an initial matter, the Court finds that Aragon LA has standing to bring this motion as it has been added as a Doe defendant.

Next, the Court finds that Plaintiffs did delay in making the Doe #4 amendment but the delay was not unreasonable. Therefore, it is unwilling to grant Defendants’ request to strike the amendment.

The 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. (General Motors Corp. v. Sup.Ct. (1996) 48 Cal.App.4th 580, 588.) If the actual knowledge test is satisfied, it is irrelevant that plaintiff was negligent or failed to exercise reasonable diligence in not having discovered defendant's identity or liability earlier. 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. (Grinnell Fire Protection System Co. v. American Sav. & Loan Ass'n (1986) 183 Cal.App.3d 352, 359.) Similarly, the fact that there were means by which plaintiff could have determined the identity or capacity of a “Doe” defendant when the complaint was filed is irrelevant to whether plaintiff was “ignorant” of these matters. (General Motors, supra. at 881.) That the cause of action accrued earlier than the date of the Doe amendment does not affect the validity of the amendment because the Doe defendant is deemed a party from the time of commencement of the lawsuit. (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 943.)

Here, Plaintiffs acknowledge that Aragon LA was named in the subcontract agreement between Aragon Glendale and Indigo as “Owner Representative.” However, because Aragon Glendale was named as the “Owner” of the subject property, Plaintiffs contend they had no reason to believe Aragon LA should be named as a defendant until the deposition of Belifuss. The Belifuss deposition clarified for Plaintiffs that Aragon Glendale was an entirely separate company from Aragon LA, with wholly separate roles (Aragon LA was the management entity and Aragon Glendale was the owner). (Downey Decl. ¶¶ 5, 7, Ex. 3 - Belifuss Depo. at 25:14-16, 25:23-25, and 201:17-202:18.) Therefore, though it is true that Plaintiffs were aware of Aragon LA’s identity much earlier than they moved to amend the Complaint, they did not have actual knowledge of the fact that Aragon LA was a separate entity from Aragon Glendale until the Belifuss deposition, after which they immediately moved to amend the Complaint.

Aragon LA contends that it will be prejudiced by the amendment because it will be forced to expend costs and time defending itself in this litigation. That is an issue faced by every defendant litigant and is insufficient grounds to strike the Doe amendment. Nonetheless, the Court will continue the current trial date to minimize any potential prejudice to Aragon LA and to ensure all parties have sufficient time to prepare for trial.

Accordingly, Defendants’ motion to strike the Doe #4 amendment is DENIED and trial will be continued to a date to be addressed at the hearing on this motion.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Lee S. Arian

Judge of the Superior Court