Judge: Lee S. Arian, Case: 22STCV32586, Date: 2024-03-29 Tentative Ruling

Case Number: 22STCV32586    Hearing Date: April 10, 2024    Dept: 27

Hon. Lee S. Arian

Department 27

Tentative Ruling

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Hearing Date:                4/10/2024 at 1:30 p.m.

Case No./Name.:         22STCV32586 MAHDAD SEYED BERENJI vs MAGPIES SOFTSERVE

Motion:                              MOTION TO QUASH

Moving Party:                 Defendant Peterberg Construction Inc.

Responding Party:      Plaintiff

Notice:                                Sufficient

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Ruling:                               MOTION TO QUASH PLAINTIFF’S DOE 1 AMENDMENT

Background

On October 5, 2022, Plaintiff filed a premises liability claim against Defendants Magpies Softserve, Warren Schwartz, and Rose Schwartz (the “Magpies Defendants”). The Magpies Defendants hired Peterberg Construction (“Peterberg”) as the general contractor for the renovation of a property they leased (“Project”). Peterberg, in turn, subcontracted Plaintiff for some of the electrical work for the Project. Plaintiff alleges that on October 16, 2020, he fell from a ladder while trying to reach the top of the walk-in cooler. The complaint was filed near the two-year statute of limitations deadline. On November 4, 2022, the Magpies Defendants filed a Cross-Complaint against Cross-Defendant Peterburg. On February 7, 2024, Plaintiff filed an Amendment to Complaint, listing Peterberg as DOE 1. Defendant Peterberg now moves the Court to quash the DOE amendment, arguing that Plaintiff, at the very latest, knew of Peterberg's existence since 2022 and failed to amend the complaint for 2 years. Plaintiff counters that he recently learned that the ladder in which he fell off of might have belonged to Peterberg.

Request for Judicial Notice 

Peterberg requests the court take judicial notice of 1) Plaintiff’s complaint in this action; 2) the Cross-Complaint filed by the Magpies Defendants against Peterberg Construction, Inc. and IRC Tel Electric, Inc; 3) the Cross-Complaint filed by Peterberg against Mahdad Seyd Berenji DBA IRC Tel Electric; 4) Plaintiffs’ answer to Peterberg’s Cross-Complaint; 4) Peterberg’s Motion for Summary Judgment against the Magpies Defendants’ Cross-Complaint and 5) the Amendment to Complaint (Fictitious/Incorrect Name) filed by Plaintiff naming Peterberg as Doe 1. The requests are GRANTED.  (Evid. Code §§ 452(c); 452(h).)   

Legal Standard and Analysis

The addition of a Doe defendant is governed by Code of Civil Procedure section 474, which 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. 

“When a defendant is properly named under section 474, the amendment relates back to the filing date of the original complaint.”  (McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 371.)  The Complaint alleges that the “DOE is responsible, negligently or in some other manner, for the events and happenings herein referred to, and thereby proximately caused injuries and damages to the Plaintiff as hereinafter alleged.” (Compl. ¶ 3.)   

On February 7, 2024, Plaintiff filed the Doe Amendments. The statute of limitations for torts claim is two years and the incident occurred on October 16, 2020. The Doe Amendment is untimely unless the relation back rules of Code of Civil Procedure section 474 apply. 

A motion entitled a “motion to quash” which seeks to present the issue of whether a plaintiff “could avail himself of the Doe amendment procedure authorized by section 474 and bring the Doe Defendants into the case” is a procedurally proper motion.  (A.N., a Minor v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1064.)   “Section 474 provides a method for adding defendants after the statute of limitations has expired, but this procedure is available only when the plaintiff is actually ignorant of the facts establishing a cause of action against the party to be substituted for a Doe defendant.  The question is whether the plaintiff knew or reasonably should have known that he had a cause of action against the defendant.”  (McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 371–372 (internal citation omitted).) 

If the identity of the Doe defendant is known but, at the time of the filing of the complaint the plaintiff did not know facts that would cause a reasonable person to believe that liability is probable, the requirements of section 474 are met. “Section 474 allows a plaintiff in good faith to delay suing particular persons as named defendants until he has knowledge of sufficient facts to cause a reasonable person to believe liability is probable.” (Dieckmann v. Superior Court (1985) 175 Cal.App.3d 345, 363.) Plaintiff need not be aware of each and every detail concerning a person’s involvement. (General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 594-95)

It is undisputed that Plaintiff has been aware of Peterberg even before filing the present complaint. Peterberg served as the general contractor for the renovations of the Magpies Defendants’ property, and Plaintiff worked as a subcontractor for Peterberg. In Plaintiff’s deposition, he testified about his contract with Peterberg Construction in connection with the Magpies project. Furthermore, Plaintiff’s counsel produced a check bearing Peterberg's name dated June 25, 2020. If Peterberg was not known to Plaintiff in 2020, it is beyond doubt that Plaintiff became aware of Peterberg when Peterburg was named in the Magpies Defendants’ Cross-Complaint filed on November 4, 2022.

Peterberg’s identity is not a point of contention.  Rather,  Plaintiff contends that at the time of filing the complaint Plaintiff believed the ladder used and subsequently fallen from belonged to the Magpies Defendants. It was not until Defendant Warren Schwartz’s and Peterberg’s depositions that Plaintiff discovered this might not be the case.

However, the court does not find Plaintiff’s argument persuasive. Plaintiff need not know every detail concerning a person’s involvement before it is required to make the Doe amendment.  The standard is whether Plaintiff knew enough that would cause a reasonable person to believe that liability is probable. (Dieckmann v. Superior Court (1985) 175 Cal.App.3d 345, 363.)

The Court finds that a reasonable person would have believed that liability is probable when the Magpies Defendants filed a cross complaint against Peterberg for indemnity and contribution for Plaintiff’s injury in November 2022. In the complaint, Plaintiff does not make a narrow allegation against Doe defendants concerning just the ownership of the ladder.  Rather, Plaintiff alleges that “DOE is responsible, negligently or in some other manner, for the events and happenings herein referred to, and thereby proximately caused injuries and damages to the Plaintiff as hereinafter alleged.” (Complaint ¶3). When the Magpies Defendants, in their cross complaint against Peterberg, allege that "Plaintiffs sustained injuries as a direct result of the negligence of Cross-Defendants" (Cross-Complaint at pg. 2), and "The Plaintiffs’ damages, if any, were caused by the negligence and carelessness of the Cross-Defendants" (Cross-Complaint at pg. 3), a reasonable person would believe that Peterberg’s liability is probable and would have amended its complaint to include Peterberg as a Defendant in November 2022 when the cross-complaint was filed.

Further, as noted in the Reply, the declaration opposing the Moiton is made by counsel.  But, he has no personal knowledge of the facts that purportedly made the Plaintiff aware of Peterberg’s alleged potential liability.

Accordingly, Defendant’s motion to quash is GRANTED.

¿PLEASE TAKE NOTICE:

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If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept27@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  

Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.