Judge: Lisa R. Jaskol, Case: 20STCV45015, Date: 2023-09-07 Tentative Ruling

Case Number: 20STCV45015    Hearing Date: December 11, 2023    Dept: 28

Having considered the moving papers, the Court rules as follows. 

BACKGROUND 

On November 24, 2020, Plaintiff Daniel Garcia (“Plaintiff”) filed this action against Defendants Ad Trucking and Does 1-10 for motor vehicle tort and general negligence. 

On January 12, 2021, Defendant Ad Trucking filed an answer. 

On April 4, 2023, Plaintiff amended the complaint to add Defendant Jose Enrique Romero Fierra (“Fierra”) as Doe 1. 

On April 13, 2023, Plaintiff amended the complaint to add Defendant Jean Mariana Lopez as Doe 2. 

On May 2, 2023, Plaintiff amended the complaint to replace Defendant Ad Trucking with Defendant Jean Mariana Lopez dba Ad Trucking (“Ad Trucking”). 

On October 16, 2023, Fierra filed a motion to quash service of the summons, complaint, and Doe amendment to be heard on December 11, 2023.  Plaintiff has not filed an opposition. 

Trial is currently scheduled for January 19, 2024. 

PARTY’S REQUEST 

Fierra requests that the Court quash service of summons, complaint, and Doe amendment. 

LEGAL STANDARD 

         Code of Civil Procedure section 474 provides in part: 

“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.) 

 Code of Civil Procedure section 418.10, subdivision (a)(1), provides: 

“(a)  A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: 

“(1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” 

(Code Civ. Proc., § 418.10. subd. (a)(1).) 

A motion made under section 418.10 does not constitute an appearance unless a court denies the motion.  (See L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) (Cal. Practice Guide) ¶ 3:376, p. 3-116 [“If the motion is denied, defendant is deemed to have made a general appearance – waiving any jurisdictional objection – upon entry of the order denying the motion” (emphasis omitted)].)  

DISCUSSION 

Fierra argues that Plaintiff’s amendment naming him Doe 1 was improper because Plaintiff knew Fierra’s identity and potential liability to Plaintiff when Plaintiff filed the complaint. 

“Designating a defendant by a fictitious name is proper only if plaintiff is genuinely ignorant of the defendant’s true name or the facts rendering defendant liable when the complaint was filed.”  (Cal. Practice Guide, supra, ¶ 6:80, p. 6-26.) “ ‘The 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.  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,’ and there is no duty to exercise reasonable diligence to obtain those facts.”  (Id., ¶ 6:80, pp. 6-26 to 6-27, quoting Hahn v. New York Air Brake LLC (2022) 77 Cal.App.5th 895, 899-900.) 

Fierra has submitted Plaintiff’s responses to discovery and deposition testimony which show that, on the day of the accident that gave rise to this lawsuit, Plaintiff knew that Fierra was the driver of the truck that struck Plaintiff’s vehicle and Fierra was “apologetic” and “remorseful” about the accident.  Therefore, it cannot be said that, when Plaintiff later filed the complaint, Plaintiff was genuinely ignorant of Fierro’s name and the facts rendering him potentially liable.

Fierra argues that, because Plaintiff did not properly use the Doe amendment process to name Fierra as a defendant, the amendment naming Fierra (filed April 13, 2023) does not relate back to the date Plaintiff filed the complaint (November 24, 2020) for statute of limitations purposes.  According to Fierra, the statute of limitations had expired by April 13, 2023, when Plaintiff filed the Doe amendment.  Plaintiff does not specify the length or source of the statute of limitations but presumably is referring to the two-year statute of limitations provided by Code of Civil Procedure section 335.1. 

Based on the improper Doe amendment, the Court finds that it lacks jurisdiction over Fierra for purposes of Code of Civil Procedure section 418.10, subdivision (a)(1), and grants Fierra’s motion to quash. 

CONCLUSION 

The Court GRANTS Defendant Jose Enrique Romero Fierra’s motion to quash service of summons.  The Court quashes service of the summons. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.