Judge: Lisa R. Jaskol, Case: 22STCV34841, Date: 2024-06-10 Tentative Ruling
Case Number: 22STCV34841 Hearing Date: June 10, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On November 1, 2022, Plaintiffs Jerry Guerra Jr. (“Guerra”) and Theresa Galvan (“Plaintiff”) filed this action against Defendants Shirley Woo (“Shirley Woo”) and Does 1-50 for negligence.
On September 7, 2023, the Court dismissed Guerra from the complaint with prejudice at Plaintiffs’ request.
On
November 7, 2023, Shirley Woo filed an answer.
On May 2, 2024, Jonathan Woo filed a motion to quash service of the summons and complaint, to be heard on June 4, 2024. The Court continued the hearing to June 10, 2024. On May 20, 2024, Plaintiff filed an opposition. On May 29, 2024, Jonathan Woo filed a reply.
Trial is currently scheduled for September 23, 2024.
PARTIES’ REQUESTS
Jonathan Woo, specially appearing, asks the Court to quash service of the summons and complaint.
Plaintiff asks the Court to deny the motion.
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 provides in part:
“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 Code of Civil Procedure 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)].)
“ ‘Although a proper basis for personal jurisdiction exists and notice is given in a manner which satisfied the constitutional requirements of due process, service of summons is not effective and the court does not acquire jurisdiction of the party unless the statutory requirements for service of summons are met.’ ” (Engebretson & Co. v. Harrison (1981) 125 Cal.App.3d 436, 443 (Engebretson), quoting Schering Corp. v. Superior Court (1975) 52 Cal.App.3d 737, 741.)
“ ‘When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process the burden is on the plaintiff to prove … the facts requisite to an effective service.’ “ (Cal. Practice Guide, supra, ¶ 4:421.5, p. 4-72, quoting Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.)
DISCUSSION
Jonathan Woo argues that Plaintiff was not ignorant of his name when Plaintiff filed the complaint. At Plaintiff’s April 23, 2024 deposition, Plaintiff acknowledged that after the accident, Plaintiff interacted with Jonathan Woo for several minutes, exchanging driver’s licenses, insurance paperwork, and phone numbers. Based on this interaction, Plaintiff reached conclusions about Jonathan Woo’s approximate age, ethnicity, and height. Therefore, Jonathan Woo argues, Plaintiff has known about his identity since the November 6, 2021 accident, including when she filed the complaint.
Jonathan Woo also argues that, even assuming Plaintiff did not know his identity when she filed the complaint, Plaintiff did not promptly amend the complaint upon discovering his name. He notes that Plaintiff identified him as a “driver” and listed his address in Plaintiff’s December 20, 2023 answers to Shirley Woo’s form interrogatories. Nonetheless, Jonathan Woo contends, Plaintiff did not amend the complaint to add him as a defendant until April 2, 2024, which was more than two years after the November 6, 2021 accident and therefore beyond the statute of limitations. (Code Civ. Proc., § 335.1.)
Plaintiff opposes the motion, arguing that she did not Jonathan Woo’s identity when she filed the complaint. Plaintiff does not dispute Jonathan Woo’s contention that she knew his identity when she spoke with him after the accident. Instead, she argues that she “had no recall of his identity” when she filed her complaint. (Opposition pp. 3-4.)
To support her argument, Plaintiff cites Balon v. Drost (1993) 20 Cal.App.4th 483 (Balon), where the plaintiff was involved in a car accident with the defendant, who gave the plaintiff a piece of paper with the defendant’s name and other information. (Balon, supra, 20 Cal.App.4th at pp. 485-486.) The plaintiff felt dazed by the accident and subsequently forgot about the piece of paper and the defendant’s identity. (Id. at p. 486.) The plaintiff filed a complaint naming the owner of the vehicle the defendant was driving (“owner”) and Doe defendants. The plaintiff’s attorney did not receive the accident report, which contained the defendant’s name, until after statute of limitations had run. (Ibid.) The plaintiff’s attorney then filed an amendment to the complaint under Code of Civil Procedure section 474 naming the defendant as a Doe defendant and declaring that the plaintiff did not know the defendant’s identity when she filed the original complaint. The defendant, specially appearing, filed a motion to quash service of the summons and complaint. The trial court granted the motion, finding the plaintiff did not comply with Code of Civil Procedure section 474. (Id. at pp. 486-487.)
In a divided decision, the Court of Appeal reversed, observing that under Code of Civil Procedure section 474, a plaintiff has no duty “ ‘to exercise reasonable diligence prior to filing the complaint to discover the defendant's identity.’ ” (Balon, supra, 20 Cal.App.4th at p. 488, quoting Snoke v. Bolen (1991) 235 Cal.App.3d 1427, 1432.) “ ‘Ignorance of the facts is the critical issue, and whether it be due to misinformation or negligence is not relevant.’ ” (Ibid., quoting Munoz v. Purdy (1979) 91 Cal.App.3d 942, 947.) “Clearly, if a plaintiff has no duty to exercise even ‘reasonable diligence’ to discover a defendant's name [citation], he or she may act unreasonably in failing to ascertain a defendant's name and still claim the benefit of section 474. (Id. at pp. 488-489.)
Even though the plaintiff “may have acted negligently when she forgot [the defendant’s] name and never inquired about it, the “record indicate[d] [the plaintiff] did not know [the defendant’s] identity when she filed her complaint. (Balon, supra, 20 Cal.App.4th at p. 489.) The plaintiff’s amended complaint naming the plaintiff therefore “ ‘relate[d] back to satisfy the statute of limitations.’ ” (Ibid., quoting Streicher v. Tommy's Electric Co. (1985) 164 Cal.App.3d 876, 882.)
In Woo v. Superior Court (1999) 75 Cal.App.4th 169 (Woo), the Court of Appeal both distinguished Balon and disagreed with Balon’s holding. First, in Balon, “the complaint amendment adding a new defendant was made without delay after an immediate effort by the plaintiff's attorney to determine the identity of the new defendant, and the complaint amendment was correctly made in accordance with the section 474 procedure.” (Woo, supra, 75 Cal.App.4th at p. 179.) In Woo, however, the plaintiff “made no effort to promptly identify [the defendant] and did not correctly follow the section 474 amendment procedure.” (Ibid.)
Second, the decision in Balon “establishes an undesirable rule for the ‘I knew but forgot’ assertion under [Code of Civil Procedure] section 474.” (Woo, supra, 75 Cal.App.4th at p. 179.) The Court of Appeal in Woo held that “when the plaintiff had actual knowledge of the defendant's identity prior to filing a complaint, but has forgotten the defendant's identity at the time of filing the complaint, the plaintiff must review readily available information that discloses the defendant's identity to invoke the section 474 relation-back doctrine; otherwise, the plaintiff is not in good faith using section 474.” (Id. at p. 180.) “In Balon, the readily available information was contained in the public accident report. In [Woo], the readily available information was contained in [the plaintiff’s] medical records in her possession . . . in which [the defendant’s] identity was . . . set forth. In our view, [the plaintiff] did not avail herself of readily available information that would have refreshed her recollection of [the defendant’s] identity; and therefore she is not entitled to use [Code of Civil Procedure] section 474 to amend her complaint after the statute of limitations has run.” (Ibid.)
Here, Plaintiff did not amend the complaint to add Jonathan Woo until April 2, 2024, over a year after Plaintiff filed the complaint on November 1, 2022. The facts of the case are therefore more similar to the facts of Woo than the facts of Balon.
In
addition, Plaintiff has presented no evidence showing that she reviewed readily
available information to learn the other driver’s identity before filing her
complaint. Plaintiff admits that she “may
have known that a gentleman hit her car on November 6, 2021, but did not recall
his name . . . .” (Opposition p.
4.) However, Plaintiff has not shown
that she took any steps to learn the identity of the other driver before she
filed her complaint naming the other vehicle’s owner and Does as defendants.
The Court concludes that Plaintiff did not avail herself of readily available information that would have refreshed her recollection of Jonathan Woo's identity. Therefore, she is not entitled to use Code of Civil Procedure section 474 to amend her complaint after the statute of limitations has run.
CONCLUSION
The Court GRANTS specially appearing Defendant Jonathan Woo’s motion to quash service of the summons and complaint. The Court quashes service of the summons and complaint on Defendant Jonathan Woo.
The Court sets an OSC re: dismissal of Defendant Jonathan Woo for failure to file proof of service of the summons and complaint on August 9, 2024 at 8:30 a.m. in Department 28 of the Spring Street Courthouse.
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.