Judge Lynne M. Hobbs, Case Number: 20STCV25819, Date: 2023-06-30 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.

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On July 9, 2020, Plaintiff Ralph Lim (“Plaintiff”) filed his Complaint alleging causes of action for motor vehicle negligence and general negligence against Defendant Julie Calilung (“Julie”) and Does 1-20. The accident at issue occurred on July 14, 2018.

Erlan Calilung moves for summary judgment on the grounds that he was substituted as a Doe Defendant after the expiration of the statute of limitations in this matter. Erlan alleges Plaintiff knew of his identity as the driver of the vehicle in the subject accident. On the date of the accident, Erlan and Plaintiff exchanged contact information. In August 2018, Plaintiff’s counsel sent a letter to Defendants’ insurance company identifying Erlan Calilung as the party liable for the subject incident. Erlan was not substituted as a defendant in this action until April 2022, 14 months after the statute of limitations had already expired. Erlan also moves for summary adjudication as to the negligent entrustment cause of action because he was the driver of the vehicle involved in the subject accident and thus could not have negligently entrusted the vehicle to another person.

Plaintiff argues that he did name Erlan as Doe 1 in an amendment filed in April 2022. After Erlan filed his motion for summary judgment, Plaintiff’s counsel realized he had been named as Doe 1 in error and filed another Doe Amendment naming Erlan as Doe 11.

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c(c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c(p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c(c).)

Erlan requests judicial notice of the docket for this case, Plaintiff’s Complaint, the April 2022 Doe Amendment, the May 2022 proof of service on Erlan, and Erlan’s answer. These requests are denied as moot. The Court may always reference the pleadings and case information in the matter at hand.

Erlan Calilung moves for summary adjudication on the grounds that (1) he was named as a Defendant in this action after the statute of limitations on Plaintiff’s negligence claim had already passed and (2) Plaintiff can present no evidence that Erlan negligently entrusted his vehicle to another person.

Code Civ. Proc., section 474 allows a named defendant to be substituted for a fictitious defendant if, at the time of filing the complaint, the plaintiff was genuinely unaware of the named defendant’s identity or of facts giving rise to a cause of action against the named defendant who was otherwise known to the plaintiff. (San Diego Navy Broadway Complex Coalition v California Coastal Com. (2019) 40 CA5th 563, 579.) The plaintiff’s lack of knowledge must be real and not feigned, but whether the plaintiff’s ignorance was due to misinformation or negligence is irrelevant. (Balon v Drost (1993) 20 CA4th 483, 488, 25 CR2d 12.) If these requirements are met, the amendment relates back to the filing of the original petition. (General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 589.) The relation back doctrine does not apply when a plaintiff had constructive notice of the identity of a fictitiously named defendant. (Organization Comunidad de Alviso v City of San Jose (2021) 60 CA5th 783, 795.)

An action for assault, battery, or injury to, or for the death or, an individual caused by the wrongful act or neglect of another must commence within two years of the injury. (Code Civ. Proc., 335.1.) Pursuant to Emergency Rule 9, that statute of limitation was tolled from April 6, 2020 until October 1, 2020. This tolling provision essentially added six months to the statute of limitations period.

Here, Erlan’s evidence shows that on July 14, 2018, Plaintiff’s vehicle was rear-ended, causing Plaintiff to sustain injuries. (UMF No. 1.) On the date of the accident, Plaintiff and Erlan exchanged information at the accident scene. (UMF No. 2.) On August 14, 2018, prior to filing the Complaint, Plaintiff’s previous attorneys, The Foremost Law Group, sent a letter to Erlan’s insurance company stating: “[o]ur investigation reveals that your insured Erlan Calilung is liable for this loss.” (UMF No. 3; Collins Decl., Exh. D.) Plaintiff filed his Complaint in July 2020. (UMF No. 4.) On April 28, 2022, Plaintiff substituted Erlang Calilung as Doe 1 in this action. (UMF No. 12.)

Erlan’s evidence shows that on the date of the incident, he and Plaintiff exchanged information at the accident scene. Shortly after the accident in August 2018, Plaintiff’s own attorneys sent Erlan’s insurer a letter alleging he was liable for the accident. The evidence thus shows that Plaintiff had actual knowledge of Erlan’s identity and the facts giving rise to the cause of action for negligence against Erlan at the time he filed his Complaint. Erlan meets his burden of showing there are no issues of material fact remaining over whether Plaintiff knew Erlan’s identity at the time the Complaint was filed.

The burden shifts to Plaintiff. Plaintiff only submits a declaration from counsel in support of his opposition. Plaintiff’s counsel testifies that Erlan was substituted as Doe 1 when Erlan should have been substituted as Doe 11. (Rutyna Decl., ¶¶5-6.) Since the subject accident, Plaintiff’s memory has not been clear and he is not lucid. (Id., ¶4.) Plaintiff admits that he exchanged contact information with Erlan at the scene of the accident and that his attorneys sent Erlan’s insurance company the letter alleging he was liable for the accident. (PUMF Nos. 2, 3.)

Plaintiff fails to address the issue of whether he had knowledge of Erlan’s identity at the time the Complaint was filed. Rather, the opposition solely discusses the error of substituting Erlan as Doe 1 as opposed to Doe 11, the driver of the vehicle. Regardless of whether Erlan was substituted as Doe 1 or Doe 11, the evidence shows that Plaintiff knew of Erlan’s identity well before the Complaint was filed in 2020. Although Plaintiff’s counsel testifies that Plaintiff’s health has deteriorated, there is no evidence that Plaintiff did not have knowledge of Erlan’s identity at the time the Complaint was filed in 2020. Moreover, Plaintiff’s own attorneys shortly after the accident identified Erlan as the party liable for the accident to Erlan’s insurance company. Because Plaintiff knew of Erlan’s identity at the time the Complaint was filed, relief under Code Civ. Proc., section 474 is not available. Erlan was named as a defendant in this action in 2022, well past the two-year plus six months statute of limitations under Code Civ. Proc., 335.1 and Emergency Rule 9.

As to the second cause of action for negligent entrustment, Plaintiff does not dispute that Erlan was driving at the time of the accident. For this reason, there can be no cause of action for negligent entrustment against Erlan as the owner of the vehicle.