Judge: Mark H. Epstein, Case: 22SMCV00383, Date: 2023-08-29 Tentative Ruling

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Case Number: 22SMCV00383    Hearing Date: February 1, 2024    Dept: I

Plaintiff brought this action alleging that defendants breached a lease agreement by failing to pay rent.  Defendants then filed a cross-complaint against plaintiff and Akhtarzad.  On September 26, 2023, defendants amended the cross-complaint to name the Nasa Group (Nasa) and Michael Starson (Starson) as DOE 1 and DOE 2, respectively.  Nasa and Starson (as well as the other cross-defendants) now move to quash the summons or strike the DOE amendments.  The gist of the motion is that they will be prejudiced because of the upcoming trial date and that the DOE amendments were in bad faith because Nasa and Starson were not unknown to cross-complainants at the time the cross-complaint was filed.  The trial is currently set for July 29, 2024—a bit less than six months from now.

The court begins with DOE amendments in general.  California allows defendants to be named as DOES.  The theory is that the plaintiff is unaware of the defendant’s identity, but will amend once that identity becomes known.  That is a powerful tool, allowing a plaintiff generally up to three years (or the start of trial) to conduct discovery to identify these defendants and bring them into the action.  And critically, the statute of limitations relates back to the filing of the original complaint (or, in this case, cross-complaint) notwithstanding that the defendants might not be named until years later.  But the rule is not infinitely elastic.  A DOE amendment is proper only if the DOE defendant’s identity was not earlier known.  If the plaintiff (or cross-complainant) is aware of the DOE’s identity, then the DOE should be named in the earlier pleading and a DOE amendment will be disallowed.  (San Diego Navy Broadway Complex Coalition v. California Coastal Com. (2019) 40 Cal.App.5th 563.)

The court must agree with the moving parties that cross-complainant’s DOE explanation is unconvincing.  The cross-complainant generally goes to mismanagement of the property.  According to the earlier first amended cross-complaint (FAXC), Nasa was allegedly retained to manage the property and Starson is Nasa’s general manager.  In other words, both Nasa and Starson were specifically identified therein and their roles were set forth.  (FAXC ¶¶20-25, 27, 66-67.)  Critically, the FAXC was filed in March 2023.  Given those allegations, it is hard to see why it is that cross-complainants can make the DOE allegation.  In response, cross-complainants state that the light dawned after receiving responses to written discovery from Akhtarzad on July 28, 2023.  Cross-complainants state that Akhtarzad put the blame on Nasa and Starson, rather than taking the blame himself.  Until that time, cross-complainants state, they did not know that Nasa or Starson were responsible for the alleged injuries.  Specifically, they advert to Akhtarzad’s RFA responses where he admitted that Beverly Drive One engaged Nasa and that Starson was an agent of Nasa.  This is not terribly convincing.  First, cross-complainants were seemingly aware of Nasa’s and Akhtarzad’s roles in March 2023, when the FAXC was filed.  Second, even taking cross-complainants’ explanation at face value, they learned of Nasa’s and Starson’s role on July 28, 2023 but waited until November 13, 2023, to issue the summons.  And it is hardly clear that Akhtarzad threw Nasa and Starson under the proverbial bus.  In short, the court agrees with the moving parties that naming Nasa and Starson as DOE defendants is not in good faith or proper.

But that does not quite end the inquiry.  Where there is no statute of limitations issue, there is no particular benefit to adding a defendant as a DOE as opposed simply to amending the complaint to name the new defendant.  In both cases, the defendant is allegedly liable.  Were this not done in the DOE context, then, the court would ask only whether cross-complainant had been reasonably diligent and whether there was any prejudice to cross-defendants by adding the new parties.  If there was reasonable diligence and no prejudice, leave to amend is liberally granted including to the extent of adding new parties.  (Desny v. Wilder (1956) 46 Cal.2d 715.)  Here, at least according to cross-complainants, there is no statute of limitations issue, so the liberal amendment policy ought to be followed.  And as a general matter the court agrees.  True, there is a lapse of 10 months between the FAXC and the DOE amendments.  But while hardly a model of diligence, the delay is not so grossly excessive as to be disqualifying standing alone.

However, there remains the issue of prejudice.  With a trial date looming, cross-defendants assert that they are worried that the real motive behind the addition is to delay the trial (again) and re-open discovery.  They claim that this will allow cross-complainants (and defendants in the main case) to re-open the discovery door (the discovery cut off has otherwise come and gone).  And it is hard to see how that would not be true as to the newly-named cross-defendants, who presumably have had no opportunity to conduct discovery up to this point.  That issue is addressed only briefly in the opposition.  Cross-complainants state that the argument is moot because the trial has already been continued.  But that is not the point.  Cross-defendants are not worried about the prior trial date; they are worried that the trial will be continued again or discovery will be re-opened.  That is prejudicial.  Given the prejudice cross-defendants will suffer by having discovery re-open and potentially having the trial date moved, cross-complainants’ lack of diligence takes on a larger role. 

The court also struggles to figure out what relief will be unavailable to cross-complainants if the motion is denied.  At least at first glance, the court believes that whatever recovery cross-complainants can achieve with the newly-added cross-defendants can be achieved without them.  True, the newly-added cross-defendants will not (by definition) be jointly liable, but there has been no showing that the cross-defendants already sued cannot stand the judgment.

In light of the foregoing, the motion to strike is GRANTED.  That is without prejudice to the filing of a separate action naming Nasa and Starson if cross-complainants believe that to be necessary subject to whatever preclusion doctrines might otherwise exist.

The court notes that it would not have granted the motion on the service issue.  Nasa seems to have been properly served by service on his agent David Akhtarzad.  Service on Starson is not at issue in the notice of motion or motion.  Accordingly, the motion to quash would be, and is, DENIED.