Judge Mark H. Epstein, Case Number: 23SMCV00673, Date: 2024-12-05 Tentative Ruling

Judge: Mark H. Epstein, Case: 23SMCV00673, Date: 2024-12-05 Tentative Ruling

Case Number: 23SMCV00673 Hearing Date: December 5, 2024 Dept: I

The motion to quash is GRANTED. This is an auto accident case. Plaintiff alleges that the moving party caused an accident in which he was injured. However, he only sued the car’s owner and DOE defendants. He then sought to name DOE 1 as the driver—who is the owner’s spouse. The moving party contends that service ought to be quashed because plaintiff was aware of her identity long before suit was filed and thus the use of the DOE procedure is improper. Further, the moving party states that the statute of limitations has run. Plaintiff opposes.

This court would have thought that the motion to quash ought to be denied in favor of allowing the moving party to demur. After all, the problem is not with service or the like; it is with the use of the DOE procedure. But that is not the law. It turns out that under Optical Surplus, Inc. v. Superior Court (1991) 228 Cal.App.3d 776, a motion to quash is the proper procedure. One learns something new every day.

The motion states that plaintiff took a picture of the moving party’s driver’s license at the time of the accident and thus knew the driver’s identity but yet did not sue the driver. The moving party also noted that she was identified in discovery as of January 26, 2024, yet this motion was not filed until October 28, 2024.

In opposition, plaintiff states that the picture of the license was encrypted and lost, and thus plaintiff did not have access to the driver’s actual name when suit was filed. He actually wrote down the owner’s information, but he did not do the same for the driver. When he wrote to the carrier, he claims he only named the owner. He points out that the answer does not name the driver, and that the DOE allegations were not challenged. Plaintiff states that he kept trying to depose the owner (which would have likely yielded the driver’s name) but the owner kept postponing the deposition. While the deposition was finally taken, it was not until September 27, 2024. Plaintiff claims that the discovery responses might have named the driver, but they were encrypted and he had no access to them. He also notes that there is no prejudice to the defense from the DOE procedure and that statute of limitations relates back.

The court does not find plaintiff to be credible here. First, at his deposition, plaintiff was able to pull out his cell phone and show defense counsel the CDL picture. That is flatly inconsistent with the notion that the information on the phone was not accessible or was lost and not retrievable. And at no time during the deposition did he mention that he lacked access to that picture for some period of time. The court does not believe that plaintiff lacked access to discovery responses. It is simply not reasonable for discovery responses to be served in January but for plaintiff to have no access to them and keep that a secret for nine months. In this court’s experience, if there is a problem opening discovery responses it tends to be addressed reasonably quickly. And in reply, defendant points to a letter written to plaintiff’s counsel on March 17, 2022, that named the driver. (The court does not rely on the letter, as it is new evidence in reply, but it is troubling nonetheless.)

While the court agrees that there is no prejudice, that is only in the sense that a demurrer would likely be sustained without leave to amend so the moving party would get out another way even if the motion to quash were denied. But that is no reason to deny the motion.

In short, plaintiff should have named the driver in the first place. Were there no statute of limitations problem, the court might have overlooked the DOE issue on the theory that it would not matter whether the driver was just added in the usual way. But here, it does matter in the sense that if the DOE were proper, the complaint would relate back and an untimely action would become timely. That is not appropriate, and it is not the office of the DOE procedure.

Because plaintiff had actual knowledge of the driver’s identity as early as the date of the incident, he should have named the driver in the complaint. The failure to do so, especially now that the statute has run, makes the DOE amendment and service vulnerable to a motion to quash. The motion to quash is therefore GRANTED.