Judge: Michael E. Whitaker, Case: 19STCV32110, Date: 2022-12-14 Tentative Ruling


Case Number: 19STCV32110    Hearing Date: December 14, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

 

TENTATIVE RULING

 

DEPARTMENT

32

HEARING DATE

December 14, 2022

CASE NUMBER

19STCV32110

MOTION

Motion to Strike

MOVING PARTY

Defendant Nazar Ashjian

OPPOSING PARTY

None

 

BACKGROUND

 

Plaintiff Barbara Gromfin (Plaintiff) sued Defendants Howard Rom, Altman’s Kitchen & Bath, Robertson Dayton, LLC, Gloria M. Deukmejian, 2002 Deukmejian Family Trust, Wendy Lucille Wyatt, and Woodrow Jonathan Wyatt based on injuries Plaintiff allegedly sustained when a shelf fell and struck her at a bathroom and kitchen fixture showroom. 

 

The initial complaint was filed on September 10, 2019 and the Second Amended Complaint filed on January 31, 2022. 

 

Defendant Nazar Ashjian (Ashjian) moves to strike the Amendment to Complaint (Amendment) filed on August 9, 2022 naming Nazar Ashjian as Doe Defendant 1.  Plaintiff has not filed an opposition to the motion.

 

ANALYSIS

 

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322(b).)  On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) 

 

Ashjian moves to strike the Amendment naming Ashjian, arguing that the applicable two-year statute of limitations has passed, and the exception under Code of Civil Procedure section 474 is inapplicable.  The statute of limitations on causes of action for negligence and premises liability is two years. (Code Civ. Proc., § 335.1.) The cause of action for negligence accrues and the statute of limitations accrues upon occurrence of the last act necessary to complete the cause of action. (Code Civ. Proc., § 312; see generally Fox v. Ethicon Endo-Surgery, Inc. (2005) 34 Cal.4th 797, 806-809.)

 

Here, Plaintiff alleges in the initial complaint she was injured on the subject property on or about January 9, 2019.  Hence, under Section 335.1, Plaintiff’s causes of action accrued on January 9, 2019 and the applicable statute of limitations lapsed on January 9, 2021.  The Court notes Plaintiff filed the Amendment, after the statute of limitations lapsed.

 

“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 474 permits a plaintiff to amend complaints by adding parties as Doe defendants when the plaintiff is ignorant of the name of a defendant at the time the complaint is filed. The purpose of section 474 is to enable a plaintiff to avoid the bar of the statute of limitations when he or she is ignorant of the identity of the defendant. The cases discussing section 474 deal with whether the plaintiff was truly ignorant of the identity of the person brought into the case as a Doe defendant because if that requirement is met, the amendment to the complaint relates back to the date the complaint was filed and the statute of limitations is preserved.

 

(Davis v. Marin (2000) 80 Cal.App.4th 380, 386–387 [cleaned up].)  And as stated in Weil & Brown:

 

Where a complaint is amended after the statute of limitations has run to identify a fictitiously-named defendant, and to assert a cause of action against that defendant not included in the original complaint, the amended complaint will be given relation back effect, so as to avoid the statute of limitations, provided:

 

            Yet, “Even a person whose identity was known to the plaintiff when the action was filed may be brough in under section 474 as a ‘Doe’ defendant if the plaintiff was initially unaware of that person’s true relationship to the injuries upon which the action was based; or if a change in law has indicated that persons not originally joined might also be held liable.  But in each of the cases allowing late joinder of known persons under section 474, there has been some showing that at the time the original complaint was filed the plaintiff was ignorant of something having a bearing upon the liability of the newly-summoned party.”  (Miller v. Thomas (1981) 121 Cal.App.3d 440, 445.) 

 

First, Ashjian argues that the Relation Back Doctrine is not applicable because Plaintiff knew of Ashjian’s identity at the time the Second Amended Complaint was filed in January 2022.  But the applicability of the doctrine is based upon whether Plaintiff was genuinely ignorant of a Doe defendant’s identity at the time the original complaint is filed, not when an amended complaint is filed.  Here, the Court finds that Ashjian has not advanced sufficient, competent evidence that Plaintiff was not truly ignorant of Ashjian’s identity when Plaintiff filed her initial complaint on September 10, 2019. 

           

Second, Ashjian contends that the Amendment should be stricken Plaintiff delayed the filing of the Amendment after learning of Ashjian’s identity and potential culpability for the alleged causes of action. 

 

Ashjian advances a copy of discovery responses sent to Plaintiff via prior defense counsel to establish that Plaintiff has been aware of Ashjian’s identity and relationship to the underlying incident since May 17, 2021.  (Declaration of Alexandra Soltis, ¶ 4.)  In Defendant Gloria Deukmejian’s response to Special Interrogatory No. 15, propounded by Plaintiff, Deukmejian indicates that Nazar Ashjian is the property manager of the property where Plaintiff was injured.  (See Declaration of Alexandra Soltis, ¶ 4, Exhibit B.)  These discovery responses were served on Plaintiff on May 17, 2021.  (See Declaration of Alexandra Soltis, ¶ 4, Exhibit B.)  Yet, as the Court notes, Plaintiff did not file the Amendment until August 9, 2022. 

 

In sum, Ashjian argues that the Amendment should be stricken because Plaintiff waited 15 months, after learning of Ashjian’s identity through discovery, to file the Amendment.  “[U]nreasonable delay in filing an amendment after actually acquiring such knowledge can bar a plaintiff's resort to the fictitious name procedure.”  (Barrows v. American Motors Corp. (1983) 144 Cal.App.3d 1, 8.)  But as Court of Appeal further noted, a Doe defendant needs to establish that “[p]laintiff, after learning of his cause of action against defendant, was dilatory in amending his complaint, or that defendants suffered prejudice from any such delay.”  (Ibid.)

 

Here, Plaintiff has not filed an opposition to the motion and in turn has not provided an adequate explanation for the 15-month delay in filing the Amendment after learning Ashjian’s identity and role in the subject incident.  In other words, the Court finds that the 15-month gap amounts to Plaintiff being dilatory when the Amendment is filed approximately 6 months before the trial which is set on January 24, 2023 and 5 months before the non-expert discovery cut off which would be 30 days before the trial.  In short, the Court finds that the delay in filing the Amendment is unreasonable. 

 

CONCLUSION AND ORDER

 

Therefore, the Court grants Ashjian’s motion to strike the Amendment naming Nazar Ashjian as Doe Defendant 1 without leave to amend.

 

The Clerk of the Court shall provide notice of the Court’s ruling.