I. BACKGROUND  

On February 19, 2021, plaintiff Joshua Johnson (“Plaintiff”) filed this action against defendants Jorge Giraffe and Does 1 to 50 for injuries arising from a motor vehicle collision. On March 23, 2022, Plaintiff filed an amendment to complaint naming George Graf (“Graf”) as Doe 1. 

On July 7, 2022, Graf filed his Answer to Plaintiff’s complaint. 

On February 20, 2024, Plaintiff now seeks leave to file a First Amended Complaint (“FAC”) to correct a typographical error on the case caption. Plaintiff argues the Doe amendment to add Graf was due to a spelling error, and that Plaintiff has since dismissed his second and separately filed lawsuit against Graf after meet and confer efforts with defense counsel. Plaintiff argues the parties have exchanged several sets of written discovery, and Plaintiff has appeared for his deposition and medical examination.  

In opposition, Graf argues that Plaintiff should not be permitted to file a FAC, because Plaintiff was not genuinely ignorant of Graf’s identity nor did Plaintiff act in a reasonably timely manner to cure the defect in the complaint. Graf argues Plaintiff is barred by the statute of limitations. 

Any reply as due on or before April 24, 2024. No reply has been filed. 

II. MOTION FOR LEAVE TO FILE FAC  

CCP § 473(a)(1) provides, in relevant part:  “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer.  The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” “This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.)   

Under CRC Rule 3.1324(a), a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.  

Under CRC Rule 3.1324(b), a separate declaration must accompany the motion and must specify (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier.  

Even if a good amendment is proposed in proper form, a long, unwarranted and unexcused delay in presenting it may be a good reason for denial. In most cases, the factors for timeliness are: (1) lack of diligence in discovering the facts or in offering the amendment after knowledge of them; and (2) the effect of the delay on the adverse party. If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.)  Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.) 

The Court will first address Graf’s contention that Plaintiff has never been truly ignorant of Graf’s identity. In terms of the Doe amendment naming Graf as Doe 1, “Section 474 allows a plaintiff who is ignorant of a defendant's identity to commence suit—before the statute of limitations runs—by using a fictitious name for that defendant and then amending her complaint when the defendant's true name is discovered. [citations.] If the statute's requirements are satisfied, the amendment relates back and the substituted defendant is considered to have been a party from the action's start. [citations.].” (Hahn v. New York Air Brake LLC (2022) 77 Cal. App. 5th 895, 897–98.) Graf argues that Plaintiff confirmed at his deposition that he exchanged information with the other driver involved in the accident by taking a photograph of the driver’s license and insurance information. The photographs demonstrate that the driver’s license was issued to George John Graf, and the insurance policy issued to Heather Nicholson and George Graf. Therefore, Graf argues Plaintiff was not genuinely ignorant of Graf’s identity at the time the complaint was filed against a “Jorge Giraffe”, nor at the time the Doe amendment was filed.  

Section 474 does not impose an onerous standard of the duty to exercise reasonable diligence to obtain facts that should have been known. (Hahn, supra, 77 Cal. App. 5th 895, 900.) “It is when he is actually ignorant of a certain fact, not when he might, by the use of reasonable diligence, have discovered it. Whether his ignorance is from misfortune or negligence, he is alike ignorant, and this is all the statute requires.” (Irving v. Carpentier (1886) 70 Cal. 23, 26; cited by Hahn, supra, at 900.) Plaintiff does not respond to the contention that he, indeed, had actual knowledge of the correct spelling of Graf’s name available at the time the parties exchanged information at the scene of the incident. Thus, in terms of the Doe amendment, Graf has met his burden that Plaintiff was not genuinely ignorant of Graf’s true name at the time the amendment was filed for the Doe amendment to relate back.  

The Court next turns to the issue of Plaintiff filing a FAC to strike the name “Jorge Giraffe” from the complaint, and to instead replace all references of “Jorge Giraffe” with “George Graf.” Plaintiff’s counsel declares that his office inadvertently misspelled Graf’s name when he filed the complaint on February 19, 2021. (Panah Decl. ¶ 5.) Aside from correcting the erroneous name, Plaintiff avers no other changes will be made. Graf argues Plaintiff is barred by the statute of limitations. An amended complaint relates back to a timely filed original complaint, and thus avoids the bar of the statute of limitations, only if it rests on the same general set of facts and refers to the same “offending instrumentalities,” accident and injuries as the original complaint. [citations] [“where an amendment is sought after the statute of limitations has run, the amended complaint will be deemed filed as of the date of the original complaint provided recovery is sought in both pleadings on the same general set of facts”].)” (Davaloo v. State Farm Ins. Co. (2005) 135 Cal. App. 4th 409, 415.) Graf does not dispute that Plaintiff intended to name Graf by filing this action against a “Jorge Giraffe”, and that the issue arises from the negligent misspelling of Graf’s legal name. On the other hand, Plaintiff was aware of this typographical issue on the face of the complaint no later than July 7, 2022, when Plaintiff filed the Doe amendment. Despite this, Plaintiff failed to seek an amendment to cure this error until two years and four months after the filing the Doe amendment.  

The Court agrees that Plaintiff has been dilatory. However, Graf does not identify any prejudice that would result should the Court exercising its discretion to allow the filing of the FAC. Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.) There is no dispute that Plaintiff and Graf have been actively litigating this matter, or that there has already been a significant exchange of discovery. Graf makes no argument that he will be prejudiced, nor does he dispute that the genuine purpose of the amendment is to correct the misspelling of Graf’s name, rather than to name an entirely different defendant in order to flout the statute of limitations. To bar Plaintiff’s action as a result of either his or Plaintiff’s counsel’s negligence in failing to correctly spell Graf’s name in the original complaint, coupled with the fact that Graf is entirely aware that the action naming “Jorge Giraffe” was intended against him since the incident involved no other party, would cut against the policy of resolving a case on the merits as opposed to procedural deficiencies.   

III. CONCLUSION 

Accordingly, Plaintiff’s motion for leave to file a FAC is GRANTED. Plaintiff is ordered to file his proposed FAC within ten (10) days of the date of this Order. 

Moving party is ordered to give notice.  

PLEASE TAKE NOTICE: 

Dated this 30th day of April 2024