SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

On May 27, 2021, Plaintiff, Willie Juanita Moss (“Plaintiff”) filed this action against Defendants, Lucky Nails & Foot Spa (“Lucky Nails”) and Does 1 to 100, alleging a failure to implement and/or follow adequate safeguards and safety equipment and supplies, resulting in an acrylic fingernail striking Plaintiff’s eye on June 1, 2019.  On July 27, 2023, Plaintiff filed amendments to complaint naming Hang Thanh Doan as Doe 1 and Huyen Gale as Doe 2. 

Defendant Huyen Gale (“Gale”) now demurs to the complaint arguing the Doe Amendment is time barred. Plaintiff opposes the motion, and Gale filed a reply. 

 

II. Judicial Notice 

In connection with the motion, Gale request the Court take judicial notice of (1) Plaintiff’s Complaint, (2) Plaintiff’s Doe 1 Amendment to Complaint, (3) Plaintiff’s Doe 2 Amendment to Complaint, (4) Defendant Lucky Nails’ Answer to Plaintiff’s Complaint, (5) certain documents filed as exhibits to Lucky Nail’s motion for summary judgment (“MSJ”), (6) Plaintiff’s attorney’s supplemental declaration filed in support of Plaintiff’s opposition to Lucky Nail’s MSJ, (7) Declaration of Plaintiff filed in opposition to Lucky Nail’s MSJ, and (8) 16 CCR § 965 titled “Display of Licenses” under Division 9 of the California Barbering and Cosmetology regulations, Article 9, licenses.  

Requests 1, 2, 3, and 4 are granted to the extent that Courts can take judicial notice of the fact that complaints were filed, but not of the truth of the statements contained in those. (Arce v. Kaiser Foundation Health Plan, Inc.  (2010) 181 Cal.App.4th 471, 483.) Judges cannot take judicial notice of hearsay statements asserted in court filings, but can take judicial notice of the existence of such documents.  (Johnson & Johnson v. Sup. Ct. (2011) 192 Cal.App.4th 757, 768;  Williams v. Wraxall (1995) 33 Cal. App. 4th 120, 130 n. 7  (judges may take judicial notice of the existence of court documents, “but cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.”).) Judicial notice of inferences derived from discovery responses is unauthorized where there can be factual disputes. (Williams v. So. Cal. Gas Co. (2009) 176 Cal.App.4th 591, 598-600.) 

Plaintiff objects to Request 5. The objection is sustained. 

Plaintiff’s objections to Requests 6 and 7 are overruled. However, requests 6 and 7 are granted only to the extent of any pleading inconsistencies. “ ‘Although the existence of statements contained in a deposition transcript [or declaration] filed as part of the court record can be judicially noticed, their truth is not subject to judicial notice.’ ” (Judicial notice of the truth of statements in declaration would impermissibly transform the demurrer proceeding into contested evidentiary dispute).  Big Valley Band of Pomo Indians v. Sup. Ct. (2005) 133 Cal. App. 4th 1185, 1191–92.  Accord  Garcia v. Sterling (1985) 176 Cal.App.3d 17, 22.  But see Del E. Webb Corp. v. Structural Materials Co.  (1981) 123 Cal.App.3d 593, 604-605 (“The court will take judicial notice of records such as admissions, answers to interrogatories, affidavits, and the like, when considering a demurrer, only where they contain statements of the plaintiff or his agent which are inconsistent with the allegations of the pleading before the court.”).)    

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery.  (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.)  The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action.  (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]). 

A demurrer can only be sustained when it disposes of an entire cause of action.  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.) 

 

IV. Discussion 

First, Gale argues Plaintiff’s Doe Amendment naming Gale as Doe 2 is invalid because CCP § 472(a) provides in part, “A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed …,” and in this case, an answer was already filed by Lucky Nails on July 22, 2021. Gale contends that as a result, Plaintiff was required to obtain leave of court to file the Doe Amendment.  (CCP § 473(a).)   

While Code of Civil Procedure § 472 does require “leave of court” before filing amended pleadings once there has been a response to a complaint, § 472 is a general provision relating to the amendment of pleadings. Code of Civil Procedure § 473(a)(1) provides that the court may allow an amendment to add the name of a party on any terms it deems proper, which could include allowing amendment by use of a court form.  Further, CCP § 474 is narrower in its scope than § 472 and relates only to the substitution of “Doe” defendants, the very issue presented here.  Because the more specific provision takes precedence over the more general one, (Strother v. Cal. Coastal Com. (2009) 173 Cal.App.4th 873, 879), and because CCP § 474 nowhere explicitly indicates leave of court is required for “Doe” amendments, the Court finds the reliance on CCP §§ 472 requirement of “leave of court” insufficient.   

Second, Gale argues Plaintiff unreasonably delayed in filing the Doe Amendment, and that Plaintiff was not genuinely ignorant of Gale’s identity for the amendment to relate back to the filing of the complaint. CCP § 474 provides, “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 …”  

“The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed.”  (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.)  “A recognized exception to the general rule is the substitution under [CCP §] 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint… If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed.”  (Id.)   “Among the requirements for application of the section 474 relation-back doctrine is that the new defendant in an amended complaint be substituted for an existing fictitious Doe defendant named in the original complaint.”  (Id.) 

Gale concedes that Plaintiff’s theory of liability imposing liability on Gale in her individual capacity and as a general partner of the salon is plausible in relation to services provided by Gale’s sister, Hang Thanh Doan. Whether or not Gale actually provided direct services to Plaintiff on the date of the incident is irrelevant for the purposes of a demurrer, which limits the Court’s view to only the face of the complaint and any matters that are judicially noticeable. “‘[D]efendants cannot set forth allegations of fact in their demurrers which, if true, would defeat plaintiff's complaint.’” (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1144.) Lastly, Gale argues Plaintiff may not add Gale as a defendant under section 474, because Plaintiff was not genuinely ignorant of Gale’s identity. Gale contends Plaintiff was served with various documents and discovery identifying the owners and partners of Lucky Nails in December 2021, but waited until July 27, 2023 to file the amendment. Further, Gale argues her identity was disclosed not only in initial discovery, but also when Gale sat for her deposition in April 2023.  

Here, it does not appear that Plaintiff knew the identity of Gale’s identity and her relationship to Lucky Nails at the time of the filing of the complaint on May 27, 2021, when Gale avers this information was disclosed after in December 2021. The ignorance of which Code of Civil Procedure section 474 speaks is actual ignorance, and a plaintiff will not be refused the right to use a Doe pleading even where the plaintiff's lack of actual knowledge is attributable to plaintiff's own negligence. (Grinnell Fire Prot. Sys. Co. v. Am. Sav. & Loan Assn. (1986) 183 Cal. App. 3d 352, 359.) “[S]ection 474 is not to be confused with the statute of limitations.” (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 942, 947.) Therefore, as it appears Plaintiff was genuinely ignorant of Gale’s identity at the time of the filing of the complaint, CCP § 474 is satisfied.   

However, CCP § 474 “includes an implicit requirement that a plaintiff may not ‘unreasonably delay’ his or her filing of a Doe amendment after learning of defendant's identity” and unreasonable delay “includes a prejudice element, which requires a showing by the defendant that he or she would suffer prejudice from plaintiff's delay in filing the Doe amendment.”  (A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1066-67.) Here, even if Plaintiff unreasonably delayed in filing the Doe amendment, Gale must also identify prejudice to prelude relation back via Doe amendment based upon delay in identifying a Doe defendant. (Winding Creek v. McGlashan (1996) 44 Cal. App. 4th 933, 943.) 

The Court finds there has been no showing of actual prejudice. The action, filed on May 27, 2021, is not yet old, and currently there is no trial date set. Further, the Court is not persuaded that there will be any expansion of liability, when the only amendment is to substitute Gale as Doe 2, and the allegations in the complaint remain unchanged. There is still ample time to conduct any additional discovery and for Gale to prepare a defense in this matter.  

 

Based on the foregoing, the demurrer is OVERRULED.