Judge Ralph C. Hofer, Case Number: 22AHCV01183, Date: 2025-04-11 Tentative Ruling

Plaintiff Adelina Oyama, wife of decedent/husband Victor Oyama alleges that on December 16, 2021, decedent Victor Oyama was injured and killed on premises owned or controlled by defendant City of Duarte. The complaint alleges that on that date decedent was a pedestrian walking south at the intersection of Duarte Road and Hope Drive in the City of Duarte in the pedestrian crosswalk controlled by traffic signals. The complaint alleges that the intersection was controlled by tri-phase traffic signals owned, operated, repaired and maintained by defendant City of Duarte and/or defendant Skanska USA Building, and that at the time of the accident Mohammad Farooq Vehaj Sadi, a physician who worked at the City of Hope, had just completed his work shift and was leaving the City of Hope premises, when the light turned green and Dr. Sadi proceeded to make a left hand turn, and crashed into and struck decedent, causing him serious bodily injury. Dr. Sadi stopped his vehicle and immediately began to render aid at the scene, and a witness was on scene and a traffic collision report was prepared.

The complaint alleges that decedent Victor Oyama was proceeding straight in the pedestrian crosswalk when he was given the walk signal, and at the same time a green light to turn left was given to oncoming traffic, namely, Dr. Sadi, creating a dangerous condition with a foreseeable risk of bodily harm. Decedent was transported by ambulance to Pomona Valley Hospital, where he passed away from his injuries some days later. Dr. Sadi has tendered and paid his automobile insurance policy limits to settle and be released from any further claims involving this accident. The complaint was filed on November 29, 2022.

The file shows that on February 10, 2023, defendant City of Duarte filed a cross-complaint for apportionment of fault, indemnification, and contribution against defendant Skanska USA Building, Inc. (Skanska) as cross-defendant, also naming as cross-defendants Dr. Sadi and City of Hope. The operative cross-complaint, the Second Amended Cross-Complaint, filed on June 27, 2023, also alleges claims for declaratory relief and breach of contract.

On August 16, 2023, defendant Skanska USA Building, Inc. (Skanska), filed a cross-complaint for express indemnity, breach of contract, apportionment of fault, contribution and declaratory relief against cross-defendant Ferriera Construction Co. Inc. dba Ferreira Costal [sic] Construction Co. (Ferreira) alleging that Ferriera entered into a subcontract agreement with Skanska for work to be performed in the City of Duarte for infrastructure improvements to be completed at the intersection of Duarte Road and Hope Drive, including to provide electrical, signage, stripping, and signalization work. The cross-complaint alleges that the subcontract agreement includes an express indemnity provision, and that Ferreira’s actions were at least partly the cause of decedent’s injuries and damages.

Defendant Ferreira files this demurrer to the complaint, specifically, the second cause of action for negligence, the only cause of action asserted against defendant Doe 11, arguing that the Doe amendment by which Ferreira was named as a defendant to the complaint is improper and fails to sufficiently state a cause of action as the pleading sets forth facts showing plaintiff is time barred under the statute of limitations.

Defendant argues that the accident occurred on December 16, 2021, the complaint was filed on November 29, 2022, and that on December 2, 2024, nearly three years after the accident, plaintiff filed a Doe amendment adding Ferreira as Doe 2 to the complaint, which was apparently rejected by the court. Defendant requests that the court take judicial notice of this document as the court’s own record. [See RFJN, p. 2:3-4, para. 2, Ex. F]. However, this document does not appear in the court’s file, so the document is not judicially noticed by the court.

The demurrer then argues that subsequently, on January 29, 2025, plaintiff served a Doe amendment attempting to add Ferreira as Doe 11 to the complaint. This document does appear in the court’s file, and is evidently the focus of the demurrer, as it is the document which plaintiff has filed to bring the moving defendant into the second cause of action.

Defendant argues that although CCP section 474 allows a plaintiff to file an amended pleading to name a new defendant when plaintiff is ignorant of the name of a defendant, the ignorance must be real and not feigned, and that here, plaintiff cannot claim she was ignorant of the name of Ferreira before the filing of the Doe amendment, as Ferreira had been named in a cross-complaint filed by Skanska on August 16, 2023, before the statute of limitations ran, so that any argument that the Doe amendment here relates back is meritless. Defendant also points out that on January 8, 2024 the City of Duarte filed an amendment to its cross-complaint adding Ferreira as Roe 1 to the cross-complaint, further calling into question the ignorance of plaintiff of Ferreira’s identity and potential involvement until January of 2025.

Under CCP §474: “When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint,... 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...”

This statutory procedure effectively extends the statute of limitations until expiration of the time for service of summons, in effect, to three years after the filing of the complaint. CCP § 583.210(a); Sobeck & Associates, Inc. v. B & R Investments No. 24 (1989) 215 Cal.App.3d 861, 869-870.

As argued in the opposition, ordinarily, “a defendant sued by a fictitious name and later brought into the case by an amendment substituting his true name is considered a party to the action from its commencement for purposes of the statute of limitations.” Austin v. Massachusetts Bonding & Insurance Co. ( 1961) 56 Cal.2d 596, 602.

In general, a Doe amendment will be held appropriate and relation back effect will be given even where a person’s identity was known to plaintiff when the action was filed, if plaintiff was unaware of that person’s true relationship to the injuries upon which the action is based. Miller v. Thomas (1981, 2nd Dist.) 121 Cal.App.3d 440, 445-446. The test is actual knowledge, and the relation back effect will apply regardless of whether plaintiff should have known of the identity or facts, even where plaintiff’s lack of actual knowledge is attributable to his own negligence. Grinnell Fire Protection Systems Co., Inc. v. American Savings & Loan Assn. (1986) 183 Cal.App.3d 352, 359. Plaintiff may be held genuinely ignorant of a defendant’s identity even where plaintiff was at all times aware of the name of the defendant, provided plaintiff lacks knowledge of that person’s connection with the case or with his injuries. General Motors Corp v. Superior Court (1996, 2nd Dist.) 48 Cal.App.4th 580, 593-594. (plaintiff permitted to add auto manufacturer as Doe defendant, although plaintiff was at all times aware of the manufacturer’s identity, where she did not discover until after running of statute of limitations facts showing defect in seatbelt).

“Code of Civil Procedure section 474 is to be liberally construed. (General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 593 & 593-594, fn. 12 [55 Cal.Rptr.2d 871].) “[T]he relevant inquiry when the plaintiff seeks to substitute a real defendant for one sued fictitiously is what facts the plaintiff actually knew at the time the original complaint was filed.” (Id. at p. 588.) “It is when [plaintiff] is actually ignorant of a certain fact, not when [plaintiff] might by the use of reasonable diligence have discovered it. Whether [plaintiff's] ignorance is from misfortune or negligence, [plaintiff] is alike ignorant, and this is all the statute requires.” (Irving v. Carpentier (1886) 70 Cal. 23, 26 [11 P. 391].)

The phrase “ignorant of the name of a defendant” is broadly interpreted to mean not only ignorant of the defendant's identity, but also ignorant of the facts giving rise to a cause of action against that defendant. “[E]ven though the plaintiff knows of the existence of the defendant sued by a fictitious name, and even though the plaintiff knows the defendant's actual identity (that is, his name) the plaintiff is 'ignorant' within the meaning of the statute if [plaintiff] lacks knowledge of that person's connection with the case or with [plaintiff's] injuries. [Citations.] The fact that the plaintiff had the means to obtain knowledge is irrelevant. [Citation.]” (General Motors Corp. v. Superior Court, supra, 48 Cal.App.4th at pp. 593-594, fn. omitted.)”

In Fuller, the Second District found that although plaintiff was aware of the identity of her anesthesiologist during the surgery she sued upon at the time of the filing of the complaint, she was not at that time aware of facts giving rise to the cause of action against the anesthesiologist:

“Code of Civil Procedure “[s]ection 474 allows a plaintiff in good faith to delay suing particular persons as named defendants until [plaintiff] has knowledge of sufficient facts to cause a reasonable person to believe liability is probable.” (Dieckmann v. Superior Court (1985) 175 Cal.App.3d 345, 363 [220 Cal.Rptr. 602].) “[S]ection 474 does not impose upon the plaintiff a duty to go in search of facts she does not actually have at the time she files her original pleading. [Citation.]” (General Motors Corp. v. Superior Court, supra, at p. 596 and fn. 15, and cases cited therein, fn. omitted.)

The Second District held that in order for the anesthesiologist to successfully argue that the Doe amendment was untimely, “he had to prove that even if [plaintiff] knew his identity, [plaintiff] also knew facts giving rise to a cause of action against [defendant].” Fuller, at 1173.

To sustain a demurrer based on a statute of limitations defense, the running of the statute must appear “clearly and affirmatively” from the face of the complaint; it is not enough that the complaint may be time-barred. Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4ths 32, 42, citing and quoting Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 781:

“We conclude the demurrer in the present case should have been overruled. “A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. [Citation.]” (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403, 44 Cal.Rptr.2d 339.).

Here, given the use of the Doe amendment procedure, and the liberality applied to permit such a procedure to invoke relation back to the filing of the original complaint, it does not appear that a demurrer to the complaint is properly sustained in these circumstances. Specifically, the material of which the court will take judicial notice, the filing of the cross-complaint against moving defendant by co-defendant Skanska in August 16, 2023, and the filing on January 8, 2024 of a Doe amendment naming moving defendant in connection with the cross-complaint of co-defendant City of Duarte, may appear sufficient to suggest that plaintiff was aware of the identify of Ferreira as a potentially responsible party as of those dates, but does not suggest, by itself, that plaintiff was actually aware of facts giving rise to actionable conduct on the part of that party at the time the original complaint was filed, or before the Doe amendment was pursued by plaintiff.

The opposition argues that, under Fuller, section 474 does not impose upon plaintiff a duty to go in search of facts she does not actually have at the time of the filing of the original pleading, and that the rationale of cases concerning the accrual of a cause of action and a plaintiff’s obligation to reasonably investigate does not apply to the timeliness of a Doe amendment. Plaintiff argues that plaintiff, in amending the complaint to name Ferreira as Doe 11 for negligence presumably discovered facts suggesting Ferreira’s involvement in the incident that were not known at the original filing.

The reply argues that there are no facts offered by plaintiff in the opposition which would explain when plaintiff first became aware of facts suggesting that Ferriera was potentially liable at some time after this party was named as potentially responsible by two other parties to the action.

However, given the liberality of the standard as expressed by both sides, it does not appear that anything from the pleading, the Doe amendment which pleads that “Upon the filing of the complaint, the plaintiff, being ignorant of the true name of the defendant…and having discovered to true name of the defendant to be” Ferriera, or the request for judicial notice, includes facts which would suggest that plaintiff cannot show that it was not aware of facts supporting liability, as opposed to the identity of a possible party. [See Amendment to Complaint, filed 01/29/2025, RFJN, Exs. G, H].

It would appear that the proper way to pursue this theory would be to assert in the answer the statute of limitations as an affirmative defense, and to proceed to eventually present an evidentiary showing meeting defendant’s burden of showing that the Doe amendment was untimely by proving that plaintiff not only knew Ferreira’s identity, but “also knew fact giving rise to a cause of action against” defendant Ferreira, at a time prior to the filing of the amendment, as required under Fuller. Fuller, at 1173.

The reply suggests that plaintiff cannot make a showing of genuine ignorance, and that plaintiff makes only conclusory arguments in opposition, and fails to explain why plaintiff did not bring Ferreira into the case at the time the cross-complaints were filed or after Ferreira responded to written discovery. This argument disregards defendant’s burden on its affirmative defense, and underscores that a factual showing must be made by defendant to prevail on that defense. The court on demurrer does not have before it any discovery responses, or anything other than the allegations of other parties, which plaintiff may have been reasonably concerned were not supported by facts, given plaintiff’s position that defendant the City of Duarte and its contractor defendant Skanska were ultimately responsible for the traffic light system on the date of the accident.

Specially Appearing Defendant Ferreira Construction Co., Inc. dba Ferreira Coastal Co.’s Request for Judicial Notice in Support of its Demurrer to the Complaint is DENIED as to Exhibit F, purported Amendment to Complaint dated December 2, 2024, which is a document which does not appear in the Court’s file. Request for Judicial Notice is otherwise GRANTED.

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