Judge: Stephen Morgan, Case: 21AVCV00850, Date: 2023-04-04 Tentative Ruling
Department A14 Tentative Rulings
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Case Number: 21AVCV00850 Hearing Date: April 4, 2023 Dept: A14
Background
This is a personal injury – motor vehicle action. Plaintiff Beatriz Lopez (“Plaintiff”) alleges that on February 17, 2020 on Paintbrush Drive in Palmdale, CA 93551, Defendants Yiqin Yang (“Yang”) and Doe Defendants negligently owned. maintained, controlled and/or otherwise operated Defendant's vehicle so that the same caused a motor vehicle collision with another vehicle operated by Plaintiff, causing Plaintiff major personal injuries and property damage.
On December 22, 2021, Plaintiff filed her Complaint alleging two causes of action for General Negligence and Motor Vehicle.
On April 26, 2022, Yang filed her Answer.
On August 30, 2022, Plaintiff filed an amendment to the Complaint, correcting the fictitious name of Doe 1 to Xueqiang Liu (“Liu”).
On October 17, 2022, Yang was dismissed.
On February 17, 2023, Liu filed this instant Motion to Quash Doe Amendment (“Motion to Quash”).
On March 13, 2023, Plaintiff filed her Opposition.
On March 27, 2023, Liu filed his Reply.
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Legal Standard
“[A] defendant named in an action by a Doe amendment under section 474 may challenge the amendment by way of an evidence-based motion, which argues that the plaintiff ‘unreasonable delayed’ his or her filing of the challenged amendment.” (A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1067 (emphasis added).) It is the moving party’s burden to prove that a plaintiff knew the moving party’s identity and the facts giving rise to the his or her liability at the time of filing the complaint. (See Fuller, supra, 84 Cal.App.4th at 1173; Banke and Segal (Rutter Group 2020 Update) Cal. Prac. Guide: CPBT Statute of Limitations, ¶8:106; Munoz v. Purdy (1979) 91 Cal.App.3d 942 [“Section 474, however, does not relate to the steps which should be taken after the filing of the action; it is restricted to the knowledge of the plaintiff at the time of filing of the complaint.”].)
In order to be a proper Doe amendment, the plaintiff must have been genuinely ignorant of the Doe defendant's identity at the time the complaint was filed. (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176 [citing Optical Surplus, Inc. v. Superior Court (1991) 228 Cal.App.3d 776, 783-784].) The “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.” (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1170.) “Code of Civil Procedure section 474 is to be liberally construed.” (Id.)
Moreover, “if the plaintiff is actually ignorant of the defendant's identity, the § 474 relation-back doctrine applies even if that ignorance is the result of plaintiff's negligence.” (Woo, supra, 75 Cal.App.4th at 177.) While reasonable diligence may be material to the determination of the accrual of a cause of action, it is irrelevant to the determination of whether a Doe amendment is timely. (Dover v. Sadowinski (1983) 147 Cal.App.3d 113, 116 [“there is no requirement placed upon a plaintiff to exercise reasonable diligence prior to filing the complaint to discover the defendant's identity or the facts giving him a cause of action against defendant”].). “Ignorance of the facts is the critical issue, and whether it be due to misinformation or negligence is not relevant.” (Id. at 116.) The only requirement is that the ignorance be “real and not feigned.” (Ibid.)
“Ignorance of the facts giving rise to a cause of action is the 'ignorance' required by [*3] section 474, and the pivotal question is, 'did plaintiff know facts?' not 'did plaintiff know or believe that he had a cause of action based on those facts?' Although it is true that a plaintiff's ignorance of the defendant's name must be genuine (in good faith) and not feigned and that a plaintiff need not be aware of each and every detail concerning a person's involvement before the plaintiff loses his ignorance, it is equally true that the plaintiff does not relinquish his rights under section 474 simply because he has a suspicion of wrongdoing arising from one or more facts he does know.” (McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 372 [trust beneficiary should have known that he had cause of action against law firm for mismanagement of trust where undisputed evidence established that trustee used law firm's address and firm letterhead for years when conducting trust's business].)
“If the identity of the Doe defendant is known but, at the time of the filing of the complaint the plaintiff did not know facts that would cause a reasonable person to believe that liability is probable, the requirements of section 474 are met.” (Id. at 374.) “[E]ven though the identity of a defendant be known, if the plaintiff is ignorant of the basis of liability against such a defendant, the defendant may be held as a party defendant under section 474 of the Code of Civil Procedure.” (Oakes v. McCarthy Co. (1968) 267 Cal.App.2d 231, 253 [homeowners were genuinely ignorant of engineer's identity for purposes of § 474 where they knew engineer's name but did not know of facts establishing engineer's liability]; General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 593 [plaintiff's ignorance of facts supporting products liability claim against car manufacturer satisfied genuine ignorance requirement under § 474]; Parker v. Robert E. McKee, Inc. (1992) 3 Cal.App.4th 512, 518, 4 Cal.Rptr.2d 347 [even where a defendant is named in the original complaint by his true name, then dismissed because the plaintiff believed his capacity relieved him of liability, he may later be added (returned to the action) as a Doe defendant based on the plaintiff's discovery that he occupied a different legal capacity].)
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Application – Liu argues that the Doe Amendment naming him in the action is untimely, Liu believes the Doe Amendment had to be filed by August 14, 2022 due to the two-year statute of limitations set out by Cal. Code Civ. Proc. § 335 and the tolling requirements set out by California Judicial Council Emergency Rule 9 due to the COVID-19 pandemic. Liu further argues that the Doe amendment cannot relate back to the filing of the original complaint because on (1) April 28, 2020 Plaintiff’s attorney was emailed a copy of the Traffic Collision Report (“TCR”) identifying Liu as the driver in the underlying incident (see Exh. B), and on July 14, 2022, after an error in the service list, Yang re-served her discovery responses which identified Liu as the actual diver of the vehicle involved in the underlying incident (see Exh. D). Liu presents that, due to these facts, Plaintiff and her attorneys had actual knowledge of Liu as early as April 28, 2020 and at least two other occasions prior to filing the Doe amendment.
Plaintiff presents two main arguments: (1) equitable estoppel, and (2) that Liu has failed to satisfy the evidentiary burden of demonstrating that Plaintiff had knowledge of Defendant Liu’s identity (and culpability) when Plaintiff filed the original complaint.
Plaintiff presents that the relation back doctrine applies as the amendment to the Complaint is based on the identical set of facts as alleged in the original Complaint and seeks recovery for the identical injuries alleged in the original Complaint. Plaintiff then continues to Liu’s burden. Plaintiff presents that Liu’s motion is dependent upon a declaration from defense counsel, Phillip T.S. Tukia (“Tukia”), and Tukia has no personal knowledge of whether plaintiff’s attorney was emailed a copy of the TCR on April 28, 2020 because Tukia does not declare that he either sent or received the TCR on the aforementioned date. Next, Plaintiff’s counsel, Kamran Behnam (“Behnam”), and his paralegal, Tony Akopyan (“Akopyan”), declare that they did not review the TCR prior to filing the Complaint, so these declarations reflect negligence by Plaintiff’s counsel in failing to review the TCR, but do not bar the use of § 474’s relation back doctrine. Behnam cites Sobeck & Assocs. v. B & R Invs. No. 24 (1989) 215 Cal.App.3d 861 (“Sobeck”) to show that “[U]nreasonable delay in filing an amendment after actually acquiring knowledge of the defendant’s identity can bar a plaintiff’s use of the fictitious names statute, but in such cases the defendant must show specific prejudice from the delay.” (Id. at 869.) Behnam presents that he learned of Liu’s identity in July 2022 and filed the Doe Amendment in August 2022, showing that there was no unreasonable delay in filing the Doe Amendment after acquiring knowledge of the defendant’s identity and, even if the period of one month constituted an unreasonable delay, there is no showing of specific prejudice by Liu.
Tukia’s declaration is based on his personal knowledge. The paragraph regarding the April 28, 2020 email reads:
On April 28, 2020, plaintiff's attorney was emailed a copy of the Traffic Collision Report identifying Xueqiang Liu as the driver involved in the accident with Beatriz Lopez. Attached hereto as Exhibit "B," is true and correct copy of the April 28, 2020 email with a copy of the Traffic Collision Report for the February 17, 2020 collision attached.
(Decl. Tukia ¶ 4.)
While Exhibit B does show an email containing the TCR, the email is directed from Jennifer Tilt from CSE Safeguard Insurance Company to an email address, “kbclaims01@gmail.com.” (See Exh. B.)
It appears that Tukkia does not have the personal knowledge to competently testify to the matters stated in paragraph four of his declaration. Further, Behnam’s email address of record is “kbclaims09@gmail.com.” While similar, Behnam’s email is a different email address and there is no connection made by either Liu or his attorney to show that Behnam himself or Akopyan received the email sent to “kbclaims01@gmail.com.”
In order to rectify this deficiency, Tukia submits the declaration of Jennifer R. Tilt and presents that the “kbclaims01@gmail.com” email is (1) the email address of record for Plaintiff’s counsel, and (2) used for service of all pleadings and discovery throughout this case.
The Court has addressed the email issue, ante. While counsels at the Morgenstern Law Group have been serving motions to “kbclaims01@gmail.com,” this is not Behnam’s email of record. The Court notes that email service to Behnam following Yang’s initial email has been sent to three emails – “kbclaims01@gmail.com,” “kb4law@yahoo.com,” and “tonya@behnamlawgroup.com.” None of these emails are listed in the Court’s records. None of these emails are listed in any header on files submitted by Plaintiff. The Court notes that an email address is supposed to be included in the first page of each paper. (See Cal. Rules of Court, Rile 2.111(1).) However, should this pose an issue with service, Plaintiff has opposed the motion on its merits. "It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion.” (Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930.)
Regarding the declaration of Jennifer R. Tilt (“Tilt”), Tilt does not state that she communicated with Behnam or Akopyan. Instead, she broadly states that she “communicated with the Law Office of Kamran Behnam” at the “kbclaims01@gmail.com” address, provided by “Mr. Behnam’s office.” (Decl. Tilt ¶ 4.) Tilt continues to say that she forwarded an email containing the TCR to and discussed the property damage claim with the Law Office of Kamran Behnam. (Id. at ¶ 5.) Though an exhibit is attached, it includes only Tilt’s email. (See Exh. A.) There is no response from the “kbclaims01@gmail.com” address. The declaration does not support an inference that Tilt communicated directly with either Behnam or Akopyan. There is also no clear indication that whomever Tilt was communicating with forwarded the documents to Behnam or Akopyan.
Next, Behnam presents that he instructed Akopyan to speak with Plaintiff regarding the incident and to prepare a form complaint. (Decl. Behnam ¶ 2.) Following this Plaintiff filed her Complaint on October 22, 2021 and Yang filed her answer on April 26, 2022. Behnam presents that the Answer did not state that Liu drove the vehicle on the date of the incident. (Id. ¶ 5.) Behnam states that it was only upon receipt of Yang’s discovery responses in July 2022 that he learned for the first time that Liu was the responsible party. (Id. ¶ 6.) Upon receipt of this information, Behnam instructed Akopyan to file the Doe Amendment. (Id. ¶ 7.) The Doe Amendment was filed on August 30, 2022 and Tukia acknowledged service of the Summons and Complaint. (Id. ¶¶ 7-8.) Behnam also declares: “It is my understanding that Defendant Liu contends that I received the Traffic Collision Report ("TCR") before Plaintiff filed the Complaint. I do not recall ever receiving or reviewing the TCR before Plaintiff filed the complaint on October 22, 2021. Had I reviewed the TCR, I would have realized that Defendant Liu was the driver and named Defendant Liu as a Defendant. (Id. ¶ 9.)
Akopyan states that he prepared the form complaint after speaking with Plainitff; that upon receiving the discovery responses in July 2022, he reviewed them and realized – for the first time – that Defendant Yang claimed that Zueqiang Liu was driving the vehicle on the date of the accident; he informed Behnam of this information and was instructed to file an amendment to the Complaint; and on August 30, 2022, Plaintiff filed an amendment to the Complaint naming Liu as Doe 1. (Decl. Akopyan ¶¶ 1-6.) Akopyan also states “[he does] not recall ever receiving or reviewing the [TCR] before preparing the form complaint.” (Id. ¶ 8.)
As mentioned, ante, the “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.” (Fuller, supra, 84 Cal.App.4th 1163, 1170.) “Code of Civil Procedure section 474 is to be liberally construed.” (Id.)
Here, the evidence provided by both parties shows that Plaintiff, Behnam, and Akopyan did not have knowledge and were ignorant of Liu’s identity when filing the Complaint. As such, § 474 applies.
A plaintiff cannot avail himself or herself of the Doe Amendment procedure if he or she unreasonably delays in filing Doe Amendments naming Doe defendants as parties. (Sobeck, supra, 215 Cal.App.3d 861, 869; see also A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1064-1066).) In order to prevail on a motion to bar amendment under section 474 on grounds of unreasonable delay, a defendant “must show not only that the plaintiff was dilatory but also ‘that defendant suffered prejudice from any such delay.’ ” (A.N., supra, 171 Cal.App.4th 1058, 1066.) No such showing has been presented by Liu.
Though Liu contends that Cal. Code Civ. Proc. § 335 limits Plaintiff’s ability to name Liu as a defendant, this is not the correct standard as it has been determined that § 474 applies. Relevant to whether there was delay in serving Doe Amendments, but which neither party raises or addresses, is Cal. Code Civ. Proc. §583.210. That section requires the summons and complaint be served upon a defendant within three years after the complaint is filed. Cal. Civ. Proc. Code § 583.210(a). If service of the summons and complaint has not been served upon a defendant within the three-year statutory time period, the court shall dismiss the action—i.e., dismissal is mandatory. (Cal. Code Civ. Proc. § 583.250.) “The three-year rule applies where the defendant seeking dismissal was served as a Doe defendant named in the original complaint, later amended to show his or her true name.” (Inversiones Papaluchi S.A.S. v. Superior Court (2018) 20 Cal.App.5th 1055, 1061.) Thus, “a plaintiff has three years from the date of filing the complaint to identify and serve a Doe defendant.” (Ibid.)
The Legislature has articulated four conditions that toll the time for service set forth in Cal. Code Civ. Proc. § 583.240, which states:
In computing the time within which service must be made pursuant to this article, there shall be excluded the time during which any of the following conditions existed:
(a) The defendant was not amenable to the process of the court.
(b) The prosecution of the action or proceedings in the action was stayed and the stay affected service.
(c) The validity of service was the subject of litigation by the parties.
(d) Service, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff's control. Failure to discover relevant facts or evidence is not a cause beyond the plaintiff's control for the purpose of this subdivision.
These conditions “must be construed strictly against the plaintiff.” (Inversiones, supra, at p. 1061.)
Here, the Complaint was filed on October 22, 2021. Three years from October 22, 2021 without tolling is October 22, 2024. The Doe Amendment was filed on August 30, 2022. The Doe Amendment is timely.
The Court need not address Plaintiff’s equitable estoppel argument.
The Court notes that Tukia has filed a supplemental declaration in which he states:
Starting in late April through June 2022, I placed several phone calls to Kamran Behnam, listed counsel of record for the plaintiff. I left him voicemail messages to call me to advise him that Yiqin Yang was not the driver of the vehicle that collided with the plaintiff in the accident that is the subject of this suit. I never received a response from Mr. Behnam. In fact, to this day, I have never spoken to Mr. Behnam.
(Supplemental Decl. Tukia ¶ 4.)
The issue of the phone calls is not incorporated into any of Liu’s filings and has only been brought up with the Reply. New issues raised in reply are improper and may be disregarded. (Regency Outdoor Advertising v. Carolina Lances, Inc. (1995) 31 Cal.App.4th 1323, 1333, 37 Cal. Rptr. 2d 552. See also Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1477 [“Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief[.]”]; American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453 [“[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument”]; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8 [“ ‘the rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.’ ”].)
Accordingly, the Motion to Quash is DENIED.
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Conclusion
Defendant Xueqiang Liu’s Motion to Quash Doe Amendment is DENIED.