Judge Teresa A. Beaudet, Case Number: 22STCV37560, Date: 2024-06-20 Tentative Ruling

Y.Y., Plaintiff, vs. DOE 1, et al., Defendants.	Case No.:	22STCV37560
	Hearing Date:	June 20, 2024
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: SPECIALLY APPEARING DEFENDANT DOE 1’S MOTION TO QUASH SUMMONS

Plaintiff Y.Y. (“Plaintiff”) filed this action on November 30, 2022 against Defendants Doe 1, Doe 2, Doe 3, and Does 4 through 60. The Complaint alleges causes of action for

(1) sexual assault, (2) intentional infliction of emotional distress, (3) negligent hiring, supervision, and retention, (4) negligent supervision of a minor, (5) failure to report suspected child abuse in violation of Penal Code section 11165, et seq. based on vicarious liability, and

On March 13, 2023, Plaintiff filed a proof of service indicating that the summons and Complaint were served on Doe 1 by substituted service on March 10, 2023.

Specially appearing defendant “DOE 1” (herein, “Doe 1”) now moves for an order quashing the service of the summons. Plaintiff opposes.

The Court denies Plaintiff’s request for judicial notice. The Court also notes that “Exhibit A” is not attached to the request.

Code of Civil Procedure section 418.10 provides in part: “[a] defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion…(1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” (Id., § 418.10, subd. (a).) Pursuant to Code of Civil Procedure section 418.10, subdivision (e), “[a] defendant or cross-defendant may make a motion under this section and simultaneously answer, demur, or move to strike the complaint or cross-complaint.”

In the Complaint in this action, Plaintiff alleges, inter alia, that “[t]his action to recover damages on behalf of an adult who was a victim of childhood sexual assault is governed by Code of Civil Procedure section 340.1. Plaintiff is over the age of forty. Therefore, pursuant to California Code of Civil Procedure section 340.1, Plaintiff is filing this civil action against unnamed ‘Doe’ defendants.” (Compl., ¶ 4.)

Pursuant to Code of Civil Procedure section 340.1, subdivision (e), “[e]very plaintiff 40 years of age or older at the time the action is filed shall file certificates of merit as specified in subdivision (f).” In addition, “[i]n any action subject to subdivision (e), a defendant shall be named by ‘Doe’ designation in any pleadings or papers filed in the action until there has been a showing of corroborative fact as to the charging allegations against that defendant.” (Code Civ. Proc., § 340.1, subd. (k).)

Pursuant to Code of Civil Procedure section 340.1, subdivision (l), “[a]t any time after the action is filed, the plaintiff may apply to the court for permission to amend the complaint to substitute the name of the defendant or defendants for the fictitious designation, as follows:

(1) The application shall be accompanied by a certificate of corroborative fact executed by the attorney for the plaintiff. The certificate shall declare that the attorney has discovered one or more facts corroborative of one or more of the charging allegations against a defendant or defendants, and shall set forth in clear and concise terms the nature and substance of the corroborative fact. If the corroborative fact is evidenced by the statement of a witness or the contents of a document, the certificate shall declare that the attorney has personal knowledge of the statement of the witness or of the contents of the document, and the identity and location of the witness or document shall be included in the certificate. For purposes of this section, a fact is corroborative of an allegation if it confirms or supports the allegation. The opinion of any mental health practitioner concerning the plaintiff shall not constitute a corroborative fact for purposes of this section.

(2) If the application to name a defendant is made before that defendant’s appearance in the action, neither the application nor the certificate of corroborative fact by the attorney shall be served on the defendant or defendants, nor on any other party or their counsel of record.

(3) If the application to name a defendant is made after that defendant’s appearance in the action, the application shall be served on all parties and proof of service provided to the court, but the certificate of corroborative fact by the attorney shall not be served on any party or their counsel of record.”

Pursuant to Code of Civil Procedure section 340.1, subdivision (m), “[t]he court shall review the application and the certificate of corroborative fact in camera and, based solely on the certificate and any reasonable inferences to be drawn from the certificate, shall, if one or more facts corroborative of one or more of the charging allegations against a defendant has been shown, order that the complaint may be amended to substitute the name of the defendant or defendants.”

In the instant motion, Doe 1 asserts that Plaintiff has not complied with Code of Civil Procedure section 340.1, subdivision (m) here. Doe 1 argues that “Plaintiff has not applied to substitute [the Boys and Girls Club of Metro Los Angeles (“BGCMLA”)] (or any other person or entity) for any fictitious designation. Nor has her counsel provided a certificate of corroborative fact to support any such application. As such, BGCMLA has not been substituted in place of the fictitiously named ‘Doe 1.’ Because BGCMLA has not been so substituted, it is not a party to the action and service of a summons on it was improper.” (Mot. at p. 4:2-6.)

In the opposition, Plaintiff counters that “[n]owhere does C.C.P. 340.1 create an additional procedural hurdle prior to service that dictates plaintiffs must name the defendants. On the contrary, the statute requires plaintiffs to name defendants by ‘DOE’ designations ‘until there has been [an application accompanied by] a [certificate] of corroborative fact as to the charging allegations against the defendant.’…plaintiffs may name the defendants ‘[a]t any time after the action is filed.’” (Opp’n at p. 4:20-25, emphasis omitted.)

Indeed, as set forth above, Code of Civil Procedure section 340.1, subdivision (l) provides in part that “[a]t any time after the action is filed, the plaintiff may apply to the court for permission to amend the complaint to substitute the name of the defendant or defendants for the fictitious designation, as follows…” (Emphasis added.) Here, Doe 1 does not cite any legal authority demonstrating that Code of Civil Procedure section 340.1 requires Plaintiff to name Doe 1 prior to effectuating service.

In addition, pursuant to Code of Civil Procedure section 340.1, subdivision (h), “[i]n any action subject to subdivision (e), a defendant shall not be served, and the duty to serve a defendant with process does not attach, until the court has reviewed the certificates of merit filed pursuant to subdivision (f) with respect to that defendant, and has found, in camera, based solely on those certificates of merit, that there is reasonable and meritorious cause for the filing of the action against that defendant. At that time, the duty to serve that defendant with process shall attach.” On February 6, 2023, the Court in this action issued an Order providing, inter alia, that “Plaintiff’s ex parte application for an order to name and serve ‘Doe’ Defendants pursuant to Code of Civil Procedure section 340.1 came on for haring on February 6, 2023…The court reviewed the following documents in camera: 1. Ex Parte Application, including the Memorandum of Points and Authorities; 2. Notice of Lodging containing: (a) Attorney Certificate of Merit on Behalf of Plaintiff regarding DOE 1; (b) Attorney Certificate of Merit on Behalf of Plaintiff Regarding DOE 2; (c) Attorney Certificate of Merit on Behalf of Plaintiff Regarding DOE 3; and (d) Certificate of Merit by Mental Health Practitioner re Plaintiff. The Court hereby grants the ex parte application and orders the following: 1. Plaintiff is permitted to serve the defendants with the Summons and Complaint…” (February 6, 2023 Order at pp. 1-2.)

“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; provided, that no default or default judgment shall be entered against a defendant so designated, unless it appears that the copy of the summons or other process, or, if there be no summons or process, the copy of the first pleading or notice served upon such defendant bore on the face thereof a notice stating in substance: “To the person served: You are hereby served in the within action (or proceedings) as (or on behalf of) the person sued under the fictitious name of (designating it).” The certificate or affidavit of service must state the fictitious name under which such defendant was served and the fact that notice of identity was given by endorsement upon the document served as required by this section. The foregoing requirements for entry of a default or default judgment shall be applicable only as to fictitious names designated pursuant to this section and not in the event the plaintiff has sued the defendant by an erroneous name and shall not be applicable to entry of a default or default judgment based upon service, in the manner otherwise provided by law, of an amended pleading, process or notice designating defendant by his true name.”

The Declaration of Robert A. Bailey in support of the instant motion, provides, inter alia, that “BGCMLA provided me with a copy of the summons received in this action. A true and correct copy of the summons delivered to BGMLA [sic] is attached as Exhibit 1.” (Bailey Decl., ¶ 2.) Doe 1 asserts that with regard to this summons, “[i]n order to comply with CCP § 474, Plaintiff was required to check box number 2. Instead, she checked only box 3. When, as here, a corporation is served as a Doe defendant, the summons must indicate both that the person served is being served both on behalf of the corporation and the Doe defendant.” (Mot. at p. 5:9-12, emphasis omitted; see Bailey Decl., ¶ 2, Ex. 1.)

In the opposition, Plaintiff asserts that Doe 1’s “argument is completely contrary to the plain language of Section 474. The text of the statute does not even contemplate the sufficiency of the summons unless there is a default or default judgment against the defendant at issue. Default is not under consideration with respect to DOE 1, so the language of C.C.P. 474 that refers to the summons is wholly inapplicable.” (Opp’n at p. 8:9-13, emphasis omitted.)

Indeed, Code of Civil Procedure section 474 provides in pertinent part that “no default or default judgment shall be entered against a defendant so designated, unless it appears that the copy of the summons or other process, or, if there be no summons or process, the copy of the first pleading or notice served upon such defendant bore on the face thereof a notice stating in substance: “To the person served: You are hereby served in the within action (or proceedings) as (or on behalf of) the person sued under the fictitious name of (designating it).” (Code Civ. Proc., § 474, emphasis added.) Here, no default or default judgment against Doe 1 is at issue.

Lastly, Doe 1 asserts that “[s]imilarly, the certificate of service filed by Plaintiff fails to state that the summons included the required endorsement as required by section 474. Bailey Decl., Ex. 2, p. 2, para. 6.b.” (Mot. at p. 5:13-15.) The Court notes that this argument appears to reference an “Exhibit 2” to the Bailey Declaration. However, no Exhibit 2 is attached to the declaration. Moreover, as discussed above, default or default judgment against Doe 1 is not at issue here. Code of Civil Procedure section 474 provides in pertinent part that “[t]he certificate or affidavit of service must state the fictitious name under which such defendant was served and the fact that notice of identity was given by endorsement upon the document served as required by this section. The foregoing requirements for entry of a default or default judgment shall be applicable only as to fictitious names designated pursuant to this section…” (Emphasis added.)

Based on the foregoing, the Court does not find that Doe 1 has demonstrated grounds for an order quashing the service of the summons.

[1]The Court notes that Plaintiff’s cause of action for negligence appears to be incorrectly numbered as the “fifth” cause of action.

Superior Court of California

County of Los Angeles

Department 50