Judge: Walter P. Schwarm, Case: 30-2023-01305906, Date: 2023-08-08 Tentative Ruling

Specially Appearing Defendant’s (Manor Care of Fountain Valley CA, LLC) Motion to Quash Plaintiff’s Service of Summons, Doe 1 Amendment to the Complaint [Under CCP 474], and First Amended Complaint (Motion), filed on 4-13-23 under ROA No. 24, is DENIED. The Notice for this Motion (Notice) was filed on 4-13-23 under ROA No. 34.

The court GRANTS Defendant’s Request for Judicial Notice (RJN), filed on 4-13-23 under ROA No. 32, pursuant to Evidence Code section 452, subdivision (d).

Code of Civil Procedure section 418.10 subdivision (a) states in pertinent part: “(a) 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 for one or more of the following purposes: [¶] (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.”

Code of Civil Procedure section 474 provides in part, “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. . .”

Olden v. Hatchell (1984) 154 Cal.App.3d 1032, 1037 states, “The purpose of section 474 is to enable a plaintiff to avoid the bar of the statute of limitations when he is ignorant of the identity of the defendant. [Citations.] The statute must be liberally construed to that end. [Citations.] Such construction is supported by ‘the policy favoring liberality in the amendment of pleadings to encourage litigating causes on their merits’. [Citations.]” (See also, General Motor Corporation v. Superior Court (1996) 48 Cal.App.4th 580, 593 at footnote 12.)

Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176 (Woo) states, “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. [Citations.] A recognized exception to the general rule is the substitution under section 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. [Citations.] 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. [Citation.]”

McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 371–372 (McClatchy), provides, “Section 474 provides a method for adding defendants after the statute of limitations has expired, but this procedure is available only when the plaintiff is actually ignorant of the facts establishing a cause of action against the party to be substituted for a Doe defendant. [Citation.] ‘The question is whether [the plaintiff] knew or reasonably should have known that he had a cause of action against [the defendant].’ [Citation.] [¶] ‘Ignorance of the facts giving rise to a cause of action is the “ignorance” required by 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?’ ” ’ [Citations.] ‘Although it is true that a plaintiff’s ignorance of the defendant’s name must be genuine (in good faith) and not feigned [citations] and that a plaintiff need not be aware of each and every detail concerning a person's involvement before the plaintiff loses his ignorance [citations], 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.’ [Citation.]” (Footnote 2 omitted; Italics in McClatchy.)

McOwen v. Grossman (2007) 153 Cal.App.4th 937, 943–944 (McOwen), states, “Whether ‘the requirements of section 474 are met’ [citation] is different from deciding when the cause of action accrued for the purposes of the statute of limitations. 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. ‘Section 474 allows a plaintiff in good faith to delay suing particular persons as named defendants until he has knowledge of sufficient facts to cause a reasonable person to believe liability is probable.’ [Citation.] ‘The fact that the plaintiff had the means to obtain knowledge is irrelevant.’ [Citation.] ‘In short, section 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.]”

The Motion states, “When plaintiffs filed the Complaint on February 2, 2023, they knew or reasonably should have known that the facts involving the alleged causes of action against MCFV, which was the skilled nursing facility on Warner Avenue where plaintiffs’ mother Lucy Utu was a resident for more than a decade, because plaintiffs knew that a nearly identical lawsuit alleging causes of action against MCFV was filed in 2022. The Doe Amendment is improper – it and the related FAC should not relate back to the filing date of the original complaint. Accordingly, the service of summons should be quashed.” (Motion; 2:6-12.)  The Motion also states, “Based on the above facts, there is no question that Plaintiffs knew of Manor Care of Fountain Valley CA, LLC’s existence and purported liability prior to filing the complaint on February 2, 2023. Indeed, nearly an identical complaint, including typographical errors, was filed by Plaintiffs’ counsel  in this very Court by Decedent last year, on August 5, 2022, in which Manor Care of Fountain Valley CA, LLC was named as the sole defendant.” (Motion; 8:25-9:2.)

On 8-5-22 under ROA No. 2, Plaintiff—Lucy Utu filed a Complaint against Defendant alleging causes of action for Statutory Elder Abuse/Neglect, Violation of Health & Safety Code 1430, and Medical Negligence under Orange County Superior Court Case No. 30-2022-01273828 (2022 Action) (RJN, Exhibit 1.)  The Prior Complaint did not allege a cause of action for Wrongful Death. (RJN, Exhibit 1.)  On 9-7-22, Defendant filed a Notice of Removal of the 2022 Action to Federal Court. (RJN, Exhibit 2.)  On 11-1-22, Plaintiff—Lucy Utu passed away. (RJN, Exhibit 5.)  On 11-14-22, Elva Utu (the personal representative, successor-in-interest, and an individual plaintiff in the current action) filed a declaration that stated, “Given my mother’s unexpected death, we are requesting her current case be dismissed so we can focus on determining her estate proceedings, if any. . . . My family is also requesting her current case be dismissed so we can focus on grieving instead of this lawsuit.” (RJN, Exhibit 6.)

On 2-2-23 under ROA No. 2, Plaintiffs (Anne Asoau, Jayne Faalafua; John Utu, Elva Utu (as successor-in-interest and personal representative of Lucy Utu) filed the Complaint in the current action.  The Complaint alleges causes of action Statutory Elder Abuse/Neglect, Medical Negligence, and Wrongful Death.  The named Defendant in the Complaint is Mary Tran, D.O. (Complaint.)  On 3-2-23 under ROA No. 11, Plaintiff filed an Amendment to Complaint that identified Defendant as Doe No. 1.  

Plaintiffs’ Opposition to Manor Care of Fountain Valley, CA LLC’s Motion to Quash Service of Summons (Opposition), filed on 7-28-23 under ROA No. 90, states, “In reality, plaintiffs were simply determining if they had a valid Wrongful Death claim against Manor Care before adding it as a Doe-defendant. After review of medical records and discussion with an expert, plaintiff determined such a claim was valid and added Manor Care as a Doe-defendant. This was legally and procedurally proper and defendant’s Motion should be denied.” (Opposition; 1:3-7 (Italics in Opposition.).)

The declaration in support of the Opposition provides, “In 2021, Ms. Utu’s daughter Elva Utu requested her mom’s medical records from Manor Care. On or around July 14, 2021, her family was provided 146 pages of medical records. No other records were provided to her family. [¶] After filing the original lawsuit and being removed to federal court, plaintiff made numerous requests for plaintiff’s medical records. Defendant did not respond to these requests. [¶] When Dr. Tran’s attorney subpoenaed Ms. Utu’s medical records from Manor Care in this case, Manor Care filed an objection with this Court and refused to produce them.1 When Manor Care finally produced Ms. Utu’s chart to plaintiff’s counsel on April 28, 2023, they produced 18,857 pages. This was 18,711 more pages than had been previously produced. [¶] Following the filing of this case, plaintiff sought out plaintiff’s medical records from several hospitals, including but not limited to Fountain Valley Hospital and West Anaheim Regional Medical Center. This involved the review of thousands of pages of medical records. On March 14, 2023, plaintiff added Manor Care and its Director of Nursing Denise Lorenzo as Doe-defendants. At that time, it first became apparent to plaintiff’s counsel that a viable Wrongful Death claim against Manor Care and Ms. Lorenzo was warranted.” (Pick Decl., ¶¶ 2-5.)

Although Plaintiffs were aware of the identity of Defendant at the time of the filing of the Complaint, Plaintiff has provided evidence that Plaintiffs did not have sufficient facts as to whether Plaintiffs could allege the Wrongful Death cause of action.  Given the policy of liberally construing Code of Civil Procedure section 474, the court finds that Plaintiffs evidence is sufficient to demonstrate that Plaintiffs did not know facts that would cause a reasonable person to believe that Defendant’s liability was probable as to the Wrongful Death cause of action.

Therefore, the court DENIES Specially Appearing Defendant’s (Manor Care of Fountain Valley CA, LLC) Motion to Quash Plaintiff’s Service of Summons, Doe 1 Amendment to the Complaint [Under CCP 474], and First Amended Complaint filed on 4-13-23 under ROA No. 24.

Plaintiffs are to give notice.