Case Number: BC640346 Hearing Date: October 16, 2018 Dept: 31

Defendant Amanda Razi’s Motion to Strike Amendment to Complaint Designating Amanda Razi as Doe 1 is DENIED. Defendant Amanda Razi’s Demurrer to Plaintiff’s Complaint is SUSTAINED with ten days leave to amend.

Motion to Strike

On July 13, 2018, Plaintiff added Amanda Razi, Defendant Azizi’s wife, as Doe 1 to the Complaint in this action. At the time the amendment was filed, trial was set for August 20, 2018. On August 20, 2018, the court issued an order continuing trial to February 11, 2019 based upon the Doe Amendment.

The operative complaint does not set forth any specific allegations against the Doe Defendants; rather it provides, “Plaintiff is unaware of the true names of defendants DOES 1 through 100. These defendants are sued by fictitious names and the pleadings will be amended as necessary to obtain relief against defendants DOES 1 through 100 when the true names and capacities of these defendants are ascertained or when such facts pertaining to liability are ascertained, or as permitted by law or by the Court,” (Compl. ¶ 11), and generally charges all Defendants with liability.

The addition of a Doe defendant is governed by Code of Civil Procedure section 474. A defendant may challenge the propriety of a Doe Amendment. (See A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1064.) A motion challenging a Doe Amendment is a procedurally separate motion, and thus the parties’ reliance upon the limitations of a motion to strike are inapposite. (Ibid.) Plaintiff’s objection to the declaration of Kevin Dicker is OVERRULED.

Defendant contends, based upon Plaintiff’s interrogatory responses in 2017, that Plaintiff was aware of Amanda Razi’s identity long before the Doe Amendment was filed. However, the interrogatory response cited by Defendant makes no reference to Amanda Razi’s alleged ownership interest in the entity Defendants. Plaintiff explains in Opposition that Amanda Razi has been added based upon her status as a part owner and shareholder of Defendant Sherbank Azizi Dental Corporation, Inc.

“[T]he plaintiff is ignorant within the meaning of the statute if he lacks knowledge of that person’s connection with the case or with his injuries.” (General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 593–594.) “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. The question is whether the plaintiff knew or reasonably should have known that he had a cause of action against the defendant.” (McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 371–372 (internal citation omitted).) “Under section 474, therefore, a plaintiff has no duty to exercise reasonable diligence prior to filing the complaint to discover the defendant’s identity.” (Balon v. Drost (1993) 20 Cal.App.4th 483, 488.) Plaintiff contends that Amanda Razi’s ownership interest was unknown until the conclusion of Amanda Razi’s April 11, 2018 deposition. (Badalyan Decl. ¶¶ 2-3.) The court finds the evidence insufficient to establish that Plaintiff knew sufficient facts to name Amanda Razi as a defendant prior to the Doe Amendment.

Defendant’s reliance upon Winding Creek v. McGlashan (1996) 44 Cal.App.4th 933 in their motion to strike the Doe Amendment, is misplaced as the court in Winding Creek addressed a demurrer on statute of limitations grounds and whether there were sufficient facts alleged against the Does in the original complaint to utilize the relation-back doctrine. The court’s opinion in Winding Creek has no application to whether the Doe Amendment itself should be stricken. (Winding Creek, supra at 943 (“We conclude that the 13th and 14th causes of action of the third amended complaint are not barred by the statute of limitations. We proceed to the attorney defendants’ remaining contentions in support of the demurrer.”).)

Defendant also contends that Amanda Razi is prejudiced by the amendment because it was filed less than a month before trial and “Razi will not have an opportunity to challenge the legal sufficiency of Plaintiff’s causes of action through a motion for summary judgment, as the cut-off has passed.” In Opposition, Plaintiff notes that Defendant was served with the Doe Amendment on April 26, 2018, but the document was inadvertently not filed. (Badalyan Decl. ¶¶ 3-4, Ex. C.) Additionally, on June 4, 2018, Plaintiff sent a notice of ruling which indicated all Doe defendants, other than Amanda Razi, were dismissed with prejudice. (Badalyan Decl. Ex. D.) Thus, it appears Defendant’s counsel was aware that such amendment would be made well before the Doe amendment was successfully filed.

Additionally, the court has continued trial in this matter and reopened discovery as to Defendant Amanda Razi. Moreover, the court will permit Defendant Amanda Razi sufficient time to conduct discovery and file a motion for summary judgment. (See Polibrid Coatings, Inc. v. Sup. Ct. (2003) 112 Cal.App.4th 920, 923-24 (requiring trial continuance where “where a litigant is brought into litigation after 14/24ths of the time to litigate it has passed” to permit at least enough time for that party to reasonably complete discovery and bring a summary judgment motion.”).) Therefore, the court finds no substantial prejudice to Defendant Amanda Razi as a result of the Doe Amendment.

The motion to strike is DENIED in its entirety.

Demurrer

Plaintiff contends that the demurrer was not timely filed because it was filed more than 30 days after the acknowledgement of the Doe Amendment was signed. (CCP § 415.30(c).) However, it does not appear that Plaintiff ever served a summons and complaint upon Defendant Amanda Razi. Therefore, Razi was not required to respond to the complaint. Moreover, even if the demurrer had been late-filed by one day, the court would address the demurrer on the merits. (CCP § 473(a)(1) (“The court may, in furtherance of justice, and on any terms as may be proper…enlarge the time for answer or demurrer”). See also McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 280-282.) The court notes however that Defendant’s contention in Reply that the Amendment was “never signed by the Court” is immaterial as a fictitious name amendment does not require a court order, as expressly stated on the form document used by Plaintiff. Similarly, Defendant’s failure to adequately meet and confer more than five days before the due date of the demurrer and in person or via telephone are not sufficient to overrule the demurrer or delay a determination on the merits. (CCP § 430.41(a)(4).)

Defendant correctly contends that the Complaint, as alleged, fails to state sufficient facts against Defendant Amanda Razi as a result of her inclusion as a Doe Defendant. Notably, Plaintiff’s Complaint expressly alleged it would be amended to clarify the liability of the added Doe Defendants. (Compl. ¶ 11.) While Plaintiff argues Razi is properly named as a defendant as Plaintiff’s joint employer and the alter ego of the entity defendants, these theories do not clearly apply to Razi in the complaint and are properly clarified via an amendment. The “Employing Defendants” as defined in the Complaint, refer to Azizi, Green Dental, Sherbank Azizi, and “other entities” owned by Azizi. (Compl. ¶ 1.) The Complaint refers to the “named Defendants” as an integrated enterprise, which did not include the Does. (Compl. ¶ 8.) Additionally, Plaintiff’s opposition relies upon the unpled contention that Razi is a shareholder of an entity defendant, which is improper. (CCP §§ 430.30, 430.70.) As to the alter ego claims, Plaintiff fails to adequately allege alter ego as the only alleged prejudice is the inability to satisfy an eventual judgment. (Comp. ¶ 13 (“If the acts of each Defendant are treated as its and its alone, an inequitable result will follow in that a Defendant may have insufficient assets to respond to the ultimate award in this case.”).) “The alter ego doctrine does not guard every unsatisfied creditor of a corporation but instead affords protection where some conduct amounting to bad faith makes it inequitable for the corporate owner to hide behind the corporate form. Difficulty in enforcing a judgment or collecting a debt does not satisfy this standard.” (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 539.) Given the conclusory nature of the complaint and the addition of a previously unnamed Doe, the demurrer is SUSTAINED in its entirety with ten days leave to amend.

Plaintiff is ordered to give notice.
*The court does not need any oral argument regarding these motions given the nature of the motions and the complete briefing.