Case Number: LC099466 Hearing Date: May 27, 2014 Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

SHAWN SULLIVAN,
Plaintiff(s),
vs.
MOHAMAD TABAR, et al.,
Defendant(s).

Case No.: LC099466

[TENTATIVE] ORDER DENYING MOTION FOR SUMMARY JUDGMENT

Dept. 92
1:30 p.m. — #21
May 27, 2014

Defendant, Manijeh Lofimoghaddas’s Motion for Summary Judgment is Denied.

1. Background Facts
Plaintiff, Shawn Sullivan filed this action against Defendant, Mohamad Tabar on 1/10/13. The complaint alleges a claim for motor vehicle negligence arising out of an automobile accident. On 4/05/13, Plaintiff filed a doe amendment to the complaint; the doe amendment alleges Plaintiff has discovered that Mohamad Tabar is the incorrect name of the plaintiff, and the true name of the plaintiff is Manijeh Lotfimoghadda.

On 5/22/13, Lotfimoghadda filed an answer to the complaint; the answer included an affirmative defense that the lawsuit is barred by the statute of limitations.

2. Motion for Summary Judgment
At this time, Defendant moves for summary judgment, contending the lawsuit is barred by the statute of limitations. Notably, the subject accident took place on 1/12/11; thus, the original complaint was filed less than two years thereafter, but the doe amendment was filed more than two years thereafter.

Defendant argues the doe amendment does not “relate back” to the original complaint because Plaintiff had knowledge of Defendant’s true identity at the time he filed the complaint.

a. Law Regarding Doe Amendments and Relation Back
When the initial complaint is timely filed and, after the statute of limitations has expired, the plaintiff brings in a Doe defendant, the relation back doctrine applies. CCP §474 permits the bringing in of new defendants if the requirements of §474 are met. If so, that defendant is considered a party to the action from its commencement. (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1169-1170; citing Munoz v. Purdy (1979) 91 Cal.App.3d 942, 946.)

CCP §474, the fictitious name statute, states in part: “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 name, and when his true name is discovered, the pleading or proceeding must be amended accordingly ••••” The section is to be liberally construed. (General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 593 & 593-594, fn. 12.) “[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.)

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.)

b. Facts of This Case
Defendant provides evidence, which Plaintiff does not dispute, that Plaintiff and Defendant were involved in an accident on 1/11/11, and that they conversed at the accident scene. Defendant establishes that Plaintiff called 911 to request police at the scene, and two officers came to the scene.

The difficult fact in this case is fact 6 – Defendant states, “Plaintiff received a Los Angeles Police Department Traffic Collision Information card from a police officer at the scene containing Lotfimoghaddas’ name and address. Mohamad Tabar’s name does not appear on the Traffic Collision Information card.”

Plaintiff concedes that the foregoing is true, but contends he gave the card to the attorney he retained shortly after the accident. Plaintiff did not keep the card. Mohamad Tabar is the husband of Defendant, and he was the named insured on the insurance policy that was the subject of the accident. Plaintiff’s prior attorney attempted to negotiate with Tabar’s insurance company, but was not successful. Shortly before the statute of limitations was set to run, Plaintiff’s former counsel informed Plaintiff that he would no longer work on the case. Plaintiff sent an employee to retrieve the case file for him. Plaintiff contacted an attorney to represent him in early 2013; that attorney declined to represent Plaintiff, but offered to help him draft a complaint in pro per. Plaintiff provided the attorney with the case file from his former attorney; nothing in the file mentioned Defendant’s name, and therefore the attorney prepared the complaint against Tabar only.

Plaintiff establishes that, when the complaint was filed, he did not know Defendant’s name. See additional fact 18. Plaintiff later retained counsel, who contacted the attorney who had previously negotiated with Tabar’s insurance company. New counsel indicated that he thought more documents should be in the case file, and only at that time was the Traffic Collision Information card given to Plaintiff’s new attorney. Plaintiff’s new attorney immediately filed a doe amendment once this information was received.

c. Analysis
The Court finds Plaintiff’s additional facts 1-30 raise triable issues of material fact concerning whether Plaintiff was ignorant of Defendant’s true identity at the time he filed his complaint. Notably, any reply to the opposition was due on or before 5/22/14. The Court has not received any reply to the opposition, and will not consider a late-filed reply.

Dated this 27th day of May, 2014

Hon. Elia Weinbach
Judge of the Superior Court