Case Number: BC474617 Hearing Date: June 03, 2014 Dept: 92

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

IAN KAYE,
Plaintiff(s),
vs.

CITY OF LOS ANGELES, ET AL.,

Defendant(s).

CASE NO: BC474617

[TENTATIVE] ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Dept. 92
1:30 p.m. — #41
June 3, 2014

Defendant, Prince Enterprises, Inc.’s Motion for Summary Judgment is Denied.

1. Allegations of the Complaint
Plaintiff, Ian Kaye filed this action against Defendant, City of Los Angeles to recover damages. Plaintiff’s form complaint alleges he sustained injuries as follows:
Plaintiff tripped and fell over the base of a parking meter pole on the sidewalk located at 1837 Hyperion Avenue in the Silver Lake community of Los Angeles. The meter and pole had been knocked off during a car accident months earlier, leaving only the cement stump base. The City never removed the cement base or reinstalled a pole and meter. A City agent initially placed a traffic barricade over the stump base, but after some time, the barricade was removed by someone, creating a trip hazard/dangerous condition to those using the sidewalk.

2. Motion for Summary Judgment
On 9/06/13, Plaintiff filed a doe amendment to his complaint. The doe amendment names Moving Defendant, Prince Enterprises, Inc. (“Prince”) as a defendant in the action. At this time, Prince moves for summary judgment, contending Plaintiff knew of its identity and relationship to the case prior to the running of the statute of limitations, and the doe amendment therefore does not “relate back” to the filing of the original complaint.

3. Timeline of Events
• Plaintiff was injured on 3/23/11;
• Plaintiff filed his lawsuit on 12/02/11;
• Plaintiff took the deposition of Raymond Lau, the PMQ for the City of Los Angeles, on 10/17/12; Lau identified Prince as the company responsible for repair and maintenance of parking meters and poles for the City;
• Plaintiff took the deposition of Richard Prince, the PMQ for Prince, on 3/15/13; Prince indicated that his company has the sole responsibility for repair and maintenance of broken parking meter poles in the City of Los Angeles;
• On 3/23/13, the two-year statute of limitations for filing a personal injury action ran;
• On 7/02/13, the City filed a cross-complaint against Prince;
• On 8/16/13, the City responded to form interrogatories. The City indicated that Prince had done the wrong work and submitted the wrong work order;
• On 9/06/13, Plaintiff filed his doe amendment.

4. Law Regarding Doe Amendments
When the initial complaint is timely filed and, after the statute of limitations has expired, the plaintiff brings in a Doe defendant, 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.)

The court has discretion to deny a motion for leave to substitute a named person or entity for a “Doe” defendant where there is evidence of laches — unreasonable delay by a plaintiff in seeking leave to amend after acquiring knowledge of the defendant’s identity and culpability, that has prejudiced the defendant. Smeltzley v. Nicholson Mfg. Co. (1977) 18 C3d 932, 939; Barrows v. American Motors Corp. (1983) 144 CA3d 1, 8; Okoro v. City of Oakland (2006) 142 CA4th 306, 313.

Even if a plaintiff has been dilatory in identifying a “Doe” defendant, the defendant must show specific prejudice resulting from the delay; i.e., delay alone will not bar the amendment. Barrows v. American Motors Corp., supra, 144 CA3d at 9; Sobeck & Assocs., Inc. v. B & R Investments No. 24 (1989) 215 CA3d 861, 870; Winding Creek v. McGlashan (1996) 44 CA4th 933, 942–943.

5. Analysis
It is without dispute that Plaintiff did not know Prince’s identity when he filed suit. Prince does not contend otherwise. The sole issue before the Court, therefore, is whether Plaintiff delayed in filing suit after learning of Prince’s identity and that delay caused Defendant prejudice.

Even if this court were to find that Plaintiff knew, as a matter of law, of Prince’s involvement and culpability as of 10/17/12 and/or 3/15/13, this court cannot find, as a matter of law, that Prince was prejudiced by Plaintiff’s decision to wait until 9/06/13 to file his doe amendment. Prince makes much of the fact that, at the time Plaintiff filed his doe amendment, trial was set for October of 2013. The trial date, however, has been continued twice since then. Trial is currently scheduled for 7/23/14, almost a year after Prince was made a party to this suit.

Prince cites A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1066-1067 to support its position that prejudice can be established by the fact that the case was originally scheduled to go to trial in October of 2013. The Court has read and carefully considered A.N. The Court finds two key distinctions. First, the plaintiff therein offered absolutely no explanation for his failure to quickly file doe amendments after learning of the existence and culpability of the doe defendants. In this case, Plaintiff offers a plausible explanation. Second, the trial court therein did not discuss, and the Court of Appeals did not consider, any possibility of continuing the trial date. In this case, the trial has been continued, and can clearly be continued again if such continuance is necessary to protect Prince from prejudice. As an additional note, the Court of Appeals in A.N. discussed the case entirely on an “abuse of prejudice” standard, and consistently held only that the trial court “did not abuse its discretion” in dismissing the doe defendants; the Court of Appeals did not, at any time, rule that doing so would be mandatory under the circumstances. In light of the distinctions between A.N. and the instant case, the motion for summary judgment is denied.

Of note, Prince briefly discusses Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111 and related cases in its reply papers. Those cases concern the running of the statute of limitations prior to the filing of a complaint, as opposed to prior to the filing of a doe amendment. The standard is not the same. Plaintiff’s suspicion of wrongdoing by someone is enough for accrual of the cause of action—i.e., to start the limitations period running against all potential defendants. The wrongdoer’s identity is not an essential element of the cause of action. Fuller v. Tucker (2000) 84 CA4th 1163, 1171.

By contrast, CCP § 474 applies only when plaintiff is ignorant of a defendant’s identity or culpability. That the cause of action accrued earlier than the date of the Doe amendment does not affect the validity of the amendment because the Doe defendant is deemed a party from the time of commencement of the lawsuit. McOwen v. Grossman (2007) 153 CA4th 937, 943.

Dated this 3rd day of June, 2014

Hon. Elia Weinbach
Judge of the Superior Court