19-CIV-00131 JUAN VARGAS AGUIRRE VS. LAWRENCE TAM, ET AL.

JUAN VARGAS AGUIRRE LAWRENCE TAM
DEMETRIOS PAPANIKOLAS COLIN G. MCCARTHY

MOTION TO QUASH SERVICES OF SUMMONS UPON TREVOR TAM TENTATIVE RULING:

The Motion of Defendant Trevor Tam (“Trevor”) to Quash Service of Summons and Complaint is DENIED.

This case arises from an accident in which Plaintiff Juan Vargas Aguirre (“Plaintiff”) was riding a bicycle when he was hit by the driver of a car, who is now alleged to be Trevor. Although Trevor initially stopped, he left and later returned with his son, Defendant Lawrence Tam (“Lawrence”). The investigating police officer completed a traffic collision report that incorrectly identifies Lawrence, as the driver, and Trevor, as the son. Plaintiff filed this Complaint against Lawrence only, but then filed an Amendment to the Complaint substituting Trevor as Doe 1.

Trevor brings this motion on the ground that Plaintiff improperly served him as Doe 1 pursuant to Code of Civil Procedure section 474. When the plaintiff is ignorant of the name of a defendant, the plaintiff must state that fact in the complaint, 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. (C.C.P. § 474.) “Improper service of a defendant under section 474 may be attacked by a motion to quash.” (McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 375.) The procedure under section 474 is only available when the plaintiff is actually ignorant of the facts establishing a cause of action against the party to be substituted for a Doe defendant. (Id. at 371-372.)

The evidence here supports that Plaintiff’s counsel was actually ignorant of the facts establishing a cause of action against Trevor at the time the Complaint was filed. Although Trevor relies on the November 21, 2017 letter written by Plaintiff’s counsel referring to the insured driver as “Trevor Tam,” and the insureds as “Jeannie Dam & Trevor Tam” (see Barfield Decl., Exh. A), Plaintiff’s counsel explains in his declaration that he subsequently received the traffic collision report from the Foster City police department on November 27, 2017, erroneously listing Lawrence as the driver and Trevor as the son. (See Papanikolas Decl. ¶ 6, and Exh. 1.) Plaintiff’s counsel relied on this report in naming Lawrence as the driver in the Complaint.

Trevor further argues that he may not be named as Doe 1 because Doe 1 is alleged to be the agent or employee of the named defendants and acting within the scope of that agency or employment, and Trevor is Lawrence’s son rather than his agent or employee. (See Complaint ¶ 6.a.) However, the attachment for the cause of action to the Complaint also alleges that the defendants who operated a motor vehicle are Lawrence and Does 1 to 25. (See Motor Vehicle cause of action, ¶ MV-2.a.) In light of this allegation, Trevor has not established that he was improperly served as Doe 1.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant Trevor Tam shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.