Case Name: Sam Nazareta, et al. v. Team San Jose, et al.
Case No.: 16-CV-298331

This is a putative wage and hour class action by employees of defendant Roseann Bogart, doing business as “Servers on Demand,” and her clients. Before the Court is plaintiffs’ motion for leave to amend their complaint to name Servers on Demand, LLC as a Doe defendant. Plaintiffs’ motion is unopposed.

I. Allegations of the Operative Complaint

According to the complaint, plaintiffs were employed by defendants to prepare and serve food, clean and clear tables, prepare and clean kitchens and food preparation areas, and perform bartending, cashiering, and dishwashing services. (Complaint, ¶ 21.) Defendants did not permit plaintiffs to take meal and rest breaks as required by law, and plaintiffs regularly worked unpaid overtime. (Id. at ¶¶ 23-25.) In addition, plaintiffs were required to purchase uniforms and clothing required for their work. (Id. at ¶ 22.)

Based on these allegations, plaintiffs assert claims for (1) failure to pay overtime wages, (2) failure to pay wages due and “waiting time” penalties, (3) failure to provide accurate wage stubs, (4) failure to provide meal periods, (5) failure to reimburse expenses, and (6) unfair business practices, as well as claims under the Private Attorneys General Act (“PAGA”) for (7) failure to pay overtime wages, (8) failure to maintain required records, (9) failure to timely pay wages, (10) failure to provide accurate pay stubs, and (11) willful withholding of wages.

II. Legal Standard

Section 473, subdivision (a)(1) of the Code of Civil Procedure states in pertinent part: “[t]he court may … , in its discretion after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars ….” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 76.) In considering a motion for leave to amend, “courts are bound to apply a policy of great liberality in permitting amendments to [a pleading] at any stage of the proceedings, up to and including trial.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) “[I]t is a rare case” in which a court will be justified in denying a party leave to amend his pleadings. (Morgan v. Superior Court (Morgan) (1959) 172 Cal.App.2d 527, 530.)

Code of Civil Procedure section 474 authorizes a plaintiff to designate in a complaint a Doe defendant whose name is unknown to the plaintiff, “and when [the defendant’s] true name is discovered, the pleading or proceeding must be amended accordingly….” “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.” (Olden v. Hatchell (1984) 154 Cal.App.3d 1032, 1037.) The statute has been liberally construed to permit amendment where the plaintiff knows of the existence and identity of the Doe defendant, but lacks knowledge of the defendant’s connection to the case or to plaintiff’s injuries. (See McOwen v. Grossman (2007) 153 Cal.App.4th 937, 942-943.) The plaintiff has no duty to investigate the Doe defendant’s identity at the time the complaint is initially filed; her ignorance is evaluated in light of the facts actually known to her at the time. (See Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1172.)

“[S]ection 474 includes an implicit requirement that a plaintiff may not ‘unreasonably delay’ his or her filing of a Doe amendment after learning a defendant’s identity.” (A.N., a Minor v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1066-1067, as modified on denial of reh’g (Apr. 6, 2009), quoting Barrows v. American Motors Corp. (1983) 144 Cal.App.3d 1.) A Doe defendant may challenge a proposed amendment “by way of an evidence-based motion, which argues that the plaintiff ‘unreasonabl[y] delayed’ his or her filing of the challenged amendment, … which requires a showing by the defendant that he or she would suffer prejudice from plaintiff’s delay in filing the Doe amendment.” (Ibid.)

III. Analysis

In support of plaintiffs’ motion, their counsel declares that he requested employment records from Servers on Demand LLC, for which Ms. Bogart is the registered agent, in May 2015. The records he received indicated that Ms. Bogart doing business as “Servers on Demand” was plaintiffs’ employer rather than the LLC. Plaintiffs consequently sued Ms. Bogart and not the LLC. Sometime in July of 2017, defendants’ counsel gave oral notice that the LLC may have employed class members at some point during the end of the class period. Consequently, plaintiffs seek to name the LLC as a Doe defendant.

While it might have been more prudent to name the LLC as a defendant from the outset, or to seek leave to amend sooner after learning it potentially employed class members, the Court credits counsel’s explanation for the delay and views any prejudice to the LLC as unlikely since it has been on notice of this action through its agents from the beginning. Defendants do not oppose plaintiffs’ motion. The Court will accordingly permit plaintiffs to name the LLC as a Doe defendant.

IV. Conclusion and Order
The motion for leave to amend is GRANTED. The Amended Complaint attached as Exhibit H to the Declaration of James Dal Bon supporting plaintiffs’ motion shall be deemed filed as of the date the Court’s order is filed.

The Court will prepare the order.