Tentative Ruling

Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Stacy McCrory v. County of Santa Barbara, et al.
Case No: 15CV02871
Hearing Date: Mon Nov 04, 2019 9:30

Nature of Proceedings: Motion Quash Amendment to Complaint

Stacy McCrory v. County of Santa Barbara, et al. (Judge Sterne)

Case No. 15CV02871

Hearing Date: November 4, 2019

HEARING:

Motion of Defendant Joseph J. Lockhart to Quash Amendment to Complaint

ATTORNEYS:

For Plaintiff Stacy McCrory: James H. Cordes, Angelica Caro, James H. Cordes and Associates

For Defendants County of Santa Barbara and Patricia Dark, and specially appearing for Joseph Lockhart: Michael C. Ghizzoni, Michael M. Youngdahl, Christopher E. Dawood, Office of the County Counsel

TENTATIVE RULING:

The motion of defendant Joseph J. Lockhart to quash the “Doe 1” amendment to the first amended complaint is granted and the amendment filed September 18, 2019, is ordered stricken.

Background:

On September 4, 2015, plaintiff Stacy McCrory filed her action against defendant County of Santa Barbara and Patty Dark. The complaint asserts causes of action for (1) defamation, (2) negligent supervision/ retention, (3) negligent investigation, (4) intentional interference with prospective economic advantage, and (5) negligent interference with prospective economic advantage. All of these causes of action arise out of the republication of an allegedly defamatory email originating with employees of defendant County by anonymous copies mailed to persons outside of County, particularly, to persons involved in the potential hiring of plaintiff by the County of Ventura.

On October 28, 2015, defendants filed their answer to the complaint.

On April 4, 2016, the court granted in part defendants’ special motion to strike. The court granted leave to amend to state causes of action not stricken by the motion.

On April 15, 2016, McCrory filed her first amended complaint, asserting the same causes of action but eliminating those items that were subject to the special motion to strike.

On June 1, 2016, defendants filed their notice of appeal regarding the court’s order on the special motion to strike. The filing of the notice of appeal had the effect of staying the action.

On June 13, 2016, on the stipulation of the parties, the court ordered this action consolidated with case number 15CV01554, with this case as the lead case.

On February 23, 2018, the remittitur from the Court of Appeal was filed, with this court’s order affirmed in full.

On January 11, 2019, defendants filed their answer to the amended complaint.

On March 4, 2019, the court set trial for November 18, 2019, which date was confirmed as recently as October 25.

On July 24, 2019, defendants filed their motion for summary judgment or alternatively for summary adjudication.

On September 18, 2019, McCrory filed her amendment to the complaint identifying Joseph J. Lockhart as “Doe 1.”

On October 7, 2019, the court granted in part and denied in part the motion for summary judgment or summary adjudication. The court granted the motion as to the fourth and fifth causes of action and otherwise denied the motion.

On October 8, 2019, McCrory requested, and the court granted, dismissal of the second and third causes of action.

On October 22, 2019, Lockhart filed this motion to quash the amendment to the complaint. The motion was filed on shortened time upon stipulation of the parties and order of the court arising out of issues with the timely filing of the motion.

McCrory opposes the motion.

Analysis:

“When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, 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 ….” (Code Civ. Proc., § 474.)

“[A] defendant named in an action by a Doe amendment under section 474 may challenge the amendment by way of an evidence-based motion, which argues that the plaintiff ‘unreasonable delayed’ his or her filing of the challenged amendment.” (A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1067.) “ ‘[U]nreasonable delay” … includes a prejudice element, which requires a showing by the defendant that he or she would suffer prejudice from plaintiff’s delay in filing the Doe amendment.” (Ibid.)

“In keeping with [the] liberal interpretation of section 474, it is now well established that even 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 he lacks knowledge of that person’s connection with the case or with his injuries. [Citations.] The fact that the plaintiff had the means to obtain knowledge is irrelevant.” (General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 593–594, fn. omitted.) “Ignorance of the facts giving rise to a cause of action is the ‘ignorance’ required by section 474, and the pivotal question is, ‘ “did plaintiff know facts?”not “did plaintiff know or believe that she had a cause of action based on those facts?” ’ [Citations.] Although it is true that a plaintiff’s ignorance of the defendant’s name must be genuine (in good faith) and not feigned [citations] and that a plaintiff need not be aware of each and every detail concerning a person’s involvement before the plaintiff loses his ignorance [citations], it is equally true that the plaintiff does not relinquish her rights under section 474 simply because she has a suspicion of wrongdoing arising from one or more facts she does know.” (Id. at pp. 594–595.)

In support of the motion, Lockhart argues that plaintiff unreasonably delayed filing this motion because plaintiff had sufficient facts at least as early as the filing of the anti-SLAPP motion in February 2016 to support liability as to Lockhart under plaintiff’s theory of the case. As discussed in the context of County and Dark’s motion for summary judgment, plaintiff does not know the identity of the person who republished the allegedly defamatory email and can only make that case by circumstantial evidence. As against Lockhart, plaintiff’s case would be based upon Lockhart both being a person who received the email and who knew of plaintiff’s possibility of going to work for Ventura County. Plaintiff knew that Lockhart had received a copy of the email at least as early as Dark’s February 16, 2016, declaration filed in support of the anti-SLAPP motion. (Dawood decl., ¶ 2 & exhibit A [Dark decl., ¶ 37].) Plaintiff knew at the time of the event that Lockhart knew of plaintiff’s potential employment with Ventura County. (Dawood decl., ¶ 6 & exhibit E [McCrory depo., p. 268].)

In opposition to the motion, the fact that led to plaintiff becoming aware of Lockhart as an alternative person responsible for the defamatory republication was Lockhart’s statements in support of the recent summary judgment motion in which Lockhart admitted to anonymously reporting in 2012 to the State Board of Behavioral Sciences what Lockhart believed were misleading statements on McCrory’s website. (Caro decl., ¶¶ 3-5; see Dawood decl., ¶ 4 & exhibit C [Lockhart decl., ¶¶ 3-4].) Previously, plaintiff believed that Dark was the one responsible for the anonymously reported complaint. (Caro decl., ¶ 4.)

In this case, where circumstantial information is all that is available, the revelation of evidence only incrementally bolsters the ultimate fact of whether Lockhart was responsible for the republication of the email (as opposed to Dark or someone else). The 2012 anonymous reporting is not clearly linked to the republication of the email. While Lockhart did not correct McCrory’s false belief that the reporting was by Dark, this failure to correct is consistent with Lockhart’s reporting anonymously. This evidence does not suggest a tipping point between sufficient evidence to support Lockhart over Dark as the person responsible for republishing the defamatory email. The core evidence supporting the asserted fact that Lockhart was responsible for the republication was known by McCrory by February 2016 but she did not then amend to add Lockhart. The court finds that this evidence shows unreasonable delay.

Another component of unreasonable delay is prejudice to the new defendant. Prejudice here is manifest. Trial is now set for November 18, 2019. The discovery cut-off has passed and discovery should be complete as among the parties other than Lockhart. To bring Lockhart into this action at this time would first entail a new round of pleading. Lockhart also may need to obtain separate counsel unfamiliar with this action. (See Dawood decl., ¶¶ 7-8.) Lockhart further would be entitled to discovery, presumably requiring the re-opening discovery as to Lockhart and new sessions of depositions to include Lockhart. In essence, adding Lockhart at this late stage would mean starting the litigation over as him, repeating many of the steps already taken.

The court concludes that Lockhart has shown that plaintiff has unreasonably delayed amending the complaint to add Lockhart as a defendant. The court therefore grants the motion to quash and strikes the Doe 1 amendment to the complaint. This ruling should not be construed by any party as addressing any issue of evidence relating to Lockhart’s alleged role in the republication at the trial involving the remaining defendants.