Case Name:   Waleed Elsheref, by and through his guardian ad litem, Khaled Elsheref, et al. v. Applied Materials, Inc., et al.

Case No.:       1-10-CV-170736

After full consideration of the arguments, authorities, and papers submitted by each party, the Court makes the following rulings:

Defendant Epoxy Technology, Inc. (“Epoxy”) moves to quash service of the summons and complaint pursuant to Code of Civil Procedure section 418.10 on the grounds that “no valid Summons and Complaint has been served on [it]” and “plaintiff failed to properly bring [it] into the case because the DOE amendment pleading violates the C.C.P.”  (Notice of Motion, p. 1:24-27.)

As an initial matter, Epoxy’s request for judicial notice is GRANTED.  (See Evid. Code §§ 452, subds. (d), (h); see also People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters subject to judicial notice].)

While Plaintiffs may have been required to seek leave of court prior to filing the July 31, 2014 Doe amendment (see Code Civ. Proc., §§ 474 [“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 any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly”], 472 [providing that a pleading may be amended once as a matter of course], 473, subd. (a)(1) [providing that leave of court is required for additional amendments]; see also Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2014) pp. 6-24.3 and 6-157, ¶¶ 6:86, 6:612, 6:614), case law indicates that such a request does not need to be made by noticed motion.  (See Kittle v. Bellegarde (1890) 86 Cal. 556, 563 [the “substitution of one party for another by order of court is not such an amendment of a pleading as is required to be made on notice”] [emphasis added].)[1]

Moreover, the failure to seek leave of court prior to filing the July 31, 2014 Doe amendment does not involve the issues of proper service or jurisdiction.  While Plaintiffs’ failure to seek leave of court prior to filing the  July 31, 2014 doe amendment might mean that the pleading is technically not filed in conformity with the laws of this state, that would be a ground for a motion to strike and not a motion to quash.  (See Code Civ. Proc., §§ 418.10, subd. (a), 436, subd. (b).)

Additionally, as Plaintiffs persuasively argue, the record indicates that Epoxy was properly served with first amended complaint (“FAC”).  The proof of service that was filed with the court on August 25, 2014, is signed under penalty of perjury and states that Epoxy was personally served with a copy of the summons and complaint, civil case cover sheet, civil lawsuit notice, ADR documents, Doe amendment to the complaint and FAC on August 7, 2014.  (See Peebles Dec., Ex. B; see also Dill v. Berquist Const. Co. (1994) 24 Cal.App.4th 1426, 1441-1442 [the filing of a proof of service creates a rebuttable presumption that the service was proper if the proof of service complies with the applicable statutory requirements].)  The declaration submitted by Epoxy from its president, Andrew Horne (“Mr. Horne”), does not rebut the presumption of proper service created by the proof of service.  Mr. Horne merely states that the papers attached to his declaration as exhibit A—which include the summons and complaint, civil case cover sheet, civil lawsuit notice, and ADR instruction sheet—constitute the entirety of the papers with which he was served.  (See Horne Dec., ¶¶ 2-3.)  Mr. Horne does not affirmatively state that he was not served with a copy of the FAC, and the fact that Mr. Horne admittedly received all of the other documents that were listed on the proof of service on August 7, 2014, indicates that documents listed in the proof of service were in fact served on Epoxy.

Accordingly, Epoxy’s motion to quash service of summons is DENIED.

The Court will prepare the order.

[1] This is not to say that a court order is not required to seek leave to amend to name additional defendants as Doe defendants.  In appropriate circumstances, such an order may be obtained by ex parte application.