2012-00134036-CU-PN

Yohannes Giorgise vs. Mitchell Abdallah

Nature of Proceeding:    Motion to File First Amended Complaint

Filed By:   Hart-Nibbrig, Leonard C.

Plaintiff Yohannes Giorgise’s (“Plaintiff”) Motion for Leave to File First Amended
Complaint in order to substitute Richard Abdallah as a named defendant in place of a
DOE defendant is GRANTED.

Defendants Mitchell Abdallah (“MLA”) and Abdallah Law Group, P.C. (“ALG”)
(collectively, “Defendants”) opposed the motion on grounds that Plaintiff was not
“genuinely ignorant” of Richard Abdallah’s identity at the time he filed his original
pleading in October of 2012.  (Oppo. at 2 (citing Woo v. Superior Court (1999) 75
Cal.App.4th 169, 177).)  Defendants also argue that, because Plaintiff was not
genuinely ignorant of Richard Abdallah’s identity when he initiated this action, the
statute of limitations has run with respect to claims against Richard Abdallah, and that
Plaintiff’s lack of genuine ignorance prevents application of the relation back doctrine.
(Id. at 3-6 (citing  Woo).)

Code of Civil Procedure § 474 (“Section 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 purpose of Section 474 is to
enable a plaintiff who is ignorant of the identity of the defendant to file his complaint
before his claim is barred by the statute of limitations.  Under Section 474, it is proper
to amend the pleadings to allege specific persons where the original complaint
identified them as DOE defendants. So long as the amended pleading relates to the
same general set of facts as the original complaint, a defendant sued by fictitious
name and later brought in by amendment substituting his true name is considered a
party to the action from its commencement for purposes of the statute of limitations.
Case law provides that where standard DOE allegations are contained in a complaint,
it is proper to amend the complaint to bring in other defendants, provided the
amendment involves the same accident and injury.

However, there is no requirement in Section 474 that a DOE amendment requires prior
court approval, and Section 474 is to be liberally construed.  (General Motors Corp. v.
Superior Court (1996) 48 Cal.App.4th 580, 593-94, n.12.)  Section 474 does not
specify the manner in which DOE amendments are to be made.

Further, the Sacramento Superior Court does not mandate prior court approval for a            DOE amendment.  Specifically, the local form, which is optional, but approved by the
Court for use, unequivocally states that “no court order is required” to file and serve a
DOE amendment.  (See Sacramento Local Form CV\E 120 (“Amendment to
Complaint”), Rev. 11.03.11.)  This local form applies to all DOE amendments, not only
those made before a responsive pleading has been filed.  Whether Section 474 has
been properly complied with (i.e., whether a plaintiff was genuinely ignorant of the
DOE’s identity etc.) may be challenged by a motion to quash raising that issue.  (See
Balon v. Drost (1993) 20 Cal.App.4th 483, 487-90 (motion to quash on grounds of non-
compliance with Section 474).)  The Court does not determine whether Plaintiff was
“genuinely ignorant” in advance of a DOE amendment , as such determination requires
the Court to weigh conflicting evidence and can require an evidentiary hearing. Thus,
whether or not the Doe amendment relates back to the date of the original filing is
generally a question of fact. See, e.g. Smeltzley v. Nicholson Mfg. Co. (1977) 18
Cal.3d 932.

Although the Court grants the requested leave to file an amended pleading,
Defendants maintain the ability to challenge Plaintiff’s purported “genuine ignorance”
upon a properly noticed evidentiary motion, including a motion to quash or motion for
summary judgment. See, e.g. Barrows v. American Motors [Corp.] (1983) 144
Cal.App.3rd 1; Armstrong v. Superior Court (1956) 144 Cal. App. 2d 420.

Accordingly, given that Section 474 is to be liberally construed and given the liberality
with respect to pleading amendments in general (Mesler v. Bragg Mgmt. Co. (1985) 39
Cal.3d 290, 296; Dye v. Caterpillar, Inc. (2011) 195 Cal.App.4th 1366, 1380,) Plaintiff’s
motion is GRANTED.  On or before July 14, 2014, Plaintiff shall file and serve an
amended pleading labeled as the “First Amended Complaint,” which shall reflect only
the amendments described at page 2 of Plaintiff’s Notice of Motion.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or other notice is required.