2014-00162318-CU-FR

Nabil Samaan vs. Folsom Buick GMC

Nature of Proceeding: Motion to Strike Plaintiff’s Doe Amendment

Filed By: Britton, John A.

Defendant Shawn Vishney’s motion to strike plaintiff’s 11/13/2017 Doe Amendment naming Vishney as Doe 3 is GRANTED, as follows.

The opposition to this motion was not timely filed (since 2/12/2018 was a court holiday) but it was nevertheless considered.

Factual Background

This case arises from plaintiff’s purchase of a GMC truck from a Roseville dealership

in 2008. Plaintiff alleges he purchased a General Motors Protection Plan, Major Guard Insurance Policy (“GMPP”) at the same time. According to plaintiff, defendants other than JS Folsom Automotive dba Folsom Buick GMC’s (“JSFA”) are parties to this GMPP and are liable for a failure to perform after he sought vehicle repairs in 2012. Plaintiff maintains that JSFA is an agent of these other defendants and that JSFA is an authorized service provider under the GMPP, thereby being authorized to submit claims and invoices for payment under the GMPP.

Plaintiff took the vehicle to JSFA for repairs in 2012, when JSFA allegedly indicated it was authorized to submit claims and make repairs under the GMPP. JSFA thereafter made repairs and issued invoices for payment by plaintiff even though JSFA had submitted claims for work it previously done on the truck pursuant to the GMPP. According to plaintiff, JSFA employee Vishney promised he would handle diagnostics, repairs and invoices in 2012 and these promises are part of oral and written agreements with JSFA, with the written portions being JSFA’s invoices. Plaintiff adds that JSFA did not properly diagnose problems with the vehicle, failed to submit invoices for his claims under the GMPP, forged plaintiff’s signature, wrongfully disposed of vehicle parts and engaged in other fraudulent conduct.

This action was commenced on 4/21/2014 and on 11/9/2017, plaintiff completed a Doe Amendment naming Vishney as Doe 3. This amendment was filed on 11/13/2017. Shortly thereafter, plaintiff filed the Fourth Amended Complaint (“4AC”) on 11/20/2017. While the 4AC refers to Vishney by name in various paragraphs, he is not listed in the caption on Page 1 nor is he identified in the opening allegations under the heading, “The Parties and Jurisdiction.” Moreover, not one of the nine causes of action is, by its own terms, directed against Vishney. Instead, each is directed against one or more of the other defendants named in this case.

The 4AC spans nearly 250 pages including exhibits (e.g., deposition transcripts, discovery responses) and it purports to state several causes of action against JSFA including breach of contract, “fraud” (consisting of mixed allegations of false promise, concealment and misrepresentation), negligence, violation of Business & Professions Code §17200 et seq., interference with contract and conspiracy plus similar causes of action against other defendants.

Moving Papers. Defendant Vishney now moves to strike the 11/13/2017 amendment which designated him as Doe 3 on the ground that this amendment is not in conformity with California law and is untimely since plaintiff not only knew of Vishney’s identity as early as 2012, before this suit was commenced, but also unreasonably delayed until 11/13/2017 to amend the complaint to name Vishney as Doe 3 despite having amended the complaint numerous times and referred to Vishney by name in both the Second Amended Complaint (“2AC”) filed on 11/30/2016 and Third Amended Complaint (“3AC”) filed on 2/8/2017.

Opposition. Plaintiff opposes, arguing primarily that “Defendants know the Doe Amendment was timely” and “any ‘delays’ in bringing Defendant Vishney into this action are the direct result of Defendants’ bad conduct.” In particular, the opposition maintains that JSFA has throughout this litigation engaged in “wrongful gamesmanship” by “impeding Plaintiff’s attempts to locate and depose…Vishney, who was an employee of [JSFA],” refusing to produce him for deposition and delayed in making a decision on whether JSFA’s counsel would represent Vishney. (The court notes that in his opposition to Vishney’s concurrent motion to dismiss, plaintiff argued

that all of this ““wrongful gamesmanship” by JSFA left him “with no choice but to file a Doe amendment” naming Vishney.) On these grounds, the opposition insists the present motion should be denied.

Analysis

Under longstanding California law, a party may use the Doe amendment procedure specified in Code of Civil Procedure §474 so long as his/her ignorance of the defendant’s name is in good faith, genuine and not feigned. (See, e.g., General Motors Corp. v. Superior Court (Jeffrey) (1996) 48 Cal.App.4th 580, 594-595; Streicher v. Tommy’s Electric Co. (1985) 164 Cal.App.3d 876, 882.) Additionally, the question of whether a party’s ignorance is real and not feigned rests with the trial court which weighs the evidence presented. (See, e.g., Breceda v. Gamsby (1968) 267 Cal.App.2d 167, 176.)

Coupled with the fact that plaintiff has offered no evidence tending to show he was genuinely ignorant of Vishney’s name at the time this action was filed in 2014, this court finds that the exhibits attached to the 4AC demonstrate that plaintiff either knew or should have known of Vishney’s identity well before this suit was filed. In particular, all but one of the 2013-2014 invoices attached as Exhibit C to the 4AC plainly list Shawn Vishney’s name and also appear to reflect plaintiff’s own signature along with an indication the invoices were paid, which is precisely consistent with the allegations in the body of the 4AC that plaintiff had to pay these invoices out of his own pocket and was thereafter denied reimbursement under the GMPP until recently. (See, 4AC, ¶68, 92, 144, 177, 201-202, 222, 231.) Based on this record, the court cannot conclude that plaintiff’s claimed ignorance of Vishney’s name at the time this suit was commenced was genuine and not feigned, thereby precluding plaintiff from relying on Code of Civil Procedure §474’s provisions in filing the Doe amendment naming Vishney as Doe 3 on 11/13/2017.

Additionally, as noted in prior rulings in this action, a plaintiff’s knowledge of the identity of a fictitiously-named defendant identity at the outset does not itself preclude the later employment of the Doe amendment device. (See, e.g., Wallis v. Southern Pacific Transp. Co. (1976) 61 Cal.App.3d 782, 785-786 [even though aware of fictitiously-named defendant’s identity at the outset, plaintiff may wait to amend until the facts supporting defendant’s liability are known].) However, given the express allegations made (1) in the initial complaint filed on 4/21/2014 (including fraud, negligence and violation of Business & Professions Code §17200 against Mr. Vishney’s employer, JSFA); (2) in the First Amended Complaint filed on 8/10/2016 (including fraud, negligence, violation of §17200, breach of contract, interference with contract/conspiracy against JSFA); (3) in the 2AC filed on 11/30/2016 (including negligence, violation of §17200, interference with contract/conspiracy against JSFA, with explicit references to Mr. Vishney in connection with the same allegations in the two prior pleadings); and (4) in the 3AC filed on 2/8/2017 (including breach of contract, fraud, negligence, violation of §17200 and interference with contract/conspiracy against JSFA, again with explicit references to Mr. Vishney in connection with the same allegations in the three prior pleadings) all based on the same conduct which has been attributed to defendant JSFA and specifically to Mr. Vishney from the inception of this case, the court concludes that plaintiff either knew or should have known from the outset those facts upon which Mr. Vishney’s liability is based. Coupled with plaintiff’s actual knowledge of Mr. Vishney’s identity prior to commencement of this suit, plaintiff’s utilization of the Doe Amendment procedure to name Mr. Vishney as

a defendant in this action was not proper under established precedent.

Accordingly, the present motion to strike that Doe amendment is granted regardless of the alleged “wrongful gamesmanship” by JFSA and regardless of the prejudice plaintiff claims he may suffer from the dismissal of Vishney. Aside from the fact that “prejudice” is not a factor to be considered in connection with the application of §474’s amendment procedures and the opposition includes no authority for such a suggestion, it is undisputed that plaintiff could have easily named Vishney as a defendant in the original complaint and avoided the situation presented here. Still, the court notes that the striking of the 11/13/2017 amendment naming Vishney as Doe 3 does not, without more, plaintiff from deposing Mr. Vishney or subpoenaing him to appear at trial.