Case Number: BC636960 Hearing Date: October 17, 2018 Dept: 4

Motion to Strike Doe Amendment

The court considered the moving, opposition, and reply papers.

BACKGROUND

On October 12, 2016, plaintiff John Jensen filed a complaint against defendants Jose Manuel Cervantes and Los Angeles County MTA for motor vehicle negligence based on an incident that occurred on July 20, 2016.

On August 2, 2017, the court granted defendants’ motion for leave to file a cross-complaint for indemnity against Meureira Mariana De Los Angeles. The cross-complaint was filed on August 3, 2017.

On November 21, 2017, De Los Angeles filed her answer to the cross-complaint.

On June 21, 2018, plaintiff filed an amendment to complaint, designating Meureira Mariana De Los Angeles as Doe 1.

DISCUSSION

Defendant Meureira Mariana de Los Angeles requests that the court strike the Doe amendment filed on June 21, 2018. The proper procedure is to file a motion to quash service of the summons and complaint and the Doe amendment. The court deems this motion a motion to quash.

A defendant may serve and file a notice of motion to quash service of summons on the ground of lack of jurisdiction of the court over him or her. CCP §418.10(a). CCP §418.10 provides the exclusive procedure for challenging personal jurisdiction at the outset. Roy v. Superior Court (2005) 127 Cal. App. 4th 337, 342. Although defendant is the moving party, the burden of proof is on plaintiff to defeat the motion by establishing that jurisdictional grounds exist. Mihlon v. Superior Court (1985) 169 Cal. App. 3d 703, 710.

“The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed. A recognized exception to the general rule is the substitution under section 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint. If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed.” Woo v. Superior Court (1999) 75 Cal. App. 4th 169, 176.

“Among the requirements for application of the section 474 relation back doctrine is that the new defendant in an amended complaint be substituted for an existing fictitious Doe defendant named in the original complaint.” Id. “A further and nonprocedural requirement for application of the section 474 relation-back doctrine is that [Plaintiff] must have been genuinely ignorant of [Defendant Doe’s] identity at the time she filed her original complaint. The omission of the defendant’s identity in the original complaint must be real and not merely a subterfuge for avoiding the requirements of section 474. Furthermore, if the identity ignorance requirement of section 474 is not met, a new defendant may not be added after the statute of limitations has

expired even if the new defendant cannot establish prejudice resulting from the delay. However, if the plaintiff is actually ignorant of the defendant’s identity, the section 474 relation-back doctrine applies even if that ignorance is the result of the plaintiff’s negligence.” Id. at 177. “’Ignorance’ has been repeatedly interpreted to mean that plaintiff must be unaware of defendant’s identity or unaware of the defendant’s potential culpability.” Marasco v. Wadsworth (1978) 21 Cal. 3d 82, 88.

“If the terms of . . . section 474 have not been complied with, the purported defendant has not been named as such in the complaint. A service upon one not named in a complaint does not confer jurisdiction to proceed upon the complaint against him, and a motion to quash is proper.” McClatchy v. Cobletz, Patch, Duffy & Bass, LLP (2016) 247 Cal. App. 4th 368, 375.

Defendant argues that the amendment is improper because plaintiff knew of the identity of De Los Angeles when he filed the complaint and unreasonably delayed in naming her in the lawsuit. Plaintiff testified at his deposition that he obtained De Los Angeles’ contact information from the police report. He also testified that shortly after the accident, he met with De Los Angeles to obtain the glasses that had fallen inside the rear of her vehicle after he attempted to avoid the bus that had cut him off.

In opposition, plaintiff argues that he was ignorant of facts supporting defendant’s negligence. He contends that facts creating liability were not clear until video evidence from the bus was examined and explained by driver defendant Cervantes at his deposition in April 2018. Further, plaintiff contends, defendant is not prejudiced by the amendment.

The motion is DENIED because the statute of limitations had not expired when the Doe amendment was filed. “As long as the statute of limitations has not yet run, the amendment cannot be challenged on the ground plaintiff was not ‘truly ignorant’ of defendant’s identity when the complaint was filed. Rationale: Plaintiff could have sought leave to amend the complaint to add that person as a defendant rather than serving him or her as a ‘Doe.’ To treat the ‘Doe’ amendment differently, ‘would elevate form over substance and would ignore common sense.’ [Davis v. Marin (2000) 80 Cal. App. 4th 380, 387. . . ].” Weil & Brown, Civ. Proc. Before Trial, 6:617.10.

Plaintiff is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: October 17, 2018

_____________________________

Christopher K. Lui

Judge of the Superior Court