2010-00085696-CU-PA

Edward Quijada vs. Ford Motor Company

Nature of Proceeding: Motion to Quash Service of Summons (Transamerican Dissolution, LLC)

Filed By: Stanger, Rachel D.

Defendant Transamerican Dissolution’s (“Trans Disso”) Motion to Quash Service of
Summons is denied.

The motion to dismiss portion of the motion has been continued to November 6, 2013.

This case arises out of an accident involving a Ford pickup truck that occurred on
February 17, 2009. The case was filed on August 20, 2010. On June 17, 2013, Trans
Disso filed its answer to the first amended cross-complaint of Maita, by and through
Trans Disso’s counsel, Fernald Law Group LLP (FLG). Pursuant to CCP § 1014, a
defendant appears in an action when the defendant answers, inter alia. On August
20, 2013, plaintiff served counsel for Trans Disso, FLG, with the DOE amendment and
summons. Counsel Rachel Stranger states that she told the plaintiff that the agent for
service of process for Trans Disso was Daren Salvin, located at 400 W. Artesia Blvd.,
Compton, California. Plaintiff disputes that the name of the agent was given. Contrary
to the points and authorities, paragraph 5 of Stranger’s declaration does not state that
she told plaintiff’s process server that she was not authorized to accept service for
Trans Disso. It is established that Stranger’s law firm previously appeared in this case
representing Trans Disso as a cross-defendant. Later in the day on August 20, 2013,
plaintiff’s process server served the Doe Amendment and Summons on Stranger’s law
clerk, Paul Sand, because Stranger was not in the office.

Plaintiff also attempted service on Trans Disso by serving an employee at the
Compton office who was not Trans Disso’s agent for service of process. The person
served was Ms. Shull (an employee of accounts receivable) The proof of mailing
required by substituted service does not show that it was addressed to the person
authorized to accept service of process on behalf of the corporation. See Dill v
Berquist (1994) 24 Cal. App. 4th 1426. [Service on a corporation can only be
accomplished by serving some individual as its representative. Section 416.10
enumerates the individuals who are authorized to receive service on behalf of an
ongoing corporation. Service is effected by delivering a copy of the summons and a
copy of the complaint to one of these persons by a method of service specified.
Service was not effected properly when envelope did not contain the name of the
person authorized to receive service] The Court finds that service of process on the
agent for service of process was defective.

However, Defendant concedes that counsel for Trans Disso was authorized to accept
service on its behalf and that such service could be made pursuant to CCP 416.90.
Stranger concedes that co-defendant TAP Worldwide was properly served when
service was effected on the same law clerk who was served with the Doe Amendment
and summons for Trans Disso. Moreover, pursuant to Estate of Moss, once an
attorney has appeared on behalf of a party in an action, if new process is served in
that action it may be served on that attorney. The Court finds that personal delivery of
process on the law clerk, as an agent of the law firm authorized to accept service, is
sufficient service under CCP 416.90. See Estate of Moss (2012) 204 Cal.App.4th 521,
534 [When a party and its attorney have already appeared in the action, and as to
whom new process against that party related to that same action is issued, proper
service of process on the party’s attorney of record in that same case is sufficient as a
matter of law under Code of Civil Procedure section 416.90.]

Pursuant to CCP 416.10, there are other persons besides the agent for service of
process who may be served on behalf of a corporation, including “a person authorized
by the corporation to receive service of process.” (CCP 416.10(b)) Thus, as FLG was
authorized to accept service of process, both actually and ostensibly under Estate of
Moss, service of process was properly accomplished under 416.10(b) and 416.90.

The rule of liberal construction of service rules is designed to “uphold jurisdiction of the
court, thus insuring the opportunity for a trial on the merits.” ‘ [Citation.] … [New
Paragraph] At worst, where defects in service are asserted in derogation of a default
judgment, it may be said that both parties are at fault-the plaintiff for not ensuring that
service fully complied with the governing statutes, and the defendant for ignoring
whatever service was attempted. The question must therefore be who should bear the
burden of the difficulty thus created. Arguably, that question should be resolved
against the plaintiff, on the grounds both that his is the first and best opportunity to
obviate the difficulty, and that the defendant will otherwise incur a forfeiture. The
situation is different, however-it is essentially reversed-when the defendant comes into
court acknowledging that he has been sued, but seeking to dismiss the action on the
ground that the service, though practically effective, was, [arguendo], technically
defective. Now it is the plaintiff who is exposed to the forfeiture of his case, and the
defendant who seeks to prevent an adjudication on the merits.” (Gilbert, supra, 179
Cal.App.4th at p. 865.) American Express Centurion Bank v. Zara (2011) 199 Cal.
App. 4th 383, 391. However, as stated above, the Court has found that the service of
the law clerk of Trans Disso’s counsel of record complied with the service rules and
was not technically defective.

Note: Departments 53 and 54 are located at 800 9th Street, 3rd Fl., not 720 9th Street
as stated in the notice.

Answer to be filed and served on or before November 7, 2013.
The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.

Item 7 2010-00085696-CU-PA

Edward Quijada vs. Ford Motor Company

Nature of Proceeding: Motion to Quash Service of Summons (Tap Worldwide, LLC)

Filed By: Pitha, Martin L.

Tap Worldwide, LLC’s Motion to Quash Service of Summons is denied.

The motion to dismiss portion of the motion has been continued to November 6, 2013.

This case arises out of an accident involving a Ford pickup truck that occurred on
February 17, 2009. The case was filed on August 20, 2010. On August 20, 2013,
plaintiff served TAP Worldwide, LLC with a Doe Amendment and a Summons.
Defendant contends that the DOE amendment is defective on the ground plaintiff did
not obtain a prior court order authorizing DOE amendment.

Defendant relies on CCP 472, which provides that a plaintiff can amend their complaint
in a lawsuit only once as a “matter of course” (without leave of court), and such an
amendment must occur before a defendant’s (or cross-defendant’s) answer or
demurrer is filed. See also Woo v. Superior Court (1999) 75 Cal.App.4th 169, 175.
Defendant contends that all other amendments require a court order and compliance
with CRC rule 3.1324.

Code of Civil Procedure 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…” There is no requirement in CCP 474 that a DOE amendment
requires prior court approval. Code of Civil Procedure section 474 is to be liberally
construed. (General Motors Corp. v. Superior Court (1996) 48 Cal. App. 4th 580, 593
& 593-594, fn. 12.)

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 CV\E 120, Rev. 11.03.11. This local form applies to all DOE
amendments, not only those made before a responsive pleading has been filed.
Whether CCP 474 has been properly complied with (genuine ignorance of 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. The Court does not make that determination in
advance of a DOE amendment, as such a determination requires an evidentiary
hearing.

It is, perhaps, instructive to note that 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 makes clear 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.

As is noted, CCP 474 does not specify the manner in which Doe amendments are to
be made. The Local Rules of the Sacramento Superior Court, like those of the Los
Angeles Superior Court, provide authorization for DOE amendments to be made by
filing and serving the optional form or one substantially similar to the court provided
optional form. See Weil & Brown, Civil Procedure Before Trial, section 6.612, 6.613.

Answer to be filed and served on or before November 7, 2013.

Note: Departments 53 and 54 are located at 800 9th Street, 3rd Fl., not 720 9th Street
as stated in the notice.

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