Jennifer Kenney vs Old Mission Santa Barbara et al

Case Number

22CV03340

Case Type

Hearing Date / Time

Mon, 05/12/2025 - 10:00

Nature of Proceedings

Motion: Strike Amendment to Complaint Adding DOE 1

Tentative Ruling

Jennifer Kenney v. Franciscan Friars of California, Inc., et al. 

Case No. 22CV03340

           

Hearing Date: May 12, 2025                                                   

HEARING:              Motion to Strike “Doe” Amendment

ATTORNEYS:        For Plaintiff Jennifer Kenney: Steven Ross, Downtown L.A. Law Group, LLP

                                    For Defendants Franciscan Friars of California, Inc., and Old Mission Santa Barbara: Craig A. Roeb, Dana M. Enyart, Benjamin Nachimson, Chapman Glucksman, P.C.

                                    For Defendant Kelcole Manufacturing, Inc., dba Consolidated Overhead Door & Gate (Doe 1): Darren W. Epps, Epps & Gilroy LLP

                                   

TENTATIVE RULING:

The motion of defendant Kelcole Manufacturing, Inc., dba Consolidated Overhead Door & Gate to strike the Doe amendment is denied.

Background:

On August 30, 2022, plaintiff Jennifer Kenney filed her initial complaint in this action against defendants Franciscan Friars of California, Inc., (Franciscan Friars) and Old Mission Santa Barbara (Old Mission) (collectively, Mission Defendants). The complaint alleges personal injuries arising from an accident involving a gate located at Old Mission Santa Barbara.

On September 26, 2022, the Mission Defendants filed their answer to the complaint generally denying the allegations thereof and asserting 17 affirmative defenses.

At a case management conference held on January 9, 2023, the court set trial for November 6, 2023.

On May 12, 2023, the Mission Defendants filed a cross-complaint for indemnity, contribution, apportionment, declaratory relief, and express indemnity against cross-defendant Kelcole Manufacturing Inc. dba Consolidated Overhead Door & Gate (Consolidated). After realizing that the cross-complaint was erroneously filed without leave of court, the Mission Defendants applied to the court ex parte for, and on June 15 the court granted, leave for the filing of the cross-complaint.

On July 13, 2023, Consolidated filed its answer to the cross-complaint generally denying the allegations thereof and asserting 15 affirmative defenses.

On September 20, 2023, on the stipulation of the parties, the court continued trial to June 3, 2024.

On January 23, 2024, Kenney requested, and the court entered, dismissal without prejudice as to defendant Franciscan Friars.

On March 28, 2024, on the stipulation of the parties, the court continued the trial date to October 28, 2024.

On April 2, 2024, the Franciscan Friars requested, and the court entered, dismissal without prejudice of the cross-complaint against Consolidated.

On August 5, 2024, on the stipulation of the parties, the court continued the trial date to March 3, 2025. The stipulation included a recital stating that, as of the time of the stipulation, Old Mission had not yet conducted the deposition of Consolidated’s person most knowledgeable.

On October 18, 2024, Consolidated filed its motion for summary judgment, or alternatively for summary adjudication as to the cross-complaint of Old Mission. Hearing on the motion for summary judgment was noticed for January 27, 2025.

On October 22, 2024, Old Mission filed its motion for summary judgment as to plaintiff’s complaint. Hearing on the motion for summary judgment was noticed for January 27, 2025.

On October 31, 2024, the Mission Defendants requested, and the court entered, dismissal without prejudice of their cross-complaint against Consolidated.

On December 13, 2024, Consolidated filed its notice of withdrawal of its motion for summary judgment.

On January 21, 2025, plaintiff Kenney filed a “Doe” amendment to her complaint identifying Consolidated as Doe 1.

On January 27, 2025, the court denied Old Mission’s motion for summary judgment.

On January 30, 2025, proof of service of the summons, complaint, and Doe amendment was filed with the court showing acknowledgement of receipt on behalf of Consolidated.

On February 19, 2025, Kenney applied ex parte to the court to continue the March 3 trial date. On February 20, the court granted the ex parte application and continued trial to its current date of September 15, 2025.

On February 24, 2025, Consolidated filed this motion to strike the Doe amendment identifying Consolidated as Doe 1. The motion is made pursuant to Code of Civil Procedure sections 474 and 583.420.

The motion is opposed by plaintiff.

Analysis:

Consolidated makes this motion to strike the Doe amendment on alternative grounds of sections 474 (relating to Doe amendments) and 583.420 (relating to time for service).

(1)       Improper Doe Amendment?

The first ground for Consolidated’s motion is that the Doe amendment was improper.

“When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, 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 ….” (Code Civ. Proc., § 474.)

“The purpose of Code of Civil Procedure 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. There is a strong policy in favor of litigating cases on their merits, and the California courts have been very liberal in permitting the amendment of pleadings to bring in a defendant previously sued by fictitious name. [Citations.] 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.” (Barrows v. American Motors Corp. (1983) 144 Cal.App.3d 1, 7 (Barrows).)

“[T]hree lessons may be drawn from Barrows: First, section 474 includes an implicit requirement that a plaintiff may not ‘unreasonably delay’ his or her filing of a Doe amendment after learning a defendant’s identity. Second, a defendant named in an action by a Doe amendment under section 474 may challenge the amendment by way of an evidence-based motion, which argues that the plaintiff ‘unreasonable delayed’ his or her filing of the challenged amendment. Third, ‘unreasonable delay’ within the meaning of Barrows includes a prejudice element, which requires a showing by the defendant that he or she would suffer prejudice from plaintiff’s delay in filing the Doe amendment.” (A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1066–1067, quotation marks omitted.)

Kenney first objects that this motion is procedurally improper as a motion to strike. Although this motion is styled as a motion to strike, the clear intent of the motion is the evidence-based motion permitted by A.N. and Barrows. The procedural aspects of a motion to strike under Code of Civil Procedure section 435 et seq. are therefore inapplicable.

“The test [under section 474] is whether, at the time the complaint was filed, the plaintiff ‘ “was ignorant of the facts giving [her] a cause of action against the person.” ’ [Citation.] The focus is on the facts that the plaintiff knew, not on whether the plaintiff subjectively knew she had a cause of action based on those facts. [Citation.] While the plaintiff’s ignorance must be genuine, and the plaintiff cannot claim ignorance simply because she did not know all the details of the person’s involvement, the plaintiff is not barred from invoking section 474 merely because she suspected the person of wrongdoing based on an incomplete set of facts. [Citation.]” (Hahn v. New York Air Brake LLC (2022) 77 Cal.App.5th 895, 899–900.) Section 474 imposes no “duty to exercise reasonable diligence to obtain facts that she ‘should have known.’ ” (Id. at p. 900.)

Consolidated does not dispute that Kenney did not know of Consolidated at the time of filing of the complaint. (Reply, at p. 2.) The issue under section 474 is thus solely whether Kenney unreasonably delayed in filing the Doe amendment.

“In order to prevail on the kind of motion involved here, however, a defendant must show specific prejudice.” (Barrows, supra, 144 Cal.App.3d at p. 9 [citing a law review article identifying “ ‘substantial and demonstrable prejudice by loss of evidence during the post-limitations period’ ” for such prejudice.)

Consolidated asserts prejudice in the following: (1) Consolidated settled with Old Mission and being recalled to this case would deprive Consolidated of the benefit of its bargain regarding the settlement or the benefits of having its MSJ motion heard; (2) Consolidated did not retain an expert or attend an inspection; and (3) plaintiff’s deposition was taken on March 6, 2023, prior to Consolidated’s initial appearance in this action, and a second session of plaintiff’s deposition would be required. (Motion, at pp. 5-6.)

In response, plaintiff asserts that she was in the process of substantive discovery with Consolidated when Consolidated abruptly settled with Old Mission. (Ross decl., ¶¶ 3-6.) It was not until Consolidated’s person most knowledgeable was deposed on January 2, 2025, after having been rescheduled from July 8, 2024, and November 21, 2024, together with the December 2024 inspection that plaintiff became aware of substantive facts relating Consolidated to this action. (Ross decl., ¶¶ 7-8.) The Doe amendment was filed and served at the end of January 2025.

The court finds that plaintiff did not unreasonably delay filing the Doe amendment. The action was filed as, and in part remains, a premises liability action. Although Old Mission filed a cross-complaint against Consolidated for indemnity, Consolidated has maintained that it is not liable for Kenney’s injury and filed a motion for summary judgment on the cross-complaint on that basis. It is not unreasonable under these circumstances for Kenney to conduct discovery before naming Consolidated as a defendant. Plaintiff’s evidence is that this evidence was not available until the combination of a site inspection and the deposition of Consolidated’s person most knowledgeable.

At the same time, Consolidated’s claims of prejudice are mitigated by accommodation in this litigation. Consolidated is entitled to conduct relevant and appropriate discovery, including another session of a deposition of Kenney, a site inspection, and appropriate expert discovery. This discovery can be accomplished prior to trial, as now scheduled or as continued to accommodate this discovery. As to the settlement, while Consolidated may have intended by its settlement with Old Mission to be completely out of this case, Consolidated’s settlement was only a settlement of Old Mission’s indemnity-related claims of its cross-complaint. There remained at that time the potential for Consolidated to be brought into this case as a defendant by the plaintiff. Moreover, the terms of the settlement are not before the court, so there is no evidence as to how, if at all, the settlement addresses that contingency. The court does not find that Consolidated’s settlement with Old Mission constitutes substantial prejudice to support denial of plaintiff’s opportunity to present plaintiff’s claims against Consolidated. Taken as a whole, the court does not find Consolidated’s claims of prejudice as sufficiently substantial to support the granting of the motion.

The motion to strike pursuant to Barrows will therefore be denied.

(2)       Failure to Serve

The second ground for Consolidated’s motion is that the court has discretion to dismiss plaintiff’s action against Consolidated under Code of Civil Procedure section 583.420.

“The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.” (Code Civ. Proc., § 583.410, subd. (a).)

“The court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following conditions has occurred: [¶] (1) Service is not made within two years after the action is commenced against the defendant.” (Code Civ. Proc., § 583.420, subd. (a)(1).)

This action was filed on August 30, 2022. As stated in the proof of service, service as to Consolidated was complete on January 27, 2025, more than two but less than three years after the action was filed.

“In seeking to dismiss under section 583.410, if a defendant first shows that it has suffered some prejudice due to the failure to prosecute, then generally the burden ‘shifts to the plaintiff to show excusable delay.’ [Citation.]” (Marra v. Mission Foods Corp. (1993) 19 Cal.App.4th 724, 727, fn. omitted.)

“In ruling on the motion, the court must consider all matters relevant to a proper determination of the motion, including:

            “(1)      The court’s file in the case and the declarations and supporting data submitted by the parties and, where applicable, the availability of the moving party and other essential parties for service of process;

            “(2)      The diligence in seeking to effect service of process;

            “(3)      The extent to which the parties engaged in any settlement negotiations or discussions;

            “(4)      The diligence of the parties in pursuing discovery or other pretrial proceedings, including any extraordinary relief sought by either party;

            “(5)      The nature and complexity of the case;

            “(6)      The law applicable to the case, including the pendency of other litigation under a common set of facts or determinative of the legal or factual issues in the case;

            “(7)      The nature of any extensions of time or other delay attributable to either party;

            “(8)      The condition of the court’s calendar and the availability of an earlier trial date if the matter was ready for trial;

            “(9)      Whether the interests of justice are best served by dismissal or trial of the case; and

            “(10)    Any other fact or circumstance relevant to a fair determination of the issue.

“The court must be guided by the policies set forth in Code of Civil Procedure section 583.130.” (Cal. Rules of Court, rule 3.1342(e).)

“It is the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition. Except as otherwise provided by statute or by rule of court adopted pursuant to statute, the policy favoring the right of parties to make stipulations in their own interests and the policy favoring trial or other disposition of an action on the merits are generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action in construing the provisions of this chapter.” (Code Civ. Proc., § 583.130.)

Delay in service in this context refers to the delay in identifying Consolidated as Doe 1 by amendment. Service was promptly effected after the filing of the Doe amendment.

As discussed in the context of section 474, Consolidated has suffered some prejudice by the delay, but the court nonetheless finds, for the same reasons discussed above, that plaintiff has shown excusable delay. The court has considered all of the rule 1342 factors and declines to exercise its discretion to dismiss plaintiff’s action against Consolidated. While there has been no impediment to effecting service on Consolidated, the evidence, including the court’s file in this action, shows that there was good reason for delay in naming Consolidated and plaintiff’s approach to discovery as to Consolidated was not dilatory when the full context of the litigation is considered. Trial in this action has been continued, but the court notes that all continuances made when Consolidated was a cross-defendant occurred with Consolidated’s stipulation. Returning Consolidated to this action may, but not necessarily will, result in a further continuance of trial to accommodate Consolidated’s reasonable needs for discovery and trial preparation, but in the context of the court’s calendar, such accommodations will not unreasonably delay trial in this action.

After considering the evidence presented by the parties, the rule 1342 factors, and the totality of the circumstances, the motion to dismiss pursuant to Code of Civil Procedure sections 583.410 and 583.420 will be denied.