Case Name: NORMA RAMIREZ v. O?CONNOR HOSPITAL, ET AL.
Case No.:? 2014-1-CV-273090
This is an action for medical negligence and product liability.? Currently before the Court is the motion to quash service of summons and complaint by specially appearing Defendant Hossein Yazdy, M.D. (?Dr. Yazdy?) pursuant to Code of Civil Procedure (?CCP?) ?418.10.? The original (form) complaint in this matter alleging medical negligence and products liability was filed November 12, 2014.? The operative first amended complaint (?FAC?), another form complaint, was filed on May 12, 2015.? Dr. Yazdy was first brought into the action as a named defendant via a Doe amendment to the FAC pursuant to CCP ?474 filed on July 18, 2016, approximately one year and eight months after the original complaint was filed.
A defendant may file a motion to quash service for lack of personal jurisdiction under CCP ?418.10(a)(1).? ?[W]here a defendant properly moves to quash service of summons the burden is on the plaintiff to prove facts requisite to the effective service.?? (Sheard v. Super. Ct. (1974) 40 Cal.App.3d 207, 211.)? ?[T]he burden of proof is upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence.?? (Evangelize China Fellowship, Inc. v. Evangelize China Fellowship, Hong Kong (1983) 146 Cal.App.3d 440, 444.)? The plaintiff must provide affidavits and other authenticated documents in order to demonstrate competent evidence of specific evidentiary facts permitting a court to form an independent conclusion on the issue of jurisdiction.? (In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 113.)
CCP ?474 states in pertinent part that: ?When the plaintiff is ignorant of the name of the defendant, he must state that fact in the complaint, . . . 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 . . .?
?Improper service of a defendant under section 474 may be attacked by a motion to quash.?? (McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 375, citing Optical Surplus, Inc. v. Superior Court (1991) 228 Cal.App.3d 776, 782-783 [trial court is required, as matter of law, to grant motion to quash service of summons when party is wrongly served as Doe defendant].)? ?Section 474 allows a plaintiff who is ignorant of a defendant?s identity to designate the defendant in a complaint by a fictitious name (typically, as a ?Doe?), and to amend the pleading to state the defendant?s true name when the plaintiff subsequently discovers it.? When a defendant is properly named under section 474, the amendment relates back to the filing date of the original complaint.? Section 474 provides a method for adding defendants after the statute of limitations has expired, but this procedure is available only when the plaintiff is genuinely ignorant of the facts establishing a cause of action against the party to be substituted for a Doe defendant.? ?The question is whether [the plaintiff] knew or reasonably should have known that he had a cause of action against [the defendant].?? ?Ignorance of the facts giving rise to a cause of action is the ?ignorance? required by section 474, and the pivotal question is, ?did plaintiff know facts?? not ?did plaintiff know or believe that [he] had a cause of action based on those facts???? (Id. at 371-372, emphasis and brackets in original, internal citations omitted but citing among others, Woo v. Superior Court (1999) 75 Cal.App.4th 169.)
As the Woo court noted, ?[a] further and non-procedural requirement for application of the section 474 relation-back doctrine is that [Plaintiff] must have been genuinely ignorant of [Defendant?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.?? (75 Cal.App.4th at 177, internal citations omitted, emphasis and brackets added.)
While the California Courts of Appeal have not taken a uniform approach in interpreting and applying CCP ?474, the Court finds the approach taken in decisions such as McClatchy and Woo, supra, to be the most persuasive as it gives meaning to the actual ignorance requirement derived from the plain language of the statute: ?When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint . . . and when his true name is discovered, the pleading or proceeding must be amended accordingly.? (Emphasis added.)? CCP ?474 is not meant to be used as a tactical tool to evade the statute of limitations, particularly in areas such as professional negligence where the Legislature has already made the determination that a relatively short limitations period is appropriate.
Dr. Yazdy has established that he began treating Plaintiff in May 2013.? (See Ex. D to the Declaration of Nafija Weston.)? Plaintiff does not dispute that at all relevant times she has known Dr. Yazdy?s identity and known that he performed the November 18, 2013 catheter procedure on which Plaintiff?s entire action is based.? (See Plaintiff?s Opposition at 7:11-15; Plaintiff?s Deceleration at 7.)? Therefore, Plaintiff cannot satisfy the condition (actual ignorance of a defendant?s identity) necessary for CCP ?474 to apply here.
The opposition?s argument that Plaintiff?s counsel did not learn the facts necessary to name Dr. Yazdy as a defendant until Dr. Yazdy and the anesthesiologist for the procedure were deposed in June and April of 2016, respectively, is unpersuasive.? As the McClatchy decision noted, ?[n]othing in [prior cases] suggests a Doe defendant substitution may be based on a later-drawn legal conclusion arising from the discovery of an additional fact when that fact does not add anything to the theory of liability apparent at the time of the original pleading.?? (247 Cal.App.4th at 374, internal citations omitted.)? The negligence attachment to Plaintiff?s original complaint alleged in pertinent part: ?Defendants . . . are health care providers licensed in California . . . Defendants, and each of them, lacked the necessary knowledge and skill to properly care for plaintiff?s condition, and were negligent and unskilled in treating that condition, to wit: Plaintiff underwent insertion of catheter for dialysis in the operating room.? The face mask caught fire with plaintiff sustaining 2nd degree burns to her face, ear, neck, shoulder and chest.? The negligent treatment by defendants . . . resulted in plaintiff?s infirm condition and proximately cause the injury(s) . . .?? The only reasonable interpretation of this language is that Plaintiff was alleging that the catheter operation, which Plaintiff always knew Dr. Yazdy performed, was performed negligently resulting in injury to Plaintiff.? Dr. Yazdy could have and should have been named as a defendant in the original complaint.? He cannot be substituted in now in place of ?Doe 2? under CCP ?474 as Plaintiff has failed to show that she was ?ignorant of the name of the defendant.?? Defendant?s motion to quash service is therefore GRANTED.