Case Number: BC580362??? Hearing Date: January 03, 2017??? Dept: 51
Background
In this labor and employment matter, plaintiff Briana O?Dowd alleges in February 2014, individual defendant David Kim offered plaintiff a general manager position and ownership or profit sharing interest at corporate defendant Gen Korean BBQ. Plaintiff relocated and quit her former job. Several years prior, Kim and plaintiff had an affair. Plaintiff was hired through her corporation and was therefore misclassified as an independent contractor. Kim treated female employees negatively by requiring them to wear hairspray and requiring female employees to wear pants or dresses, not skirts. Kim criticized plaintiff?s management skills and excluded her from meetings. Plaintiff worked seven days per week, 14 to 15 hours per day without breaks. On August 25, 2014, plaintiff slipped and fell at work, sustaining injuries. Another manager called plaintiff at home while she was recovering and yelled at her. Kim said plaintiff was faking her injury and demanded she not report the injury occurred at work. Kim turned off the utilities at plaintiff?s corporate housing and fired her.
On April 30, 2015, plaintiff filed a complaint against Gen Korean BBQ and Kim. On August 31, 2015, the Court (Judge Farrell) sustained with leave to amend Kim?s demurrer to the complaint on the ground that it failed to allege Kim was plaintiff?s ?employer? within FEHA and the Labor Code?s meaning.
On September 21, 2015, plaintiff filed the operative first amended complaint (FAC) for (1) disability discrimination, (2) failure to provide reasonable accommodation, (3) failure to engage in the interactive process, (4) sex and gender discrimination, (5) harassment / hostile work environment, (6) retaliation (FEHA), (7) failure to prevent / remedy discrimination and retaliation, (8) defamation, (9) wrongful termination in violation of public policy, (10) constructive tortious termination in violation of public policy, (11) breach of oral contract, (12) violation of Labor Code section 970a, (13) failure to pay overtime, (14) failure to provide meal periods, (15) failure to provide rest periods, (16) imposition of alter ego liability, and (17) imposition of single enterprise.
On January 19, 2016, the Court overruled Kim?s demurrer to the FAC.
On October 14, 2016, plaintiff substituted Gen Restaurant Management LLC, Gen Development LLC, Golden Den Corp., RD Restaurant Group Inc., Gen Torrance LLC (erroneously sued as Gen Korean BBQ), and Gen Cerritos LLC for Does 1 through 6, respectively.
On November 14, 2016, Gen Restaurant Management LLC, Gen Development LLC, Golden Den Corp., RD Restaurant Group Inc., and Gen Cerritos LLC (Does 1 through 4 and 6) filed these combined opposed motions to quash for lack of jurisdiction, arguing they are improper Doe defendants under Code of Civil Procedure section 474 because plaintiff had been aware of them. There is no dispute that plaintiff?s claims against the Doe defendants would otherwise be untimely. The Court considered the papers submitted and GRANTS the motions in part and DENIES them in part as follows.
Motion to Quash Standard
?A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.? CCP ? 418.10(a).
?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 any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly[.]? CCP ? 474.
?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. [Citation.] 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 actually ignorant of the facts establishing a cause of action against the party to be substituted for a Doe defendant. [Citation] ?The question is whether [the plaintiff] knew or reasonably should have known that he had a cause of action against [the defendant].? [Citation.] [?] ?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?? ? ? [Citations.] ?Although it is true that a plaintiff?s ignorance of the defendant?s name must be genuine (in good faith) and not feigned [citation] and that a plaintiff need not be aware of each and every detail concerning a person?s involvement before the plaintiff loses his ignorance [citation], it is equally true that the plaintiff does not relinquish her rights under section 474 simply because [he] has a suspicion of wrongdoing arising from one or more facts [he] does know.? [Citation.]? McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 371-372 (citations and footnote omitted, emphasis in original).
?If the identity of the Doe defendant is known but, at the time of the filing of the complaint the plaintiff did not know facts that would cause a reasonable person to believe that liability is probable, the requirements of section 474 are met. ?Section 474 allows a plaintiff in good faith to delay suing particular persons as named defendants until he has knowledge of sufficient facts to cause a reasonable person to believe liability is probable.? [Citation.] ?The fact that the plaintiff had the means to obtain knowledge is irrelevant.? [Citation.] ?In short, section 474 does not impose upon the plaintiff a duty to go in search of facts she does not actually have at the time she files her original pleading.? [Citation.]? McOwen v. Grossman (2007) 153 Cal.App.4th 937, 943-944 (citations omitted).
In McClatchy, the appellate court affirmed the trial court?s ruling granting a law firm?s motion to quash because the undisputed evidence showed that the main defendant, a trustee, ?had conducted the Trust?s business using the firm address and firm letterhead for a number of years, and that appellant was aware of this when he filed the original petition ?.? McClatchy, supra, 247 Cal.App.4th at 373. Thus, the plaintiff ?knew of the professional relationship between [the trustee] and the Firm when he filed his original petition, and was aware that [the trustee] had used the Firm?s office and letterhead when handling the affairs of the Trust. The trial court could reasonably conclude the SEC document ?discovered? by plaintiff after he filed his original petition did not add to or subtract from the relationship between [the trustee], the Firm and the Trust as it was understood by [the plaintiff].? Ibid.
?? [S]ection 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. … ?[U]nreasonable delay? ? 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., a Minor v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1066-1067. The ?prejudice element ? requires a showing by the defendant that he or she would suffer prejudice from plaintiff?s delay in filing the Doe amendment.? Id. at 1067.
Plaintiff?s Ignorance
Here, plaintiff attempts to pursue the five moving Doe defendants on the theory that they are alter egos of, an integrated enterprise with, and agents of the non-moving defendants, and were plaintiff?s joint employer. OPP 1:8. Thus, the question is whether plaintiff had sufficient knowledge of the Doe defendants? identity, corporate relationship to the non-moving defendants, and employment relationship to herself before she filed the complaint.
The Doe defendants present evidence concerning Gen Cerritos, Gen Development, and Golden Den. They do not address Gen Restaurant Management or RD Restaurant Group, so the motions as to these two defendants must be denied. Plaintiff asserts no evidentiary objections.
Gen Cerritos. Two emails from plaintiff dated August 7 and 8, 2014, show plaintiff conducting business on Gen Cerritos? behalf, regarding a broken ice maker at Gen Cerritos. Lowery Decl. ? 4, Exh. 3. In the later email, plaintiff identified herself as ?GM Gen Korean BBQ [?] Cerritos California.? She further stated, ?we, Gen Korean BBQ in Cerritos California.? While the letter predates this action and identifies Gen Cerritos in some way, it does not suggest that plaintiff had reason to believe that Gen Cerritos was a separate corporate entity. Rather, the language defendants cite from the FAC clearly identify Cerritos and Alhambra as ?GEN BBQ locations? and a ?training period at the Cerritos location.? FAC ?? 17, 24. Plaintiff?s requests for admissions (RFAs) served on Gen Torrance (erroneously sued as Gen Korean BBQ) in March 2016 have little relevance since they postdate the complaint and FAC. Lowery Decl. ? 5, Exh. 5. The RFAs are insufficient to establish plaintiff?s knowledge as of dates preceding her pleadings.
Gen Development. The only evidence submitted is an RFA asking Gen Torrance to admit that Kim was a member of Gen Development. Since the RFAs were served in March 2016, they are insufficient to establish plaintiff?s knowledge as of dates preceding her pleadings.
Golden Den. A letter, titled ?Transitional Return to Work Memorandum,? dated February 13, 2015 to plaintiff states, ?Golden Den, your employer, is pleased to be able to offer a temporary modified or alternative assignment ?.? and ?While on temporary modified duty, Golden Den expects you to keep all appointments ?.? Lowery Decl. ? 7, Exh. 6. Plaintiff produced this letter in discovery. Lowery Decl. ? 7. The letter predates this action, identifies Golden Den, and further identifies Golden Den as plaintiff?s employer. A reasonable person would have understood these representations as meaning that Golden Den was a separate entity.
Accordingly, the evidence establishes that plaintiff knew of Golden Gen?s identity, corporate relationship to the non-moving defendants, and employment relationship to herself, but not Gen Cerritos or Gen Development?s.
Prejudice
Plaintiff filed the Doe amendments over three months before trial and before the close of discovery. Thus, the Doe defendants had sufficient time to conduct discovery and challenge the pleadings, especially given the limited scope with which they are charged with liability. While the Doe defendants had the statutory time to file a responsive pleading and were entitled to bring these motions, they were aware of the trial date and could have immediately commenced discovery. Instead, they made a tactical decision to bring these motions. As they note, discovery is no longer available, but the running of the discovery clock is at least partially of their own making. Importantly, they do not identify any particular need for discovery or articulate what, if any, information they would like to obtain. They also refer to the summary judgment procedure but fail to articulate any argument they would like to assert. Additionally, the non-moving defendants have not pursued summary judgment, and it is now too late to do so. Had some particular prejudice been identified, it might be remedied by a reasonable trial continuance, with a continuance of related dates as to the Doe defendants. But absent such a showing, no continuance is necessary. The Court finds the Doe defendants? prejudice showing is insufficient.
Conclusion
The motions are GRANTED as to Golden Den, and DENIED as to the balance. Doe defendants? counsel to give notice.