McGrew v. Clovis Unified School District

Proc., § 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 3

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 actually 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].’” (McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 371–372, citations, italics, and footnote omitted.) “ ‘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?” ’ ‘Although it is true that a plaintiff's ignorance of the defendant's name must be genuine (in good faith) and not feigned and that a plaintiff need not be aware of each and every detail concerning a person's involvement before the plaintiff loses his ignorance, it is equally true that the plaintiff does not relinquish [his] rights under section 474 simply because [he] has a suspicion of wrongdoing arising from one or more facts [he] does know.’” (Id. at p. 372, citations and italics omitted.)

In the present case, defendant contends that plaintiff admitted that she knew his identity before she filed the complaint, as she stated in her deposition testimony that she knew the bus driver’s first name was “Tony.” (Shapazian decl., Exhibit F, plaintiff’s depo., p. 23: 11-12.) He also claims that plaintiff’s mother testified at her deposition that the bus driver’s name was “Tony”, although she did not know his last name. (Shapazian decl., Exhibit G, Guadalupe Murrillo depo., p. 16:20-22.) First, a motion to strike cannot rely on evidence that is extrinsic to the pleading being challenged, and must only rely on the allegations of the pleading as well as judicially noticed matters. (Code Civ.

Proc., § 437.) Thus, to the extent that defendant relies on the plaintiff’s and her mother’s deposition testimony, the motion is improper and defective. Defendant has not claimed or shown that plaintiff’s and her mother’s deposition testimony is judicially noticeable or otherwise proper to consider in ruling on a motion to strike. The deposition testimony is clearly extrinsic to the allegations of the complaint and not judicially noticeable. Therefore, the court may not consider the deposition testimony in ruling on the motion to strike.

Without the deposition testimony, there is no basis for finding that the Doe amendment is improper or false, as there is nothing in the allegations of the first amended complaint that would show that plaintiff knew the identity of the bus driver when she filed the action. Thus, the court may deny the motion to strike for this reason alone. Also, even if the court were to consider plaintiff’s and her mother’s deposition testimony, it would still deny the motion. The plaintiff and her mother testified on September 26, 2025 that they knew the bus driver’s first name was “Tony.”

However, they never stated that they knew his last name, or that they had any way to know his full name for the purpose of naming him in the complaint. The fact that plaintiff knew in late September of 2025 that the bus driver’s name was Tony does not mean that she knew his full name in August of 2023 when she filed the original complaint, or that she knew his full name in January of 2024 when she filed the first amended complaint. Plaintiff claims that she did not learn the bus driver’s full name until defendant Clovis Unified School District answered discovery, and that she only learned that his actual name was Ngan Van Duong after Clovis Unified filed its motion for summary judgment.

Thus, even if the court were to consider the plaintiff’s deposition testimony, it would still deny the motion to strike 4

because the evidence indicates that plaintiff only knew the bus driver’s first name, and she did not know his full name until months after she filed her original and first amended complaint. In other words, plaintiff’s Doe amendment adding Duong to the case was not false or improper. Finally, to the extent that defendant argues that plaintiff’s government tort claim was also false and improper because it failed to name him, the argument is misplaced and the court intends to disregard it. Failure to file a timely government tort claim may support a general demurrer to the complaint, as the filing of a government claim is an essential prerequisite to bringing an action against a public entity. (Gov.

Code, §§ 910; 950.2.) The claim should include information about the nature of the plaintiff’s injury, including “[t]he date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted.” (Gov. Code, § 910, subd. (c).) However, the claims statute does not require the plaintiff to identify the government employee who caused the injury. (Ibid.) Here, defendant has not brought a demurrer to the first amended complaint, so his contention that the government claim was defective is misplaced.

A motion to strike is not a general demurrer, and it does not assert that the plaintiff’s complaint fails to state facts sufficient to constitute a cause of action. Therefore, defendant cannot use a motion to strike to challenge the alleged defects in the underlying tort claim. In any event, defendant’s motion fails to show that tort claim was defective or improper. Defendant admits that plaintiff served a timely claim with Clovis Unified on January 27, 2023, and that the claim was rejected on March 13, 2023. (Shapazian decl., Exhibits A and B.

The court will take judicial notice of the claim filed by plaintiff and Clovis Unified’s rejection of the claim.) The claim stated the date of the injury and described the circumstances leading up to the injury. (Shapazian decl., Exhibit A.) The claim also stated that the bus driver failed to warn of the dangerous condition on the bus or clean up the spilled liquid that caused plaintiff to fall. (Ibid.) While the claim did not name the bus driver, the claims statute does not require the employee who caused the injury to be named. (Gov.

Code, § 910, subd. (c).) It only requires the plaintiff to describe “[t]he date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted.” The claim here provided all of the relevant information about the incident, so defendant has failed to show that the claim was defective. As a result, the court intends to disregard defendant’s argument regarding the government claim. In summary, the court intends to deny the motion to strike and order defendant Tony Duong to file his answer to the FAC.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: KCK on 06/29/26. (Judge’s initials) (Date)

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