Colligan vs. So-Cal Boys Restaurant Group Inc.

other process, or, if there be no summons or process, the copy of the first pleading or notice served upon such defendant bore on the face thereof a notice stating in substance: “To the person served: You are hereby served in the within action (or proceedings) as (or on behalf of) the person sued under the fictitious name of (designating it).” The certificate or affidavit of service must state the fictitious name under which such defendant was served and the fact that notice of identity was given by endorsement upon the document served as required by this section.

The foregoing requirements for entry of a default or default judgment shall be applicable only as to fictitious names designated pursuant to this section and not in the event the plaintiff has sued the defendant by an erroneous name and shall not be applicable to entry of a default or default judgment based upon service, in the manner otherwise provided by law, of an amended pleading, process or notice designating defendant by his true name.

To defeat the amendment, the burden is on defendant to prove plaintiff’s earlier awareness of defendant’s identity and facts creating its liability. (See Fara Estates Homeowners Ass’n v. Fara Estates, Ltd. (9th Cir. 1998) 134 F.3d 377, 377 (applying Calif. law); Breceda v. Gamsby (1968) 267 Cal.App.2d 167, 179.)

Where a complaint is amended after the statute of limitations has run to identify a fictitiously-named defendant, and to assert a cause of action against that defendant not included in the original complaint, the amended complaint will be given relation back effect, so as to avoid the statute of limitations, provided:

— the original complaint stated a valid cause of action against the now-identified “Doe” defendant; and

— plaintiff was “genuinely ignorant” of the defendant’s identity or the facts rendering defendant liable when the original complaint was filed; and

— the amended complaint, identifying the defendant, is based on the “same general set of facts” as the original and refers to the “same accident and same injuries.”

(Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 596, 600-601.)

Serving someone as a “Doe” defendant after the statute of limitations has run may seriously impair his or her ability to defend. Hence,

relation back effect will be given only when plaintiff was proceeding in good faith; i.e., only where plaintiff was genuinely ignorant of that person’s identity or liability when the action was commenced. (Miller v. Thomas (1981) 121 Cal.App.3d 440, 445-446; McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 371-372.)

Note, this is not a “should have discovered” standard, but rather actual knowledge. “(T)he relevant inquiry when the plaintiff seeks to substitute a real defendant for one sued fictitiously is what facts the plaintiff actually knew at the time the original complaint was filed.” (General Motors Corp. v. Sup.Ct. (Jeffrey) (1996) 48 Cal.App.4th 580, 588.)

If the actual knowledge test (above) is satisfied, it is irrelevant that plaintiff was negligent or failed to exercise reasonable diligence in not having discovered defendant’s identity or liability earlier: “(A) plaintiff will not be refused the right to use a Doe pleading even where the plaintiff’s lack of actual knowledge is attributable to plaintiff’s own negligence.” [Grinnell Fire Protection System Co. v. American Sav. & Loan Ass’n (1986) 183 Cal.App.3d 352, 359 (emphasis added); see Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1170.]

Similarly, the fact that there were means by which plaintiff could have determined the identity or capacity of a “Doe” defendant when the complaint was filed is irrelevant to whether plaintiff was “ignorant” of these matters. [Fuller v. Tucker, supra, 84 CA4th at 1170; General Motors Corp. v. Sup.Ct. (Jeffrey) (1996) 48 CA4th 580, 596—”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”].

But, whether plaintiff was genuinely “ignorant” or had “actual knowledge” of the “Doe” defendant’s identity or liability when the complaint was filed is determined by a good faith test. (Woo v. Sup.Ct. (Zarabi) (1999) 75 Cal.App.4th 169, 177 [genuine ignorance required].)

Further, the court has discretion to deny leave to amend to name a person as a “Doe” defendant where there is evidence of laches—i.e., unreasonable delay by plaintiff in seeking leave to amend after discovering defendants identity causing specific prejudice to the defendant. (See Barrows v. American Motors Corp. (1983) 144 CA3d 1, 8.) Thus, leave to amend may be denied for unreasonable delay after plaintiff ascertains a “Doe” defendant’s identity resulting

in prejudice to the defendant. (A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1068—”Doe” amendments filed on eve of trial quashed because plaintiff knew defendants’ identities more than 2 years earlier and it would be difficult for defendants to prepare for trial in such short order.)

2) Procedure

Code Civ. Proc. § 474 does not specify how a “Doe” amendment may be challenged. Assuming plaintiff’s pleadings comply with Section 474, defendant may challenge a “Doe” amendment through various proceedings, depending on whether the challenge involves an improperly-named “Doe” defendant or lack of diligence in serving a fictitiously-named defendant:

(1) Improperly-named “Doe” defendant: When a defendant is improperly named by a fictitious name (e.g., defendant can show plaintiff knew defendant’s name and the facts supporting the cause of action against him or her), the affirmative defense that the statute of limitations had run when defendant was named may raise a fact issue. (See McOwen v. Grossman (2007) 153 Cal.App.4th 937, 944- 948 (finding triable issue of fact in a medical malpractice action as to whether plaintiff knew of the theory under which defendant could be liable).)

(2) Lack of diligence in serving fictitiously-named defendant: On the other hand, if the defendant is properly named as a “Doe” but claims lack of diligence in serving him or her, a pretrial, evidence based, motion would be the appropriate procedure to challenge plaintiff’s delay in naming the defendant. [See A.N. v. County of Los Angeles (2009) 171 CA4th 1058, 1067.]

But other cases have permitted these motions as motions to quash service. (A.N., a Minor v. Cty. of Los Angeles (2009) 171 Cal. App. 4th 1058, 1063.) This motion is a motion to quash.

3) Analysis

Plaintiffs named Kenneth Charles Koch (“Koch”) as Doe Defendant 2 on February 26, 2026. (ROA 210.) Koch contends that he may not be added as a Doe Defendant because Plaintiff waited too long to name him as a Doe Defendant, after fact discovery was completed, experts were designated, and expert discovery commenced.

Koch has met his burden to show that Plaintiffs unreasonably delayed in seeking the amendment.

Koch provides evidence that Plaintiffs have known his identity since at least June 17, 2025, when Plaintiffs took Koch’s deposition. (Rasmussen Dec., ¶ 9.) Koch also verified Defendant Viking’s discovery responses on April 4, 2024. (Rasmussen Dec., Ex. 2.)

In an email exchange in mid-August 2025, Plaintiffs’ counsel sent an email to Viking’s counsel, asking Viking’s counsel if he would accept service on behalf of Koch because he was a “negligent manager/owner.” (Rasmussen Reply Dec., Ex. 1.)

On November 12, 2025, the parties submitted a joint stipulation to continue the trial that was then set for December 1, 2025. (ROA 181.) In that stipulation, the parties acknowledged that fact discovery had closed but requested a trial continuance to February 2026. (Ibid.) In early 2026, trial was set for February 23, 2026, but on February 18, 2026, trial was continued to September 21, 2026. (ROA 194; 203.) Plaintiff did not seek to add Koch as a Doe Defendant until February 26, 2026. (ROA 210.)

Plaintiffs claim that, while they were aware of Koch’s identity by 2025, they did not have knowledge of Koch’s potential personal liability until February 13, 2026, when the parties conducted the deposition of security expert R. Bruce Ramm. (Gansen Dec., ¶ 2 and Ex. A.) However, Ramm is Plaintiffs’ own expert. Further, Ramm’s deposition testimony attached to Plaintiffs’ counsel’s declaration does not support Plaintiffs’ contention that “Koch failed to perform mandatory credential verification and had knowledge the guards at Roscoe’s were not credentialed while choosing to send them to work that night anyway.” The deposition testimony provided with the declaration mentions Koch on only one occasion, and that occasion relates to the issue of how the security guards dressed. (Gansen Dec., Ex. A.)

Moving Defendant also shows specific prejudice due to the delay. Discovery is now closed in this action, giving Moving Defendant no opportunity to take part in discovery prior to trial. Plaintiffs contend that Koch cannot claim surprise because he is the owner of Defendant Viking and thus has been “involved” in defense strategy. While that may be true from a corporate perspective, Plaintiffs provide no evidence that Plaintiffs have had any opportunity to conduct discovery with respect to a claim for individual liability against Koch.

Thus, the court grants the motion to quash service of summons on Koch.

In the conclusion section of his motion, Koch states: In addition, for the reasons articulated above, the Court has the power, sua sponte, in the interests of justice to strike the untimely filings of Doe Amendments 2, 3, 4, 5, 6, 7, 11 and 12. Except for James Frank and Jeff Hayden, whose motions are set for August 26, 2026, these Doe Defendants have not filed their own motion to quash. That is, no party has produced any evidence or argument showing why those Doe Amendments should be quashed. The Court will not sua sponte quash a Doe Amendment at this juncture.

Koch shall give notice of this ruling.

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