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Filed 4/28/17 DeWitt v. Crazy Protocol Communications CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
TIMOTHY A. DEWITT,
Plaintiff and Appellant,
v.
CRAZY PROTOCOL
COMMUNICATIONS, INC., et al.,
Defendants and Respondents.
A145469
(San Francisco City and County
Super. Ct. No. CGC12520809)
Attorney Timothy A. DeWitt (appellant) sued various defendants in propria
persona for, inter alia, violating the California Anti-Spam Act (Bus. & Prof. Code,
§ 17529.5). After appellant filed an amendment to his complaint to substitute in
eHarmony, Inc. (respondent) as a Doe defendant, pursuant to the Code of Civil Procedure
section 474,1
the trial court granted respondent’s motion to quash service of summons.
Appellant now appeals, still in propria persona, contending the court improperly found
that he was not genuinely ignorant of respondent’s true identity at the time he filed the
original complaint or, in the alternative, that he unreasonably delayed in filing and
serving the amendment to the complaint once he learned respondent’s true identity.
Appellant also contends a one-year statute of limitations should not apply to claims for
liquidated damages brought under Business and Professions Code section 17529.5. We
shall affirm the order granting the motion to quash.

1 All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.
2
FACTUAL AND PROCEDURAL BACKGROUND
Appellant filed his complaint in this matter on May 15, 2012, against Crazy
Protocol Communications, Inc., its president, Brian Muir, and Does 1 through 100. The
complaint included a cause of action alleging defendants sent “[u]nsolicited false or
misleading commercial e-mails” in violation of the Anti-Spam Act (Bus. & Prof. Code,
§ 17529.5),
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as well as derivative claims for negligence and declaratory relief. On
January 6, 2014, appellant requested dismissal of the original named defendants.
Almost a year later, on January 5, 2015, appellant filed an amendment to the
complaint to add three Doe defendants, including respondent. On January 19, appellant
served the summons, complaint, and amendment on respondent.
On February 9, 2015, respondent filed a motion to quash service of summons,
which the trial court granted on April 21. Notice of entry of order was filed on May 18.
On June 12, 2015, appellant filed a notice of appeal.
DISCUSSION
I. Order Granting the Motion to Quash
Appellant contends the trial court improperly found that he was not genuinely
ignorant of respondent’s true identity at the time he filed the complaint or, in the

2 Business and Professions Code section 17529.5 provides in relevant part:
“(a) It is unlawful for any person or entity to advertise in a commercial e-mail
advertisement either sent from California or sent to a California electronic mail address
under any of the following circumstances:
“(1) The e-mail advertisement contains or is accompanied by a third-party’s
domain name without the permission of the third party.
“(2) The e-mail advertisement contains or is accompanied by falsified,
misrepresented, or forged header information. This paragraph does not apply to truthful
information used by a third party who has been lawfully authorized by the advertiser to
use that information.
“(3) The e-mail advertisement has a subject line that a person knows would be
likely to mislead a recipient, acting reasonably under the circumstances, about a material
fact regarding the contents or subject matter of the message.”
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alternative, that he unreasonably delayed in filing and serving the amendment to the
complaint once he learned respondent’s true identity.
A. Trial Court Background
In a declaration filed in support of the motion to quash, respondent’s attorney
stated that after the original defendants in this case filed a motion for summary judgment,
their attorney filed a declaration in which he stated that DeWitt sent him an email on
February 6, 2013, containing an index with summary information of the 1,220 emails at
issue in the underlying action, and on February 7, DeWitt sent him an email with a single
file consisting of HTML code for the 1,220 emails. On March 11, DeWitt sent him an
email about a separate case, DeWitt v. Devry University, Inc., et al. (Super. Ct. Alameda
County, 2013, No. RG1263820 (Devry)), which attached an index with four columns
containing information about the emails at issue in the Devry case. The original
defendants’ attorney attached a copy of that index to his declaration.
In declarations in support of the motion to quash and the reply to appellant’s
opposition, respondent’s attorney further stated that he had reviewed the index containing
summary information about the 1,220 emails at issue in the underlying action, and at least
two of the emails were sent from “eHarmony Dating Partner,” with the following subject
line: “Join eHarmony and connect with singles at no cost.” In the body of both emails,
both of which were received by DeWitt before he filed his May 15, 2012 complaint, the
term “eHarmony” is mentioned five times. The emails also contain hyperlinks and a
mailing address the recipient may contact to opt out of receiving further emails from
eHarmony. In addition, respondent’s attorney had reviewed the index containing
information about the emails at issue in the Devry case, and had “located over one
hundred emails from eHarmony received by DeWitt prior to his filing of the May 15,
2012 Complaint.”
In a declaration filed in support of his opposition to the motion to quash, appellant
stated, “I first learned or discovered that some of the deceptive commercial emails
complained of in this action advertised the ‘Eharmony’ [sic] brand name while preparing
my document production responses to discovery requests propounded by the original
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named defendants in this action. This took place or occurred considerably after the May
2012 filing date of this action. The 100+ individual emails advertising the ‘Eharmony’
brand name were produced among or with some 20,000+ other spam emails produced to
the original defendants in this action.”
In its April 21, 2015 order granting respondent’s motion to quash, the trial court
stated, “The evidence submitted by Defendant establishes that Plaintiff was not truly
ignorant of Defendant’s identity at the time the Doe amendment [sic] was filed, as
required by [section] 474. The evidence shows that Plaintiff was aware that he had
received alleged Spam emails from Defendant in as early as March 2013. [Citation.]”
B. Legal Analysis
Pursuant to section 474, a plaintiff who is ignorant of a defendant’s identity may
“designate that defendant in a complaint by a fictitious name (typically, as a ‘Doe’), and
[] amend the pleading to state the defendant’s true name when the plaintiff subsequently
discovers it.[3]
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.]” (McClatchy v. Coblentz, Patch,
Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 371-372 (McClatchy).)
Section 474 is to be liberally construed. (Fuller v. Tucker (2000) 84 Cal.App.4th
1163, 1170 (Fuller).) “ ‘It is when [plaintiff] is actually ignorant of a certain fact, not
when [plaintiff] might by the use of reasonable diligence have discovered it. Whether
[plaintiff’s] ignorance is from misfortune or negligence, [plaintiff] is alike ignorant, and

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Section 474 provides in relevant part: “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 . . . .”
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this is all the statute requires.’ ” (Ibid.) Nonetheless, the “plaintiff’s ignorance of the
defendant’s name must be genuine (in good faith) and not feigned.” (Id. at p. 1172.)
We review a ruling made pursuant to section 474 for substantial evidence.
(McClatchy, supra, 247 Cal.App.4th at p. 373.)
Here, even assuming, as appellant asserts, respondent bore the initial burden of
producing evidence showing appellant was not ignorant of its identity, we conclude the
record contains substantial evidence supporting the trial court’s finding that appellant was
not truly ignorant of respondent’s identity when he filed his complaint in May 2012.4
Appellant stated, both in his opposition to the motion to quash and his opening
brief on appeal, the following: “The [c]omparatively modest 100+ emails that expressly
relate to the ‘EHarmony.com’ [sic] commercial brand name, and were sent to DeWitt
prior to the May 15, 2012, filing date, were present in and buried (or individually
chronologically strewn) amidst literally 20,000+ other unsolicited commercial emails he

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In its order granting the motion to quash, the court’s statement that the evidence
“establishes that Plaintiff was not truly ignorant of Defendant’s identity at the time the
Doe amendment was filed, as required by [section] 474” appears to contain a mistake.
(Italics added.) The court presumably meant to say “the complaint” rather than “the Doe
amendment,” given that taking the italicized language in the court’s order at face value
would make no sense: appellant obviously was aware of respondent’s identity when he
filed the amendment seeking to add it as a Doe defendant.
Moreover, even had the court not intended to refer to appellant’s knowledge at the
time the complaint was filed, “where the decision of a lower court is correct on any
theory of law applicable to the case, the judgment or order must be affirmed regardless of
the correctness of the grounds upon which the lower court reached its conclusion.
[Citation.]” (In re Conservatorship of Davidson (2003) 113 Cal.App.4th 1035, 1056; see
also Estate of Beard (1999) 71 Cal.App.4th 753, 777 [“In short, we will affirm a
judgment or order if it is correct on any theory of law applicable to the case, even if it is
right for the wrong reasons”], disapproved on another ground in Bernard v. Foley (2006)
39 Cal.4th 794, 816, fn. 14.) In light of our finding that the record contains substantial
evidence showing that appellant was aware of respondent’s identity at the time he filed
his original complaint, we need not address his alternative argument that he did not
unreasonably delay in filing and serving the amendment to the complaint after he learned
of respondent’s identity.
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received at the same time, were likely captured by and diverted to his separate spam filter
which is part of his gmail account services, remained unopened, and were then
transferred periodically en masse, amongst all of the other 20,000+ spam emails he
received (and later produced in this action), to another separate spam folder of Plaintiff’s
own creation (to prevent automatic 30-day deletions by Google/Gmail). [¶] The
‘EHarmony’ emails did not finally come to Plaintiff’s subjective notice or attention until
well into the document production phase of the discovery process against the original
named defendants in the case. And, in any event, based on his own direct memory of the
events, ‘EHarmony’ was simply in fact not on his subjective ‘radar screen’ for this action
at the time of the filing of the Complaint. [Citation.]”
Appellant’s statements demonstrate that before he filed the complaint in this
action, he had received all of the eHarmony emails in question, which he had periodically
moved—along with the other emails he considered to be Spam—from his Gmail folder to
a separate folder of his own creation, to prevent Google/Gmail’s automatic deletion of the
emails after 30 days. Moreover, the more than 100 eHarmony emails he preserved
expressly stated that the sender was eHarmony and many also included subject lines
containing the eHarmony name. Thus, there was no need to open and look at the body of
the emails to learn who had sent them.
Although appellant also transferred thousands of other emails to his separate Spam
folder, implicit in his deliberately moving the emails to his own separate folder was an
intent to preserve them for possible future litigation. In addition, the trial court could
reasonably infer that he necessarily perused the numerous emails in his folder to find the
emails that formed the basis of his complaints against the original defendants in this case
and, at the least, the six defendants in Devry (see DeWitt v. Devry University, Inc., et al.
(July 8, 2015) A142444 [non-pub. opn., affirming trial court’s grant of summary
judgment]), against all of which he also filed suit based on emails he received, allegedly
in violation of Business and Professions Code section 17529.5.
The trial court could reasonably find this evidence did not demonstrate genuine
ignorance on the part of appellant, but instead showed that he, at best, remained willfully
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ignorant of eHarmony’s identity at the time he filed his original complaint. (See Fuller,
supra, 84 Cal.App.4th at p. 1172.) This is thus not a case where appellant would have
had to use “reasonable diligence” to discover eHarmony’s true identity, which is not
required under section 474. (Fuller, at p. 1170.) Instead, he ignored the numerous
eHarmony emails in his Spam folder, which on their face, would have disclosed
respondent’s identity, and waited years, until after the original defendants were dismissed
from the action, to file the Doe amendment. (See McClatchy, supra, 247 Cal.App.4th at
p. 372; see also Irving v. Carpenter (1886) 70 Cal. 23, 26 [our Supreme Court explained,
some 130 years ago, that section 474 “was enacted to afford a remedy” in cases in which
“there is no means readily accessible of ascertaining the true names” of defendants].)
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Substantial evidence supports the trial court’s finding that appellant “ ‘knew or
reasonably should have known that he had a cause of action against’ ” respondent when
he filed his 2012 complaint. (McClatchy, at pp. 372-373.)
Accordingly, appellant may not use section 474 to avoid the statute of limitations
bar to obtaining liquidated damages in this case. (McClatchy, supra, 247 Cal.App.4th at
pp. 371-372; see also Bus. & Prof. Code, § 17529.5, subd. (b)(1)(B)(ii); Code Civ. Proc.,
§ 340, subd. (a).)
Appellant asserts that even if he was not ignorant of the true identity of respondent
when he filed the complaint, because his claim for actual damages was subject to a threeyear
statute of limitations that had not yet expired by the time he filed his amendment to
the complaint, he is not barred by section 474 from adding respondent as a Doe
defendant. (See § 338, subd. (a) [prescribing three-year statute of limitations period for

5 Appellant also waited nearly two additional years after document production
against the original defendants in this case, when he stated that he first became aware of
the eHarmony emails, to amend the complaint to add respondent as a Doe defendant.
This additional evidence of delay on appellant’s part further supports a finding that
appellant’s professed ignorance of respondent’s identity at the time he filed the complaint
was not genuine. (Cf. Woo v. Superior Court (1999) 75 Cal.App.4th 169, 179 [plaintiff’s
contention that she acted in good faith to comply with section 474 was undermined by
facts that she “made no effort to promptly identify [Doe defendant] and did not correctly
follow the section 474 amendment procedure”].)
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“[a]n action upon a liability created by statute, other than a penalty or forfeiture”].) In
support of this argument he cites Davis v. Marin (2000) 80 Cal.App.4th 380, 387 (Davis),
which involved a plaintiff who had filed an amendment to her complaint under section
474, but was not ignorant of the Doe defendant’s identity when she originally filed the
complaint. The appellate court concluded the amendment to the complaint was not
proper under section 474. However, because the applicable statute of limitations had not
yet expired when the plaintiff filed the amendment, “[t]he question of whether or not the
amendment ‘related back’ to the date the complaint was filed was irrelevant.” (Davis, at
p. 387.) The court therefore chose to treat the amendment to the complaint as an
amended complaint naming the Doe defendant as a defendant, since to do otherwise
“would elevate form over substance and ignore common sense.” (Ibid.)
In this case, appellant not only “knew or reasonably should have known” of
respondent’s identity before he filed his complaint (McClatchy, supra, 247 Cal.App.4th
at p. 372), the statute of limitations for liquidated damages under Business and
Professions Code section 17529.5, subdivision (b)(1)(B(ii) had expired by the time
appellant filed his Doe amendment. (See § 340, subd. (a); see also pt. II, post.) Given
this distinction from Davis, in which no statute of limitations had run when the plaintiff
filed her amendment, we decline to exercise our discretion to treat the amendment to the
complaint as an amended complaint naming respondent as a defendant, with respect to
any claims for actual damages that had not yet expired at the time appellant filed his
amendment. (See McClatchy, at p. 376 [appellate court affirmed trial court’s grant of
respondent’s motion to quash service of summons, but explained that “[a]ppellant is not
precluded from amending the petition to join the [respondent] as a named defendant in its
own right and to include causes of action for which the statute of limitations has not
run”], citing Davis, supra, 80 Cal.App.4th at p. 387; see also § 338, subd. (a).)
II. The One-Year Statute of Limitations
Appellant contends “this court should independently review, pursuant to its own
direct jurisdiction over this action, the question of whether a short, ‘one-year’ statute of
limitations, actually applies as a matter of law, to statutory consumer protection actions
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for ‘liquidated damages’ under [Business and Professions Code section 17529.5]
[citation], and conclude that it does not.”
Business and Professions Code section 17529.5, subdivision (b)(1)(B) provides
that a person or entity bringing an action for claims arising under the section “may
recover either or both of the following:
“(i) Actual damages.
“(ii) Liquidated damages of one thousand dollars ($1,000) for each unsolicited
commercial e-mail advertisement transmitted in violation of this section, up to one
million dollars ($1,000,000) per incident.” (Bus. & Prof. Code, § 17529.5, subd.
(b)(1)(B).)
“The ‘ “settled rule” ’ in California is that statutes which provide for damages that
are in ‘ “addition[] to actual losses incurred,” ’ [citation], or ‘not based upon actual
injury’ [citation], are generally ‘ “considered penal in nature [citations], and thus
governed by the one-year period of limitations stated in [former] section 340, subdivision
(1) [now subdivision (a)].” [Citation.]’. . . [Citation.]” (Hypertouch, Inc. v. ValueClick,
Inc. (2011) 192 Cal.App.4th 805, 842 (Hypertouch).)6
In Hypertouch, the Second
District Court of Appeal concluded that a claim for liquidated damages under Business
and Professions Code section 17529.5, subdivision (b)(1)(B)(ii) is subject to section
340’s one-year limitations period because such damages are penal in nature.
(Hypertouch, at p. 843.) As the court explained: “Because the liquidated damages
described in subdivision (b)(1)(B)(ii) [of Business and Professions Code section 17529.5]
are awarded in addition to plaintiff’s actual damages, and their amount has no apparent
connection to the injury suffered by the plaintiff, they are in the nature of a penalty.” (Id.
at p. 844.)

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Section 340, subdivision (a) provides a one-year statute of limitations for “[a]n
action upon a statute for a penalty or forfeiture, if the action is given to an individual, or
to an individual and the state, except if the statute imposing it prescribes a different
limitation.”
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We agree with the Hypertouch court’s analysis and find, in the present case, that
section 340’s one-year statute of limitations is applicable to appellant’s liquidated
damages claim under Business and Professions Code section 17529.5, subdivision
(b)(1)(B)(ii).
DISPOSITION
The order granting the motion to quash is affirmed. Costs on appeal are awarded
to respondent eHarmony.
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_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Stewart, J.
DeWitt v. Crazy Protocol Communications, Inc., et al. (A145469)