1
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
A146626
(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
IAC/InterActiveCorp (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),
2
as well as derivative claims for negligence and declaratory relief. The
original defendants were subsequently dismissed from the action with prejudice.
On November 19, 2014, the trial court issued a continued order to show cause,
ordering appellant to show cause by January 27, 2015 “why this action should not be
dismissed or why sanctions should not be imposed for failure to: [¶] Amend Complaint
OR dismiss DOES 1-100.” On January 28, 2015, appellant filed an amendment to the
complaint to add respondent as a Doe defendant, and served respondent with the
summons on April 23. Appellant subsequently informed respondent’s general counsel
that “ ‘IAC’s liability in this matter arises out of the promotion of its “Match.com”
business and related brands via spam emails violative of’ ” the Anti-Spam Act.
On May 26, 2015, respondent filed a motion to quash service of summons, which
the trial court granted on September 18. Notice of entry of order was filed on September
22.

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.”
3
On October 26, 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
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 declarations filed by respondent’s former attorney and the original defendants’
attorney, the latter filed as an exhibit to respondent’s counsel’s declaration in support of
the motion to quash, they stated that after the original defendants in this case filed a
motion for summary judgment, appellant sent their attorney an email on March 11, 2013,
about a separate case, DeWitt v. Devry University, Inc., et al. (Super. Ct. Alameda
County, 2013, No. RG1263820 (Devry)), to which he attached an index with four
columns containing information about the emails at issue in the Devry case.
Respondent’s attorney had reviewed the index containing the emails at issue in the Devry
case; over 300 of them were from Match.com and Match.com “ ‘related brands,’ ” and
were received by appellant before he filed his May 15, 2012 complaint in the underlying
action.
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 ‘Match.com’ brand name (and related brand
names bearing no obvious relationship to the ‘IAC/Interactivecorp’ corporate name, or
main ‘Match.com’ brand name for that matter) while preparing my document production
responses to discovery requests propounded by the original named defendants in this
action. This took place or occurred considerably after the May 15, 2012 filing date of
this action. The 300+ individual emails advertising the ‘Match.com’ (and associated
brand names) were produced among or with some 20,000+ other spam emails produced
to the original defendants in this action.
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“Sometime after discovering that the ‘Match.com’ brand name had been
advertised in some of the spam emails I had received, I then separately discovered or
confirmed through independent research that ‘IAC/Interactivecorp’ (the moving-party
defendant here) was the true name or identity of the ultimately responsible owner of the
‘Match.com” and associated commercial brands. I confirmed the true corporate name
and identity of ‘IAC/Interactivecorp’ through a business search conducted on the
Secretary of State of California’s website maintained for that purpose.”
In its September 18, 2015 order granting respondent’s motion to quash, the trial
court explained its reasoning as follows: “Here, under the California Anti-Spam Act
(‘CASA’), there is a one-year statute of limitations on claims for liquidated damages.
[Citation.] Therefore, the court must examine whether Plaintiff could properly utilize
[section] 474. The facts demonstrate that he could not.” The court found that appellant
“has not established that he was genuinely ignorant of IAC at the time of filing the
complaint. Even if he was genuinely ignorant at the time he filed the Complaint, Plaintiff
‘bec[a]me aware of IAC’s “Match.com” brand name/involvement in this matter’ in
March 2013 at the latest,” and then “delayed adding IAC for almost two years . . . .” The
court concluded, “Plaintiff cannot use [section] 474 to avoid the statute of limitations bar
to liquidated damages here because [section] 474 can only be used ‘when he [or] she is
ignorant of the identity of the defendant.’ [Citation.] He was not.”
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

3
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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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
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.
Appellant stated, both in his opposition to the motion to quash and his opening
brief on appeal, the following: “The [c]omparatively modest 200+ emails that expressly
relate to the ‘Match.com’ and related commercial brand names, 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
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 ‘Match’
emails did not finally come to Plaintiff’s subjective notice or attention until well into the
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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,
‘Match’ and related brandnames [sic] were simply in fact not on his subjective ‘radar
screen’ for this action at the time of the filing of the Complaint. [Citation.]”
Similarly, at the hearing on the motion to quash, he asserted that he “was truly
ignorant. I had a large set of 15 to 20,000 spam e-mails, and I had to get the case started
so I found two defendants, and I sued them. The rest of these other 20,000, I didn’t go
through before I filed the case. It’s totally reasonable. [¶] The way they come in is they
come in individually. Mostly they get diverted to a spam filter. They remain unopen[ed].
There’s no occasion for me to even open them. And then I discovered them later in the
process of discovery. So it’s very understandable as to why I was truly ignorant at the
time of the filing.”
Appellant’s statements demonstrate that before he filed the complaint in this
action, he had received all of the Match.com 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. 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 reasonably found this evidence did not demonstrate genuine
ignorance on the part of appellant, but instead showed that he, at best, remained willfully
ignorant of respondent’s identity at the time he filed his original complaint. (See Fuller,
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supra, 84 Cal.App.4th at p. 1172.) This is thus not a case in which appellant would have
had to use “reasonable diligence” to discover respondent’s true identity, which is not
required under section 474. (Fuller, at p. 1170.) Instead, he ignored the numerous
Match.com emails in his Spam folder, which on their face, would have readily led to the
discovery of respondent’s identity,4
and waited years, until after the original defendants
were dismissed from the action and the court issued an order to show cause, 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].)5
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 one-year 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 three-

4 Given that appellant had in his possession emails containing the Match.com
name and that he merely had to conduct a search on the Secretary of State’s website to
confirm respondent’s name, he had a “readily accessible means of ascertaining” the
defendant’s “true name[]” in this case. (Irving v. Carpenter, supra, 70 Cal. at p. 26.)
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 Match.com 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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year 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
“[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 had not been 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), which
precludes him from relying on section 474 to come within the statute of limitations for
such damages. 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
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limitations has not run”], citing Davis, supra, 80 Cal.App.4th at p. 387; see also § 338,
subd. (a).)6

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
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,

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In light of our conclusion that substantial evidence supports the trial court’s order
granting the motion to quash, we need not address respondent’s alternative argument,
apparently first raised on appeal, that the original complaint failed to state a cause of
action against the Doe defendants because it included “only generic charges of
wrongdoing without any specific factual allegations to support them.” (See Davaloo v.
State Farm Ins. Co. (2005) 135 Cal.App.4th 409, 416 [“a plaintiff who files a complaint
containing no operative facts at all cannot subsequently amend the pleading to allege
facts and a theory of recovery for the first time and claim the amended complaint should
be deemed filed as of the date of the original, wholly defective complaint”].)
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Inc. (2011) 192 Cal.App.4th 805, 842 (Hypertouch).)7
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.)
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.

7
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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_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Stewart, J.
DeWitt v. Crazy Protocol Communications, Inc., et al. (A146626)