Filed 6/13/22 Escobedo v. County of San Benito CA6

Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

I. INTRODUCTION

Plaintiff Gabriel Escobedo filed a civil action against defendant County of San Benito and several Doe defendants. Plaintiff later filed an amendment to the complaint under Code of Civil Procedure section 474[1] substituting Ray Avila and Abraham Arrendondo for Does 1 and 2. Avila and Arrendondo filed a motion challenging the Doe amendments. The trial court granted the motion and dismissed the individual defendants after finding that plaintiff had unreasonably delayed in filing the Doe amendments and that the individual defendants were prejudiced as a result.

On appeal, plaintiff contends that the trial court erred in granting the individual defendants’ motion challenging the Doe amendments. For reasons that we will explain, we will reverse the judgment in favor of the individual defendants Avila and Arrendondo and remand the matter to the trial court with directions to deny the individual defendants’ motion challenging plaintiff’s Doe amendments to the complaint.

II. FACTUAL AND PROCEDURAL BACKGROUND

On May 9, 2017, plaintiff filed a civil complaint against the county and several Doe defendants alleging negligence for injuries he allegedly sustained after falling in his jail cell. According to the allegations in the complaint, water was leaking from the toilet in plaintiff’s cell, his walker skidded on the water, he lost his balance, and he fell on the floor.

The county answered the complaint and filed a motion for summary judgment. In response to the summary judgment motion, plaintiff filed a notice of “qualified nonopposition” on March 25, 2019. (Capitalization omitted.)

On April 2, 2019, two days before the scheduled hearing on the summary judgment motion, plaintiff filed a document entitled “Amendment to Complaint (CCP 474)” in which he substituted Avila and Arrendondo for Does 1 and 2. (Capitalization omitted.)

On April 4, 2019, the trial court filed an order granting the county’s motion for summary judgment.

Subsequently, the individual defendants, Avila and Arrendondo, filed a motion “to challenge and/or quash” plaintiff’s amendment to the complaint and to seek dismissal of the case against them. (Capitalization omitted.) The individual defendants contended that plaintiff unreasonably delayed in naming them as defendants and that they suffered prejudice as a result.

Plaintiff filed opposition to the motion. He argued that the only requirement for alleging a Doe defendant was that the plaintiff was ignorant of the defendant’s name. Further, the test regarding whether there was unreasonable delay in naming the Doe defendant only applied after the plaintiff learned the Doe defendant’s true identity. In this case, plaintiff contended that he had only begun to learn of the identities of the individual defendants in late March 2019, that he did not fully ascertain their identities until April 2, 2019, and that on the latter date, he filed an amendment to the complaint naming the individual defendants.

In a supporting declaration, plaintiff stated that he had slipped on water in his cell on March 30, 2016. The water had leaked from a combination toilet-sink fixture. Plaintiff stated that he first learned on March 21, 2019, that Ronnie Casarez had complained to jail personnel about a water leak in the cell when Casarez was housed there in or around January or February 2016. Prior to March 21, 2019, plaintiff did not know of any jail personnel who had received a complaint about the water leak.

Plaintiff’s counsel stated in a declaration that defendant county’s written discovery responses in 2017 indicated that plaintiff had been housed in the jail cell between March 27 and 30, 2016 before he fell, that county employees did not receive a complaint about a water leak in the cell, and that no county employee knew about a water leak in the cell. However, on March 19, 2019, plaintiff’s counsel took the deposition of a sheriff’s captain who testified that, according to jail records, jail personnel received a complaint on January 26, 2016, about the sink in the cell, and the complaint could have concerned a plumbing problem such as a leak. The records did not indicate whether the problem was repaired or addressed. The records did not contain any further entries about a plumbing problem before plaintiff’s fall. Plaintiff’s counsel conducted further investigation and located Casarez, who had been housed in the cell in January or February 2016. Casarez indicated that he had observed water leaking from the toilet-sink fixture and that he had complained to two correctional officers. Casarez could only recall one officer’s first name as “Ray” and the other officer’s last name as sounding like “Ordando.” The officers indicated that they would deal with the leak when they got around to it and, according to Casarez, they never got around to it. Plaintiff’s counsel determined on April 2, 2019, that two sheriff’s deputies working in the jail with names that apparently corresponded to Casarez’s statement were Ray Avila and Abraham Arrendondo. That same day, plaintiff’s counsel filed the amendment to the complaint substituting Avila and Arrendondo for Does 1 and 2.

In reply, the individual defendants contended that plaintiff unreasonably delayed in amending the complaint and that they were prejudiced by the delay in the amendment. First, defendants contended that plaintiff failed to explain how the sheriff captain’s testimony led to the identification of the inmate who had previously been in plaintiff’s cell, or why it was necessary to identify the inmate. Defendants argued that “[p]resumably” plaintiff learned that “someone may have previously” complained about the cell and then plaintiff decided to investigate whether someone had been housed in his cell prior to his fall. Defendants contended that plaintiff could have conducted this investigation prior to the sheriff’s captain’s deposition. Defendants also argued that the statement by the former inmate was “unreliable hearsay” and that plaintiff failed to confirm with the former inmate that the individual defendants were the correctional officers that the former inmate had spoken to. Defendants contended that “[t]he extreme passage of time has undoubtedly diminished the memories of [the former inmate]” and the individual defendants, and that “t would have been difficult for the [individual defendants] to recall whether they had a conversation with an inmate concerning a leaky sink in a cell a year before [p]laintiff’s [c]omplaint was filed.” Because the amendment was “undoubtedly unfair and unduly prejudicial,” defendants requested that plaintiff’s amendment under section 474 be dismissed or quashed.

1. [i]Timeliness of the Appeal

As we have set forth above, plaintiff filed a notice of appeal on February 14, 2020, regarding the “[j]udgment of dismissal under Code of Civil Procedure [s]ection 474.” He contends that the trial court erred in determining that he unreasonably delayed in amending the complaint to name Avila and Arrendondo as defendants.

Defendants contend that the appeal is not timely and that this court does not have jurisdiction to consider plaintiff’s claim of error regarding Avila and Arrendondo. Defendants argue as follows: (1) the order dismissing Avila and Arrendondo and the notice of entry of the order were filed and served in October 2019, (2) the October 2019 dismissal order constituted an appealable judgment pursuant to section 581d and rule 8.104(e) of the California Rules of Court,[2] and (3) plaintiff’s February 14, 2020 notice of appeal was not filed within 60 days of the notice of entry of the October 2019 dismissal order.

Plaintiff contends that the October 2019 order did not actually dismiss the individual defendants and that the order instead contemplated defendants submitting a proposed judgment dismissing the individual defendants. Plaintiff argues that his notice of appeal from the ensuing judgment was timely.

“If a notice of appeal is filed late, the reviewing court must dismiss the appeal.” (Rule 8.104(b).) “The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal. [Citation.]” (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.)

Pursuant to the California Rules of Court, an appellant must ordinarily file the notice of appeal on or before the earliest of the following dates: (A) “60 days after the superior court clerk serves . . . a document entitled ‘Notice of Entry’ of judgment”; (B) “60 days after . . . [being] served by a party with a document entitled ‘Notice of Entry’ of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service”; or (C) “180 days after entry of judgment.” (Rule 8.104(a)(1)(A)-(C).) As used in this rule, a “ ‘judgment’ includes an appealable order.” (Rule 8.104(e).)

Regarding the appealability of a dismissal order, section 581d states in relevant part: “All dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action and those orders when so filed shall constitute judgments and be effective for all purposes . . . .” In other words, an order of dismissal is considered a judgment when the order is (1) written, (2) signed by the court, and (3) filed in the action. (Ibid.) A dismissal order meeting these requirements is appealable. (See, e.g., Cox v. Superior Court (2016) 1 Cal.App.5th 855, 858 [trial court’s “order striking petitioner’s civil complaint was signed by the judge and filed, and had the effect of dismissing the action against the individually named defendants, and thus constitutes an appealable judgment”]; City of Los Angeles v. City of Los Angeles Employee Relations Bd. (2016) 7 Cal.App.5th 150, 157 [signed and filed minute order dismissing the case constituted appealable order].)

Further, when a defendant is dismissed by order pursuant to section 581d, the order is final and appealable as between the plaintiff and that defendant, even though the case may be left open as between other parties in the action. (Friendly Village Community Assn., Inc. v. Silva & Hill Constr. Co. (1973) 31 Cal.App.3d 220, 223, fn. 2 [dismissal order eliminating one defendant “is appealable even though the action is not terminated against the other defendants”]; see Katz v. Feldman (1972) 23 Cal.App.3d 500, 503, fn. 2.)

In this case, the trial court’s October 4, 2019 order stated, “Defendants RAY AVILA and ABRAHAM ARRENDONDO shall be dismissed with prejudice.” The order was (1) in writing, (2) signed, and (3) filed by the court. (See § 581d.) Plaintiff contends, however, that the October 2019 order did not actually dismiss the individual defendants and that the order instead contemplated defendants submitting a proposed judgment dismissing the individual defendants. In making this argument, plaintiff points to the language in the October 2019 order, which states that the individual defendants “shall be dismissed” followed by the sentence, “Defense counsel shall prepare and submit a Judgment to the Court.” Plaintiff contends that the phrase “shall be dismissed” contemplates dismissal in the future and, combined with the language directing defense counsel to submit a proposed judgment, suggests that the forthcoming judgment would actually effect the dismissal of the individual defendants. Plaintiff argues that the order was at least ambiguous in this regard.

Plaintiff’s construction of the October 2019 order is not unreasonable. In Eliceche v. Federal Land Bank Assn. of Yosemite (2002) 103 Cal.App.4th 1349 (Eliceche), the appellate court observed that “there is a difference between an order granting a motion to dismiss and an order of dismissal.” (Id. at p. 1359, fn. omitted.) In Eliceche, the trial court’s order stated: “ ‘the court grants the Motion for Discretionary Dismissal. [¶] It is hereby ordered that the case shall be dismissed. [¶] IT IS SO ORDERED.’ ” (Ibid.) In determining whether the subsequent appeal was timely, the appellate court stated, “The order seems to us somewhat ambiguous as to whether it is dismissing the case, or ordering that the case be dismissed by some subsequent order.” (Ibid., italics added.) Without deciding the issue, the appellate court assumed, as did the parties in that case, that the order effected a dismissal under section 581d and was therefore appealable. (Id. at p. 1360.)

The October 2019 order in this case contains identical language, stating that the individual defendants “shall be dismissed,” which is “somewhat ambiguous as to whether it is dismissing the case [against the individual defendants], or ordering that the case [against them] be dismissed by some subsequent order.” (Eliceche, supra, 103 Cal.App.4th at p. 1359.) Further, as plaintiff points out, the order’s subsequent sentence which directs defense counsel to submit a proposed judgment lends to the ambiguity regarding whether the October 2019 order intended to effect a dismissal. (Cf. Laraway v. Pasadena Unified Sch. Dist. (2002) 98 Cal.App.4th 579, 583 [order was appealable where “it contemplated no further action, such as the preparation of another order or judgment . . .”].)

Moreover, the ambiguity was created by defense counsel, who drafted both the order and the judgment. Defendants themselves could have avoided the ambiguity by using more precise language in their proposed order, such as by stating defendants “are dismissed” and indicating that a judgment would be prepared regarding only the remaining defendant county.

In addition, the California Supreme Court has “long . . . recognized a ‘well-established policy, based upon the remedial character of the right of appeal, of according that right in doubtful cases “when such can be accomplished without doing violence to applicable rules.” ’ [Citation.]” (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 113; accord Dhillon v. John Muir Health (2017) 2 Cal.5th 1109, 1115.) Under the circumstances of this case, where plaintiff’s interpretation of the October 2019 order as requiring the preparation of a judgment to effect the dismissal of the individual defendant is not unreasonable, we determine that the October 2019 order did not itself effect the dismissal of the individual defendants.

Lastly, plaintiff acknowledges that the subsequent December 2019 judgment does not expressly dismiss the individual defendants. The December 2019 judgment states: “Summary Judgment having been entered on April 4, 2019 against [plaintiff] and in favor of [d]efendant [county], and further motion to add new Defendants having been denied; NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that [plaintiff] shall take nothing from [county]. Judgment IS HEREBY ENTERED in favor of [county] and against [plaintiff]. [County] shall be entitled to recover costs to the extent permitted by law.” (Italics added.) Although the judgment does not expressly dismiss the individual defendants, in view of the fact that (1) the individual defendants were alleged to have been the agents and employees of defendant county, (2) a judgment was entered in favor of the county/employer, and (3) the judgment refers to the denial of adding the individual defendants, it may fairly be implied from the judgment that the individual defendants who plaintiff had attempted to substitute in as Doe defendants were dismissed from the action.

In sum, plaintiff’s interpretation of the October 2019 order as not effecting the dismissal of the individual defendants is not an unreasonable interpretation of the order. (See Eliceche, supra, 103 Cal.App.4th at p. 1359.) Further, in view of the fact that the ambiguity in the order was created by defendants themselves, and in view of the policy of resolving doubtful cases in favor of the right to appeal, we determine that plaintiff’s appeal from the subsequently entered judgment, which may reasonably be implied as dismissing the individual defendants, is timely.

2. Dismissal of Individual Defendants

As we set forth above, the individual defendants filed a motion challenging plaintiff’s amendment to the complaint which substituted Avila and Arrendondo in place of Does 1 and 2. The trial court granted the individual defendants’ motion “on the grounds that plaintiff unreasonably delayed in filing his Amendment to Complaint, and this delay resulted in specific prejudice to Defendants.”

On appeal, plaintiff contends that the trial court erred in determining that he unreasonably delayed in amending the complaint to name Avila and Arrendondo in place of the Doe defendants. Defendants contend that the court did not abuse its discretion in granting their motion.

Before analyzing the parties’ contentions, we first set forth general legal principles regarding the designation of an individual as a Doe defendant and the standard of review for a motion that challenges a Doe amendment.

1. General legal principles regarding a Doe defendant

“Section 474 permits a plaintiff to designate a defendant by a fictitious name when the plaintiff is ignorant of the true identity of the defendant. Once the plaintiff discovers the name of the defendant, he [or she] must amend the complaint accordingly. (§ 474.)^[[3]]” (Sobeck & Associates, Inc. v. B & R Investments No. 24 (1989) 215 Cal.App.3d 861, 867 (Sobeck).) “ ‘The purpose of . . . section 474 is to enable a plaintiff who is ignorant of the identity of the defendant to file his [or her] complaint before his [or her] claim is barred by the statute of limitations.’ ” (Streicher v. Tommy’s Electric Co. (1985) 164 Cal.App.3d 876, 882 (Streicher).)[4]

“[T]o claim the benefits of section 474, plaintiff’s ignorance of defendant’s true name must be genuine and not feigned. [Citations.]” (Streicher, supra, 164 Cal.App.3d at p. 882.) Further, the “plaintiff’s actual knowledge at the time the suit is filed is dispositive in triggering the application of section 474’s fictitious defendant provisions.” (Id. at p. 883, italics added.) “[T]here is no requirement under section 474 that plaintiff exercise reasonable diligence in discovering either the true identity of fictitious defendants or the facts giving him [or her] a cause of action against such persons after the filing of a complaint and up to the expiration of the applicable limitation period. [Citations.]” (Ibid.; accord, Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1170 (Fuller).)

Further, a “plaintiff does not relinquish [his or] her rights under section 474 simply because [he or] she has a suspicion of wrongdoing arising from one or more facts she does know. [Citations.]’ [Citation.] Code of Civil Procedure ‘[s]ection 474 allows a plaintiff in good faith to delay suing particular persons as named defendants until [plaintiff] has knowledge of sufficient facts to cause a reasonable person to believe liability is probable.’ [Citation.]” (Fuller, supra, 84 Cal.App.4th at p. 1172.)

However, “section 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.” (A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1066-1067, italics added (A.N.).) Unreasonable delay in this context “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.” (Id. at p. 1067; see Sobeck, supra, 215 Cal.App.3d at p. 869, discussing Barrows v. American Motors Corp. (1983) 144 Cal.App.3d 1 (Barrows); Winding Creek v. McGlashan (1996) 44 Cal.App.4th 933, 942.) Prejudice may be shown, for example, when a Doe defendant is brought into a case less than a month before trial. (A.N., supra, at p. 1068.)

2. Motion challenging a Doe amendment and the standard of review

“[A] defendant named in an action by a Doe amendment under section 474 may challenge the amendment by way of an evidence-based motion, which argues that the plaintiff ‘unreasonable delayed’ his or her filing of the challenged amendment.” (A.N., supra, 171 Cal.App.4th at p. 1067; see Barrows, supra, 144 Cal.App.3d at pp. 9-10.) A trial court’s ruling on a such a motion is “reviewed in much the same manner as a trial court’s ruling on a motion for leave to file an amended pleading.” (A.N., supra, at p. 1067.) “An order granting or denying leave to amend a pleading will not be disturbed absent a showing that the trial court abused its discretion. [Citation.] The test for abuse of discretion is whether the trial court’s decision is arbitrary, capricious or without basis in reason. [Citation.]” (Ibid.) “The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court’s ruling under review. The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712, fns. omitted; see Fuller, supra, 84 Cal.App.4th at p. 1169 [trial court’s factual findings under § 474 are reviewed for substantial evidence while its interpretation of § 474 is subject to de novo review].) In reviewing the trial court’s ruling, we observe that “courts have held that section 474 should be liberally construed [citation], particularly because such a construction also fosters this state’s fundamental philosophy that cases should be decided on their merits. [Citations.]” (Sobeck, supra, 215 Cal.App.3d at p. 867; accord, Barrows, supra, 144 Cal.App.3d at p. 7 [“courts have been very liberal in permitting the amendment of pleadings to bring in a defendant previously sued by fictitious name”].)

3. Analysis

Plaintiff contends that the trial court erred in determining that he unreasonably delayed in amending the complaint to name Avila and Arrendondo in place of Does 1 and 2. Plaintiff argues that there is no legal requirement that he exercise diligence in discovering the identity of a defendant. He further contends that it was not until the deposition of the sheriff’s captain in March 2019, followed by plaintiff’s counsel’s investigation, that he learned by April 2, 2019, the facts indicating the liability of the two individual defendants. Plaintiff thereupon filed the amendment naming Avila and Arrendondo on April 2, 2019.

We determine that the trial court erred in granting defendants’ motion challenging plaintiff’s Doe amendments.

First, as we have set forth above, section 474’s fictitious name provisions apply when a plaintiff is ignorant of the defendant’s true name at the time the lawsuit is filed. (Streicher, supra, 164 Cal.App.3d at p. 882.) “ ‘[S]ection 474 allows a plaintiff in good faith to delay suing particular persons as named defendants until [plaintiff] has knowledge of sufficient facts to cause a reasonable person to believe liability is probable.’ [Citation.]” (Fuller, supra, 84 Cal.App.4th at p. 1172.) Significantly, “there is no requirement under section 474 that plaintiff exercise reasonable diligence in discovering . . . the true identity of fictitious defendants . . . .” (Streicher, supra, at p. 883; accord, Fuller, supra, at p. 1170.)

In this case, plaintiff filed his complaint on May 9, 2017, alleging that he fell due to water that leaked from the toilet in his jail cell. In a declaration opposing defendants’ motion challenging his Doe amendments, plaintiff indicated that at the time the complaint was filed, he had no knowledge of any jail personnel receiving a complaint about a water leak before he fell. It was not until March 21, 2019, that he learned that a former inmate, Casarez, had complained about a water leak a few weeks prior to plaintiff slipping in the cell. Plaintiff’s unrebutted declaration thus established that at the time he filed his complaint in 2017, and until 2019, he was ignorant of “ ‘sufficient facts to cause a reasonable person to believe liability [was] probable’ ” as to any jail personnel, let alone as to Avila and Arrendondo. (Fuller, supra, 84 Cal.App.4th at p. 1172.)

Further, although “a plaintiff may not ‘unreasonably delay’ his or her filing of a Doe amendment after learning a defendant’s identity” (A.N., supra, 171 Cal.App.4th at pp. 1066-1067, italics added), the unrebutted evidence in this case reflects that plaintiff did not unreasonably delay in filing his Doe amendments after learning of the identities of Avila and Arrendondo. Plaintiff’s counsel explained in a declaration that the defendant county in written discovery in 2017, denied that an employee knew about a water leak in the cell. It was not until March 19, 2019, when plaintiff’s counsel deposed the sheriff’s captain, that plaintiff’s counsel learned about jail records showing that a complaint had earlier been made about the sink in the cell. Upon further investigation, plaintiff’s counsel located the former inmate, Casarez, who confirmed that he had observed water leaking from the toilet-sink fixture, that he had complained to two correctional officers about it, and that those officers apparently did not get the leak fixed. After determining on April 2, 2019, that two sheriff’s deputies, Avila and Arrendondo, worked at the jail and had names similar to the partial names provided by the former inmate, plaintiff’s counsel that same day filed the amendment to the complaint substituting Avila and Arrendondo for Does 1 and 2. Plaintiff’s counsel’s unrebutted declaration thus established that the Doe amendments were timely filed upon discovery of Avila’s and Arrendondo’s names.

We are not persuaded by defendants’ arguments that plaintiff’s Doe amendments were improper.

First, defendants argue that “the evidence presented was dubious that [plaintiff] was generally ignorant of the identity of . . . Avila and Arrendondo.” Defendants argue that plaintiff was a “longtime resident” of the jail and “presumably knew most or all of the correctional deputies at this small county [j]ail.” Defendants further contend that “[v]ery little information” was provided by the former inmate Casarez and “how [he] supposedly supplied the names of the two correctional deputies.” Further, the jail records reflect that it was a different deputy who made the entry in the records regarding the sink in the cell. Defendants contend that, “[o]ther than the rank hearsay comment by [the former inmate] Casarez, there is no information supplied by [plaintiff] of how [the individual defendants’] conduct implicate anything that happened to [plaintiff] on March 30, 2016, or why they were not named sooner.”

Defendants’ arguments are not supported by citations to relevant evidence. For example, defendants do not cite to any evidence establishing that plaintiff had been at the jail a long time and knew most of the deputies who worked there. Further, even if plaintiff knew all the deputies when he filed his lawsuit, there did not appear to be a basis for him to conclude at the time the lawsuit was filed that someone at the jail was subject to liability for the leaky sink until he later received information about a former inmate making a complaint about the sink to certain correctional officers. Regarding plaintiff’s counsel’s declaration describing the information he learned from the former inmate and counsel’s subsequent investigation leading to the identification of Avila and Arrendondo, defendants fail to cite to evidence that would discredit plaintiff’s counsel’s declaration. For example, the fact that a different correctional officer made the entry in the jail records regarding the sink does not necessarily rebut the former inmate’s statement that he originally made a complaint about the sink to two officers later determined to be Avila and Arrendondo.

Second, defendants contend that a complaint may be amended only if the delay in seeking the amendment has not misled or prejudiced the adverse party, and that in this case, they were prejudiced by plaintiff’s delay. In support of this argument, defendants cite Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565, and Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 486-488. Neither case, however, addresses the legal requirements for Doe amendments under section 474, which, as we have set forth above, requires timeliness or lack of prejudice only after the plaintiff has learned the identity of the defendant. (See, e.g., A.N., supra, 171 Cal.App.4th at pp. 1066-1067.) Further, as we have explained, the unrebutted declarations from plaintiff and his counsel established that the Doe amendments were timely filed upon plaintiff and his counsel’s discovery of Avila’s and Arrendondo’s identities.

Third, defendants contend that plaintiff’s Doe amendments were procedurally defective because plaintiff failed to seek leave of court before filing the amendments. Under these circumstances, defendants argue that the trial court had the discretion on its own to strike the amendment pursuant to section 436.[5] Nothing in the record indicates, however, that the trial court, in granting defendants’ motion, relied on or was otherwise exercising its discretion under section 436. Further, defendants never raised this purported procedural defect below. Instead, defendants expressly challenged the Doe amendments “by way of an evidence-based motion” pursuant to A.N., supra, 171 Cal.App.4th at page 1067. As defendants below challenged only the substance of the Doe amendments, not the procedure by which plaintiff made the amendments, and the trial court similarly considered only the substance, but not the procedure, of the amendments, we decline to consider whether plaintiff followed the proper procedure in filing the amendments.[6]

Fourth, defendants contend that, because the trial court found that plaintiff had no evidence that the defendant county had actual or constructive notice of the condition and consequently granted summary judgment in the county’s favor, plaintiff is “likewise bar[red]” from pursuing any action against the county’s employees, including the individual defendants. In making this contention, defendants reason that notice to the county about a dangerous condition “could have only been imparted through its employees” and cite various authorities in support of this proposition. While we do not disagree with the general proposition that notice to the county is imparted through its employees, defendants fail to provide any legal authority to support the proposition that once summary judgment is granted in the county’s favor, no civil action may subsequently be pursued against its employees. In the absence of relevant legal authority, we express no opinion on the merits of plaintiff’s civil complaint against the individual defendants.

In sum, the unrebutted evidence before the trial court established that (1) plaintiff was ignorant of the identities of the individual defendants at the time plaintiff filed his civil complaint on May 9, 2017, and (2) the Doe amendments were thereafter timely filed upon plaintiff and his counsel’s discovery of the individual defendants’ identities on April 2, 2019. We therefore determine that the trial court erred in granting defendants’ motion challenging the Doe amendments. We will remand the matter with directions to deny the motion.

IV. DISPOSITION

The judgment of dismissal in favor of defendants Ray Avila and Abraham Arrendondo is reversed. The matter is remanded to the trial court with directions to (1) vacate the court’s order granting defendants Avila and Arrendondo’s motion challenging and/or quashing plaintiff’s Doe amendments to the complaint and (2) enter a new order denying the motion.

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

DANNER, J.

WILSON, J.

Escobedo v. County of San Benito et al.

H047882

[1] All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

[2] All further rule references are to the California Rules of Court.

[3] Section 474 states in part: “When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, . . . and when his true name is discovered, the pleading or proceeding must be amended accordingly . . . .”

[4] As explained by the California Supreme Court, “[w]hile ignorance of the existence of an injury or cause of action may delay the running of the statute of

(continued)

limitations until the date of discovery, the general rule in California has been that ignorance of the identity of the defendant is not essential to a claim . . . . [Citations.]” (Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 932.)

[5] Section 436 states: “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. [¶] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”

[6] Plaintiff also points out that, according to a practice guide, the trial courts are not uniform in requiring a court order before a Doe amendment may be filed.