Dead Lawyer's Firm Is Not a Proper Doe

McClatchy v. Coblentz, Patch, Duffy & Bass, LLP, No. A144391 (D1d5 May 10, 2016)

Lawyer, since deceased, was the trustee of a trust to which Plaintiff was beneficiary. Way back in 2012—two years after Lawyer had already died—Plaintiff sued Lawyer for mismanaging the trust. He included several so-called does—allegedly unknown parties sued under fictitious names—as defendants. 

Two years into the case, Plaintiff moved under Code of Civil Procedure § 474 to substitute Lawyer’s Firm in for one of the fictitiously named defendants, based on the theory that he had just learned that Lawyer’ service as trustee was performed in his capacity as a partner of the Firm. The Firm moved to quash service, alleging that adding it as a doe was inappropriate because it was not properly named as a party in the complaint. According to the Firm, Plaintiff knew the essential facts giving rise to its alleged liability way back when he filed his case. Trial court agreed with the Firm and quashed service. The Court of Appeal affirms.

To amend to swap in a new defendant for a doe after the SOL has run, Plaintiff needs to show he was ignorant of the essential facts at the time he sued and named does. But here, there was substantial evidence that Plaintiff knew Lawyer was acting in partner capacity all along. Notably, for several years prior to the filing of the complaint, correspondence between Lawyer and Plaintiff came from Firm’s address, on its letterhead. Hard to say the trustee operation was freelance. So under the circumstances, substantial evidence supported the trial court’s ruling.

The court goes on to note that, because it is addressing only a motion to strike based on service, the Firm is not necessarily is the clear. Plaintiff can, if so inclined, get leave to amend to add the Firm, but to do so, Plaintiff will need some non-time barred claims to allege.

Affirmed.

Does Save Plaintiff's Day

Pierce v. San Mateo Cnty. Sheriff’s Dept., No. A138278 (D1d1 Dec. 31, 2014)

In an interesting opinion that explores the subtle distinctions between the Eleventh Amendment, the nebulous state sovereign immunity doctrine that is somehow atextually baked into the constitution, and the meaning of the word “person” in 42 U.S.C. § 1983, the court also addresses an interesting issue about doe defendants. Doe pleading is, of course, an established practice in California state court. See Cal. Code Civ. Proc. § 474. Here, the plaintiff sued a sheriff’s department. According to the California Supreme Court—which disagrees with the Ninth Circuit on the issue—a sheriff is an instrumentality of the state, not local government, and thus can’t be sued under § 1983 in an official capacity. But plaintiff also sued a bunch of individual deputies—whose names he didn’t know—as does. While the sheriff had a legit argument on demurrer that he should be dismissed as an arm of the state, that reasoning didn’t apply to the doe deputies. It was thus erroneous for the trial court to dismiss the case against the does based on the sheriff’s state actor arguments.

Reversed.