Preview
1 Todd A. Jones (Bar No. 198024)
tj ones@archemorris .com
2 Gregory K. Federico (BarNo. 242184)
gfederico@archemorris.com
3 ARCHERNORRIS
A Professional Law Corporation
4 655 University Avenue, Suite 225
Sacramento, Califomia 95825-6747
5 Telephone: 916.646.2480
Facsimile: 916.646.5696
6
Attomeys for Defendant
7 R4C0RP, INC., a Califomia Corporation
8
SUPERIOR COURT OF CALIFORNIA
9
COUNTY OF SACRAMENTO
10
11
RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
12 ABBOTT,
MEMORANDUM OF POINTS AND
13 Plaintiffs, AUTHORITIES IN SUPPORT OF
MOTION TO QUASH/STRIKE/DISMISS
14 V. SERVICE AMENDED SUMMONS A
DOE AMENDMENT
15 RONALD PAUL BRITSCHGI, et al..
Date: October 29,2010
Time: 2:00 p.m. !ES-;'4^
16 Defendants.
Dept: S3
17
Action Filed: September 24, 2007
18
AND RELATED CROSS-ACTIONS
19
20 I.
INTRODUCTION
21
22 This matter is a constmction defect suit brought by the owner^uilder FLORENTINE
23 ABBOTT and her husband RODNEY ABBOTT, with respect to the constraction oftheir single
24 family residence at 8601 Rolling Green Way in Fair Oaks, Sacramento County, Califomia.
25 ABBOTT hired Defendant RONALD PAUL BRITSCHGI ("BRITSCHGI") as the general
26 contractor for all constmction through framing. On October 25, 2005, ABBOTT signed a written
27 contract with Defendant RICHARD K. RUYBALID dba CA CONSTRUCTION, a sole
28 proprietorship (hereinafter "CA CONSTRUCTION") whereby CA CONSTRUCTION would
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH/STRIKE/DISMISS
1 supply and install the concrete foundation and garage slab per plans and specifications provided
2 by ABBOTT. RUYBALID is the sole corporate officer of Moving Party/Defendant R4C0RP,
3 INC., which was not organized under the laws ofthe State ofCalifornia until March 21 2006.
4 almost five (5) months after the ABBOTT/CA CONSTRUCTION contract was executed (See
5 Declaration of Richard Ruybalid, attached hereto and incorporated by reference herein; Exhibit-
6 A; See Request for Judicial Notice, Exhibit-A, filed concurrently herewith). R4C0RP was not a
7 party to the contract between ABBOTT and CA CONSTRUCTION or between ABBOTT and
8 any other party to this iawsuit.(See Decl. of Ruybalid, ^ s 4 and 5).
9 PLAINTIFFS allege, among other things, that BRITSCHGI and CA CONSTRUCTION
10 failed to properly place the house and garage on the lot, particularly with regard to the elevation,
11 as called for pursuant to the plans and specifications and as requested by FLORENTINE
12 ABBOTT. In addition, PLAINTIFFS allege that BRITSCHGI and CA CONSTRUCTION
13 breached their respective contracts, failed to comply with apphcable building codes, and failed to
14 comply with the standard of care within the relevant industry. More recently, PLAINTIFFS
15 allege that the fill and soils beneath the garage slab, and potentially the house, were improperly
16 compacted.
17 PLAINTIFFS filed their original complaint on September 24,2007 against BRITSCHGI
18 and CA CONSTRUCTION (See Declaration of Gregory Federico, Exhibit-A). PLAINTIFFS'
19 original complaint alleged various tort and contract claims related to the constmction of
20 PLAINTIFFS' home.
21 On July 23, 2009, Plaintiffs filed a First Amended Complaint ("FAC") which added
22 personal mjury claims for mold exposure, new factual allegations and causes of action against
23 BRITSCHGI and CA CONSTRUCTION, and two new parties: Defendant MARK SMITH, an
24 individual domg business as GROUNDBREAKERS (hereinafter "SMITH") and
25 CONSTRUCTION TESTING & ENGINEERING, INC.' (hereinafter "CTE") SMITH was hired
26 by PLAINTIFFS and provided grading and earth movement for the subject property.
27 PLAINTIFFS' hired and paid CTE to perform the soil/compaction tests on the subject property
28 (See Declaration of Federico, Exhibit-B.)
2
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH/STRIKE/DISMISS
1 On December 4, 2009, Plaintiffs filed a Second Amended Complaint ("SAC").(See
2 Declaration of Federico, Exhibit-C). Nowhere in the original complaint, the FAC or the SAC is
3 defendant/Moving Party R4C0RP named as a direct defendant. On May 11, 2010, Plaintiff
4 improperly served the part-time bookkeeper for R4C0RP, INC with a 'DOE' Amendment to the
5 SAC, which named defendant/Moving Party R4C0RP, INC. (See Declaration of Ruybalid, ^ 8).
6 Mr. Ruybahd, as the authorized agent for R4C0RP., INC., has never been personally served with
7 PLAINTIFFS' Amended Summons, Amendment to Second Amended Complaint, and Second
8 Amended Complaint. (See Declaration of Ruybalid, ^14)
9 R4C0RP now moves this Court to Quash and Strike the improperly served DOE
10 Amendment and surmnons and complaint.
11 II.
12 ARGUMENT
13 A. PLAINTIFF'S ATTEMPTED SERVICE OF THE "DOE" AMENDMENT UPON
THE PART-TIME BOOKKEEPER WAS IMPROPER, IS VOID AND DOES NOT
14 IMPOSE PERSONAL JURISDICTION UPON R4CORP, INC.
15 In order for the Court to obtain jurisdiction over a defendant, an authorized method of
16 service needs to be properly utilized. Sternbeck v. Buck (1957) 148 Cal.App.2d, 829, 307 P.2d
17 970, 972. Effecting service upon a corporation requires delivery ofthe summons and complaint
18 to some person on behalfofthe corporation. Califomia Code ofCivil Procedure § 416.10
19 provides that a summons may be served on a coiporation by delivering a copy ofthe summons
20 and complaint to: (\) the person designated as agentfor service of process; (2) an officer ofthe
21 corporation, or (3) aperson authorized by the corporation to receive service of process.
22 In the instant case, PLAJNTIFFS failed to properly effect service upon R4C0RP, INC.
23 PLAINTIFFS served the part-time bookkeeper, Nani Keeshan. PLAINTIFFS did not serve of
24 Richard Ruybahd, who is the authorized agent for service of process for R4C0RP. The part-time
25 bookkeeper, at the time of attempted service, was neither designated as agent, an officer ofthe
26 corporation nor a person authorized by the corporation to receive service of process, as required
27 by CCP 416.10 (See Declaration of Keeshan, f s 5-7; Decl of Ruybalid, T 10-13).
28 For the foregoing reasons, PLAINTIFFS' attempted service upon the part-time
3
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH/STRIKE/DISMISS
1 bookkeeper of R4C0RP, INC. is void and of no effect. R4C0RP, INC. requests that this Court
2 issue an order quashmg service of Summons on the ground of lack of personal jurisdiction.
3 B. THE COURT HAS DISCRETIONARY AUTHORITY TO DISlVnSS THE
ATTEMPTED DOE AMENDMENT FOR FAILURE TO FILE WITHIN TWO (2)
4 YEARS OF THE FILING OF THE COMPLAINT PURSUANT TO CCP §
583.420(a)(1)
Assuming, arguendo, that this Court finds that service on R4C0RP, INC. was proper,
6
PLAINTIFFS still failed to timely serve the "DOE" Amendment on R4C0RP within two (2)
7
years ofthe conimencement ofthe action, in violation of CCP § 583.420(a)(1).
8
CCP § 583.420(a) (1) states in pertment part,
9
(a) The court may not dismiss an action pursuant to this article for
10 delay in prosecution except after one ofthe following conditions
has occurred:
11
(1) Service is not made within two years after the action is
12 commenced against the defendant...
13 The chronology ofthis case manifestly demonstrates the dilatory tactics ofPLAINTIFFS
14 in naming R4C0RP, Inc. as a direct defendant.
15 (1) PLAINTIFFS filed their origmal complaint on September 24,2007 against
16 BRITSCHGI and RICHARD RUYBALID, dba CA CONSTRUCTION (See Declaration of
17 Federico, Exhibit-A). PLAINTIFFS' original complaint alleged various tort and contract claims
18 related to the construction of PLAINTIFFS' home.
19 (2) On November 10,2008, CA CONSTRUCTION served its verified responses to
20 PLAINTIFFS' Form Interrogatories, Set One, on PLAINTIFFS' counsel. In response to Form
21 hiterrogatory No. 3.1, CA CONSTRUCTION identified the fact that it had done business as
22 R4C0RP, INC. smce July 17,2006 to present (See Declaration of Federico, Exhibit-E). At least
23 as early as November 10. 2008. PLAINTIFFS had knowledge ofthe existence ofR4CORP. Inc.
24 but chose not to name this corporation as a direct defendant
25 (3) May 11, 2009 was the first scheduled trial date in this matter. The trial was continued
26 (4) On July 23,2009, PLAINTIFFS filed a First Amended Complaint ("FAC") which
27 added personal mjury claims for mold exposure, new factual allegations and causes of action
28 against BRITSCHGI and CA CONSTRUCTION, and two new parties, SMITH and CTE.
4
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH/STRIKE/DISMISS
1 R4C0RP, Inc. was not named. (See Declaration of Federico, Exhibit-B.)
2 (5) On December 4,2009, PLAINTIFFS filed a Second Amended Complaint ("SAC").
3 Again, R4C0RP, Inc. was not named (See Declaration of Federico, Exhibit-C).
4 (6) Richard Ruybalid dba CA Constmction filed for Chapter 13 bankmptcy in the United
5 States Bankmptcy Court, Eastem District ofCalifomia on Febmary 18,2010 in Case No. 2010-
6 23787 (See Request for Judicial Notice - Exhibit-B, filed concurrentiy herewith).
7 (7) The 'DOE' Amendment as to R4C0RP, hic. was improperly served on R4C0RP,
8 INC. on May 11,2010.
9 The 'DOE' amendment was not served until May 11,2010, more than 546 days after
10 PLAINTIFFS first leamed ofthe existence of R4C0RP, INC. via verified responses to form
11 interrogatories. (See Declaration of Federico, Exhibit-E). It is abundantly clear that
12 PLAINTIFFS have only named R4C0RP, INC. since the origmahy named defendant,
13 Mr. Ruybalid, has filed for bankmptcy. PLAINTIFFS have no basis in fact to name R4C0RP,
14 INC. and are attempting by this "hail-mary" maneuver to fmd a deep-pocket somewhere to take
15 to trial.
16 It is anticipated that PLAINTIFFS will attempt to claim that they were "ignorant" ofthe
17 tme identity of R4C0RP, Inc., which based on the estabhshed facts ofthis case, is impossible.
18 When a plaintiff is "ignoranf of the tme name or identity of a defendant, he or she may designate
19 such defendant "by any name" pending amendment of the pleading" when his tme name is
20 discovered."(CCP § 474) The purpose ofthis statute is to allow a plaintiff ignorant ofa
21 defendant's identity to file suit before plaintiffs claim is barred by the statute of limitation (Clark
22 V. Stabond Corp. (1987)197 Cal.App.3d 50, 56, citing Barrows v. American Motors Corp.(1983)
23 144 Cal. App.3d 1,7). The doctrine of "relation back" cannot be applied to this attempted "DOE"
24 Amendment as PLAINTIFFS had actual knowledge ofthe existence of R4C0RP, Inc. more than
25 546 days before they attempted to serve R4C0RP, INC. Indeed, the discretionary dismissal
26 autiiority given the court under CCP § 583.420 is not limited in any way by CCP § 474 and CCP
27 § 583.420 speaks to "all defendants," notjust named defendants. (Id at pp. 56 & 58).
28
5
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH/STRIKE/DISMISS
1 C. R4C0RP, INC. WILL SUFFER ACTUAL PREJUDICE SHOULD THE "DOE"
AMENDMENT BE AUTHORIZED.
Should R4C0RP, INC. be forced to defend the claims as set forth in the SAC, it will
suffer actual prejudice. It is impossible for this Court or R4C0RP, INC., to determine which
cause ofaction applies to R4C0RP, INC. since all causes ofaction are pled against specifically
named defendants with no allegations naming "DOES" (See Demurrer of R4C0RP, INC. filed
concurrently herewith). Indeed, R4C0RP, INC. was not a party to any ofthe contracts referenced
by plaintiffs in any iteration oftheir complaint. Moreover, PLAINTIFFS are in a unique position
m that they have specific knowledge that they have no contractual privity with R4C0RP, INC.
R4C0RP, INC. was not a party to the constmction contract at issue herein and performed no
work at PLAINTIFFS' home. This information is clearly within the unique knowledge ofthe
PLAINTIFFS, further demonstrating that this 'DOE' Amendment is a sham pleading.
ra.
CONCLUSION
For the foregoing reasons, R4C0RP, INC. respectfully requests tiiat this court grant this
Motion to Quash, Stiike and Dismiss the DOE amendment as to R4C0RP, INC.
18
19 A,KWT-^
Gregory K. Federico
20 Attomeys for Defendant R4C0RP, INC., a
Cahfomia Corporation
21
22
23
24
25
26
27
28
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH/STRIKE/DISMISS
Preview
1 Todd A. Jones (Bar No. 198024) tj ones@archemorris .com 2 Gregory K. Federico (BarNo. 242184) gfederico@archemorris.com 3 ARCHERNORRIS A Professional Law Corporation 4 655 University Avenue, Suite 225 Sacramento, Califomia 95825-6747 5 Telephone: 916.646.2480 Facsimile: 916.646.5696 6 Attomeys for Defendant 7 R4C0RP, INC., a Califomia Corporation 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 12 ABBOTT, MEMORANDUM OF POINTS AND 13 Plaintiffs, AUTHORITIES IN SUPPORT OF MOTION TO QUASH/STRIKE/DISMISS 14 V. SERVICE AMENDED SUMMONS A DOE AMENDMENT 15 RONALD PAUL BRITSCHGI, et al.. Date: October 29,2010 Time: 2:00 p.m. !ES-;'4^ 16 Defendants. Dept: S3 17 Action Filed: September 24, 2007 18 AND RELATED CROSS-ACTIONS 19 20 I. INTRODUCTION 21 22 This matter is a constmction defect suit brought by the owner^uilder FLORENTINE 23 ABBOTT and her husband RODNEY ABBOTT, with respect to the constraction oftheir single 24 family residence at 8601 Rolling Green Way in Fair Oaks, Sacramento County, Califomia. 25 ABBOTT hired Defendant RONALD PAUL BRITSCHGI ("BRITSCHGI") as the general 26 contractor for all constmction through framing. On October 25, 2005, ABBOTT signed a written 27 contract with Defendant RICHARD K. RUYBALID dba CA CONSTRUCTION, a sole 28 proprietorship (hereinafter "CA CONSTRUCTION") whereby CA CONSTRUCTION would MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH/STRIKE/DISMISS 1 supply and install the concrete foundation and garage slab per plans and specifications provided 2 by ABBOTT. RUYBALID is the sole corporate officer of Moving Party/Defendant R4C0RP, 3 INC., which was not organized under the laws ofthe State ofCalifornia until March 21 2006. 4 almost five (5) months after the ABBOTT/CA CONSTRUCTION contract was executed (See 5 Declaration of Richard Ruybalid, attached hereto and incorporated by reference herein; Exhibit- 6 A; See Request for Judicial Notice, Exhibit-A, filed concurrently herewith). R4C0RP was not a 7 party to the contract between ABBOTT and CA CONSTRUCTION or between ABBOTT and 8 any other party to this iawsuit.(See Decl. of Ruybalid, ^ s 4 and 5). 9 PLAINTIFFS allege, among other things, that BRITSCHGI and CA CONSTRUCTION 10 failed to properly place the house and garage on the lot, particularly with regard to the elevation, 11 as called for pursuant to the plans and specifications and as requested by FLORENTINE 12 ABBOTT. In addition, PLAINTIFFS allege that BRITSCHGI and CA CONSTRUCTION 13 breached their respective contracts, failed to comply with apphcable building codes, and failed to 14 comply with the standard of care within the relevant industry. More recently, PLAINTIFFS 15 allege that the fill and soils beneath the garage slab, and potentially the house, were improperly 16 compacted. 17 PLAINTIFFS filed their original complaint on September 24,2007 against BRITSCHGI 18 and CA CONSTRUCTION (See Declaration of Gregory Federico, Exhibit-A). PLAINTIFFS' 19 original complaint alleged various tort and contract claims related to the constmction of 20 PLAINTIFFS' home. 21 On July 23, 2009, Plaintiffs filed a First Amended Complaint ("FAC") which added 22 personal mjury claims for mold exposure, new factual allegations and causes of action against 23 BRITSCHGI and CA CONSTRUCTION, and two new parties: Defendant MARK SMITH, an 24 individual domg business as GROUNDBREAKERS (hereinafter "SMITH") and 25 CONSTRUCTION TESTING & ENGINEERING, INC.' (hereinafter "CTE") SMITH was hired 26 by PLAINTIFFS and provided grading and earth movement for the subject property. 27 PLAINTIFFS' hired and paid CTE to perform the soil/compaction tests on the subject property 28 (See Declaration of Federico, Exhibit-B.) 2 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH/STRIKE/DISMISS 1 On December 4, 2009, Plaintiffs filed a Second Amended Complaint ("SAC").(See 2 Declaration of Federico, Exhibit-C). Nowhere in the original complaint, the FAC or the SAC is 3 defendant/Moving Party R4C0RP named as a direct defendant. On May 11, 2010, Plaintiff 4 improperly served the part-time bookkeeper for R4C0RP, INC with a 'DOE' Amendment to the 5 SAC, which named defendant/Moving Party R4C0RP, INC. (See Declaration of Ruybalid, ^ 8). 6 Mr. Ruybahd, as the authorized agent for R4C0RP., INC., has never been personally served with 7 PLAINTIFFS' Amended Summons, Amendment to Second Amended Complaint, and Second 8 Amended Complaint. (See Declaration of Ruybalid, ^14) 9 R4C0RP now moves this Court to Quash and Strike the improperly served DOE 10 Amendment and surmnons and complaint. 11 II. 12 ARGUMENT 13 A. PLAINTIFF'S ATTEMPTED SERVICE OF THE "DOE" AMENDMENT UPON THE PART-TIME BOOKKEEPER WAS IMPROPER, IS VOID AND DOES NOT 14 IMPOSE PERSONAL JURISDICTION UPON R4CORP, INC. 15 In order for the Court to obtain jurisdiction over a defendant, an authorized method of 16 service needs to be properly utilized. Sternbeck v. Buck (1957) 148 Cal.App.2d, 829, 307 P.2d 17 970, 972. Effecting service upon a corporation requires delivery ofthe summons and complaint 18 to some person on behalfofthe corporation. Califomia Code ofCivil Procedure § 416.10 19 provides that a summons may be served on a coiporation by delivering a copy ofthe summons 20 and complaint to: (\) the person designated as agentfor service of process; (2) an officer ofthe 21 corporation, or (3) aperson authorized by the corporation to receive service of process. 22 In the instant case, PLAJNTIFFS failed to properly effect service upon R4C0RP, INC. 23 PLAINTIFFS served the part-time bookkeeper, Nani Keeshan. PLAINTIFFS did not serve of 24 Richard Ruybahd, who is the authorized agent for service of process for R4C0RP. The part-time 25 bookkeeper, at the time of attempted service, was neither designated as agent, an officer ofthe 26 corporation nor a person authorized by the corporation to receive service of process, as required 27 by CCP 416.10 (See Declaration of Keeshan, f s 5-7; Decl of Ruybalid, T 10-13). 28 For the foregoing reasons, PLAINTIFFS' attempted service upon the part-time 3 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH/STRIKE/DISMISS 1 bookkeeper of R4C0RP, INC. is void and of no effect. R4C0RP, INC. requests that this Court 2 issue an order quashmg service of Summons on the ground of lack of personal jurisdiction. 3 B. THE COURT HAS DISCRETIONARY AUTHORITY TO DISlVnSS THE ATTEMPTED DOE AMENDMENT FOR FAILURE TO FILE WITHIN TWO (2) 4 YEARS OF THE FILING OF THE COMPLAINT PURSUANT TO CCP § 583.420(a)(1) Assuming, arguendo, that this Court finds that service on R4C0RP, INC. was proper, 6 PLAINTIFFS still failed to timely serve the "DOE" Amendment on R4C0RP within two (2) 7 years ofthe conimencement ofthe action, in violation of CCP § 583.420(a)(1). 8 CCP § 583.420(a) (1) states in pertment part, 9 (a) The court may not dismiss an action pursuant to this article for 10 delay in prosecution except after one ofthe following conditions has occurred: 11 (1) Service is not made within two years after the action is 12 commenced against the defendant... 13 The chronology ofthis case manifestly demonstrates the dilatory tactics ofPLAINTIFFS 14 in naming R4C0RP, Inc. as a direct defendant. 15 (1) PLAINTIFFS filed their origmal complaint on September 24,2007 against 16 BRITSCHGI and RICHARD RUYBALID, dba CA CONSTRUCTION (See Declaration of 17 Federico, Exhibit-A). PLAINTIFFS' original complaint alleged various tort and contract claims 18 related to the construction of PLAINTIFFS' home. 19 (2) On November 10,2008, CA CONSTRUCTION served its verified responses to 20 PLAINTIFFS' Form Interrogatories, Set One, on PLAINTIFFS' counsel. In response to Form 21 hiterrogatory No. 3.1, CA CONSTRUCTION identified the fact that it had done business as 22 R4C0RP, INC. smce July 17,2006 to present (See Declaration of Federico, Exhibit-E). At least 23 as early as November 10. 2008. PLAINTIFFS had knowledge ofthe existence ofR4CORP. Inc. 24 but chose not to name this corporation as a direct defendant 25 (3) May 11, 2009 was the first scheduled trial date in this matter. The trial was continued 26 (4) On July 23,2009, PLAINTIFFS filed a First Amended Complaint ("FAC") which 27 added personal mjury claims for mold exposure, new factual allegations and causes of action 28 against BRITSCHGI and CA CONSTRUCTION, and two new parties, SMITH and CTE. 4 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH/STRIKE/DISMISS 1 R4C0RP, Inc. was not named. (See Declaration of Federico, Exhibit-B.) 2 (5) On December 4,2009, PLAINTIFFS filed a Second Amended Complaint ("SAC"). 3 Again, R4C0RP, Inc. was not named (See Declaration of Federico, Exhibit-C). 4 (6) Richard Ruybalid dba CA Constmction filed for Chapter 13 bankmptcy in the United 5 States Bankmptcy Court, Eastem District ofCalifomia on Febmary 18,2010 in Case No. 2010- 6 23787 (See Request for Judicial Notice - Exhibit-B, filed concurrentiy herewith). 7 (7) The 'DOE' Amendment as to R4C0RP, hic. was improperly served on R4C0RP, 8 INC. on May 11,2010. 9 The 'DOE' amendment was not served until May 11,2010, more than 546 days after 10 PLAINTIFFS first leamed ofthe existence of R4C0RP, INC. via verified responses to form 11 interrogatories. (See Declaration of Federico, Exhibit-E). It is abundantly clear that 12 PLAINTIFFS have only named R4C0RP, INC. since the origmahy named defendant, 13 Mr. Ruybalid, has filed for bankmptcy. PLAINTIFFS have no basis in fact to name R4C0RP, 14 INC. and are attempting by this "hail-mary" maneuver to fmd a deep-pocket somewhere to take 15 to trial. 16 It is anticipated that PLAINTIFFS will attempt to claim that they were "ignorant" ofthe 17 tme identity of R4C0RP, Inc., which based on the estabhshed facts ofthis case, is impossible. 18 When a plaintiff is "ignoranf of the tme name or identity of a defendant, he or she may designate 19 such defendant "by any name" pending amendment of the pleading" when his tme name is 20 discovered."(CCP § 474) The purpose ofthis statute is to allow a plaintiff ignorant ofa 21 defendant's identity to file suit before plaintiffs claim is barred by the statute of limitation (Clark 22 V. Stabond Corp. (1987)197 Cal.App.3d 50, 56, citing Barrows v. American Motors Corp.(1983) 23 144 Cal. App.3d 1,7). The doctrine of "relation back" cannot be applied to this attempted "DOE" 24 Amendment as PLAINTIFFS had actual knowledge ofthe existence of R4C0RP, Inc. more than 25 546 days before they attempted to serve R4C0RP, INC. Indeed, the discretionary dismissal 26 autiiority given the court under CCP § 583.420 is not limited in any way by CCP § 474 and CCP 27 § 583.420 speaks to "all defendants," notjust named defendants. (Id at pp. 56 & 58). 28 5 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH/STRIKE/DISMISS 1 C. R4C0RP, INC. WILL SUFFER ACTUAL PREJUDICE SHOULD THE "DOE" AMENDMENT BE AUTHORIZED. Should R4C0RP, INC. be forced to defend the claims as set forth in the SAC, it will suffer actual prejudice. It is impossible for this Court or R4C0RP, INC., to determine which cause ofaction applies to R4C0RP, INC. since all causes ofaction are pled against specifically named defendants with no allegations naming "DOES" (See Demurrer of R4C0RP, INC. filed concurrently herewith). Indeed, R4C0RP, INC. was not a party to any ofthe contracts referenced by plaintiffs in any iteration oftheir complaint. Moreover, PLAINTIFFS are in a unique position m that they have specific knowledge that they have no contractual privity with R4C0RP, INC. R4C0RP, INC. was not a party to the constmction contract at issue herein and performed no work at PLAINTIFFS' home. This information is clearly within the unique knowledge ofthe PLAINTIFFS, further demonstrating that this 'DOE' Amendment is a sham pleading. ra. CONCLUSION For the foregoing reasons, R4C0RP, INC. respectfully requests tiiat this court grant this Motion to Quash, Stiike and Dismiss the DOE amendment as to R4C0RP, INC. 18 19 A,KWT-^ Gregory K. Federico 20 Attomeys for Defendant R4C0RP, INC., a Cahfomia Corporation 21 22 23 24 25 26 27 28 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH/STRIKE/DISMISS