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HAINES LAW GROUP, APC
1 Paul K. Haines (SBN 248226)
phaines@haineslawgroup.com
2 Fletcher W. Schmidt (SBN 286462)
fschmidt@haineslawgroup.com
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Andrew J. Rowbotham (SBN 301367)
4 arowbotham@haineslawgroup.com
2155 Campus Drive, Suite 180
5 El Segundo, California 90245 E-FILED
Tel: (424) 292-2350 2/10/2021 1:28 PM
6 Fax: (424) 292-2355 Superior Court of California
Attorneys for Plaintiff County of Fresno
7 By: I. Herrera, Deputy
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF FRESNO
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DAVID VALADEZ PEREZ as an individual Case No. 19CECG04619
16 and on behalf of all others similarly situated,
[Assigned for all purposes to the Hon.
17 Kimberly A. Gaab, Dept. 503]
Plaintiff,
18 PLAINTIFF’S EX PARTE
vs. APPLICATION TO AMEND
19 COMPLAINT TO SUBSTITUTE DOE
ANDEN MORE-GUN, L.P. dba MORE-GUN DEFENDANTS PURSUANT TO CCP §
20 474; MEMORANDUM OF POINTS
FARMS, a California Limited Partnership; AND AUTHORITIES IN SUPPORT
21 FORST MORE-GUN, L.P. dba MORE-GUN THEREOF
FARMS, a California Limited Partnership; and
22 DOES 1 through 100, Action Filed: December 24, 2019
Trial Date: None Set
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Defendants.
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EX PARTE APPLICATION TO AMEND COMPLAINT TO SUBSTITUTE DOE DEFENDANTS
1 TO THE COURT AND ALL PARTIES OF RECORD: Please take notice that Plaintiff
2 David Valadez Perez in the above-entitled action, after having determined the true names of DOE
3 Defendants, will apply ex parte for an Order approving Plaintiff’s request to file a Third Amended
4 Complaint to substitute DOE 1 for an individual named Russell G. Gunlund dba More-Gun Farms
5 and DOE 2 for an individual named Merry C. Moreno-Gunlund dba More-Gun Farms
6 (collectively the “Gunlunds”) pursuant to California Code of Civil Procedure (“CCP”) § 474.
7 Pursuant to California Rule of Court 3.1202(a), the undersigned advises that the attorneys
8 and parties in this matter are as follows:
9 Counsel for Plaintiff David Valadez Perez Haines Law Group, APC
Fletcher W. Schmidt, Esq.
10 fschmidt@haineslawgroup.com
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Andrew J. Rowbotham, Esq.
arowbotham@haineslawgroup.com
12 2155 Campus Drive, Suite 180
El Segundo, California 90245
13 Telephone: (424) 292-2350
14 Counsel for Defendants Anden More-Gun, Hatmaker Law Group
L.P. dba More-Gun and Forst More-Gun, Susan K. Hatmaker, Esq.
15 L.P. dba More-Gun Farms susan@hatmakerlaw.com
Robert W. Branch, Esq.
16 robert@hatmakerlaw.com
7522 N. Colonial Ave., Suite 105
17 Fresno, California 93711
Telephone: (559) 374-0077
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Pursuant to California Rules of Court 3.1203(a), 3.1204, and Fresno Local Rule 2.7, and
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as supported by the Declaration of Andrew J. Rowbotham, submitted concurrently herewith,
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Plaintiff’s counsel provided written notice (via email on February 8, 2021) of Plaintiff’s intent to
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seek ex parte relief. As of the date of this filing, Defendants’ counsel has not responded to
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Plaintiff’s communication attempts.
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This application is based on this Notice, the accompanying Memorandum of Points and
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Authorities, the declaration of Andrew J. Rowbotham, all documents on file with the Court in this
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matter, and the [Proposed] Order submitted concurrently herewith.
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EX PARTE APPLICATION TO AMEND COMPLAINT TO SUBSTITUTE DOE DEFENDANTS
1 Pursuant to Fresno Local Rule 2.7.2(8), this ex parte application will be considered
2 without a hearing.
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Respectfully submitted,
4 HAINES LAW GROUP, APC
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Dated: February 10, 2021 By: __________________________
6 Andrew J. Rowbotham
Attorneys for Plaintiff
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EX PARTE APPLICATION TO AMEND COMPLAINT TO SUBSTITUTE DOE DEFENDANTS
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION & SUMMARY OF RELIEF REQUESTED
3 Plaintiff David Valadez Perez (“Plaintiff”), being ignorant of the true names of Russell G.
4 Gunlund dba More-Gun Farms and Merry C. Moreno-Gunlund dba More-Gun Farms
5 (collectively the “Gunlunds”), and having designated the Gunlunds in his complaint by the
6 fictitious names of DOE 1 and DOE 2, seeks an ex parte order approving the filing of the Third
7 Amended Complaint to substitute the true names for the fictitious names wherever they appear
8 therein.
9 Plaintiff seeks this relief pursuant to California Code of Civil Procedure (“CCP”) § 474.
10 (“When the plaintiff is ignorant of the name of a defendant, he must state that fact in the
11 complaint… and such defendant may be designated in any pleading or proceeding by any name,
12 and when his true name is discovered, the pleading or proceeding must be amended
13 accordingly...”)
14 II. FACTUAL & PROCEDURAL BACKGROUND
15 On December 24, 2019, Plaintiff filed this wage and hour class action lawsuit against
16 Anden More-Gun, L.P. dba More-Gun Farms, Forst More-Gun, L.P. dba More-Gun Farms, and
17 Does 1-100 (collectively “Defendants”) (Plaintiff and Defendants are referred to collectively as
18 the “Parties”). See Declaration of Andrew J. Rowbotham (“Rowbotham Decl.”), ¶ 2. On March
19 2, 2020, Plaintiff filed a First Amended Complaint (“FAC”) adding a cause of action for civil
20 penalties under the Private Attorneys General Act (“PAGA”), Labor Code § 2699 et seq.,
21 predicated on the Labor Code violations alleged in the complaint. Id. Forst More-Gun, L.P. and
22 Anden More-Gun, L.P. are both limited partnerships with Russell G. Gunlund and Merry Christi
23 Gunlund listed as General Partners. See id., ¶ 3 and Exh. A. Russell G. Gunlund is listed as the
24 agent for service of process for both entities, and both entities have a business address of 3510
25 W. Saginaw Ave., Caruthers, CA 93609. Id. On March 12, 2020, Russell Gunlund accepted
26 service of the summons and complaint on behalf of both Defendants. Id., ¶ 4 and Exh. B.
27 On April 23, 2020, Plaintiff received a letter from Defendants’ counsel seeking to meet
28 and confer on the allegations and claims in Plaintiff’s FAC. See Rowbotham Decl., ¶ 5. After a
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EX PARTE APPLICATION TO AMEND COMPLAINT TO SUBSTITUTE DOE DEFENDANTS
1 follow-up telephone conversation, Plaintiff agreed to amend his FAC to eliminate references to
2 penalties sought under Labor Code § 558. Id. On May 13, 2020, the Parties filed a stipulation to
3 amend the complaint accordingly. Id., ¶ 6. On May 19, 2020, Plaintiff filed the operative Second
4 Amended Complaint (“SAC”). Id.
5 Soon thereafter the Parties scheduled a private mediation for October 22, 2020. See
6 Rowbotham Decl., ¶ 7. However, due to More-Gun’s delay in providing Plaintiff with all
7 necessary pre-mediation documents and data, the mediation was rescheduled once to November
8 11, 2020, and then again to January 29, 2021. Id. As a result of these delays, the Parties filed
9 stipulations with the Court to continue the Case Management Conference on July 17, 2020 and
10 then again on November 10, 2020. Id.
11 On January 29, 2021, at the Parties’ mediation, Defendants’ counsel informed Plaintiff for
12 the first time that the two limited partnerships that Plaintiff had named in his Complaint were not
13 Plaintiff’s employers and that Plaintiff was actually employed by Russel Gunlund and Merry
14 Gunlund as individuals, and not through their limited partnerships. See Rowbotham Decl., ¶ 8.
15 The Parties were ultimately unable to reach a resolution of the matter at mediation and are now
16 preparing to return to formal litigation. Id.
17 III. ARGUMENT
18 Code of Civil Procedure § 474 provides that “[w]hen the plaintiff is ignorant of the name
19 of a defendant, he must state that fact in the complaint, ... and such defendant may be designated
20 in any pleading or proceeding by any name, and when his true name is discovered, the pleading
21 or proceeding must be amended accordingly ...” Plaintiffs are required to name DOE defendants
22 by their true name without unreasonable delay so as to avoid prejudice to the defendant. A.N. v.
23 County of Los Angeles (2009) 171 Cal.App.4th 1058, 1067 (affirming denial of motion to
24 designate DOE defendants by true names because plaintiff waited two years after he learned the
25 names to file his motion and the amendment would add new defendants to the lawsuit less than a
26 month before trial).
27 Here, Plaintiff was unaware that the Gunlunds were his actual employers because the wage
28 statements that Plaintiff received only list “More-Gun Farms” as the employer, and list an
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EX PARTE APPLICATION TO AMEND COMPLAINT TO SUBSTITUTE DOE DEFENDANTS
1 employer address of 3510 W. Saginaw Ave., Caruthers, CA 93609, which matches that of the two
2 limited partnerships. Additionally, despite sending Plaintiff a detailed meet and confer letter,
3 filing two stipulations, and informally exchanging a significant number of documents and
4 information over the course of year in furtherance of private mediation, Defendants failed to
5 inform Plaintiff that he had sued the wrong entities until January 29, 2021 (the date of mediation).
6 The Court has not set a trial date and the Gunlunds have been aware of this pending lawsuit
7 since as early as March 2020, when Russell Gunlund accepted service of the summons and
8 complaint on behalf of Defendants. Plaintiff moved swiftly to file this ex parte application once
9 he became aware of the true employer names. Defendants and the Gunlunds will therefore not be
10 prejudiced by Plaintiff’s request and the Court may grant the requested relief on an ex parte basis.
11 IV. CONCLUSION
12 For the foregoing reasons, Plaintiff respectfully requests that the Court approve this ex
13 parte application in its entirety and allow Plaintiff to file a Third Amended Complaint as set forth
14 herein.
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Respectfully submitted,
16 HAINES LAW GROUP, APC
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Dated: February 10, 2021 By: _________________________
18 Andrew J. Rowbotham
Attorneys for Plaintiff
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EX PARTE APPLICATION TO AMEND COMPLAINT TO SUBSTITUTE DOE DEFENDANTS
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HAINES LAW GROUP, APC 1 Paul K. Haines (SBN 248226) phaines@haineslawgroup.com 2 Fletcher W. Schmidt (SBN 286462) fschmidt@haineslawgroup.com 3 Andrew J. Rowbotham (SBN 301367) 4 arowbotham@haineslawgroup.com 2155 Campus Drive, Suite 180 5 El Segundo, California 90245 E-FILED Tel: (424) 292-2350 2/10/2021 1:28 PM 6 Fax: (424) 292-2355 Superior Court of California Attorneys for Plaintiff County of Fresno 7 By: I. Herrera, Deputy 8 9 10 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 FOR THE COUNTY OF FRESNO 14 15 DAVID VALADEZ PEREZ as an individual Case No. 19CECG04619 16 and on behalf of all others similarly situated, [Assigned for all purposes to the Hon. 17 Kimberly A. Gaab, Dept. 503] Plaintiff, 18 PLAINTIFF’S EX PARTE vs. APPLICATION TO AMEND 19 COMPLAINT TO SUBSTITUTE DOE ANDEN MORE-GUN, L.P. dba MORE-GUN DEFENDANTS PURSUANT TO CCP § 20 474; MEMORANDUM OF POINTS FARMS, a California Limited Partnership; AND AUTHORITIES IN SUPPORT 21 FORST MORE-GUN, L.P. dba MORE-GUN THEREOF FARMS, a California Limited Partnership; and 22 DOES 1 through 100, Action Filed: December 24, 2019 Trial Date: None Set 23 Defendants. 24 25 26 27 28 EX PARTE APPLICATION TO AMEND COMPLAINT TO SUBSTITUTE DOE DEFENDANTS 1 TO THE COURT AND ALL PARTIES OF RECORD: Please take notice that Plaintiff 2 David Valadez Perez in the above-entitled action, after having determined the true names of DOE 3 Defendants, will apply ex parte for an Order approving Plaintiff’s request to file a Third Amended 4 Complaint to substitute DOE 1 for an individual named Russell G. Gunlund dba More-Gun Farms 5 and DOE 2 for an individual named Merry C. Moreno-Gunlund dba More-Gun Farms 6 (collectively the “Gunlunds”) pursuant to California Code of Civil Procedure (“CCP”) § 474. 7 Pursuant to California Rule of Court 3.1202(a), the undersigned advises that the attorneys 8 and parties in this matter are as follows: 9 Counsel for Plaintiff David Valadez Perez Haines Law Group, APC Fletcher W. Schmidt, Esq. 10 fschmidt@haineslawgroup.com 11 Andrew J. Rowbotham, Esq. arowbotham@haineslawgroup.com 12 2155 Campus Drive, Suite 180 El Segundo, California 90245 13 Telephone: (424) 292-2350 14 Counsel for Defendants Anden More-Gun, Hatmaker Law Group L.P. dba More-Gun and Forst More-Gun, Susan K. Hatmaker, Esq. 15 L.P. dba More-Gun Farms susan@hatmakerlaw.com Robert W. Branch, Esq. 16 robert@hatmakerlaw.com 7522 N. Colonial Ave., Suite 105 17 Fresno, California 93711 Telephone: (559) 374-0077 18 Pursuant to California Rules of Court 3.1203(a), 3.1204, and Fresno Local Rule 2.7, and 19 as supported by the Declaration of Andrew J. Rowbotham, submitted concurrently herewith, 20 Plaintiff’s counsel provided written notice (via email on February 8, 2021) of Plaintiff’s intent to 21 seek ex parte relief. As of the date of this filing, Defendants’ counsel has not responded to 22 Plaintiff’s communication attempts. 23 This application is based on this Notice, the accompanying Memorandum of Points and 24 Authorities, the declaration of Andrew J. Rowbotham, all documents on file with the Court in this 25 matter, and the [Proposed] Order submitted concurrently herewith. 26 /// 27 /// 28 EX PARTE APPLICATION TO AMEND COMPLAINT TO SUBSTITUTE DOE DEFENDANTS 1 Pursuant to Fresno Local Rule 2.7.2(8), this ex parte application will be considered 2 without a hearing. 3 Respectfully submitted, 4 HAINES LAW GROUP, APC 5 Dated: February 10, 2021 By: __________________________ 6 Andrew J. Rowbotham Attorneys for Plaintiff 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EX PARTE APPLICATION TO AMEND COMPLAINT TO SUBSTITUTE DOE DEFENDANTS 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION & SUMMARY OF RELIEF REQUESTED 3 Plaintiff David Valadez Perez (“Plaintiff”), being ignorant of the true names of Russell G. 4 Gunlund dba More-Gun Farms and Merry C. Moreno-Gunlund dba More-Gun Farms 5 (collectively the “Gunlunds”), and having designated the Gunlunds in his complaint by the 6 fictitious names of DOE 1 and DOE 2, seeks an ex parte order approving the filing of the Third 7 Amended Complaint to substitute the true names for the fictitious names wherever they appear 8 therein. 9 Plaintiff seeks this relief pursuant to California Code of Civil Procedure (“CCP”) § 474. 10 (“When the plaintiff is ignorant of the name of a defendant, he must state that fact in the 11 complaint… and such defendant may be designated in any pleading or proceeding by any name, 12 and when his true name is discovered, the pleading or proceeding must be amended 13 accordingly...”) 14 II. FACTUAL & PROCEDURAL BACKGROUND 15 On December 24, 2019, Plaintiff filed this wage and hour class action lawsuit against 16 Anden More-Gun, L.P. dba More-Gun Farms, Forst More-Gun, L.P. dba More-Gun Farms, and 17 Does 1-100 (collectively “Defendants”) (Plaintiff and Defendants are referred to collectively as 18 the “Parties”). See Declaration of Andrew J. Rowbotham (“Rowbotham Decl.”), ¶ 2. On March 19 2, 2020, Plaintiff filed a First Amended Complaint (“FAC”) adding a cause of action for civil 20 penalties under the Private Attorneys General Act (“PAGA”), Labor Code § 2699 et seq., 21 predicated on the Labor Code violations alleged in the complaint. Id. Forst More-Gun, L.P. and 22 Anden More-Gun, L.P. are both limited partnerships with Russell G. Gunlund and Merry Christi 23 Gunlund listed as General Partners. See id., ¶ 3 and Exh. A. Russell G. Gunlund is listed as the 24 agent for service of process for both entities, and both entities have a business address of 3510 25 W. Saginaw Ave., Caruthers, CA 93609. Id. On March 12, 2020, Russell Gunlund accepted 26 service of the summons and complaint on behalf of both Defendants. Id., ¶ 4 and Exh. B. 27 On April 23, 2020, Plaintiff received a letter from Defendants’ counsel seeking to meet 28 and confer on the allegations and claims in Plaintiff’s FAC. See Rowbotham Decl., ¶ 5. After a 1 EX PARTE APPLICATION TO AMEND COMPLAINT TO SUBSTITUTE DOE DEFENDANTS 1 follow-up telephone conversation, Plaintiff agreed to amend his FAC to eliminate references to 2 penalties sought under Labor Code § 558. Id. On May 13, 2020, the Parties filed a stipulation to 3 amend the complaint accordingly. Id., ¶ 6. On May 19, 2020, Plaintiff filed the operative Second 4 Amended Complaint (“SAC”). Id. 5 Soon thereafter the Parties scheduled a private mediation for October 22, 2020. See 6 Rowbotham Decl., ¶ 7. However, due to More-Gun’s delay in providing Plaintiff with all 7 necessary pre-mediation documents and data, the mediation was rescheduled once to November 8 11, 2020, and then again to January 29, 2021. Id. As a result of these delays, the Parties filed 9 stipulations with the Court to continue the Case Management Conference on July 17, 2020 and 10 then again on November 10, 2020. Id. 11 On January 29, 2021, at the Parties’ mediation, Defendants’ counsel informed Plaintiff for 12 the first time that the two limited partnerships that Plaintiff had named in his Complaint were not 13 Plaintiff’s employers and that Plaintiff was actually employed by Russel Gunlund and Merry 14 Gunlund as individuals, and not through their limited partnerships. See Rowbotham Decl., ¶ 8. 15 The Parties were ultimately unable to reach a resolution of the matter at mediation and are now 16 preparing to return to formal litigation. Id. 17 III. ARGUMENT 18 Code of Civil Procedure § 474 provides that “[w]hen the plaintiff is ignorant of the name 19 of a defendant, he must state that fact in the complaint, ... and such defendant may be designated 20 in any pleading or proceeding by any name, and when his true name is discovered, the pleading 21 or proceeding must be amended accordingly ...” Plaintiffs are required to name DOE defendants 22 by their true name without unreasonable delay so as to avoid prejudice to the defendant. A.N. v. 23 County of Los Angeles (2009) 171 Cal.App.4th 1058, 1067 (affirming denial of motion to 24 designate DOE defendants by true names because plaintiff waited two years after he learned the 25 names to file his motion and the amendment would add new defendants to the lawsuit less than a 26 month before trial). 27 Here, Plaintiff was unaware that the Gunlunds were his actual employers because the wage 28 statements that Plaintiff received only list “More-Gun Farms” as the employer, and list an 2 EX PARTE APPLICATION TO AMEND COMPLAINT TO SUBSTITUTE DOE DEFENDANTS 1 employer address of 3510 W. Saginaw Ave., Caruthers, CA 93609, which matches that of the two 2 limited partnerships. Additionally, despite sending Plaintiff a detailed meet and confer letter, 3 filing two stipulations, and informally exchanging a significant number of documents and 4 information over the course of year in furtherance of private mediation, Defendants failed to 5 inform Plaintiff that he had sued the wrong entities until January 29, 2021 (the date of mediation). 6 The Court has not set a trial date and the Gunlunds have been aware of this pending lawsuit 7 since as early as March 2020, when Russell Gunlund accepted service of the summons and 8 complaint on behalf of Defendants. Plaintiff moved swiftly to file this ex parte application once 9 he became aware of the true employer names. Defendants and the Gunlunds will therefore not be 10 prejudiced by Plaintiff’s request and the Court may grant the requested relief on an ex parte basis. 11 IV. CONCLUSION 12 For the foregoing reasons, Plaintiff respectfully requests that the Court approve this ex 13 parte application in its entirety and allow Plaintiff to file a Third Amended Complaint as set forth 14 herein. 15 Respectfully submitted, 16 HAINES LAW GROUP, APC 17 Dated: February 10, 2021 By: _________________________ 18 Andrew J. Rowbotham Attorneys for Plaintiff 19 20 21 22 23 24 25 26 27 28 3 EX PARTE APPLICATION TO AMEND COMPLAINT TO SUBSTITUTE DOE DEFENDANTS