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Pelayo v. J. J. Lee Management Co.

May 28, 2009

RIGOBERTO GUZMAN PELAYO, PLAINTIFF AND RESPONDENT,
v.
J. J. LEE MANAGEMENT CO., INC., DEFENDANT AND APPELLANT.



APPEALS from a judgment and order of the Superior Court of Los Angeles County, Soussan G. Bruguera, Judge. Reversed. (Los Angeles County Super. Ct. No. BC313579).

The opinion of the court was delivered by: Willhite, J.

CERTIFIED FOR PUBLICATION

INTRODUCTION

In this case, we deal with the ―do's and don'ts‖ of Does. Code of Civil Procedure section 474 authorizes a plaintiff, who is ignorant of the true name of certain defendants, to name them as fictitious, or ―Doe,‖ defendants.*fn1 Upon discovering a Doe defendant's true identity, the plaintiff must amend the complaint to allege the defendant's true name, ―provided, that no default or default judgment shall be entered against a defendant so designated‖ unless two requirements are met. First, the summons must bear ―on the face thereof a notice stating in substance‖ that the served person is being sued ―under the fictitious name of‖ a specific, designated Doe defendant. Second, the proof of service filed with the court ―must state the fictitious name under which such defendant was served and the fact that notice of identity was given by endorsement upon the document served as required by this section.‖

Here, plaintiff Rigoberto Guzman Pelayo amended his complaint to designate defendant J. J. Lee Management Co. (JJLM) as fictitious defendant ―Doe 4.‖ After JJLM failed to file a responsive pleading, plaintiff obtained clerk's entry of default against JJLM and a default judgment of $3.1 million. JJLM moved to vacate the default and default judgment, arguing that plaintiff had failed to comply with the requirements of section 474 regarding service of summons and proof of service. The trial court denied the motion. JJLM appeals, and we reverse.*fn2

We conclude that substantial evidence supports the trial court's finding that the summons was properly endorsed -- that is, that the summons ―bore on the face thereof a notice stating in substance‖ that JJLM was being sued ―under the fictitious name of‖ Doe 4. (§ 474.) The evidence is undisputed, however, that the proof of service of the summons did not contain the recitals required by section 474 -- that is, it did not ―state the fictitious name under which such defendant was served‖ (Doe 4), and did not recite ―the fact that notice of identity was given by endorsement upon the document [the summons] served as required by this section.‖ Because section 474 makes compliance with the requirements for both the summons and proof of service mandatory to obtain a default or default judgment, the trial court erred in denying the motion to vacate.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Lawsuit

In April 2004, after obtaining a right-to-sue letter from the Department of Fair Employment and Housing,plaintiff filed suit for disability discrimination (Gov. Code, § 12940) and wrongful discharge. He alleged that he had been employed for 13 years as a cook and gardener's assistant at the Chevy Chase Country Club (the Club). In May 2001, he suffered a knee and tendon injury at work. His supervisors rejected his persistent requests for medical assistance and work-place accommodation. In May 2003, the Club fired him. Plaintiff named three defendants: the Club, Sicomoro Canyon, Inc., and Sicomoro Canyon, Inc., dba Chevy Chase Country Club. In addition, plaintiff named fictitious defendants ―Does 1 through 100.‖

Through discovery, plaintiff learned that Sierra Investment, Inc. owned the county club business and property. Plaintiff therefore amended the complaint to add, as Does 1 through 3, Sierra Investment Inc. and its owner, first sued as Don Han and later sued as Dong Kyu Han.

2. Plaintiff Adds JJLM to the Lawsuit

After additional discovery, plaintiff learned that appellant JJLM had purchased the Club from Sierra Investment, Inc. in August 2005. Accordingly, on March 24, 2006, plaintiff filed an amendment to the complaint adding JJLM as a defendant in place of Doe 4.

Shortly thereafter, plaintiff served JJLM, first by substituted service and thereafter by mail. The substituted service occurred on March 28.*fn3 A process server left the summons and complaint, the amendment to the complaint, and the notice of case assignment with Rosalyn Lee at the Club's premises. On March 31, copies of those three documents were mailed to JJLM at the Club's address. On April 6, plaintiff filed with the court proofs of service attesting to the service of the three documents.

On November 29, plaintiff served JJLM by substituted service and by mail with his Notice of Statement of Damages and Punitive Damages (§§ 425.11, 425.115). In it, plaintiff reserved the right to seek $1 million in special damages, $1 million in general damages, $10 million in punitive damages and $1 million in attorney fees. The substituted service occurred at the Club's premises on November 29 and the service by mail was consummated the next day (November 30). Plaintiff filed proofs of service with the court on December 11.

3. The Default

On March 28, 2007, plaintiff filed a request that the trial court enter default against JJLM because JJLM had failed to answer the complaint or otherwise appear in the action. Plaintiff served JJLM by mail with a copy of this request. The next day (March 29), the court clerk entered default against JJLM. Nearly one year later, on February 25, 2008, the trial court entered a default judgment against JJLM for $3 million in damages, $100,000 in attorney fees, and $438 in costs. Plaintiff's request for default judgment was submitted to the court on plaintiff's ―Default Prove-Up Brief‖ which included declarations, deposition testimony and documentary evidence. The evidentiary material addressed, among other issues, JJLM's August 2005 purchase of the Club from Sierra Investment, Inc., plaintiff's damages, and the attorney fees incurred.

4. The Claims Against the Other Defendants

By the time that plaintiff obtained his default judgment against JJLM, his claims against the other defendants were no longer extant. In October 2005, the trial court had granted plaintiff's motion for terminating sanctions against the three defendants originally named in the complaint based upon their willful failures to comply with ...


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