United States District Court, S.D. California
ORDER GRANTING PLAINTIFFS' UNOPPOSED MOTION TO
ADD “DOE” DEFENDANTS (ECF NO. 107)
JANIS L. SAMMARTINO UNITED STATES DISTRICT JUDGE
before the Court is Plaintiffs Motion to Add
“Doe” Defendants (“Mot., ” ECF No.
107), which set for a hearing on September 19, 2019.
Defendants County of San Diego; Sheriff William D. Gore; and
Sheriff's Deputies Rodrigo Aristizabal, James Balderson,
Jacob Booher, Elvys Cabrera, Daniel Follosco, Matthew Gibson,
Elisha Hubbard, Ericson Lamaster, Eric Price, and Tyler
Skeels filed a notice of non-opposition to the Motion.
See ECF No. 112. Defendants City of El Cajon; Police
Chief Jeff Davis; and El Cajon Police Officers Melisa
Calderon, Kenneth Davenport, Greg Robertson, and Jason
Sargent have not filed an opposition or notice of
non-opposition to the Motion.
Court finds this matter suitable for submission without oral
argument pursuant to Civil Local Rule 7.1(d)(1). Having
carefully considered the proposed Fifth Amended Complaint and
Plaintiffs' Motion, the Court GRANTS
Plaintiffs' unopposed Motion.
their Motion, Plaintiffs seek pursuant to Federal Rule of
Civil Procedure 15 and California Civil Procedure Code
section 474 to substitute the following six individuals for
Doe Defendants: San Diego Sheriff's Office Lieutenant
Robert Smith, El Cajon Police Department Lieutenant Eric
Taylor, El Cajon Police Department Captain Michael Moultin,
San Diego Sheriff's Office Captain Hank Turner, San Diego
Sheriff's Office Sergeant Dustin Lopez, and San Diego
Sheriff's Office Lieutenant Michael Rand. Mot. at 5-6.
Plaintiffs explain that Defendants identified Captains
Moultin and Turner, Sergeant Lopez, and Lieutenant Rand
“[i]n discovery finally received just in the past two
weeks, ” but that Lieutenants Smith and Taylor filed
declarations in opposition to Plaintiffs' October 2016
application for a temporary restraining order. See
Id. at 5; see also ECF Nos. 6-1, 7-3. Indeed,
on October 20, 2016, Lieutenant Smith attested under penalty
of perjury that, “[o]n the evening of Saturday October
1, 2016, [he] was commanding the Sheriff's Mobile Field
Force (MFF) platoon, ” was called to 777 Broadway
“to . . . order [the crowd] to disperse, ” and
“directed the line of MFF platoon deputies to . . .
arrest those who remained in the crowd.” See
ECF No. 6-1 ¶¶ 4-7. Similarly, on October 20, 2016,
Lieutenant Taylor declared under penalty of perjury that,
“[o]n the night of October 1, 2016, to the early
morning hours of October 2, 2016, [he] was the incident
commander for the protests occurring in the vicinity of 777
Broadway in El Cajon” and that he “gave the order
for the Sheriff's department helicopter
(“ASTREA”) to give an unlawful assembly
order.” ECF No. 7-3 ¶¶ 4, 7.
Plaintiffs themselves recognize, see Mot. at 4
(citing Fireman's Fund. Ins. Co. v. Sparks Const.,
Inc., 114 Cal.App.4th 1135, 1143 (2004)) (emphasis
added), “CCP § 474 allows Doe defendants to be
added within three years of the filing date of the original
complaint if . . . the plaintiff amends once the true
name of the defendant is discovered.”
Consequently, “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. Cnty.
of Los Angeles, 171 Cal.App.4th 1058, 1066-67, as
modified on denial of reh'g (Apr. 6, 2009).
Plaintiffs may not have known the identities of Lieutenants
Smith and Taylor when they filed their original complaint on
October 16, 2016, see generally ECF No. 1, they
learned of their identities on October 21, 2016, when
Defendants filed declarations written by those two
Lieutenants in support of their opposition to Plaintiffs'
motion for a temporary restraining order. See ECF
Nos. 6-1, 7-3. Nonetheless, Plaintiffs did not seek to amend
their complaint to substitute Lieutenants Smith and Taylor
for previously unidentified Does Defendants until August 5,
2019, see ECF No. 107, nearly three years later and
after filing several other amended complaints on November 21,
2016, see ECF No. 18; June 20, 2017, see
ECF No. 37; April 18, 2018, see ECF No. 69; and
February 25, 2019. See ECF No. 85. Plaintiffs
provide no justification-let alone a reasonable one-for this
delay. See, e.g., A.N., 171 Cal.App.4th at 1067
(denying leave to amend where the court of appeal
“s[aw] no reasonable explanation in the record for [the
plaintiff]'s roughly two-year delay in filing and serving
the Doe amendments”).
said, “‘unreasonable delay' . . . 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. Here,
Defendants have not opposed Plaintiffs' Motion, much less
attempted to make any showing of prejudice as to the
substitution of Lieutenants Smith and Taylor. Consequently,
despite Plaintiffs' undue delay, the Court determines
that Plaintiffs' have met their burden with respect to
substitution of all six previously unidentified Doe
to California Civil Procedure Code section 474, Federal Rule
of Civil Procedure 15(c)(1)(C), and Civil Local Rule
7.1(f)(3)(c), the Court therefore GRANTS Plaintiffs'
Motion. Plaintiffs SHALL FILE their Fifth Amended Complaint,
previously filed as ECF No. 107-2, within three (3)
days of the electronic docketing of this Order.