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■ Pelayo v. J.J. Lee Mgmt. Co, Inc., No. B208024

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.[1]  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.^[2]

          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.”

■ HELD:

Trial court judgment denying defendant's motion to vacate the entry of default and default judgment against it is reversed where, although substantial evidence supports the trial court's finding that the service of summons was properly endorsed and stated that defendant was being sued under the fictitious name of Doe 4, the proof of service of the summons did not contain the recitals required by Code of Civ. Pro. sec. 474 as it neither stated the fictitious name under which such defendant was served, nor did it recite the fact that notice of identity was given by endorsement upon the document served.
Pelayo v. J.J. Lee Management-B208024-5/28/09-CA2/4
Pelayo v. J.J. Lee Management-B208024-5/28/09-CA2/4-PDF

B208024

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