Sometimes you believe that certain persons are liable to the plaintiff, but you don’t know and can’t readily learn their names. That’s when you include them in the complaint as “Doe defendants,” i.e., you fictitiously name them in the caption of the complaint and then allege ignorance of their true names in the body of the complaint. CCP §474. If you later learn the names of a Doe defendant, you’ll need to amend the complaint. Here are four things to know about amending a complaint to name a Doe defendant.
- Move fast. Although the requirement isn’t explicit, it has been held that CCP §474 implicitly requires a plaintiff to amend a complaint to add the true names of the Doe defendants within a reasonable period of time after learning their identities. A defendant may challenge the amendment by an evidence-based motion that argues unreasonable delay and shows that filing the Doe amendment would cause the defendant to suffer undue prejudice. A.N. v County of Los Angeles (2009) 171 CA4th 1058, 1066 (2-year delay in filing and serving Doe amendments caused undue prejudice to defendants brought into litigation less than 1 month before trial).
- Check whether you need leave of court. Courts differ on whether you’ll need to get leave of court, i.e., an order signed by a judge or commissioner, before an amendment substituting a true name will be accepted for filing by the clerk. When a signature is required, it’s normally given pro forma and ex parte. Check with the clerk of the court in which the complaint was filed to determine whether you should append an order form to the amendment. The clerk can also say whether the court has a printed form for the amendment and what must be included in a typed form. An amendment that not only substitutes a name but also contains new allegations against the now truly named defendant should normally be made with leave of court after notice.
- Note the former fictitious name status in the summons. You can serve a copy of the original summons and complaint on a formerly Doe defendant as long as the summons bears on its face a notice stating in substance: “You are hereby served in this action as the person sued under the fictitious name _____.” You can take a default judgment if a defendant so served doesn’t answer. CCP §474.
- Give notice to all parties. Filing the amendment and serving it on all parties gives them notice of the true identity of the defendant. Although service of the amendment doesn’t seem to be required (see Drotleff v Renshaw (1949) 34 C2d 176, 181), it’s best practice to do it.
When you amend the complaint to add the true name, the action against the defendant is deemed to have commenced when the original complaint was filed, not when you amended it. This means that the action against the defendant is treated for all purposes as if the true name appeared in the original complaint. See Guenter v Lomes & Nettleton Co. (1983) 140 CA3d 460 (amendment adding additional plaintiffs should be permitted and would relate back to filing of complaint, as new plaintiffs were members of a class that the named plaintiff sought to represent in original pleading).
Get guidance on drafting and amending complaints anytime in CEB’s California Civil Procedure Before Trial, chaps 15- 16. And check out CEB’s program Drafting Complaints, Cross-Complaints and Amendments, available On Demand.
Other CEBblog™ posts you may find useful:
- Checklist: What to Include in a Government Claim
- Service of Process via Twitter?
- 2 Reasons to Go for Defendant’s Default
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