Filed 7/20/26 Garcia v. Sahu CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JOSE GREGORIO GARCIA, D086059
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2023-
00001957-CU-PA-CTL)
UPENDRA SAHU,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Carolyn M. Caietti, Judge. Affirmed.
Pollak, Vida & Barer, Daniel P. Barer and Karen M. Stepanyan;
Sunset West Legal Group, Valentine Aghakhani and Payton Kashani for
Plaintiff and Appellant.
Lincoln Gustafson & Cercos, Richard J. Reese and Alexander H.
Getman for Defendant and Respondent.
INTRODUCTION
Jose Gregorio Garcia was involved in a traffic collision with a car
owned by Upendra Sahu. He sued Sahu and fictitious Doe defendants for his
alleged injuries. Garcia later discovered Sahu’s son, Rook Sahu,1 was driving
the car at the time of the collision, but he did not move to name Rook as a
defendant until after the trial court dismissed the Doe defendants from the
action. The court then denied as untimely Garcia’s application for leave to
amend to substitute Rook in place of a Doe defendant. Garcia appeals,
arguing the trial court erred by failing to relieve him from the dismissal of
the Doe defendants and denying him leave to amend his complaint. We reject
his contentions and affirm the judgment.
BACKGROUND
On January 29, 2021, Garcia was involved in a traffic collision with
another car. According to Garcia, at the time of the accident, he did not
obtain the name of the other driver. However, the other driver gave Garcia
his insurance card, which listed several members of the Sahu family as the
insured, including Sahu and Rook. From the names listed on the insurance
card, the fact that Sahu owned the car, and communications with the
insurance carrier, Garcia believed Sahu was driving the other car at the time
of the collision. On January 13, 2023, Garcia filed a complaint for negligence
against Sahu and Does 1 through 50.
On August 14, 2023, Sahu provided Garcia with responses to
interrogatories that identified Rook as the driver of the car that collided with
Garcia and disclosed Rook’s home address. About two months later, Garcia
obtained new counsel. On November 30, 2023, Garcia’s new counsel received
Sahu’s responses to the interrogatories. During a deposition on
September 30, 2024, Sahu again identified Rook as the driver of the car that
1 Because father and son share the same last name, we will refer to Rook
by his first name.
2
collided with Garcia. Garcia now alleges it was at this moment when his
counsel realized Rook had not been named as a defendant.
Discovery closed on October 11, 2024. Pursuant to the trial court’s
prior order, the Doe defendants were dismissed from the action on this date.
At the trial readiness conference two weeks later, Garcia’s counsel informed
the court of his intention to file an ex parte application for leave to amend to
add Rook as a defendant to the action. Trial was then set for November 8,
2024.
On October 29, 2024,2 10 days before trial was scheduled to start,
Garcia filed an ex parte application for leave to amend his complaint. In his
application, Garcia stated that due to his counsel’s mistake, inadvertence,
surprise, or neglect the trial court dismissed the Doe defendants. He sought
relief from the dismissal of the Doe defendants and leave to amend his
complaint under Code of Civil Procedure3 section 474 to substitute Rook in
place of Doe 1.4 He argued his application was timely and the amendment
would not prejudice Sahu.
2 The record indicates Garcia filed his application on October 29, 2024,
and again the following day. There is no indication that the two applications
differed in any way.
3 Further unspecified statutory references are to the Code of Civil
Procedure.
4 Sahu argues Garcia’s application strictly sought leave to amend and
did not also request relief from the dismissal of the Doe defendants. We are
not persuaded. Garcia’s application specifically addressed the availability of
relief from the dismissal of the Doe defendants under section 473, subdivision
(b).
3
Sahu opposed Garcia’s application. He argued that, because the Doe
defendants were dismissed, an addition of Rook would not relate back to the
original complaint and, thus, an action against Rook would be barred by the
statute of limitations. He argued amendment under section 474 should be
denied as futile, and that Garcia’s request for relief from the dismissal of the
Doe defendants under section 473 should be denied because Garcia
unreasonably delayed in seeking relief.
On October 31, 2024, the trial court held a hearing on Garcia’s
application to substitute Rook as a defendant. Garcia’s counsel explained
that, when he substituted in as counsel, he believed all parties had been
properly named. He acknowledged receiving Sahu’s responses to
interrogatories around the time he substituted in as Garcia’s counsel, but
claimed it was not until March 2024 that he discovered Rook was not named
as a defendant in the complaint. He then instructed his assistant to prepare
a motion for leave to amend. However, due to illness, counsel was on leave
from April 8 to July 8, 2024, and the complaint inadvertently was not
amended in his absence. Counsel contended that the proposed amendment to
the complaint would not prejudice Sahu. On the other hand, denial of leave
to amend would cause irreparable harm to Garcia because he would be
limited to pursuing the $15,000 owner’s liability coverage despite having
suffered “significant injuries.”
The trial court denied Garcia’s application “on the ground[ ] the request
was not made within a reasonable time.” In so ruling, the court noted that
Garcia did not seek to name Rook as a defendant until (1) over a year after
Sahu identified Rook as the driver in his responses to interrogatories, (2) over
a year after counsel began representing Garcia, (3) after expiration of the
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statute of limitations on claims against Rook, (4) after the court dismissed
the Doe defendants, and (5) just eight days before trial call was set.
After the trial court denied Garcia’s application to substitute Rook as a
defendant, Garcia accepted Sahu’s offer to compromise pursuant to
section 998. On January 9, 2025, the trial court dismissed this action with
prejudice pursuant to the parties’ compromise. On January 13, 2025, it
entered judgment.
DISCUSSION
I.
Appealability
Generally, a party may not appeal a judgment following a compromise
under section 998. (Pazderka v. Caballeros Dimas Alang, Inc. (1998)
62 Cal.App.4th 658, 667.) But, here, Garcia is not contesting the propriety of
the judgment as it relates to Sahu under the section 998 compromise.
Rather, he is challenging the court’s intermediate order denying him relief
from the dismissal of the Doe defendants and leave to amend his complaint to
substitute Rook as a defendant in the place of a Doe defendant. And, except
under circumstances not present here,5 an order denying leave to amend to
substitute a named defendant for a fictitious one is not immediately
appealable. (Chitwood v. County of Los Angeles (1971) 14 Cal.App.3d 522,
5 An order denying leave to amend a complaint is deemed appealable
“where the order[ ] ‘ha[s] the effect of eliminating issues between a plaintiff
and defendant so that nothing is left to be determined.’ ” (Randle v. City and
County of San Francisco (1986) 186 Cal.App.3d 449, 454.) But Garcia never
named or added Rook as a defendant. Because Rook was never a defendant,
the order denying leave to amend could not have had the effect of eliminating
all issues between the plaintiff and a defendant so that there was nothing left
to be tried or determined.
5
528; Randall v. Beber (1950) 101 Cal.App.2d 179, 181–183 (Randall).)
Rather, a plaintiff in that scenario may challenge the order on appeal from
the final judgment. (Fogel v. Farmers Group, Inc. (2008) 160 Cal.App.4th
1403, 1423, fn. 14; Chitwood, at p. 528; Randall, at p. 182.)
Thus, Garcia could only have filed an appeal challenging the court’s
order denying his application to substitute Rook in place of a Doe defendant
following entry of the final judgment, as he has done here.6
II.
Denial of Relief from Dismissal of Doe Defendants
Garcia devotes considerable effort on his argument that the trial court
erred by denying him relief from the dismissal of the Doe defendants.
Relevant here, Garcia argues he was entitled to mandatory relief under
6 It is of no consequence that Garcia identified in his notice of appeal
only the judgment and not the trial court’s October 31, 2024 ruling on his
application to substitute Rook as a defendant. “It is, and has been, the law of
this state that notices of appeal are to be liberally construed so as to protect
the right of appeal if it is reasonably clear what the appellant was trying to
appeal from, and where the respondent could not possibly have been misled
or prejudiced.” (In re Marriage of Destiny & Justin C. (2023) 87 Cal.App.5th
763, 766, fn. 3 [cleaned up].) It is clear from Garcia’s opening brief that he is
contesting the trial court’s denial of relief from the dismissal of the Doe
defendants and its ruling on his application for leave to amend. It is also
clear from the respondent’s brief addressing the pertinent issues that Sahu
was not misled or prejudiced.
6
section 473, subdivision (b),7 because he timely sought relief following the
dismissal of the Doe defendants and the dismissal was the result of his
counsel’s mistake, inadvertence, surprise, or neglect. Sahu disagrees,
arguing section 473’s provision for relief from a “default judgment or
dismissal” does not apply to the dismissal of Doe defendants at issue here.
We do not need to resolve the parties’ dispute on that point, however.
As we shall explain, even assuming the trial court should have granted
Garcia mandatory relief from the dismissal of the Doe defendants pursuant
to section 473, subdivision (b), we find the court did not abuse its discretion
in denying leave to amend the complaint to substitute Rook in the place of a
Doe defendant under section 474.8
7 “[T]he court shall, whenever an application for relief is made no more
than six months after entry of judgment, is in proper form, and is
accompanied by an attorney’s sworn affidavit attesting to the attorney’s
mistake, inadvertence, surprise, or neglect, vacate any . . . resulting default
judgment or dismissal entered against the attorney’s client, unless the court
finds that the default or dismissal was not in fact caused by the attorney’s
mistake, inadvertence, surprise, or neglect.” (§ 473, subd. (b).)
8 Because we presume, for purposes of this analysis, Garcia was entitled
to mandatory relief from the dismissal of the Doe defendants under
section 473, subdivision (b), we do not address the parties’ related arguments
regarding the statute of limitations and relation back. In addition, Garcia
argues he was entitled to discretionary relief from the dismissal of the Doe
defendants. We reject this contention for the same reasons we shall discuss
with respect to the court’s denial of Garcia’s application to substitute Rook as
a defendant under section 474, i.e. Garcia has not shown a valid justification
for his delay in seeking relief.
7
III.
Denial of Leave to Amend
Under section 474, “[w]hen the plaintiff is ignorant of the name of a
defendant, . . . such defendant may be designated in any pleading . . . by any
name, and when his true name is discovered, the pleading . . . must be
amended accordingly.”9
“It is well established that California courts have a policy of great
liberality in allowing amendments at any stage of the proceeding so as to
dispose of cases upon their substantial merits where the authorization does
not prejudice the substantial rights of others.” (Board of Trustees v. Superior
Court (2007) 149 Cal.App.4th 1154, 1163 [cleaned up].) Nevertheless, “[t]he
law is . . . clear that even if a good amendment is proposed in proper form,
unwarranted delay in presenting it may—of itself—be a valid reason for
denial.” (Emerald Bay Community Assn. v. Golden Eagle Ins. Corp. (2005)
130 Cal.App.4th 1078, 1097 (Emerald Bay) [cleaned up]; see (A.N. v. County
of Los Angeles (2009) 171 Cal.App.4th 1058, 1067 (A.N.) [applying Emerald
Bay’s delay standard to section 474 analysis].) Thus, a trial court may deny
an amendment under section 474 where the plaintiff has unreasonably
delayed in moving to amend. (A.N., at pp. 1066–1067.)
A finding of unreasonable delay under section 474 requires a showing
that the defendant would suffer prejudice from plaintiff’s delay in filing the
9 We note that Sahu references the standard of review of an order
denying amendment under section 473, subdivision (a)(1). However, Garcia
did not identify section 473, subdivision (a)(1), in his application in the trial
court to substitute Rook as a defendant. Neither has he cited section 473,
subdivision (a)(1), in support of his arguments on appeal.
8
Doe amendment. (A.N., supra, 171 Cal.App.4th at p. 1067.) Prejudice can be
found where, on the eve of trial, a plaintiff seeks to add a new party “who
would have had to prepare to defend against a case in short order.” (Id. at
pp. 1068–1069.) “An order granting or denying leave to amend a pleading
[under section 474] will not be disturbed absent a showing that the trial court
abused its discretion.” (Id. at p. 1067.) “The test for abuse of discretion is
whether the trial court’s decision is arbitrary, capricious or without basis in
reason.” (Ibid.)
Even setting aside the approximately two months between Sahu’s
disclosure of Rook’s identity and Garcia’s new counsel taking over, and the
approximately three months counsel was on leave due to illness, there
remains unexcused delays totaling some eight months. Specifically, more
than four months elapsed between November 30, 2023, when Garcia’s new
counsel received Sahu’s disclosure of Rook’s identity, and the beginning of
counsel’s medical leave on April 8, 2024. The only justification Garcia
provides for this delay is that counsel “assumed that the correct party had
been sued when he took over the case” and his failure to “review[ ] discovery
responses and settlement offers more closely . . . was a mistake.”10
Similarly, nearly four months elapsed between counsel’s return to work on
July 8, 2024 and Garcia’s October 29, 2024 application for leave to substitute
Rook as a defendant. Again, Garcia argues this delay should be excused
because of his counsel’s mistake, as he “erroneously believed that the
complaint was amended as he instructed before his absence.” He further
10 With respect to his reasons for his delay in seeking leave to amend,
Garcia references the justifications he offered in arguing he was entitled to
relief from the dismissal of the Doe defendants under section 473,
subdivision (b).
9
argues a portion of this delay was due to counsel’s mistake in believing Sahu
had accepted liability.
Garcia cites authority holding error by an attorney’s office or clerical
staff, an attorney’s illness, and calendaring errors may amount to excusable
neglect for purposes of receiving discretionary relief from dismissal under
section 473, subdivision (b). Even assuming this authority applies to our
analysis under section 474, it does not establish excusable neglect for the
eight months of delay at issue here, for which Garcia’s only justification is
counsel’s oversight. (See Huh v. Wang (2007) 158 Cal.App.4th 1406, 1423–
1424 [recognizing extraordinary circumstances that can support finding of
excusable neglect under section 473, subdivision (b), but finding no excuse
existed where attorney was merely “ ‘overwhelmed and disorganized’ ”].) And
a trial court may deny leave to amend under section 474 based on delay for
which there has been no justification offered. (A.N., supra, 171 Cal.App.4th
at p. 1068 [no abuse of discretion where unexplained delay of seven or eight
months in moving to amend after learning identity of defendants during
discovery]; see also Randall, supra, 107 Cal.App.2d at p. 709 [upholding
denial of substitution where plaintiffs “did not exercise due or any
diligence”].)
As for prejudice, Garcia concedes prejudice to a newly named defendant
may be found when the defendant is first named on the eve of trial. (A.N.,
supra, 171 Cal.App.4th at pp. 1068–1069.) Garcia also concedes Sahu would
have suffered prejudice from the delayed amendment in the form of a “trial
continuance and additional discovery.” Rather than disputing that such
prejudice would have resulted from his proposed amendment to add Rook
days before the trial date, he merely argues prejudice should not determine
the outcome here because he has established a reasonable excuse for his
10
delay in seeking to amend and the resulting prejudice “was insufficient . . . to
justify preventing Garcia from obtaining compensation from the driver who
injured him.” As we have explained, however, Garcia has shown no cause for
his delay in moving to amend his complaint. And the prejudice that Garcia
concedes would have resulted from his unexcused delay is sufficient to
support the trial court’s denial of leave to amend.
Because Garcia has no valid excuse for his delay in seeking to amend
his complaint under section 474 to substitute Rook in place of one of the Doe
defendants, and because the proposed amendment would have resulted in
prejudice, the trial court did not abuse its discretion in denying Garcia’s
application.
DISPOSITION
The judgment is affirmed. Sahu is entitled to his costs on appeal.
(California Rules of Court, rules 8.278(a)(2) and (a)(5).)
DO, J.
WE CONCUR:
O’ROURKE, Acting P. J.
RUBIN, J.
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