Judge Armen Tamzarian, Case 22STCV27875 2023-01-04 Tentative Ruling

Judge: Armen Tamzarian, Case: 22STCV27875, Date: 2023-01-04 Tentative Ruling

Case Number: 22STCV27875 Hearing Date: January 4, 2023 Dept: 52

Plaintiff A.M.G.’s Motion to Seal Certificates of Merit, Permit Service on Doe Defendants, Permit Plaintiff to File an Amended Complaint, and Permit Plaintiff to Proceed Under a Fictitious Name

Plaintiff A.M.G. applies for three orders under Code of Civil Procedure section 340:1: to (1) seal certificates of merit, (2) permit service on defendants Doe 1 and Doe 2, and (3) permit plaintiff to file an amended complaint.

Plaintiff also applies for a fourth order: to proceed with this action under a fictitious name.

1. Sealing

The court finds good cause to seal the certificates of merit. The general rules for sealing records “do not apply to records that are required to be kept confidential by law.” (Cal. Rules of Court, rule 2.550(a)(2).) Section 340.1, subdivision (i) provides that the court must review the certificates of merit in camera. (See also Cal. Rules of Court, rule 2.585.) The court cannot publicly disclose the certificates of merit.

2. Service on Doe 1 and Doe 2

Plaintiff has filed certificates of merit sufficient to permit service of process on defendants Doe 1 and Doe 2. “In an action for recovery of damages suffered as a result of childhood sexual assault” (CCP § 340.1(a)), section 340.1 requires filing “certificates of merit” by plaintiff’s counsel and a licensed mental health practitioner (Id., subds. (g-h)).

The certificate of merit by plaintiff’s counsel Justin R. Felton states he reviewed the facts, consulted with a mental health practitioner, and concluded this case has merit. (CCP § 340.1(g)(1).) Plaintiff also submitted a certificate of merit by a licensed mental health practitioner which shows the practitioner has not treated plaintiff, has interviewed plaintiff, knows the relevant facts, and concluded there is a reasonable basis to believe the plaintiff was subjected to childhood sexual abuse. (CCP § 340.1(g)(2).) Plaintiff may therefore serve defendants Doe 1 and Doe 2. (CCP § 340.1(i).)

3. Amendment to Substitute Names of Doe 1 and Doe 2

Plaintiff has shown corroborative facts sufficient to permit an amendment to substitute the true names of defendants Doe 1 and Doe 2. In an action for childhood sexual assault, the plaintiff must designate the defendant as a Doe “until there has been a showing of corroborative fact.” (CCP § 340.1(l).) Plaintiff submitted an adequate certificate of corroborative fact executed by counsel Justin R. Felton. (CCP § 340.1,

subds. (m) & (n).) Plaintiff may therefore amend the complaint to substitute the true names of defendants Doe 1 and Doe 2.

4. Plaintiff’s Use of a Fictitious Name

Finally, the court finds it is appropriate only to conditionally permit plaintiff to use a fictitious name in this action. Code of Civil Procedure section 340.1 does not expressly provide for plaintiffs to use fictitious names to maintain anonymity. Where no statute provides for plaintiff’s anonymity, “the trial court must conduct a hearing and apply the overriding interest test” to determine whether the plaintiff may remain anonymous. (Department of Fair Employment and Housing v. Superior Court of Santa Clara County (2022) 82 Cal.App.5th 105, 112 (DFEH).)

A party’s request for anonymity should be granted only if the court finds that an overriding interest will likely be prejudiced without use of a pseudonym, and that it is not feasible to protect the interest with less impact on the constitutional right of access. [Fn.] In deciding the issue the court must bear in mind the critical importance of the public’s right to access judicial proceedings. Outside of cases where anonymity is expressly permitted by statute, litigating by pseudonym should occur “only in the rarest of circumstances.”

(Id. at pp. 112-113.) Courts have permitted plaintiffs to use fictitious names in actions alleging sexual assault where no statute provides expressly for anonymity. (See Doe v. Superior Court (2011) 194 Cal.App.4th 750, 754 [permitting use of fictitious name when verifying discovery responses].)

The Court of Appeal’s opinion in DFEH, however, includes a caveat: “In determining the appropriate standard, we first note that here the identity of the [plaintiff] seeking to proceed under a pseudonym is known to the defendant. Significant constitutional concerns would be implicated were it otherwise.” (DFEH, supra, 82 Cal.App.5th at p. 110.)

Defendants’ rights to due process requires providing them an opportunity to appear and respond to plaintiff’s motion to use the fictitious name “A.M.G.” Doe 1 and 2 have not yet been served with the summons in this action and may not know plaintiff’s identity.

In DFEH, the Court of Appeal stated that a plaintiff seeking anonymity should be conditionally permitted to use a fictitious name. “Procedurally, because a hearing is required, a party who wants to proceed anonymously will file the initial complaint or petition conditionally under a pseudonym and then move for an order granting permission

to proceed that way. If the request is granted, the initial pleading can remain. If pseudonym use is denied, the pleading must be amended to state the party’s true name.” (DFEH, supra, 82 Cal.App.5th at p. 111, fn. 1.)

The court therefore will not issue an order permitting plaintiff to use a fictitious name throughout this case. Plaintiff may conditionally use the fictitious name “A.M.G.” until defendants Doe 1 and Doe 2 have notice of plaintiff’s identity, notice of this motion, and an opportunity to be heard. The court will then apply the overriding interest test to determine whether plaintiff may use a pseudonym for the rest of this action.

Disposition

Plaintiff A.M.G.’s motion is granted in part as to sealing the certificates of merit, service of summons on Doe 1 and Doe 2, and amending the complaint to substitute Doe 1’s and Doe 2’s true names.

As to plaintiff’s use of a fictitious name, plaintiff may conditionally proceed under the name “A.M.G.” until a further hearing on the matter. The court hereby sets an order to show cause re: plaintiff’s use of a fictitious name for March 1, 2023, at 9:00 a.m.

The court will sign the proposed order as modified by striking the portion permitting plaintiff to proceed with a fictitious name.