Judge: Armen Tamzarian, Case: 22STCV39029, Date: 2023-04-10 Tentative Ruling

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Case Number: 22STCV39029    Hearing Date: April 10, 2023    Dept: 52

Plaintiff R.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 R.G. applies under Code of Civil Procedure section 340.1 to seal certificates of merit and corroborative fact, permit service on defendant Doe 1, permit plaintiff to file an amended complaint, and permit plaintiff to use a fictitious name. 

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).)  Code of Civil Procedure section 340.1 provides that the court must review the certificates of merit (subd. (i)) and certificate of corroborative fact (subd. (n)) in camera.  (See also Cal. Rules of Court, rule 2.585.)  The court cannot publicly disclose the certificates of merit or certificate of corroborative fact. 

Service on Doe 1

Plaintiff has filed certificates of merit sufficient to permit service of process on defendant Doe 1.  “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 Ryan D. Harvey states he reviewed the facts of the case, consulted with a mental health practitioner, and concluded there is reasonable and meritorious cause to file this action against Doe 1.  (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 defendant Doe 1.  (CCP § 340.1(i).) 

Amendment to Substitute Names of Doe 1

Plaintiff has shown corroborative facts sufficient to permit an amendment to substitute the true name of defendant Doe 1.  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 Ryan D. Harvey.  (CCP § 340.1, subds. (m) & (n).)  Plaintiff may therefore amend the complaint to substitute the true name of defendant Doe 1.

Order to Show Cause Re: Plaintiff’s Fictitious Name

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].)  

Defendant’s right to due process requires providing it an opportunity to appear and object to plaintiff’s use of the fictitious name “R.G.”  (DFEH, supra, 82 Cal.App.5th at p. 110.)  Doe 1 has not yet been served with the summons in this action and may not know plaintiff’s identity. 

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.)

Plaintiff may conditionally use the fictitious name “R.G.” until defendant Doe 1 has notice of plaintiff’s identity 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 entire action.

Disposition

Plaintiff R.G.’s motion is granted.  The court hereby seals the certificates of merit and certificate of corroborative fact.  The court hereby orders that plaintiff may serve summons on defendant Doe 1 and may file an amended complaint to substitute Doe 1’s true name. 

The court hereby sets an order to show cause re: plaintiff’s use of a fictitious name for June 28, 2023, at 9:00 a.m.