Judge Bruce G. Iwasaki, Case 22STCV40729 2023-05-08 Tentative Ruling

Case Name: Jane A.V. Doe v. Los Angeles Unified School District, a public entity; Robert K. Carey, an individual, and DOES 1-20

Motion: Demurrer; Motion to Strike; Amended Motion for In Camera Finding of Reasonable and Meritorious Cause

Moving Party: Specially Appearing Defendants Los Angeles Unified School District and Robert K. Carey

Tentative Ruling: Defendants’ motion to strike is granted; the Complaint is dismissed. Plaintiff’s amended motion for in camera finding of reasonable and meritorious cause is denied.

This is a childhood sexual assault case. On December 29, 2022, Plaintiff Jane A.V. Doe (“Plaintiff”) sued Specially Appearing Defendants Los Angeles Unified School District (“LAUSD”) and Robert Carey (“Carey”) (collectively, “Defendants”) for negligence, negligent supervision, sexual battery, and sexual harassment for sexual abuse committed by Carey while he was her swim coach at Los Angeles High School from 1982 to 1983. She was sixteen years old at the time.

On February 27, 2023, pursuant to Code of Civil Procedure section 340.1, subdivision (f), Plaintiff lodged three certificates of merit—one regarding Carey, another regarding LAUSD, and another regarding Plaintiff’s mental health. The same day, she moved for an in camera finding of reasonable and meritorious cause for the filing of the action. She also filed a Notice of Errata to correct an “inadvertent filing” of the Complaint. (Notice of Errata, pg. 2, line 5.) In the Notice of Errata, she included a Complaint that omitted the names of LAUSD and Carey.

On March 8, 2023, Defendants demurred to Plaintiff’s Complaint on the grounds that in lodging the certificates of merit and filing her Complaint, she did not comply with various subsections of Code of Civil Procedure section 340.1. Defendants also moved to strike Plaintiff’s Complaint in its entirety.

On March 14, 2023, Plaintiff moved ex parte for the Court, in camera, to approve the three certificates of merit and to find reasonable and meritorious cause for the filing of the action. Plaintiff moved on the grounds that she would otherwise not comply with Code of Civil Procedure section 340.1, subdivisions (g) and (i) and hence, lose her ability to sue defendants. On March 16, 2023, Judge Armen Tamzarian denied the ex parte application and advised that Plaintiff should instead file a noticed motion. (3/16/23 Minute Order.) The same day, Plaintiff supplemented her motion for in camera finding of reasonable and meritorious cause for the filing of the action on the ground that the Code of Civil Procedure section 340.1, subdivision (q) applies to her and according to her, she is exempt from the certificate of merit requirement. Together with supplementing her motion, Plaintiff asked the Court to take judicial notice of the filings in a purportedly similar matter.

On March 20, 2023, Plaintiff filed a peremptory challenge to Judge Tamzarian. The same day, the Court granted it and reassigned the case to Department 58.

On March 27, 2023, Plaintiff moved ex parte and on the same grounds she moved ex parte on March 14, 2023. On April 3, finding no exigent circumstances, the Court denied Plaintiff’s motion.

On March 28, 2023, Defendants moved to amend their demurrer and to strike Plaintiff’s Complaint in its entirety. On April 24, 2023, Plaintiff filed opposition. Defendants filed a reply.

On April 3, 2023, Plaintiff moved to amend her motion for an in camera finding of reasonable and meritorious cause for the filing of the action. Together with her amended motion, she lodged the three certificates of merit with Department 58. Plaintiff once again asked the Court to take judicial notice of the filings in a purported similar matter. On April 13, 2023, Defendants opposed Plaintiff’s amended motion. On April 19, Plaintiff replied.

Before the Court are the following matters: (1) Plaintiff’s amended motion for an in- camera finding of reasonable and meritorious cause for filing the action; and (2) Defendants’ amended demurrer to, and motion to strike, the Complaint. The Court first addressed Defendants’ demurrer and motion to strike.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the Complaint or a matter of which the Court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (§ 452.) The Court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) The Court liberally construes the Complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

In a childhood sexual assault action, the failure to file certificates—certificates of merit and a corroborative certificate—in accordance with Code of Civil Procedure section 340.1 is grounds for a demurrer or a motion to strike. (Code Civ. Pro., § 340.1, subd. (k).)

Defendants demur on the grounds that that Plaintiff failed to comply with and violated the provisions contained in Code of Civil Procedure section 340.1, subdivisions (f), (g), (h), (i), (k), (l), and (m). (Unless otherwise noted, statutory references are to the Code of Civil Procedure.)

First, Defendants contend that Plaintiff named them in her Complaint without filing a certificate of corroborative fact and obtaining permission to name them. In doing so Plaintiff violated section 340, subdivisions (l) and (m).

Second, Defendants point out that Plaintiff served her Complaint on defendants prior to filing certificates of merit in violation of section 340.1, section (i).

Third, Plaintiff's Complaint confirms on its face that she was born in 1966 making her more than 40 years old. Code of Civil Procedure section 340.1, subdivision (f) states: “Every plaintiff 40 years of age or older at the time the action is filed shall file certificates of merit as specified in subdivision (g).”

Fourth, Plaintiff's counsel later did file certificates of merit specified in section 340.1, subdivision (g)(1) and (g)(2), but failed to execute and file the certificate under subdivision (g)(3). The section 340.1, subdivision (g)(3) certificate allows the certificates under (g)(1) and (g)(2) to be filed within 60 days after filing the Complaint.

Additionally, Defendant contends, Plaintiff’s filing of the Notice of Errata does not cure the statutory errors she made.

Plaintiff argues that because she sued Defendants pursuant to Code of Civil Procedure section 340.1, subdivision (q), she need not comply with the certificate of merit requirement. According to Plaintiff, subdivision (q) is silent with respect to the statutory scheme regarding the need for a certificate of merit, arguing that her claims were revived and brought within the statute of limitations. Regardless, Plaintiff contends that she complied with section 340.1, subdivision (g)(1), (g)(2), and (g)(3) by filing and lodging the appropriate certificates of merit within 60 days of the filing of the Complaint in this action, February 27, 2023.

Plaintiff also argues that Defendants have no grounds to demur because she filed the certificates of merit. According to Plaintiff, only if Plaintiff was required to file the certificates, and the plaintiff did not file the certificates within the 60-day period under Code of Civil Procedure Section 340.1, subdivision (g)(3), would Defendants have grounds to file a demurrer or motion to strike under Code of Civil Procedure section 340.1, subdivision (k).

In addition, Plaintiff argues that the Court should follow the ruling in John Roe 110 E.H matter pending before Judge Lawrence P. Riff in Department 007 of the Spring Street Courthouse. The John Roe 110 E.H Motion for Review and Approval of Certificates of Merit was filed after Defendant County of Los Angeles was served in the John Roe 110 E.H Matter. Plaintiff contends that the procedural history and facts in the John Roe 110 E.H Matter are almost identical to the procedural history and facts in this matter, and thus, the Court in this matter should follow Judge Lawrence P. Riff’s ruling in granting Plaintiff’s motion to approve certificates and allow Plaintiff to serve Defendants.

In reply, Defendants argue that Plaintiff was 57 years old at the time she sued, and she is thereby subject to the procedural requirements in section 340.1, subdivision (f). In addition, Defendants argue that the circumstances under which the plaintiffs in E.H. were permitted to name and serve defendants differ from the ones in this case.

As an initial matter, the Court notes that Defendants’ meet-and-confer efforts were insufficient. Code of Civil Procedure section 430.41, subdivision (a), and section 435.5, subdivision (a), require meeting and conferring “in person or by telephone.” Defense counsel merely states: “Prior to filing the instant demurrer, on February 13, 2023, I met and conferred with plaintiff's counsel and requested counsel to produce to me orders from the Court authorizing naming of Los Angeles Unified School District and Robert K. Carey and service of the summons and Complaint.” (Decl. Miller, ¶ 6.) Nonetheless, a failure to meet and confer is not grounds for overruling a demurrer. (Code Civ. Proc., § 430.41, subd. (a)(4).)

The Court takes judicial notice of: (1) Complaint for damages in the matter of John Roe 110 E.H, et al v. County of Los Angeles, Los Angeles Superior Court Case Number 22STCV40927; (2) proof of service of summons to Defendant County of Los Angeles in the John Roe 110 E.H Matter; (3) Plaintiffs’ Ex Parte Application For In Camera Review and Approval Of Certificates Of Merit; (4) Order granting Plaintiffs’ Ex Parte Application For An In Camera Review and Approval Of Certificates Of Merit. (Evid. Code, § 452, subd. (d).)

Code of Civil Procedure section 340.1 prescribes a detailed process in which court approval is required to initiate a childhood sexual assault claim filed by an adult. Section 340.1, subdivision (f) specifies that plaintiffs like the one in this case, who is over age 40, “shall file certificates of merit together with the complaint. The purpose of the certificate of merit requirement is to reduce the filing of frivolous claims by imposing a pleading hurdle.” (Doe v. San Diego-Imperial Council (2017) 16 Cal.App.5^th 301, 307.) The statute makes clear that failure to comply with the certificate submission procedures has serious consequences. Such failure “shall be ground for a demurrer . . . or a motion to strike” (§ 340.1, subd. (k).) Violation of the statute “may be the grounds for discipline against the attorney.” (§ 340.1, subd. (j).)

1. The first step is to file a Complaint that does not name the defendants. (See Code Civ. Proc., § 340, subd. (l).)

2. Plaintiffs over 40 years of age must file certificates of merit before serving the defendants. (Code Civ. Proc., § 340.1, subd. (f).) Plaintiff, born in 1966, was over age 40 when she filed the Complaint. There are at least two such certificates. The plaintiff must file a certificate executed by her attorney declaring that there is a reasonable and meritorious cause for the filing of the action. (Id., subd. (g)(1).) She must also file a certificate executed by a mental health practitioner declaring that in the practitioner’s opinion, there is a reasonable basis to believe that the plaintiff had been subject to childhood sexual abuse. (Id., subd. (g)(2).) If plaintiff cannot obtain the certificates before the statute of limitations runs, the attorney must declare as such, and file the certificates within 60 days of filing the Complaint. (Id., subd. (g)(3).)

3. The court reviews the certificates of merit in camera. Based solely on those certificates of merit, the court determines whether there is reasonable and meritorious cause for the filing of the action against that defendant. (Code Civ. Proc., § 340, subd. (i).)

4. Only upon the court’s finding of reasonable and meritorious cause can plaintiffs serve the defendant. (Code Civ. Proc., § 340, subd. (i).)

5. To substitute the name of the defendant or defendants for the fictitious designation, the plaintiff must apply to the Court for permission to amend the Complaint. (Code Civ. Proc., § 340, subd. (m).) To do this, the plaintiff files a certificate of corroborative fact executed by the attorney declaring that the attorney has discovered one or more facts corroborative of one or more of the charging allegations against a defendant or defendants. (Code Civ. Pro., § 340, subd. (m)(1).) The Court then reviews the application and certificate of corroborative fact in camera and, based solely on the certificate and any reasonable inferences to be drawn from the certificate, shall, if one or more facts corroborative of one or more of the charging allegations against a defendant has been shown, order that the Complaint be amended to substitute the name of the defendant or defendants. (Code Civ. Pro., § 340, subd. (n).) Plaintiffs can then amend the Complaint to name the defendant or defendants.

Plaintiff’s failure to follow the statute’s procedures requires that her Complaint be stricken.

Plaintiff did not follow these procedural requirements. She does not contend that she did. Rather, she claims exemption from the statute’s specific and carefully crafted steps. Plaintiff filed a Complaint that named both Carey and LAUSD. She served the Complaint without first obtaining an in camera finding that she had reasonable and meritorious cause to file the action against them. She served the Complaint naming both Carey and LAUSD without first obtaining an in-camera judicial finding that she has shown facts corroborative of one of the charging allegations against Defendants.

These requirements were enacted to ensure judicial oversight over claims that are highly charged, based on events many years before, and raise sensitive privacy issues for both plaintiffs and defendants. Plaintiff contends that she is exempt from the procedures based on section 340.1, subdivision (q), which provides for a one-time window for reviving stale claims. Plaintiff offers no authority for this interpretation, and does not show how subdivision (q) applies to her claim.

Plaintiff’s reading of the statute has not been thought through. In general, it fails to give meaning to the statute as a whole, by treating subdivision (q) as somehow eliminating the requirements of other subsections, including (f), (g), (h), and (i). Plaintiff’s contention confuses an exception to the limitations period with the certificate procedure intended to discourage frivolous claims and protect privacy interests.

Plaintiff’s second argument that Defendants lack “standing” to demur to the Complaint is also at odds with the statute. In the first place, “standing” is not a concept applied to whether a defendant may challenge a pleading. But more practically, who else does Plaintiff suppose has an interest in striking a complaint that ignores statutory requirements than the parties the Legislature intended to protect with those procedures. Plaintiff’s arguments lack authority and logic.

Plaintiff failed to comply with multiple provisions of Code of Civil Procedure section 340.1, and that statute expressly provides that a demurrer or motion to strike lies against such violations. This conduct disregarded the Legislature’s mandate that the Court review certifications before claims of sexual abuse are made public. The Court is mindful that Plaintiff herself did not direct this conduct, but relied on her counsel to abide by the law. The Legislature provided that a violation of this statute may be grounds for attorney discipline. (Code Civ. Proc., § 340.1, subd. (j).)

Unlike other circumstances in which a demurrer is sustained, no amendment can correct Plaintiff’s statutory violations. Plaintiff has entered into the public record the Defendants’ names without complying with the procedures of section 340.1.

Based on the Court’s review of the filings, Plaintiff has not pleaded a right to bring suit under section 340.1, subdivision (a). Accordingly, the Court strikes the Complaint and enters dismissal of the entire matter.