Judge: Daniel M. Crowley, Case: 20STCV13901, Date: 2022-12-05 Tentative Ruling

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Case Number: 20STCV13901    Hearing Date: December 5, 2022    Dept: 28

John Doe # 1, et al. v. Defendant Roe, et al.

LASC Case No. 20STCV13901

Defendant’s Motion to Vacate Orders, Unseal Records, Strike and Dismiss

 

Background

            On April 9, 2020, Plaintiffs filed a complaint for Childhood Sexual Abuse, Negligent Hiring, etc., and Negligence. Plaintiffs filed as Does against Roe defendants.

            On December 3, Plaintiffs made an ex parte application pursuant to Code of Civil Procedure section 340.1 requesting the Court review, in camera, Certificates of Merit and a Certificate of Corroborative Fact, and to grant Plaintiffs leave to amend their complaint to name a Roe Defendant.  In support of the application, Plaintiffs submitted the declaration of their attorney, John A. Girardi, Esq. (Code of Civ. Proc. § 340.1(g)(1)), and lodged Certificates of Merit as to each plaintiff signed by Shirley Impellizzeri (Code of Civ. Proc. § 340.1(g)(2)), as well as a Certificate of Corroborative Fact as to both plaintiffs (Code of Civ. Proc. § 340.1(m)(1)). 

            On December 7, 2021, the Court issued a minute order granting the ex parte application, granting Plaintiffs leave to amend their complaint pursuant to Code of Civil Procedure section 340.1(m).

            On December 16, 2021, the Court issued an order granting the ex parte application, granting Plaintiffs leave to amend their complaint pursuant to Code of Civil Procedure section 340.1(m).

            On December 23, 2021, Plaintiffs moved to strike Plaintiff’s Notice of Lodgment (which should have been filed under seal (Code of Civ. Proc. § 340.1(o)).  The Court issued an order sealing the items that had been filed but should have lodged with the Court (Certificates of Merit, Certificate of Corroborative Fact). 

            Defendant Roe was personally served with the Summons and First Amended Complaint on February 11, 2022.

On April 5, 2022, Plaintiff and Defendant Roe stipulated to add this case to those cases coordinated as Southern California Clergy Cases, JCCP No. 5101.

            On July 7, 2022, Defendant Roe filed a motion to vacate the Court’s December 3, 2021, December 16, 2021, and December 23, 2021 orders.  Defendant Roe’s motion also seeks to strike the Complaint and the First Amended Complaint, and to dismiss Plaintiffs’ action.  Defendant Roe so moves pursuant to Code of Civ. Proc. §§ 170.1, 340.1, 435, 436, Code of Judicial Ethics, Canons 2, 3, and California Rules of Court, rules 2.550 and 2.551.  The matter was heard by the Honorable David Cunningham, III on September 29, 2022.  The motion was denied.[1] 

            On October 18, 2022, Defendant Roe filed its motion anew, this time in Department 28.  

 

Discussion

The Court denies Defendant’s motion on both procedural and substantive grounds.

Defendant has no procedural basis to attack the Court’s orders.  First, the matter has already been ruled upon by the Honorable David Cunningham in the coordinated JCCP No. 5101. 

Second, with the exception of Code of Civil Procedure sections 340.1, 435 and 436, none of the listed bases for Defendant Roe’s motion authorize the relief requested.  Code of Civil Procedure section 340.1(k) provides that a failure by a plaintiff to submit the certificates required by section 340.1 shall be grounds for a demurrer or motion to strike, but there was no such failure here.  In addition, a demurrer under Code of Civil Procedure section 430.10 or  motion to strike under Code of Civil Procedure section 435 must be brought within the time to respond to the complaint. (Code of Civ. Proc. §§ 412.20(a)(3) and 435(b)(1), respectively.)  Defendant’s motion was filed outside of the time to respond. 

Code of Civil Procedure section 436 allow the Court, at any time, to strike irrelevant, false, or improper matters in a pleading, or pleadings not filed in conformity with applicable law, rules, or orders.   Defendant has not made any such showing here.

Plaintiff’s motion is substantively deficient.  Code of Civil Procedure section § 340.1 prescribes the process by which individuals alleging to have been victims of childhood sexual abuse are to file and serve their complaints when the individual making the allegations is over the age of 40.  Section 340.1 subparts (f) and (g) require a plaintiff’s counsel to submit certificates of merit signed by the attorney and a mental health professional.  As described above, on December 3, 2021, Plaintiffs submitted for in camera review, Certificates of Merit and a Certificate of Corroborative Fact, and to grant Plaintiffs leave to amend their complaint to name a Roe Defendant.  In support of the application, Plaintiffs submitted the declaration of their attorney, John A. Girardi, Esq. (Code of Civ. Proc. § 340.1(g)(1)), and lodged Certificates of Merit as to each plaintiff signed by Shirley Impellizzeri (Code of Civ. Proc. § 340.1(g)(2)), as well as a Certificate of Corroborative Fact as to both plaintiffs (Code of Civ. Proc. § 340.1(m)(1)). 

Code of Civil Procedure section 340.1(h) states,

“Certificates of merit shall be executed by the attorney for the plaintiff and by a licensed mental health practitioner selected by the plaintiff declaring, respectively, as follows, setting forth the facts which support the declaration:

  1. That the attorney has reviewed the facts of the case, that the attorney has consulted with at least one mental health practitioner who is licensed to practice and practices in this state and who the attorney reasonably believes is knowledgeable of the relevant facts and issues involved in the particular action, and that the attorney has concluded on the basis of that review and consultation that there is reasonable and meritorious cause for the filing of the action. The person consulted may not be a party to the litigation.”

     

          Section 340.1(h) requires only that the attorney’s declaration state that the attorney has reviewed the facts and has consulted with a mental health practitioner and based on that review and consultation that the attorney has concluded that there is a “reasonable and meritorious cause for the filing of the action.” There is no requirement in section 340.1 that the attorney’s declaration contain a factual summary supporting the merits of the case or a description of the consult with the mental health practitioner. 

          Plaintiff submitted the requisite certificates of merit, and the Court allowed the Plaintiff to proceed.   

          Plaintiff’s counsel filed these certificates without a request that they be sealed.  Counsel then realized his mistake and, on December 20, 2022, sought ex parte relief.  Although the stated request was to strike the certificates, the Court sealed them in accord with Code of Civil Procedure 340.1(o). 

          Plaintiff’s motion offers no basis to overturn either this Court’s prior rulings or the Honorable David Cunningham’s ruling of September 29, 2022.

     

    Conclusion

          Defendant Roe’s motion is DENIED.

     


[1] Defendant Roe makes only a passing mention in a footnote in its papers of its having previously made the instant motion or of Judge Cunningham’s denial of it.  Defendant’s counsel’s declaration does attach a copy of a portion of the transcript of the hearing before Judge Cunningham in which Judge Cunningham suggests that D. 28 might consider a request for clarification of its prior orders.  ( See, Declaration of Lee W. Potts, Ex. 10, Transcript, 18:24-19:2)  The instant motion is not one for “clarification,” it is a straight renewal of the motion denied by Judge Cunningham.  Defendant agrees that there is no procedure for a clarification.  (Moving Papers, p. 8, fn 3.)