Judge David S. Cunningham, Case 20STCV18395 2023-04-13 Tentative Ruling

Judge: David S. Cunningham, Case: 20STCV18395, Date: 2023-04-13 Tentative Ruling

Case Number: 20STCV18395 Hearing Date: April 13, 2023 Dept: 11

JCCP 5101 (Clergy Cases)

20STCV18395 (Lott)

Tentative Ruling Re: Motion to Seal

Date: 4/13/23

Time: 9:30 am

Moving Party: James Lott (“Lott”)

Opposing Party: John Doe 1 and John Doe 2 (collectively “Doe Defendants”)

Department: 11

Judge: David S. Cunningham III

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TENTATIVE RULING

Lott’s motion to seal the original and amended certificates of merit is granted.

BACKGROUND

This coordinated proceeding (JCCP 5101) involves hundreds of Plaintiffs. The complaints allege that clergy members sexually assaulted Plaintiffs when they were minors. The Institutional Defendants allegedly failed to protect Plaintiffs from the alleged assaults.

On 7/1/20, in Lott’s individual case (20STCV18395), Judge Daniel Crowley sealed Lott’s original certificates of merit.

On 11/10/20, Judge Monica Bachner sealed Lott’s amended certificates.

On 2/6/23, this Court granted Doe Defendants’ motion to unseal the original and amended certificates because Judge Crowley’s and Judge Bachner’s orders fail to state the reasons for sealing as required by Rule of Court 2.550. But the Court stayed enforcement of the ruling to give Lott an opportunity to file a new motion to seal.

Now, Lott moves to seal the original and amended certificates.

LAW

Certificates of Merit

“Special procedures are required in actions by a plaintiff who is 40 or older for childhood sexual assault[.]” (Edmon & Karnow, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2022) ¶ 1:913.1.) “Before serving any defendant,” Code of Civil Procedure section 340.1 requires plaintiffs to “file a certificate of merit with the court as to each defendant allegedly responsible for the abuse. The certificate must show that, in the opinion of both plaintiff's attorney and a qualified mental health practitioner, there is reason to believe plaintiff was subject to the childhood sexual abuse alleged in the complaint.” (Id. at ¶ 1:913.3.) “If more than one defendant is sued, the attorney must file separate certificates of merit for each defendant.” (Ibid.) “The court must review the certificates in camera to determine if there is a ‘reasonable and meritorious cause for the filing of the action’ against each particular defendant. If such finding is made, the duty to serve that defendant arises.” (Ibid.; see also id. at ¶ 1:469.5 [“In cases brought by victims of childhood sexual assault who are over 40 at the time of the case filing, plaintiff's counsel must certify counsel has consulted with a mental health practitioner and concluded there is merit to the case. The practitioner must execute a certificate that “there is a reasonable basis to believe that the plaintiff had been subject to childhood sexual abuse.”].)

“The person charged with the abuse shall not be named and shall be referred to only as ‘Doe’ in the original complaint filed with the court.” (Id. at ¶ 1:0913.2.) “Plaintiff must apply to the court for leave to amend the complaint to name the defendant. Such application must be accompanied by a ‘certificate of corroborative fact’ executed by plaintiff's attorney.” (Id. at ¶ 1:913.4.)

“Failure to comply with the above requirements [citation] is ground for demurrer or motion to strike the complaint and for disciplinary action against plaintiff's attorney.” (Id. at ¶ 1:913.5, emphasis in original.)

Sealing

The court may order that a record be filed under seal only if it expressly finds facts that establish:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and

(5) No less restrictive means exist to achieve the overriding interest.

(Cal. Rules of Court, rule 2.550(d), emphasis added.) “These findings embody constitutional requirements for a request to seal court records, protecting the First Amendment right of public access to civil trials. (Edmon & Karnow, supra, at ¶ 9:418, emphasis in original.)

DISCUSSION

Lott contends the motion to seal should be granted because (1) section 340.1 requires certificates of merit to be reviewed by courts in camera, (2) the Legislature intended to keep certificates confidential and to prevent defendants from accessing them, even post-litigation, and (3) the certificates contain work product, the mental health practitioner’s identity, and Doe Defendants’ real names. (See Motion, pp. 3-5.)

Doe Defendants contend the motion should be denied because (1) section 340.1 lacks language authorizing sealing, (2) the prohibition against naming defendants by their real names is a protection for defendants and, thus, is not a basis for sealing certificates and restricting defendants’ access, and (3) Lott fails to show an overriding interest. (See Opposition, pp. 1-5.)

In the alternative, Doe Defendants contend the Court should redact their real names, and the rest of the information in the certificates should be made public. (See id. at p. 5.)

The Court agrees with Lott. The motion to seal is granted because:

* Under section 340.1, certificates must be reviewed in camera. (See Code Civ. Proc. § 340.1, subd. (i).) There is no provision that authorizes a defendant and/or the public to see certificates before, during, or after litigation. In fact, the statute only identifies three potential consequences for noncompliance with the certificate procedure, and public disclosure is not one of them. (See id. at § 340.1, subd. (j) [“A violation of this section may constitute unprofessional conduct and may be the grounds for discipline against the attorney.”]; see also id. at § 340.1, subd. (k) [“The failure to file certificates in accordance with this section shall be grounds for a demurrer pursuant to Section 430.10 or a motion to strike pursuant to Section 435.”]; id. at § 340.1, subd. (p) [“Upon the favorable conclusion of the litigation with respect to any defendant for whom a certificate of merit was filed or for whom a certificate of merit should have been filed pursuant to this section, the court may, upon the motion of a party or upon the court's own motion, verify compliance with this section by requiring the attorney for the plaintiff who was required by subdivision (g) to execute the certificate to reveal the name, address, and telephone number of the person or persons consulted with pursuant to subdivision (g) that were relied upon by the attorney in preparation of the certificate of merit. The name, address, and telephone number shall be disclosed to the trial judge in camera and in the absence of the moving party. If the court finds there has been a failure to comply with this section, the court may order a party, a party's attorney, or both, to pay any reasonable expenses, including attorney's fees, incurred by the defendant for whom a certificate of merit should have been filed.”].) These factors demonstrate legislative intent to restrict defendants and the public from accessing certificates throughout the duration of litigation and beyond.

* Lott’s original and amended certificates contain confidential information, namely, facts supporting the filing of the action, Lott’s counsel’s impressions, the mental health practitioner’s identity and impressions, and Doe Defendants’ real names. (See Code Civ. Proc. § 340.1, subds. (l)-(n) [barring use of real names at this stage].)

* An overriding interest exists in protecting the confidential information from disclosure to Doe Defendants and the public.

* The overriding interest supports sealing Lott’s original and amended certificates.

* There is a substantial probability that the confidential information would be disclosed to Doe Defendants and the public absent sealing and that Lott would suffer prejudice.

* The proposed sealing is narrowly tailored and the least restrictive means of protection.

* Redacting Doe Defendants’ real names is an insufficient alternative option. Doe Defendants and the public would still be able to see the other confidential information. The legislative intent would be subverted, and Lott would be prejudiced.