Judge David S. Cunningham, Case JCCP5101 2022-09-08 Tentative Ruling

Moving Party: Doe 1 Diocese (“Doe 1”) and Doe 2 Parish (“Doe 2”) (jointly “Defendants”)

This coordinated proceeding involves approximately 475 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.

Here, Doe 1 and Doe 2 move to strike P.S.’s complaint and first amended complaint (“FAC”), arguing that Judge Helen Zukin’s order approving the certificates of merit and service of process is void.

“Motions to strike can be used to reach defects in or objections to pleadings that are not challengeable by demurrer. Complaints, cross-complaints, answers and demurrers are all subject to a motion to strike [citation].” (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2022) ¶ 7:156.) “Moreover, a motion to strike can be used to attack the entire pleading, or any part thereof—i.e., even single words or phrases (unlike demurrers).” (Ibid.)

* To strike any ‘irrelevant, false or improper matter inserted in any pleading’; or

* To strike any pleading or part thereof ‘not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.’ [Citation.]

“As with demurrers [citation], the grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice (e.g., the court's own files or records).” (Id. at ¶ 7:168.)

“Thus, for example, defendant cannot base a motion to strike the complaint on affidavits or declarations containing extrinsic evidence showing that the allegations are ‘false’ or ‘sham.’ Such challenges lie only if these defects appear on the face of the complaint, or from matters judicially noticeable.” (Id. at ¶ 7:169, emphasis in original.)

“Special procedures are required in actions by a plaintiff who is 40 or older for childhood sexual assault.” (Id. at ¶ 1:913.1.) “Before serving any defendant, plaintiffs must 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.)

On 1/6/22, P.S. filed the complaint. The complaint named Defendants as Doe Defendants.

On 1/26/22, Judge Zukin granted P.S.’s ex parte application to seal the certificates of merit, name Defendants by their real names, file the FAC, and serve Defendants with process.

The first issue is whether Defendants’ motion to strike is timely. Code of Civil Procedure section 340.1(k) states that “[t]he 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.” (Code Civ. Proc. § 340.1, subd. (k), emphasis added.) Section 435 requires a motion to strike to be filed “‘within the time allowed to respond to a pleading’ – e.g., 30 days after service of the complaint or cross-complaint unless extended by court order or stipulation.” (Weil & Brown, supra, at ¶ 7:159.) Defendants moved to strike on 6/22/22, more than 30 days after P.S.. filed the FAC, Judge Zukin granted leave to serve process, and Defendants acknowledged receipt. The record lacks evidence of an order or stipulation extending the time to respond, so the motion appears to be late. This is reason enough to deny the motion and to decline to consider Defendants’ arguments.

The motion also might be late in terms of reconsideration. Effectively, the motion is a request for the Court to reconsider Judge Zukin’s 1/26/22 order sealing the certificates of merit and granting permission to serve process. Defendants filed the motion well beyond Code of Civil Procedure section 1008’s 10-day time limit.

Defendants contend the 10-day time limit never started running because they “were not served with Judge Zukin’s order.” (Reply, 5.)

P.S., by contrast, states that “Defendant[s] received written notice of the entry of Judge Zukin’s order when” P.S. served them as named Defendants “in this action back in January.” (Opposition, p. 5.)

The Court is willing to discuss this factual dispute with the parties at the 9/8/22 hearing; however, even assuming the motion is timely under section 1008, it still should be denied because:

* Judge Zukin reviewed the certificates of merit and ordered them sealed, presumably finding them compliant with section 340.1 given that she allowed Defendants to be named by their real names in the FAC and authorized service of process;

* it is improper to reconsider another judge’s ruling under section 1008 (see, e.g., Weil & Brown, supra, at ¶¶ 9:324.3-9:324.4); and

[1] Defendants state that “Judge Zukin was, and is, disqualified so there could be no jurisdiction for reconsideration by her.” (Reply, p. 5.) No order or evidence is cited showing her disqualification. At the hearing, the Court will give defense counsel an opportunity to elaborate on the statement, but, regardless, the motion remains late under sections 340.1(k) and 435.