Judge: David S. Cunningham, Case: JCCP5101, Date: 2022-09-29 Tentative Ruling
Case Number: JCCP5101 Hearing Date: September 29, 2022 Dept: 11
JCCP 5101 (Clergy Cases)
Tentative Ruling Re: Motion to Vacate and Strike Re: 20STCV49905 (John
Doe D.G.)
Date: 9/29/22
Time: 9:00
am
Moving Party: Defendant Doe 1 and Defendant Doe 2
(jointly “Defendants”)
Opposing Party: John Doe G.D. (“G.D.”) and John Doe
J.H.C. (“J.H.C.”) (jointly “Plaintiffs”)
Department: 11
Judge: David
S. Cunningham III
________________________________________________________________________
TENTATIVE RULING
Defendants’ motion
to vacate and strike is denied.
BACKGROUND
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, Defendants move to strike
G.D. and J.H.C.’s complaint, arguing that Judge Timothy Dillon’s orders
approving the certificates of merit and service of process are invalid.
LAW
Motion to Strike
“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.)
Unless the action is a
limited civil case, the motion lies either:
* 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.]
(Id. at ¶ 7:167, emphasis in original.)
“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.)
Certificates of
Merit and Corroborative Fact
“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.)
DISCUSSION
On 12/31/20, Plaintiffs filed the
complaint.
On 2/23/22, Judge Jill Feeney
transferred the case to Judge Dillon.
On 3/18/22, Judge Dillon granted
Plaintiffs’ ex parte application to approve the certificates of merit, name
Defendants by their real names, file amendments to the complaint, and serve
Defendants with process.
On 3/25/22, Plaintiffs filed the
amendments, adding Defendants’ real names.
On 3/30/22, Defendants
acknowledged receipt of the amendments.
The first issue is whether
Defendants’ motion 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 7/11/22, more than 30 days after Judge Dillon granted leave
to serve process, Plaintiffs filed the amendments, and Defendants acknowledged
receiving the amendments. 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 appears late in
terms of reconsideration. Effectively,
the motion is a request for the Court to reconsider Judge Dillon’s orders
approving 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 Judge Dillon’s orders are invalid – and the motion should be
granted – because:
* the mental
health certificates for G.D. and J.H.C. are exactly the same and fail to state
sufficient facts (see Motion, pp. 2-3);
* the attorney
certificates for G.D. and J.H.C. are exactly the same and fail to state
sufficient facts (see id. at pp. 3-4);
* Judge Dillon’s
3/18/22 minute order fails to identify the documents he reviewed (see id. at p.
5);
* the 3/18/22
hearing constituted an improper ex parte hearing (see id. at pp. 5-8 [asserting
that Judge Dillon “had a private ex parte hearing with Plaintiff[s’]
counsel”]).
Plaintiffs
disagree. They contest each of these
arguments. (See Opposition, pp. 4-7.)
The
Court is willing to discuss the factual disputes with the parties at the
9/29/22 hearing; however, the motion should still be denied because:
* it is late under sections 340.1(k), 435, and 1008;
* the facts asserted by Defendants are not new or
different (see, e.g., Weil & Brown, supra, at ¶¶ 9:324, 9:328-9:329);
* Judge Dillon reviewed the certificates of merit in
camera and approved them, presumably finding them compliant with section 340.1
since he allowed Defendants to be named by their real names and authorized
service of process (see 3/18/22 Minute Order, p. 1 [stating that Judge Dillon
reviewed the certificates in camera]; see also 3/18/22 Order Re: In Camera
Reviews, p. 1 [stating that the certificates demonstrate a “reasonable and
meritorious cause for the filing of the action against Defendant DOES 1-4”]);
* it is improper to reconsider another judge’s ruling
(see, e.g., Weil & Brown, supra, at ¶¶ 9:324.3-9:324.4);
* the Court declines to second guess Judge Dillon.
Tentative Ruling Re: Motion to Vacate and Strike Re: 20STCV13901 (John
Doe #1)
Date: 9/29/22
Time: 9:00
am
Moving Party: Defendant Roe (“Roe”)
Opposing Party: John Doe #1, John Doe #2 (jointly
“Plaintiffs”)
Department: 11
Judge: David
S. Cunningham III
________________________________________________________________________
TENTATIVE RULING
Roe’s motion to
vacate and strike is denied.
BACKGROUND
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, Roe moves to strike John
Doe #1 and #2’s complaint and first amended complaint (“FAC”), arguing that
Judge Daniel Crowley’s orders approving the certificates of merit and service
of process are invalid.
LAW
Motion to Strike
“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.)
Unless the action is a
limited civil case, the motion lies either:
* 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.]
(Id. at ¶ 7:167, emphasis in original.)
“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.)
Certificates of
Merit and Corroborative Fact
“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.)
DISCUSSION
On 4/9/20, Plaintiffs filed the complaint.
On 12/7/21, Judge Crowley granted
Plaintiffs’ ex parte application to approve the certificates of merit, name Roe
by its real name, file the FAC, and serve Roe with process.
On 12/16/21, Judge Crowley signed
an order memorializing the findings at the 12/7/21 ex parte hearing.
On 1/24/22, Plaintiffs filed the
FAC.
On 2/23/22, Plaintiffs filed a
proof of personal service. It indicates
that Plaintiffs used a third-party service provider to serve the FAC on Roe by
personal service on 2/11/22.
The first issue is whether Roe’s
motion 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.) Roe moved to
strike on 7/11/22, more than 30 days after Judge Crowley granted leave to serve
process, Plaintiffs filed the FAC, and Roe received service of the FAC. 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 Roe’ arguments.
The motion also appears late in
terms of reconsideration. Effectively,
the motion is a request for the Court to reconsider Judge Crowley’s 12/7/21 and
12/16/21 orders approving the certificates of merit and granting permission to
serve process. Roe filed the motion well beyond Code of Civil Procedure
section 1008’s 10-day time limit.
Roe contends Judge Crowley’s
orders are invalid – and the motion should be granted – because the
certificates of merit were executed by an attorney who was not the attorney of
record at that time. Roe claims John A.
Girardi of the Law Offices of John A. Girardi executed the certificates despite
the fact that the Girardi and Keese firm represented Plaintiffs. (See Motion, p. 3.)
Plaintiffs assert that John A.
Girardi represented them at all relevant times.
(See Opposition, pp. 7-8 [stating that he represented them at the
beginning of the lawsuit as a member of the Girardi and Keese firm and
continued to represent them once he opened his own firm].)
The
Court is willing to discuss this factual dispute with the parties at the
9/29/22 hearing; however, the motion still should be denied because:
* it is late under sections 340.1(k), 435, and 1008;
* the fact is not new or different (see, e.g., Weil &
Brown, supra, at ¶¶ 9:324, 9:328-9:329);
* Judge Crowley reviewed the certificates of merit and
approved them, presumably finding them compliant with section 340.1 since he
allowed Roe to be named by its real name in the FAC and authorized service of
process (see, e.g., 12/16/21 Order Granting Ex Parte Application, p. 2);
* it is improper to reconsider another judge’s ruling
(see, e.g., Weil & Brown, supra, at ¶¶ 9:324.3-9:324.4);
* the Court declines to second guess Judge Crowley.[1]