Judge David S. Cunningham, Case JCCP5101 2022-10-12 Tentative Ruling

Judge: David S. Cunningham, Case: JCCP5101, Date: 2022-10-12 Tentative Ruling

Case Number: JCCP5101 Hearing Date: October 12, 2022 Dept: 11

JCCP 5101 (Clergy Cases)

Tentative Ruling Re: Motion to Vacate/Strike Re: 22STCV07886 (M.M.)

Date: 10/12/22

Time: 10:00 am

Moving Party: Doe 1, Doe 2, Doe 3 (jointly “Defendants”)

Opposing Party: M.M.

Department: 11

Judge: David S. Cunningham III

________________________________________________________________________

TENTATIVE RULING

Defendants’ motion to vacate/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 M.M.’s complaint and first amended complaint (“FAC”), arguing that she served defective certificates of merit and corroborative fact.

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 3/3/22, M.M. filed the complaint.

On 3/18/22, Judge William Crowfoot granted M.M.’s ex parte application to approve the certificates of merit, name Defendants by their real names, file the FAC, and serve Defendants with process. Judge Crowfoot also sealed the certificates of merit.

On 3/22/22, M.M. filed the FAC.

On 3/29/22, Defendants’ counsel acknowledged receipt of the FAC.

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 7/18/22, more than 30 days after Judge Crowfoot granted leave to serve process, M.M. filed the FAC, and Defendants’ counsel acknowledged receiving 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 Defendants’ arguments.

The motion also appears late in terms of reconsideration. Effectively, the motion is a request for the Court to reconsider Judge Crowfoot’s order 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 Crowfoot’s order is invalid – and the motion should be granted – because:

* the 3/18/22 order fails to state that the certificates of merit Judge Crowfoot reviewed applied to Doe 1, Doe 2, and Doe 3 as opposed to the other 22 Does (see Motion, p. 1);

* the certificates of merit are exactly the same, “they do not refer to Doe 1 or Doe 2 or Doe 3, and they have no supporting facts” (id. at pp. 2-4);

* the 3/18/22 hearing constituted an improper ex parte hearing (see id. at pp. 5-7 [asserting that Judge Crowfoot “received ex parte submissions and arguments from Plaintiff’s counsel”]);

* the certificate of corroborative fact fails to corroborate claims against Doe 1, Doe 2, and Doe 3 (see id. at pp. 7-8 [arguing that publicly available documents “have no tendency in reason to corroborate that if there were abuse, it was caused by Doe 1 or Doe 2 or Doe 3”]; see also Reply, pp. 1-2).

Three points should be noted:

* M.M.’s ex parte application includes three certificates of merit total, one each for Doe 1, Doe 2, and Doe 3, so it is implicit that the 3/18/22 order applies to Doe 1, Doe 2, and Doe 3 (see 3/15/22 Ex Parte Application, Ex. A [attaching three certificates of the merit that separately name Doe 1, Doe 2, and Doe 3]);

* the 3/18/22 minute order states that Judge Crowfoot merely “read and considered the moving papers” and did not call the matter for hearing (3/18/22 Minute Order, p. 1);

* Defendants’ contention regarding the certificate of corroborative of fact is speculative and cannot be analyzed on the current record (see 3/15/22 Ex Parte Application, Ex. C [attaching the certificate of corroborative fact, which is heavily redacted]).

The Court is willing to discuss these issues with the parties at the 10/12/22 hearing; however, the motion remains problematic 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 Crowfoot reviewed the certificates of merit and the certificate of corroborative fact 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, e.g., 3/18/22 Order Sealing Certificate of Merit, p. 2 [stating that Judge Crowfoot “reviewed . . . the Certificates of Merit and Certificate of Corroborative Fact”]);

* 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 Crowfoot.

Ultimately, the Court denies the motion because it is untimely.

JCCP 5101 (Clergy Cases)

Tentative Ruling Re: Motion to Vacate/Strike Re: 20STCV18395 (Lott)

Date: 10/12/22

Time: 10:00 am

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

Opposing Party: James Lott (“Plaintiff” or “Lott”)

Department: 11

Judge: David S. Cunningham III

________________________________________________________________________

TENTATIVE RULING

The hearing on Defendants’ motion to vacate/strike is continued to provide Defendants a chance to request reconsideration from Judge Monica Bachner.

BACKGROUND

Here, John Doe 1 and John Doe 2 move to strike the complaint, arguing that Judge Bachner’s 11/10/20 order approving the amended certificates of merit is void.

LAW

Motion to Strike

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.)

Certificates of Merit and Corroborative Fact

DISCUSSION

On 5/14/20, Lott filed the complaint.

On 7/1/20, Judge Daniel Crowley granted Lott’s ex parte application to file the original certificates of merit under seal.

On 7/8/20, Judge Crowley transferred the case to Judge Bachner.

On 10/20/20, Judge Bachner heard Lott’s ex parte application to approve the original certificates and denied it without prejudice.

On 11/9/20, Lott lodged the amended certificates of merit.

On 11/10/20, Judge Bachner approved the amended certificates, ordered them sealed, and granted Lott permission to serve John Doe 1 and John Doe 2 with process.

On 11/20/20, Lott served the summons and complaint on John Doe 1 and John Doe 2.

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 8/2/22, more than 30 days after they received service of the summons and complaint. 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.

Defendants assert in reply that section 435 is inapplicable because the motion challenges Judge Bachner’s 11/10/20 order as void instead of challenging the certificates of merit as deficient. (See Reply, p. 3 n.3.)

The Court disagrees. In part, Defendants argue that Lott filed the certificates late under section 340.1(g). (See Motion, pp. 7-8; see also Reply, pp. 5-6.) The argument implicates section 435 via section 340.1(k).

The motion also might be late in terms of reconsideration. Effectively, the motion is a request to reconsider Judge Bachner’s order. 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 commenced because Lott never served them with notice of the 11/10/20 order. (See Reply, p. 2 n.2.)

Even if true, Judge Bachner made the order, and Defendants are essentially asking this Court to reconsider it. Their request, which is at least comparable to a sua sponte request, arguably lacks merit since it is not based on new or different facts. (See Weil & Brown, supra, at ¶ 9:327.5a [requiring sua sponte reconsideration to be “‘based on the evidence originally submitted,’ not based on new evidence”], emphasis in original.) Regardless, it should be directed to Judge Bachner.

Defendants contend Judge Bachner’s order is invalid – and the motion should be granted – because:

* the 10/20/20 order fails to explain why the ex parte application was denied without prejudice (see Motion, pp. 3-4; see also Reply, pp. 3-4);

* the 11/10/20 order fails to state that Judge Bachner found meritorious claims against John Doe 1 and John Doe 2 (see Motion, pp. 3-4; see also Reply, pp. 3-4);

* Judge Bachner sealed the amended certificates sua sponte and failed to comply with the sealing rules (see Reply, pp. 4-5);

* the 10/20/20 and 11/10/20 hearings constituted improper ex parte hearings (see Motion, pp. 4-7 [arguing that Judge Bachner heard oral arguments from Lott’s counsel]; see also Reply, pp. 3-4 [same]);

* the amended certificates are untimely (see Motion, pp. 7-8 [arguing that Lott violated section 340.1(g)(3) by filing the amended certificates more than 60 days after he filed the complaint]; see also Reply, pp. 5-6 [same]).

The Court is willing to discuss these issues with the parties at the 10/12/22 hearing, but the motion remains problematic 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, 9:327.5a, 9:328-9:329);

* Judge Bachner reviewed the amended certificates and approved them as to John Doe 1 and John Doe 2, presumably finding them compliant with section 340.1 since she authorized service of process (see 11/10/20 Order Granting Plaintiff’s Application for an Order Approving Certificates of Merit, p. 2 [naming John Doe 1 and John Doe 2 specifically])

* 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 Bachner.

Nevertheless, the Court is inclined to continue the hearing to give Defendants an opportunity to request reconsideration from Judge Bachner because factual disputes exist. Lott filed the original certificates on time. When Judge Bachner denied approval without prejudice on 10/20/20, did she intend to grant Lott leave to file amended certificates? And did she hear oral arguments at the 10/20/20 and 11/10/20 hearings? (See 10/20/20 Minute Order, p. 1 [stating that the “[m]atter [was] called for hearing and argued”], emphasis added; see also 11/10/20 Order Granting Plaintiff’s Application for an Order Approving Certificates of Merit, p. 2 [stating that Judge Bachner granted the ex parte application “[a]fter full consideration of the supporting and oral arguments”], emphasis added; Opposition, p. 7 [stating that “no argument was heard during the ex parte applications that resulted in the approval of the Certificates of Merit”], emphasis added.) Judge Bachner is in the best position to answer these questions.