Judge David S. Cunningham, Case JCCP5101 2022-12-06 Tentative Ruling

The coordinated Southern California Clergy Cases (JCCP 5101) involve 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.

At issue is M.M. v. Archdiocese of Los Angeles (22STCV07886). On 10/12/22, the Court heard Defendants’ motion to vacate/strike M.M.’s complaint and first amended complaint (“FAC”). Defendants argued that M.M. served defective certificates of merit and corroborative fact. The Court found the motion untimely and denied it. Defendants now moves to certify five questions for interlocutory review pursuant to Code of Civil Procedure section 166.1.

“Although not a prerequisite to writ review, the trial judge may recommend writ review by indicating in the challenged order ‘a belief that there is a controlling question of law as to which there are substantial grounds for difference of opinion, appellate resolution of which may materially advance the conclusion of the litigation.’” (Eisenberg, et al., Cal. Prac. Guide: Civ. Appeals and Writs (The Rutter Group 2022) ¶ 15:22.10 [quoting Code of Civil Procedure section 166.1], emphasis in original.) “Such recommendation may occur upon ‘written request of any party or his or her counsel, or at the judge's discretion.’ However, the denial of such a request or the rejection of an objection to such a request cannot be the subject of an appeal or writ petition.” (Ibid. [quoting section 166.1].)

“On 3/3/22, M.M. filed the complaint.” (10/12/22 Ruling Re: Motion to Vacate/Strike, p. 2.)

“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.” (Ibid.)

“On 3/29/22, Defendants’ counsel acknowledged receipt of the FAC.” (Ibid.)

“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 acknowledge receiving the FAC.” (Id. at p. 3.)

Accordingly, the Court denied Defendants’ motion as untimely under Code of Civil Procedure sections 340.1(k), 435, and 1008 and further stated:

* 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 [citation];

With these facts in mind, the Court turns to Defendants’ request. Defendants submitted five questions:

(1) Does ex parte review of certificates of merit with no notice of the application deny defendants due process and nullify an order granting leave to serve?

(2) Is an ex parte order granting leave to serve that has no finding of merit and is based on conclusory, fact-bereft certificates of merit invalid?

(3) Does an order with no statement of reasons that declarations reviewed by the court shall be sealed and not disclosed to defendants deny defendants due process and nullify an order granting leave to serve?

(4) Is an ex parte order granting leave to name defendants that has no finding of corroboration and is based on a blacked-out certificate of corroborative fact, or on a certificate that does not identify any corroborative fact, invalid?

(5) Is a party precluded from challenging an ex parte order when it had no notice of the ex parte application and no notice of entry of the ex parte order[?]

(Notice of Motion, p. 2.) The Court’s task is not to answer the questions; it is to determine whether they should be certified for interlocutory review.

One option is to deny Defendants’ request. The questions regard the constitutionality of section 340.1’s ex parte process generally and Judge Crowfoot’s review of M.M.’s certificates specifically, not the timeliness of the motion to vacate/strike. This Court denied the motion because it was untimely and did not reach Defendants’ constitutional arguments, so certifying the questions would not “materially advance the conclusion of [M.M.’s] litigation.” (Cal. Code Civ. Proc. § 166.1.)

Another option is to grant Defendants’ request because the questions recur in the Southern California Clergy Cases. Defense counsel files many motions to vacate/strike that raise the constitutional arguments. Even if appellate resolution would not benefit M.M.’s case, a reasonable argument can be made that it would “materially advance the conclusion of the [coordinated] litigation.” (Ibid.)

On balance, the Court adopts the first option because it is doubtful that the Court of Appeal would decide the questions. Since the Court denied the motion due to untimeliness alone, it is likely that the Court of Appeal would do the same thing this Court did – find it unnecessary to analyze the constitutional issues. (See People v. Barasa (2002) 103 Cal.App.4^th 287, 292 n.4 [“A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them”]; see also Lyng v. Northwest Indian Cemetery Protective Assn. (1988) 485 U.S. 439, 445 [same].) At most, if the Court of Appeal reversed the untimeliness ruling, it probably would send the matter back to this Court to take the first shot at addressing the substantive merits. Certifying would waste time and would not advance the ball.

[1] To the extent Defendants contend section 1008’s 10-day time limit never commenced because M.M. never served them with notice of the 3/18/22 order (see Reply to Motion to Strike/Vacate, pp. 2-3), the outcome remains the same. Judge Crowfoot made the order, and Defendants essentially asked this Court to reconsider his findings. Their request, which was at least comparable to a sua sponte request, was not based on new or different facts. Regardless, they should have directed it to Judge Crowfoot, and the motion – noticed as a motion to vacate/strike – still was untimely under sections 340.1(k) and 435.

[2] In February 2022, the Court denied defense counsel’s global motion attacking the ex parte process, which raised the constitutional issues. That ruling, if certified, would have put Defendants’ questions front and center, giving the Court of Appeal a chance to decide them on a coordination-wide basis. The Court does not recall defense counsel requesting certification at that time.