Judge David S. Cunningham, Case JCCP5101 2023-01-26 Tentative Ruling

Opposing Party: John Doe 507 (“Doe 507”), John Doe 515 (“Doe 515”), John Doe 517 (“Doe 517”), John Doe 520 (“Doe 520”), John Doe 523 (“Doe 523”) (collectively “Doe Plaintiffs”)

The Court declines to reconsider and/or analyze Doe Plaintiffs’ original and new certificates of merit as part of this motion.

This coordinated proceeding 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.

Here, Roe Defendants move to quash service in Doe Plaintiffs’ individual cases.

“Special procedures are required in actions by a plaintiff who is 40 or older for childhood sexual assault[.]” (Weil & Brown, 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.)

It is undisputed that Doe Plaintiffs served Roe Defendants with process before obtaining orders approving the certificates of merit and authorizing service:

Roe Defendants contend the motion should be granted because the unauthorized services violated section 340.1.

Doe Plaintiffs contend the motion should be denied because Roe Defendants waived section 340.1’s requirements and made general appearances by participating in discovery. They claim the Court has jurisdiction over Roe Defendants as a result.

This appears to be an issue of first impression. Doe Plaintiffs fail to cite – and the Court did not find – any authority finding waiver relative to section 340.1’s requirements.

The purpose of section 340.1’s in camera screening procedure is to provide a safeguard to defendants (Roe Defendants’ counsel admitted as much in an earlier, unsuccessful omnibus motion contesting the constitutionality of the procedure). (See also Reply, p. 4 [“In camera review of certificates of merit is one of Section 340.1’s ‘substantive safeguards.’ [Citation.] The right of defendants to be free from frivolous lawsuits is protected by the very fact that certificates of merit are required and ‘a plaintiff alleging childhood sexual abuse may not serve the complaint until a trial court has reviewed the certificates in camera and found there is a reasonable and meritorious cause for filing the case against the defendant.’ [Citation.]”].)

California law holds that “[a] person may waive the advantage of a law intended for his or her benefit.” (Bickel v. City of Piedmont (1997) 16 Cal.4^th 1040, 1048.)[2] This is true in civil and criminal cases. (See, e.g., Favor v. Superior Court (2021) 59 Cal.App.5^th 984, 991 [“In both civil and criminal cases, it is ‘well-established’ that litigants may waive statutory rights, unless such a waiver is contrary to public policy.”].)

Taking the purpose and the law together, it stands to reason that the safeguard may be waived when a defendant acts inconsistent with the right to rely on it.

“‘[W]aiver’ means the intentional relinquishment or abandonment of a known right.” (Lynch v. California Coastal Commission (2017) 3 Cal.5^th 470, 475.) “Waiver requires an existing right, the waiving party’s knowledge of that right, and the party’s ‘actual intention to relinquish the right.’” (Ibid.) “‘Waiver always rests upon intent.’” (Ibid.) “The intention may be express, based on the waiving party’s words, or implied, based on conduct that is ‘“so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished.”’” (Ibid.) Discovery participation can be an inconsistent act. (See, e.g., Lewis v. Fletcher Jones Motor Cars, Inc. (2012) 205 Cal.App.4^th 436, 449 [recognizing waiver in the arbitration context where the defendant responds to the plaintiff’s discovery].)

Also, “[a] general appearance occurs when the defendant takes part in the action or in some manner recognizes the authority of the court to proceed.” (In re Marriage of Obrecht (2016) 245 Cal.App.4^th 1, 7.) The participation “operates as a consent to jurisdiction of the person, dispensing with the requirement of service of process, and curing defects in service.” (Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4^th 1135, 1145.) “By generally appearing, a defendant relinquishes all objections based on lack of personal jurisdiction or defective process or service of process.” (In re Marriage of Obrecht, supra, 245 Cal.App.4^th at 8.) Initiating and responding to discovery “without challenging the court’s jurisdiction constitutes a general appearance.” (Weil & Brown, supra, at ¶ 3:158.1b; see also, e.g., Botsford v. Pascoe (1979) 94 Cal.App.3d 62, 65-67 [finding a general appearance as to the cross-complaint where the defendants propounded and responded to discovery].)

These rules arguably support Doe Plaintiffs’ position under the circumstances. Doe Plaintiffs’ counsel declares:

6. The plaintiff in each case served discovery responses on the defendants in each case, as follows:

a. John Doe 507 v. Roe 1; Roe 2; et al. (Case No. 20STCV2564) on December 14, 2021.

b. John Doe 515 v. Roe 1; Roe 2; Roe 3 et al. (Case No. 20STCV25967) April 7, 2021.

c. John Doe 517 v. Roe 1; Roe 2; et al. (Case No. 20STCV27384) on December 14, 2021.

d. John Doe 520 v. Roe 1; Roe 2; et al. (Case No. 20STCV27696) on or about December 13, 2021.

e. John Doe 523 v. Roe 1; Roe 2; et al. (Case No. 20STCV27701) on August 29, 2022. . . .

a. John Doe 507 v. Roe 1; Roe 2; et al. (Case No. 20STCV2564) on March 15, 2022.

b. John Doe 515 v. Roe 1; Roe 2; Roe 3 et al. (Case No. 20STCV25967) on June 10, 2022.

d. John Doe 520 v. Roe 1; Roe 2; et al. (Case No. 20STCV27696) on March 8, 2022. . . .

(Lowry Decl., ¶¶ 6-7, underlined case names added.) His declaration tends to demonstrate that Roe Defendants propounded discovery and responded to discovery before filing the instant motion, except, maybe, in Doe 523’s case.[3] Those were inconsistent acts that seemingly caused waivers and general appearances.

They claim Code of Civil Procedure section 418.10(e) “protects a defendant who moves to quash by providing that ‘no act’ by that party shall constitute a general appearance.” (Reply, p. 2.)

The claim is overstated. Section 418.10 “authorizes a motion to quash service of summons within the time allowed for filing a response to the complaint [citation].” (Weil & Brown, supra, at ¶ 3:165.) “If the motion is timely made, ‘no act’ by the party making such motion, ‘including filing an answer, demurrer, or motion to strike,’ shall be deemed a general appearance.” (Ibid., emphasis in original.) “As long as the motion is filed before or concurrently with an act constituting participation in the litigation on the merits (e.g., propounding discovery demands), there is no waiver of jurisdictional defects[.]” (Id. at ¶ 3:165.1, emphasis in original.) Roe Defendants participated in discovery prior to filing the motion, and they filed it more than a year after Doe Plaintiffs served process on them.

Roe Defendants argue that section 340.1 is an example of a “class of statutes that requires a court to determine the existence of facts that authorize the court to act ‘before it can have jurisdiction to determine the controversy.’” (Reply, pp. 5-6 [citing Rogers v. Cady (1894) 104 Cal. 288; see also Motion, p. 1.)

Rogers predates section 340.1 and is distinguishable. A Lassen County judge entered default judgment, foreclosed the mortgage on a Shasta County property, and ordered the Lassen County sheriff to sell the property. The plaintiff sued to enjoin the sale, and the Supreme Court eventually held that the Lassen County judge lacked subject matter jurisdiction since the property was located in Shasta County. The case did not involve certificates of merit or discovery-related waivers or general appearances.

Roe Defendants state that “[a]n order finding a meritorious claim based on valid certificates of merit is a mandatory requirement for a claim by a plaintiff over 40[,]” and “[a] mandatory statute triggers fundamental jurisdiction.” (Motion, p. 1 [quoting Osman v. Superior Court (2005) 134 Cal.App.4th 32].) They contend “[a]n act beyond a Court’s fundamental jurisdiction ‘is null and void.’” (Ibid. [quoting People v. Williams (1999) 77 Cal.App.4th 436].)

In Osman, the defendant “filed a demurrer on the ground that the complaint provided inadequate notice by failing to identify the alleged unlawful act.” (Osman, supra, 134 Cal.App.4^th at 35.) The trial judge sustained the demurrer and gave the prosecutor 33 days to file an amended complaint, even though the Penal Code required amendments to be made within 10 days. Twenty-two days later, the defendant “filed a motion to dismiss the complaint for failure to file a timely amendment.” (Ibid.) The trial judge denied the motion and noted: “I didn’t hear the defense object when I gave the People thirty days to file an amended complaint.” (Ibid.)

The defendant “filed a petition for writ of mandate in the Appellate Division of the Superior Court of Los Angeles County,” which was denied, and then filed a similar petition in the Court of Appeal. (Id. at 35-36.) The Court of Appeal “conclude[d] that by her silence in the face of the trial court’s order permitting amendment beyond the statutory time limit, [the defendant] forfeited her right to have the amended complaint filed within 10 days.” (Id. at 34.)

Importantly, the Court of Appeal rejected the defendant’s assertion that the 10-day amendment requirement was mandatory and “implicate[d] the court’s fundamental jurisdiction.” (Id. at 36.) The opinion states that the statute’s “legal consequences” for “failure to amend the complaint timely” afforded a “privilege personal to the defendant” that would be “deemed . . . waived if not asserted by him in timely fashion.” (Id. at 41, emphasis in original.)

In Williams, the defendant was committed to a state hospital “for one year of involuntary treatment[.]” (People v. Williams, supra, 77 Cal.App.4^th at 440.) Prior to the defendant’s release, the prosecutor petitioned for an additional year of commitment and involuntary treatment. The trial judge held a trial and granted the petition.

The governing statute “require[d] [the] court to commence trial at least 30 days before” the defendant’s scheduled “release from parole unless he . . . waive[d] time or the court [found] good cause.” (People v. Williams, supra, 77 Cal.App.4^th at 440.) On appeal, the defendant claimed the commitment order was null and void because the trial commenced after his scheduled release date.

We hold that the trial court's failure to comply with the statutory procedure concerning commencement of trial did not divest it of fundamental jurisdiction to proceed, and we further hold that defendant's failure to object to the trial date waived any claim of error based on noncompliance with the procedure. We also hold that the trial court did not automatically lose jurisdiction to proceed after defendant's scheduled release date.

Like the Osman court, the Williams court reasoned that the 30-day trial deadline was “directory and not mandatory.” (Id. at 451.)

The Court is inclined to continue the hearing. Do Osman and Williams go against Roe Defendants’ arguments? Is section 340.1’s screening procedure is comparable to the 10-day amendment requirement (Osman) and the 30-day trial deadline (Williams)? As explained above, the screening procedure is a safeguard – a benefit – for defendants that Roe Defendants arguably forfeited via discovery conduct, but the key issue is whether it is mandatory or directory. (See, e.g., Williams, supra, 77 Cal.Appp.4^th at 446-458 [analyzing mandatory and directory factors].) Supplemental briefing is needed to answer these questions.

Doe 515 asks the Court to find that his original certificates satisfy section 340.1. (See Opposition, pp. 9-10.)

The request is denied because it amounts to an improper motion for reconsideration.

Does 507, 517, 520, and 523 filed their original certificates more than 60 days after they filed their complaints.

Apparently, the Court never ruled on them, but they appear late at first glance. (See, e.g., Weil & Brown, supra, at ¶ 1:913.3h [“If plaintiffs are unable to obtain the necessary certificates of merit before the statute of limitations runs, they may file a certificate so stating; in that event, the required certificates must be filed within 60 days after filing of the complaint.”], emphasis in original; see also Reply, pp. 3-4.)

Doe 507 filed new certificates on 12/1/22, and Does 517, 520, and 523 filed new certificates on 12/9/22.

It is unnecessary – and the Court declines – to analyze the original and new certificates with this motion.

[1] The Court found the mental health practitioner’s certificate deficient and denied the application without prejudice.

[2] Bickel was abrogated by statute “with regard to its construction of the Permit Streamlining Act[.]” (DeBerard Properties, Ltd. V. Lim (1999) 20 Cal.4^th 659, 668.)

[3] The proofs of service attached to counsel’s declaration include irrelevant proofs from 20STCV15964, 20STCV25640, and 20STCV25973. (See id. at Exhs. 4, 5.) This appears to be a mistake. If necessary, the Court is inclined to give Doe Plaintiffs a chance to supplement the record to replace the irrelevant proofs with the correct proofs.

In addition, during oral arguments, Doe Plaintiffs’ counsel needs to provide greater detail regarding Roe Defendants’ discovery conduct in Doe 523’s case.

Opposing Party: John Doe 508 (“Doe 508”) and Jane Doe 512 (“Doe 512”) (collectively “Doe Plaintiffs”)

The Court declines to reconsider and/or analyze Doe Plaintiffs’ original and new certificates of merit as part of this motion.

Here, Roe Defendants move to quash service in Doe Plaintiffs’ individual cases.

“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.)

It is undisputed that Doe Plaintiffs served Roe Defendants with process before obtaining orders approving the certificates of merit and authorizing service:

Roe Defendants contend the motion should be granted because the unauthorized services violated section 340.1.

This appears to be an issue of first impression. Doe Plaintiffs fail to cite – and the Court did not find – any authority finding waiver relative to section 340.1’s requirements.

Taking the purpose and the law together, it stands to reason that the safeguard may be waived when a defendant acts inconsistent with the right to rely on it.

These rules arguably support Doe Plaintiffs’ position under the circumstances. Doe Plaintiffs’ counsel declares:

* Doe 508 “served verified discovery responses on defense counsel via Case Anywhere” on 6/9/22, and Roe Defendants “served verified responses to the Defendant Fact Sheet and Initial Document Demands” on 10/11/22 and “produced 449 pages of responsive documents.” (Lowry Decl., ¶¶ 6, 7.)

* Doe 512 “served verified discovery responses on defense counsel via Case Anywhere” on 12/14/21, and Roe Defendants served verified responses to the Defendant Fact Sheet and Initial Document Demands” on 3/15/22. (Id. at ¶¶ 11, 12.)

The proofs of service attached to his declaration tend to demonstrate that Roe Defendants propounded discovery and responded to discovery before filing the instant motion. (See Lowry Decl., Exh. 4, p. 2 [stating that Doe 508 served “RESPONSES TO INITIAL DOCUMENT DEMANDS” on Roe Defendants], Exh. 5, p. 2 [stating that Roe Defendants served “1. DEFENDANT’S FACT SHEET; 2. DEFENDANT’S RESPONSES AND OBJECTIONS TO PLAINTIFF’S INITIAL DOCUMENT DEMANDS TO DEFENDANT; and 3. DEFENDANT’S INITIAL DOCUMENT PRODUCTION” on Doe 508], Exh. 8, p. 2 [stating that Doe 512 served “PLAINTIFF #00087 RESPONSE TO PLAINTIFF'S FACT SHEET; PLAINTIFF #00087 RESPONSE TO DOCUMENT DEMANDS TO PLAINTIFFS; PLAINTIFF #00087 AUTHORIZATION FOR RELEASE OF EDUCATIONAL RECORDS; PLAINTIFF #00087 AUTHORIZATION FOR RELEASE OF EMPLOYMENT RECORDS; PLAINTIFF #00087 AUTHORIZATION FOR RELEASE OF MEDICAL RECORDS; PLAINTIFF #00087 AUTHORIZATION FOR RELEASE OF MENTAL HEALTH RECORDS” on Roe Defendants], Exh. 9, p. 2 [stating that Roe Defendants served “1. DEFENDANT'S FACT SHEET; and 2. DEFENDANT'S RESPONSES AND OBJECTIONS TO PLAINTIFF'S INITIAL DOCUMENT DEMANDS TO DEFENDANT” on Doe 512].)[3] Those were inconsistent acts that seemingly caused waivers and general appearances.[4]

They cite In re Marriage of Merideth (1982) 129 Cal.App.3d 356, asserting that signing an acknowledgment of receipt does not qualify as consent to jurisdiction. (See Reply, p. 2.)

Merideth’s rule concerns nonresident defendants; Doe Plaintiffs’ complaints allege that Roe Defendants reside in Los Angeles County. (See Weil & Brown, supra, at ¶ 4:237 [Merideth and stating that “[a] nonresident’s signing and returning the acknowledgment satisfies service of process requirements, but it does not constitute a submission to the court’s jurisdiction”], emphasis in original; see also Merideth, supra, 129 Cal.App.3d at 359-361 [noting that the defendant resided in Illinois and did not have sufficient California contacts]; Doe 508 Complaint, ¶¶ 4-5; Doe 512 Complaint, ¶¶ 4-6.)

Next, Roe Defendants claim Code of Civil Procedure section 418.10(e) “protects a defendant who moves to quash by providing that ‘no act’ by that party shall constitute a general appearance.” (Reply, p. 2.)

The claim is overstated. Section 418.10 “authorizes a motion to quash service of summons within the time allowed for filing a response to the complaint [citation].” (Weil & Brown, supra, at ¶ 3:165.) “If the motion is timely made, ‘no act’ by the party making such motion, ‘including filing an answer, demurrer, or motion to strike,’ shall be deemed a general appearance.” (Ibid., emphasis in original.) “As long as the motion is filed before or concurrently with an act constituting participation in the litigation on the merits (e.g., propounding discovery demands), there is no waiver of jurisdictional defects[.]” (Id. at ¶ 3:165.1, emphasis in original.) Roe Defendants participated in discovery prior to filing the motion., and they filed it more than a year after Doe Plaintiffs served process on them.

Roe Defendants argue that section 340.1 “is an example of a class of statutes that the Supreme Court has long recognized requires a court to determine the existence of facts that authorize the court to act ‘before it can have jurisdiction to determine the controversy.’” (Motion, p. 1 [citing Rogers v. Cady (1894) 104 Cal. 288; see also Reply, pp. 3-4.)

Like the Osman court, the Williams court reasoned that the 30-day trial deadline was non-mandatory. (See id. at 451.)

The Court is inclined to continue the hearing. Do Osman and Williams go against Roe Defendants’ argument? Is Section 340.1’s screening procedure comparable to the 10-day amendment requirement (Osman) and the 30-day trial deadline (Williams)? As explained above, the procedure is a safeguard – a benefit – that Roe Defendants arguably forfeited via discovery conduct, but the key issue is whether it is mandatory or directory. (See, e.g., Williams, supra, 77 Cal.Appp.4^th at 446-458 [analyzing mandatory and directory factors].) Supplemental briefing is needed to answer these questions.

Doe 508 asks the Court to find that his original certificates satisfy section 340.1. (See Opposition, pp. 9-10.)

The Court denies the request because it amounts to an improper motion for reconsideration.

Doe 508 filed new certificates on 12/9/22, Roe Defendants filed objections to the new certificates on 12/13/22, and an order to show cause regarding the objections is scheduled for 2/6/23.

Doe 512 filed the original certificates on 1/12/21, more than 60 days after she filed the complaint.

It is unnecessary – and the Court declines – to analyze the original and new certificates with this motion.

[1] The Court found the mental health practitioner’s certificate deficient and denied the application without prejudice.

[2] Bickel was abrogated by statute “with regard to its construction of the Permit Streamlining Act[.]” (DeBerard Properties, Ltd. V. Lim (1999) 20 Cal.4^th 659, 668.)

[3] Exhibit 8 references “PLAINTIFF #00087” instead of Doe 512. (Id. at Exh. 8, p. 2.) Counsel’s declaration states that the document relates to Doe 512’s discovery responses. (See id. at ¶ 11.) The Court intends to give counsel an opportunity to clear up this potential discrepancy at the hearing.

[4] Roe Defendants state in reply that they “did not initiate any discovery.” (Reply, p. 3.) Even if true (Roe Defendants fail to cite evidence), responding to discovery is a sufficient, independent basis for finding waivers and general appearances.

Doe Plaintiff	Complaint Filed	Ex Parte App. Filed	Ex Parte App. Ruling	Notice Re: Receipt of Process	New Ex Parte App. Filed
Doe 507	7/8/20	1/13/21	None	4/1/21	12/1/22
Doe 515	7/8/20	8/6/20	Denied on 9/10/20[1]	4/7/21	12/9/22
Doe 517	7/16/20	1/12/21	None	3/31/21	12/9/22
Doe 520	7/21/20	12/30/20	None	4/7/21	12/9/22
Doe 523	7/21/20	12/23/20	None	4/7/21	12/9/22