Judge David S. Cunningham, Case JCCP5101 2023-02-06 Tentative Ruling

Defendants’ motion to unseal is granted as to the John Doe 1, John Doe 2, and mental health practitioner original certificates of merit.

Defendants’ motion to unseal is granted as to the John Doe 1, John Doe 2, and mental health practitioner amended certificates of merit.

During oral arguments, the Court intends to discuss the option of staying enforcement of these rulings to provide Lott an opportunity to file a new motion to seal the original and amended certificates.

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, John Doe 1 and John Doe 2 move to unseal the original and amended certificates of merit in Lott’s individual case.

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

“On 5/14/20, Lott filed the complaint.” (10/12/22 Ruling Re: Motion to Vacate/Strike, p. 2.)

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

“On 7/8/20, Judge Crowley transferred the case to Judge Monica Bachner.” (Ibid.)

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

“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.” (Ibid.)

“On 11/20/20, Lott served the summons and complaint on John Doe 1 and John Doe 2.” (Ibid.)

On 10/12/22, the Court heard John Doe 1 and John Doe 2’s motion to vacate/strike Judge Bachner’s 11/10/20 order. The Court continued the hearing “to provide Defendants a chance to request reconsideration from Judge [] Bachner.” (Id. at p. 1.)

On 12/7/22, Judge Bachner heard John Doe 1 and John Doe 2’s motion to vacate/strike the 11/10/20 order and took the matter under submission. (See 12/7/22 Minute Order, p. 1.)

On 12/9/22, Judge Bachner issued her ruling. She denied the motion to vacate/strike but declined to rule on John Doe 1 and John Doe 2’s request to unseal the certificates of merit. She determined that this Court should decide the unsealing issue. (See 12/9/22 Ruling on Submitted Matter, pp. 1-5; see also 12/9/22 Minute Order, pp. 1-4.)

On 1/6/23, John Doe 1 and John Doe 2 filed the instant motion to unseal. The notice asks the Court to (1) vacate Judge Crowley’s 7/1/20 order sealing the original certificates of merit, (2) unseal the original certificates of merit, (3) vacate Judge Bachner’s 11/10/20 order sealing the amended certificates, and (4) unseal the amended certificates. (See Notice of Motion, p. 2.)

Defendants’ memorandum of points and authorities discusses John Does 1 through 5 (see, e.g., Motion, p. 1), but only John Doe 1 and John Doe 2 filed the motion (see Notice of Motion, p. 2), so the Court’s analysis is limited to John Doe 1 and John Doe 2. The Court is not making findings or rulings as to John Does 3, 4, and 5 (Defendants fail to show that they have standing to argue on behalf of John Does 3, 4, and 5).

Lott contends the motion to unseal is an untimely motion for reconsideration under Code of Civil Procedure section 1008 since Defendants filed it more than 10 days after Judge Bachner’s 11/10/20 order and service of process on 11/20/20. (See Opposition, p. 3.)

Defendants claim section 1008 does not apply because the “order was made in an ex parte hearing[,]” Lott never served Defendants with “written notice of entry of the order[,]” and “a motion to seal is an independent motion – not a motion for reconsideration of the sealing order.” (Reply, pp. 2-3.)

The Court agrees with Defendants. Section 1008’s “10-day time limit runs from service of notice of entry of the order” (Edmon & Karnow, supra, at ¶ 9:325, emphasis in original), but Lott fails to show that he served written notice on Defendants. Also, the motion is to unseal the certificates of merit, not to reconsider the sealing orders. Lott’s reliance on section 1008 fails.

Lott asserts that section 340.1 requires certificates of merit to be filed under seal. (See Opposition, pp. 3-4.)

Section 340.1 is silent on this point. The Rutter Guide “suggests that the certificate should be filed under seal, although the statute does not expressly say so.” (Edmon & Karnow, supra, at ¶ 1:913.3a.)

Regardless, Lott did not file the original certificates and the amended certificates under seal; he lodged them conditionally under seal in connection with ex parte applications, which is permissible. (See Potts Decl., Exh. 1, p. 7 [attaching 6/29/20 Ulrich Declaration in Support of Ex Parte Application to File Certificates of Merit Under Seal]; see also id. at Exh. 4, p. 7 [attaching 11/5/20 Ulrich Declaration in Support of Ex Parte Application for an Order Approving Certificates of Merit and Granting Permission to Serve the Defendants].)

Lott claims the sealing rules – Rules of Court 2.550 and 2.551 – do not apply to certificates of merit because they constitute “records that are required to be kept confidential by law.” (Opposition, pp. 4-5.)

The Court disagrees. Again, section 340.1 does not require certificates to be filed under seal. The Legislature knows how to make such a requirement, yet no provision of section 340.1 states that certificates of merit must be sealed and kept confidential. (Cf. Code Civ. Proc. § 340.1, subd. (o) [stating that “[t]he court shall keep under seal and confidential from the public and all parties to the litigation, other than the plaintiff, any and all certificates of corroborative fact filed pursuant to subdivision (m)”], emphasis added.)

Turning to the merits, Defendants contend Judge Crowley’s 7/1/20 order should be vacated and the certificates of merit should be unsealed because (1) the order only seals the certificate pertaining to John Doe 1, (2) it fails to state reasons supporting the sealing, (3) it fails to seal the certificates pertaining to John Does 2, 3, 4, and 5 and the mental health practitioner certificate, and (4) Lott lodged all of the certificates under seal on 7/2/20 despite the fact that the 7/1/20 order only seals one of the six certificates. (See Motion, pp. 1-2; see also Reply, pp. 1-2.)

As noted above, the Court is not making findings or rulings as to John Does 3, 4, and 5.

The Court agrees with Defendants that the plain language of the 7/1/20 order only seals the attorney certificate pertaining to John Doe 1 and fails to state supporting reasons. (See Potts Decl., Exh. 2, p. 1 [attaching 7/1/20 Minute Order, which states that (1) “[t]he Ex Paite Application to File Certificates of Merit Under Seal filed by James Lott on 06/29/2020 is Granted[,]” (2) “Certificate of Merit of Susan M. Ulrich Re: John Doe 1, (Redacted Name) Pursuant to C.C.P. 340.1 (g)( 1) is filed under seal[,]” and (3) “Counsel for Plaintiff shall efile a redacted version of the Certificate of Merit of Susan M. Ulrich Re: John Doe 1, (Redacted Neme) Pursuant to C.C.P. 340.l(g)(l)”], emphasis added.)[1]

The motion is granted as to the John Doe 1, John Doe 2, and mental health practitioner original certificates because the order fails to (1) state the facts supporting the sealing of the John Doe 1 certificate, and (2) expressly seal the John Doe 2 certificate and the mental health practitioner certificate.

However, the Court is inclined to stay enforcement of this ruling to give Lott a chance to file a new motion to seal the original certificates. The Court will discuss this option with the attorneys at the hearing.

Next, Defendants challenge Judge Bachner’s 11/10/20 order and the amended certificates of merit. They contend the order is defective and the amended certificates should be unsealed because the order “has none of the statements of specific facts and express findings of justification for sealing[.]” (Motion, p. 3.)

Defendants are correct; the 11/10/20 order fails to include findings supporting sealing. (See Potts Decl., Exh. 5, p. 2 [attaching 11/10/20 Order Granting Plaintiff’s Ex Parte Application for an Order Approving Certificates of Merit and Granting Permission to Serve the Defendants, which states that “[t]he Certificates namely, Exhibits C-E to the Notice of Lodging, are ordered sealed”]; see also 11/10/20 Minute Order, p. 1 [“The Court is in receipt of plaintiff's notice of lodging of documents under conditional seal pursuant to California Rules of Court, Rule 2.551 lodged on November 9, 2020. Said Notice of Lodging, namely of the Certificates- Exhibits C thru E, is ordered filed under seal.”].)

The motion is granted as to the John Doe 1, John Doe 2, and mental health practitioner amended certificates because the 11/10/20 order fails to state the reasons for sealing.

The Court reiterates that it is inclined to stay enforcement to give Lott time to file a new motion to seal.

[1] It is not enough that the 7/1/20 order contains an express statement sealing the John Doe 1 certificate. “If the trial court fails to make the required findings,” like happened here, “the order is deficient and cannot support sealing.” (Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4^th 471, 487.)