Judge: David S. Cunningham, Case: JCCP5101, Date: 2023-03-17 Tentative Ruling

Case Number: JCCP5101    Hearing Date: March 17, 2023    Dept: 11

JCCP 5101 (Southern California Clergy Cases)

Tentative Ruling Re: Supplemental Briefs Re: Motions to Quash Re: 20STCV25978, 20STCV26298, 20STCV25964, 20STCV25967, 20STCV27384, 20STCV27696, and 20STCV27701

Date:                           3/17/23

Time:                          10:00 am

Moving Party:           Roe Defendants[1]

Opposing Party:        Doe Plaintiffs[2]

Department:              11       

Judge:                         David S. Cunningham III

________________________________________________________________________

TENTATIVE RULING

Roe Defendants’ motions to quash are denied.

BACKGROUND

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.

On 1/26/23, the Court continued the hearing on Roe Defendants’ motions to quash in Doe Plaintiffs’ individual cases and ordered supplemental briefing.

On 2/16/23, the parties filed supplemental briefs.

On 3/3/23, they filed supplemental reply briefs.

Now, the Court considers whether the motions to quash should be granted.

LAW

“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.)

DISCUSSION

Fundamental Jurisdiction

The parties stipulate that Doe Plaintiffs served Roe Defendants with process before the Court approved the certificates of merit and authorized service:

“Roe Defendants contend . . . the unauthorized services violated section 340.1[,]” stripping the Court of fundamental jurisdiction.  (1/26/23 Motion to Quash Tentative Ruling, p. 2.)[5]

“‘[L]ack of jurisdiction’ in its fundamental or strict sense” is “an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.”  (People v. Williams (1999) 77 Cal.App.4^th 436, 447.)  “[F]undamental jurisdiction cannot be conferred by waiver, estoppel, or consent.”  (Ibid.)  “Rather, an act beyond a court’s jurisdiction in the fundamental sense is null and void.”  (Ibid.)

Whether Doe Plaintiffs’ unauthorized services caused this Court to lose fundamental jurisdiction “turns on” whether the section 340.1 requirements are mandatory or directory.  (In re C.W. (2007) 153 Cal.App.4^th 468, 473.)  “There is no simple test[.]”  (People v. Williams, supra, 77 Cal.App.4^th at 448.)  Absent express language, the legislative intent

must be gathered from the terms of the statute construed as a whole, from the nature and character of the act to be done, and from the consequences which would follow the doing or failing to do the particular act at the required time. [Citation.] When the object is to subserve some public purpose, the provision may be held directory or mandatory as will best accomplish that purpose [citation][.]

(Ibid.)

Section 340.1 provides in part:

(f) Every plaintiff 40 years of age or older at the time the action is filed shall file certificates of merit as specified in subdivision (g).

(g) Certificates of merit shall be executed by the attorney for the plaintiff and by a licensed mental health practitioner selected by the plaintiff declaring, respectively, as follows, setting forth the facts which support the declaration:

* *  *

(h) If certificates are required pursuant to subdivision (f), the attorney for the plaintiff shall execute a separate certificate of merit for each defendant named in the complaint.

(i) In any action subject to subdivision (f), a defendant shall not be served, and the duty to serve a defendant with process does not attach, until the court has reviewed the certificates of merit filed pursuant to subdivision (g) with respect to that defendant, and has found, in camera, based solely on those certificates of merit, that there is reasonable and meritorious cause for the filing of the action against that defendant. At that time, the duty to serve that defendant with process shall attach.

(Code Civ. Proc. § 340.1, subds. (f)-(i), emphasis added.)

Roe Defendants claim the “shall” wording renders section 340.1 mandatory in the jurisdictional sense. (See Roe Defendants’ Supp. Brief, pp. 1-2; see also Roe Defendants’ Supp. Brief, pp. 1-3.)

The Court finds Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5^th 330 instructive.  Despite statutory language stating that affidavits “shall” be filed within a specific time period, the California Supreme Court held that Code of Civil Procedure section 659a’s deadlines for filing affidavits in support of a motion for new trial are not jurisdictional.  The opinion states:

“ ‘When courts use the phrase “lack of jurisdiction,” they are usually referring to one of two different concepts, although ... the distinction between them is “hazy.” ’ [Citation.]” A lack of fundamental jurisdiction is “ ‘ “an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties. [Citation.]” [¶] ... [F]undamental jurisdiction cannot be conferred by waiver, estoppel, or consent. Rather, an act beyond a court's jurisdiction in the fundamental sense is null and void’ ab initio. [Citation.] ‘Therefore, a claim based on a lack of ... fundamental jurisdiction[ ] may be raised for the first time on appeal. [Citation.]’ ” Likewise, “a collateral attack on a final judgment may be made at any time when the judgment under challenge is void because of an absence of ‘fundamental jurisdiction.’ ” Here, when we refer to a court's “lack of jurisdiction” or the “jurisdictional” nature of a statute, we are referring to the court's fundamental jurisdiction.

“Even when a court has fundamental jurisdiction, however, the Constitution, a statute, or relevant case law may constrain the court to act only in a particular manner, or subject to certain limitations.” We have described courts that violate procedural requirements, order relief that is unauthorized by statute or common law, or otherwise “fail to conduct [themselves] in the manner prescribed” by law as acting “in excess of jurisdiction.” Because a court that acts in excess of jurisdiction still has “jurisdiction over the subject matter and the parties in the fundamental sense[,]” any such act is “valid until set aside, and parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time[.]” In contrast to errors concerning a court's fundamental jurisdiction, “[e]rrors which are merely in excess of jurisdiction should be challenged directly ... and are generally not subject to collateral attack once the judgment is final....”

In interpreting statutory requirements, courts have also used the terms “mandatory” and “directory.” Whether a requirement is mandatory or directory is determined largely by its effect: “If the failure to comply with a particular procedural step does not invalidate the action ultimately taken ... the procedural requirement is referred to as ‘directory.’ If, on the other hand, it is concluded that noncompliance does invalidate subsequent action, the requirement is deemed ‘mandatory.’ [Citation.]” The mandatory-directory distinction is not to be confused with the distinction between “obligatory” and “permissive” statutory provisions. The latter distinction concerns whether a governmental entity or party is required to conform to a certain procedure (i.e., obligatory) or whether it “may or may not comply as it chooses” (i.e., permissive). By contrast, “ ‘the “directory-mandatory” distinction is concerned only with whether a particular remedy—invalidation of the ultimate governmental action—is appropriate when a procedural requirement is violated.’ ”

Erikson understood “mandatory” as a synonym for “jurisdictional.”  This court also has suggested on occasion that the “mandatory” and “jurisdictional” labels refer to the same concept. Where the statutory provision at issue governs a decisionmaking entity's exercise of authority—like that of an administrative agency—a “mandatory” statute may be “jurisdictional” in the sense that the entity lacks the power to take the action at issue if it does not comply with the statute.

But a party's failure to comply with a mandatory requirement “does not necessarily mean a court loses fundamental jurisdiction resulting in ‘an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.’ ” It is a “misuse of the term ‘jurisdictional’ ... to treat it as synonymous with ‘mandatory’ ” as a general matter. “There are many time provisions, e.g., in procedural rules, that are not directory but mandatory; these are binding, and parties must comply with them to avoid a default or other penalty. But failure to comply does not render the proceeding void” in a fundamental sense. The high court has similarly recognized, as a matter of federal law, that “mandatory” rules should not always “be given the jurisdictional brand.”

For example, a statute of limitations may be “mandatory in the sense that the court may not excuse a late complaint on grounds of mistake, neglect, or the like,” but “it is not ‘jurisdictional.’ ” A properly raised objection to an untimely complaint may require that the court dismiss it, and the court's failure to dismiss is reversible on appeal. But a party cannot raise the untimeliness for the first time on appeal or in a collateral attack. If an untimely complaint results in a judgment, the judgment will not be disturbed on timeliness grounds if the defendant did not properly preserve a statute of limitations defense.

In sum, jurisdictional rules are mandatory, but mandatory rules are not necessarily jurisdictional. Noncompliance with a mandatory rule can result in invalidation of the action so long as the noncompliance is properly raised; a party can forfeit its challenge to the noncompliance by failing to object. Noncompliance with a jurisdictional rule cannot be excused or forfeited; a party may assert such noncompliance for the first time on appeal or in a collateral attack as a ground for invalidating the action. In addition, a court may decide on its own motion that it lacks authority over the action because of noncompliance with a jurisdictional rule.

(Kabran, supra, 2 Cal.5^th at 339-342, citations omitted, emphasis in original.)

There is a factual difference.  Kabran dealt with a statutory time requirement, not certificates of merit that necessitate judicial approval.

Based on Kabran’s rules, however, the Court rejects Roe Defendants’ position.  While “shall” tends to be a mandatory word, mandatory is not synonymous with jurisdictional, so the “shall’ wording, alone, is insufficient to make section 340.1’s requirements mandatory in terms of fundamental jurisdiction.  In fact, the words of the statute as a whole demonstrate that the requirements are not jurisdictional.  Subsection (i), which establishes the in camera screening process, affords jurisdiction over the plaintiffs and the subject matter prior to the defendants being served (it is understood that courts have discretion to reject certificates of merit and to grant leave to submit amended certificates during the pre-service procedure).  Instead of depriving courts of jurisdiction if the plaintiffs fail to comply with the requirements, subsection (k) confers jurisdiction to hear demurrers or motions to strike once the defendants appear.  (See Code Civ. Proc. § 340.1, subd. (k) [“The 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.”].)  Similarly, subsections (j) and (p) confer jurisdiction to discipline the plaintiffs’ attorneys and/or to award fees and costs, including at the end of the lawsuits, for failures to file certificates at the beginning of the lawsuits.  (See id. at § 340.1, subds. (j) [“A violation of this section may constitute unprofessional conduct and may be the grounds for discipline against the attorney.”], (p) [“Upon the favorable conclusion of the litigation with respect to any defendant for whom a certificate of merit was filed or for whom a certificate of merit should have been filed pursuant to this section, the court may, upon the motion of a party or upon the court's own motion, verify compliance with this section by requiring the attorney for the plaintiff who was required by subdivision (g) to execute the certificate to reveal the name, address, and telephone number of the person or persons consulted with pursuant to subdivision (g) that were relied upon by the attorney in preparation of the certificate of merit. The name, address, and telephone number shall be disclosed to the trial judge in camera and in the absence of the moving party. If the court finds there has been a failure to comply with this section, the court may order a party, a party's attorney, or both, to pay any reasonable expenses, including attorney's fees, incurred by the defendant for whom a certificate of merit should have been filed.”]; see also Doe v. San Diego-Imperial Council (2017) 16 Cal.App.5^th 301, 311 [“The attorney fee provision in subdivision (q) of section 340.1 is not a reciprocal provision; it provides for only a defendant to obtain attorney fees. It thus appears clear that the attorney fee provision is intended to act as a deterrent to the filing of frivolous claims. A plaintiff risks having to pay the defendant's attorney fees upon the conclusion of litigation in favor of the defendant on the merits if the plaintiff fails to comply with the requirements regarding the filing of a certificate of merit.”].)  Taken together, these provisions show legislative intent for courts to retain jurisdiction – pre-service, post-service, even post-completion of the litigation – to adjudicate the statutory consequences for noncompliance. The reasonable conclusion, under the plain language, is that jurisdiction continues throughout the duration of the actions and beyond.  

This conclusion is bolstered by section 340.1’s purpose.  Section 340.1 “is a remedial statute that the Legislature intended to be construed broadly to effectuate the intent . . . to expand the ability of victims of childhood sexual abuse to hold to account individuals and entities responsible for their injuries.”  (Doe v. City of Los Angeles (2007) 42 Cal.4^th 531, 536; see also McVeigh v. Doe 1 (2006) 138 Cal.App.4^th 898, 903-904 [“The overall goal of section 340.1 is to allow victims of childhood sexual abuse a longer time period in which bring suit against their abusers. The legislative history makes this abundantly clear. The statute has been amended numerous times since its enactment in 1986, to enlarge the period for filing claims, “to hold molesters accountable for their behavior so that they are not ‘off the hook’ as soon as their victims reach age 21” [citations], to extend the expanded limitations period to actions not just against molesters, but against “any person or entity who owed a duty of care to the plaintiff, where a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual abuse. . . .” [citations], or even to revive claims. [Citations.] Each time, plaintiffs' access to the courts was expanded.”].)  Divesting jurisdiction would not advance this intention.  Indeed, as Doe Plaintiffs argue, divesting jurisdiction would be antithetical to the Legislature’s goal given that 

[t]he consequences for failing to comply are built into the statute. It makes no sense that the Legislature would intend that a failure to comply deprives the court from fundamental jurisdiction over the matter when the statute itself prescribes consequences for defects in compliance. Even in the legislative materials cited by Defendants concerning [Senate Bill (“SB”)] 108, which first created a statutory delayed discovery rule and the certificates of merit procedure, the Legislature explained that the amended statute “[p]rovides that failure to comply with the certificates procedure [1] shall be grounds for discipline against the attorney, [2] shall be grounds for demurrer or motion to strike the complaint and [3] may be the basis for a court to award attorney fees and costs to a defendant.” [Citation.] None of these prescribed consequences involve depriving the court of fundamental jurisdiction should the certificate requirement not be followed.

(Doe Plaintiffs’ Supp. Reply, p. 6.)

Several appellate courts have reviewed section 340.1’s legislative history.  So has this Court on multiple occasions.  Because there is no statement in either the statute or the legislative history indicating legislative intent to divest jurisdiction when a plaintiff violates the certificate requirements, it is appropriate to follow “the usual presumption that statutes do not limit the courts’ fundamental jurisdiction absent a clear indication of legislative intent[.]”  (Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5^th 798, 808 [noting that (1) “an intent to defeat the exercise of the court’s jurisdiction will not be supplied by implication[,]” and (2) “[i]f the Legislature means to withdraw a class of cases from state court jurisdiction,” it must “make that intention clear”].)

Roe Defendants’ blurbs from the legislative history fail to change the analysis. 

For example, Roe Defendants cite a 1990 Assembly Committee on Judiciary report.  It states that SB 108 “establishes a ‘certificate of merit’ procedure which certain plaintiffs must comply with in order to proceed with a cause of action based on childhood sexual abuse[.]”  (Potts Decl., Ex. 7, p. 8, emphasis added.)  Roe Defendants contend the italicized words evince legislative intent to make the requirements jurisdictional.  (See Roe Defendants’ Supp. Brief, p. 4.) 

The Court disagrees.  To repeat, the report identifies three consequences for “failure to comply with the certificate procedure” – (1) “discipline against the attorney,” (2) demurrer or motion to strike the complaint[,]” and (3) “attorney fees and costs to a defendant.”  (Potts Decl., Ex. 7, p. 8.)  Divesting jurisdiction is not a stated consequence.

Notably, the report states that “[t]he certificate of merit procedure is specifically modeled after the certificate procedure required in filing malpractice actions against certain design professionals (Code of Civil Procedure Section 411.35).”  (Ibid.)  Section 411.35 “requires the attorney for plaintiffs or cross-complainants in certain professional negligence cases to serve and file a certificate on the defendant or cross-defendant on or before the date of service of the complaint or cross-complaint[.]”’  (Curtis Engineering Corp. v. Superior Court (2017) 16 Cal.App.5^th 542, 544-545.)  Like section 340.1, section 411.35 uses “shall” wording, but, unlike section 340.1, it does not require court approval before service.  Both statutes, though, provide the same consequences – attorney discipline, demurrers, motions to strike, and fees and costs – and say nothing about courts losing jurisdiction.  The Court finds that the similarities outweigh the difference and go against Roe Defendants’ interpretation.  On balance, the Legislature intended section 340.1 to be non-jurisdictional like section 411.35.[6]

The other blurbs fail for the same reasons.  None of them states that jurisdiction will be divested due to noncompliance.  (See Roe Defendants’ Supp. Brief, p. 5; see also Potts Decl., Exs. 8-14; Supp. Reply Potts Decl., Exs. 17-18.)  To this day, section 340.1 lists the same consequences that appear in the 1990 Assembly Committee on Judiciary report.

Accordingly, the Court finds that the certificate procedure is non-jurisdictional. The Court continues to have jurisdiction over these cases notwithstanding Doe Plaintiffs’ conduct.[7]

Waivers and General Appearances

Doe Plaintiffs assert that “Roe Defendants waived section 340.1’s requirements and made general appearances by participating in discovery.”  (1/26/23 Motion to Quash Tentative Ruling, p. 2.)

The Court agrees that the facts show waivers.  The certificate requirement is not jurisdictional, but it is mandatory.  Returning to Kabran, the opinion instructs: “Noncompliance with a mandatory rule can result in invalidation of the action so long as the noncompliance is properly raised; a party can forfeit its challenge to the noncompliance by failing to object.”  (Kabran, supra, 2 Cal.5^th at 339-342, emphasis added.)  Roe Defendants did not raise a proper objection.  They did not file demurrers or motions to strike on time as permitted by section 340.1.  The motions to quash are late too.  (See Edmon & Karnow, supra, at ¶ 3:165 [noting that Code of Civil Procedure section 418.10 “authorizes a motion to quash service of summons within the time allowed for filing a response to the complaint [citation]”].)  Roe Defendants engaged in discovery before filing the motions, and they filed them more than a year after Doe Plaintiffs served process.  Those were inconsistent acts such that Roe Defendants forfeited their challenge to Doe Plaintiffs’ noncompliance.

The same facts show general appearances.  The Court incorporates the 1/26/23 tentative ruling on this issue.

Roe Defendants claim section 418.10 bars the Court from finding that they made general appearances via discovery participation.  (See, e.g., Roe Defendants’ Supp. Brief, p. 7 [citing the 2002 addition of subsection (e) to section 418.10].)

The Court disagrees.  Recent case law confirms that consent to jurisdiction “can be manifested by a general appearance, which occurs when a defendant takes part in the action or in some manner recognizes the court's authority to proceed.”  (In re Marriage of Thompson (2022) 74 Cal.App.5^th 481, 489; see also Humphrey v. Bewley (2021) 69 Cal.App.5^th 571, 580 [filing of a motion to intervene constituted a general appearance]; Davis v. Fresno Unified School Dist. (2020) 57 Cal.App.5^th 911, 923 n.6 [filing of a demurrer or answer was a general appearance]; Levine v. Berschneider (2020) 56 Cal.App.5^th 916 [opposing an ex parte application on the merits was a general appearance]; Sunrise Financial, LLC v. Superior Court (2019) 32 Cal.App.5^th 114, 126 [defendants generally appeared by filing opposition to motion to transfer and consolidate].)  Discovery participation “without challenging the court’s jurisdiction constitutes a general appearance.”  (Edmon & Karnow, 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].)[8]

Review and Refile

One more issue is worth addressing.  Irrespective of the preceding analysis, should the Court review the amended certificates of merit and allow Doe Plaintiffs to refile the complaints in compliance with section 340.1?  Assuming the statute of limitations has not run yet (the Court intends to discuss this issue with counsel during oral arguments), the answer probably is yes.  This would permit Doe Plaintiffs to correct their noncompliance, avoiding the potential statutory consequences of attorney discipline and/or an award of fees and costs to Roe Defendants down the road.  Seemingly, as long as the refiling is timely, the prejudice to Roe Defendants would be minimal.

Conclusion

The Court denies Roe Defendants’ motions to quash.