Judge: David S. Cunningham, Case: JCCP5101, Date: 2025-01-15 Tentative Ruling
Case Number: JCCP5101 Hearing Date: January 15, 2025 Dept: 11
Southern California Clergy Cases (JCCP 5101)
Siler (30-2020-01174722-CU-PO-CJC)
Tentative Ruling Re: Motion for Costs and Fees
Date: 1/15/25
Time: 3:30
pm
Moving Party: Doe Archdiocese and Doe 4 Parish
(collectively “RCALA”)
Opposing Party: Michael
Siler
Department: 11
Judge: David
S. Cunningham III
________________________________________________________________________
TENTATIVE RULING
The motion for costs
and fees is denied.
BACKGROUND
“This case (30-2020-01174722-CU-PO-CJC) is part of the coordinated Southern
California Clergy Cases (JCCP 5101).”
(7/15/24 Ruling Re: Demurrer to Second Amended Adopted Master Complaint,
p. 1.) “Siler claims priests sexually
abused him when he was a minor.”
(Ibid.) “He alleges that Doe
Archdiocese, Doe 4 Parish, and other Defendants failed to protect [him] from
the alleged abuse despite having actual or constructive knowledge of the
priests’ pedophilia.” (Ibid.)
On July 15, 2024, the Court sustained Doe Archdiocese and Doe 4 Parish’s
demurrer, effectively without leave to amend, because the action mirrors an
earlier case that was dismissed with prejudice.
(See id. at pp. 1-3.)
Now, Doe Archdiocese and Doe 4 Parish move for costs and fees pursuant to
Code of Civil Procedure section 340.1(p).
DISCUSSION
Doe Archdiocese and Doe 4 Parish
Doe Archdiocese and Doe 4 Parish claim they are entitled to fees
($57,271.00) under section 340.1(p) because Siler’s counsel filed a defective
certificate of merit. They contend
Siler’s counsel should have either (1) not filed the case since it was “barred
at its inception” due to the 2010 dismissal or (2) disclosed the 2010 dismissal
to the Court in his certificate.
(Motion, p. 1; see also id. at p. 5; Reply, pp. 3-8 [arguing that they
obtained a “favorable conclusion” of the action and that Siler’s counsel did
not have “a reasonable factual basis and valid legal basis to sue”].)
Siler
Siler disagrees. He contends Doe
Archdiocese and Doe 4 Parish’s interpretation overstretches the purpose of
subsection (p). He asserts that the “the
limited purpose” is to “ensur[e] that an appropriate expert consultation was
made to reasonably believe that the Plaintiff was in fact the victim of
childhood sexual abuse.” (Opposition, p.
2; see also id. at pp. 7-9.) He claims
“[i]t is not required nor proper to disclose jurisdictional or procedural
issues such as a potential statute of limitations issue, res judicata,
separation of powers, or whether a case was litigated to finality, or any other
potentially adverse issues or facts to the Court at a Certificate of Merit
review or at any other time.” (Id. at p.
2.)
Additionally, Siler contends:
* his attorney did not withhold “material facts” facts from the Court
(id. at p. 4);
* his case did have merit when he filed it (see id. at pp. 5-7);
* the “action did not end upon a ‘favorable conclusion’” (id. at p. 10
[claiming the case was not decided on the merits]); and
* the requested amount is excessive.
(See id. at p. 12.)
Analysis
Prior Demurrer Ruling
The Court incorporates the July 15th demurrer ruling. As stated there,
[i]n Hightower v.
Roman Catholic Bishop of Sacramento (2006) 142 Cal.App.4th 759,
the Second District Court of Appeal considered the timeliness of a
childhood-sexual-abuse action filed in 2004.
The version of Code of Civil Procedure section 340.1 in effect at that
time contained a one-year revival window, which allowed plaintiffs whose claims
had expired before January 1, 2003 to file new cases by the end of 2003. To try to meet the revival deadline, the
plaintiff mailed a document titled “MOTION FOR JUDICIAL NOTICE OF INTENT TO SUE
FOR CHILDHOOD SEXUAL ABUSE” to the Sacramento Superior Court on December 31,
2003. (Hightower, supra, 142
Cal.App.4th at 762.) On April
5, 2004, he “filed his original complaint[.]”
(Id. at 763.) The justices held
that the motion filed on December 31st did not constitute a
complaint and did not satisfy the revival provision. (See id. at 766-767.) They also found delayed discovery
inapplicable. (See id. at 767-768.) Ultimately, they dismissed the plaintiff’s
case on statute-of-limitations grounds.
(See id. at 761, 766-769.)
Judge Emilie Elias
(now retired) presided over the coordinated Clergy Cases I (JCCP 4286)
(“Clergy I”). There, she and
liaison counsel created a protocol to dismiss cases that were untimely under Hightower
and Quarry v. Doe I (2012) 53 Cal.4th 945. On September 12, 2012, she issued an order
establishing the Hightower protocol, requiring plaintiffs to file “Hightower
Statement[s]” to show compliance with Hightower and Quarry. (Potts Reply Decl., Ex. 7, underling of case
name added.) Subsequently, on November
16, 2012, she provided all plaintiffs an additional 15 days to complete the Hightower
protocol. (See id. at Ex. 8.)
Doe Archdiocese and
Doe 4 Parish contend the demurrer should be sustained because the instant case
is duplicative of a Clergy I case that Siler filed in 2010
(30-2010-00433424). (See Demurrer, pp.
1-5; see also Reply, pp. 1-4; Potts Decl., Exs. 2-4.) On January 29, 2013, Judge Elias dismissed
the 2010 case with prejudice pursuant to the Hightower protocol because
Siler was “over the age of 26” and failed to file a “Hightower
Statement[.]” (Potts Decl., Ex. 1,
underlining of case name added.) As a
result of the dismissal, Doe Archdiocese and Doe 4 Parish assert that the
current case is barred based on the separation-of-powers doctrine. (See Demurrer, pp. 3-5 [claiming “the
Legislature cannot reverse a final judgment” and citing Quarry for the
proposition that “the Legislature lacks authority to revive an action resolved
in a final judgment that applied a prior limitations period”]; see also Reply,
pp. 1-4; Potts Reply Decl., Exs. 6-10.)
Siler claims a
statute-of-limitations dismissal “is not . . . on the merits and does not have
res judicata effect.” (Opposition, p. 6
[citing Mid-Century Insurance v. Superior Court (2006) 138 Cal.App.4th
769 (“Mid-Century”)], bolding deleted.)
He also contends the separation-of-powers doctrine does not apply
because he “never had the opportunity to litigate his case individually nor had
the opportunity to have his case heard on the merits.” (Id. at p. 7 [attempting to distinguish Doe
v. Marysville Joint Unified School District (2023) 89 Cal.App.5th
910 (“Marysville”)].) He states
that his Clergy I case was stayed when Judge Elias dismissed it and that
he and his counsel did not have input as to the Hightower protocol. (See, e.g., id. at pp. 2, 5.)
The Court agrees
with Doe Archdiocese and Doe 4 Parish.
The following points support sustaining the demurrer:
* Siler’s current
case is duplicative (see Demurrer, pp. 1-2; see also Potts Decl., Exs. 2-4);
* the stay was not a
total, unlimited stay (see Reply, pp. 2-3);
* use of liaison
counsel in coordinated proceedings is routine;
* input or not, the Hightower
protocol became binding on Siler when Judge Elias issued the September 12, 2012
and November 16, 2012 orders (see, e.g., id. at pp. 1-2)
* Judge Elias
dismissed Siler’s Clergy I case with prejudice on January 29, 2013 for
failure to comply with the Hightower protocol (see Potts Decl., Ex. 1);
* Siler did not
object or appeal after the dismissal (see Demurrer, p. 3); and,
* per the
separation-of-powers doctrine, “[i]f a judgment has already been entered against the plaintiff on statute of
limitations grounds, enactment of a revival statute does not annul the judgment”
(Banke & Segal, Cal. Practice Guide: Civ. Procedure Before Trial Statutes
of Limitations (The Rutter Group February 2024 Update) ¶ 1:237 [quoting Perez
v. Roe I (2006) 146 Cal.App.4th 171, 188: “Because the power to
conclusively resolve cases by rendering dispositive judgments rests with the
judiciary alone [citation], the Legislature may not reverse final judgments
such as those that were rendered under the previous limitations period of
section 340.1”]; see also Marysville, supra, 89 Cal.App.5th
at 919 [citing Perez with approval, distinguishing Mid-Century,
analyzing the section 340.1 version applicable here, and holding: “[R]egardless
of why plaintiffs’ claims were dismissed – whether for failing to comply with
the statute of limitations or the government claims presentation deadline –
plaintiffs’ claims were litigated to finality” and “cannot be revived” via
section 340.1]);
Siler’s res-judicata argument fails to
change the outcome. (See Opposition, pp.
5-6.) Independent of whether res judicata
applies, the demurrer must be sustained because reviving Siler’s claims would
cause a separation-of-powers violation:
Plaintiffs do not grapple with the
separation of powers concerns raised by their interpretation. Instead, they
argue that their prior action does not have a res judicata effect because it
was disposed of on statute of limitations grounds, and that permitting
plaintiffs to reopen their case retroactively does not violate the ex post
facto clause of the constitution or due process. These arguments miss the
point. Even if we accepted them as true, they would not resolve the separation
of powers violation that would arise if the statute allowed them to revive
their case.
* * *
Based on the foregoing, we conclude that
section 340.1’s revival provision means what it says. It exempts from revival
all claims that have been litigated to finality, irrespective of the basis for
the court's final determination.
(Marysville,
supra, 89 Cal.App.5th at 919-920, footnote omitted.)
(7/15/24 Ruling
Re: Demurrer to Second Amended Adopted Master Complaint, pp. 1-3.)
Section 340.1
The relevant version of section
340.1 is the version that became effective on January 1, 2020. (See Motion, p. 1 n.1; see also Reply, p. 7
.3.)
Subdivisions (f) and (g) delineate the certificate-of-merit requirements:
(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:
(1) That the attorney has reviewed the facts
of the case, consulted with at least one mental health practitioner who the
attorney reasonably believes is knowledgeable of the relevant facts and issues
involved in the particular action, and concluded on the basis of that review
and consultation that there is a reasonable and meritorious cause of action for
the filing of the action.
(2) That the mental health practitioner
consulted is licensed to practice and practices in this state and is not a
party to the action, that the practitioner is not treating and has not treated
the plaintiff, and that the practitioner has interviewed the plaintiff and is
knowledgeable of the relevant facts and issues involved in the particular
action, and has concluded, on the basis of the practitioner’s knowledge of the
facts and issues, that in the practitioner’s professional opinion there is a
reasonable basis to believe that the plaintiff had been subject to childhood
sexual abuse.
(3) That the attorney was unable to obtain
the consultation required by paragraph (1) because a statute of limitations
would impair the action and that the certificates required by paragraphs (1)
and (2) could not be obtained before the impairment of the action. If a certificate is executed pursuant to this
paragraph, the certificates required by paragraphs (1) and (2) shall be filed
within 60 days after filing the complaint.
(2019 Cal. Legis. Serv. Ch. 861 (A.B. 218), subds. (f)-(g).)
Subdivision (p) concerns costs
and fees. It states:
(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.
(Id. at subd.
(p).)
Application
Given these rules, the Court
agrees with Siler. The contested
certificate of merit is the attorney certificate; the practitioner’s
certificate is not at issue. (See Reply,
p. 7 n.3.) Subdivision (g)(1) governs
attorney certificates. It requires the
plaintiff’s attorney to attest that he reviewed the facts and consulted with a
licensed practitioner and that, based on his review and consultation, he
believes “there is a reasonable and meritorious
cause of action for” filing the case. (2019
Cal. Legis. Serv. Ch. 861 (A.B. 218), subd. (p).) Nothing in the plain language obligates the
plaintiff’s attorney to disclose procedural history, prosecution strategies,
legal theories, or, notably, potential affirmative defenses. Nor do Doe Archdiocese and Doe 4 Parish cite
any legislative history or case law mandating such disclosures. In fact, subdivision (p), read as a whole,
and read in conjunction with subdivision (g)(1), tends to show that the
Legislature did not intend those kinds of disclosures to be made. The third sentence of subdivision (p)
authorizes costs and fees “[i]f the court finds there has been a failure to
comply with this section.” (Ibid.,
emphasis added.) The first and second
sentences clarify what “compliance with this section” means. (Ibid., emphasis added.) “[C]ompliance” is determined by
the plaintiff’s attorney “reveal[ing]” the practitioner’s
“name, address, and telephone number” “to the trial judge in camera and in the
absence of the moving” defendant.
(Ibid., emphasis added.) The express
focus on the practioner’s personal information for “compliance”
demonstrates that the statutory purpose is to ensure that the plaintiff’s
attorney consults a qualified mental-health professional, pre-suit, to
establish a reasonable belief that the plaintiff actually was a victim of
sexual abuse. (Ibid., emphasis added;
see also Opposition, p. 2.) Since
divulging potential affirmative defenses – for example, the
separation-of-powers doctrine – is not a requirement and does not bear on “compliance[,]”
the motion should be denied. (2019 Cal.
Legis. Serv. Ch. 861 (A.B. 218), subd. (p), emphasis added.)
The Court notes that the practical impact of Doe Archdiocese and Doe 4
Parish’s position is that courts would be put in the uncomfortable position of
assessing affirmative defenses prior to the defendants being served. The certificate-of-merit process takes place
in camera at the outset before the defendants appear. The Court highly doubts that the Legislature
intended courts to make unnoticed legal rulings, singularly on the four corners
of certificates of merit, without the benefit of briefing and oral arguments
from both sides.
There may be another reason to deny the motion. In Doe v. San Diego-Imperial Council
(2017) 16 Cal.App.5th 301, a case that Doe Archdiocese, Doe 4
Parish, and Siler cite, the trial court sustained the defendant’s demurrer
without leave to amend because the plaintiff failed to file a certificate of
merit. Then the defendant moved for
attorney fees. The Fourth District Court
of Appeal held:
* “a defendant is eligible for an award of attorney fees . . . only where
the litigation has resulted in a ‘favorable conclusion’ for that defendant” (Doe,
supra, 16 Cal.App.5th at 305);
* “a ‘favorable conclusion’ requires a result that is reflective of the
merits of the litigation” (ibid.);
* failing to file a certificate of merit is a procedural defect (see
ibid.); and
* a dismissal due to a procedural defect “does not reflect on the merits[.]” (Ibid.)
Judge Elias dismissed Siler’s 2010 case “for failure to comply
with the Hightower protocol” because he failed to file a Hightower
statement – i.e., she dismissed the 2010 case because of a procedural
defect. (7/15/24 Ruling Re: Demurrer to
Second Amended Adopted Master Complaint, p. 3.)
This Court dismissed the instant case “per the separation-of-powers
doctrine” because it “is duplicative” of the 2010 case – i.e., the Court
dismissed it because it alleges the same claims that were dismissed in 2010
because of the procedural defect. (Id.
at pp. 2, 3.) Neither decision considers
or analyzes the merits of the claims, so, arguably, Doe Archdiocese and Doe 4 Parish did not acquire a “favorable
conclusion” under subdivision (p).[1]
Siler’s challenge to the
requested amount ($57,271.00) is moot.