Judge: H. Jay Ford, III, Case: 23SMCV01385, Date: 2024-02-29 Tentative Ruling

Case Number: 23SMCV01385    Hearing Date: February 29, 2024    Dept: O

Case Name:  Augustine v. Haute, et al.

SUBJECT:                 DEMURRER TO FAC WITH MOTION TO STRIKE

MOVING PARTY:   Defendant Katy Haute

RESP. PARTY:         Plaintiff J. Augustine

TENTATIVE RULING

            Defendant Katy Haute’s Demurrer to Plaintiff J. Augustine’s First Amended Complaint on the grounds that both causes of action are barred by a two-year statute of limitations is OVERRULED. Augustine sufficiently alleges enough facts regarding the details of his discovery, and his inability to discover the breach earlier, for a reasonable jury to find that Augustine filed the complaint with the two or three-year statute of limitations.

            Defendant Katy Haute’s Motion to Strike – To be addressed at the hearing.

I.                Statute of limitations—OVERRULED

            “[I]n order to employ the discovery rule to delay accrual of a cause of action, a potential plaintiff who suspects that an injury has been wrongfully caused must conduct a reasonable investigation of all potential causes of that injury. If such an investigation would have disclosed a factual basis for a cause of action, the statute of limitations begins to run on that *809cause of action when the investigation would have brought such information to light. In order to adequately allege facts supporting a theory of delayed discovery, the plaintiff must plead that, despite diligent investigation of the circumstances of the injury, he or she could not have reasonably discovered facts supporting the cause of action within the applicable statute of limitations period.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808–809.)

            To rely on the discovery rule, plaintiff must specifically allege facts showing “(1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.  In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to ‘show diligence’; ‘conclusory allegations will not withstand demurrer.’”  (Id., at p. 808.)

            Defendant Katy Haute (“Haute”) demurs to Plaintiff J. Augustine’s (“Augustine”) FAC on the basis that both the 1^st cause of action for intentional misrepresentation and the 2^nd cause of action for negligence are barred by the two-year Statute of Limitations of CCP § 335.1. (Demurrer, pp 2–5.) However, two different statute of limitation periods are involved in this claim. The Statute of limitations for the first cause of action sounding in fraud or mistake is three years, with the "cause of action . . . not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake." (Code Civ. Proc., § 338, subd., (d).) The Statute of limitations for the negligence cause of action is two years. (See Code Civ. Proc., § 335.1 [“Within two years: An action for assault, battery, or injury to, or for the death of,

            Haute argues the statute of limitations began to accrue on or around the middle of September 2019, the moment Augustine had reasonable notice of genital symptoms “within days of last engaging in sexual relations with Defendant,” and thus the 3-30-23 complaint filing was one year and six months past the 2-year statute of limitations. (Demurrer, p. 4; FAC, ¶ 11.) Augustine argues he did not have reasonable notice until his primary care physician confirmed positive tests results for HPV-2 on 4-4-21, thus the filing of the complaint on 3-30-23 was within the two, or three year, statute of limitations. (Oppo, p. 6.)

            The Court finds that Augustine sufficiently alleges the details of his discovery of the breach on 4-4-21.  (See FAC, ¶¶12–14.)  Augustine also alleges facts supporting his inability to discovery the breach earlier. (Ibid.)  Specifically, Augustine alleges Haute represented to Augustine that she did not have sexually transmitted infections (“STI”) and Haute misrepresented physical symptoms of STI during sexual relations. (Id., ¶¶ 9–10.) Augustine alleges that he acted with reasonable diligence by going to his primary care physician on 10-22-19 upon noticing genital and flu-like symptoms, but tested negative for HPV and candida. (Id., ¶ 12.) Augustine alleges he “relied upon the medical expertise of his physician and did not believe at that time that he had any STI.” (Ibid.) Augustine alleges that Haute “feigned ignorance and changed the topic” when Augustine mentioned his symptoms to Haute in or about January of 2019. (Id., ¶ 13.) Augustine alleges that upon a second outbreak of symptoms, in or around March of 2021, he sought consultation with his primary care physician where he tested positive for HSV-2, and at this point he became aware that “his sexual encounter with Defendant in March through September of 2019 were the cause of his HSV-2 diagnosis and infection.” (Id., ¶ 14.)

            “When a plaintiff reasonably should have discovered facts for purposes of the accrual of a cause of action or application of the delayed discovery rule is generally a question of fact, properly decided as a matter of law only if the evidence ... can support only one reasonable conclusion.”  (Stella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 193.) The Court cannot find that Augustine’s allegations of delayed discovery are insufficient as an issue of law. Based on Augustine’s allegations, a trier of fact could conclude that Augustine could not have discovered Haute’s breach earlier than 4-4-21, the date Augustine tested positive for HSV-2, despite reasonable diligence, or that the statute of limitations started accruing immediately upon Augustine noticing genital and flu-like symptoms on or around mid-September of 2019.

II.             Motion to Strike

The Court will address at the hearing the question of whether the identification of Plaintiff’s name as “J. Augustine” is the plaintiff’s true name or if the initial “J” is a pseudonym for Plaintiff’s first name.  The Court notes Plaintiff’s initial complaint identified Plaintiff solely by the initials J. A.  By using only initials, first for what appears to be both a first and last name, and then again for what reasonably appears to be an initial for the first name, it appears from the complaint Plaintiff is seeking to conceal his identity by using a pseudonym for his first name.  

Absent statutory authority, a party may not proceed with an action using a pseudonym. “The names of all parties to a civil action must be included in the complaint.”  [Code of Civil Procedure § 422.40.]  As the Court of Appeal explained in Department of Fair Employment and Housing v. Superior Court of Santa Clara County (2022) 82 Cal.App.5th 105, 109:

“Much like closing the courtroom or sealing a court record, allowing a party to litigate anonymously impacts the First Amendment public access right. Before a party to a civil action can be permitted to use a pseudonym, the trial court must conduct a hearing and apply the overriding interest test: A party's request for anonymity should be granted only if the court finds that an overriding interest will likely be prejudiced without use of a pseudonym, and that it is not feasible to protect the interest with less impact on the constitutional right of access.¹ In deciding the issue the court must bear in mind the critical importance of the public's right to access judicial proceedings. Outside of cases where anonymity is expressly permitted by statute, litigating by pseudonym should occur “only in the rarest of circumstances.” (KNBC, supra, 20 Cal.4th 1178, 1226, 86 Cal.Rptr.2d 778, 980 P.2d 337.)”

Plaintiff’s counsel argues “there are no grounds on the face of the pleading or evidence requested to be judicially noticed by Defendant that "J. Augustine" is a pseudonym or a fictitious name.”  By that argument, it appears counsel appreciates that identifying the plaintiff in his complaint using only the initial “J. Augustine” would not be proper unless plaintiff’s true first name was simply “J”.   Counsel should be prepared to confirm the plaintiff’s full name is “J. Augustine,” and if not, identify the statutory authority to have filed the complaint, and the first amended complaint, using the initial J. as a pseudonym for Plaintiff’s first name.

In that regard, counsel is reminded that “[a]n attorney is an officer of the court and owes the court a duty of candor. (Citation omitted.)  This means that, ‘A lawyer shall not ... knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.’ (Cal. Rules Prof. Conduct, rule 3.3, subd. (a)(1).) In a similar vein, section 6068 of the Business and Professions Code explains that every attorney has a duty “never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.” (Bus. & Prof. Code, § 6068, subd. (d).)”  Levine v. Berschneider (2020) 56 Cal.App.5th 916, 921.