Judge Lee W. Tsao, Case Number: 22NWCV01724, Date: 2023-09-12 Tentative Ruling

Judge: Lee W. Tsao, Case: 22NWCV01724, Date: 2023-09-12 Tentative Ruling

Case Number: 22NWCV01724 Hearing Date: January 16, 2024 Dept: C

Peter Gustavo Pacheco Cateriano vs Gustavo Mauricio Pacheco De Olazaval

Case No.: 22NWCV01724

Hearing Date: January 16, 2024 @ 10:30 AM

Tentative Ruling

Defendant GUSTAVO MAURICIO PACHECO DE OLAZAVAL’S Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED with 20 days leave to amend.

Defendant’s Motion to Strike Plaintiff’s First Amended Complaint is MOOT.

Defendant to give notice.

Background

Plaintiff Peter Gustavo Pacheco Cateriano (“Plaintiff”), a self-represented litigant, alleges that in 1988, when Plaintiff was 8 years old, his half-brother Defendant Gustavo Mauricio Pacheco de Olazaval (“Defendant”) “dropped my pants and throw me to the floor and try to penetrate me.” (Complaint, ¶ 3.) It happened many more times for approximately 5 years, and later in life when Plaintiff stayed at Defendant’s place in the City of Downey. (Id., ¶¶ 4-5.) Based thereon, the Complaint asserts causes of action for: 1. Sexual Battery, 2. Intentional Infliction of Emotional Distress; and 3. Negligent Infliction of Emotional Distress.

Legal Standard

The party against whom a complaint has been filed may object to the pleading, by demurrer, on several grounds, including the ground that the pleading does not state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) A party may demur to an entire complaint, or to any causes of action stated therein. (CCP § 430.50(a).)

Analysis

Defendant argues that Plaintiff’s claims fail for three reasons: (1) Plaintiff failed to file a certificate of merit as required by Cal. Civ. Pro section 340.1; (2) Plaintiff has failed to file a certificate of corroborative fact; and (3) Plaintiff’s Claims are time barred.

1. Certificate of Merit

A plaintiff who is 40 years of age or older in an action arising from childhood sexual assault must file a certificate of corroborative fact and certificates of merit executed by the attorney for the plaintiff and by a licensed mental health practitioner selected by the plaintiff, and the court must review them in camera. (Code Civ. Proc., § 340.1, subds. (f)-(g), (i), (n).)

In the First Amended Complaint (“FAC”) Plaintiff’s Exhibit A purports to be a Certificate of Merit by a licensed mental health practitioner. While Exhibit A complies with most of the requirements under Code Civ. Proc., § 340.1 it fails to indicate that the practitioner is not treating and has not treated the plaintiff. (CCP § 340.1(g)(2).) More importantly, however, Plaintiff has failed to submit a Certificate of Merit by an attorney. (CCP § 340.1(g)(2).)

2. Certificate of Corroborative Fact

Defendant must be named “Doe” in all pleadings and filings until there has been a showing of corroborative fact as to the charging allegations against that defendant. (Code Civ. Proc., § 340.1, subd. (l).) An application must include a certificate of corroborative fact executed by the plaintiff’s counsel declaring that the attorney has discovered one or more facts corroborative of one or more of the charging allegations against a defendant or defendants and setting forth the nature and substance of the corroborative fact. (Code Civ. Proc., § 340.1, subd. (m).) The court must review the application and the certificate of corroborative fact in camera. (Code Civ. Proc., § 340.1, subd. (n).) The court must order that the complaint may be amended to substitute the name of the defendant if, based solely on the certificate and any reasonable inferences to be drawn from the certificate, one or more corroborative facts of one or more of the charging allegations has been shown. (Ibid.)

Here, Plaintiff sues Defendant by name without having filed a Certificate of Corroborative Fact which meets the requirements of CCP § 340.1(l). Importantly, the Certificate of Corroborate Fact must be executed by the attorney for the plaintiff. (CCP § 340.1(m)(1).) The Court hereby strikes Defendant’s name from the Complaint and replaces it with “Doe 1.” Until further order of the court, any subsequent amended complaint shall refer to Defendant as “Doe 1.”

Accordingly, the demurrer is SUSTAINED with 20 days leave to amend.

The Certificate of Corroborate Fact is placed under seal in accordance with CCP § 340.1(o).