Judge Mark A. Young, Case 22SMCV02586 2023-03-23 Tentative Ruling

Judge: Mark A. Young, Case: 22SMCV02586, Date: 2023-03-23 Tentative Ruling

Case Number: 22SMCV02586 Hearing Date: March 23, 2023 Dept: M

CASE NO.: 22SMCV02586

MOTION: Motion for In-Camera Review of Certificates of Merit

HEARING DATE: 3/23/2023

Legal Standard

Before serving any defendant¿for an action for the recovery of damages suffered as a result of childhood sexual assault, a plaintiff¿40 years of age or older at the time the action is filed¿must file a certificate of merit with the court as to each defendant allegedly responsible for the abuse.¿(CCP, § 340.1(f).)¿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. (CCP § 340.1 (g)-(i).)¿If more than one defendant is sued, the attorney must file separate certificates of merit for each defendant. (CCP § 340.1(h).)¿

The Court must review the certificates in camera¿to determine if there is a “reasonable and meritorious cause of the filing of the action” against each particular defendant. If such finding is made, the duty to serve that defendant arises.” (CCP § 340.1(i).)¿

California Rules of Court, rule 2.585(b) explains that records examined by the court in a confidential in-camera proceeding must be filed with the clerk under seal and must not be disclosed without court order.¿ California Rules of Court, rule 2.550(d) provides that the “court may order that a record be filed under seal only if it expressly finds facts that establish that there exists an overriding interest that overcomes the right of public access to the record;¿the overriding interest supports sealing the record;¿a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;¿the proposed sealing is narrowly tailored; and¿no less restrictive means exist to achieve the overriding interest. California Rules of Court, rule 2.551(b)(1) provides:¿A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.”¿¿

Analysis

Plaintiff John Doe (SM) moves for an in camera review of the filed certificates of Merit lodged herewith and a finding of merit under CCP §340.1(i). Plaintiff’s complaint states claims for negligence and negligent hiring/retention against Defendants, based on childhood sexual assault, intentional infliction of emotional distress, and negligent infliction of emotional distress of Defendants’ alleged agent. Defendant Doe 1 is a California 501(c)3 corporation which provides educational, cultural, fitness, and recreational after school programs for youth 6 to 17 years of age. (Compl., ¶ 3.) Doe 2 is a public entity which managed/operated Doe 1. (¶ 4.) From 1987 to 1992, Plaintiff was a participant in Santa Monica Police Activities League (PAL) programs. (¶¶11-12.) Plaintiff alleges Eric Uller (“Uller”) was a mentor and/or staff member in the PAL program, who represented himself as a police officer. (¶ 13.) Uller used methods to groom Plaintiff and/or manipulate Plaintiff so as to gain access, build an appearance of a trusting relationship, and eventually coerce sexual abuse including sex acts. (See ¶¶14-21.) Plaintiff alleges that Defendants knew or had reason to know that Uller was capable of sexually, physically, and mentally abusing Plaintiff. (¶ 27.) Defendants failed to supervise Uller in his position as an employee, agent, volunteer, or mentor. As a result of Defendants failure to supervise Uller, Uller was able to use his position to sexually assault numerous minor children, including Plaintiff. (¶ 32.)

On January 20, 2023, Plaintiff lodged the supporting certificates of merit conditionally under seal as required. (Rudolf Decl., ¶ 2.) A licensed mental health professional ("LMHP") has been retained by Plaintiff's counsel to assist with the evaluation of the case. The Court notes that this motion and the proposed order only relates to Doe 1, even though there are three Doe defendants and certificates of merit were lodged for all three Doe defendants. Counsel should clarify this issue at the hearing, but for now, the Court will treat the motion as applying to all three Doe defendants.

Plaintiff’s request for an in camera review is GRANTED.

The Court has conducted the in camera review of the three lodged certificates of merit. The Court concludes that based solely on those certificates of merit, that there is reasonable and meritorious cause for the filing of the action against the three Doe defendants. The certificates set forth general facts of the case, the name of the licensed mental health practitioner consulted, and facts supporting the attorney’s conclusions that the practitioner consulted is knowledgeable of the relevant facts and issues involved in this action and that there is a reasonable and meritorious cause for the filing of the action. The Court also finds that the certificate of the mental health practitioner states that practitioner is licensed to practice and practices in this state, is not a party to the action, is not treating and has not treated Plaintiff, has interviewed Plaintiff and is knowledgeable of the relevant facts and issues involved in this 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 Plaintiff has been subject to childhood sexual abuse.

For these reasons, Plaintiff’s motion for a finding of merit under Code of Civil Procedure section 340.1 is GRANTED. Plaintiff may therefore serve Defendants.

Furthermore, the Court finds good cause to seal the certificates and allow the use of pseudonyms. “[A] party may preserve his or her anonymity in judicial proceedings in special circumstances when the party’s need for anonymity outweighs prejudice to the opposing party and the public's interest in knowing the party's identity.” (Doe v. Lincoln Unified School Dist. (2010) 188 Cal.App.4th 758, 767.) Such special circumstances include allegations that defendants sexually abused plaintiff as a minor. (Doe v. City of Los Angeles (2007) 42 Cal. 4th 531; see also Doe v. Brown (2009) 177 Cal. App. 4th 408, 412; Doe v. Bakersfield City School Dist. (2006) 136 Cal. App. 4th 556, 568-69)

Given the allegations of sexual abuse of a minor, and the contents of the certificates of merit, the Court finds that Plaintiff has an overriding interest that overcomes the right of public access to the record. Further, Plaintiff’s privacy interest supports sealing the record. Further,¿the proposed sealing is narrowly tailored, due to the nature of the allegations and information,¿no less restrictive means exist to achieve the overriding interest. The Court orders that these documents be kept under seal and remain confidential. Moreover, these same interests show special circumstances to allow the use of pseudonyms.