Judge: Mary H. Strobel, Case: 22STCP01978, Date: 2022-10-20 Tentative Ruling

Case Number: 22STCP01978    Hearing Date: October 20, 2022    Dept: 82

            On September 1, 2022, the court set an order to show cause why this case should not proceed under Petitioner John Doe’s real name.  Subsequently, the parties advised the court that Petitioner passed away on August 17, 2022.  Based on the briefing submitted for this OSC, the court tentatively determines that the action should proceed under Petitioner’s true name.  However, subject to discussion at the hearing, the court will consider deferring a final ruling on that issue until any personal representative or successor is substituted.

Procedural History

            On May 24, 2022, Petitioner, a tenured professor of biological sciences, filed a petition for writ of mandate challenging an administrative decision of Respondents University of Southern California and Carol L. Folt, President of USC (“Respondents”), which found that Petitioner violated USC’s harassment policy “as pertaining to … gender-related jokes and statements.”  (Pet. ¶¶ 73-90.)

            On September 1, 2022, at a trial setting conference, the court set an order to show cause why this case should not proceed under Petitioner John Doe’s real name.  The court ordered Petitioner to file a brief in response to the OSC by October 3, 2022, and Respondents to file a response by October 10, 2022.

            On October 3, 2022, Petitioner’s counsel filed a response to the OSC, which advised that Petitioner passed away on August 17, 2022, and that counsel did not learn this fact until mid-September 2022.  Petitioner’s counsel responded to the issue of whether Petitioner should proceed under his true name, but counsel did not address the legal implications of Petitioner’s passing.

            On October 11, 2022, Respondents filed a response to the OSC, which stated in part: “Should this matter proceed, Respondent University of Southern California (‘USC’) does not object to Petitioner’s use of a fictitious name. However, as disclosed in Petitioner’s Response to the Order to Show Cause, Petitioner passed away on or around August 17, 2022…. USC believes that these events have rendered the matter moot. Petitioner was found responsible for violating Section 6-B of the Faculty Handbook; however, the only sanctions were non-monetary and, except as required by law, USC does not disclose confidential personnel matters such as this to third-parties. (Exhibit 1, page 5.) Thus, even if the Court were to find some flaw in USC’s finding, there is no effectual relief that can be granted and the matter is moot….” 

Analysis

OSC re: Substitution of Personal Representative or Successor

CCP section 377.31 provides that “[o]n motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent's personal representative or, if none, by the decedent's successor in interest.”  Petitioner’s counsel has not filed a motion pursuant to section 377.31 to substitute a personal representative or successor for Petitioner.  Petitioner’s counsel does not explain how he intends to proceed with the case in light of Petitioner’s passing.

Generally speaking, “[d]eath occurring [after the legal action is commenced], before judgment, makes it improper to render judgment for or against the defendant without first taking the procedural step of substituting the executor or administrator.”  (Witkin California Procedure, Sixth Edition, Jurisdiction, § 333, citing cases; see also Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 957.)   

Accordingly, the court will set an order to show cause why the matter should not be dismissed.  If Petitioner filed a motion under CCP section 377.31 before that date, the OSC will go off calendar. 

OSC re: Petitioner Proceeding Under True Name

Under CCP section 422.40, a complaint shall include “the names of all the parties.”  Filing a complaint under a fictitious name impairs the public’s right of access to court records and is only permitted with leave of court in “exceptional circumstances.”  (See Doe v. Lincoln Unified School Dist. (2000) 188 Cal.App.4th 758, 767.) 

Recently, the Court of Appeal provided additional guidance on when, absent statutory authority, a litigant may be permitted to proceed under a fictitious name.  The Court of Appeal stated: “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.  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.’”  (Department of Fair Employment and Housing v. Sup.Ct. (2022) 82 Cal.App.5th 105, 111-112.) 

Petitioner’s counsel argues that Petitioner has an overriding interest in maintaining the confidentiality of the employee personnel records and investigation records which would be prejudiced without the use of pseudonym.  (Pet. Resp. 10.)  Petitioner’s counsel states: “The confidential personnel matter at USC involves subjective statements and accusations by two undergraduate students that Petitioner engaged in race and sex discrimination and harassment; and that Petitioner made inappropriate comments and jokes that some people believed were derogatory and uncomfortable. The disclosure of material that is part of USC’s highly sensitive and confidential investigation and part of Petitioner’s confidential personnel record could result in improper use of the material for scandalous or libelous purposes and could cause damage to Petitioner’s posthumous reputation and legacy.” (Ibid.)

As supporting evidence, Petitioner’s counsel cites to the USC Employment Record Policy, which states that USC employee personnel files are maintained by the University, “and confidentiality is strictly maintained. The practice of the university is not to release this information except by operation of law.”  (Hathaway Decl. ¶ 1, Exh. 1.)  The policy states that “[r]ecords reflecting the resolution of a grievance, complaint, or allegation” are part of the employee’s confidential personnel file.  (Ibid.) 

            Petitioner’s counsel does not show that an overriding interest will likely be prejudiced without use of a pseudonym, especially considering that Petitioner has passed away.  The court is not persuaded that the risk of “damage to Petitioner’s posthumous reputation and legacy” based on the allegations in issue is sufficiently compelling to justify an order authorizing Petitioner to proceed under a fictitious name.  Further, the allegations already in the publicly filed Petition describing Petitioner’s academic position and experience are sufficiently detailed to allow a reader to identify the Petitioner.

Petitioner’s counsel cites no evidence from the administrative record that might suggest an overriding interest in Petitioner proceeding fictitiously.  While the USC Employment Record Policy states that USC will maintain the confidentiality of personnel files, Petitioner has placed in issue the administrative findings and evidence by filing this writ petition.  The USC Employment Record Policy does not support a conclusion that there is an overriding interest for a university employee to proceed fictitiously in any case that might involve personnel records.   Petitioner’s counsel has not shown the exceptional circumstances that would justify Petitioner proceeding under a fictitious name. 

Based on the foregoing, the court tentatively determines that the action should proceed under the Petitioner’s true name.  However, the court has not received any briefing on this issue from any personal representative or successor that may be substituted in place of Petitioner.  Subject to discussion at the hearing, the court will consider deferring a final ruling on that issue until any personal representative or successor is substituted.