Judge: Melissa R. Mccormick, Case: "A.C. v. Doe 1, et al.", Date: 2022-12-15 Tentative Ruling

Plaintiff A.C.’s Application for Approval of Certificates of Merit and Other Orders

Plaintiff A.C. applies for the following orders:  (i) an order approving plaintiff’s certificates of merit pursuant to Civil Procedure Code section 340.1; (ii) an order sealing the certificates of merit; (iii) an order authorizing plaintiff to serve the Doe defendants with process; (iv) an order permitting plaintiff to file an amended complaint substituting the names of the Doe defendants; and (v) an order permitting plaintiff to proceed in this case under a fictitious name.  For the following reasons, plaintiff’s application is granted in part and denied in part.

Plaintiff filed a complaint against Doe 1 (diocese), Doe 2 (parish), and Does 3 through 25 on August 1, 2022.  Plaintiff alleges a clergy member sexually abused and assaulted plaintiff in the 1960’s.  Plaintiff alleges plaintiff is over 40 years old.

Certificates of merit and service of process

Section 340.1(f) requires every plaintiff 40 years of age or older at the time an action is filed to file certificates of merit as specified in section 340.1(g).  Pursuant to section 340.1(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 for the fact 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 reasonable and meritorious cause 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 that is a reasonable basis to believe that the plaintiff has been subject to childhood sexual abuse.

Section 340.1(h) provides that if certificates of merit are required pursuant to section 340.1(f), the attorney for the plaintiff shall execute a separate certificate of merit for each defendant named in the complaint.

In any action subject to section 304.1(f), a defendant shall not be served, and the duty to serve a defendant with process does not attach, until the court has reviewed the certificates of merit filed pursuant to section 340.1(g) with respect to that defendant, and has found, in camera, based solely on those certificates of merit, that there is reasonable and meritorious cause for the filing of the action against the defendant.  Civ. Proc. Code § 340.1(i).  At that time, the duty to serve that defendant with process shall attach.  Id.  In any action subject to section 340.1(f), a defendant shall be named by “Doe” designation in any pleadings or papers filed in the action until there has been a showing of corroborative fact as to the charging allegations against that defendant.  Id. § 340.1(l).

The court has reviewed in camera plaintiff’s application, plaintiff’s counsel’s declaration in support thereof, the separate certificates of merit as to Doe 1 and Doe 2 executed by plaintiff’s counsel, and the certificate of merit executed by a licensed mental health practitioner.  Based on the certificates of merit, the court finds there is reasonable and meritorious cause for the filing of the action against Doe 1 and Doe 2.  Civ. Proc. Code § 340.1(i).  Accordingly, plaintiff shall serve Doe 1 and Doe 2 with process.  See id.

The court orders the Felton Declaration and the certificates of merit attached thereto as Exhibits A and B sealed.  Cal. R. Ct. 2.585. 

Certificate of corroborative fact and amended complaint

As provided in section 304.1(m), at any time after the action is filed, the plaintiff may apply to the court for permission to amend the complaint to substitute the name of the defendant or defendants for the fictitious designation, as follows:

1. The application shall be accompanied by a certificate of corroborative fact executed by the attorney for the plaintiff.  The certificate shall declare that the attorney has discovered one or more facts corroborative of one or more of the charging allegations against a defendant or defendants, and shall set forth in clear and concise terms the nature and substance of the corroborative fact.  If the corroborative fact is evidenced by the statement of a witness or the contents of a document, the certificate shall declare that the attorney has personal knowledge of the statement of the witness or of the contents of the document, and the identity and location of the witness or document shall be included in the certificate.  For purposes of section 340.1(m), a fact is corroborative of an allegation if it confirms or supports the allegation.  The opinion of any mental health practitioner concerning the plaintiff shall not constitute a corroborative fact for purposes of section 340.1(m).

2. If the application to name a defendant is made before that defendant’s appearance in the action, neither the application nor the certificate of corroborative fact by the attorney shall be served on the defendant or defendants, nor on any other party or their counsel of record.

3. If the application to name a defendant is made after that defendant’s appearance in the action, the application shall be served on all parties and proof of service provided to the court, but the certificate of corroborative fact by the attorney shall not be served on any party or their counsel of record.

Pursuant to section 304.1(n), the court shall review the application and the certificate of corroborative fact in camera and, based solely on the certificate and any reasonable inferences to be drawn from the certificate, shall, if one or more fact corroborative of one or more of the charging allegations against a defendant has been shown, order that the complaint may be amended to substitute the name of the defendant or defendants. 

The court shall keep under seal and confidential from the public and all parties to the litigation, other than the plaintiff, any and all certificates of corroborative fact filed pursuant to section 340.1(m).  Civ. Proc. Code § 340.1(o).

The court has reviewed in camera plaintiff’s application, plaintiff’s counsel’s declaration in support thereof, and the certificate of corroborative fact executive by plaintiff’s counsel.  Based on the certificate of corroborative fact, the court grants plaintiff’s application for an order permitting plaintiff to file an amended complaint to substitute the names of Doe 1 and Doe 2.  Civ. Proc. Code § 340.1(n).  Plaintiff shall file the amended complaint within 10 days of the date of this order.

The court orders the Felton Declaration and the certificate of corroborative fact attached thereto as Exhibit C sealed and kept confidential from the public and all parties to the litigation, other than plaintiff.  Civ. Proc. Code § 340.1(o). 

Proceeding under a fictitious name

Plaintiff also requests an order permitting plaintiff to proceed in this case under a fictitious name.  As discussed above, plaintiff has not yet served defendants with process.  Accordingly, no defendant has received notice of plaintiff’s motion for leave to proceed in this case under a fictitious name.  Plaintiff’s motion is denied without prejudice to plaintiff refiling the motion after plaintiff has served defendants with process.   

Plaintiff to give notice consistent with the above order and with section 340.1.

Case Management Conference

The Case Management Conference is continued to March 16, 2023 at 9:00 a.m. in Department C13.

Clerk to give notice to plaintiff.  Plaintiff to give notice consistent with the above order and with section 340.1.