Judge Michael P. Linfield, Case 22STCV17723 2022-07-28 Tentative Ruling

Judge: Michael P. Linfield, Case: 22STCV17723, Date: 2022-07-28 Tentative Ruling

Case Number: 22STCV17723 Hearing Date: July 28, 2022 Dept: 34

SUBJECT: Ex Parte Application to seal Certificates of Merit, Permit Service on Doe Defendants, Permit Plaintiff to file an amended complaint, and Permit Plaintiff to proceed under a fictious name

Moving Party: Plaintiff, A.R.

Resp. Party: None

The Court approves Plaintiff’s Ex Parte Application to Seal Certificates of Merit, Permit Service on Doe Defendants, Permit Plaintiff to File an Amended Complaint, and Permit Plaintiff to Proceed Under a Fictitious Name.

I. BACKGROUND

On May 31, 2022, Plaintiff filed a complaint against Defendants Doe 1; a corporation sole; Doe 2; Doe 3; and Does 4 through 25, inclusive alleging the following causes of action:

1. Negligence (Doe 1)

2. Negligence (Doe 2)

3. Negligence (Doe 3)

4. Negligence (Does 4 through 25)

5. Negligent Hiring, Retention, and Supervision (Doe 1)

6. Negligent Hiring, Retention, and Supervision (Doe 2)

7. Negligent Hiring, Retention, and Supervision (Doe 3)

8. Negligent Hiring, Retention, and Supervision (Does 4 through 25)

On July 25, 2022, Plaintiff filed an Ex Parte Application to Seal Certificates of Merit, Permit Service on Doe Defendants, Permit Plaintiff to File an Amended Complaint, and Permit Plaintiff to Proceed under a fictitious name.

II. ANALYSIS

A. Legal Standard

California Rule of Civil Procedure § 340.1 deals with actions for recovery of damages suffered as a result of childhood sexual assault. Under § 340.1 (f), “every plaintiff 40 years of age or older at the time the action is filed shall file certificates of merit as specified in subdivision (g). (CCP § 340.1 (f).) “Certificates of merit shall be executed by the attorney for the plaintiff and by a licensed mental health practitioner selected by the plaintiff.” (Id. at (g).) Subpart (g) goes on to enumerate:

“(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 there is a reasonable basis to believe that the plaintiff had been subject to childhood sexual abuse.

(3) That the attorney was unable to obtain the consultation required by paragraph (1) because a statute of limitations would impair the action and that the certificates required by paragraphs (1) and (2) could not be obtained before the impairment of the action. If a certificate is executed pursuant to this paragraph, the certificates required by paragraphs (1) and (2) shall be filed within 60 days after filing the complaint.” (Id. at (g) (1-3).)

The Code of Civil Procedure also extends the statute of limitations for “any claim described in paragraphs (1) through (3) . . . of subdivision (a) . . . that would be otherwise be barred as of January 1, 2020, because the applicable statute of limitation . . . is revived, and these claims may be commenced within three years of January 1, 2020.” (Id. at (q).)

California Rule of Court no. 2.585 requires that the court issues an order sealing documents during confidential in camera proceedings. (CRC Rule 2.585.) Under CCP § 340.1(i), defendants may not be served with process until the court has found, in camera, that there is a reasonable and meritorious cause of action. (CCP § 340.1(i).) California Rule of Evidence § 915 mandates sealing certificates of merit if the filing party claims the certificates contain privileged information protected by the work product doctrine.

B. Discussion

1. Sealing Plaintiff’s Certificates of Merit

Given the nature of the complaint and the application of CCP § 340.1 which are guided by both the Rules of Evidence and the Rules of Court, the Court approves Plaintiffs ex parte application to seal the Certificates of Merit.

2. Permit Service on Doe Defendants

CCP § 340.1 stipulates that the Certificates of Merit must be executed by plaintiff’s counsel and a licensed mental health practitioner. (CCP § 340.1 (g).) The contents of the certificates of merit must show that the attorney for plaintiff has reviewed the facts of the case, consulted with at least one mental health practitioner whom the attorney reasonably believes has knowledge of the relevant facts and issues of the case, and concludes that there is a reasonable and meritorious cause for the filing. (Id.) Similarly, the Code also requires that the mental health practitioner, in their separate certificate of merit, is licensed to practice, and practices in California, is not a party to the case, is not treating or has ever treated the plaintiff, is knowledgeable of the relevant facts and issues of the case, and that there is a reasonable basis to believe plaintiff has been subject to childhood sexual abuse. (Id.)

Here, attorney Justin Felton and David Meschchaninov have satisfied all the requirements set forth by CCP § 340.1. (Felton Certificate of Merit ¶ 1-4; Meshchaninov Certificate of Merit ¶ 1-4.) Thus, the court approves Plaintiff’s ex parte application to permit service on the Doe Defendants.

3. Leave for Plaintiff to File an Amended Complaint

CCP 340.1(n) states that the court grant a plaintiff leave to amend a complaint when corroborating facts filed with a certificate of merit support one or more of the charging allegations. (CCP § 340.1 (n).) Here, Plaintiff has filed two letters concerning the perpetrator of sexual assault on a child, one Father Simon, between members of the Catholic archdiocese. (Felton Decl., Ex. C.) Additionally, Plaintiff has filed a printout showing that the perpetrator had been alleged to have committed other assaults as well. (Felton Decl., Ex. C.) This notice of the prior abuse is documented enough that the court finds cause to allow amendment of the complaint under CCP § 340.1.

4. Plaintiff’s use of a fictitious name

Given the nature of the claims and the privacy concerns revealing sensitive information, the court approves of Plaintiffs application to use a fictitious name in the court proceedings. The key issue is whether 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 District (2010) 188 Cal.App.4th 758, 767.) The Court does not find issue with Plaintiff’s arguments as to the hardship these claims evoke. As such, Plaintiffs application is granted.

III. CONCLUSION