Judge Monica Bachner, Case 20STCV18395 2022-12-07 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time. See, e.g., CRC Rule 324(b). All parties are otherwise encouraged to appear by Court Call for all matters.

Defendants John Doe 1’s and John Doe 2’s motion for reconsideration is denied. Insofar as this is a motion to unseal records and dismiss the matter, that motion is still pending before Judge Cunningham, and is not properly before this Court.

Defendants John Doe 1 and John Doe 2 (collectively, “Defendants”) move to vacate this Court’s November 10, 2020, ruling (“Ruling”), unseal certificates of merit, and dismiss Plaintiff’s action. (Notice of Motion, pg. 2; C.C.P. §§170.1, 340.1, 436, 1008; Code of Judicial Ethics, Canons 2, 3B; Cal. Const. art. I, §3; CRC Rules 2.550, 2.551, 3.1203, 3.1204.)

Plaintiff James Lott (“Lott”) (“Plaintiff’) filed his operative Complaint on May 14, 2020 alleging childhood sexual assault, in violation of C.C.P. § 340.1, battery, assault, negligence, negligent retention/supervision/failure to warn, breach of fiduciary duty, etc. On July 1, 2020, Judge Crowley in Department 28, approved Plaintiff’s petition to file certificates of merit under seal. On July 8, 2020, the matter was transferred to the instant court.

On October 19, 2020, Plaintiff filed an ex parte application requesting the Court to review, in camera, certificates of merit and granting permission to serve the defendants, pursuant to CCP § 340.1(h), (i), (j), (n) and (o). Plaintiff lodged certificates of merit signed by Susan Ulrich (pursuant to CCP § 340.(g)(1) and Plaintiff’s licensed psychologist (pursuant to CCP § 340.1(g)(1)). The Court reviewed the materials in camera. The matter was called in court on October 20, 2020, and was denied without prejudice. Thereafter, on November 5, 2020, Plaintiff filed a second ex parte application, requesting the court review, in camera, certificates of merit and granting permission to serve the defendants, pursuant to CCP § 340.1(h), (i), (j), (n) and (o). Plaintiff lodged amended certificates of merit signed by Susan Ulrich (pursuant to CCP § 340.1(g)(1)) and a certificate of merit of Plaintiff’s licensed psychologist (pursuant to CCP § 340.1(g)(2)). On November 10, 2020, this Court approved the amended certificates, ordered the certificates sealed, and granted Plaintiff permission to serve Defendants with process.

On May 20, 2021, Judge David Cunningham granted the petition to add this case to JCCP 5101, and the case was assigned to Department 15. On August 2, 2022, Defendants filed a motion to vacate, strike and dismiss was scheduled before Judge David Cunningham. On October 12, 2022, Department 11 continued that motion for this Court to allow Defendants the opportunity to “request reconsideration from Judge Monica Bachner.” (10/12/22 Ruling, pg. 1.) Indeed, Judge Cunningham did not rule on the motion, but continued the hearing “to provide Defendants a chance to request reconsideration from Judge Bachner.” (10/12/22 Minute Order, pg. 2) Accordingly, the matter still appears to be pending before Judge Cunningham. The only order that the instant court issued was the November 10, 2020 order, accordingly that is the only ruling this Court can reconsider. Thereafter Defendants filed the instant motion on November 16, 2022. Plaintiff filed his opposition on November 22, 2022. Defendants filed their reply on November 30, 2022.

The instant motion is a motion to vacate the November 10, 2020 order, unseal records and dismiss. As discussed below, the Court denies Defendants motion to vacate the November 10, 2020, and declines to rule on the remainder of the motion, which is pending before Judge Cunningham.

C.C.P. §1008(a) provides, as follows: “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

Plaintiff’s motion to vacate this Court’s November 10, 2020, Ruling, unseal certificates of merit, and dismiss Plaintiff’s action is a motion for reconsideration, and under C.C.P. §1008(a) is untimely filed. Defendants were served with notice of the Court’s ruling on November 20, 2020, and were required to file the instant motion on November 30, 2020; however, Defendants filed the instant motion on November 16, 2022, greatly exceeding the 10-day limit imposed by C.C.P. §1008(a).

Moreover, a party seeking reconsideration “must provide not just new evidence or different facts, but a satisfactory explanation for the failure to produce it at an earlier time. If the trial court believes reconsideration is warranted, it can amend, modify or revoke its previous order.” (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457 (Citations Omitted).) The moving party for reconsideration must show that “it could not, with reasonable diligence, have discovered and produced [the new or different fact, circumstances, or law] at the time of the prior motion. A motion for reconsideration will be denied absent a strong showing of diligence.” (Forrest v. State of California Department of Corporations (2007) 150 Cal.App.4th 183, 203 (Citations Omitted).)

Defendants move for reconsideration of this Court’s Ruling based on an argument that the ex parte hearing was improper. (Motion, pg. 2.) Plaintiff did not establish new or different facts, circumstances, or law to warrant reconsideration. (C.C.P. §1008(a).) Further, Defendants have not filed a declaration setting forth they could not, with reasonable diligence, have discovered and produced new or different facts, circumstances, or law at the time of the prior motion.

Defendants argue this Court’s Ruling is void and this Court lack jurisdiction over Defendants because the Ruling did not comply with jurisdictional requirements and was based on prohibited ex parte communications with Plaintiff’s counsel. (Motion, pg. 1.) Section 340.1(i) provides that a defendant “shall not be served… until the court has reviewed the certificates of merit. . . 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 that defendant.”[1] Accordingly, here, the Court conducted the in camera review, then called the matter in the courtroom on October 20, 2020, and denied the request without prejudice. This obviously indicated that the application could be resubmitted. Indeed, as counsel attests, when the court denied the motion without prejudice the court noted that the attorney certificates of merit did not fully comply with the procedural requirements of CCP § 340.1. (Ulrich Decl., ¶ 4.) However, this does not suggest that there was some inappropriate ex parte communication. The ex parte application regarding the certificates of merit merely served as a catalyst for the Court to conduct the necessary in camera review required by CCP § 340.1, as § 340.1 has no mechanism to advise the court that a certificate of merit has been submitted. (See Ulrich Decl, ¶¶ 3, 5.)

Ex parte hearings are valid under the California Rules of Court, and a judicial officer’s adjudication of such hearing is not violative of judicial ethics.[2] (Code of Judicial Ethics, Canons 2, 3(B)(7).) Further, an unserved Defendant is not yet a party (see C.R.C. Rule 1.6(15)); as such, Defendants’ due process rights did not attach until after Defendants were served with process.

Based on the foregoing, Defendants’ motion that the court should void or vacate Plaintiff’s Certificates of Merit is denied. Insofar as this is a motion to unseal records and dismiss the matter, that motion is still pending before Judge Cunningham, and is not properly before this Court.

[1] “The certificate of merit is reviewed by the court in camera before the complaint may be served, which suggests that the certificate should be filed under seal, although the statute does not expressly say so.” (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2022) ¶ 1.913.3a.)

[2] The motion mentions CCP § 170.1, but does not appear to be intended as a statement of disqualification for cause, and is not in proper form to be treated as a verified statement of disqualification for cause. A statement of disqualification must be in a form sufficient to give the judge notice that it is intended as such. McCartney v. Superior Court (1990) 223 Cal.App.3d 1334, 1340. It cannot be included as part of another pleading. (Id.)