Judge: Nathan Vu, Case: 2022-01269779, Date: 2022-09-26 Tentative Ruling
Motion to File Under Seal
Motion to Serve Doe Defendant
Motion to Amend Complaint
Plaintiffs John Doe #1 D.S.’s and John Doe #2 S.C.’s motion to file certificate of merit under seal is GRANTED.
Plaintiffs John Doe #1 D.S.’s and John Doe #2 S.C.’s motion to serve defendant is GRANTED as to John Doe #1 D.S. and DENIED without prejudice as to John Doe #2 S.C.
Plaintiffs John Doe #1 D.S.’s and John Doe #2 S.C.’s motion to amend the complaint to substitute the name of Defendant Doe 1 is DENIED without prejudice.
Motion to File Under Seal
Plaintiffs John Doe #1 D.S. and John Doe #2 S.C. (collectively, Plaintiffs) move to file under seal the certificates of merit of Plaintiffs’ counsel and a mental health practitioner as to each Plaintiff.
Plaintiffs assert claims arising out of alleged childhood sexual assault, which are brought pursuant to Civil Procedure Code section 340.1.
At the ex parte hearing on this matter, the court granted Plaintiffs’ motion to file under seal the certificate of corroborative fact in this case as it was specifically required by Civil Procedure Code section 340.1(o). (See Civil Proc. Code, § 340.1, subd. (o) [“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 . . . .”].)
Section 340.1 contains no similar provision requiring or allowing the filing under seal of certificates of merit. This implies that the legislature’s intent was that certificates of merit not be filed under seal. (See Walker vs. City of San Clemente (2015) 239 Cal.App.4th 1350, 1373 [“Plaintiffs implicitly rely on the statutory interpretation maxim expressio unius est exclusio alterius, ‘which means the expression of certain things in a statute necessarily involves exclusion of other things not expressed.’”], quoting In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1411.)
However, this is not “an immutable rule,” (In re Sabrina H., supra, 149 Cal.App.4th at p. 1411), and “does not apply when no reasonable inference exists that items not mentioned were excluded by deliberate choice,” (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 126).
Civil Procedure Code section 340.1(i) requires the court to review the certificates of merit in camera. No purpose would be served by requiring in camera review of the certificates of merit if the legislature intended for those documents to be filed in a manner in which they were available to the public.
The court therefore will order that the certificates of merit be filed under seal pursuant to Civil Procedure Code section 340.1 and Rules of Court Rules 2.550 and 2.551.
Motion to Serve Defendant
Plaintiffs also move for an order to serve the complaint upon the defendant. (See Civil Proc. Code, § 340.1, subd. (i).)
Plaintiffs contends that they are now, and at the time of filing, over forty years of age so that they are required to file certificates of merit pursuant to Civil Procedure Code section 340.1(f). Further, in cases where certificates of merit must be filed, “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 . . . 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 that defendant.” (Civil Proc. Code, § 340.1, subd. (i).)
The court has reviewed the certificates of merit filed by Plaintiffs’ counsel and a mental health practitioner. (See Notice of Lodging, Exhs. A-D.) Plaintiffs’ counsel’s certificates of merit for both plaintiffs and the mental health practitioner’s certificate of merit for John Doe #1 D.S. are in compliance with Section 340.1(g). (See Notice of Lodging, Exhs. A-C.) (fn.1)
However, the certificate of merit of the mental health practitioner for John Doe #2 S.C. does not meet the requirements of Section 340.1(g). (See Notice of Lodging, Exh. D.) The mental health practitioner’s declaration fails to reference “John Doe #2 S.C.” but only makes generic references to “the plaintiff.” (See ibid.)
The mental health practitioner’s certificate of merit also fails to specify any facts or evidence related to John Doe #2 S.C., in contrast to the certificate of merit for John Doe #1 D.S., which mentions Facebook posts and attorney interview notes. (See Civil Procedure Code § 340.1(g) [“Certificates of merit shall be executed by … a licensed mental health practitioner selected by the plaintiff declaring, respectively, as follows, setting forth the facts which support the declaration.”].)
Motion to Amend Complaint
Plaintiffs also moves the court for an order to amend the complaint to substitute the name of the defendant for the fictitious designation. (See Civil Proc. Code, § 340.1, subd. (m).)
The motion to amend complaint must be “accompanied by a certificate of corroborative fact executed by the attorney for the plaintiff” in which the attorney “declare[s] that the attorney has discovered one or more facts corroborative of one or more of the charging allegations against a defendant or defendants.” (Civil Proc. Code, § 340.1, subd. (m)(1).) In addition, “[i]f 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.” (Ibid.)
In this case, the certificate of corroborative facts contains numerous allegations stated in clear and concise terms. However, Plaintiffs’ counsel fails to state the source of any of these allegations, whether from witnesses or documents. Plaintiffs’ counsel also fails to declare that he has personal knowledge of the statement of the witnesses or the contents of the documents from which the allegations are drawn.
The certificate of corroborative facts in this case is similar to the complaint. However, by requiring the certificate of corroborative facts, the legislature must have intended to require plaintiffs bringing claims under Section 340.1 to do more than simply restate the allegations of the complaint.
(fn.1) The certificate of merit of the mental health practitioner for John Doe #1 D.S. refers to that plaintiff as “John Roe #1 D.S.” This appears to be a typographical error.