Judge: Ronald F. Frank, Case: 22TRCV01234, Date: 2022-11-21 Tentative Ruling

Case Number: 22TRCV01234    Hearing Date: November 21, 2022    Dept: 8

John Doe S.W. vs. Defendant DOE 1, C. and DOES 2 through 40, Case No. 22TRCV01234

Motion: 1. Application for in camera review and finding of merit;

2. Application to permit service on Doe Defendants;

3. Application for Order to Seal Certificates of Merit

Tentatives: 1. Discuss;

2. Discuss;

3. Grant.

This application is brought by an alleged adult survivor of childhood sexual abuse many, many years ago, under California’s “revival” statute permitting past victims of alleged sexual abuse to file a civil action regarding that abuse decades after the cause of action would have been barred by the then-applicable one-year statute of limitations. Code of Civil Procedure § 340.1 created a liberalized statute of limitations that revived a cause of action for monetary damages caused by childhood sexual abuse brought against the individual alleged perpetrator of the abuse and against third party and typically entity defendants claimed to be directly or vicariously responsible for the abuse. (Quarry v. Doe I (2012) 53 Cal.4th 945, 952; X.M. v. Superior Court (2021) 68 Cal.App.5th 1014, 1025.)

In a case such as this one where the plaintiff is alleged to be an adult 40 years of age or more, a revival cause of action cannot be brought unless the defendant “knew or had reason to know, or was otherwise on notice,” of the misconduct purportedly creating a risk of childhood sexual abuse by an employee, volunteer, or other representative, or the defendant of “failed to take reasonable steps or to implement reasonable safeguards to avoid such abuse from occurring.

(Code Civ. Proc., § 340.1(c).) A plaintiff who is 40+ years old must file a certificate of merit for a trial court to review in camera and make a determination “that there is reasonable and meritorious cause for the filing of the action against that defendant.” (Id. § 340.1(l).)

Before the Court is such an application, with the attorney and mental health practitioner certificates of merit filed under seal. The Court has reviewed both certificates, and has some question for counsel to address:

1. Has there been any prior lawsuit brought by or on behalf of John Doe J.W.?

2. If so, was there a final judgment entered against John Doe J.W.? The attorney certificate of merit did not address these issues, which are of concern to the Court because of the separation of powers doctrine and ruling by the Second District in Perez v. Roe 1 (2006) 146 Cal.App.4th 171.

3. Does counsel need to address in the certificate of merit whether the standard of care decades ago was such as to satisfy the gate-keeping standard of Code Civ. Proc., § 340.1(c), or is a 21st century standard of care sufficient?

Conclusion: The Court will take oral argument to discuss these points, mindful of the need for confidentiality. Accordingly, the Court may be inclined to clear the courtroom or to place this matter on second call to avoid any potential for breach of confidentiality.