Judge: Sarah J. Heidel, Case: 23BBCV00009, Date: 2024-11-20 Tentative Ruling
Case Number: 23BBCV00009 Hearing Date: November 20, 2024 Dept: V
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTHEAST DISTRICT
DEPARTMENT V
CHARLIE RHYNE,
Plaintiff,
vs.
DOES 1 THROUGH 100, INCLUSIVE,
Defendants.
Case No.: 23BBCV00009
Hearing Date: November 20, 2024
Time: 8:30 a.m. [TENTATIVE] ORDER RE: MOTION TO FILE UNDER
SEAL AND FOR AN ORDER PERMITTING PLAINTIFF TO NAME AND SERVE DOE 2
MOVING PARTIES: Plaintiff CHARLIE RHYNE
RESPONDING PARTY: Unopposed The court considered the moving
papers.
BACKGROUND
This is an action filed under Code of Civil Procedure
section 340.1 for damages resulting from childhood sexual assault. Plaintiff
Charlie Rhyne filed the complaint against Doe defendants on January 3, 2023.
Plaintiff alleges that at age 7 and 8, plaintiff was subjected to instances of
childhood sexual abuse by an employee, a janitor designated as Doe 3, of the
local school district, while a student at a public school in Sunland,
California. Plaintiff alleges that Doe 3 was the agent and/or employee of Doe 1
and Doe 2. Plaintiff alleges that Doe 1 and Doe 2 engaged in a cover up as
defined in Code of Civil Procedure section 340.1. Plaintiff knows the first
name of Doe 3 and knows the identities of Doe 1 and Doe 2
Plaintiff filed the instant motion on October 21, 2024. No
opposition has been received nor is expected as service of the summons and
complaint was ordered quashed and plaintiff has not served the summons and
complaint again.
LEGAL STANDARD
California law authorizes the sealing of court records containing confidential information. (NBC Subsidiary, Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1222, n. 46.) California Rules of Court Rule 2.551(a) provides that a record may not be filed under seal without a court order and the court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties. (Cal. Rules of Court, rule 2.551(a).) The party requesting a record be filed under seal must file a motion or an application for an order sealing the record that is accompanied by a memorandum or declaration containing facts to justify the sealing. (Cal. Rules of Court, rule 2.551(b)(1).)
A plaintiff who is 40 years of age or older in an action arising from childhood sexual assault must file a certificate of corroborative fact and certificates of merit executed by the attorney for the plaintiff and by a licensed mental health practitioner selected by the plaintiff, and the court must review them in camera. (Code Civ. Proc., § 340.1, subds. (f)-(g), (l), (n).)
Pursuant to Code of Civil Procedure section 340.1, the court must review the Certificate of Corroborative Fact in camera. Pursuant to California Rules of Court rule 2.585(b), records examined in camera must be filed under seal. “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 subdivision (l).” (Code Civ. Proc., § 340.1(n).)
A defendant may not be served until the court has reviewed the certificates of merit in camera and found, based solely on those certificates of merit, that there is reasonable and meritorious cause for the filing of the action against that defendant. (Code Civ. Proc., § 340.1, subd. (f)(i).)
Under Code of Civil Procedure section 340.1 a plaintiff must file a certificate of corroborative fact in order to substitute the name of the defendant for the fictitious designation, and if one or more facts corroborative of one or more of the charging allegations against a defendant has been shown, then the court shall order that the complaint be amended to substitute the name of the defendant. (Code. Civ. Proc., § 340.1(l)-(m).)
DISCUSSION
Plaintiff moves for an order filing under seal “Certificate of Corroborative Facts per Code of Civil Procedure section 340.1(l) and (m)(1)” and for an order permitting plaintiff to name and serve Doe 2.
A Motion
to File Under Seal
Pursuant to Code of Civil Procedure section 340.1, the court
must review the Certificate of Corroborative Fact in camera. Pursuant to
California Rules of Court rule 2.585(b), records examined in camera must be
filed under seal. “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 subdivision (l).” (Code
Civ. Proc., § 340.1(n).) Accordingly, the Certificate of Corroborative Facts is
appropriately filed under seal.
B.
Motion to Serve Doe 2
On December 8, 2023, at the hearing on the motion to quash filed by defendant Doe 2, named as Los Angeles Unified School District (LAUSD) on the proof of service, the court held that plaintiff’s certificate of merit for Doe 2 was deficient because it did not comply with the statutory requirements, and instead proffered a three-paragraph declaration by plaintiff’s counsel stating his inability to comply. The certificate of merit is missing statements by counsel or a licensed mental health practitioner stating their reasonable belief of the relevant facts and issues that they believe there is a reasonable and meritorious cause for filing the action as required by then Code of Civil Procedure section 340.1 subdivision (g), now subdivision (f). Since then, plaintiff has not attempted to file a certificate of merit nor otherwise attempted to comply with Code of Civil Procedure section 340.1(f). Accordingly, plaintiff’s motion to serve Doe 2 is denied.
C Motion to Name Doe 2
In order to amend the complaint to substitute the name of
the defendant for a Doe defendant under Code of Civil Procedure section 340.1,
the application must be accompanied by a certificate of corroborative fact in
which counsel declares 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 this section, 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 this
section.
Here, the Certificate
of Corroborative Fact identifies facts similar to the allegations found in the
complaint: that plaintiff was born on May 20, 1961; that she was a student at a
school located in Sunland California operated by LAUSD in 1968 and 1969 when
she was 7 and 8 years old; that she was subject to multiple instances of
childhood sexual abuse, sexual battery, and sexual assault during this time by
an employee while plaintiff attended school; that this employee was a janitor
and an agent and/or employee of LAUSD; that plaintiff knows the first name of
the janitor; that there was no other adult supervision in the areas in which
she was located when she was assaulted other than the perpetrator; that she did
not report the incident out of fear; that
The Certificate of Corroborative Fact also identifies
plaintiff as the witness who can corroborate the facts provided in the
certificate. Plaintiff’s counsel attests that plaintiff was consistent and
credible in her description of the event and that plaintiff was assisted by her
husband in counsel’s communication with plaintiff. The Certificate
Corroborative Fact is insufficient because relies only the plaintiff’s
allegations and information provided by plaintiff. Corroboration means to
provide evidence that would support a contention. Merely reiterating the
allegations in the complaint is not corroboration. Indeed, if the Certificate
of Corroborative Fact could be satisfied by statements and information provided
by the plaintiff there would be no point to the requirement. The court denies
plaintiff’s motion to name Doe 2.
The court DENIES the motion
to serve Doe 2. The court DENIES the motion to name Doe 2. Plaintiff is ordered
to give notice of this ruling. IT IS SO ORDERED. DATED: November 20, 2024