Judge: Theodore R. Howard, Case: Doe3v.CountyofOrangeCountySuperiorCourt21-1232544, Date: 2022-09-08 Tentative Ruling
Plaintiff’s supplemental brief cites to almost all of the same cases previously discussed. Plaintiff does not put forth any new compelling arguments.
Plaintiff again cites to Advanced Textile, a matter based upon federal law (Fair Labor Standards Act), for the premise that anonymity is permitted when an employee fears reprisal. As noted, below, Advanced Textile involved Chinese and Bangladeshi garment workers in Saipan/Mariana Islands where alternative job prospects were scarce and whom alleged, “they will face actual physical violence, the threat of physical violence, immediate deportation to China or their country of origin, likely arrest upon arrival in China or their country of origin and an order by China and other authorities accelerating the repayment of debt incurred for recruitment fees” and that they “reasonably fear that their families may face similar threats of physical and economic retaliation if their true identity is revealed.”’” (Advanced Textile, supra, 214 F.3d at 1063.) The 21 plaintiffs filed suit on behalf of 25,000 garment workers against 21 different garment manufacturers. (Id.)
The court in Advanced Textile, “[w]e hold that where, as here, the named plaintiffs in a Fair Labor Standards Act collective action demonstrate that they have an objectively reasonable fear of extraordinarily severe retaliation, they may conceal their identities from defendants at least until the district court rules on plaintiffs' motion for court-ordered notice to potential class members, and potential class members have been given an opportunity to join the suit.” [Emphasis added.] (Id., at 1063.) “we allow parties to use pseudonyms in the “unusual case” when nondisclosure of the party's identity “is necessary ... to protect a person from harassment, injury, ridicule or personal embarrassment.” (Id., at 1067-68.) “Four federal Courts of Appeals have heard appeals from a district court's order refusing to allow plaintiffs to use pseudonyms. These courts held that a district court must balance the need for anonymity against the general presumption that parties' identities are public information and the risk of unfairness to the opposing party. [Citations.] Applying this balancing test, courts have permitted plaintiffs to use pseudonyms in three situations: (1) when identification creates a risk of retaliatory physical or mental harm, see [Citation]; Gomez v. Buckeye Sugars, 60 F.R.D. 106, 107 (N.D.Ohio 1973) (permitting FLSA plaintiffs [who were migrant farm workers] to use pseudonyms to protect them from employer reprisals); (2) when anonymity is necessary “to preserve privacy in a matter of sensitive and highly personal nature,” James, 6 F.3d at 238; see also Doe v. United Services Life Ins. Co., 123 F.R.D. 437 (S.D.N.Y.1988) (allowing plaintiff to sue insurance company anonymously to protect against identification as a homosexual); Doe v. Deschamps, 64 F.R.D. 652, 653 (D.Mont.1974) (permitting plaintiff in abortion suit to use pseudonym due to the personal nature of pregnancy); and (3) when the anonymous party is “compelled to admit [his or her] intention to engage in illegal conduct, thereby risking criminal prosecution.” (Advanced Textile Corp. (2000) 214 F.3d 1058, 1068.)
Although this matter is not under the FLSA (unlike the plaintiffs in Advanced Textile), and Plaintiff has failed to demonstrate an objectively reasonable fear of extraordinarily severe retaliation. Plaintiff has produced no evidence of similar concerns to the plaintiffs in Advanced Textile. At most Plaintiff may have her job demoted, not advanced, or terminated, which while illegal and improper, is nothing more than garden variety retaliation and not extraordinarily severe retaliation. This is no greater a threat of discrimination or retaliation than any other non-anonymous plaintiff suing their employer. Plaintiff is no more or less vulnerable to discrimination or retaliation than other non-anonymous plaintiff suing their employer. While a balancing test might be called for under the FLSA, if a plaintiff fails to put forth evidence/arguments of any potential extraordinarily severe retaliation, a defendant will need to put forth only minimal arguments to have the scale tipped in its favor.
Plaintiff cited to cases and arguments that do not involve DOE plaintiffs or striking the use of the DOE name as requested in the MTS. Armendariz involved, in part, two named plaintiffs being required under an arbitration agreement to pay defendants costs. There was some discussion regarding the chilling effect a losing plaintiff having to pay a prevailing defendant’s costs would have on employees bringing a lawsuit under the FEHA.
Williams, supra, 61 Cal. 4th 97, involved a named firefighter suing a fire district for discrimination. The matter involved issues of allowable costs to prevailing defendant that must both necessary and reasonable, and that even ordinary litigation costs can be substantial, which could significantly chill the likelihood an employee would assert their rights under FEHA and sue an employer (Id., at 113-15.)
United States v. Doe, 655 F.2d 920 (9th Cir. 1980), is a criminal matter than involved questions of proper conviction and sentencing of a defendant convicted of heroin possession with intent to distribute and the importation of heroin. The only relevant sentence in the ruling was regarding why defendant was listed as a DOE. [“We recognize that the identity of the parties in any action, civil or criminal, should not be concealed except in an unusual case, where there is a need for the cloak of anonymity. Where it is necessary, however, to protect a person from harassment, injury, ridicule or personal embarrassment, courts have permitted the use of pseudonyms.” [Emphasis added.] (Id., at 922, fn. 1.)]
Doe v. Regents of the Univ. of California, supra, 2018 WL 6252013, is an unpublished/non-citable case. In this matter, a university professor was accused of sexual harassment by two students. The plaintiff filed suit under a pseudonym to protect his privacy and reputation. (Id., at fn. 2.) Aside from this matter not being citable, there are no allegations that any party had an issue with the use of the Doe pseudonym.
Vinson, supra, 43 Cal.3d 833, involved a named plaintiff and questions of whether plaintiff could be order to sit for a mental examination, the extent of the examination by defense experts, and her right to privacy in regard to the examination. The court held that by filing a sexual harassment lawsuit, plaintiff did not “waive all her privacy interests, exposing her persona to the unfettered mental probing of defendants' expert.” (Id., at 842.) There are no questions regarding using a plaintiff’s true name.
It is also likely Plaintiff’s identity is already known to Defendant or could very easily be determined based on the specific allegations in the Complaint. Within the first five sentences, Plaintiff claims 1) She is a woman; 2) A Deputy DA for Orange County; 3) Born in Afghanistan who is an Afghan-American war refugee; and 4) A Muslim. (Complaint p. 2:4-5.) The Complaint also states Plaintiff was 1) hired August 2019 (Complaint ¶ 8); 2) sworn in on or about 08/16/19 (Id.); 3) her first assignment was to the Felony Charging Unit at North Court (Id.); 4) her office was in the Annex (Id.); and 5) Plaintiff previously worked for the Riverside County DA’s Office (Complaint ¶ 13). While it is possible there is more than one OC Deputy DA with all of the above characteristics, more likely than not Plaintiff’s identity could easily be determined based on the information Plaintiff has already provided. If Defendant were inclined to retaliate, Plaintiff has likely provided enough information for Defendant to determine her identity even without her name. Though no specific allegations of employment retaliation or damages were alleged in the Complaint (which in part led to the court sustaining Defendant’s Demurrer), Plaintiff’s brief states she will be adding claims to her First Amended Complaint (“FAC”) that she has already been retaliated against for filing her complaint and participating in the internal investigation of LoGalbo. (Pla. Supp. Brief at p. 6:12-7:2.) Plaintiff states she will allege she was retaliated against when she applied for and was denied a spot on the Felony Panel, which would allow for future advancement and compensation and that she has been prevented from advancing despite being qualified to do so. (Id.) All of the above strongly suggests Plaintiff’s identity is already known to Defendant, that retaliation has already occurred, and that there is no threat of any extraordinarily severe retaliation.
Plaintiff closes out the brief by requesting that if the court grants the MTS, that Plaintiff be permitted to file her FAC under seal, which would redact her true name, but allow Defendant to conduct discovery. Plaintiff claims that not being able to do so would cause a “chilling effect” on other employees suing their employers under the FEHA. CA ST TR COURT Rule 2.550 applies to filing pleadings under seal, which states in relevant parts:
“(c) Court records presumed to be open
Unless confidentiality is required by law, court records are presumed to be open.
(d) Express factual findings required to seal records
The court may order that a record be filed under seal only if it expressly finds facts that establish:
(1) There exists an overriding interest that overcomes the right of public access to the record;
(2) The overriding interest supports sealing the record;
(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;
(4) The proposed sealing is narrowly tailored; and
(5) No less restrictive means exist to achieve the overriding interest.” (Id.)
Plaintiff has failed to make a showing there exists an overriding interest that overcomes the right of public access to the record. Although Plaintiff claims there will be a “chilling effect” on FEHA claims if her name is known, this is not a compelling argument 1) it is unlikely Plaintiff being required to use her true name would chill theoretical third parties from suing their theoretical employers; 2) it would set a precedent that all FEHA plaintiffs could sue anonymously without any real reason, which is not considered by the FEHA; 3) if Defendant were inclined to retaliate against Plaintiff as she alleges, it would do nothing to stop Defendant from learning Plaintiff’s identity and retaliating further. In short, there is no need for the FAC to filed under seal. Finally, a party must file a motion or application requesting a pleading be filed under seal, which Plaintiff has not done. (CA ST TR COURT Rule 2.551(b).)
A) Motion to Strike
Defendant’s Motion to Strike (“MTS”) Plaintiff’s use of “Jane Doe 3” and require Plaintiff to use her true name is GRANTED.
The court grants the MTS pursuant to Civ. Proc. Code §§ 435(b)(1) and 436.
“ ‘A real party in interest ordinarily is defined as the person possessing the right sued upon by reason of the substantive law.’ [Citation.] A complaint filed by someone other than the real party in interest is subject to general demurrer on the ground that it fails to state a cause of action. [Citation.] The purpose of this section is to protect a defendant from harassment by other claimants on the same demand. [Citation.] [¶] The question for purposes of standing is not the name used by the party suing but whether the party suing is the party possessing the right sued upon. In this matter, there is no question plaintiff is the party injured by virtue of defendants' actions and, therefore, she is the party possessing the right sued upon. Thus, the question is not whether plaintiff has standing to sue but whether she may do so using a fictitious name.” (Doe v. Lincoln Unified Sch. Dist. (2010) 188 Cal. App. 4th 758, 765 (“Lincoln”).) “In Does I thru XXIII v. Advanced Textile Corp. (9th Cir.2000) 214 F.3d 1058 [“Advanced Textile”], at page 1067, the Ninth Circuit Court of Appeals noted that federal courts “have permitted plaintiffs to use pseudonyms in three situations: (1) when identification creates a risk of retaliatory physical or mental harm [citations]; (2) when anonymity is necessary ‘to preserve privacy in a matter of sensitive and highly personal nature,’ [citations]; and (3) when the anonymous party is ‘compelled to admit [his or her] intention to engage in illegal conduct, thereby risking criminal prosecution,’ [citations].” (Id. at p. 1068.) The court went on to hold that “a party may preserve his or her anonymity in judicial proceedings in special circumstances when the party's need for anonymity outweighs prejudice to the opposing party and the public's interest in knowing the party's identity.” (Ibid.)” (Lincoln, supra, 188 Cal. App. 4th at 767.)
In Advanced Textile, once again the court notes “[t]he Ninth Circuit further held that if pseudonyms are necessary to shield a party from retaliation, the following factors should be evaluated to determine the need for anonymity: “(1) the severity of the threatened harm; (2) the reasonableness of the anonymous party's fears; and (3) the anonymous party's vulnerability to such retaliation.” [Advanced Textile, supra, 214 F.3d at 1068.] (Citations omitted). The Ninth Circuit also held that the trial court must consider the precise prejudice the motion would cause the opposing party at each stage of the proceedings, and whether the proceedings may be structured so as to mitigate that prejudice. Id. at 1068–1069. Finally, the Ninth Circuit held that the trial court must determine whether the public's interest in the case is best served by requiring the litigants to reveal their identities. Id. at 1068.” (E.E.O.C. v. ABM Indus. Inc., 249 F.R.D. 588, 593 (E.D. Cal. 2008) (“ABM”).)
The court first notes Plaintiff argues that California Courts do not rely on the holding in Advanced Textile as it involved federal questions of law under the Fair Labor Standards Act (“FLSA”) and not the FEHA that is at issue in this case. As many if not all of the cases cited by Plaintiff cite to or use Advanced Textile in their analysis, and as Plaintiff has offered no valid alternative framework or cases that aid in determining the question of anonymity of a party, the court will proceed under the Advanced Textile framework.
Applying the balancing test in Advanced Textile, “courts have permitted plaintiffs to use pseudonyms in three situations: (1) when identification creates a risk of retaliatory physical or mental harm, [Citations.]; (2) when anonymity is necessary “to preserve privacy in a matter of sensitive and highly personal nature,” [Citations.]; and (3) when the anonymous party is “compelled to admit [his or her] intention to engage in illegal conduct, thereby risking criminal prosecution.” (Advanced Textile, supra, 214 F.3d at 1068.) Plaintiff has produced no evidence supporting either the first or third situation, thus only potential issues under the second situation.
Further, “in cases where, as here, pseudonyms are used to shield the anonymous party from retaliation, the district court should determine the need for anonymity by evaluating the following factors: (1) the severity of the threatened harm, see Southern Methodist Univ., 599 F.2d at 713 [No anonymity permitted to female attorneys who were suing law firms for alleged sex discrimination under EEOC. There, “is no greater threat of retaliation than the typical plaintiff alleging Title VII violations, including the other women who, under their real names and not anonymously, have filed sex discrimination suits against large law firms.”]; (2) the reasonableness of the anonymous party's fears [Citation.]; and (3) the anonymous party's vulnerability to such retaliation, see id. (discussing vulnerability of child plaintiffs); [Citation.]. The court must also determine the precise prejudice at each stage of the proceedings to the opposing party, and whether proceedings may be structured so as to mitigate that prejudice. [Citation.]. Finally, the court must decide whether the public's interest in the case would be best served by requiring that the litigants reveal their identities. See Stegall, 653 F.2d at 185 (recognizing that “[p]arty anonymity does not obstruct the public's view of the issues joined or the court's performance in resolving them.”). (Advanced Textile, supra, 214 F.3d at 1068–69.)
“Because there is a presumption that parties' identities are public information, anonymity is only proper under “special circumstances when the party's need for anonymity outweighs prejudice to the opposing party and the public's interest in knowing the party's identity.” [Citation.] The Ninth Circuit allows parties to use pseudonyms in unusual cases where anonymity is “necessary ... to protect a person from harassment, injury, ridicule or personal embarrassment.” [Citation.] Anonymity can be based on fear of retaliatory harm, the need for privacy, or admission of illegal conduct. Advanced Textile, 214 F.3d at 1068. However, the Ninth Circuit has made clear that use of a pseudonym should only be permitted occasionally and in “unusual” cases. (Doe v. UNUM Life Ins. Co. of Am., 164 F. Supp. 3d 1140, 1144 (“UNUM”).)
“[A]nonymity is justified where plaintiffs face “greater threats of retaliations than the typical plaintiff.” [Emphasis added.] (ABM, supra, 249 F.R.D. at 594.) “The most compelling situations [in which plaintiffs are allowed to proceed anonymously] involve matters which are highly sensitive, such as social stigmatization, real danger of physical harm, or where the injury litigated against would occur as a result of the disclosure of the plaintiff's identity.” (UNUM, supra, 164 F. Supp. 3d at 1145.)
Plaintiff alleges the threat of discrimination, sexual harassment, and retaliation under the FEHA. These are not severe threats of harm. As to sexual harassment, Plaintiff has alleged in the Complaint that her harasser (LoGalbo) is no longer employed by OCDA. Plaintiff has alleged no other acts of sexual harassment by any other individuals, nor any real threat of further sexual harassment if her name were to be revealed. As to discrimination or retaliation under FEHA, as noted in the ruling on the demurrer (ROA #108), Plaintiff has failed to allege facts sufficient to support she has experienced any discrimination or retaliation based on her complaints about LoGalbo’s actions. To the extent that Plaintiff, once her name is known, does actually experience discrimination or retaliation, she would be able to validly state causes of action under Govt. Code § 12940 and would be able to sue Defendant for any new acts of retaliation or discrimination. Plaintiff has alleged no greater threat of discrimination or retaliation than a typical plaintiff alleging violations under the FEHA. Plaintiff is also no more or less vulnerable to discrimination or retaliation than other non-anonymous plaintiffs suing their employers. Plaintiff has pled no facts suggesting this element support anonymity in this case.
It is unclear if Plaintiff’s fears are or are not reasonable at this point. As noted, Plaintiff is protected under the FEHA for acts of retaliation or discrimination, including those that might occur as a result of this lawsuit. However, again, Plaintiff is no more or less vulnerable to discrimination or retaliation than other non-anonymous plaintiffs suing their employers. Plaintiff has pled no facts suggesting this element support anonymity in this case.
Plaintiff has not pled facts supporting any vulnerability to retaliation in excess of what a non-anonymous plaintiff might suffer. Plaintiff may also actually be less vulnerable as not only is she an attorney herself, but she works for a government agency that likely has stricter compliance with FEHA requirements than private sector firms. Plaintiff has pled no facts suggesting this element support anonymity in this case.
Plaintiff has pled no “special” or “unusual” facts that would support the need for anonymity, nor has she shown any greater threat of retaliation than any non-anonymous plaintiffs suing their employers. (UNUM, supra, 164 F. Supp. 3d at 1145-46 [An attorney suing an employer is under no greater threat of discrimination or retaliation than other non-anonymous plaintiffs suing their employers]; S. Methodist Univ. Ass'n of Women L. Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir. 1979).) “That the plaintiff may suffer some embarrassment or economic harm is not enough [to support anonymity].” (Id.) In contrast, anonymity was granted in the Advanced Textile case to Chinese plaintiffs working in garment factories in the Mariana Islands (where there were limited other job prospects) who showed not only were they threatened with losing their jobs, but also threatened with deportation, being burdened with debts to labor contracting agencies, and imprisonment in China. (Advanced Textile, supra, 214 F.3d at 1062-63.) None of the allegations made by Plaintiff come anywhere near the issues in Advanced Textile, wherein the court permitted anonymity (again under FLSA not FEHA) in “unusual cases” when plaintiffs have demonstrates that they have an objectively reasonable fear of extraordinarily severe retaliation. (Id., at 1063 and 1067-68.)
At most Plaintiff may have her job demoted, not advanced, or terminated, which while illegal and improper, are nothing more than garden variety retaliation, and not extraordinarily severe retaliation, which does not support usage of a pseudonym. This is no greater a threat of discrimination or retaliation than any other non-anonymous plaintiff suing their employer. Plaintiff is also no more or less vulnerable to discrimination or retaliation than other non-anonymous plaintiff suing their employer. While a balancing test might be called for under the FLSA, where a plaintiff fails to even put forth any potential extraordinarily severe retaliation, a defendant will need to put forth only minimal arguments to have the scale tipped in its favor.
Defendant argues that it will be prejudice by Plaintiff’s anonymity in its inability to investigate the scope and extent of Plaintiff’s alleged physical and emotion injuries as Defendant intends to subpoena Plaintiff’s various medical providers for records, which will require Plaintiff’s true name to locate Plaintiff’s records. Defendant will also need to verify exhaustion of Plaintiff’s administrative remedies. Further, Defendant will need to depose various witnesses to confirm or refute Plaintiff’s allegations, and the use of “Doe” instead of Plaintiff’s real name will cause confusion and may result in Defendant missing relevant information and testimony. Finally, Defendant argues the use of “Doe” may be prejudicial at trial as a jury may imply someone using “Doe” may need additional protections. Defendant’s arguments are compelling and show precise prejudices Defendant may suffer at each stage. “In cases where the plaintiffs have demonstrated a need for anonymity, the district court should use its powers to manage pretrial proceedings. . . and to issue protective orders limiting disclosure of the party's name. . . to preserve the party's anonymity to the greatest extent possible without prejudicing the opposing party's ability to litigate the case.” (Advanced Textile, supra, 214 F.3d at 1069.) Plaintiff has failed to demonstrate a need for her anonymity, while Defendant has sufficiently argued prejudice if anonymity is permitted.
“A court “must decide whether the public's interest in the case would be best served by requiring that the litigants reveal their identities.” Advanced Textile, 214 F.3d at 1068. A plaintiff's “use of fictitious names runs afoul of the public's common law right of access to judicial proceedings.” Id. at 1067. As the Supreme Court has written, “A trial is a public event. What transpires in the court room is public property.” [Citation.] Doe asserts that allowing him to use a pseudonym furthers the public interest by shielding disabled plaintiffs from the “public scrutiny of the operative issues of the case” and removing unnecessary barriers that may prevent similarly situated plaintiffs from commencing litigation. [Citation.] While I am sensitive to Doe's concerns, I do not agree that his identity should be concealed when the primary harm asserted is embarrassment and the stigma is no greater than in many disability cases.” (UNUM, supra, 164 F. Supp. 3d at 1146–47.)
It is also likely Plaintiff’s identity is already known to Defendant or could very easily be determined based on the specific allegations in the Complaint. Within the first five sentences, Plaintiff claims 1) she is a woman; 2) a Deputy DA for Orange County; 3) born in Afghanistan who is an Afghan-American war refugee; and 4) a Muslim. (Complaint p. 2:4-5.) The Complaint also states Plaintiff was 1) hired August 2019 (Complaint ¶ 8); 2) sworn in on or about 08/16/19 (Id.); 3) her first assignment was to the Felony Charging Unit at North Court (Id.); 4) her office was in the Annex (Id.); and 5) Plaintiff previously worked for the Riverside County DA’s Office (Complaint ¶ 13). Finally, Plaintiff’s supplemental brief states she will be adding to her First Amended Complaint (“FAC”) that she has already been retaliated against for filing her complaint and participating in the internal investigation of LoGalbo. (Pla. Supp. Brief at p. 6:12-7:2.) Plaintiff states she will allege she has already been retaliated against when she applied for and was denied a spot on the Felony Panel, which would allow for future advancement and compensation and that she has been prevented from advancing despite being qualified to do so. (Id.) All of the above strongly suggests Plaintiff’s identity is already known to Defendant, that retaliation has already occurred, and that there is no threat of extraordinarily severe retaliation to Plaintiff.
As Plaintiff has failed to demonstrate a need for anonymity in this lawsuit, she cannot overcome the prejudice to Defendant or the public’s interest in litigants using their true names.
The MTS is GRANTED.
Objections
Defendant filed objections to the Kerner Decl., which was filed in support of Plaintiff’s supplemental brief.
SUSTAINED as to Nos. 1-2, 5, and 7-8 (lacks relevance only as to “, Jane Roe Two, and Jane Roe Three”
OVERRULED as to the rest), 3 (improper legal argument), 4 (lacks foundation/personal knowledge, improper legal argument),
OVERRULED as to Nos. 6
* * *
The court notes Plaintiff has already filed a First Amended Complaint in response to the sustained demurrer. (ROA ## 108, 131.) Plaintiff is directed to file a Second Amended Complaint (“SAC”) substituting her real name within 10-days of the hearing. Defendant may file a responsive pleading to the SAC per code. No response to the FAC is necessary as the SAC will be the operative pleading when filed.
B) Motion to Compel Further Responses to Interrogatories
Defendant’s Motion to Compel (“MTC”) Plaintiff’s further responses to Form Interrogatories, Set Two (“FROG”) is MOOT in part and GRANTED in part.
Plaintiff indicates further responses to the FROG were eventually served on Defendant, which Defendant concedes occurred over three months after the MTC was filed. The MTC is therefore moot as to the further responses. The only question before this court at this time is for the requested monetary sanctions.
As Defendant was required to file the MTC in order to obtain the further responses from Plaintiff, the court grants monetary sanctions in favor of Defendant and against Plaintiff pursuant to Civ. Proc. Code §§ 2023.010(f) and 2030.300(d), and CA ST CIVIL RULES Rule 3.1348(a). The court notes the requested amount is high for how uncomplicated the issues in the MTC are. The court will therefore reduce the requested amount by 25%, to $3,600, under the lodestar approach. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096.)
Plaintiff is ordered to pay monetary sanction in the amount of $3,600 within 20-days of the hearing. Sanctions are solely against Plaintiff and not against her counsel of record. (Civ. Proc. Code § 2023.040.)
Defendant to give notice.