Preview
1 James W. Lewis, Esq. (SBN 207599)
Andrew I. Chung, Esq. (SBN 249771)
2 Cindy K. Suh, Esq. (SBN 331072)
SLATER SLATER SCHULMAN, LLP
3 8383 Wilshire Blvd., Suite 255
Beverly Hills, CA 90211
4 Telephone: (310) 341-2086
Email: jlewis@sssfirm.com
5 achung@sssfirm.com
csuh@sssfirm.com
6
7 Attorneys for Plaintiff,
JANE DOE K.B.
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SONOMA
11
12 JANE DOE K.B., an individual, CASE NO.: SCV-272161
13 Plaintiff, PLAINTIFF’S EX PARTE APPLICATION
FOR AN IN-CAMERA REVIEW OF THE
14 CERTIFICATES OF MERIT AND AN
vs.
15 ORDER TO SERVE THE DEFENDANTS
DOE 1, a public entity;
16 and
DOES 2 through 60, inclusive,
17
Defendants.
18
19
20
In this childhood sexual abuse action, Plaintiff JANE DOE K.B. (“Plaintiff”) hereby
21
22 applies ex parte for an “in camera” review of the Certificates of Merit along with an order to
23 serve Defendant DOE 1 pursuant to Code of Civil Procedure Section 340.1. Plaintiff also
24 requests that this Court issue an order sealing the Certificates of Merit that have been
25
filed/submitted to this Court in this action.
26
This application is based on the accompanying Memorandum of Points and Authorities,
27
the Declaration of attorney James W. Lewis, the Attorney Certificates of Merit, the Certificate of
28
1
PLAINTIFF’S EX PARTE APPLICATION FOR AN IN CAMERA REVIEW OF THE CERTIFICATES OF MERIT
1 Merit by Licensed Psychologist, all pleadings and papers filed in this action, and such further
2 other material as may be presented at the time of the ex parte hearing on this matter.
3
MEMORANDUM OF POINTS AND AUTHORITIES
4
I. SUMMARY OF FACTUAL BASIS FOR EX PARTE APPLICATION
5
This is a childhood sexual abuse case that was filed on November 28, 2022. Shortly after
6
the Complaint was filed, Plaintiff also filed an attorney Certificate of Merit as to each Doe
7
8 Defendant and a Certificate of Merit from a Licensed Psychologist. The present Court docket
9 does not reflect the filing of the Certificates of Merit.
10 The Certificates of Merit were filed pursuant to Code of Civil Procedure section
11
340.1(f), which requires these certificates when the Plaintiff is over 40, as here. Section
12
340.1(i) additionally requires that the Court review the Certificates “in camera” before any
13
defendant is served.
14
15 Pursuant to this ex parte application, Plaintiff respectfully requests in camera review of
16 the Certificates of Merit and orders: (1) deeming the Certificates of Merit filed on December
17 19, 2022; (2) allowing Plaintiff to serve the Summons and Complaint on each of the Doe
18
Defendants; and (3) sealing the Attorney Certificates of Merit and the Certificate of Merit from
19
the Licensed Psychologist. Alternatively, to the extent the Court seeks to grant some, but not
20
all, of the relief requested by Plaintiff, Plaintiff seeks separate orders as to each of the requests
21
made in this application.
22
23 The factual and legal bases for this ex parte application are explained in more detail
24 below.
25 //
26
//
27
//
28
2
PLAINTIFF’S EX PARTE APPLICATION FOR AN IN CAMERA REVIEW OF THE CERTIFICATES OF MERIT
1 II. PLAINTIFF REQUESTS ORDERS DEEMING THE CERTIFICATES OF
2 MERIT FILED AND ALLOWING HER TO SERVE THE COMPLAINT ON THE
3
DEFENDANTS
4
Code of Civil Procedure §340.1(i) provides the authority for this ex parte application.
5
This section requires plaintiffs over the age of 40 to obtain court approval to serve a defendant
6
named in a childhood sexual abuse matter. Indeed, the duty to serve attaches only upon the
7
8 Court’s finding, in camera, that “there is a reasonable and meritorious cause for the filing of the
9 action against that defendant” based upon the “Certificates of Merit” filed by plaintiff’s attorney
10 and licensed mental health practitioner. (Ibid.) The attorney’s Certificate of Merit must declare
11
that “there is a reasonable and meritorious cause for the filing of the action” based on the
12
attorney’s review of the facts of the case and consultation with at least one mental health
13
practitioner.” (Code of Civil Procedure §340.1(i)(1).) Separately, the mental health
14
15 practitioner’s Certificate must affirm that “there is a reasonable basis to believe that the plaintiff
16 had been subject to childhood sexual abuse” based upon the practitioner’s interview of the
17 Plaintiff and knowledge of the relevant facts and issues. (Code of Civil Procedure §340.1(i)(2).)
18
Plaintiff has fulfilled her obligations with respect to subsection “i.” Plaintiff filed
19
attorney Certificate of Merit against Defendant DOE 1 on December 19, 2022. (See Plaintiff’s
20
Notice of Lodging [“NOL”], Ex. A.) Further, Plaintiff has submitted a Certificate of Merit
21
from a licensed psychologist on December 19, 2022 affirming that she interviewed Plaintiff and
22
23 has concluded in her professional opinion that there is a reasonable basis to believe that Plaintiff
24 was the subject of childhood sexual abuse. (NOL, Ex. B.) As a threshold issue, Plaintiff
25 requests that the Court deem each of these Certificates filed as of December 19, 2022.
26
Substantively, the attorney Certificates affirm that Plaintiff’s counsel believes that there
27
is a “reasonable and meritorious cause” for filing of the case based on his review of the file and
28
3
PLAINTIFF’S EX PARTE APPLICATION FOR AN IN CAMERA REVIEW OF THE CERTIFICATES OF MERIT
1 consultation with a mental health practitioner. Specifically, the attorney Certificates of Merit
2 explain how a teacher and/or agent of Defendants DOE 1 victimized Plaintiff by grooming her
3
on the school premises and escalating his abuse of Plaintiff over time. This teacher was allowed
4
to sexually assault and molest Plaintiff for years without any disciplinary action from Defendant
5
DOE 1. Thus, Plaintiff has complied with each of her obligations under Section 340.1(i).
6
Importantly, at this early stage, the Court is not required to adjudicate or determine the
7
8 merits of the factual allegations. Instead, the purpose of the Certificates is only to “prevent
9 frivolous and unsubstantiated claims.” (McVeigh v. Doe 1 (2006) 138 Cal.App.4th 898, 903-
10 904.) Based on the Certificates that have been submitted, this plainly is not a frivolous matter.
11
Plaintiff therefore requests an order deeming the Certificates of Merit filed as of December 19,
12
2022 and permitting her to serve Defendants DOE 1 with the Summons and Complaint.
13
III. PLAINTIFF REQUESTS THAT THIS COURT ISSUE AN ORDER SEALING
14
15 THE CERTIFICATES OF MERIT
16 Pursuant to statute, Plaintiff additionally requests that the Certificates of Merit be kept
17 confidential and under seal. As a threshold issue, it bears emphasis that Plaintiff need not file a
18 separate motion to seal the Certificates of Merit. California Rules of Court, Rule 2.550(a)(2)
19
instructs: “These rules do not apply to records that are required to be kept confidential by law.”
20
The Childhood Sexual Abuse statute plainly requires that the Certificates of Merit be
21
kept confidential as a matter of law. Section 340.1(i) requires that the Certificates of Merit filed
22
23 by Plaintiff be reviewed by the Court “in camera” before any defendant is served with the
24 Summons and Complaint. Section 340.1(p) underscores that the Certificates of Merit must
25 remain confidential since that section provides that the name, address, and telephone number of
26
the person or persons consulted with in preparation for the certificate of merit can only be
27
revealed “[u]pon the favorable conclusion of the litigation with respect to any defendant for
28
4
PLAINTIFF’S EX PARTE APPLICATION FOR AN IN CAMERA REVIEW OF THE CERTIFICATES OF MERIT
1 whom a certificate of merit was filed . . . .” This statutory language would be rendered
2 meaningless unless the Certificates of Merit were kept confidential.
3
Thus, the plain language of the Childhood Sexual Abuse statute restricts the Certificates
4
of Merit from being part of the public record. Pursuant to the clear intent of the statute, Plaintiff
5
requests an order sealing the attorney Certificates of Merit (NOL, Ex. A) and the Certificate of
6
Merit from Licensed Psychologist (NOL, Ex. B).
7
8 IV. EX PARTE RELIEF IS APPROPRIATE
9 California Rules of Court, Rule 3.1202(c) provides that ex parte relief may be had when
10 there is a “statutory basis for granting relief ex parte.” The Childhood Sexual Abuse statute
11
provides the underlying “statutory basis” for this ex parte application. Importantly, Plaintiff’s
12
duty to serve the Complaint only attaches upon the Court’s review of the Certificates of Merit in
13
camera. (Civil Code Section 340.1(j).) Because this review occurs before any defendant has
14
15 appeared in the action, as here, Plaintiff is not required to provide any notice of the application
16 to another party. Further, the statute does not require the Court’s in camera review to be
17 performed through a formally noticed motion, or any motion at all. Thus, an ex parte
18
application at the outset of the case provides the most efficient and effective method for Plaintiff
19
to serve the Defendants and initiate the litigation.
20
V. CONCLUSION
21
Based upon the foregoing, Plaintiff respectfully requests that this ex parte application be
22
23 granted and the Court issue an order that:
24 (1) The Certificates of Merit be deemed filed as of December 19, 2022;
25 (2) Plaintiff is permitted to serve Defendants DOE 1 with the Summons and
26
the Complaint;
27
(3) That the following documents be sealed by the Court and kept out of the
28
5
PLAINTIFF’S EX PARTE APPLICATION FOR AN IN CAMERA REVIEW OF THE CERTIFICATES OF MERIT
1 public court file pursuant to Code of Civil Procedure Section 340.1:
2 a. Attorney Certificate of Merit Regarding Defendant DOE 1 (Notice of
3
Lodging, Ex. A);
4
b. Certificate of Merit by Licensed Psychologist Regarding Plaintiff
5
JANE DOE K.B. (Notice of Lodging, Ex. B).
6
Alternatively, to the extent the Court seeks to grant some, but not all, of the relief
7
8 requested by Plaintiff, Plaintiff seeks separate orders as to each of the requests made in this
9
application.
10
11 Dated: December 29, 2022 SLATER SLATER SCHULMAN LLP
12
13 By: ________________________
14 James W. Lewis, Esq.
Andrew I. Chung, Esq.
15 Cindy K. Suh, Esq.
Attorneys for Plaintiff
16
17
18
19
20
21
22
23
24
25
26
27
28
6
PLAINTIFF’S EX PARTE APPLICATION FOR AN IN CAMERA REVIEW OF THE CERTIFICATES OF MERIT
Preview
1 James W. Lewis, Esq. (SBN 207599) Andrew I. Chung, Esq. (SBN 249771) 2 Cindy K. Suh, Esq. (SBN 331072) SLATER SLATER SCHULMAN, LLP 3 8383 Wilshire Blvd., Suite 255 Beverly Hills, CA 90211 4 Telephone: (310) 341-2086 Email: jlewis@sssfirm.com 5 achung@sssfirm.com csuh@sssfirm.com 6 7 Attorneys for Plaintiff, JANE DOE K.B. 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SONOMA 11 12 JANE DOE K.B., an individual, CASE NO.: SCV-272161 13 Plaintiff, PLAINTIFF’S EX PARTE APPLICATION FOR AN IN-CAMERA REVIEW OF THE 14 CERTIFICATES OF MERIT AND AN vs. 15 ORDER TO SERVE THE DEFENDANTS DOE 1, a public entity; 16 and DOES 2 through 60, inclusive, 17 Defendants. 18 19 20 In this childhood sexual abuse action, Plaintiff JANE DOE K.B. (“Plaintiff”) hereby 21 22 applies ex parte for an “in camera” review of the Certificates of Merit along with an order to 23 serve Defendant DOE 1 pursuant to Code of Civil Procedure Section 340.1. Plaintiff also 24 requests that this Court issue an order sealing the Certificates of Merit that have been 25 filed/submitted to this Court in this action. 26 This application is based on the accompanying Memorandum of Points and Authorities, 27 the Declaration of attorney James W. Lewis, the Attorney Certificates of Merit, the Certificate of 28 1 PLAINTIFF’S EX PARTE APPLICATION FOR AN IN CAMERA REVIEW OF THE CERTIFICATES OF MERIT 1 Merit by Licensed Psychologist, all pleadings and papers filed in this action, and such further 2 other material as may be presented at the time of the ex parte hearing on this matter. 3 MEMORANDUM OF POINTS AND AUTHORITIES 4 I. SUMMARY OF FACTUAL BASIS FOR EX PARTE APPLICATION 5 This is a childhood sexual abuse case that was filed on November 28, 2022. Shortly after 6 the Complaint was filed, Plaintiff also filed an attorney Certificate of Merit as to each Doe 7 8 Defendant and a Certificate of Merit from a Licensed Psychologist. The present Court docket 9 does not reflect the filing of the Certificates of Merit. 10 The Certificates of Merit were filed pursuant to Code of Civil Procedure section 11 340.1(f), which requires these certificates when the Plaintiff is over 40, as here. Section 12 340.1(i) additionally requires that the Court review the Certificates “in camera” before any 13 defendant is served. 14 15 Pursuant to this ex parte application, Plaintiff respectfully requests in camera review of 16 the Certificates of Merit and orders: (1) deeming the Certificates of Merit filed on December 17 19, 2022; (2) allowing Plaintiff to serve the Summons and Complaint on each of the Doe 18 Defendants; and (3) sealing the Attorney Certificates of Merit and the Certificate of Merit from 19 the Licensed Psychologist. Alternatively, to the extent the Court seeks to grant some, but not 20 all, of the relief requested by Plaintiff, Plaintiff seeks separate orders as to each of the requests 21 made in this application. 22 23 The factual and legal bases for this ex parte application are explained in more detail 24 below. 25 // 26 // 27 // 28 2 PLAINTIFF’S EX PARTE APPLICATION FOR AN IN CAMERA REVIEW OF THE CERTIFICATES OF MERIT 1 II. PLAINTIFF REQUESTS ORDERS DEEMING THE CERTIFICATES OF 2 MERIT FILED AND ALLOWING HER TO SERVE THE COMPLAINT ON THE 3 DEFENDANTS 4 Code of Civil Procedure §340.1(i) provides the authority for this ex parte application. 5 This section requires plaintiffs over the age of 40 to obtain court approval to serve a defendant 6 named in a childhood sexual abuse matter. Indeed, the duty to serve attaches only upon the 7 8 Court’s finding, in camera, that “there is a reasonable and meritorious cause for the filing of the 9 action against that defendant” based upon the “Certificates of Merit” filed by plaintiff’s attorney 10 and licensed mental health practitioner. (Ibid.) The attorney’s Certificate of Merit must declare 11 that “there is a reasonable and meritorious cause for the filing of the action” based on the 12 attorney’s review of the facts of the case and consultation with at least one mental health 13 practitioner.” (Code of Civil Procedure §340.1(i)(1).) Separately, the mental health 14 15 practitioner’s Certificate must affirm that “there is a reasonable basis to believe that the plaintiff 16 had been subject to childhood sexual abuse” based upon the practitioner’s interview of the 17 Plaintiff and knowledge of the relevant facts and issues. (Code of Civil Procedure §340.1(i)(2).) 18 Plaintiff has fulfilled her obligations with respect to subsection “i.” Plaintiff filed 19 attorney Certificate of Merit against Defendant DOE 1 on December 19, 2022. (See Plaintiff’s 20 Notice of Lodging [“NOL”], Ex. A.) Further, Plaintiff has submitted a Certificate of Merit 21 from a licensed psychologist on December 19, 2022 affirming that she interviewed Plaintiff and 22 23 has concluded in her professional opinion that there is a reasonable basis to believe that Plaintiff 24 was the subject of childhood sexual abuse. (NOL, Ex. B.) As a threshold issue, Plaintiff 25 requests that the Court deem each of these Certificates filed as of December 19, 2022. 26 Substantively, the attorney Certificates affirm that Plaintiff’s counsel believes that there 27 is a “reasonable and meritorious cause” for filing of the case based on his review of the file and 28 3 PLAINTIFF’S EX PARTE APPLICATION FOR AN IN CAMERA REVIEW OF THE CERTIFICATES OF MERIT 1 consultation with a mental health practitioner. Specifically, the attorney Certificates of Merit 2 explain how a teacher and/or agent of Defendants DOE 1 victimized Plaintiff by grooming her 3 on the school premises and escalating his abuse of Plaintiff over time. This teacher was allowed 4 to sexually assault and molest Plaintiff for years without any disciplinary action from Defendant 5 DOE 1. Thus, Plaintiff has complied with each of her obligations under Section 340.1(i). 6 Importantly, at this early stage, the Court is not required to adjudicate or determine the 7 8 merits of the factual allegations. Instead, the purpose of the Certificates is only to “prevent 9 frivolous and unsubstantiated claims.” (McVeigh v. Doe 1 (2006) 138 Cal.App.4th 898, 903- 10 904.) Based on the Certificates that have been submitted, this plainly is not a frivolous matter. 11 Plaintiff therefore requests an order deeming the Certificates of Merit filed as of December 19, 12 2022 and permitting her to serve Defendants DOE 1 with the Summons and Complaint. 13 III. PLAINTIFF REQUESTS THAT THIS COURT ISSUE AN ORDER SEALING 14 15 THE CERTIFICATES OF MERIT 16 Pursuant to statute, Plaintiff additionally requests that the Certificates of Merit be kept 17 confidential and under seal. As a threshold issue, it bears emphasis that Plaintiff need not file a 18 separate motion to seal the Certificates of Merit. California Rules of Court, Rule 2.550(a)(2) 19 instructs: “These rules do not apply to records that are required to be kept confidential by law.” 20 The Childhood Sexual Abuse statute plainly requires that the Certificates of Merit be 21 kept confidential as a matter of law. Section 340.1(i) requires that the Certificates of Merit filed 22 23 by Plaintiff be reviewed by the Court “in camera” before any defendant is served with the 24 Summons and Complaint. Section 340.1(p) underscores that the Certificates of Merit must 25 remain confidential since that section provides that the name, address, and telephone number of 26 the person or persons consulted with in preparation for the certificate of merit can only be 27 revealed “[u]pon the favorable conclusion of the litigation with respect to any defendant for 28 4 PLAINTIFF’S EX PARTE APPLICATION FOR AN IN CAMERA REVIEW OF THE CERTIFICATES OF MERIT 1 whom a certificate of merit was filed . . . .” This statutory language would be rendered 2 meaningless unless the Certificates of Merit were kept confidential. 3 Thus, the plain language of the Childhood Sexual Abuse statute restricts the Certificates 4 of Merit from being part of the public record. Pursuant to the clear intent of the statute, Plaintiff 5 requests an order sealing the attorney Certificates of Merit (NOL, Ex. A) and the Certificate of 6 Merit from Licensed Psychologist (NOL, Ex. B). 7 8 IV. EX PARTE RELIEF IS APPROPRIATE 9 California Rules of Court, Rule 3.1202(c) provides that ex parte relief may be had when 10 there is a “statutory basis for granting relief ex parte.” The Childhood Sexual Abuse statute 11 provides the underlying “statutory basis” for this ex parte application. Importantly, Plaintiff’s 12 duty to serve the Complaint only attaches upon the Court’s review of the Certificates of Merit in 13 camera. (Civil Code Section 340.1(j).) Because this review occurs before any defendant has 14 15 appeared in the action, as here, Plaintiff is not required to provide any notice of the application 16 to another party. Further, the statute does not require the Court’s in camera review to be 17 performed through a formally noticed motion, or any motion at all. Thus, an ex parte 18 application at the outset of the case provides the most efficient and effective method for Plaintiff 19 to serve the Defendants and initiate the litigation. 20 V. CONCLUSION 21 Based upon the foregoing, Plaintiff respectfully requests that this ex parte application be 22 23 granted and the Court issue an order that: 24 (1) The Certificates of Merit be deemed filed as of December 19, 2022; 25 (2) Plaintiff is permitted to serve Defendants DOE 1 with the Summons and 26 the Complaint; 27 (3) That the following documents be sealed by the Court and kept out of the 28 5 PLAINTIFF’S EX PARTE APPLICATION FOR AN IN CAMERA REVIEW OF THE CERTIFICATES OF MERIT 1 public court file pursuant to Code of Civil Procedure Section 340.1: 2 a. Attorney Certificate of Merit Regarding Defendant DOE 1 (Notice of 3 Lodging, Ex. A); 4 b. Certificate of Merit by Licensed Psychologist Regarding Plaintiff 5 JANE DOE K.B. (Notice of Lodging, Ex. B). 6 Alternatively, to the extent the Court seeks to grant some, but not all, of the relief 7 8 requested by Plaintiff, Plaintiff seeks separate orders as to each of the requests made in this 9 application. 10 11 Dated: December 29, 2022 SLATER SLATER SCHULMAN LLP 12 13 By: ________________________ 14 James W. Lewis, Esq. Andrew I. Chung, Esq. 15 Cindy K. Suh, Esq. Attorneys for Plaintiff 16 17 18 19 20 21 22 23 24 25 26 27 28 6 PLAINTIFF’S EX PARTE APPLICATION FOR AN IN CAMERA REVIEW OF THE CERTIFICATES OF MERIT