Jane Doe v. YMCA of Silicon Valley

Jane Doe v.  YMCA of Silicon Valley CASE NO. 114CV 265774
DATE: 24 October 2014 TIME: 9:00 LINE NUMBER: 12

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 23 October 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 24 October 2014, the motion of Plaintiffs for release of confidential records pursuant to Penal Code sanctions 1167(d)(1) and 1167.5(b)(1) was argued and submitted.

On 8 October 2014, the Santa Clara County District Attorney’s Office by and through The Office of the County Counsel, filed a formal response to the motion.

On 9 October 2014, Defendants YMCA of Silicon Valley and Mt. Madonna YMCA filed a “Notice of Joinder and Joinder” in Plaintiffs’ motion.[1]

  1. Statement of Facts.

The complaint in this action was filed on 27 May 2014.

The complaint alleges that the plaintiff Jane Doe, age 7 years of age, was enrolled in a summer child care day camp on the premises of Paradise Valley Elementary School in the city of Morgan Hill which was licensed and operated by Defendants YMCA of Silicon Valley and Mt. Madonna YMCA.

Defendant Nicholas Lhermine was employed by Defendants YMCA of Silicon Valley and Mt. Madonna YMCA as an aide since February 2011.  The YMCA Defendants violated various provisions of Title 22 of the California Code of Regulations concerning supervision of aides, maintaining a fully qualified teacher to maintain responsibility for the overall operation of the facility and proper teacher-child ratios.  (¶ 6.)

¶¶ 7-10 of the complaint allege that on the afternoon of 12 July 2013, Defendant Lhermine sexually assaulted six-year-old plaintiff while the teacher in charge was cleaning the kitchen and was unaware of Lhermine’s whereabouts.  On information and belief, Lhermine used his cell phone camera in violation of the rules set by the YMCA Defendants who were aware of such usage.  He took pictures of the genitalia of a five-year-old and under information and belief committed lewd or lascivious acts upon a seven-year-old and three-year-old child on that date prior to molesting Plaintiff Jane Doe.

The complaint contains causes of action for one) sexual abuse of a minor; two) negligence; three; negligent training and supervision of employees, staff and volunteers; and four) intentional infliction of emotional distress.

  1. Discovery Dispute.

Plaintiff seeks discovery of confidential records under the Child Abuse and Neglect Reporting Act maintained by the Santa Clara County Office of the District Attorney, pursuant to Penal Code sanctions 1167(d)(1) and 1167.5(b)(1).  Under these laws, The Office of the District Attorney will not disclose the records without a prior court order.

III.     Analysis.

In papers filed by the Office of the County Counsel, the district attorney does not oppose this Court’s review of the records in camera to determine whether the motion should be granted.

  1. Order.

Good cause appearing, IT IS ORDERED that the records be delivered under seal to this Court for an in camera inspection.

 

 

________________­­­____________

DATED:

_________________________­­­________________________

HON. SOCRATES PETER MANOUKIAN

Judge of the Superior Court

County of Santa Clara

[1] The joinder in the Plaintiffs’ motion filed by the YMCA Defendants is a bit problematic since it was filed on less than statutory notice and filed after the response by the Office of County Counsel was filed.  In general, it is common practice for attorneys to join in another party’s motion by simply filing a pleading captioned “Joinder in Motion of … for …,” stating that the joining party adopts the requests and the points and authorities contained in the joined motion.   Weil & Brown, § 9:27.

In determining whether or not a joinder in motion may or may not be sufficient to place a party before the court in connection with affirmative relief of another party, the court will examine the nature of the claim.   (Barack v. Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 693.)

When looking to the nature of the claim, it is important to consider what type of motion the party bringing the motion would like to join in.  In Barack, one defendant filed and served a special motion to strike Plaintiff’s complaint.  Id at 657.  The other defendant filed a document joining in the motion.  Id at 657.  The joinder in the motion was proper because the special motion to strike did not require a prima facie case to be established.  Id at 693.  It’s just

The Court distinguished the type of motion brought.  Id at 693.  If the joinder had been for a motion for summary judgment, for example, joinder in the motion would have been improper since the party seeking joinder did not file a separate statement of undisputed facts as is required for summary judgment.  Id at 693; see also Weil & Brown, §9:27.1.

Should this matter proceed to a hearing, this Court will ask counsel for Plaintiffs and The Office of the County Counsel if there is any objection to providing copies of these reports to the other defendants should this Court grant in camera review.

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