Case Number: BC516756 Hearing Date: August 04, 2015 Dept: 34
Moving Party: Defendant Financial Industry Regulatory Authority, Inc. (“FINRA”) and intervenor California Dept. of Business Oversight

Resp. Party: Plaintiff John Doe (“plaintiff”)

Defendants’ motion to amend the case caption is GRANTED.

The Court GRANTS Plaintiff’s Request for Judicial Notice.

BACKGROUND:

Plaintiff commenced this action on 7/31/13 against defendant for: (1) declaratory relief; (2) expungement of settled customer dispute; and (3)-(8) expungement of closed customer dispute. Plaintiff sought to expunge CRD records regarding dispute proceedings against plaintiff, pursuant to FINRA rule 2080. (Compl., ¶¶ 29-34, 46-93.)

On June 30, 2015, the Court issued its “Decision Following Court Trial Denying Plaintiff Dwyer’s Request For Expungement Of Customer Complaints.”

PRELIMINARY COMMENTS:

The Court rejects plaintiff’s argument that this is an improper motion for reconsideration. Neither party has ever moved to amend the case caption, and the Court has not issued a ruling as to the issue of the caption. Plaintiff’s previous motion to seal and proceed anonymously did not request such relief. Indeed, at the hearing on that motion, the Court expressly noted that “there is no motion before me to change the name and the caption of this case.” (See Pl. RJN, p. 7:16-18. See also id., p. 8:26 [“this isn’t a motion to change the caption”].)

In fact, the court was somewhat surprised that, throughout the course of this litigation, neither defendant FINRA nor the State of California appeared to oppose Plaintiff Dwyer’s effort to litigate this case anonymously. As the court stated in its June 30, 2015 ruling denying Plaintiff Dwyer’s request for expungement: “This case was filed under the name John Doe v. Financial Industry Regulatory Authority. Although plaintiff never requested that he be allowed to file under a pseudonym, defendants did not object to plaintiff being allowed to continue under the pseudonym ‘John Doe’ instead of under his real name. In fact, at several hearings, defense counsel specifically stated that they were not contesting the ability of plaintiff to continue this case under the caption ‘John Doe v. FINRA.’ ” (See June 30, 2015 Decision Following Court Trial, p. 3.)

ANALYSIS:

Defendant requests that the Court issue an order amending the case caption to “Patrick J. Dwyer v. Financial Industry Regulatory Authority, Inc.”

“[S]ubstantive courtroom proceedings in ordinary civil cases are ‘presumptively open.’” (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1217.) The California Supreme Court has held that the First Amendment provides “a right of access to ordinary civil trial and proceedings.” (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1212.) The court further noted its belief that “the public has an interest, in all civil cases, in observing and assessing the performance of its public judicial system.” (Id., at 1210.) There is a presumption of openness in civil court proceedings. (Id., at 1217.) This presumption may apply to seemingly private proceedings. (Burkle v. Burkle (2006) 135 Cal. App.4th 1045, 1052 (divorce proceedings).) Therefore, it is up to this Court to determine if that presumption has been overcome.

A plaintiff’s “use of fictitious names runs afoul of the public’s common law right of access to judicial proceedings.” (Does I thru XXIII v. Advanced Textile Corp. (9th Cir. 2000) 214 F.3d 1058, 1067.) “Under extraordinary circumstances, a court may permit plaintiffs to file a complaint under a fictitious name (e.g., ‘John Doe’ or ‘Jane Doe’).” (Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2014) ¶ 6:90.10. See also id., ¶¶ 2:136.5-2:136.7; Advanced Textile Corp., 214 F.3d at p. 1067.) Such “exceptional circumstances” include highly sensitive and personal matters, such as where the plaintiff is the victim of sexual assault. (See id., ¶ 2:136.6.)

Defendants seek to amend the caption of the pleadings in this action so to reflect plaintiff’s true name. Plaintiff appears to be concerned that revealing his name in this action will publicly disclose that customer complaints were made against him. (See, e.g., Opp., pp. 7-8.) However, plaintiff appears to concede that these complaints are already publicly available. (See, e.g., Opp., p. 8.) It appears that plaintiff’s main objection at this stage in the litigation as that revealing his name will publicly disclose that he sought – unsuccessfully – to have the complaints against him expunged.

This Court has already ruled against plaintiff Dwyer, finding that “[t]he equities weigh heavily against expungement of Plaintiff Dwyer’s record.” (See June 30, 2015 Decision Following Court Trial, p. 28.) In addition, Mr. Dwyer’s name has already appeared in the MetNews’ press coverage of this case.

This action is no different than any other action alleging defamation or seeking to expunge FINRA complaints. Plaintiff fails to show that captions in such actions typically include redacted names. The mere fact that plaintiff is a broker and that the complaints against him are embarrassing – or that it is embarrassing that he unsuccessfully sought to have the complaints removed – are not sufficient reasons to override the right of public access to court records.

Plaintiff’s strongest argument for anonymity is that:

“The Ninth Circuit has held 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.’ Does I through XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067 (9th Cir. 2000). [¶] Here, Plaintiff filed a lawsuit for expungement of seven disclosures on his public record. Any success achieved in the lawsuit would be virtually pointless for purposes of repairing his professional reputation if his name and a discussion of the seven disclosure items in his public record remain fully available in the public court file.” (Opposition, p. 7:16 – p. 8:1.)

There are two basic problems with Plaintiff’s argument. First, there are no “special circumstances” in this case in which Plaintiff Dwyer’s “need for anonymity outweighs prejudice to the opposing party and the public’s interest in knowing the party’s identity.” As this Court stated in its June 30, 2015 Decision, Plaintiff Dwyer has not presented any evidence of damages that warranted expungement of the complaints against him:

“First, as indicated above, there is no evidence that the seven complaints against plaintiff are “meritless.” Second, plaintiff’s argument that a prospective investor “will assume” that Plaintiff Dwyer is inferior to another financial advisor who has no complaints on BrokerCheck is itself an assumption. Lastly, this assumption is belied by the undisputed fact that plaintiff is in the top 0.01% of all financial brokers with over $2.5 billion in assets. Perhaps Plaintiff Dwyer is arguing that, without the complaints on BrokerCheck, he would be in the top 0.001% of all brokers, instead of merely the top 0.01% of all brokers (See Rebuttal, p. 29:17-18). However, once again, plaintiff presents no evidence to support this assumption.” (See June 30, 2015 Decision Following Court Trial, p. 22.)

Thus, after presenting no evidence of harm from the seven complaints he wanted expunged, plaintiff Dwyer now wants the Court to presume harm if potential investors or the general public became aware that Plaintiff Dwyer tried to have these complaints expunged. That is not a “special circumstance” warranting anonymity.

Second, this Court has already denied Plaintiff Dwyer’s request for expungement. In other words, Plaintiff Dwyer has not achieved success in this lawsuit. Thus, Plaintiff’s argument that “[a]ny success achieved in the lawsuit would be virtually pointless” if the caption reflected his real name posits a counter-factual and is belied by the results of this actions. Although plaintiff may wish anonymity, this Court finds that it is in the public’s interest to know that a court of competent jurisdiction – after weighing all the evidence at trial – found against Plaintiff Dwyer.

Defendants’ motion to change the case caption to reflect Plainitff Dwyer’s true name is GRANTED.