2018-00232952-CU-OR

John Doe vs. Louis Cuellar

Nature of Proceeding: Motion to Strike

Filed By: Brown, Melissa

Defendant Luis Cuellar’s motion to strike Plaintiff John Doe’s complaint is ruled upon as follows.

This is an action for nuisance, trespass, negligence, negligence per se, negligent infliction of emotional distress, and intentional infliction of emotional distress.

Plaintiff alleges that Defendant and others own a certain property that has become a blighted nuisance which is used for the sale of illegal drugs, prostitution and public sex acts, and has become a haven for homeless people. Plaintiff also alleges that there has been an increase in burglary and theft.

Plaintiff brings the complaint using the pseudonym “John Doe” because he wishes to maintain his privacy and has a fear for his safety. Plaintiff alleges that he lives in close proximity to the defendants and the property.

Defendant moves to strike the complaint based on Plaintiff’s John Doe status. CCP §422.40 provides “In the complaint, the title of the action shall include the names of all the parties; but, except as otherwise provided by statute or rule of the Judicial Council, in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties.” According to Defendant, California law and Rules of Court only allow pseudonyms in certain circumstances, which do not exist here:

· CRC 8.401 requires the use of pseudonyms in cases involving juveniles.

· Civil Code 1708.85 (f)(1) allows a plaintiff in a civil proceeding to use a pseudonym when bringing an action against a person who intentionally distributes intimate or sexual imagery of the person where there was a reasonable expectation the material would remain private.

· Civil Code § 3427.3 permits health care patients and staff to file complaints

using a pseudonym.

· Health & Safety Code § 120291 requires the prosecuting attorney or grand jury to use a pseudonym when a lawsuit involves a victim who was deliberately infected with HIV.

· Penal Code §293.5 permits certain criminal victims to request that their identity be either Jane or John Doe (most often in the case of rape or sexual abuse, human trafficking, child sexual assault and molestation, and hate crimes).

The Court agrees with Defendant.

Plaintiff relies on Doe v. City of Los Angeles (2007) 42 Cal.4th 531 for the proposition that “the judicial use of ‘Doe Plaintiffs’ to protect legitimate privacy rights has gained wide currency, particularly given the rapidity and ubiquity of disclosures over the World Wide Web. (Opposition, 3:4-6.) The case does not assist Plaintiff since the plaintiffs in Doe were victims of sexual abuse by a police officer when they were children. Therefore, Penal Code §293.5 allowed the use of a pseudonym. Nor does Cherrigan v. San Francisco (1968) 262 Cal.App.2d 643 support Plaintiff’s position since it concerned whether a surviving spouse in a wrongful death action could use her surname in the action, and did not concern the use of a pseudonym.

Given the above, the Court agrees with Defendant that Plaintiff’s use of a pseudonym is improper. The motion to strike is GRANTED with leave to amend.

Where leave to amend is granted, Plaintiff may file and serve a first amended complaint (“FAC”) by no later than January 28, 2019, Response to be filed and served within 30 days thereafter, 35 days if the FAC is served by mail. (Although not required by any statute or rule of court, Plaintiff is requested to attach a copy of the instant minute order to the FAC to facilitate the filing of the pleading.)

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.