Existing law authorizes a court to appoint a guardian ad litem to appear in a proceeding on behalf of a party who is a minor, a person who lacks legal capacity to make decisions, or a person for whom a conservator has been appointed, and establishes procedures for the appointed of a guardian ad litem. Existing law requires the title of the complaint in a civil action to include the names of all parties to the action.

This bill would authorize a court to permit a guardian ad litem to be appointed and appear under a pseudonym if the guardian ad litem establishes facts and circumstances that demonstrate an overriding interest in preserving his or her anonymity. The bill would require the court to make specified findings in granting that permission. If a guardian ad litem is permitted to appear under a pseudonym, the bill would require all court decisions, orders, petitions, and other documents to be written in a manner that protects the name and personal identifying information of the guardian ad litem from public disclosure, except to the extent the information is necessary to permit a party to prosecute, defend, or resolve the action. The bill would give the court discretion to reconsider its decision.

Existing law authorizes a court to appoint a guardian ad litem to appear in a proceeding on behalf of a party who is a minor, a person who lacks legal capacity to make decisions, or a person for whom a conservator has been appointed, and establishes procedures for the appointed of a guardian ad litem. Existing law requires the title of the complaint in a civil action to include the names of all parties to the action.

This bill would authorize a court to permit a guardian ad litem to be appointed and appear under a pseudonym if the guardian ad litem establishes facts and circumstances that demonstrate an overriding interest in preserving his or her anonymity. The bill would require the court to make specified findings in granting that permission. If a guardian ad litem is permitted to appear under a pseudonym, the bill would require all court decisions, orders, petitions, and other documents to be written in a manner that protects the name and personal identifying information of the guardian ad litem from public disclosure, except to the extent the information is necessary to permit a party to prosecute, defend, or resolve the action. The bill would give the court discretion to reconsider its decision.

Existing law authorizes a court to appoint a guardian ad litem to appear in a proceeding on behalf of a party who is a minor, a person who lacks legal capacity to make decisions, or a person for whom a conservator has been appointed, and establishes procedures for the appointed of a guardian ad litem. Existing law requires the title of the complaint in a civil action to include the names of all parties to the action.

This bill would authorize a plaintiff, including a cross-complainant, to use a pseudonym or fictitious name to commence and pursue an action. The bill would also authorize the plaintiff to redact personal identifying information from documents filed with the court, as specified. The bill would authorize a party to the action, within 45 days of service of the summons and complaint, to file and serve a notice of motion to require the plaintiff to request leave of the court to proceed pseudonymously. The bill would then require the plaintiff to show special circumstances demonstrating that the plaintiffs need to proceed pseudonymously outweighs both the publics interest in knowing the plaintiffs identity and any prejudice to any other party in order to proceed pseudonymously. The bill would specify factors to be considered by the court in making its determination. The bill would authorize the court to make that determination on its own motion. The bill would authorize a plaintiff who has been ordered to be identified to either continue to maintain his or her action or to dismiss the action without prejudice. The bill would make an order granting or denying that motion appealable. authorize a court to permit a guardian ad litem to be appointed and appear under a pseudonym if the guardian ad litem establishes facts and circumstances that demonstrate an overriding interest in preserving his or her anonymity. The bill would require the court to make specified findings in granting that permission. If a guardian ad litem is permitted to appear under a pseudonym, the bill would require all court decisions, orders, petitions, and other documents to be written in a manner that protects the name and personal identifying information of the guardian ad litem from public disclosure, except to the extent the information is necessary to permit a party to prosecute, defend, or resolve the action. The bill would give the court discretion to reconsider its decision.

Existing law requires the title of the complaint in a civil action to include the names of all parties to the action.

This bill would authorize a plaintiff, including a cross-complainant, to use a pseudonym or fictitious name to commence and pursue an action. The bill would require the court to issue an order to show cause why the plaintiff should be permitted to use a pseudonym on the motion of a party to the action within 60 days of service of the summons and complaint or cross complaint. The bill would authorize a court to issue that order to show cause on its own motion at any time during the pendency of the action. The bill would also authorize the plaintiff to redact personal identifying information from documents filed with the court, as specified. The bill would authorize a party to the action, within 45 days of service of the summons and complaint, to file and serve a notice of motion to require the plaintiff to request leave of the court to proceed pseudonymously. The bill would then require the plaintiff to show special circumstances demonstrating that the plaintiffs need to proceed pseudonymously outweighs both the publics interest in knowing the plaintiffs identity and any prejudice to any other party to discharge the order to show cause. in order to proceed pseudonymously. The bill would specify factors to be considered by the court in making its determination. The bill would authorize the court to make that determination on its own motion. The bill would authorize a plaintiff who has been ordered to be identified to either continue to maintain his or her action or to dismiss the action without prejudice. The bill would make an order granting or denying that motion appealable.

Existing law requires the title of the complaint in a civil action to include the names of all parties to the action.

This bill would authorize a plaintiff, including a cross-complainant, to use a pseudonym or fictitious name to commence and pursue an action. The bill would require the court to issue an order to show cause why the plaintiff should be permitted to use a pseudonym on the motion of a party to the action within 60 days of service of the summons and complaint or cross complaint. The bill would authorize a court to issue that order to show cause on its own motion at any time during the pendency of the action. The bill would require the plaintiff to show special circumstances demonstrating that the plaintiffs need to proceed pseudonymously outweighs both the publics interest in knowing the plaintiffs identity and any prejudice to any other party to discharge the order to show cause. The bill would specify factors to be considered by the court in making its determination. The bill would authorize a plaintiff who has been ordered to be identified to either continue to maintain his or her action or to dismiss the action without prejudice. The bill would make an order granting or denying that motion appealable.

Existing law requires the title of the complaint in a civil action to include the names of all parties to the action.

This bill would authorize a plaintiff who legitimately fears that revealing his or her true identity would subject him or her to imminent action resulting in either removal from the United States or long-term restraint of his or her freedom plaintiff, including a cross-complainant, to use a pseudonym or fictitious name to commence and pursue an action. The bill would authorize a defendant to file a motion to challenge the use of the fictitious name and prohibiting the plaintiff from using a fictitious name, as specified. require the court to issue an order to show cause why the plaintiff should be permitted to use a pseudonym on the motion of a party to the action within 60 days of service of the summons and complaint or cross complaint. The bill would authorize a court to issue that order to show cause on its own motion at any time during the pendency of the action. The bill would require the plaintiff to show special circumstances demonstrating that the plaintiffs need to proceed pseudonymously outweighs both the publics interest in knowing the plaintiffs identity and any prejudice to any other party to discharge the order to show cause. The bill would specify factors to be considered by the court in making its determination. The bill would authorize a plaintiff who has been ordered to be identified to either continue to maintain his or her action or to dismiss the action without prejudice. The bill would make an order granting or denying that motion appealable.

Existing law authorizes a person who, by reason of his or her failure to comply with an obligation, incurs a forfeiture or a loss, to be relieved from the obligation upon making full compensation to the other party, unless the breach of duty was negligent, willful, or fraudulent, as specified.

This bill would make nonsubstantive changes to that provision.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2185

Author:(Chiu)

As Amended Ver:August 23, 2018

Majority vote

Original Committee Reference: JUD.

SUMMARY: Enacts standards and procedures for permitting a court to appoint a guardian ad litem under a pseudonym. Specifically, this bill:

1. Provides that a party seeking appointment as a guardian ad litem under a pseudonym, at the time the application to be appointed guardian is filed, shall file an ex parte request to proceed under a pseudonym.
2. Provides that the court may permit an appointment of a guardian ad litem appearing under a pseudonym after the court makes each of the following findings:
   1. The party has an overriding interest in preserving anonymity that supports permitting the applicant to appear under a pseudonym;
   2. There is a substantial probability that the applicant's interest in preserving anonymity will be prejudiced if the applicant is not permitted to appear under a pseudonym;
   3. That permitting the appointment of the guardian ad litem using a pseudonym is narrowly tailored to serve the applicant's interest in preserving anonymity without unduly prejudicing the public's right of access or the ability of the other parties to prosecute, defend or resolve the action; and
   4. That no less restrictive means of protecting the applicant's interest in preserving his or her anonymity exists.
3. Enables a court to make any order necessary to carry out the provisions of 2), above.
4. Provides a method for the guardian ad litem to receive any necessary service of process.
5. Provides that if a guardian ad litem is permitted to proceed using a pseudonym, all court decisions, orders, petitions, and documents filed with the court shall be written in a manner that protects the name and personal identifying information of the guardian ad litem.
6. Provides that the responsibility for complying with 5), above, for any document filed with the court rests solely with the parties.
7. Provides the court the ability to reconsider its decision to grant a guardian ad litem permission to proceed using a pseudonym.
8. Provides that nothing in the bill impacts any other rights of a petitioner or plaintiff to proceed with a pseudonym.
9. Defines "personal identifying information" as a guardian ad litem's name, address, and city of residence, in whole or in part.

The Senate amendments limit the applicability of the measure to cases involving the appointment of a guardian ad litem and delete provisions related to other civil matters. Specifically, the amendments:

1. Narrow the scope of the bill to the use of pseudonyms in matters involving the appointment of guardian ad litem.
2. Delete several factors the court may consider when determining the application for the use of a pseudonym including:
   1. Whether identification of the plaintiff poses a risk of retaliatory physical or mental harm to either the party identified or to innocent nonparties;
   2. Whether the plaintiff legitimately fears that revealing his or her identity could subject him or her to imminent actions that could result in his or her removal from the United States; and
   3. The age of a person whose privacy interests are sought to be protected.
3. Revise and recast the provisions to reflect the bill's exclusive applicability to guardian ad litem applicants, including drafting the bill in a different section of the Code of Civil Procedure.

EXISTING LAW:

1. Permits parties to a civil action to plead complaints, demurrers, answers and cross-complaints. (Code of Civil Procedure Section 422.10.)
2. Requires that every pleading in a civil matter shall contain a caption stating the name of the court and county where the action is brought and the title of the action. (Code of Civil Procedure 422.30.)
3. Requires, unless otherwise provided by the Judicial Council, that the title of all civil actions contain the names of all parties. (Code of Civil Procedure 422.40.)
4. Permits the plaintiff in a private cause of action against a party who intentionally distributes a photograph, film, videotape, or recording of the plaintiff engaging in an act of intercourse, oral copulation, sodomy, or other act of sexual penetration to file the action using a pseudonym. (Civil Code Section 1708.85.)
5. Permits the appointment of a guardian ad litem to represent a minor lacking legal competence to make decisions. (Code of Civil Procedure Section 372.)

FISCAL EFFECT: None

COMMENTS: This bill seeks to provide the court a method for evaluating requests from parties seeking to be appointed a guardian ad litem while using a fictitious name by enacting a formal set of criteria for evaluating the use of pseudonyms, and providing California courts with a process for evaluating objections to the use of pseudonyms in specific court proceedings.

A guardian ad litem is a person appointed by the court to investigate and recommend to the court the best course of action for a child as the child's legal representative. While non-parental, attorney guardians are typically associated with child custody matters, a parent can be appointed in certain child custody matters especially those involving immigrant children. In these cases in particular, there may be justification for permitting a guardian to appear using a pseudonym.

As a matter of public policy, because the public has a First Amendment right to access records, the use of pseudonyms in cases should be the exception, not the rule. Code of Civil Procedure Section 367 provides that every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute. California Rules of Court Rule 2.550(c) provides: "Unless confidentiality is required by law, court records are presumed to be open."

However, there is precedent under California law for doing so in certain cases to safeguard the individual's privacy and prevent harassment, including cases involving victims of sexual offenses and in cases where the courts find it necessary to safeguard the individual's privacy and prevent harassment of a health care patient, licensed health practitioner, or employee, client, or customer of a health care facility who is a party or witness in the proceeding. (See Penal Code Sections 293 and 293.5; Civil Code Section 3427.3.) The use of a pseudonym is also authorized in "revenge porn" cases. (Civil Code Section 1708.85(f)(1).)

This bill provides greater clarity for the process associated with adjudicating the use of pseudonyms by adopting a modified version of the strict scrutiny test for limited access to court proceedings provided by the California Supreme Court. (NBC Subsidiary v. Superior Court (1999) 20 Cal. 4th 1178.) Beyond the basic balancing test for applying the use of a pseudonym, this bill ensures that the court itself may serve as a watchdog of public access to the judicial system in the event another party is unwilling, unable, or generally disinterested in challenging an unnecessary use of a pseudonym.

Analysis Prepared by: Nicholas Liedtke / JUD. / (916) 319-2334 FN: 0004869 FN:

 THIRD READING  

Bill No: AB 2185

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 5-2, 7/3/18

AYES: Jackson, Hertzberg, Monning, Stern, Wieckowski

NOES: Moorlach, Anderson

ASSEMBLY FLOOR: 61-6, 5/21/18 - See last page for vote

SUBJECT: Civil actions: appointment of guardian ad litem

SOURCE: Mexican American Legal Defense Fund

DIGEST:

This bill authorizes a court to appoint a guardian ad litem under a pseudonym.

Senate Floor Amendments of 8/23/18 narrow the scope of the bill from application to all civil actions to only the appointment of guardians ad litem under a pseudonym.

ANALYSIS:

Existing law:

1. Provides that every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute. (Code Civ. Proc. Sec. 367.)
2. Provides that unless confidentiality is required by law, court records are presumed to be open. (Rules of Court Rule 2.550(c).)
3. Provides that the court having jurisdiction over a civil proceeding shall take all steps reasonably necessary to safeguard the individual privacy and prevent harassment of a health care patient, licensed health practitioner, or employee, client, or customer of a health care facility who is a party or witness in the proceeding, including granting protective orders. Health care patients, licensed health practitioners, and employees, clients, and customers of the health care facility may use pseudonyms to protect their privacy. (Civ. Code Sec. 3427.3.)
4. Authorizes a plaintiff in a civil proceeding pursuant to the “revenge porn” statutes to use a pseudonym instead of his or her true name and to exclude or redact from all pleadings and documents filed in the action other identifying characteristics of the plaintiff. The court is required to keep the plaintiff’s name and excluded or redacted characteristics confidential. (Civ. Code Sec. 1708.85(f)(1).)
5. Provides that evidence of a person’s immigration status in a civil action shall not be disclosed in open court by a party or the party’s attorney unless the judge presiding over the matter first determines that the evidence is admissible in an in camera hearing requested by the party seeking disclosure of the person’s immigration status, as specified and with certain exceptions. (Evid. Code Sec. 351.3.)
6. Provides that when a minor, a person who lacks legal capacity to make decisions, or a person for whom a conservator has been appointed is a party, that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case. (Code Civ. Proc. Sec. 372.)
7. Provides that a guardian ad litem may be appointed in any case when it is deemed by the court in which the action or proceeding is prosecuted, or by a judge thereof, expedient to appoint a guardian ad litem to represent the minor, person lacking legal capacity to make decisions, or person for whom a conservator has been appointed, notwithstanding that the person may have a guardian or conservator of the estate and may have appeared by the guardian or conservator of the estate. (Code Civ. Proc. Sec. 372.)
8. Provides that the guardian ad litem appearing for any minor, person who lacks legal capacity to make decisions, or person for whom a conservator has been appointed shall have power, with the approval of the court in which the action or proceeding is pending, to compromise the same, to agree to the order or judgment to be entered therein for or against the ward or conservatee, and to satisfy any judgment or order in favor of the ward or conservatee or release or discharge any claim of the ward or conservatee pursuant to that compromise. (Code Civ. Proc. Sec. 372.)

This bill:

1. Authorizes a court to appoint a guardian ad litem under a pseudonym, subject to certain requirements. Any person applying for such an appointment is required to file, at the same time, an ex parte request for leave to appear under a pseudonym. The ex parte request must allege facts and circumstances establishing the guardian ad litem’s overriding interest in preserving their anonymity. The court shall retain discretion to reconsider its decision.
2. Provides that a court must make each of the following findings in order to permit an applicant for appointment as a guardian ad litem to appear under pseudonym:

• That the applicant has an overriding interest in preserving anonymity that supports permitting the applicant to appear under a pseudonym;
• That there is a substantial probability that the applicant’s interest in preserving anonymity will be prejudiced if the applicant is not permitted to appear under a pseudonym;
• That permitting the applicant to appear under a pseudonym is narrowly tailored to serve the applicant’s interest in preserving anonymity without unduly prejudicing the public’s right of access or the ability of the other parties to prosecute, defend, or resolve the action; and
• That there are no less restrictive means of protecting the applicant’s interest in preserving their anonymity.

1. Authorizes a court to make any further orders necessary to preserve the applicant’s anonymity or to allow the other parties or financial institutions to know the applicant’s identity to the extent necessary to prosecute, defend, or resolve the action.
2. Authorizes a court to require a guardian ad litem appearing under a pseudonym and who is not represented by counsel to designate a mailing or electronic address for service of process and to consent to accept service of process under the pseudonym at that address for purposes of the action.
3. Provides that if a guardian ad litem is permitted to appear under a pseudonym, all court decisions, orders, petitions, and any documents filed with the court shall be written in a manner that protects the name and personal identifying information of the guardian ad litem from public disclosure, except to the extent the information is necessary for the parties to prosecute, defend, or resolve the action.
4. Defines “personal identifying information” as the guardian ad litem’s name or any part thereof, their address or any part thereof, and the city or unincorporated area of the guardian ad litem’s residence.
5. Places the responsibility for excluding the name and personal identifying information of the guardian ad litem from documents filed with the court solely on the parties and their attorneys. This section does not require the court to review pleadings or other papers for compliance with this subdivision.
6. Clarifies that it does not affect the right of a plaintiff or petitioner to pursue litigation under a pseudonym in appropriate circumstances.

Background

According to President Obama’s Taskforce on 21st Century Policing, “immigrants often fear approaching police officers when they are victims of and witnesses to crimes and when local police are entangled with federal immigration enforcement. At all levels of government, it is important that laws, policies, and practices not hinder the ability of local law enforcement to build the strong relationships necessary to public safety and community well-being. It is the view of this task force that whenever possible, state and local law enforcement should not be involved in immigration enforcement.” These same principles apply to California’s justice system.

The fair and effective administration of justice requires that all participants in the process feel free and secure to present their case or provide their testimony before the court. For years, however, many undocumented immigrants have been hesitant to take part in the formal legal system for fear that doing so would expose their legal status publicly and result in detention or deportation.

Recent shifts in federal immigration enforcement policies have greatly exacerbated the problem. Whereas, previously, federal immigration officers had focused on detaining serious criminals, the new policies cast a much broader, less discerning net. To make matters worse, in spite of pleas from California’s Chief Justice, Tani Cantil-Sakauye, for them to stop, federal immigration officials have made it clear that they will continue to conduct immigration enforcement actions at California courthouses. As a result, undocumented immigrants are even less likely than ever to participate in the state’s legal system.

California has reacted to this dynamic by imposing restrictions on the use of evidence regarding people’s immigration status. For example, the Legislature passed AB 2159 (Gonzalez, Chapter 132, Statutes of 2016), which prohibits the use of immigration status evidence in personal injury and wrongful death lawsuits. It also passed AB 291 (Chiu, Chapter 489, Statutes of 2017), which provides a set of legal protections for tenants against unscrupulous landlords who might otherwise try to use immigration status as a way of intimidating tenants who have exercised, or who are about to exercise, their housing rights. In addition, the recently-passed AB 1690 (Assembly Committee on the Judiciary, Chapter 160, Statutes of 2017) clarifies and codifies that the protections against inquiry into immigration status that now apply to civil actions to enforce the state’s labor, employment, civil rights and employee housing laws, also extends to disputes regarding consumer protection and to all housing laws. SB 785 (Wiener, Chapter 12, Statutes of 2018) continued this trend by prohibiting the disclosure of a person’s immigration status in open court unless the court finds such evidence admissible in an in camera hearing.

In these ways, California has tried to prevent the introduction of evidence for nefarious or unnecessary purposes where the immigration status of a party makes the disclosure of that information particularly sensitive.

To help all Californians feel more secure participating in the legal system, regardless of their immigration status, this bill builds on the work already done by providing a path for undocumented immigrants, and others with a justifiable need for privacy and confidentiality, to proceed pseudonymously when serving as a guardian ad litem.

Comments

The author states:

Because of the fear of deportation or being detained, many undocumented immigrants are less likely to come forward to report crime or seek aid as victims, and there is also uncertainty for them to proceed with litigation. This bill will help ease some of the uncertainty by protecting their identity with anonymous filings, which would ultimately provide more access to the courts for undocumented immigrants and allow them to seek justice.

One of the purposes of the bill is to ensure undocumented immigrants have access to justice in California, by allowing the use of fictitious names or pseudonyms to be used when filing . . . an application to be appointed as a guardian ad litem. This bill would codify a standard process to use fictitious names and pseudonyms and provide such guidance to the courts.

Protecting the identity of parties when there is a compelling interest

As a matter of public policy, because the public has a First Amendment right to access records, the use of pseudonyms in cases should be the exception, not the rule. Section 367 of the Code of Civil Procedure provides that every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute. California Rules of Court Rule 2.550(c) provides:  “Unless confidentiality is required by law, court records are presumed to be open.”

However, there is precedent under California law for doing so in certain cases to safeguard the individual’s privacy and prevent harassment, including cases involving victims of sexual offenses and in cases where the courts find it necessary to safeguard the individual’s privacy and prevent harassment of a health care patient, licensed health practitioner, or employee, client, or customer of a health care facility who is a party or witness in the proceeding. (See Pen. Code Secs. 293, 293.5; Civ. Code Sec. 3427.3.) The use of a pseudonym is also authorized in “revenge porn” cases. (Civ. Code Sec. 1708.85(f)(1).)

The courts have also addressed the issue:

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. (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531 [former Boy Scouts sued under pseudonyms based on allegations that city police officer sexually assaulted them while they were teenagers]; Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1072 [parents entitled to depose sperm donor with family history of kidney disease, but donor's name protected from disclosure to outsiders through an appropriate order “which maintains the confidentiality of John Doe's identity … .”].) Doe designations may be appropriate even where sealing orders are not. (H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879.)

Federal courts allow parties to use pseudonyms “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 thru XXIII v. Advanced Textile Corp. (9th Cir. 2000) 214 F.3d 1058, 1068.)

(Starbucks Corp. v. Superior Court (2008) 168 Cal.App.4th 1436, 1452, fn. 7.) The Ninth Circuit has also addressed the balancing of interests at play:

We join our sister circuits and 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. . . .

We recognize that the balance between a party's need for anonymity and the interests weighing in favor of open judicial proceedings may change as the litigation progresses. In cases where the plaintiffs have demonstrated a need for anonymity, the district court should use its powers to manage pretrial proceedings, see Fed. R. Civ. P. 16(b), and to issue protective orders limiting disclosure of the party's name, see Fed. R. Civ. P. 26(c), to preserve the party's anonymity to the greatest extent possible without prejudicing the opposing party's ability to litigate the case. It may never be necessary, however, to disclose the anonymous parties' identities to nonparties to the suit.

(Does I thru XXIII v. Advanced Textile Corp. (9th Cir. 2000) 214 F.3d 1058, 1068-1069.)

Given concerns regarding the previous scope of the bill, recent amendments narrow the bill significantly. The bill now allows courts to appoint guardians ad litem under a pseudonym. The bill lays out a series of findings that must first be made by the court and provides for the court to retain discretion to reconsider its decision. These parameters ensure that privacy interests are properly balanced against the public right to access.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 8/24/18)

Mexican American Legal Defense Fund (source)

California Rural Legal Assistance Foundation

Services, Immigrant Rights, and Education Network

OPPOSITION: (Verified 8/24/18)

None received

ASSEMBLY FLOOR: 61-6, 5/21/18

AYES: Acosta, Aguiar-Curry, Arambula, Baker, Berman, Bloom, Bonta, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Frazier, Friedman, Gipson, Gloria, Gonzalez Fletcher, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Lackey, Levine, Limón, Low, Maienschein, McCarty, Medina, Mullin, Muratsuchi, Nazarian, O'Donnell, Quirk, Reyes, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NOES: Travis Allen, Bigelow, Brough, Gallagher, Melendez, Obernolte

NO VOTE RECORDED: Eggman, Flora, Fong, Cristina Garcia, Eduardo Garcia, Gray, Kiley, Mathis, Mayes, Patterson, Quirk-Silva

Prepared by: Christian Kurpiewski / JUD. / (916) 651-4113

8/24/18 16:19:54

**** END ****

 THIRD READING  

Bill No: AB 2185

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 5-2, 7/3/18

AYES: Jackson, Hertzberg, Monning, Stern, Wieckowski

NOES: Moorlach, Anderson

ASSEMBLY FLOOR: 61-6, 5/21/18 - See last page for vote

SUBJECT:

SOURCE: Mexican American Legal Defense Fund

DIGEST:

This bill authorizes a plaintiff to use a pseudonym to commence and pursue a civil action.

ANALYSIS:

Existing law:

1. Provides that every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute. (Code Civ. Proc. Sec. 367.)
2. Provides that unless confidentiality is required by law, court records are presumed to be open. (Rules of Court Rule 2.550(c).)
3. Provides that the court having jurisdiction over a civil proceeding shall take all steps reasonably necessary to safeguard the individual privacy and prevent harassment of a health care patient, licensed health practitioner, or employee, client, or customer of a health care facility who is a party or witness in the proceeding, including granting protective orders. Health care patients, licensed health practitioners, and employees, clients, and customers of the health care facility may use pseudonyms to protect their privacy. (Civ. Code Sec. 3427.3.)
4. Authorizes a plaintiff in a civil proceeding pursuant to the “revenge porn” statutes to use a pseudonym instead of his or her true name and to exclude or redact from all pleadings and documents filed in the action other identifying characteristics of the plaintiff. The court is required to keep the plaintiff’s name and excluded or redacted characteristics confidential. (Civ. Code Sec. 1708.85(f)(1).)
5. Provides that evidence of a person’s immigration status in a civil action shall not be disclosed in open court by a party or the party’s attorney unless the judge presiding over the matter first determines that the evidence is admissible in an in camera hearing requested by the party seeking disclosure of the person’s immigration status, as specified and with certain exceptions. (Evid. Code Sec. 351.3.)

This bill:

1. Authorizes a plaintiff to use a pseudonym or fictitious name to commence an action, subject to certain requirements.
2. Provides that within 45 days of service of the summons and complaint on a party in an action in which the plaintiff has commenced the action using a pseudonym, a party may file and serve a notice of motion to require the plaintiff to request leave of the court to proceed pseudonymously in the action. The plaintiff has the burden to establish a sufficient need to proceed pseudonymously and the court has certain factors it must consider and certain factors it may consider. A court can also require such a showing sua sponte.
3. Provides that if a plaintiff is permitted to proceed in an action pseudonymously, all court decisions, orders, petitions, and other documents, including motions and papers filed by the parties to the action must be written in a manner that protects the name and personal identifying information of the plaintiff from public revelation.

Background

According to President Obama’s Taskforce on 21st Century Policing, “immigrants often fear approaching police officers when they are victims of and witnesses to crimes and when local police are entangled with federal immigration enforcement. At all levels of government, it is important that laws, policies, and practices not hinder the ability of local law enforcement to build the strong relationships necessary to public safety and community well-being. It is the view of this task force that whenever possible, state and local law enforcement should not be involved in immigration enforcement.” These same principles apply to California’s justice system.

The fair and effective administration of justice requires that all participants in the process feel free and secure to present their case or provide their testimony before the court. For years, however, many undocumented immigrants have been hesitant to take part in the formal legal system for fear that doing so would expose their legal status publicly and result in detention or deportation.

Recent shifts in federal immigration enforcement policies have greatly exacerbated the problem. Whereas, previously, federal immigration officers had focused on detaining serious criminals, the new policies cast a much broader, less discerning net. To make matters worse, in spite of pleas from California’s Chief Justice, Tani Cantil-Sakauye, for them to stop, federal immigration officials have made it clear that they will continue to conduct immigration enforcement actions at California courthouses. As a result, undocumented immigrants are even less likely than ever to participate in the state’s legal system.

California has reacted to this dynamic by imposing restrictions on the use of evidence regarding people’s immigration status. For example, the Legislature passed AB 2159 (Gonzalez, Chapter 132, Statutes of 2016), which prohibits the use of immigration status evidence in personal injury and wrongful death lawsuits. It also passed AB 291 (Chiu, Chapter 489, Statutes of 2017), which provides a set of legal protections for tenants against unscrupulous landlords who might otherwise try to use immigration status as a way of intimidating tenants who have exercised, or who are about to exercise, their housing rights. In addition, the recently-passed AB 1690 (Assembly Committee on the Judiciary, Chapter 160, Statutes of 2017) clarifies and codifies that the protections against inquiry into immigration status that now apply to civil actions to enforce the state’s labor, employment, civil rights and employee housing laws, also extends to disputes regarding consumer protection and to all housing laws. SB 785 (Wiener, Chapter 12, Statutes of 2018) continued this trend by prohibiting the disclosure of a person’s immigration status in open court unless the court finds such evidence admissible in an in camera hearing.

In these ways, California has tried to prevent the introduction of evidence for nefarious or unnecessary purposes where the immigration status of a party makes the disclosure of that information particularly sensitive.

To help all Californians feel more secure participating in the legal system, regardless of their immigration status, this bill builds on the work already done by providing a path for undocumented immigrants, and others with a justifiable need for privacy and confidentiality, to proceed pseudonymously in certain civil actions.

Comments

The author states:

Because of the fear of deportation or being detained, many undocumented immigrants are less likely to come forward to report crime or seek aid as victims, and there is also uncertainty for them to proceed with litigation. This bill will help ease some of the uncertainty by protecting their identity with anonymous filings, which would ultimately provide more access to the courts for undocumented immigrants and allow them to seek justice.

This bill would codify the federal standard on fictitious names and pseudonyms and provide such guidance to the courts. Without a uniform or standardized process for individuals to file litigation anonymously, it creates uncertainty for vulnerable groups of people to come forward to seek help or to access the courts and justice system. In addition, this bill would bring uniformity in state law by delineating a process for courts to follow in cases where a fictitious name or a pseudonym is being used and ensure more consistent results in these types of cases across the state.

One of the purposes of the bill is to ensure undocumented immigrants have access to justice in California, by allowing the use of fictitious names or pseudonyms to be used when filing civil litigation or an application to be appointed as a guardian ad litem. We want to ensure that an individual or a group of individuals who fears being retaliated against because of his or her or their collective immigration status does not serve as a barrier or obstacle in filing for a legal remedy that is otherwise available to any other individual. The aim of this bill is to allow an undocumented individual to proceed with the presumption to be able to file under a fictitious name or pseudonym.

Specifically, because many undocumented immigrants have fears of their status being used again them in court proceedings, immigration status will be a factor for courts to consider for whether they can proceed with a pseudonym, which would provide immigrants, especially undocumented immigrants, the opportunity to file anonymously.

Protecting the identity of parties when there is a compelling interest

As a matter of public policy, because the public has a First Amendment right to access records, the use of pseudonyms in cases should be the exception, not the rule. Section 367 of the Code of Civil Procedure provides that every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute. California Rules of Court Rule 2.550(c) provides:  “Unless confidentiality is required by law, court records are presumed to be open.”

However, there is precedent under California law for doing so in certain cases to safeguard the individual’s privacy and prevent harassment, including cases involving victims of sexual offenses and in cases where the courts find it necessary to safeguard the individual’s privacy and prevent harassment of a health care patient, licensed health practitioner, or employee, client, or customer of a health care facility who is a party or witness in the proceeding. (See Pen. Code Secs. 293, 293.5; Civ. Code Sec. 3427.3.) The use of a pseudonym is also authorized in “revenge porn” cases. (Civ. Code Sec. 1708.85(f)(1).)

The courts have also addressed the issue:

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. (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531 [former Boy Scouts sued under pseudonyms based on allegations that city police officer sexually assaulted them while they were teenagers]; Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1072 [parents entitled to depose sperm donor with family history of kidney disease, but donor's name protected from disclosure to outsiders through an appropriate order “which maintains the confidentiality of John Doe's identity … .”].) Doe designations may be appropriate even where sealing orders are not. (H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879.)

Federal courts allow parties to use pseudonyms “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 thru XXIII v. Advanced Textile Corp. (9th Cir. 2000) 214 F.3d 1058, 1068.)

(Starbucks Corp. v. Superior Court (2008) 168 Cal.App.4th 1436, 1452, fn. 7.) The Ninth Circuit has also addressed the balancing of interests at play:

We join our sister circuits and 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. . . .

We recognize that the balance between a party's need for anonymity and the interests weighing in favor of open judicial proceedings may change as the litigation progresses. In cases where the plaintiffs have demonstrated a need for anonymity, the district court should use its powers to manage pretrial proceedings, see Fed. R. Civ. P. 16(b), and to issue protective orders limiting disclosure of the party's name, see Fed. R. Civ. P. 26(c), to preserve the party's anonymity to the greatest extent possible without prejudicing the opposing party's ability to litigate the case. It may never be necessary, however, to disclose the anonymous parties' identities to nonparties to the suit.

(Does I thru XXIII v. Advanced Textile Corp. (9th Cir. 2000) 214 F.3d 1058, 1068-1069.)

Given concerns regarding the scope of the bill, the author has agreed to narrow the bill to only apply to guardians ad litem.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 7/13/18)

Mexican American Legal Defense Fund (source)

California Rural Legal Assistance Foundation

OPPOSITION: (Verified 7/13/18)

California Judges Association

California News Publishers Association

ARGUMENTS IN SUPPORT: The California Rural Legal Assistance Foundation writes in support:

“Many undocumented immigrants are generally hesitant to come forward to seek public services, such as health or shelter services. In addition, undocumented immigrants are also less likely to come forward to report a crime or seek help if they are victims of crimes because of the fear of deportation. Many immigrants may experience hate crimes or they may be victims of labor violations, such as labor trafficking, sexual violence, or harassment. Undocumented immigrants, in particular, are vulnerable to exploitation because the fear of removal or deportation deters immigrants from seeking justice and limits their access to the courts.

Currently, there is nothing in existing law that grants the presumption for plaintiffs to pursue litigation under a fictitious name. While other states have codified some standards for plaintiffs to pursue litigation under pseudonyms, California does not have any standards.”

ARGUMENTS IN OPPOSITION: The California Judges Association writes in opposition:

“AB 2185 applies to all civil proceedings – this would include proceedings in probate court, family law, and elsewhere, in addition to civil and small claims proceedings. In family law, the prospect of a pseudonymous plaintiff raises many procedural questions about how proceedings involving protective orders, dissolution, child custody, and other matters would be conducted. In civil cases, and particularly in probate cases, the names and relationship of the parties or a residence address may be an essential part of the complaint.”

ASSEMBLY FLOOR: 61-6, 5/21/18

AYES: Acosta, Aguiar-Curry, Arambula, Baker, Berman, Bloom, Bonta, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Frazier, Friedman, Gipson, Gloria, Gonzalez Fletcher, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Lackey, Levine, Limón, Low, Maienschein, McCarty, Medina, Mullin, Muratsuchi, Nazarian, O'Donnell, Quirk, Reyes, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NOES: Travis Allen, Bigelow, Brough, Gallagher, Melendez, Obernolte

NO VOTE RECORDED: Eggman, Flora, Fong, Cristina Garcia, Eduardo Garcia, Gray, Kiley, Mathis, Mayes, Patterson, Quirk-Silva

Prepared by:

8/1/18 12:12:02

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 2185 (Author:Chiu)

Version: June 25, 2018

Hearing Date: July 3, 2018

Fiscal: No

Urgency: No

Consultant: CK

SUBJECT

Civil actions: pleadings: party names

DESCRIPTION

This bill would authorize a plaintiff to use a pseudonym to commence and pursue a civil action.

BACKGROUND

According to President Obama’s Taskforce on 21st Century Policing, “immigrants often fear approaching police officers when they are victims of and witnesses to crimes and when local police are entangled with federal immigration enforcement. At all levels of government, it is important that laws, policies, and practices not hinder the ability of local law enforcement to build the strong relationships necessary to public safety and community well-being. It is the view of this task force that whenever possible, state and local law enforcement should not be involved in immigration enforcement.” These same principles apply to California’s justice system.

The fair and effective administration of justice requires that all participants in the process feel free and secure to present their case or provide their testimony before the court. For years, however, many undocumented immigrants have been hesitant to take part in the formal legal system for fear that doing so would expose their legal status publicly and result in detention or deportation.

Recent shifts in federal immigration enforcement policies have greatly exacerbated the problem. Whereas, previously, federal immigration officers had focused on detaining serious criminals, the new policies cast a much broader, less discerning net. To make matters worse, in spite of pleas from California’s Chief Justice, Tani Cantil-Sakauye, for them to stop, federal immigration officials have made it clear that they will continue to conduct immigration enforcement actions at California courthouses. As a result, undocumented immigrants are even less likely than ever to participate in the state’s legal system.

California has reacted to this dynamic by imposing restrictions on the use of evidence regarding people’s immigration status. For example, the Legislature passed AB 2159 (Gonzalez, Ch. 132, Stats. 2016), which prohibits the use of immigration status evidence in personal injury and wrongful death lawsuits. It also passed AB 291 (Chiu, Ch. 489, Stats. 2017), which provides a set of legal protections for tenants against unscrupulous landlords who might otherwise try to use immigration status as a way of intimidating tenants who have exercised, or who are about to exercise, their housing rights. In addition, the recently-passed AB 1690 (Assembly Committee on the Judiciary, Ch. 160, Stats. 2017) clarifies and codifies that the protections against inquiry into immigration status that now apply to civil actions to enforce the state’s labor, employment, civil rights and employee housing laws, also extends to disputes regarding consumer protection and to all housing laws. SB 785 (Wiener, Ch. 12, Stats. 2018) continued this trend by prohibiting the disclosure of a person’s immigration status in open court unless the court finds such evidence admissible in an in camera hearing.

In these ways, California has tried to prevent the introduction of evidence for nefarious or unnecessary purposes where the immigration status of a party makes the disclosure of that information particularly sensitive.

To help all Californians feel more secure participating in the legal system, regardless of their immigration status, this bill would build on the work already done by providing a path for undocumented immigrants, and others with a justifiable need for privacy and confidentiality, to proceed pseudonymously in certain civil actions.

CHANGES TO EXISTING LAW

Existing law provides that every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute. (Code Civ. Proc. Sec. 367.)

Existing rules of court provide that unless confidentiality is required by law, court records are presumed to be open. (Rules of Court Rule 2.550(c).)

Existing law provides that the court having jurisdiction over a civil proceeding shall take all steps reasonably necessary to safeguard the individual privacy and prevent harassment of a health care patient, licensed health practitioner, or employee, client, or customer of a health care facility who is a party or witness in the proceeding, including granting protective orders. Health care patients, licensed health practitioners, and employees, clients, and customers of the health care facility may use pseudonyms to protect their privacy. (Civ. Code Sec. 3427.3.)

Existing law authorizes a plaintiff in a civil proceeding pursuant to the “revenge porn” statutes to use a pseudonym instead of his or her true name and to exclude or redact from all pleadings and documents filed in the action other identifying characteristics of the plaintiff. The court is required to keep the plaintiff’s name and excluded or redacted characteristics confidential. (Civ. Code Sec. 1708.85(f)(1).)

Existing law provides that evidence of a person’s immigration status in a civil action shall not be disclosed in open court by a party or the party’s attorney unless the judge presiding over the matter first determines that the evidence is admissible in an in camera hearing requested by the party seeking disclosure of the person’s immigration status, as specified and with certain exceptions. (Evid. Code Sec. 351.3.)

This bill would authorize a plaintiff to use a pseudonym or fictitious name to commence an action, subject to certain requirements.

This bill would provide that within 45 days of service of the summons and complaint on a party in an action in which the plaintiff has commenced the action using a pseudonym, a party may file and serve a notice of motion to require the plaintiff to request leave of the court to proceed pseudonymously in the action. The plaintiff would have the burden to establish a sufficient need to proceed pseudonymously and the court would be provided certain factors it must and certain factors it could consider. A court could also require such a showing sua sponte.

This bill would provide that if a plaintiff is permitted to proceed in an action pseudonymously, all court decisions, orders, petitions, and other documents, including motions and papers filed by the parties to the action must be written in a manner that protects the name and personal identifying information of the plaintiff from public revelation.

COMMENT

1. Stated need for the bill

According to the author:

Because of the fear of deportation or being detained, many undocumented immigrants are less likely to come forward to report crime or seek aid as victims, and there is also uncertainty for them to proceed with litigation. This bill will help ease some of the uncertainty by protecting their identity with anonymous filings, which would ultimately provide more access to the courts for undocumented immigrants and allow them to seek justice.

This bill would codify the federal standard on fictitious names and pseudonyms and provide such guidance to the courts. Without a uniform or standardized process for individuals to file litigation anonymously, it creates uncertainty for vulnerable groups of people to come forward to seek help or to access the courts and justice system. In addition, this bill would bring uniformity in state law by delineating a process for courts to follow in cases where a fictitious name or a pseudonym is being used and ensure more consistent results in these types of cases across the state.

One of the purposes of the bill is to ensure undocumented immigrants have access to justice in California, by allowing the use of fictitious names or pseudonyms to be used when filing civil litigation or an application to be appointed as a guardian ad litem. We want to ensure that an individual or a group of individuals who fears being retaliated against because of his or her or their collective immigration status does not serve as a barrier or obstacle in filing for a legal remedy that is otherwise available to any other individual. The aim of this bill is to allow an undocumented individual to proceed with the presumption to be able to file under a fictitious name or pseudonym.

Specifically, because many undocumented immigrants have fears of their status being used again them in court proceedings, immigration status will be a factor for courts to consider for whether they can proceed with a pseudonym, which would provide immigrants, especially undocumented immigrants, the opportunity to file anonymously.

The California Rural Legal Assistance Foundation writes in support:

Many undocumented immigrants are generally hesitant to come forward to seek public services, such as health or shelter services. In addition, undocumented immigrants are also less likely to come forward to report a crime or seek help if they are victims of crimes because of the fear of deportation. Many immigrants may experience hate crimes or they may be victims of labor violations, such as labor trafficking, sexual violence, or harassment. Undocumented immigrants, in particular, are vulnerable to exploitation because the fear of removal or deportation deters immigrants from seeking justice and limits their access to the courts.

Currently, there is nothing in existing law that grants the presumption for plaintiffs to pursue litigation under a fictitious name. While other states have codified some standards for plaintiffs to pursue litigation under pseudonyms, California does not have any standards.

2. Protecting the identity of parties when there is a compelling interest

As a matter of public policy, because the public has a First Amendment right to access records, the use of pseudonyms in cases should be the exception, not the rule. Section 367 of the Code of Civil Procedure provides that every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute. California Rules of Court Rule 2.550(c) provides:  “Unless confidentiality is required by law, court records are presumed to be open.”

However, there is precedent under California law for doing so in certain cases to safeguard the individual’s privacy and prevent harassment, including cases involving victims of sexual offenses and in cases where the courts find it necessary to safeguard the individual’s privacy and prevent harassment of a health care patient, licensed health practitioner, or employee, client, or customer of a health care facility who is a party or witness in the proceeding. (See Pen. Code Secs. 293, 293.5; Civ. Code Sec. 3427.3.) The use of a pseudonym is also authorized in “revenge porn” cases. (Civ. Code Sec. 1708.85(f)(1).)

The courts have also addressed the issue:

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. (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531 [former Boy Scouts sued under pseudonyms based on allegations that city police officer sexually assaulted them while they were teenagers]; Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1072 [parents entitled to depose sperm donor with family history of kidney disease, but donor's name protected from disclosure to outsiders through an appropriate order “which maintains the confidentiality of John Doe's identity … .”].) Doe designations may be appropriate even where sealing orders are not. (H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879.)

Federal courts allow parties to use pseudonyms “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 thru XXIII v. Advanced Textile Corp. (9th Cir. 2000) 214 F.3d 1058, 1068.)

(Starbucks Corp. v. Superior Court (2008) 168 Cal.App.4th 1436, 1452, fn. 7.) The Ninth Circuit has also addressed the balancing of interests at play:

We join our sister circuits and 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. . . .

We recognize that the balance between a party's need for anonymity and the interests weighing in favor of open judicial proceedings may change as the litigation progresses. In cases where the plaintiffs have demonstrated a need for anonymity, the district court should use its powers to manage pretrial proceedings, see Fed. R. Civ. P. 16(b), and to issue protective orders limiting disclosure of the party's name, see Fed. R. Civ. P. 26(c), to preserve the party's anonymity to the greatest extent possible without prejudicing the opposing party's ability to litigate the case. It may never be necessary, however, to disclose the anonymous parties' identities to nonparties to the suit.

(Does I thru XXIII v. Advanced Textile Corp. (9th Cir. 2000) 214 F.3d 1058, 1068-1069.)

3. Narrowing the bill to address an identified need

The bill in print would allow plaintiffs in all civil actions to use a pseudonym or fictitious name to commence an action, subject to certain requirements. Another party would be able to move the court to require the plaintiff to make a showing that certain factors support the plaintiff proceeding pseudonymously. If permitted to do so, all court decisions, orders, petitions, and other documents, including motions and papers filed by the parties to the action shall be written in a manner that protects the name and personal identifying information of the plaintiff from public revelation

However, concerns have been raised by certain stakeholders regarding the breadth of the bill and the presumptive nature of the process, along with practical and technical concerns. Given the stakeholders’ concerns regarding the scale and process, the author has committed to significantly narrowing the scope of the bill. The bill moving forward would apply only to cases involving a guardian ad litem, an area of the law that the sponsor of the bill, the Mexican American Legal Defense Fund (MALDEF), has identified as of particular concern. The author states: “We are committed to continuing our work with the stakeholders to narrow the language and process in the bill for guardian ad litem cases.”

As MALDEF has seen in working with many of their clients, undocumented parents who would like to serve as guardian ad litem for their minor children face the fear of disclosure of their immigration status. The Pew Research Center estimates that 12 percent of California’s K–12 students have a least one undocumented parent. In court procedures, individuals are required to file petitions and motions in their true name. This requirement applies to guardian ad litem petitions.

The author makes the case:

Under Section 373 of the Code of Civil Procedure, a guardian ad litem must first be appointed before the court will issue a summons – a summons being required to formally bring defendants into a lawsuit. However, California state courts reject such petitions if a proposed guardian ad litem’s true name is not used, regardless of whether such an individual is undocumented and/or seeking to proceed in the case pseudonymously. As a result, minor (and other) plaintiffs in such cases for which an appointment of an undocumented proposed guardian is sought, may run into procedural obstacles in pursuing litigation, including an inability to get a summons without first having to reveal the proposed undocumented guardian ad litem’s identity.

This issue of protecting a proposed guardian ad litem’s immigration status was one of the reasons that prompted the need for this bill. In order to provide the opportunity for undocumented parents to be appointed as guardian ad litem for their children and to protect their status and identity, this bill will narrow the ability to commence and proceed pseudonymously to these specific cases.

Specifically, the author has committed to amending the bill to allow a guardian ad litem petition to be filed with a pseudonym and allow such guardian ad litem, if the petition is approved by the court, to proceed pseudonymously, including in summons, complaint, and in other legal filings in the underlying action. The court would have the discretion to consider and balance various factors to determine whether a pseudonym is necessary and to determine whether an individual appointed as a guardian ad litem should be permitted to proceed pseudonymously throughout the litigation. The bill would also provide a mechanism wherein another party could challenge the use of a pseudonym by a guardian ad litem. Most of these elements are already included in the bill.

These amendments would narrowly target an identified need. A guardian ad litem is appointed to serve the needs of the minor or dependent party they represent. The court will continue to have full discretion to determine whether a proposed guardian ad litem is suited to serve in that role. While generally the use of a pseudonym by a guardian ad litem should not affect or prejudice in any way another party to the suit, the bill would continue to have a mechanism to make such a case.

Support: California Rural Legal Assistance Foundation

Opposition: California Judges Association; California News Publishers Association

HISTORY

Source: Mexican American Legal Defense Fund

Related Pending Legislation: None Known

Prior Legislation:

SB 785 (Wiener, Ch. 12, Stats. 2018) See Background.

AB 291 (Chiu, Ch. 489, Stats. 2017) See Background.

AB 1690 (Assembly Committee on the Judiciary, Ch. 160, Stats. 2017) See Background.

AB 2159 (Gonzalez, Ch. 132, Stats. 2016) See Background.

Prior Vote:

Assembly Floor (Ayes 61, Noes 6)

Assembly Judiciary Committee (Ayes 8, Noes 2)

**************

ASSEMBLY THIRD READING

ATR Bill Id:AB 2185

Author:(Chiu)

As Amended Ver:May 17, 2018

Majority vote

SUMMARY: Enacts standards and procedures for permitting a party to a civil action to use a pseudonym or fictitious name to commence or maintain a legal action, and provides a means for other parties or the court to challenge the use of the pseudonym or fictitious name. Specifically, this bill:

1. Provides a plaintiff the ability to use a pseudonym or fictitious name while commencing or maintaining a legal action.
2. Provides that upon the motion of any party challenging the use of the pseudonym or fictitious name, that is filed within 60 days of the service of the summons and complaint, the court shall issue the plaintiff using a pseudonym or fictitious name an order to show cause to justify the use of the fictitious name.
3. Provides that the court, at any time and upon its own motion, may issue the plaintiff using a pseudonym or fictitious name an order to show cause to justify the use of the fictitious name.
4. Provides that, in discharging the order to show cause, the plaintiff shall have the burden of showing special circumstances that demonstrate both the need for the pseudonym or fictitious name, and that the need outweighs both the public's interest in knowing the plaintiff's identity and any prejudice to the other party.
5. Requires the court, in determining whether the plaintiff has met their burden to proceed pseudonymously, to consider factors that include but are not limited to the following:
   1. Whether identification of the plaintiff poses a risk of retaliatory physical or mental harm to either the party identified or to innocent nonparties;
   2. Whether the plaintiff legitimately fears that revealing his or her identity could subject him or her to imminent actions that could result in his or her removal from the United States;
   3. The age of a person whose privacy interests are sought to be protected;
   4. If an overriding interest exists to support the plaintiff's use of a pseudonym that outweighs the public's interest in access to the plaintiff's identity. In evaluating the existence of an overriding interest, the court shall consider whether the overriding interest actually supports the plaintiff's use of a pseudonym, the probability of prejudice to the interest if a pseudonym is not permitted, and if a less restrictive means may be used to protect the plaintiff's interest; and
   5. Whether proposed orders permitting the use of a pseudonym are narrowly tailored.
6. Provides that if the court permits the plaintiff to proceed using a pseudonym or fictitious name the court shall issue the appropriate orders to ensure the following:
   1. All parties to the action know the identities of all other parties to the action, including a plaintiff who is proceeding pseudonymously;
   2. All parties to the action maintain the confidentiality of the identity of the plaintiff proceeding pseudonymously; and
   3. All parties to the action are afforded the rights, procedures, and discovery to which they are otherwise entitled.
7. Provides that if the court permits the plaintiff to proceed using a pseudonym or fictitious name any party may move for reconsideration of the issue at any stage of the proceedings if material changes in circumstance warrant reconsideration.
8. Provides that if the court orders the plaintiff using a pseudonym or fictitious name to be identified, the plaintiff may do either of the following:
   1. Continue the cause of action with all pleadings, relevant dockets, or docket entries retroactively amended to reflect the plaintiff's true name; or
   2. Dismiss the action without prejudice.
9. States that an immediate appeal may be taken from an order denying the plaintiff a use of a pseudonym or fictitious name, and that the plaintiff may continue to use the pseudonym or fictitious name until the resolution of the appeal.
10. States that for the purpose of this bill:
    1. Plaintiff shall include cross-complainants; and
    2. Complaint shall include cross-complaints.

EXISTING LAW:

1. Permits parties to a civil action to plead complaints, demurrers, answers and cross-complaints. (Code of Civil Procedure Section (CCP) 422.10.)
2. Requires that every pleading in a civil matter shall contain a caption stating the name of the court and county where the action is brought and the title of the action. (CCP 422.30.)
3. Requires, unless otherwise provided by the Judicial Council, that the title of all civil actions contain the names of all parties. (CCP 422.40.)
4. Permits the plaintiff in a private cause of action against a party who intentionally distributes a photograph, film, videotape, or recording of the plaintiff engaging in an act of intercourse, oral copulation, sodomy, or other act of sexual penetration to file the action using a pseudonym. (Civil Code Section 1708.85.)

FISCAL EFFECT: None

COMMENTS: This bill seeks to provide consistency in the use of pseudonyms in civil litigation by enacting a formal set of criteria for evaluating the use of pseudonyms, and providing California courts with a process for evaluating objections to the use of pseudonyms in court. The author of this measure believes this process will provide comfort to litigants who may avoid trying to vindicate their legal rights out of fear that having their name identified will lead to adverse consequences. In support of this measure, the author notes:

Without a uniform or standardized process for individuals to file litigation anonymously, it creates uncertainty for vulnerable groups of people to come forward to seek help or to access the courts and justice system. In addition, this bill would bring uniformity in state law by delineating a process for courts to follow in cases where a fictitious name or a pseudonym is being used and ensure more consistent results in these types of cases across the state.

One of the purposes of the bill is to ensure undocumented immigrants have access to justice in California, by allowing the use of fictitious names or pseudonyms to be used when filing civil litigation or an application to be appointed as a guardian ad litem. We want to ensure that an individual or a group of individuals who fears being retaliated against because of his or her or their collective immigration status does not serve as a barrier or obstacle in filing for a legal remedy that is otherwise available to any other individual. The aim of this bill is to allow an undocumented individual to proceed with the presumption to be able to file under a fictitious name or pseudonym.

A clear process for protecting privacy and preserving the public's right to observe the judicial system. This bill provides greater clarity for the process associated with adjudicating the use of pseudonyms than federal law or any other state that has codified a version of the balancing test. This bill provides that any party to the litigation may object to the use of the pseudonym within 60 days of being served the summons, or at any time during the litigation if a material change in circumstances occurs. This would permit parties to challenge the pseudonym if a cause of action is dismissed, critical new facts are discovered, or parties are added. Furthermore, in the absence of any objection by another party to the litigation, this bill provides that the court itself may challenge a party's use of a pseudonym. This provision ensures that the court itself may serve as a watchdog of public access to the judicial system in the event a defendant is unwilling, unable, or generally disinterested in challenging an unnecessary use of a pseudonym.

This bill also provides a process for adjudicating appeals of a decision to deny the use of a pseudonym. This bill permits the plaintiff to immediately appeal a denial of the use of the pseudonym, and permits the plaintiff to remain anonymous until the appellate process is complete. Furthermore, should a plaintiff be denied the use of a pseudonym, this bill permits the party to dismiss their case without prejudice, or to proceed using their true identity.

Analysis Prepared by: Nicholas Liedtke / JUD. / (916) 319-2334 FN: 0002966

ASSEMBLY THIRD READING

ATR Bill Id:AB 2185

Author:(Chiu)

As Amended Ver:April 9, 2018

Majority vote

SUMMARY: Enacts standards and procedures for permitting a party to a civil action to use a pseudonym or fictitious name to commence or maintain a legal action, and provides a means for other parties or the court to challenge the use of the pseudonym or fictitious name. Specifically, this bill:

1. Provides a plaintiff the ability to use a pseudonym or fictitious name while commencing or maintaining a legal action.
2. Provides that upon the motion of any party challenging the use of the pseudonym or fictitious name, that is filed within 60 days of the service of the summons and complaint, the court shall issue the plaintiff using a pseudonym or fictitious name an order to show cause to justify the use of the fictitious name.
3. Provides that the court, at any time and upon its own motion, may issue the plaintiff using a pseudonym or fictitious name an order to show cause to justify the use of the fictitious name.
4. Provides that, in discharging the order to show cause, the plaintiff shall have the burden of showing special circumstances that demonstrate both the need for the pseudonym or fictitious name, and that the need outweighs both the public's interest in knowing the plaintiff's identity and any prejudice to the other party.
5. Requires the court, in determining whether the plaintiff has met their burden to proceed pseudonymously, to consider factors that include but are not limited to the following:
   1. Whether the plaintiff's use of a pseudonym is intended to avoid the annoyance and criticism that may attend any litigation or is intended to preserve privacy in a sensitive and highly personal matter;
   2. Whether identification of the plaintiff poses a risk of retaliatory physical or mental harm to either the party requesting identification or to innocent nonparties;
   3. Whether the plaintiff legitimately fears that revealing his or her identity could subject him or her to imminent actions that could result in his or her removal from the United States;
   4. Whether the plaintiff's claims are asserted against a governmental or private party;
   5. The age of a person whose privacy interests are sought to be protected; and
   6. The risk of prejudice to other parties if the plaintiff is allowed to proceed pseudonymously.
6. Provides that if the court permits the plaintiff to proceed using a pseudonym or fictitious name the court shall issue the appropriate orders to ensure the following:
   1. All parties to the action know the identities of all other parties to the action, including a plaintiff who is proceeding pseudonymously;
   2. All parties to the action maintain the confidentiality of the identity of the plaintiff proceeding pseudonymously; and
   3. All parties to the action are afforded the rights, procedures, and discovery to which they are otherwise entitled.
7. Provides that if the court permits the plaintiff to proceed using a pseudonym or fictitious name any party may move for reconsideration of the issue at any stage of the proceedings if material changes in circumstance warrant reconsideration.
8. Provides that if the court orders the plaintiff using a pseudonym or fictitious name to be identified, the plaintiff may do either of the following:
   1. Continue the cause of action with all pleadings, relevant dockets, or docket entries retroactively amended to reflect the plaintiff's true name; or
   2. Dismiss the action without prejudice.
9. States that an immediate appeal may be taken from an order denying the plaintiff a use of a pseudonym or fictitious name, and that the plaintiff may continue to use the pseudonym or fictitious name until the resolution of the appeal.
10. States that for the purpose of this bill:
    1. Plaintiff shall include cross-complainants; and
    2. Complaint shall include cross-complaints.

EXISTING LAW:

1. Permits parties to a civil action to plead complaints, demurrers, answers and cross-complaints. (Code of Civil Procedure Section (CCP) 422.10.)
2. Requires that every pleading in a civil matter shall contain a caption stating the name of the court and county where the action is brought and the title of the action. (CCP 422.30.)
3. Requires, unless otherwise provided by the Judicial Council, that the title of all civil actions contain the names of all parties. (CCP 422.40.)
4. Permits the plaintiff in a private cause of action against a party who intentionally distributes a photograph, film, videotape, or recording of the plaintiff engaging in an act of intercourse, oral copulation, sodomy, or other act of sexual penetration to file the action using a pseudonym. (Civil Code Section 1708.85.)

FISCAL EFFECT: None

COMMENTS: This bill seeks to provide consistency in the use of pseudonyms in civil litigation by enacting a formal set of criteria for evaluating the use of pseudonyms, and providing California courts with a process for evaluating objections to the use of pseudonyms in court. The author of this measure believes this process will provide comfort to litigants who may avoid trying to vindicate their legal rights out of fear that having their name identified will lead to adverse consequences. In support of this measure, the author notes:

Without a uniform or standardized process for individuals to file litigation anonymously, it creates uncertainty for vulnerable groups of people to come forward to seek help or to access the courts and justice system. In addition, this bill would bring uniformity in state law by delineating a process for courts to follow in cases where a fictitious name or a pseudonym is being used and ensure more consistent results in these types of cases across the state.

One of the purposes of the bill is to ensure undocumented immigrants have access to justice in California, by allowing the use of fictitious names or pseudonyms to be used when filing civil litigation or an application to be appointed as a guardian ad litem. We want to ensure that an individual or a group of individuals who fears being retaliated against because of his or her or their collective immigration status does not serve as a barrier or obstacle in filing for a legal remedy that is otherwise available to any other individual. The aim of this bill is to allow an undocumented individual to proceed with the presumption to be able to file under a fictitious name or pseudonym.

A clear process for protecting privacy and preserving the public's right to observe the judicial system. This bill provides greater clarity for the process associated with adjudicating the use of pseudonyms than federal law or any other state that has codified a version of the balancing test. This bill provides that any party to the litigation may object to the use of the pseudonym within 60 days of being served the summons, or at any time during the litigation if a material change in circumstances occurs. This would permit parties to challenge the pseudonym if a cause of action is dismissed, critical new facts are discovered, or parties are added. Furthermore, in the absence of any objection by another party to the litigation, this bill provides that the court itself may challenge a party's use of a pseudonym. This provision ensures that the court itself may serve as a watchdog of public access to the judicial system in the event a defendant is unwilling, unable, or generally disinterested in challenging an unnecessary use of a pseudonym.

This bill bill also provides a process for adjudicating appeals of a decision to deny the use of a pseudonym. This bill permits the plaintiff to immediately appeal a denial of the use of the pseudonym, and permits the plaintiff to remain anonymous until the appellate process is complete. Furthermore, should a plaintiff be denied the use of a pseudonym, this bill permits the party to dismiss their case without prejudice, or to proceed using their true identity.

Analysis Prepared by: Nicholas Liedtke / JUD. / (916) 319-2334 FN: 0002703

Date of Hearing: April 17, 2018

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 2185

Author:(Chiu) – As Amended Ver:April 9, 2018

SUBJECT: Civil actions: pleadings: party names

KEY ISSUE: SHOULD A PLAINTIFF BE PERMITTED TO COMMENCE A CIVIL ACTION USING A FICTITIOUS NAME?

SYNOPSIS

This bill codifies a formal process for permitting and evaluating the use of pseudonyms or fictitious names in California court proceedings. For certain litigants, including but not limited to undocumented immigrants, the formerly incarcerated, and victims of sexual assault, the potential negative consequences from the public disclosure of their identity may dissuade them from seeking the vindication of their legal rights in court, especially if the vindication of those rights involves disclosing facts that may harm the person’s mental state or personal safety. To ensure all Californians can access the justice system without fear, this bill would codify a common law procedure used in several federal appellate courts, including California’s Ninth Circuit Court of Appeals, for permitting parties to use pseudonyms in court filings while enabling the other parties and the court to challenge the illegitimate use of the pseudonym. The process is intended to protect all parties’ legal rights and the public’s interest in knowing the identity of those who interact with the legal system. This approach has been successfully adopted in other states, including Virginia, which has successfully codified the use of pseudonyms in court proceedings for over a decade.

This bill provides, that in the event a pseudonym is challenged, the court is required to balance the plaintiff’s demonstrated need for the use of the pseudonym against the defendant’s rights and the broader public’s right to observe the justice process. In making such an evaluation, the court would be required to weigh several factors designed to properly balance these interests including the plaintiff’s legitimate fear of potential risk of retaliatory physical or mental harm to the plaintiff, the potential that a named person could be subjected to imminent removal from the United States, and the age of the person requesting anonymity. This bill specifically forbids the use of a pseudonym simply to escape the embarrassment or annoyance that may be associated with civil litigation. Finally, this bill provides an appellate process for the denial of the use of a pseudonym.

This bill is sponsored by the Mexican American Legal Defense Fund, and has support from several other legal aid and immigrant rights organizations who argue that in the wake of the United States Immigration and Customs Enforcement who use court information to find and detain undocumented Californians, this bill is necessary to ensure that undocumented Californians can confidently access the justice system without undue fear of detention and deportation. This bill has no opposition on file.

SUMMARY: Enacts standards and procedures for permitting a party to a civil action to use a pseudonym or fictitious name to commence or maintain a legal action, and provides a means for other parties or the court to challenge the use of the pseudonym or fictitious name. Specifically, this bill:

1. Provides a plaintiff the ability to use a pseudonym or fictitious name while commencing or maintaining a legal action.
2. Provides that upon the motion of any party challenging the use of the pseudonym or fictitious name, that is filed within 60 days of the service of the summons and complaint, the court shall issue the plaintiff using a pseudonym or fictitious name an order to show cause to justify the use of the fictitious name.
3. Provides that the court, at any time and upon its own motion, may issue the plaintiff using a pseudonym or fictitious name an order to show cause to justify the use of the fictitious name.
4. Provides that, in discharging the order to show cause, the plaintiff shall have the burden of showing special circumstances that demonstrate both the need for the pseudonym or fictitious name, and that the need outweighs both the public’s interest in knowing the plaintiff’s identity and any prejudice to the other party.
5. Requires the court, in determining whether the plaintiff has met their burden to proceed pseudonymously, to consider factors that include but are not limited to the following:
   1. Whether the plaintiff’s use of a pseudonym is intended to avoid the annoyance and criticism that may attend any litigation or is intended to preserve privacy in a sensitive and highly personal matter;
   2. Whether identification of the plaintiff poses a risk of retaliatory physical or mental harm to either the party requesting identification or to innocent nonparties;
   3. Whether the plaintiff legitimately fears that revealing his or her identity could subject him or her to imminent actions that could result in his or her removal from the United States;
   4. Whether the plaintiff’s claims are asserted against a governmental or private party;
   5. The age of a person whose privacy interests are sought to be protected; and
   6. The risk of prejudice to other parties if the plaintiff is allowed to proceed pseudonymously.
6. Provides that if the court permits the plaintiff to proceed using a pseudonym or fictitious name the court shall issue the appropriate orders to ensure the following:
   1. All parties to the action know the identities of all other parties to the action, including a plaintiff who is proceeding pseudonymously;
   2. All parties to the action maintain the confidentiality of the identity of the plaintiff proceeding pseudonymously; and
   3. All parties to the action are afforded the rights, procedures, and discovery to which they are otherwise entitled.
7. Provides that if the court permits the plaintiff to proceed using a pseudonym or fictitious name any party may move for reconsideration of the issue at any stage of the proceedings if material changes in circumstance warrant reconsideration.
8. Provides that if the court orders the plaintiff using a pseudonym or fictitious name to be identified, the plaintiff may do either of the following:
   1. Continue the cause of action with all pleadings, relevant dockets, or docket entries retroactively amended to reflect the plaintiff’s true name; or
   2. Dismiss the action without prejudice.
9. States that an immediate appeal may be taken from an order denying the plaintiff a use of a pseudonym or fictitious name, and that the plaintiff may continue to use the pseudonym or fictitious name until the resolution of the appeal.
10. States that for the purpose of this bill:
    1. Plaintiff shall include cross-complainants; and
    2. Complaint shall include cross-complaints.

EXISTING LAW:

1. Permits parties to a civil action to plead complaints, demurrers, answers and cross-complaints. (Code of Civil procedure Section 422.10.)
2. Requires that every pleading in a civil matter shall contain a caption stating the name of the court and county where the action is brought and the title of the action. (Code of Civil Procedure Section 422.30.)
3. Requires, unless otherwise provided by the Judicial Council, that the title of all civil actions contain the names of all parties. (Code of Civil Procedure Section 422.40.)
4. Permits the plaintiff in a private cause of action against a party who intentionally distributes a photograph, film, videotape, or recording of the plaintiff engaging in an act of intercourse, oral copulation, sodomy, or other act of sexual penetration to file the action using a pseudonym. (Civil Code Section 1708.85.)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: This bill seeks to provide consistency in the use of pseudonyms in civil litigation by enacting a formal set of criteria for evaluating the use of pseudonyms, and providing California courts with a process for evaluating objections to the use of pseudonyms in court. The author of this measure believes this process will provide comfort to litigants who may avoid trying to vindicate their legal rights out of fear that having their name identified will lead to adverse consequences. In support of this measure, the author notes:

Without a uniform or standardized process for individuals to file litigation anonymously, it creates uncertainty for vulnerable groups of people to come forward to seek help or to access the courts and justice system. In addition, this bill would bring uniformity in state law by delineating a process for courts to follow in cases where a fictitious name or a pseudonym is being used and ensure more consistent results in these types of cases across the state.

One of the purposes of the bill is to ensure undocumented immigrants have access to justice in California, by allowing the use of fictitious names or pseudonyms to be used when filing civil litigation or an application to be appointed as a guardian ad litem. We want to ensure that an individual or a group of individuals who fears being retaliated against because of his or her or their collective immigration status does not serve as a barrier or obstacle in filing for a legal remedy that is otherwise available to any other individual. The aim of this bill is to allow an undocumented individual to proceed with the presumption to be able to file under a fictitious name or pseudonym.

Use of pseudonyms in court filings may assist vulnerable populations. California courts have long permitted the use of pseudonyms in legal filings, and California’s statutes formally recognize the use of pseudonyms in legal filings in certain cases. Most recently, the Legislature permitted anonymous legal filings in cases involving revenge porn when it enacted AB 2643 in 2014, which created a broader cause of action for revenge porn. (Wieckowski, Chap. 895, Stats. 2014.) In approving that measure by an unanimous vote, this Committee recognized the need to protect victims of revenge porn from further, unwanted disclosure of highly sensitive information.

In addition to statutorily required anonymity, California courts have broadly, albeit inconsistently, permitted the use of pseudonyms in legal filings. The court permitted the use of pseudonyms by former drug users, for example, who were seeking to invalidate an employment application about former drug use (Starbucks Corp. v. Superior Court, 194 Cal. App. 4th 820, 123 (2011)); HIV positive litigants whose status was critical to the case (John B. v. Superior Court, 137 P.3d 153 (2006)); and victims of sexual assault (M.P. v. City of Sacramento, 98 Cal.Rptr.3d 812 (2009)). In all of these cases, the court recognized the potential physical or mental harm to a party or the potentially significant detrimental impact to the parties of being identified in public by name.

This bill will ensure that any litigant who needs to use a pseudonym has the opportunity to apply to do so. As the author notes, this bill is designed to aide undocumented immigrant populations and ensure that they can access the legal system. Beyond immigrants, this bill may also alleviate burdens to adjudicating legal rights for victims of sexual assault, formerly incarcerated persons, and members of communities that have historically faced discrimination who may face harm from the public disclosure of their identity. To ensure that the rights of the defendant and the transparency of the judiciary are preserved, this bill places the burden of justifying the use of the pseudonym on the plaintiff. In the event the use of the pseudonym is challenged, the plaintiff must provide specific evidence to show cause as to why they should be permitted to continue litigating the matter anonymously.

Evaluating the legality of using pseudonyms in civil litigation. The use of pseudonyms in civil court cases, even if valid privacy reasons dictate their use, is a restriction on the public’s right to access judicial proceedings. Nonetheless, most states, including California, do not provide clear rules regarding the use of pseudonyms in legal filings. At the federal level, the permissibility of the use of pseudonyms is equally unclear. The Federal Rules of Civil Procedure require the title of all lawsuits to “name all the parties” (Fed. R. Civ. P. 10(a)), but the use of pseudonyms has long been permitted by the United States Supreme Court. (See, e.g., Roe v. Wade, 410 U.S. 113 (1973).) Legal scholars, and to a lesser extent the courts, have debated what standard level of scrutiny to apply to the use of pseudonyms.

The Supreme Court has held that the public possesses a First Amendment right to access court records and proceedings, holding that public access can only be denied in the presence of, “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve those values.” (Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9 (1986).) Nonetheless, the Supreme Court has also held that absent a near complete closure of court proceedings, the public’s right to access judicial proceedings is judged via a common law standard whereby the, “decision whether to permit access is best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.” (Nixon v. Time Warner Communications, Inc., 435 U.S. 589, 598-99 (1978).)

Because the use of pseudonyms does not preclude members of the public, including the news media, from physically entering a courtroom and observing proceedings, federal courts have, generally, applied the common law standard to the use of pseudonyms. In an attempt to provide clarity on the matter, several federal Circuit Courts of Appeals have adopted a balancing test to evaluate the merits of the use of pseudonyms. Most federal courts weigh the risk of retaliatory physical or mental harm to the parties, the parties’ right to privacy in sensitive or highly personal matters, and the potential that a party must admit to involvement in illegal conduct, against the potential prejudice to the opposing party and the public’s right to know. (James v. Jacobson, 6F.3d 233 (4th Cir. 1993).) The Ninth Circuit subsequently adopted a similar framework, applying it to all federal cases in California. (Does I Thru XXIII v. Advanced Textile Corporation, 214 F.3d 1058 (9th Cir. 2000).)

California courts have not directly dealt with the legality of the use of pseudonyms, although several rulings have touched on the issue. The California Supreme Court rejected an action for improper disclosure of private facts when a party improperly disclosed the other true name of a party using a pseudonym when the other party originally filed under their actual name. (Taus v. Loftus, 40 Cal. 4^th 683 (2007).) However, California Courts have upheld the continued use of pseudonyms in court papers even though the parties agreed to use pseudonyms only after filing the initial litigation. (Doe v. Brown, 99 Cal. Rptr. 3d 209 (2009).) In making any decision regarding the appropriateness of the use of pseudonyms in court proceedings, the courts must weigh the merits of the case in conjunction with the right to privacy enshrined in the California Constitution.

By adopting a balancing test, this bill provides better guidance to California courts regarding the use of pseudonyms. This bill is similar to legislation enacted in Virginia to codify, and modify, the federal balancing test for the use of pseudonyms in civil litigation. By adopting the common law balancing test, California courts will apply similar rules to the use of pseudonyms in state court that are applied in federal litigation in California.

This bill seeks to permit the use of a pseudonym only when a plaintiff can provide sufficient evidence of a risk of physical or mental harm to themselves or innocent nonparties, a risk that they could be subject to removal from the United States, or other forms of retaliation. The bill requires the court to determine if the plaintiff is simply seeking to avoid embarrassment or inconvenience. Furthermore, in balancing all factors, the court must weigh the privacy interest involved against the public’s interest in knowing the plaintiff’s identity and any prejudice to any other party. Such a balancing test may consider the plaintiff’s age and degree of sensitivity of the issue in question as relevant factors for consideration.

To ensure proper public access to court proceedings, California courts can look to the precedents set in the Virginia court’s application of the balancing test. In Virginia, the courts generally favor disclosure of a party’s name, requiring the party seeking to maintain a pseudonym to show specific evidence of special circumstances to that meet one of the factors in the test. The Virginia courts have held that, even in a case of sexual assault, without providing evidence of the potential for future harm, the use of a pseudonym is impermissible. (Doe v. Briscoe, 61 Va. Cir. 96 (2006).) However, the courts have held that providing expert testimony regarding potential mental distress, even if speculative, is sufficient. (Id.). The Virginia courts have also provided that corporations cannot seek anonymity for fear of economic harm (America Online v. Anonymous Publicly Traded Company, 542 S.E.2d 377 (2001).), and that preventing disclosure of otherwise confidential driving records is not grounds for anonymity (Doe v. Commonwealth, 85 Va. Cir, 419 (2012).).

This bill proposes utilizing the balancing test and adding in factors of relevance to California. In order to protect California’s sizable immigrant population the bill provides that the court should also consider legitimate fears that public disclosure of a party’s name would result in imminent action to remove the person from the country. In light of reports that federal immigration officials have detained immigrants at California courts, this addition appears to be reasonable.

A clear process for protecting privacy and preserving the public’s right to observe the judicial system. This bill provides greater clarity for the process associated with adjudicating the use of pseudonyms than federal law or any other state that has codified a version of the balancing test. The bill provides that any party to the litigation may object to the use of the pseudonym within 60 days of being served the summons, or at any time during the litigation if a material change in circumstances occurs. This would permit parties to challenge the pseudonym if a cause of action is dismissed, critical new facts are discovered, or parties are added. Furthermore, in the absence of any objection by another party to the litigation, the bill provides that the court itself may challenge a party’s use of a pseudonym. This provision ensures that the court itself may serve as a watchdog of public access to the judicial system in the event a defendant is unwilling, unable, or generally disinterested in challenging an unnecessary use of a pseudonym.

The bill also provides a process for adjudicating appeals of a decision to deny the use of a pseudonym. The bill permits the plaintiff to immediately appeal a denial of the use of the pseudonym, and permits the plaintiff to remain anonymous until the appellate process is complete. Furthermore, should a plaintiff be denied the use of a pseudonym, the bill permits the party to dismiss their case without prejudice, or to proceed using their true identity.

ARGUMENTS IN SUPPORT: In support of this measure, the bill’s sponsor, the Mexican American Legal Defense Fund (MALDEF) argues:

In recent executive actions, the new Federal Administration has signaled that all immigrants here without permission are now enforcement priorities. California has already seen a jump in immigration enforcement and this administration has now begun enforcement of immigration at courthouses. Undocumented immigrants, in particular, are vulnerable to exploitation because the fear of removal or deportation deters immigrants from seeking justice and limits their access to the courts.

There is nothing in existing law that grants the presumption for plaintiffs to pursue litigation under a fictitious name. While other states have codified some standards for plaintiffs to pursue litigation under pseudonyms, California does not have any standards. This bill will clarify requirements for an individual to pursue litigation under a pseudonym. Moreover, it will provide protections for immigrants and allow individuals, regardless of status, to pursue litigation and access the courts.

REGISTERED SUPPORT / OPPOSITION:

Support

Mexican American Legal Defense Fund (sponsor)

California Rural Legal Assistance Foundation

Services, Immigrant Rights, and Education Network (SIREN)

Opposition

None on file

Analysis Prepared by: Nicholas Liedtke / JUD. / (916) 319-2334