Doe v. Superior Court of Los Angeles County

Filed 9/29/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
JOHN DOE, B271508
Petitioner, (Los Angeles County
Super. Ct. No. BC607529)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
POULET NIKOLAY,
Real Party in Interest.
ORIGINAL PROCEEDING; petition for writ of mandate. William F. Fahey,
Judge. Petition granted.
The Ryan Law Firm, Kelly F. Ryan and Nathaniel P. Loakes for Petitioner.
No appearance for Respondent.
No appearance for Real Party in Interest.
___________________________
Petitioner John Doe seeks a writ of mandate vacating an order of the superior court
directing that all future proceedings in the underlying action, brought pursuant to Civil
Code section 1708.85,1 be filed with his true name. We grant the petition, vacate the
superior court’s April 8, 2016 order compelling the parties to file all future documents
utilizing Doe’s true name, and direct the superior court to treat Confidential Information
Form MC-125 as confidential and not available for public inspection.
BACKGROUND
Section 1708.85, which became effective on July 1, 2015, provides for a private
cause of action “against a person who intentionally distributes by any means a
photograph, film, videotape, recording, or any other reproduction of another, without the
other’s consent, if (1) the person knew that the other person had a reasonable expectation
that the material would remain private, (2) the distributed material exposes an intimate
body part of the other person, or shows the other person engaging in an act of intercourse,
oral copulation, sodomy, or other act of sexual penetration, and (3) the other person
suffers general or special damages as described in Section 48a.” (§ 1708.85, subd. (a).)
On January 20, 2016, Doe filed a complaint against Nikolay, alleging that Nikolay
violated section 1708.85 by distributing, and threatening to distribute to Doe’s employer,
electronic and/or physical copies of photographs, film, videotape, recordings, depicting
Doe’s exposed intimate body parts or showing Doe engaging in an act of intercourse, oral
copulation, sodomy, or other act of sexual penetration. The complaint was filed utilizing
the pseudonym John Doe.
Section 1708.85, subdivision (f), permits a party to file such an action under a
pseudonym. As required by section 1708.85, subdivision (f)(1), Doe filed and served a
confidential information form, Judicial Council Confidential Information Form MC-125,
which included Doe’s true name and informed the court that he would be using a
pseudonym throughout the course of the action. The statute requires that the “court shall
keep the plaintiff’s name and excluded or redacted characteristics confidential.” (§
1
Future references are to the Civil Code unless otherwise specified.
2
1708.85, subd. (f)(1).) The Confidential Information Form MC-125 included Doe’s true
name in the body of the form.
The superior court, at some point after Doe filed the MC-125 form, posted the
form on its Web site, consequently making the confidential information available to the
public during the time that it was posted.
The petition alleges that during a status conference on April 8, 2016, the superior
court inquired of both parties as to whether they were in compliance with section 1708.85
and California Rules of Court, rule 2.551, relating to records filed under seal. Doe and
Nikolay responded to the superior court that they were in compliance with section
1708.85 and California Rules of Court, rule 2.551, and directed the court’s attention to
the Confidential Information Form MC-125 filed by Doe. The superior court requested
that the court clerk determine whether the form was posted on the court’s Web site.
Upon the clerk’s confirmation that it was posted, the superior court ordered that “all
future pleadings are to be filed with the true name of the parties.”
This petition followed on April 13, 2016. We issued a temporary stay of the
superior court’s order and ordered that pending resolution of this petition, documents and
information posted on the superior court’s Web site should refer to petitioner only as
John Doe. We issued an alternative writ on May 19, 2016, and invited briefing. Neither
respondent court nor Nikolay filed an opposition to the petition or a return to our order to
show cause.
Doe seeks a writ of mandate ordering respondent court to vacate the April 8, 2016
order requiring disclosure of his true name in all future pleadings.
DISCUSSION
Section 1708.85, which became effective on July 1, 2015, provides that a “private
cause of action lies against a person who intentionally distributes by any means a
photograph, film, videotape, recording, or any other reproduction of another, without the
other’s consent, if (1) the person knew that the other person had a reasonable expectation
that the material would remain private, (2) the distributed material exposes an intimate
body part of the other person, or shows the other person engaging in an act of intercourse,
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oral copulation, sodomy, or other act of sexual penetration, and (3) the other person
suffers general or special damages . . . .” (§ 1708.85, subd. (a).)
Section 1708.85, subdivision (f)(1) specifically authorizes a plaintiff in such a
civil proceeding to “proceed using a pseudonym, either John Doe, Jane Doe, or Doe, for
the true name of the plaintiff and may exclude or redact from all pleadings and
documents filed in the action other identifying characteristics of the plaintiff. A plaintiff .
. . shall file with the court and serve upon the defendant a confidential information form
for this purpose that includes the plaintiff’s name and other identifying characteristics
excluded or redacted. The court shall keep the plaintiff’s name and excluded or redacted
characteristics confidential.” (§ 1708.85, subd. (f)(1).)
Confidential Information Form MC-125 is marked “confidential” a total of four
times. The form is marked “Confidential” at the top and bottom; in a text block there is a
notice that the form is a “Confidential Information Form under Civil Code Section
1708.85;” and the form specifically directs “TO COURT CLERK: THIS FORM IS
CONFIDENTIAL.” (Judicial Council Form, form MC-125.)
Code of Civil Procedure section 367 requires that “[e]very action must be
prosecuted in the name of the real party in interest, except as otherwise provided by
statute.” (Code Civ. Proc., § 367.) Here, the California Legislature has expressly
provided for such an exception. This is not unique, and California courts have affirmed
the ability to proceed as a pseudonymous plaintiff under circumstances in which privacy
rights are implicated. “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.” (Starbucks Corp. v. Superior Court (2008) 168
Cal. App. 4th 1436, 1452, fn. 7.) Section 1708.85 holds the court responsible for
“keep[ing] the plaintiff’s name and excluded or redacted characteristics confidential.” (§
1708.85, subd. (f)(1).) A “confidential” record is required to be closed to inspection by
the public or a party. (Cal. Rules of Court, rule 2.254 [“electronically filed document is a
public document at the time it is filed unless it is . . . made confidential by law”]; rule
8.45.)
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The superior court, after receiving Confidential Information Form MC-125 from
Doe, stated that because the form was posted online to the court’s publicly accessible
Web site, it obviated the need to refer to Doe by the pseudonym, and ordered the parties
to thereafter refer to Doe by his real name. This, however, is not a circumstance in which
a party waived a right to keep information confidential or sealed by inadvertently
disclosing it. (See, e.g., Evid. Code, § 912.) The superior court, rather than a party,
caused the temporary disclosure of Doe’s confidential information by mistakenly posting
it on the court’s Web site. Further, the superior court’s April 8 order would compound
the harm to Doe by taking the erroneous disclosure of the Confidential Information Form
MC-125, in which some confidential information appears solely in the body of the
document, and using the court’s mistaken disclosure to justify an order that all future
filings, including documents that will result in Doe’s name becoming searchable online,
include Doe’s true name. This would defeat the objective of the Legislature in adopting
section 1708.85.
Accordingly, we grant the petition and order respondent court to vacate its April 8,
2016 minute order. Respondent court is ordered to treat information filed on Confidential
Information Form MC-125 as confidential.
DISPOSITION
The petition is granted. The superior court’s April 8, 2016 minute order is
vacated. Respondent court is directed to comply with section 1708.85, subdivision (f)(1)
to keep Doe’s name and excluded or redacted characteristics confidential, as provided on
Confidential Information Form MC-125. The parties are to bear their own costs on
appeal.
CERTIFIED FOR PUBLICATION
CHANEY, J.
WE CONCUR:
ROTHSCHILD, P. J.
LUI, J.
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