1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOHN ROE JB 65, Case No.: 24-cv-02349-AJB-MSB

12 Plaintiff,

ORDER GRANTING IN PART AND

13 v. DENYING IN PART DEFENDANTS’

MOTION TO DISMISS

14 THE CHURCH OF JESUS CHRIST OF

LATTER-DAY SAINTS, et al., 15 (Doc. No. 15) Defendants. 16 17 18 Before the Court is a motion to dismiss filed by Defendant The Church of Latter- 19 day Saints (the “Church”) and Temple Corporation of The Church of Jesus Christ of Latter- 20 day Saints (“Temple Corporation”) (collectively, “Defendants”). (Doc. No. 15.) Plaintiff 21 John Roe JB 65 (“Plaintiff”) filed an opposition (Doc. No. 18), to which Defendants replied 22 (Doc. No. 23). Pursuant to Civil Local Rule 7.1.d.1, the Court finds the matter suitable for 23 determination on the papers. For the reasons set forth below, the Court GRANTS in part 24 and DENIES in part the instant motion to dismiss. 25 I. BACKGROUND 26 On August 26, 2024, Plaintiff filed a complaint in San Diego County Superior Court, 27 alleging he was sexually assaulted as a 14 year old in 1978 by a bishop, Defendant Doe 4, 28 affiliated with the Church. (Doc. No. 8-3, Complaint (“Compl.”).) Plaintiff asserts seven 1 claims against Defendants: (1) negligence; (2) negligent supervision of a minor; (3) sexual 2 abuse of a minor; (4) negligent hiring, supervision, and retention of an unfit employee; (5) 3 negligent failure to warn, train, or educate plaintiff; (6) breach of mandatory duty to report 4 suspected child abuse; and (7) intentional infliction of emotional distress. (See generally 5 Compl.) Unlike the other six causes of action which are asserted against all Defendants, 6 the seventh is solely asserted against Doe 4 and the fictious Does 5–100. (Id. ¶¶ 100–04.) 7 Plaintiff’s prayer for relief requests “an award of special (economic) and general (non- 8 economic) damages,” attorney’s fees, costs, and any further relief deemed just and proper. 9 (Id. at 23.) 10 On November 25, 2024, Plaintiff filed an ex parte application for an order to serve 11 the doe defendants1 pursuant to California Code of Civil Procedure § 340.1 and lodged the 12 corresponding certificates of merit. Pl.’s Ex Parte Appl. & Supp. Docs., Roe JB 65 v. Doe 13 1 et al., No. 24CU008107C (Cal. Super Ct. Nov. 25, 2024), Doc. No. 15. On December 5, 14 2024, the superior court held a hearing on Plaintiff’s ex parte application, where at counsel 15 for both parties appeared. Min. Order re Ex Parte Hr’g, Roe JB 65, No. 24CU008107C 16 (Dec. 5, 2024), Doc. No. 20. Based on Plaintiff’s application, the declaration of Plaintiff 17 Counsel, and the lodged certificates of merit, the superior court then granted the 18 application, permitted Plaintiff serve the summons and complaint on each doe defendant, 19 and ordered the certificates of merit to be sealed by the court and kept out of the public 20 court file. Order re Pl.’s Ex Parte Appl., Roe JB 65, No. 24CU008107C (Dec. 5, 2024), 21 Doc. No. 19; see also Min. Order re Ex Parte Hr’g, Roe JB 65, No. 24CU008107C (Dec. 22 5, 2024), Doc. No. 20. Immediately following the superior court’s ruling, the certificates 23 of merit were sealed. Notice of Sealed Docs., Roe JB 65, No. 24CU008107C (Dec. 5, 24 2024), Doc. No. 21. 25

26 1 Initially, all defendants were pled as Does, as required by statute. (See generally Compl.) However, 27 upon unopposed motion filed by Does 1–3 (Doc. No. 39), the Court permitted the Church (Doe 1), Temple Corporation (Doe 2), and the San Diego California South Stake (Doe 3) to waive anonymity and proceed 28 1 On December 16, 2024, the Church removed the action from superior court to this 2 Court. (Doc. Nos. 1; 8.) Five days later, Defendants filed the instant motion to dismiss. 3 (Doc. No. 15.) 4 II. LEGAL STANDARDS 5 A. Federal Rule 12(b)(6) Motion to Dismiss Standard 6 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to 7 state a claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” 8 Conservation Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro 9 v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). Dismissal is proper “where there is no 10 cognizable legal theory or an absence of sufficient facts alleged to support a cognizable 11 legal theory.” L.A. Lakers, Inc. v. Fed. Ins. Co., 869 F.3d 795, 800 (9th Cir. 2017) (quoting 12 Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010)). “To 13 survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted 14 as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 15 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also 16 L.A. Lakers, Inc., 869 F.3d at 800 (“In conducting this review, we accept the factual 17 allegations of the complaint as true and construe them in the light most favorable to the 18 plaintiff.”). 19 B. California Certificates of Merit Requirements2 20 To pursue a claim under California Code of Civil Procedure § 340.1, “[e]very 21 plaintiff 40 years of age or older at the time the action is filed shall file certificates of merit 22 as specified in subdivision (g).” Cal. Civ. Proc. Code § 340.1(f). The subsequent provisions 23 set forth the certificates’ required contents in detail: 24 /// 25 /// 26 27 2 For any claim “in which the childhood sexual assault occurred on or before December 31, 2024 may only be commenced pursuant to the applicable statute of limitations set forth in existing law as it read 28 1 Certificates of merit shall be executed by the attorney for the plaintiff and by a licensed mental health practitioner selected by the plaintiff declaring, 2 respectively, as follows, setting forth the facts which support the declaration: 3 (1) That the attorney has reviewed the facts of the case, consulted with 4 at least one mental health practitioner who the attorney reasonably 5 believes is knowledgeable of the relevant facts and issues involved in the particular action, and concluded on the basis of that review and 6 consultation that there is reasonable and meritorious cause for the filing 7 of the action. 8 (2) That the mental health practitioner consulted is licensed to practice and practices in this state and is not a party to the action, that the 9 practitioner is not treating and has not treated the plaintiff, and that the 10 practitioner has interviewed the plaintiff and is knowledgeable of the relevant facts and issues involved in the particular action, and has 11 concluded, on the basis of the practitioner’s knowledge of the facts and 12 issues, that in the practitioner’s professional opinion there is a reasonable basis to believe that the plaintiff had been subject to 13 childhood sexual abuse. 14 (3) That the attorney was unable to obtain the consultation required by 15 paragraph (1) because a statute of limitations would impair the action 16 and that the certificates required by paragraphs (1) and (2) could not be obtained before the impairment of the action. If a certificate is executed 17 pursuant to this paragraph, the certificates required by paragraphs (1) 18 and (2) shall be filed within 60 days after filing the complaint. 19 Cal. Civ. Proc. Code § 340.1(g). A separate certificate of merit is required for each named 20 defendant. Cal. Civ. Proc. Code § 340.1(h). The court will “review[] the certificates of 21 merit filed pursuant to subdivision (g)” in camera. Cal. Civ. Proc. Code § 340.1(i). If the 22 court finds, “in camera, based solely on those certificates of merit, that there is reasonable 23 and meritorious cause for the filing of the action against that defendant,” then “the duty to 24 serve that defendant with process shall attach.” Id. Failure to file certificates in accordance 25 with these provisions is grounds for a demurrer or a motion to strike. Cal. Civ. Proc. Code 26 § 340.1(k). 27 Beyond a court’s in camera review prior to ordering service, verification of a 28 plaintiff’s compliance with the certificate of merit requirements occurs only “[u]pon the 1 favorable conclusion of the litigation with respect to any defendant for whom a certificate 2 of merit was filed or for whom a certificate of merit should have been filed pursuant to this 3 section[.]” Cal. Civ. Proc. Code § 340.1(p). Only at that point, 4 the court may, upon the motion of a party or upon the court’s own motion, 5 verify compliance with this section by requiring the attorney for the plaintiff who was required by subdivision (g) to execute the certificate to reveal the 6 name, address, and telephone number of the person or persons consulted with 7 pursuant to subdivision (g) that were relied upon by the attorney in preparation of the certificate of merit. The name, address, and telephone number shall be 8 disclosed to the trial judge in camera and in the absence of the moving party. 9 If the court finds there has been a failure to comply with this section, the court may order a party, a party’s attorney, or both, to pay any reasonable expenses, 10 including attorney’s fees, incurred by the defendant for whom a certificate of 11 merit should have been filed.

12 Cal. Civ. Proc. Code § 340.1(p). 13 III. DISCUSSION 14 Defendants’ motion to dismiss raises two distinct arguments. First, Defendants seek 15 dismissal of the sixth cause of action and the prayer for attorney’s fees, neither of which 16 Plaintiff opposes. Second, Defendants seek dismissal of the entire complaint on the basis 17 that Plaintiff’s certificates of merit are invalid. Plaintiff objects. The Court will address 18 each issue in turn. 19 A. Sixth Cause of Action and Prayer for Attorney’s Fees 20 First, Defendants seek to dismiss the sixth cause of action because “clergy were not 21 mandatory reporters of abuse at the time of Plaintiff’s alleged abuse,” and the prayer for 22 attorney’s fees because “there is no statute or contract authorizing the recovery of 23 attorney[’s] fees in this action.” (Doc. No. 15 at 18.) In the opposition, Plaintiff states that 24 he “does not oppose dismissal of his prayer for attorney’s fees nor his sixth cause of action 25 for Breach of Mandatory Duty and previously agreed to file an amended complaint 26 addressing” both items. (Doc. No. 18.) 27 Considering Defendants’ request and Plaintiff’s agreement, the Court GRANTS 28 Defendants’ motion to dismiss with respect to the sixth cause of action and the prayer for 1 attorney’s fees. The sixth cause of action is DISMISSED and the prayer for attorney’s fees 2 is STRICKEN. 3 B. Certificates of Merit 4 Second and quite contested, Defendants assert that the mental health practitioner 5 certificate of merit is invalid. (Doc. No. 15 at 8, 12–18.) Specifically, Defendants set forth 6 the following rationale: 7 • Plaintiff lives in Indiana so he must have been interviewed while in Indiana; 8 • The mental health practitioner who completed the certificate of merit must be 9 licensed in California, so the practitioner must have been located in California for 10 the interview; 11 • Plaintiff Counsel has previously stated that standard practice is to have the 12 mental health interviews conducted via Zoom so, based on the foregoing, Plaintiff’s 13 interview must have occurred via Zoom; 14 • Thus, assuming all that to be true, then the practitioner had to have illegally 15 acted outside of his or her license in interviewing unless the practitioner also was 16 temporarily licensed in Indiana. 17 (Id.) Based on this suspicion, Defendants assert the Court should conduct an in camera 18 review of the certificate of merit and dismiss the action if the certificate is invalid. (Id.) 19 Plaintiff opposes Defendants’ motion arguing (1) that there is no authority 20 permitting them to challenge a certificate of merit’s substance on a motion to dismiss and 21 (2) that the instant certificates comply with the statute. (Doc. No. 18.) 22 Defendants’ motion rests on the assertion that a defendant may request that the Court 23 review the substance of a certificate of merit in camera to decide a motion to dismiss after 24 in camera review has been conducted and service permitted. (Doc. Nos. 15 at 12 (citing 25 Warren v. City of Grass Valley, No. 10-cv-1650-JAM-EFB, 2010 WL 5170317, at *5 (E.D. 26 Cal., Dec. 13, 2010); 23 at 5–7 (citing first Doe v. Doe #1, No. 22STCV11242, 2023 Cal. 27 Super. LEXIS 49281. At *3–*6 (Cal. Super. Ct. July 19, 2023); then Warren, 2010 WL 28 5170317, at *5).) In summarizing Warren, Defendants state that the “court granted 1 defendant’s 12(b)(6) motion after reviewing psychologist certificate of merit in camera 2 and determining it did not meet standards set forth in section 340.1.” (Doc. No. 15 at 12.) 3 However, Warren is inapposite because there the plaintiff tried to convert a 4 complaint for personal injury pled pursuant to 42 U.S.C. § 1983 and California Civil Code 5 § 52.1, into a claim brought pursuant to California Code of Civil Procedure § 340.1, when 6 it was deemed that the statute of limitations had run as originally pled. Warren, 2010 WL 7 5170317, at *1–*4. In dismissing the plaintiff’s arguments, the court pointed out that the 8 complaint lacked critical allegations necessary to main a § 340.1 claim and, procedurally, 9 the plaintiff had failed to lodge a certificate of merit. Id. at 3, *5. The court permitted the 10 plaintiff to provide the certificate of merit at that time and determined from an in camera 11 review that it did not support the conclusion that the plaintiff had a meritorious claim. Id.at 12 *5. Thus, the court determined that even if the plaintiff had intended to plead a cause of 13 action pursuant to § 340.1 and even if the plaintiff had timely provided the certificate of 14 merit, the case would not have proceeded. Id. It is reasonable to infer that the court in 15 Warren only conducted an in camera review of the certificate of merit because the superior 16 court had not yet done so.3 17 Quite in contrast to Warren, here Plaintiff timely followed the procedural 18 requirements. Plaintiff filed an ex parte application for an order to serve Defendants and 19 lodged the corresponding certificates of merit. Pl.’s Ex Parte Appl. & Supp. Docs., Roe JB 20 65, No. 24CU008107C (Nov. 25, 2024) Doc. No. 15. Moreover, the superior court held a 21 hearing, reviewed the certificates of merit in camera, and issued an order granting 22 Plaintiff’s application, permitting service upon Defendants, and sealing the certificates of 23 merit. See Min. Order re Ex Parte Hr’g, Roe JB 65, No. 24CU008107C (Dec. 5, 2024), 24 Doc. No. 20; Order re Pl.’s Ex Parte Appl., Roe JB 65, No. 24CU008107C (Dec. 5, 2024), 25

26 3 In Defendants’ reply, they assert that “Warren acknowledged that section 340.1 required in camera 27 review of the certificates of merit prior to service and then re-reviewed their substance on a motion to dismiss.” (Doc. No. 23 at 8 (emphasis in original).) Warren does not, in fact, make such an 28 1 Doc. No. 19; Notice of Sealed Docs., Roe JB 65, No. 24CU008107C (Dec. 5, 2024), Doc. 2 No. 21.4 As a court of competent jurisdiction has already determined the certificates of 3 merit warranted this action proceeding, this Court sees no reason or authority to review the 4 certificates at this time. 5 In Doe v. Doe #1, although noting a demurrer is the proper method to challenge a 6 certificate of merit, the court overruled a demurrer challenging a certificate’s substance, 7 stating that the court had previously reviewed the certificate in camera and found it 8 sufficient. Doe v. Doe #1, 2023 Cal. Super. LEXIS 49281, at *3–*6. It is not clear from the 9 opinion whether the court re-reviewed the certificates, as Defendants request here, or 10 merely provided the defendant confirmation of its rationale by reiterating its prior ruling. 11 Regardless, Doe v. Doe #1 is a superior court opinion, not certified for publication or 12 ordered published, and does not fall within any of the limited exceptions set forth by 13 California Rules of Court or the Ninth Circuit for citation. Cf. Cal. Rule of Court 8.1115(a)– 14 (b); Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 876 n.3 (9th Cir. 2008). As such, the Court 15 finds it neither persuasive nor citable. 16 Published case law addressing this issue pertain solely to circumstances where the 17 plaintiff failed to comply with the procedural requirement of filing the certificates rather 18 than substantive issues of the certificates’ sufficiency. See, e.g., Doe v. San Diego-Imperial 19 Council, 239 Cal. App. 4th 81, 91–92 (2015) (affirming dismissal for failure to file 20 certificate of merit within the statute of limitations); Jackson v. Doe, 192 Cal. App. 4th 21 742, 754–56 (2011) (same); Doyle v. Fenster, 47 Cal. App. 4th 1701, 1703, 1707 (1996) 22 (same); see also San Diego Unified Sch. Dist. v. Superior Court, 102 Cal. App. 5th 383, 23 390 (2024) (analogizing that “[a] defendant has no opportunity to oppose the certificate of 24 25 4 The Court notes that both Defendants’ initial notice of removal and amended notice of removal 26 include as part of the state court record Plaintiff’s ex parte application but fail to include the minute order regarding the hearing, the order granting the application, and notice of sealed documents. (See generally 27 Doc. Nos. 1; 8.) At best, this is a careless oversight. At worst, the omission is an unacceptable attempt to misdirect the Court. Either way, Defense Counsel is cautioned that any misrepresentations, omissions, or 28 1 merit . . . , making [appellate] review under section 340.1 comparable to a demurrer or the 2 ex parte consideration of a request for a temporary restraining order based on the likelihood 3 of success on the merits” for purposes of determining the timeliness of a peremptory 4 challenge to a judge). State authority demonstrates that § 340.1(k) permits Defendants to 5 challenge certificates of merit that are not timely filed or entirely absent. As such, it is clear 6 that § 340.1(k) is not “rendered meaningless,” as Defendants assert it would be (Doc. No. 7 23 at 8), if the Court does not permit a second review for substance at the motion to dismiss 8 stage. 9 If Defendants seek to challenge the certificates of merit, they must do so “[u]pon the 10 favorable conclusion of the litigation with respect to any defendant for whom a certificate 11 of merit was filed or for whom a certificate of merit should have been filed pursuant to this 12 section[.]” Cal. Civ. Proc. Code § 340.1(p); see also Doe v. San Diego-Imperial Council, 13 16 Cal. App. 5th 301, 310 (2017) (“[I]n a case where the litigation terminates in a 14 defendant’s favor, the defendant or the court may move to verify the plaintiff’s certificate 15 of merit, and, if the court finds a failure to comply with subdivision (q)’s certificate of 16 merit requirement, the court may award the defendant his or her reasonable expenses, 17 including attorney fees.”). Viewed pursuant to this provision, Defendants’ request is 18 premature. 19 Considering that the superior court reviewed the certificates of merit in camera and 20 found them sufficient to order service upon Defendants prior to removal, the Court 21 DENIES Defendants’ motion to dismiss on this basis. However, as Defendants were 22 required to lodge the state court record with their notice of removal and properly did not 23 have access to the certificates of merit reviewed by the superior court, Plaintiff must lodge 24 the certificates of merit to complete the record. 25 /// 26 /// 27 /// 28 /// 1 C. Requests for Judicial Notice 2 Third, Defendants request the Court take judicial notice of five certificates of merit 3 in other cases. (Doc. No. 15-4 ¶¶ 1–5.) As their inclusion is to shore up Defendants’ 4 suppositions about the certificates of merit in this case which Defendants have not seen, 5 the Court DENIES Defendants’ request, finding the documents irrelevant. See Trans- 6 Sterling, Inc. v. Bible, 804 F.2d 525, 528 (9th Cir. 1986) (“It is neither necessary nor 7 desirable to take judicial notice of these purported facts which are, in any event, irrelevant 8 to this decision.”). Defendants also seek judicial notice of documents irrelevant to this 9 motion but were included in prior filings. (Doc. No. 15-4 ¶¶ 7–9.) The Court DENIES as 10 moot Defendants’ request because judicial notice was taken of these documents in a prior 11 Order. (See Doc. No. 44 at 9–10.) Finally, Defendants’ request the Court take judicial 12 notice of a prior version of California Code of Civil Procedure § 340.1. (Doc. No. 15-4 ¶ 13 6.) Considering the applicability of the prior version of § 340.1, discussed supra, the Court 14 GRANTS Defendants’ request. See Fed. R. Evid. 201(b)(2), (c)(1); see also Multiven, Inc. 15 v. Cisco Sys., Inc., 725 F. Supp. 2d 887, 891 (N.D. Cal. 2010) (taking judicial notice of the 16 applicable prior version of the statute at issue). 17 IV. CONCLUSION 18 For the reasons set forth above, the Court GRANTS Defendants’ motion to dismiss 19 with regard to the sixth cause of action and the prayer for attorney fees and DENIES 20 Defendants’ motion to dismiss on the remaining grounds. 21 Should Plaintiff desire to file an amended complaint, Plaintiff must do so no later 22 than March 18, 2025. Defendants must file a responsive pleading to the operative 23 complaint no later than April 1, 2025. 24 Further, the Court ORDERS Plaintiff to lodge the certificates of merit and file a 25 motion requesting the Court to seal the documents that sets forth the appropriate sealing 26 standard. See J. Battaglia Civ. Case Proc. § IV. With the public redacted version of the 27 certificates of merit, Plaintiff must provide a declaration of counsel averring that the lodged 28 1 || certificates are those, without alteration, that were sealed by the superior court, see Notice 2 || of Sealed Docs., Roe JB 65, No. 24CU008107C (Dec. 5, 2024), Doc. No. 21. 3 IT IS SO ORDERED. 4 || Dated: March 11, 2025 □

6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28