Thursday, April 21, 2011
Court of Appeal Rules:
Rape Victim May Verify Papers Under Fictitious Name
By KENNETH OFGANG, Staff Writer
A rape victim suing under a fictitious name may sign discovery verifications using that name, the Court of Appeal for this district ruled yesterday.
In an opinion by Justice Walter Croskey, the court granted a writ of mandate to Shawna Doe, who is suing the mother of convicted rapist Andrew Luster for her alleged involvement in fraudulent transfers of her son’s assets.
Doe obtained a $19 million judgment against Luster in September 2003, several months after he was convicted in absentia on 86 counts of sex and drug violations. Luster, an heir to the Max Factor cosmetics fortune who had been released before trial after the Court of Appeal reduced his bail from $10 million to $1 million, fled to Mexico but was captured by bounty hunters and deported.
Prosecutors presented evidence, including videotapes made by the defendant himself, that he assaulted Doe and other unconscious women at his beach house after giving them GHB, a drug that rendered them unconscious.
Luster filed for bankruptcy protection, but Doe obtained a ruling that the judgment was not dischargeable. In 2009, she sued Elizabeth Luster, as trustee for various family trusts, as well as Andrew Luster and Luster Investments, L.P.
Doe filed her complaint under that name in order to protect her anonymity as a sexual assault victim, and Los Angeles Superior Court Judge Malcolm Mackey denied motions to strike portions of the complaint. The defendants argued unsuccessfully in those motions that the use of a fictitious name requires a prior court order.
The litigation devolved into a series of discovery disputes, the plaintiff raising privacy objections to a number of requests. After the defendants objected to the plaintiff’s lack of verifications to her discovery responses, she verified them under her fictitious name.
The defendants then moved to compel further responses. Granting the motions in part, Mackey ordered that Doe supplement some of her responses and that she sign her true name to the verifications, directing her counsel to draft an appropriate protective order.
The judge also ordered Doe and her counsel to pay $4,200 in sanctions.
Croskey, writing for the Court of Appeal, noted that a case not cited by the parties, even though it predated the writ petition, establishes the right of a plaintiff suing under a fictitious name to use that name to sign a verification.
That case, Doe v. Lincoln Unified School Dist. (2010) 188 Cal.App.4th 758, involved the plaintiff’s’ verification of a petition for writ of mandate. Requiring the plaintiff to verify the petition using her real name, the appellate court said, “would render the ability to use a fictitious name in the litigation meaningless.”
Using a fictitious name, Croskey elaborated, does not violate the Code of Civil Procedure’s requirement that a declaration be “subscribed” by a party of witness. A document is subscribed when signed “with one’s own hand,” the justice explained, so that the signer will be subject to prosecution for perjury.
“Clearly, when a party, proceeding under a fictitious name, subscribes a verification under that fictitious name, the party will be held to that declaration and cannot subsequently disclaim it on the basis that the name on the verification is not the party’s true legal name.”
The justice also rejected the defense argument that a verification signed with the plaintiff’s real name was needed in order to enforce any award of sanctions or costs. Any claim that the plaintiff’s true name must be disclosed in the event she fails to pay costs or sanctions can be addressed at that time, Croskey explained.
As for the sanctions order, the justice said it was unclear how much of the amount ordered was a result of the plaintiff’s declining to verify responses under her true name, and how much due to other matters not part of the writ proceeding, so the amount will have to be reconsidered by the trial judge.
In a footnote, Croskey took umbrage at defense attorney Daniel B. Spitzer’s repeated references to Doe as an “alleged rape victim.” Since Luster’s guilt was found by a jury beyond a reasonable doubt, the justice wrote, “referring to Doe as an ‘alleged’ rape victim is offensive both to Doe herself, and the court system which convicted Andrew Luster.”
Michael C. Baum and Sandra Khalili of Resch Polster & Berger represented the plaintiff on appeal.
The case is Doe v. Superior Court (Luster), B228748.
Copyright 2011, Metropolitan News Company