Metropolitan News-Enterprise


Wednesday, June 3, 2015


Page 7



Floridian Who Wants to Litigate in Secrecy Finds California a Desirable Venue




Why would a Miami investment advisor bring an action in the Los Angeles Superior Court that could just as well have been brought in Florida?

The advisor is Patrick J. Dwyer who, as I noted here yesterday, wants a court to order the Financial Industry Regulatory Authority (“FINRA”) to remove from its online database seven complaints filed against him by customers. He filed his action as “John Doe” and wanted the public file to contain only papers which have had all references to him by his real name redacted.

He was apparently able to sue here because FINRA has one of its five regional offices (West Region) in Los Angeles’ One California Plaza. However it also has a regional office (Southeast Region) in Florida’s Boca Raton, in Palm Beach County.

The distance from Dwyer’s office in Miami to Palm Beach’s South County Courthouse in Delray Beach is 52.7 miles—a 52 minute drive—according to Google Maps. From his office to the Stanley Mosk Courthouse, according to that same source, is 2,737 miles. Not that Dwyer would be apt to drive that distance, but if he did, it would take 39 hours.

So, why sue here?

The obvious explanation is that there’s a perception that California courts are more apt than other courts to allow a plaintiff to sue anonymously, and more prone to permit the altering of records through expungements.

With respect to Dwyer, Los Angeles Superior Court Judge Michael P. Linfield has allowed him to be identified in the case caption, untruthfully, as “John Doe,” though Linfield has ordered that papers be admitted to the public file bearing the plaintiff’s actual name.

California has, in fact, been liberal, far too liberal, in permitting litigants to sue as Doe or Roe, or some other designation hiding the person’s actual identity.

This newspaper made a request to the California Supreme Court in 2001 that the caption of a Court of Appeal opinion published in the advance sheets as Unnamed Physician v. Board of Trustees of Saint Agnes Medical Center, 93 Cal.App.4th 607, be restored in the Official Reports to its original title of Nugent v. Saint Agnes Medical Center. The request was denied.

In both the trial court and the appellate court, a Dr. James Nugent had challenged, in his true name, a hospital’s administrative procedures. But in the opinion, then-Fifth District Court of Appeal Presiding Justice James Ardaiz (now a private judge) stepped forth as protector of the doctor, proclaiming in a footnote:

“Because of the sensitive nature of the allegations made by the hospital and the pendency of the internal peer review process, we deem it necessary to protect the physician’s professional reputation at this juncture and will refer to him in this opinion as an unnamed physician, or appellant.”

Terming a litigant an “Unnamed Physician” when that physician had been named, throughout the proceedings, was, plainly, a lie. It’s not nice for courts to lie.

There is an undeniable right of public access to court records and proceedings. A key fact in any case is who the litigants are. To conceal that is, obviously, to obstruct access.

One seeking information on, say, Beatrice L. Schaltz, who finds no “hits” in searching court records on her, has been effectively denied access to records that do exist where Schaltz is fictionally designated in a case as “Joan Doe.” This turns public courts into, essentially, a private forum for Schaltz.

Yet, with frequency, litigants file actions in the Los Angeles Superior Court as Does, with no sustainable basis for anonymity, and no one says, “Ahem!” Opposing parties don’t grunt; judges see no problem; press organizations that ought to be hollering are silent.

On the first page of Dwyer’s “Complaint for Expungement,” his lawyer, Jeffrey K. Riffer of the Century City law firm of Elkins Kalt Weintraub Reuben Gartside LLP, says in a footnote (a footnote in a complaint?):

Plaintiff has submitted this request for expungement as John Doe. The California Court of Appeal recently observed that “[t]he 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. [Citations].” Starbucks Corp. v. Superior Court, 168 Cal.App.4th 1436, n. 7 (2008). Here, having a public court record with Plaintiff’s name on it would defeat the purpose of obtaining expungement.

Use of false names has, indeed, “gained wide currency.” But for a plaintiff to adopt a pseudonym is not a prerogative, akin to deciding what color of shoes to wear. Starbucks Corp. does not provide such broad support for Dwyer’s position as Riffer seeks to portray. Here’s the entire footnote:

We do not decide the appropriate standards or mechanisms for protective nondisclosure of identity in California, because the matter is not now before us. (See Code Civ. Proc., § 367 [actions must be prosecuted in name of the real party in interest]; but see Cherrigan v. City etc. of San Francisco (1968) 262 Cal.App.2d 643, 652–653, 69 Cal.Rptr. 42 [allowing woman to prosecute wrongful death lawsuit in her former surname rather than her current true surname to avoid inadmissible inferences that she had remarried].)

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, 67 Cal.Rptr.3d 330, 169 P.3d 559 [former Boy Scouts sued under pseudonym 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, 95 Cal.Rptr.2d 864 [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, 60 Cal.Rptr.3d 501.)

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.)

The footnote speaks of parties litigating anonymously to protect “legitimate” privacy rights. This connotes something more than a plaintiff’s mere desire for anonymity, as in Dwyer’s case. He’s not a minor, a victim of a sex act, or in some other class which has traditionally been shielded from exposure of identity. He’s a financial advisor whose preference is that his true name not be used in the caption because he doesn’t want it known that he brought an action to have complaints against him purged from a website.

Looking at cases cited in the Starbucks Corp. footnote:

In Cherrigan v. City, a woman named Nancy Cherrigan brought suit as Nancy Cherrigan. This is unlike Patrick J. Dwyer suing as John Doe. After bringing her action, Cherrigan remarried. The defendants asked that she be required to amend the complaint to state her new married name, and the request was denied. “Appellant cites no authority for an inflexible requirement that a pleading by a married woman identify her by her husband’s surname, and we are aware of none,” the appeals court’s opinion says. It points out that evidence of a remarriage was inadmissible, and requiring use of her new name would thwart that rule.

Doe v. City of Los Angeles concerns an action brought by John Doe and John Doe 2 alleging that, as youths, they were sexually abused. This is the sort of circumstance where common decency and tradition have given rise to anonymity.

The facts in Johnson v. Superior Court, involving an anonymous sperm donor, also falls into that category.

There was a unique fact situation in H.B. Fuller. The plaintiff was seeking from Yahoo the identity of the person who posted on an online bulletin board sensitive information told to plaintiff’s employees in confidence. It was the plaintiff who designated the poster as “John Doe.”

Does I thru XXIII v. Advanced Textile Corp., even if it applied to state courts, would not assist Dwyer. “Special circumstances” are not present. Indeed, the Ninth Circuit specified that pseudonyms are permitted only in “the ‘unusual case.’ ” In an opinion filed one week ago in Doe v. Ayers, No. 15-99006, the Ninth Circuit explains why it had allowed a prison inmate to be referred to in an opinion as a “Doe.” It specifies: “This deviation from our normal practice remains the rare exception rather than the rule.”

It’s no wonder that FINRA removed the case to the U.S. District Court for the Central District of California, and why Dwyer argued, successfully, to have it remanded to the Los Angeles Superior Court.

A case that stands as a virtual invitation to forum shoppers who want to litigate in secrecy to come to California—reflecting as it does how readily the courts here will grant anonymity—is Doe v. Lincoln Unified School District (2010) 188 Cal.App.4th 758. There, the Third District Court of Appeal considered the appeal of a school district that had suspended a teacher it believed to be mentally ill. The teacher brought a writ proceeding under the fictitious name of “Jane Doe.” The district argued that under Code of Civil Procedure §367, she had to use her real name. The appeals court, in an opinion by Justice Harry Hull Jr., rejected the contention. He writes:

“Defendants argue: ‘California state courts do not permit plaintiffs to sue under fictitious names.’ However, defendants fail to cite a single state court decision in support. This is not surprising, since there have been countless published state court decisions where one or more of the parties have used fictitious names.”

Hull goes on to observe:

“In the present matter, defendants have taken a blanket approach in arguing that fictitious names can never be used by a plaintiff. They have therefore presented no argument as to why the use of a pseudonym by plaintiff, a tenured teacher accused of being mentally unfit to teach, is inappropriate in this case.”

If Hull’s child were a student in the Lincoln Unified School District, perhaps he would grasp why there is public interest in knowing the identity of the teacher.

The laissez-faire attitude toward plaintiffs misidentifying themselves runs contrary to the California Supreme Court’s decision in NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178 which requires openness is court proceedings, as discussed here yesterday. Labeling Dwyer or anyone else “Doe” whose real name is not Doe contravenes the public’s interest in access to information about court proceedings and should not be permitted, except in those rare instances where decency mandates nondisclosure.

Dwyer’s arguments to the contrary are feeble. A memorandum of points and authorities Riffer filed in the Court of Appeal, seeking (unsuccessfully) intercession to prevent the plaintiff’s name from appearing in documents in the public file, asserts:

“The Petitioner’s overriding interest in not having meritless complaints disclosed further (and forever) in a public court record outweighs ‘the right of public access to the record’ and supports sealing the record.

“The public will have complete access to the court record (albeit with Mr. Doe’s name and identifying information redacted). This case is an open public proceeding. The Petitioner’s pertinent characteristics are available to the public.”

By that reasoning, the name of an accused in a criminal proceeding should be kept secret unless and until he or she is convicted; otherwise, meritless allegations will be made public. Indeed, under Riffer’s Rule, in any civil case in which an unappealed judgment is for the defendant, the complaint should be stricken from file—but why stop there? Why not destroy the file?

It is easily understood why Dwyer’s lawyers would think there’s a good chance that expungement—the falsification of records through omission—would be granted here. Less and less do California courts view expungement as an “extraordinary remedy.” Pretending that something that did happen didn’t is becoming commonplace.

In Lickiss v. FINRA (2012) 208 Cal. App. 4th 1125, the Court of Appeal held that the demurrer to a complaint for expungement of records on the FINRA website should have been overruled.

Riffer, in his memorandum of points and authorities in Court of Appeal, cites that case in saying that “courts have held that customer complaint disclosures should be expunged if they have ‘no regulatory value.’ ” Lickiss does not say that. The opinion says that the plaintiff adequately pled a cause of action calling upon the trial court to exercise its inherent equitable powers. The phrase “no regulatory value” does appear in the opinion, but appears in the context of reciting the SEC’s views on a proposal.

By the way, Lickiss is no longer registered with FINRA, and his action apparently failed on remand. Three dozen complaints concerning him are on the website, including a post-litigation 2014 complaint as to his failing to report liens against him, resulting in a four-month suspension that ended Dec. 17.

At a hearing tomorrow, Linfield will hear arguments as to why he should exercise his inherent powers to hide from the public complaints concerning Dwyer. May he rule wisely.


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