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Friday, May 28, 2021

 

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Time to Appeal Starts With the Granting of Anti-SLAPP Motion—Court of Appeal

Opinion Designates as ‘Roe’ Same Man Federal District Court Found Not Entitled to Identity Concealment

 

By a MetNews Staff Writer

 

The 60-day period for bringing an appeal is triggered by the granting of an anti-SLAPP motion, not from the time the ensuing judgment of dismissal is filed, the Sixth District Court of Appeal has held, dismissing an appeal by a man it identifies by a pseudonym, in contrast to the approach of the U.S. District Court for the Northern District of California which found that he has no legitimate claim to anonymity.

 Justice Allison M. Danner wrote the Sixth District opinion, which was filed Wednesday and not certified for publication. It refers to the appellant as “Jim Roe.”

However, the federal trial court used his actual name, James Zuegel, as did the Los Altos resident’s local newspaper, the Daily Post, which on Nov. 13, 2017 told of his federal suit against the Mountain View Police Department and members of its force over an arrest, saying:

“James alleges that the manner of his arrest, along with a strip search, body cavity search and overnight detention at the San Jose jail, was intended as punishment for a suspected crime for which police had little evidence. Zuegel’s arrest on June 7, 2015, followed accusations that he had slapped a girl on the butt at the El Camino YMCA in Mountain View, asking her ‘how old are these buns?’ Zuegel denies those allegations.”

No Explanation

Danner does not explain in her opinion why anonymity is being accorded Zuegel, so that whether she even knew that “Roe” is not his actual surname is uncertain.

In his state action in Santa Clara Superior Court, Zuegel sued the girl who leveled the accusation against him, “Savannah S.,” and her mother, “Maria S.,” as they were denominated in both the state and federal proceedings.

The state suit was for malicious prosecution, notwithstanding that Zuegel had prevailed in no litigation instituted by them. In a criminal case brought against him, he had pled no contest to a misdemeanor charge of disorderly conduct.

He insisted in his subsequent lawsuits that he did so out of expediency to avoid the prospect of having to register as a sex offender (a prospect which he said he had learned did not exist, vowing to seek to withdraw his plea and go to trial).

Danner’s Opinion

Danner’s opinion confined itself to whether the appeal could be heard. She noted that under the anti-SLAPP statute, Code of Civil Procedure §425.16, an order granting or denying a special motion to strike is appealable.

Although Zuegel purported to appeal timely from the July 25, 2018 judgment of dismissal, Danner said, the appeal must be construed as being from the March 5, 2018 order granting the anti-SLAPP motion, which renders it past deadline. She wrote:

“[W]e conclude that appellant’s challenge to the March 5, 2018 anti-SLAPP order is not timely. Here, the order on defendants’ anti-SLAPP motion granted their motion to strike plaintiffs malicious prosecution action in its entirety and with prejudice. The trial court filed and served the order on March 5, 2018. Because an order granting an anti-SLAPP motion is an appealable order…, plaintiffs deadline to file a notice of appeal from that order was no later than May 4, 2018, i.e., 60 days after the clerk served the filed-endorsed copy of the appealable order on March 5, 2018….

“The notice of appeal, filed on September 5, 2018, was therefore untimely.”

The case is Roe v. Maria S., H046182.

Zuegel, a Silicone Valley chemical engineer, filed his suit in the District Court, pro se, under his own name and identified “Savannah S.” and “Maria S.” by their full names. After obtaining counsel, the plaintiff sought to use the false name of “Jim Roe” in an amended complaint.

District Court Judge Beth Labson Freeman disallowed Zuegel’s designation as “Roe.”

“The use of fictitious names is directly at odds with the public’s common law right of access to judicial proceedings,” Freeman declared in her Oct. 18, 2017 ruling, adding that while the Ninth Circuit has recognized the legitimacy of anonymity in specified contexts, no exception was applicable in the present case. Addressing Zuegel’s alleged privacy right, she said:

“Plaintiff has not demonstrated why anonymity is necessary in light of the presumption of access to judicial proceedings and Rule 10(a)’s requirement that all parties to litigation be named. The Court ultimately balances the need for anonymity with the interests weighing in favor of open judicial proceedings….Plaintiff cites to no case supporting his need to proceed anonymously on the basis that information in the docket is sensitive or highly personal. Plaintiff does not even point out what information on the docket is sensitive or highly personal, but the Court infers that he is concerned about the nature of the allegations and the initial charges brought against him arising from the incident at the YMCA.”

Freeman continued:

“Plaintiff argues only that it is foreseeable that persons (in other words, the public) could search for Plaintiff’s name and ‘learn highly personal information, which they have no legitimate need to know.’…Yet the criminal complaint against Plaintiff remains publicly available. In addition, Plaintiff chose to file this lawsuit and drafted his allegations including the underlying facts of the case. Defendants argue that in these circumstances. Plaintiff ‘shouldn’t be permitted to make highly-charged allegations of civil rights violations on the one hand—including coercive and malicious conduct—while simultaneous [sic] hiding under the cloak of anonymity.’…Based on the evidence before the Court, and the lack of authority to the contrary, the Court finds that Plaintiff is not entitled to proceed under a pseudonym on the grounds of privacy.”

Zuegel also called for truncating the last names of the accusers, which the judge did order, prospectively, sealing the initial complaint.

In federal court, permission must be sought to proceed under a pseudonym, while no such requirement exists in state court.

 

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