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AB-2185 Civil actions: pleadings: party names.(2017-2018)

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Date Published: 04/09/2018 09:00 PM
AB2185:v97#DOCUMENT

Amended  IN  Assembly  April 09, 2018
Amended  IN  Assembly  March 15, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 2185


Introduced by Assembly Member Chiu

February 12, 2018


An act to add Section 422.41 to the Code of Civil Procedure, relating to civil actions.


LEGISLATIVE COUNSEL'S DIGEST


AB 2185, as amended, Chiu. Civil actions: pleadings: party names.
Existing law requires the title of the complaint in a civil action to include the names of all parties to the action.
This bill would authorize a plaintiff who legitimately fears that revealing his or her true identity would subject him or her to imminent action resulting in either removal from the United States or long-term restraint of his or her freedom plaintiff, including a cross-complainant, to use a pseudonym or fictitious name to commence and pursue an action. The bill would authorize a defendant to file a motion to challenge the use of the fictitious name and prohibiting the plaintiff from using a fictitious name, as specified. require the court to issue an order to show cause why the plaintiff should be permitted to use a pseudonym on the motion of a party to the action within 60 days of service of the summons and complaint or cross complaint. The bill would authorize a court to issue that order to show cause on its own motion at any time during the pendency of the action. The bill would require the plaintiff to show special circumstances demonstrating that the plaintiff’s need to proceed pseudonymously outweighs both the public’s interest in knowing the plaintiff’s identity and any prejudice to any other party to discharge the order to show cause. The bill would specify factors to be considered by the court in making its determination. The bill would authorize a plaintiff who has been ordered to be identified to either continue to maintain his or her action or to dismiss the action without prejudice. The bill would make an order granting or denying that motion appealable.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 422.41 is added to the Code of Civil Procedure, to read:

422.41.
 (a) As used in this section “plaintiff” includes a cross-complainant, and “complaint” includes a cross-complaint.
(b) A plaintiff may use a pseudonym or fictitious name to commence and maintain an action, subject to the requirements of this section.
(c) (1) On the motion of any party to the action within 60 days of service of the summons and complaint, the court shall issue an order to show cause why the plaintiff should be permitted to use a pseudonym.
(2) In discharging an order to show cause issued pursuant to paragraph (1), the plaintiff using a pseudonym shall have the burden of showing special circumstances demonstrating that the plaintiff’s need to proceed pseudonymously outweighs both the public’s interest in knowing the plaintiff’s identity and any prejudice to any other party.
(3) In determining whether a plaintiff has met his or her burden pursuant to paragraph (2), the court shall consider all relevant factors, including, but not limited to, the following:
(A) Whether the plaintiff’s use of a pseudonym is intended merely to avoid the annoyance and criticism that may attend any litigation, or is intended to preserve privacy in a sensitive and highly personal matter.
(B) Whether identification of the plaintiff poses a risk of retaliatory physical or mental harm to either the party requesting identification or to innocent nonparties.
(C) Whether the plaintiff legitimately fears that revealing his or her identity could subject him or her to imminent actions that could result in his or her removal from the United States.
(D) The age of a person whose privacy interests are sought to be protected.
(E) Whether the plaintiff’s claims are asserted against a governmental or private party.
(F) The risk of prejudice to other parties if the plaintiff is allowed to proceed pseudonymously.
(d) In any action in which a plaintiff is proceeding pseudonymously, the court shall enter appropriate orders to ensure all of the following:
(1) All parties to the action know the identities of all other parties to the action, including a plaintiff who is proceeding pseudonymously.
(2) All parties to the action shall maintain the confidentiality of the identity of the plaintiff proceeding pseudonymously.
(3) All parties to the action are afforded the rights, procedures, and discovery to which they are otherwise entitled.
(e) If the court has permitted a plaintiff to proceed pseudonymously pursuant to a determination of an order to show cause pursuant to subdivision (c), any party may move for reconsideration of the issue of the plaintiff’s continued use of a pseudonym at any stage of the proceedings if material changes in circumstance warrant reconsideration.
(f) Notwithstanding paragraph (1) of subdivision (c) and subdivision (e), the court may, on its own motion at any time during the pendency of the action, determine pursuant to the procedures set forth in subdivision (c) whether the plaintiff should be permitted to use a pseudonym.
(g) If the court orders the plaintiff using a pseudonym to be identified pursuant to a determination of an order to show cause pursuant to subdivision (c) or a motion for reconsideration pursuant to subdivision (e), the plaintiff may do either of the following:
(1) Continue to maintain his or her action or claims, in which case the court shall order that the pleadings and any relevant dockets or docket entries be reformed to reflect the plaintiff’s true name. The identification of the plaintiff shall be deemed to relate back to the date of the filing of the complaint.
(2) Dismiss his or her action or claims without prejudice.
(h) An appeal may be taken from an order denying a plaintiff’s use of a pseudonym. The plaintiff may continue to use the pseudonym pending the resolution of the appeal.

SECTION 1.Section 422.41 is added to the Code of Civil Procedure, to read:
422.41.

(a)A plaintiff who legitimately fears that revealing his or her true identity would subject him or her to imminent action resulting in either his or her removal from the United States or the long-term restraint of his or her freedom may use a fictitious name to commence and pursue an action, including an action in which the plaintiff requests the appointment of, or seeks to act as, a guardian ad litem.

(b)Within 60 days of service of the summons, a defendant to an action commenced by a plaintiff using a fictitious name may challenge the use of the fictitious name by a motion seeking injunctive relief prohibiting the plaintiff from using a fictitious name and that shows, by clear and convincing evidence, either of the following:

(1)The plaintiff’s privacy interest in concealing his or her true identity is outweighed by prejudice to the defendant’s or the public’s interest in knowing the plaintiff’s true identity.

(2)The plaintiff’s fear relates solely to an imminent and legitimate criminal prosecution that would survive a preliminary hearing in a criminal action.

(c)An appeal may be taken from an order granting or denying a motion filed pursuant to subdivision (b).