In San Diego Unified School District v. Superior Court (John Doe D.Y.), published May 28, 2024, the Fourth District Court of Appeal, Division 1 issued a writ of mandate directing the trial court to vacate its order denying the real party district's Code of Civil Procedure section 170.6 to the trial court judge. Code of Civil Procedure section 340.1 requires a plaintiff who is 40 or older at the time of filing a suit for childhood sexual abuse to file a certificate of merit for each defendant, and cannot serve any defendant until the court determines based solely on the certificates that there is reasonable and meritorious cause for filing the action against the defendant. Further, the plaintiff must name each defendant by fictitious names unless the plaintiff files a certificate of corroborative fact and the court determines, based solely on the certificate and reasonable inferences to be drawn from it, that one or more facts corroborative of one or more of the charging allegations against a defendant has been shown. By statute, neither certificate is served on the defendant, and are reviewed in camera by the trial court. The plaintiff filed this action, and it was assigned to a superior court judge. The superior court entered an order on the plaintiff's ex parte application to serve and name Doe defendants under section 340.1. The plaintiff then filed an amendment to name the defendant district in place of a Doe defendant, and served the district with the complaint. When the district filed its first appearance, a request for an automatic extension of the time to demurrer, the district filed a Code of Civil Procedure section 170.6 peremptory challenge to the judge the same day. The trial court denied the challenge as untimely. The district petitioned the appellate court for relief, on the ground that it timely filed the challenge within 15 days of its appearance. The appellate court issued an order to show cause. Neither the plaintiff nor the superior court responded. The district filed a supplemental brief in lieu of reply, arguing a review of section 340.1 certificates is not a “determination of contested fact issues relating to the merits” under section 170.6 that would bar a subsequent section 170.6 challenge.
The appellate court agreed. Courts narrowly construe what constitutes a determination of contested fact relating to the merits under section 170.6, limiting it to decisions actually on the merits of the case. The purpose of the certificate of merit is to impose a pleading hurdle to prevent frivolous and unsubstantiated claims. It is therefore similar to a determination of probable cause in a criminal prosecution. The defendant ha no opportunity to oppose the certificates and raise conflicting factual contentions. The certificate determination is therefore comparable to a demurrer or an ex parte request for a temporary restraining order, which are not deemed resolution of disputed facts under section 170.6. This limited review therefore does not preclude a subsequent section 170.6 challenge.
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