Filing Pseudonymously: California
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Caselaw in California addresses several facets of proceeding as a pseudonymous plaintiff.
Filing Using True Names: Two cases present seemingly contradictory results. In Doe v. Brown, the California appellate court allows the trial court proceeding & appeal to proceed with the Doe caption, acknowledging in a footnote, but not discussing, the parties’ stipulation and the trial court’s approval of the anonymity of the plaintiff and even the removal of Doe’s true name from all “publicly accessible court records.” By contrast, in Taus v. Loftus, the plaintiff was not allowed to proceed using initials by the California Supreme Court, in part because she revealed her true name in her initial filing.
Doe v. Brown, 99 Cal. Rptr. 3d 209 (Cal. Ct. App. 2009) – Doe is a sex offender who, having completed probation, seeks not to have her personal information placed on the California sex offender registry which is available on the internet (Megan’s Law). Doe filed the proceeding under her true name; nevertheless, the court opines:
"Although Doe initiated this proceeding using her legal name, the parties entered into a stipulation, approved by the trial court, to substitute the pseudonym Jane Doe for Doe's legal name in the case title, and to permit her to proceed on appeal under that pseudonym. Pursuant to the parties' stipulation, the trial court entered an order removing Doe's legal name from all publicly accessible court records pertaining to this proceeding."1
See also Doe v. California Dept. of Justice, 93 Cal. Rptr. 3d 736 (Cal. Ct. App. 2009) (bringing a similar challenge to Megan’s Law).
Taus v. Loftus, 151 P.3d 1185 (Cal. 2007) – Plaintiff was the anonymous subject of a study and was included in a subsequent publication on adults’ memories of sexual abuse from childhood. Plaintiff sues for damages, alleging defamation and negligent infliction of emotional distress stemming from the revelation of her identity in later scholarly publications. In examining the Plaintiff’s request for pseudonymity in the proceeding, the Court noted that while Defendant did improperly disclose Plaintiff’s initials in a deposition relating to the proceeding, Plaintiff herself had previously filed under her true name, identifying herself as the Jane Doe.
Interestingly, one recent court of appeals opinion mentions the increase across jurisdictions of plaintiff pseudonyms used to protect privacy interests:
- Starbucks Corp. v. Superior Court, 86 Cal. Rptr. 3d 482 (Cal. Ct. App. 2008) – The court notes in dicta 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.”
Initials are also used by some plaintiffs in California courts.
M.P. v. City of Sacramento, 98 Cal.Rptr.3d 812 (Cal. Ct. App. 2009) – Plaintiff M.P. brought an action against the city’s fire department under a theory of vicarious liability for her alleged sexual assault by several firefighters. Court does not discuss use of initials.
John B. v. Superior Court, 137 P.3d 153 (Cal. 2006) – Two of opposing parties are husband and wife, whose last initial is used in place of their full name in the record. Wife sues husband for allegedly transmitting the HIV virus to her due to his infidelity with other men. Court does not address use of last initial.
Acknowledgement is made by some courts, without a discussion of the pseudonymous use.
J. D. v. Lackner, 145 Cal. Rptr. 570 (Cal. Ct. App. 1978) – Plaintiff Jane Doe (identified in caption by the initials for the pseudonym) sues seeking Medi-Cal benefits for her sex reassignment surgery. The appellate court noted, without further discussion, that appellant “has been and shall be allowed to proceed herein under the fictitious name ‘Jane Doe’ . . . .” Id. at 92.
Doe v. Roe, 267 Cal. Rptr. 564 (Cal. Ct. App. 1990) – Doe and Roe were a couple; Doe sues for the negligent transmission of herpes. The court notes: “By stipulation of the parties and order of this court the parties have been designated by fictitious names to protect their privacy.” Id. at 564 n.1.
Doe v. Capital Cities, 58 Cal. Rptr. 2d 122 (Cal. Ct. App. 1996) – Doe is actor who, while seeking employment by Defendant, was drugged and gang raped by the defendant’s hiring agent and others. Doe sues for negligent hiring practices and sexual harassment. The court acknowledged the use of the pseudonym: “Given the nature of these events, plaintiff has elected to sue as ‘John Doe.’” Id. at 1042 n.1.
Other California decisions make no mention of the pseudonymity of the plaintiff. These cases are useful insofar as they provide breadth to the examples that one could analogize to.
Socialist Workers Committee v. Brown, 125 Cal. Rptr. 915 (Cal. Ct. App. 1975) – Two Doe plaintiffs in this consolidation of cases seek to maintain pseudonymity in their donation to the Socialist Party, for fear of retribution and harassment if they disclose their donations under campaign finance law. The court does not discuss Plaintiffs’ pseudonymity in the record.
Doe v. Bakersfield City School Dist., 39 Cal. Rptr. 3d 79 (Cal. Ct. App. 2006) – Does were sexually abused by junior high school counselor, and seek leave to file late tort claims on childhood sexual abuse. No discussion of pseudonymity.
Doe v. Saenz, 45 Cal. Rptr. 3d 126 (Cal. App. 2006) – Doe plaintiffs have criminal histories that bar them from child care employment under state law. Does challenge state agency interpretation of the applicable statute. Court does not discuss pseudonymity.
Doe v. Roman Catholic Bishop of San Diego, 101 Cal. Rptr. 3d 398 (Cal. Ct. App. 2009) – Does allege sexual abuse at hands of clergy. Issue in case is the statute of limitations for bringing claims for childhood sexual abuse and negligent hiring. No discussion of pseudonymity.
Doe v. Roman Catholic Archbishop of Cashel & Emly, 99 Cal. Rptr. 3d 158 (Cal. Ct. App. 2009) – Does claim sexual abuse by priest, and appeal the finding of no jurisdiction by the trial court over the Irish seminary where the abusive priest was trained. No discussion of pseudonymity.
Filing Requirements & Availability of Court Records
CAL. CODE CIV. PRO. § 367: “Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.”
Appellate records are available for free on the internet through California Courts: Opinions of the Supreme Court and Courts of Appeals, available here. They are searchable by citation or by a natural language search.
CAL. RULES OF COURT, Rule 8.401 (2010): Juvenile Appeals and Writs: Confidentiality [not effective until July 1, 2010: see CAL RULES OF COURT, RULE 8.400 (2010)]
(a) Access to filed documents: (1) Except as provided in (3), the record on appeal and documents filed by the parties in proceedings under this chapter may be inspected only by the reviewing court and appellate project personnel, the parties or their attorneys, and other persons the court may designate. (2) To protect anonymity, a party must be referred to by first name and last initial in all filed documents and court orders and opinions; but if the first name is unusual or other circumstances would defeat the objective of anonymity, the party's initials may be used.
CAL. RULES OF COURT, RULE 2.550 (2010): Sealed Records
[Provides procedure for balancing interests when court considers sealing, including express factual findings. Also notes a presumption of open access to court records.]
CAL. CIV. CODE § 3427.3 (2009): Protection of individual privacy and prevention of harassment
The court having jurisdiction over a civil proceeding under this title shall take all steps reasonably necessary to safeguard the individual privacy and prevent harassment of a health care patient, licensed health practitioner, or employee, client, or customer of a health care facility who is a party or witness in the proceeding, including granting protective orders. Health care patients, licensed health practitioners, and employees, clients, and customers of the health care facility may use pseudonyms to protect their privacy.
CAL. HEALTH & SAF. CODE § 120291 (2009): Felony for specific intent to infect [with HIV]
(c) (1) [Provides for use of pseudonym for victims when criminal proceedings are initiated.]
CAL. CIV. CODE § 1708.85
California statutory law specifically allows a party to bring a private cause of action using a pseudonym against any person who, without consent, intentionally distributes intimate or sexual imagery of a person where there was a reasonable expectation that the material would remain private and there is some harm (including, for example, loss of reputation, shame, hurt feelings and damage to profession or occupation).
Text of Statute(s)
(f)(1) A plaintiff in a civil proceeding pursuant to subdivision (a), may proceed using a pseudonym, either John Doe, Jane Doe, or Doe, for the true name of the plaintiff and may exclude or redact from all pleadings and documents filed in the action other identifying characteristics of the plaintiff. A plaintiff who proceeds using a pseudonym and excluding or redacting identifying characteristics as provided in this section shall file with the court and serve upon the defendant a confidential information form for this purpose that includes the plaintiff's name and other identifying characteristics excluded or redacted. The court shall keep the plaintiff's name and excluded or redacted characteristics confidential.
(2) All court decisions, orders, petitions, and other documents, including motions and papers filed by the parties, shall be worded so as to protect the name or other identifying characteristics of the plaintiff from public revelation.
(3) As used in this subdivision, “identifying characteristics” includes, but is not limited to, name or any part thereof, address or any part thereof, city or unincorporated area of residence, age, marital status, relationship to defendant, and race or ethnic background.
(4) The responsibility for excluding or redacting the name or identifying characteristics of the plaintiff from all documents filed with the court rests solely with the parties and their attorneys. Nothing in this section requires the court to review pleadings or other papers for compliance with this provision.
As of October 2015, our search of California cases did not reveal any cases citing this statute.
California courts have allowed plaintiffs to proceed with a pseudonym in a variety of cases. California statutory law specifically allows a party to bring a lawsuit using a pseudonym in cases involving juveniles,2 health care patients and staff,3 and victims who were deliberately infected with HIV.4 Additionally, plaintiffs often proceed pseudonymously on common law claims, but this is an area where the existing case law is underdeveloped.5 Existing case law, however, does not address in detail the proper use of pseudonyms in cases not covered by the statutes that provide for pseudonymity, nor does it set out an explicit balancing test for determining whether a party may proceed pseudonymously.
The use of “Doe plaintiffs” to protect legitimate privacy rights has been recognized as an appropriate practice in circumstances when a plaintiff would be further stigmatized by disclosing his or her name in court documents.6 The “Doe plaintiff” practice may be particularly appropriate where the facts of the case are of a sexual nature,7 or where the injured party complaints of cyber-harassment and invasions of privacy.8 When applying law to facts, it may be helpful to keep the federal multi-factor test in mind to help generate useful arguments for good cause.
Courts have found that the California Code of Civil Procedure does not prohibit pseudonymous litigation. Section 367 of the California Code of Civil Procedure states that “[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.”9 However, California courts have interpreted Section 367 to mean that a lawsuit must be brought on behalf of a person having legal standing to commence the action, and not to control whether or not a pseudonym is appropriate in a given case.10
Generally, victims of crime in California are entitled to the rights set forth in Article 1, Section 28, Subsection b of the California Constitution, known as the “Victim’s Bill of Rights.” The first of these rights is “[t]o be treated with fairness and respect for his or her privacy and dignity, and to be free from intimidation, harassment, and abuse throughout the criminal or juvenile justice process.”11 Each county in California establishes a procedure to protect the confidentiality of witness or victim information contained in police, arrest, or investigative reports, if those reports are submitted to the court by a prosecutor or law enforcement officer.12 “‘Confidential personal information’ includes, but is not limited to an address, telephone number, driver’s license or California Identification Card number, social security number, date of birth, place of employment, employee identification number, mother’s maiden name, demand deposit account number, savings or checking account number, or credit card number.”13
More specifically, victims of sexual offenses have the option of keeping their names out of the public record and assuming the pseudonym of Jane or John Doe in all records and court proceedings.14 However, the victim must assert this right, and affirmatively make the request that her name be withheld from the public record.15 Also, the defendant still maintains the right to a full discovery, and the prosecution must disclose the name and address of witnesses to the defense absent a showing of good cause concerning why the disclosure should be denied.16
The option of using a pseudonym and withholding the victim’s name from the public record is only available to victims of the thirty-two crimes listed below:
- Cal. Penal Code § 261 - Rape
- Cal. Penal Code § 261.5 - Unlawful Sexual Intercourse with Person Under 18
- Cal. Penal Code § 262 - Rape of Spouse
- Cal. Penal Code § 264 - Rape, Punishment
- Cal. Penal Code § 264.1 - Rape or Penetration of Genital or Anal Openings by Foreign Object; Acting in Concert by Force or Violence
- Cal. Penal Code § 265 - Abduction for Marriage or Defilement
- Cal. Penal Code § 266 - Inveiglement or Enticement of Unmarried Female under 18 for Purposes of Prostitution; Procuring Female for Illicit Intercourse by False Pretenses
- Cal. Penal Code § 266a - Abduction or Procurement by Fraudulent Inducement for Prostitution
- Cal. Penal Code § 266b - Abduction to Live in Illicit Relation
- Cal. Penal Code § 266c - Unlawful Sexual Intercourse; Sexual Penetration; Oral Copulation; or Sodomy; Consent Procured by False of Fraudulent Representation with Intent to Create Fear
- Cal. Penal Code § 266e - Purchasing Person for Purposes of Prostitution or Placing Person for Immoral Purposes
- Cal. Penal Code § 266f - Sale of Person for Immoral Purposes
- Cal. Penal Code § 266j - Procurement of Child Under Age 16 for Lewd or Lascivious Acts
- Cal. Penal Code § 267 - Abduction; Person Under 18 for Purpose of Prostitution
- Cal. Penal Code § 269 - Aggravated Sexual Assault of a Child
- Cal. Penal Code § 273a - Willful Harm or Injury to Child; Endangering Person or Health
- Cal. Penal Code § 273d - Corporal Punishment or Injury of Child
- Cal. Penal Code § 273.5 - Willful Infliction of Corporal Injury
- Cal. Penal Code § 285 - Incest
- Cal. Penal Code § 286 - Sodomy
- Cal. Penal Code § 288 - Lewd or Lascivious Acts
- Cal. Penal Code § 288a - Oral Copulation
- Cal. Penal Code § 288.2 - Harmful Matter sent with Intent of Seduction of Minor
- Cal. Penal Code § 288.3 - Contact of Minor with Intent to Commit Sexual Offense
- Cal. Penal Code § 288.5 - Continuous Sexual Abuse of a Child
- Cal. Penal Code § 288.7 - Sexual Intercourse or Sodomy with Child 10 years of age or Younger; Oral Copulation or Sexual Penetration of Child 10 Years of age or Younger
- Cal. Penal Code § 289 - Forcible acts of Sexual Penetration
- Cal. Penal Code § 422.6 - Hate Crime—Interference with exercise of civil rights because of actual or perceived characteristics of victim; damaging property; speech [characteristics underlying “hate crime” include gender and sexual orientation—see § 422.55]
- Cal. Penal Code § 422.7 - Aggravating Factors for Hate Crime Punishment
- Cal. Penal Code § 422.75 - Enhanced Penalties for Hate Crimes
- Cal. Penal Code § 646.9 - Stalking
- Cal. Penal Code § 647.6 - Annoying or Molesting a Child Under 18
The law enforcement employee who receives a report from a person alleging that the person is a victim of one of the above-listed crimes, must inform the victim that her or his name will become part of the public record unless she or he requests otherwise.17 The law enforcement employee must then record that the victim has been so informed and record the victim’s response.18 The law enforcement agency must not disclose the name or address of the victim to any person except as required or authorized by law.19 Authorized disclosures include those to the prosecutor, parole officers, parole hearing officers, and probation officers.20
At the victim’s request, the court may order the victim’s identity to be recorded under a pseudonym (Jane or John Doe) in all records and proceedings “if the court finds that such an order is reasonably necessary to protect the privacy of the person and will not unduly prejudice the prosecution or the defense.”21 If a pseudonym is used pursuant to section 293.5(a), then the jury is instructed at the beginning and end of the trial that the pseudonym is being used only to protect the privacy of the victim.22 The instruction reads as follows: “In this case, a person is called (Jane/John Doe). This name is used only to protect (his/her) privacy as required by law.”23 At the request of the defense attorney, the court may also add these sentences to the instruction: “The fact that the person is identified in this way is not evidence. Do not consider this fact for any purpose.”24
Cal. Penal Code sections 293 and 293.5, which provide privacy assurances to victims of sexual offenses, have been upheld despite constitutional challenges. In People v. Ramirez, the defendant presented several arguments against the statutes.25 First, the defendant argued that allowing the victim to be known as Jane Doe violated his right to a fair and impartial jury because, although the victim testified in person and all jurors saw the victim, there may have been jurors who knew the victim by name only.26 The Court of Appeal rejected this argument stating “In nonlegal jargon, we think this is a stretch.”27
Second, the defendant argued that the victim’s testimony as “Jane Doe” violated his right to confront and cross-examine her because the victim might “expand or embellish her testimony” if allowed to testify with a pseudonym.28 The court rejected this argument, noting that the defendant was provided with complete discovery and knew the victim’s true name and address.29 The court also relied on a Ninth Circuit opinion that stated “[t]here is no absolute right of an accused to have a jury hear a witness’s true name.”30 And, the court found that the balancing test provided in section 293, requiring the victim’s privacy interest to be weighed against the possibility that a pseudonym would prejudice the prosecution or defense, is constitutionally valid.31
Third, the defendant argued that the jury instruction mandated by section 293.5 creates an inference that the court believes that the alleged victim is an actual victim, and thus unduly influenced the jury.32 The court also rejected this argument noting that (1) the defense did not request any additional clarifying language at the trial court level; and (2) that taken in context with all of the other instructions that the trial judge gave, no improper inference could have been drawn by the jury from the instruction about the witness’s use of a pseudonym.33
Under the Penal Code sections governing discovery, the prosecution must disclose to the defense the names and addresses of the prosecution’s witnesses.34 There is, however, an exception in section 1054.7: “The disclosures required under this chapter shall be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred. . . ‘Good cause’ is limited to threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement.” Protecting witnesses from embarrassment does not constitute “good cause.”35 Similarly, a feeling of fear, without evidence of threats, danger, inappropriate attempts to contact the victim, harassment, or the involvement of gang members, does not constitute good cause.36
- Id. at 413 n.3. ↩
- Cal. Rules of Court, Rule 8.401 (2011). ↩
- Cal. Civ. Code § 3427.3 (West 2011). ↩
- Cal. Health & Saf. Code § 120291 (West 2011). ↩
- See generally, Doe v. Saenz, 45 Cal. Rptr. 3d 126 (Cal. Ct. App. 2006), (three convicted felons were allowed to proceed pseudonymously to challenge State Department of Social Services’ decision seeking to preclude them from working at licensed community care facilities), Hooper v. Deukmejian (176 Cal. Rptr. 569 (Cal. Ct. App. 1981) (an individual convicted of maintaining a place for selling or using a narcotic was permitted to sue pseudonymously to determine whether he and others similarly situated were entitled to the benefits and protections of marijuana reform legislation), and Jane Doe 8015 v. Superior Court, 55 Cal. Rptr. 3d 708 (Cal. Ct. App. 2007) (a patient was allowed to bring an action against a laboratory using a pseudonym after it was determined that one of the laboratory’s phlebotomists had reused needles, resulting in the plaintiff’s contraction of HIV). ↩
- See Starbucks Corp. v. Superior Court, 86 Cal. Rprtr. 3d 482, 495 n.7 (Cal. Ct. App. 2008) (noting that this practice “has gained wide currency, particularly given the rapidity and ubiquity of disclosures over the [internet.]”). ↩
- See, e.g., Doe v. City of Los Angeles, 67 Cal. Rptr. 3d 330 (2007) (former Boy Scouts sued under pseudonym based on allegations that city police officer sexually assaulted them while they were teenagers). ↩
- See, e.g., M.G. v. R.D., No. B159974, 2003 WL 21129878, at *3 (Cal. Ct. App. May 16, 2003) (Plaintiff was the victim of Defendant’s internet campaign to ruin Plaintiff’s reputation by disseminating private “sex tapes” and sending malicious emails about Plaintiff to Plaintiff’s friends, family, and co-workers). ↩
- Cal. Civ. Code, § 367 (West 2011). ↩
- Doe v. Lincoln Unified Sch. Dist., No. C062554, 2010 Cal. App. LEXIS 1505, at *8-9 (Cal. Ct. App. Aug. 30, 2010). ↩
- Cal. Const. art. 1, § 28(b)(1) (West 2011). ↩
- Cal. Penal Code § 964(a) (West 2011). ↩
- Cal. Penal Code § 964(b) (West 2011). ↩
- See Cal. Penal Code §§ 293, 293.5 (West 2011). ↩
- See Cal. Penal Code § 293(a) (West 2011). ↩
- See Cal. Penal Code §§ 1054.1, 1054.7. Social norms providing victims with anonymity have developed outside of the statutory requirements. For example, newspapers generally do not print the names of sexual assault victims, and similarly, some judges do not include the names of sexual assault victims in their opinions. ↩
- See Cal. Penal Code § 293(a). ↩
- See Cal. Penal Code § 293(b). ↩
- Cal. Penal Code § 293(c)-(d). ↩
- Id. ↩
- Cal. Penal Code § 293.5(a). ↩
- Cal. Penal Code § 293.5(b). ↩
- Cal. Jury Instructions., Crim., 7th Ed. § 1.12. ↩
- Id. ↩
- People v. Ramirez, 64 Cal. Rptr. 2d 9 (Cal Ct. App. 1997). ↩
- Id. at 54. ↩
- Id. ↩
- Id. at 56-57. ↩
- Id. at 56. ↩
- Id. citing Clark v. Ricketts, 958 F.2d 851, 855 (9th Cir. 1991). ↩
- Id. at 57. ↩
- Id. 57-58. ↩
- Id. at 58. (The trial judge instructed the jury that the court did not intend to show belief or disbelief concerning any witness and if the jury thought the court did, then the jury should disregard that indication). ↩
- Cal. Penal Code § 1054.1. ↩
- See Reid v. Super. Ct., 64 Cal. Rptr. 2d 714, 720 (Cal. Ct. App. 1997). ↩
- See Id. ↩