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Shawna Doe v. the Superior Court of Los Angeles County

April 20, 2011

SHAWNA DOE, PETITIONER,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, RESPONDENTS; ELIZABETH LUSTER, REAL PARTY IN INTEREST.



ORIGINAL PROCEEDINGS in mandate. Malcolm H. Mackey, Judge. (Los Angeles County Super. Ct. No. BC421143)

The opinion of the court was delivered by: Croskey, J.

CERTIFIED FOR PUBLICATION

Petition for writ of mandate is granted.

Petitioner Shawna Doe filed a petition for writ of mandate to challenge the trial court's ruling that, although she was permitted to pursue her action under a fictitious name, she was required to provide verifications signed in her true name in connection with discovery responses. We agree with petitioner that, under the circumstances, she may submit verifications with her fictitious name. We therefore grant the writ petition.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Shawna Doe was raped by Andrew Luster,*fn1 after he rendered her unconscious by the surreptitious administration of gamma hydroxyl butyrate (GHB).*fn2 In January 2003, Andrew Luster was convicted of over 80 counts of sex crimes, against Doe and other victims, and sentenced to 124 years in prison. In September 2003, Doe obtained a civil judgment against Andrew Luster, for sexual battery, for $19 million. Andrew Luster subsequently filed bankruptcy; Doe, however, obtained a ruling that her judgment was not dischargeable.

Doe came to believe that Andrew Luster, who was an heir to the Max Factor fortune, had transferred assets to his mother, Elizabeth Luster, in order to avoid paying Doe's judgment against him. On September 3, 2009, Doe filed the instant action against Elizabeth Luster (as trustee for the Elizabeth S. Luster Trust and other trusts); Luster Investments, L.P.; and Andrew Luster. She alleged a single cause of action for fraudulent transfers. Doe filed her complaint under a fictitious name in order to preserve her anonymity as one of Andrew Luster's rape victims. Both Andrew Luster and Elizabeth Luster moved to strike portions of Doe's complaint for, among other things, the use of a fictitious name in the absence of a prior court order. The trial court denied these motions.

Elizabeth Luster then proceeded to propound discovery requests to Doe, consisting of form interrogatories, special interrogatories, requests for admission, and demands for production of documents. Doe's responses to the discovery requests consisted largely of objections; some of Doe's objections (in response to interrogatories seeking her name and other personal information) raised her right of privacy. Verifications were not provided with any of her discovery responses.

The parties (and their respective attorneys) disagree on the subsequent course of events - each side blaming the other regarding aborted attempts to meet and confer, and disputing whether certain extensions were granted. Ultimately, Doe supplemented some of her discovery responses and provided verifications signed in the name of Shawna Doe. Elizabeth Luster filed motions to compel further responses to each of her discovery requests, and sought sanctions.

The motions to compel were granted in part and denied in part, with the trial court ordering Doe to supplement some, but not all, of the discovery responses at issue. Specifically, the trial court did not compel Doe to respond to discovery requests seeking her personal information. In all cases, however, Doe was ordered to provide verifications signed in her true name.*fn3 Although the trial court did not specifically explain its reasoning, it stated, "I allowed you to sue as a Doe. I understand the problems, but now we're talking about verification. She must answer and put her name." The trial court agreed that a protective order would issue with respect to the verifications, and directed Doe's counsel to prepare a draft protective order. Sanctions, in the total amount of $4,200, specifically allocated among the four motions to compel, were imposed against Doe and her counsel.

Doe filed a petition for writ of mandate challenging only: (1) that part of the trial court's discovery order that required her to provide verifications in her true name; and (2) the order imposing sanctions, to the extent it was based on Doe's failure to provide verifications in her true name. We stayed the discovery order and issued an order to show cause. We now grant the petition.

DISCUSSION

"Extraordinary review of a discovery order will be granted when a ruling threatens immediate harm, such as loss of a privilege against disclosure, for which there is no other adequate remedy. [Citation.] ' "We review discovery orders under the abuse of discretion standard, and where the petitioner seeks relief from a discovery order that may undermine a privilege, we review the trial court's order by way of extraordinary writ. [Citation.]" ' [Citation.]" (Zurich American Ins. Co. v. Superior Court (2007) 155 Cal.App.4th 1485, 1493.)

The precise issue of whether a plaintiff proceeding under a fictitious name must execute a verification in his or her own name was recently*fn4 resolved in Doe v. Lincoln Unified School Dist. (2010) 188 Cal.App.4th 758. There, the plaintiff filed a petition for writ of mandate in the trial court, and verified the petition using her fictitious name. When this was challenged in the Court of Appeal, the court stated, "Defendants contend a petition for writ of mandate must nevertheless be verified. Implicitly, they argue a petition verified using a fictitious name, as here, is not in fact verified. We disagree. For purposes of this litigation, plaintiff is using the name Jane Doe. Thus, for purposes of this litigation, plaintiff's verification of the ...


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