By Eric Ganci
Filing a lawsuit in California, or anywhere, requires big decisions. One decision may be if you file, you may need to put your actual name on file, for all the public to have access to. California Code of Civil Procedure § 422.40 says this: “The names of all parties to a civil action must be included in the complaint.” “That requirement extends to real parties in interest—anyone with a substantial interest in the subject matter of the action.” “The right of public access applies not only to criminal cases, but also to civil proceedings….”
But there are certain statutes which allow for someone to file suit under a pseudonym, but I’ll get to that in a bit.
Now, on to some new case law about this:
This 8/5/22 filed decision Department of Fair Employment and Housing v. Superior Court of Santa Clara County, cited as 82 Cal.App.5th 105, answers a new, novel legal question: which “standard…applies to determine whether a party may proceed anonymously absent specific statutory authorization.”
So, back to the statutes which allow you file with a pseudonym. Some examples are:
- Plaintiff in action for nonconsensual distribution of sexually explicit materials may proceed under pseudonym. Per California Civil Code § 1708.85(f)(1);
- Guardian ad litem litigating on behalf of a minor. Per California Civil Code § 372.5;
- Actions for interference with access to health care. Per California Civil Code § 3427.3
- Juvenile appeals. Per California Rules of Court, rule 8.401(a)
However, “[e]ven in the absence of a statute, anonymity for parties may be granted when necessary to preserve an important privacy interest.”
Here is the Court’s ruling whether you can file with a pseudonym when a statute does not say you can: “Before a party to a civil action can be permitted to use a pseudonym, the trial court must conduct a hearing and apply the overriding interest test: A party’s request for anonymity should be granted only if the court finds that an overriding interest will likely be prejudiced without use of a pseudonym, and that it is not feasible to protect the interest with less impact on the constitutional right of access. In deciding the issue the court must bear in mind the critical importance of the public’s right to access judicial proceedings.”
So, the Court can grant this, but only “under the rarest of circumstances.”
For this Department of Fair Employment and Housing case, one issue was whether a party’s family members in India would have their safety put at risk. The Court here says you must consider this: “Retaliatory harm to family members—wherever they are located—is precisely the kind of interest that may justify allowing a party to litigate under a pseudonym.” And “[t]he fact that the family members are geographically distant does not render the concern irrelevant as a threshold matter.”
So, in addition to the rule this case now gives, the Court also gives this factor to consider: “the likelihood of harm to the identified family members and how severe the harm would be.”
