DOE v. LINCOLN UNIFIED SCHOOL DISTRICT (2010)

Plaintiff is a permanent certificated teacher employed by defendant Lincoln Unified School District (the District). After the District placed plaintiff on sick leave shortly after the start of the 2008-2009 school year due to concerns over her mental fitness, plaintiff initiated this action against the District, the District's governing board (the Board), and the District's superintendent, seeking a writ of mandate to compel the defendants to initiate proceedings under Education Code section 44942 (section 44942). Section 44942 provides a detailed procedure for determining if a teacher “is suffering from mental illness of such a degree as to render him or her incompetent to perform his or her duties.” (§ 44942, subd. (a).) Plaintiff filed the action under a fictitious name in order to protect her privacy.

While this matter was pending, the District initiated section 44942 proceedings and placed plaintiff on paid administrative leave, as required by that legislation.

The trial court concluded the District was required to initiate section 44942 proceedings before placing plaintiff on involuntary sick leave. The court issued a peremptory writ of mandate compelling defendants to pay plaintiff her full salary during the period she was forced to use sick leave credits and to reinstate any other accumulated benefits lost during that period. The court thereafter entered judgment accordingly.

Defendants appeal. They contend plaintiff had no standing to pursue this action under a fictitious name. They further contend the trial court erred in concluding they were required to initiate proceedings under section 44942 earlier than they actually did.

We conclude defendants' standing argument is not well taken and defendants forfeited any other argument they might have regarding plaintiff's use of a fictitious name. We further conclude that, while section 44942 is not mandatory in all cases where a school district suspects a certificated employee may be suffering from a mental illness, it is mandatory where the school district chooses to suspend or transfer a certificated employee due to mental illness. In this case, when the District chose to preclude plaintiff from reporting for work at the beginning of the 2008-2009 school year, it effectively suspended her, thereby requiring the District to initiate section 44942 proceedings. We therefore affirm the judgment of the trial court.

Facts and Proceedings

Plaintiff is a permanent certificated teacher who has been employed by the District at one of its elementary schools for a number of years. On Monday, March 17, 2008, plaintiff arrived for work 17 minutes after school began and appeared to be under the influence of alcohol. She was placed on paid administrative leave. On May 1, plaintiff's attorney wrote to the District denying that his client had been under the influence of alcohol on March 17. He explained that plaintiff had been taking a medication for depression and the dosage had recently been increased substantially. The attorney also explained plaintiff had suffered a series of tragic events over the past year. He asked that plaintiff remain on paid administrative leave for the remainder of the school year and the District agreed.

On August 5, 2008, the District received a report that plaintiff had arrived at the parking lot of a school where she had previously taught and, when approached by an office supervisor, indicated she could not find her current school. The supervisor thought plaintiff was joking but plaintiff insisted she was not. Plaintiff appeared disoriented. The supervisor gave her directions.

On August 13, the District wrote plaintiff a letter requesting that she provide a fitness for duty certificate before the start of the 2008-2009 school year. On August 15, plaintiff's attorney responded that plaintiff would not provide such a certificate and that the District must instead proceed in accordance with section 44942.

On August 18, the principal at plaintiff's school called plaintiff to schedule a meeting for the next day. Plaintiff said she had to speak with her attorney first. Forty minutes later, plaintiff called the principal but, during the call, kept referring to the principal as Ann, a recently retired teacher. Plaintiff agreed she and her union representative would meet with the District's director of human resources at 1:00 p.m. on August 22. However, at the scheduled time, the director and the union representative arrived, but not plaintiff. At approximately 2:05 p.m., plaintiff showed up at the office of the deputy superintendent of human resources and explained the union representative had told her the District's office was behind Lincoln High School and she kept driving around looking for it until she got lost. However, plaintiff had in fact been to the District office numerous times in the past and the union representative denied telling plaintiff the office was behind Lincoln High School.

On August 26, Plaintiff met with the assistant superintendent and informed him she was meeting with her physician the following week.

On August 27, the District's attorney wrote plaintiff's attorney offering to explore options other than section 44942.

Plaintiff was examined by her physician on September 3, and the results of that examination were expected the week of September 15. However, on September 16, plaintiff learned her physician had referred her for additional testing.

On September 17, the District's attorney wrote plaintiff's attorney explaining the District had agreed to keep plaintiff on administrative leave pending medical exam results, but two weeks had passed without plaintiff providing any such results. The attorney indicated that if she did not hear from plaintiff's attorney by September 19, she would recommend that plaintiff be placed on sick leave.

Plaintiff's attorney responded immediately, asserting: “This is in response to your letter dated September 17, 2008. I spoke to my client and she has been referred for additional testing. With that being the case, she is unable to make an informed decision on how she wishes to proceed. However, if your client is anxious to proceed, it must do so lawfully.” Plaintiff's attorney went on to explain that the District must initiate section 44942 proceedings.

On September 18, the District notified plaintiff she was being placed on sick leave.

On October 9, plaintiff filed the present action seeking a writ of mandate to compel defendants to initiate section 44942 proceedings.

By October 31, the District concluded section 44942 was the only logical option in light of plaintiff's refusal to provide a fitness for duty certificate. Plaintiff was served with a statement of charges and, on November 6, was suspended. Plaintiff was given the right to appear at the next Board hearing on November 12, but she failed to do so. The Board voted to continue her suspension and proceed under section 44942.

Before the District initiated section 44942 proceedings, plaintiff was forced to use nearly two months of sick leave credits.

The trial court ultimately granted plaintiff's petition. The court concluded defendants violated section 44942 by not initiating proceedings before placing plaintiff on sick leave. The court issued a peremptory writ of mandate requiring defendants to pay plaintiff her full salary during the period she was forced to use sick leave credits and to reinstate any other accumulated benefits lost during that period. The court thereafter entered judgment accordingly.

Discussion

IFictitious Name

Defendants contend plaintiff has no standing to sue under a fictitious name. Defendants argue state courts “have a process by which a plaintiff may protect his or her confidentiality, and that is by filing documents under seal” pursuant to California Rules of Court, rule 2.551.

The question here is not one of standing. Code of Civil Procedure section 367 states that “[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” Defendants contend this provision requires that a party sue in his or her own name. It does not. Notwithstanding its wording, this provision requires that an action be brought by the real party in interest. (Redevelopment Agency of San Diego v. San Diego Gas & Electric Co. (2003) 111 Cal.App.4th 912, 920, 4 Cal.Rptr.3d 317.) “ ‘A real party in interest ordinarily is defined as the person possessing the right sued upon by reason of the substantive law.’ [Citation.] A complaint filed by someone other than the real party in interest is subject to general demurrer on the ground that it fails to state a cause of action. [Citation.] The purpose of this section is to protect a defendant from harassment by other claimants on the same demand. [Citation.]” (Id. at pp. 920-921, 4 Cal.Rptr.3d 317.)

The question for purposes of standing is not the name used by the party suing but whether the party suing is the party possessing the right sued upon. In this matter, there is no question plaintiff is the party injured by virtue of defendants' actions and, therefore, she is the party possessing the right sued upon. Thus, the question is not whether plaintiff has standing to sue but whether she may do so using a fictitious name.

Plaintiff argues she “has the common law right to use any name she wants, without judicial approval,” citing Code of Civil Procedure section 1279.5 and Lee v. Superior Court (1992) 9 Cal.App.4th 510, 11 Cal.Rptr.2d 763. However, those authorities stand for the proposition that an individual has a common law right to change his or her name without the requirement of court approval. The question here is not whether plaintiff had the right to change her name to Jane Doe. She did not do so. Rather, she is attempting to use a pseudonym solely for the purpose of prosecuting this lawsuit.

Defendants argue “California state courts do not permit plaintiffs to sue under fictitious names.” However, defendants fail to cite a single state court decision in support. This is not surprising, since there have been countless published state court decisions where one or more of the parties have used fictitious names. For example, in Doe v. Saenz (2006) 140 Cal.App.4th 960, 45 Cal.Rptr.3d 126, three convicted felons were permitted to pursue legal actions under fictitious names challenging a decision by the Department of Social Services to classify their offenses as nonexemptible, thereby precluding them from working in licensed community care facilities. In Hooper v. Deukmejian (1981) 122 Cal.App.3d 987, 176 Cal.Rptr. 569, an individual convicted on a plea of maintaining a place for selling or using a narcotic was permitted to sue under a fictitious name on behalf of himself and all others similarly situated to determine whether they were entitled to the benefits and protections of marijuana reform legislation. In Jane Doe 8015 v. Superior Court (2007) 148 Cal.App.4th 489, 55 Cal.Rptr.3d 708, a patient of a clinical laboratory sued the laboratory after it was determined one of its phlebotomists had reused needles to draw blood and the plaintiff had acquired HIV as a result. In Doe v. Bakersfield City School District (2006) 136 Cal.App.4th 556, 39 Cal.Rptr.3d 79, a former student who alleged sexual abuse by a former guidance counselor was permitted to pursue his action under a fictitious name.

In Starbucks Corp. v. Superior Court (2008) 168 Cal.App.4th 1436, 86 Cal.Rptr.3d 482, the Court of Appeal noted: “The 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. (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 67 Cal.Rptr.3d 330, 169 P.3d 559 [former Boy Scouts sued under pseudonyms based on allegations that city police officer sexually assaulted them while they were teenagers]; Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1072, 95 Cal.Rptr.2d 864 [parents entitled to depose sperm donor with family history of kidney disease, but donor's name protected from disclosure to outsiders through an appropriate order ‘which maintains the confidentiality of John Doe's identity․’] .)” (Id. at p. 1452, fn. 7, 95 Cal.Rptr.2d 864.)

The United States Supreme Court has also implicitly endorsed the use of pseudonyms to protect a plaintiff's privacy. (See, e.g., Roe v. Wade (1973) 410 U.S. 113 [35 L.Ed.2d 147] [abortion]; Doe v. Bolton (1973) 410 U.S. 179 [35 L.Ed.2d 201] [abortion]; Poe v. Ullman (1961) 367 U.S. 497 [6 L.Ed.2d 989] [birth control].)

In Does I thru XXIII v. Advanced Textile Corp. (9th Cir.2000) 214 F.3d 1058, at page 1067, the Ninth Circuit Court of Appeal noted that federal courts “have permitted plaintiffs to use pseudonyms in three situations: (1) when identification creates a risk of retaliatory physical or mental harm [citations]; (2) when anonymity is necessary ‘to preserve privacy in a matter of sensitive and highly personal nature,’ [citations]; and (3) when the anonymous party is ‘compelled to admit [his or her] intention to engage in illegal conduct, thereby risking criminal prosecution,’ [citations].” (Id. at p. 1068.) The court went on to hold that “a party may preserve his or her anonymity in judicial proceedings in special circumstances when the party's need for anonymity outweighs prejudice to the opposing party and the public's interest in knowing the party's identity.” (Ibid.)

In the present matter, defendants have taken a blanket approach in arguing that fictitious names can never be used by a plaintiff. They have therefore presented no argument as to why the use of a pseudonym by plaintiff, a tenured teacher accused of being mentally unfit to teach, is inappropriate in this case.

“An appellate brief ‘should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.’ [Citation.] [¶] ․ This court is not inclined to act as counsel for ․ appellant and furnish a legal argument as to how the trial court's rulings ․ constituted an abuse of discretion.” (In re Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 1164, 238 Cal.Rptr. 12.) And while defendants do argue in their reply brief that federal cases permitting use of a fictitious name are inapposite, they still provide no reasoned basis for treating the present matter differently under California law.

Because defendants fail to present any argument as to why plaintiff should not have been permitted to use a fictitious name under the circumstances of this case, we need not consider the issue further.

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 petition using the name Jane Doe is appropriate. Any other rule would render the ability to use a fictitious name in the litigation meaningless.

II **

Disposition

The judgment is affirmed. Plaintiff is awarded her costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

HULL, J.