Case 2:14-cv-03530-DDP-AJW Document 23 Filed 07/03/14 Page 1 of 26 Page ID #:89 1 2 3 4 5 6 7 8 MARTIN D. SINGER (SBN 78166) PAUL N. SORRELL (SBN 126346) ANDREW B. BRETTLER (SBN 262928) LAVELY & SINGER PROFESSIONAL CORPORATION 2049 Century Park East, Suite 2400 Los Angeles, California 90067-2906 Telephone: (310) 556-3501 Facsimile: (310) 556-3615 E-Mail: mdsinger@lavelysinger.com psorrell@lavelysinger.com abrettler@lavelysinger.com Attorneys for Defendant BRYAN SINGER 9 10 UNITED STATES DISTRICT COURT 11 CENTRAL DISTRICT OF CALIFORNIA 12 13 14 15 16 17 18 19 JOHN DOE NO. 117, ) ) Plaintiff, ) ) -vs) ) BRYAN SINGER and ) GARY GODDARD, ) ) Defendants. ) ) ) ) ____________________________ ) 20 21 Case No. LA CV14-03530-DDP (AJWx) NOTICE OF MOTION AND MOTION OF DEFENDANT BRYAN SINGER TO DISMISS PURSUANT TO F.R.C.P. RULE 12(b)(6) [Declaration of Martin D. Singer, Request for Judicial Notice, and Proposed Order Filed Concurrently Herewith] Date: Time: Judge: Courtroom: August 18, 2014 10:00 a.m. Hon.nd Dean D. Pregerson 3 (2 Floor) Complaint Filed: May 7, 2014 Trial Date: None 22 23 24 25 26 27 28 1793-27\MTN TO DISMISS 070314 _________________________________ MOTION TO DISMISS Case 2:14-cv-03530-DDP-AJW Document 23 Filed 07/03/14 Page 2 of 26 Page ID #:90 1 2 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN: 3 PLEASE TAKE NOTICE that on August 18, 2014, at 10:00 a.m. in 4 Courtroom 3 (2nd Floor) of the United States District Court for the Central District 5 of California, located at 312 North Spring Street, Los Angeles, California 90012, 6 before the Honorable Dean D. Pregerson, United States District Court Judge, there 7 will be a hearing on the Motion of Defendant Bryan Singer (“Singer”) to dismiss 8 this case pursuant to Federal Rules of Civil Procedure, Rule 12(b)(6), on the 9 following grounds: 10 1. This action was improperly filed by Plaintiff using the fictitious 11 name, “John Doe No. 117” (“Doe”), notwithstanding that Doe failed to obtain the 12 requisite leave of Court prior to filing anonymously. 13 2. This case is not appropriately brought on behalf of a “Doe” plaintiff 14 because this is not an “exceptional case” in which filing under a pseudonym is 15 permitted, and such filing prejudices Singer’s ability to prepare and present their 16 defense and interferes with the public’s right of access to judicial proceedings. 17 3. With respect to Count IV, there is no remedy available to Doe 18 pursuant to the Alien Tort Statute (28 U.S.C. § 1350) because there is no alleged 19 state action or private action involving the kind of wrongdoing that is actionable 20 under that statute, namely, violation of an international treaty or violation of the 21 law of nations. 22 4. Count V, based on alleged travel to a foreign country for illicit 23 conduct with a minor, fails to state a claim because Doe fails to allege specific 24 facts indicating that Singer traveled to the United Kingdom for the purpose of 25 engaging in any illicit sexual conduct with Doe. 26 5. Count VI, based on alleged meeting with a minor to engage in lewd 27 and lascivious behavior, fails to state a claim because Doe does not plead facts 28 alleging that Singer arranged to meet Doe in the United Kingdom. In addition, _________________________________ 1793-27\MTN TO DISMISS 070314 1 MOTION TO DISMISS Case 2:14-cv-03530-DDP-AJW Document 23 Filed 07/03/14 Page 3 of 26 Page ID #:91 1 Doe acknowleges that he was not a minor under the laws of the United Kingdom 2 where the alleged wrongdoing occurred. 3 6. Count VII, for alleged gender violence, fails to state a claim because 4 it is barred by the applicable 3-year statute of limitations, and there is no allegation 5 that Singer’s alleged conduct was motivated by gender. 6 This Motion is brought pursuant to Federal Rules of Civil Procedure, 7 Rule 12(b)(6) and other applicable law. The Motion will be made and based on 8 this Notice, the attached Memorandum of Points and Authorities, and the 9 Declaration of Martin D. Singer and the Proposed Order, filed concurrently 10 herewith, as well as any additional evidence and argument that may be presented 11 in connection with the Motion. 12 13 This Motion is made following the conference of counsel pursuant to L.R. 7-3 which took place on May 19, 2014. 14 15 DATED: July 3, 2014 16 17 LAVELY & SINGER PROFESSIONAL CORPORATION MARTIN D. SINGER PAUL N. SORRELL ANDREW B. BRETTLER 18 By: /s/ MARTIN D. SINGER Attorneys for Defendant BRYAN SINGER 19 20 21 22 23 24 25 26 27 28 _________________________________ 1793-27\MTN TO DISMISS 070314 2 MOTION TO DISMISS Case 2:14-cv-03530-DDP-AJW Document 23 Filed 07/03/14 Page 4 of 26 Page ID #:92 TABLE OF CONTENTS 1 2 Page(s) 3 MEMORANDUM OF POINTS AND AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . 1 4 I. PRELIMINARY STATEMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5 II. THIS CASE SHOULD BE DISMISSED BASED ON ITS FILING UNDER A PSEUDONYM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 6 7 A. Doe Failed To Obtain the Requisite Leave of Court... . . . . . . . . . . . . 4 B. There Is No “Exceptional Case” Here That Would Allow Filing This Case Under a Pseudonym.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 8 III. COUNT IV FOR ALLEGED VIOLATION OF THE LAW OF NATIONS UNDER THE ALIEN TORT STATUTE FAILS TO STATE A CLAIM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 IV. COUNT V, BASED ON ALLEGED TRAVEL TO FOREIGN COUNTRY FOR ILLICIT CONDUCT WITH A MINOR, FAILS TO STATE A CLAIM.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 V. 14 COUNT VI, BASED ON ALLEGED MEETING WITH A MINOR TO ENGAGE IN LEWD AND LASCIVIOUS BEHAVIOR, FAILS TO STATE A CLAIM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 15 A. Doe Fails to Include Any Factual Allegations that Singer Arranged A Meeting With Him.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 B. California’s Choice of Law Principles Indicate that English Law Applies and Therefore Doe’s Claim Fails Because He Was Not a Minor.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 C. English Law Dictates that Doe’s Claim Fails Because It Is Time-Barred.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 9 10 11 12 13 16 17 18 19 20 VI. COUNT VII FOR ALLEGED GENDER VIOLENCE IS TIME-BARRED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 21 22 VII. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 23 24 25 26 27 28 _________________________________ 1793-27\MTN TO DISMISS 070314 i MOTION TO DISMISS Case 2:14-cv-03530-DDP-AJW Document 23 Filed 07/03/14 Page 5 of 26 Page ID #:93 TABLE OF AUTHORITIES 1 Page(s) 2 3 CASES 4 Bowoto v. Chevron Corp. 2006 WL 2455752 (N.D. Cal. Aug. 22, 2006). . . . . . . . . . . . . . . . . . . . . . 10 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Cisneros v. Aragon 485 F.3d 1226 (10th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Cohen v. Hartman 634 F.2d 318 (5th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Doe v. Bell Atl. Bus. Sys. 162 F.R.D. 418 (D. Mass. 1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Doe v. Hallock 119 F.R.D. 640 (S.D. Miss. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Doe v. Kamehameha Schs./Bernice Pauahi Bishop Estate 596 F.3d 1036 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7 Doe v. Shakur 164 F.R.D. 359 (S.D.N.Y. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5, 6 Doe I v. Unocal Corp. 395 F.3d 932 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Doe v. Unocal Corp. 395 F.3d 978 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Doe v. Univ. of R.I. 1993 WL 667341 (D.R.I. Dec. 28, 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Does I– XXIII v. Advanced Textile Corp. 214 F.3d 1058 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Estate of Darulis v. Garate 401 F.3d 1060 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Femedeer v. Haun 227 F.3d 1244 (10th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Flomo v. Firestone Nat’l Rubber Co. 643 F.3d 1013 (7th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Guerrilla Girls, Inc. v. Kaz 224 F.R.D. 571 (S.D.N.Y. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Guzman-Martinez v. Corr. Corp. of Am. 2012 WL 2873835 (D. Ariz. July 13, 2012) . . . . . . . . . . . . . . . . 8, 10, 11, 12 28 _________________________________ 1793-27\MTN TO DISMISS 070314 ii MOTION TO DISMISS Case 2:14-cv-03530-DDP-AJW Document 23 Filed 07/03/14 Page 6 of 26 Page ID #:94 1 CASES (cont’d) 2 In re XE Servs. Alien Tort Litig. 665 F. Supp. 2d 569 (E.D. Va. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Page(s) Jama v. U. S. Immigration & Naturalization Services 22 F. Supp. 2d 353 (D.N.J. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 James v. Jacobson 6 F.3d 233 (4th Cir. 1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 McCann v. Foster Wheeler, LLC 48 Cal. 4th 68 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15 McGhee v. Arabian Am. Oil Co. 871 F.2d 1412 (9th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Nat’l Commodity & Barter Ass’n v. Gibbs 886 F.2d 1240 (10th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Paracor Fin., Inc. v. Gen. Elec. Capital Corp. 96 F.3d 1151 (9th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 S. Methodist Univ., v. Wynne & Jaffe 599 F.2d 707 (5th Cir. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Sealed Plaintiff v. Sealed Defendant 537 F.3d 185 (2d Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Sosa v. Alvarez-Machain 542 U.S. 692 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 Tel-Oren v. Libyan Arab Republic 726 F.2d 774 (D.C. Cir. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 United States v. Hayward 359 F.3d 631 (3d Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 W.N.J. v. Yocom 257 F.3d 1171 (10th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 21 22 FEDERAL STATUTES 23 18 U.S.C. § 2255 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 24 18 U.S.C. § 2423 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 25 28 U.S.C. § 1350. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8, 9, 11 26 FRCP Rule 10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 27 FRCP Rule 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 4, 19 28 FRCP Rule 17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 _________________________________ 1793-27\MTN TO DISMISS 070314 iii MOTION TO DISMISS Case 2:14-cv-03530-DDP-AJW Document 23 Filed 07/03/14 Page 7 of 26 Page ID #:95 1 STATE STATUTES 2 California Civil Code § 52.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 17, 18 3 California Civil Code § 3523. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 4 California Code Civ. Proc. § 361. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 5 California Penal Code § 288.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 16 6 OTHER AUTHORITIES 7 8 9 Cal. Prac. Guide Civ. Pro. Trial Claims and Def. Ch. 2(VII)-A[2:771]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 10 Rutter Guide, Federal Civil Procedure Before Trial § 8:587.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 11 Limitation Act 1980, Ch.58, S.11(4) (Eng.).. . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18 12 Sexual Offences Act 2003, Ch. 42, s. 9 (Eng.). . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _________________________________ 1793-27\MTN TO DISMISS 070314 iv MOTION TO DISMISS Case 2:14-cv-03530-DDP-AJW Document 23 Filed 07/03/14 Page 8 of 26 Page ID #:96 MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 I. PRELIMINARY STATEMENT This action was improperly filed on behalf of a “John Doe” plaintiff, without 4 5 the requisite leave of Court and absent the factual circumstances needed to obtain 6 such leave. In addition, Counts IV, V, VI and VII fail to allege facts setting forth 7 the elements of the legal claims Plaintiff John Doe No. 117 (“Doe”) purports to 8 assert against Defendant Bryan Singer (“Singer”). Therefore, the Complaint is 9 fatally deficient and should be dismissed pursuant to Federal Rule of Civil 10 Procedure 12(b)(6).1 As discussed in further detail below, this action is subject to dismissal under 11 12 Rule 12(b)(6) on multiple grounds: • 13 Plaintiff has filed this action as a fictitious “John Doe” without 14 obtaining leave of court. Leave of court is always required before filing a pleading 15 on behalf of an anonymous plaintiff. For this reason alone, the case must be 16 dismissed. • 17 Separate and apart from the failure to obtain leave of court, there is 18 no legitimate basis for filing this action under a pseudonym. None of the 19 overwhelming privacy concerns that have led courts in certain “exceptional cases” 20 to permit a plaintiff to file under a fictitious name are present here. Typically, 21 courts have permitted a plaintiff to proceed anonymously only where highly 22 sensitive and personal issues are raised such as those involving birth control, 23 abortion, or welfare rights of illegitimate children or abandoned families, where the 24 plaintiff in filing the action is also required to admit violation of laws or 25 government regulations or a desire to engage in prohibited conduct. 26 27 28 Singer has not been served with the Summons and Complaint. Nevertheless, he is appearing in the action to file this Motion To Dismiss. 1 _________________________________ 1793-27\MTN TO DISMISS 070314 1 MOTION TO DISMISS Case 2:14-cv-03530-DDP-AJW Document 23 Filed 07/03/14 Page 9 of 26 Page ID #:97 1 The failure to identify Doe by his real name significantly prejudices Singer’s 2 ability to prepare and present an appropriate defense. Singer is hamstrung in his 3 ability to discover witnesses who will come forward voluntarily if Doe’s identity is 4 made public, and/or conduct an investigation to discover other witnesses and 5 documents and ferret out the truth. As a result, Singer is at a serious disadvantage 6 by being publicly accused of outrageous conduct and required to defend himself 7 while Doe makes horrific accusations from behind a cloak of anonymity. Basic 8 fairness dictates that plaintiffs who publicly accuse defendants of serious 9 misconduct sue in their real names. Filing this action under a pseudonym also 10 11 interferes with the public’s right of access to judicial proceedings. Although courts in “exceptional cases” may allow a plaintiff to file an action 12 as a “John Doe,” there are no privacy rights at issue here that outweigh Singer’s 13 right to investigate the claims and prepare a defense, or the public’s right of access 14 to judicial proceedings. Doe is not a minor now, nor was he a minor under the laws 15 of the jurisdiction in which the alleged wrongful conduct occurred at the time of 16 such alleged conduct. Moreover, Doe is not alleging a highly sensitive issue 17 involving birth control, abortion, or welfare rights of illegitimate children or 18 abandoned families, nor is there any suggestion that Doe potentially violated laws 19 or regulations or desires to engage in prohibited conduct. 20 • The allegations of Count IV fail to state facts sufficient to afford 21 Doe a remedy under the Alien Tort Statute, 28 U.S.C. § 1350. Specifically, the 22 allegations of the Complaint fail to present a matter of consequence in international 23 affairs. 24 • Count V, on its face, fails to allege specific facts indicating that 25 Singer traveled to the United Kingdom for the purpose of engaging in any illicit 26 sexual conduct with Doe. There is no specific allegation that Singer planned, 27 arranged, or even contemplated a sexual encounter with Doe prior to arriving in 28 _________________________________ 1793-27\MTN TO DISMISS 070314 2 MOTION TO DISMISS Case 2:14-cv-03530-DDP-AJW Document 23 Filed 07/03/14 Page 10 of 26 Page ID #:98 1 London. Any alleged encounter with Doe was merely incidental to the sole 2 purpose of Singer’s trip to the United Kingdom—to attend his movie premiere. • 3 Count VI on its face fails to allege specific facts which indicate that 4 Singer arranged to meet with Doe in the United Kingdom. Count VI also fails to 5 allege a key element of the claim: involvement of a minor. Although Doe alleges 6 that Singer sought to meet with a minor to engage in lewd and lascivious behavior, 7 there was no minor actually involved. Doe was over the age of consent at the time 8 of the alleged wrongful conduct according to the applicable laws of the United 9 Kingdom. In addition, Doe’s claim is time-barred due to the applicable three year 10 statute of limitations period under UK law. • 11 Count VII, for alleged “gender violence,” also fails. This Count is 12 barred by the applicable three-year statute of limitations in Civil Code § 52.4 and 13 Doe fails to allege any facts indicating Singer’s actions were motivated by Doe’s 14 gender. As set forth below, the Court should dismiss this entire action pursuant to 15 16 Rule 12(b)(6) based on the filing of this action under a pseudonym. If the Court is 17 for any reason inclined not to dismiss the action on that basis, Counts IV, V, VI and 18 VII should be dismissed for failure to state a claim. Further, if the Court permits 19 Doe to proceed on any of his claims, he must post an undertaking in the amount of 20 $300,000 to secure costs, as requested in Singer’s Motion for an Undertaking also 21 filed today. 22 II. THIS CASE SHOULD BE DISMISSED BASED ON ITS FILING 23 UNDER A PSEUDONYM 24 Doe is attempting to proceed under a pseudonym in violation of the federal 25 rules requiring leave of court to do so. Even if leave had been timely sought, it 26 could not be granted under the circumstances here. Accordingly, the Complaint 27 must be dismissed pursuant to Rule 12(b)(6) because Doe lacks the capacity to sue 28 using a fictitious name. _________________________________ 1793-27\MTN TO DISMISS 070314 3 MOTION TO DISMISS Case 2:14-cv-03530-DDP-AJW Document 23 Filed 07/03/14 Page 11 of 26 Page ID #:99 1 A. Doe Failed To Obtain the Requisite Leave of Court. 2 Under Rule 10(a) of the Federal Rules of Civil Procedure, a complaint must 3 name all of the parties. Rule 17(a) further provides that every action shall be 4 prosecuted in the name of the real party-in-interest. 5 The intent of the rule requiring disclosure of a plaintiff’s identity “is to 6 provide all parties with the identities of their adversaries, as well as to protect the 7 public’s legitimate interest in knowing the facts at issue in court proceedings.” 8 Guerrilla Girls, Inc. v. Kaz, 224 F.R.D. 571, 573 (S.D.N.Y. 2004). Although, as 9 discussed below, in an “exceptional case” a plaintiff may be permitted to proceed 10 under a fictitious name where the court determines plaintiff’s privacy right 11 outweighs (a) the defendant’s right to know the identities of his adversary in order 12 to prepare a defense, and (b) the public’s right of access to judicial proceedings, 13 such pleadings are clearly disfavored. Doe v. Kamehameha Schs./Bernice Pauahi 14 Bishop Estate, 596 F.3d 1036, 1042 (9th Cir. 2010) (“this presumption is loosely 15 related to the public’s right to open courts . . . and the right of private individuals to 16 confront their accusers”). 17 When a party wishes to file a case anonymously or under a pseudonym, he 18 must first petition the district court for permission to do so. W.N.J. v. Yocom, 257 19 F.3d 1171, 1172 (10th Cir. 2001); Rutter Guide, Federal Civil Procedure Before 20 Trial, § 8:587. 21 Here, there is no indication, nor has Singer received any notice, that leave of 22 Court to proceed as a “John Doe” plaintiff was sought from this Court. For that 23 reason alone, Doe is proceeding in violation of the Federal Rules of Civil 24 Procedure and his lawsuit should be dismissed. Where no permission is granted, 25 “the federal courts lack jurisdiction over the unnamed parties, as a case has not 26 been commenced with respect to them.” Nat’l Commodity & Barter Ass’n v. 27 Gibbs, 886 F.2d 1240, 1245 (10th Cir. 1989). 28 _________________________________ 1793-27\MTN TO DISMISS 070314 4 MOTION TO DISMISS Case 2:14-cv-03530-DDP-AJW Document 23 Filed 07/03/14 Page 12 of 26 Page ID #:100 1 2 B. There Is No “Exceptional Case” Here That Would Allow Filing This Case Under a Pseudonym. 3 Even where a request is timely made, the court must determine, in its 4 discretion, that an “exceptional case” is involved in order to grant a plaintiff leave 5 to proceed under a fictitious name. Factors considered by the court in making this 6 determination include the severity of the threatened harm; the reasonableness of 7 plaintiff’s fears; plaintiff’s vulnerability to harm or retaliation; whether the 8 proceedings can be structured to avoid any prejudice to defendant in allowing 9 plaintiff to proceed anonymously; and whether the public’s interest in the case 10 would be best served by requiring that the litigants reveal their identities. Does I– 11 XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000). Additional 12 factors a court may consider include the age of the person whose identity is sought 13 to be protected; whether the action is against a private party or the government; and 14 whether non-disclosure of plaintiff’s identity would be unfair to the opposing party. 15 James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993); Sealed Plaintiff v. Sealed 16 Defendant, 537 F.3d 185, 190 (2d Cir. 2008). 17 In Doe v. Shakur, 164 F.R.D. 359 (S.D.N.Y. 1996), the court refused to 18 permit a plaintiff seeking damages based upon an alleged sexual assault by Tupac 19 Shakur and Charles Fuller to proceed under a pseudonym. Although the court 20 noted that plaintiff alleged that she was the victim of a brutal sexual assault and 21 therefore did not want to be publicly identified, her privacy concerns were 22 outweighed by other considerations. Among the considerations militating against 23 plaintiff’s request to proceed anonymously was the fact that plaintiff choose to 24 bring the lawsuit making serious charges and putting her credibility at issue, and 25 fairness required that she be prepared to stand behind those charges publicly; 26 plaintiff was only suing civilly to vindicate primarily her own interests, unlike a 27 criminal case where rape shield laws might provide anonymity to encourage 28 victims to testify to vindicate the public’s interest; Shakur had been publicly _________________________________ 1793-27\MTN TO DISMISS 070314 5 MOTION TO DISMISS Case 2:14-cv-03530-DDP-AJW Document 23 Filed 07/03/14 Page 13 of 26 Page ID #:101 1 accused and would be placed at a serious disadvantage by being required to defend 2 himself publicly while plaintiff could make her accusations from behind a cloak of 3 anonymity, and basic fairness dictates that plaintiffs who publicly accuse 4 defendants sue in their real names; and the public has a strong right of access to the 5 courts. Id. at 361. 6 The Shakur court noted that various other courts faced with a request by a 7 victim of sexual assault seeking to prosecute a civil case under a pseudonym 8 likewise concluded that the plaintiff was not entitled to do so. See, e.g., Doe v. 9 Bell Atl. Bus. Sys., 162 F.R.D. 418, 422 (D. Mass. 1995) (plaintiff alleging 10 possible HIV infection as a result of an alleged sexual assault by her supervisor not 11 permitted to proceed under a pseudonym, notwithstanding fears of “intense 12 embarrassment and shame within her community”); Doe v. Hallock, 119 F.R.D. 13 640, 641–42 (S.D. Miss. 1987) (plaintiff alleging sexual harassment, assault and 14 battery not permitted to proceed under a pseudonym); and Doe v. Univ. of R.I., 15 Civ. A. No. 93-0560B, 1993 WL 667341, at *3 (D.R.I. Dec. 28, 1993) (student 16 who was sexually assaulted allegedly as a result of University’s negligence not 17 permitted to proceed under a pseudonym despite claims of danger of personal 18 embarrassment and ridicule). 19 Indeed, it has been suggested by courts considering the issue that it is not 20 appropriate for a plaintiff to proceed anonymously unless (1) there are highly 21 sensitive and highly personal issues raised such as birth control, abortion, 22 homosexuality or the welfare rights of illegitimate children or abandoned families, 23 and (2) the plaintiff is required to admit that he or she either violated state laws or 24 government regulations or wishes to engage in prohibited conduct. Hallock, 119 25 F.R.D. at 641-43; S. Methodist Univ., v. Wynne & Jaffe, 599 F.2d 707, 712–13 26 (5th Cir. 1979). 27 28 None of the factors that courts traditionally consider as sufficient to permit a plaintiff to proceed in an anonymous fashion is present here. Furthermore, in this _________________________________ 1793-27\MTN TO DISMISS 070314 6 MOTION TO DISMISS Case 2:14-cv-03530-DDP-AJW Document 23 Filed 07/03/14 Page 14 of 26 Page ID #:102 1 case it would be manifestly unfair to defendants—in addition to unduly restricting 2 the public’s right of access to court proceedings—to permit Doe to proceed using a 3 pseudonym. 4 Here, Doe is not a minor. The Complaint alleges certain actions that took 5 place beginning in 2006 when he was at least 17 years old. (See, e.g., Compl. 6 ¶ 68.) The age of consent in the United Kingdom is 16 years of age. (See Request 7 for Judicial Notice, filed concurrently herewith.) Reviewing the Complaint in the 8 context of these allegations, this means that Doe is now at least 25 years old. 9 (M. Singer Decl. ¶ 3.) There is no reasonable fear that Doe will suffer the kind of 10 severe harm that courts require in order to grant leave to proceed on an anonymous 11 basis, nor is this adult plaintiff particularly vulnerable to harm or retaliation that 12 may result from having to reveal his identity. 13 Conversely, the inability to publicize Doe’s true identity severely hampers 14 Singer’s ability to learn the truth. Singer expects that many witnesses will come 15 forward once Doe’s identity is publicly revealed. Another case recently filed by 16 the same counsel on behalf of Michael F. Egan, III (“Egan”), another plaintiff who 17 sued Singer in the U.S. District Court for the District of Hawaii, previously resulted 18 in multiple witnesses coming forward. (M. Singer Decl. ¶ 2.) These witnesses 19 have revealed significant information pertaining to the merits of Egan’s case, and 20 disclosed significant information that was used to contradict Egan’s claims and 21 significantly attack Egan’s credibility. (Id.) In part because of these witnesses 22 coming forward, Singer was able to file a motion for summary judgment in the 23 Egan action. Proceeding anonymously here prevents Singer from investigating and 24 presenting an appropriate defense or testing Doe’s credibility. Singer is at a 25 distinct disadvantage by allowing Doe to proceed without having to “accept the 26 public scrutiny that is an inherent part of public trials.” Femedeer v. Haun, 227 27 F.3d 1244, 1246 (10th Cir. 2000); Kamehameha Schs., 596 F.3d at 1042. 28 _________________________________ 1793-27\MTN TO DISMISS 070314 7 MOTION TO DISMISS Case 2:14-cv-03530-DDP-AJW Document 23 Filed 07/03/14 Page 15 of 26 Page ID #:103 1 III. COUNT IV FOR ALLEGED VIOLATION OF THE LAW OF 2 NATIONS UNDER THE ALIEN TORT STATUTE FAILS TO STATE 3 A CLAIM 4 In Count IV, Doe alleges a claim against Singer under the Alien Tort Statute, 5 28 U.S.C. § 1350 (the “ATS”). However, because Doe’s allegations involve an 6 isolated incident and do not present allegations of wrongful conduct that affects 7 serious consequences in international affairs, commonly referred to as a violation 8 of the law of nations, the conduct alleged is simply not actionable under the ATS. 9 The ATS provides district courts with “original jurisdiction over any civil 10 action by an alien for a tort only, committed in violation of the law of the nations or 11 a treaty of the United States.” 28 U.S.C. § 1350. “As used in § 1350, the law of 12 the nations is synonymous with ‘customary international law’ and refers to ‘a norm 13 that is specific, universal, and obligatory.’” Guzman-Martinez v. Corr. Corp. of 14 Am., No. CV 11-02390-PHX-NVW, 2012 WL 2873835, at *11 (D. Ariz. July 13, 15 2012) (citing Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 738 (9th Cir. 16 2008). “Violations of customary international law are violations that all countries 17 are deemed to have a legal obligation to take appropriate action against.” Flomo v. 18 Firestone Nat’l Rubber Co., 643 F.3d 1013, 1019 (7th Cir. 2011). 19 The ATS does not create a statutory cause of action for aliens, but enables 20 federal courts “to hear claims in a very limited category defined by the law of 21 nations and recognized at common law.” Sosa v. Alvarez-Machain, 542 U.S. 692, 22 712 (2004). The statute is a jurisdictional statute, in that it only addresses the 23 power of courts to entertain certain claims and does not create a statutory cause of 24 action for aliens. Id. at 714. 25 The statute likely was originally intended to address only violations of safe 26 conducts, infringement of ambassadors’ rights, and piracy—a narrow set of 27 violations of the law of nations, admitting of a judicial remedy and at the same time 28 threatening serious consequences in international affairs. Id. at 715. Courts are _________________________________ 1793-27\MTN TO DISMISS 070314 8 MOTION TO DISMISS Case 2:14-cv-03530-DDP-AJW Document 23 Filed 07/03/14 Page 16 of 26 Page ID #:104 1 directed to exercise restraint in their discretion to consider new causes of action 2 beyond the original three contemplated under § 1350. Id. at 725. “[C]ourts should 3 require any claim based on present-day law of nations to rest on a norm of 4 international character accepted by the civilized world and defined with a 5 specificity comparable to the features of the 18th-century paradigms we have 6 recognized.” Id. Under § 1350, “federal courts should not recognize private claims 7 under federal common law for violations of any international law norm with less 8 definite content and acceptance among civilized nations than the historical 9 paradigms familiar when § 1350 was enacted.” Id. at 732. “And the determination 10 whether a norm is sufficiently definite to support a cause of action should (and, 11 indeed, inevitably must) involve an element of judgment about the practical 12 consequences of making that cause available to litigants in the federal courts.” Id. 13 at 732–33. 14 “Offenses against the law [of nations] are principally incident to whole states 15 or nations, and not individuals seeking relief in court.” Id. at 720 (emphasis 16 added). “If a controversy existing between individuals neither involves 17 international relations nor impinges upon a nation’s exercise of its sovereignty, 18 jurisdiction will not lie under 28 U.S.C. § 1350. Thus, while every nation may 19 have laws penalizing the tortious conversion of the property of another person, the 20 rule against such conduct is no part of the “law of nations” and a cause of action 21 based on violation of the rule does not satisfy the jurisdictional requirements of 28 22 U.S.C. § 1350.” Cohen v. Hartman, 634 F.2d 318, 319 (5th Cir. 1981) (affirming 23 dismissal of conversion claim brought under the ATS for lack of subject matter 24 jurisdiction). 25 Typically, the ATS has imposed liability on state actors or those acting on 26 behalf of the government. However, there have been several cases which have 27 applied ATS liability to private individuals and corporations. But the imposition of 28 liability on private parties is extremely limited. Alleged atrocities are actionable _________________________________ 1793-27\MTN TO DISMISS 070314 9 MOTION TO DISMISS Case 2:14-cv-03530-DDP-AJW Document 23 Filed 07/03/14 Page 17 of 26 Page ID #:105 1 under the Alien Tort Act, without regard to state action, “to the extent that they 2 were committed in pursuit of genocide or war crimes.” Bowoto v. Chevron Corp., 3 No. C 99-02506 SI, 2006 WL 2455752, at *10 (N.D. Cal. Aug. 22, 2006) (citing 4 Kadic v. Karadzic, 70 F.3d 232, 244 (2d Cir. 1995) (state action not required for 5 the acts of murder, rape, and torture which allegedly occurred in furtherance of a 6 forced labor program)); In re XE Servs. Alien Tort Litig., 665 F. Supp. 2d 569, 585 7 (E.D. Va. 2009). In his concurrence in Tel-Oren v. Libyan Arab Republic, 726 8 F.2d 774 (D.C. Cir. 1984), Judge Edwards observed that “while most crimes 9 require state action for [ATCA] liability to attach, there are a ‘handful of crimes,’ 10 including slave trading, ‘to which the law of nations attributes individual liability,’ 11 such that state action is not required.” Doe I v. Unocal Corp., 395 F.3d 932, 12 945-46 (9th Cir. 2002), vacated by Doe v. Unocal Corp., 395 F.3d 978 (9th Cir. 13 2003) (citing Tel-Oren, 726 F.2d at 794–95 (Edwards, J., concurring)). The 14 Second Circuit has noted that “although ‘acts of rape, torture, and summary 15 execution,’ like most crimes, ‘are proscribed by international law only when 16 committed by state officials or under color of law’ to the extent that they were 17 committed in isolation, these crimes are actionable under the Alien Tort [Claims] 18 Act, without regard to state action, to the extent that they were committed in pursuit 19 of genocide or war crimes.” Unocal Corp., 395 F.3d at 945-46 (citing Kadic, 70 20 F.3d at 243-44). 21 In a 2012 case, a transgender inmate was subjected to offensive treatment in 22 custody by a guard that “forced Plaintiff to watch him masturbate into a styrofoam 23 cup and then demanded that she ingest his ejaculated semen.” Guzman-Martinez, 24 2012 WL 2873835, at *3. The guard threatened that he could have plaintiff locked 25 up in a hole, lengthen her detention, or have her deported to Mexico if she did not 26 comply with his demands. Id. Other conduct included grabbing the plaintiff’s 27 breast, slapping her buttocks, and making sexual gestures. Id. The court ruled that 28 the claims based on this outrageous conduct were not actionable under the ATS. _________________________________ 1793-27\MTN TO DISMISS 070314 10 MOTION TO DISMISS Case 2:14-cv-03530-DDP-AJW Document 23 Filed 07/03/14 Page 18 of 26 Page ID #:106 1 The court reasoned as follows: “Although sexual abuse in general may be 2 universally condemned as cruel, the sexual abuse alleged here is not actionable 3 under § 1350 because the specific conduct does not meet an internationally 4 accepted definition of sexual abuse and does not threaten serious consequences in 5 international affairs.” Id. (emphasis added). The Court went on to distinguish 6 Jama v. U. S. Immigration & Naturalization Services, 22 F. Supp. 2d 353, 359 7 (D.N.J. 1998) in its reasoning—a case which found conduct of sexual abuse 8 actionable under § 1350—stating that: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 the alleged sexual abuse [in Jama] included inappropriate touching of both male and female plaintiffs, seeking sexual favors from female plaintiffs, and refusing female plaintiffs the use of telephones to contact their lawyers unless they submitted to sexual assaults. However, the district court did not base its finding that the alleged mistreatment violated customary international law on the allegations of sexual abuse alone. Rather, it concluded that customary international law was violated by the totality of the treatment to which plaintiffs were subjected, which it described as: “Every moment of plaintiffs’ detention was filled with abuse.” [Guzman-Martinez citing Jama] at 358. The Jama plaintiffs were deprived of sleep by bright lights 24 hours a day and guards taunting them to stay awake. They were packed into crowded, filthy dormitories and forced to eat meals inches away from bathroom areas. They were beaten, shamed, and deprived of clothing and personal hygiene necessities. They were served spoiled food and insufficient amounts. Guards regularly locked plaintiffs in solitary confinement cells without warning, explanation, or hearing, for several days to several months. Guards often shackled plaintiffs to their beds. Guards performed strip searches and body cavity searches in a manner designed to degrade and humiliate plaintiffs. In searching male plaintiffs’ genital areas, the guards forcefully yanked plaintiffs’ genitals causing severe pain. Id. at 358–59. Such circumstances are not alleged here. Moreover, the law of nations, particularly the subset of that law enforceable under [§ 1350], does not include a norm simply because the norm is enshrined in the domestic law of all civilized societies. Auto theft is not a violation of international law. As the Supreme Court said in Sosa, the drafters of [§ 1350] probably had in mind only rules of international law regulating the conduct of individuals that overlapped with the norms of state relationships, that is, a narrow set of violations of the law of nations admitting of a judicial remedy and at the same time threatening serious consequences in international affairs.... The mistreatment Plaintiff alleges does not threaten serious consequences in international affairs.” 28 _________________________________ 1793-27\MTN TO DISMISS 070314 11 MOTION TO DISMISS Case 2:14-cv-03530-DDP-AJW Document 23 Filed 07/03/14 Page 19 of 26 Page ID #:107 1 Guzman-Martinez, 2012 WL 2873835, at *3. Notably, there was no liability in 2 Guzman-Martinez under the ATS for sexual abuse despite the fact that the guard 3 was arguably a state actor, as an employee of the defendant, which had a contract 4 with the United States Immigration and Customs Enforcement (“ICE”) to house 5 ICE detainees. See also Cisneros v. Aragon, 485 F.3d 1226, 1231 (10th Cir. 2007) 6 (court held alleged sexual offenses committed by a man against a woman under 16 7 years of age in Mexico was not actionable under the ATS). 8 Here, the sexual assault alleged in Count IV was an isolated incident 9 between private individuals which did not threaten serious consequences in 10 international affairs. In other words, Doe’s allegations simply do not constitute a 11 violation of the law of nations—a narrow set of violations admitting of a universal 12 judicial remedy. In fact, the alleged sexual assault did not involve a minor 13 according to the laws of the United Kingdom where the incident here purportedly 14 occurred, as the anonymous plaintiff was a citizen of the United Kingdom over the 15 legal age of consent of 16. Because the conduct alleged in the Complaint is not 16 the type of conduct that is actionable under the ATS, Count IV should be 17 dismissed pursuant to Rule 12(b)(6). 18 IV. COUNT V, BASED ON ALLEGED TRAVEL TO FOREIGN 19 COUNTRY FOR ILLICIT CONDUCT WITH A MINOR, FAILS TO 20 STATE A CLAIM 21 Doe alleges that Singer is liable for violation of 18 U.S.C. § 2423, pursuant 22 to 18 U.S.C. 2255, which creates a civil remedy for “[a]ny person who, while a 23 minor, was a victim of a violation of [§ 2423] and who suffers personal 24 injury. . . .”2 However, Doe fails to plead specific facts which indicate that Singer 25 traveled to the United Kingdom for the purpose of engaging in any sexual act with 26 27 18 U.S.C. § 2423(b) provides that it is a crime for “a United States citizen . . . who travels in foreign commerce, for the purpose of engaging in any illicit sexual 28 conduct with another person.” (Emphasis added.) 2 _________________________________ 1793-27\MTN TO DISMISS 070314 12 MOTION TO DISMISS Case 2:14-cv-03530-DDP-AJW Document 23 Filed 07/03/14 Page 20 of 26 Page ID #:108 1 Doe. In fact, by Doe’s own admission, “Singer [was] coming to London for an 2 event”—the premiere of the motion picture Superman Returns, which Singer 3 directed. (See Compl. ¶ 18.) 4 In an attempt to adequately plead this allegation, Doe alleges that “a 5 dominant, significant and motivating reason for Singer, a United States citizen, to 6 attend the ‘Superman’ premiere in London was for the purpose of engaging in 7 illicit sexual conduct with [Doe].” (See Compl. ¶ 61.) Not only is this a 8 conclusory statement of intent, but it directly implies that the motivating reason 9 for Singer to travel to London was specifically to attend the movie premiere. 10 There is no allegation that Singer planned, arranged, or even contemplated a 11 sexual encounter with Doe prior to arriving in London. Indeed there is no 12 allegation that Singer ever planned or arranged to meet Doe in London or any 13 where else. Any alleged encounter with Doe was merely incidental to the sole 14 purpose of Singer’s trip to the United Kingdom—to attend his movie premiere. 15 See United States v. Hayward, 359 F.3d 631, 638 (3d Cir. 2004) (government must 16 prove that a significant or motivating purpose of the travel across state or foreign 17 boundaries was to have the individual engage in illegal sexual activity—the illegal 18 sexual activity must have not been merely incidental to the trip). 19 Because Doe has failed to plead any facts showing that a significant or 20 motivating reason for Singer to travel to the United Kingdom was to engage in sex 21 with Doe, and there are only conclusory allegations of intent, Doe’s claim fails. 22 V. COUNT VI, BASED ON ALLEGED MEETING WITH A MINOR TO 23 ENGAGE IN LEWD AND LASCIVIOUS BEHAVIOR, FAILS TO 24 STATE A CLAIM 25 Doe alleges that Singer is civilly liable for the violation of California Penal 26 Code § 288.4, pursuant to California Civil Code § 3523 which states that “for 27 28 _________________________________ 1793-27\MTN TO DISMISS 070314 13 MOTION TO DISMISS Case 2:14-cv-03530-DDP-AJW Document 23 Filed 07/03/14 Page 21 of 26 Page ID #:109 1 every wrong there is a remedy.”3 This claim is fatally deficient. A. 2 Doe Fails to Include Any Factual Allegations that Singer Arranged A Meeting With Him. 3 4 Doe fails to plead specific facts which indicate that Singer arranged to meet 5 with him in the United Kingdom. Instead, Doe makes a conclusory allegation that 6 Singer “arranged to meet with Plaintiff in London . . . [and] made . . . a substantial 7 part of the arrangements with Plaintiff while in the State of California.” (See 8 Compl. ¶ 68.) However, Doe never alleges any action that Singer took to arrange 9 such a meeting. (See Compl. ¶ 18.) Therefore, Doe cannot maintain a claim 10 against Singer for violation of Penal Code section 288.4, which, by its terms, 11 imposes liability only if Singer arranged the meeting with Doe. B. 12 California’s Choice of Law Principles Indicate that English Law 13 Applies and Therefore Doe’s Claim Fails Because He Was Not a 14 Minor. Whether this Court exercises subject matter jurisdiction over this claim as a 15 16 result of diversity jurisdiction or supplemental jurisdiction, California choice of 17 law rules apply. Estate of Darulis v. Garate, 401 F.3d 1060, 1062 (9th Cir. 2005); 18 Paracor Fin., Inc. v. Gen. Elec. Capital Corp., 96 F.3d 1151, 1164 (9th Cir. 1996). 19 California applies the governmental interest approach in resolving choice of law 20 questions. McCann v. Foster Wheeler, LLC, 48 Cal. 4th 68, 83 (2010). The 21 governmental interest approach is a three-part test. Id. at 87. First, a court 22 determines whether the law of each jurisdiction is the same or different. Id. 23 Second, a court examines each jurisdiction’s interest in the application of its own 24 law in the context of the particular case at issue to determine whether a true 25 Penal Code § 288.4 makes it a crime for “every person who, motivated by an unnatural or abnormal sexual interest in children, arranges a meeting with a minor 27 or a person he or she believes to be a minor for the purpose of exposing his or her genitals or pubic or rectal area, having the child expose his or her genitals or 28 public or rectal area, or engaging in lewd or lascivious behavior.” (Emphasis added.) 26 3 _________________________________ 1793-27\MTN TO DISMISS 070314 14 MOTION TO DISMISS Case 2:14-cv-03530-DDP-AJW Document 23 Filed 07/03/14 Page 22 of 26 Page ID #:110 1 conflict exists. Id. Third, if a court finds that there is a true conflict, it carefully 2 evaluates the nature and strength of each interest in the application of its own law 3 “to determine which state’s interest would be more impaired if its policy were 4 subordinated to the policy of the other state, and then ultimately applies the law of 5 the state whose interest would be more impaired if its law were not applied.” 6 McCann, 48 Cal. 4th at 87–88; see also McGhee v. Arabian Am. Oil Co., 871 F.2d 7 1412, 1424 (9th Cir. 1989) (holding that the majority of Plaintiff’s claims were 8 governed and barred under Saudi Arabia law because “it seems certain that Saudi 9 Arabia has some legitimate interest in seeing that Saudi law determines the 10 consequences of actions within its borders causing injury to people who reside 11 there. California . . . will not apply its law to conduct in other jurisdictions 12 resulting in injury in those jurisdictions”). 13 “California decisions have adopted a restrained view of the scope or reach 14 of California law with regard to the imposition of liability for conduct that occurs 15 in another jurisdiction and that would not subject the defendant to liability under 16 law of the other jurisdiction.” McCann, 48 Cal. 4th at 99. In the present case, the governmental interest test indicates that English law 17 18 should be applied. This is because (1) there is a conflict of laws between the 19 United Kingdom (where sexual activity with a child age 16 and older is legal4) and 20 California (where the legal age of consent is 18), and (2) the United Kingdom’s 21 interest would be more impaired if its laws were not applied because the United 22 Kingdom was the place where the alleged sexual abuse occurred and Doe is a 23 citizen of the United Kingdom. As previously indicated, Doe fails to specifically 24 allege that Singer committed any action while in California. 25 26 Section 9, Chapter 42 of England's Sexual Offences Act of 2003, states that it is a criminal offense for a person aged 18 or over to sexually touch a person who is 28 either (1) under 16 when the person does not reasonable believe that the person is 16 or over, or (2) under 13. (Sexual Offences Act 2003, Ch. 42, s. 9 (Eng.). 27 4 _________________________________ 1793-27\MTN TO DISMISS 070314 15 MOTION TO DISMISS Case 2:14-cv-03530-DDP-AJW Document 23 Filed 07/03/14 Page 23 of 26 Page ID #:111 1 Moreover, there is no dispute that, at the time of the purported wrongdoing 2 by Singer, Doe was 17 years old, over the legal age of consent in the United 3 Kingdom, where the alleged meeting took place. (Compl., ¶¶ 18–22, 61–63.) The 4 legal age of consent in the United Kingdom is 16, regardless of sexual orientation 5 or gender, pursuant to the Sexual Offences Act of 2003 as passed by Parliament. 6 (See Request for Judicial Notice.) There appears to be no case authority which 7 supports the proposition that a person can be charged or held civilly responsible 8 under California Penal Code section 288.4 for arranging a meeting with a person 9 in another country who is over the age of consent in the country where the meeting 10 is proposed or occurred. The age of consent in the United States does not apply to 11 conduct that did not occur here. 12 There is simply no basis for claiming that Doe should be considered a minor 13 because he would have been a minor if the alleged act occurred in the United 14 States. The fact is that the alleged act did not occur in the United States. It 15 occurred in the United Kingdom. Doe was not a minor at the time of the alleged 16 wrongdoing. Here, Singer did not arrange or even attempt to arrange a meeting 17 with a minor under UK law. 18 19 20 C. English Law Dictates that Doe’s Claim Fails Because It Is TimeBarred. California Code of Civil Procedure section 361 provides: “When a cause of 21 action has arisen in another state or in a foreign country, and by the laws thereof 22 an action thereon cannot there be maintained against a person by reason of the 23 lapse of time, and action thereon shall not be maintained against him in this state, 24 except in favor of one who has been a citizen of this state, and who has held the 25 cause of action from the time it accrued.” Here, as previously indicated, there is 26 no question that the cause of action for California Penal Code Section 288.4 arose 27 in the United Kingdom. All specific allegations against Singer occurred there and 28 _________________________________ 1793-27\MTN TO DISMISS 070314 16 MOTION TO DISMISS Case 2:14-cv-03530-DDP-AJW Document 23 Filed 07/03/14 Page 24 of 26 Page ID #:112 1 any damage Doe allegedly suffered occurred in the there as well.5 (See Compl. 2 ¶ 21.) Moreover, according to the law in the United Kingdom, a plaintiff has three 3 years to file a claim for personal injuries. (See Request for Judicial Notice (citing 4 Limitation Act 1980, Ch.58, S.11(4) (Eng.)).) Because the alleged activity occurred in 2006, Doe would have until 2009 to 5 6 file a claim for personal injuries. Having failed to do so, Doe’s claim against 7 Singer is time-barred by the applicable statute of limitations under English law 8 (notwithstanding that no tort was committed under English law). Furthermore, the 9 exception in Code of Civil Procedure 361 does not apply to allow Doe to bring a 10 claim in California because he admittedly is not, nor has ever been, a citizen of 11 California. (See Compl. ¶ 1.) Therefore, even assuming California statute of 12 limitations would not bar Doe’s claim, he is nevertheless unable to bring the claim 13 in California. 14 VI. COUNT VII FOR ALLEGED GENDER VIOLENCE IS TIME- 15 BARRED 16 In Count VII, Doe alleges that Singer is liable for “gender violence.” 17 California Civil Code § 52.4 states in relevant part as follows: Any person who has been subjected to gender violence may bring a civil action for damages against any responsible party. The plaintiff may seek actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, or any other appropriate relief. A prevailing plaintiff may also be awarded attorney's fees and costs. 18 19 20 21 For purposes of Civil Code § 52.4, “gender violence” is defined as “a form 22 23 of sex discrimination” and means any of the following: (1) One or more acts that would constitute a criminal offense under state law that has as an element the use, attempted use, or threatened use of physical force against the person or property of 24 25 26 27 The mere conclusory allegation that Singer formed the intent to violate the California statute while in California cannot establish, without alleging additional 28 specific facts, that the cause of action arose in California. (See Compl. ¶ 71.) 5 _________________________________ 1793-27\MTN TO DISMISS 070314 17 MOTION TO DISMISS Case 2:14-cv-03530-DDP-AJW Document 23 Filed 07/03/14 Page 25 of 26 Page ID #:113 another, committed at least in part based on the gender of the victim, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction. 1 2 3 (2) A physical intrusion or physical invasion of a sexual nature under coercive conditions, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction.” 4 5 Under Civil Code § 52.4(b), an action under the statute must be brought 6 7 “within 3 years of the act, or if the victim was a minor when the act occurred, 8 within 8 years after the date the plaintiff attains the age of majority or within 3 9 years after the date the plaintiff discovers or reasonably should have discovered 10 the physiological injury or illness occurring after the age of majority that was 11 caused by the act, whichever date occurs later.” (Emphasis added.) 12 As previously stated, Doe was not a minor according to English law when 13 the alleged “gender violence” occurred in approximately 2006. Because he was 14 not a minor when the alleged act occurred, the second alternative calculation of 15 the limitations period in Section 52.4(b) cannot apply. The statute of limitations 16 expired 3 years after the alleged act occurred, or sometime in 2009. The claim was 17 not brought until five years later.6 Moreover, this claim is substantively without merit. California Civil Code 18 19 section 52.4 is designed to prevent “gender-related violence, such as domestic 20 violence, which disproportionately occurs against women and to protect the civil 21 rights of victims of gender-motivated violence and thereby to promote the public 22 safety, health and well-being of all persons within California.” See Cal. Prac. 23 Guide Civ. Pro. Trial Claims and Def., Ch. 2(VII)-A[2:771]. There is no 24 allegation anywhere in the Complaint that Singer was motivated by or committed 25 any sexual abuse against Doe because of Doe’s gender. Doe’s attempt to 26 The application of English law to this California claim would also result in the claim being time-barred because a plaintiff has only 3 years to file a claim for 28 personal injuries and Plaintiff waited roughly 8 years to bring his claim. (Limitation Act 1980, Ch.58, S.11(4) (Eng.)). 27 6 _________________________________ 1793-27\MTN TO DISMISS 070314 18 MOTION TO DISMISS Case 2:14-cv-03530-DDP-AJW Document 23 Filed 07/03/14 Page 26 of 26 Page ID #:114 1 transform a sexual abuse claim into a gender violence claim not only is a 2 misapplication of the law, but it lacks the requisite element of motive/intent. 3 VII. CONCLUSION 4 Doe is inappropriately seeking to proceed under a pseudonym, without the 5 requisite leave of Court or any factual or legal basis supporting that attempt. In 6 addition, Counts IV, V, and VI fail to state a legal claim against Singer, and 7 Counts VI and VII are time-barred. 8 9 10 Therefore, the case should be dismissed pursuant to Rule 12(b)(6). If the Court is inclined to allow Doe to proceed on any of his alleged causes of action, he must do so using his legal name. 11 12 DATED: July 3, 2014 13 14 15 LAVELY & SINGER PROFESSIONAL CORPORATION MARTIN D. SINGER PAUL N. SORRELL ANDREW B. BRETTLER By: /s/ MARTIN D. SINGER Attorneys for Defendant BRYAN SINGER 16 17 18 19 20 21 22 23 24 25 26 27 28 _________________________________ 1793-27\MTN TO DISMISS 070314 19 MOTION TO DISMISS