California Litigants Must Ask for Pseudonymity, Rather Than Just Filing Under a Pseudonym

From L.A. Superior Court Judge Frank Tavelman's order last Friday in Roe v. Smith:

Plaintiffs have not adhered to the proper procedure for proceeding anonymously. Before a party can proceed anonymously, they must move the Court for permission to do so. This procedure is addressed in Department of Fair Employment and Housing v. Superior Court of Santa Clara County (2022) 82 Cal.App.5th 105 (hereinafter DFEH). There the Court observed the following:

Procedurally, because a hearing is required, a party who wants to proceed anonymously will file the initial complaint or petition conditionally under a pseudonym and then move for an order granting permission to proceed that way. If the request is granted, the initial pleading can remain. If pseudonym use is denied, the pleading must be amended to state the party's true name.

Here, no motion was made to proceed anonymously, and no hearing was ever conducted on Plaintiff's right to do so. This procedural posture is important because it places the burden on the party seeking to proceed anonymously to demonstrate an overriding interest. Plaintiff's failure to move for permission to proceed anonymously has essentially improperly shifted this burden to First Amendment and Defendants. Plaintiffs have never demonstrated to the Court that they can overcome the presumption of openness provided by CRC Rule 2.550(c)….

Seems quite correct to me; the binding California Court of Appeal precedent in DFEH already made it clear, but trial court decisions such as this are important reminders of it as well.

Note that I'm involved in this case as lawyer for the First Amendment Coalition, which moved to depseudonymize the plaintiffs (who are suing for libel); for more on the arguments against libel plaintiffs suing pseudonymously, see this post. The court denied our motion without prejudice to our making the same arguments later, because it concluded that plaintiff needs to move for pseudonymity first, and we can then argue against that motion. Thanks to Benjamin Diamond Wofford, who just graduated from Stanford Law School and who worked on this case.

UPDATE: Just to be clear, this applies in the normal situation—such as the one in our case—that doesn't involve one of the few state statutes that expressly authorize pseudonymity. DFEH expressly focused on situations "[o]utside of cases where anonymity is expressly permitted by statute," so where such a statute exists, a motion might not be required (depending on the statute).