Jane Doe v. Justin Patton Mozart

Case Number

24CV00278

Case Type

Hearing Date / Time

Mon, 06/03/2024 - 10:00

Nature of Proceedings

(1) Demurrer To Plaintiff’s Complaint (2) Motion To Strike Portions Of Plaintiff’s Complaint

Tentative Ruling

Jane Doe v. Justin Patton Mozart                            

Case No. 24CV00278

Hearing Date: June 3, 2024                                                     

HEARING:              (1) Demurrer To Plaintiff’s Complaint

                                    (2) Motion To Strike Portions Of Plaintiff’s Complaint                                                        

ATTORNEYS:        For Plaintiff Jane Doe: Nada V. Lahoud

                                    For Defendant Justin Patton Mozart: Trevor D. Large, Natalie N. Mutz, Fauver Large Archbald & Spray LLP

TENTATIVE RULING:

(1) The demurrer of defendant is overruled.

(2) The motion of defendant to strike portions of plaintiff’s complaint is granted, in part, with leave to amend as provided herein. The term “Jane Doe” shall be stricken from the complaint. Except as otherwise herein granted, the motion to strike of defendant is denied.

(3) Leave to amend the complaint as authorized herein may be satisfied by the lodging of a document by plaintiff, conditionally under seal, that discloses the actual identity of plaintiff who is appearing in this matter as Jane Doe. In addition, plaintiff shall simultaneously file and serve a procedurally appropriate noticed motion to seal the lodged record that fully complies with California Rules of Court, rules 2.550 and 2.551. Plaintiff must lodge conditionally under seal the document described herein and file and serve a motion to seal the lodged record on or before June 18, 2024.

Background: 

Plaintiff Jane Doe filed a complaint in this matter on January 18, 2024, alleging five causes of action against defendant Justin Patton Mozart (Mozart): (1) false imprisonment – El Encanto; (2) sexual battery (Civ. Code, § 1708.5) – El Encanto; (3) sexual battery (Civ. Code, § 1708.5) – Hilton Hotel; (4) intentional infliction of emotional distress; and (5) gender violence – Civil Code section 52.4. As alleged in the complaint:

On August 12, 2022, plaintiff booked a room for a weekend getaway at the Hilton Barbara Beachfront Resort (the Hilton Hotel) located at 633 E. Cabrillo Boulevard in Santa Barbara, California. (Compl., ¶ 21.) Shortly after 10 p.m. on the evening of August 14, 2022, plaintiff drove out to State Street to get a drink or a bite to eat. (Id. at ¶ 25.) As plaintiff circled the State Street area for a place to stop, an “attractive, white, well-dressed male in his mid-30s with somewhat curly blond hair, a fit/muscular frame and about 5’10” (hereinafter, Doe 1) flagged plaintiff down and approached her vehicle stating that “ ‘some faggot had been hitting on him at a bar’ ” and that he needed a ride to his nearby hotel. (Ibid.) Though plaintiff found the statement offensive, plaintiff agreed because Doe 1 seemed harmless. (Ibid.)

Doe 1 “surprisingly” entered the back seat of plaintiff’s vehicle instead of the front passenger side, pulled out his phone, and began clicking on it. (Compl., ¶ 26.) Though plaintiff could not see what Doe 1 was doing on his phone, plaintiff surmises that he may have been alerting co-conspirators that he had succeeded in tricking plaintiff to take him back to the El Encanto Hotel (the El Encanto). (Ibid.) Leaning forward from the backseat between the gap of the two front seats, Doe 1 gave plaintiff directions to the El Encanto. (Ibid.)

On arrival at the El Encanto, Doe 1 directed plaintiff to park her vehicle in the hotel parking lot and invited plaintiff to his room. (Compl., ¶ 27.) Plaintiff agreed, and they both walked to Room 1202. (Ibid.) Doe 1 told plaintiff that his name was Benjamin Mozart, that he was in a rock band, and that he was best friends with Johnny Depp. (Ibid.) Doe 1 offered plaintiff what he claimed to be a marijuana joint which plaintiff accepted. (Ibid.) When plaintiff offered the marijuana joint back to Doe 1, he refused to and did not smoke any of it. (Id. at ¶ 29.)

After taking a few hits of the joint that Doe 1 had given to her, plaintiff started to feel lethargic and drowsy. (Compl., ¶ 29.) Doe 1 then “proceeded to undress [p]laintiff, touch her breasts, penetrate her vagina with his penis and attempted to insert his penis in her mouth.” (Ibid.) Plaintiff remembers only a few minutes of the sexual encounter before losing consciousness. (Ibid.)

Plaintiff woke up the next morning naked in Doe 1’s hotel bed with Doe 1 asleep on the opposite side. (Compl., ¶ 29) Plaintiff did not remember any of the previous night after smoking the marijuana joint other than the initial few minutes of sexual activity with Doe 1. (Ibid.) Plaintiff had not consumed any substances on the evening of August 14, 2022, other than the marijuana joint that Doe 1 had given her which was enclosed in a prescription pill bottle. (Ibid.)

After purchasing a phone charger from the main hotel area and returning to Room 1202, plaintiff went to breakfast with Doe 1. (Compl., ¶ 31.) After breakfast, plaintiff drove Doe 1 to Los Angeles. (Id. at ¶ 32.) Before departing the El Encanto, Doe 1 gave plaintiff the prescription pill bottle containing the remainder of the marijuana joint that plaintiff had smoked the prior evening. (Ibid.) Plaintiff never spoke with Doe 1 again. (Ibid.)

The following night, August 15, 2022, while plaintiff was in her room at the Hilton Hotel, she smoked some of the marijuana joint Doe 1 had given her. (Compl., ¶ 33.) Soon after, plaintiff started to feel lethargic and drowsy. (Ibid.) Before losing consciousness, plaintiff recalls two male voices repeatedly stating that “she’s a threat, she’s not a threat”. (Ibid.)

The next morning, August 16, 2022, plaintiff awake and observed that her internal vaginal area was extremely sore and achy in an odd manner and without any reason. (Compl., ¶ 34.) After her sexual encounter with Doe 1, plaintiff’s vagina was not sore or achy and felt normal. (Id. at ¶ 35.) In light of the “drugged” manner in which plaintiff awoke and the excruciating soreness and achiness of her internal vaginal area, plaintiff is certain than a sexual assault occurred during the evening of August 15, 2022, with additional drugging by smoking the marijuana joint provided by Doe 1 in order to render plaintiff immobile for the purpose of facilitating a brutal sexual assault. (Ibid.)

Plaintiff reported the sexual assault to a doctor at Cedars Sinai in Playa Vista on October 5, 2022, and to a nurse practitioner at UCLA Health on December 2, 2022. (Compl., ¶ 36.) On January 27, 2023, plaintiff filed an online police report with the Santa Barbara Police Department. (Ibid.) Through the assistance of a private investigator, plaintiff eventually determined that Mozart was the registered guest for Room 1202 at the El Encanto from August 12, 2022 through August 15, 2022, and that Mozart had checked into Room 1202 at the El Encanto on the same day that plaintiff booked her room at the Hilton Hotel even though Mozart’s father owns a home a few miles away. (Id. at ¶ 37.)

After reviewing available public records, plaintiff believes that Mozart was not Doe 1 who had flagged her down in the vicinity of State Street on the evening of August 14, 2022, and who said his name was Benjamin Mozart. (Compl., ¶ 38.) Public records indicate that Mozart was about 51 years old on August 14, 2022, but Doe 1 appeared to be in his mid to late 30s. (Ibid.) Further, available photos of Mozart on the Ancestry website do not match plaintiff’s recollection of Doe 1. (Ibid.)

Doe 1 had the key to Room 1202 and full access to it with his belongings stored there. (Compl., ¶ 39.) Plaintiff believes that Mozart, acting in concert with Doe 1 and likely others, targeted plaintiff specifically and conspired to drug and sexually assault her for an unknown reason beyond sexual gratification. (Ibid.) The drugging and sexual assault that took place in plaintiff’s hotel room at the Hilton Hotel on August 15, 2022, which occurred after plaintiff smoked the marijuana joint given to her by Doe 1 and which was “likely” laced with an intoxicating substance such as fentanyl, was planned and orchestrated. (Ibid.) Plaintiff believes that what occurred on the evening of August 14, 2022, in Room 1202 at the El Encanto with Doe 1 and possibly others was a trial run or set up for what later occurred the following night in plaintiff’s room at the Hilton Hotel. (Ibid.)

Plaintiff has reason to believe that the sexual assaults that occurred at the El Encanto and the Hilton Hotel may have been planned and instigated by a male student that plaintiff knew at UCLA during the school year 1992-1993, and who was rumored to be a stalker and who has carried a vendetta against plaintiff. (Compl., ¶ 40.) Plaintiff asserts that, “[a]fter a reasonable opportunity for investigation and discovery, facts will come to light to help explain the reasons and connections for the heinous events that occurred on or about August 14, 2022 and August 15, 2022 and reveal all the parties who were responsible.” (Ibid.)

On March 11, 2024, Mozart filed a demurrer the complaint and concurrently filed a motion to strike “Jane Doe” allegations and allegations for punitive or exemplary damages appearing in the complaint. The demurrer and motion to strike of Mozart are each opposed by plaintiff.

Analysis:

(1) Demurrer

In ruling on a demurrer, the court determines whether the complaint states a cause of action. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The pleading subject to demurrer is given a reasonable interpretation and is read as a whole, with all its parts in their context. (Ibid.) A demurrer assumes the truth of properly pleaded material allegations, but not of contentions, deductions, or conclusions of fact or law. (Ibid.) The court also accepts as true facts that may be inferred from those expressly alleged and facts appearing in exhibits attached to the complaint. (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509; Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 567.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

Mozart specially demurs to the complaint on the grounds that it is uncertain because plaintiff has failed to allege specific facts against Mozart. (See Code Civ. Proc., § 430.10, subd. (f).) “ ‘[U]ncertain’ includes ambiguous and unintelligible.” (Smith v. Kern County Land Co. (1958) 51 Cal.2d 205, 209.) “A special demurrer on the ground that [a pleading] is (a) ambiguous, (b) unintelligible, or (c) uncertain is insufficient unless the demurrer points out specifically wherein the pleading is ambiguous, uncertain or unintelligible.” (Coons v. Thompson (1946) 75 Cal.App.2d 687, 690.)

Though plaintiff alleges that Mozart is not the Doe 1 who flagged plaintiff down on August 14, 2022, plaintiff expressly alleges that Mozart was the registered guest for Room 1202 at the El Encanto on the date plaintiff asserts that she was sexually assaulted by Doe 1. Plaintiff further alleges that Mozart, although not a direct participant, acted in concert with others including Doe 1 to engage in the conduct described in the complaint which includes a purported sexual assault of plaintiff. These allegations are not ambiguous or unintelligible.

Moreover, Mozart’s recitation of the allegations of the complaint demonstrates that the complaint is not so uncertain that Mozart cannot understand the issues or the nature of the claims alleged by plaintiff. (See Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245 [“a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action”]; Dumm v. Pacific Valves (1956) 146 Cal.App.2d 792, 799.) In addition, the complaint is not so incomprehensible that Mozart cannot reasonably respond. (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292.) For these and all reasons discussed above, the Court will overrule the special demurrer of Mozart.

The first cause of action:

In the first cause of action for false imprisonment at the El Encanto, plaintiff alleges that Doe 1 gave her a joint that he deceptively represented was marijuana but which was in fact laced with another drug that caused plaintiff to become involuntarily intoxicated and pass out. (Compl., ¶¶ 50-52.) Due to plaintiff’s involuntary intoxication to which plaintiff did not consent, plaintiff was compelled to remain in Doe 1’s room at the El Encanto which enabled Doe 1 to commit a sexual battery upon plaintiff, among other unknown acts. (Id. at ¶¶ 52-55.)

With respect to the claim alleged against Mozart, plaintiff alleges that Mozart “intentionally gave” Doe 1 the use of his room at the El Encanto “presumably with the knowledge of or in concert with” the targeting and intentional drugging of plaintiff for the purpose of engaging in sexual activity without plaintiff’s consent. (Compl., ¶ 58.) Plaintiff further alleges that Mozart “substantially assisted and encouraged” Doe 1 with the intent to facilitate the conduct of Doe 1, and that plaintiff “believes” that it will be established, after an opportunity for investigation and discovery, that Mozart had knowledge of and participated in Doe 1’s false imprisonment and sexual battery of plaintiff at the El Encanto. (Id. at ¶¶ 57-58.)

Mozart contends that the allegations described above are insufficient to state a cause of action for false imprisonment against Mozart because these allegations are conclusory, baseless, and wishful. Plaintiff does not dispute that Mozart is not alleged to be a direct or active perpetrator of the acts described in the complaint. (See Opp. at p. 12, ll. 4-5 & 14-15.) Instead, plaintiff argues, the liability of Mozart for false imprisonment is based on allegations which plaintiff contends are sufficient to show that Mozart was a co-conspirator with Doe 1 and other unnamed defendants with respect to the acts alleged in the complaint, and to raise a reasonable inference of a conspiracy between Mozart and Doe 1 to commit the acts alleged in the complaint.

“As expressed in the Evidence Code, ‘[e]xcept as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.’ [Citation.] Thus, ‘[o]n all motions the burden is on the moving party....’ [Citations.]” (People v. Lopez (1997) 52 Cal.App.4th 233, 251.) In the first cause of action for false imprisonment, plaintiff expressly alleges that Mozart is “jointly and severally liable as a co-conspirator to commit false imprisonment….” (Compl., ¶ 57.) Wholly absent from the demurrer is any reasoned argument demonstrating that the allegations of the complaint are insufficient to allege a vicarious theory of liability against Mozart based on a conspiracy with Doe 1 to commit an unlawful false imprisonment. By failing to address, with reasoned argument, the express allegations of the complaint which seek to impose liability on Mozart based on an alleged conspiracy between Mozart and Doe 1, Mozart has failed to meet his burden to demonstrate that the complaint fails to state facts sufficient to constitute a cause of action for false imprisonment.

For the first time in reply, Mozart contends that plaintiff has failed to allege facts sufficient to establish a conspiracy between Mozart and Doe 1. The arguments offered in the reply to plaintiff’s opposition are not included in Mozart’s opening memorandum. As a result, Mozart has failed to sufficiently advise plaintiff of the issues to be addressed on demurrer or what arguments she mut rebut in order to prevail. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [“due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail”].) Further, “[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.) For these reasons, the Court is not required to consider the arguments raised for the first time in the reply memorandum of Mozart.

Even if the Court were to consider the arguments first raised in reply, Mozart has failed to show that the complaint does not state facts sufficient to establish a conspiracy to falsely imprison plaintiff. For example, Mozart asserts that “there is no cause of action for conspiracy alleged in the [c]omplaint….” (Reply at p. 2, ll. 20-21.) However, civil conspiracy is not an independent cause of action but a “ ‘ “legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration.” [Citation.]’ [Citation.]” (Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 823 [also stating that the “essence of the claim is that it is merely a mechanism for imposing vicarious liability”].)

Mozart further contends that plaintiff has alleged no facts to establish the formation of a conspiracy other than asserting that Mozart reserved a room at the El Encanto. However, the complaint includes additional allegations further described above and in plaintiff’s opposition which Mozart does not address. For example, plaintiff asserts that Doe 1 used the same last name as Mozart, that Mozart checked into his hotel room the same date that plaintiff booked her hotel room, and that Doe 1 was given access to Mozart’s hotel room by Mozart to commit the acts described in the complaint. These examples are intended to be illustrative but not exhaustive. Mozart offers no reasoned argument to explain why these allegations are insufficient to allege, whether expressly or by inference, the formation of a conspiracy between Mozart and Doe 1.

“Furthermore, because of the inherent difficulty in proving a conspiracy, it has been held that a conspiracy may sometimes be inferred from the nature of the acts done, the relations of the parties, the interests of the alleged conspirators, and other circumstances.” (California Auto Court Ass’n v. Cohn (1950) 98 Cal.App.2d 145, 149 (California Auto).) Mozart also does not sufficiently explain whether, as plaintiff contends, the formation of a conspiracy between Mozart and Doe 1 may be inferred from the allegations of the complaint further described above. In addition, plaintiff has sufficiently alleged the information on which her belief that a conspiracy existed is predicated, and facts from which it can be inferred that Mozart has superior knowledge of the formation or existence of the alleged conspiracy with Doe 1 to commit the acts described in the complaint. (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 551 [in appropriate cases a plaintiff may rely on the “doctrine of less particularity” to the extent a nonperpetrator defendant has withheld or concealed evidence]; Brown v. USA Taekwondo (2019) 40 Cal.App.5th 1077, 1106 [same, also noting that allegations based on information and belief are sufficient provided plaintiff pleads the information on which the belief is based].) Any ambiguities in this regard “can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

For all reasons discussed above, Mozart has failed to meet his burden to show that plaintiff has failed to allege facts sufficient to impose vicarious liability on Mozart based on the existence of a conspiracy between Mozart and Doe 1 to falsely imprison plaintiff as alleged in the complaint. Therefore, the Court will overrule the demurrer to the first cause of action alleged in the complaint.

The second through fifth causes of action:

The theories of liability asserted against Mozart in the second through fifth causes of action are also based on the alleged formation and existence of a conspiracy between Mozart, Doe 1, and others, based on the same or similar allegations further described above. (See Compl., ¶¶ 65, 73, 82, 89.) In the demurrer to the second, third, fourth, and fifth causes of action alleged in the complaint, Mozart asserts the same arguments further discussed above. The same analysis and reasoning applies. For all reasons discussed above, Mozart has failed to meet his burden to demonstrate that the complaint fails to state facts sufficient to impose vicarious liability on Mozart based on the alleged formation or existence of a conspiracy between Mozart and Doe 1. Therefore, and for the same reasons discussed above, the Court will overrule the demurrer to the second, third, fourth, and fifth causes of action alleged in plaintiff’s complaint.

(2) The Motion To Strike

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof[.]” (Code Civ. Proc., § 435, subd. (b)(1).) In ruling on a motion to strike, a court may “strike out any irrelevant, false, or improper matter inserted in any pleading” or “strike  all or part of any pleading not filed in conformity with applicable law, court rules, or an order of the court” (Code Civ. Proc., § 436.) The grounds for a motion to strike must appear on the face of the pleading or from matters which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).)

Mozart requests an order striking allegations of punitive damages appearing in various portions of the complaint. Mozart contends that there are no allegations of fact which tie Mozart to any of the wrongful acts alleged in the complaint. Therefore, Mozart argues, plaintiff has failed to allege facts sufficient to support a claim for punitive damages against him.

To survive a motion to strike allegations of punitive damages, ultimate facts showing an entitlement to such relief must be pleaded. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) The facts and circumstances constituting the claim for punitive damages must be set forth “with sufficient particularity to apprise the opposite party of what he is called on to answer, and to enable the court to determine whether, on the facts pleaded, there is any foundation [for the claim].” (Lehto v. Underground Construction Company (1977) 69 Cal.App.3d 933, 944.)

Under Civil Code section 3294, subdivision (a), punitive damages are recoverable where it is shown by clear and convincing evidence that the defendant acted with malice, oppression, or fraud. “Malice” means “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) “Despicable conduct” for purposes of an award of punitive damages means “conduct that is ‘ “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” ’ … [Citation.] ” (McNeal v. Whittaker, Clark & Daniels, Inc. (2022) 80 Cal.App.5th 853, 872 [also noting that such conduct has the character of outrage associated with a crime].) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civ. Code, § 3294, subd. (c)(3).)

As further discussed above, Mozart does not address allegations which seek to impose liability based on the existence of a conspiracy between Mozart and Doe 1 to commit the acts described in the complaint. Mozart also does not offer any reasoned argument to demonstrate that, to the extent plaintiff has sufficiently alleged the existence of a conspiracy to plan and commit the acts described in the complaint, that the purported conduct by Doe 1, if proven, cannot support an award of punitive damages.

Moreover, the conduct described in the complaint as further discussed above is sufficient to demonstrate despicable conduct, malice, and oppression by Doe 1 in committing the acts described above. Further, in a civil conspiracy action, “[e]ach participant in the wrongful act is responsible as a joint tort-feasor for all damages ensuing from the wrong, regardless of whether or not he was a direct actor and of the degree of his activity.” (California Auto, supra, 98 Cal.App.2d at p. 149.) Therefore, to the extent Mozart is alleged to be a co-conspirator with respect to the conduct of Doe 1 alleged in the complaint, these allegations would also be sufficient to support an award of punitive damages against Mozart. For these reasons, the Court will deny the motion to strike allegations of punitive damages appearing in the complaint.

Mozart also requests that the Court strike each instance of the term “Jane Doe” appearing in the complaint because plaintiff has failed to comply with the requirements of Code of Civil Procedure section 367.3, subdivision (b)(1). Plaintiff contends that she is not required to comply with any statutory prerequisites to file pseudonymously because plaintiff bases her right to use a pseudonym on the common law.

An “important constitutional right is implicated when a party is allowed to proceed anonymously: the right of public access to court proceedings. Among the guarantees of the First Amendment to the United States Constitution is that court proceedings are open and public. [Citation.] Public access to court proceedings is essential to a functioning democracy. It promotes trust in the integrity of the court system, and it exposes abuses of judicial power to public scrutiny. [Citation.] The right of public access applies not only to criminal cases, but also to civil proceedings like this one. [Citation.] And the right to access court proceedings necessarily includes the right to know the identity of the parties. [Citation.]” (Department of Fair Employment and Housing v. Superior Court of Santa Clara County (2022) 82 Cal.App.5th 105, 110-111 (Santa Clara).)

Because anonymous litigation impacts the public’s right to access court proceedings, “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. Outside of cases where anonymity is expressly permitted by statute, litigating by pseudonym should occur ‘only in the rarest of circumstances.’ [Citation.]” (Santa Clara, supra, 82 Cal.App.5th at pp. 111-112.) The party seeking to use a pseudonym bears the burden to demonstrate an overriding interest that cannot be protected with less impact on the right of access to court proceedings. (Id. at p. 112.)

The Court has no record of the filing by plaintiff of a procedurally appropriate request to proceed in this matter using a pseudonym. Therefore, the Court will grant the motion to strike the term “Jane Doe” where it appears in the complaint, with leave to amend. Leave to amend in this instance shall mean that plaintiff must lodge conditionally under seal a separate document, as an amendment to the complaint, that discloses the actual identity of plaintiff who is appearing in this matter as Jane Doe. The Court will further order plaintiff to simultaneously file and serve a motion to seal the lodged record that fully complies with California Rules of Court, rules 2.550 and 2.551.

(3) Mozart’s Objections To Evidence

Mozart has filed separate objections to evidence offered in support of plaintiff’s oppositions to the demurrer and motion to strike which are substantially based on a purported attempt by plaintiff to introduce new subject matter outside of or extrinsic to the complaint. To determine the demurrer and motion to strike, the Court has considered only those matters which are alleged on the face of the pleading, are subject to judicial notice, or are shown in exhibits attached thereto and incorporated by reference. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994; Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) The Court does not consider matters raised in a memorandum which are not otherwise pleaded and has not weighed any disputed facts. (See Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881; Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App.3d 496, 499-500 [the court is precluded from weighing disputed facts on demurrer].)