Filed 8/5/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

DEPARTMENT OF FAIR 

EMPLOYMENT AND HOUSING,

Petitioner,

v.

THE SUPERIOR COURT OF SANTA 

CLARA COUNTY,

Respondent,

CISCO SYSTEMS, INC., et al.,

Real Parties in Interest.

 No. H048962

 (Santa Clara

 Super. Ct. No. 20-CV-372366)

When a party to a civil action asks to proceed under a fictitious name, the trial 

court must determine whether that party’s privacy concerns outweigh the First

Amendment right of public access to court proceedings. In this employment 

discrimination suit by the Department of Fair Employment and Housing, the Department 

asked that the real party in interest—the affected employee—be referred to as John Doe, 

in part because revealing his identity could jeopardize the safety of his family members in 

India. The trial court denied the request, deciding that the safety of a party’s family 

members outside California cannot be considered when weighing the competing interests 

in privacy versus public access. We conclude evidence of potential harm to family 

members anywhere is a legitimate consideration in determining whether a party should be

granted anonymity in litigation. We will issue a writ of mandate directing the trial court 

to vacate its order and reconsider the issue.
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I. BACKGROUND

The Department of Fair Employment and Housing, the state administrative agency 

responsible for enforcing employment discrimination laws, brought this action against 

Cisco Systems, Inc., for employment discrimination based on caste. The Department’s 

complaint alleges an engineer employed by Cisco was treated unfavorably by two 

supervisors because he is from the lowest caste (Dalit) under the traditional caste system 

of India.

The Department sued under the Fair Employment and Housing Act, which allows 

it to bring a civil action on behalf of an employee affected by discrimination. (See Gov. 

Code, § 12965, subd. (a)(1).) In such an action, the Department is the plaintiff and the 

employee is the real party in interest. (Gov. Code, § 12965, subd. (a)(3).) The employee 

was concerned about further mistreatment, even violence, against him and his family if 

his lower caste status were publicly revealed. He asked that the Department not use his 

name in legal filings and that his identity be protected from disclosure in court 

proceedings. 

The Department moved for an order allowing the employee to proceed in the 

action under a fictitious name. It supported the motion with evidence that in India 

violence is regularly perpetrated against people considered to be of lower caste status, 

and the employee has family members who live there and could be in danger if their caste 

affiliation became known. The Department also presented evidence that publicly 

revealing the caste of the employee could hinder his ability to obtain future employment 

and might result in his family being socially ostracized. 

The trial court denied the motion. It acknowledged that fictitious names can be 

used in judicial proceedings when identifying a party would create a risk of retaliatory 

physical or mental harm. But it expressly declined to consider evidence that revealing 

the employee’s caste affiliation created a risk of harm to family members in India. The 

trial court stated in its written order: “While the Court has great sympathy for the plight 
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of those members of the Dalit in India, research has not revealed any case authority—and 

Plaintiff has not pointed to any case authority—as to whether residents of another country 

or another country’s discriminatory practices is a consideration as to whether a party in 

California may remain anonymous in a lawsuit alleging violation of the California FEHA 

against a corporation in California.” The court found speculative whether the employee 

would be denied future employment opportunities and subjected to harassment if his 

identity were revealed, and decided the evidence was insufficient to allow for anonymity

on that basis. 

The Department petitioned for a writ of mandate requiring the trial court to vacate 

its order and allow use of a fictitious name. We temporarily stayed the ruling and issued 

an order to show cause why the requested relief should not be granted. 

II. DISCUSSION

The names of all parties to a civil action must be included in the complaint. (Code 

Civ. Proc., § 422.40.) That requirement extends to real parties in interest—anyone with a 

substantial interest in the subject matter of the action. (Tracy Press, Inc. v. Superior 

Court (2008) 164 Cal.App.4th 1290, 1296–1297.) In an employment discrimination 

lawsuit brought by the Department of Fair Employment and Housing, the affected 

employee is a real party in interest. (Gov. Code, § 12965, subd. (a)(3).) As a result, the 

Department’s motion for the employee to proceed under a fictitious name is a request that 

a party be allowed to litigate anonymously. 

Because of the inherently sensitive nature of some proceedings, statutes 

specifically allow for keeping certain parties’ identities confidential. (See, for example, 

Civ. Code, § 1708.85, subd. (f)(1) [plaintiff in action for nonconsensual distribution of 

sexually explicit materials may proceed under pseudonym]; Code Civ. Proc., § 372.5 

[allowing pseudonym for guardian ad litem litigating on behalf of a minor]; Civ. Code, 

§ 3427.3 [allowing pseudonym in actions for interference with access to health care]; Cal. 

Rules of Court, rule 8.401(a) [providing for anonymity in juvenile appeals].) Even in the 
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absence of a statute, anonymity for parties may be granted when necessary to preserve an 

important privacy interest. (Doe v. Lincoln Unified School District (2010) 

188 Cal.App.4th 758, 766; see also Starbucks Corp. v. Superior Court (2008) 

168 Cal.App.4th 1436, 1452, fn. 7.) 

In Doe v. Lincoln Unified School District, supra, 188 Cal.App.4th 758, the court 

of appeal noted the common practice in California courts of using pseudonyms to protect 

privacy, and observed federal courts have likewise permitted plaintiffs to use 

pseudonyms “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.” 

(Id. at pp. 766–767; quoting Does I thru XXIII v. Advanced Textile Corp. (9th Cir. 2000) 

214 F.3d 1058, 1067.) But no California case has articulated the standard that applies to 

determine whether a party may proceed anonymously absent specific statutory 

authorization. (See Starbucks Corp. v. Superior Court, supra, 168 Cal.App.4th 1436, 

1452, fn. 7 [“We do not decide the appropriate standards or mechanisms for protective 

nondisclosure of identity in California, because the matter is not now before us.”].)

In determining the appropriate standard, we first note that here the identity of the 

employee seeking to proceed under a pseudonym is known to the defendant. Significant 

constitutional concerns would be implicated were it otherwise. (See, e.g., Alvarado v. 

Superior Court (2000) 23 Cal.4th 1121, 1132 [testimony from an anonymous witness 

unknown to a criminal defendant violates right of confrontation and due process].) Since 

the employee’s identity is known to the defendant, proceeding anonymously would not 

similarly intrude on the defendant’s rights. 

But another 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. (Richmond Newspapers, Inc. v. Virginia (1980) 

448 U.S. 555, 580.) Public access to court proceedings is essential to a functioning 
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democracy. It promotes trust in the integrity of the court system, and it exposes abuses of 

judicial power to public scrutiny. (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court 

(1999) 20 Cal.4th 1178, 1221 (KNBC).) The right of public access applies not only to 

criminal cases, but also to civil proceedings like this one. (Id. at p. 1222.) And the right 

to access court proceedings necessarily includes the right to know the identity of the 

parties. (Id. at p. 1211 [public has a general right of access to civil proceedings; by

submitting a dispute to resolution in court, litigants should anticipate the proceedings will 

be adjudicated in public].)

KNBC involved media coverage of a civil trial between two Hollywood 

celebrities. In an effort to prevent the jury from learning through the media of matters 

discussed outside the jury’s presence, the trial court closed the courtroom to all spectators 

– including the media – except when the jury was present. The California Supreme Court 

held that closing a courtroom to the public during trial proceedings infringes on the First 

Amendment right to public access. Under KNBC, because of the constitutional interest at 

stake, a trial court cannot close proceedings to the public without first conducting a 

hearing and expressly finding an overriding interest supporting closure; a substantial 

probability the overriding interest will be prejudiced absent closure; the proposed closure 

is narrowly tailored to serve the overriding interest; and no less restrictive means would 

protect the overriding interest. (KNBC, supra, 20 Cal.4th 1178, 1218–1221.) 

KNBC also made clear the public’s right of access extends to documents filed in a 

civil proceeding, so the same inquiry must be conducted before a court can seal any 

portion of the record. (KNBC, supra, 20 Cal.4th 1178, 1217.) The Judicial Council

accordingly has adopted rules requiring that courts employ the overriding interest test 

before sealing a record. (Cal. Rules of Court, rules 2.550; 2.551; 8.160; see also Mercury 

Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 68.) 

Much like closing the courtroom or sealing a court record, allowing a party to

litigate anonymously impacts the First Amendment public access right. Before a party to 
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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.

1

 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.” (KNBC, supra, 20 Cal.4th 1178, 1226.)

Our review of the decision to deny a request to proceed under a pseudonym

involves a constitutional question, and we therefore use our independent judgment to 

determine whether the trial court’s ruling is correct. (Krinsky v. Doe 6 (2008) 

159 Cal.App.4th 1154, 1161–1162.) Although the trial court applied the correct standard 

to decide the question, it erred by not considering relevant evidence likely to affect the 

answer. In making its decision the court expressly considered the public’s right to access 

court proceedings, and cited KNBC in its order. It considered whether an important 

interest would be prejudiced if the employee were required to publicly disclose his 

identity. Even without any California authority directly on point, it is clear the trial court 

understood the interests it needed to balance. (See, e.g., Does I thru XXIII v. Advanced 

Textile Corp., supra, 214 F.3d 1058, 1068–1073 [setting out factors courts should 

consider in response to a party’s request for anonymity].)

But in deciding whether an overriding interest justified anonymity, the trial court 

expressly declined to consider the employee’s concern about safety of family members in 

India. That was error. Retaliatory harm to family members—wherever they are 

1 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. 
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located—is precisely the kind of interest that may justify allowing a party to litigate 

under a pseudonym. As the trial court acknowledged, substantial risk of harm to the 

employee himself would be sufficient to allow for anonymity. An identifiable risk that 

family members will suffer retaliatory physical harm should be treated the same way. 

Indeed, specific concerns for the safety of family members may sometimes be greater

than the concern for one’s own safety. The fact that the family members are 

geographically distant does not render the concern irrelevant as a threshold matter.

A party seeking anonymity has the burden to show that geographically distant 

family members are at risk. The trial court’s task is to consider the evidence produced on 

that point and assign it the appropriate weight. (See, e.g., Singh v. INS (9th Cir. 1996) 

94 F.3d 1353, 1359 [In asylum proceeding, “whether discrimination, harassment, or 

violence directed at a particular group on account of a protected ground is sufficiently 

offensive to constitute persecution [] must be decided on a case-by-case basis.”].) 

Assessing the specific risk of harm to family members in India is therefore a factdependent exercise and involves factors such as the likelihood of harm to the identified 

family members and how severe the harm would be. Those considerations are critical to

determining whether the risk of harm to family members is an overriding interest that 

outweighs the First Amendment right of public access to court proceedings. The trial 

court never made findings on those points because it deemed the issue of family member 

safety irrelevant and did not consider it further. The trial court should be given the 

opportunity to make the determination in the first instance. We therefore conclude the 

appropriate remedy is to vacate the order denying the request to proceed under a fictitious 

name and direct the trial court to reconsider the issue. When it does so, the court must 

apply the overriding interest test and take into account all considerations relevant to 

determining whether the public’s right of access is outweighed by the employee’s privacy 

interest, including specific risk of retaliatory harm to family members outside the 

jurisdiction.
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III. DISPOSITION

The petition for writ of mandate is granted. Let a peremptory writ of mandate 

issue directing respondent court to vacate its order denying petitioner’s motion to proceed 

using a fictitious name and to reconsider the motion based on the views expressed in this 

opinion. Costs in this original proceeding are awarded to petitioner. 
____________________________________

Grover, Acting P. J.

WE CONCUR:

____________________________

Danner, J. 

____________________________

Lie, J. 

H048962 - Department of Fair Employment and Housing v. Superior Court
Trial Court: Santa Clara County Superior Court

Superior Court No. 20-CV-372366

Trial Judge: Hon. Drew C. Takaichi

Counsel for Petitioner Department of 

Fair Employment and Housing 

Janette L Wipper 

Melanie Lea Proctor

California Department of Fair Employment 

Chaya M. Mandelbaum

Michelle G Lee 

Rudy, Exelrod, Zieff & Lowe, LLP 

Respondent Superior Court of the 

State of California 

(No appearance noted.)

Counsel for Real Party in Interest 

Cisco Systems, Inc. 

Lynne C. Hermle

Joseph C. Liburt

Carolina Aicon Garcia 

Orrick, Herrington & Sutcliffe 

Counsel for Real Parties in Interest

Ramana Kompella and Sundar Iyer

Alexander John Hernaez 

Andrew Stephen Esler

Fox Rothschild LLP 

David M. Axelrad 

Dean Alan Bochner

Horvitz & Levy LLP