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Case Number: 18STCV09829    Hearing Date: June 24, 2021    Dept: 36

 

Superior Court of California

County of Los Angeles

Department 36

 

 

DAVID DANON,

                        Plaintiff,

            v.

SHARON JOHNSON,

                        Defendant.

Case No.:        18STCV09829

Hearing Date: 6/24/2021

[TENTATIVE] RULING RE: Motion to Seal (Redact) Records

 

The motion is denied.

 

Notice of Motion

            A motion to seal records must be served on all parties that have appeared in the case. (CRC Rule 2.551(b)(2).) Defendant’s motion attaches proof of service by mail on May 3, 2021. Plaintiff’s opposition shows proof of service by mail on May 19, 2021, which was untimely adding five days for service by mail. (CCP § 1005(b).) In light, however, that the Defendant has timely replied, the court continued this hearing, and no objection has been made to late service, the court proceeds to address the merits.

            Defendant on May 21, 2021, filed a second motion requesting redaction of documents that were filed after Defendant’s initial motion, on the same grounds. The court continued the original hearing date to the date reserved for that second motion, and considers those subsequently-filed documents as if included in the original motion.

 

Discussion

            “Unless confidentiality is required by law, court records are presumed to be open.” (CRC Rule 2.550(c).)

 

A. Redaction

            Defendant’s motion, filed as a motion to seal, requests redaction of certain information from filings. The court addresses the motion as one for redaction of name, address, and related case names and numbers, not a motion to seal documents or seal other information apart from this specific information.

 

B. Requested Documents

Defendant moves the court pursuant to Code of Civil Procedure, Section 367.3 for an order redacting identifying information from the following documents previously filed in this action: (1) Complaint; (2) Summons; (3) Proof of Service; (4) Cover Sheet; and (5) all documents previously filed in this case, which Defendant has listed on an attachment MC-025. The documents listed number between 150-200 documents, and encompass both this action (Los Angeles Superior Court Case No. 18STCV09829) as well as documents filed in the consolidated action, Los Angeles Superior Court Case No. 18SMSC03542. Defendant has attached a declaration on mandatory Judicial Council form SH-022.

 

C. Safe at Home Program

            Defendant asserts entitlement to redaction pursuant to the Safe at Home confidential address program and Code of Civil Procedure, section 367.3. “The court, on motion of the protected person, may order a record or part of a record to be filed under seal in accordance with Rules 2.550 and 2.551 of the California Rules of Court, as those rules may be amended.” (CCP § 367.3(b)(4).)

The Safe at Home program provides a substitute mailing address for victims of domestic violence, stalking, sexual assault, human trafficking and elder and dependent abuse, as well as certain health care workers, a substitute mailing address to receive mail, providing a means for the victim to keep a new residence address confidential. (See Govt. Code §§ 6205-6210; Govt. Code §§ 6215-6216.) Assembly Bill 800 added section 367.3 to the Code of Civil Procedure, and “permit[s] a person who is a participant in the address confidentiality program and a party to a civil action to proceed using a pseudonym and to exclude or redact other identifying characteristics of the person from all pleadings and documents filed in the action, as specified. Parties to the action would be required to use the pseudonym at proceedings open to the public and to exclude and redact other identifying characteristics of the plaintiff from documents filed with the court.” (A.B. 800, 2019 Cal. Legis. Serv. Ch. 439.)

Code of Civil Procedure, section 367.3, was made effective as of January 1, 2020. (CCP § 367.3.) Under the program:

 

A protected person who is a party in a civil proceeding may proceed using a pseudonym, either John Doe, Jane Doe, or Doe, for the true name of the protected person and may exclude or redact from all pleadings and documents filed in the action other identifying characteristics of the protected person. A protected person who proceeds using a pseudonym as provided in this section shall file with the court and serve upon all other parties to the proceeding a confidential information form for this purpose that includes the protected person's name and other identifying characteristics being excluded or redacted. The court shall keep the confidential information form confidential.

(Code Civ. Proc., § 367.3(b)(1).) A “protected person” means “a person who is an active participant in the address confidentiality program created pursuant to Chapter 3.1 (commencing with Section 6205) of Division 7 of Title 1 of the Government Code.” (Id. at (a)(3).)

Defendant has filed and served the required Judicial Council SH-001 form required under Code of Civil Procedure, section 367.3(b)(1).

 

D. Discussion

To grant an order pursuant to California Rules of Court, rules 2.550 and 2.551, the court must expressly find facts that establish:

 

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and

(5) No less restrictive means exist to achieve the overriding interest.

 

(Cal. Rules of Court, rule 2.550(d).)

Defendant has brought evidence in support that Defendant is a participant in California’s Safe at Home program. (Doe Decl. ¶ 4.) This satisfies the definition of Defendant as a “protected person” under the Safe at Home program. (CCP § 367.3(a)(3).) There is no evidence to the contrary of this fact.

Defendant identifies an overriding interest in Plaintiff’s safety or confidentiality that overcomes the right of public access to the records in this proceeding. (Doe Decl. ¶ 4.) In support that a substantial probability exists that the overriding interest will be prejudiced without sealing, Defendant attests to being a victim of sexual crimes by the Plaintiff; that Plaintiff has threatened to track and kill Defendant; and that the public would have access to sensitive details of actions committed against her as a matter of public record. (Doe Decl. ¶ 5.) The foregoing supports an interest in Plaintiff’s safety or confidentiality that Code of Civil Procedure section 367.3 supports is an overriding interest, by providing that participants are entitled to proceed pseudonymously. (CCP § 367.3(b)(1).)

However, in this case, the court does not find that a substantial probability exists the overriding interest will be prejudiced without redaction and supporting sealing the record. Defendant requests retroactive redaction of Defendant’s name and address from numerous documents in this action over the course of approximately eighteen months. “[T]here is no justification for sealing records that contain only facts already known or available to the public.” (H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 898.) Prior to Defendant’s first motion to redact documents, the parties proceeded for over thirteen months, both sides filing documents without anonymity. The consolidated action (Los Angeles Superior Court Case No. 18SMSC03542) was commenced by Defendant (as a plaintiff in that action) on November 6, 2018, litigated without anonymity, and disposed of by Judgment on January 17, 2019. A similar motion was not brought in that case. As a practical matter, Defendant’s identity has been publicly available in this action for a significant time, as well as in the other action. Next, the court notes that the primary purpose of the Safe at Home program is to provide a means for the victim to keep a new residence address confidential; and the Defendant has not brought facts to the court’s attention that a new residential address used by Defendant has been disclosed in the filings. These facts undermine Defendant’s argument that Defendant’s interest in safety and confidentiality under the Safe at Home program would be prejudiced if the record is not sealed or redacted, as the information disclosing the Defendant’s identity have been public for at least this time, and there is no showing that a new residential address has been disclosed. (Cf. Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 600 (unsealed documents filed before obtaining order to seal inconsistent with intent to enforce rights to obtain sealed records).)

Moreover, though not deciding on these grounds, the motion raises concerns about retroactive application of the statute, effective as of January 1, 2020, when retroactively applied dating back to documents filed in 2018 and 2019. (See Quarry v. Doe I (2012) 53 Cal.4th 945, 955 (California presumption against retroactive application).)

Plaintiff opposes that the facts Defendant asserts are disputed and untrue. Plaintiff has filed a declaration in support of this argument. Defendant’s declaration and Plaintiff’s declaration show a direct dispute of material facts. (Compare Doe Decl. ¶ 6, with Danon Decl. ¶ 5.) However, the court finds the instant motion not the appropriate place to resolve the factual dispute; resolution would be premature prior to evidentiary hearings such as summary judgment. Next, requiring resolution of evidentiary disputes at this point in the litigation would not appear to align with the purpose of the Safe at Home program.

Defendant attests the proposed sealing is narrowly tailored because the versions of the documents submitted to the court redact only the Plaintiff’s identifying characteristics. (Doe Decl. ¶ 6.) Defendant also attests no less restrictive means exist to achieve the overriding interest of Plaintiff’s safety or confidentiality because the documents submitted with the court do not redact any information other than Plaintiff’s identifying characteristics. (Doe Decl. ¶ 7.) Defendant has not attached the proposed redacted documents, and several documents have not been identified by listing their dates; and from the documents listed, it appears that Defendant intends to redact at least Defendant’s name, address, and related case numbers and case names, which would seem to be covered under the Safe at Home program as identifying characteristics. (See CCP § 367.3(a)(1).) The court does not make these required findings, in light of the numerous documents in this action, which amount on the whole to retroactive redaction of the entire record, and a failure to show that a less restrictive means exist to achieve the interest in light of the same.

            Next, Plaintiff opposes that Defendant has not made a clear enumeration of specific facts under H.B. Fuller Co. v. Doe, which provides:

 

[A] reasoned decision about sealing or unsealing records cannot be made identifying and weighing the competing interests and concerns. Such a process is impossible without (1) identifying the specific information claimed to be entitled to such treatment; (2) identifying the nature of the harm threatened by disclosure; and (3) identifying and accounting for countervailing considerations. The burden of presenting information sufficient to accomplish the first two steps is logically placed upon the party seeking the sealing of the documents, who is presumptively in the best position to know what disclosures will harm him and how. This means at a minimum that the party seeking to seal documents, or maintain them under seal, must come forward with a specific enumeration of the facts sought to be withheld and specific reasons for withholding them.

. . .

In any event, without a clear enumeration of specific facts alleged to be worthy of the extraordinary measure of maintaining our records under seal, there is simply no basis to conclude that unsealing the records will actually infringe any interest of plaintiff's or inflict any harm on it.

((2007) 151 Cal.App.4th 879, 894-95, 898 (H.B. Fuller).)

In H.B. Fuller, the plaintiff was found not to have identified specific facts when the plaintiff requested to seal documents that only matters that were not confidential, nor any specific facts imparted at described meetings that were confidential, or not available to the public, nor did it indicate what facts met the description of confidential information. (H.B. Fuller, 151 Cal.App.4th at 895.) The parties in the case had stipulated to file records under seal including various declarations. (See id. at 885.)

Insofar as H.B. Fuller is offered for the proposition that identifying information such as place of residence is not confidential, it is inapplicable; such information is the key information under the Safe at Home program to redact for participants in the address confidentiality program. (See generally H.B. Fuller, 151 Cal.App.4th at 895.) Here, the Defendant identifies personal identifiers as confidential information subject to redaction and grounds for entitlement to redaction as confidential information under the Safe at Home program.

However, as discussed above, the court has not made each of the required findings under Code of Civil Procedure, section 2.550. Next, the balancing of countervailing considerations in light of the public right of access to the record does not support the redactions requested, in light of the failure to show prejudice attributable to denial of sealing or redaction of the record, at this late point in the litigation.

 

E. Conclusion

            Based on the foregoing, the motion is denied both as to redaction and sealing the record.

The court has received a number of documents that have been lodged and filed under seal. No further documents may be filed under seal, as there is no court order authorizing the parties to do so. (CRC Rule 2.551(a).) Documents filed under seal are not to be examined. All documents lodged under seal are to be returned to the parties and not placed in the case file, unless the parties notify the clerk in writing within 10 days that the record is to be filed unsealed. (CRC Rule 2.551(b)(6).) Lodged records will not be unsealed by the court in order to review their contents.

 

 

Dated:                                                                                     ____________________________

Gregory Alarcon

Superior Court Judge

 



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