Judge: Anne Richardson, Case: 24STCV00917, Date: 2024-03-27 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 24STCV00917    Hearing Date: March 27, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Court Order

I. Background

A. Pleadings

Plaintiff Cetera Advisor Networks LLC sues Defendants Kimberly Tuminello, in her capacity as purported Trustee of the John Richard Jackson and Sharon Elaine Jackson Revocable Inter-Vivos Trust, and in her capacity as purported attorney-in-fact under John Richard Jackson’s durable power of attorney, and John Richard Jackson, in his individual capacity and in his capacity as purported Trustee of the John Richard Jackson and Sharon Elaine Jackson Revocable Inter-Vivos Trust (the Trust); and Does 1-10 pursuant to a January 11, 2024 Complaint in Interpleader.

The Complaint arises from a dispute between Defendants John Richard Jackson and Kimberly Tuminello as to who among them has the authority to manage the accounts that Jackson holds at Cetera. Tuminello contends that Jackson meets the definition of “incapacitated” under Jackson’s Trust, and as a result, she is the acting trustee of the Trust as well as the attorney-in-fact under Jackson’s durable power of attorney. On information and belief, Jackson denies this, and has since prepared documentation purporting to remove Tuminello both as successor Trustee and his attorney-in-fact and appointing a new successor trustee in Tuminello’s place. Tuminello and Jackson have given Cetera conflicting instructions as to where to disburse certain of Jackson’s funds held at Cetera, and Cetera cannot comply with either or both of the instructions without the risk of double vexation.

B. Motion Before the Court

On January 18, 2024, Cetera filed a motion to seal four portions of its Complaint in Interpleader.

That same day, Cetera filed a notice of lodging with the Court, containing an unredacted copy of the Cetera Complaint in Interpleader.

Later, Cetera electronically lodged the unredacted copy of the Complaint in Interpleader with the Court.

C. Service, Answers, and Related Case

On January 25, 2024, the Complaint, summons, motion to seal, and other documents were served on Defendant Tuminello.

On January 31, 2024, Cetera filed proof of service.

On February 1, 2024, the Complaint, summons, motion to seal, and other documents were served on Defendant Jackson.

On February 2, 2024, Cetera filed proof of service.

On March 7, 2024, Defendant Jackson filed an Answer to Complaint.

On March 8, 2024, Defendant Tuminello filed a Response to Complaint (an answer).

D. Instant Proceedings

Cetera’s motion to seal is now before the Court.

As of the date of this ruling, Cetera’s motion is unopposed.

II. Motion to Seal: GRANTED.

A. Procedural Requirements

1. Motion to Seal – Moving Papers

A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” (Cal. Rules of Court, Rule 2.551, subd. (b)(1).)

Here, Cetera has filed a motion to seal supported by points and authorities. (Mot., pp. 1-4.)

2. Motion to Seal – Service

A copy of the motion or application must be served on all parties that have appeared in the case. Unless the court orders otherwise, any party that already possesses copies of the records to be placed under seal must be served with a complete, unredacted version of all papers as well as a redacted version.” (Cal. Rules of Court, rule 2.551, subd. (b)(2).)

Here, the motion to seal was served on Defendants on January 25, 2024 (Tuminello) and February 1, 2024 (Jackson). (1/31/24 Proof of Service; 2/2/24 Proof of Service.)

3. Motion to Seal – Lodging

Unless good cause exists, a record to be filed under seal must be put in an envelope or other appropriate container labeled ‘CONDITIONALLY UNDER SEAL,’ have a cover sheet affixed thereto with an appropriate caption page stating the envelope contains a motion to file a record under seal and be lodged in the sealed envelope with the Court. (Cal. Rules of Court, rule 2.551, subds. (b)(4), (d)(2), (d)(4).)

Here, an unredacted copy of the Complaint in Interpleader was filed with the Court for review on January 18, 2024 and again electronically on March 26, 2024.

4. Motion to Seal – Redacted and Unredacted Versions

If necessary to prevent disclosure, any motion to seal and any supporting documents must be filed in a public redacted version and lodged in a complete, unredacted version conditionally under seal. The cover of the redacted version must identify it as “Public-Redacts materials from conditionally sealed record” while the cover of the unredacted version must identify it as “May Not Be Examined Without Court Order-Contains material from conditionally sealed record.” (Cal. Rules of Court, rule 2.551, subd. (b)(5).)

Here, a redacted copy of the Complaint in Interpleader appears in the public record.

B. Substantive Discussion

1. Motion to Seal – Findings

“The public has a First Amendment right of access to civil litigation documents filed in court and used at trial or submitted as a basis for adjudication.” (Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 596 (Savaglio), citing NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1208-1209, fn. 25.)

Therefore, before a trial court orders a record sealed, it must hold a hearing and make express findings set forth in California Rules of Court, rule 2.550, subdivision (d): (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. (Savaglio, supra, at p. 596; Cal. Rules of Court, rule 2.550, subd. (d).) A court’s order allowing documents to be filed under seal must contain express factual findings establishing these five factors. (Cal. Rules of Court, rule 2.550, subd. (d).)

After review, the Court finds merit to Cetera’s unopposed motion.

Here, Cetera seeks a court order sealing portions of the Complaint in Interpleader, specifically, seeking redactions of text in paragraphs four, 12, 16, and 22. (Mot., p. 1.)

Cetera argues that there is an overriding interest in sealing the record as requested because the portions of the Complaint that Cetera seeks to redact “(1) … identify the amount [Defendant] Jackson withdraws from his Cetera account on a monthly basis and (2) the medical opinions reached by two of his doctors in recent reports. (Mot., King Decl., ¶ 2).

The Court agrees. An in-camera review of the Cetera Complaint in Interpleader shows (1) three references to the monthly amounts paid to Defendant Jackson from the accounts at Cetera, where Cetera’s motion to seal seeks to redact from the record the specific dollar amount disbursed to Jackson (¶¶ 4, 16, 22), and (2) references to medical history and diagnoses for Defendant Jackson (¶ 12). A right to privacy arises from such information. (In re Ins. Installment Fee Cases (2012) 211 Cal.App.4th 1395, 1428 [right to informational privacy in financial affairs]; Ruiz v. Podolsky (2010) 50 Cal.4th 838, 850-851 [right to informational privacy in medical information].)

The Court also determines that the right to privacy interests discussed above support sealing the record as to paragraphs four, 12, 16, and 22 of the Complaint in Interpleader, a substantial probability exists that Defendant Jackson’s right to privacy will be completely undercut by disclosure of his financial and medical information in the public record, and the redactions at issue are narrowly tailored with no less restrictive means to achieve the protection of Defendant Jackson’s right to privacy—the redactions in paragraphs four, 16, and 22 only involve the exact monthly monetary disbursement figure, and the redaction in paragraph 12 involves medical information.

Cetera’s motion is thus GRANTED.

III. Conclusion

Plaintiff Cetera Advisor Networks LLC’s Motion to File Portions of Cetera Advisor Networks LLC’s Complaint in Interpleader Under Seal is GRANTED.