Judge: Anne Richardson, Case: BC595770, Date: 2023-10-16 Tentative Ruling

Case Number: BC595770    Hearing Date: February 28, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Pleadings

Plaintiff Kenneth D. Rickel sues Defendants Martin W. Enright, Esq. (Enright), Littman Krooks, LLP (Littman Krooks), and Does 1 through 20 pursuant to a March 13, 2017 Second Amended Complaint (SAC) alleging claims of (1) Breach of Fiduciary Duty, (2) Fraud, (3) Legal Malpractice, (4) Breach of Contract, (5) Intentional Interference with Prospective Economic Advantage, and (6) Negligent Interference with Prospective Economic Advantage.

The claims arise from allegations that, among other things, Plaintiff retained Defendants as legal counsel for the creation of various entities: a hedge fund, an investment adviser entity for the hedge fund, and a managing member entity for the hedge fund. The SAC alleges that Plaintiff hired Defendants to perform these services on behalf of Plaintiff, Plaintiff’s business partner (named elsewhere as Alexander J. Davis, Plaintiff’s stepson), and their company (KA Consolidated, LLC). The SAC further alleges that Defendants assisted Plaintiff’s unnamed business partner (Davis) in creating and operating other business entities that competed with and divested business opportunities from KA Consolidated, resulting in breaches of fiduciary duties by Plaintiff’s partner and Defendants, as well as diverted earnings of more than $10 million.

The action was originally assigned to Department 57 at the Stanley Mosk Courthouse before it was transferred to Department 40 at the Stanley Mosk Courthouse (the Court) on March 1, 2023.

Motion Before the Court

On February 13, 2024, non-party Alexander J. Davis’s filed a motion to seal Exhibits A, B, E, and J attached to Defendants’ motion in limine No. 4 and Exhibits A, B, E, and F attached to Defendants’ opposition to Plaintiff’s motion in limine Nos. 10-11.

The motion was served on counsel for Plaintiff and counsel for Defendants, is unopposed, and is now before the Court.

Motion to Seal

I.

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, a motion to seal the exhibits at issue was filed by non-party Alexander J. Davis on February 13, 2024. (Mot., p. 1.)

II.

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, a proof of service is attached to the motion to seal showing service on counsel for Plaintiff and counsel for Defendants. (Mot., Proof of Service, Service List.)

III.

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, this requirement need not be satisfied because the exhibits at issue have been previously filed in the public record by parties in this action, i.e., Exhibits A, B, E, and J attached to Defendants’ motion in limine No. 4 and Exhibits A, B, E, and F attached to Defendants’ opposition to Plaintiff’s motion in limine Nos. 10-11.

IV.

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, because nondisclosure cannot be effected by filing unredacted copies of documents already in the public record, this requirement need not be satisfied.

V.

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).)

Here, the Court finds sufficient grounds exist to grant this motion.

The Court finds an overriding interest in the documents to be sealed. As argued by non-party Alexander J. Davis: “The Exhibits are documents or contain information that has justifiably been designated as ‘Confidential’ and ‘Highly Confidential’ by the parties pursuant to the Protective Order entered in the matter Davis v. Rickel, 20SMCV01367 (the ‘Davis Litigation’) on June 3, 2021 (the ‘Davis Protective Order’) because they contain private and sensitive information concerning the finances and business practices of Davis and his investors and business partners (collectively the ‘Protected Parties’), in which the general public has no interest. (See Mot., pp. 5-8.)

The Court further determines that this interest supports sealing of the record already made public through the parties’ filings, that non-party Alexander J. Davis will suffer ongoing prejudice by non-sealing of the record, the proposed sealing is narrowly tailored to protecting the already-disclosed information at issue, and no less restrictive means exist to achieve this overriding interest. (See Mot., pp. 5-8.)

Non-party Alexander J. Davis’s motion to seal is thus GRANTED. 

Conclusion

Non-Party Alexander J. Davis’s Motion to Seal Exhibits A, B, E and J Filed ISO Defendants’ Motion in Limine No. 4 and Exhibits A, B, E, and F Filed ISO Defendants’ Opposition to Plaintiff’s Motion in Limine Nos. 10-11 is GRANTED.