Judge Bruce G. Iwasaki, Case Number: 22STCV27366, Date: 2024-01-23 Tentative Ruling

Tentative Ruling: The Application to File Under Seal is granted.

In this employment action, Plaintiffs Jairo Sanchez and Diego Yoque (Plaintiffs) filed a Complaint on August 23, 2022, alleging FEHA claims for discrimination, hostile work environment, as well as retaliation, and whistleblower claims against their employers, Defendants Barlow Respiratory Hospital and Alberto Gomez.

On December 6, 2023, Plaintiff Diego Yoque filed a redacted motion to compel further responses to Special Interrogatories (Set One).

On December 11, 2023, Diego Yoque filed an application to file under seal the unredacted version of his Motion to Compel Further Responses to Special Interrogatories, set one, against Defendant Alberto Gomez. No opposition was filed.

“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.” (California Rules of Court, Rule 2.551, subd. (b)(1).)

The court must make express findings to support sealing under California Rules of Court, Rule 2.550. Specifically, California Rules of Court, Rule 2.550, subdivision (d), provides:

“The court may order that a record be filed under seal only if it expressly finds that:

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

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

The party seeking to seal a document bears the burden of proof. (H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 894.) Specifically, “[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.” (CRC, Rule 2.551, subd. (b)(1).)

Plaintiff Diego Yoque moves for a court order allowing Plaintiff to file portions of Plaintiff’s Motion to Compel Further Responses under seal. Plaintiff argues that the motion contains sensitive allegations pertaining to sexual harassment and abuse. Plaintiff also argues that the information contains medical information and investigatory records.

Rules of Court, Rule 2.550, subd. (a)(3), states: “These rules do not apply to discovery motions and records filed or lodged in connection with discovery motions or proceedings.”

Based on this authority, the rules of court pertaining to sealing do not apply to this motion and Plaintiff may file his documents under seal.

However, had the motion subject to the sealing request been an adjudicatory motion and not a discovery motion, the Court would have denied the motion to seal based on inadequate evidence to support the required showings under California Rules of Court, Rule 2.550, subdivision (d).[1]

By way of background, the California Supreme Court has held that there is a First Amendment right of public access to “ordinary civil trials and proceedings.” (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1212.) As our high court has explained, this constitutional right is a “qualified” one in the sense that the proceedings “are ‘presumptively open’ ” and in order for them to be ordered closed, the court must give advance notice of the potential closure and must conduct a hearing and must make express findings supporting the closure order and/or the sealing of court records. (Id. at p. 1217.)

Since NBC Subsidiary, California Courts of Appeal have regularly employed a constitutional analysis in resolving disputes over public access to court documents. (E.g., In re Marriage of Nicholas (2010) 186 Cal.App.4th 1566, 1575 [holding sealing orders implicate the public’s right of access under the First Amendment.]; Savaglio v. Wal–Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 596 [explaining the public has a First Amendment right to access civil litigation documents filed in court and used at trial or submitted as basis for adjudication].)

Thus, under NBC Subsidiary, before the presumption of openness established by the First Amendment may be overcome, the trial court must hold a hearing and expressly find that (1) there is an overriding interest supporting sealing of the records; (2) there is a substantial probability that the interest will be prejudiced absent sealing; (3) the sealing order is narrowly tailored to serve the overriding interest; and (4) there is no less restrictive means of meeting that interest. (NBC, supra, at pp. 1217–1218.) The Judicial Council codified the NBC constitutional standards in rules 2.550 and 2.551—which are also known as “ ‘the sealed records rules.’ ” (Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 486.)

Here, Plaintiff almost exclusively relies on the parties’ designation that certain documents produced during discovery are confidential pursuant to the parties’ protective order. (Forouzanis Decl., ¶¶ 2-4.)

This grounds alone is inadequate to justify sealing. (McNair v. National Collegiate Athletic Assn. (2015) 234 Cal.App.4th 25, 35–36 [An agreement “alone is insufficient to constitute an overriding interest to justify sealing.”]; CRC, Rule 2.551, subd. (a) [“court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties”].) Specifically, courts have found that enforcement of binding contractual obligations not to disclose “can constitute an overriding interest within the meaning of Rule 243.1(d) [currently California Rules of Court, Rule 2.550].” (Universal City Studios v. Superior Court of Los Angeles County (Unity Pictures Corp.) (2003) 110 Cal.App.4th 1273, 1284 [italics added].) However, in ordering records sealed, the court must also find a substantial probability that the moving party would be prejudiced absent sealing. (Id. at 1280-1284.)

Plaintiff’s evidence also mentions that the sealed information involves “sensitive allegations pertaining to sexual harassment and abuse” and Defendant Gomez’s “medical information” and Defendant Barlow “investigatory records.” (Forouzanis Decl., ¶¶ 3-4.)

These vague references, however, fail to meet Plaintiffs’ burden to make “ ‘a specific showing’ ” that “ ‘serious injury’ ” will occur absent a sealing order. (McNair v. National Collegiate Athletic Assn., supra, 234 Cal.App.4th at p. 35; Huffy Corp. v. Superior Court (2003) 112 Cal.App.4th 97, 106 abrogated on other grounds in Curtis v. Superior Court (2021) 62 Cal.App.5th 453, 471; CRC, rule 2.550(d)(3).) “ ‘ “Broad allegations of harm, bereft of specific examples or articulated reasoning” ’ ” are insufficient. (McNair v. National Collegiate Athletic Assn., supra, 234 Cal.App.4th at p. 35.)

Further, this specific showing must be significant. For example, our state constitution recognizes a right to privacy in one’s financial information (Cal. Const., art. I, § 1; Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656.) Nonetheless, “state constitutional privacy rights do not automatically ‘trump’ the First Amendment right of access under the United States Constitution.” (In re Marriage of Burkle (2006) 135 Cal.App.4th 1045, 1059.) Instead, the ruling turns on the context and the nature of the information sought to be sealed.

Although privacy rights have been deemed to outweigh First Amendment public access rights when such highly sensitive information as identifying account or Social Security numbers are involved[2] – the size and existence of an asset, settlement, or salary is information that has been found unworthy of this significant protection. (In re Marriage of Tamir (2021) 72 Cal.App.5th 1068,1088–1089, fn. 8; In re Marriage of Burkle (2006) 135 Cal.App.4th 1045, 1063-1066, 1070; Copley Press v. Superior Court (1998) 63 Cal.App.4th 367, 376 [“we find no authority [to support the proposition] that the amount of money a person receives in judgment or court-approved settlement as the result of tortious conduct is confidential”].)

Accordingly, the Court grants Plaintiff’s application to seal. Plaintiff is ordered to file the unredacted version of the motion and any supporting documentation electronically; “the burden of accurately designating the documents as sealed at the time of electronic submission is the submitting party’s responsibility.” (First General Order, dated May 3, 2019, § 4(i).)

[1] The Court includes this analysis based on Plaintiff’s argument that his application meets the requirements of California Rule of Court, Rule 2.551. (App., p. 3:2-26.)

[2] (See NBC Subsidiary, supra, 20 Cal.4th at 1223, fn. 46 [listing examples of cases where overriding interests have been found].)

Department 58