Judge: Christopher K. Lui, Case: 20STCV35441, Date: 2022-08-18 Tentative Ruling
Case Number: 20STCV35441 Hearing Date: August 18, 2022 Dept: 76
Plaintiff alleges that, without compensating or crediting her,
Defendants misappropriated, used and exploited Plaintiff’s protected work, ideas,
and concepts for an innovative treatment and script to produce their own movie for
profit.
Defendants Warner Bros. Entertainment Inc. and New Line Productions, Inc. move to seal documents lodged conditionally under seal.
Defendants Warner Bros. Entertainment Inc., New Line Productions, Inc., Melissa McCarthy, Benjamin Scott Falcone, and On the Day Productions, LLC move for summary judgment, or in the alternative, summary adjudication, as to the Complaint.
Defendants Ratpac Entertainment, LLC and Brett Ratner
move for summary judgment or, in the alternative, summary adjudication, as to the
Complaint.
THE COURT HAS NOT PREPARED A TENTATIVE RULING ON THE RATPAC DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
TENTATIVE RULING
Defendants Warner Bros. Entertainment, Inc. and New Line Productions, Inc.’s motion to seal is DENIED. Within 10 days of this order, Defendants are ordered to either consent to the subject document being filed unsealed, or may in the alternative, file a version of the exhibit which redacts information that Defendants deem to be too sensitive for public disclosure. (Cal. Rules of Court 2.551(b)(6).) Otherwise, the entire lodged record will be returned to Defendants and will not be considered by the Court.
Defendants Warner Bros. Entertainment Inc., New Line Productions, Inc., Melissa McCarthy, Benjamin Scott Falcone, and On the Day Productions, LLC’s motion for summary judgment is CONTINUED to September 15, 2022 at 8:30 AM. Defendants are to publicly file properly redacted versions of their notion of motion / memorandum of points and authorities, separate statement, and compendium of evidence by September 1, 2022 (which is the date on which Defendants Warner Bros., et al.’s motion to seal is to be heard). Plaintiff is also to file an unredacted version of the Evidence In Support of the Opposition by September 1, 2022.
ANALYSIS
Motion To Seal
Defendants
Warner Bros. Entertainment Inc. and New Line Productions, Inc. move to seal the
following document lodged conditionally under seal: The Slate Co-Financing and Distribution
Agreement dated September 30, 2013 (attached as Exhibit A to the Declaration of
Brett Ratner, and as Exhibit A to the Declaration of Wayne M. Smith in the Compendium
of Evidence), which was lodged in support of Defendant Brett Ratner and RatPac Entertainment
LLC’s motion for summary judgment or, in the alternative, summary adjudication.
A motion seeking an order sealing the record
must be accompanied by “a declaration containing facts sufficient
to justify the sealing.” (Cal. Rules of Court 2.551(b)(1) [bold emphasis
and underlining added].) Per CRC Rule 2.550(d),
a court may order that a record be filed under seal “only if it expressly finds facts that establish” all of the following:
(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,
2.550(d)[bold emphasis added].)
CRC Rule 2.550(e) provides:
(1) An order
sealing the record must:
(A) Specifically state the facts that support the
findings;
(B) Direct the sealing of only those documents and
pages, or, if reasonably practicable, portions of those documents and pages, that
contain the material that needs to be placed under seal. All other portions of each
document or page must be included in the public file.
[Cal. Rules of Court 2.550(e).]
“A request to seal a document must be
filed publicly and separately from the object of the request. It must be supported by a factual declaration
or affidavit explaining the particular needs of the case.” (In re
Marriage of Lechowick (1998) 65 Cal.App.4th 1406, 1416 [bold emphasis and underlining
added].)
The fact that the documents sought to be sealed were designed confidential
subject to protective order is, by itself, insufficient to justify sealing.
“Unless confidentiality is required by
law, court records are presumed to be open.” (Cal. Rules of Court 2.550(c)[bold emphasis and underlining added]). “The trial court cannot rely solely on an agreement or stipulation of
the parties as the basis for permitting records to be filed under seal.
(Citations omitted.)” (Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th
588, 600 [bold emphasis and underlining added].)
Accordingly, moving party must demonstrate by way of a factual
declaration or affidavit that all of the CRC Rule 2.550(d)
requirements for sealing have been met.
¿ CRC Rule 2.550(d) factors:
(1) There exists an overriding interest that
overcomes the right of public access to the record:
In terms of the
overriding interest requirement of a closure or sealing order, NBC Subsidiary identifies
two separate elements. The first element requires the identification of an overriding
interest. (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, supra, 20 Cal.4th at
pp. 1217–1218; see In re Providian Credit Card Cases, supra, 96 Cal.App.4th at p.
298, fn. 3.) Defendant has identified such a potential overriding interest—a binding
contractual agreement not to disclose.
. . .
We agree with defendant
that its contractual obligation not to disclose can constitute an overriding interest
within the meaning of rule 243.1(d). (Publicker Industries, Inc. v. Cohen, supra,
733 F.2d at p. 1073; NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, supra, 20
Cal.4th at p. 1222, fn. 46.)
(Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th
1273, 1283.)
Here, Defendants identify the financing
agreement having been designated as “Confidential” under the Stipulated Protective
Order signed by the Court on March 10, 2021. Defendants argue that the Slate Co-Financing
and Distribution Agreement dated September 30, 2013 contains sensitive, proprietary
information pertaining to WBEI’s and New Line’s means of conducting business and
non-public financial data that has been kept, and should continue to be kept, confidential.
Defendants’ interest in keeping
the information confidential constitutes an overriding interest the right of public
access to the record.
This requirement
is satisfied.
(2) The overriding interest supports sealing
the record;
Moving
party does not explain why the overriding interest supports sealing, as opposed
to redaction, of the record.
This
requirement is not satisfied.
(3) A substantial probability exists that the
overriding interest will be prejudiced if the record is not sealed;
Although moving party has identified
an overriding interest, that, by itself, is insufficient to justify a sealing order.
We have been unable to find any appellate
court decision which construes Publicker to permit
sealing of court documents merely upon the agreement of the parties without a specific
showing of serious injury. We therefore, with respect, reject defendant’s broad
reading of the citation to Publicker in footnote
46 of NBC Subsidiary.
. . . [O]nce it
is established there is a potential overriding interest, the party seeking closure
or sealing must prove prejudice to that interest is substantially probable.
( NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, supra, 20 Cal.4th at p. 1222.)
In
terms of the overriding interest requirement of a closure or sealing order, NBC Subsidiary identifies
two separate elements. The first element requires the identification of an overriding
interest. ( NBC Subsidiary (KNBC-TV), Inc. v. Superior
Court, supra, 20 Cal.4th at pp. 1217–1218; see In re Providian Credit Card Cases, supra, 96 Cal.App.4th at p. 298, fn. 3.) Defendant has identified such a potential overriding
interest—a binding contractual agreement not to disclose. The second element of the overriding interest
analysis is there must be a substantial probability that it will be prejudiced absent
closure or sealing. ( NBC Subsidiary (KNBC-TV),
Inc. v. Superior Court, supra, 20 Cal.4th at
p. 1218; Pack v. Kings County Human Services Agency (2001) 89 Cal.App.4th 821, 832 [107 Cal. Rptr. 2d
594].) As we will note, defendant has
not shown a substantial probability any such interest in the present case will be
prejudiced—the second element of overriding interest analysis identified in
NBC Subsidiary. This analysis has now been promulgated
by the Judicial Council as one of the findings that must be returned before a sealing
order can be entered. (Rule 243.1(d)(3) [“A substantial probability exists that
the overriding interest will be prejudiced if the record is not sealed ….”].)
(Universal City Studios, Inc., supra,
110 Cal.App.4th at 1282-83 [bold emphasis and underlining added].)
Moving party has
not presented admissible evidence that the overriding interest will be prejudiced
if the record is not sealed.
“In delineating
the injury to be prevented, specificity is essential. [Citation.] Broad allegations
of harm, bereft of specific examples or articulated reasoning, are insufficient.”
( In re Cendant Corp., supra, 260 F.3d at p. 194 .) We have been unable to find any appellate court decision which construes
Publicker to permit sealing of court documents merely upon the agreement of the
parties without a specific showing of serious injury. We therefore, with
respect, reject defendant’s broad reading of the citation to Publicker in footnote
46 of NBC Subsidiary.
(Universal City
Studios, Inc., supra, 110 Cal.App.4th at 1280-82 [bold emphasis and underlining
added].)
Indeed, the barebones
Declaration of Arwen R. Johnson falls woefully short of meeting the above evidentiary
standard.
This requirement
is not satisfied.
(4) The proposed sealing is narrowly tailored;
The proposed sealing does not
appear to be narrowly tailored, as the entire exhibit is sought to be sealed, rather
than portions thereof.
This
requirement is not satisfied.
(5) No less restrictive means exist to achieve
the overriding interest.
Moving party has not addressed why redaction
would be insufficient to achieve the overriding interest.
This requirement is not satisfied.
As such, the
motion to seal is DENIED. Within 10 days of this order, Defendants are ordered to
either consent to the subject document being filed unsealed, or in the
alternative, may file a version of the exhibit which redacts information that Defendants
deem to be too sensitive for public disclosure. (Cal,. Rules of Court 2.551(b)(6).)
Otherwise, the entire lodged record will be returned to Defendants and will not
be considered by the Court.
Melissa McCarthy, Benjamin Scott
Falcone, and On the Day Productions, LLC’s Motion For Summary Judgment
REDACTED VERSION OF DOCUMENT CONDITIONALLY
FILED UNDER SEAL
COMPLETE DOCUMENT SOUGHT TO BE SEALED
This also applies to the Separate
Statement and Compendium of Evidence.
This form of submitting papers to
the Court is unacceptable, as there is no indication in the public record as to
ANY argument or evidence which the Court would consider in ruling on this motion. In NBC Subsidiary, the California Supreme
Court approvingly cited numerous cases for the proposition that there is a
First Amendment right of access to “civil litigation documents filed in court
as a basis for adjudication.” (NBC Subsidiary,
supra, 20 Cal.4th 1178 at 1208 n.25.)
The Court is unaware of any scenario that would justify the Court considering
a motion composed of non-public arguments, based entirely on non-public
undisputed facts, supported by non-public evidence. Assuming such a scenario even exists, the Warner
Bros. defendants have not met the considerable burden of showing that it exists
here.
The
Court also notes that the procedure followed by the Warner Bros. defendants
does not follow Rule of Court 2.551. The
motion to seal did not justify, much less address, a basis for sealing the entire
notice of motion and memorandum of points and authorities, yet the entire set
of documents was filed conditionally under seal.
Likewise,
Plaintiff’s Evidence In Support of the Opposition does not contain any information,
and simply states that the complete document is sought to be sealed. However, Plaintiff
did not file a motion to seal its opposition.
As
such, the hearing on Defendants Warner Bros. Entertainment
Inc., New Line Productions, Inc., Melissa McCarthy, Benjamin Scott Falcone, and
On the Day Productions, LLC’ s motion for summary judgment/summary adjudication
is CONTINUED to September 15, 2022 at 8:30 AM. Defendants are to publicly file properly redacted
versions of their notion of motion / memorandum of points and authorities, separate
statement, and compendium of evidence by September 1, 2022 (which is the date on
which Defendants Warner Bros., et al’s motion to seal is to be heard). Plaintiff is also to file an unredacted version
of the Evidence In Support of the Opposition by September 1, 2022, as no motion
to seal these documents has been filed.