The moving, opposition and reply papers are ordered stricken pursuant to Civ. Proc. Code, § 436(b)(court at any time in its discretion may strike any pleading not drawn or filed in conformity with laws of this state, a court rule, or an order of the court).  None of the parties followed the requirements of Rule of Court 2.550 and 2.551 with regard to the filing of sealed papers by filing either a motion to seal filed in accordance with Rule 2.551(b), or a written notice pursuant to Cal. Rules of Court, Rule 2.551(b)(3) (documents lodged conditionally under seal will be placed in public court file unless a timely motion to seal is filed).

The Court's February 27, 2023 protective order is not a basis for sealing documents submitted in connection with the instant motion:  That order states that "Where any Confidential Materials or Highly Confidential Materials, or Information derived therefrom, is included in any motion or other proceeding governed by California Rules of Court, Rules 2.550 and 2.551, the Parties and any involved non-party shall follow those rules."  (2/27/23 Protective Order at 11; see Cal. R. Ct. 2.550(a)(3) ("These rules do not apply to discovery motions and records filed or lodged in connection with discovery motions or proceedings. However, the rules do apply to discovery materials that are used at trial or submitted as a basis for adjudication of matters other than discovery motions or proceedings.") (emphasis added).)  The fact that the protective order was a stipulated order is not a basis for sealing.  (See Cal. R. Ct. 2.551(a) (The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.")

Code of Civil Procedure section 124 provides that “[e]xcept as provided in Section 214 of the Family Code or any other law, the sittings of every court shall be public.”  In NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, the California Supreme Court discussed the First Amendment underpinnings of the public right of access to civil proceedings:  

We conclude, in light of the high court case law and its progeny, that, in general, the First Amendment provides a right of access to ordinary civil trials and proceedings, that constitutional standards governing closure of trial proceedings apply in the civil setting, and that section 124 must, accordingly, be interpreted in a manner compatible with those standards.

(NBC Subsidiary, 20 Cal.4th at 1212.)  NBC Subsidiary also set forth the procedure that must be followed when considering a closed proceeding.

Although, prior to the 1980's, closure and/or sealing under the common law and pursuant to the statute may have been permissible under circumstances that would fail to meet the minimum  constitutional standards set out in more recent United States Supreme Court decisions, it is clear today that substantive courtroom proceedings in ordinary civil cases are “presumptively open” and that section 124 must be interpreted to preclude closure of proceedings that satisfy the high court's historical tradition/utility considerations — unless two things occur.

First, a trial court must provide notice to the public of the contemplated closure. Based upon authorities from other jurisdictions that have considered the question, we conclude that when a motion to close a proceeding is made in open court (or, for example, at a closed bench conference held during open court proceedings), adequate notice of the contemplated closure is provided if the trial judge thereafter announces in open court that he or she plans to hold (or to consider holding) that proceeding in closed session. When a motion seeking closure is made in a written filing, adequate notice is provided by publicly docketing the motion reasonably in advance of a determination thereon. In either circumstance, the notice requirement should not impose an onerous or undue burden on trial courts.

Second, before substantive courtroom proceedings are closed or transcripts are ordered sealed, a trial court must hold a hearing and expressly find that (i) there exists an overriding interest supporting closure and/or sealing; (ii) there is a substantial probability that the interest will be prejudiced absent closure and/or sealing; (iii) the proposed closure and/or sealing is narrowly tailored to serve the overriding interest; and (iv) there is no less restrictive means of achieving the overriding interest.

(NBC Subsidiary, supra, 20 Cal.4th at 1217-18 (footnotes omitted).

California Rules of Court 2.550 and 2.551, which govern sealing of documents (and which the parties did not follow with regard to the instant motion), are derived from the holding in NBC Subsidiary.  As the Court of Appeal discussed in McNair v. National Collegiate Athletic Ass’n (2015) 234 Cal.App.4th 25:

The “presumption of openness can be overcome upon a proper showing” compatible with the constitutional standards. (NBC Subsidiary, supra, 20 Cal.4th at p. 1211, 86 Cal.Rptr.2d 778, 980 P.2d 337.) Accordingly, as explained, before a trial court may order a record to be sealed, it must hold a hearing and expressly make findings 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. (Id. at pp. 1217–1218, 86 Cal.Rptr.2d 778, 980 P.2d 337.)

These constitutionally required findings are embodied in the California Rules of Court.3 Rules 2.550 through 2.551 apply to the trial court. A record may not be sealed without a court order. (Rule 2.551(a).) The party seeking to have a record filed under seal must lodge it with the court, which will hold it “conditionally under seal” pending decision on the motion. (Rule 2.551(b)(4); see rule 2.550(b)(3) [a lodged record “is a record that is temporarily placed or deposited with the court, but not filed”]; 2.551(b)(4) & H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 888, 60 Cal.Rptr.3d 501.)  The trial court may order that a record be filed under seal “only ” if it makes NBC Subsidiary's enumerated findings expressly. (Rule 2.550(d), italics added.) If the court denies the motion to seal the record, the court “must not place it in the case file unless [the moving] party notifies the clerk in writing within 10 days ... that the record is to be filed.” (Rule 2.551(b)(6).)  

(McNair, supra, 234 Cal.App.4th at 31-32.)

Neither the unilateral sealing of documents attempted by the parties, nor the attempt to hold a nonpublic remote hearing on the instant motion without prior order, can be justified under NBC Subsidiary, McNair, or the California Rules of Court.  Since the striking of the parties' memoranda and declarations leaves the Court with no basis to consider their arguments, the motion is ORDERED OFF CALENDAR.