Judge: Christopher K. Lui, Case: 21STCV28536, Date: 2022-12-08 Tentative Ruling
Case Number: 21STCV28536 Hearing Date: December 8, 2022 Dept: 76
Pursuant to California Rule of Court
3.1308(a)(1), the Court does not desire oral argument on the motion addressed
herein. As required by Rule 3.1308(a)(2), any party seeking oral argument
must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to
appear and argue. Notice to Department 76 may be sent by email to
smcdept76@lacourt.org or telephonically at 213-830-0776. If notice of
intention to appear is not given and the parties do not appear, the Court will
adopt the tentative ruling as the final ruling.
Plaintiffs alleges that Defendant defamed Plaintiff Srivastava and intentionally interfered with a business deal that would have netted Plaintiff approximately $40,000,000 in profit, then tried to extort $500,000 out of Plaintiff. Plaintiffs also alleges a breach of a settlement agreement by Defendant whereby the parties agreed not to disparage each other.
Plaintiffs Gaurav Srivastava and Sharon Johnson move for an order sealing the entire court file.
TENTATIVE RULING
Plaintiffs Gaurav Srivastava and Sharon Johnson’s motion for an order sealing the entire court file is DENIED.
ANALYSIS
Plaintiffs Gaurav Srivastava and Sharon Johnson move for an order sealing the entire court file. The parties have submitted a Stipulation and Order to Seal the Record or, Alternatively, to Seal Portions of the Record. Notably, the proposed Order does not specify which portions of the record the parties would have the Court seal.
The CRC Rules pertaining to motions to seal apply to settlement agreements. (See, e.g., Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1283-84.)
A motion seeking an order sealing the record must be accompanied by “a declaration containing facts sufficient to justify the sealing.” (Calif. Rules of Court, Rule 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.
(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.
“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]).)
“Unless confidentiality is required by law, court records are presumed to be open.” CRC Rule 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].)
However, 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:
Here, the motion sets forth the following argument as the basis for the requested order to seal the entire record: This case and the companion case, BC699586 filed on April 12, 2018, have settled. As part of the resolution of the companion case, the parties have stipulated that the records in this case and the companion case shall be sealed in their entirety. In the alternative, Plaintiffs move to seal the records set forth in the Declaration of Robert J. Liskey, which number 110 documents.
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). (Citations omitted.)
(Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1283.)
As such, the stipulation to seal constitutes an overriding interest that overcomes the right to public access.
This requirement is satisfied.
(2) The overriding interest supports sealing the record;
Moving party does not explain why sealing the entire case file, as opposed to redaction of certain portions, is necessary.
This requirement is not satisfied.
(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;
Even
though 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.
. . . [*1283] . .
. [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 1282 [bold emphasis and underlining added].)
Here, the Declaration of Gaurav Srivastava does not meet this standard of factual specificity. Srivastava describes the general nature of his and his wife’s work. He also makes the following assertion in ¶ 9 of his Declaration:
The trust and confidence placed in me and my
wife in our important endeavors working alongside world leaders would be eroded
if the allegations made in this case are publicly disclosed. The trust and
confidence placed in us could also be eroded if the character of my wife,
Sharon Johnson is impugned because of her close connection and possible influence
she would or could exert over me, plus she is sometimes a party to the contracts,
therefore trust and confidence in her integrity could also be eroded if the
accusations in this case continue to remain public.
Srivastava also vague states at ¶ 10 of his
Declaration:
Defendant Small was a family friend for years and during that friendship acquired information about us that is of no value to the public. My wife and I vehemently dispute the claims and accusations made by Defendant Small, which was also made public in court documents here and should not be made public.
However,
he does not articulate specific examples with articulated reasoning whereby he
and his wife would suffer serious injury if the entire case file were not
sealed. (Universal City Studios, supra, 110 Cal.App.4th at
1282, 1283.) First, Srivastava incorrectly
states that he and his wife are defendants in this case. Actually, they are the
Plaintiffs. Moreover, a review of the allegations in the First Amended
Complaint reveal that Defendant Jill Small made generalized assertions against Plaintiff
Srivastava which, in the form disclosed in the First Amended Complaint, would
not obviously cause serious injury to Plaintiff. Rather, the First Amended
Complaint alleges that such statements by Small were false and made to
blackmail Plaintiffs. (See 1AC, ¶ 11.) While ¶ 12 alleges that the third
party company terminated the negotiations with Plaintiff as a result of Defendant’s
oral statements to the company, in that context, they were not being challenged
as false in a lawsuit, as they are here. Indeed, Plaintiff disputes the truth
of Defendant’s statements by labelling them as false and defamatory. (1AC, ¶¶
14 – 16.) If every alleged defamatory allegation qualified for a sealing order,
there would be no publicly reported defamation causes.
This requirement is not satisfied.
(4) The proposed sealing is narrowly tailored;
The proposed sealing is not narrowly tailored, because Plaintiffs seek an order sealing the entire court file.
This requirement is not satisfied.
(5) No less restrictive means exist to achieve the overriding interest.
Moving party has not addressed why redaction of specific portions of certain documents would be insufficient to achieve the overriding interest.
This requirement is not satisfied.
As such,
the motion to seal the entire court file is DENIED.