Judge: David J. Cowan, Case: 18STPB11082, Date: 2023-03-02 Tentative Ruling
Case Number: 18STPB11082 Hearing Date: March 2, 2023 Dept: 200
LOS ANGELES SUPERIOR COURT – WEST DISTRICT
BEVERLY HILLS COURTHOUSE – DEPT. 200
JUDGE DAVID J. COWAN
TENTATIVE RULING ON MOTION OF PETITIONERS TO REPLACE OR MODIFY PROTECTIVE ORDER
Ming-Chao Huang, et al. v. Michael Velcherean, Case No. 18STPB11082 (related to 19STCV01901)
Hearing Date: March 2, 2023, 8:30 a.m.
BACKGROUND
On October 18, 2019, Respondent filed an ex parte application for a protective order. The application was supported by a Declaration of Robert N. Sacks, Respondent’s then attorney. Mr. Sacks asserts in para. 3 that having to produce documents would invade his client’s right to privacy and would be highly prejudicial. No declaration was filed by Respondent himself.
On October 21, 2019, Petitioners filed opposition to the ex parte application on the basis that there was no exigency to decide the request ex parte, noting there were innumerable problems with the proposed order and indicating there was no evidence to support overcoming the presumptive rights to public access to judicial proceedings.
On October 22, 2019, without a hearing, the Court (by Judge Michael C. Small) issued a protective order applicable in both the Probate and Civil cases pursuant to that ex parte application.1 Para. 7 of that order allows a party to seek relief from its provisions. Para. 11 notes that nothing in the order prohibits a party seeking judicial review concerning the issue of the status of any confidential materials. Para. 12 again provides further that any party may move the Court for relief from its provisions.
On October 31, 2022, Petitioners filed the above-referenced motion. Petitioners argue that Respondent is abusing the Sealing Order by over-designating documents as Confidential (that now amount to 3,102 pages) when they are often public documents or do not warrant such designation, filing documents without redaction when previously designating them as confidential, causing Petitioners significant prejudice and expense in conducting discovery and forcing them to compromise their work product and strategy where they cannot otherwise discuss these documents with witnesses. In addition, Petitioners contend the sealing aspect of the order is also unduly complicating the Court hearing from the parties. Further, Respondent is now contending discussion of such documents is now prohibited at hearings. Petitioners propose the Court instead issue the LASC form protective order that puts the initial onus on Respondent to justify his confidentiality designations. They argue that prior designations should instead be subject to this proposed new order. Finally, Petitioners contend the Sealing Order conflicts with law requiring open proceedings and that it violates various rules requiring good cause for the issuance of a Sealing Order where the ex parte application was not supported by any declaration, citing Nativi v. Deutsche Bank, etc. (2014) 223 Cal.App.4th 261 .
On December 27, 2022, Respondent filed Opposition. He argues in summary that the motion is an impermissible motion for reconsideration, that Petitioners waived the above concerns by participating in negotiating a proposed protective order, that Petitioners have suffered no prejudice from the claimed abuses of the order (which actions he contends were not abusive), that adopting the LASC form order would cause substantial litigation over confidentiality of numerous documents and that he has right of privacy concerning his marriage and financial documents.
On December 30, 2022, Petitioners filed a Reply.
On January 27, 2023, the related cases were assigned to the undersigned.
On February 24, 2023, at a status conference, this motion was re-calendared for hearing on March 2, 2023.
DISCUSSION
Initially, the Court finds that this motion is not an untimely motion for reconsideration under CCP sec. 1008(a) that Judge Small would need to hear, where various events have occurred since he entered the order over three years ago, including substantial discovery that has been conducted in accordance with that order. In addition, as indicated above, the order makes clear that a party retains a right to return to Court to address issues that arise with respect to use of the order. Therefore, at worst, this would still merely be a permissible motion for reconsideration under CCP sec. 1008(b). Hence, the Court will turn to the merits:
Prior to determining whether the protective order should be replaced or modified, the Court has concerns whether this interim order (decided on an ex parte application2) without a hearing provides the necessary degree of guidance to address the several issues now before the Court that will impact how this case proceeds given the level of litigation to date.3 Accordingly, the Court brings its own motion for reconsideration of that order under Le Francois v. Goel (2005) 35 Cal.4th 1094, 1105-1108 and IRMO Tamir (2021) 72 Cal.App.5th 1068, 1083-1084 where the issues below were not specifically addressed.
Further, Petitioners argue a sealing order required certain findings to be made (Overstock v. Goldman Sachs (2014) 231 Cal.App.4th 471, 487) – which did not occur here. (See also CRC 2.551(h)(2) and IRMO Nicholas (2010) 186 Cal.App.4th 1566, 1575 (sealing order is always subject to continuing review)) While those requirements may not be applicable on a motion related to a protective order designed to address primarily discovery issues, there may be still overlap here with a sealing order to the extent that sealing procedures for non-discovery motions as a result now need to be followed under para. 9 of the protective order with respect to filing of documents designated as confidential. See Savaglio v. Wal-Mart (2007) 149 Cal.App.4th 588, 209 (sealing not permitted without following judicial consideration of applicable CRC) No sealing order has been entered in this case.4
Moreover, Respondent himself had not put on any evidence to show how he was prejudiced absent a protective order. While his former lawyer in passing refers to his client’s right of privacy, that is conclusory.
The Court recognizes and takes judicial notice of a ruling on a motion to quash subpoena by Judge Paul Suzuki (who was previously assigned to try this case before his retirement) (that was attached to the motion) which touches on related issues. However, review of that decision reveals it also does not address the issues identified here and is not controlling for purposes of the continued management of this case that this motion ultimately concerns.
In addition, the Court recognizes that Petitioners negotiated over the terms of a proposed stipulated order. However, ultimately, the parties never reached agreement and hence Petitioners did not waive the issue. Moreover, in their opposition to the ex parte application, they dispute Respondent’s claimed right to privacy.
Furthermore, the Court is not convinced any rights of Respondent to privacy as between he and at least the Special Administrator related to either his marriage or his finances prevail over the counter-veiling interest of the parties in learning the truth.5 The Special Administrator presumably stands in the shoes of his late wife with whom he would likely have to disclose otherwise private information in view of their fiduciary and marital duties to one another.6 If the Special Administrator may have this information, it is not clear that the information can be confidential. Regardless, as to other parties, the Court needs to hear why any right of privacy would outweigh the interest of Decedent’s parents and sister to seek information concerning the issues involved in these cases -- in the absence of Decedent.
The Court will not come to any conclusion concerning these matters however until hearing from the parties and hence the issuance of an OSC.
In view of the foregoing, the Court will not now reach the issue of whether Respondent abused the order by over-designating documents or if there is other good cause to modify the protective order. If the Order is vacated, the issues will necessarily change.
CONCLUSION
For these reasons, the Court issues an OSC why the protective order should not be vacated and in turn all prior Confidentiality designations be cancelled. In addition, the Court continues this motion to the date of the hearing on the OSC. The hearing on the OSC and on the continued motion shall be on March 29, 2023 at 8:30 a.m. Any opposition to the OSC, including any evidentiary support, shall be filed by March 16, 2023. Any reply shall be filed by March 23, 2023.
Parties who intend to submit to or argue this tentative must send an email to the Court at BEV200@lacourt.org indicating intention.
1) Petitioners refer to this protective order as a “Sealing Order.” However, a protective order and a sealing order have different functions and are governed by separate rules and considerations. In fact, para. 9 of the protective order differentiates between procedures under Calif. Rules of Court (CRC”), Rules 2.550 and 2.551 (which govern sealed proceedings) and procedures to be followed pursuant to this protective order when a sealing order is not involved. The Court therefore follows the rules related to protective orders to the extent applicable.
2) A protective order can only be sought by a noticed motion, not ex parte. CCP sec. 2017.020(a). See Rutter Group Cal. Practice Guide: Civ. Proc. Before Trial, sec. 8:1014.
3) Part of the basis for this motion is the difficulties created by the sealing contemplated by this order for non-discovery motions. The foregoing is significant in view of the unusual level of contentiousness evident in these proceedings – that for example resulted in the discovery referee imposing sanctions of over $90,000.
4) An added issue in this case involving alleged elder abuse may be whether any evidence of abuse is required to be filed with the court, even if there is a protective order. See CCP sec. 2017.320
5) Respondent’s reliance on Tylo v. Superior Court (1997) 55 Cal.App.4th 1379, 1381 is misplaced: The issue in that case concerned a stranger prying into a party’s private marital affairs. Here, it is those speaking on some level for the other party to the marriage – who can no longer speak for herself - who are seeking information.
6) See IRMO Feldman (2007) 153 Cal.App.4th 1470, 1475-1477