Judge Deirdre Hill, Case 20TRCV00236 2023-01-12 Tentative Ruling

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Motion to Seal and Maintain the Confidentiality of Records (filed on October 21, 2022)

The motion is GRANTED. The court ORDERS that the documents lodged by plaintiff on October 11, 2022, which are referenced as “Exhibit 29” in A. Lysa Simon decl. in support of plaintiff’s reply to the motion for leave to file a second amended complaint are sealed.

At this time, no other records relating to this case are to be sealed. No person other than the court is authorized to inspect the sealed records. CRC Rule 2.551(e)(2), (3).

The court directs the court clerk to comply with the requirements and procedures set forth in CRC Rule 2.551(e) and (f) with respect to the records the court has ordered to be filed under seal.

On March 12, 2020, plaintiff South Bay Credit Union filed a complaint against Citibank US NA dba BRP Credit Card and BRP US Inc. for (1) breach of agreement, (2) conversion, and (3) deceptive business practices.

On July 10, 2020, plaintiff filed a FAC. The FAC alleges that it involves a vehicle 2018 Can-Am Maverick Duane. FAC, ¶9. On March 22, 2018, Darrold Efflandt Jr. [now deceased] executed and delivered to plaintiff a written loan agreement, under which he agreed to repay all sums advanced by plaintiff. Said agreement granted plaintiff a security interest in the vehicle. Id., ¶10. At the same time Efflandt entered into the loan agreement, he executed a written Authorization for Payoff and Demand for Termination Statement. Id., ¶11. The written instructions signed by Efflandt, the registered owner of the vehicle and borrower of defendant, Citibank, specifically instructed Citibank to do the following: “Endorse and surrender to South Bay Credit Union any Documents of Title (including Certificate of Title in the case of motor vehicle, boat or trailer) which you may have in your possession.” Id., ¶12. On March 22, 2018, plaintiff issued a check made payable to BRP Credit Card in the sum of $17,926.69. The check stated that it was in payment regarding “Darrold Efflandt Jr. 2016 Can Am Maverick 3JBVVAW24JKG00022.” The restrictive endorsement on the back of the check stated: “Endorsement of this check acknowledges and guarantees the following: 1. Receipt of payment in full for the motor vehicle described below. 2. That South Bay CU – ELT#EXN is to be the legal owner. 3. That on the following listed person(s) shall be the registered owner(s) Owner Darrold Effandt.” Id., ¶13. The check was remitted to defendant BRP and endorsed and negotiated by Citibank US NA. Id., ¶14.

Plaintiff further alleges that defendants failed and refused to remit the title to the vehicle to plaintiff or to file anything with the DMV naming plaintiff as the legal owner (i.e., lienholder) of the vehicle. Id., ¶15. The refusal and failure to defendants, Citibank, and BRP to cause plaintiff to be named as the legal owner deprived plaintiff of a “perfected” security interest in its collateral, i.e., the Can-Am was unlawful under Vehicle Code §5753. Id., ¶16. Defendants sent the Title to Efflandt. Id., ¶17. As a result of defendants sending the Title to Efflandt, they enabled him to sell the vehicle to a third party. Id., ¶18. Plaintiff sent a demand letter to defendant BRP on January 16, 2020. Plaintiff sent the same demand letter to Citibank and BRP on December 31, 2019. Id., ¶19.

On September 17, 2020, the court overruled defendant Citibank’s demurrer to each of the causes of action.

On September 21, 2020, plaintiff filed an amendment correcting BRP US Inc.’s name to BRP US Inc. aka Bombardier Recreational Products US Inc.

On July 9, 2021, the court granted in part and denied in part plaintiff’s motion to compel further responses.

On December 17, 2021, the court denied plaintiff’s motion for terminating sanctions.

On September 7, 2022, the court denied without prejudice plaintiff’s motion for leave to amend complaint. The court found that the declaration of plaintiff’s counsel is not based on personal knowledge and is thus insufficient and that plaintiff failed to comply with CRC 3.1324.

California Rules of Court (“CRC”), Rule 2.550(c) states: “Unless confidentiality is required by law, court records are presumed to be open.” But a party may move to seal records pursuant to Rules 2.550-2.551. CRC Rule 2.551(b)(1) states: “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 2.550(d) states: “The court may order that a record be filed under seal only if it expressly finds facts that establish:

(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;

Defendant Citibank, N.A. requests that the court seal and maintain the confidentiality of documents lodged documents by plaintiff on October 11, 2022, which are referenced in in A. Lysa Simon’s declaration as Exhibit 29, filed in support of plaintiff’s reply to motion for leave to file a second amended complaint.

Defendant explains that on August 30, 2021, the parties stipulated and the court entered a Stipulated Protective Order.

Defendant asserts that Exhibit 29 includes four distinct documents: (1) cover letter from defense counsel to plaintiff’s counsel, which shows that Citibank produced confidential business records to plaintiff on November 18, 2021; (2) pages 2 through 15 are confidential internal policies and procedures of Citibank; (3) pages 16 through 60 are a confidential procedures and information pertaining to Citibank’s relationship with a particular vendor; (4) the last page is the proof of service showing that all documents in that exhibit were produced to plaintiff on November 18, 2021.

Citibank argues that it derives economic value from those documents under (2) and (3) because the information contained therein is used in the course of its business, and that value is derived in part from the fact that the information is not available to Citibank’s competitors and could not be utilized by competitors. Defendant contends that the documents are for its internal use or for internal use by a Citibank vendor, and state procedures for employees to follow in carrying out their responsibilities with respect to the matters described in those documents. Citibank asserts that it takes measures to ensure that the documents are not made public and believes that the documents have never been made public. See Judy Delage decl.

The court makes the following findings of facts that establish the requirements set forth in CRC Rule 2.550(d):

(1) There exists an overriding interest in protecting disclosure of Citibank’s internal business practices and commercially and competitively sensitive information.

(2) The overriding interest of protecting Citibank supports sealing the records because such information is commercially and competitively sensitive and has not been revealed publicly. Further, the documents were improperly submitted in support of plaintiff’s reply and which the court did not consider.

(3) A substantial probability exists that the overriding interest of protecting Citibank’s internal business practices and confidential information will be prejudiced if the records are not sealed.

(4) The proposed sealing is narrowly tailored to only include the documents referenced above.

(5) No less restrictive means exist to achieve the overriding interest because of the nature of the records to be sealed.

Motion
to Seal and Maintain the Confidentiality of Records (filed on November 22, 2022)

The motion is GRANTED. The court ORDERS that the documents lodged by
plaintiff on November 7, 2022, in support of plaintiff’s opposition to
defendant’s motion for summary judgment, are to be sealed.

At this time, no other records
relating to this case are to be sealed.
No person other than the court is authorized to inspect the sealed
records. CRC Rule 2.551(e)(2), (3).

The court directs the court clerk
to comply with the requirements and procedures set forth in CRC Rule 2.551(e)
and (f) with respect to the records the court has ordered to be filed under
seal.

On March 12, 2020, plaintiff South Bay
Credit Union filed a complaint against Citibank US NA dba BRP Credit Card and
BRP US Inc. for (1) breach of agreement, (2) conversion, and (3) deceptive
business practices.

On
July 10, 2020, plaintiff filed a FAC. The FAC alleges that it involves a
vehicle 2018 Can-Am Maverick Duane. FAC, ¶9. On March 22, 2018, Darrold
Efflandt Jr. [now deceased] executed and delivered to plaintiff a written loan
agreement, under which he agreed to repay all sums advanced by plaintiff. Said agreement granted plaintiff a security
interest in the vehicle. Id., ¶10. At the same time Efflandt entered into the loan
agreement, he executed a written Authorization for Payoff and Demand for
Termination Statement. Id., ¶11. The written instructions signed by Efflandt,
the registered owner of the vehicle and borrower of defendant, Citibank,
specifically instructed Citibank to do the following: “Endorse and surrender to South Bay Credit
Union any Documents of Title (including Certificate of Title in the case of
motor vehicle, boat or trailer) which you may have in your possession.” Id., ¶12.
On March 22, 2018, plaintiff issued a check made payable to BRP Credit
Card in the sum of $17,926.69. The check
stated that it was in payment regarding “Darrold Efflandt Jr. 2016 Can Am
Maverick 3JBVVAW24JKG00022.” The
restrictive endorsement on the back of the check stated: “Endorsement of this
check acknowledges and guarantees the following: 1. Receipt of payment in full
for the motor vehicle described below. 2. That South Bay CU – ELT#EXN is to be
the legal owner. 3. That on the following listed person(s) shall be the registered
owner(s) Owner Darrold Effandt.” Id., ¶13. The check was remitted to defendant
BRP and endorsed and negotiated by Citibank US NA. Id., ¶14.

Plaintiff
further alleges that defendants failed and refused to remit the title to the
vehicle to plaintiff or to file anything with the DMV naming plaintiff as the
legal owner (i.e., lienholder) of the vehicle. Id., ¶15. The refusal and
failure to defendants, Citibank, and BRP to cause plaintiff to be named as the
legal owner deprived plaintiff of a “perfected” security interest in its
collateral, i.e., the Can-Am was unlawful under Vehicle Code §5753. Id., ¶16.
Defendants sent the Title to Efflandt. Id., ¶17. As a result of defendants
sending the Title to Efflandt, they enabled him to sell the vehicle to a third
party. Id., ¶18. Plaintiff sent a demand letter to defendant BRP on January 16,
2020. Plaintiff sent the same demand letter to Citibank and BRP on December 31,
2019. Id., ¶19.

On
September 17, 2020, the court overruled defendant Citibank’s demurrer to each of
the causes of action.

On
September 21, 2020, plaintiff filed an amendment correcting BRP US Inc.’s name
to BRP US Inc. aka Bombardier Recreational Products US Inc.

On
July 9, 2021, the court granted in part and denied in part plaintiff’s motion
to compel further responses.

On
December 17, 2021, the court denied plaintiff’s motion for terminating
sanctions.

On
September 7, 2022, the court denied without prejudice plaintiff’s motion for
leave to amend complaint. The court
found that the declaration of plaintiff’s counsel is not based on personal
knowledge and is thus insufficient and that plaintiff failed to comply with CRC
3.1324.

California Rules of Court (“CRC”),
Rule 2.550(c) states: “Unless
confidentiality is required by law, court records are presumed to be
open.” But a party may move to seal
records pursuant to Rules 2.550-2.551.
CRC Rule 2.551(b)(1) states: “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 2.550(d) states: “The court may order that a record be filed
under seal only if it expressly finds facts that establish:

(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;

Defendant
Citibank, N.A. requests that the court seal and maintain the confidentiality of
documents lodged documents by plaintiff on November 7, 2022, in support of
plaintiff’s opposition to defendant’s motion for summary judgment.

Defendant
explains that on August 30, 2021, the parties stipulated and the court entered
a Stipulated Protective Order.

Defendant
asserts that Exhibits 15, 16, 18, and 19 lodged by plaintiff in its opposition
to the MSJ are all presently under seal pursuant to the court’s order dated
October 28, 2022. Defendant explains
that Exhibit 17 is 125 pages consisting of four different documents. That document consisting of pages 1-9 was
previously sealed pursuant to the October 28, 2022 order and subject of
defendant’s third motion to seal. The
documents consisting of pages 10-15and pages 81-125 are also subject to defendant’s
third motion to seal. Pages 16-80 are a
Consumer Revolving Credit Card Program Agreement between Citibank and BRP US
Inc. Defendant explains that it produced
this document subject to the stipulated protective order. Defendant asserts that this document states
the terms of Citibank’s business relationship with BRP US Inc., and those terms
are maintained as confidential by Citibank and BRP US Inc. and have never been
made public and that Citibank derives value that those terms are not available
to competitors. Defendant also argue
that the documents referenced above are not relevant and thus the public right
of access does not apply. See Judy
Delage decl.

The court makes the following
findings of facts that establish the requirements set forth in CRC Rule
2.550(d):

(1)
There
exists an overriding interest in protecting disclosure of Citibank’s internal
business practices and commercially and competitively sensitive
information.

(2)
The
overriding interest of protecting Citibank supports sealing the records because
such information is commercially and competitively sensitive and has not been
revealed publicly.

(3)
A
substantial probability exists that the overriding interest of protecting
Citibank’s internal business practices and confidential information will be
prejudiced if the records are not sealed.

(4)
The
proposed sealing is narrowly tailored to only include the documents referenced
above.

(5)
No
less restrictive means exist to achieve the overriding interest because of the
nature of the records to be sealed.