Judge: Gail Killefer, Case: 22STCV37892, Date: 2023-01-26 Tentative Ruling

Case Number: 22STCV37892    Hearing Date: January 26, 2023    Dept: 37

HEARING DATE:                 January 26, 2023

CASE NUMBER:                  22STCV37892

CASE NAME:                        Wayne Ball v. Dordick Law Corporation, et al.

MOVING PARTY:                Plaintiff, Wayne Ball

OPPOSING PARTIES:          Defendants, Dordick Law Corporation, and Keith Griffin

TRIAL DATE:                        Not set.  

PROOF OF SERVICE:          OK

MOTION:                               Motion to File Portions of the Complaint under Seal

OPPOSITION:                       None as of January 25, 2023

REPLY:                                  No opposition filed.

TENTATIVE:                         Plaintiff’s motion is granted. Plaintiff is to give notice.

Background

This is a fraud action for damages relating to the representation of Wayne Ball (“Plaintiff”) by Dordick Law Corporation and Keith Griffin (collectively “Defendants”). According to the Complaint, Defendants represented Plaintiff in a personal injury case arising from a worksite accident. Defendants were brought in to represent Plaintiff by the originally retained firm.  Plaintiff contends Defendants now seek fees in the underlying case while also withholding a portion of Plaintiff’s settlement proceeds, without legal entitlement.

Plaintiff’s Complaint alleges the following causes of action: (1) fraudulent concealment; (2) fraudulent inducement; (3) breach of fiduciary duty; (4) constructive fraud; (5) conversion; and (6) accounting.

Plaintiff now moves to file portions of the Complaint under Seal. The motion is unopposed.

Discussion

I.                   Legal Authority

Unless confidentiality is required by law, court records are presumed to be open to public review.  (Cal. Rules of Court, rule 2.550(c).)  “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; (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, rule 2.550(d); see also NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1217-1218 (NBC).)  

A “court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.”  (In re Marriage of Nicholas (2010) 186 Cal.App.4th 1566, 1578 (Nicholas) (quoting Cal. Rules of Court, rule 2.551(a)), internal quotations omitted.)

II.                Analysis

“Subject to Evidence Code section 912, and except as otherwise provided, the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by:

(a)   “The holder of the privilege;

(b)   A person who is authorized to claim the privilege by the holder of the privilege; or

(c)   The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure.”

(Evid. Code § 954.)

“The attorney-client privilege attaches to a confidential communication between the attorney and the client and bars discovery of the communication irrespective of whether it includes unprivileged material.” (Costco Wholesale Corp v. Superior Court (2009) 47 Cal.4th 725, 734.) “Neither the statutes articulating the attorney-client privilege nor the cases which have interpreted it make any differentiation between ‘factual’ and ‘legal’ information.” (Mitchell v. Superior Court (1984) 37 Cal.3d 591, 601.) On the other hand, “ ‘Knowledge which is not otherwise privileged does not become so merely by being communicated to an attorney. [Citation.] Obviously, a client may be examined on deposition or at trial as to the facts of the case, whether or not he has communicated them to his attorney. [Citation.] While the privilege fully covers communications as such, it does not extend to subject matter otherwise unprivileged merely because that subject matter has been communicated to the attorney.’ ” (Costco, supra, 47 Cal.4th at 742, [quoting Greyhound v. Superior Court (1961) 56 Cal.2d 355, 397.]) The party claiming the attorney client privilege has the burden of establishing the “preliminary facts” necessary to support its claim. (Id. at 733.)

Plaintiff asserts portions of the Complaint must be filed under seal because the parties have mutual obligations as part of the Confidential Settlement Agreement not to publicly file any document about the settlement. (Motion, 2-3.)  Plaintiff cites to Universal City Studios, Inc. v. Super. Ct., (2003) 110 Cal. App. 4th 1273, 1283 (Universal) for the argument that a contractual obligation not to disclose can constitute an “overriding interest” for purposes of deciding an application to seal. According to Plaintiff, allowing the Complaint to remain unsealed will result in Plaintiff potentially breaching his contract pursuant to the Confidential Settlement Agreement and facing liability for damages as a result of the public disclosure of such confidential terms. (Motion, 2-3.) 

In Universal, the Court of Appeal held that a defendant’s “contractual obligation not to disclose can constitute an overriding interest.” (Universal, supra, 110 Cal.App.4th at 1283.)

Plaintiff attests: “[t]he redactions in Plaintiff’s Complaint are narrowly tailored and no less-restrictive means exist to achieve his contractual agreement to keep these amounts confidential with the settling defendants in the underlying action.” (Motion, 3.)

Plaintiff’s motion is unopposed.

The court has reviewed Plaintiff’s Motion, including all supporting exhibits. Based upon this review and Plaintiff’s moving papers, the court finds that there exists an overriding interest in Plaintiff protecting its attorney-client privileged information, and maintaining confidential the agreed-upon terms as outlined by the settlement agreement, and that this interest supports sealing these portions of the Complaint. Further, the court finds that a substantial probability exists that this interest will be prejudiced if these portions are not sealed, and that Plaintiff’s request is narrowly tailored as Plaintiff only seeks to seal documents pertaining to the confidential terms of the settlement agreement while still alleging the factual pleadings of the Complaint. Finally, the court finds that no less restrictive means exist to achieve this overriding interest.

For these reasons, Plaintiff’s motion is granted.

Conclusion

Plaintiff’s motion is granted. Plaintiff is to give notice.