Judge: Kevin A. Enright, Case: 37-2016-00018510-CU-EI-CTL, Date: 2024-06-28 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

CENTRAL COURTHOUSE TENTATIVE RULINGS - June 27, 2024

06/28/2024  10:30:00 AM  2103 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kevin A. Enright

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Eminent domain/Inverse condemnation Motion Hearing (Civil) 37-2016-00018510-CU-EI-CTL BLACKBURN VS. COUNTY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiffs' unopposed Motion for an Order Sealing Confidential Records is GRANTED.

Plaintiffs' Motion for an Order to Show Cause Regarding Civil Contempt; Discovery Sanctions; and/or Modification of Protective Order is DENIED.

Discussion Plaintiffs' Unopposed Motion to Seal 'Unless confidentiality is required by law, court records are presumed to be open.' (Cal. Rules of Court, rule 2.550(c), emphasis added.) California Rules of Court, rule 2.550(d) provides that a court may order a record filed under seal if it 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. These findings embody constitutional requirements, protecting the First Amendment right of public access to civil trials.

(See Advisory Com., Cal. Rules of Court, rule 2.550; NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1217–1218.) Courts have considerable discretion in deciding whether to seal records. (See generally In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 295.) Plaintiffs seek to file under seal the following documents in support of their Motion for OSC re: Contempt, Discovery Sanctions, and Modification of Protective Order: 1) an unredacted copy of the Memorandum of Points and Authorities; 2) an unredacted copy of the Declaration of Jack B. Winters; and 3) an unredacted copy of the Settlement Agreement in the Travelers Action. (ROA 604.) Plaintiffs has filed redacted copies of these documents. (See ROA 615 [supporting memorandum]; ROA 616 [supporting declaration with Settlement Agreement (Exhibit 1)].) Plaintiffs have shown sealing portions of the Settlement Agreement and Plaintiffs' filings in support of their contempt motion is appropriate. The Court already ruled that the Settlement Agreement is subject to a protective order. (ROA 156, September 25, 2018 Minute Order, p. 2; see also ROA 163, Protective Order.) Additionally, a contractual obligation not to disclose information in a settlement agreement can constitute an overriding interest within the meaning of CRC rule 2.550. (See Universal City Studios, Inc.

v. Superior Court (2003) 110 Cal.App.4th 1273, 1283); Huffy Corp. v. Superior Court (2003) 112 Calendar No.: Event ID:  TENTATIVE RULINGS

3131747 CASE NUMBER: CASE TITLE:  BLACKBURN VS. COUNTY OF SAN DIEGO [IMAGED]  37-2016-00018510-CU-EI-CTL Cal.App.4th 97, 106-107, abrogation recognized on another ground in Curtis v. Superior Court (2021) 62 Cal.App.5th 453, 471-472.) Plaintiffs have shown a substantial probability exists the overriding interest of Plaintiffs (and Travelers, a third party) will be prejudiced if the record is not sealed. The proposed sealing is narrowly tailored, as Plaintiffs only seek to redact portions of the Settlement Agreement and the motion. Plaintiffs have also shown no less restrictive means other than sealing is available.

Accordingly, Plaintiffs' motion to seal is granted.

Plaintiffs' Motion for Order to Show Cause Regarding Civil Contempt; Discovery Sanctions; and/or Modification of Protective Order Preliminary Matters Plaintiffs' combined motion seeks three different and separate requests for relief. (ROA 614, Notice.) Under San Diego Superior Court local rules, every motion must be separately calendared for hearing; a motion set without properly reserving hearing date will not be heard. (Local Rule 2.1.19.) Plaintiffs' motion is thus procedurally defective, as these three requests should have been the subject of three different motions.

The County did not file redacted copies of its opposition memorandum or declarations (ROA 623-625) or file a motion to seal these documents. The County lodged unredacted copies of these documents pursuant to the Protective Order, which provides that a separate sealing order is not required. (ROA 163, Protective Order, ¶ 8.) Given the terms of the Protective Order and the Court's order granting Plaintiffs' instant motion to seal, the Court has considered the opposition documents lodged under seal.

The County requests the Court take judicial notice pursuant to Evidence Code § 452(d) of filings in the federal Travelers Action (Exhibits 1-5) and the 151 LLC Action (Exhibit 6), as well as twelve 'facts' based on those filings. (ROA 626.) 'A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.' (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 22.) Accordingly, the County's request for judicial notice of Exhibits 1-6 is GRANTED, but the Court does not take notice of the facts therein (with the exception of the Order attached as Exhibit 5).

Motion for Order to Show Cause regarding Civil Contempt Plaintiffs seek an Order to Show Cause ('OSC') regarding contempt based on the County's intentional violation of the Protective Order that the Court entered on October 4, 2018. (ROA 614, Notice, p. 2: 5-8.) Plaintiffs contend the violations arise from the County's publicly filed and unredacted Answer to the Second Amended Complaint ('SAC').

Willful disobedience of a lawful court order constitutes contempt. (Code Civ. Proc., § 1209(a)(5).) A proceeding for indirect contempt is initiated by filing an affidavit or declaration and a request for order to show cause. (Id. §§ 1211(a), 1212.) 'The facts essential to jurisdiction for a contempt proceeding are (1) the making of the order; (2) knowledge of the order; (3) ability of the respondent to render compliance, (4) willful disobedience of the order.' (Van v. LanguageLine Solutions (2017) 8 Cal.App.5th 73, 81.) 'The order must be clear, specific, and unequivocal. 'Any ambiguity in a decree or order must be resolved in favor of an alleged contemnor.' ' (Inland Counties Regional Center, Inc. v. Superior Court (2017) 10 Cal.App.5th 820, 827, citations omitted.) 'It has long been the rule that the filing of a sufficient affidavit is a jurisdictional prerequisite to a contempt proceeding.' (Koehler v. Superior Court (2010) 181 Cal.App.4th 1153, 1169.) The declaration is like a complaint in that it must frame the issues and state facts that show a contempt has been committed. (Lyon v. Superior Court of Los Angeles County (1968) 68 Cal. 2d 446, 452.) 'Because a contempt proceeding is criminal in nature, due to the penalties which might be imposed, guilt Calendar No.: Event ID:  TENTATIVE RULINGS

3131747 CASE NUMBER: CASE TITLE:  BLACKBURN VS. COUNTY OF SAN DIEGO [IMAGED]  37-2016-00018510-CU-EI-CTL must be established beyond a reasonable doubt. 'The power to weigh evidence, however, rests exclusively with the trial court.'' (Conn v. Superior Court (1987) 196 Cal.App.3d 774, 784, citations omitted.) Additionally, issuance of a contempt sanction in connection with civil discovery is extremely rare and reserved 'only for the most flagrant abuses' where 'the court's dignity is truly compromised.' (See generally In re de la Parra (1986) 184 Cal.App.3d 139.) Here, the declaration of Plaintiffs' counsel does not constitute a sufficiently clear and direct charging affidavit. (Koehler, supra, 181 Cal.App.4th at p. 1169.) Plaintiffs' counsel dedicates half of his declaration on the terms and obligations under the Settlement Agreement. (See ROA 616, Winters Decl., ¶¶ 1-24.) The declaration sets forth Plaintiffs' position the Settlement Agreement does not support the County's affirmative defenses, as the terms and conditions therein demonstrate Plaintiff 151 'did not receive any amounts in settlement for the subject elevator repairs and in fact received no amount whatsoever for the contract claims made against the County.' (See id., ¶ 4, lines 13-16.) However, the declaration does not identify or set forth the specific terms of the Protective Order the County has allegedly violated, or the County's specific conduct that constitutes willful violations of that order. The declaration thus does not provide sufficient information for the Court to determine the terms of the Protective Order at issue are clear, specific, and unequivocal, and fails to identify specific actions that warrant an OSC.

Notwithstanding the deficiencies with the supporting declaration, Plaintiffs have not provided sufficient evidence of the County's willful violations of the Protective Order. Plaintiffs have not shown the allegations in the County's affirmative defenses are based on 'information derived' from the Settlement Agreement instead of publicly available information, such as the filings in the Travelers Action (Def. Exs.

1-5), or the proceedings in this action and/or the 151 Action. Additionally, the Court of Appeal remanded with instructions to conduct a Phase II trial on the issue of insurance coverage and acknowledged the parties will likely seek to admit the Settlement Agreement into evidence and dispute its relevance. (See ROA 409, Remittitur, pp. 6 at fn. 1, 33.) Similarly, this Court has determined whether Travelers paid Plaintiff Blackburn for any of the costs to repair the elevator based on damage allegedly caused by Defendant is an issue for retrial. (See ROA 488, November 18, 2022 Minute Order on Plaintiffs' Motion for Leave to Amend FAC, p. 3.) To the extent Plaintiffs' motion disputes the applicability of the settlement in the Travelers Action to this action, the allegations in the County's affirmative defenses, the viability of the County's affirmative defense, and/or the admissibility of the Settlement Agreement, these issues will be addressed during the Phase II trial.

Accordingly, Plaintiffs' motion for an OSC regarding civil contempt is denied.

Motion for Sanctions Plaintiffs seek 'issue, evidentiary, and/or monetary sanctions' on the grounds the County's violations of the Protective Order constitute a 'misuse of the discovery process' under Code of Civil Procedure § 2023.010(b). (ROA 614, Notice, p. 2:15-16.) Plaintiffs' request for discovery sanctions is denied as procedurally defective. Plaintiffs failed to separately reserve a hearing date on this separate ground for relief. (Local Rule 2.1.19.) Additionally, '[a] request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.' (Code Civ. Proc., § 2023.040.) Under the California Rules of Court, a notice of motion 'must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.' (Cal. Rules of Court, rule 3.1110(a).) Here, Plaintiffs' notice does not specify issue or evidentiary sanctions requested, and Plaintiffs failed to provide any facts supporting monetary sanctions. (See Code Civ. Proc., § 2023.040 ['[t]he notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought'].) Notwithstanding these deficiencies, Plaintiffs have not shown the County has misused the discovery process for the reasons previously set forth regarding Plaintiffs' motion for an OSC regarding contempt.

Calendar No.: Event ID:  TENTATIVE RULINGS

3131747 CASE NUMBER: CASE TITLE:  BLACKBURN VS. COUNTY OF SAN DIEGO [IMAGED]  37-2016-00018510-CU-EI-CTL Even if the County's Answer constitutes a misuse of the Protective Order, Plaintiffs have not provided sufficient evidence and legal authority to support the sanctions requested by Plaintiffs. The discovery statutes 'evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.' (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604, emphasis added.) Plaintiffs have not provided sufficient grounds to warrant striking or eliminating the County's affirmative defenses in lieu of less severe alternatives, especially in light of Plaintiffs' failure to support their request for monetary sanctions.

Accordingly, Plaintiffs' motion for sanctions is denied.

Motion for Modification of Protective Order Finally, Plaintiffs seek a modification of the Protective Order 'eliminating the use of the Settlement Agreement and requiring return of such document pursuant to the terms of the Amended Protective Order sought herein.' (ROA 614, Notice, p. 2:10-12.) Plaintiffs' motion to modify the Protective Order is denied as procedurally defective. Plaintiffs failed to separately reserve a hearing date for this motion. (See Local Rule 2.1.19.) Plaintiffs' notice also does not set forth the legal authority or other grounds to support the Court's authority to modify the Protective Order, or the specific 'modifications' of the Protective Order requested. (See Code Civ. Proc., § 1010; Cal. Rules of Court, rule 3.1110(a).) Plaintiffs' request is also denied on the merits. Plaintiffs have not shown any conduct by the County that warrants modifying the Protective Order. Moreover, Plaintiffs propose modifications to the Protective Order that not only compel the County to return the Settlement Agreement, but also preclude the County's use of the Settlement Agreement in this action, require dismissal of the County's affirmative defenses with prejudice, and issue a Court finding 'the issue of whether the elevator was 'covered' by the Travelers policy is a non-issue for the trial in the instant matter.' (See ROA 617, Proposed Order, p. 2: 3-21.) Plaintiffs have not provided any legal authority that would permit the Court to modify the Protective Order to summarily adjudicate issues to be addressed in the Phase II trial. To the extent the 'modifications' requested by Plaintiffs are effectively issue or evidentiary sanctions, such requests are denied for the same reasons Plaintiffs' motion for sanctions fails.

Accordingly, Plaintiffs' motion for modification of the Protective Order is denied.

Conclusion Plaintiffs' unopposed Motion for an Order Sealing Confidential Records is GRANTED.

Plaintiffs' Motion for an Order to Show Cause Regarding Civil Contempt; Discovery Sanctions; and/or Modification of Protective Order is DENIED.

If this tentative ruling is confirmed, the Minute Order will be the order of the Court. No formal order is required.

Calendar No.: Event ID:  TENTATIVE RULINGS

3131747