Judge Lisa K. Sepe-Wiesenfeld, Case Number: SC125885, Date: 2023-11-14 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: SC125885, Date: 2023-11-14 Tentative Ruling

Case Number: SC125885 Hearing Date: November 14, 2023 Dept: N

TENTATIVE RULING

Nonparty Tulin Shannon’s Motion for Unsealing of Documents is DENIED.

Nonparty Tulin Shannon to give notice.

REASONING

Nonparty Tulin Shannon (“Shannon”) moves the Court for an ordering unsealing Defendant/Decedent Halil Parlar (“Decendent”)’s Motion for Protective Order Prohibiting Plaintiff from Deposing Defendant Halil Parlar, filed in this action on February 3, 2017. The motion asserted Decedent was incompetent and lacked capacity and provided detailed information to support such statements, and the motion was sealed. Shannon now seeks to use this information, which may include references to medical records and reports, in a pending trust action wherein Shannon contends Decedent was under undue influence or lacked capacity when the testamentary documents were executed. (Mot., Martin Decl. ¶¶ 2, 10, 14.)

Defendant Josette LeRoy (“LeRoy”), who is a responding party in the probate litigation, has refused to stipulate to the unsealing of the motion for a protective order. (Mot., Martin Decl. ¶ 12.) Shannon argues that her ability to litigate her claims in the probate matter will be compromised if the motion is not unsealed, as it contains relevant and contemporaneous information regarding Decedent’s mental state during the time the testamentary documents were executed. (Mot., Martin Decl. ¶¶ 14-15.) LeRoy opposes the present motion to unseal the motion for protective order, and nonparty Elvis Parlar has also filed an opposition to the motion to unseal in his individual capacity and as Successor Trustee of the Revocable Trust of Halil Parlar dated April 7, 2014, as amended.

“A sealed record must not be unsealed except on order of the court.” (Cal. Rules of Court, rule 2.551(h)(1).) “In determining whether to unseal a record, the court must consider the matters addressed in rule 2.550(c)-(e)” (Cal. Rules of Court, rule 2.551(h)(4)), which provide that “[u]nless confidentiality is required by law, court records are presumed to be open,” and the trial 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(c), (d).) “The order unsealing a record must state whether the record is unsealed entirely or in part.” (Cal. Rules of Court, rule 2.551(h)(5).)

In the motion, Shannon sought to unseal the subject motion on fairness grounds, i.e., she will be prejudiced in her ability to litigate in the probate action because LeRoy knows the information in the subject motion while she does not, but this alone is not a proper basis for unsealing a document. Shannon has not argued that the Court’s order sealing the motion was improper in any respect, and it is axiomatic that it is proper to protect a party’s privacy right in their medical information by sealing documents. The matter came on for hearing on September 19, 2023, and on September 21, 2023, the Court ordered supplemental briefing seeking further factual details and briefing on the issue of judicial estoppel.

“Judicial estoppel prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181.) This doctrine “is invoked to prevent a party from changing its position over the course of judicial proceedings when such positional changes have an adverse impact on the judicial process.” (Ibid., quotation marks omitted.) The doctrine applies “when: (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.” (Id. at p. 183.)

Shannon argues that the motion for protective order and supporting documents should be unsealed under the doctrine of judicial estoppel because it was asserted in the prior action that Decedent lacked the mental acuity or capacity to have his deposition taken in 2017, and LeRoy, who was a defendant in the prior action, now contends that Decedent had the capacity to execute testamentary documents in April 2016, while she previously contended that Decedent lacked capacity to enter into a contract in September 2015. Shannon contends that LeRoy has taken two positions in this case and in the probate action, she successfully asserted her first position that Decedent lacked capacity in this action both when he entered into the September 2015 contract and when a party sought to take his deposition in February 2017, the positions are totally inconsistent, and LeRoy’s position in this action was not taken as a result of ignorance, fraud, or mistake.

The Court lacks a basis to conclude that judicial estoppel applies here. As to LeRoy’s answer to the complaint asserting a third affirmative defense of “Incapacity of Halil Parlar,” of which the Court takes judicial notice on its own motion (Evid. Code, § 452, subd. (d)), there is no basis to conclude that LeRoy was successful in asserting this defense because the action was dismissed pursuant to a Notice of Settlement of Entire Case filed on September 18, 2017, such that neither the Court nor the trier of fact adopted the incapacity position or accepted it as true. As to the motion for protective order, the motion makes clear that it was filed only by Decedent; LeRoy was not a moving party for that motion, such that it was only Decedent who asserted he lacked capacity at that time. There is no evidence that LeRoy was a part of the motion in any respect, either in filing or in the resolution pursuant to the stipulation signed on March 13, 2017. Put simply, there is no basis to conclude that judicial estoppel applies here.

The Court finds that unsealing the record is unwarranted here. Whether Shannon is seeking to unseal the motion itself or the medical records is inapposite, as the motion was sealed, the Court has ruled that the motion was properly sealed, and Shannon has provided no sufficient basis for determining the sealing order was improper or that unsealing is warranted. Accordingly, Nonparty Tulin Shannon’s Motion for Unsealing of Documents is DENIED.

Evidentiary Objections

LeRoy objects to certain statements within the declaration of Stephen M. Martin. The Court declines to rule on Objection Nos. 1 through 9, as the statements at issue were not material to the Court’s ruling herein. Objection Nos. 10 and 11 are OVERRULED. LeRoy also objects to certain statements within the declaration of Tulin Shannon. The Court declines to rule on the objections, as the statements at issue were not material to the Court’s ruling herein.

Nonparty Elvis Parlar also objects to certain statements within the declaration of Stephen M. Martin. The Court declines to rule on Objection Nos. 1 through 6, as the statements at issue were not material to the Court’s ruling herein. Objection No. 7 is OVERRULED. Parlar also objects to certain statements within the declaration of Tulin Shannon. The Court declines to rule on the objections, as the statements at issue were not material to the Court’s ruling herein.