Judge: Mark A. Young, Case: 21STCV25158, Date: 2023-11-07 Tentative Ruling

Case Number: 21STCV25158    Hearing Date: November 7, 2023    Dept: M

CASE NAME:           Reese, et al., v. Irwin Naturals, Inc., et al.

CASE NO.:                21STCV25158

MOTION:                  Motion to Seal; Motion to Dismiss

HEARING DATE:   11/7/2023

Legal Standard

Sealing Order

The sealing of trial court records is governed by CRC Rules 2.550 and 2.551. (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 68.) Pleadings, motions, discovery documents, and other papers may not be filed under seal merely by stipulation of the parties—a prior court order must be obtained. (CRC, Rule 2.551(a); see H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 888.)  To seal a record, the following requirements are imposed: (1) the party must file a motion or application for an order sealing the record, which must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing; (2) the party must serve a copy of the motion on all parties who have appeared in the case; and (3) the party requesting that a record be filed under seal must lodge it with the court when the motion or application is made unless the record has previously been lodged. (CRC, Rule 2.551(b).)  

The Court must make the following express factual findings in order to seal records: (1) an overriding interest exists that overcomes the right of public access to the record; (2) the overriding interest supports sealing the records; (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. (CRC, Rule 2.550(d).) These findings embody constitutional requirements for a request to seal court records, protecting the First Amendment right of public access to civil trials. (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1217-1218.)

An order sealing the record must specifically state the facts that support the findings and direct the sealing of only those pages and documents or, if reasonably practicable, portions of those documents and pages, that contain the material that needs to be placed under seal, and all other portions must be included in the public file. (CRC, rule 2.550(e).) 

Once sealed, a record can only be unsealed by order of court. (CRC, Rule 2.551(h)(1).) So long as it remains under seal, all parties must refrain from filing anything not under seal that would disclose the sealed matter. (Id., Rule 2.551(c).) If a party files a new document referring to sealed matter, it must submit an unredacted version of the document under seal and a redacted one for the public record. (Id., Rule 2.551(b)(5).)

Forum Non Conveniens

            “Forum non conveniens is an equitable doctrine invoking the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere. [Citations].” (Stangvik v. Shiley, Inc. (1991) 54 Cal.3d 744, 751.) The doctrine has been codified in Code of Civil Procedure section 410.30. “The inquiry is whether ‘in the interest of substantial justice an action should be heard in a forum outside this state.’ ” (Animal Film, LLC v. D.E.J. Productions, Inc. (2011) 193 Cal.App.4th 466, 471.)

            In considering motions based on forum non conveniens, courts undertake a two-part analysis. The moving party bears the burden to show that the alternate forum is a suitable place for trial. If it is, the moving party must show that the private interests of the litigants and the interests of the public in litigating the matter favors alternative forum over the current forum. (Stangvik, supra, 54 Cal.3d at 751.)

The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses. The public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in the litigation.

(Ibid.)

SEALING Analysis

Defendant Irwin Naturals moves for an order sealing portions of the following documents related to the forum non conveniens (“FNC”) motion: a) Plaintiffs' Opposition; b) Declaration of David P. Mason and attached Exhibits 7, 9, 10, 28, and 34; and c) Declaration of Paul J. Komyatte.

Defendant argues that the cited redactions and documents should be sealed because each contains Irwin's confidential, proprietary, and highly sensitive business information. Indeed, each reference and exhibit contain Irwin's internal company emails and documents regarding Irwin's products, product formulations, and retailers, and other information about Irwin's customers who are not parties to this suit. (Ball Decl., Ex. A.) For instance, Exhibit 7 contains emails discussing various retailers around the country that sell Irwin's products to the public. Exhibit Nos. 9, 10, and 34 contain internal emails and documents regarding Irwin's products and product formulations. Additionally, Exhibit 28 is a list of consumers, including personal identifying and medical information, that have allegedly experienced adverse effects by taking Irwin's products. (Schulz Decl., ¶3.) Much of this information took Irwin years to develop, and garner independent economic value from their continued confidentiality. (Schulz Dec.¶ 4.) Revealing some of this information risks causing Irwin tangible economic harm in the competitive supplement industry.

Furthermore, the cited information in these documents is not essential to the resolution of this motion and does not materially hinder the public’s interest in this action. Irwin has an overriding interest in protecting its proprietary business information, including sensitive information about its products and product formulations. The public has an interest in protecting the private, sensitive, and/or medical information of non-party consumers. These interests overcome the right of public access to these limited records.

The proposed sealing is narrowly tailored, and it is the least restrictive means to achieve the overriding interests. Notably, the sensitive information is redacted, leaving most of the opposition and declarations intact.

Accordingly, the motion to seal is GRANTED.

FNC Analysis

Defendant Irwin Naturals moves for an order dismissing/staying this action because California is an inconvenient forum for this action and the interests of substantial justice dictate that the action should further proceed in Colorado, not in California. (CCP §§ 410.30, 418.10.) Defendant Robinson Pharma Inc. joins in the motion.

Evidentiary Issues

Defendant’s objections to Plaintiffs’ evidence in support of the opposition are OVERRULED.

Defendant’s request for judicial notice is GRANTED. (Evid. Code § 452(d), (h).)

Suitable Alternative Forum

            There is no serious dispute that Colorado is a suitable alternative forum for this action. To be suitable, a forum need only have personal jurisdiction and not have a statute of limitations that would bar the action. (Chong v. Superior Court (1997) 58 Cal.App.4th 1032.) There is no jurisdictional or statutory bar to this action proceeding in Colorado. Counsel for Irwin agrees that it will submit to the jurisdiction of Colorado and waive any applicable statute of limitations. (Axelrod Decl., ¶¶ 4-5.) Robinson represents in its joinder that it would consent to jurisdiction in Colorado and waive any statute of limitations defense. (Nguyen Decl.) Colorado law also provides a remedy for the alleged injuries, which occurred in Colorado. (RJN Ex. 2, Colorado Revised Statutes § 13-80-106.) Thus, this threshold requirement is met.

Private Factors

Certainly, several private factors weigh in favor of Colorado as a forum. Plaintiffs are husband and wife and are residents of Colorado. Plaintiffs allege personal injuries stemming from Mr. Reese’s use of a product, Libido Max (a male enhancement supplement, hereinafter, the “Product”), which Mr. Reese purchased from a Walmart in Colorado Springs. Mr. Reese alleges he took the Product on three occasions during sexual activity in Colorado. Following the third occasion, he experienced physical afflictions and was taken to a hospital and continues to receive medical treatment in Colorado. Thus, Plaintiffs suffered the injury and damages in Colorado.

            Much of the evidence related to Plaintiffs’ damages is in Colorado. As noted, Plaintiffs allegedly purchased the Product from a Walmart in Colorado Springs and used the Product there. Mr. Reese was treated for those injuries in Colorado. (FROG no. 6.4.) Mr. Reese also received medical treatment for several heart-related issues by Colorado practitioners since at least 2012, which is prior to his injury in this matter. Mr. Reese was also employed as a coach in Colorado Springs. (FROG No. 2.7) Defendant also explains that there are still outstanding medical records that it needs to obtain, including records from Mr. Reese’s cardiologist and from the VA Hospital in Aurora, Colorado. (Stricklin Decl., ¶ 4.) Thus, there is significant evidence within Colorado’s jurisdiction that may be more convenient to obtain through an in-state action.

On the other hand, there is substantial evidence and witnesses in California. Defendants are headquartered in California. (FAC ¶¶ 2, 9.) Robinson Pharma is a California corporation with its principal place of business in Santa Ana, California. (Ex. 3 [FI nos. 3.1]; Ex. 4 [SI no. 8].) Plaintiffs also emphasize that the bulk of the witnesses and evidence they will present will be focused on product design and safety issues. Defendants do not dispute that the product was designed, manufactured, and sold in California. (FAC ¶ 5.) Irwin markets, sells, and distributes Libido Max in California (and across the country) through direct sales to retailers like Walmart, CVS, and many others. (Ex. 5 [SI nos. 16-20].) As such, significant evidence of the design, production and marketing of the subject product is in California.

Defendants emphasize their need to access Plaintiff’s medical records in Colorado. However, the record shows that the parties have informally resolved much of the discovery issues concerning Plaintiff’s medical history. Plaintiffs claim that they have produced virtually all of Mr. Reese’s injury-related records and virtually all of his medical records for a five year period preceding the date of his injuries.  These records consist of over 12,000-pages of medical records and bills spanning from five years prior to his March 2020 injuries to the present. (Mason Decl., ¶¶ 13-21.) Plaintiffs provided releases for pre-incident records for a period of 7 years without a formal discovery demand. (Id., Exs. 12-13.) Plaintiffs note that this motion is the first time that Defendants have claimed difficulties in obtaining records, except for a single meet and confer effort by prior counsel. (See Id., Ex. 15.) Additionally, Plaintiffs have agreed that Defendants may depose and examine Plaintiffs in California. (H. Reese Decl., ¶¶ 2-5; J. Reese Decl., ¶¶ 2-5.) Defendants do not persuasively show that any critical witnesses would not be subject to compulsory discovery methods through foreign subpoenas. Plaintiffs also identify specific defense witnesses they need to depose who have knowledge of these and other key issues, the vast majority of whom reside in and around California. (Mason Decl., ¶ 39, n.4; Komyatte Decl., ¶¶ 22-23, n.2, Exs. 3, 4, 24, 27.)

Defendant emphasizes that the Plaintiffs and their counsel reside in Colorado. However, this does not weigh heavily in favor of Colorado, since Plaintiffs and counsel chose to file in California. Plaintiffs’ choice in forum should generally be respected, and the fact that they live in Colorado does not heavily weigh against their choice of forum.

Plaintiffs also note that granting this motion will substantially prejudice their case. Plaintiffs brought this action against Irwin on July 8, 2021 – over two years ago – alleging that Irwin’s Libido Max product was defective and caused Mr. Reese’s injuries. Plaintiffs added Robinson as a defendant on or about May 5, 2022 – over a year ago. This case is set for trial in a year, commencing on October 7, 2024.

Since Plaintiffs filed this case in July 2021, Irwin litigated this action by filing a demurrer and a motion to strike and serving hundreds of discovery requests. In May 2022, Irwin served Plaintiffs with six sets of written discovery requests totaling 95 form interrogatories, 109 special interrogatories, and 64 requests for production, most of which had nothing to do with this motion. (See Mason Decl., at ¶¶ 12-13, Exs. 14, 23, 30-33.) Nine months prior to this motion, Plaintiffs provided 120 pages of formal responses and over 10,000 pages of Mr. Reese’s medical records and bills. Plaintiffs have since produced an additional 2,000-plus pages of medical records, another 106 pages of supplemental discovery answers, and are producing additional and updated records on a rolling basis. Irwin participated in an IDC and multiple hearings on Plaintiffs’ motion to compel discovery in August and December 2022, which resulted in an order requiring Irwin to produce extensive internal documents and identify consumers who suffered injuries. Shortly after receiving these adverse rulings, Irwin fired its counsel, hired new counsel, and then filed this motion. It is also notable that despite complaints of discovery difficulties, Irwin has not moved to compel any discovery.

            These discovery issues would not render this motion untimely. However, the parties (and, indeed, this California court) has already expended years of time and effort on this action. The Court concurs with Plaintiffs that a transfer now – with discovery well under way, rounds of motion practice complete, and trial less than a year away – would unduly prejudice Plaintiffs by requiring them to effectively start the entire process over in Colorado. Defendant Irwin had clear notice from the initial complaint that Colorado could be a suitable alternate forum. Defendants knew this long before they sought a transfer. Plaintiffs also note that Colorado law has far more limited discovery than California law. (Mason Decl., at ¶¶ 60-61; Komyatte Decl. at ¶¶ 31-32; see, e.g., CRCP 26(b)(2)(A).) Thus, Defendants’ delay in bringing this motion may garner a tactical advantage.

On balance, the private factors do not weigh heavily in favor of Colorado as the more convenient forum.

Public Factors

Defendant argues that there is a backlog for personal injury cases in Los Angeles County and offers statistics on personal injury cases. Defendant does not provide any comparison data for Colorado courts. Thus, the Court cannot conclude that Colorado would be a more appropriate forum on this basis.

As to the other factors, California has a clear interest in the regulation of a product designed, manufactured and supplied in California. While the site of injury in this action was in Colorado, this does not mean that California would not be interested in regulating this product. Since the product is also targeted at California residents, the local community may be rightfully concerned about this action. In fact, since the product is designed, manufactured and supplied in California, California has at least an equal or greater interest in this action than Colorado.

Defendants cite two cases Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452 and

Roman v. Liberty Univ. Inc. (2008) 162 Cal.App.4th 670. The Court finds both cases distinguishable. Roman involved two foreign defendants that had insufficient contacts with California to establish general or specific jurisdiction. Roman also did not pertain to a products liability case, but an alleged assault which occurred in Virginia. Unlike Roman, this case involves California defendants, and includes tortious conduct in California (to wit, the design and manufacture of the product). Likewise, Morris involved numerous corporate defendants, only two of which were California companies. Here, unlike Morris, 100% of the defendants are headquartered in California.

Balancing both the private and public factors, the Court concludes that California is not a seriously inconvenient forum. Accordingly, the motion is DENIED.