Judge Mark A. Young, Case 23SMCP00011 2023-03-01 Tentative Ruling

The sealing of trial court records is governed by California Rules of Court, 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. (Cal. Rules Court, 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. (Cal. Rules Court, rule 2.550(e).)

Once sealed, a record can only be unsealed by order of court. (Cal. Rules Court, 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).)

The parties each move to seal certain documents lodged in this action, and request that they be allowed to proceed under pseudonyms. The Court will address each request in turn.

Plaintiff LMS requests that the Court seal the “Entire Action.” In other words, Plaintiff requests that the parties be allowed to proceed under fictious names or initials.

“Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute” and every complaint must “include the names of all the parties.” (CCP, §§ 367, 422.40; see also CRC, Rule 2.550(c).) “The normal presumption in litigation is that parties must use their real names” absent “exceptional” or “special circumstances.” (Doe v. Kamehameha Sch. (9th Cir. 2010) 596 F.3d 1036, 1042; Does I thru XXIII v. Advanced Textile Corp. (9th Cir. 2000) 214 F.3d 1058, 1067; see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 2:136.5.) “[A] party may preserve his or her anonymity in judicial proceedings in special circumstances when the party’s need for anonymity outweighs prejudice to the opposing party and the public's interest in knowing the party's identity.” (Doe v. Lincoln Unified School Dist. (2010) 188 Cal.App.4th 758, 767.) “That a plaintiff may suffer embarrassment or economic harm is not enough.” (Doe v. Megless (3rd Cir. 2011) 654 F.3d 404, 408.)

Aside from the parties’ agreement to confidentiality, in support of his request, Plaintiff cites his own perfunctory declaration generally recounting the allegations in the complaint. Plaintiff states:

2. Due to an escalating series of false, defamatory, and extortionate lies told by W.L.S ("WLS") and her attorney A.T.B. ("ATB"), collectively "Defendants," as well as false and defamatory lies told by WLS' fiancé JPJ ("JPJ") and repeated false and defamatory lies told by JPJ's attorneys, my business and reputation have been destroyed, and invaluable personal relationships have been lost and/or strained.

3. After ATB, at WLS' direction, made the unprecedented decision to release a false and defamatory statement directly to notorious tabloid TMZ, and then to accuse me in a Cross-Complaint of Sexual Assault of a Minor, and Civil Conspiracy, I was initially paralyzed by the never-ending extortionate threat that Defendants lies would become public.

4. Then, after reporting the crime to the FBI, I bent over backwards for two years, desperately attempting to convince Defendants to do the right thing by agreeing to resolve this dispute. but to no avail.

(2/9/23 LMS Decl., ¶¶ 2-4, emphasis added.) The Court notes that LMS’s original declaration was not signed. In a February 27, 2023, motion to seal, Plaintiff did sign his declaration.[1]

First, the Court notes that no special or exceptional circumstances are evidenced here. The parties cite to cases where plaintiffs were sexually abused by defendants as minors (see Doe v. City of Los Angeles (2007) 42 Cal. 4th 531) or where the doe plaintiff was a registered sex offender and the cases regarded their need to register as a sex offender (see Doe v. Brown (2009) 177 Cal. App. 4th 408, 412; Doe v. Bakersfield City School Dist. (2006) 136 Cal. App. 4th 556, 568-69). This case differs materially from such cases because, although this case involves allegations of sexual abuse of a minor, Plaintiff does not allege any sexual abuse occurred. To the contrary, Plaintiff sues for defamation against Defendants because they publicly alleged in the media that such abuse occurred and Plaintiff was damaged from this public disclosure. The Court is not confronted with a situation where a victim of childhood incest rape is seeking to proceed anonymously or under seal.

Furthermore, the fact that this abuse has already been alleged publicly weighs heavily against a finding of an overriding interest which would be prejudiced by disclosure in this action. Since the sexual abuse information is already public, and Plaintiff’s reputation has already “been destroyed,” then the disclosure of the parties’ identities in this matter would not further any right to privacy. Moreover, the public filings contain enough specific facts that the parties’ identities would easily be revealed through internet searches. (See, e.g., Compl., ¶¶ 23-24, 29-31, Ex. D.)

The parties do not discuss how disclosure would subjectively affect them, much less an overriding interest which overcomes the right of public access. While Plaintiff points to a physical attack in broad daylight, that attack – only speculatively linked to disclosures of Plaintiff’s sexual assault of his sister – demonstrates that the harm to Plaintiff from the public disclosure of these allegations has already occurred. The Court also would not find that the proposed sealing is narrowly tailored to these ends. Certainly, the sealing could be more narrowly tailored than sealing the “entire” action or allowing the use of pseudonyms.

Therefore, the Court denies Plaintiff’s request to allow this action to proceed under pseudonyms.

(1) The Declaration of ATB in support of Defendant WLS’s special motion to strike pursuant to Code of Civil Procedure section 425.16; and

Such Documents include emails and letters between attorneys and parties, and court filings. The Court does not find any justification offered for sealing a request for judicial notice of documents already in the public record. Thus, disclosure could not prejudice any purported right to privacy here. The Court does note that this initial request was made in light of Plaintiff’s unilateral sealing of the initial complaint, and a desire not to undermine that decision before the Court could rule on the sealing matter. In a February 27, 2023, Statement Re: Sealed Filing, Defendants informed the Court that they are taking no position regarding the sealing issue. Despite this position, the Court must still address the previously filed under seal documents, and the scope of such a sealing.

With that said, the Court does agree that some individuals’ identities would be irrelevant to the resolution of this action, such as the names of Defendant WLS’s minor children, their home and email addresses, or telephone numbers. Such personally identifying information may be left redacted, as such information is irrelevant to the outcome of the motion.

To the extent that a sealing order would be required for such information, the Court finds that an overriding privacy interest of third parties as to such information. Disclosure would prejudice this interest. However, the request that the entirety of the exhibits and request for judicial notice would not be the least restrictive means to achieve privacy an overriding privacy interest. Redactions only as to such personally identifying information would be the least restrictive means to achieve this interest.

Defendants ATB and BMB (the “Lawyer Defendants”) move to file under seal certain documents in support of their special motion to strike pursuant to Code of Civil Procedure section 425.16. The motion to strike includes identifying information of Plaintiff LMS and his sister, Defendant WLS.

The discussion of this request tracks closely with Defendant LMS’s general request that the parties proceed anonymously. Again, the Court does recognize that this request was made in light of Plaintiff’s initial decision to seal the entire complaint. The Court also recognizes that this position has changed as set forth in Defendant’s February 27, 2023, filing.

The Court, however, must still address the initial request, in which the parties argued that they are entitled to proceed under pseudonyms because they agree to do so, and some people involved are famous. That, however, is not the standard to seal. Defendant argues that all parties to this action desire to maintain the confidentiality “due to the nature of the issues and the individuals involved.” (Rocos Decl., ¶¶ 3-5.) Attorney Defendants observe that many of the allegations in the Complaint concern matters of a sexual nature. (Compl., ¶¶ 15, 35, 52-53.) As discussed, the parties’ agreement is insufficient to support this request. The “high profile nature of certain of individuals involved” does not weigh towards any significant interest, let alone an overriding privacy interest. Again, the alleged conduct all took place in the public record and was subject of media attention. This fact weighs heavily against sealing. This demonstrates that sealing does not actually protect any private information. Moreover, the parties do not suggest how their interests would be prejudiced if they are not allowed to maintain their anonymity.

Examining the entirety of each parties’ evidence, the parties do not demonstrate that an overriding interest exists that overcomes the right of public access to the record. For these reasons, the request to seal this action and proceed anonymously is DENIED. The Court, however, will permit redaction of some personal identifying information such as the names of minors, physical addresses, email addresses and telephone numbers, as they appear either in motions, exhibits to motions, or other relevant filings.

The Court orders that Plaintiff file a first amended complaint (FAC) within 10 days consistent with this ruling. The FAC shall be identical to the January 3, 2023, complaint that was filed except that the FAC shall identify the parties and delete the redactions. Defendants’ respective special motions to strike shall be deemed operative as to the FAC. Defendants shall refile their special motions to strike removing all pseudonyms and redactions consistent with this order within 10 days of Plaintiff filing his FAC. Since the motions shall be otherwise identical, the hearings will remain on April 11, 2023.

If Plaintiff fails to file a FAC within 10 days, this matter shall be dismissed.

[1] The Court is unclear why Plaintiff filed a second motion to seal. At the February 9, 2023, status conference, the Court had requested that the parties file either their joint or separate positions re sealing. The Court did not request or authorize a second motion to seal from Plaintiff, which, of note, was not filed until February 28, 2023.