Judge: Michelle Williams Court, Case: 20STCV47452, Date: 2022-09-19 Tentative Ruling

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Case Number: 20STCV47452    Hearing Date: September 19, 2022    Dept: 74

20STCV47452 JAE KU CHANG vs JAE MIN CHANG

Plaintiff’s Motion to Seal

TENTATIVE RULING:  The hearing on the motion to seal and the motion to continue trial and CONTINUED to October 20, 2022 at 8:30 a.m. to enable Plaintiff to comply with the requirements of the Rules of Court by providing notice of the motion to seal and a supporting declaration.

Background

On December 11, 2020, Plaintiff Jae Ku Chang filed this action against Defendant Jae Min Chang, Plaintiff’s brother, based upon allegations that Defendant defrauded Plaintiff into selling his ownership interest in at The Korea Times Los Angeles, Inc. for a fraction of its market value. The First Amended Complaint, filed on February 11, 2021, asserts causes of action for: (1) fraud; (2) breach of fiduciary duty; (3) negligent misrepresentation; and (4) rescission.

Motion

On August 17, 2022, Plaintiff filed the instant motion to seal seeking to seal portions of his motion to continue trial, filed on August 18, 2022.

The motion is unopposed. (Code Civ. Proc. § 1005(c).)

Discussion

Standard to Seal Documents

Unless the law requires confidentiality, court records are presumed to be open to the public, pursuant to a potent “open court” policy undergirded by the First Amendment and favoring the public nature of court proceedings.¿(Cal. R. Ct., rule 2.550(c); NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1199-10.) “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. R. Ct., rule 2.551(d).) “An order sealing the record must: (A) Specifically state the facts that support the findings; and (B) Direct the sealing of only those documents and pages, or, if reasonably practicable, portions of those documents and pages, that contain the material that needs to be placed under seal. All other portions of each document or page must be included in the public file.” (Cal. R. Ct., rule 2.551(e).)

A motion seeking an order sealing records must be accompanied by a memorandum and declaration containing facts sufficient to justify the sealing.¿(Cal. R. Ct., rule 2.551(b)(1). “Substantive courtroom proceedings in ordinary civil cases, and the transcripts and records pertaining to these proceedings, are presumptively open.” (McNair v. National Collegiate Athletic Association, (2015) 234 Cal.App.4th 25, 31.)

Plaintiff Did Not Comply with Rule 2.551

Plaintiff seeks to seal the redacted portions of the memorandum and declaration filed on August 18, 2022 in connection with Plaintiff’s unopposed motion to continue trial.

Plaintiff’s motion to seal is brought pursuant to California Rules of Court, rule 2.550. Rule 2.550(a)(1) expressly states: “Rules 2.550-2.551 apply to records sealed or proposed to be sealed by court order.”

However, Plaintiff did not comply with the requirements of California Rules of Court, rule 2.551. The motion was not made as a noticed motion. (Cal. R. Ct., rule 2.551(b)(1) (“A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record.”); Cal. R. Ct., rule 3.1112(a)(1). “Unless otherwise provided by the rules in this division, the papers filed in support of a motion must consist of at least the following: (1) A notice of hearing on the motion.”).) “Although certain orders may be obtained through ex parte application, a statute silent on the question should not be interpreted as authorizing an ex parte application for an order. . . . We interpret use of the term ‘motion’ rather than ‘ex parte application’ as imposing the notice and hearing requirements generally applicable to motions.” (St. Paul Fire & Marine Ins. Co. v. Superior Court (1984) 156 Cal.App.3d 82, 85-86.)

Additionally, the motion is not supported by the required declaration justifying the sealing. (Cal. R. Ct., rule 2.551(b)(1) (“The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.”).)

Plaintiff cannot merely serve a memorandum of points and authorities to obtain a sealing order.

The motion is therefore CONTINUED to allow plaintiff time to correct these procedural issues.