Judge: Michelle Williams Court, Case: 20STCV47452, Date: 2022-10-31 Tentative Ruling
Case Number: 20STCV47452 Hearing Date: October 31, 2022 Dept: 74
20STCV47452 JAE
KU CHANG vs JAE MIN CHANG
1. Plaintiff’s
Unopposed Motion to Continue Trial to August 7, 2023, or the Earliest Date
Convenient to the Court Thereafter is GRANTED.
Trial is CONTINUED to September 11, 2023 at 10:00 a.m. The Final Status Conference is CONTINUED to August
28, 2023 at 8:30 a.m.
2. Plaintiff’s
Amended Motion to Seal is GRANTED.
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.
Motions
On August 18, 2022, Plaintiff filed a motion to
continue trial from January 7, 2023 to August 7, 2023 or a date thereafter.
On September 28, 2022, Plaintiff filed an amended
motion to seal portions of the declaration filed in support of the motion to
continue trial.
The motions are unopposed.
Motion to Continue Trial
Standard
“The
decision to grant or deny a continuance is committed to the sound discretion of
the trial court.”¿(Forthmann¿v. Boyer¿(2002) 97 Cal. App. 4th 977,
984.)¿Pursuant to California Rules of Court, rule 3.1332(b), “[a] party seeking
a continuance of the date set for trial, whether contested or uncontested or
stipulated to by the parties, must make the request for a continuance by a
noticed motion or an ex parte application under the rules in chapter 4 of this
division, with supporting declarations. The party must make the motion or
application as soon as reasonably practical once the necessity for the
continuance is discovered.” “Although continuances of trials are disfavored,
each request for a continuance must be considered on its own merits. The court
may grant a continuance only on an affirmative showing of good cause requiring
the continuance.” (Cal. R. Ct., rule 3.1332(c).) “Circumstances that may
indicate good cause include:
(1) The unavailability of an essential lay or
expert witness because of death, illness, or other excusable circumstances;
(2) The unavailability of a party because of
death, illness, or other excusable circumstances;
(3) The unavailability of trial counsel because
of death, illness, or other excusable circumstances;
(4) The substitution of trial counsel, but only
where there is an affirmative showing that the substitution is required in the
interests of justice;
(5)
The addition of a new party if:
(A) The new party has not had a reasonable
opportunity to conduct discovery and prepare for trial; or
(B) The other parties have not had a reasonable
opportunity to conduct discovery and prepare for trial in regard to the new
party's involvement in the case;
(6) A party’s excused inability to obtain
essential testimony, documents, or other material evidence despite diligent
efforts; or
(7) A significant, unanticipated change in the
status of the case as a result of which the case is not ready for trial.
(Cal.
R. Ct., rule 3.1332(c).) Other factors to consider under Rule 3.1332(d)
include:
(1) The proximity of the trial date;
(2) Whether there was any previous continuance,
extension of time, or delay of trial due to any party;
(3) The length of the continuance requested;
(4) The availability of alternative means to
address the problem that gave rise to the motion or application for a
continuance;
(5) The prejudice that parties or witnesses will
suffer as a result of the continuance;
(6) If the case is entitled to a preferential
trial setting, the reasons for that status and whether the need for a
continuance outweighs the need to avoid delay;
(7) The court's calendar and the impact of
granting a continuance on other pending trials;
(8) Whether trial counsel is engaged in another
trial;
(9) Whether all parties have stipulated to a
continuance;
(10) Whether the interests of justice are best
served by a continuance, by the trial of the matter, or by imposing conditions
on the continuance; and
(11) Any other fact or circumstance relevant to
the fair determination of the motion or application.
On Balance, Plaintiff Demonstrated Good
Cause for the Continuance Sought
Trial
in this matter is currently set for January 9, 2023 and Plaintiff seeks to
continue trial to August 7, 2023 or a date thereafter. (Cal. R. Ct., rule
3.1332(d)(1), (3).)
Good
cause for a continuance may be shown by “the unavailability of a party because
of . . . illness, or other excusable circumstances,” (Cal. R. Ct., rule 3.1332(c)(2)),
as well as “[a] party’s excused inability to obtain essential testimony,
documents, or other material evidence despite diligent efforts.” (Cal. R. Ct.,
rule 3.1332(c)(6).)
Plaintiff
is 75 years old and resides in Seoul, South Korea. (Chang Decl. ¶ 2.) South
Korea did not relax its COVID-19 related travel restrictions until June 2022,
which has limited Plaintiff’s ability to travel to the United States during the
pendency of this action. (Id. ¶ 3; Selmont Decl. ¶ 4.) The parties have agreed depositions
should be conducted in person. (Selmont Decl. ¶ 5.) Plaintiff’s current health
issues also prevent Plaintiff from travelling to the United States and
Plaintiff will not be able to do so until the first quarter of 2023 at the
earliest. (Id. ¶ 6. Chang Decl. ¶¶ 4-5.) Defendant is 73 years old. (Selmont
Decl. ¶ 9.) The parties’ advanced age and underlying health conditions place
them at greater risk of complications from COVID-19 and other seasonal
illnesses and they seek to reduce the risk to their health by avoiding trial in
the winter months. (Selmont Decl. ¶¶ 10, 15; Chang Decl. ¶ 6.)
There
has been one prior trial continuance. (Cal. R. Ct., rule 3.1332(d)(2).) Counsel
has a trial set to state on January 10, 2023, the date after the currently
scheduled trial date in a case that is over three years old and has had several
prior continuances. (Id., rule 3.1332(d)(8).) Defendant stipulated to the
requested continuance. (Id., rule 3.1332(d)(9); Selmont Decl. ¶ 12, Ex. 3.) Under
the circumstances, the interests of justice are best served by a continuance.
(Cal. R. Ct., rule 3.1332(d)(10).)
The
Court finds good cause for a trial continuance and the motion is GRANTED. All
trial related dates and deadlines shall be continued consistent with the new
trial date.
Motion to Seal
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.)
The Court Shall Seal the
Documents as Requested
Plaintiff
seeks to seal 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 accompanied by the declaration of Plaintiff and Plaintiff’s
attorney, Russell Selmont. (Cal. R. Ct., rule 2.551(b)(1).) The motion “only
seeks to seal those portions of the Motion to Continue Trial, Declaration of
Jae Ku Chang, and Supplemental Declaration of Jae Ku Chang which refer to
Plaintiff’s private medical diagnoses and advice from his doctors.” (Selmont
Decl. ¶ 3.) Plaintiff’s medical information is not public and Plaintiff
expresses concern that revelation of the medical information “would lead to
embarrassment and harassment (and particularly from [Plaintiff’s] business
competitors).” (Chang Decl. ¶ 3.)
California
law recognizes that individuals have a right to privacy in their medical
information and supports sealing of such information. (Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1070 (“the public’s
general right of access to court records recognized in rule 2.550 must give way
to the public’s concern about the privacy of medical information in this case,
particularly when the information appears so tangentially related to the
litigation.”).) The general public’s interest is reduced as the medical
information is not submitted as a basis for adjudication of the merits of the
dispute. (See generally Savaglio v. Wal-Mart Stores, Inc. (2007) 149
Cal.App.4th 588, 596 (“The public has a First Amendment right of access to
civil litigation documents filed in court and used at trial or submitted as a
basis for adjudication.”).) Plaintiff’s interest in protecting medical
information is an overriding interest that overcomes the public right of access
and supports sealing the record. (Cal. R. Ct., rule 2.551(d)(1), (2).)
Plaintiff’s privacy interest in the medical records will be prejudiced if such
information is publicly filed. (Cal. R. Ct., rule 2.551(d)(3).)
Plaintiff’s
sealing request is narrowly tailored to two paragraphs of Plaintiff’s
declaration and the portion of Plaintiff’s memorandum of points and authorities
that specifically detail Plaintiff’s medical conditions and there are no less
restrictive means to protect Plaintiff’s medical information. (Cal. R. Ct.,
rule 2.551(d)(4), (5).)
The
Court finds the narrow sealing sought by Plaintiff is warranted and the motion
to seal is GRANTED.