Judge: Mitchell L. Beckloff, Case: 23STCV24915, Date: 2024-03-22 Tentative Ruling

Case Number: 23STCV24915    Hearing Date: March 22, 2024    Dept: 86

THE DOCTOR’S CHOICE AGENCY, et al. v. DAVID WITTENBERG

Case Number: 23STCV24915

Hearing Date: March 22, 2024

[Tentative]       ORDER DENYING PLAINTIFF’S MOTION TO SEAL

Plaintiff, The Doctor’s Choice Agency, requests an order sealing portions of the declaration of Defendant David Wittenberg in support of his opposition to Plaintiffs’ ex parte application for a temporary restraining order and preliminary injunction. Plaintiff contends a partial sealing is warranted because the document “contain[s] defamatory and salacious allegations that gratuitously attack the character and reputation of a non-party in this case.” The motion is unopposed.

The motion to seal is denied.  

BACKGROUND

This action arises from Defendant David Wittenberg allegedly engaging in embezzlement of funds while serving as an officer of Plaintiffs, Omni Home Health, Inc. (Omni), Gratitude Health Care, Inc. (Gratitude), and My Choice Therapy (My Choice) (collectively, Plaintiffs). Plaintiffs allege Defendant Wittenberg surreptitiously embezzled over a million dollars from Plaintiffs for his own benefit and personal use. (Complaint, ¶¶ 12-13.)

On October 12, 2023, Plaintiffs filed a complaint against Defendant Wittenberg alleging causes of action for: (1) breach of fiduciary duty; (2) conversion; (3) fraudulent concealment; (4) unjust enrichment; (5) accounting; (6) declaratory judgment; and (7) injunctive relief.

On October 25, 2023, Plaintiffs filed an ex parte application for a temporary restraining order and for an order to show cause why a preliminary injunction should not issue to restrain and prevent Defendant Wittenberg, and any person acting at his direction, from (1) taking any action that purports to be on behalf of Plaintiffs; (2) interfering with Plaintiffs and their officers’ ability to manage and operate Plaintiffs’ businesses; and (3) blocking or exerting any authority over Plaintiff The Doctor’s Choice Agency bank accounts.

On October 27, 2023, Defendant Wittenberg filed an opposition to Plaintiffs’ ex parte application. The opposition included a declaration of Defendant Wittenberg.

This court denied the ex parte application.

On November 14, 2023, Plaintiffs filed the operative First Amended Complaint (FAC) against Defendants Wittenberg, Choice Health Group, Inc., Medsac Inc. (collectively, Defendants) alleging causes of action for (1) breach of fiduciary duty; (2) conversion; (3) fraudulent concealment; (4) unjust enrichment; (5) accounting; (6) declaratory judgment; (7) injunctive relief; and (8) breach of contract. 

On February 27, 2024, Plaintiff The Doctor’s Choice Agency filed and served their unopposed motion to seal. 

On March 12, 2024, Defendants filed a notice of settlement indicating Plaintiffs and Defendants have reached a settlement in principle of all claims and causes of action, and the parties anticipate filing a request for dismissal with prejudice of the entire case within 45 days.

STANDARD OF REVIEW

“[S]ubject to certain exceptions . . . a court record must not be filed under seal without a court order.” (Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 486.) “A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” (Id. [emphasis added].) “In doing so, the moving party must lodge with the court the record for which the sealing order is sought. The court holds the record conditionally under seal until it rules on the motion or application.” (Id. at 486-487.)   

In order for records to be sealed, “a trial court must hold a hearing and expressly find that

(i) there exists an overriding interest supporting closure and/or sealing; (ii) there is a substantial probability that the interest will be prejudiced absent closure and/or sealing; (iii) the proposed closure and/or sealing is narrowly tailored to serve the overriding interest; and (iv) there is no less restrictive means of achieving the overriding interest.” (Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1279.) “Unless confidentiality is required by law, court records are presumed to be open.” (Cal. Rules of Court, Rule 2.550, subd. (c).) “Since court records are public records, the burden rests on the party seeking to deny public access to those records to establish compelling reasons why and to what extent these records should be made private.” (Mary R. v. B. & R. Corp. (1983) 149 Cal.App.3d 308, 317.)

ANALYSIS

As an initial matter, the motion must be denied because Plaintiff has not filed a declaration stating sufficient facts to justify sealing portions of Defendant Wittenberg’s declaration. While Plaintiff has filed a declaration in support of its motion, that declaration merely authenticates Defendant Wittenberg’s declaration. (Newborn Decl., ¶ 2; Exh. A.) Accordingly, in the absence of evidence, the court cannot make any factual findings addressing the requirements for sealing. (See Universal City Studios, Inc. v. Superior Court, supra, 110 Cal.App.4th 1273, 1279 [sealing factors]). The motion is therefore denied.

Even if the court reached the merits on the substance, the court finds no overriding interest here to justify sealing the record. The court finds the facts here—where one party makes allegations in a lawsuit against the shareholder of other parties—are distinctly different from those of Warner v. Warner (1955) 135 Cal.App.2d 302, 304. In Warner v. Warner, a party’s lawyer—not the party or a shareholder to a party to a lawsuit—was subject to irrelevant and defamatory attacks in a pleading. Here Akvia Greenfield is a shareholder of all Plaintiffs, and he is intertwined with the facts set forth in the complaint and FAC.

Absent facts to support all factors required to sealing, the court cannot seal any portions of the document.

CONCLUSION

For the foregoing reasons, the motion to seal is denied.

IT IS SO ORDERED.

March 22, 2024                                                                                    ______________________________

                                                                                                                   Hon. Mitchell Beckloff

                                                                                                                   Judge of the Superior Court