Judge: Monica Bachner, Case: BC652020, Date: 2023-03-29 Tentative Ruling

Case Number: BC652020    Hearing Date: March 29, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant McLear & Co., Inc.’s unopposed motion to seal Portions of the Declaration of Harford in Support of McLear’s Oppositions to Cross-Defendants’ Motions in Limine Nos. 1-6 filed 10/3/22, Exhibits I, L, W, and X is granted.

Defendant’s unopposed motion to seal (1) Portions of the Declaration of Wagner in support of Motion in Limine No. 1 filed 9/21/22, Exhibits 15, 16, 17, and 18; (2) Portions of the Declaration of Wagner in support of Motion in Limine No. 2 filed 9/21/22, Exhibits 3, 4, and 6; (3) Portions of the Declaration of Wagner in support of Motion in Limine No. 3 filed 9/21/22, Exhibits 1, 2, and 3; (4) Portions of the Declaration of Wagner in support of Motion in Limine No. 4 filed 9/21/22, Exhibits 1, and 2; (5) Exhibit 3 to the Declaration of Wagner in Support of Motion in Limine No. 6 filed 9/21/22; (7) Portions of the Reply Declaration in Support of Esos Rings, Inc. and Michelle Silverstein’s Motion in Limine No. 2 filed 10/7/22, Exhibits 9 and 10; and (8) Exhibit 4 to the Declaration of Ben L. Wagner in Support of Esos Rings, Inc. and Michelle Silverstein’s Motion in Limine No. 4 filed 10/7/22 is continued to April 21, 2023.

Defendant/Cross-Complainant McLear & Co., Inc. (“McLear”) (“Defendant”), moves unopposed for an order sealing (1) Portions of the Declaration of Wagner in support of Motion in Limine No. 1 filed 9/21/22, Exhibits 15, 16, 17, and 18; (2) Portions of the Declaration of Wagner in support of Motion in Limine No. 2 filed 9/21/22, Exhibits 3, 4, and 6; (3) Portions of the Declaration of Wagner in support of Motion in Limine No. 3 filed 9/21/22, Exhibits 1, 2, and 3; (4) Portions of the Declaration of Wagner in support of Motion in Limine No. 4 filed 9/21/22, Exhibits 1, and 2; (5) Exhibit 3 to the Declaration of Wagner in Support of Motion in Limine No. 6 filed 9/21/22; (6) Portions of the Declaration of Harford in Support of McLear’s Oppositions to Cross-Defendants’ Motions in Limine Nos. 1-6 filed 10/3/22, Exhibits I, L, W, and X; (7) Portions of the Reply Declaration in Support of Esos Rings, Inc. and Michelle Silverstein’s Motion in Limine No. 2 filed 10/7/22, Exhibits 9 and 10; and (8) Exhibit 4 to the Declaration of Ben L. Wagner in Support of Esos Rings, Inc. and Michelle Silverstein’s Motion in Limine No. 4 filed 10/7/22.  (McLear’s Request to Seal Portions of Documents, pgs. 1-2.)

Background

On October 3, 2022, Defendant filed a motion to seal exhibits attached to the Declaration of David Harford in Support of McLear’s Oppositions to Cross-Defendants’ Motions in Limine Nos. 1-6.  As of the date of this hearing, Plaintiff has not filed an opposition.

Plaintiff filed four motions to seal: The first, originally filed on September 22, 2022, asks the Court to redact portions of Plaintiff’s various motions in limine and seal exhibits attached to the declarations of Ben Wagner in support. The second, filed on October 10, 2022, asks the Court to redact portions of Plaintiff’s reply briefs to its various motions in limine and seal exhibits attached to the declarations of Ben Wagner in support. The third, filed on January 12, 2023, asks the Court to seal page 2 of Exhibit A attached to the Declaration of Ben Wagner in support of Notice of Remote Appearance by Michelle Silverstein. 

On March 28, 2023, Defendant filed the instant motion consolidating parties’ request to seal documents.

Legal Standard

CRC Rule 2.551(b)(1) provides: “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.”

CRC Rule 2.550(d) provides: “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.” 

CRC Rule 2.550(e) provides: “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.”

Motion to Seal

a.     Portions of the Declaration of Harford in Support of McLear’s Oppositions to Cross-Defendants’ Motions in Limine Nos. 1-6 filed 10/3/22, Exhibits I, L, W, and X

Defendant moves to seal on the ground that the information sought to be sealed constitutes confidential business information, including financial data, and therefore, the parties can “overcome a presumption of openness.”  (Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1281; see also Sacramento County Employees’ Retirement System v. Superior Court (2011) 195 Cal.App.4th 440, 472 [discussing confidentiality of “e-mail addresses”].)  Defendant argues the documents include references to financial information pertaining to Defendant, which is protected as private under California law.  (See Ameri-Medical Corp. v. Workers’ Compensation Appeals Board (1996) 42 Cal.App.4th 1260, 1287-1288.)  The information sought to be sealed also includes information that Cross-Defendants have designated as confidential under the Protective Order in this case.  (Decl. of Harford ¶7.)  Defendant argues the proposed sealing is narrowly tailored and no less restrictive means exists to protect the confidential information and Defendant requests the Court redact only those portions of the documents containing the confidential material.  (Decl. of Harford ¶6.)  Defendant argues there will be no hardship to the parties by an order to seal because all parties already have the information that Defendant seeks to seal; and no parties have expressed an objection to the relief sought by this motion.  (Decl. of Harford ¶¶4, 8.)  After reviewing Defendant’s proposed redactions, the Court agrees.

Exhibit I, in its entirety, contains Defendant’s damages analysis, prepared by Dr. Barbara Luna.  Exhibit L, in its entirety, contains excerpts of the deposition transcript of Dr. Barbara Luna regarding Defendant’s damages analysis.  Exhibit W, in its entirety includes Plaintiff’s supplemental responses to Defendant’s interrogatories and includes disclosures regarding Defendant’s financial data.  Exhibit X, in its entirety, contains excerpts from the deposition of Michelle Silverstein as the Person Most Knowledgeable for Esos Rings, Inc., includes disclosures regarding Defendant’s financial data.

Exhibit I to the Declaration of David Harford in Support of McLear’s Oppositions to Cross-Defendants’ Motions in Limine Nos. 1-6 shall be sealed in its entirety. The redacted version proposed by Defendant shall be publicly filed.  (Decl. of Harford, Exh. I.)

Exhibit L to the Declaration of David Harford in Support of McLear’s Oppositions to Cross-Defendants’ Motions in Limine Nos. 1-6 shall be sealed in its entirety. The redacted version proposed by Defendant shall be publicly filed.  (Decl. of Harford, Exh. L.)

Exhibit W to the Declaration of David Harford in Support of McLear’s Oppositions to Cross-Defendants’ Motions in Limine Nos. 1-6 shall be sealed in its entirety. The redacted version proposed by Defendant shall be publicly filed.  (Decl. of Harford, Exh. W.)

Exhibit X to the Declaration of David Harford in Support of McLear’s Oppositions to Cross-Defendants’ Motions in Limine Nos. 1-6 shall be sealed in its entirety. The redacted version proposed by Defendant shall be publicly filed.  (Decl. of Harford, Exh. X.)

Based on the foregoing, Defendant’s unopposed motion to seal portions of the Declaration of Harford in Support of McLear’s Oppositions to Cross-Defendants’ Motions in Limine Nos. 1-6 filed 10/3/22, Exhibits I, L, W, and X is granted.

b.    Defendant’s unopposed motion to seal (1) Portions of the Declaration of Wagner in support of Motion in Limine No. 1 filed 9/21/22, Exhibits 15, 16, 17, and 18; (2) Portions of the Declaration of Wagner in support of Motion in Limine No. 2 filed 9/21/22, Exhibits 3, 4, and 6; (3) Portions of the Declaration of Wagner in support of Motion in Limine No. 3 filed 9/21/22, Exhibits 1, 2, and 3; (4) Portions of the Declaration of Wagner in support of Motion in Limine No. 4 filed 9/21/22, Exhibits 1, and 2; (5) Exhibit 3 to the Declaration of Wagner in Support of Motion in Limine No. 6 filed 9/21/22; (7) Portions of the Reply Declaration in Support of Esos Rings, Inc. and Michelle Silverstein’s Motion in Limine No. 2 filed 10/7/22, Exhibits 9 and 10; and (8) Exhibit 4 to the Declaration of Ben L. Wagner in Support of Esos Rings, Inc. and Michelle Silverstein’s Motion in Limine No. 4 filed 10/7/22

Plaintiff previously lodged with the Court unredacted versions of the abovementioned documents and were withdrawn by Plaintiff’s counsel before he ended his representation of Plaintiff.  Parties are instructed to re-lodge unredacted versions of the abovementioned documents, file a corresponding motion in compliance with C.R.C. Rules 2.550(d) and 2.550(e), and provide consolidated redactions to be publicly filed.

Based on the foregoing, Plaintiff’s motion to seal (1) Portions of the Declaration of Wagner in support of Motion in Limine No. 1 filed 9/21/22, Exhibits 15, 16, 17, and 18; (2) Portions of the Declaration of Wagner in support of Motion in Limine No. 2 filed 9/21/22, Exhibits 3, 4, and 6; (3) Portions of the Declaration of Wagner in support of Motion in Limine No. 3 filed 9/21/22, Exhibits 1, 2, and 3; (4) Portions of the Declaration of Wagner in support of Motion in Limine No. 4 filed 9/21/22, Exhibits 1, and 2; (5) Exhibit 3 to the Declaration of Wagner in Support of Motion in Limine No. 6 filed 9/21/22; (7) Portions of the Reply Declaration in Support of Esos Rings, Inc. and Michelle Silverstein’s Motion in Limine No. 2 filed 10/7/22, Exhibits 9 and 10; and (8) Exhibit 4 to the Declaration of Ben L. Wagner in Support of Esos Rings, Inc. and Michelle Silverstein’s Motion in Limine No. 4 filed 10/7/22 is continued. 

Dated:  March ____, 2023

Hon. Monica Bachner

Judge of the Superior Court