Judge: Monica Bachner, Case: BC652020, Date: 2023-04-21 Tentative Ruling

Case Number: BC652020    Hearing Date: April 21, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant McLear & Co.’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; (6) 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 (7) 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 granted.

The Court on its own motion seals the corresponding exhibits attached to the Declaration of Harford in Support of Defendant’s Motion to Seal Records, erroneously efiled with unredacted exhibits.  Defendant is to secure the unredacted Declaration of Harford in Support of Defendant’s Motion to Seal Records that is lodged with the Court.

Defendant McLear & Co. (“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 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 (7) 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 (collectively, “Subject Breifing”).  (Notice of Motion, pgs. 1-2; CRC, Rules 2.550-2.551.)  Defendant moves on the basis that the information in the Subject Briefing that Defendant seeks to seal is information and documents that constitutes Defendant’s confidential business information that has been designated in the instant case as either “Attorneys Eyes Only” or “Confidential” under the existing protective order and also includes information produced by a third party—Visa—that was designated as confidential.  (Notice of Motion, pg. 2.)

Background

Cross-Defendant Esos Rings, Inc. (“Esos”) and Michelle Silverstein (“Silverstein”) (collectively, “Cross-Defendants”) originally 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 a motion consolidating parties’ request to seal documents.  On March 29, 2023, this Court granted Defendant’s consolidated motion as to 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 and continued the instant motion as to the remaining portions of 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

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.)  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 ¶¶5-6.)

 Defendant argues the Subject Briefing also includes information produced by a third party, Visa, that was designated as confidential, and therefore the relief that Defendant seeks is necessary to protect information and material that the parties are entitled to keep confidential.  (See, e.g., Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 269 [“And to maintain the secrecy of the test content, the materials could be filed under seal, similar to the procedure employed when filing trade secret or other confidential material.”].)  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 lodged documents and the proposed redactions, the Court agrees based on the findings below:

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

Exhibit 15, in its entirety, contains excerpts of the deposition transcript of Dr. Barbara Luna regarding Defendant’s damages analysis.  Exhibit 16, in its entirety, contains Defendant’s expert damages report.  Exhibit 17, in its entirety, contains Defendant’s PR and Marketing ROI Model.  Exhibit 18, in its entirety, contains emails produced by non-party Visa and is marked as highly confidential and for attorneys’ eyes only.

2.     Portions of the Declaration of Wagner in support of Motion in Limine No. 2 filed 9/21/22, Exhibits 3, 4, and 6

Exhibit 3, in its entirety, contains excerpts of the deposition transcript of Dr. Barbara Luna regarding Defendant’s damages analysis.  Exhibit 4, in its entirety, contains Defendant’s expert damages report.  Exhibit 6, in its entirety, contains Defendant’s PR and Marketing ROI Model.

3.     Portions of the Declaration of Wagner in support of Motion in Limine No. 3 filed 9/21/22, Exhibits 1, 2, and 3

Exhibit 1 in its entirety, contains excerpts of the deposition transcript of Dr. Barbara Luna regarding Defendant’s damages analysis.  Exhibit 2, in its entirety, contains Defendant’s expert damages report.  Exhibit 3, in its entirety, contains Defendant’s PR and Marketing ROI Model.

4.     Portions of the Declaration of Wagner in support of Motion in Limine No. 4 filed 9/21/22, Exhibits 1, and 2

Exhibit 1 in its entirety, contains excerpts of the deposition transcript of Dr. Barbara Luna regarding Defendant’s damages analysis.  Exhibit 2, in its entirety, contains Defendant’s expert damages report.

5.     Exhibit 3 to the Declaration of Wagner in Support of Motion in Limine No. 6 filed 9/21/22

Exhibit 3, in its entirety, contains excerpts of the deposition transcript of Dr. Barbara Luna regarding Defendant’s damages analysis.

6.     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

Exhibit 9, in its entirety, contains excerpts of the deposition transcript of Dr. Barbara Luna regarding Defendant’s damages analysis.  Exhibit 10, in its entirety, contains Defendant’s expert damages report.

7.     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

Exhibit 4, in its entirety, contains Defendant’s expert damages report.

Defendant sufficiently demonstrated that the information contained in the abovementioned exhibits amounts to confidential information such that there exists an overriding interest that overcomes the right of the public access to the records.  Defendant sufficiently demonstrated the overriding interest supports sealing the record.  Defendant sufficiently demonstrated a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed. Defendants’ proposed redactions are the least restrictive way of protecting the interests of third-parties to this litigation. Accordingly, the Court orders the following:

Exhibit 15 to Declaration of Wagner in support of Motion in Limine No. 1 filed 9/21/22 shall be sealed in its entirety. The redacted version proposed by Defendant shall be publicly filed.  (Decl. of Harford, Exh. A at Exh. 15.)

Exhibit 16 to Declaration of Wagner in support of Motion in Limine No. 1 filed 9/21/22 shall be sealed in its entirety. The redacted version proposed by Defendant shall be publicly filed.  (Decl. of Harford, Exh. A at Exh. 16.)

Exhibit 17 to Declaration of Wagner in support of Motion in Limine No. 1 filed 9/21/22 shall be sealed in its entirety. The redacted version proposed by Defendant shall be publicly filed.  (Decl. of Harford, Exh. A at Exh. 17.)

Exhibit 18 to Declaration of Wagner in support of Motion in Limine No. 1 filed 9/21/22 shall be sealed in its entirety. The redacted version proposed by Defendant shall be publicly filed.  (Decl. of Harford, Exh. A at Exh. 18.)

Exhibit 3 to the Declaration of Wagner in support of Motion in Limine No. 2 filed 9/21/22 shall be sealed in its entirety. The redacted version proposed by Defendant shall be publicly filed.  (Decl. of Harford, Exh. B at Exh. 3.)

Exhibit 4 to the Declaration of Wagner in support of Motion in Limine No. 2 filed 9/21/22 shall be sealed in its entirety. The redacted version proposed by Defendant shall be publicly filed.  (Decl. of Harford, Exh. B at Exh. 4.)

Exhibit 6 to the Declaration of Wagner in support of Motion in Limine No. 2 filed 9/21/22 shall be sealed in its entirety. The redacted version proposed by Defendant shall be publicly filed.  (Decl. of Harford, Exh. B at Exh. 6.)

Exhibit 1 to the Declaration of Wagner in support of Motion in Limine No. 3 filed 9/21/22 shall be sealed in its entirety. The redacted version proposed by Defendant shall be publicly filed.  (Decl. of Harford, Exh. C at Exh. 1.)

Exhibit 2 to the Declaration of Wagner in support of Motion in Limine No. 3 filed 9/21/22 shall be sealed in its entirety. The redacted version proposed by Defendant shall be publicly filed.  (Decl. of Harford, Exh. C at Exh. 2.)

Exhibit 3 to the Declaration of Wagner in support of Motion in Limine No. 3 filed 9/21/22 shall be sealed in its entirety. The redacted version proposed by Defendant shall be publicly filed.  (Decl. of Harford, Exh. C at Exh. 3.)

Exhibit 1 to the Declaration of Wagner in support of Motion in Limine No. 4 filed 9/21/22 shall be sealed in its entirety. The redacted version proposed by Defendant shall be publicly filed.  (Decl. of Harford, Exh. D at Exh. 1.)

Exhibit 2 to the Declaration of Wagner in support of Motion in Limine No. 4 filed 9/21/22 shall be sealed in its entirety. The redacted version proposed by Defendant shall be publicly filed.  (Decl. of Harford, Exh. D at Exh. 2.)

Exhibit 3 to the Declaration of Wagner in support of Motion in Limine No. 6 filed 9/21/22 shall be sealed in its entirety. The redacted version proposed by Defendant shall be publicly filed.  (Decl. of Harford, Exh. E at Exh. 3.)

Exhibit 9 to the Declaration of Wagner in support of Motion in Limine No. 2 filed 10/7/22 shall be sealed in its entirety. The redacted version proposed by Defendant shall be publicly filed.  (Decl. of Harford, Exh. F at Exh. 9.)

Exhibit 10 to the Declaration of Wagner in support of Motion in Limine No. 2 filed 10/7/22 shall be sealed in its entirety. The redacted version proposed by Defendant shall be publicly filed.  (Decl. of Harford, Exh. F at Exh. 10.)

Exhibit 4 to the Declaration of Wagner in support of Motion in Limine No. 4 filed 10/7/22 shall be sealed in its entirety. The redacted version proposed by Defendant shall be publicly filed.  (Decl. of Harford, Exh. G at Exh. 4.)

Based on the foregoing, 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 granted. 

The Court on its own motion seals the corresponding exhibits filed in the Declaration of Harford in Support of Defendant’s Motion to Seal Records, erroneously efiled with unredacted exhibits.  Defendant is to secure the Declaration of Harford in Support of Defendant’s Motion to Seal Records lodged conditionally under seal.

Dated:  April ____, 2023

Hon. Daniel M. Crowley

Judge of the Superior Court