Judge Richard S. Whitney, Case 37-2022-00030920-CU-CR-CTL 2023-11-03 Tentative Ruling

Judge: Richard S. Whitney, Case: 37-2022-00030920-CU-CR-CTL, Date: 2023-11-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 02, 2023

11/03/2023 10:30:00 AM C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited Civil Rights Motion Hearing (Civil) 37-2022-00030920-CU-CR-CTL DOE 1 VS CORECIVIC INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANTS' CONTINUED MOTION TO VACATE SEAL ORDER, UNSEAL SEALED RECORDS, AND TO REQUIRE PLAINTIFFS TO PROCEED UNDER THEIR TRUE NAMES AND IDENTITIES is continued to November 22, 2023, at 10:30 am when it will likely be GRANTED, in part, and DENIED, in part as discussed below.

Defendants CoreCivic, Inc., G. Perez, and B. Handsbur ('Defendants') seek to vacate a sealing order from the Court, which Plaintiffs oppose. The issue as to Defendants learning the identifies of Plaintiffs is now moot as Plaintiffs have disclosed their identities to Defendants. Defendants assert the Court did not make the requisite factual finding in making the sealing order.

The California Supreme Court addressed the sealing process in NBC Subsidiary (KNBC–TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178.

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. (NBC Subsidiary (KNBC–TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1208–1209, fn. 25, 1212, 86 Cal.Rptr.2d 778, 980 P.2d 337.) Substantive courtroom proceedings in ordinary civil cases, and the transcripts and records pertaining to these proceedings, are ' 'presumptively open.' ' (Id. at p. 1217, 86 Cal.Rptr.2d 778, 980 P.2d 337.) Therefore, before a trial court orders a record sealed, it must hold a hearing and make findings that (1) there is an overriding interest supporting sealing of the records; (2) there is a substantial probability that absent sealing, such interest will be prejudiced; (3) the sealing order is narrowly tailored to serve the overriding interest; and (4) a less restrictive means of meeting that interest is not available. (Id. at pp. 1217–1218, 86 Cal.Rptr.2d 778, 980 P.2d 337.) These standards are now embodied in our Rules of Court. (Rule 2.550(d); formerly rule 243.1(d), adopted eff. Jan. 1, 2001, and amended eff. Jan. 1, 2004.) (Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 596–97.) However, the California Supreme Court's ruling as to the presumptive openness of civil litigation in NBC Subsidiary has not been interpreted to include all civil litigation filings 'regardless of their relevance to the issues in the case, the circumstances of their filing, or the extent of their use in the proceedings.' (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 96.) The California Supreme Court noted that 'decisions have held that the First Amendment does not compel public access to discovery materials that are neither used at trial nor submitted as a basis for adjudication.' (NBC Subsidiary, supra, 20 Cal.4th at 1209, fn. 25.) 'Public access to a discovery document that is not considered or relied on by the court in adjudicating any substantive controversy does nothing to (1) establish the fairness of the Calendar No.: Event ID: TENTATIVE RULINGS

3031931 60 CASE NUMBER: CASE TITLE: DOE 1 VS CORECIVIC INC [IMAGED] 37-2022-00030920-CU-CR-CTL proceedings, (2) increase public confidence in the judicial process, (3) provide useful scrutiny of the performance of judicial functions, or (4) improve the quality of the truthfinding process.' (Mercury, supra, 158 Cal.App.4th at 96–97.) 'The pleadings, including complaints, are not typically evidentiary matters that are submitted to a jury in adjudicating a controversy.' (Id. at 103.) 'Unless confidentiality is required by law, court records are presumed to be open.' (CA ST TR COURT Rule 2.550(c).) 'A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record.' (CA ST TR COURT Rule 2.551(b).) California Rules of Court Rule 2.550 states: (d) Express factual findings required to seal records 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.

(CA ST TR COURT Rule 2.550.) While Plaintiffs assert that the Court was not required to make a factual finding because California Rules of Court Rule 2.550 and 2.551 do not apply, Plaintiffs filed a motion as if it were required. Further, unlike 'discovery motions and records filed or lodged in connection with discovery motions or proceedings,' pleadings are not identified as exceptions to the requirements pertaining to sealing. (CA ST TR COURT Rule 2.550(a)(3).) The pleadings at this stage are not necessarily evidence that will be used at trial but could be if they become judicial admissions. '[A] judicial admission is ordinarily a factual allegation by one party that is admitted by the opposing party.' (Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4th 446, 452.) Further, the pleadings can and do more than 'nothing to (1) establish the fairness of the proceedings, (2) increase public confidence in the judicial process, (3) provide useful scrutiny of the performance of judicial functions, or (4) improve the quality of the truthfinding process.' (Mercury, supra, 158 Cal.App.4th at 96–97.) Unlike in Mercury, this case does not involve 'whether the rules' presumption of public access applies to discovery documents produced and designated confidential pursuant to a protective order, where the records are later attached to a court-filed pleading that is not used at trial or to adjudicate a material controversy.' (Id. at 68.) Further, this case does not involve a situation where the parties filed an unsealed copy of the complaint with the attached, purportedly confidential discovery documents. (Id. at 74.) The redacted portions of the complaint have not been publicly filed and they do not concern 'discovery documents produced and designated confidential pursuant to a protective order, where the records are later attached to a court-filed pleading that is not used at trial or to adjudicate a material controversy.' The Court finds factual findings as required under California Rules of Court Rule 2.550 apply in this case.

Alternatively, Plaintiffs argue the Court could amend the order to include factual findings. Defendants originally did not specifically take issue with this request but asserted that they were not provided with 'the Memorandum of Points and Authorities, Declaration of Plaintiffs' counsel Colleen Cowgill, and Attachments A–G to the Ex Parte Application.' The Court continued the hearing to allow Plaintiffs time to serve Defendants with these papers. Defendants now assert the declaration and Attachments A–G are insufficient to support an overriding interest.

After considering the declaration of Colleen Cowgill and Attachments A–G, the Court finds that two of the Plaintiffs have sufficiently demonstrated that Plaintiffs' privacy interests override the interest of the public to the information Plaintiffs seek to seal. However, Defendants have provided evidence that Jane Doe 3 already voluntarily made her private information public. Jane Doe 3 no longer has the same privacy interest. Further, Plaintiffs have not provided any further information as to negative consequences befalling Jane Doe 3 as a result of her information being made public. While the exact likelihood of harm Calendar No.: Event ID: TENTATIVE RULINGS

3031931 60 CASE NUMBER: CASE TITLE: DOE 1 VS CORECIVIC INC [IMAGED] 37-2022-00030920-CU-CR-CTL to Plaintiffs if their private information is revealed may not be known, the Court finds that the risks to Plaintiffs Jane Doe 1 and 2 are high enough to justify sealing the requested records, especially given that Plaintiffs Jane Doe 1 and 2 have a privacy interest regardless of the risks of harm from any government or private action. Therefore, the Court elects to modify the prior sealing order to incorporate this finding, including supporting information from the declaration of Colleen Cowgill and Attachments A–G.

Defendants also assert the requested sealing is not narrowly tailored. The Court disagrees. The declaration of Colleen Cowgill and Attachments A–G support that the issues raised in the redacted portions directly related to the privacy interests of Plaintiffs Jane Doe 1 and 2. While certain portions in isolation do not necessarily raise privacy interests that could justify sealing, the Court finds that the combined information does. Allowing some of the portions to be revealed could defeat the purpose of sealing the other portions. The sealed portions are limited to information that would lead to the private information of Plaintiffs Jane Doe 1 and 2 being revealed, which would not only put them at risk of harm from others but could also cause emotional distress regardless of whether there was no harm from any government or private action. The portions requested to be sealed are narrowly tailored and no less restrictive means to protect Plaintiffs Jane Doe 1 and 2's overriding interest exists. The prior sealing order is hereby modified to include the above findings. The motion is granted as to Jane Doe 3.

As to proceeding under pseudonyms, the Court agrees Plaintiffs improperly sought to file the complaint without a hearing as to permission to use pseudonyms.

Before a party to a civil action can be permitted to use a pseudonym, the trial court must conduct a hearing and apply the overriding interest test: A party's request for anonymity should be granted only if the court finds that an overriding interest will likely be prejudiced without use of a pseudonym, and that it is not feasible to protect the interest with less impact on the constitutional right of access. In deciding the issue the court must bear in mind the critical importance of the public's right to access judicial proceedings. Outside of cases where anonymity is expressly permitted by statute, litigating by pseudonym should occur 'only in the rarest of circumstances.' (KNBC, supra, 20 Cal.4th 1178, 1226, 86 Cal.Rptr.2d 778, 980 P.2d 337.) (Department of Fair Employment and Housing v. Superior Court of Santa Clara County (2022) 82 Cal.App.5th 105, 111–112.) Given the analysis above, the Court permits Plaintiffs Jane Doe 1 and 2 to proceed using pseudonyms. The analysis is not as simple as to Jane Doe 3. While the Court agrees Jane Doe 3's disclosures to the public sufficiently negate her purportedly overriding interest in privacy, the Court believes that she may still proceed using a pseudonym. 'Doe designations may be appropriate even where sealing orders are not.' (Starbucks Corp. v. Superior Court (2008) 168 Cal.App.4th 1436, 1452, fn. 7.) As Plaintiffs point out, the publicly available information is not as detailed as the allegations in this action, and they do not connect Jane Doe 3 to this specific lawsuit. Jane Doe 3 may have 'let the cat out of the bag' in some sense, but not as to this lawsuit and the specifics in this case. Considering the arguments and evidence submitted by Plaintiffs, the Court finds this is a case that warrants allowing Plaintiffs to proceed using pseudonyms. (See Doe v. Lincoln Unified School Dist. (2010) 188 Cal.App.4th 758, 767.) The Court recognizes that requiring Jane Doe 3 to publicly file all the allegations pertaining to her could potentially reveal information as to Plaintiffs Jane Doe 1 and 2 based on how the allegations are worded.

To avoid this quandary, the Court grants Plaintiffs leave to file an amended pleading that alters the allegations so as to avoid such a consequence. To ensure the sealing order is properly modified to reflect the sealing of the operative complaint, the Court continues this hearing to November 22, 2023, at 10:30 am. The Court will not accept any further briefing on the issues unless Plaintiffs improperly attempt to expand the types of information to be redacted – the leave to amend is strictly limited to changing the allegations so as to avoid potentially violating the privacy of Jane Doe 1 and 2. Allegations as to Jane Doe 3 may not be redacted, but she is permitted to use a pseudonym. Again, no further briefing is necessary unless Defendants in good faith assert the types of information Plaintiffs seek to Calendar No.: Event ID: TENTATIVE RULINGS

3031931 60 CASE NUMBER: CASE TITLE: DOE 1 VS CORECIVIC INC [IMAGED] 37-2022-00030920-CU-CR-CTL seal in the amended pleading expands the type of information Plaintiffs sought to seal in the original complaint. Plaintiffs are instructed to only amend the pleadings so as to avoid potentially violating the privacy of Jane Doe 1 and 2 given that allegations as to Jane Doe 3 may not be redacted. The hearing is continued to November 22, 2023, at 10:30 am.

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