Judge: Theresa M. Traber, Case: 23STCV09998, Date: 2024-07-05 Tentative Ruling

Case Number: 23STCV09998    Hearing Date: July 5, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     July 5, 2024                TRIAL DATE: NOT SET

CASE:                         Evelyn Larrubia v. Minnesota Public Radio d/b/a American Public Media Group; et al.

CASE NO.:                 23STCV09998           

MOTION TO SEAL RECORD OR PROCEED UNDER PSEUDONYM

MOVING PARTY:               Plaintiff Evelyn Larrubia

RESPONDING PARTY(S): No response on eCourt as of 7/1/24. Joint stipulation for relief sought included with motion as Exhibit A.

CASE HISTORY:

·         05/03/23: Complaint filed.

·         04/29/24: Notice of Settlement of Entire Case filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an employment discrimination action. Plaintiff alleges that she reported employment and hiring practices claimed to be discriminatory and was harassed and terminated in retaliation.

Plaintiff moves to seal the record, or, in the alternative, to replace her name with a pseudonym.

TENTATIVE RULING:

            Plaintiff’s Motion to Seal is DENIED.

            Plaintiff’s alternative Motion to Proceed Under Pseudonym is GRANTED conditioned on Plaintiff herself filing a declaration setting forth the matters that are uniquely within her personal knowledge, as outlined herein. Plaintiff’s supplemental declaration shall be filed and served on or before Friday July 19, 2024.

            The Court sets a Non-Appearance Case Review for Wednesday, July 24, 2024, at 8:30 AM, at which time the Court will review the supplemental filings and determine whether the conditions of the Court’s ruling have been satisfied.

DISCUSSION:

Plaintiff moves to seal the record, or, in the alternative, to replace her name with a pseudonym.

Sealing the Record

The sealing of court records is governed by California Rules of Court rules 2.550 and 2.551. (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 68.) The presumption of open access to court records does not apply to “records that are required to be kept confidential by law.” (Cal. Rules of Court, rule 2.550(a)(3).) A party seeking to seal a court record or seeking to file a record under seal must do so by motion or application supported by a declaration showing facts justifying the record’s sealing.  (Id., rule 2.551(b)(1).) California Rules of Court rule 2.550(d) states: “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.”  

(Id. Rule 2.550(d).)

            Once sealed, a record can only be unsealed by order of court.  (Id., rule 2.551(h)(1).)  So long as it remains under seal, all parties must refrain from filing anything not under seal that would disclose the sealed matter.  (Id., rule 2.551(c).)  If a party files a new document referring to sealed matter, it must submit an unredacted version of the document under seal and a redacted one for the public record.  (Id., rule 2.551(b)(5); H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 889.) 

            Plaintiff contends that she has an overriding interest that overcomes the right of public access to the record and supports sealing the record because she believes that, as a journalist in the entertainment industry, her involvement in this lawsuit will jeopardize her chances for future employment. However, these contentions are made not by Plaintiff in a formal declaration, but by her counsel, who does not have personal knowledge of these facts, his assertion to the contrary notwithstanding. (See Declaration of Joshua Webster ISO Mot. ¶¶5-6.). Moreover, even if the Court were to accept that declaration as evidence, the proposed sealing of the entire record of this case is by definition not narrowly tailored. Further still, the proposed alternative offered by Plaintiff of proceeding under a pseudonym plainly demonstrates that a less-restrictive means exists to achieve the interest asserted by Plaintiff. On this record, the facts do not establish that an order sealing the record is the appropriate remedy.

Proceeding Under Pseudonym

            Plaintiff requests, in the alternative, to proceed with what remains of the matter under a pseudonym.

In 2022, the Court of Appeal held that the overriding interest test, described in NBC Subsidiary (KNBC-TV) Inc. v. Superior Court (1999) 20 Cal.4th 1178 with respect to sealing the record and codified in the Rules of Court discussed above, is equally applicable to a request for anonymity. (Department of Fair Employment and Housing v. Superior Court of Santa Clara County (2022) 82 Cal.App.5th 105, 111.)

Here, there has been a failure of proof because Plaintiff has not presented admissible evidence from an individual with personal knowledge of the risk to Plaintiff arising from the case proceeding under her own name. Had such evidence been provided, the Court would be inclined to find that the risk of Plaintiff suffering irreparable damage to her career prospects and reputation overcomes the right of public access to the records bearing Plaintiff’s true name. The Court also finds that the proposed relief is narrowly tailored: while proceeding under a pseudonym would require refiling of all documents bearing Plaintiff’s name to replace that name with a pseudonym and sealing of the original documents (see Motion pp. 8:19-10:2), the practical effect of that relief would maintain the right of public access to the substance of the records. Finally, the Court finds that there is no less restrictive means of achieving the overriding interest, as the only other remedy would be to seal the records outright, as discussed above.

In acknowledgement of the stipulation by the parties to sealing of the record or proceeding under a pseudonym and the defects in the motion arising from a failure of proof, the Court will grant the alternative motion to proceed under a pseudonym conditioned on a supplemental declaration from Plaintiff setting forth the matters that are uniquely within her personal knowledge.

CONCLUSION:

            Accordingly, Plaintiff’s Motion to Seal is DENIED.

            Plaintiff’s alternative Motion to Proceed Under Pseudonym is GRANTED conditioned on Plaintiff herself filing a declaration setting forth the matters that are uniquely within her personal knowledge, as outlined herein. Plaintiff’s supplemental declaration shall be filed and served on or before Friday July 19, 2024.

            The Court sets a Non-Appearance Case Review for Wednesday, July 24, 2024, at 8:30 AM, at which time the Court will review the supplemental filings and determine whether the conditions of the Court’s ruling have been satisfied.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  July 5, 2024                            ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.