Judge Upinder S. Kalra, Case BC708104 2023-02-15 Tentative Ruling

Judge: Upinder S. Kalra, Case: BC708104, Date: 2023-02-15 Tentative Ruling

Case Number: BC708104 Hearing Date: February 15, 2023 Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE: February 15, 2023

CASE NAME: Sergey Grishin v. Twelve Productions Ltd.

CASE NO.: BC708104

PLAINTIFFS’ MOTION TO SEAL

MOVING PARTY: Plaintiffs Sergey, et al.

RESPONDING PARTY(S): None as of February 10, 2023

REQUESTED RELIEF:

1. An order sealing Exhibits 3-8 of the Supplemental Declaration of Amman Khan

TENTATIVE RULING:

1. Motion to Seal is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs Sergey Grishin (“Grishin”) and his company SG Acquisitions, LLC (“SGA”) filed a Complaint on May 29, 2018 against Defendants Anna Fedoseeva (“Fedoseeva”) and Jennifer Sulkess (“Sulkess”) and their movie production company, Twelve Production, Ltd. (“TP”), alleging that they defrauded Grishin and his company to loan or invest approximately half a million dollars in Fedoseeva and Sulkess’s movie production company.

Fedoseeva and Sulkess filed a Cross-complaint on January 24, 2019 and the First Amended Cross-Complaint (“FACC”) on February 21, 2019 against Grishin and Roes. The FACC asserts the following causes of action:

1. Cyberstalking in violation of Civil Code § 646.9;

2. Intentional Infliction of Emotional Distress;

3. Invasion of Privacy;

4. Domestic Violence in violation of Civil Code § 1708.6;

5. Assault;

6. Battery;

7. False Imprisonment;

8. Civil Extortion by Letter in violation of Penal Code §§ 518 et seq.

On April 3, 2019, Plaintiff filed a Demurrer to the First Amended Cross-Complaint.

The current Motion to Seal was filed on April 8, 2022. No Opposition has been filed as of February 10, 2023.

LEGAL STANDARD

California law authorizes the sealing of court records containing confidential information. (NBC Subsidiary, Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1222, n. 46.) California Rules of Court Rule 2.551(a) provides that a record may not be filed under seal without a court order and the court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties. (Cal. Rules of Court, rule 2.551(a).) The party requesting a record be filed under seal must file a motion or an application for an order sealing the record that is accompanied by a memorandum or declaration containing facts to justify the sealing. (Id., rule 2.551(b)(1).) “The court may order that a record be filed under seal” if it finds that there is an overriding interest in favor of maintaining the confidentiality of the information. (Id., rule 2.550(d).)

The factual findings requires to seal records require the court to expressly find that (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. (Cal. Rules of Court, rule 2.550(d)(1)-(5).)

The Supreme Court identified in NBC Subsidiary (KNBC-TV) v. Superior Court (1999) 20 Cal.4th 1178 the following examples of overriding interests:

1) protection of minor victims of sex crimes from further trauma and embarrassment;
2) privacy interests of a prospective juror during individual voir dire;
3) protection of witnesses from embarrassment or intimidation so extreme that it would traumatize them or render them unable to testify;
4) protection of trade secrets;
5) protection of information within the attorney-client privilege;
6) enforcement of binding contractual obligations not to disclose;
7) safeguarding national security;
8) ensuring the anonymity of juvenile offenders in juvenile court; and
9) ensuring the fair administration of justice by preserving confidential investigative information.

(NBC Subsidiary (KNBC-TV) v. Superior Court (1999) 20 Cal.4th 1178, 1222 fn. 46.)

ANALYSIS:

Plaintiff moves the court to seal Exhibits 3-8 of the Supplemental Declaration of Amman Khan, which was filed with Plaintiffs’ Reply to the Motion to Compel Further Responses to RFAs, Set Three, as to Jennifer Sulkess.

Plaintiffs argue that the exhibits contain “non-public information that is entitled to confidential treatment under applicable law.” The parties entered a Stipulated Protective on September 20, 2019, where documents that were responsive to the Citibank Subpoena were deemed confidential, as they contained highly sensitive business, personal, and financial information. (Stipulation 9/27/2019.) The sealing of this information is narrowly tailored, and no less restrictive means exist. (Motion 3: 5-10.)

Under subsection (b) of Rule 2.551, a party must file a motion or application, with an accompanying memorandum or declaration with facts that provide why the records should be sealed. Here, the memorandum contains minimal information, only that the information is subject to the protective order the parties entered in September 2019.

Under California Rule of Court, rule 2.550(d), a court may seal records only if five factors are met. These factors are: “(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.” (Rule 2.550(d).) In its order, the court must identify the facts supporting its issuance.” (Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 487).

The Court reviewed the supplemental declaration. Each of the Exhibits are documents which are bates stamped with “CITI” and corresponding numbers. These documents were “obtained from third-party discovery.” (Supp. Dec. ¶ 4-9.) The Court can glean that these documents were obtained from Citibank, which are the subject of the Protective Order. Thus, the Court finds that these documents are the type that can be sealed, as they contain sensitive personal information and the parties agreed that these documents are to remain confidential. Here, as the documents likely contain confidential information there is an overriding interest to keep these documents from the public’s purview. Additionally, it is likely that Plaintiffs will suffer prejudice if these documents are accessible to the public, as they contain financial information. Lastly, the request is narrowly tailored as only certain exhibits of the supplemental declaration are sought to be sealed and there exists no less restrictive means.

Plaintiffs have established that these documents can be sealed.

Conclusion

For the foregoing reasons, the Court decides the pending motion as follows:

Motion to Seal is GRANTED.

Moving party to give notice.

IT IS SO ORDERED.

Dated: February 15, 2023 ___________________________________

Upinder S. Kalra

Judge of the Superior Court

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE: February 15, 2023

CASE NAME: Sergey Grishin v. Twelve Productions Ltd.

CASE NO.: BC708104

PLAINTIFFS’ MOTION TO SEAL

MOVING PARTY: Plaintiffs Sergey, et al.

RESPONDING PARTY(S): None as of February 10, 2023

REQUESTED RELIEF:

1. An order sealing Exhibits 10-15, and 22 of the Declaration of Amman Khan filed in support of the Motion Objecting to Discovery Referee’s Report filed 5/31/22

TENTATIVE RULING:

1. Motion to Seal is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

1. Cyberstalking in violation of Civil Code § 646.9;

2. Intentional Infliction of Emotional Distress;

3. Invasion of Privacy;

4. Domestic Violence in violation of Civil Code § 1708.6;

5. Assault;

6. Battery;

7. False Imprisonment;

8. Civil Extortion by Letter in violation of Penal Code §§ 518 et seq.

On April 3, 2019, Plaintiff filed a Demurrer to the First Amended Cross-Complaint.

The current Motion to Seal was filed on June 10, 2022. No Opposition has been filed as of February 10, 2023.

LEGAL STANDARD

The Supreme Court identified in NBC Subsidiary (KNBC-TV) v. Superior Court (1999) 20 Cal.4th 1178 the following examples of overriding interests:

(NBC Subsidiary (KNBC-TV) v. Superior Court (1999) 20 Cal.4th 1178, 1222 fn. 46.)

ANALYSIS:

Plaintiff moves the court to seal Exhibits 10-15, and 22 of the Declaration of Amman Khan, which was filed in support of Plaintiffs’ Motion Objecting to Discovery Referee’s Report filed on 5/31/22.

Plaintiffs argue that the exhibits contain “non-public information that is entitled to confidential treatment under applicable law.” The parties entered a Stipulated Protective on September 26, 2019, where documents that were responsive to the Citibank Subpoena were deemed confidential, as they contained highly sensitive business, personal, and financial information. (Stipulation 9/26/2019.) The sealing of this information is narrowly tailored, and no less restrictive means exist. (Motion 2: 7-12.)

The Court reviewed the Declaration filed on June 10, 2022. Each of the Exhibits are documents which are bates stamped with “CITI” and corresponding numbers. These documents were “obtained from third-party discovery.” (Dec. Khan ¶ 11-16, 23.) The Court can glean that these documents were obtained from Citibank, which are the subject of the Protective Order. Thus, the Court finds that these documents are the type that can be sealed, as they contain sensitive personal information and the parties agreed that these documents are to remain confidential. Here, as the documents likely contain confidential information there is an overriding interest to keep these documents from the public’s purview. Additionally, it is likely that Plaintiffs will suffer prejudice if these documents are accessible to the public, as they contain financial information. Lastly, the request is narrowly tailored as only certain exhibits of the supplemental declaration are sought to be sealed and there exists no less restrictive means.

Plaintiffs have established that these documents can be sealed.

Conclusion

For the foregoing reasons, the Court decides the pending motion as follows:

Motion to Seal is GRANTED.

Moving party to give notice.

IT IS SO ORDERED.

Dated: February 15, 2023 ___________________________________

Upinder S. Kalra

Judge of the Superior Court Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE: February 15, 2023

CASE NAME: Sergey Grishin v. Twelve Productions Ltd.

CASE NO.: BC708104

PLAINTIFF’S MOTION OBJECTING TO DISCOVERY REFEREE’S REPORT

MOVING PARTY: Plaintiffs Sergey, et al.

RESPONDING PARTY(S): Defendant Jennifer Sulkess

REQUESTED RELIEF:

1. An order sustaining Plaintiffs’ objections to the Discovery Referee’s Report and Recommendation

2. An order modifying the recommendation to make it consistent with law, evidence, and prior orders

TENTATIVE RULING:

1. The Motion Sustaining their Objections to Report and Recommendation Re MTC Sulkess’ Further Responses to RFA (Set Three) filed 5/31/22 is GRANTED, in part as to RFAs 76 and 83, and DENIED, as to the remaining requests

2. The Motion for Modification of Report and Recommendation is DENIED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

1. Cyberstalking in violation of Civil Code § 646.9;

2. Intentional Infliction of Emotional Distress;

3. Invasion of Privacy;

4. Domestic Violence in violation of Civil Code § 1708.6;

5. Assault;

6. Battery;

7. False Imprisonment;

8. Civil Extortion by Letter in violation of Penal Code §§ 518 et seq.

On April 3, 2019, Plaintiff filed a Demurrer to the First Amended Cross-Complaint.

On June 10, 2022, Plaintiffs filed the current Motion Objecting to Report and Recommendations Re: MTC Sulkess’ Further Responses to RFA (Set Three). Defendants’ Opposition was filed on February 2, 2023. Plaintiffs Reply was filed on February 7, 2023.

LEGAL STANDARD

“When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a referee in the following cases pursuant to the provisions of subdivision (b) of Section 640: … When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.” (Code Civ. Proc., § 639, subd. (a)(5).)

A referee must report their decision to the Court within 20 days after the hearing, unless the Court otherwise provides. (Code Civ. Proc., § 643, subd. (a).) Any party may file an objection to the referee’s report or recommendations within 10 days after the referee serves and files the report, or within another time as the court may direct. (Code Civ. Proc., § 643, subd. (c).) Responses to the objections shall be filed with the court and served on the referee and all other parties within 10 days after the objection is served. (Id.) The court shall review any objections to the report and any responses submitted to those objections and shall thereafter enter appropriate orders. (Id.)

A discovery referee’s report is advisory, not determinative, and the trial court must independently consider the referee’s findings before acting upon the referee’s recommendations. (Marathon Nat. Bank v. Sup. Ct. (1993) 19 Cal.App.4th 1256, 1261.) “[T]he referee's recommendations are entitled to great weight.” (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 176.)

ANALYSIS:

Plaintiffs move to have the Discovery Referee’s Report, filed on 5/31/22, modified because it is inconsistent with the Court’s prior determinations.

1. Defendant’s Location Information: RFA Nos. 76-85

Plaintiffs argue that the Referee’s recommendation concerning Defendant’s location was wrong. The Referee’s previous ruling concerning Defendant’s location was based on the restraining order. However, that restraining order expired on April 24, 2022, and thus, has failed to establish why the recommendation still concludes Plaintiffs are not entitled to Defendant’s location. (Motion 8: 7-23.) Additionally, Plaintiffs argue that the recommendation disregarded Plaintiffs’ evidence that this discovery is relevant because: (1) location information is relevant to choice of law and jurisdiction analyses…(2) the information will lead to the discovery of admissible evidence relevant to the merits of Defendants’ claims; and (3) Defendants have previously revealed their locations.” (Opp. 9: 12-17.)

Defendants argue that Sulkess’ location information is irrelevant to the current matter. The claim regarding the jurisdictional issues is baseless as Plaintiffs initiated the lawsuit here, the cross-complaint was filed here and there is “no choice of law relevant to Ms. Sulkess’ claims.” (Opp. 2: 4-6.) Next, Defendants assert four reasons why the issue of Defendant’s location is irrelevant. First, the Court previously issued a restraining order, and the use of discovery questions is an abuse to circumvent that order. Second, Sulkess and Fedoseeva’s privacy rights outweigh the need for location information. Plaintiffs have failed to meet the burden to establish that this information is directly relevant, especially long after the alleged vents too place. Third, the allegations that Sulkess traveled and partied is neither relevant nor true. (Opp. 9: 9-11.) Lastly, there was no waiver when counsel informed the Court where their client lived.

The trial court has the ultimate decision when it comes to referee’s finding. “The referee's factual findings are advisory recommendations only; they are not binding unless the trial court adopts them…Nevertheless, “the referee's recommendations are entitled to great weight.” (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 176). Moreover, the court should focus on the parties’ objections to those findings. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 589).

The Court finds that some of the above information is relevant, as previously indicated. On June 23, 2022, the Court ruled that Nos. 76 and 79 of the RFAs, which sought where Defendant Fedoseeva lived and if she lived with Defendant Sulkess, were potentially relevant as circumstantial evidence that Defendants Fedoseeva and Sulkess had a relationship in 2017 and 2018 and could “lead to impeachment evidence if Defendants deny a relationship.” Thus, information from RFA Nos. 76 and 83, which concern if Ms. Sulkess resides in Vancouver and lives in Fedoseeva, is relevant. (Discovery Report 5, A.) However, the other information is irrelevant.

Request to Modify the Referee’s Report is GRANTED, as to RFAs 76 and 83, and DENIED, as to the remaining requests.

2. Sulkess’ Transfers of Money to Counsel: RFAs 89, 90, 92-94

Plaintiffs argue that discovery concerning money transfers to counsel will show a misuse of funds. Requests Nos. 89, 90, 92, 93, and 94 request Sulkess to admit that she transferred funds to counsel. Plaintiffs argue that these are not overbroad and are specific. Additionally, Plaintiffs argue that the Recommendation from 5/31 erred in stating that Defendant’s privacy issues outweigh Plaintiffs’ need for discovery because Plaintiffs need this information “to be able to trace all funds they loaned to Defendants for the specific purpose of film production.” (Motion 17: 1-3.)

Defendants argue that the issue of “tracing” is not relevant to this matter and is an invasion of Defendant’s privacy. Additionally, “tracing” is not an element of any of the causes of action. Moreover, the fraud claim raised by Plaintiff has been “dunked,” as the “film footage was produced in this litigation subject to a protective order.” (Opp. 3: 4-12.) Additionally, financial privacy extends to bank accounts and dealings with counsel. (Opp. 10: 2-3, citing to Look v. Penovatz (2019) 34 Cal.App.5th 61.)

This court previously denied a request to modify Nos. 89- 92 and 117-122 of the RFAs. The Court finds no difference in these requests, which concern Citibank information. These requests are overbroad as they request information that is subject to Defendants’ right of privacy. Additionally, there is no reason to “trace” these funds, as Defendants’ argue, as no causes of action require such conduct. Moreover, this information does not pertain to Plaintiff’s claims or any other issue.

Request to Modify the Referee’s Report is DENIED, as to RFAs 89, 90, 92-94.

3. Sulkess’ Experience in Entertainment Industry: RFAs 100-103

Plaintiffs argue that the 5/31 Recommendation erred when it concluded that Request Nos. 100-103 were unnecessary. These requests ask Sulkess to admit the amount of wages earned in 2016 and 2017. The Recommendation stated that the experience and employment were not relevant to the film production at issue. Plaintiffs assert that previous experience in film production are relevant because the SAC alleges that Defendants “duped Plaintiffs into loaning money to Twelve Productions to fund the company’s film projects and pay Sulkess’ salary.” (Motion 18: 11-14.) Without the representations made by Sulkess about the experience in the film industry, Plaintiff would not have paid money.

Defendants argue that the allegation of fraud “does not appear in any of the three complaints or in any discovery responses.” (Opp. 14-16.) These allegations are recent and baseless, “because defendants have produced overwhelming evidence that a film was produced and that they didn’t use the funds to support their lifestyles.” (Opp. 10: 17-19, Grivakes ¶ 6.)

The Referee indicated that this information was not relevant as the allegations under the fraud cause of action were that Defendant promised to repay the loan, conealed the fact that it did not intend to repay the loan with an intent to use Plaintiffs’ loans to fianance Defendants’ lifestyles, and Defendants’ reassurances that a move was being made in Mississippi. (Report 5/31/22, pg. 8: 19-24.) Here, as both the Referee and Defendants argue, nowhere in the SAC do Plaintiffs allege any representations made by Defendants about previous experience and how those alleged representations induced Plaintiffs to loan Defendants money. Thus, these requests are irrelevant.

Request to Modify the Referee’s Report is DENIED, as to RFAs 100-103.

Conclusion:

For the foregoing reasons, the Court decides the pending motion as follows:

The Motion Objecting to the Discovery Report is GRANTED, in part as to RFAs 76 and 83, and DENIED, as to the remaining requests.

Moving party is to give notice.

IT IS SO ORDERED.

Dated: February 15, 2023 ________________________________ Upinder S. Kalra

Judge of the Superior Court