Erikka Skinner vs Ken’s Foods Inc
Case No: 18CV01618
Hearing Date: Fri May 31, 2019 9:30

Nature of Proceedings: Motion to Seal Documents Filed Conditionally Under Seal in Connection with Plaintiff’s Motion for Catalyst Fees and Expenses

TENTATIVE RULING: The court grants, in part, defendant Ken’s Foods, Inc.’s motion to seal documents filed conditionally under seal in connection with plaintiffs’ motion for catalyst fees.

BACKGROUND:

On April 2, 2018, plaintiffs Erikka Skinner and Ann Kenney filed their putative class action complaint against defendant Ken’s Foods, Inc., alleging causes of action for (1) violation of the California Consumers Legal Remedies Act (Civ. Code §1750 et seq.), (2) violation of the California False Advertising Law (Bus. & Prof. Code §17500 et seq.), and (3) violation of the California Unfair Competition Law (Bus & Prof. Code §17200 et seq.) Plaintiffs allege that they purchased a variety of salad dressings manufactured and sold by defendant with labels stating that the dressings were made with olive oil when, in fact, the dressings contained very little olive oil and were made primarily with soybean and canola oil. Plaintiffs contend that the labels used by defendant were intentionally deceptive and misleading and had they known that the salad dressings contained only small amounts of olive oil and were predominantly made of soybean and canola oils they would not have purchased the products.

In early 2018, partly in response to the current litigation, defendant voluntarily removed the words “olive oil” from its salad dressings. Plaintiffs thereafter moved for an award of attorney’s fees (“catalyst fees”) pursuant to Civil Code Section 1780, subdivision (e), and Code of Civil Procedure Section 1021.5 on the ground that their lawsuit had resulted in the enforcement of an important right affecting the public interest. On May 22, 2019, the court denied the motion, without prejudice, finding that it was premature because there has been no final resolution of the case.

As part of its opposition to plaintiffs’ motion for catalyst fees, defendant moved for an order conditionally sealing plaintiffs’ memorandum of points and authorities and the declaration of Shireen M. Clarkson, including the attached exhibits, filed in support of the motion on the grounds that the documents contained confidential, proprietary, and trade secret information. Earlier, the court had entered a protective order allowing the parties to file documents conditionally under seal if the documents were designated “Confidential” by either side in the action. On May 22, 2019, the court granted defendant’s motion in part and denied it in part. Defendant now moves for an order permanently sealing the same materials.

ANALYSIS:

The sealing of court records is governed by California Rules of Court, Rules 2.550 and 2.551. Rule 2.550, subdivision (d), authorizes a court to seal documents in a case if it finds the following:

“(1) There exits 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 2.551, subdivision (b)(1), in turn, provides:

“A party requesting that a record be filed under seal must file a motion or an application for order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.”

In NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, the California Supreme Court recognized that there is a First Amendment right of access to judicial proceedings, both criminal and civil. Thus, before a trial court can close a hearing or seal a record it must find an “overriding interest” that supports the closure or sealing. Id., at 1217-1218. A company’s trade secrets, information protected by the attorney-client privilege, and confidential or private information, when properly asserted and not waived, are examples of an “overriding interest” within the meaning of Rule 2.550, subdivision (d). Id., at 1222, fn. 46.

In the present motion, defendant seeks an order permanently sealing the following documents, which were filed conditionally under seal in connection with plaintiffs’ motion for catalyst fees:

1. Plaintiffs’ motion for catalyst fees and expenses; and

2. Declaration of Shireen M. Clarkson, including all attached exhibits, in support of plaintiffs’ motion for catalyst fees and expenses.

Defendant argues that the above documents “contain confidential, proprietary, and trade secret information belonging to Ken’s,” including “the composition of specific Ken’s products, among other things.” (Eyerly Dec., ¶2.)

The court has reviewed its May 22, 2019 order, conditionally sealing certain documents and information and sees no reason to deviate from that order. The court again finds that the materials defendant seeks to seal are not limited to potentially confidential, proprietary, and trade secret information. For example, in plaintiffs’ memorandum of points and authorities, the following are redacted: Plaintiffs provide their characterization of Judge West’s October 31, 2017 case evaluation (Memorandum 3:26-4:1; 12:6-7), an evaluation that defendant puts in evidence in its entirety. (See Lawrence Green Declaration ¶2, Exhibit 1.) There are statements that olive oil is not the predominant oil in the subject products, something that defendant insists was evident from the order of the listing of ingredients on the back of its products. Plaintiffs say that defendant decided to remove claims in its labels because of litigation risks, something that defendant openly acknowledges in its opposition. (Memorandum 1:18-19; 4:8-5:6; 5:12-19; 5:27-6:5; 6:12-13; 7:6-27; 11:5.)

Similarly, the portions of the Clarkson declaration that defendant wants sealed include much of the same non-confidential information as is disclosed in the memorandum: statements about Judge West’s case evaluation (Clarkson Dec. ¶20); identification of Albert Slingluff (¶¶24, 25); statements that olive oil is not the predominant oil (¶¶26, 27); reasons for changing the labels (¶¶28, 29, 30, 32-39, 60, 61); and dates the labels were modified (¶57).

As for the allegedly confidential exhibits to Clarkson’s declaration: Exhibits 8 and 9 are emails between counsel regarding whether to involve Judge West further. There is no suggestion of confidentiality of these emails. Exhibits 2-4, 14, and 15 appear to be artwork for labels that were publicly used. Exhibit 11 is something called the “Label Update Scope” dated 11/15/17, which appears to discuss public labels. Exhibit 12 is the Slingluff deposition transcript with statements about the reasons for changing the labels, which are openly conceded and discussed by both parties (though the parties offer different characterizations of his testimony). Similarly, Exhibit 13 is the deposition transcript of Thomas Murphy, which has no proprietary information. Exhibit 16 consists of a transcript of a court proceeding with statements that plaintiffs’ and defendant’s counsel made in open court. The statements simply reflect the changes to the labels and the fact that they are permanent, which is not proprietary information. Exhibits 10, 17, and 18 reflect settlement communications. Defendant makes no argument that settlement communications are confidential. An offer to compromise is inadmissible to prove the offering party’s liability for the loss or damage or any part of it. Evid. Code § 1152. But admissibility is not at issue here and the communications do not appear to be offered to prove liability.

The only possibly confidential information appear to be: Memorandum, p. 11, lines 20-21, which discloses percentages of oils in defendant’s products; Exhibits A-D to Exhibit 1 and Exhibit 5, which appear to address the content of defendant’s products. It is only with respect to these limited items that the court finds an overriding interest that overcomes the right of public access to the record; the overriding interest supports sealing the record; a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; sealing only these items is narrowly tailored; and no less restrictive means exist to achieve the overriding interest.

The court will grant the motion to seal in part and makes the foregoing limited order sealing the record (Memorandum, p. 11, lines 20-21; Exhibits A-D of Exhibit 1 and Exhibit 5 to the Clarkson Declaration). In its May 22, 2019 ruling, the court ordered the parties to submit new, redacted versions of the memorandum of points and authorities and declaration of Shireen M. Clarkson in support of plaintiffs’ motion for catalyst fees, consistent with its ruling. On May 24, 2019, plaintiffs filed redacted versions of both documents and therefore nothing further is required.