2011-00107207-CU-PO

James McMillin vs. Paradise Oaks Youth Services

Nature of Proceeding:    Application for Order Sealing Record

Filed By:   Ford, Jaclyn M.

Defendant Paradise Oaks Youth Services’ Motion to Seal Confidential Settlement
Agreement is unopposed but is DENIED.

On July 20, 2011, plaintiff filed his complaint for sexual assault and battery; false
imprisonment; intentional infliction of emotional distress; negligent supervision;
negligence; negligent infliction of emotional distress against defendants Paradise Oaks
Youth Services and Michael Hart.

The action was litigated, and set for trial on Sept. 17, 2013 and an MSC on August 7,
2013.

The parties stipulated to a continuance of the MSC to Aug. 27, 2013, to permit a
mediation to be conducted.  On August 13, 2013, the Court was notified that the action
had settled. On Oct. 15, 2013, the plaintiff filed a motion to enforce the Settlement Agreement to be
heard on Nov. 12, 2013. The plaintiff attached a copy of the written Settlement
Agreement to be enforced. Although the Settlement Agreement contains a
confidentiality clause, it includes a specific exception for enforcement of the
agreement.

The motion to enforce the Settlement Agreement was dropped from the Court’s
calendar when the plaintiff filed a Notice of Dismissal of the entire action on Oct. 28,
20013.

Defendant now seeks an order retroactively sealing the Notice of Motion and Motion to
Enforce Settlement, the Memorandum of Points and Authorities in Support, the
Declaration of John D. Beals, the request for monetary sanctions and all exhibits
attached to the motion to enforce the Settlement Agreement.

A court order is required pursuant to CRC rule 2.550, et seq. before the clerk may file
any document under seal. Pursuant to California Rule of Court Rule 2.550(c), court
records are presumed to be open unless confidentiality is required by law.

The Court cannot seal any court records unless it makes the following express factual
findings: 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. The public’s right to attend trials and
review court records arises from the First Amendment’s Constitutional guarantee of the
public’s access to the courts, which extends to the evidence and testimony a court
considers in discharging its Constitutional obligation to uphold and apply the law. NBC
Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal. 4th 1178, 1209. Because
First Amendment Constitutional guarantees are at stake, trial courts must tread
carefully, and may close courtrooms and seal court records only in limited
circumstances.

Although a contractual agreement to maintain confidentiality might in some cases
constitute an overriding interest that overcomes the right of public access to court
records, the motion here does not sufficiently address the nature of that overriding
interest and the potential prejudice if the record is not sealed. Even if defendant had
established that there is a potential overriding interest, the party seeking closure or
sealing must prove prejudice to that interest is substantially probable. ( NBC
Subsidiary (KNBC-TV), Inc. v. Superior Court, supra, at p. 1222.)

Defendant Paradise Oaks Youth Services contends that good cause exists to seal the
records because the parties have agreed to seal the records to keep the settlement
terms confidential; the allegations of the complaint are damaging; the defendant’s
funding comes from public sources, and persons unfamiliar with settlement will
construe settlement as an admission of liability, rather than as a strategy to avoid the
risks of publicity at trial and the uncertain effect on defendant’s business and
professional reputation.

Defendant has failed to show that the requested sealing is narrowly tailored to protect
an overriding interest and that there are no less restrictive means to achieve the
overriding interest, such as redacting certain specific portions of the agreement.
The NBC case provides examples of various interests that courts have acknowledged
may constitute “overriding interests.” (Id., at p. 1222, fn. 46). As noted in the Advisory
Committee Comment to CRC 2.550, courts have determined that, in the proper
circumstances, various statutory privileges, trade secrets, and privacy interests (when
properly asserted and not waived) may constitute “overriding interests.” The ultimate
determination is on a case by case basis, and “overriding interests” is not otherwise
defined in the court rules. The suggestion that either or both parties might be
discomfited by disclosure is not an overriding interest sufficient to overcome the
public’s right of access. “Privacy rights and contractual obligations” of signatories to a
settlement agreement is a conclusion [Declaration of Schindler] but without a rationale
for sealing based on an overriding interest. The parties cannot merely say “it is private
because we agreed that it is private.” Even where, as here, Plaintiff fails to oppose the
motion, that is insufficient to merit sealing.  Public access to civil proceedings serves to
(i) demonstrate that justice is meted out fairly, thereby promoting public confidence in
such governmental proceedings; (ii) provide a means by which citizens scrutinize and
check the use and possible abuse of judicial power; and (iii) enhance the truthfinding
function of the proceeding. NBC, supra, at p. 1219, fn. 41.

On a motion to seal records, the documents are routinely filed “conditionally under
seal” initially.  Here, they were not.  The Court records at issue were filed in
unredacted versions on Oct. 15, 2013, and have been publicly available since that
date in the Courts records.  Moving party now seeks to “unring the bell” by sealing
documents in question, which were never filed “conditionally under seal,”  but have
been publicly available for 77 days.

The Court declines the invitation to retroactively seal the records.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.