Case Number: 19STCV31358 Hearing Date: December 17, 2019 Dept: 26

Superior Court of California
County of Los Angeles
Department 26

JANE DOE, et al.,

Plaintiffs,

v.

LYNEER STAFFING SOLUTIONS, LLC, et al.,

Defendants.

Case No.: 19STCV31358

Hearing Date: December 17, 2019

[TENTATIVE] order RE:

PLAINTIFFS’ MOTION FOR A PROTECTIVE ORDER AND TO STRIKE DEFENDANT’S OPPOSITION TO EX PARTE APPLICATION FOR REVEALING CONFIDENTIAL AND PROTECTED INFORMATION

BACKGROUND

On September 4, 2019, Plaintiffs, using the pseudonyms Jane Doe and Jenny Roe, filed a complaint against Defendants Lyneer Staffing Solutions, LLC, Employers HR, LLC, Capacity West LLC, Juan Ilario, Jonathan Silva, Yvonne Canseco, and Does 1 to 100, alleging the following fourteen causes of action: (1) sexual assault and battery; (2) sexual harassment in violation of the FEHA; (3) discrimination in violation of the FEHA; (4) retaliation in violation of the FEHA; (5) failure to prevent discrimination, harassment, and retaliation in violation of FEHA; (6) intentional infliction of emotional distress; (7) negligent hiring, supervision, and retention; (8) breach of express oral contract not to terminate employment without cause; (9) breach of implied-in-fact contract not to terminate employment without good cause; (10) violation of Labor Code section 1102.5; (11) wrongful termination of employment in violation of public policy; (12) wrongful constructive termination of employment in violation of public policy; (13) failure to provide reasonable accommodation in violation of FEHA; and (14) failure to engage in the interactive process in violation of FEHA.

Plaintiffs Jane Doe (“Doe”) and Jenny Roe (“Roe”), both employees of Defendants Lyneer Staffing Solutions, LLC (“Lyneer”), Employers HR, LLC (“Employers HR”), and Capacity West LLC (“Capacity West”), allege that they were subjected to continuous acts of sexual harassment, sexual assault, and sexual battery at the workplace by their supervisor, Juan Ilario (“Ilario”). Plaintiffs allege that they made complaints about Ilario’s sexual harassment and battery to their supervisors Jonathan Silva (“Silva”) and Yvonne Canseco (“Canseco”), but that Defendants failed to take appropriate action necessary to stop the unlawful conduct from taking place. Plaintiffs further allege that Defendants, without any real explanation, effectively terminated Plaintiffs shortly after they both complained of suffering injuries at work. Plaintiffs allege that Defendants retaliated against them for complaining about the acts of sexual harassment by Ilario.

On December 2, 2019, Plaintiffs filed an ex parte application requesting that the court enforce the terms of a written stipulation. In the ex parte application, Plaintiffs asserted that all Defendants, except for Defendant HR Employers, had previously agreed not to make any reference to Plaintiffs’ real names or other identifying information within any papers filed with the court, without first making redactions or filing said documents under seal. The court denied the application without prejudice based on Plaintiffs’ failure to make any showing of irreparable harm, immediate danger, or any other statutory basis for granting relief on an ex parte basis. Plaintiffs had reserved on the Court Reservation System hearings for their Motion to Strike and for Sanctions (April 29, 2020) and for the Motion for Protective Order (August 12, 2020). The court advanced the hearing dates for both motions to December 17, 2019, provided that Plaintiff electronically file and serve her moving papers for both motions by close of business day. Defendants were to electronically file and serve their oppositions by 12:00 p.m. on December 9, 2019, and Plaintiffs were to electronically file and serve their replies by 4:30 p.m. on December 10, 2019.

Plaintiff filed the motion on December 3, 2019. Defendants Capacity West and Lyneer filed separate oppositions on December 9, 2019. On December 9, 2019, Defendant Ilario filed a notice of joinder in Defendant Capacity West’s opposition. Plaintiff filed a reply on December 10, 2019.

The court has considered the moving, opposition, and reply papers.

LEGAL STANDARD

Plaintiffs are seeking to designate as confidential Plaintiffs’ real names, birthdates, legal names of family members, social security numbers, driver’s license numbers, telephone numbers or home addresses. Plaintiffs also seek to have all documents with such information redacted or, alternatively, filed under seal.

Plaintiffs first move for a protective order pursuant to California Code of Civil Procedure Sections 2031.060, 2025.420, subdivision (b), and 2030.090, subdivision (b). However, as argued by Defendant Lyneer in its opposition, those code sections do not apply here. Code of Civil Procedure Section 2031.060, subdivision (a), states, “[w]hen an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order.” Code of Civil Procedure Section 2025.420, subdivision (a), authorizes any party, deponent or affected natural person or organization to move for a protective order “[b]efore, during, or after a deposition.” Finally, Code of Civil Procedure Section 2030.090, subdivision (a), authorizes a party or natural person or organization to move for a protective order “[w]hen interrogatories have been propounded.” The court then, for good cause shown, may make any order that justice requires to protect a party or other natural person from unwarranted annoyance, embarrassment, or oppression or undue burden or expense.” (See Code Civ. Proc. §§ 2025.420, subd. (b); 2030.090, subd. (b); 2031.060, subd. (b). Plaintiffs do not challenge any discovery propounded or deposition noticed by Defendants as posing unwarranted annoyance, embarrassment, or oppression or undue burden or expense. Therefore, a protective order is improper here where Plaintiffs are seeking to maintain the confidentiality of Plaintiffs’ identifying information in court filed documents.

Alternatively, Plaintiffs seek to redact or seal any documents filed with the court that reveals the identifying information of Plaintiffs. Unless confidentiality is required by law, court records are presumed to be open to public review. (Cal. Rules of Court 2.550(c); see also Cal. Const., art. I, § 3(b)(1) (“The people have the right to access to information concerning the conduct of the people’s business”).) “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.” (Cal. Rules of Court, rule 2.550(d); see also NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1217-18.)

Once sealed, a record can only be unsealed by order of court. (Cal. Rules of Court, 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.)

DISCUSSION

Plaintiffs’ Doe and Roe Filing

Use of fictious names run afoul of the public’s common law right of access to judicial procedure. (See Nixon v. Warner Communications, Inc. (1978) 435 U.S. 589, 598-99.) Nevertheless, the United States Supreme Court has implicitly endorsed the use of pseudonyms to protect a plaintiff’s privacy. (See, e.g., Roe v. Wade (1973) 410 U.S. 113 (abortion); Doe v. Bolton (1973) 410 U.S. 179 (abortion); Poe v. Ullman (1961) 367 U.S. 497 (birth control).) The Ninth Circuit Court of Appeals has also held that a party may preserve his or her anonymity in judicial proceedings in “special circumstances when the party’s need for anonymity outweighs prejudice to the opposing party and the public’s interest in knowing the party’s identity.” (Does I thru XXIII v. Advanced Textile Corp. (9th Cir. 2000) 214 F.3d 1058, 1068.) Similarly, California courts have allowed parties to use fictious names in initiating and defending against lawsuits in certain circumstances. (See, e.g., Doe v. Saenz (2006) 140 Cal.App.4th 960 (three convicted felons were permitted to pursue legal actions under fictious names challenging decision by Department of Social Services to classify their offenses as non-exemptible); Doe v. Bakersfield City School District (2006) 136 Cal.App.4th 556 (former student who alleged sexual abuse by former guidance counsel was permitted to pursue action under a fictitious name); Doe v. City of Los Angeles (2007) 42 Cal.4th 531 (former Boy Scouts sued under pseudonyms based on allegations that city police officer sexually assaulted them while they were teenagers).)

Here, Plaintiffs argue that if their true identities are revealed, they will suffer harassment, injury, ridicule, and personal embarrassment. In opposition, Defendant Lyneer argues that Plaintiffs will not suffer such harm if their true identities are revealed because (1) Plaintiffs no longer work for Capacity West or Lyneer by their own choosing, (2) that Plaintiffs have filed workers’ compensation claim alleging the same facts as alleged in the complaint in their true names, and (3) that defendants are entitled to obtain documents from Plaintiffs’ current employers, medical providers, and past employers because they may be relevant to Lyneer’s defenses.

Plaintiffs Doe and Roe both allege to having been victims of sexual harassment, sexual battery, and having been raped by Defendant Ilario in the workplace. (See Compl., ¶¶ 14a-h, 24a-h.) Given the nature of the allegations, the court finds that anonymity is necessary in this case to preserve the Plaintiffs’ privacy in this sensitive and highly personal matter, and that such need for anonymity outweighs the general presumption that the Plaintiffs’ identities are public information. (See Does I thru XXIII v. Advanced Textile Corp. 214 F.3d at 1068, citing James v. Jacobson (4th Cir. 1993) 6 F.3d 233, 238, Doe v. United Services Life Ins. Co. (S.D.N.Y. 1988) 123 F.R.D. 437, and Doe v. Deschamps (D. Mont. 1974) 64 F.R.D. 652, 653.)

Motion to Seal

Here, Plaintiffs essentially seek to seal documents containing Plaintiffs’ real names, birthdates, legal names of family members, social security numbers, driver’s license numbers, telephone numbers or home addresses. Plaintiffs argue that revealing their identifying information to the public, they will suffer harassment, injury, ridicule, and personal embarrassment. As discussed above, Plaintiffs Doe and Roe both allege that they are victims of sexual harassment, sexual battery, and rape by Defendant Ilario in the workplace. (See Compl., ¶¶ 14a-h, 24a-h.) Given the sensitive and highly personal nature of the allegations, the court finds that there exists an overriding interest in the anonymity of Plaintiffs’ identities over the public’s interest in knowing the true identities of the Plaintiffs, and that the overriding interest supports sealing records containing Plaintiffs’ identifying information. A substantial probability exists that the Plaintiffs’ overriding interest in maintaining anonymity will be prejudiced if the records are not sealed.

A sealing order must be narrowly tailored – i.e., the order should direct sealing of only those documents and pages that contain the material that needs to be placed under seal; all other portions of each document or page must remain in the public file. (Cal. Rules of Court, rule 2.550(e)(1); Glassdoor, Inc. v. Superior Court (2017) 9 Cal.App.5th 623, 638.) The court finds the proposed sealing is narrowly tailored to the extent Plaintiffs seek redactions directed only at their identifying information (i.e., Plaintiffs’ real names, birthdates, legal names of family members, social security numbers, driver’s license numbers, telephone numbers or home addresses), and there are no less restrictive means to preclude the disclosure of Plaintiffs’ identifying information so as to preserve Plaintiffs’ privacy.

Defendants argue in opposition that Plaintiffs have negated any need for an order maintaining the confidentiality of their true identities because Plaintiffs’ true identities were made public through workers’ compensation claims in which Plaintiffs utilized their legal names. To the extent that Defendants appear to argue that Plaintiffs have waived all rights of privacy in their identifying information by filing a workers’ compensation claim in their legal names, the court finds Defendants’ argument unpersuasive. Courts have emphasized that while filing a lawsuit may be deemed a waiver of privacy as to matters embraced by the action, the scope of the waiver must be narrowly rather than expansively construed. (See Britt v. Superior Court (1978) 20 Cal.3d 844, 859; see also Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.) Defendants fail to cite any legal authority for the proposition that Plaintiffs, who are alleged victims of sexual battery and rape at the hands of Defendants, have fully waived their right to maintain confidentiality in their identifying information in this lawsuit by the filing of workers’ compensation claims for physical injuries allegedly sustained during work.
Defendants also argue that discovery would be hindered by granting Plaintiffs’ motion. Specifically, Defendants argue that they will need to use Plaintiffs legal names and identities to obtain documents from Plaintiffs’ current employers, medical providers, and past employers to obtain relevant information to Defendants’ defenses. However, the sealing of records does not preclude Defendants from obtaining the evidence they need. Rather, the sealing of records prevent Defendants from disclosing such information to the general public.

Motion to Strike

Plaintiffs’ motion to strike Defendants’ opposition to Plaintiffs’ Ex Parte Application is improper. Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer (i.e., words, phrases, prayer for damages, etc.). (See Code Civ. Proc. §§ 435-437.) Complaints, cross-complaints, answers, and demurrers are subject to a motion to strike. (Code Civ. Proc. § 435, subd. (a)(2).) A motion to strike lies only where the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc. § 436.) The grounds for moving to strike must appear on the face of the pleadings or by way of judicial notice. (Code Civ. Proc. § 437.)

Here, Plaintiffs seek an order striking Defendants’ opposition to its Ex Parte Application, which was filed on December 2, 2019, on the ground that Defendant revealed the true identities of Plaintiffs in the opposition papers to Plaintiffs’ Ex Parte Application. Defendants’ opposition papers to Plaintiffs’ Ex Parte Application do not, however, constitute pleadings. A motion to strike Defendant’s opposition papers is thus inappropriate. The Motion to Strike is DENIED.

Nevertheless, the court notes that the Declaration of Vivian Elias, Esq., which was filed concurrently with Defendant Lyneer’s opposition to the Ex Parte Application reveals Plaintiffs’ identifying information in the attached exhibits. In light of the court’s ruling on Plaintiffs’ motion to seal, the court orders the (unredacted) Declaration of Vivian Elias, Esq., and all exhibits attached thereto, filed on December 2, 2019 to be filed under seal to protect Plaintiffs’ identifying information. Within ten days of notice of the instant order, Defendant Employers HR, LLC is ordered to publicly file a redacted version of the Declaration of Vivian Elias, Esq., and all exhibits attached thereto, previously filed on December 2, 2019; Defendant Employers HR, LLC must redact only Plaintiffs’ real names, birthdates, legal names of family members, social security numbers, driver’s license numbers, telephone numbers or home addresses in the publicly filed version of the Declaration of Vivian Elias, Esq., and all exhibits attached thereto.

CONCLUSIONS AND ORDER

Plaintiffs Jane Doe and Jenny Roe’s Motion for a Protective Order and to Strike Defendant’s Opposition to Ex Parte Application for Revealing Confidential And Protected Information is GRANTED in the alternative. The parties are ordered to seek leave of court to file under seal any documents containing Plaintiffs’ real names, birthdates, legal names of family members, social security numbers, driver’s license numbers, telephone numbers or home addresses. For each new document that a party seeks to file under seal, that party must concurrently lodge an unredacted version of the document conditionally under seal and file a redacted version for the public record, as well as an accompanying proposed sealing order; the only information to be redacted in the publicly filed version would be Plaintiffs’ real names, birthdates, legal names of family members, social security numbers, driver’s license numbers, telephone numbers or home addresses. (Cal. Rules of Court, rule 2.551(b)(5).)

In light of the court’s ruling, the Court orders that the Declaration of Vivian Elias, Esq., which was filed concurrently with Defendant Lyneer’s opposition to Plaintiffs’ Ex Parte Application on December 2, 2019, along with all exhibits attached thereto, is to be filed under seal to protect Plaintiffs’ identifying information. Within ten days of notice of the instant order, Defendant Employers HR, LLC is ordered to publicly file a redacted version of the Declaration of Vivian Elias, Esq., and all exhibits attached thereto, previously filed on December 2, 2019; Defendant Employers HR, LLC must redact only Plaintiffs’ real names, birthdates, legal names of family members, social security numbers, driver’s license numbers, telephone numbers or home addresses in the publicly filed version of the Declaration of Vivian Elias, Esq., and all exhibits attached thereto.

Plaintiffs’ Motion to Strike is DENIED.

Plaintiffs shall provide notice of this order and file proof of service of such.

DATED: December 17, 2019 ___________________________

Elaine Lu

Judge of the Superior Court