Case Number: BC633276 Hearing Date: April 27, 2018 Dept: 7

ORDER RE: PLAINTIFF’S MOTION TO FILE EXHIBITS UNDER SEAL; MOTION GRANTED, IN PART

On September 8, 2016, Plaintiff K.K., a minor, by and through her guardian ad litem, C.K. (“Plaintiff”) filed this action against Defendants Alhambra Unified School District (“District”), Mark Keppel High School (“School”), Joseph Kikuchi (“Kikuchi”), and Jacinth Cisneros (“Cisneros”) for negligent hiring, supervision, and retention and breach of mandatory duty (Gov. Code, § 815.6). Kikuchi was Plaintiff’s basketball coach at School. Plaintiff alleges that starting in fall 2014, Kikuchi committed multiple acts of sexual assault and abuse against Plaintiff.

On November 14, 2017, the Parties stipulated that certain depositions, discovery and records would be deemed confidential and be treated accordingly.

Plaintiff moves to file the following under seal: (1) Defendants’ Motion for summary judgment containing excerpts of the deposition of Plaintiff; (2) Defendants’ Motion for summary judgment containing excerpts of the deposition of Plaintiff’s guardian ad litem, C.K.; (3) Defendants’ Motion for summary judgment containing excerpts of the deposition of Kevin Kuang; and (4) Defendants’ Motion for summary judgment containing Plaintiffs’ responses to Defendants’ Special Interrogatories, Set One. Defendants have lodged with their Motion for summary judgment certain exhibits consisting of the referenced deposition excerpts and interrogatory responses conditionally under seal. (Cal. Rules of Court, Rule 2.551(b)(5).)

Pursuant to the Rules of Court, a 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).)

Plaintiff’s counsel argues the foregoing exhibits to Defendants’ summary judgment motion contain information that is highly confidential and sensitive in nature regarding the molestation and sexual abuse of Plaintiff, who was a minor throughout the abuse. (Declaration of Alexandra T. Steele, ¶ 8.) Counsel states no parties dispute the confidential nature of these documents. (Steele Decl., ¶ 10.) Defendants do not oppose this Motion.

The Court finds that there exists an interest in protecting the privacy rights of K.K., a minor at the time of the abuse, especially where there are allegations of a criminal sexual relationship, which overrides the right of public access to the record. (See People v. Jackson (2005) 128 Cal.App.4th 1009, 1016 (Jackson) [“the privacy of minors . . . [is an] interest that may override the public’s qualified right of access” where there “is a criminal action involving accusations of sexual relationships with a minor”].) This overriding interest supports sealing the requested exhibits. “[I]t is appropriate to seal certain records when those particular records contain highly sensitive and potentially embarrassing personal information about individuals. [Citation.]” (Id. at p. 1024.) There is a substantial probability K.K.’s privacy interest will be prejudiced absent sealing. In the criminal case against Kikuchi, he pled no contest to charges of child abuse and molestation, but the details of the abuse and Plaintiff’s identity were not revealed and Plaintiff seeks to keep this information strictly confidential.

The records to be sealed are narrowly-tailored, as they include only the excerpts of the depositions of Plaintiff, her guardian ad litem, and Kevin Kuang, and Plaintiff’s responses to special interrogatories, which reveal highly sensitive information relating to the abuse and are submitted with Defendants’ motion for summary judgment. The burden of showing there are less restrictive means of achieving the overriding interest lies with the one seeking disclosure. (Jackson, supra, 128 Cal.App.4th at p. 1026; see also NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1224.) No one seeks disclosure here as there is no opposition to this Motion. Finally, the Court finds there would not be a less restrictive means of protecting Plaintiff’s privacy as the subject documents consist of deposition testimony and discovery responses discussing the abuse.

Based on the foregoing facts, the Motion to seal the deposition excerpts and Plaintiff’s responses to Defendants’ Special Interrogatories lodged in support of Defendants’ motion for summary judgment is GRANTED.

However, the Court notes that Plaintiff filed her entire Opposition and accompanying exhibits conditionally under seal, and that she requests to file Defendants’ Motion for summary judgment, which contains the excerpts of deposition transcript and discovery responses, under seal. In addition, Defendant has filed a reply, evidentiary
objections and response Plaintiff’s separate statement also conditionally under
seal. To the extent Plaintiff seeks to seal Defendant’s entire Motion and her Opposition and accompanying exhibits, and Defendant seeks to seal its reply filings, neither
party has sufficiently addressed the above factors justifying the seal. A “reasoned decision about sealing or unsealing records cannot be made without . . . (1) identifying the specific information claimed to be entitled to such treatment; (2) identifying the nature of the harm threatened by disclosure; and (3) identifying and accounting for countervailing considerations. The burden of presenting information sufficient to accomplish the first two steps is logically placed on the party seeking the sealing of the documents, who is presumptively in the best position to know what disclosures will harm and how.” (H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 894.) Plaintiff made no argument as to why the entire summary judgment motion, separate statement, or other exhibits should be filed under seal. Accordingly, all other documents besides the deposition excerpts and Plaintiff’s responses to Special Interrogatories will be unsealed and become a part of the public record. (See Cal. Rules of Court, Rule 2.550(e) (1) (B) (court may order “sealing of only those documents and pages, or if reasonably practicable, portions of those documents and pages that contain the material that needs to be placed under seal. All other portions of each document or page must be included in the public file.”).)

ORDER RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MOTION CONTINUED TO May 7, 2018

On September 8, 2016, Plaintiff K.K., a minor, by and through her guardian ad litem, C.K. (“Plaintiff”) filed this action against Defendants Alhambra Unified School District (“District”), Mark Keppel High School (“School”), Joseph Kikuchi (“Kikuchi”), and Jacinth Cisneros (“Cisneros”) for negligent hiring, supervision, and retention and breach of mandatory duty (Gov. Code, § 815.6). Kikuchi was Plaintiff’s basketball coach at School. Plaintiff alleges that starting in Fall 2014, Kikuchi committed multiple acts of sexual assault and abuse against Plaintiff. District moves for summary judgment.

However, exhibits in the moving, opposition, and reply papers were lodged conditionally under seal pending the Court’s ruling on Plaintiff’s motion to seal. The Court notes a reply brief and supporting documents were timely filed, but the Department has not yet received them. The Notice of lodging under seal shows a response to Plaintiff’s separate statement and objections to Plaintiff’s evidence in support of her opposition were filed with Defendant’s Reply.

Accordingly, the hearing on this Motion is CONTINUED to May 7, 2018, at 1:30 p.m., so that the Court may make a determination of what documents shall be filed under seal, and so that the Court may receive and consider all reply papers.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT7@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.