Sharon Green, et al. v. Mary Long Berry, et al.
Case No: 17CV02282
Hearing Date: Mon Jun 17, 2019 9:30

Nature of Proceedings: Motion to Sequester Sealed Records

Sharon E. Green v. Mary Long Berry (Judge Sterne)

Case No. 17CV02282

Hearing Date: June 17, 2019

HEARING: Motion of Plaintiff to Sequester and Review Medical Records Filed in Criminal Cases under Seal

ATTORNEYS:

For Plaintiff Sharon E. Green: John K. Dorwin

For Defendant Mary Long Berry: Robert A. Morgenstern, Paul A. Elkort, Neil D. Joseph, Maranga Morgenstern

TENTATIVE RULING:

The motion of plaintiff Sharon E. Green to sequester and review records filed under seal in criminal cases is denied.

Background:

This is the lead case consolidated with Franciscan Oaks Condominium Association, Inc., etc. v. Berry, case number 17CV01524.

On May 24, 2017, plaintiff Sharon Green filed her complaint in this action against defendant Mary Long Berry. The complaint alleges causes of action for negligence and for intentional tort involving Berry harassing Green and setting fire to material on Berry’s property intending the fire to spread to Green’s property. (Complaint, ¶¶ GN-1, IT-1.)

After initially defaulting and successfully moving to set aside the default, Berry filed her answer to the complaint on December 14, 2018, generally denying the allegations of the complaint and asserting seven affirmative defenses.

On May 23, 2019, Green filed and served by mail this motion to “to properly sequester and perform [an] in camera review of the mental health treatment data from the criminal cases so as to inform the Court and expedite discovery to include appropriate protective orders and control measures.” (Motion, pp. 2-3.) The motion asserts that Berry’s mental condition at the time of the incident underlying this action is disputed and that there are court records regarding court-ordered medical treatment filed under seal in pending criminal cases, case numbers 1495584, 17CR02643, 17CR00937, and 1497476.

The motion is opposed by Berry, who argues that Berry’s mental condition is not at issue in this action and that there is no authority for this court to issue the order requested. Berry also argues that the motion was not timely served.

In reply, Green argues that Berry’s mental condition is at issue as to causation and damages.

Analysis:

Berry first points out that the motion was untimely served. Hearing for this motion is June 17, 2019. When served by mail, motions must be filed and served 16 court days before the hearing extended by five calendar days. (Code Civ. Proc., § 1005, subd. (b).) The date 16 court days before June 17 (including the Memorial Day court holiday) was May 23. Extending that day by five calendar days makes the latest day for service by mail on May 17. This motion was filed and served, by mail, on May 23. The motion is untimely. Based upon a substantive opposition, the court will address the motion on its merits notwithstanding the untimeliness of service. Counsel is reminded of his obligation to file and serve all matters timely.

“In a motion proceeding, the moving party usually has the burden of proving every fact essential to the relief requested.” (Corns v. Miller (1986) 181 Cal.App.3d 195, 200; accord, Evid. Code, § 500.) Green, the moving party, has failed to meet her burden as to this motion. First, and most obviously, Green makes this factually-intensive motion without providing any evidence and without requesting judicial notice of any fact or matter. Green simply asserts various facts regarding Berry in other cases. There is similarly no evidence that an order from this court is necessary to preserve records of the court in other actions. In the absence of any evidence or judicially noticed facts, there is no factual basis upon which to grant the relief sought by Green. The motion will be denied on that basis.

Second, Green has provided no authority by which the court could grant the relief sought. The process by which information is acquired in a civil case is governed generally by the Civil Discovery Act. (Code Civ. Proc., § 2016.010 et al.) The instant motion is not made under the Civil Discovery Act and apparently is an effort to avoid sealing orders, or documents filed under seal by operation of law, in documents filed in other cases. Absent citation of authority supported by appropriate evidence, this court does not make orders affecting the records in other cases. The usual remedy is to seek orders from the court assigned to the case in which the records have been filed. Green cites no legal basis upon which the court can or should vary from this usual practice.

Third, Green asserts that Berry’s mental condition is at issue. Even a plaintiff who puts her relevant medical condition at issue by instituting a claim for physical or mental injury (see Britt v. Superior Court (1978) 20 Cal.3d 844, 863) does not place mental condition at issue as part of a claim merely by the filing of a personal injury action seeking damages for pain and suffering (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1016). A defendant does not make any claim but merely defends against the claim of the plaintiff. Defending against an intentional tort does not put Berry’s mental condition at issue unless the Berry affirmatively places her mental condition at issue, such as in defense of a claim of punitive damages. (See Civ. Code, § 41; Bashi v. Wodarz (1996) 45 Cal.App.4th 1314, 1323 [“[M]ental disability is not a defense. Liability is therefore predicated on an objective reasonable person standard.”].) No such affirmative defense has been asserted in Berry’s answer. Given the present state of the pleadings, Berry’s mental condition in the nature of the claims asserted in the motion (but unsupported by any evidence) is not at issue.

Accordingly, the motion of Green to sequester and review confidential records filed in criminal cases will be denied.