Case Number: BC530828 Hearing Date: February 22, 2018 Dept: 46

Case Number: BC530828
NORMAN POMERANZ ET AL VS MARTIN MALEK ET AL

Filing Date: 12/17/2013
Case Type: Fraud (no contract)

02/22/2018
MOTION – SEAL COURT RECORDS

TENTATIVE RULING

The motion is unopposed, it is without merit and does not meet the requirements of CRC 2.550 to 2.551. The court lacks jurisdiction to hear this motion. Plaintiff has waived the ability to bring this motion. Plaintiff has no standing to assert Defendant Malek’s privacy rights. Plaintiff’s constitutional concerns are without merit or are unfounded. Motion is DENIED. See discussion.

DISCUSSION

On 12/7/13, Plaintiffs filed their Complaint for (1) Fraud and Deceit; (2) Breach of Fiduciary Duty; (3) Accounting; (4) Breach of Fiduciary Duty; and (5)-(7) Accounting against Defendants Martin Malek (hereinafter “Malek”); Edward M. Arons; Weiss & Arons LLP; Live Lids, Inc.; Go Man, LLC; My Cozy Mall, Inc.; and DOES 1-10. On 1/28/14, Plaintiffs voluntarily dismissed Defendants Malek, Live Lids, Inc., Go Man, LLC, and My Cozy Mall, Inc., without prejudice. On 3/4/14, Plaintiffs voluntarily dismissed the balance of the action, without prejudice.

Four years and three months later, Plaintiff now moves to seal the Complaint and the instant motion on the grounds that the publicity of both documents infringes Plaintiff’s right to religious freedom and Defendant Malek’s right to privacy.

Rules of Court Rule 2.550 states, in pertinent part, as follows:

(a) Application

(1) Rules 2.550-2.551 apply to records sealed or proposed to be sealed by court order…

(c) Court records presumed to be open

Unless confidentiality is required by law, court records are presumed to be open.

(d) Express factual findings required to seal records

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.

(e) Content and scope of the order

(1) An order sealing the record must:

(A) Specifically state the facts that support the findings; and

(B) Direct the 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…

Rule 2.551 states, in relevant part, as follows:

(a) Court approval required

A record must not be filed under seal without a court order. The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.

(b) Motion or application to seal a record

(1) Motion or application required

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

(4) Lodging of record pending determination of motion or application

The party requesting that a record be filed under seal must lodge it with the court under (d) when the motion or application is made, unless good cause exists for not lodging it or the record has previously been lodged under (3)(A)(i). Pending the determination of the motion or application, the lodged record will be conditionally under seal.

(5) Redacted and unredacted versions

If necessary to prevent disclosure, any motion or application, any opposition, and any supporting documents must be filed in a public redacted version and lodged in a complete, unredacted version conditionally under seal. The cover of the redacted version must identify it as ‘Public–Redacts materials from conditionally sealed record.’ The cover of the unredacted version must identify it as ‘May Not Be Examined Without Court Order–Contains material from conditionally sealed record.’…

The Motion is Procedurally Defective

Plaintiff’s motion to seal suffers from three procedural defects. First, it is likely that the court lacks jurisdiction to hear this motion. Second, P has waived the ability to bring this motion. Third, P has no standing to assert Defendant Malek’s privacy rights. Each issue is discussed in turn below.

Jurisdiction

Ordinarily, voluntary dismissals deprive the court of both subject matter and personal jurisdiction, rendering void any further orders in the case, except as to costs and fees. Bank of America, N.A. v. Mitchell (2012) 204 C.A.4th 1199, 1209; Paniagua v. Orange County Fire Auth. (2007) 149 C.A.4th 83, 89. Retention of jurisdiction regarding costs and fees is essential to effectuate the statutory right to recover those items, which are themselves merely incidental to the dismissal. See Brown v. Desert Christian Center (2011) 193 C.A.4th 733, 737-742. The sealing of records is also ancillary and incidental to a dismissal or judgment. But while there is a statutory right to recover costs, there is no statutory right to seal records; rather, the presumption is that records will remain open. CRC Rule 2.250(c). Plaintiff has produced no authority which suggests that the court retains jurisdiction to seal records after a case has been dismissed, and independent research reveals no authority addressing this issue. But the sealing of records is not analogous to the adjudication of costs and fees. Therefore, in the absence of appellate guidance, the general rule should be applied, and the court is without jurisdiction to decide this motion.

Waiver

Even if the court had jurisdiction to hear this motion, Plaintiff has waived his right to make it. CRC Rules 2.550 and 2.551 clearly contemplate, though they do not expressly prescribe, that the documents to be sealed and the motions to seal them be filed at the same time. They certainly do not contemplate hearing motions to seal after any kind of significant delay. “[A]ny reading of rules 2.550 and 2.551 that encourages an open-ended time frame for filing a motion to seal records long after the underlying substantive matter has been decided would defeat the purpose of the rules. Without the accountability of reasonable time frames for bringing such motions in conjunction with adjudicatory as opposed to discovery proceedings, the presumptive openness of court records would be subject to the whim of the parties, without regard to the public.” Savaglio v. Wal-Mart Stores, Inc. (2007) 149 C.A.4th 588, 601. The Complaint was filed on 12/7/13, and the case was voluntarily dismissed, quite rapidly, on 3/4/14. This motion was filed on 12/18/17, over four years from the filing of the Complaint and almost four years from the closing of the case.

This timing falls within the proscription against an “open-ended” timeframe within which to file a motion to seal.

Plaintiff has waived any right to this motion by his delay.

Privacy

One of Plaintiff’s asserted grounds for this motion is Defendant Malek’s right to privacy. But Plaintiff lacks standing to assert Defendant’s rights. See Iglesia Evangelica Latina, Inc. v. Southern Pacific Latin American Dist. of Assemblies of God (2009) 173 C.A.4th 420 444-446. Plaintiff has submitted a declaration from Defendant Malek attesting that Defendant Malek supports Plaintiff’s motion. (Declaration of Martin Malek ¶ 10). However, this does not appear to be a formal joinder to the motion, and cannot be construed as such. Malek has never appeared in this action and it is unclear whether he is represented by counsel or not. A declaration expressing Defendant Malek’s wishes cannot be given legal effect by this court without Malek’s formal appearance and properly filed joinder in the motion. Therefore, Malek’s privacy rights cannot be considered as a basis for filing this motion.

Constitutional Concerns

Plaintiff bases his motion on two constitutional rights: his own right to religious freedom, and Defendant Malek’s right to privacy. As previously stated, Plaintiff cannot assert Defendant Malek’s right to privacy. Even if Plaintiff could assert Defendant Malek’s privacy rights, the balancing test required for the adjudication of privacy rights would not necessarily support sealing the entire record but his right to religious freedom does present a concern. However, that concern is insufficient to support sealing the Complaint.

Quoting the maxim of Plato that justice means minding your own business, Plaintiff argues that the existence of this Complaint in the public record interferes with out-of-court mediation of disputes within the Jewish faith community. As Plaintiff is no doubt aware, Plato was discussing the societal chaos that would ensue if cobblers tried to be carpenters and soldiers tried to be magistrates (Republic Book IV, sec. 434), which is wholly distinguishable and inapplicable to the situation at hand. Perhaps more directly to the point is Aristotle’s comment that justice consists of treating equals equally. (Nicomachaean Ethics Book V, chapter 6). For this reason, the public has an interest in observing and assessing the performance of its judicial system in all civil cases. McNair v. National Collegiate Athletic Association (2015) 234 C.A.4th 25, 31 (citing NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 C.4th 1178, 1210-11 & fn.28). This public right of access is a federal First Amendment right, and therefore cannot be abrogated unless there is an overriding interest in support of sealing the records, and a substantial probability that the interest will be prejudiced if the record is not sealed. McNair, supra, 234 C.A.4th at 31.

The need to act in accordance with another constitutional mandate may constitute an overriding interest. NBC Subsidiary, supra, 20 C.4th 1222 & fn.46; see also DiLoreto v. Board of Education (1999) 74 C.A.4th 267, 279; Locke v. Davey (2004) 540 U.S. 712, 730 fn.2 (Scalia, J., dissenting). The federal and California Constitutions both guarantee the right to free exercise of religion. The California Constitution contains two relevant clauses which govern the state’s interaction with religion. Article I, section 4 of the California Constitution is coextensive with the provisions of the federal First Amendment. See East Bay Asian Local Development Corp. v. State of California (2000) 24 C.4th 693, 718-720; Paulson v. Abdelnour (2006) 145 C.A.4th 400, 433-434. Article XVI, section 5 of the California Constitution (“No Aid Clause”) bars “any official involvement, whatever its form, which has the direct, immediate, and substantial effect of promoting religious purposes.” East Bay, supra, 24 C.4th at 721 (quoting California Educational Facilities Authority v. Priest (1974) 12 Cal.3d 593, 605, fn.12).

Plaintiff declares that the Jewish faith commands that disputes between members of that faith community be resolved within the community, sometimes with the help of the rabbi(s). Plaintiff has introduced evidence to show that he went through this process, apparently after disregarding the command by filing the lawsuit in the first place. The result of the dispute resolution was that the lawsuit was settled before it ever got off the ground. (Declaration of Norman Pomeranz ¶¶ 3-4). Plaintiff argues that the existence of this complaint in the public record has obviated the benefits of this religious mediation, creating tension both within the community at large, and between his family and Defendant Malek’s family. Plaintiff claims that this infringes on his right to free exercise of religion.

There is no burden on Plaintiff’s free exercise rights here. An infringement of free exercise rights occurs when some affirmative restriction is imposed or some ordinarily available government benefit is denied, and a plaintiff sues to lift the penalty or receive the benefit. See e.g. Holt v. Hobbs (2015) 135 S.Ct. 853. Here, no restriction was imposed on Plaintiff. He was not prevented from engaging in religious mediation, or from dismissing his case. Nor is the sealing of court records an ordinarily available government benefit of which he has been deprived, in fact (as already discussed) the exact opposite is true.

Moreover, Plaintiff’s request to this court, if granted, could potentially violate the No Aid Clause. Plaintiff is asking the court to take the affirmative step of sealing the record so that he can enjoy the full benefits of religious mediation. In other words, Plaintiff is requesting that this court undertake a discretionary act for the sole purpose of effectuating a religious practice. This the court cannot do. See East Bay, supra, 24 C.4th at 721.

For these reasons, Plaintiff’s constitutional concerns are unfounded. There is no Free Exercise violation present here. Thus, there is no overriding interest which is sufficient to abrogate the public’s First Amendment right to access.

Conclusion

When Plaintiff filed this lawsuit, taking advantage of the public judicial system, his business became the public’s business. Plaintiff’s remorse three years down the road, however sincere and understandable, is simply insufficient to justify curtailing the public’s right to know.

Therefore, the motion is DENIED.

IT IS SO ORDERED:

Frederick C. Shaller, Judge