2016-00199029-CU-PN

Two Brothers Investments, Inc. vs. John Peebles

Nature of Proceeding: Motion for Order Sealing Record

Filed By: Ryan, Ray

Plaintiff’s Motion to Seal portions of the public record in this case is unopposed but is DENIED.

In this action, Plaintiffs allege various causes of action against Defendants for professional negligence, breach of fiduciary duty, and accounting. The causes of action arise from Defendants’ legal representation of Plaintiffs in conjunction with the provision of legal advice in investing in a medical marijuana cultivation operation on native lands of two Northern California tribes.

Plaintiffs now seek to seal certain portions of the Court’s existing public record (i.e., prior complaints, demurrers and oppositions thereto, requests for judicial notice, and motions to stay and documents related thereto). Plaintiffs argue that these records include “extensive discussion of privileged attorney-client communications” as well as “allegations, facts, and discussion of privileged communications” that unidentified third parties “may seek to capitalize on and utilize in an unrelated matter.”

C.R.C., Rules 2.550 and 2.551 limit the circumstances and manner in which court records may be sealed. The court may order that a record be filed under seal only if it expressly finds facts that establish: “(1) There exists an overriding interests 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.” Rule 2.550 also explicitly notes that “[u]nless confidentiality is required by law, court records are presumed to be open.” (Cal. Rule of Court 2.550(c).) Indeed, trial courts cannot close civil proceedings to the public, or seal the records of such proceedings, except upon noticed hearing and findings that an “overriding interest” favors closure and cannot be adequately protected by any means less derogatory of the public’s right of access to court business. (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1181-1182.) 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.”

Here, the Court has found no concrete factual basis to issue a sealing order. The only grounds stated for sealing the proposed document – some of which have been available on the public record for nearly two years – are that the documents contains privileged attorney-client communications and that unidentified third parties might use information in Plaintiffs’ own complaints filed in this Court for unspecified potential actions against Plaintiffs in the future. Clearly, Plaintiffs’ bases for moving to seal portions of this case are based only on ambiguous, “nebulous and conclusory” contentions. (See H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 891.) Such grounds cannot justify sealing of documents under CRC 2.550 and 2.551, which require the Court to make specific findings that include an overriding interest that overcomes a right of public access. It is to be noted the Court has reviewed the generic references to the documents which Plaintiffs seek to seal and notes that there is no concrete evidence of any interest, let alone an overriding one, that would be damaged by these records remaining unsealed and accessible. Nowhere in the moving papers nor counsel’s supporting declaration is there any identification of specific facts or particular communications that were confidential in any legally significant sense. At most, there are conclusory averments that some unspecified statements in these documents are privileged – none of which the Court was able to identify in its review.

In addition, whatever the unidentified, purportedly privileged communications to which Plaintiffs may refer in these documents, the privilege has indeed been waived. First, in order to establish that a particular communication is privileged, the party asserting the privilege must show that the communication was between a an attorney and a “client” seeking legal advice or a legal opinion from the attorney within the context of an attorney-client relationship, that the communication was intended to be confidential, and that the privilege was not later waived. (Evid Code §§ 952, 954.; D.I Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723; (2,022 Ranch LLC. v. Superior Court (2004) 113 Cal.App.4th 1377, 1397, disapproved on other grounds, Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.) The attorney client privilege is subject to Evidence Code section 912, subdivision (a) which states that the privilege “is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone.” Here, there are no privacy grounds upon which a sealing could be based. Where a party places otherwise privileged communications directly at issue, the privilege will be considered waived to permit “fair adjudication” of the action. (Wellpoint Health Networks. Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 128.) In addition, as noted, waiver of the attorney-client privilege

also may occur, and support disclosure, where the party claiming the privilege has previously disclosed or consented to disclosure of a significant part of the communication at issue. (Evid. Code § 912; see Southern Cal. Gas Co. v. Public Utils. Com (1990) 50 Cal.3d 31, 49.) Waiver may also be seen in the context of the sealing request; the records now sought to be sealed were filed by moving party without Plaintiffs seeking a sealing order. As noted, these documents have been part of the public record for years. (See, e.g. Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal. App. 4th 588, 595, 599-600.)

Again, there is a First Amendment right of access to documents in civil litigation that are “filed in court as a basis for adjudication.” (NBC Subsidiary, supra, 20 Cal.4th at p. 1208, fn. 25.)

Here, Plaintiffs are suing for professional legal malpractice, have placed the substance of their communications with counsel directly at issue, in a succession of unverified complaints, and have repeatedly placed statements (which they now contend should be privileged) on the public record in filing various documents. If those alleged communications between Plaintiffs and their former counsel were indeed privileged and sensitive, then Plaintiffs should have sought to file the various documents at issue under seal at the time of filing.

In sum, even assuming Plaintiffs had not effectively waived the attorney-client privilege, Plaintiffs have not established an interest in the confidentiality of the contents of the documents in question sufficient to override the constitutional right of access to and presumption of openness of court proceedings and documents. Plaintiff also have failed to show a substantial and concrete probability of prejudice if the documents are not sealed.

For the foregoing reasons, the Motion to Seal is DENIED.