Case Number: BC700918 Hearing Date: November 21, 2018 Dept: J

Re: John RD Doe, etc. et al. v. Haynes Family of Programs, Inc., etc., et al. (BC700918)

MOTION TO FILE EXHIBITS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION UNDER SEAL

Moving Party: Defendant/Cross-Defendant Haynes Family of Programs, Inc.

Respondents: Plaintiffs John RD Doe and Jane GA Doe

POS: OK (continued from 10/31/18)

The minor plaintiff alleges he was subjected to sexual abuse by defendant Veronica Ramirez (“Ramirez”) in her capacity as a teacher’s aide at Haynes Family of Programs, Inc. (“Haynes”) in the fall semester of 2017. The complaint, filed 4/5/18, asserts causes of action against Defendants Haynes, Ontario-Montclair School District (“District”), Ramirez and Does 1-100 for:

Negligence

Negligent Supervision

Negligent Hiring and/or Retention

Negligent Failure to Warn, Train or Educate

Negligence Per Se (2 Counts)

Constructive Fraud

Intentional Infliction of Emotional Distress

Negligent Infliction of Emotional Distress

Sexual Harassment

Sexual Harassment and Abuse in Educational Setting

Breach of Fiduciary Duty

Public Entity Liability for Failure to Perform Mandatory Duty

On 6/5/18, District filed its cross-complaint, asserting causes of action against Haynes, Ramirez and Roes 1-50 for:

Total Equitable Indemnity

Partial Equitable Indemnity

Declaratory Relief

Contribution

Express Contractual Indemnity

Implied Contractual Indemnity

Breach of Contract

Breach of Contract—Third Party Beneficiary

On 7/31/18, this matter was transferred from Department 7 (personal injury hub) to this department. A Status Hearing is set for 11/9/18.

On 10/15/18, the court sustained District’s demurrer to the fourth, fifth (as to Count II), sixth, seventh, eighth, ninth, tenth, eleventh and twelfth causes of action in plaintiffs’ complaint, without leave to amend, but without prejudice to plaintiffs seeking leave to amend in the event discovery reveals additional facts to support the causes of action.

The Final Status Conference is set for 3/4/19. A jury trial is set for 3/12/19.

Defendant/Cross-Defendant Haynes Family of Programs, Inc. (“Haynes”) moves the court, per California Rules of Court (“CRC”) Rule 2.551, for an order filing the exhibits lodged in support of its Motion for Summary Judgment/Adjudication, filed concurrently herewith, under seal. Haynes now clarifies, in its supplemental memorandum filed 11/1/18, that the exhibits it requests to be filed under seal are Haynes Letter Confirming Conditional Employment for Defendant Veronica Ramirez (“Ramirez”), Ramirez’s Department of Justice (“DOJ”) Applicant Fingerprint Response, Ramirez’s Criminal Record Statement, Ramirez’s Cal Poly University transcript, email exchange between Tiffany Burg and Amy Deloera, California Megan’s Law website printout, and a telephone reference check.

“Rules 2.550-2.551 apply to records sealed or proposed to be sealed by court order…” California Rules of Court (“CRC”) Rule 2.550(a)(1). “Unless confidentiality is required by law, court records are presumed to be open.” CRC Rule 2.550(c). “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.” CRC Rule 2.550(d). “(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.” CRC Rule 2.550(e)(1).

“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.” CRC Rule 2.551(a). “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.” CRC Rule 2.551(b)(1). “A copy of the motion or application must be served on all parties that have appeared in the case. Unless the court orders otherwise, any party that already has access to the records to be placed under seal must be served with a complete, unredacted version of all papers as well as a redacted version. Other parties must be served with only the public redacted version. If a party’s attorney but not the party has access to the record, only the party’s attorney may be served with the complete, unredacted version.” CRC Rule 2.551(b)(2).

“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.” CRC Rule 2.551(b)(4). “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.’” CRC Rule 2.551(b)(5). “If the court denies the motion or application to seal, the clerk must return the lodged record to the submitting party and must not place it in the case file unless that party notifies the clerk in writing that the record is to be filed. Unless otherwise ordered by the court, the submitting party must notify the clerk within 10 days after the order denying the motion or application. the moving party may notify the court that the lodged record is to be filed unsealed. This notification must be received within 10 days of the order denying the motion or application to seal, unless otherwise ordered by the court. On receipt of this notification, the clerk must unseal and file the record. If the moving party does not notify the court within 10 days of the order, the clerk must (1) return the lodged record to the moving party if it is in paper form or (2) permanently delete the lodged record if it is in electronic form.” CRC Rule 2.551(b)(6).

“A record that may be filed under seal must be transmitted to the court in a secure manner that preserves the confidentiality of the records to be lodged. If the record is transmitted in paper form, it must be put in an envelope or other appropriate container, sealed in the envelope or container, and lodged with the court.” CRC Rule 2.551(d)(1). “The materials to be lodged under seal must be clearly identified as ‘CONDITIONALLY UNDER SEAL.’ If the materials are transmitted in paper form, the envelope or container lodged with the court must be labeled ‘CONDITIONALLY UNDER SEAL.’” CRC Rule 2.551(d)(2). “The party submitting the lodged record must affix to the electronic transmission, the envelope, or the container a cover sheet that: “(A) Contains all the information required on a caption page under rule 2.111; and (B) States that the enclosed record is subject to a motion or an application to file the record under seal.” CRC Rule 2.551(d)(3). “On receipt of a record lodged under this rule, the clerk must endorse the affixed cover sheet with the date of its receipt and must retain but not file the record unless the court orders it filed.” CRC Rule 2.551(d)(4).

Haynes has attached as Exhibits “A”-“G” to its supplemental memorandum redacted copies of the exhibits it requests to be filed under seal. Haynes represents that these records have not been disclosed to the other parties in this matter in response to written discovery. Haynes further represents that, pursuant to CRC Rule 2.551(b)(2), it has served the parties with the public redacted version of these records with the supplemental memorandum.

“A reasoned decision about sealing or unsealing records cannot be made without identifying and weighing the competing interests and concerns. Such a process is impossible 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 upon the party seeking the sealing of the documents, who is presumptively in the best position to know what disclosures will harm him and how. This means at a minimum that the party seeking to seal documents, or maintain them under seal, must come forward with a specific enumeration of the facts sought to be withheld and specific reasons for withholding them.” H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 894. Haynes has not carried its burden. The Lal Declaration does not contain facts sufficient to justify the sealing.

Haynes represents that Exhibits “A”-“G” each contain Ramirez’s personal private information such as social security number, personal residential address history, phone information, driver’s license information, and other personal privacy information for third parties. Haynes further represents that these exhibits also pertain to Ramirez’s ongoing criminal matter in People of the State of California v. Veronica Amanda Ramirez, Case No. FMV18000342, and thus contain investigative information pertaining to the ongoing criminal matter.

The court is in receipt of the records lodged conditionally under seal on 11/1/18 and has reviewed same. The motion is granted as to Exhibits “A-D” and “G.” The court is unclear why Haynes feels a redaction in Exhibit “E” is necessary. It is also unclear to the court what information, if any, was redacted from Exhibit “F.” The court otherwise determines that the overriding interest in safeguarding the aforesaid personal private information overcomes the right of public access to same, that a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed, that the proposed sealing is narrowly tailored, and that no less restrictive means exist to achieve the overriding interest. With respect to Exhibits “E” and “F,” the court instructs Haynes’ counsel to file a supplemental declaration advising as to the basis for the sealing request at or before the time of the hearing.