1260 BB Property, LLC v. Certain Underwriters at Lloyd’s and London Market Companies, et al
1260 BB Property, LLC v. Certain Underwriters at Lloyd’s and London Market Companies, et al
Case Number
23CV00285
Case Type
Hearing Date / Time
Wed, 04/23/2025 - 10:00
Nature of Proceedings
(1) Plaintiff’s Motion To Seal Confidential Documents Pursuant To California Rules of Court, Rules 2.550 and 2.551 (2) Defendants’ Motion To File Confidential Documents Under Seal Pursuant To California Rules of Court, Rules 2.550 and 2.551
Tentative Ruling
*AMENDED* (4:10 pm 4/22/2025)
For Plaintiff 1260 BB Property, LLC: Jared M. Katz, Eric J. Munoz, William J. Ryan, Gregory J. Scandaglia, Mullen & Henzell L.L.P.
For All Defendants other than Defendant Liberty Mutual Fire Insurance Company: Tyler M. Costanzo, Clausen Miller P.C. (Mission Viejo, California), Sava Alexander Vojcanin and Charles W. Deutsch, Clausen Miller P.C. (Chicago, Illinois)
For Defendant Liberty Mutual Fire Insurance Company: Nicholas J. Boos, Maynard Nexsen LLP.
RULING
(1) For all reasons discussed herein, the motion filed by plaintiff on February 27, 2025, for an order sealing confidential documents pursuant to California Rules of Court, rules 2.550 and 2.551, is denied. Plaintiff shall, within 10 days of the order denying the motion, notify the clerk of the court whether any record lodged by plaintiff conditionally under seal on February 26 and 27, 2025, is to be filed unsealed. To the extent plaintiff fails provide, within the time prescribed herein, the required notification as to any record lodged conditionally under seal by plaintiff on February 26 and 27, 2025, the clerk of the court is directed to permanently delete that lodged record.
(2) For all reasons discussed herein, the motion filed by defendants on April 16, 2025, for an order permitting defendants to file confidential documents under seal pursuant to California Rules of Court, rules 2.550 and 2.551, is denied.
(3) The summary judgment motions are continued one week to 4/30/24; to wit:
A. Motion of Liberty Mutual for summary judgment, or alternatively for summary adjudication, filed December 11, 2024, with amended notice of motion filed December 13. Plaintiff’s Response was filed on February 26, 2025. Liberty Mutual’s Reply was filed March 5, 2025.
B. Motion of All Defendants, Other than Liberty Mutual, for summary judgment re Suit Limitation and Notice, filed December 9, 2024. Plaintiff’s Response was filed on February 27, 2025. The Reply was filed March 7, 2025.
Background
On May 9, 2023, with leave of court pursuant to a stipulation by the parties, plaintiff 1260 BB Property, LLC, filed a first amended complaint (FAC) against multiple entity defendants who sell insurance in the State of California, alleging four causes of action: (1) breach of contract; (2) declaratory judgment against defendants/primary insurers; (3) declaratory judgment against defendants/excess insurers; and (4) breach of the implied covenant of good faith and fair dealing. As alleged in the operative FAC:
Plaintiff is the owner of the Four Seasons Resort The Biltmore Santa Barbara (the hotel), which is located in Santa Barbara, California. (FAC, ¶ 2.) The hotel was insured under policies procured by Four Seasons Hotel Ltd. (Four Seasons) for the policy period of April 1, 2017, to April 1, 2018. (Id. at ¶ 2 & 7.)
During the policy period, the hotel suffered substantial property damage and economic loss from the Thomas Fire and an ensuing debris flow and mudslide, which totaled in excess of $64 million. (FAC, ¶ 2.) On the claims related to the fire, plaintiff suffered in excess of $6.7 million in insured losses, of which certain defendant insurers have paid $5,953,000 but have refused to pay in excess of $793,000. (Id., at ¶ 3.) On the claims related to the mudslide, plaintiff suffered in excess of $58 million in insured losses, of which certain defendants responsible for the first layer of primary insurance of $50 million have paid $46,670,264. (Id. at ¶ 4.) The excess insurers have refused to pay any amount for plaintiff’s losses above the $50 million primary policy limits. (Ibid.)
Attached to the complaint as Exhibits B through M are copies of insurance policies related to the losses claimed by plaintiff in this action.
Relevant to the present proceeding, on December 9, 2024, all defendants other than Liberty Mutual Fire Insurance Company (the other defendants) jointly filed five motions: (1) a motion for summary judgment; (2) a motion for summary adjudication re Coral Casino membership fees; (3) a motion for summary adjudication re interest expense; (4) a motion for summary adjudication re number of occurrences; and (5) a motion for summary adjudication re increased insurance premiums.
On December 11, 2024, defendant Liberty Mutual Fire Insurance Company (Liberty Mutual) filed a motion for summary judgment and for alternate adjudication of the third cause of action for declaratory judgment, the fourth cause of action for breach of the implied covenant of good faith and fair dealing, and plaintiff’s claim for punitive damages.
On February 10, 2025, the parties to this action jointly filed a motion for an order (the joint motion to seal) sealing documents identified in a declaration of Charles W. Deutsch (Deutsch) submitted by the other defendants in support of their motions for summary adjudication re interest expense and re number of occurrences, and motion for summary judgment; documents identified in a declaration of Nicholas J. Boos (Boos) submitted by Liberty Mutual in support of its motion for summary judgment; and various pages appearing within exhibit D to a declaration of Deutsch submitted by the other defendants in support of a motion for an order (the PMQ Motion) compelling plaintiff to produce its designated person most qualified Joseph Hicks, which was filed by the other defendants on December 2, 2024.
In support of the joint motion to seal, the parties submit a declaration of Deutsch, who is counsel for the other defendants and who states that the parties to this action entered into a “Stipulated Confidentiality Agreement and Protective Order” (the protective order), pursuant to which a party may designate documents as “Confidential” or “Highly Confidential” and under seal pursuant to California Rules of Court, rules 2.550 and 2.551. (Deutsch Decl., ¶ 3 & Exh. A.) Deutsch asserts that the terms of the protective order require the parties to maintain the confidentiality of documents designated as confidential. (Ibid.)
Information appearing in the Deutsch declaration and the Boos declaration submitted in support of the joint motion to seal shows that the documents for which the parties seek a sealing order are: (1) the report of expert William Polash of FGMK, LLC (the Polash Report) which was submitted in support of the other defendants’ motion for summary adjudication re interest expense as exhibit C; (2) excerpts from the deposition transcript of Michael Cerf (Cerf) submitted as exhibit E in support of that same motion; (3) a Second Amended and Restated Business Loan Agreement between HTW, L.L.C., and The Northern Trust Company (the Second Amended Loan Agreement) submitted as exhibit J in support of that motion; (4) the Northern Trust Company Statements of Account for Account No. 1508482 (the Account Statements) submitted as exhibit K to that motion; (5) a Loan Agreement between plaintiff and Bank of America (the BOA Loan Agreement) submitted as exhibit L to that motion; (6) excerpts from the Cerf deposition submitted in support of the other defendants’ motion for summary adjudication re number of occurrences as exhibit J; (7) excerpts from the Cerf deposition submitted in support of the other defendants’ motion for summary judgment as exhibit W; (8) a “Transfer Approval Confirmation of a Domestic Wire, FSSB00055957-55958” (the Wire Transfer Approval), correspondence dated January 2, 2018, (the January Correspondence), and a Hotel Management Agreement (the Management Agreement) between Four Seasons and Channel Drive LLC, each of which appear in exhibit D submitted in support of the PMQ Motion; and (9) excerpts of the Cerf deposition submitted in support of Liberty Mutual’s motion for summary judgment or adjudication as exhibit G. (Deutsch Decl., ¶¶ 5-8; Boos Decl., ¶ 2.)
On February 25, 26, and 27, 2025, plaintiff separately filed oppositions to the other defendants’ motions for summary adjudication, and the other defendants’ and Liberty Mutual’s motions for summary judgment described above. On February 26 and 27, 2025, plaintiff lodged documentary evidence submitted in support of its oppositions conditionally under seal.
On February 27, 2025, plaintiff filed a motion for an order (plaintiff’s motion to seal) sealing the documents lodged by plaintiff conditionally under seal on February 26 and 27, 2025, and described above, on the grounds that these documents are confidential under California Rules of Court, rules 2.550 and 2.551.
On March 12, 2025, the court issued a Minute Order (the MSA Minute Order) denying the motions of the other defendants for summary adjudication re increased insurance premiums, re Coral Casino membership fees, re interest expense, and re the number of occurrences, on the grounds that these motions are procedurally improper under California law. Further, the court continued the other defendants’ and Liberty Mutual’s respective motions for summary judgment to April 23, 2025.
On April 16, 2025, the court entered a Minute Order (the April Minute Order), adopting its tentative ruling on the joint motion to seal as follows:
“California has “long recognized a common law right of access to public documents, including court records.” (Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 483 (Overstock).) There exists a presumption that “[c]ourt records are open to the public unless they are specifically exempted from disclosure by statute or are protected by the court itself due to the necessity of confidentiality.” (McGuire v. Superior Court (1993) 12 Cal.App.4th 1685, 1687.) A court may order a document to be filed under seal only upon an express factual finding establishing an “overriding interest that overcomes the right of public access to the record”, that “the overriding interest supports sealing the records”, 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.” (Cal. Rules of Court, rule 2.550(d)(1)-(5); Sander v. State Bar of California (2013) 58 Cal.4th 300, 319, fn. 7.)
“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.” (Cal. Rules of Court, rule 2.551 (b)(1).) The moving party bears the burden of presenting information sufficient to identify the nature of the harm threatened by disclosure of the record at issue. (H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 894 (H.B. Fuller).)
Noted above, in the MSA Minute Order, the court denied the separately filed motions of the other defendants for summary adjudication re interest expense and re the number of occurrences as improper. Notwithstanding the denial of these motions on procedural grounds, the court will consider the joint motion to seal evidence submitted in support of these motions.
The parties assert that the documents described above have been identified by plaintiff as containing confidential and sensitive financial information of plaintiff, Four Seasons, and HTW, L.L.C., (HTW). The parties contend that there exists a strong interest in protecting what the parties describe as financial, trade, and private information appearing in these documents.
The parties further contend that public access to these records would prejudice plaintiff, HTW, and Four Seasons, and weaken their competitive advantage by revealing to their competitors the inner workings of plaintiff, including its financial agreements, financial holdings, debts, loans, and operations, and the manner in which plaintiff, HTW, and Four Seasons operate their businesses. The parties also assert that information contained in these documents would violate the privacy interests of unspecified non-parties to this action.
As to the Polash Report submitted as exhibit C in support of the motion for summary adjudication re interest expense, the parties have also failed to meet their burden to show why the entirety, or any specific portion, of the Polash Report implicates an overriding interest that would overcome the public’s right to access this record for all reasons discussed below.
By way of example, the Polash Report includes an introduction stating the purpose for which William A. Polash (Polash), the author of that report, was engaged by plaintiff. (Dec. 9, 2024, Lodgment of Evidence ISO MSA Re Interest 2 of 3, Exh. C at p. 1.) The Polash Report also sets forth the qualifications of Polash and “background” facts giving rise to the claims alleged by plaintiff in this action which are to some extent also effectively set forth or disclosed in the FAC. (Id. at pp. 1-2.) The Polash Report also sets forth the analysis and findings of Polash with respect to the damages claimed by plaintiff in this action, including matters which, to some extent, are also effectively disclosed in the FAC. (Id. at p. 3.)
Apart from the general and conclusory arguments described above, the parties offer insufficient reasoned factual or legal argument, with specific references to the record, showing why all of the information appearing in the Polash Report implicates an overriding interest that overcome the public’s right to access the record, including with respect to matters which already exist in the public domain. (See Overstock, supra, 231 Cal.App.4th at pp. 487, 505.)
In addition, to the extent a party contends that specific information appearing in the Polash Report implicates an overriding interest, the joint motion to seal fails to include any reasoned argument showing, on a line-by-line or item-by-item basis with specific references to the record, the existence of an overriding interest in this information in a manner sufficient to permit the court to make the required factual findings. (See Cal. Rules of Court, rule 2.550; H.B. Fuller, supra, 151 Cal.App.4th at pp. 888-889.) For these and all reasons further discussed above, the court will deny the joint motion to seal as to the entirety of the Polash Report.
Regarding the transcript of the Cerf deposition submitted in support of the other defendants’ motion for summary adjudication re interest expense as exhibit E, portions of the testimony reflected in this transcript relates to the claims asserted by plaintiff in this action, and repairs made to the property at issue. The same reasoning and analysis apply. For reasons discussed above, the parties have failed to explain why there exists an overriding interest in all of the testimony reflected in exhibit E to the motion for summary adjudication re interest expense that overcomes the public’s right to access this record, including with respect to matters which already exist in the public domain. For this reason, the court will also deny the joint motion to seal the entirety of the Cerf deposition transcript submitted as exhibit E to the other defendants’ motion for summary adjudication re interest expense.
Regarding the Second Amended Loan Agreement submitted as exhibit J to the other defendants’ motion for summary adjudication re interest expense, apart from the general and conclusory arguments noted above, the parties fail to explain why this existence of this document, alone, implicates any overriding interest or privacy rights sufficient to justify sealing the entirety of this record. (See Hecht, Solberg, Robinson, Goldberg & Bagley LLP v. Superior Court (2006) 137 Cal.App.4th 579, 593-594 [constitutional right to privacy in the disclosure of financial information does not apply to corporations].)
Further, to the extent a party contends that there exists an overriding interest in specific information appearing within the Second Amended Loan Agreement, including with respect to any competitive advantage of plaintiff or privacy rights of a particular person, wholly absent from the joint motion to seal is any reasoned argument showing, on a line-by-line or item-by-item basis with specific references to the record, the existence of an overriding interest in any such information. For these reasons, the court is unable to make the factual findings required under California Rules of Court, rule 2.550(d). Therefore, and for all reasons discussed above, the court will deny the joint motion to seal as to the entirety of the Second Amended Loan Agreement.
The same reasoning and analysis apply with respect to the Account Statements submitted as exhibit K to the other defendants’ motion for summary adjudication re interest expense, and the BOA Loan Agreement submitted as exhibit L to that motion. For all reasons further discussed above, the court will also deny the joint motion to seal as to these documents.
As to the transcripts of the Cerf deposition submitted as, respectively, exhibit J and W to the other defendants’ motions for summary adjudication re number of occurrences and summary judgment, and as exhibit G to Liberty Mutual’s motion for summary judgment, the same reasoning and analysis apply. The parties fail to explain why there exists an overriding interest in the entirety of these transcripts, which include information regarding Cerf’s job responsibilities, communications with other employees, involvement with or understanding of the claims for property damage alleged or noticed by plaintiff in this action, knowledge of dates on which repairs were completed, and knowledge of commercial property insurance policy terms, or why all of the information within these transcripts implicates any competitive advantage of plaintiff, or any right to privacy of Cerf. (See Dec. 9, 2024, Notices of Lodgment ISO MSA Re Number Of Occurrences & MSJ, Exhs. J & W; Dec. 11, 2024, Index ISO Liberty Mutual MSJ, Exh. G.)
Further, to the extent the parties contend that there exists an overriding interest as to any specific information within the Cerf transcripts which overcomes the public’s right to access this record, the parties’ failure to explain, on a line-by-line or item-by-item basis with supporting reasoned argument and references to the record, why there exists an overriding interest in any such information prevents the court from making the required factual findings for reasons further discussed above.
The Wire Transfer Approvals, the January Correspondence, and the Management Agreement each appear in exhibit D to the Deutsch declaration submitted in support of the PMQ Motion. These records constitute discovery materials filed in connection with the PMQ Motion. For this reason, and subject to exception to the extent these records “are used at trial or submitted as a basis for adjudication of matters other than discovery motions or proceedings”, the court rules governing sealed records do not apply to the Wire Transfer Approvals, the January Correspondence, or the Management Agreement. (Cal. Rules of Court, rule 2.550(a)(3).) Therefore, as there is no evidence or information in the present record to show or suggest that the Wire Transfer Approvals, the January Correspondence, or the Management Agreement were submitted as a basis for adjudication of matters other than the PMQ Motion, the court will grant the joint motion to seal, in part, as to these records only.
As there is no mechanism by which the court can redact or excise the Wire Transfer Approvals, the January Correspondence, or the Management Agreement from the Deutsch declaration filed in support of the PMQ Motion, the court will order the clerk to lodge that declaration under seal. Further, the court will order the other defendants to re-file a public version of the Deutsch declaration submitted in support of the PMQ Motion which redacts the Wire Transfer Approvals, the January Correspondence, and the Management Agreement from exhibit D to that declaration. To the extent the other defendants fail to file a public redacted version of the Deutsch declaration as required or within the time prescribed herein, the court will direct the clerk to return the lodged Deutsch declaration to the public file.
As to the remaining documents other than the Wire Transfer Approvals, the January Correspondence, and the Management Agreement and further described above, a party requesting an order sealing a court record must appropriately focus and limit their joint motion to seal the record and may not simply “dump [the] … material … into the lap of the trial court.” (Overstock, supra, 231 Cal.App.4th at p. 511.) For all reasons discussed above, the parties have failed to meet their burden to present factual information sufficient to show the existence of an overriding interest in the entirety of the remaining records which are the subject of the joint motion to seal, or the nature of the harm threatened by the disclosure of these materials, which would overcome the public’s right to access these records. Therefore, for these and all reasons discussed herein, the court will deny the joint motion to seal as to the other documents described above other than the Wire Transfer Approvals, the January Correspondence, and the Management Agreement.”
Pursuant to the April Minute Order, the court granted in part the joint motion to seal and directed the clerk to lodge the Deutsch declaration filed by the other defendants on December 2, 2024, under seal. In addition, the court ordered the other defendants to, on or before April 25, 2025, file a public redacted version of that declaration in accordance with the April Minute Order.
The court did not issue a ruling on plaintiff’s motion to seal in the April Minute Order, and continued the hearing on that motion to April 23, 2025.
On April 16, 2025, the other defendants filed a motion for an order (defendants’ motion to seal) sealing documents identified in a Deutsch declaration and a compendium of exhibits submitted in support of the other defendants’ motion for summary adjudication re Coral Casino membership fees (the Coral Casino MSA). The court set the hearing on defendants’ motion to seal for April 23, 2025, the same date of the continued hearing on plaintiff’s motion to seal as further noted above.
Plaintiff’s motion to seal:
In support of plaintiff’s motion to seal, plaintiff submits the declaration of its counsel, Eric J. Munoz (Munoz). A copy of the protective order is included with the Munoz declaration, which Munoz asserts was signed by the court on October 26, 2023, and entered on October 27, 2023. (Munoz Decl., ¶ 2 & Exh. A.)
Munoz states that, in connection with plaintiff’s oppositions to the other defendants’ motions for summary judgment and adjudication and Liberty Mutual’s motion for summary judgment, plaintiff has identified and submitted various documents and information which have been designated as confidential under the terms of the protective order. (Munoz Decl., ¶ 3.) Munoz identifies and describes the specific documents submitted by plaintiff in connection with its oppositions to the motions further described, and for which plaintiff seeks a sealing order. (Id. at ¶¶ 4-9.)
Munoz contends that the documents identified in the Munoz declaration include proprietary information regarding how plaintiff, HTW, and Four Seasons operate their businesses, private and confidential financial information regarding their accounts, debts, and loans, and private information belonging to present and former principals, owners, officers, representatives and employees, which Munoz asserts could be used by competitors to the prejudice of plaintiff and non-parties to this litigation, and which would weaken plaintiff, HTW, and Four Seasons’ competitive advantage. (Munoz Decl., ¶ 10.)
Defendants’ motion to seal:
The other defendants also submit a separate Deutsch declaration in support of defendants’ motion to seal, in which Deutsch asserts that the documents for which the other defendants seek a sealing order consist of a transcript of the deposition of Michael Cerf (Cerf), and exhibits 11 and 17 to the deposition of John Foley (Foley). (Deutsch Decl., ¶ 5.) Deutsch declares that plaintiff has represented that these documents are subject to the protective order and must be sealed. (Id. at ¶ 4.)
Analysis
(1) Plaintiffs’ Motion to Seal
Plaintiff’s motion to seal is made on the sole ground that the documents for which plaintiff seeks a sealing order have been identified and designated as confidential or highly confidential under the terms of the protective order. Plaintiff contends that, by signing the protective order, the court has weighed the presumption of access against the overriding interests claimed by plaintiff, and determined that good cause exists to protect the documents and information at issue from public disclosure.
By signing the protective order, the court approved the out of court procedures which the parties to this action agreed would govern the designation of any documents or information as confidential, for the purpose of facilitating that procedure which is to be implemented by the parties outside of court. The Court’s signing and entry of the protective order was not based on the Court’s review of any documents or information designated by a party as confidential under the protective order, including the documents or information which are the subject of plaintiff’s motion to seal. Therefore, the court did and could not, as plaintiff contends, make the express factual findings required to enter an order sealing any specific record submitted by plaintiff in support of its oppositions described above.
Moreover, as further discussed in the April Minute Order set forth above, the terms of the protective order itself requires that the parties comply with California Rules of Court, rules 2.550 and 2.551. (Munoz Decl., Exh. A [protective order], ¶ 16.)
The same reasoning and analysis set forth in the April Minute Order apply to plaintiff’s motion to seal. For all reasons further discussed in that order and above, plaintiff has failed to show facts sufficient to justify the sealing of any record identified in the Munoz declaration or submitted in support of plaintiff’s oppositions to the motions for summary judgment and adjudication further described above, as required by California Rules of Court, rule 2.551(b)(1). Further, plaintiff has failed to offer any evidence or information sufficient to permit the court to make the required factual findings or to enter the order described in California Rules of Court, rule 2.550(d). Therefore, and for all reasons further discussed above including in the April Minute Order, the court will deny plaintiff’s motion to seal.
As to the evidenced lodged by plaintiff on February 26 and 27, 2025, conditionally under seal in support of its oppositions to the other defendants’ motions for summary adjudication and judgment, and Liberty Mutual’s motion for summary judgment, there is no information to suggest that any of these records relate to any other proceeding or motion apart from the motions for summary judgment and adjudication described above. Therefore, as the court will deny plaintiff’s motion to seal, the court will require plaintiff to provide the notification described under California Rules of Court, rule 2.551(b)(6), as to each record lodged under seal by plaintiff on February 26 and 27, 2025. To the extent plaintiff fails to provide, for each document lodged by plaintiff on February 26 and 27, 2025, the required notification within the time prescribed in California Rules of Court, rule 2.551(b)(6), the court will direct the clerk to permanently delete the lodged record.
(2) Defendants’ Motion to Seal
Subject to exception which does not apply here, the notice of a motion must “state … the grounds upon which it will be made, and the papers, if any, upon which it is to be based.” (Code Civ. Proc., § 1010; see also Cal. Rules of Court, rule 3.1110(a) [“[a] notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order”].) “The purpose of the notice requirements “is to cause the moving party to ‘sufficiently define the issues for the information and attention of the adverse party and the court.’ [Citation.]” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125 (Luri).)
Apart from generally referencing a Deutsch declaration and compendium of exhibits filed by the other defendants in support of the Coral Casino MSA, wholly absent from the notice of defendants’ motion to seal is any information identifying or describing the specific documents for which the other defendants seek a sealing order. In addition, though the Deutsch declaration submitted in support of defendants’ motion to seal describes the documents at issue, absent from that declaration, and the memorandum submitted in support of the motion, is any information identifying or describing the specific exhibit or exhibits to the Coral Casino MSA in which these documents appear. These notice deficiencies constitute sufficient grounds to deny defendants’ motion to seal. (Luri, supra, 107 Cal.App.4th at pp. 1124-1125 [general discussion]; Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277 [same].)
Notwithstanding the deficiencies in the notice of defendants’ motion to seal further described above, information appearing in the proposed order submitted with that motion indicates that the other defendants request an order sealing exhibits G, I, and J submitted by the other defendants in support of the Coral Casino MSA, which are described in the proposed order as the deposition transcript of Cerf, and exhibits 11 and 17 to the deposition of Foley. (See Prop. Order, ¶ 1(a)-(c).) Though the court will consider the merits of defendants’ motion to seal as to these documents, the other defendants are reminded of their obligation to comply with code requirements when filing motions with the court.
Court records reflect that on December 9, 2024, the other defendants filed a lodgment of evidence (the lodgment) in support of the Coral Casino MSA which identifies excerpts from the deposition of Cerf ostensibly taken on September 16, 2024, and exhibits 11 and 17 to the deposition of Foley taken on October 29, 2024, as, respectively, exhibits G, I, and J to that motion. (Dec. 9, 2024, Lodgment ISO Coral Casino MSA at p. 2, ll. 18 & 20-21.) Though the lodgment includes tabs for each document or exhibit identified in that document, there are no documents or exhibits, apart from these tabs, attached to the lodgment. For these reasons, the evidence submitted by the other defendants in support of the Coral Casino MSA does not include the exhibits which are the subject of defendants’ motion to seal.
In addition, though the Court denied the Coral Casino MSA for reasons further discussed in the MSA Minute Order, on April 16, 2025, the other defendants submitted a notice of lodgment of evidence conditionally under seal purportedly in support of the Coral Casino MSA (the April Lodgment). Attached to the April Lodgment are excerpts from the Cerf deposition, and exhibits 11 and 17 to the Foley deposition. Noted above, these documents do not appear within the lodgment or exhibits submitted in support of the Coral Casino MSA.
As the documents which are the subject of defendants’ motion to seal do not appear within the exhibits submitted in support of the Coral Casino MSA, or the record with respect to that motion, the Court could not have considered those documents when ruling on the Coral Casino MSA. For this reason, and even if the court were to assume without deciding that there exists an overriding interest in these documents (a matter on which the court does not presently express an opinion), the other defendants have failed to make the required showing that there exists a substantial probability that any overriding interest will be prejudiced if these records are not sealed. (Cal. Rules of Court, rule 2.550(d)(3); see also Alvarez v. Superior Court (2007) 154 Cal.App.4th 642, 653 & fn. 4 [general discussion re substantial probability standard].)
Furthermore, the court denied the Coral Casino MSA on procedural grounds, and did not consider or rely on any exhibits identified by the other defendants to reach the ruling reflected in the MSA Minute Order. For these reasons, defendants’ motion to seal is moot. Therefore, and for all reasons further discussed above, the court will deny defendants’ motion to seal.
(3) Additional Matters
At the hearing on the joint motion to seal, the parties informed the court that documents which have been filed or lodged in this matter include account numbers. “If financial account numbers are required in a pleading or other paper filed in the public file, only the last four digits of these numbers may be used.” (Cal. Rules of Court, rule 1.201 (a)(2).) The responsibility for excluding or redacting financial account numbers from documents filed with the court “rests solely with the parties and their attorneys. The court clerk will not review each pleading or other paper for compliance with this provision.” (Cal. Rules of Court, rule 1.201(b).)
To the extent there exists in the public file documents which reveal more than the last four digits of a financial account number, the court expects that the parties will undertake appropriate steps to exclude or redact those numbers, including, if necessary, by filing and serving an appropriate motion to seal any document which includes a financial account number provided that the moving party submits a public redacted version of that document as required under California Rules of Court, rule 2.551(b), and that any such motion otherwise complies with court rules.