Deanna Cardona, et al. v. The Devereux Foundation, et al.

Case Number

24CV03696

Case Type

Hearing Date / Time

Wed, 12/04/2024 - 10:00

Nature of Proceedings

Motion to Seal

Tentative Ruling

For Plaintiffs Deanna Cardona and Brianna Cardona: Gregory J. Ramirez, Law Office of Gregory J. Ramirez; Alexander Rosenberg, Rosenberg Law, P.C.                                 

For Defendant The Devereux Foundation: Brett Schoel, Vanessa R. Cornejo, La Follette, Johnson, DeHaas, Fesler & Ames

For Additional Parties: See List

RULING

For all reasons discussed herein, the Court continues the hearing on the motion of Defendant The Devereux Foundation to seal court records pursuant to a stipulation of the parties to January 15, 2024. On or before January 6, 2024, Defendant shall submit a supplemental brief as further described herein and in accordance with this ruling. Apart from the supplemental brief authorized herein, the parties shall not file any additional papers in support of or in opposition to the motion.

Background

On July 2, 2024, Plaintiffs Deanna Cardona (Deanna) and Brianna Cardona (Brianna) (collectively, Plaintiffs) filed their original complaint in this action against Defendants The Devereux Foundation (Devereux), Tri-Counties Community Housing Corporation (Tri-Counties CHC), Tri-Counties Association For the Developmentally Disabled, Inc. (Tri-Counties ADD), and additional Defendants further described below, alleging four causes of action: (1) gross negligence; (2) premises liability; (3) sexual battery; and (4) sexual assault. Briefly, as alleged in the complaint:

Tri-Counties CHC, Tri-Counties ADD (collectively, Tri-Counties), and Devereux own, operate, and supervise premises located at 4084 Foothill Road in Santa Barbara, California (the premises). (Compl., ¶¶ 5-6.) Deanna began working for Devereux on April 7, 2022, and was assigned to work at the premises on June 12, 2022. (Id. at ¶¶ 20 & 25.) Brianna began working at the premises for Tri-Counties and Devereux in July 2022. (Id. at ¶ 30.)

During their employment with Tri-Counties and Devereux, Plaintiffs were exposed to residents at the premises, two of whom are named as Defendants in this action and each of whom engaged in what Plaintiffs allege constitutes physically violent and sexually harassing, assaulting and battering behavior at the premises causing Plaintiffs to suffer trauma and to seek the attention of medical providers to recover from the effects of the physical and sexual abuse. (Compl., ¶¶ 11-15, 26-35 & 40-41.)

In August 2022, Plaintiffs placed Devereux and Tri-Counties on notice that patients at the premises were becoming increasing physically and sexually aggressive. (Compl., ¶ 36.) Devereux and Tri-Counties ignored Plaintiffs’ plea for help, started alienating Plaintiffs from the rest of the staff, and retaliated against Plaintiffs. (Id. at ¶¶ 37-38.) Although Plaintiffs informed Devereux and Tri-Counties that physical and sexual assaults were taking place, Devereux required that Plaintiffs maintain a code of silence. (Id. at ¶ 40.) Brianna quit working with Devereux and Tri-Counties in October 2022 after they made her sit alone with a resident without help. (Id. at ¶ 42.)

Court records reflect that on August 28 and October 24, 2024, the Court issued separate orders appointing a separate guardian ad litem for each of two individual Defendants named in the complaint.

On November 8, 2024, Devereux filed an answer to the complaint which includes redactions from the public file. On the same date, Devereux lodged a copy of the answer conditionally under seal. The lodged copy of the answer filed by Devereux includes redactions. In its answer to the complaint, Devereux generally denies its allegations and asserts twenty-two affirmative defenses.

On November 8, 2024, Devereux filed a motion for an order sealing certain court records. The request of Devereux to seal records filed in this action is made pursuant to a stipulation of the parties. The specific records or information for which Devereux requests a sealing order include portions of the summons and complaint publicly filed by Plaintiffs, all mention of the names or identities of certain Defendants appearing in any record filed in this action, all records relating to the two applications for the appointment of guardians ad litem filed in this action, all records related to the present motion, and all references to certain Defendants appearing in any records that may be filed in the future including in the Court’s register of actions, among other things. Devereux has concurrently lodged a copy of the present motion conditionally under seal, which also includes redactions.

In support of the motion, Devereux has publicly filed the declaration of Moraima “Mory” Alvarez (Alvarez), and has lodged a copy of the Alvarez declaration conditionally under seal. Both the publicly filed and lodged versions of the Alvarez declaration contain redactions. Alvarez is currently the Administrative Support Coordinator for Central Records at Devereux, and has been employed by Devereux for 48 years. (Alvarez Decl., ¶ 1.) Based on Alvarez’s history with Devereux as further detailed in the Alvarez declaration, Alvarez is familiar with services provided at the premises. (Ibid.)

Alvarez declares that Devereux is a non-profit organization providing behavioral healthcare services in the areas of autism, intellectual and developmental disabilities, and specialty mental health including bipolar disorder, psychotic disorders and disruptive behavior disorders. (Alvarez Decl., ¶ 3.) Devereux offers programs for adults such as community-based living, employment, and transition services, and provides treatment in residential settings. (Ibid.) The premises at issue in this action provides care for adults who require enhanced behavioral health services, which is a higher level of care. (Id. at ¶ 4.) Defendants named in the complaint and another nonparty resident of the premises who is also identified in the complaint require enhanced behavioral health services. (Id. at ¶ 5.)

Devereux also submits the declaration of its counsel, Vanessa R. Cornejo (Cornejo). Attached to the Cornejo declaration as exhibit A is a “Stipulation To Sealing Court Records” (the stipulation) which is executed by counsel for Plaintiffs, Devereux, Tri-Counties, and other Defendants named in this action. Devereux asserts that, pursuant to the stipulation, the parties to this action have agreed that certain information implicates the privacy rights of individuals identified in the complaint and supports sealing the records filed in this action. A copy of the complaint filed by Plaintiffs with redactions agreed to by the parties is attached to the stipulation as exhibit 1.

On November 18, 2024, answers to the complaint of Plaintiffs were separately filed in the public record and conditionally lodged under seal. Both the publicly filed and lodged versions of these answers contain redactions ostensibly with respect to the identity of the answering Defendants.

Though the records of the Court reflect that no party has filed an opposition to the motion of Devereux, on November 19, 2024, joinders in the motion of Devereux were separately filed in the public record and conditionally lodged under seal. Both the publicly filed and lodged joinders also include redactions with respect to the identity of the joining Defendants.

Analysis

As further discussed above, Devereux and other parties to this action have lodged conditionally under seal records that include redactions. Records lodged under seal must not be redacted. (Cal. Rules of Court, rule 2.551(b)(5).) Because the joinders in the present motion further described above redact from both the publicly filed and lodged records the identity of the filing Defendants, the Court has no indication as to which parties have filed these joinders. The parties are reminded of their obligation to comply with court rules.

Subject to exceptions which do not appear to be present here, the public has a constitutional right of access to documents filed with the court in civil litigation matters, which is “grounded in the First Amendment.” (Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 484, 495; Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 596.) “Unless confidentiality is required by law, court records are presumed to be open.” (Cal. Rules of Court, rule 2.550(c).) (Note: Undesignated rule references herein shall be to the California Rules of Court unless otherwise specified.) A court may order a record 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] 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 (H.B. Fuller).)

Information for which Devereux requests a sealing order pursuant to the parties’ stipulation appears in the complaint filed by Plaintiffs and includes one Defendant’s position or relationship with Tri-Counties ADD, the nature of that Defendant’s relationship to another Defendant, and the identity of residents at the premises who are alleged to have committed the purported assaults and other acts described in the complaint, two of whom are Defendants in the action. (Motion, Exh. A [Complaint] at pp. 1-2, 9, 11, 12, 13 & ¶¶ 7-15, 26-35, 42, 46-47.) Devereux asserts that this information also appears in each of the two applications for the appointment of a guardian ad litem previously filed with the Court and in the present motion, and that this information will also appear in future documents to be filed in the action. Devereux does not submit redacted copies of any other record apart from the complaint as further described above.

The stipulation attached to the Cornejo declaration includes a general and conclusory recital of each of the factors set forth in rule 2.550(d), which must be established before a court may order a record be filed under seal. (See Motion, Exh. A [Stipulation].) Wholly absent from the stipulation is any “concrete factual basis for a sealing order.” (H.B. Fuller, supra, 151 Cal.App.4th at p. 891.) Moreover, [t]he court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.” (Cal. Rules of Court, rule 2.551(a).) For these reasons, the stipulation, alone, is an insufficient basis upon which the Court may order any records in this action be filed under seal.

Also absent from the motion is any reasoned legal or factual argument demonstrating the existence of an overriding interest with respect to matters appearing in paragraph 7 of the complaint, in which Plaintiffs set forth allegations regarding one Defendant’s position with and relationship to Tri-Counties ADD, relationship to another individual Defendant, and place of residence. With respect to other records filed or to be filed with the Court, also absent from the motion is any information sufficient to permit the Court to issue the directive specified under rule 2.550(e)(1)(B).

With respect to unspecified “future” documents that may be filed in this action, the speculative, general, and conclusory arguments offered by Devereux are wholly insufficient to permit the Court to make the express factual findings required under rule 2.550(d). For example, the Court is unable to expressly find any facts with respect to any unknown or unspecified future records or to direct the sealing of any specific pages or documents within those records as required under rule 2.550(e)(1)(A) & (B). In addition, the proposed sealing of all future records, including the Court’s register of actions, is not narrowly tailored, nor has Devereux made the required showing that that no less restrictive means exist to achieve any overriding interest with respect to these records.

In addition, though Devereux contends that the residents of the premises identified in the complaint have a right to privacy in their medical and psychotherapy information, Devereux fails to make a sufficient showing as to how or why the allegations of the complaint disclose information appearing in any medical or psychotherapy records of any persons identified in the complaint. For example, even if the Court were to accept as true that residents of the premises identified in the complaint receive enhanced behavioral health services, the general and conclusory information provided by Devereux is insufficient to permit the Court to determine the nature of these services or why the conduct alleged in the complaint discloses private or privileged information with respect to these services. The conduct alleged in the complaint also does not, on its face, appear to reveal any sensitive medical information about, or health services that may have been required by, persons identified in the complaint. (See, e.g., Vigil v. Muir Medical Group IPA, Inc. (2022) 84 Cal.App.5th 197, 208 [general discussion of the type of medical information that is subject to a right to privacy].)

Furthermore, under circumstances such as here where individuals are alleged to have perpetrated sexual or physical assaults and the allegations of the complaint do not, on their face, appear to disclose information which is privileged or contained in any medical or psychiatric records of these individuals, embarrassment alone is an insufficient basis upon which the Court may order any records be sealed. (People v. Jackson (2005) 128 Cal.App.4th 1009, 1024.) For these same reasons, and considering that the request of Devereux does not relate to materials sought in discovery, Devereux’s reliance on Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669 (Gherardini), Smith v. Superior Court (1981) 118 Cal.App.3d 136 (Smith), Davies v. Superior Court (1984) 36 Cal.3d 291 (Davies), and Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652 (Valley Bank), is misplaced. (Cal. Rules of Court, rule 2.550(a)(2) [addressing application of sealing rules to records required to be kept confidential by law or discovery materials]; Gherardini, supra, 93 Cal.App.3d at p. 673, disapproved to the extent stated in Williams v. Superior Court (2017) 3 Cal.5th 531, 557, fn. 8 [addressing right of privacy in patient records of doctor subject to investigation by a medical board]; Smith, supra, 118 Cal.App.3d at pp. 141-142 [addressing disclosure of information subject to psychotherapist-patient privilege]; Davies, supra, 36 Cal.3d at pp. 298-299 [addressing discovery of accident reports subject to statutory confidentiality protections]; Valley Bank, supra, 15 Cal.3d at pp. 656-657 [addressing discovery of bank records].)

Devereux also fails to offer, and the Court is unaware of, any legal authority which would support the sealing of records identifying individuals, or persons related to individuals, who are alleged to have engaged in or perpetrated acts of purported sexual harassment, battery, or assault notwithstanding whether those persons also suffer from mental or behavioral health issues. Devereux’s reliance on decisions addressing the privacy rights of alleged victims of sexual harassment is also inapposite. Cases involving claims made by victims of sexual harassment, assault, or battery give rise to public policy concerns relating to whether or not the discovery of or intrusion into the victims’ private sexual behavior might discourage complaints or be intended to annoy or harass. (See, e.g., Vinson v. Superior Court (1987) 43 Cal.3d 833, 842-844 [general discussion of privacy rights of victims of sexual harassment, assault, or battery].) As the allegations of the complaint purport to describe alleged physical or sexual assaults by individuals whose identities are the subject of the present motion, they do not give rise to these same public policy concerns.

The information for which Devereux seeks a sealing order also does not relate to allegations made in a pending administrative hearing or under circumstances which would necessitate that the Court protect the professional reputation of a party during the pendency of a proceeding which has not yet concluded. (See, e.g., Unnamed Physician v. Board of Trustees of Saint Agnes Medical Center (2001) 93 Cal.App.4th 607, 632, fn. * [noting that “sensitive nature” of a pending prehearing process necessitated that the Court protect a party’s professional reputation at that stage of the proceedings].)

For all reasons discussed above, Devereux has failed to identify an overriding interest which overcomes the public’s right to access the records filed in this action. (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1223, fn. 46 [identifying privileges and interests which have been recognized as overriding the right of public access to court records].) Further, absent the existence of a privilege which does not appear to exist here, there exists a clear public interest in identifying individuals who are alleged to have engaged in tortious behavior. (See McNair v. National Collegiate Athletic Assn. (2015) 234 Cal.App.4th 25, 35-36 [general discussion].) In addition, the general, conclusory, and speculative nature of the arguments presented in the motion prevent the Court from making the express factual findings required to seal any records filed in this action as required under rule 2.550(d). For these reasons, the Court is presently inclined to deny the motion.

Though the information and arguments presented in the motion are insufficient to justify the sealing of any record filed in this action, before making a final determination, the Court will continue the hearing to provide Devereux an opportunity to submit supplemental briefing with respect to the issues and deficiencies discussed herein. The supplemental brief must include, on a point-by-point basis with respect to each category or type of information or material for which Devereux seeks a sealing order, factual and legal arguments sufficient to demonstrate an overriding interest that overcomes the public’s right to access the records filed in this action, with citations to relevant authority. The legal and factual arguments must also be sufficient to enable the Court to make the express findings set forth in rule 2.550(d)(1) through (5), and to make the order required under rule 2.550(e).