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

Case Number

24CV03696

Case Type

Hearing Date / Time

Tue, 01/14/2025 - 16:28

Nature of Proceedings

Defendant The Devereux Foundation’s Motion For Order Sealing Court Records Pursuant To Stipulation Of The Parties

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 motion of Defendant The Devereux Foundation to seal court records pursuant to a stipulation of the parties is denied.

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. (Note: To avoid confusion due to common surnames, the Court will refer to Plaintiffs by their first names. No disrespect is intended.) 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 in July 2022. (Id. at ¶ 30.) 

During their employment with Tri-Counties and Devereux, Plaintiffs were exposed to three 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 and sexually violent and harassing behavior and physical and sexual assaults and batteries at the premises, which caused Plaintiffs to suffer trauma and to seek the attention of medical providers. (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, required Plaintiffs to maintain a code of silence, alienated Plaintiffs from other staff, and retaliated against Plaintiffs. (Id. at ¶¶ 37-38 & 40.) Brianna quit working with Devereux and Tri-Counties in October 2022. (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 two individual Defendants named in the complaint who are alleged by Plaintiffs to be patients at the premises.

On November 8, 2024, Devereux answered the complaint generally denying its allegations and asserting twenty-two affirmative defenses. The public version of the answer filed by Devereux includes redactions. On the same date, Devereux lodged a copy of the answer, with redactions, conditionally under seal.

On November 8, 2024, Devereux filed a motion for an order sealing effectively all documents filed or to be filed in this action in the future, which 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 publicly filed a declaration of Moraima “Mory” Alvarez (Alvarez), and lodged a copy of the Alvarez declaration conditionally under seal. Both the public and lodged versions of the Alvarez declaration contain redactions.

Devereux also submits in support of the motion a 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 the parties and in which the parties agree that certain information implicates privacy rights of individuals identified in the complaint. 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 were separately filed in the public record and conditionally lodged under seal. Both the public and lodged versions of these answers contain redactions as to the identity of the answering Defendants.

Though the Court’s records reflect that no party has filed an opposition to the present motion of Devereux, on November 19, 2024, joinders in the motion 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.

On December 4, 2024, the Court entered a Minute Order (the Minute Order), continuing the hearing on the motion and ordering Devereux to, on or before January 6, 2024, submit a supplemental brief as further described in the Minute Order. The Minute Order includes the following ruling:

“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).”

On January 6, 2024, Devereux filed a public redacted version of its supplemental brief which is supported by a declaration of its custodian of staff records, Veronica Arenas-Soto (Soto). (See Soto Decl., ¶ 2.) Devereux concurrently lodged the supplemental brief and Soto declaration conditionally under seal.

Analysis

In its supplemental brief, Devereux asserts or effectively asserts that it is licensed by the California Department of Social Service to operate and maintain an enhanced behavioral supports home as that term is defined in Health and Safety Code section 1567.62, which sets forth licensing requirements for the facility operated and maintained by Devereux. Therefore, Devereux argues, under the provisions of Civil Code section 56 et seq. (the Confidentiality of Medical Information Act or Act), it is a provider of health care as that term is defined under subdivision (p) of Civil Code section 56.05. For this reason, Devereux contends, any individually identifiable information derived from Devereux regarding its patient’s medical histories, mental or physical condition, or treatment constitutes “medical information” as that term is defined in subdivision (j) of Civil Code section 56.05.

Devereux further asserts that Plaintiffs were employed by Devereux to support to individuals with developmental disabilities in a residential setting, and that to carry out their job responsibilities, Plaintiffs were trained on “Client Sexuality Procedures”, and other defensive stances and maneuvers. To support this contention, Devereux submits a “Job Profile” ostensibly signed by Brianna and Deanna, and a “New Hire Orientation Checklist” also ostensibly signed by Brianna and Deanna, which are attached to the Soto declaration and which purport to show that Plaintiffs each received and were trained on Devereux’s “Client Sexuality Procedures”. (Soto Decl., ¶¶ 4-6 & Exhs. B-C.)

Each of Plaintiffs’ “Job Profile” includes a “Job Summary” stating that the job title “[p]rovides support to individuals with developmental disabilities in a residential setting” and that Devereux “serves individuals with mild, moderate and severe disabilities including autism spectrum diagnosis.” (Soto Decl., Exh. B at PDF pp. 6 [“Job Profile” for Briana] & 8 [same re Deanna].) The “Job Summary” further states that Plaintiffs’ responsibilities “include providing assistance with activities of daily living, including personal care; implements programs designed to meet the social, emotional, and physical needs of the individuals; ensures individuals safety; establishes and maintains a therapeutic environment; must understand, follow, and implement behavioral support plans; accurately tracks and documents data; must have the ability to work with individuals with challenging behaviors; must be able to perform all three levels of Devereux's Safe and Positive Approaches interventions.” (Ibid.)

Also attached as exhibit D to the Soto declaration are what appear to be identical documents entitled “Safe & Positive Approaches Part 2 – Safety Techniques Training”, which Devereux contends describes defensive stances and maneuvers that Plaintiffs were each trained to employ as part of their job duties with Devereux. The documents attached as exhibit D to the Soto declaration identify Briana and Deanna and appear to describe defensive techniques for providing an upper arm escort, and in the event an employee is punched, kicked, or grabbed by a patient at Devereux’s facility, among other things. (Soto Decl., Exh. D at PDF pp. 17-18 [for Briana] & 21-23 [for Deana].)

Based on the information and evidence submitted by Devereux as further described above, Devereux contends that the allegations of the complaint disclose the medical information of persons who received health care services from Devereux for purposes of subdivision (j) of Civil Code section 56.05, which was derived from Plaintiffs’ care and treatment of these individuals while employed with Devereux in accordance with the behavioral health diagnoses of these individuals and Plaintiffs’ job duties and responsibilities. For these reasons, Devereux argues, the information is subject to privacy protection under the Act.

Devereux further contends that Plaintiffs each signed a Privileged Communication Agreement under which Plaintiffs agreed to maintain as confidential the identity of any individuals served by Plaintiffs at Devereux and information about these individuals pursuant to the Health Insurance Portability and Accountability Act or HIPAA, codified at 42 United States Code section 1320d et seq. (Soto Decl., Exh. E.)

In addition, Devereux emphasizes that it seeks an order sealing only those allegations which identify any of its residents or patients, and the relationship of one of these persons to another Defendant named in the complaint.

The undisputed information and evidence presented by Devereux in its supplemental briefing is sufficient for present purposes to show that, under subdivisions (m) and (p) of Civil Code section 56.05, Devereux is a “provider of health care”, and that certain individuals identified in the complaint are patients of Devereux. Relevant here and subject to exceptions, the Act prohibits a “provider of health care” from disclosing the medical information of its patients “without first obtaining an authorization ….” (Civ. Code, § 56.10, subd. (a).) The Act’s authorization requirements “are detailed and demanding, reflecting the Legislature’s interest in assuring that medical information may be disclosed only for a narrowly defined purpose, to an identified party, for a limited period of time.” (Pettus v. Cole (1996) 49 Cal.App.4th 402, 426.)

The Act “is intended to protect the confidentiality of individually identifiable medical information obtained from a patient by a health care provider ….” (Loder v. City of Glendale (1997) 14 Cal.4th 846, 859.) As noted by the California Supreme Court, “the interest protected is an interest in informational privacy, not informational accuracy …. Indeed, the invasion of a privacy interest is all the more pronounced precisely because the disclosed information is true and may accurately reveal intimate details the patient had a right to expect were to be maintained in confidence.” (Brown v. Mortensen (2011) 51 Cal.4th 1052, 1071.)

Though the undisputed information and evidence offered by Devereux in its supplemental briefing is sufficient to show that Devereux is a provider of health care to patients named or otherwise identified in Plaintiffs’ complaint, these facts alone are insufficient to demonstrate the existence of an overriding interest in the matters or information appearing in the complaint. Moreover, and for reasons further discussed in the Minute Order detailed above, the existence of an agreement by Plaintiffs to maintain the confidentiality of this information is by itself insufficient to permit the Court to order that any record be filed under seal.

In addition, even if the Court were to assume that the information and evidence provided by Devereux is sufficient to show that its patients may exhibit conduct which would require employees such as Plaintiffs to engage in the safety or defensive techniques described in exhibit D to the Soto declaration, nothing in exhibit D describes or identifies the type of conduct alleged in the complaint. Also absent from the supplemental brief is any reasoned argument showing why the training of Plaintiffs in the techniques described in exhibit D establishes that the matters alleged in the complaint disclose the medical information of the patients of Devereux identified in the complaint.

Devereux also fails to explain why each of the physical or sexual assaults described in the complaint constitute or reveal medical information regarding its patients. For example, the theories of liability asserted in the complaint arise in significant part from alleged assaults of a sexual and physically violent nature. The general and conclusory arguments and information offered by Devereux are insufficient to show why these allegations necessarily disclose the medical history, mental or physical condition, or treatment of any patient identified in the complaint notwithstanding whether the conduct occurred while Plaintiffs were providing services to patients of Devereux. For these reasons, Devereux has failed to identify an overriding interest in protecting the identity of persons named or otherwise identified in the complaint that overcomes the public’s right to access to this information.

The same reasoning and analysis apply to the request of Devereux for an order sealing the identity of an additional named Defendant based on the existence of a familial relationship between that Defendant and a patient of Devereux.

“Unless confidentiality is required by law, court records are presumed to be open.” (Cal. Rules of Court, rule 2.550(c).) 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.) For all reasons discussed above, the record before the Court does not establish sufficient grounds to seal the identity of the individuals named or described in the complaint notwithstanding that these persons are patients of Devereux or that the events alleged in the complaint occurred while Plaintiffs were employed with Devereux. In addition, the general and conclusory information and arguments offered by Devereux are wholly insufficient to permit the Court to make the express factual findings required under California Rules of Court, rule 2.550(d). Therefore, the Court will deny the motion.

The Court further notes that, as further discussed above, records lodged under seal must not be redacted. (Cal. Rules of Court, rule 2.551(b)(5).) In addition to the present motion and supporting papers, redacted documents which have been publicly filed and conditionally lodged by the parties include: (1) the answer of Devereux filed on November 8, 2024; (2) answers to the complaint filed on November 18, 2024; and (3) joinders in the present motion filed on November 19, 2024.

The Court has not entered, and presently declines to enter, an order authorizing any document or material to be placed under seal. Therefore, the Court will deem as missing from its records any material or information which is redacted from any document filed by any party to this action. To the extent a party needs to correct a public redacted version of a document which was filed prior to the Court’s ruling herein, that party may file the same document without redactions provided the document includes in its caption a statement that the document is a corrected version of a previously filed document and identifies filing date of the document it purports to correct.