Tuesday, June 16, 2015
Page 7
PERSPECTIVES (Column)
Court of Appeal Questions Trial Court’s Sealing of Entire Complaint
By ROGER M. GRACE
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The Court of Appeal for this district yesterday signaled an intention of unsealing a document that is part of the record on appeal: the complaint.
Yes, the entire complaint in the case—brought by Los Angeles attorney Ramin R. Younessi against Alhambra attorney Michael A. Killackey—was sealed. That action was taken by Los Angeles Superior Court Judge Elizabeth Allen White on Jan. 23, 2013. She also ordered that online access to the scanned complaint be shut off.
And what highly sensitive secrets would have been bared had this drastic action not been taken?
None.
White acted, it is clear, in disregard of applicable case law and California rules of court.
Yet, her action was not aberrant. The requirements for secrecy orders set forth in NBC Subsidiary v. Superior Court (1999) 20 Cal. 4th 1178, and rules enacted pursuant to that decision, are all too often disregarded, as noted here before.
Younessi brought his action on Oct. 29, 2012. It sets forth that he represented Monica Munoz in connection with injuries incurred in an automobile collision allegedly caused by James Sheridan; he also represented Brenda Munoz, who purportedly suffered psychological harm from witnessing the event; he performed legal services over a period of slightly over two years, before being discharged; the case was worth $20 million but was settled for $1.6 million; Killackey and his law office garnered $640,000 in legal fees; and he’s entitled to the reasonable value of his services, which, coincidentally, happened to be $640,000.
Killackey made an ex parte application on Jan. 22, 2013 for an order sealing the complaint. He explained in his memorandum of points and authorities:
“The Younessi Complaint articulated and made public specific and confidential details of the confidential settlement of the settling parties Veronica Munoz, Brenda Munoz and James Sheridan in the matter of Munoz v. Sheridan, Los Angeles County Superior Court Case No. BC436455. The release and inclusion of this highly confidential, privileged information in the public record has caused great harm, peril and prejudice to Veronica Munoz and Brenda Munoz, through the exposure of these innocent parties to potential significant civil liability given the public release of the terms of the confidential settlement.”
At three points in his papers, Killackey makes reference to “potential significant civil liability” faced by his former clients based on Younessi’s disclosure. He does not, however, explain how his clients could be held liable for publicly disclosing the settlement amount when it was Younessi, not they, who did so.
Moreover, there’s no explanation as to why the purpose would not be served simply by redacting “$1.6 million” at the one place in the complaint that it appears.
Instead of asking for the blotting out of 12 characters, Killackey asked that the court “remove from public record the Complaint” in the case, and added that it should “seal the entire record.”
Redacting “$1.6 million” is all that White should have even considered doing (and after considering it, should have said “no” in light of the lack of circumstances justifying it.)
The fact that redaction was a complete solution is shown by the public filing of the Third Amended Complaint which has all of the allegations of the initial complaint except that the settlement amount is not specified. The amount is, after all, irrelevant to what the reasonable value was of Younessi’s services.
By the way, the initial complaint was not provided by a confidential news source. It’s publicly available by going to the Superior Court website, though it costs $17 to retrieve. Killackey attached the complaint to his ex parte motion to seal the complaint; while access to the complaint is blocked, access to the ex parte motion isn’t.
Judgment on the pleadings was awarded to Killackey and others. White found that Younessi was obliged to seek declaratory judgment against his former clients to establish the amount his services were worth; he didn’t; he lost.
Younessi appealed.
The case landed in Div. Five of this district’s Court of Appeal. That division is sensitive to the sealing of records without compliance with NBC Subsidiary and the court rules. Presiding Justice Paul Turner’s order says that “there appears to be an insufficient justification” for the sealing of the complaint but gave the parties an opportunity to brief the matter.
Turner makes note:
“[T]he trial court’s sealing order as to one of the documents fails to comply with [California Rules of Court] rule 2.550(d).”
He quotes that rule in a footnote:
“Express factual findings required to seal records. [¶] 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.”
White made no such findings, as you see from the minute order above.
Neither Younessi nor Killackey responded yesterday to a request for comments.
Under submission since June 4 has been the Los Angeles Superior Court case of John Doe v. Financial Industry Regulatory Authority, Inc., commented on previously.
Doe—whose actual name is Patrick J. Dwyer—is seeking to have customer complaints against him, as a Miami investment advisor, removed from a website because he doesn’t like them being there. Judge Michael P. Linfield will decide whether to grant the relief that’s sought.
While he’s pondering whether the public has a right to know of the complaints or not, he ought to give some thought as to whether there is any justification for Dwyer being allowed to litigate anonymously.
Copyright 2015, Metropolitan News Company