Appeals Court Extends Secrecy to Facts Already Made Public

Friday, July 13, 2001

Page 7

PERSPECTIVES (Column)

Appeals Court Extends Secrecy to Facts Already Made Public

By ROGER M. GRACE

Protective orders, like gag orders, are issued all too frequently to bar disclosure of matter in which the public has a legitimate interest. But when secrecy is judicially ordained with respect to matter that has already been made public, there is a patent misuse of powers with a touch of foolishness.

Yesterday, I reported that Div. Seven of this district’s Court of Appeal on July 3 filed an opinion in a case—Agency for the Performing Arts v. The Walt Disney Company et al., B138373—and ordered the opinion sealed. This was a bizarre action, in and of itself. What makes it all the more bizarre is that the action sealing the opinion—taken by Justice Fred Woods (author of the opinion), Acting Presiding Justice Earl Johnson Jr., and Acting Justice Paul Boland (on loan from the Los Angeles Superior Court)—has shielded from public view matters that have already been aired publicly.

Not only did the trial take place in public session, as did oral arguments in the Court of Appeal, but many facts in the case were revealed in the press when a seminal lawsuit was filed in Los Angeles Superior Court on Feb. 24, 1997. This newspaper—like newspapers across the globe—published reports on the early phases of that litigation.

The plaintiff was Wind Dancer Production Company, which had created the popular sitcom, “Home Improvement,” then in its sixth season. It sued the Walt Disney Company, which had control over the series, for alleged self-dealing in connection with the marketing of the show. Wind Dancer contended that too low a price for the series was being paid by the network on which it was running, ABC. That network is owned by Disney.

Then-Los Angeles Superior Court Judge Robert O’Brien (since retired) on March 26, 1997 rejected Wind Dancer’s bid for a preliminary injunction to block Disney from renewing the deal with ABC for two more seasons. O’Brien ruled that Wind Dancer’s remedy, if any, was by way of damages.

News reports from 1997 reflecting these facts remain available on various databases.

Superior Court records show the following:

•An intervenor in Wild Dancer’s suit was Agency for the Performing Arts (“APA.”) That party brought its own action against Disney on Aug. 25, 1997, with ABC named as real party in interest.

•On Oct. 6, 1997, the two actions were found to be related by order of then-Presiding Judge Victor Chavez. They were assigned to Judge Dzintra Janavs.

•A request for dismissal of the entire action brought by Wind Dancer was filed April 8, 1999. (The Los Angeles Times reported, in passing, on Aug. 13, 1999: “Earlier this year, Walt Disney Co. settled a similar lawsuit filed by Wind Dancer Production Group, the creator of ‘Home Improvement,’ alleging that Disney struck a sweetheart deal in renewing the hit comedy on its ABC network rather than seeking competitive bids that could have increased Wind Dancer’s profit.”)

•There were rulings in Disney’s favor by Janavs in APA’s action. The case culminated with an “Order (RE: JUDGMENT)” on Nov. 15, 1999 by Janavs’ successor in Department 15, Judge Richard Fruin.

Information as to events in the Superior Court is publicly available by looking at the register of actions on the Superior Court’s website.

By piecing together what has appeared in the press and what appears in Superior Court records, it is clear that APA’s action was tied to a controversy set forth in news reports that were published and broadcast worldwide in 1997. A need cannot realistically be discerned for the Court of Appeal to hide from the public facts already within the public’s knowledge.

The plaintiff’s trial attorney, Diana Greene Gordon, filled in some of the blanks.

She related that APA is a talent agency. It represents one of the creators of “Home Improvement,” Matt Williams. As such, it is entitled to a “package commission” from profits generated by the airing of the sitcom. It sued, as Wind Dancer did, based on alleged underpayments by the network.

The Wind Dancer action and the APA suit “sought essentially the same types of damages with respect to some of the claims,” Gordon explained.

Gordon related that after Janavs’ rulings, the only issue before Fruin was the quantum of additional payments to be ordered paid to APA following an accounting. She said Fruin hiked the award from about $75,000, originally reckoned by an accounting referee, to a sum of around $138,000. That award was not a subject of the appeal, the lawyer noted.

On July 3, the Court of Appeal affirmed in part and reversed in part, remanding to the Superior Court whatever part of the case was resurrected. The minute order does not indicate what was affirmed or what was reversed. It does indicate that the opinion is sealed.

Upon inquiry, I found that everything in the case is sealed. The Superior Court record. The briefs. The paperclips. Everything. National secrets are hardly involved.

Notwithstanding the California Supreme Court’s 1999 pronouncement in NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178, that “in general, the First Amendment provides a right of access to ordinary civil trials and proceedings,” Woods, Johnson and Boland put nearly every scrap of paper under the Court of Appeal’s roof relating to the Disney case out of the public’s reach. Here’s what’s available to the public: 1.) the minute order; 2.) the calendar for May 2 showing that oral argument in the case was scheduled. That’s it.

The legal contentions of the parties and the legal conclusions of the court are classified information. It is difficult to imagine how legal propositions advanced by parties or embraced by courts could irreparably jeopardize the financial interests of a party.

I have been able to ascertain, from a confidential source, that Woods’ opinion affirms the judgment except as to one cause of action for breach of contract which was torpedoed by Janavs. It sides with Janavs with respect to APA having no cause of action based on a breach of the implied covenant of good faith and fair dealing.

All the information that appears here as to the underlying facts is concealed from the public by the Court of Appeal. Yet I challenge anyone to point to anything I’ve revealed that intrudes upon any legitimate privacy interest or is in any way conducive to causing financial harm.

I don’t doubt the good motives of Woods, Johnson, and Boland in taking the action they did—surely predicated on a sincere desire to avoid injuring a party through a public airing of its trade secrets. Nonetheless, it does seem that the jurists acted irresponsibly in taking so drastic and uncommon a step as they did without first ascertaining if it were legally permissible.

To their credit, they have evinced an amenability to reconsidering their action. They yesterday responded to my letter, sent to Woods late Wednesday urging an “unsealing,” by causing the division’s clerk, John Lepo, to fax the following communication to counsel in the case:

“This court has received a letter from the Metropolitan News Company, a copy of which is enclosed, requesting this court ‘unseal’ (1) the appellate court record (containing records sealed by the trial court order); and (2) this court’s July 3, 2001, unpublished opinion in this matter.

“The parties are hereby requested to respond by letter brief to the Metropolitan News Company’s request. Parties are to file their responses in this court no later than July 19, 2001.”

It would have been a better approach, however, to have sought counsels’ input earlier as to whether or not sealing the opinion was appropriate. Presumably, input would have dissuaded the court from taking such an action. Instead, the jurists made the sealing order on their own motion based on a mere hunch they could do so. They erred—but at least they do not suffer from Yaffe-like intractability, as evidenced by Lepo’s communiqué.

I would hope that after reviewing counsels’ letter briefs and reflecting on the matter, the justices will come to a realization that:

•Janavs’ sweeping 1998 protective order was improper. Her order did predate NBC Subsidiary, which declares a presumption of openness of court records, and California Rules of Court, rules 243.1-243.4, adopted in conformity with that decision.(Among other things, the rules require that certain express findings be made before a secrecy order is imposed.) Nonetheless, Los Angeles Superior Court Rule 7.19 was in effect, as it had been since Jan. 1, 1994. It provides:

It is the policy of this court that confidentiality agreements and protective orders are disfavored and should only be approved by the court when there is a genuine trade secret or privilege to be protected. Such agreements will not be recognized or approved by this court absent a particularized showing (document by document) that:

(a) Secrecy is in the public interest; and

(b) The proponent has a cognizable interest in the material, i.e. the material contains trade secrets, privileged information, or is otherwise protected by law from disclosure; and

•In any event, Div. Seven was obliged to make its own, independent determination as to the need, if any, for confidentiality in connection with the record provided to the Court of Appeal and the briefs filed in that court. The whole reason for the existence of the Court of Appeal is to examine error by trial judges, the assumption being that trial judges do, sometimes, err. Unquestioningly bowing to a trial judge’s determination as to the need for sealing records is, once those records are in the Court of Appeal, an abdication of the Court of Appeal’s responsibilities. Note should have been taken of the procedures for sealing records in the Court of Appeal prescribed in Champion v. Superior Court (1988) 201 Cal.App.3d 777.

•The sealing of the entire opinion in the case—an action urged by no party and supported by no case, statute, or court rule—should simply not have been done. To hide any facts from the public where there is not a compelling need to do so, to withhold the parties’ legal contentions, and to make secret rulings, was in derogation of NBC Subsidiary and outside the realm of reason. While the need to file a portion of an opinion under seal may conceivably arise, the filing of an entire opinion under seal is, I submit, preposterous.

And, given that many of the facts underlying the case have already appeared internationally in the press, the act of sealing the opinion in its entirety was all the more disturbing.

NON-EXISTENT COURTS — Maybe I’m being picky, but...is it really expecting too much for those who are connected with a court to know the name of the court?

I recently received a jury summons directing that I report at the “Beverly Hills Superior Court.” Recorded telephone instructions likewise identify the entity as the “Beverly Hills Superior Court.” There is, of course, a problem. No such court exists.

Art. VI, §4 of the state Constitution provides: “In each county there is a superior court of one or more judges.” The names of the counties in California are enumerated in Government Code §23012. Beverly Hills is not a county.

Pasadena, Santa Monica, and Compton aren’t counties, either. Nonetheless, there is often heard reference to the Pasadena Superior Court, the Santa Monica Superior Court, the Compton Superior Court, and so forth.

It’s bad enough that print and electronic journalists regularly refer to these non-existent courts. But for those within the court system to so misdesignate the courts certainly shouldn’t happen.

With the abolishment of municipal courts, there’s now one trial court in the county. It’s the Superior Court of the State of California for the County of Los Angeles or, simply, the Los Angeles Superior Court.

The court is divided into districts for administrative purposes. Local Rule 2.0(a) names the districts. One of them is the “West District, sitting in...Beverly Hills Courthouse” and other enumerated courthouses.

The Beverly Hills Courthouse formerly housed the Beverly Hills Municipal Court and one Superior Court department. It now contains six Superior Court courtrooms.

It’s not the home of the “Beverly Hills Superior Court.”

Los Angeles Superior Court Executive Officer/Clerk John Clarke would do well to issue a memo to members of his staff throughout the county letting them know the name of the court they serve. Official correspondence such as jury summonses should not make reference to non-existent courts.