Lund v. Lund CA2/4 ( 2022 )

Filed 2/2/22 Lund v. Lund CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not cer-
tified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been cer-
tified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
BRADFORD D. LUND, B309186
Appellant, (Los Angeles County
Super. Ct. Nos. BP129814, BP055495,
v. BP119204, BP119205, BP129815)
MICHELLE A. LUND et al,
Respondents.
APPEAL from an order of the Superior Court of Los Angeles County,
David J. Cowan, Judge. Affirmed.
Adkisson Pitet and Joseph P. Busch; Horne Slaton and Matthew
Monaco for Appellant.
Mitchell Silberberg & Knupp, Hayward J. Kaiser, Andrew C. Spitser
for Respondents.
Bradford Lund appeals from the denial of his motion to seal 11
documents filed in probate proceedings in the trial court. His appeal is the
latest in the long-running dispute regarding several multi-million dollar
trusts established for the benefit of appellant and his siblings, the
grandchildren of Walt and Lillian Disney. Appellant filed five appeals, one
for each trust at issue, from the court’s order denying his motion to seal.1
Appellant argued below that the documents at issue contained medical
information, as well as other sensitive details of his personal life, and
therefore that his right to privacy required their sealing. He also urged the
trial court to follow the decisions of an Arizona court, which had sealed
several of the documents as part of separate proceedings there. In denying
the motion to seal, the trial court concluded that while appellant had a right
to privacy in his medical information, he had not established that his right
overrode the presumption of public access to documents. In particular, the
court found that appellant put his mental capacity at issue in the probate
proceedings, allowed several of the exhibits to be publicly available for
several years, and otherwise failed to meet any of the requirements for
sealing the documents set forth in California Rules of Court, rule 2.550.2 The
court also found that appellant failed to provide sufficient evidence of the
Arizona sealing orders. As a result, the court found those orders had no
persuasive effect. We find no error in the trial court’s decision and therefore
affirm.
FACTS AND PROCEDURAL BACKGROUND
This litigation encompasses five probate cases corresponding to the five
trusts at issue. Respondents First Republic Trust Company (FRTC), L.
Andrew Gifford, Robert Wilson, and Douglas Strode are co-trustees of two
residuary trusts for the benefit of appellant and his twin sister, Michelle
Lund.3 FRTC is also the trustee for the Lillian B. Disney Trust fbo Bradford
1We granted appellant’s motion consolidated the appeals for the
purposes of briefing, argument, and disposition.
2 All further rule references are to the California Rules of Court unless
otherwise indicated.
3 We refer to members of the Lund family by first name for clarity
because they share a surname; no disrespect is intended.
2
D. Lund, and is the former trustee of two other trusts benefitting appellant
(the 1992 trust and the 1986 trust).
The residuary trust established for appellant’s benefit provided for
distributions of 20 percent of the then-remaining principal balance when
appellant reached ages 35, 40, and 45 (the birthday distributions). However,
the trust further provided: “Notwithstanding the foregoing, the Trustees
shall have the power to withhold any such distribution in the event that the
Trustees, in their discretion, determine that the child has not theretofore
demonstrated the maturity and financial ability to manage and utilize such
funds in a prudent and responsible manner” (the discretionary withholding
power). In June 2005, when appellant turned 35, the trustees unanimously
exercised the discretionary withholding power to withhold appellant’s 35th
birthday distribution.4
I. Prior Proceedings
A. Arizona Proceedings
In 2006, appellant (then age 36) filed a guardianship petition in
Arizona Superior Court seeking appointment of his father, William Lund;
stepmother, Sherry Lund; Sherry’s daughter, Rachel Schemitsch; and
appellant’s sister, Michelle, as his guardians (the 2006 Arizona proceeding).
Appellant later withdrew this petition.
In 2009, appellant’s aunt and two of his half-sisters filed a petition for
appointment of a guardian and conservator over appellant in Arizona
Superior Court (the 2009 Arizona proceeding). The Arizona court entered
judgment in favor of appellant in 2016. The Arizona Court of Appeal
affirmed the judgment. The appellate court opinion’s summary of the facts
from the trial in the 2009 Arizona proceeding included an admission by
appellant that he had developmental disabilities, and a statement from a
court-appointed neuropsychologist that appellant suffered “significant
cognitive deterioration” from 2003 to 2011.
4.Thetrustees subsequently decided to withhold appellant’s 40th and
45th birthday distributions when appellant reached the qualifying ages.
3
B. California Proceedings
1. 2013 trial and 2014 appeal
Appellant (then age 40) initiated these trust proceedings in California
in December 2010 when he filed a petition seeking to compel his 35th and
40th birthday distributions from his residuary trust and to remove the
current trustees. In July 2011, FRTC filed two petitions for instructions as
trustee of the 1986 and 1992 trusts, related to appellant’s purported attempt
to remove it and appoint a new trustee.
The petitions on the various trusts were tried simultaneously in a
bench trial before Judge Mitchell Beckloff in December 2013 (the 2013 trial).
The court issued a final statement of decision on June 3, 2014, finding, as
relevant here, that the trustees did not abuse their discretion in withholding
appellant’s 35th and 40th birthday distributions. The court found the
trustees introduced “substantial evidence ... to support their position” that at
the time of appellant’s 40th birthday, he “did not have the maturity and
financial ability to manage and utilize a substantial trust distribution.” In
particular, the court found it compelling that appellant himself contended he
was significantly impaired when he filed the guardianship petition in the
2006 Arizona proceeding, and that these limitations were echoed in a
declaration by appellant’s treating physician at the time. In addition, the
court cited evidence of ongoing concerns over appellant’s “worsening”
condition, as noted by William and other family members in 2009.
Appellant appealed from the probate court’s 2014 statement of decision
(the 2014 appeal). We affirmed the trial court’s ruling in our prior
unpublished opinion, First Republic Trust Company v. Lund (Dec. 6, 2017,
B258224) (nonpub. opn.) (Lund I). In our discussion, we summarized key
portions of the evidence adduced at trial related to the bases for the trustees'
decisions to deny appellant’s birthday distributions and the information
known to the trustees at the time of those decisions. We concluded that
substantial evidence supported the trial court’s determinations. We also
granted appellant’s motion to seal two exhibits—referred to here as exhibits
14 and 118.
4
2. OSC re GAL and potential settlement
Litigation over the trusts continued. In December 2018, the probate
court issued orders to show cause (OSCs) as to whether it should (1) appoint
a limited guardian ad litem (GAL) for appellant; and/or (2) remove or
suspend Sherry and financial advisor James Dew as co-trustees of the 1992
Trust. The parties filed responses to the OSCs. Respondents filed an
extensive set of supporting exhibits, including the documents at issue here.
On March 19, 2019, appellant filed a motion to seal multiple exhibits
included in respondents’ response to the OSCs.5 In the meantime, the
parties, along with Michelle, reached a global settlement agreement on April
8, 2019. The parties filed petitions for approval of the settlement agreement
on April 30, 2019; appellant also filed a petition to approve replacement
trustees.
In June 2019, the probate court held a hearing on the pending petitions
and issued a tentative ruling, expressing many concerns with the proposed
settlement. On September 27, 2019, the court granted in part the petitions
for approval of the settlement. The court continued the balance of the
petitions for approval, stating that “these petitions involve unresolved issues
with the fitness of the proposed trustees, Bradford’s capacity and best
interests, and the terms of the Settlement.” The court also appointed a
limited purpose GAL for appellant, citing its duty to ensure that the
settlement was in appellant’s best interest and its concerns as to appellant’s
limited capacity.
In early October 2019, appellant filed notice that the settlement
agreement was null and void due to the court’s rulings. He also filed
objections to the initial ruling and the further rulings. Between October and
December 2019, appellant filed multiple petitions for writ of mandate with
this court, including a challenge to the probate court’s appointment of the
GAL and partial approval of the settlement. We denied these petitions.
In November 2019, appellant appealed from the probate court’s
September 27, 2019 rulings. In an unpublished opinion, Lund v. First
Republic Trust Company (Jan. 30, 2020, B302634) (nonpub. opn.) (Lund II),
5This motion remained pending while the parties discussed settlement;
appellant ultimately filed a renewed motion in 2020, discussed further below.
5
we concluded that the trial court’s orders contained no final appealable
orders. We therefore dismissed the appeals.
3. Fifth amended petition
In February 2019, appellant filed a verified fifth amended petition “for
redress for breach of trust,” seeking orders (1) compelling the trustees to
make the prior birthday distributions6 “based upon reconsideration after
Arizona judgment”; (2) compelling the trustees to “distribute outstanding and
future sub-trust income”; (3) compelling an accounting; (4) removing all
trustees and appointing temporary trustees; and (5) surcharging the trustees
and reducing their compensation. He alleged that the Arizona court found
that he had “consistently demonstrated that he makes mature and
appropriate financial decisions,” and thus that “no reasonable exercise of
discretion by a trustee could deny Bradford his Birthday Distributions.” He
further alleged that the Arizona court found that he had established
“presently, in 2016, he is not incapacitated, an appointment of a guardian is
not necessary to provide for his demonstrated needs, and [his] needs are
currently being properly met by less restrictive means.”
II. Renewed Motion to Seal
Appellant filed a renewed motion to seal on March 25, 2020, again
seeking to seal exhibits 14, 22, 30, 40, 47, 48, 55, 83, 84, 89, and 118,7 filed by
respondents in support of their response to the court’s 2018 OSC. He
discussed the exhibits in the following two categories:
6 In addition to their prior denial of his 35th and 40th birthday
distributions, appellant alleged that respondents denied his 45th birthday
distribution in 2015.
7 Appellant’s motion at times also requested sealing of exhibit 77
(containing deposition excerpts), but at other times omitted that exhibit. The
trial court included exhibit 77 in its ruling denying the motion to seal.
Appellant has not listed exhibit 77 in his papers on appeal. We therefore
consider any argument regarding this exhibit forfeited. In any event, our
conclusion regarding exhibit 77 would be the same as the others presented
here.
6
The first category included exhibits 14, 22, 40, and 118, all of which
were introduced in the 2006 and/or 2009 Arizona proceedings.8 Exhibit 14 is
an April 10, 2006 investigative report filed in the 2006 Arizona proceeding by
Robert Segelbaum, a court-appointed investigator. Exhibit 22 is a November
30, 2009 letter by Dr. Drake Duane, filed in the 2009 Arizona proceeding.
Exhibit 40 is a May 17, 2011 investigative report by Segelbaum, filed in the
2009 Arizona proceeding. Exhibit 118 is a March 20, 2006 physician’s report
by Dr. Duane, filed in the 2006 Arizona proceeding.
Appellant argued that all four exhibits were sealed by the Arizona
courts and that he had established an overriding interest in having them
sealed in the instant action in order to “maintain[ ] the integrity of out-of-
state orders.” In support of his contention that the four exhibits had been
previously sealed in Arizona, appellant filed the declaration of his attorney,
Sandra Slaton, who stated that the exhibits “are all sealed documents in
Arizona.” Slaton’s declaration cited and attached three documents: (1)
Exhibit A, one page of the docket from the 2006 Arizona proceeding, with
entries indicating that certain documents were sealed; (2) Exhibit B, an order
entered in May 2011 in the 2009 Arizona proceeding, sealing a document
described only as “Investigator’s Report”; and (3) Exhibit C, a minute entry
from trial on April 1, 2016 in the 2009 Arizona proceeding, listing the
exhibits received in evidence by exhibit number (including a highlighted
entry for “Exhibit 9”) and ordering the day’s proceedings sealed.
The second category of exhibits included four excerpts of deposition
transcripts (exhibits 30, 47, 48, and 55) and three interrogatory responses by
appellant (exhibits 83, 84, and 89). Specifically, exhibit 30 is 20 pages of
excerpts from the 2010 deposition of appellant’s father, William, discussing
multiple topics. Exhibit 47 is six pages of excerpts from the 2012 deposition
of appellant’s step-sister, Schemitsch, including discussions of the house she
and her family share with appellant, how many bedrooms there are, the
expenses she covers, and work that she performs for appellant. Exhibit 48 is
over 50 pages of excerpts from the 2012 deposition of William. Exhibit 55 is a
8 In their response to the OSC, respondents lodged these four exhibits
conditionally under seal, stating that they were doing so in an abundance of
caution to allow appellant to move to seal them.
7
single page from William’s 2013 deposition, discussing certain services
performed by William and Sherry for appellant. Exhibits 83, 84, and 89 are
appellant’s responses to five special interrogatory requests, including
information regarding the trustees of one of appellant’s trusts, his financial
managers, and his powers of attorney. There is no indication in the record
that any of this evidence was designated as confidential at the time it was
produced.
Appellant argued that these seven exhibits should be sealed because
they contained “confidential, personal, and private information regarding Mr.
Lund that the public does not need access to.” In a single paragraph, he also
argued that he met the standard for sealing under rule 2.5509 because his
“right to privacy and the confidential nature of the information . . . overrides
all interest the public may have to access [the] documents” and “[t]here is a
substantial probability that Mr. Lund will be prejudiced by not sealing” the
exhibits. Appellant did not identify any particular portion of any document
to be sealed. Instead, he argued that the exhibits included “deposition
testimony regarding Mr. Lund, deposition testimony regarding Mr. Lund’s
alleged health status, answers to special interrogatories which reveal
information regarding a private trust,” and “other private and confidential
information” that “prejudicially implies a certain perception of Mr. Lund to
the public that, in all likelihood, will be defeated.”
In their opposition to the motion to seal, respondents argued that
appellant failed to satisfy his burden to justify sealing any of the exhibits.
They acknowledged that exhibits 14 and 118 were sealed by Judge Beckloff at
the conclusion of the 2013 trial10 and by this court in the 2014 appeal, and
therefore suggested that if the court “finds good cause” to seal those exhibits,
9 Pursuant to rule 2.550(d), the court may order a record sealed if it
finds that: “(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.”
10 The trial court also redacted its 2014 statement of decision in
conformance with this sealing.
8
respondents “would not oppose” their sealing in these cases. With respect to
exhibits 22 and 40, however, they contended that counsel for both parties
read portions of those exhibits into evidence during the 2013 trial and
appellant’s counsel publicly filed the exhibits as part of the record for the
2014 appeal, and therefore appellant could not claim an overriding privacy
interest in documents that had remained publicly available for over five
years. They also argued that appellant had not established any of the
requisite elements of rule 2.550 for any of the documents, including the
requirements that his sealing request was narrowly tailored and that there
were no less restrictive means to protect his privacy.
In reply, appellant argued that the release of his “personal, private
information would be prejudicial to only Mr. Lund,” and that an order sealing
exhibits 22 and 40 “is narrowly tailored to protect the medical opinions and
confidential investigator’s report” as “the least restrictive alternative.” As to
the deposition excerpts, he argued that the “information included in these
exhibits include[s] confidential trust information of one of Mr. Lund’s trusts
and testimony of witnesses regarding Mr. Lund.”
At the hearing on the motion to seal on September 3, 2020, appellant’s
counsel argued that appellant had not put his mental capacity at issue, but
even if he had, the materials should still be sealed because his medical
history was private. She did not identify any particular information, instead
citing appellant’s “private, sensitive medical information.” Respondents’
counsel argued that the records were presumed public and appellant had not
overcome that presumption based on his assertion of privacy, particularly in
a case involving a large trust that had a significant public interest. In reply,
appellant’s counsel argued that the trustees “should be ashamed of
themselves” for putting appellant’s medical records in the public file in order
to “keep embarrassing Mr. Lund and humiliating him every step of the way.”
At the conclusion of the hearing, the court took the motion under submission.
The court issued its ruling on September 16, 2020, denying the motion
to seal. Citing rule 2.550(d), the court noted that the “common law right of
access to public documents” was one that a party could overcome only by
showing “an overriding interest.” The court also found that “[t]he public has
9
greater interest in information critical to the Court’s decision while
minimally significant evidence can be more readily sealed.”
Turning to the specific exhibits, the court rejected appellant’s argument
that it should seal Exhibits 14, 22, 40, and 118 in reliance on prior sealing
orders in Arizona, finding that there were “substantial evidentiary
deficiencies in the record as to what records were actually sealed by the
Arizona court.” The court found that appellant did not provide any Arizona
sealing orders or protective orders clearly covering the exhibits at issue, and
neither the Arizona docket nor Slaton’s supporting declaration “are the best
evidence that a protective order exists. Brad does not claim the protective
orders for the 2006 reports are lost or inaccessible and has not offered any
excuse not to supply it.” The court further found that appellant failed to offer
authority establishing an interest in “maintaining the integrity of out-of-state
orders” as an “overriding interest” that would overcome the right of public
access. The court reasoned that appellant “has provided no context for the
Arizona court’s sealing order. . . . It would not be appropriate for the Court to
blindly follow an out-of-state order from nine years ago without any basis for
doing so.”
Although respondents did not dispute that Exhibits 14 and 118 were
sealed by the Arizona court, the court concluded that “because of the strong
presumption of public access and requirement that any sealing order be
narrowly tailored, the Court is required to independently scrutinize seal
requests.” The court also found that it was in a “much different position”
than the Arizona court regarding the sealing requests, because appellant ‘has
placed his own capacity at issue here by filing probate petitions challenging
[respondents’] refusal to make birthday distributions from the [trust], since
[respondents’] refusal was based on their determination that Brad was
incapable of handling the distributions.” As such, “[e]vidence relating to
Brad’s condition is immediately relevant to the issues he himself raised.”
The court also relied on the fact that appellant “publicly filed Exhibits
22 and 40 as part of his Appellant’s Appendix in his 2014 appeal . . . and
Brad’s counsel read excerpts from these exhibits at the 2013 Trial—which
transcripts have not been sealed.” Thus, appellant “clearly cannot maintain
10
that he has a ‘reasonable expectation of privacy’ for records he has left
accessible to the public for years with no effort to (re-)seal those records.”
The court also rejected appellant’s broad contention that all of the
exhibits contained “private” and/or “confidential” information, finding that
appellant did not “make any distinction between the exhibits sought to
sealed, much less identify ‘specific facts’ warranting sealing of these records.
The motion should be denied for that alone, as Brad has not made the
minimum requisite showing for sealing any record.” The court recognized
that a right to privacy could override the presumption of public access, but
only where “there is a substantial probability of prejudice to a privacy
interest of higher value than the public’s right of access to court records.” As
such, the court found it was required to “engage in a balancing analysis,
weighing the presumption of access against a variety of competing interests.”
The court recognized that appellant had a “legally cognizable privacy interest
in matters pertaining to his health status,” citing Oiye v. Fox (2012) 211
Cal.App.4th 1036, 1068 (Oiye). However, in this case, the court found that
this privacy interest did not outweigh the presumption of public access, given
that appellant had placed his health at issue “in his publicly filed probate
petitions and federal complaint and, insofar as the Birthday Distributions are
still at issue, his health continues to be a central issue in this action.”
Moreover, the court noted that the public had a “legitimate and heightened
interest in records pertaining to the administration of several large
testamentary trusts funded by and for Disney family members.”
The court also found that appellant failed to identify a cognizable
privacy interest in any of the other exhibits, “as he does not individually
discuss what should be kept private about these exhibits.” Moreover,
appellant failed to establish a substantial probability that his right to privacy
would be prejudiced absent sealing. Instead, the court found that appellant
“provided only ‘conclusory averments’ that ‘unspecified statements’ were
private and does not identify any specific or concrete consequences of these
records being public. These conclusory assertions do not establish prejudice.”
The court also rejected appellant’s motion as overly-inclusive, finding that
appellant also did “not attempt to narrowly tailor his request at all or show
that sealing is the ‘least restrictive means’ of protecting his interests.”
11
Notably, appellant “fail[ed] to identify any specific passages that contain
confidential information and instead makes conclusory averments that they
contain private information,” while seeking to seal the entire document.
Consequently “the Court cannot determine whether redactions would be a
viable alternative because the Court does not know what information Brad
considers private.”
Appellant timely appealed from the order denying his motion to seal.11
DISCUSSION
I. Requests for Judicial Notice
As an initial matter, both parties filed requests for judicial notice on
appeal, as well as oppositions to the other party’s request. Appellant
requested judicial notice of two Arizona court documents despite
acknowledging that they are not directly relevant to the motion to seal and
they were not part of the record below. Similarly, respondent requested
judicial notice of a series of articles and internet postings, none of which were
part of the record before the trial court.12 We deny these requests as they
seek judicial notice of irrelevant materials outside of the record. (See Malek
11 Orders concerning the sealing of documents are appealable as
collateral orders. (Oiye, supra, 211 Cal.App.4th at p. 1064.)
12 We note that both parties requested that we take judicial notice of
documents that were not before the trial court, and then chided the opposing
party for the same conduct. In addition, both parties engaged in pages of
hyperbolic mudslinging in their briefs. For example, appellant accuses
respondents of “systematic vindictiveness and hostility” against him and
engaging in “ad hominem personal attacks on Appellant, his family, and
anybody who stands with him.” For their part, respondents’ brief included a
lengthy introduction purporting to explain appellant’s “nefarious” intent in
seeking to seal documents as part of a “secrecy strategy” with the “ultimate
goal” of “sealing the entire record.” These statements are neither supported
by citations to the record nor relevant to this appeal. Indeed, in their
opposition to appellant’s request for judicial notice, respondents admitted
their introduction was merely “contextual background,” and it was therefore
unnecessary for appellants to get “bogged down” in a “fruitless frolic and
detour” by attempting to refute respondents’ claims. The parties are ill-
served by this conduct—it wastes the court’s time, contributes to increasingly
bloated briefing as each party responds to irrelevant accusations lodged by
the other, and distracts from the actual issues at hand.
12
Media Group LLC v. AXQG Corp. (2020) 58 Cal.App.5th 817, 825 [“Any
matter to be judicially noticed must be relevant to a material issue.”], citing
People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2;
Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3
[“Reviewing courts generally do not take judicial notice of evidence not
presented to the trial court. Rather, normally ‘when reviewing the
correctness of a trial court’s judgment, an appellate court will consider only
matters which were part of the record at the time the judgment was
entered.’”], quoting Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800,
813.)
Respondent also requested judicial notice of a portion of the appellant’s
appendix in the 2014 appeal. Appellant does not oppose this request. We
grant respondent’s request regarding the record of the 2014 appeal.
II. Standard of Review
Appellant contends we should apply a de novo standard of review
because his appeal involves errors of law. We disagree. Appellant has not
identified any legal errors that require independent review. Although he
contends that the trial court “ignor[ed] the holding” in Oiye, supra, 211
Cal.App.4th 1036, regarding his right to privacy of medical information, the
record does not support this characterization of the issues on appeal. The
trial court explicitly recognized appellant’s “legally cognizable privacy
interest in matters pertaining to his health status,” citing Oiye, but concluded
appellant had not established that this interest outweighed the public’s
interest in access to court records, nor had appellant met any of the
additional requirements for sealing under rule 2.550.
We similarly reject appellant’s contention that the trial court “ignored
the Full Faith and Credit Clause,” when it refused to adopt the Arizona
court’s sealing orders. Rather, the trial court found appellant failed to
establish the existence or bases of those orders—an evidentiary conclusion,
not a legal one. Finally, whether appellant waived his right of privacy by, for
example, publicly filing some of the exhibits at issue is a “factual question,
tested on appeal under the substantial evidence rule.” (Savaglio v. Wal-Mart
Stores, Inc. (2007) 149 Cal.App.4th 588, 598 (Savaglio) [reviewing trial
13
court’s determination of waiver of right to seal where party previously
publicly filed documents].)
Thus, we review the trial court’s factual findings regarding the sealing
requirements for substantial evidence, and the trial court’s denial of the
motion to seal for an abuse of discretion. (See Overstock.com, Inc. v. Goldman
Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 492 (Overstock) [“we review
the ultimately discretionary decision to deny sealing by inquiring whether
substantial evidence supports the trial court’s express or implied findings
that the requirements for sealing are not met”]; see also Oiye, supra, 211
Cal.App.4th at p. 1067 [reviewing “the trial court’s decision to order the
documents sealed under the abuse of discretion standard, and any factual
determinations made in connection with that decision will be upheld if they
are supported by substantial evidence”].)
III. Analysis
A. Legal Framework
The public has a First Amendment right of access to civil litigation
documents filed in court and used at trial or submitted as a basis for
adjudication. As articulated in NBC Subsidiary (KNBC–TV), Inc. v. Superior
Court (1999) 20 Cal.4th 1178, 1210, “the public has an interest, in all civil
cases, in observing and assessing the performance of its public judicial
system, and that interest strongly supports a general right of access in
ordinary civil cases.” As a result, there is a strong presumption in favor of
public access to substantive courtroom proceedings in ordinary civil cases,
and the transcripts and records pertaining to these proceedings. (Id. at pp.
1212, 1217.)
These First Amendment principles are embodied in California’s “sealed
records rules,” rules 2.550 and 2.551. (See Overstock, supra, 231 Cal.App.4th
at p. 486; Savaglio, supra, 149 Cal.App.4th at pp. 596-597.) Under these
rules, 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.” (Rule 2.551(b)(1).)
The “court must not permit a record to be filed under seal based solely
on the agreement or stipulation of the parties.” (Rule 2.551(a).) The court
14
may order a record sealed only if it finds that: “(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.” (Rule
2.550(d).)
B. Exhibits 14, 22, 40, and 118
Appellant devotes much of his opening brief on appeal to arguing that
he has a constitutional right to privacy over his personal medical and
financial information. But this right is not in dispute—both respondents and
the trial court recognized appellant’s right to privacy and that his right
implicated at least portions of the Arizona 2006 and 2011 investigative
reports (Exhibits 14 and 40), as well as the 2009 letter and 2006 report from
appellant’s physician, Dr. Duane (Exhibits 22 and 118).13 Appellant contends
that the sealing analysis should end there because the “Oiye holding applies
as a matter of law,” meaning that the privacy of one’s medical information
outweighs the public’s right of access in every instance. This contention is
belied by the language of Oiye itself.
In Oiye, supra, 211 Cal.App.4th at p. 1044, the plaintiff brought a tort
action alleging that the defendant sexually molested her from age 12 to 21.
She sought an injunction related to the defendant’s assets; in opposition, the
defendant attached the plaintiff’s 52-page personal diary, which she wrote
while undergoing inpatient medical treatment following the molestation. (Id.
at p. 1046.) The plaintiff moved to seal exhibits, including two of her medical
records and the journal, stating that she did not know how the defendant
obtained her records and would suffer “embarrassment and distress” at
having those records made public. (Id. at pp. 1062-1063.) The court granted
the sealing motion and the defendant appealed. (Ibid.) The appellate court
recognized “‘that a person's medical history, including psychological records,
13It was similarly undisputed that appellant’s individually identifiable
medical information is presumed confidential under California‘s
Confidentiality of Medical Information Act (Civ. Code § 56 et seq.). (See
Oiye, supra, 211 Cal.App.4th at p. 1068.)
15
falls within the zone of informational privacy protected’ by the state and
federal Constitutions,” but also acknowledged that “[p]rivacy concerns are not
absolute [and] must be balanced against other important interests.” (Id. at
pp. 1068, 1070, quoting Hill v. National Collegiate Athletic Assn. (1994) 7
Cal.4th 1, 37.) On balance, the court concluded “that the public’s general
right of access to court records recognized in rule 2.550 must give way to the
public’s concern about the privacy of medical information in this case,
particularly when the information appears so tangentially related to the
litigation.” (Id. at p. 1070, italics added.) This discussion makes clear that
the Oiye court balanced the relevant factors under the circumstances
presented, and concluded that the trial court had not abused its discretion in
sealing the documents. It does not follow that the trial court was required to
do the same under different facts simply because a privacy right was raised.14
Moreover, as we previously indicated, we reject appellant’s suggestion
that the trial court “ignored” the holding in Oiye. The trial court
acknowledged appellant’s privacy right, but found that it was outweighed in
the circumstances in this case. We do not find that determination was an
abuse of discretion. Unlike in Oiye, supra, 211 Cal.App.4th at p. 1070, where
the court found the plaintiff’s personal diary was only tangentially related to
the defendant’s “opposition to a preliminary injunction long since granted,”
14 During oral argument on appeal, appellant’s counsel contended that
rule 2.550 did not apply because rule 2.550(a)(2) exempts “records that are
required to be kept confidential by law.” He argued that the records at issue
here qualified because they were medical records and also had been deemed
confidential by Arizona courts. Appellant raised this argument for the first
time in his reply brief, and even then it was limited to a single reference
during his discussion of the Full Faith and Credit Clause of the United States
Constitution. Appellant has not shown good cause for his failure to timely
raise this argument; we therefore deem it forfeited and will not consider it.
(See, e.g., Kinney v. Vaccari (1980) 27 Cal.3d 348, 356, fn. 6 [“An appellate
court is not required to consider any point made for the first time at oral
argument.”]; People v. Clayburg (2012) 211 Cal.App.4th 86, 93 [“Withholding a
point until the reply brief deprives the respondent of an opportunity to
answer it. . . . Hence, a point raised for the first time therein is deemed
waived and will not be considered, unless good reason is shown for failure to
present it before.”] (citations omitted).)
16
here, the trial court found that appellant’s medical records were directly
relevant because he had put his capacity at issue. In his fifth amended
petition, as he had in previous petitions, appellant alleged that the trustees
improperly denied his birthday distributions based on a finding that he
lacked the mental capacity to manage the funds when the evidence (and the
findings of the 2009 Arizona proceeding) demonstrated otherwise. As such,
evidence related to appellant’s mental capacity was directly relevant to the
allegations of the fifth amended petition, as well as to the court’s OSC
regarding appointment of a GAL, which appellant had vigorously opposed.
Although appellant had a legitimate privacy interest in these records, the
court determined that interest did not overcome the countervailing interest of
public access, given the material relevance of the evidence and the
heightened interest “when probate involves a large estate with on-going long-
term trusts.” (Estate of Hearst (1977) 67 Cal.App.3d 777, 784.) Appellant
fails to establish that the court abused its discretion in determining that the
balance of interests fell in favor of continued public access here.
Additionally, the trial court found that appellant could not establish a
reasonable expectation of privacy as to exhibits 22 and 40, which were
included as exhibits in the 2013 trial and which appellant publicly filed as
part of his appendix in the 2014 appeal.15 Consequently, those exhibits have
remained publicly available for over nine years. Respondents also point out
that appellant publicly filed Exhibit 118 in the instant appeal as part of his
appendix (attached as an exhibit to his 2006 Arizona guardianship petition).
Appellant’s suggestion that these documents are not fully part of the public
record because they are not “readily available to the public online,” and make
up a small portion of a large appellate record is unsupported by any
authority. There is no indication in the record that appellant has made any
attempt to seal these documents in the interim.
Moreover, discussion of appellant’s mental capacity is present in varying
degrees throughout these cases, in many publicly available documents,
15Appellant asserts that the trial exhibits were returned to the parties
following trial in 2013. However, the transcripts were not sealed and any
portion of the exhibits read into the record or discussed by witnesses
therefore remains available.
17
including our prior opinion in the 2014 appeal and the decisions by the
Arizona courts. Although appellant successfully moved to seal exhibits 14
and 118 in the 2014 appeal, he did not seek to seal exhibits 22 or 40; he has
not articulated what information in exhibits 14 and 118 retains an
expectation of privacy because, for example, it has not been made public in
subsequent exhibits or in any of the other myriad places where his mental
capacity has been discussed. Consequently, we find no error in the trial
court’s conclusion that appellant acted inconsistently with an intent to
protect his privacy rights. (See Savaglio, supra, 149 Cal.App.4th at pp. 600–
601 [“Wal–Mart's conduct was so inconsistent with an intent to enforce its
rights to obtain sealed records under the Rules of Court as to induce a
reasonable belief that it had relinquished such right.”].)16
Appellant also contends the court erred in rejecting his request to
afford “full faith and credit” to the Arizona court orders sealing exhibits 14,
22, 40, and 118. The trial court found that appellant failed to provide
sufficient evidence to prove which exhibits were sealed by the Arizona court
or the basis justifying the sealing. We agree. Appellant did not provide the
Arizona court orders on which he relied, and offered no explanation for his
failure to do so. Instead, he attached a docket sheet, an order sealing an
unspecified “investigator’s report,” and the minutes from trial admitting
“exhibit 9” (not otherwise identified) and sealing that day’s proceedings. We
find no error in the trial court’s conclusion that this evidence was insufficient
to establish that the Arizona court sealed the same documents appellant
seeks to seal here. Appellant’s assertion that he is not required under rules
2.550 and 2.551 to “submit the original or properly authenticated versions” of
a court order misses the point. The sealing rules require that appellant
16Citing Savaglio, supra, 149 Cal.App.4th at pp. 599-600, appellant’s
counsel asserted during oral argument that appellant--as the ”holder” of his
privacy right--could not have waived that right due to actions performed by
his counsel, such as publicly filing documents. Appellant has raised this
contention for the first time at oral argument and has therefore forfeited it.
(See Kinney v. Vaccari, supra, 27 Cal.3d at p. 356, fn. 6.) Moreover, the
Savaglio court found that Wal-Mart had waived its right to move to seal
documents because its counsel had publicly filed them in an earlier writ
proceeding. (Savaglio, supra, 149 Cal.App.4th at pp. 599-600.)
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submit “facts sufficient to justify the sealing.” (Rule 2.551(b)(1).) By failing
to submit the court orders upon which he relies, he failed to satisfy this
requirement.
Moreover, even if appellant proved that the Arizona court sealed the
exhibits as he contends, the trial court rejected appellant’s argument that
this established an overriding interest requiring their sealing in this case.
We agree. Appellant cites no authority establishing an overriding interest
based on orders entered in different proceedings (guardianship and
conservatorship), under the sealing laws of a different state, made more than
a decade ago, or how that interest would be prejudiced absent sealing in
these California probate matters.
The record also supports the trial court’s conclusion regarding
appellant’s failure to meet the remaining elements of rule 2.550 for exhibits
14, 22, 40, and 118. Appellant made no attempt to demonstrate that the
proposed sealing was narrowly tailored or that no less restrictive means
existed to protect his privacy. The court was within its discretion to reject
appellant’s motion for this reason as well.
C. Exhibits 30, 47, 48, 55, 83, 84, and 89
As for the remaining exhibits, which are made up of 75 pages of
deposition excerpts and interrogatory responses, we agree with the trial
court’s conclusion that appellant failed to establish any of the requirements of
rule 2.550. Appellant argues that these exhibits “contain intimate details of
[his] private life” and “other confidential information” without further
elaboration. He has not identified any particular portions of this mass of
exhibits that would give rise to an overriding interest. Nor has he previously
designated these documents as confidential or otherwise acted consistently
with an understanding that they were private. Rather, as respondents point
out, portions of the depositions were played at the 2013 trial.
Moreover, appellant again has made no attempt to show how his
request is narrowly tailored or the least restrictive means available. As the
trial court pointed out, appellant “fails to identify any specific passages that
contain confidential information and instead makes conclusory averments
that they contain private information,” while seeking to seal the entire
exhibits, including a 53 page deposition excerpt from appellant’s father
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covering a wide range of topics. This cannot satisfy appellant’s burden to
demonstrate a right to seal. (See Overstock, supra, 231 Cal.App.4th at p. 500
[“the trial courts can, and should, view overly inclusive sealing efforts with a
jaundiced eye”].)
Appellant also relies on Overstock, supra, 231 Cal.App.4th 471, for the
proposition that these exhibits “should be sealed for good cause” because
“there are large portions which are irrelevant and uncited.” Putting aside the
issue that appellant failed to identify any such portions of any exhibit, the
holding of Overstock does not assist him here. Overstock involved a request to
seal an enormous volume of documents filed in connection with a motion for
summary judgment, all of which had been designated as confidential under
the parties’ protective order, but thousands of pages of which had not been
referenced in the summary judgment papers. The court concluded that “the
trial court could have stricken thousands of pages of the confidential
discovery materials plaintiffs submitted but never referenced” or,
alternatively, could have found good cause to place them under seal given
their lack of relevance to the issues at hand. (Id. at p. 500.) Here, appellant
did not designate the exhibits at issue as confidential at the time they were
produced in this case, nor did appellant seek to strike them as irrelevant
below. He cannot now rely on Overstock to seal these exhibits.
DISPOSITION
The order denying the motion to seal is affirmed. Respondents are
awarded their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J. CURREY, J.
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