Peebles v. Simmons Hanly Conroy CA2/7 ( 2023 )

Filed 10/13/23 Peebles v. Simmons Hanly Conroy CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for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 SEVEN
SCOTT PEEBLES, B318822
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. 20STCV18513)
SIMMONS HANLY CONROY LLC,
Defendant and Appellant,
J-M MANUFACTURING
COMPANY, INC.,
Movant and Appellant.
APPEALS from an order of the Superior Court of
Los Angeles County, Armen Tamzarian, Judge. Affirmed.
Jenner & Block, Kirsten H. Spira, Matthew S. Hellman and
Kristen Green for Defendant and Appellant.
Bryan Cave Leighton Paisner, John W. Amberg; Goldberg
Kohn, Frederic R. Klein and Kerry D. Nelson for The Association
of Professional Responsibility Lawyers as Amicus Curiae on
behalf of Defendant and Appellant.
Manning Gross + Massenburg, Carrie S. Lin; Miller
Barondess and Nadia A. Sarkis for Movant and Appellant.
Shook Hardy & Bacon and Patrick J. Gregory for Coalition
for Litigation Justice, Inc.; Eimer Shahl, Robert E. Dunn and
Florence Liu for Chamber of Commerce of the United States of
America; ArentFox Schiff and Jeffrey D. Skinner for DBMP LLC
as Amici Curiae on behalf of Movant and Appellant.
Wagstaff, von Loewenfeldt, Busch & Radwick and Michael
von Loewenfeldt for Plaintiff and Respondent.
__________________________
Attorney Scott Peebles sued his former law firm, Simmons
Hanly Conroy LLC (Simmons), for wrongful termination, alleging
he was fired after reporting to his supervisor that the firm had
committed legal and ethical violations while representing
plaintiffs in asbestos litigation. Peebles’s original and first
amended complaints were heavily redacted. He neither lodged
nor filed unredacted versions of those documents and never
moved for a sealing order. However, during the litigation
Simmons obtained an order to seal the superior court case
number of a lawsuit that had been publicly disclosed and that
purportedly had some connection to Peebles’s allegations.
Peebles and Simmons settled Peebles’s lawsuit. After the
case was dismissed with prejudice, J-M Manufacturing Company,
Inc. (J-M), a defendant in asbestos cases in which Simmons has
represented the plaintiffs, moved to have the trial court require
Peebles to publicly file the previously unfiled unredacted versions
of the pleadings and to unseal the sealed asbestos case number.
2
The trial court denied the first request, an order J-M appeals,
and granted the second, which Simmons appeals. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Peebles’s Initial Pleadings and Attempt To File a Second
Amended Complaint Under Seal
Simmons hired Peebles in June 2016 as a trial attorney to
handle asbestos-related personal injury and wrongful death
cases. In his lawsuit Peebles alleged that he was assigned to a
case in which he believed the firm had committed serious
misconduct during its representation of the plaintiff and that he
had been asked to participate in further unlawful and unethical
activities. Peebles identified various rules and statutes Simmons
had allegedly violated, including provisions of the Rules of
Professional Conduct and the Business and Professions and
Penal Codes. Peebles declined to participate in unlawful and
unethical conduct and disclosed the violations to his supervisor.
According to Peebles, Simmons terminated his employment in
retaliation.
Peebles sued Simmons in May 2020 alleging causes of
action for retaliation and wrongful termination and seeking a
declaration for payment of wages due. He redacted 33 of the
104 paragraphs in his complaint, as well as portions of other
1
paragraphs. In a footnote Peebles explained, “[A]n effort will be
made to file certain portions of this Complaint, under seal,
thereby providing an unredacted version to the Court. This will
be done, out of an abundance of caution, so as to ensure
compliance with the California Rules of Professional Conduct.
1
It appears from context that the redacted material recited
details of the allegedly unlawful or unethical conduct.
3
Plaintiff does not concede that any of Plaintiff’s allegations
contain protected attorney client, privileged, information.”
Notwithstanding this statement, Peebles did not lodge (or file) an
unredacted version of his complaint and never filed a motion to
seal.
Approximately one month later Peebles filed a first
amended complaint, which added causes of action for intentional
misrepresentation and intentional infliction of emotional distress.
The complaint described three cases on which Peebles had
worked: A “Case” he worked on that he “was able to bring . . . to
resolution, before trial”; “another trial which he had also been
assigned to . . . [that] resolved just before trial”; and an appeal.
As he had done in the original complaint, Peebles redacted many
full paragraphs (32 of the 124 paragraphs) and portions of other
paragraphs and explained he would try to file under seal an
unredacted version of the pleading with the court without
conceding any of the redactions contained privileged information.
Peebles never lodged (or filed) an unredacted version of the first
amended complaint and never filed a motion to seal.
Nine days after filing his first amended complaint Peebles
moved for leave to file a second amended complaint and an order
to file the complaint under seal. Peebles’s counsel stated, “The
[publicly] filed SAC will be identical to the FAC, but the SAC
conditionally filed under seal will reveal the previously redacted
portions of the FAC.” Counsel also explained, “The additional
facts Plaintiff wishes to add to the SAC [by removing the
redactions] detail dates, events, and conduct” in order “to give
[the court] more factual detail in support of Plaintiff’s causes of
action.” Peebles had not moved sooner to file a sealed version of
his complaint, counsel continued, because of the Covid-19
4
pandemic and the inability to physically lodge a copy of the
unredacted complaint with the court. Counsel reiterated that
Peebles did not “concede that all redacted facts are subject to
attorney-client, attorney work-product or other privileges, but out
of an abundance of caution, Plaintiff redacted facts that could
potential[ly] reveal the identity of the client or the Case, which in
part, give rise to his various claims.” Peebles lodged an
unredacted copy of the proposed second amended complaint with
the court. Prior to filing his motion Peebles served Simmons with
unredacted copies of the original and first amended complaints.
Simmons opposed the motion for leave to file a second
amended complaint and order to file under seal. Having
reviewed the unredacted versions of the prior iterations of the
complaint, Simmons argued the proposed second amended
complaint contained attorney-client communications, legal advice
and client secrets. An attorney for Simmons submitted a
declaration on information and belief asserting that the “Adult
Child of the Plaintiff’s lawsuit . . . indicated to [Simmons] that it
wishes to assert the [lawyer-client] privilege.” Simmons
requested that, if the court granted leave to file a second
amended complaint, it seal the entirety of the factual allegations
sections in all three versions of the complaint.
On July 30, 2020 the trial court denied Peebles’s motion to
file a second amended complaint without prejudice. The court
also denied Peebles’s application to seal the complaint and
instructed Peebles to pick up the sealed documents he had lodged
with the court.
5
2. The Demurrer to the First Amended Complaint and
Disclosure and Subsequent Sealing of the Asbestos Case
Number
On August 3, 2020 Simmons demurred to the first amended
complaint. Simmons summarized the allegations contained in
the complaint, noting it was referring to “only those specific dates
disclosed in the public, unredacted portions of [the] FAC. Thus,
to the extent a specific date is not mentioned herein, it is because
the FAC does not publicly disclose it.” Simmons contended in
part that the complaint must be dismissed because the law firm
could not defend itself without violating the lawyer-client
privilege and duty of confidentiality. Peebles opposed, arguing in
part that Simmons was improperly requesting the court “to make
a premature judgment about facts that may or may not be
introduced, at a later time” and that he could prove his case
without violating the lawyer-client privilege. The court overruled
the demurrer.
At the September 9, 2020 hearing on the demurrer, in
response to a question from the court, counsel for Simmons
identified the case number of a pending asbestos lawsuit that
counsel described as “the case in which [Peebles] is claiming that
2
there was [perjured] testimony.” Following the hearing the trial
court issued an order to show cause regarding the parties’
obligations to file a notice of related case as to the asbestos case.
Simmons filed an ex parte application five days later seeking to
seal all references to the case number. Simmons argued the case
2
The September 9, 2020 hearing transcript is not part of the
appellate record. Our description is based on the parties’ filings
relating to Simmons’s application to seal all references to the
asbestos case number.
6
number was protected by the lawyer-client privilege because the
number was a “public connection[]” between the allegations in
Peebles’s lawsuit and the asbestos lawsuit.
On September 15, 2020 the court granted Simmons’s
application to seal the asbestos case number. Although the
proposed order submitted by Simmons included specific findings
of fact to support sealing the case number, the order signed by
the court omitted any findings. Instead, the order stated good
cause existed to seal the asbestos case number, recited the factors
required to seal a document under California Rules of Court,
3
rule 2.550(d) and sealed (1) the reference to the asbestos case
number at page six of the court’s September 9, 2020 minute
order; (2) the references to the asbestos case number on the
court’s case docket and register of actions; (3) any references to
the asbestos case number in any public filing between the time of
Simmons’s application to seal and the date of the order; and
(4) the transcript of the September 9, 2020 hearing.
3. Peebles’s Second Amended Complaint and Settlement of
the Lawsuit
Peebles filed a second amended complaint on September 21,
2020 without seeking a sealing order.4 Simmons demurred to one
of the five causes of action alleged and thereafter answered the
complaint and filed a cross-complaint. Peebles and Simmons
settled the case on June 25, 2021, and it was dismissed with
prejudice on September 23, 2021.
3
Subsequent references to rule or rules are to the California
Rules of Court.
4
The record on appeal does not include a copy of this
pleading.
7
4. J-M’s Efforts To Unseal the Asbestos Case Number and
the Original and First Amended Complaints
Two months after Peebles’s lawsuit was dismissed, J-M
filed an ex parte application to unseal the asbestos case number
and Peebles’s original and first amended complaints. J-M
contended the September 15, 2020 order sealing the case number
was defective because it lacked supporting factual findings and
Peebles’s failure to obtain orders to file his original and first
amended complaints under seal required that he file unredacted
versions of those pleadings. In its application J-M explained it
had determined through the publicly available descriptions of the
procedural posture of the case referred to in Peebles’s pleadings
that the sealed case number was for a lawsuit J-M had settled in
August 2019.
Simmons opposed the application, contending the trial
court had properly sealed the asbestos case number. Simmons
also argued the court could not grant the relief requested
concerning Peebles’s complaints because the documents had not
been filed under seal and the court had never been in possession
of unredacted versions of them. Peebles also opposed, asserting,
because his case had been dismissed, the trial court lacked
jurisdiction to grant relief to J-M.
The court on January 19, 2022 granted J-M’s motion in
part, unsealing the asbestos case number. The court explained
that Simmons had not established an overriding interest in
maintaining the case number under seal because the number was
at most a “clue” that “could possibly lead to the discovery of
unproven and disputed allegations about the nature or character
of client confidences or privileged communications—not their
actual content.” Also, the court reasoned, because J-M had
8
figured out the case number, “[k]eeping it sealed now would be
futile.”
The court denied J-M’s request for an order directing
Peebles to file unredacted copies of his complaints. The court
emphasized the complaints had been redacted, not sealed. In
addition, “The court never considered the unredacted version [of
the complaints] in adjudicating this case.” The court observed, if
Peebles had unsuccessfully moved to seal his complaints, the
result would have been the same—the redacted versions would
have remained on file and the unredacted versions would have
never become part of the court’s record. Alternatively, the court
ruled, even if it had the authority to order Peebles to produce the
unredacted complaints, it declined to exercise its discretion to do
so. Because Peebles had redacted the complaints due to “valid
concerns that the unredacted text may reveal confidential
information that he had a duty to protect,” ordering Peebles to
disclose the complaints was not appropriate.
Simmons and J-M have each appealed from portions of the
January 19, 2022 order.5
DISCUSSION
1. Governing Law
The right to access court proceedings and court documents
is rooted in the First Amendment. (NBC Subsidiary (KNBC-TV),
Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1208, fn. 25;
accord, In re Marriage of Tamir (2021) 72 Cal.App.5th 1068,
1078; In re Marriage of Nicholas (2010) 186 Cal.App.4th 1566,
1575.) “‘A strong presumption exists in favor of public access to
5
The order unsealing the asbestos case number has been
stayed pending resolution of this appeal.
9
court records in ordinary civil trials. [Citation.] That is because
“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.”’” (In re Marriage of Tamir, at p. 1078.)
Rules 2.550 and 2.551 codify these principles and provide
for ongoing judicial scrutiny to ensure sealing orders do not
violate the public’s right of access. Court records are presumed
open unless confidentiality is required by law. (Rule 2.550(c).)
No record may be filed under seal without a court order, and a
party seeking such an order must file a motion or application
with the court and serve the parties. (Rule 2.551(a) & (b).) The
moving party must publicly file a redacted version and lodge an
unredacted version conditionally under seal with the court.
(Rule 2.551(b)(1).)
The trial court may order that a record be filed under seal
only if it expressly finds facts establishing the existence of an
“overriding interest” that outweighs the public’s right to access
the record, where there is a “substantial probability” that the
interest will be prejudiced absent sealing. (Rule 2.550(d)(1)-(3).)
The proposed sealing must be narrowly tailored, and there must
be no “less restrictive means” to achieve the overriding interest.
(Rule 2.550(d)(4) & (5).) The Advisory Committee Comment to
rule 2.550 explains, “[V]arious statutory privileges, trade secrets,
and privacy interests, when properly asserted and not waived,
may constitute ‘overriding interest.’” The court’s order sealing a
record must “[s]pecifically state the facts that support the
findings” (rule 2.550(e)(1)(A)) and “[d]irect the sealing of only
those documents and pages, or, if reasonably practicable, portions
of those documents and pages, that contain the material that
10
needs to be placed under seal. All other portions of each
document or page must be included in the public file.”
(Rule 2.550(e)(1)(B).)
If the court denies a motion or application to seal, the
moving party may notify the court, within 10 days of the order,
that the lodged record is to be filed unsealed. (Rule 2.551(b)(6).)
If the moving party does not do so, the clerk must return the
physically lodged record to the moving party or permanently
delete the electronically lodged record. (Ibid.)
“Since orders to seal court records implicate the public’s
right of access under the First Amendment, they inherently are
subject to ongoing judicial scrutiny, including at the trial court
level,” even after the conclusion of case. (In re Marriage of
Nicholas, supra, 186 Cal.App.4th at p. 1575.) Rule 2.551(h)
authorizes parties and nonparties to move to unseal a record.
(See Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014)
231 Cal.App.4th 471, 489 [“‘[b]y allowing a member of the public
to file a motion to unseal records, rule 2.551(h) provides a
mechanism for third parties to correct overbroad or
unsubstantiated sealing orders’”].)
In evaluating a motion to unseal records, the court
considers the same factors it does when determining whether a
record should be sealed, including whether an overriding interest
overcomes the right to public access to the record and whether
the sealing order is narrowly tailored. (Rule 2.551(h)(4).) The
order unsealing a record must state whether the record is
unsealed entirely or in part. (Rule 2.551(h)(5).)
11
2. The Trial Court Did Not Err in Unsealing the Asbestos
Case Number
An order unsealing documents “is the functional equivalent
of denying a motion to seal them.” (In re Providian Credit Card
Cases (2002) 96 Cal.App.4th 292, 302.) “[W]e 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.”
(Overstock.com, Inc. v. Goldman Sachs Group, Inc., supra,
231 Cal.App.4th at p. 492; see People v. Jackson (2005)
128 Cal.App.4th 1009, 1020; In re Providian Credit Card Cases,
at pp. 302-303.)
Simmons contends the asbestos case number must be kept
confidential as a matter of law because it is protected by the
lawyer-client privilege and by a lawyer’s duty of confidentiality.6
6
Simmons also contends the requirements for sealing under
rule 2.550 do not apply to the case number because, as lawyer-
client privileged information, it is confidential as a matter of law.
(See rule 2.550(a)(2).) The statutory lawyer-client privilege,
which may be waived by the holder of the privilege, is properly
considered in determining whether an “overriding interest” in
sealing exists (see rule 2.550, Advisory Committee Comment),
but does not automatically justify a sealing order. (Cf. General
Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1191
[describing sealing or protective orders and in camera
proceedings as methods “to permit the attorney plaintiff to
attempt to make the necessary proof while protecting from
disclosure client confidences”].) Simmons acknowledged as much
in its ex parte application to seal the asbestos case number.
Indeed, having successfully invoked rule 2.550 to seal the case
number, Simmons is now judicially estopped from taking the
position the sealing rules do not apply. (See New Hampshire v.
12
Simmons at least implicitly recognizes the case number by itself
is neither privileged nor confidential but argues the case number
here, when coupled with the allegations in Peebles’s complaint,
has become protected information and must remain sealed
because of the overriding interest in preventing disclosure of
privileged lawyer-client communications. Unsealing, Simmons
claims, would cause it and its client “enormous prejudice”
because the only way to defend against Peebles’s allegations is by
disclosing privileged information.7
None of Simmons’s arguments is well taken. As a
threshold matter, the September 15, 2020 order sealing the case
number is defective. As discussed, the trial court failed to state
any factual findings to support sealing the number as required by
rule 2.550(e). Simmons largely ignores this fatal facial defect in
its briefs in this court. Having drafted a proposed order that
included findings of fact, Simmons was obviously aware that
those findings were necessary. Yet Simmons never moved to
amend the order or otherwise cure the defect while the wrongful
termination case was pending. A defective order cannot support
continued sealing of the case number. (See Overstock.com, Inc. v.
Goldman Sachs Group, Inc., supra, 231 Cal.App.4th at p. 487
Maine (2001) 532 U.S. 742, 750-751; Minish v. Hanuman
Fellowship (2013) 214 Cal.App.4th 437, 449.)
7
Although, as noted, the trial court’s order unsealing the
case number has been stayed, that number is included in J-M’s
respondent’s brief, one of the amicus briefs and J-M’s ex parte
application to unseal and supporting points and authorities in
the trial court, which are part of the clerk’s transcript. No party
has moved to seal that material or otherwise acted to ensure the
case number was not revealed in this court. (See rule 8.46(b)-(d).)
13
[“[i]f the trial court fails to make the required findings, the order
is deficient and cannot support sealing”].)
Even if the initial order were proper, substantial evidence
supports the trial court’s subsequent order unsealing the case
number. Simply put (and consistent with common sense), the
number assigned to a case does not reveal any lawyer-client
communications or confidential information, even here when
considered with the allegations in Peebles’s complaint. Because
nearly all the factual allegations supporting Peebles’s various
claims were redacted, the complaints asserted ultimate facts and
legal conclusions without revealing any client confidences. Based
on the legal and ethical violations alleged, one could certainly
speculate about the communications that had been exchanged
between counsel and client. But that type of unsupported
conjecture is insufficient to establish an overriding interest to
8
keep the case number under seal.
Rosso v. Superior Court (1987) 191 Cal.App.3d 1514, upon
which Simmons relies, does not support a different result. In
Rosso the plaintiff sought disclosure of the names of persons who
8
Simmons and its amicus argue Peebles’s unauthorized
disclosure of privileged information in the unredacted portion of
his complaint and first amended complaint could not, and did not,
waive the privilege held by the law firm’s client. While they may
be correct, the question before us is not one of waiver but
whether, given the availability of that information to the public,
the trial court erred in finding that Simmons had not satisfied its
obligation to establish an overriding interest in maintaining
under seal only the number of the case to which that information
related. (See H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879,
898 [“there is no justification for sealing records that contain only
facts already known or available to the public”].) It did not.
14
had responded to an advertisement placed by the attorney-
defendants and directed at women who might have suffered
problems arising from the use of an intrauterine device. The
court of appeal explained that “[a]s a general rule, the identity of
an attorney’s clients is not protected by the attorney-client
privilege.” (Id. at p. 1518.) However, “‘in unusual situations,
particularly where so much is already known of the attorney-
client relationship that to disclose a client’s name will betray a
confidential communication, the identity of a client may be
treated as privileged information.’” (Ibid.) The court found the
facts before it presented such a situation because revealing the
names of the women who responded to the advertisement would
“reveal the nature of a medical problem, ordinarily considered a
confidential communication.” (Id. at p. 1519.) The court noted
that, “if the disclosure of the patient’s name reveals nothing of
any communication concerning the patient’s ailments, disclosure
of the patient’s name does not violate the [doctor-patient]
privilege.” (Ibid.)
Here, unlike identifying the client in Rosso, which
necessarily also revealed private medical information relating to
that individual, unsealing the number of the asbestos case did
not disclose confidential and private information about the
asbestos plaintiff. At most, based on Peebles’s unproved and
conclusory allegations, one could only speculate about
communications exchanged between Simmons and the client.
Further, the complaint described at least three cases on which
Peebles worked, further masking the identity of the actual client
and obscuring the content of any privileged communications
involving alleged ethical or legal violations. Significantly,
although Simmons bases its argument in substantial part on the
15
connection of the case number to publicly available portions of
the original and first amended complaints that it asserts contain
privileged and confidential information, it never took any steps to
seal any aspect of those documents. Its inaction belies its
purported concern for confidentiality.
Simmons additionally argues that sealing the number is
necessary because otherwise it would need to disclose privileged
information to defend against Peebles’s claims. That assertion—
difficult to understand—is, in any event, moot now that Peebles’s
employment case has been dismissed with prejudice. (See Copley
Press, Inc. v. Superior Court (1998) 63 Cal.App.4th 367, 374
[“‘[d]ue to its temporary nature and its infringement upon the
public right to know, a sealing order in a civil case is always
subject to continuing review and modification, if not termination,
upon changed circumstances’”].) To be sure, Simmons also
complains that J-M has attempted—so far unsuccessfully—to
seek the asbestos case number and Peebles’s unredacted
complaints through discovery requests and motions to compel in
pending asbestos cases. Should J-M ever be successful, Simmons
contends, it will then have to use privileged information to defend
itself against Peebles’s allegations about the firm’s litigation
tactics. Not only is this claim of prejudice too attenuated to
support a sealing order, but it is also an argument properly
made, if at all, in the asbestos cases where J-M is seeking
discovery, not in the case at bar.
3. The Trial Court Did Not Err in Declining To Order
Peebles To File Unredacted Copies of His Complaints
We independently review whether rules 2.550 and 2.551
governing the sealing of records apply to Peebles’s redacted
complaints. (Mercury Interactive Corp. v. Klein (2007)
16
158 Cal.App.4th 60, 81 [“whether the court correctly determined
that the Complaint’s exhibits were subject to the sealed records
rules at all” reviewed independently]; see Committee for Sound
Water & Land Development v. City of Seaside (2022)
79 Cal.App.5th 389, 403 [interpretations of the California Rules
of Court conducted de novo].)
The parties do not dispute that Peebles filed only heavily
redacted versions of his original and first amended complaints,
that he never lodged and moved to file unredacted versions of
those complaints under seal, and that the trial court was never in
possession of the unredacted complaints. Simmons contends,
under these circumstances, the redacted allegations were never a
part of Peebles’s complaints—it is as if he had simply filed
shorter versions of the two documents containing only the
exposed language and omitting entirely the redactions.
Accordingly, there was nothing to unseal. J-M, on the other
hand, argues the redacted complaints were, in effect, improperly
filed under seal without a court order and in violation of the
sealed record rules. The failure to properly seal the complaints,
when measured against the public’s right to access court
documents, J-M asserts, required the trial court to “unseal” the
original and first amended complaints by ordering Peebles to file
unredacted copies of them.
J-M’s argument fundamentally misperceives the entirely
proper and varied use of redactions in court documents. In short,
not all redactions represent material filed under seal. Documents
may be filed with redactions when necessary to protect personal
privacy and other legitimate interests. (See, e.g., rule 1.201;
Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th
1309, 1327 [explaining that documents requested by the court
17
could have been filed as “redacted copies of the bills deleting any
privileged information” as opposed to requiring an in camera
review]; see generally Weil & Brown, Cal. Practice Guide: Civil
Procedure Before Trial (The Rutter Group 2023) ¶ 9.416.1
[“Many, if not most, motions to seal are unnecessary because the
judge does not need to review the confidential material to decide
the underlying motion. In such cases, simply file the redacted
document in the public file and explain the redaction in, e.g., the
accompanying memorandum of points and authorities”].) In
these situations the redacted information is never presented to
the court for its consideration or to the public and is not subject
to “unsealing.”
Redactions, of course, can also be used when a party
intends for the court to have full access to a document and only
limited portions of that document are properly shielded from
public view. A court order sealing a document and authorizing
the public filing of a redacted copy under these circumstances is
necessary under rule 2.550(d)(4), which requires any sealing
order be narrowly tailored to cover only information that qualifies
for sealing. In contrast to the first type of redaction, redactions
in this situation allow information to be available to the court but
not the public. And to reiterate, this type of redaction requires a
court order supported by specific findings because sealing
material impinges upon the public’s right of access to information
used by the court to adjudicate a matter.
As explained in counsel’s declaration in support of Peebles’s
motion for leave to file a second amended complaint and order to
seal, Peebles’s prior pleadings contained the first type of
redaction—information Peebles had not yet decided to allege in
support of his claims. When Peebles decided to present that
18
information to the court, he requested leave to file a second
amended complaint under seal and to publicly file a redacted
copy. After the trial court denied his motion for leave and order
to file under seal, Peebles elected not to file the unredacted
second amended complaint; and the lodged version of that
document was returned to him, as provided in rule 2.551(b)(6).
Because the redacted allegations in the original and first
amended complaints were never before the trial court, the sealed
record rules for unsealing documents do not apply to those
pleadings. It necessarily follows that the public’s right to access
has not been violated because there was, in fact, full access to the
documents before the court for use in adjudicating the case.9
J-M’s contention that Peebles and Simmons secretly
litigated Peebles’s lawsuit based on allegations not available to
the public or the court because Peebles served Simmons with the
unredacted pleadings does not further J-M’s argument for
requiring the court to order Peebles to file unredacted versions of
those documents. The public has no right of access to
communications outside of court between the opposing parties in
a lawsuit, and nothing in the record on appeal suggests the
redacted allegations in the original and first amended complaint
9
Although the trial court may have reviewed the unredacted
second amended complaint lodged with the court when
determining whether to grant Peebles leave to amend the
complaint and to file that pleading under seal, after denying
Peebles’s motion in its entirety, the lodged document was
properly removed from the court record.
19
were ever presented to, or relied upon, by the parties or the court
10
in any court proceedings.
J-M’s reliance In re Marriage of Nicholas, supra,
186 Cal.App.4th 1566 to argue the trial court had inherent
authority to compel Peebles to file unredacted versions of his
complaints in a case already dismissed with prejudice is
misplaced. In In re Marriage of Nicholas the appellant, a party to
a still-pending family law case, challenged the ability of one judge
to subsequently modify a sealing order entered earlier in the case
by a different judge. (Id. at p. 1574.) The court of appeal held a
new judge assigned to the matter had continuing jurisdiction to
modify earlier sealing orders, explaining rule 2.551(h) “authorizes
trial judges to issue orders to unseal records that previously have
been sealed by prior court orders.” (In re Marriage of Nicholas, at
p. 1577.) The case did not involve a third party’s attempt to
compel a litigant in a dismissed lawsuit to file unredacted
versions of documents not in the court files and not the subject of
a prior sealing order.
J-M also contends the court’s refusal to order Peebles to file
his unredacted complaints was error because the court had “no
idea what the unredacted text said” and, therefore, its decision
not to do so was not a reasoned one. With this somewhat peculiar
argument, J-M appears to be suggesting the court should have
10
At oral argument counsel for J-M identified Peebles’s
opposition to Simmons’s demurrer to the first amended complaint
as an example of the parties relying on the unfiled and
unredacted complaint to litigate the case. However, review of the
demurrer and Peebles’s opposition does not suggest the parties
were litigating secret allegations hidden from the court. As
discussed, Simmons expressly stated it was relying only on those
allegations that were publicly available.
20
reviewed the redacted allegations to determine whether they
were privileged or confidential and qualified for sealing. But, as
discussed, those allegations were never before the court and
never the subject of a sealing order. Accordingly, it does not
matter whether the redacted material was privileged or
otherwise confidential.11
Finally, citing Savaglio v. Wal-Mart Stores, Inc. (2007)
149 Cal.App.4th 588 J-M contends Peebles and Simmons waived
their right to belatedly seal the redacted complaints. Savaglio is
inapposite. Peebles and Simmons are not trying to seal
unredacted documents filed with the court. The sealed record
rules do not apply to material never presented to the court.
DISPOSITION
The January 19, 2022 order is affirmed. Peebles is to
recover his costs on appeal.
PERLUSS, P. J.
We concur:
FEUER, J. MARTINEZ, J.
11
Indeed, given Simmons’s assertion the redactions
concerned lawyer-client privileged communications, Evidence
Code section 915 would prohibit disclosure of the information to
the court for it to determine whether the privilege applied absent
a waiver or exception. (See Costco Wholesale Corp. v. Superior
Court (2009) 47 Cal.4th 725, 740.)
21