Preview
1 SERVICE LIST
2 Soler vs. Logue, et al, San Mateo Sup Ct. Case No: 21-CIV-00289
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4 Yvonne V. Jorgensen, Esq. Attorneys for Defendant,
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Van De Poel, Levy, Thomas, Arneal LLP LIVE NATION WORLDWIDE,
1600 South Main Plaza, Suite 325
Walnut Creek, California 94596 INC.
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Telephone: (925) 934-6102
7 Facsimile: (925) 934-6060
yjorgensen@vanlevylaw.com
8 ncorliss@vanlevylaw.com
ldesilva@vanlevylaw.com
9 kriordan@vanlevylaw.com
10 John W. Ranucci, Esq. Attorneys for Defendant,
Robert Kubler, Esq. TIMOTHY LOGUE
11 Ford, Walker, Haggerty & Behar
One World Trade Center, 27th Floor
Abramson Smith Waldsmith, LLP
12 Long Beach, CA 90831-2700
Tel: (562) 983-2500
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Attorneys At Law
Fax: (562) 983-2500
jranucci@fwhb.com
14 rkubler@fwhb.com
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vkrotzer@fwhb.com
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SERVICE LIST
1 ABRAMSON SMITH WALDSMITH, LLP
ROBERT J. WALDSMITH [State Bar # 163774; rjw@aswllp.com]
2 JEFFREY R. SMITH [State Bar # 245337; jrs@aswllp.com]
3 19 Tehama Street, Suite A
San Francisco, California 94105
4 Telephone: (415) 421-7995
Facsimile: (415) 421-0912
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6 Attorneys for Plaintiffs
REBECCA SOLER and
7 GEORGE SOLER
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9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN MATEO
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Abramson Smith Waldsmith, LLP
12 REBECCA SOLER and GEORGE Case No.: 21-CIV-00289
SOLER,
13 PROPOSED ORDER DENYING
Attorneys At Law
Plaintiffs, DEFENDANT TIMOTHY LOGUE’S MOTION
14 FOR AN ORDER SEALING MOTION FOR
vs. SUMMARY JUDGMENT
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16 LIVE NATION ENTERTAINMENT, Date: March 20, 2024.
Time: 2.00 PM
INC., TIMOTHY LOGUE, and DOE Dept: 28
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ONE through DOE TWENTY, Judge: Hon. Nicole S. Healy
18 inclusive,
Complaint Filed: January 21, 2021
19 Defendants. Trial: May 30, 2024
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22 On March 20, 2024, this Court heard oral argument on Defendant Timothy
23 Logue’s motion to seal certain documents in support of his pending motion for summary
24 judgment. Plaintiffs REBECCA SOLER and GEORGE SOLER were represented by
25 counsel ROBERT WALDSMITH. Defendant TIMOTHY LOGUE was represented by
26 counsel RENEE JENSEN. Defendant LIVE NATION WORLDWIDE, INC. was
27 represented by counsel NICOLET CORLISS.
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1
PROPOSED ORDER DENYING DEFENDANT TIMOTHY LOGUE’S MOTION FOR AN ORDER
SEALING MOTION FOR SUMMARY JUDGMENT
1 Upon consideration of the documents and materials filed in support of and in
2 opposition to the motion and the arguments of counsel, it is ordered that:
3 Defendant Timothy Logue (“Logue” or “defendant”) brings the instant motion to
4 seal certain documents in support of his pending motion for summary judgment.
5 Defendant’s request to seal is overbroad and lacks the specificity necessary for the
6 Court to make the requisite findings under California Rules of Court, rule 2.550.
7 Accordingly, the motion to seal is DENIED WITHOUT PREJUDICE.
8 Specifically, defendant has moved to seal the following documents:
9 • Memorandum of Points and Authorities in Support of Defendant Timothy
10 Logue’s Motion for Summary Judgment;
11 • Separate Statement of Undisputed Material Facts in Support of Defendant
Abramson Smith Waldsmith, LLP
12 Timothy Logue’s Motion for Summary Judgment;
13 • Declaration of Timothy Logue;
Attorneys At Law
14 • Declaration of Dr. Inna Keselman, M.D., Ph.D.;
15 • Exhibit A to Notice of Lodging - American Medical Response records;
16 • Exhibit B to Notice of Lodging – Stanford Health Care records;
17 • Exhibit C to Notice of Lodging – Sacramento Metropolitan Fire District records;
18 • Exhibit D to Notice of Lodging – Sutter Health records;
19 • Exhibit E to Notice of Lodging – Wellspace Health records;
20 • Exhibit F to Notice of Lodging – Deposition transcript of Olena Hays, PAC; and
21 • Exhibit G to Notice of Lodging - Deposition transcript of Richard Chun, M.D.
22 Altogether, these records total nearly 4,000 pages of documents. Defendant
23 argues that these documents all discuss, and are inextricably linked to, his private
24 medical history and treatment. Defendant also points to the stipulation and protective
25 order entered by this Court on September 30, 2022, which he argues covers the
26 medical records that form part of his sealing request. Plaintiffs oppose, arguing that
27 defendant has not shown an overriding interest that overcomes the public’s right to
28 disclosure, and furthermore, that defendant’s request is overbroad.
2
PROPOSED ORDER DENYING DEFENDANT TIMOTHY LOGUE’S MOTION FOR AN ORDER
SEALING MOTION FOR SUMMARY JUDGMENT
1 The Court agrees that the request to seal these documents is overbroad.
2 California recognizes a constitutionally-protected right of access to court documents
3 grounded in the First Amendment. (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court
4 (1999) 20 Cal.4th 1178, 1208, fn. 25 (NBC Subsidiary).) Since NBC Subsidiary,
5 California courts have regularly employed a constitutional analysis in resolving disputes
6 over public access to court documents. (Overstock.com, Inc. v. Goldman Sachs Group,
7 Inc. (2014) 231 Cal.App.4th 471, 485 (Overstock).)
8 The California Rules of Court, Rules 2.550 and 2.551 (“the sealed records rules”)
9 were promulgated to expressly implement the First Amendment principles set forth in
10 NBC Subsidiary’s oft-quoted footnote. (Ibid.) These rules establish a strong
11 presumption that court records are open to the public unless the law requires
Abramson Smith Waldsmith, LLP
12 confidentiality. (Ibid.; see Cal. Rules of Court rule 2.550(c) [all further references to a
13 “Rule” or the “Rules” are to the California Rules of Court].)
Attorneys At Law
14 The sealed records rules, and the constitutional principles they embody, apply to
15 records which, as here, are used at trial or are submitted as a basis for adjudication of
16 matters other than discovery motions or proceedings. (Rule 2.550(a)(3).) Thus, the
17 documents and records which Logue seeks to seal are subject to a presumption of the
18 right of public access. A record must not be filed under seal without a court order, and
19 the court cannot permit a record to be filed under seal based solely on the agreement or
20 stipulation of the parties. (Rule 2.551(a).) The court may order a record sealed only if it
21 expressly finds facts that establish: (1) there exists an overriding interest that
22 overcomes the right of public access to the record, (2) the overriding interest supports
23 sealing the record, (3) a substantial probability exists that the overriding interest will be
24 prejudiced if the record is not sealed, (4) the proposed sealing is narrowly tailored, and
25 (5) no less restrictive means exist to achieve the overriding interest. (Rule 2.550(d);
26 H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 888- 889.)
27 These findings “embody constitutional requirements for a request to seal court
28 records, protecting the First Amendment right of public access to civil trials.” (NBC
3
PROPOSED ORDER DENYING DEFENDANT TIMOTHY LOGUE’S MOTION FOR AN ORDER
SEALING MOTION FOR SUMMARY JUDGMENT
1 Subsidiary, supra, 20 Cal.4th, at pp. 1217-1218.) If the trial court fails to make the
2 required findings, the order is deficient and cannot support sealing. (Overstock, supra,
3 231 Cal.App.4th at 487.) “Only the specific words of documents that constitute the
4 sensitive material should be sealed; generally, it is not permissible to seal the entire
5 document.” (Weil & Brown, et al., Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter
6 Group 2023) Ch. 9(I), ¶ 9:418.5 [Motion to Seal Court Records].)
7 California courts recognize that a person’s medical history, including
8 psychological records, falls within the zone of informational privacy protected by the
9 state and federal Constitutions. (Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1068
10 (Oiye).) Communications between patients and their physicians and psychotherapists
11 are presumed to be confidential. (Ibid.) Medical records are presumptively,
Abramson Smith Waldsmith, LLP
12 constitutionally private and statutorily confidential. (Id., at p. 1070.)
13 The public’s general right of access to court records, recognized in Rule 2.550, is
Attorneys At Law
14 not absolute and may give way to the public’s concern about the privacy of medical
15 information in certain cases. (Ibid.) As noted above, defendant seeks to seal nearly four
16 thousand pages of material. While much of the material is likely sealable, such as his
17 medical records, some of it is obviously not — such as the legal standard section of
18 defendant’s memorandum of points and authorities and the C.V. attached to Dr.
19 Keselman’s Declaration.
20 Defendant provides little argument or analysis concerning what facts support the
21 specific overriding interest he has identified, pointing instead in a general sense to the
22 right of medical privacy. Rather than identify the specific documents or portions of
23 documents he seeks to protect defendant argues generally that “the parties expressly
24 agreed to protect this type of information by freely and willingly entering a protective
25 order…” (Motion to Seal, at p. 4.) The protective order, however, is not determinative.
26 (See Rule 2.551(a) [“A record must not be filed under seal without a court order. The
27 court must not permit a record to be filed under seal based solely on the agreement or
28 stipulation of the parties”].) Indeed, the protective order entered on September 30,
4
PROPOSED ORDER DENYING DEFENDANT TIMOTHY LOGUE’S MOTION FOR AN ORDER
SEALING MOTION FOR SUMMARY JUDGMENT
1 2022, based entirely on the San Mateo Superior Court model two-tier order, expressly
2 requires parties seeking to file material under seal to comply with Rules 2.550 and
3 2.551. (See Sept. 30, 2022 Protective Order, ¶¶ 13- 15.)
4 Because defendant’s request to seal is overbroad and lacks the specificity
5 required for the Court to make the requisite findings under Rule 2.550, the motion to
6 seal is DENIED WITHOUT PREJUDICE. The parties are HEREBY ORDERED TO
7 APPEAR at the hearing to further address the issue of sealing. If the tentative ruling is
8 uncontested, it shall become the order of the Court. Counsel for plaintiffs shall prepare
9 a written order consistent with the Court’s ruling for the Court’s signature, pursuant to
10 California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all
11 parties who have appeared in the action, as required by law and the California Rules of
Abramson Smith Waldsmith, LLP
12 Court. The Court alerts the parties to revised Local Rule 3.403(b)(iv) (amended
13 effective January 1, 2024) regarding the wording of proposed orders.
Attorneys At Law
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IT IS SO ORDERED.
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16 DATED: March ____, 2024
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___________________________________
18 HONORABLE NICOLE S. HEALY
Judge of the Superior Court
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APPROVED AS TO FORM:
21 DATED: March ____, 2024
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23 ___________________________________
JOHN RANUCCI
24 RENEE JENSEN
FORD, WALKER, HAGGERTY & BEHAR
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Attorneys for Defendant TIMOTHY LOGUE
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PROPOSED ORDER DENYING DEFENDANT TIMOTHY LOGUE’S MOTION FOR AN ORDER
SEALING MOTION FOR SUMMARY JUDGMENT
APPROVED AS TO FORM:
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DATED: March ____, 2024
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3 ___________________________________
4
YVONNE JORGENSON
NICOLET CORLISS
5 VAN DE POEL, LEVY, THOMAS, ARNEAL LLP
Attorneys for Defendant LIVE NATION WORLDWIDE, INC.
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Attorneys At Law
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PROPOSED ORDER DENYING DEFENDANT TIMOTHY LOGUE’S MOTION FOR AN ORDER
SEALING MOTION FOR SUMMARY JUDGMENT
Preview
1 SERVICE LIST 2 Soler vs. Logue, et al, San Mateo Sup Ct. Case No: 21-CIV-00289 3 4 Yvonne V. Jorgensen, Esq. Attorneys for Defendant, 5 Van De Poel, Levy, Thomas, Arneal LLP LIVE NATION WORLDWIDE, 1600 South Main Plaza, Suite 325 Walnut Creek, California 94596 INC. 6 Telephone: (925) 934-6102 7 Facsimile: (925) 934-6060 yjorgensen@vanlevylaw.com 8 ncorliss@vanlevylaw.com ldesilva@vanlevylaw.com 9 kriordan@vanlevylaw.com 10 John W. Ranucci, Esq. Attorneys for Defendant, Robert Kubler, Esq. TIMOTHY LOGUE 11 Ford, Walker, Haggerty & Behar One World Trade Center, 27th Floor Abramson Smith Waldsmith, LLP 12 Long Beach, CA 90831-2700 Tel: (562) 983-2500 13 Attorneys At Law Fax: (562) 983-2500 jranucci@fwhb.com 14 rkubler@fwhb.com 15 vkrotzer@fwhb.com 16 17 18 19 20 21 22 23 24 25 26 27 28 1 SERVICE LIST 1 ABRAMSON SMITH WALDSMITH, LLP ROBERT J. WALDSMITH [State Bar # 163774; rjw@aswllp.com] 2 JEFFREY R. SMITH [State Bar # 245337; jrs@aswllp.com] 3 19 Tehama Street, Suite A San Francisco, California 94105 4 Telephone: (415) 421-7995 Facsimile: (415) 421-0912 5 6 Attorneys for Plaintiffs REBECCA SOLER and 7 GEORGE SOLER 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN MATEO 11 Abramson Smith Waldsmith, LLP 12 REBECCA SOLER and GEORGE Case No.: 21-CIV-00289 SOLER, 13 PROPOSED ORDER DENYING Attorneys At Law Plaintiffs, DEFENDANT TIMOTHY LOGUE’S MOTION 14 FOR AN ORDER SEALING MOTION FOR vs. SUMMARY JUDGMENT 15 16 LIVE NATION ENTERTAINMENT, Date: March 20, 2024. Time: 2.00 PM INC., TIMOTHY LOGUE, and DOE Dept: 28 17 ONE through DOE TWENTY, Judge: Hon. Nicole S. Healy 18 inclusive, Complaint Filed: January 21, 2021 19 Defendants. Trial: May 30, 2024 20 21 22 On March 20, 2024, this Court heard oral argument on Defendant Timothy 23 Logue’s motion to seal certain documents in support of his pending motion for summary 24 judgment. Plaintiffs REBECCA SOLER and GEORGE SOLER were represented by 25 counsel ROBERT WALDSMITH. Defendant TIMOTHY LOGUE was represented by 26 counsel RENEE JENSEN. Defendant LIVE NATION WORLDWIDE, INC. was 27 represented by counsel NICOLET CORLISS. 28 1 PROPOSED ORDER DENYING DEFENDANT TIMOTHY LOGUE’S MOTION FOR AN ORDER SEALING MOTION FOR SUMMARY JUDGMENT 1 Upon consideration of the documents and materials filed in support of and in 2 opposition to the motion and the arguments of counsel, it is ordered that: 3 Defendant Timothy Logue (“Logue” or “defendant”) brings the instant motion to 4 seal certain documents in support of his pending motion for summary judgment. 5 Defendant’s request to seal is overbroad and lacks the specificity necessary for the 6 Court to make the requisite findings under California Rules of Court, rule 2.550. 7 Accordingly, the motion to seal is DENIED WITHOUT PREJUDICE. 8 Specifically, defendant has moved to seal the following documents: 9 • Memorandum of Points and Authorities in Support of Defendant Timothy 10 Logue’s Motion for Summary Judgment; 11 • Separate Statement of Undisputed Material Facts in Support of Defendant Abramson Smith Waldsmith, LLP 12 Timothy Logue’s Motion for Summary Judgment; 13 • Declaration of Timothy Logue; Attorneys At Law 14 • Declaration of Dr. Inna Keselman, M.D., Ph.D.; 15 • Exhibit A to Notice of Lodging - American Medical Response records; 16 • Exhibit B to Notice of Lodging – Stanford Health Care records; 17 • Exhibit C to Notice of Lodging – Sacramento Metropolitan Fire District records; 18 • Exhibit D to Notice of Lodging – Sutter Health records; 19 • Exhibit E to Notice of Lodging – Wellspace Health records; 20 • Exhibit F to Notice of Lodging – Deposition transcript of Olena Hays, PAC; and 21 • Exhibit G to Notice of Lodging - Deposition transcript of Richard Chun, M.D. 22 Altogether, these records total nearly 4,000 pages of documents. Defendant 23 argues that these documents all discuss, and are inextricably linked to, his private 24 medical history and treatment. Defendant also points to the stipulation and protective 25 order entered by this Court on September 30, 2022, which he argues covers the 26 medical records that form part of his sealing request. Plaintiffs oppose, arguing that 27 defendant has not shown an overriding interest that overcomes the public’s right to 28 disclosure, and furthermore, that defendant’s request is overbroad. 2 PROPOSED ORDER DENYING DEFENDANT TIMOTHY LOGUE’S MOTION FOR AN ORDER SEALING MOTION FOR SUMMARY JUDGMENT 1 The Court agrees that the request to seal these documents is overbroad. 2 California recognizes a constitutionally-protected right of access to court documents 3 grounded in the First Amendment. (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court 4 (1999) 20 Cal.4th 1178, 1208, fn. 25 (NBC Subsidiary).) Since NBC Subsidiary, 5 California courts have regularly employed a constitutional analysis in resolving disputes 6 over public access to court documents. (Overstock.com, Inc. v. Goldman Sachs Group, 7 Inc. (2014) 231 Cal.App.4th 471, 485 (Overstock).) 8 The California Rules of Court, Rules 2.550 and 2.551 (“the sealed records rules”) 9 were promulgated to expressly implement the First Amendment principles set forth in 10 NBC Subsidiary’s oft-quoted footnote. (Ibid.) These rules establish a strong 11 presumption that court records are open to the public unless the law requires Abramson Smith Waldsmith, LLP 12 confidentiality. (Ibid.; see Cal. Rules of Court rule 2.550(c) [all further references to a 13 “Rule” or the “Rules” are to the California Rules of Court].) Attorneys At Law 14 The sealed records rules, and the constitutional principles they embody, apply to 15 records which, as here, are used at trial or are submitted as a basis for adjudication of 16 matters other than discovery motions or proceedings. (Rule 2.550(a)(3).) Thus, the 17 documents and records which Logue seeks to seal are subject to a presumption of the 18 right of public access. A record must not be filed under seal without a court order, and 19 the court cannot permit a record to be filed under seal based solely on the agreement or 20 stipulation of the parties. (Rule 2.551(a).) The court may order a record sealed only if it 21 expressly finds facts that establish: (1) there exists an overriding interest that 22 overcomes the right of public access to the record, (2) the overriding interest supports 23 sealing the record, (3) a substantial probability exists that the overriding interest will be 24 prejudiced if the record is not sealed, (4) the proposed sealing is narrowly tailored, and 25 (5) no less restrictive means exist to achieve the overriding interest. (Rule 2.550(d); 26 H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 888- 889.) 27 These findings “embody constitutional requirements for a request to seal court 28 records, protecting the First Amendment right of public access to civil trials.” (NBC 3 PROPOSED ORDER DENYING DEFENDANT TIMOTHY LOGUE’S MOTION FOR AN ORDER SEALING MOTION FOR SUMMARY JUDGMENT 1 Subsidiary, supra, 20 Cal.4th, at pp. 1217-1218.) If the trial court fails to make the 2 required findings, the order is deficient and cannot support sealing. (Overstock, supra, 3 231 Cal.App.4th at 487.) “Only the specific words of documents that constitute the 4 sensitive material should be sealed; generally, it is not permissible to seal the entire 5 document.” (Weil & Brown, et al., Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter 6 Group 2023) Ch. 9(I), ¶ 9:418.5 [Motion to Seal Court Records].) 7 California courts recognize that a person’s medical history, including 8 psychological records, falls within the zone of informational privacy protected by the 9 state and federal Constitutions. (Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1068 10 (Oiye).) Communications between patients and their physicians and psychotherapists 11 are presumed to be confidential. (Ibid.) Medical records are presumptively, Abramson Smith Waldsmith, LLP 12 constitutionally private and statutorily confidential. (Id., at p. 1070.) 13 The public’s general right of access to court records, recognized in Rule 2.550, is Attorneys At Law 14 not absolute and may give way to the public’s concern about the privacy of medical 15 information in certain cases. (Ibid.) As noted above, defendant seeks to seal nearly four 16 thousand pages of material. While much of the material is likely sealable, such as his 17 medical records, some of it is obviously not — such as the legal standard section of 18 defendant’s memorandum of points and authorities and the C.V. attached to Dr. 19 Keselman’s Declaration. 20 Defendant provides little argument or analysis concerning what facts support the 21 specific overriding interest he has identified, pointing instead in a general sense to the 22 right of medical privacy. Rather than identify the specific documents or portions of 23 documents he seeks to protect defendant argues generally that “the parties expressly 24 agreed to protect this type of information by freely and willingly entering a protective 25 order…” (Motion to Seal, at p. 4.) The protective order, however, is not determinative. 26 (See Rule 2.551(a) [“A record must not be filed under seal without a court order. The 27 court must not permit a record to be filed under seal based solely on the agreement or 28 stipulation of the parties”].) Indeed, the protective order entered on September 30, 4 PROPOSED ORDER DENYING DEFENDANT TIMOTHY LOGUE’S MOTION FOR AN ORDER SEALING MOTION FOR SUMMARY JUDGMENT 1 2022, based entirely on the San Mateo Superior Court model two-tier order, expressly 2 requires parties seeking to file material under seal to comply with Rules 2.550 and 3 2.551. (See Sept. 30, 2022 Protective Order, ¶¶ 13- 15.) 4 Because defendant’s request to seal is overbroad and lacks the specificity 5 required for the Court to make the requisite findings under Rule 2.550, the motion to 6 seal is DENIED WITHOUT PREJUDICE. The parties are HEREBY ORDERED TO 7 APPEAR at the hearing to further address the issue of sealing. If the tentative ruling is 8 uncontested, it shall become the order of the Court. Counsel for plaintiffs shall prepare 9 a written order consistent with the Court’s ruling for the Court’s signature, pursuant to 10 California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all 11 parties who have appeared in the action, as required by law and the California Rules of Abramson Smith Waldsmith, LLP 12 Court. The Court alerts the parties to revised Local Rule 3.403(b)(iv) (amended 13 effective January 1, 2024) regarding the wording of proposed orders. Attorneys At Law 14 IT IS SO ORDERED. 15 16 DATED: March ____, 2024 17 ___________________________________ 18 HONORABLE NICOLE S. HEALY Judge of the Superior Court 19 20 APPROVED AS TO FORM: 21 DATED: March ____, 2024 22 23 ___________________________________ JOHN RANUCCI 24 RENEE JENSEN FORD, WALKER, HAGGERTY & BEHAR 25 Attorneys for Defendant TIMOTHY LOGUE 26 27 28 5 PROPOSED ORDER DENYING DEFENDANT TIMOTHY LOGUE’S MOTION FOR AN ORDER SEALING MOTION FOR SUMMARY JUDGMENT APPROVED AS TO FORM: 1 DATED: March ____, 2024 2 3 ___________________________________ 4 YVONNE JORGENSON NICOLET CORLISS 5 VAN DE POEL, LEVY, THOMAS, ARNEAL LLP Attorneys for Defendant LIVE NATION WORLDWIDE, INC. 6 7 8 9 10 11 Abramson Smith Waldsmith, LLP 12 13 Attorneys At Law 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 PROPOSED ORDER DENYING DEFENDANT TIMOTHY LOGUE’S MOTION FOR AN ORDER SEALING MOTION FOR SUMMARY JUDGMENT