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1 WANGER JONES HELSLEY PC
265 E. River Park Circle, Suite 31 O
E-FILED
2 Fresno, California 93720
11/4/2020 4:58 PM
Telephone: (559) 233-4800 Superior Court of California
3 Facsimile: (559) 233-9330 County of Fresno
By: C. York, Deputy
4 Michael S. Helsley #199103
Marisa L. Balch #258332
5
Attorneys for: Valley Children's Hospital, and Lori Grassmyer, an individual
6
7
8 SUPERIOR COURT OF CALIFORNIA
COUNTY OF FRESNO, CENTRAL DIVISION
9
10 CARMEN KASMAUSKI, an individual, Case No. 20CECG02827
11 Plaintiff(s), MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF EX
12
v. PARTE APPLICATION TO FILE
13 RECORDS UNDER SEAL
VALLEY CHILDREN'S HOSPITAL, a
14 California corporation; LORI GRASSMYER, an RE: Hearing on Motion to Disqualify
individual; and DOES 1-10, Inclusive,
15 Date: February 24, 2021
Time: 3:30 p.m.
16 Defendant(s). Dept: 503
17
18
19
20 Defendants Valley Children's Hospital, Inc., a California corporation ("VCH"), and Lori
21 Grassmyer ("Defendants," collectively), submit the following Memorandum of Points and Authorities
22 in Support of their Application to File Records Under Seal (the "Application to Seal"). The Application
23 to Seal seeks an order allowing Defendants to file, under seal, an unredacted copy of the Declaration of
24 Michael S. Helsley, including Exhibit "A" thereto, in support of their Motion to Disqualify Counsel.
25 ///
26 ///
27 ///
28 ///
(7555/031/01168333.DOCX) 1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO FILE
RECORDS UNDER SEAL
1 I.
2 INTRODUCTION
3 This Application seeks to seal Exhibit "A" to the Declaration of Michael S. Helsley in
4 support of Defendant's Motion to Disqualify Counsel (the "Motion"). This Application is made
5 pursuant to California Rule of Court 2.550, et seq., to prevent the disclosure of sensitive, confidential
6 and/or private financial information.
7 As set forth in the Declaration of Michael S. Helsley, filed and served in connection
8 herewith, there are sufficient grounds to seal Exhibit "A" to his Declaration in support of Defendants'
9 Motion, as the Declaration attaches a copy of the confidential Settlement Agreement entered into by
10 counsel, Kevin G. Little, Michael S. Helsley, and the parties in the initialFebruary 25, 2015 Yvonne
11 Peoples action filed against VCH in the Madera County Superior Court, Case No. MCV069653. The
12 Settlement Agreement entered into in that action, by its own terms, is confidential, and has been sealed
13 by the United States District Comi for the Eastern District of California in the second lawsuit filed by
14 Yvonne Peoples ("Peoples") against VCH, Case No. 1:19-cv-00272-LJO-SKO (subsequently
15 compelled to arbitration as JAMS Case No. l 100108449) (herein the "Yvonne Peoples Matter").
16 The Settlement Agreement reveals specific sums paid to Peoples to settle her earlier
17 employment claims, including the breakdown of such payments and how taxes were repo1ied for such
18 payments. The Settlement Agreement further contains specific terms regarding Peoples' reinstatement,
19 including information on pay and benefits. All of these terms were intended by both parties to remain
20 confidential, and tliey further implicate the pai"ties' respective rights to financial privacy. They also
21 reveal how VCH structmes it business and compensation. (Declaration of Michael S. Helsley ["Helsley
22 Deel."], ~6.)
23 To avoid disclosme of this confidential and private information, and allow for the proper
24 determination of Defendants' Motion, Defendants seek to file Exhibit "A" to the Declaration of Michael
25 S. Helsley in supp mi of tlieir Motion under seal. An overriding interest exists that supports the sealing
26 of this limited portion of the Declaration, which if disclosed would invade Peoples' and VCH's right to
27 confidentiality and privacy and could cause hmm to both.
28
{7555/031/01168333.DOCX) 2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX ?ARTE APPLICATION TO FILE
RECORDS UNDER SEAL
1 The proposed sealing order is narrowly tailored, and no less restrictive means exist to
2 achieve the overriding interest. Defendants seek to seal only Exhibit "A" to the Declaration Michael S.
3 Helsley, which includes sensitive, confidential and/or private information, or would reveal the subject
4 matter and content of the same. If an unsealed version of the Declaration were publicly filed, Defendants
5 would disclose sensitive, confidential and/or private financial information.
6 Defendants therefore seek an order providing them the right to: (1) file an unredacted
7 version of the Declaration of Michael S. Helsley, including Exhibit "A" thereto, under seal, (2) file a
8 redacted version of the Declaration of Michael S. Helsley, including Exhibit "A" thereto, in the public
9 record, and (3) receive any tentative or final ruling on Defendants' motion under seal, to the extent
IO necessary. The proposed sealing order is narrowly tailored, and no less restrictive means exist to achieve
11 the overriding interest.
12 II.
13 FACTUAL BACKGROUND
14 On or about February 25, 2015, Peoples filed her initial lawsuit against VCH alleging
15 claims for (1) Discrimination Based Upon Race in Violation of the Fair Employment and Housing Act
16 ("FEHA"); (2) Harassment and Failure to Prevent Harassment in Violation ofFEHA; (3) Retaliation in
17 Violation ofFEHA; (4) Wrongful Termination in Violation of Public Policy; and (5) Violation of Labor
18 Code§ 1102.5. (Helsley Deel., ,r2.)
19 In response, VCH cited multiple disciplinary issues and reprimands for Peoples' lack of
20 teambuilding skills and collegiality, and her chronic issues with tardiness and timekeeping, which
21 eventually became the reason for her termination. Notwithstanding these disciplinary issues, on or about
22 October 11, 2016, VCH elected to enter into a Settlement Agreement and Release with Peoples in an
23 effort to avoid litigation costs (the "Settlement Agreement"). (Helsley Deel., ,r 3.)
24 The Settlement Agreement identifies specific sums paid to Peoples to settle these
25 employment claims, including the breakdown of such payments and how taxes were reported for such
26 payments. The Settlement Agreement further contains specific terms regarding Peoples' reinstatement,
27 including info1mation on pay and benefits, and expressly provided for confidentiality. (Helsley Deel.,
28 ,r 4-6.) Specifically, the Settlement Agreement, states in pertinent part:
(7555/031/01168333.DOCX} 3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX ?ARTE APPLICATION TO FILE
RECORDS UNDER SEAL
(8) As further provided and subject to in paragraph 10 below, Employee
l agrees that she shall keep absolutely confidential all the terms of the
settlement; the basis for and facts surrounding reinstatement; and any
2 monies paid to her as part of the settlement. This includes not publishing
on social media any of the terms or conditions of this settlement or
3 reinstatement. Employee understands the importance of the terms in this
paragraph, and that if she violates any term in this paragraph or in paragraph
4 10 below, it will be grounds for her immediate termination and it will be an
undisputed ground for termination.
5
10. Confidentiality of Action
***
and Settlement. It isunderstood and
6 agreed by Employee that the fact that this Agreement was entered into as
well as its specific te1ms and conditions, the amount of monies paid in this
7 Agreement, including the facts arising out of the Complaint, the Dispute
and Recitals, and the terms of reinstatement are to be kept absolutely
8 confidential, and not disclosed or publicized to any person except her
spouse. Should Employee or her spouse be asked by anyone about the
9 circumstances under which this Agreement was entered into, its terms or
provisions, or the circumstances giving rise to this Agreement, Employee
10 or her spouse shall respond, "that the matter has been resolved."
Regarding reinstatement, any communication between Employee or her
11 spouse and anyone regarding her reinstatement with Employer, or in
response to any questions regarding the same, Employee and her spouse
12 agree that they shall only state that "I (or she) have been reinstated to
employment." Employee and her spouse shall not offer any more details
13 or facts regarding the reinstatement. The terms, conditions, monies paid,
fact surrounding and leading up to this settlement agreement, including the
14 fact that Employee was reinstated, shall remain absolutely confidential and
not disclosed by Employee or her spouse, or by anyone at all. Employee
15 agrees that any violation of this paragraph by her or her spouse, shall be a
breach ofthis paragraph and constitutes immediate grounds for termination
from her employment. In addition, Employee shall not disclose the terms
16 of the settlement and/or the amount of payment except as necessary for
financial planning, tax preparation, her attorney, application for benefits
17 from local, state and/or federal programs, or as otherwise required by law.
18 (Settlement Agreement, ~ 2.6 and 10.)
19 Following entry into the Settlement Agreement, on January 9, 2017, Peoples was
20 reinstated as a Respiratory Care Practitioner III with VCH. Although Peoples' attitude was better upon
21 return, Peoples continued to have significant issues with documentation and time management, and
22 received numerous warnings and notices of discipline. She was subsequently te1minated by Plaintiff
23 Carmen Kasmauski ("Plaintiff') after extensive warning and discipline, for which Plaintiff was part and
24 parcel, and after Plaintiffs own recommendation to terminate Peoples. (See Declarations of Brian
25 Hornton and Maureen Colburn in support of Motion to Disqualify.)
26 On or about Febrnary 26, 2019, Peoples filed a second lawsuit (the Yvonne Peoples
27 Matter) against VCH, alleging causes of action for (1) Title VII retaliation and harassment (2) Failure
28 to Prevent Harassment (3) Wrongful Termination in Violation of Public Policy (4) Retaliation and (5)
{7555/031/01168333.DOCX) 4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX ?ARTE APPLICATION TO FILE
RECORDS UNDER SEAL
1 Violation of Labor Code section 1102.5. (Helsley Deel., 17.) This complaint included reference to the
2 Settlement Agreement, and VCH has filed a Cross-Complaint for breach of the confidentiality
3 provisions in connection with the same. (See, Helsley Deel., 18.)
4 In doing so, the United States District Court for the Eastern District of California in the
5 Yvonne Peoples Matter ordered the Settlement Agreement sealed in connection with various motions
6 on March 14, 2019, August 20, 2019 and September 11, 2019. (Helsley Deel., 19 and Exs. "A"-"C.")
7 Counsel now seeks to continue the representation of Peoples, and concurrently represent
8 Plaintiff in connection with her Complaint, filed on or about September 24, 2020, asse1iing claims for
9 (1) Disparate Treatment Based on Race; (2) Disparate Treatment Based On Age; (3) Hostile Work
10 Environment Harassment Directed at Plaintiff Based on Race; (4) Hostile Work Environment
11 Harassment Directed at Others Based on Race; (5) Hostile Work Environment Harassment Directed at
12 Plaintiff Based on Age; (6) Hostile Work Environment Harassment Directed at Others Based on Age;
13 (7) Retaliation; (8) Failure to Prevent Harassment, Discrimination, and Retaliation; (9) Declaratory
14 Relief and Reinstatement; (10) Defamation Per Se; (11) Defamation Per Quod. (Helsley Deel., 1 I 0.)
15 As set forth in the accompanying Motion to Disqualify Counsel, filed and served
16 concurrently herewith, Kevin G. Little has an inherent and irreconcilable conflict of interest in
17 attempting to represent both Peoples and Plaintiff, and cannot comply with his duty ofloyalty to either-
18 in part due to the Settlement Agreement from the initial February 25, 2015 Yvonne Peoples action.
19 Given the foregoing, Defendants' Motion includes the Settlement Agreement as Exhibit
20 "A" to the Declaration of Michael S. Helsley in support of the Motion, which provides information as
21 to the basis for disqualification of Mr. Little and his office.
22 III.
23 ARGUMENT
24 Court records are presumed to be open. (Cal. Rules of Ct., Rule 2.550(c).) To file a
25 record under seal, a court order is required. (Id. at 2.55l(a).) A Court may order that a record be filed
26 under seal if it finds:
27 (1) There exists an overriding interest that overcomes the right of public
access to tl1e record;
28
{7555/031/01168333.DOCX} 5
MEMORANDUM OF POINTS AND AUTHORJTIES IN SUPPORT OF EX PARTE APPLICATION TO FILE
RECORDS UNDER SEAL
(2) The overriding interest supports sealing the record;
1
(3) A substantial probability exists that the overriding interest will be
2 prejudiced if the record is not sealed;
3 (4) The proposed sealing is nanowly tailored; and
(5) No less restrictive means exist to achieve the overriding interest.
4
5 (Id. at 2.550(d).)
6 Each factor is present here. California has a strong public policy favoring settlement
7 (Village Northridge Homeowners Assn. v. State Farm Fire & Casualty Co. (2010) 50 Cal.4th 913,930),
8 and a contractual obligation not to disclose the terms of a settlement agreement can constitute an
9 overriding interest supporting the sealing of certain records. (Universal City Studios, Inc. v. Superior
10 Court (2003) 110 Cal.App.4th 1273, 1284.) Such an overriding interest may exist where there is a
11 substantial probability of prejudice to a business interest, privileged information or even innocuous but
12 newsworthy information in the document to be sealed. (See Universal City Studios, supra, 110
13 Cal.App.4th at 1283-1284.)
14 In this case, the overriding interest and substantial probability of prejudice to V CH and
15 Peoples supports the sealing of the Settlement Agreement. First, the Settlement Agreement has two
16 lengthy, express confidentiality terms that were negotiated by the parties in the initial Yvonne Peoples
17 litigation. The inclusion of these confidentiality provisions in the Settlement Agreement was key to the
18 parties' agreement. (Helsley Deel., ,4.)
19 Second, the Settlement Agreement also includes an arbitration clause, further indicating
20 a desire by both paiiies to keep any disputes between them outside of the courts and in private arbitration.
21 (See Settlement Agreement, 2.6(9).) (Helsley Deel., ,5.)
22 Moreover, the Settlement Agreement reveals specific sums paid to Peoples to settle her
23 earlier employment claims, including the breakdown of such payments and how taxes were reported for
24 such payments. The Settlement Agreement also contains specific terms regarding Peoples'
25 reinstatement, including information on pay and benefits. All of these terms were intended by both
26 parties to remain confidential, and further implicate the parties' respective rights to financial privacy.
27 They also reveal how VCH structures it business and compensation. (Helsley Deel., ,6.)
28
(7555/031/0ll68333.D0CX) 6
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO FILE
RECORDS UNDER SEAL
1 Additionally, while the breach of these confidentiality provisions will be litigated in the
2 Yvonne Peoples Matter, even in that case, the United States District Court for the Eastern District of
3 California ordered the Settlement Agreement sealed in connection with various motions by Defendants
4 on March 14, 2019, August 20, 2019 and September 11, 2019. (Helsley Deel., 19 and Exs. "A"-"C.")
5 Therefore, to avoid disclosure of confidential and private information, and to comply
6 with Rule 2.550, et seq. of the California Rules of Court, Defendants seek an order providing Defendants
7 the right to: (1) file an unredacted version of the Declaration of Michael S. Helsley, including Exhibit
8 "A" thereto, under seal, (2) file a redacted version of the Declaration of Michael S. Helsley, including
9 Exhibit "A" thereto, in the public record, and (3) receive any tentative or final ruling on Defendants'
10 motion under seal, to the extent necessary.
11 The proposed sealing order is narrowly tailored, and no less restrictive means exist to
12 achieve the overriding interest. Defendants only seek to seal Exhibit "A" to the Declaration Michael S.
13 Helsley, which includes sensitive, confidential and/or private information, or would reveal the subject
14 matter and content of the same. If an unsealed version of the Declaration were publicly filed, Defendants
15 would disclose sensitive, confidential and/or private financial information.
16 IV.
17 CONCLUSION
18 For each of the foregoing reasons, Defendants respectfully requests this Court grant
19 Defendants' Application to allow it to: (1) file an unredacted version of the Declaration of Michael S.
20 Helsley, including Exhibit "A" thereto, under seal, (2) file a redacted version of the Declaration of
21 Michael S. Helsley, including Exhibit "A" thereto, in the public record, and (3) receive any tentative or
22 final ruling on Defendants' motion under seal, to the extent necessary.
23
24 Dated: November 2, 2020 WANGER JONES HELSLEY PC
25
26
l~ --~-13
By(J/(!}r[1J)4,: 4$'/;1(/(:{~--
i ' 1
Michael S. Helsley
27 Marisa L. Balch
Attorneys for VALLEY CHILDREN'S
28 HOSPITAL and LORI GRASSMYER
{7555/031/0l!68333_DOCX} 7
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO FILE
RECORDS UNDER SEAL
Preview
1 WANGER JONES HELSLEY PC 265 E. River Park Circle, Suite 31 O E-FILED 2 Fresno, California 93720 11/4/2020 4:58 PM Telephone: (559) 233-4800 Superior Court of California 3 Facsimile: (559) 233-9330 County of Fresno By: C. York, Deputy 4 Michael S. Helsley #199103 Marisa L. Balch #258332 5 Attorneys for: Valley Children's Hospital, and Lori Grassmyer, an individual 6 7 8 SUPERIOR COURT OF CALIFORNIA COUNTY OF FRESNO, CENTRAL DIVISION 9 10 CARMEN KASMAUSKI, an individual, Case No. 20CECG02827 11 Plaintiff(s), MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX 12 v. PARTE APPLICATION TO FILE 13 RECORDS UNDER SEAL VALLEY CHILDREN'S HOSPITAL, a 14 California corporation; LORI GRASSMYER, an RE: Hearing on Motion to Disqualify individual; and DOES 1-10, Inclusive, 15 Date: February 24, 2021 Time: 3:30 p.m. 16 Defendant(s). Dept: 503 17 18 19 20 Defendants Valley Children's Hospital, Inc., a California corporation ("VCH"), and Lori 21 Grassmyer ("Defendants," collectively), submit the following Memorandum of Points and Authorities 22 in Support of their Application to File Records Under Seal (the "Application to Seal"). The Application 23 to Seal seeks an order allowing Defendants to file, under seal, an unredacted copy of the Declaration of 24 Michael S. Helsley, including Exhibit "A" thereto, in support of their Motion to Disqualify Counsel. 25 /// 26 /// 27 /// 28 /// (7555/031/01168333.DOCX) 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO FILE RECORDS UNDER SEAL 1 I. 2 INTRODUCTION 3 This Application seeks to seal Exhibit "A" to the Declaration of Michael S. Helsley in 4 support of Defendant's Motion to Disqualify Counsel (the "Motion"). This Application is made 5 pursuant to California Rule of Court 2.550, et seq., to prevent the disclosure of sensitive, confidential 6 and/or private financial information. 7 As set forth in the Declaration of Michael S. Helsley, filed and served in connection 8 herewith, there are sufficient grounds to seal Exhibit "A" to his Declaration in support of Defendants' 9 Motion, as the Declaration attaches a copy of the confidential Settlement Agreement entered into by 10 counsel, Kevin G. Little, Michael S. Helsley, and the parties in the initialFebruary 25, 2015 Yvonne 11 Peoples action filed against VCH in the Madera County Superior Court, Case No. MCV069653. The 12 Settlement Agreement entered into in that action, by its own terms, is confidential, and has been sealed 13 by the United States District Comi for the Eastern District of California in the second lawsuit filed by 14 Yvonne Peoples ("Peoples") against VCH, Case No. 1:19-cv-00272-LJO-SKO (subsequently 15 compelled to arbitration as JAMS Case No. l 100108449) (herein the "Yvonne Peoples Matter"). 16 The Settlement Agreement reveals specific sums paid to Peoples to settle her earlier 17 employment claims, including the breakdown of such payments and how taxes were repo1ied for such 18 payments. The Settlement Agreement further contains specific terms regarding Peoples' reinstatement, 19 including information on pay and benefits. All of these terms were intended by both parties to remain 20 confidential, and tliey further implicate the pai"ties' respective rights to financial privacy. They also 21 reveal how VCH structmes it business and compensation. (Declaration of Michael S. Helsley ["Helsley 22 Deel."], ~6.) 23 To avoid disclosme of this confidential and private information, and allow for the proper 24 determination of Defendants' Motion, Defendants seek to file Exhibit "A" to the Declaration of Michael 25 S. Helsley in supp mi of tlieir Motion under seal. An overriding interest exists that supports the sealing 26 of this limited portion of the Declaration, which if disclosed would invade Peoples' and VCH's right to 27 confidentiality and privacy and could cause hmm to both. 28 {7555/031/01168333.DOCX) 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX ?ARTE APPLICATION TO FILE RECORDS UNDER SEAL 1 The proposed sealing order is narrowly tailored, and no less restrictive means exist to 2 achieve the overriding interest. Defendants seek to seal only Exhibit "A" to the Declaration Michael S. 3 Helsley, which includes sensitive, confidential and/or private information, or would reveal the subject 4 matter and content of the same. If an unsealed version of the Declaration were publicly filed, Defendants 5 would disclose sensitive, confidential and/or private financial information. 6 Defendants therefore seek an order providing them the right to: (1) file an unredacted 7 version of the Declaration of Michael S. Helsley, including Exhibit "A" thereto, under seal, (2) file a 8 redacted version of the Declaration of Michael S. Helsley, including Exhibit "A" thereto, in the public 9 record, and (3) receive any tentative or final ruling on Defendants' motion under seal, to the extent IO necessary. The proposed sealing order is narrowly tailored, and no less restrictive means exist to achieve 11 the overriding interest. 12 II. 13 FACTUAL BACKGROUND 14 On or about February 25, 2015, Peoples filed her initial lawsuit against VCH alleging 15 claims for (1) Discrimination Based Upon Race in Violation of the Fair Employment and Housing Act 16 ("FEHA"); (2) Harassment and Failure to Prevent Harassment in Violation ofFEHA; (3) Retaliation in 17 Violation ofFEHA; (4) Wrongful Termination in Violation of Public Policy; and (5) Violation of Labor 18 Code§ 1102.5. (Helsley Deel., ,r2.) 19 In response, VCH cited multiple disciplinary issues and reprimands for Peoples' lack of 20 teambuilding skills and collegiality, and her chronic issues with tardiness and timekeeping, which 21 eventually became the reason for her termination. Notwithstanding these disciplinary issues, on or about 22 October 11, 2016, VCH elected to enter into a Settlement Agreement and Release with Peoples in an 23 effort to avoid litigation costs (the "Settlement Agreement"). (Helsley Deel., ,r 3.) 24 The Settlement Agreement identifies specific sums paid to Peoples to settle these 25 employment claims, including the breakdown of such payments and how taxes were reported for such 26 payments. The Settlement Agreement further contains specific terms regarding Peoples' reinstatement, 27 including info1mation on pay and benefits, and expressly provided for confidentiality. (Helsley Deel., 28 ,r 4-6.) Specifically, the Settlement Agreement, states in pertinent part: (7555/031/01168333.DOCX} 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX ?ARTE APPLICATION TO FILE RECORDS UNDER SEAL (8) As further provided and subject to in paragraph 10 below, Employee l agrees that she shall keep absolutely confidential all the terms of the settlement; the basis for and facts surrounding reinstatement; and any 2 monies paid to her as part of the settlement. This includes not publishing on social media any of the terms or conditions of this settlement or 3 reinstatement. Employee understands the importance of the terms in this paragraph, and that if she violates any term in this paragraph or in paragraph 4 10 below, it will be grounds for her immediate termination and it will be an undisputed ground for termination. 5 10. Confidentiality of Action *** and Settlement. It isunderstood and 6 agreed by Employee that the fact that this Agreement was entered into as well as its specific te1ms and conditions, the amount of monies paid in this 7 Agreement, including the facts arising out of the Complaint, the Dispute and Recitals, and the terms of reinstatement are to be kept absolutely 8 confidential, and not disclosed or publicized to any person except her spouse. Should Employee or her spouse be asked by anyone about the 9 circumstances under which this Agreement was entered into, its terms or provisions, or the circumstances giving rise to this Agreement, Employee 10 or her spouse shall respond, "that the matter has been resolved." Regarding reinstatement, any communication between Employee or her 11 spouse and anyone regarding her reinstatement with Employer, or in response to any questions regarding the same, Employee and her spouse 12 agree that they shall only state that "I (or she) have been reinstated to employment." Employee and her spouse shall not offer any more details 13 or facts regarding the reinstatement. The terms, conditions, monies paid, fact surrounding and leading up to this settlement agreement, including the 14 fact that Employee was reinstated, shall remain absolutely confidential and not disclosed by Employee or her spouse, or by anyone at all. Employee 15 agrees that any violation of this paragraph by her or her spouse, shall be a breach ofthis paragraph and constitutes immediate grounds for termination from her employment. In addition, Employee shall not disclose the terms 16 of the settlement and/or the amount of payment except as necessary for financial planning, tax preparation, her attorney, application for benefits 17 from local, state and/or federal programs, or as otherwise required by law. 18 (Settlement Agreement, ~ 2.6 and 10.) 19 Following entry into the Settlement Agreement, on January 9, 2017, Peoples was 20 reinstated as a Respiratory Care Practitioner III with VCH. Although Peoples' attitude was better upon 21 return, Peoples continued to have significant issues with documentation and time management, and 22 received numerous warnings and notices of discipline. She was subsequently te1minated by Plaintiff 23 Carmen Kasmauski ("Plaintiff') after extensive warning and discipline, for which Plaintiff was part and 24 parcel, and after Plaintiffs own recommendation to terminate Peoples. (See Declarations of Brian 25 Hornton and Maureen Colburn in support of Motion to Disqualify.) 26 On or about Febrnary 26, 2019, Peoples filed a second lawsuit (the Yvonne Peoples 27 Matter) against VCH, alleging causes of action for (1) Title VII retaliation and harassment (2) Failure 28 to Prevent Harassment (3) Wrongful Termination in Violation of Public Policy (4) Retaliation and (5) {7555/031/01168333.DOCX) 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX ?ARTE APPLICATION TO FILE RECORDS UNDER SEAL 1 Violation of Labor Code section 1102.5. (Helsley Deel., 17.) This complaint included reference to the 2 Settlement Agreement, and VCH has filed a Cross-Complaint for breach of the confidentiality 3 provisions in connection with the same. (See, Helsley Deel., 18.) 4 In doing so, the United States District Court for the Eastern District of California in the 5 Yvonne Peoples Matter ordered the Settlement Agreement sealed in connection with various motions 6 on March 14, 2019, August 20, 2019 and September 11, 2019. (Helsley Deel., 19 and Exs. "A"-"C.") 7 Counsel now seeks to continue the representation of Peoples, and concurrently represent 8 Plaintiff in connection with her Complaint, filed on or about September 24, 2020, asse1iing claims for 9 (1) Disparate Treatment Based on Race; (2) Disparate Treatment Based On Age; (3) Hostile Work 10 Environment Harassment Directed at Plaintiff Based on Race; (4) Hostile Work Environment 11 Harassment Directed at Others Based on Race; (5) Hostile Work Environment Harassment Directed at 12 Plaintiff Based on Age; (6) Hostile Work Environment Harassment Directed at Others Based on Age; 13 (7) Retaliation; (8) Failure to Prevent Harassment, Discrimination, and Retaliation; (9) Declaratory 14 Relief and Reinstatement; (10) Defamation Per Se; (11) Defamation Per Quod. (Helsley Deel., 1 I 0.) 15 As set forth in the accompanying Motion to Disqualify Counsel, filed and served 16 concurrently herewith, Kevin G. Little has an inherent and irreconcilable conflict of interest in 17 attempting to represent both Peoples and Plaintiff, and cannot comply with his duty ofloyalty to either- 18 in part due to the Settlement Agreement from the initial February 25, 2015 Yvonne Peoples action. 19 Given the foregoing, Defendants' Motion includes the Settlement Agreement as Exhibit 20 "A" to the Declaration of Michael S. Helsley in support of the Motion, which provides information as 21 to the basis for disqualification of Mr. Little and his office. 22 III. 23 ARGUMENT 24 Court records are presumed to be open. (Cal. Rules of Ct., Rule 2.550(c).) To file a 25 record under seal, a court order is required. (Id. at 2.55l(a).) A Court may order that a record be filed 26 under seal if it finds: 27 (1) There exists an overriding interest that overcomes the right of public access to tl1e record; 28 {7555/031/01168333.DOCX} 5 MEMORANDUM OF POINTS AND AUTHORJTIES IN SUPPORT OF EX PARTE APPLICATION TO FILE RECORDS UNDER SEAL (2) The overriding interest supports sealing the record; 1 (3) A substantial probability exists that the overriding interest will be 2 prejudiced if the record is not sealed; 3 (4) The proposed sealing is nanowly tailored; and (5) No less restrictive means exist to achieve the overriding interest. 4 5 (Id. at 2.550(d).) 6 Each factor is present here. California has a strong public policy favoring settlement 7 (Village Northridge Homeowners Assn. v. State Farm Fire & Casualty Co. (2010) 50 Cal.4th 913,930), 8 and a contractual obligation not to disclose the terms of a settlement agreement can constitute an 9 overriding interest supporting the sealing of certain records. (Universal City Studios, Inc. v. Superior 10 Court (2003) 110 Cal.App.4th 1273, 1284.) Such an overriding interest may exist where there is a 11 substantial probability of prejudice to a business interest, privileged information or even innocuous but 12 newsworthy information in the document to be sealed. (See Universal City Studios, supra, 110 13 Cal.App.4th at 1283-1284.) 14 In this case, the overriding interest and substantial probability of prejudice to V CH and 15 Peoples supports the sealing of the Settlement Agreement. First, the Settlement Agreement has two 16 lengthy, express confidentiality terms that were negotiated by the parties in the initial Yvonne Peoples 17 litigation. The inclusion of these confidentiality provisions in the Settlement Agreement was key to the 18 parties' agreement. (Helsley Deel., ,4.) 19 Second, the Settlement Agreement also includes an arbitration clause, further indicating 20 a desire by both paiiies to keep any disputes between them outside of the courts and in private arbitration. 21 (See Settlement Agreement, 2.6(9).) (Helsley Deel., ,5.) 22 Moreover, the Settlement Agreement reveals specific sums paid to Peoples to settle her 23 earlier employment claims, including the breakdown of such payments and how taxes were reported for 24 such payments. The Settlement Agreement also contains specific terms regarding Peoples' 25 reinstatement, including information on pay and benefits. All of these terms were intended by both 26 parties to remain confidential, and further implicate the parties' respective rights to financial privacy. 27 They also reveal how VCH structures it business and compensation. (Helsley Deel., ,6.) 28 (7555/031/0ll68333.D0CX) 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO FILE RECORDS UNDER SEAL 1 Additionally, while the breach of these confidentiality provisions will be litigated in the 2 Yvonne Peoples Matter, even in that case, the United States District Court for the Eastern District of 3 California ordered the Settlement Agreement sealed in connection with various motions by Defendants 4 on March 14, 2019, August 20, 2019 and September 11, 2019. (Helsley Deel., 19 and Exs. "A"-"C.") 5 Therefore, to avoid disclosure of confidential and private information, and to comply 6 with Rule 2.550, et seq. of the California Rules of Court, Defendants seek an order providing Defendants 7 the right to: (1) file an unredacted version of the Declaration of Michael S. Helsley, including Exhibit 8 "A" thereto, under seal, (2) file a redacted version of the Declaration of Michael S. Helsley, including 9 Exhibit "A" thereto, in the public record, and (3) receive any tentative or final ruling on Defendants' 10 motion under seal, to the extent necessary. 11 The proposed sealing order is narrowly tailored, and no less restrictive means exist to 12 achieve the overriding interest. Defendants only seek to seal Exhibit "A" to the Declaration Michael S. 13 Helsley, which includes sensitive, confidential and/or private information, or would reveal the subject 14 matter and content of the same. If an unsealed version of the Declaration were publicly filed, Defendants 15 would disclose sensitive, confidential and/or private financial information. 16 IV. 17 CONCLUSION 18 For each of the foregoing reasons, Defendants respectfully requests this Court grant 19 Defendants' Application to allow it to: (1) file an unredacted version of the Declaration of Michael S. 20 Helsley, including Exhibit "A" thereto, under seal, (2) file a redacted version of the Declaration of 21 Michael S. Helsley, including Exhibit "A" thereto, in the public record, and (3) receive any tentative or 22 final ruling on Defendants' motion under seal, to the extent necessary. 23 24 Dated: November 2, 2020 WANGER JONES HELSLEY PC 25 26 l~ --~-13 By(J/(!}r[1J)4,: 4$'/;1(/(:{~-- i ' 1 Michael S. Helsley 27 Marisa L. Balch Attorneys for VALLEY CHILDREN'S 28 HOSPITAL and LORI GRASSMYER {7555/031/0l!68333_DOCX} 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO FILE RECORDS UNDER SEAL