ABG-SHARK, LLC AS SUCCESSOR IN INTEREST TO GREAT WHITE SHARK ENTERPRISES, LLC VS ASPEX EYEWEAR INC., A DELAWARE CORPORATION

Tentative Rulings

Case Number: *******3086 Hearing Date: November 17, 2021 Dept: 36

*COUNSEL – YOU CANNOT SUBMIT ON THE TENTATIVE PRIOR TO THE HEARING*

Superior Court of California

County of Los Angeles

Department 36

The motion is denied.

Any documents lodged under seal are to be returned to the parties and not placed in the case file, unless the parties notify the clerk in writing within 10 days that the record is to be filed unsealed. (Cal. Rules of Court, Rule 2.551(b)(6).)

Notice of Motion

A motion to seal records must be served on all parties that have appeared in the case. (Cal. Rules of Court, Rule 2.551(b)(2).) Plaintiff has filed proof of service indicating service by mail on August 26, 2021, on Defense counsel, which is also timely for the hearing date. (CCP ; 1005(b).)

Discussion

Plaintiff ABG-Shark moves to file moves to file an agreement between Plaintiff and Defendant Aspex Eyewear, Inc. under seal. The grounds are that Plaintiff intends to file an application for a prejudgment writ of attachment and include a copy of the written agreement between the parties, and that the written agreement contains a confidentiality clause. (See Brodkin Decl. ¶ 6.)

Plaintiff does not explicitly state that the document sought to be filed under seal is the same as the alleged agreement in the Complaint, but the court notes that its description matches the description of the alleged License Agreement between the parties in the Complaint. (Compare Mot. at p. 3 with Compl. ¶ 7.)

“Unless confidentiality is required by law, court records are presumed to be open.” (CRC Rule 2.550(c).) However, a party may move to seal records pursuant to California Rules of Court, rules 2.550-2.551. “A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” (CRC Rule 2.551(b).) To grant an order permitting a record to be filed under seal, the court must expressly find facts that establish all of the following:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and

(5) No less restrictive means exist to achieve the overriding interest.

(Cal. Rules of Court, rule 2.550(d).)

Plaintiff has not made a sufficient showing to overcome the presumed right of public access to the documents. Plaintiff asserts as grounds for the proposed sealing that the terms of the Settlement Agreement are confidential.

As an initial matter, the attachment to the motion is unauthenticated and does not form competent evidence. There is no Notice of Lodging.

Next, the elements under California Rules of Court, Rule 2.550(d) have not been sufficiently supported by facts in the accompanying Alan L. Brodkin and authority in support.

Plaintiff provides no legal authority to support of the existence of an overriding interest, which would overcome the right of public access to the record. There is no authority or argument that Plaintiff’s intent to file an application for a prejudgment writ of attachment, or the existence of a confidentiality clause, is sufficient.

Next, there an insufficient showing that the proposed sealing is narrowly tailored. There is no showing in the motion or declaration as to what is sought to be redacted from the document. Even if the court considered the unauthenticated exhibit, the exhibit would seem to redact the entire third paragraph, most of page 24 on payments and royalties, a portion of page 25 on a minimum advertising commitment, various terms regarding a micro-site for marketing and promotion of GN Eyewear Products, and unspecified portions of what appears to be a May 19, 2015 amendment of the former agreement. (See generally Exhibit.) Authority or evidence that the foregoing is sufficiently narrowly tailored is not before the court. Last, there is no authority or argument provided that no less restrictive means exist to achieve the overriding interest.

The motion is denied.

Dated: ____________________________

Gregory Alarcon

Superior Court Judge