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Tentative Ruling
Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107


John Roe 1 vs Boy Scouts of America et al

Case No: 1372646
Hearing Date: Fri Jul 26, 2013 9:30

Nature of Proceedings: Motion: Continue Hearing on MSJ; Motion: File Documents Under Seal; Motion: MSJ/Adjudication

Defendants Boy Scouts of America, and Los Padres Council, Boy Scouts of America, filed a motion for summary judgment or adjudication on May 10, setting it for hearing on July 26, 2013. The motion was hand served upon plaintiff. The moving defendants simultaneously filed a motion to file documents under seal, regarding their motion for summary judgment or adjudication. Defendants seek to file under seal three exhibits to the declaration of its counsel, Thomas Delancy, in support of the motion. The exhibits are excerpts from the depositions of Jim Brown, Jane Roe (plaintiff’s mother), and John Roe I (plaintiff). The action arises from an alleged sexual assault of plaintiff, who was a minor at the time, by a local boy scout volunteer. The deposition testimony identifies the plaintiff. There is a public interest to protect his identity in that he is a minor and contends he has suffered a sexual assault. Even so, defendants assert that the deposition testimony is critical to the establishment of the grounds for their motion. They argue they have an overriding interest in being able to present essential evidence to the court without violating the law, and their interests may be prejudiced if the court does not permit them to file the evidence under seal. They assert that filing the exhibits in redacted form would be impracticable, because disclosure of plaintiff’s true identity occurs throughout the testimony. Plaintiff has chosen to pursue the action under the cloak of confidentiality of his identity. Plaintiff has not opposed the motion to file the documents under seal. Plaintiff obtained a stipulation and order shortening time for a hearing on a motion to continue the hearing on the motion for summary judgment, also set for hearing on July 26, 2013. The motion is based upon several grounds. The first explains why plaintiff was unable to earlier submit his request that the hearing on the motion for summary judgment be continued. When the motion was personally served upon plaintiff’s counsel, it was given to a temporary secretary who simply placed it in a “to be filed” bin, rather than calendaring the motion and placing it in the “in box” of one of plaintiff’s attorneys. Had this been done, plaintiff’s counsel asserted that he would have, at that time, made the motion to continue the hearing, based on what is now the second ground for continuance. He did not discover the existence of the summary judgment motion until he reviewed the CMC statement filed by defendant Los Padres Council (LPC), which indicated that LPC and BSA had filed a motion for summary judgment to be heard at the same time as the CMC, on 7/26/13. He assumed that was an error, but asked the office manager to confirm whether a summary judgment motion was set for 7/26. The office manager located the copy served upon plaintiff in a stack of documents in the office of the temporary secretary. This court ordered BSA to turn over Ineligible Volunteer Files (IV files) in 1/12. BSA challenged that order by writ proceedings in the Court of Appeal and, when that petition was denied, sought a writ of review by the California Supreme Court. After that petition was denied, BSA produced approximately 170,000 pages of IV files on 1/30/13. Counsel asserts that the objective coding and tagging of the files proceeded from that point and time, conducted by a litigation support unit in Los Angeles, and has only just been completed this month. The substantive review and tagging of the files is a much more time-consuming process, and is still underway. Once review of the files is complete, plaintiff will need to conduct depositions of the BSA hierarchy and those employees who had access to the IV files, in order to obtain the evidence necessary to oppose the summary judgment motion. Plaintiff anticipates seeking a Spring 2014 trial date, and requests that the summary judgment hearing be continued to late January, 2014, to allow all of this work to be completed. It is counsel’s good faith belief that the IV files will disclose information relevant to issues raised in the motion. Defendants have filed an extensive joint opposition to the motion to continue the hearing on the motion for summary judgment. Defendants essentially largely re-argue the merits of the motion for summary judgment (including cutting and pasting some arguments directly made in that motion) in arguing that the IV files are not relevant to their liability in this case, since the IV files will have no information on the prior knowledge of Stein’s propensity to molest, nor would any evidence that defendants concealed dangers of abuse of anyone other than Stein posed to scouts. Defendants argue further that plaintiff’s argument that the files will provide critical information regarding an agency relationship between defendants and volunteers is contrary to legal precedent, again asserting substantive law arguments. Defendants assert that plaintiff has had more than 2.5 years to conduct discovery, and any failure to do so prior to this time is due to his lack of diligence. They further assert that the IV files related to Stein were provided in 1/12, and all documents other than IV files were provided by 5/22/12. Defendants conclude that the motion should be heard and granted, because there is no material fact to dispute that defendants had no advanced knowledge of Stein. Motion to file documents under seal The motion to file the documents under seal is granted. Under California Rules of Court, Rule 2.550(d), the court may order that a record be filed under seal only if it expressly finds facts that establish: (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. The Court finds all of these requirements to be met in this case. The case involves allegations of the sexual abuse of a minor. It is the policy of the state to protect and keep confidential the identities of both minors and sexual abuse victims. The deposition transcript excerpts at issue, if allowed in the public file, would act to publicly identify the minor sexual abuse victim. The overriding interest in protecting the privacy and identity of the alleged minor sexual abuse victim overrides the right of the public to public access to the record. If those deposition transcript excerpts are not sealed, a substantial probability exists that the overriding interest will be prejudiced, particularly given the high profile nature of the case. The sealing is narrowly tailored, in that it applies only to the deposition transcript excerpts. Defendants have been able to fully argue their points, without reference to the identifying information, which is not critical to the arguments, and are not seeking at this time to seal any other documents related to their motion. There is no less restrictive means to achieve the overriding interest. Motion to continue hearing on motion for summary judgment Given the inadvertent errors which occurred within plaintiff’s attorney’s office, resulting in the failure by a temporary employee to either calendar the motion for summary judgment or bring it’s pendency to the attention of plaintiff’s attorneys, a continuance of the hearing for some period of time is a certainty. Particularly because no trial date has been set, an imminent hearing on the motion is not critical. The issue for resolution by the court is whether to continue the hearing: (a) to a time convenient to the court which allows sufficient opportunity for plaintiff to prepare a substantive opposition to the motion which, given internal court issues, will be no earlier than October, 2013, or (b) to late January, 2014, as requested by plaintiff, in order to allow plaintiff the opportunity to complete review of the IV files and/or conduct additional discovery. The Court is hampered in evaluating the motion to continue, in that the necessity of hearing it on shortened time has eliminated an opportunity for plaintiff to respond to the opposition arguments asserted by defendants, with respect to his claimed necessity to have the hearing continued to late January 2014, either with respect to the relevance of the information to be gleaned from the IV files or otherwise. It is the intention of this court to hear and consider plaintiff’s arguments at the hearing of the motion to continue. The Court is not inclined to engage in a comprehensive evaluation of the substantive arguments set forth in the motion for summary judgment itself, simply to resolve whether or not the sought- after discovery could provide evidence relevant to the motion. If it appears, after argument, that there is some basis to believe that some evidence relevant to the motion could be obtained, the hearing will be continued to January 31, 2014. Otherwise, the hearing will be continued to October 25, 2013. If the October 25 date is selected, that date will still be without prejudice to plaintiff’s possible presentation of a further noticed motion for continuance, upon a showing of good cause. Tentative Ruling: Motion to File Documents Under Seal, granted; Hearing on Motion for Summary Judgment continued to at least October 25, 2013.
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