DFB Portal, LLC vs. Marco Fine Arts

With respect to the final charge, the Court finds Plaintiff failed to establish the cost was reasonably incurred in connection with the prosecution of this action. (Civ. Code, § 1794, subd. (d).)

Consequently, Plaintiff is awarded reasonable costs in the amount of $1,010.83.

55 DFB Portal, LLC vs. Marco Fine Arts

23-01315041

Motion to Seal

The Motion to Seal brought by Plaintiff DFB Portal, LLC and non-party 240 Tech, LLC is DENIED.

“The public has a First Amendment right of access to civil litigation documents filed in court and used at trial or submitted as a basis for adjudication.” (Savaglio

v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 596-597.) In line with the above, “[u]nless confidentiality is required by law, court records are presumed to be open.” (Cal. Rules of Court rule 2.550(c).) Additionally, “[a] record must not be filed under seal without a court order” and “[t]he court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.” (Cal. Rules of Court rule 2.551(a).)

“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 interests will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exists to achieve the overriding interest.” (Cal. Rules of Court rule 2.550(d).)

Moving parties seek to seal Exhibits 10 through 13, which consist of commercial lease agreements executed by The Dream Junction, LLC and 240 Tech LLC.

Moving Plaintiff concedes the leases were offered into evidence “for the limited purpose of establishing that Plaintiff and/or 240 Tech are or were tenants of the respective leased premises” (Motion: 6:21-23; See also ¶9 of Hedrick Declaration) and asserts it is only seeking to seal “non-boilerplate negotiated lease terms” (Motion: 8:11); however, Plaintiff makes no effort to narrowly tailor the sealing order, to allow the relevant portions (i.e. the portions which simply identify the tenant and the property) into the public record. The entirety of Exhibits 10 through 13 were redacted from the public record (See ROA No. 299) and, to the extent moving parties intended to move to seal only portions, the same were not identified.

As noted by Plaintiff, where confidential information is offered in connection with a motion for summary judgment and is ultimately irrelevant to the same, sealing is appropriate. (Overstock.com, Inc. v. Goldman Sachs Grp. Inc. (2014) 231 Cal.App.4th 471, 506.) However, this authority is inapplicable where, as here, Plaintiff concedes the existence of the Lease Agreements with respect to the properties identified therein, is relevant.

Further, the assertion the referenced landlords will be injured by revelation of the terms of the Lease Agreements is wholly unsupported.

To support sealing, Plaintiff offers the declaration of Gabriel G. Hedrick, Counsel for DFB Portal, LLC and 240 Tech, LLC. (¶1 of Hedrick Declaration.) At most, Counsel declares that the redacted lease terms “constitute confidential business information and/or trade secrets of the respective non-party landlord entities.” (¶8 of Hedrick Declaration.) Additionally, Counsel declares that public disclosure “would likely negatively affect the third party landlords’ ability to negotiate with their current or prospective tenants and would potentially eliminate any competitive advantage they may have over their competitors...” (Ibid.)

The above statements lack foundation or personal knowledge and fails to establish an overriding interest likely to suffer prejudice.

As noted by moving party, a Court may appropriately seal financial information which involves “confidential matters relating to the business operations” of a party, where the “public revelation of these matters would interfere with its ability to effectively compete in the marketplace,” if made public or where “there is a substantial probability that their revelation would prejudice the foregoing

legitimate interests of [entity].” (Universal City Studios, Inc. v. Superior Ct. (2003) 110 Cal.App.4th 1273, 1286.) However, sealing is appropriate only where a “fact-specific” declaration establishes the above. (Universal City Studios, Inc. v. Superior Ct. (2003) 110 Cal.App.4th 1273, 1286.)

With respect to Exhibits 48 through 51, the same consists of balance sheets and profit and loss statements for DFB Portal, LLC and 240 Tech, LLC.

Per Counsel, the “financial statements” and the “financial condition” of DFB Portal, LLC and 240 Tech, LLC “is not information that is generally available to the public.” (¶10 of Hedrick Declaration.) Additionally, per Counsel, the documents “contain private information of persons who are not parties to this case, including loans from and distributions to both companies’ members, public disclosure of which would violate those non-parties’ rights to privacy under Article 1, Section 1 of the California Constitution.” (¶10 of Hedrick Declaration.)

Firstly, while the Declaration asserts financial information for third parties is included within the exhibits, to the extent this refers to 240 Tech, LLC and Kris Friedrich, the assertion is somewhat disingenuous, as both are parties to the related case Marco Fine Arts, Inc. v. 240 Tech LLC (2023-01317799). Additionally, both are relevant to Defendant’s defense of set-off. (See ROA No. 134 and Thirteenth Affirmative Defense.)

Similarly, while Plaintiff asserts the documents include the private financial information of company members, this statement appears incorrect: No references to other individual members or partners could be located within Exhibits 48, 49 and 51. With respect to Exhibit 50, the document filed conditionally underseal redacts partner contributions and distributions, other than those referring to Kris Friedrich. (See Exhibit 50.)

Thus, while it is true that financial information falls within the constitutional right to privacy (See Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656), the financial information provided is relevant to the resolution of the motion for summary judgment and Plaintiff has not established that any privacy interest outweigh the presumption of access to court records.

“[W]hen evaluating whether records should be sealed under the common law, courts engage in a balancing analysis, weighing the presumption of access against a variety of competing interests.” (Overstock.com, Inc. v. Goldman Sachs Grp. Inc. (2014) 231 Cal.App.4th 471, 484.) “Thus, the question in the context of sealing is whether the state-recognized privacy interest in financial information overrides the federal constitutional right of access to court records. This is necessarily a balancing inquiry, dependent on the facts and circumstances of the particular case.” (Id. at p. 504.)

Here, the Declaration offered solely from Counsel for DFB Portal, LLC and 240 Tech, LLC, wherein he asserts simply that the information is “not information that is generally available to the public” (¶10 of Hedricks Declaration), is insufficient to support sealing, as it does not establish an overriding interest, likely to suffer prejudice.

The declaration offered does not contain “facts sufficient to justify the sealing.” (Cal. Rules of Court rule 2.551(b)(1).) “[A]t a minimum...the party seeking to seal documents, or maintain them under seal, must come forward with a specific enumeration of the facts sought to be withheld and specific reasons for withholding them.” (H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 894.)

Consequently, the Motion to Seal is DENIED.

56 Quick Bridge Funding, LLC vs. Quick Claims Adjusting LLC

26-01539598

Motion to Set Aside/Vacate Default and Judgment

NO TENTATIVE RULING - Parties to appear on Zoom or in-person.

57 The San Juan Company LLC vs. Hjorth-Olsen

24-01429184

Motion for Judgment on the Pleadings

Defendant Ole Hjorth-Olsen (“Defendant”) moves for judgment on the pleadings as to the First Amended Complaint (“FAC”) filed by The San Juan Company, LLC and DMB San Juan Investment North, LLC (collectively, “Plaintiffs”). The motion is DENIED for the reasons set forth below.

Defendant’s request for judicial notice of Plaintiff’s FAC is GRANTED. (Evid. Code § 452, subd. (d).)

Meet and Confer

Moving counsel represents that the parties met and conferred by written correspondence regarding the issues raised in the motion but were unable to resolve them. (Gessin Decl., ¶¶ 2-4, Exs. A-B.) Code of Civil Procedure section 439, however, requires the parties to meet and confer in person, by telephone, or by video conference. The parties’ written correspondence did not satisfy that requirement. The Court notes the deficiency but considers the motion on its merits.

First Cause of Action for Breach of Guaranty

The elements of a cause of action for breach of contract are “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) The elements of a cause of action for breach of guaranty are (1) a valid guaranty; (2) principal obligor’s default; (3) and failure of the guarantor to perform under the guaranty. (See Gray1 CPB, LLC v. Kolokotronis (2011) 202 Cal.App.4th 480, 486).

A guarantor is one who promises to answer for the debt or perform the obligation of another when the person ultimately liable fails to pay or perform. (Civ. Code, § 2787; Gramercy Investment Trust v. Lakemont Homes Nevada, Inc. (2011) 198 Cal.App.4th 903, 911.)

The FAC alleges, in pertinent part, as follows:

In April 1990, Plaintiffs’ predecessors entered into a written License Agreement with Olsen Pavingstone, Inc. (“Olsen”). (FAC, ¶ 9 & Ex. A.) The license