NICBYTE, LLC v. Community West Bank

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Tentative Ruling

Re: NICBYTE, LLC v. Community West Bank Superior Court Case No. 24CECG01486

Hearing Date: September 3, 2026 (Dept. 501)

Motion: Plaintiffs’ Motion to Seal

Tentative Ruling:

To grant Plaintiffs’ motion to seal Exhibits 85, 87, 92, 93, 94, 105, 108, 110, 117, and 119 submitted with their evidence in opposition to the motion for summary judgment.

Explanation:

“Unless confidentiality is required by law, court records are presumed to be open.” (Cal. Rules of Court, rule 2.550(c).)

“A record must not be filed under seal without a court order. The 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).)

“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.” (Cal. Rules of Court, rule 2.551(b)(1).)

“The party requesting that a record be filed under seal must lodge it with the court under (d) when the motion or application is made, unless good cause exists for not lodging it or the record has previously been lodged under (3)(A)(i). Pending the determination of the motion or application, the lodged record will be conditionally under seal.” (Cal. Rules of Court, rule 2.551(b)(4).)

The court must make certain express findings in order to seal records. Specifically, the court must find that the facts 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. (Cal. Rules of Court, rule 2.550(d).)

Also, “[a]n order sealing the record must: (A) Specifically state the facts that support the findings; and (B) Direct the sealing of only those documents and pages, or, if 7

reasonably practicable, portions of those documents and pages, that contain the material that needs to be placed under seal. All other portions of each document or page must be included in the public file.” (Cal. Rules of Court, rule 2.550(e)(1)(A), (B).)

Here, plaintiffs move to seal an account agreement for non-party BW Industries, Inc. and nine emails between Bitwise in-house legal counsel and its former officers and employees included as evidence in opposition to defendant’s motion for summary judgment.

Exhibit 85, the account agreement, was designated as confidential according otthe parties’ stipulated protective order and is to be sealed on the basis that it contain private financial data of a non-party. (Overstock.com, Inc. v. Goldman Sachs Grp., Inc. (2014) 231 Cal.App.4th 471, 503-505.) As the nature of the document is evident on its face, the court finds there is a sufficient, fact-based showing of the document containing the non-party private financial information. (Fogarty Decl. ¶¶ 10-11.) The court is satisfied that the prejudice to the non-party bank customer in making public a third party’s private financial data overrides the public interest in the documents.

Exhibits 87, 92, 93, 94, 105, 108, 110, 117, and 119 are emails produced by the bankruptcy trustee pursuant to Federal Rule of Evidence 502(d) which provides that the transmittal of the data taken into the bankruptcy trustee’s custody to a requesting party shall not be deemed a waiver of any claim of privilege. (Fogarty Decl., ¶ 7.) The emails between in-house counsel for Bitwise and its officers are communications protected by attorney-client privilege and attorney work product doctrine that would otherwise be protected from discovery to support sealing the documents. (Id., ¶ 8; McNair v.

Nat’l Collegiate Athletic Assn. (2015) 234 Cal.App.4th 25, 33.) There would be significant prejudice to non-parties Bitwise and its officers in making these protected communications public. (Id., ¶ 12.) The court is satisfied that the prejudice in making these communications public overrides the public interest in the documents.

Given the nature of the documents there is no less restrictive means to achieve the overriding interest of non-party Bitwise other than the sealing of the documents as requested.

Plaintiffs’ motion to seal exhibits 85, 87, 92, 93, 94, 105, 108, 110, 117, and 119 in support of plaintiff’s opposition to the motion for summary judgment is granted.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: KCK on 09/01/26. (Judge’s initials) (Date)

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