Defendants' Notice of Motion And Motion For An Order Sealing Videotape; Memorandum of Points And Authorities; Declarations

Motion

Cal. Super. - 4th Dist.October 14, 2016

— o O © 0 0 ~ N O O a b h o w W N ROBERT B. MULLEN (State Bar No. 136346) AT&T SERVICES, INC. - LEGAL DEPARTMENT 430 Bush Street, 3rd Floor San Francisco, California 94108 robert. mullen@att.com Telephone: (415) 268-9498 Facsimile: (415) 543-0418 Attorneys for Defendant AT&T Mobility, LLC (sued herein as “AT&T") BOWMAN AND BROOKE LLP Heidi M. Yoshioka (SBN: 149580) Stefanie Jo (SBN 281334) 970 West 190th Street, Suite 700 Torrance, CA 90502 Telephone No.: (310) 768-3068 Fax No.: (310) 719-1019 Attorneys for Defendant, CHRISTIAN MORELLI SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE ARZU, Plaintiff, VS. AT&T, a Corporation, CHRISTIAN VINCENT MORELLI, "AVERY" AND DOES 1 through 50, inclusive, Defendants. e r ” ee r? ” e e r ” Se er ” Ne es ” Ne es ” Ne es ”S e e ” e e S e e ? e e ” c s ” 111 19651427v1 CASE NO: 30-2016-00880936-CU-PO-CJC Assigned to: Hon. Richard Lee Department: "C32" DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR AN ORDER SEALING VIDEOTAPE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS OF HEIDI M. YOSHIOKA AND CHRISTIAN VINCENT MORELLI [Filed Concurrently with Notice of Lodging "Conditionally Under Seal" [RESERVATION ID: 72846036] Date: August 23, 2018 Time: 1:30 p.m. Dept.: (C32 Action Filed: October 14, 2016 Trial: October 22, 2018 NOTICE OF MOTION AND MOTION FOR AN ORDER SEALING VIDEOTAPE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF HEIDI M. YOSHIOKA — _ — © O W 0 0 N N O O o g b h o w O N TO THE COURT, THE PARTIES, AND ALL COUNSEL OF RECORD, PLEASE TAKE NOTICE that on August 23, 2018 at 1:30 p.m. in Department C32 of the above-entitled Court, located at 700 Civic Center Drive West, Santa Ana, CA 92701, Defendants AT&T Mobility, LLC (“AT&T”) and Christian Vincent Morelli ("Morelli") will and hereby does move for an order sealing AT&T's surveillance video footage. This Motion is made pursuant to California Rules of Court, Rules 2.550 and 2.551 on the grounds: 1) the video does not serve the public interest; 2) Defendants would be unfairly prejudiced; and 3) the video is confidential. This Motion is based on this Notice, the Memorandum of Points and Authorities in support thereof, the Notice of Lodging of Videotape Conditionally Under Seal, the Declarations of Heidi M. Yoshioka and Christian Vincent Morelli, all records and pleadings on file herein, and upon such other and further oral and written evidence as the Court may consider at or prior to the hearing on this matter. DATED: July 9, 2018 AT&T SERVICES, INC.-LEGAL DEPARTMENT By: TChaf 3 - rd. Robert B. Mullen Attorneys for Defendant AT&T Mobility, LLC (sued herein as “AT&T) DATED: July 9, 2018 BOWMAN AND BROOKE LLP By: Heidi M. Yoshioka Stefanie Jo Attorneys for Defendant, CHRISTIAN MORELLI 19651427v1 2 NOTICE OF MOTION AND MOTION FOR AN ORDER SEALING VIDEOTAPE; MEMORANDUM OF POINTS AND AUTHORITIES: DECLARATION OF HEIDI M, YOSHIOKA — _ — O O O W 0 0 ~ N O O O o B A o w N MEMORANDUM OF POINTS AND AUTHORITIES l INTRODUCTION The instant request seeks an Order approving the motion to seal security video footage related to Plaintiff Arzu's (“Plaintiff”) alleged incident. Good cause exists to seal such video surveillance footage. Il. FACTUAL BACKGROUND This matter arises from an incident at an AT&T store in Dana Point, California on January 23, 2016. Plaintiff Arzu (“Plaintiff’), an AT&T customer, had a disagreement with the store manager, defendant Christian Morelli (“Morelli”). Plaintiff asked Morelli for her old iPhone back after canceling a contract she had entered the day before, in which she had exchanged her old iPhone for a new iPhone. Plaintiff became upset over having to pay $102 in fees (a restocking fee of $35 and credit reversal for the old phone of about $67). Rather than pay the fees, she grabbed her old phone from Morelli and tried to leave the store with it, leading Morelli to meet her at the door. Plaintiff alleges Morelli then body-slammed her against the glass door and placed herin a chokehold and “choked her out” she claims she lost consciousness for a few seconds and fell to the ground onto both knees, injuring her left knee. Based on these allegations, Plaintiff asserts causes of action against Morelli and AT&T for false imprisonment, assault, battery, negligent supervision, negligence, defamation, fraud, and intentional and negligentinfliction of emotional distress. There is a security video which shows her allegations are false. The video shows that Morelli did not body-slam or choke Plaintiff. The video shows that Plaintiff did not go unconscious or fall to the ground, and that her left knee did not even touch the ground. To the contrary, the video shows Morelli tried to hold the door in a closed position while Plaintiff pushed against him and she in fact bit him on the forearm - as evidenced by photos taken by Morelli and the Orange County Sheriff's Department. The video shows Morelli relaxed his hold on the door as Plaintiff was biting him and that 19651427v1 3 MEMORANDUM OF POINTS AND AUTHORITIES o O © 0 0 N N O O O o A Ww W O N a N N O N N D N N R N DN DN N D N D N D am a a A a a a a a a a = 0 ~ N O O A W N A D O O N O T D W N she ducked under his arm, dropped to one knee (herright knee) and scooted away. lll. LEGAL ARGUMENT California Rules of Court Rule 2.551, subdivision (b)(1), authorizes a party to request that a record be filed under seal by way of motion or an application. Pursuant to Rule 2.550(d) of the California Rules of Court, a court may seal a record if the court finds the following: (1) there exists an overriding interest of the parties that overcomes the right of public access to the record; (2) the overriding interest supports the sealing of the record; (3) a substantial probability exists that the overriding interest will be prejudiced without sealing; (4) the proposed sealing is narrowly tailored; and (5) there is no less restrictive means to achieve the overriding interest. a. There exists an overriding interest of the parties that overcomes the right of public access to the record. AT&T's interest in sealing the video footage in question overrides the public's right of access to the video, as nothing shows that its disclosure would benefit the public. In Eutiquio Acevedo Mendez v. The City of Gardena, the plaintiff argued that the public had a right of access to video footage of police officers shooting and killing a man. (2015 WL 13648954 (C.D.Cal.)). In that case, the court concluded that information “related to [the] investigation of alleged police corruption could not be sealed based on a blanket protective order, especially in the absence of “compelling reasons sufficient to outweigh the public's interest in disclosure.” Id. at 6. Unlike in this case, in Mendez, the public had a legitimate interest in the transparency of the police agency. Here, no such interest exists. In this case, Plaintiff alleges that Morelli body-slammed her against a glass door, placed her in a chokehold, and “choked her out.” She further claims that she lost consciousness for a few seconds and fell to the ground onto both knees, causing injury to her left knee. To the contrary, the video shows Morelli tried to hold the door in a closed position while Plaintiff pushed against him and in fact bit him on the forearm. The video then shows that Morelli relaxed his hold on the door, as Plaintiff bit him, and 19651427v1 4 MEMORANDUM OF POINTS AND AUTHORITIES O O © 0 0 ~ N O O O o D h o w a N N N N N D N D N D N D N D N D A m a e d d a a a a = a a a o o ~ N O O g h W N A O O O O N O O h Ww W N N that she ducked under his arm, dropped to one knee, and scooted away. Here, rather than exposing Morelli in an act of misconduct, as Plaintiff would like to show, Morelli rightfully attempted to stop Plaintiff from leaving the premises with AT&T property. Morelli, unlike the police officers in Mendez, did nothing wrong. The point of releasing the video footage in Mendez was to create transparency and avoid corruption. The release of the video in this case would provide no such benefit because there is no conduct to correct. Further, without sealing the video, AT&T would be unfairly prejudiced by the release of such misleading content and would consequently disparage AT&T in the eyes of the public. In Wild, Carter & Tipton v. Yeager, the court defined disparaging as “any statement [or] publication that would, to a reasonable person, place the entity or person in a bad light.” (No. F070631, 2017 WL 4564230, at *12 (Cal. Ct. App. Oct. 13, 2017). Here, while it is evident that Morelli did nothing more than try to stop a someone from taking AT&T property and exiting the store, there exists the possibility that the public would view the content differently without the context of other witness statements, causing AT&T to potentially garner a bad reputation and even lose business. In addition, the video is a confidential personnel record and “would constitute an unwarranted invasion of personal privacy” to the individuals present in the video. Cal. Penal Code § 832.8. Not only would it cause AT&T to violate the privacy of those individuals, such wrongdoing would further disparage AT&T's image. Thus, the release of the video in this case, would undeservingly and unnecessarily place AT&T in a bad light. b. The Proposed Sealing Is Narrowly Tailored and No Less Restrictive Means Exists to Protect the Overriding Interest. The proposed sealing is narrowly tailored and no less restrictive means exists to protect the overriding interest of AT&T. AT&T is specifically asking the court to seal the 111 19651427v1 5 MEMORANDUM OF POINTS AND AUTHORITIES O O © 0 0 ~ N O O O o b h o w D N - — subject video and nothing more. Further, redacting or editing the content to hide any images would serve no benefit as the video would still be associated with AT&T. IV. CONCLUSION Accordingly, AT&T respectfully request that this Court seal security surveillance footage. DATED: July 9, 2018 AT&T SERVICES, INC.-LEGAL DEPARTMENT By: alt 73. radl. Robert B. Mullen Attorneys for Defendant AT&T Mobility, LLC (sued herein as “AT&T) DATED: July 9, 2018 BOWMAN AND BROOKE LLP idi VI. Attorneys for CHRISTIAN # 19651427v1 6 MEMORANDUM OF POINTS AND AUTHORITIES O o O W o o N N o O O o A o w N N = N N O N N N m a m a d d e d d w d w d w d w d w d W w W N N = ~ O O © 0 ~ N O O O o H A Ww W N N = 524 25 26 27 28 DECLARATION OF HEIDI M. YOSHIOKA |, Heidi M. Yoshioka, declare as follows: 1. I am an attorney duly licensed to practice before all the courts of the State of California with Bowman and Brooke LLP, attorneys of record for defendant Christian Morelli ("Morelli"). | have personal knowledge of the facts set forth herein and if called upon | could and would competently testify thereto. | make this declaration in support of Defendants’ Motion for an Order to Seal Videotape. 2. The parties have a protective order in place and the surveillance videos of the events leading up to the incident and the incident at the door have been marked as “confidential.” 3. Good cause exists for not only the “confidential” labeling of the surveillance videos, but for sealing the surveillance footage because failing to allowing for the sealing could invade the rights of third parties and plaintiff because their images are in the surveillance videos. Moreover, while it is evident that Morelli did nothing more than try to stop a someone from taking AT&T property and exiting the store, there exists the possibility that the public would view the content differently without the context of other witness statements, causing AT&T to potentially garner a bad reputation and even lose business. 4, Defendants do not see any less restrictive means to protect the interests of third parties, plaintiff, Morelli and AT&T other than to have the surveillance footage sealed, only to be reviewed by the Court in evaluating the evidence in conjunction with Defendants’ Motion for Summary Judgment, or in the alternative, Summary Adjudication of Issues. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 9th day of July 20187at Torrance, TE— 19651427v1 DECLARATION OF HEIDI M. YOSHIOKA - — o O © o o ~ N O& O o r h o w D N DECLARATION OF CHRISTIAN VINCENT MORELLI I, Christian Vincent Morelli, declare as follows: | am the store manager for AT&T Mobility, LLC in Dana Point, CA. | have personal knowledge of the facts set forth herein and if called upon | could and would competently testify thereto. | make this declaration in support of Defendants’ Motion for an Order to Seal Videotape. 2. Attached as Exhibit “1” is a USB drive which contain two videos of the surveillance video of the incident that is the subject of this lawsuit and is provided as evidence in support of AT&T and Morelli's Motion for Summary Judgment, or in the alternative, Summary Adjudication of Issues. | personally recorded the two videos contained in the USB drive, which is marked as Exhibit “1.” 3. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 8th day of July 2018 at Dana Point, California. Christian Morell) Christian Vincent Morelli, Declarant 19651427v1 DECLARATION OF CHRISTIAN VINCENT MORELLI o O O W 0 0 N N O O O o A 0 D N N N D D N D N D D D N N N N N N A a a a a a a a a a a a 0 N O h h W N A O O O 0 N O O h W N PROOF OF SERVICE CCP 1013A(3) STATE OF CALIFORNIA, COUNTY OF LOS ANGELES | am employed in the County of Los Angeles, State of California. | am over the age of 18 and not a party to the within action; my business address 970 West 190th Street, Suite 700, Torrance, CA 90502. On July gq, 2018 | served the foregoing document described as DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR AN ORDER SEALING VIDEOTAPE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS OF HEIDI M. YOSHIOKA AND CHRISTIAN VINCENT MORELLI on all interested parties in this action by placing [_] the original [X] a true copy thereof enclosed in sealed envelopes addressed as follows: Samuel Kelsall V, Esq. KELSALL & ASSOCIATES PC 25411 Cabot Road, Suite 114 Laguna Niguel, CA 92653 X BY MAIL (CCP §1013(a) and §2015.5): | served the documents by placing the envelope for collection and mailing following our ordinary business practices. | am readily familiar with this business's practice for collecting and processing documents for mailing. On the same day the document is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage fully prepaid. | am aware that on motion of the party served, service is presumed invalid if the postal cancellation date or postage date is more than 1 day after the date of deposit for mailing in affidavit. ] BY OVERNIGHT DELIVERY/NEXT DAY DELIVERY (CCP §1013(c) and §2015.5): | sealed such documents in separate envelopes to each addressee and deposited each for collection by mailing via overnight mail/next day delivery in a box or other facility regularly maintained by the U.S. Postal Service or an Express Service carrier, or delivered to an authorized carrier or driver authorized by the U.S. Postal Service or an Express service carrier to receive documents, with delivery fees paid or provided. 1] BY PERSONAL SERVICE (CCP §1011 and §2015.5): | caused to be delivered such envelope by hand to the addressee. Executed on July | , 2018, at Torrance, California. x (State) | declare under penalty of perjury under the laws of the State of California that the above is true and correct. Drle|i777 Emily Zabattd)(J 19651427v1 9 NOTICE OF MOTION AND MOTION FOR AN ORDER SEALING VIDEOTAPE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF HEIDI M. YOSHIOKA