Alex Rosas v. Leroy Baca

[2] O [7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA [10] 11 ALEX ROSAS and JONATHAN ) Case No. CV 12-00428 DDP (SHx) GOODWIN, on behalf of ) 12 themselves and of those ) similarly situated, ) 13 ) ORDER RE: MOTIONS TO INTERVENE Plaintiff, ) AND UNSEAL 14 ) v. ) 15 ) LEROY BACA, Sheriff of Los ) 16 Angeles County Jails; PAUL TANAKA, Undersheriff, Los 17 Angeles Sheriff's [Dkt. 268,269] Department; CECIL RHAMBO, 18 Assistant Sheriff, Los Angeles Sheriff's Department 19 and DENNIS BURNS, Chief of Custody Operations Division, 20 Los Angeles Sheriff's Department, [21] Defendants. 22 ___________________________ [23] 24 Presently before the court are two separate Motions to 25 Intervene and Unseal, filed by Los Angeles Times Communications LLC 26 (“LA Times) (Dkt. 268) and WitnessLA (Dkt. 269) (collectively, 27 “Movants”). The motions seek intervention to unseal six video 28 exhibits, and references thereto, concerning use of force incidents 1 incidents that occurred before Sherriff Luna, the current 2 Sheriff’s, administration. Having considered the submissions of 3 the parties and heard oral argument, the court grants the motions 4 to intervene and adopts the following Order. An order regarding 5 the motions to unseal shall issue separately. 6 I. Background 7 In 2012, Plaintiffs filed a putative class action complaint 8 alleging a pervasive pattern of excessive force being utilized 9 against inmates in Los Angeles County jail facilities in downtown 10 Los Angeles. (Dkt. 32.) The court certified a plaintiff class 11 shortly thereafter, and facilitated several settlement discussions 12 for approximately two years. Those discussions culminated in a 13 Settlement Agreement, under which an independent panel of experts 14 (“the Monitors) would formulate an implementation plan to address 15 use of force issues within the jails and issue periodic reports 16 regarding Defendants’ progress toward implementation. (Dkt. 110). 17 This Court approved the settlement in April 2015, and retained 18 jurisdiction to enforce the Settlement Agreement. (Dkt. 135.) 19 Progress toward implementation of the Settlement Agreement 20 proceeded more slowly than hoped, and in September 2017, Plaintiffs 21 filed a Motion to Enforce Settlement Agreement, primarily seeking 22 access to documents that Defendants were already producing to the 23 Monitors. (Dkt. 152). After extensive discussions, the parties 24 reached a mutually agreeable resolution, and Plaintiffs withdrew 25 their Motion to Enforce (Dkt. 194). Key to that resolution was a 26 Stipulated Protective Order, which this Court entered in May 2018 27 upon a finding of good cause. (Dkt. 193.) In essence, the 28 Protective Order provided that Defendants would provide Plaintiffs 1 with certain information, including videos, with the proviso that 2 such information would remain confidential and filed before the 3 court, if at all, under seal. Plaintiffs retained, however, the 4 right to seek a court determination whether confidential 5 information could be publicly filed. 6 Several years passed. Although the Los Angeles County 7 Sheriff’s Department made some headway in implementing the 8 Settlement Agreement, progress toward certain key provisions 9 stalled under former County and Sheriff’s Department leadership. 10 Accordingly, in May 2023, Plaintiffs filed a Motion to Modify 11 Implementation Plan (Dkt. 252.) In support of that motion, 12 Plaintiffs filed a total of six video exhibits (“the Videos”). In 13 accordance with the Protective Order, Plaintiffs filed the Videos, 14 as well as various references thereto (collectively, “the Sealed 15 Materials”) in Plaintiffs’ supporting materials, under seal. 16 Movants now seek to intervene in this case for the sole 17 purpose of unsealing the Sealed Materials. 18 II. Legal Standard 19 Under Federal Rule of Civil Procedure 24, a court must allow 20 intervention by any movant who “claims an interest relating to the 21 property or transaction that is the subject of the action, and is 22 so situated that disposing of the action may as a practical matter 23 impair or impede the movant’s ability to protect its interest, 24 unless existing parties adequately represent that interest.” Fed. 25 R. Civ. P. 24(a)(2). An applicant meets these criteria, and may 26 intervene as of right, if (1) the motion is timely; (2) the 27 applicant has a “significant protectable” interest relating to the 28 action; (3) disposition of the action may, as a practical matter, 1 impair or impede the applicant’s ability to protect that interest; 2 and (4) the applicant’s interest is inadequately represented by the 3 parties to the action. California ex rel. Lockyer v. United 4 States, 450 F.3d 436, 440 (9th Cir. 2006). When evaluating these 5 requirements, courts are guided by “practical and equitable 6 considerations,” and generally construe the Rule to apply “broadly 7 in favor of proposed intervenors.” Wilderness Soc. v. U.S. Forest 8 Serv., 630 F.3d 1173, 1179 (9th Cir. 2011) (quoting United States 9 v. City of Los Angeles, 288 F.3d 391, 397 (9th Cir. 2002)) 10 (internal quotation omitted). 11 Alternatively, when an intervenor cannot satisfy the four-part 12 test for intervention as of right, courts may allow any applicant 13 who “has a claim or defense that shares with the main action a 14 common question of law or fact” to intervene. Fed. R. Civ. P. 15 24(b)(1)(B). Courts may only grant such permissive intervention, 16 however, where an applicant shows, in addition to a common question 17 of law or fact, “(1) independent grounds for jurisdiction; [and 18 that] (2) the motion is timely.” San Jose Mercury News, Inc. v. 19 U.S. Dist. Ct.--N. Dist. (San Jose), 187 F.3d 1096 , 1100 (9th Cir. 20 1999). Where, as here, a party does not seek to litigate a claim 21 on the merits, but rather seeks only to challenge a protective 22 order, that party need only satisfy the timeliness requirement. 23 See Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470 , 473-74 24 (9th Cir. 1992); Cosgrove v. Nat’l Fire & Marine Ins. Co., 770 F. 25 App’x 793, 795 (9th Cir. 2019) (unpublished disposition). In 26 evaluating motions to intervene, courts must “take all 27 well-pleaded, nonconclusory allegations in the motion to intervene, 28 the proposed complaint or answer in intervention, and declarations 1 supporting the motion as true.” Sw. Ctr. for Biological Diversity 2 v. Berg, 268 F.3d 810 , 820 (9th Cir. 2001). 3 III. Discussion 4 A. Permissive Intervention 5 The parties agree that the only disputed issue as to whether 6 Movants should be permitted to intervene is the timeliness of their 7 attempts to do so. See Beckman, 966 F.2d at 473-74 . “In 8 determining whether a motion for intervention is timely, a court 9 must consider three factors: (1) the stage of the proceeding at 10 which an applicant seeks to intervene; (2) the prejudice to other 11 parties; and (3) the reason for and length of the delay.” San Jose 12 Mercury News, 187 F.3d at 1100–01 (internal quotation marks 13 omitted). The inquiry into any delay “looks to when the intervenor 14 first became aware that its interests would no longer be adequately 15 protected by the parties.” Id. 16 (1) Prejudice 17 With respect to prejudice, Defendants contend that publication 18 of the Sealed Materials would impair their ability to conduct 19 investigations related to the use of force inside the jails, and 20 would compromise inmate and deputy safety. (County Opposition at 21 12; Declaration of Larry Alva ¶¶ 6,8.) Moreover, Defendants argue, 22 their agreement to provide the Sealed Materials to Plaintiffs was 23 conditioned on the expectation that those materials would, absent 24 some affirmative action by Plaintiffs, remain confidential. (Opp. 25 at 11.) The unsealing of the confidential materials will, 26 Defendants assert, impair their ability to cooperate and share 27 information with Plaintiffs in the future, and by extension impair [28] 1 Defendants’ ability to comply with the Settlement Agreement, thus 2 affecting the interests of both Plaintiffs and Defendants.1 3 The Ninth Circuit has, at times, concluded that where a 4 party’s agreement to settle a matter is premised upon 5 confidentiality, intervention to challenge that confidentiality can 6 so substantially prejudice a party that denial of leave to 7 intervene may be appropriate. See Brunson v. Lambert Firm PLC, 757 8 F. App’x 563, 567 (9th Cir. 2018). Brunson is somewhat analogous 9 to the circumstances here. Although the LA Times argues that the 10 sealing of the materials at issue here “was not a bargained-for 11 aspect of the parties’ settlement agreement,” that is only true in 12 a narrow sense. To be sure, the Protective Order postdated the 13 Settlement Agreement by several years. The stipulated Protective 14 Order, however, was the product of extensive, protracted, and 15 ultimately successful negotiations between the parties, and was key 16 to the resolution of Plaintiffs’ Motion to Enforce Settlement 17 Agreement. 18 As Movants also highlight, Brunson differed from the instant 19 case in that the former involved a dispute between two private 20 parties, whereas this case has been litigated by a public entity 21 and a class of plaintiffs. The Ninth Circuit has, however, also 22 occasionally found prejudice involving similar parties. Orange 23 County v. Air California, 799 F.2d 535 , 538 (9th Cir. 1986), for 24 example, involved a municipality’s attempt to intervene in 25 litigation between a county government and a collection of 26 citizens’ groups and private businesses. 799 F.2d at 536-37. In [27] 1 The court notes that Plaintiffs have not taken any position [28] on the instant motions. 1 light of the district court’s observation that intervention “would 2 be the undoing of five years of protracted litigation,” the Orange 3 County Air court concluded that intervention “clearly [] would 4 prejudice the parties involved,” and therefore affirmed the 5 district court’s denial of permissive intervention, notwithstanding 6 that such denial preceded the district court’s final court approval 7 of a negotiated settlement involving a public entity. Air 8 California, 799 F.2d at 538, 539. 9 Air California, however, involved an attempt to intervene on 10 the merits, not a narrower effort to unseal confidential materials. 11 Air California, 799 F.2d at 537. In more recent years, the Ninth 12 Circuit has taken a more limited view of prejudice, at least in the 13 context of relatively limited motions to intervene for the purpose 14 of gaining access to sealed court records. In San Jose Mercury 15 News, government entity defendants argued, as do Defendants here, 16 that they might have litigated the case differently if they had 17 known that materials subject to a protective order might later 18 become public. San Jose Mercury News, 187 F.3d at 1101. The court 19 rejected that argument, holding that any reliance on the protective 20 order was unreasonable, as the government defendants could not 21 bargain away the public’s right to access court documents. Id. 22 The court further observed that, by the defendants’ logic, any 23 post-hoc attempt to intervene would necessarily be untimely, and 24 concluded instead that any burdens or inequities resulting from a 25 party’s efforts to obtain records “should affect not the right to 26 intervene but, rather, the court”s evaluation of the merits of the [28] 1 applicant’s motion to lift the protective order.”2 Id. 2 Accordingly, this Court cannot conclude that any prejudice to the 3 parties warrants the denial of intervention. 4 (2) Stage of Proceedings 5 “The stage of the proceeding at which an applicant seeks to 6 intervene” is also relevant to the timeliness inquiry. San Jose 7 Mercury News, 187 F.3d at 1100. Here, Movants seek to intervene at 8 a very late stage of this settled, but ongoing, proceeding. This 9 case was filed, and a plaintiff class subsequently certified, over 10 eleven years ago. (Dkts. 1, 54.) After numerous settlement 11 conferences with the court, the parties entered into the Settlement 12 Agreement over eight years ago. (Dkt 110.) The court held a 13 public hearing and approved the settlement shortly thereafter. 14 (Dkts. 134, 135.) Pursuant to the Settlement Agreement, the 15 Monitors have issued publicly-available status reports for over 16 seven years. (E.g. Dkt. 141.) The parties have engaged in 17 contentious, collaborative, and productive discussions regarding 18 implementation of the settlement agreement for nearly as long. 19 (Dkts. 152, 194.) As part of those discussions, the parties 20 stipulated to, and the court entered, the Protective Order, which [23] 2 WitnessLA appears to suggest that a motion to intervene for the purpose of unsealing can never be untimely, citing the San Jose [24] Mercury News court’s statement that “if a motion to intervene is denied as untimely, it is likely that subsequent motions to [25] intervene will also be held untimely, stymying the public’s right of access altogether.” San Jose Mercury News, 187 F.3d at 1101. [26] The court made this pronouncement, however, in the course of rejecting the defendants’ specific, prejudice-based “upset [27] expectations” argument. Id. As the court observed, the defendants did not, unlike Defendants here, contend that a delay rendered the [28] attempt to intervene untimely. Id. 1 the instant motions seek to circumvent or modify, over five years 2 ago. (Dkt. 193.) 3 The advanced stage of the litigation, alone, however, does not 4 render untimely a motion to intervene to challenge confidentiality 5 orders, even if made “long after a case has been terminated.” Blum 6 v. Merrill Lynch Pierce Fenner & Smith Inc., 712 F.3d 1349 , 1353 7 (9th Cir. 2013) (internal quotation marks omitted). Courts in this 8 circuit have, therefore, regularly concluded that a motion to 9 intervene is not necessarily untimely simply for being filed late 10 in the game, even after settlement, trial, or an appeal. See, 11 e.g., Hernandez v. Cnty. of Monterey, No. 13-CV-02354-BLF, 2023 WL 12 5418753, at *1 (N.D. Cal. Aug. 21, 2023) Morizur v. SeaWorld Parks 13 & Ent., Inc., No. 15-CV-02172-JSW, 2023 WL 1111501 , at *1 (N.D. 14 Cal. Jan. 30, 2023); Mendez v. City of Gardena, 222 F. Supp. 3d 15 782, 788 (C.D. Cal. 2015). The late stage of proceedings in this 16 case is not, therefore, dispositive of Movants’ motions. 17 (3) Reasons for and Extent of Delay 18 This is not to say that any delay in seeking intervention is 19 inconsequential. The court still must determine when a proposed 20 intervenor first knew, or should have known, that intervention 21 might have been necessary to protect the intervenor’s interest. 22 San Jose Mercury News, 187 F.3d at 1101; see also Alaniz v. Tillie 23 Lewis Foods, 572 F.2d 657, 659 (9th Cir. 1978). 24 There can be no dispute that that media outlets such as 25 Movants have an interest in “publish[ing] information concerning 26 the operation of government.” Kamakana v. City & Cnty. of 27 Honolulu, 447 F.3d 1172 , 1178 (9th Cir. 2006). Nevertheless, 28 Defendants argue that Movants had notice that their interests 1 diverged from Plaintiffs’ no later than May 2018, when Plaintiffs 2 stipulated to the entry of the Protective Order and withdrew their 3 Motion to Enforce. Movants suggest that they relied upon 4 Plaintiffs to safeguard Movants’ interests, and that Movants only 5 realized that such reliance was misplaced in May 2023, when 6 Plaintiffs failed to exercise the right, retained under the 7 Protective Order, to seek to file the Sealed Materials publicly. 8 As private citizens, Plaintiffs certainly possess some 9 interest in keeping a “watchful eye” on public agencies. Kamakana, 10 447 F.3d at 1178 (quoting Nixon v. Warner Communications, Inc., 435 11 U.S. 589, 598 (1978)). Strictly speaking, however, the interest 12 Plaintiffs seek to protect through this litigation — the right 13 under the Eighth and Fourteenth Amendments “to reasonable 14 protection from violence and excessive force” — is distinct from 15 Movants’ interest in publishing information concerning the workings 16 of government agencies. (First Amended Complaint ¶ 3.) In some 17 cases, however, a plaintiff’s interest may overlap with distinct 18 press interests. In San Jose Mercury News, for example, two 19 plaintiffs brought employment discrimination claims against a 20 public entity. San Jose Mercury News, 187 F.3d at 1101. 21 Notwithstanding the private nature of the plaintiffs’ interests, 22 the court held, upon a motion by a newspaper to obtain a sealed 23 report produced, over the defendants’ objection, in discovery, that 24 “the interests of the Mercury News were being effectively 25 represented by the Plaintiffs, who had persistently sought 26 production of the Report.” Id. Granted, the court also concluded 27 that that confluence of interests persisted only “until the filing 28 of the stipulated protective order,” at which point “the injury to 1 the public’s right of access became clear.” Id. Here, however, 2 the filing of the Protective Order did not give Movants similar 3 notice. The Protective Order applied (and continues to apply) to 4 broad categories of documents, not specifically to the Sealed 5 Materials themselves. Movants have made clear that they do not 6 seek access to the entire universe of materials subject to the 7 Protective Order, but rather only to the limited set of Sealed 8 Materials, which did not exist at the time the Protective Order was 9 entered. Movants had no indication of the existence of those 10 materials until Plaintiffs recently filed them, at which point it 11 also became clear that Plaintiffs would not seek a court 12 determination that the Sealed Materials could be filed publicly. 13 Movants sought to intervene approximately two months later. This 14 modest delay does not warrant a finding of untimeliness. 15 IV. Conclusion 16 For the reasons stated above, the court determines that 17 Movants’ motions to intervene are timely. The motions to intervene 18 are, therefore, GRANTED, pursuant to Rule 24(b).3 19 A separate Order shall issue with respect to Movants’ motions 20 to unseal the Sealed Materials. At argument, Movants indicated 21 that they would not object to redactions of certain information in 22 the Videos. Defendants, for their part, indicated that they would 23 not object to the unsealing of at least one of the Videos. With [25] 3 The LA Times, but not Witness LA, also seeks intervention as [26] of right under Rule 24(a). WitnessLA, but not the LA Times, also asserts a First Amendment right to intervene. Having granted [27] permissive intervention to Movants, however, the court need not address these additional arguments. [28] 1] that understanding, the court is inclined to grant Movants’ motions to unseal, subject to the following: 3 Defendants shall, within 21 days of the date of this Order, lodge with the court a set of edited Videos pixelated, cropped, or otherwise redacted to the minimum extent necessary to address any privacy or security concerns (the “Edited Videos”).* Such 7} alterations shall not obscure or diminish any depictions of uses of force. Plaintiffs and Defendants may lodge, along with the set of Edited Videos, a Joint Statement providing additional contextual information about any or all of the Videos. Although the court 11] prefers that Plaintiffs and Defendants agree on any such commentary, the parties may, if necessary, submit separate 13] additional statements. 14 The court then anticipates issuing an Order releasing the Edited Videos shortly thereafter. 16 IT IS SO ORDERED. [17] Dated: September 12, 2023 18 DEAN D. PREGERSON United States District Judge [25] 26 | —— cr 27 “To the extent Defendants believe that any of the written references to the Videos in the Sealed Materials implicate these concerns, Defendants shall also lodge proposed versions of those [28] references redacted to the minimum extent necessary.