Filed 2/2/22 Lund v. Lund CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

BRADFORD D. LUND,

Appellant,

v.

MICHELLE A. LUND et al,

Respondents.

 B309186

 (Los Angeles County

Super. Ct. Nos. BP129814, BP055495, 

BP119204, BP119205, BP129815)

APPEAL from an order of the Superior Court of Los Angeles County, 

David J. Cowan, Judge. Affirmed.

Adkisson Pitet and Joseph P. Busch; Horne Slaton and Matthew 

Monaco for Appellant.

Mitchell Silberberg & Knupp, Hayward J. Kaiser, Andrew C. Spitser 

for Respondents.
2

Bradford Lund appeals from the denial of his motion to seal 11 

documents filed in probate proceedings in the trial court. His appeal is the 

latest in the long-running dispute regarding several multi-million dollar 

trusts established for the benefit of appellant and his siblings, the 

grandchildren of Walt and Lillian Disney. Appellant filed five appeals, one 

for each trust at issue, from the court’s order denying his motion to seal.1

Appellant argued below that the documents at issue contained medical 

information, as well as other sensitive details of his personal life, and 

therefore that his right to privacy required their sealing. He also urged the 

trial court to follow the decisions of an Arizona court, which had sealed 

several of the documents as part of separate proceedings there. In denying 

the motion to seal, the trial court concluded that while appellant had a right 

to privacy in his medical information, he had not established that his right 

overrode the presumption of public access to documents. In particular, the 

court found that appellant put his mental capacity at issue in the probate 

proceedings, allowed several of the exhibits to be publicly available for 

several years, and otherwise failed to meet any of the requirements for 

sealing the documents set forth in California Rules of Court, rule 2.550.2 The 

court also found that appellant failed to provide sufficient evidence of the 

Arizona sealing orders. As a result, the court found those orders had no 

persuasive effect. We find no error in the trial court’s decision and therefore 

affirm.

FACTS AND PROCEDURAL BACKGROUND

This litigation encompasses five probate cases corresponding to the five 

trusts at issue. Respondents First Republic Trust Company (FRTC), L. 

Andrew Gifford, Robert Wilson, and Douglas Strode are co-trustees of two 

residuary trusts for the benefit of appellant and his twin sister, Michelle 

Lund.

3 FRTC is also the trustee for the Lillian B. Disney Trust fbo Bradford

1 We granted appellant’s motion consolidated the appeals for the 

purposes of briefing, argument, and disposition. 

2 All further rule references are to the California Rules of Court unless 

otherwise indicated.

3 We refer to members of the Lund family by first name for clarity 

because they share a surname; no disrespect is intended.
3

D. Lund, and is the former trustee of two other trusts benefitting appellant 

(the 1992 trust and the 1986 trust). 

The residuary trust established for appellant’s benefit provided for 

distributions of 20 percent of the then-remaining principal balance when 

appellant reached ages 35, 40, and 45 (the birthday distributions). However, 

the trust further provided: “Notwithstanding the foregoing, the Trustees 

shall have the power to withhold any such distribution in the event that the 

Trustees, in their discretion, determine that the child has not theretofore 

demonstrated the maturity and financial ability to manage and utilize such 

funds in a prudent and responsible manner” (the discretionary withholding 

power). In June 2005, when appellant turned 35, the trustees unanimously 

exercised the discretionary withholding power to withhold appellant’s 35th 

birthday distribution.4

I. Prior Proceedings

A. Arizona Proceedings

In 2006, appellant (then age 36) filed a guardianship petition in 

Arizona Superior Court seeking appointment of his father, William Lund; 

stepmother, Sherry Lund; Sherry’s daughter, Rachel Schemitsch; and 

appellant’s sister, Michelle, as his guardians (the 2006 Arizona proceeding). 

Appellant later withdrew this petition. 

In 2009, appellant’s aunt and two of his half-sisters filed a petition for 

appointment of a guardian and conservator over appellant in Arizona 

Superior Court (the 2009 Arizona proceeding). The Arizona court entered 

judgment in favor of appellant in 2016. The Arizona Court of Appeal 

affirmed the judgment. The appellate court opinion’s summary of the facts 

from the trial in the 2009 Arizona proceeding included an admission by 

appellant that he had developmental disabilities, and a statement from a 

court-appointed neuropsychologist that appellant suffered “significant 

cognitive deterioration” from 2003 to 2011. 

4.The trustees subsequently decided to withhold appellant’s 40th and 

45th birthday distributions when appellant reached the qualifying ages.
4

B. California Proceedings

1. 2013 trial and 2014 appeal

Appellant (then age 40) initiated these trust proceedings in California 

in December 2010 when he filed a petition seeking to compel his 35th and 

40th birthday distributions from his residuary trust and to remove the 

current trustees. In July 2011, FRTC filed two petitions for instructions as 

trustee of the 1986 and 1992 trusts, related to appellant’s purported attempt 

to remove it and appoint a new trustee. 

The petitions on the various trusts were tried simultaneously in a 

bench trial before Judge Mitchell Beckloff in December 2013 (the 2013 trial). 

The court issued a final statement of decision on June 3, 2014, finding, as 

relevant here, that the trustees did not abuse their discretion in withholding 

appellant’s 35th and 40th birthday distributions. The court found the 

trustees introduced “substantial evidence ... to support their position” that at 

the time of appellant’s 40th birthday, he “did not have the maturity and 

financial ability to manage and utilize a substantial trust distribution.” In 

particular, the court found it compelling that appellant himself contended he 

was significantly impaired when he filed the guardianship petition in the 

2006 Arizona proceeding, and that these limitations were echoed in a 

declaration by appellant’s treating physician at the time. In addition, the 

court cited evidence of ongoing concerns over appellant’s “worsening” 

condition, as noted by William and other family members in 2009.

Appellant appealed from the probate court’s 2014 statement of decision 

(the 2014 appeal). We affirmed the trial court’s ruling in our prior 

unpublished opinion, First Republic Trust Company v. Lund (Dec. 6, 2017, 

B258224) (nonpub. opn.) (Lund I). In our discussion, we summarized key 

portions of the evidence adduced at trial related to the bases for the trustees' 

decisions to deny appellant’s birthday distributions and the information 

known to the trustees at the time of those decisions. We concluded that

substantial evidence supported the trial court’s determinations. We also 

granted appellant’s motion to seal two exhibits—referred to here as exhibits 

14 and 118. 
5

2. OSC re GAL and potential settlement

Litigation over the trusts continued. In December 2018, the probate 

court issued orders to show cause (OSCs) as to whether it should (1) appoint 

a limited guardian ad litem (GAL) for appellant; and/or (2) remove or 

suspend Sherry and financial advisor James Dew as co-trustees of the 1992 

Trust. The parties filed responses to the OSCs. Respondents filed an 

extensive set of supporting exhibits, including the documents at issue here. 

On March 19, 2019, appellant filed a motion to seal multiple exhibits 

included in respondents’ response to the OSCs.5 In the meantime, the 

parties, along with Michelle, reached a global settlement agreement on April 

8, 2019. The parties filed petitions for approval of the settlement agreement 

on April 30, 2019; appellant also filed a petition to approve replacement 

trustees. 

In June 2019, the probate court held a hearing on the pending petitions 

and issued a tentative ruling, expressing many concerns with the proposed 

settlement. On September 27, 2019, the court granted in part the petitions 

for approval of the settlement. The court continued the balance of the 

petitions for approval, stating that “these petitions involve unresolved issues 

with the fitness of the proposed trustees, Bradford’s capacity and best 

interests, and the terms of the Settlement.” The court also appointed a 

limited purpose GAL for appellant, citing its duty to ensure that the 

settlement was in appellant’s best interest and its concerns as to appellant’s 

limited capacity. 

In early October 2019, appellant filed notice that the settlement 

agreement was null and void due to the court’s rulings. He also filed 

objections to the initial ruling and the further rulings. Between October and 

December 2019, appellant filed multiple petitions for writ of mandate with 

this court, including a challenge to the probate court’s appointment of the 

GAL and partial approval of the settlement. We denied these petitions. 

In November 2019, appellant appealed from the probate court’s 

September 27, 2019 rulings. In an unpublished opinion, Lund v. First 

Republic Trust Company (Jan. 30, 2020, B302634) (nonpub. opn.) (Lund II), 

5 This motion remained pending while the parties discussed settlement; 

appellant ultimately filed a renewed motion in 2020, discussed further below.
6

we concluded that the trial court’s orders contained no final appealable 

orders. We therefore dismissed the appeals. 

3. Fifth amended petition

In February 2019, appellant filed a verified fifth amended petition “for 

redress for breach of trust,” seeking orders (1) compelling the trustees to 

make the prior birthday distributions6 “based upon reconsideration after 

Arizona judgment”; (2) compelling the trustees to “distribute outstanding and 

future sub-trust income”; (3) compelling an accounting; (4) removing all 

trustees and appointing temporary trustees; and (5) surcharging the trustees 

and reducing their compensation. He alleged that the Arizona court found 

that he had “consistently demonstrated that he makes mature and 

appropriate financial decisions,” and thus that “no reasonable exercise of 

discretion by a trustee could deny Bradford his Birthday Distributions.” He 

further alleged that the Arizona court found that he had established 

“presently, in 2016, he is not incapacitated, an appointment of a guardian is 

not necessary to provide for his demonstrated needs, and [his] needs are 

currently being properly met by less restrictive means.” 

II. Renewed Motion to Seal

Appellant filed a renewed motion to seal on March 25, 2020, again 

seeking to seal exhibits 14, 22, 30, 40, 47, 48, 55, 83, 84, 89, and 118,7 filed by 

respondents in support of their response to the court’s 2018 OSC. He 

discussed the exhibits in the following two categories:

6 In addition to their prior denial of his 35th and 40th birthday 

distributions, appellant alleged that respondents denied his 45th birthday 

distribution in 2015. 

7 Appellant’s motion at times also requested sealing of exhibit 77 

(containing deposition excerpts), but at other times omitted that exhibit. The 

trial court included exhibit 77 in its ruling denying the motion to seal. 

Appellant has not listed exhibit 77 in his papers on appeal. We therefore 

consider any argument regarding this exhibit forfeited. In any event, our 

conclusion regarding exhibit 77 would be the same as the others presented 

here.
7

The first category included exhibits 14, 22, 40, and 118, all of which 

were introduced in the 2006 and/or 2009 Arizona proceedings.8 Exhibit 14 is 

an April 10, 2006 investigative report filed in the 2006 Arizona proceeding by 

Robert Segelbaum, a court-appointed investigator. Exhibit 22 is a November 

30, 2009 letter by Dr. Drake Duane, filed in the 2009 Arizona proceeding. 

Exhibit 40 is a May 17, 2011 investigative report by Segelbaum, filed in the 

2009 Arizona proceeding. Exhibit 118 is a March 20, 2006 physician’s report 

by Dr. Duane, filed in the 2006 Arizona proceeding. 

Appellant argued that all four exhibits were sealed by the Arizona 

courts and that he had established an overriding interest in having them 

sealed in the instant action in order to “maintain[ ] the integrity of out-ofstate orders.” In support of his contention that the four exhibits had been 

previously sealed in Arizona, appellant filed the declaration of his attorney, 

Sandra Slaton, who stated that the exhibits “are all sealed documents in 

Arizona.” Slaton’s declaration cited and attached three documents: (1) 

Exhibit A, one page of the docket from the 2006 Arizona proceeding, with 

entries indicating that certain documents were sealed; (2) Exhibit B, an order 

entered in May 2011 in the 2009 Arizona proceeding, sealing a document 

described only as “Investigator’s Report”; and (3) Exhibit C, a minute entry 

from trial on April 1, 2016 in the 2009 Arizona proceeding, listing the 

exhibits received in evidence by exhibit number (including a highlighted 

entry for “Exhibit 9”) and ordering the day’s proceedings sealed. 

The second category of exhibits included four excerpts of deposition 

transcripts (exhibits 30, 47, 48, and 55) and three interrogatory responses by 

appellant (exhibits 83, 84, and 89). Specifically, exhibit 30 is 20 pages of 

excerpts from the 2010 deposition of appellant’s father, William, discussing 

multiple topics. Exhibit 47 is six pages of excerpts from the 2012 deposition 

of appellant’s step-sister, Schemitsch, including discussions of the house she 

and her family share with appellant, how many bedrooms there are, the 

expenses she covers, and work that she performs for appellant. Exhibit 48 is 

over 50 pages of excerpts from the 2012 deposition of William. Exhibit 55 is a 

8 In their response to the OSC, respondents lodged these four exhibits 

conditionally under seal, stating that they were doing so in an abundance of 

caution to allow appellant to move to seal them. 
8

single page from William’s 2013 deposition, discussing certain services 

performed by William and Sherry for appellant. Exhibits 83, 84, and 89 are 

appellant’s responses to five special interrogatory requests, including 

information regarding the trustees of one of appellant’s trusts, his financial 

managers, and his powers of attorney. There is no indication in the record 

that any of this evidence was designated as confidential at the time it was 

produced. 

Appellant argued that these seven exhibits should be sealed because 

they contained “confidential, personal, and private information regarding Mr. 

Lund that the public does not need access to.” In a single paragraph, he also 

argued that he met the standard for sealing under rule 2.5509 because his 

“right to privacy and the confidential nature of the information . . . overrides 

all interest the public may have to access [the] documents” and “[t]here is a 

substantial probability that Mr. Lund will be prejudiced by not sealing” the 

exhibits. Appellant did not identify any particular portion of any document 

to be sealed. Instead, he argued that the exhibits included “deposition 

testimony regarding Mr. Lund, deposition testimony regarding Mr. Lund’s 

alleged health status, answers to special interrogatories which reveal 

information regarding a private trust,” and “other private and confidential 

information” that “prejudicially implies a certain perception of Mr. Lund to 

the public that, in all likelihood, will be defeated.” 

In their opposition to the motion to seal, respondents argued that 

appellant failed to satisfy his burden to justify sealing any of the exhibits. 

They acknowledged that exhibits 14 and 118 were sealed by Judge Beckloff at 

the conclusion of the 2013 trial10 and by this court in the 2014 appeal, and 

therefore suggested that if the court “finds good cause” to seal those exhibits, 

9 Pursuant to rule 2.550(d), the court may order a record sealed if it 

finds that: “(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.”

10 The trial court also redacted its 2014 statement of decision in 

conformance with this sealing. 
9

respondents “would not oppose” their sealing in these cases. With respect to 

exhibits 22 and 40, however, they contended that counsel for both parties 

read portions of those exhibits into evidence during the 2013 trial and 

appellant’s counsel publicly filed the exhibits as part of the record for the 

2014 appeal, and therefore appellant could not claim an overriding privacy 

interest in documents that had remained publicly available for over five 

years. They also argued that appellant had not established any of the 

requisite elements of rule 2.550 for any of the documents, including the 

requirements that his sealing request was narrowly tailored and that there 

were no less restrictive means to protect his privacy. 

In reply, appellant argued that the release of his “personal, private 

information would be prejudicial to only Mr. Lund,” and that an order sealing 

exhibits 22 and 40 “is narrowly tailored to protect the medical opinions and 

confidential investigator’s report” as “the least restrictive alternative.” As to 

the deposition excerpts, he argued that the “information included in these 

exhibits include[s] confidential trust information of one of Mr. Lund’s trusts 

and testimony of witnesses regarding Mr. Lund.” 

At the hearing on the motion to seal on September 3, 2020, appellant’s 

counsel argued that appellant had not put his mental capacity at issue, but 

even if he had, the materials should still be sealed because his medical 

history was private. She did not identify any particular information, instead 

citing appellant’s “private, sensitive medical information.” Respondents’ 

counsel argued that the records were presumed public and appellant had not 

overcome that presumption based on his assertion of privacy, particularly in 

a case involving a large trust that had a significant public interest. In reply, 

appellant’s counsel argued that the trustees “should be ashamed of 

themselves” for putting appellant’s medical records in the public file in order 

to “keep embarrassing Mr. Lund and humiliating him every step of the way.” 

At the conclusion of the hearing, the court took the motion under submission. 

The court issued its ruling on September 16, 2020, denying the motion 

to seal. Citing rule 2.550(d), the court noted that the “common law right of 

access to public documents” was one that a party could overcome only by 

showing “an overriding interest.” The court also found that “[t]he public has 
10

greater interest in information critical to the Court’s decision while 

minimally significant evidence can be more readily sealed.” 

Turning to the specific exhibits, the court rejected appellant’s argument 

that it should seal Exhibits 14, 22, 40, and 118 in reliance on prior sealing 

orders in Arizona, finding that there were “substantial evidentiary 

deficiencies in the record as to what records were actually sealed by the 

Arizona court.” The court found that appellant did not provide any Arizona 

sealing orders or protective orders clearly covering the exhibits at issue, and 

neither the Arizona docket nor Slaton’s supporting declaration “are the best 

evidence that a protective order exists. Brad does not claim the protective 

orders for the 2006 reports are lost or inaccessible and has not offered any 

excuse not to supply it.” The court further found that appellant failed to offer 

authority establishing an interest in “maintaining the integrity of out-of-state 

orders” as an “overriding interest” that would overcome the right of public 

access. The court reasoned that appellant “has provided no context for the 

Arizona court’s sealing order. . . . It would not be appropriate for the Court to 

blindly follow an out-of-state order from nine years ago without any basis for 

doing so.” 

Although respondents did not dispute that Exhibits 14 and 118 were 

sealed by the Arizona court, the court concluded that “because of the strong 

presumption of public access and requirement that any sealing order be 

narrowly tailored, the Court is required to independently scrutinize seal 

requests.” The court also found that it was in a “much different position” 

than the Arizona court regarding the sealing requests, because appellant ‘has 

placed his own capacity at issue here by filing probate petitions challenging 

[respondents’] refusal to make birthday distributions from the [trust], since 

[respondents’] refusal was based on their determination that Brad was 

incapable of handling the distributions.” As such, “[e]vidence relating to 

Brad’s condition is immediately relevant to the issues he himself raised.” 

The court also relied on the fact that appellant “publicly filed Exhibits 

22 and 40 as part of his Appellant’s Appendix in his 2014 appeal . . . and 

Brad’s counsel read excerpts from these exhibits at the 2013 Trial—which 

transcripts have not been sealed.” Thus, appellant “clearly cannot maintain 
11

that he has a ‘reasonable expectation of privacy’ for records he has left 

accessible to the public for years with no effort to (re-)seal those records.” 

The court also rejected appellant’s broad contention that all of the 

exhibits contained “private” and/or “confidential” information, finding that 

appellant did not “make any distinction between the exhibits sought to 

sealed, much less identify ‘specific facts’ warranting sealing of these records. 

The motion should be denied for that alone, as Brad has not made the 

minimum requisite showing for sealing any record.” The court recognized 

that a right to privacy could override the presumption of public access, but 

only where “there is a substantial probability of prejudice to a privacy 

interest of higher value than the public’s right of access to court records.” As 

such, the court found it was required to “engage in a balancing analysis, 

weighing the presumption of access against a variety of competing interests.” 

The court recognized that appellant had a “legally cognizable privacy interest 

in matters pertaining to his health status,” citing Oiye v. Fox (2012) 211 

Cal.App.4th 1036, 1068 (Oiye). However, in this case, the court found that 

this privacy interest did not outweigh the presumption of public access, given 

that appellant had placed his health at issue “in his publicly filed probate 

petitions and federal complaint and, insofar as the Birthday Distributions are 

still at issue, his health continues to be a central issue in this action.” 

Moreover, the court noted that the public had a “legitimate and heightened 

interest in records pertaining to the administration of several large 

testamentary trusts funded by and for Disney family members.” 

The court also found that appellant failed to identify a cognizable 

privacy interest in any of the other exhibits, “as he does not individually 

discuss what should be kept private about these exhibits.” Moreover, 

appellant failed to establish a substantial probability that his right to privacy 

would be prejudiced absent sealing. Instead, the court found that appellant 

“provided only ‘conclusory averments’ that ‘unspecified statements’ were 

private and does not identify any specific or concrete consequences of these 

records being public. These conclusory assertions do not establish prejudice.” 

The court also rejected appellant’s motion as overly-inclusive, finding that 

appellant also did “not attempt to narrowly tailor his request at all or show 

that sealing is the ‘least restrictive means’ of protecting his interests.” 
12

Notably, appellant “fail[ed] to identify any specific passages that contain 

confidential information and instead makes conclusory averments that they 

contain private information,” while seeking to seal the entire document. 

Consequently “the Court cannot determine whether redactions would be a 

viable alternative because the Court does not know what information Brad 

considers private.” 

Appellant timely appealed from the order denying his motion to seal.11

DISCUSSION

I. Requests for Judicial Notice

As an initial matter, both parties filed requests for judicial notice on 

appeal, as well as oppositions to the other party’s request. Appellant 

requested judicial notice of two Arizona court documents despite 

acknowledging that they are not directly relevant to the motion to seal and 

they were not part of the record below. Similarly, respondent requested 

judicial notice of a series of articles and internet postings, none of which were 

part of the record before the trial court.12 We deny these requests as they 

seek judicial notice of irrelevant materials outside of the record. (See Malek 

11 Orders concerning the sealing of documents are appealable as 

collateral orders. (Oiye, supra, 211 Cal.App.4th at p. 1064.)

12 We note that both parties requested that we take judicial notice of 

documents that were not before the trial court, and then chided the opposing 

party for the same conduct. In addition, both parties engaged in pages of 

hyperbolic mudslinging in their briefs. For example, appellant accuses 

respondents of “systematic vindictiveness and hostility” against him and 

engaging in “ad hominem personal attacks on Appellant, his family, and 

anybody who stands with him.” For their part, respondents’ brief included a 

lengthy introduction purporting to explain appellant’s “nefarious” intent in 

seeking to seal documents as part of a “secrecy strategy” with the “ultimate 

goal” of “sealing the entire record.” These statements are neither supported 

by citations to the record nor relevant to this appeal. Indeed, in their 

opposition to appellant’s request for judicial notice, respondents admitted 

their introduction was merely “contextual background,” and it was therefore 

unnecessary for appellants to get “bogged down” in a “fruitless frolic and 

detour” by attempting to refute respondents’ claims. The parties are illserved by this conduct—it wastes the court’s time, contributes to increasingly 

bloated briefing as each party responds to irrelevant accusations lodged by 

the other, and distracts from the actual issues at hand.
13

Media Group LLC v. AXQG Corp. (2020) 58 Cal.App.5th 817, 825 [“Any 

matter to be judicially noticed must be relevant to a material issue.”], citing 

People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2; 

Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 

[“Reviewing courts generally do not take judicial notice of evidence not 

presented to the trial court. Rather, normally ‘when reviewing the 

correctness of a trial court’s judgment, an appellate court will consider only 

matters which were part of the record at the time the judgment was 

entered.’”], quoting Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 

813.)

Respondent also requested judicial notice of a portion of the appellant’s 

appendix in the 2014 appeal. Appellant does not oppose this request. We 

grant respondent’s request regarding the record of the 2014 appeal.

II. Standard of Review

Appellant contends we should apply a de novo standard of review 

because his appeal involves errors of law. We disagree. Appellant has not 

identified any legal errors that require independent review. Although he 

contends that the trial court “ignor[ed] the holding” in Oiye, supra, 211 

Cal.App.4th 1036, regarding his right to privacy of medical information, the 

record does not support this characterization of the issues on appeal. The 

trial court explicitly recognized appellant’s “legally cognizable privacy 

interest in matters pertaining to his health status,” citing Oiye, but concluded 

appellant had not established that this interest outweighed the public’s 

interest in access to court records, nor had appellant met any of the 

additional requirements for sealing under rule 2.550. 

We similarly reject appellant’s contention that the trial court “ignored

the Full Faith and Credit Clause,” when it refused to adopt the Arizona 

court’s sealing orders. Rather, the trial court found appellant failed to 

establish the existence or bases of those orders—an evidentiary conclusion, 

not a legal one. Finally, whether appellant waived his right of privacy by, for 

example, publicly filing some of the exhibits at issue is a “factual question, 

tested on appeal under the substantial evidence rule.” (Savaglio v. Wal-Mart 

Stores, Inc. (2007) 149 Cal.App.4th 588, 598 (Savaglio) [reviewing trial 
14

court’s determination of waiver of right to seal where party previously 

publicly filed documents].)

Thus, we review the trial court’s factual findings regarding the sealing 

requirements for substantial evidence, and the trial court’s denial of the 

motion to seal for an abuse of discretion. (See Overstock.com, Inc. v. Goldman 

Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 492 (Overstock) [“we review 

the ultimately discretionary decision to deny sealing by inquiring whether 

substantial evidence supports the trial court’s express or implied findings 

that the requirements for sealing are not met”]; see also Oiye, supra, 211 

Cal.App.4th at p. 1067 [reviewing “the trial court’s decision to order the 

documents sealed under the abuse of discretion standard, and any factual 

determinations made in connection with that decision will be upheld if they 

are supported by substantial evidence”].)

III. Analysis

A. Legal Framework

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. As articulated in NBC Subsidiary (KNBC–TV), Inc. v. Superior 

Court (1999) 20 Cal.4th 1178, 1210, “the public has an interest, in all civil 

cases, in observing and assessing the performance of its public judicial 

system, and that interest strongly supports a general right of access in 

ordinary civil cases.” As a result, there is a strong presumption in favor of 

public access to substantive courtroom proceedings in ordinary civil cases, 

and the transcripts and records pertaining to these proceedings. (Id. at pp. 

1212, 1217.) 

These First Amendment principles are embodied in California’s “sealed 

records rules,” rules 2.550 and 2.551. (See Overstock, supra, 231 Cal.App.4th 

at p. 486; Savaglio, supra, 149 Cal.App.4th at pp. 596-597.) Under these 

rules, 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.” (Rule 2.551(b)(1).)

The “court must not permit a record to be filed under seal based solely 

on the agreement or stipulation of the parties.” (Rule 2.551(a).) The court 
15

may order a record sealed only if it finds that: “(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.” (Rule 

2.550(d).)

B. Exhibits 14, 22, 40, and 118

Appellant devotes much of his opening brief on appeal to arguing that 

he has a constitutional right to privacy over his personal medical and 

financial information. But this right is not in dispute—both respondents and 

the trial court recognized appellant’s right to privacy and that his right 

implicated at least portions of the Arizona 2006 and 2011 investigative 

reports (Exhibits 14 and 40), as well as the 2009 letter and 2006 report from 

appellant’s physician, Dr. Duane (Exhibits 22 and 118).13 Appellant contends 

that the sealing analysis should end there because the “Oiye holding applies 

as a matter of law,” meaning that the privacy of one’s medical information 

outweighs the public’s right of access in every instance. This contention is 

belied by the language of Oiye itself. 

In Oiye, supra, 211 Cal.App.4th at p. 1044, the plaintiff brought a tort 

action alleging that the defendant sexually molested her from age 12 to 21. 

She sought an injunction related to the defendant’s assets; in opposition, the 

defendant attached the plaintiff’s 52-page personal diary, which she wrote 

while undergoing inpatient medical treatment following the molestation. (Id. 

at p. 1046.) The plaintiff moved to seal exhibits, including two of her medical 

records and the journal, stating that she did not know how the defendant 

obtained her records and would suffer “embarrassment and distress” at 

having those records made public. (Id. at pp. 1062-1063.) The court granted 

the sealing motion and the defendant appealed. (Ibid.) The appellate court 

recognized “‘that a person's medical history, including psychological records, 

13 It was similarly undisputed that appellant’s individually identifiable 

medical information is presumed confidential under California‘s 

Confidentiality of Medical Information Act (Civ. Code § 56 et seq.). (See

Oiye, supra, 211 Cal.App.4th at p. 1068.)
16

falls within the zone of informational privacy protected’ by the state and 

federal Constitutions,” but also acknowledged that “[p]rivacy concerns are not 

absolute [and] must be balanced against other important interests.” (Id. at 

pp. 1068, 1070, quoting Hill v. National Collegiate Athletic Assn. (1994) 7 

Cal.4th 1, 37.) On balance, the court concluded “that the public’s general 

right of access to court records recognized in rule 2.550 must give way to the 

public’s concern about the privacy of medical information in this case, 

particularly when the information appears so tangentially related to the 

litigation.” (Id. at p. 1070, italics added.) This discussion makes clear that 

the Oiye court balanced the relevant factors under the circumstances 

presented, and concluded that the trial court had not abused its discretion in 

sealing the documents. It does not follow that the trial court was required to 

do the same under different facts simply because a privacy right was raised.14

Moreover, as we previously indicated, we reject appellant’s suggestion 

that the trial court “ignored” the holding in Oiye. The trial court 

acknowledged appellant’s privacy right, but found that it was outweighed in 

the circumstances in this case. We do not find that determination was an 

abuse of discretion. Unlike in Oiye, supra, 211 Cal.App.4th at p. 1070, where 

the court found the plaintiff’s personal diary was only tangentially related to 

the defendant’s “opposition to a preliminary injunction long since granted,” 

14 During oral argument on appeal, appellant’s counsel contended that 

rule 2.550 did not apply because rule 2.550(a)(2) exempts “records that are 

required to be kept confidential by law.” He argued that the records at issue 

here qualified because they were medical records and also had been deemed 

confidential by Arizona courts. Appellant raised this argument for the first 

time in his reply brief, and even then it was limited to a single reference 

during his discussion of the Full Faith and Credit Clause of the United States 

Constitution. Appellant has not shown good cause for his failure to timely 

raise this argument; we therefore deem it forfeited and will not consider it. 

(See, e.g., Kinney v. Vaccari (1980) 27 Cal.3d 348, 356, fn. 6 [“An appellate 

court is not required to consider any point made for the first time at oral 

argument.”]; People v. Clayburg (2012) 211 Cal.App.4th 86, 93 [“Withholding a 

point until the reply brief deprives the respondent of an opportunity to 

answer it. . . . Hence, a point raised for the first time therein is deemed 

waived and will not be considered, unless good reason is shown for failure to 

present it before.”] (citations omitted).)
17

here, the trial court found that appellant’s medical records were directly 

relevant because he had put his capacity at issue. In his fifth amended 

petition, as he had in previous petitions, appellant alleged that the trustees 

improperly denied his birthday distributions based on a finding that he 

lacked the mental capacity to manage the funds when the evidence (and the 

findings of the 2009 Arizona proceeding) demonstrated otherwise. As such, 

evidence related to appellant’s mental capacity was directly relevant to the 

allegations of the fifth amended petition, as well as to the court’s OSC 

regarding appointment of a GAL, which appellant had vigorously opposed. 

Although appellant had a legitimate privacy interest in these records, the 

court determined that interest did not overcome the countervailing interest of 

public access, given the material relevance of the evidence and the 

heightened interest “when probate involves a large estate with on-going longterm trusts.” (Estate of Hearst (1977) 67 Cal.App.3d 777, 784.) Appellant 

fails to establish that the court abused its discretion in determining that the 

balance of interests fell in favor of continued public access here.

Additionally, the trial court found that appellant could not establish a

reasonable expectation of privacy as to exhibits 22 and 40, which were 

included as exhibits in the 2013 trial and which appellant publicly filed as 

part of his appendix in the 2014 appeal.15 Consequently, those exhibits have 

remained publicly available for over nine years. Respondents also point out 

that appellant publicly filed Exhibit 118 in the instant appeal as part of his 

appendix (attached as an exhibit to his 2006 Arizona guardianship petition). 

Appellant’s suggestion that these documents are not fully part of the public 

record because they are not “readily available to the public online,” and make 

up a small portion of a large appellate record is unsupported by any 

authority. There is no indication in the record that appellant has made any 

attempt to seal these documents in the interim. 

Moreover, discussion of appellant’s mental capacity is present in varying 

degrees throughout these cases, in many publicly available documents, 

15 Appellant asserts that the trial exhibits were returned to the parties 

following trial in 2013. However, the transcripts were not sealed and any 

portion of the exhibits read into the record or discussed by witnesses 

therefore remains available.
18

including our prior opinion in the 2014 appeal and the decisions by the 

Arizona courts. Although appellant successfully moved to seal exhibits 14

and 118 in the 2014 appeal, he did not seek to seal exhibits 22 or 40; he has 

not articulated what information in exhibits 14 and 118 retains an 

expectation of privacy because, for example, it has not been made public in 

subsequent exhibits or in any of the other myriad places where his mental 

capacity has been discussed. Consequently, we find no error in the trial 

court’s conclusion that appellant acted inconsistently with an intent to 

protect his privacy rights. (See Savaglio, supra, 149 Cal.App.4th at pp. 600–

601 [“Wal–Mart's conduct was so inconsistent with an intent to enforce its 

rights to obtain sealed records under the Rules of Court as to induce a 

reasonable belief that it had relinquished such right.”].)16

Appellant also contends the court erred in rejecting his request to 

afford “full faith and credit” to the Arizona court orders sealing exhibits 14, 

22, 40, and 118. The trial court found that appellant failed to provide 

sufficient evidence to prove which exhibits were sealed by the Arizona court 

or the basis justifying the sealing. We agree. Appellant did not provide the 

Arizona court orders on which he relied, and offered no explanation for his 

failure to do so. Instead, he attached a docket sheet, an order sealing an 

unspecified “investigator’s report,” and the minutes from trial admitting 

“exhibit 9” (not otherwise identified) and sealing that day’s proceedings. We 

find no error in the trial court’s conclusion that this evidence was insufficient 

to establish that the Arizona court sealed the same documents appellant 

seeks to seal here. Appellant’s assertion that he is not required under rules 

2.550 and 2.551 to “submit the original or properly authenticated versions” of 

a court order misses the point. The sealing rules require that appellant 

16 Citing Savaglio, supra, 149 Cal.App.4th at pp. 599-600, appellant’s 

counsel asserted during oral argument that appellant--as the ”holder” of his 

privacy right--could not have waived that right due to actions performed by 

his counsel, such as publicly filing documents. Appellant has raised this 

contention for the first time at oral argument and has therefore forfeited it. 

(See Kinney v. Vaccari, supra, 27 Cal.3d at p. 356, fn. 6.) Moreover, the 

Savaglio court found that Wal-Mart had waived its right to move to seal 

documents because its counsel had publicly filed them in an earlier writ 

proceeding. (Savaglio, supra, 149 Cal.App.4th at pp. 599-600.)
19

submit “facts sufficient to justify the sealing.” (Rule 2.551(b)(1).) By failing 

to submit the court orders upon which he relies, he failed to satisfy this 

requirement.

Moreover, even if appellant proved that the Arizona court sealed the 

exhibits as he contends, the trial court rejected appellant’s argument that 

this established an overriding interest requiring their sealing in this case. 

We agree. Appellant cites no authority establishing an overriding interest 

based on orders entered in different proceedings (guardianship and 

conservatorship), under the sealing laws of a different state, made more than 

a decade ago, or how that interest would be prejudiced absent sealing in 

these California probate matters.

The record also supports the trial court’s conclusion regarding 

appellant’s failure to meet the remaining elements of rule 2.550 for exhibits 

14, 22, 40, and 118. Appellant made no attempt to demonstrate that the 

proposed sealing was narrowly tailored or that no less restrictive means 

existed to protect his privacy. The court was within its discretion to reject 

appellant’s motion for this reason as well.

C. Exhibits 30, 47, 48, 55, 83, 84, and 89

As for the remaining exhibits, which are made up of 75 pages of 

deposition excerpts and interrogatory responses, we agree with the trial 

court’s conclusion that appellant failed to establish any of the requirements of 

rule 2.550. Appellant argues that these exhibits “contain intimate details of 

[his] private life” and “other confidential information” without further 

elaboration. He has not identified any particular portions of this mass of 

exhibits that would give rise to an overriding interest. Nor has he previously 

designated these documents as confidential or otherwise acted consistently 

with an understanding that they were private. Rather, as respondents point 

out, portions of the depositions were played at the 2013 trial. 

Moreover, appellant again has made no attempt to show how his 

request is narrowly tailored or the least restrictive means available. As the 

trial court pointed out, appellant “fails to identify any specific passages that 

contain confidential information and instead makes conclusory averments 

that they contain private information,” while seeking to seal the entire 

exhibits, including a 53 page deposition excerpt from appellant’s father 
20

covering a wide range of topics. This cannot satisfy appellant’s burden to 

demonstrate a right to seal. (See Overstock, supra, 231 Cal.App.4th at p. 500 

[“the trial courts can, and should, view overly inclusive sealing efforts with a 

jaundiced eye”].)

Appellant also relies on Overstock, supra, 231 Cal.App.4th 471, for the 

proposition that these exhibits “should be sealed for good cause” because 

“there are large portions which are irrelevant and uncited.” Putting aside the 

issue that appellant failed to identify any such portions of any exhibit, the 

holding of Overstock does not assist him here. Overstock involved a request to 

seal an enormous volume of documents filed in connection with a motion for 

summary judgment, all of which had been designated as confidential under 

the parties’ protective order, but thousands of pages of which had not been 

referenced in the summary judgment papers. The court concluded that “the 

trial court could have stricken thousands of pages of the confidential 

discovery materials plaintiffs submitted but never referenced” or, 

alternatively, could have found good cause to place them under seal given 

their lack of relevance to the issues at hand. (Id. at p. 500.) Here, appellant 

did not designate the exhibits at issue as confidential at the time they were 

produced in this case, nor did appellant seek to strike them as irrelevant 

below. He cannot now rely on Overstock to seal these exhibits.

DISPOSITION

The order denying the motion to seal is affirmed. Respondents are 

awarded their costs on appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

WILLHITE, ACTING P.J. CURREY, J.