Superior Court, State of California



DATE: OCTOBER 7, 2021 TIME: 1:30 P.M.

PREVAILING PARTY SHALL PREPARE THE ORDER

UNLESS OTHERWISE STATED (SEE RULE OF COURT 3.1312)

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|LINE 1 |20CV367305 |Foresite Capital Management IV, |See tentative ruling. The Court will prepare the final |

| | |L.P. v. Esfandyarpour, et al. |order. |

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Calendar Line 1

Case Name: Foresite Capital Management IV, L.P. v. GenapSys, Inc., et al.

Case No.: 20CV367305

These cross-actions arise from a dispute between defendant and cross-complainant GenapSys, Inc., a DNA sequencing company, and its investors, cross-defendants Foresite Capital Management, LLC and Foresite Capital Fund IV, LP (Foresite). Among other things, Foresite alleges that it was fraudulently induced to invest in GenapSys, and GenapSys alleges that Foresite misappropriated its trade secrets and started two competing companies.

Before the Court is Foresite and cross-defendant James Tananbaum’s motion for leave to amend the Complaint to correct a typographical error. GenapSys and defendant Hesaam Esfandyarpour filed a response to this motion, but do not oppose it. Also at issue are the following unopposed motions to seal: (1) GenapSys’s motion to seal portions of its opposition to Mr. Tananbaum’s demurrer to the First Amended Cross-Complaint (FAXC); (2) Mr. Tananbaum’s motion to seal portions of his reply in support of his demurrer; and (3) Foresite and Mr. Tananbaum’s motion to seal portions of their motion to amend the Complaint and of the filings supporting their motion to compel GenapSys and Mr. Esfandyarpour to respond to discovery.[1]

I. MOTION FOR LEAVE TO AMEND THE COMPLAINT

Foresite and Mr. Tananbaum move under Code of Civil Procedure section 473, subdivision (a)(1) for leave to file an amended complaint correcting a mistake in the name of plaintiff Foresite Capital Fund IV, L.P., which was misidentified as Foresite Capital Management IV, L.P. That subdivision provides that “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party ….”

“Code of Civil Procedure section 473 has been construed to permit amendment to substitute a plaintiff with standing for one who is not a real party in interest.” (California Air Resources Bd. v. Hart (1993) 21 Cal.App.4th 289, 300.) “Amendment generally is proper where leave is sought to substitute a new plaintiff based upon a technical defect in the plaintiff's status, such as an honest mistake in the naming of a party, but may not be used to interject a new party into the litigation for the first time under the guise of a misnomer.” (Id. at p. 301.)

Without taking sides on the parties’ dispute as to why this issue dragged on so long, the Court credits Foresite’s representation that the wrong entity was named by mistake as the plaintiff here. It therefore GRANTS the motion for leave to amend the complaint. Foresite shall file the proposed First Amended Complaint (FAC), and lodge the unredacted FAC for filing under seal, within 20 calendar days of the filing of this order.[2]

II. MOTIONS TO SEAL

A. Legal Standard

“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 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).)

 

  “Courts have found that, under appropriate circumstances, various statutory privileges, trade secrets, and privacy interests, when properly asserted and not waived, may constitute overriding interests.”  (In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 298, fn. 3 (Providian).)  In addition, confidential matters relating to the business operations of a party may be sealed where public revelation of the information would interfere with the party’s ability to effectively compete in the marketplace.  (See Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1285–1286.)          

Where some material within a document warrants sealing, but other material does not, the document should be edited or redacted if possible, to accommodate both the moving party’s overriding interest and the strong presumption in favor of public access. (Cal. Rules of Court, rule 2.550(d)(4), (5).)  In such a case, the moving party should take a line-by-line approach to the information in the document, rather than framing the issue to the court on an all-or-nothing basis.  (Providian, supra, 96 Cal.App.4th at p. 309.)  

Rule 2.550 does not directly apply to “discovery motions and records filed or lodged in connection with discovery motions or proceedings.”  (See Cal. Rules of Court, rule 2.550(a)(3); H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 892–893 (H.B. Fuller) [the discovery process would be impeded if a presumptive right of public access to records disclosed under protective orders and filed in connection with routine discovery motions were imposed].)  Nonetheless, even in discovery proceedings, a party moving for leave to file records under seal must identify the specific information claimed to be entitled to confidentiality and the nature of the harm threatened by disclosure. (See H.B. Fuller, supra, 151 Cal.App.4th at p. 894.)     

B. Discussion

GenapSys moves to file under seal portions of its opposition to Mr. Tananbaum’s demurrer “that either cite to portions of or attachments to the Complaint, the Cross-Complaint, and/or the First Amended Cross-Complaint that this Court has ordered be maintained under seal.” Based on the prior orders sealing this information, the Court finds that it is appropriately maintained under seal and the factors set forth in rule 2.550 are satisfied as to this material.

So too with the redacted portions of Mr. Tananbaum’s reply brief; Foresite and Mr. Tananbaum’s motion to seal their unredacted motion to amend the Complaint; and the filings supporting Foresite and Mr. Tananbaum’s motion to compel, which also discuss material previously filed and maintained under seal.

III. CONCLUSION

The Court GRANTS the three motions to seal.

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LAW AND MOTION HEARING PROCEDURES

The Court rescinded, effective June 21, 2021, all prior general orders restricting courthouse access.  Remote appearances for complex civil matters are still permitted, but are no longer mandatory.  (See General Order Rescinding Portion of May 6, 2020 General Order Concerning Complex Civil Actions, available at

general_info/news_media/newspdfs/2021/GeneralOrderRescindingPortionof050621GeneralOrderConcerningComplexCivilActions.pdf.)  If a party gives notice that a tentative ruling will be contested, any party seeking to participate in the hearing remotely should contact CourtCall.

Public access to hearings is available on a listen-only line by calling 888-808-6929 (access code 2752612).

State and local rules prohibit recording of court proceedings without a court order.  These rules apply while in court and also while participating in a hearing remotely or listening in on a public access line.  No court order has been issued which would allow recording of any portion of this motion calendar.

The court does not provide court reporters for proceedings in the complex civil litigation departments.  Any party wishing to retain a court reporter to report a hearing may do so in compliance with this Court’s October 13, 2020 Policy Regarding Privately Retained Court Reporters.  The court reporter may participate remotely and need not be present in the courtroom.  

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[1] The motion to compel was taken off calendar pursuant to the Court’s September 8, 2021 order designating this matter as complex.

[2] Given that the Court (Judge Folan) had approved in June 2020 the filing under seal of the original complaint, the Court approves the filing under seal of this FAC.

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