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C.A. Declines to Seal Records of Faulty Restraining Order
Opinion Says Party Who Successfully Obtained Termination After Swearing He Was Not Served With Notice of Proceeding Is Not Entitled to Have Public Access to Records in the Case Foreclosed
By Kimber Cooley, associate editor
Div. One of this district’s Court of Appeal has affirmed the denial of a request to seal records relating to a protective order which the formerly-restrained party was able to have terminated after he successfully showed that the decree was imposed based on fraudulent pretenses, finding that the “high bar” set for blocking public access had not been met.
In an unpublished opinion, filed Monday and authored by Justice Helen I. Bendix, the court said that the petitioner’s concerns that the proceedings had negatively impacted background checks as he applied for jobs and had subjected him to increased scrutiny when returning from international travel were insufficient justification for the relief.
Presiding Justice Frances Rothschild and Justice Gregory Weingart joined in the opinion.
Los Angeles Superior Court Judge Patricia A. Young issued the civil harassment restraining order in question, dated Oct. 12, 2022, under Code of Civil Procedure §527.6, which provides:
“A person who has suffered harassment…may seek a temporary restraining order and an order after hearing prohibiting harassment as provided in this section.”
Lawrence Marino was listed as the protected party, and Mark Rayant, who did not appear at the hearing on the matter, was ordered to stay away from him. It was unknown to Young that then-Los Angeles Superior Court Commissioner Doreen Boxer (now a judge of the court) had, on Feb. 24, 2022, issued a civil harassment restraining order against Marino which Rayant had obtained based on repeated unwanted romantic overtures to him.
Rayant did not learn about the October 2022 order until December when a copy was sent to his family’s home in San Francisco. The following February, he filed a request to terminate the order, arguing that Marino obtained the order by providing fraudulent proof of personal service and withholding from the court the earlier litigation between the parties.
Motion to Terminate
In May 2023, Los Angeles Superior Court Judge Adrian G. Roxas granted Rayant’s motion to terminate the October order but denied his request to have the records sealed.
Roxas acknowledged that Rayant had indicated that he was unsuccessful in obtaining employment with the Los Angeles Department of Sanitation in May 2023, and that he wished to seek other public employment opportunities in the future, and had pointed to two incidents where he was subjected to multiple rounds of screening at the airport after international travel during which the officials told him the increased security was due to the restraining order.
However, the judge found that the petitioner had not established the need to seal the records, saying:
“If there is a need in the future for a seal, for example, if you are going to be licensed by any licensing agency of the state or if you need clearance from an employer, the court will consider it at that point. But I have not received any information from you that there’s any issue that is ripe right now for the court to seal any records at this point.”
In September, Rayant again moved to seal the entire record concerning the restraining order against him, arguing that his privacy interests overcame the public’s right of access to “Marino’s fraudulent restraining order application.” He said he had been prejudiced by the order, attaching a declaration pointing to his intention to apply for government jobs requiring a background check and his interactions at the airport.
Los Angeles Superior Court Judge Gary Eto held a hearing and, on Feb. 7, 2024, denied the request, noting that “the documents which comprise the file in this case have been available to the public over the course of the past year or longer, and it appears that any harm to privacy has already occurred” and finding that the request was not narrowly tailored.
Rules of Court
Bendix pointed to Rules of Court 2.550, which provides:
“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.”
Applying that standard, she remarked:
“Assuming arguendo Rayant has demonstrated an overriding interest in his reputation and future job prospects, a question on which we express no opinion, he has not shown ‘[a] substantial probability’ that interest ‘will be prejudiced if the record is not sealed.’ ”
The jurist opined:
“Accepting that having an active restraining order on one’s record could negatively impact a background check, the trial court already has mitigated that prejudice by terminating the restraining order. Rayant does not argue the terminated restraining order will prejudice him—rather, he argues he could be prejudiced by Marino’s unfounded accusations against him, which an employer might discover during a background check….”
She recognized that a prejudice assessment calls for some level of speculation but commented that “Rayant’s declaration stating he never heard back about a government job for which he applied falls short of establishing prejudice from the restraining order proceedings, when there could be other reasons unrelated to the restraining order for why Rayant did not get the job.”
Addressing the airport security concerns, she said:
“He does not argue, nor can we conclude, the interest in avoiding additional airport screening overrides the public’s right of access to court records.”
The case is Marino v. Rayant, B337874.
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