Marriage of Tamir ( 2021 )

Filed 11/29/21; Certified for Publication 12/20/21 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re Marriage of CELINE and
YORAM TAMIR
CELINE TAMIR et al., A161782
Plaintiffs and Appellants, (San Mateo County
v. Super Ct. No. FAM0113496)
YORAM TAMIR,
Defendant and Respondent;
THE PEOPLE ex rel., ROB BONTA,
as Attorney General, etc.,
Intervener and Respondent.
In connection with divorce proceedings and a related lawsuit, Isaac
Soncino, Celine Tamir, and Yoram Tamir 1 exchanged certain financial
documents pursuant to two stipulated protective orders. Soncino and Celine
also filed certain documents under seal with the family court on two
occasions. The Attorney General subsequently filed a motion to unseal the
1 Isaac Soncino and Celine Tamir are siblings, and Yoram Tamir is
Celine’s ex-husband. We will refer to Celine Tamir and Yoram Tamir by
their first names when necessary to distinguish them. No disrespect is
intended.
records and set aside the protective orders, asserting that the documents
were relevant to its investigation into the misuse of funds by a public charity
operated by Soncino and the Tamirs. The trial court granted the Attorney
General’s motion.
On appeal, Soncino, Celine, and their three family businesses
(appellants) argue the family court erred in unsealing the records and setting
aside the protective order. They contend the family court judge lacked
authority to rule on the motion, the Attorney General did not seek the records
pursuant to any acknowledged right of public access, and the family court
abused its discretion in unsealing the records and terminating the protective
order. In response, the Attorney General argues it is entitled to the records
because its enforcement efforts with regard to public charities outweighs any
right of privacy. We conclude the family court had authority to rule on the
Attorney General’s motion. We further conclude the Attorney General is
entitled to seek the records on behalf of the public and appellants failed to
identify a privacy interest that outweighs the public right to access.
However, we conclude the family court failed to assess whether the
documents at issue were used at trial or submitted as a basis for
adjudication, and erred in setting aside the protective orders. Accordingly,
we reverse the order granting the motion to unseal and remand to the family
court to determine, in the first instance, whether the documents at issue were
related to the underlying matter’s adjudication. 2
2 In footnote 2 of their opening brief, appellants requested this court
take judicial notice of the San Mateo County Superior Court’s online
directory of judges. Pursuant to California Rules of Court, rule 8.252(a)(1), “a
party must serve and file a separate motion with a proposed order” to obtain
judicial notice. Appellants failed to do so, and we thus deny their request.
2
I. BACKGROUND
Soncino, Celine, and Yoram created two for-profit organizations:
Newton — The Children’s Learning Center, Inc. and Musicart, Inc. Those
entities provided music enrichment and after-school education services.
Soncino, Celine, and Yoram also formed Newton Center, a nonprofit
organization “to further expand the Partnership business by having a
charitable organization that could contract with various public entities . . . .”
The for-profit organizations provided services, which were then paid for with
funds from Newton Center.
Soncino and Celine subsequently filed Soncino v. Tamir (Super. Ct. San
Mateo County, No. CIV508495), against Yoram and the three family
businesses. Soncino and Celine alleged various claims against Yoram,
arising from alleged efforts by Yoram to obtain a large stake in the family
businesses via his and Celine’s divorce proceedings. The complaint also
alleged Yoram had misappropriated property belonging to the family
businesses.
At that same time, a marital dissolution action was pending between
the Tamirs, In re Marriage of Tamir (Super. Ct. San Mateo County,
No. FAM0113496) (Marriage of Tamir). The complaint filed by Soncino and
Celine was joined to the pending divorce proceedings between the Tamirs.
During the course of the dissolution proceeding, the parties filed a
“Stipulation and Order re Confidential Protective Order; and Agreement to
Comply with Stipulation and Order re Confidential Protective Order,” which
was subsequently signed by Judge Pro Tem Marjorie A. Slabach. 3 The
protective order prevented Celine from disclosing or sharing certain
3Judge Pro Tem Slabach was appointed to handle the pending divorce
proceedings until its final determination in the superior court.
3
information and documents she obtained from Yoram’s desk and the marital
residence without his consent or knowledge. During the course of the parties’
litigation, two sealing orders were entered by Presiding Judge Joseph C.
Scott. 4 At least two requests for sealing directed to the court involved records
containing the parties’ compensation, salary, and expenses, as well as
unspecified “personal information.”
During the trial of the joined matters, the family court addressed on a
bifurcated basis the ownership interests in the family businesses. Soncino
and Celine argued the businesses were formed as a partnership between
them and Yoram, and remain a partnership despite the corporate form.
Yoram argued he and Celine started the business and own it “as community
property in corporate form.” Based on various evidence regarding Soncino’s
and the Tamirs’ joint management, compensation, and profit-sharing, the
court ruled in favor of Soncino and Celine, finding that Soncino was a one-
third partner in the ownership interest of the businesses. The court further
concluded Soncino and the Tamirs used the business funds for personal
expenses. Judgement in the civil matter was entered in 2012, and the
dissolution was finalized in 2014.
In 2019, the Attorney General filed a complaint against the family
businesses, Soncino, and the Tamirs for accounting, restitution, involuntary
dissolution, injunctive relief, aiding and abetting breach of fiduciary duty,
and misrepresentation, People v. Newton Center (Super. Ct. San Mateo
County, No. 19CIV02188). In connection with that lawsuit, the Attorney
General filed a motion to unseal court records in Marriage of Tamir and
4Appellants have not included in their appellants’ appendix the
corresponding motions to file under seal or the tentative rulings issued by the
court. Accordingly, the record is devoid of information regarding the scope of
materials sealed.
4
Soncino v. Tamir. The Attorney General argued the public portions of the
records in those matters indicate Soncino and the Tamirs were comingling
charitable funds and using those assets for personal expenses. The motion
argued Soncino and the Tamirs inappropriately sealed the books and records
of Newton Center, along with deposition testimony regarding the Newton
Center and its finances.
Soncino, Celine, and the family businesses opposed the motion to
unseal. They argued the Attorney General was not entitled to Celine’s
financial records as they related to the for-profit entities. They asserted the
Attorney General was required to pursue such records via requests for
production and other discovery tools. Soncino, Celine, and the family
businesses also asserted the Attorney General’s motion was defective because
it failed to include the sealing orders being challenged and was not brought
before the court that entered the orders.
The trial court denied the motion to unseal the court records and
terminate the protective orders in Marriage of Tamir and Soncino v. Tamir.
Judge Davis explained, “The requested relief must be sought from the judge
or court that entered the original sealing orders, under the general rule that
‘The power of one judge to vacate an order duly made by another judge is
limited.’ ” The court further explained the Attorney General only presented a
small portion of the pertinent record, “which notably excludes the original
sealing orders. Consequently, this court is not in a position to determine the
merits of the People’s motion.”
In 2020, the Attorney General filed another motion to unseal. This
time, however, the Attorney General filed the motion in Marriage of Tamir
and Soncino v. Tamir, rather than through a separate action. The Attorney
General raised the same arguments set forth in its prior motion.
5
Soncino, Celine, and the family businesses again opposed the motion.
They argued Marriage of Tamir and Soncino v. Tamir did not involve Newton
Center, and the Attorney General’s request instead sought private financial
information. They asserted the right to financial privacy outweighed any
right of access asserted by the Attorney General. They also raised various
procedural challenges to the motion.
The motion was assigned to Judge Sean P. Dabel. The family court
granted the Attorney General’s motion and ordered that records from
Marriage of Tamir and Soncino v. Tamir “be unsealed, and the protective
orders filed December 12, 2011 and September 17, 2012 lifted as to the
People of the State of California, Office of the Attorney General.” The court
concluded it was the proper court to consider the unsealing request, the
Attorney General “made a sufficient showing in good faith to set aside the
sealing order and protective orders,” and the court adopted the Attorney
General’s argument and analysis. Appellants timely appealed. 5
II. DISCUSSION
A. Access to Court Records
Courts in California have long recognized a common law right of access
to public documents, including court records. (Overstock.com, Inc. v.
Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 483 (Overstock).)
Under the common law right of access, court records are presumed to be
“ ‘open to the public unless they are specifically exempted from disclosure by
5 An order on a motion to seal or unseal documents is appealable as a
final order on a collateral matter. (Mercury Interactive Corp. v. Klein (2007)
158 Cal.App.4th 60, 77 (Mercury Interactive) [order granting motion to seal];
In re Marriage of Lechowick (1998) 65 Cal.App.4th 1406, 1410 [order denying
motion to unseal].)
6
statute or are protected by the court itself due to the necessity of
confidentiality.’ ” (Ibid.)
California law also recognizes a constitutional right of access, grounded
in the First Amendment, to court proceedings and court documents. (NBC
Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1208,
fn. 25 (NBC Subsidiary); In re Marriage of Nicholas (2010) 186 Cal.App.4th
1566, 1575 (Nicholas); Overstock, supra, 231 Cal.App.4th at p. 484.) “A
strong presumption exists in favor of public access to court records in
ordinary civil trials. [Citation.] That is because ‘the public has an interest,
in all civil cases, in observing and assessing the performance of the judicial
system, and that interest strongly supports a general right of access in
ordinary civil cases.’ ” (Nicholas, at p. 1575.) Because orders to seal court
records implicate the public’s right of access under the First Amendment,
such orders are subject to ongoing judicial scrutiny, including at the trial
court level. (Ibid.)
B. The Sealed Records Rules
California Rules of Court, 6 rules 2.550 and 2.551 (jointly, the sealed
records rules) codify the principles articulated by California courts
concerning the public’s First Amendment right of access to court records.
Rule 2.550 provides: “Unless confidentiality is required by law, court records
are presumed to be open.” (Rule 2.550(c).) Rule 2.550 further provides that a
court may order a record sealed “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
6 References to rules are to the California Rules of Court.
7
narrowly tailored; and [¶] (5) No less restrictive means exist to achieve the
overriding interest.” (Rule 2.550(d).) An order sealing the record must
specifically state the facts supporting those findings. (Rule 2.550(e)(1)(A).)
While the findings may be set forth in cursory terms, “[i]f the trial court fails
to make the required findings, the order is deficient and cannot support
sealing.” (Overstock, supra, 231 Cal.App.4th at p. 487.)
Rule 2.551 allows a party, members of the public, or the court on its
own initiative to move to unseal a previously sealed record. (Rule
2.551(h)(2).) In determining whether to unseal a record, a court must
consider the same criteria set forth in rule 2.550(c)–(e). (Rule 2.551(h)(4).)
Express factual findings are not required, however, when ruling on a request
to unseal. (Compare rule 2.551(h) with rule 2.550(d); Overstock, supra,
231 Cal.App.4th at p. 488.)
C. Standard of Review
Challenges to a sealing order or an order denying a motion to unseal
premised on a common law right of access are reviewed under the abuse of
discretion standard. (Overstock, supra, 231 Cal.App.4th at p. 490.)
Courts are divided, however, on the standard of review applicable to
challenges premised on the First Amendment right of access. (Compare
People v. Jackson (2005) 128 Cal.App.4th 1009 (Jackson) and Copley Press,
Inc. v. Superior Court (1998) 63 Cal.App.4th 367 [de novo review] with In re
Providian Credit Card Cases (2002) 96 Cal.App.4th 292 (Providian) and
McGuan v. Endovascular Technologies, Inc. (2010) 182 Cal.App.4th 974[abuse of discretion standard].)
We summarized this split in Overstock, supra, 231 Cal.App.4th at
pages 490–492: “In Providian, one of the early watershed cases applying the
sealed records rules, the court reviewed an order unsealing documents, which
8
it characterized as the ‘functional equivalent’ of an order denying sealing.
(Providian, supra, 96 Cal.App.4th at p. 302.) The court nevertheless
addressed the standard of review both for orders sealing and unsealing
records. (Id. at pp. 299–303.) Noting that an order sealing records is proper
only if the trial court expressly finds facts that establish the five findings
required by rule 2.550(d)(1)–(5), Providian concluded the first task in
reviewing an order to seal is to ‘examine the express findings of fact required
by [the] rule . . . to determine if they are supported by substantial evidence.’
(Providian, at p. 302.) Next, because the language of the rule is permissive
(the ‘court may order that a record be filed under seal’ if the factual requisites
are met (rule 2.550(d)), the appellate court must ask ‘whether, in light of and
on the basis of [the] findings, the trial court abused its discretion in ordering
a record sealed.’ (Providian, at p. 302.) As for an order to unseal, which
differs from an order to seal because the trial court need not make express
findings, Providian concluded the reviewing court examines the record for
substantial evidence supporting the trial court’s implied findings that the
requirements for sealing are not met. (Id. at pp. 301–303.) [Fn. omitted.]
“However, in [Jackson, supra,] 128 Cal.App.4th [at pages] 1019–1020
. . . , the court took a different approach as to orders sealing court records,
pointing out Providian actually dealt with an order unsealing records.
Jackson concluded an order sealing records is subject to ‘independent review’
because it implicates First Amendment rights. [Fn. omitted.] (Jackson, at
p. 1020; see U.S. v. Doe (2d Cir. 2009) 356 Fed. Appx. 488, 489
[distinguishing between orders sealing and unsealing records; ‘where, as
here, we review a district court decision denying sealing, the decision
presents no First Amendment concerns, and we will affirm unless the district
court “based its ruling on an erroneous view of the law or on a clearly
9
erroneous assessment of the evidence . . .” ’].) As to orders unsealing court
records, the court considered Providian’s standard of review discussion
‘arguably . . . persuasive.’ (Jackson, at p. 1020.)
“In Oiye[ v. Fox], the court declined to follow Jackson’s view on the
standard of review applicable to orders sealing court records and adopted the
approach laid out in Providian, stating it would ‘ “review 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.” ’
(Oiye[ v. Fox] (2012)] 211 Cal.App.4th [1036,] 1067.) Oiye distinguished
Jackson as involving an uncontested record. (Oiye, at p. 1067.) We do not
agree Jackson employed independent review because the record was
uncontradicted. Rather, it seems apparent the court did so because the
sealed records rules are grounded in the First Amendment right of access.”
Here, appellants are challenging an order unsealing court records. On
this point, Jackson indicated agreement with Providian’s analysis regarding
the proper standard of review. We agree. Accordingly, we review the record
for substantial evidence supporting the family court’s order.
D. Authority of Family Court to Decide Motion to Unseal
Appellants first assert Judge Dabel exceeded his jurisdiction in
granting the motion to unseal because he lacked authority to overrule Judge
Davis’s order denying the Attorney General’s first motion or Judge Scott’s
original order sealing the records. We disagree.
As a preliminary matter, Judge Dabel’s order did not overrule Judge
Davis’s order. Judge Davis did not rule on the merits of the Attorney
General’s motion to unseal. Rather, he explained the court lacked
jurisdiction because the motion to unseal records “must be sought from the
10
judge or court that entered the original sealing orders.” The Attorney
General, by refiling the motion to unseal in the family court, complied with
Judge Davis’s order—i.e., the Attorney General filed his motion with the
“court that entered the original sealing orders.”
Nor did Judge Dabel’s order run afoul of Judge Scott’s original sealing
order. “As a general rule, a trial judge cannot overturn the order of another
trial judge.” (Paul Blanco’s Good Car Co. Auto Group v. Superior Court
(2020) 56 Cal.App.5th 86, 99.) “Fundamentally, it ‘is founded on the inherent
difference between a judge and a court and is designed to ensure the orderly
administration of justice.’ [Citation.] Because a superior court is a single
entity comprised of member judges, ‘ “one member of that court cannot sit in
review on the actions of another member of that same court.” ’ ” (Ibid.)
However, exceptions exist to this general rule. For example, the rule does not
apply “when the record shows that the original judge is no longer ‘available.’ ”
(Id. at p. 100.) But “[u]navailability is not demonstrated, however, by the
mere fact that the original judge was transferred to another department of
the same court.” (Ibid.) “Courts have also found an exception where the
initial ruling was made through inadvertence, mistake, or fraud, or where
new facts, evidence, or laws have arisen.” (Id. at p. 101, fn. 6.)
Appellants argue these general principles apply to motions to unseal,
citing Wilson v. Science Applications Internat. Corp. (1997) 52 Cal.App.4th
1025 and Church of Scientology v. Armstrong (1991) 232 Cal.App.3d 1060. In
Wilson, the court addressed the ability of third parties to challenge an order
sealing all or part of the record in a civil proceeding. (Wilson, at p. 1028.)
The court concluded “a person seeking to vacate a sealing order which is no
longer subject to direct review may do so by making a motion under Code of
Civil Procedure section 1008, subdivision (a), and showing some new or
11
different fact, circumstance or law justifying vacation of the existing order.
[Citations.] The motion must be heard by the trial judge who entered the
sealing order [citation] and the moving party must present an explanation for
the failure to bring such information to the court’s attention earlier.” (Id. at
p. 1032.) However, Wilson was decided prior to NBC Subsidiary, supra,
20 Cal.4th 1178, and the subsequent legislative enactment of the sealed
records rules.
More recently, our colleagues in the Fourth Appellate District decided
Nicholas, supra, 186 Cal.App.4th 1566. In that matter, the family court
issued five sealing orders during a highly contentious and public divorce. (Id.
at pp. 1569–1571.) The matter was subsequently reassigned to a new judge
“to determine all issues pertaining to the family court’s files.” (Id. at p. 1571.)
The new judge issued various new sealing orders, which in relevant part
unsealed certain documents and vacated the fifth sealing order issued by the
prior judge. (Id. at pp. 1572, 1574.) On appeal, the husband argued the court
lacked jurisdiction to reconsider or otherwise modify the fifth sealing order.
(Id. at p. 1574.)
The appellate court rejected the husband’s reasoning. First, the court
concluded the husband’s position “runs afoul of constitutional principles,
California Supreme Court decisions, and judicial rules concerning the sealing
and unsealing of court records.” (Nicholas, supra, 186 Cal.App.4th at
p. 1574.) It explained the strong presumption of public access to court
records, which allowed for sealed records “only in limited circumstances, and
only when they expressly identify the particular facts that support the
existence of NBC Subsidiary’s constitutional standards.” (Id. at p. 1575.)
The court further explained, “Since orders to seal court records implicate the
public’s right of access under the First Amendment, they inherently are
12
subject to ongoing judicial scrutiny, including at the trial court level. ‘Due to
its temporary nature and its infringement upon the public right to know, a
sealing order in a civil case is always subject to continuing review and
modification, if not termination, upon changed circumstances.’ ” (Ibid.) The
court noted sealing orders are “ ‘continuing in nature, directed at future
events’ ” and “ ‘must be subject to adaptation as events may shape the need,’ ”
and compared them to “a way station, not a final destination.” (Id. at
p. 1576.)
Second, the court “reject[ed the husband’s] jurisdictional argument
because it would eliminate the court’s express authority to unseal records.”
(Nicholas, supra, 186 Cal.App.4th at p. 1577.) The court explained
“rule 2.551(h)[ ] authorizes trial judges to issue orders to unseal records that
previously have been sealed by prior court orders,” and “[u]nsealing orders
accomplish precisely what [the husband] contends judges should be barred
from doing—revisiting preexisting sealing orders.” (Ibid.) “[T]he power to
unseal is a critical safeguard for the public’s right to know.” (Ibid.)
Finally, the court rejected the husband’s argument that the new judge
lacked authority to alter sealing orders issued by his predecessor in the same
dissolution proceeding. The court noted this argument “ignores a (albeit
lamentable) ‘culture of rotation’ in urban family law departments [citation],
as well as the express authority of successor judges to control their own case
files and to alter or amend orders issued by their predecessors in the same
case.” (Nicholas, supra, 186 Cal.App.4th at p. 1577.) The court explained,
“Given the judiciary’s ‘ “core power to decide controversies between parties,” ’
a trial court retains the authority to alter or amend its own rulings in the
same case, whether made by the same judge or by his or her predecessor.
Any other restriction ‘ “would directly and materially impair and defeat the
13
court’s most basic functions, exercising its discretion to rule upon
controversies between the parties and ensuring the orderly administration of
justice.” ’ ” (Id. at pp. 1577–1578.) The court distinguished Church of
Scientology v. Armstrong, supra, 232 Cal.App.3d 1060 on the basis that it was
decided prior to NBC Subsidiary, which “precluded trial courts from sealing
the records of civil proceedings absent noticed hearings and findings to justify
such restrictions.” (Nicholas, at p. 1578, citing NBC Subsidiary, supra,
20 Cal.4th at pp. 1181–1182.) The court noted, unlike in Church of
Scientology, “Parties no longer can stipulate . . . to seal certain records from
public view.” (Nicholas, at p. 1578.)
Appellants seek to distinguish Nicholas on the grounds that it
addressed a trial judge’s authority to modify a predecessor’s rulings on his or
her own motion and does not undermine the principle that one judge may not
vacate another judge’s ruling except in limited circumstances set forth in
Paul Blanco’s Good Car Co. Auto Group v. Superior Court, supra,56 Cal.App.5th 86. They argue nothing in decisional or statutory law
challenges the general principle that one superior court judge cannot overrule
another superior court judge.
We disagree with appellants’ interpretation and find Nicholas
persuasive. Rule 2.551 specifically authorizes courts to consider motions to
unseal and represents “a critical safeguard for the public’s right to know.”
(Nicholas, supra, 186 Cal.App.4th at p. 1577.) And, as explained by Nicholas,
undermining successor judges’ ability to control their own cases “ ‘ “would
directly and materially impair and defeat the court’s most basic functions,
exercising its discretion to rule upon controversies between the parties and
ensuring the orderly administration of justice.” ’ ” (Id. at pp. 1577–1578.)
Under appellants’ interpretation, any judge handling a case which had been
14
reassigned would be hindered in his or her ability to efficiently manage the
matter. Accordingly, we conclude Judge Dabel and the family court had
authority to consider and rule on the Attorney General’s motion to unseal.
E. Order Granting Motion to Unseal
Appellants raise four main arguments challenging the family court’s
order granting the motion to unseal. Specifically, appellants contend the
Attorney General failed to bring his motion to further the First Amendment
right to public access, the Attorney General’s articulated purpose in seeking
the records does not support his unsealing motion, the factors set forth in
rule 2.550 support keeping the records sealed, and the records at issue are
not subject to the sealed records rules. We address each argument in turn.
1. Attorney General’s Right to Request the Records Be Unsealed
Appellants assert the Attorney General’s claimed public interest in the
marital dissolution records—the regulation of public charities—is not a valid
basis for seeking the records under the sealed records rules. Rather, they
assert, the public access must relate to the public’s interest in monitoring the
courts. We disagree.
a. Basis for Unsealing Records Under the Sealed Records
Rules
“Nearly all jurisdictions, including California, have long recognized a
common law right of access to public documents, including court records.”
(Overstock, supra, 231 Cal.App.4th at p. 483.) This right “is effectuated
through a presumption of access,” which means “court records are ‘open to
the public unless they are specifically exempted from disclosure by statute or
are protected by the court itself due to the necessity of confidentiality.’ ”
(Ibid.)
California also has recognized “a First Amendment right of access to
documents in civil litigation that are ‘filed in court as a basis for
15
adjudication.’ ” (Mercury Interactive, supra, 158 Cal.App.4th at p. 89, quoting
NBC Subsidiary, supra, 20 Cal.4th at p. 1208, fn. 25.) In NBC Subsidiary,
the California Supreme Court “addressed the outright closure of court
proceedings and concluded the trial court infringed on First Amendment
rights by barring the media from the courtroom in the absence of explicit
findings of an overriding interest that was likely to be prejudiced and could
not be protected by less restrictive means.” (Overstock, supra,
231 Cal.App.4th at p. 484, citing NBC Subsidiary, at pp. 1222–1223.) In
finding a First Amendment right of access to those proceedings, the court
explained, “Public access to civil proceedings serves to (i) demonstrate that
justice is meted out fairly, thereby promoting public confidence in such
governmental proceedings; (ii) provide a means by which citizens scrutinize
and check the use and possible abuse of judicial power; and (iii) enhance the
truthfinding function of the proceeding.” (NBC Subsidiary, at p. 1219.) The
court additionally noted, “Numerous reviewing courts likewise have found a
First Amendment right of access to civil litigation documents filed in court as
a basis for adjudication.” (Id. at p. 1208, fn. 25.) “Since NBC Subsidiary, the
California Courts of Appeal have regularly employed a constitutional
analysis in resolving disputes over public access to court documents.”
(Overstock, at p. 485.)
Based on NBC Subsidiary, “the Judicial Council in 2001 adopted two
rules concerning the sealing of trial court records that are presently
rules 2.550 and 2.551 of the California Rules of Court . . . . Those rules create
a presumption of public access to some, but not all, court-filed documents.
The sealed records rules ‘do not apply to discovery motions and records filed
or lodged in connection with discovery motions or proceedings. However, the
rules do apply to discovery materials that are used at trial or submitted as a
16
basis for adjudication of matters other than discovery motions or
proceedings.’ ” (Mercury Interactive, supra, 158 Cal.App.4th at p. 68, fn.
omitted.)
In Overstock, this court addressed whether “ ‘discovery materials . . .
submitted as a basis for adjudication’ ” is limited to those materials relevant
to the grounds on which a trial court ultimately rules or encompasses all
relevant discovery materials submitted to a court in support of and in
opposition to a pending motion. (Overstock, supra, 231 Cal.App.4th at
p. 492.) After evaluating the plain language of rules 2.550 and 2.551, we
concluded use of the word “submitted” addressed the parties’ conduct and
demonstrated the rules cannot be limited to merely those materials the court
relied upon in deciding an issue. (Overstock, at pp. 494–495.) We further
noted neither NBC Subsidiary nor the cases upon which it relied “suggest[ ]
the constitutional right of access to court records is limited to discovery
materials relevant to the ground or grounds on which a court ultimately
rules.” (Overstock, at p. 495.) Accordingly, we concluded a broader
construction of the phrase “ ‘submitted as a basis for adjudication’ ” is
appropriate. (Id. at p. 497.)
Appellants claim any public access must relate to the public’s interest
in monitoring the courts. This position, however, overlooks the “presumption
of public access” created solely by submitting such documents as a basis for
adjudication. (Mercury Interactive, supra, 158 Cal.App.4th at p. 68.) Neither
case law nor the sealed records rules require parties to identify any other
public interest. As discussed above, the sealed records rules apply to
discovery materials “used at trial or submitted as a basis for adjudication.”
(Rule 2.550(a)(3).) The only restriction on access—even under a narrow
interpretation of rule 2.550—is its relevance to an issue being adjudicated.
17
(Ibid.; Overstock, at pp. 493–494; accord Brown & Williamson Tobacco Corp.
v. F.T.C. (6th Cir. 1983) 710 F.2d 1165, 1181 [blanket sealing order
preventing the public from “ascertaining what evidence and records the
District Court and this Court have relied upon in reaching our decisions” was
improper].)
By focusing on the rationale of the Attorney General in seeking the
documents, appellants miss the mark. Access, rather than confidentiality, is
the default. (Rule 2.550(c).) And the right of access is set forth not only in
the sealed records rules but also in the California Constitution, “which
provides: ‘The people have the right of access to information concerning the
conduct of the people’s business . . . .’ ” 7 (Overstock, supra, 231 Cal.App.4th at
p. 495, citing Cal. Const. art I, § 3, subd. (b)(1).) Accordingly, the Attorney
General was entitled to move to unseal materials that were used at trial or
submitted as a basis for adjudication under the sealed records rules.
b. Attorney General’s Ability to Bring Motion on Behalf of
the Public
By challenging the validity of the Attorney General’s interest in the
records at issue, appellants essentially challenge the Attorney General’s
standing—i.e., whether the Attorney General properly brought his motion to
unseal on behalf of the public. (See rule 2.551(h)(2) [“A . . . member of the
public may move, apply, or petition . . . to unseal a record.”].) Here, the
Attorney General’s interest in bringing the motion on behalf of the public was
to evaluate alleged self-dealing and diversion of charitable funds. We are
unaware of any authority suggesting the Attorney General’s rationale cannot
7 To the extent the basis for seeking access is relevant, it arises as part
of the court’s analysis as to whether “[t]here exists an overriding interest that
overcomes the right of public access to the record.” (Rule 2.550(d)(1).) We
address that issue in part II.E.2., post.
18
support his motion on behalf of the public, and it is similar to those asserted
in other matters. (See, e.g., Mercury Interactive, supra, 158 Cal.App.4th at
p. 70 [public interest in alleged stock option backdating]; Overstock, supra,
231 Cal.App.4th at pp. 482–483 [challenging motion to seal transactional
materials related to alleged stock price suppression].)
Appellants next argue the Attorney General only regulates nonprofit
organizations, and Newton Center, the nonprofit at issue, was neither a party
to the marital dissolution proceedings nor “owned” by the parties to the
dissolution proceedings. Appellants thus assert the dissolution proceedings
involved interests that are beyond the purview of the Attorney General.
However, the applicable statutes governing nonprofit organizations
(Gov. Code, § 12580 et seq.) are not limited to the nonprofit organizations
themselves. Rather, the article “applies to all charitable corporations,
unincorporated associations, trustees, and other legal entities holding
property for charitable purposes, commercial fundraisers for charitable
purposes, fundraising counsel for charitable purposes, and commercial
coventurers, over which the state or the Attorney General has enforcement or
supervisory powers.” (Gov. Code, § 12581; accord People v. Orange County
Charitable Services (1999) 73 Cal.App.4th 1054, 1075 [Attorney General also
oversees “any individual, corporation, or legal entity who for compensation
solicits funds in California for charitable purposes or, as a result of a
solicitation, receives or controls the funds”].) Trustees are defined, in part, as
“any individual, group of individuals, corporation, unincorporated
association, or other legal entity holding property in trust pursuant to any
charitable trust.” (Gov. Code, § 12582.) And the Attorney General is
authorized to “investigate transactions and relationships of corporations and
trustees subject to this article for the purpose of ascertaining whether or not
19
the purposes of the corporation or trust are being carried out in accordance
with the terms and provisions of the articles of incorporation or other
instrument.” (Gov. Code, § 12588.)
Here, appellants arguably fall within the purview of the Government
Code based on their role in operating Newton Center. While they contend a
nonprofit cannot be “owned,” the record indicates Newton Center was formed
by Soncino and the Tamirs, they were all named directors of the nonprofit,
and no board of director meetings were ever conducted, and it operated
within the broader structure of the family businesses. Accordingly,
substantial evidence indicates the Attorney General properly brought the
motion on behalf of the public.
2. Application of the Sealed Records Rules
Rule 2.550(d) sets forth five factors for courts to consider when either
sealing or unsealing records. While express findings must be made to seal
records, no express finding need be made when a court unseals records.
(Providian, supra, 96 Cal.App.4th at p. 302; Overstock, supra,
231 Cal.App.4th at p. 487.)
Appellants contend they have an overriding privacy interest in their
financial and personal information. In response, the Attorney General
contends compensation and expenses inuring to a charity’s founding directors
are not constitutionally protected.
Undoubtedly, individuals have a privacy interest in their financial
information. (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652,
656.) However, “the question in the context of sealing is whether the state-
recognized privacy interest in financial information overrides the federal
constitutional right of access to court records. This is necessarily a balancing
inquiry, dependent on the facts and circumstances of the particular case.”
20
(Overstock, supra, 231 Cal.App.4th at p. 504.) To this end, we find In re
Marriage of Burkle (2006) 135 Cal.App.4th 1045 (Burkle), instructive. There,
the court evaluated the validity of Family Code section 2024.6, which
required, at the request of either party, the sealing of any pleading in a
divorce case listing information about the financial assets and liabilities of
the parties and providing the location or identifying information about such
assets and liabilities. (Burkle, at pp. 1052–1070.) The court in Burkle looked
to both historical and utility considerations to conclude divorce proceedings
are presumptively open. (Id. at pp. 1056–1058, 1061.) The court then sought
to evaluate the right to financial privacy in the context of the First
Amendment right to access. In doing so, the court emphasized “state
constitutional privacy rights do not automatically ‘trump’ the First
Amendment right of access under the United States Constitution.” (Burkle,
at p. 1059.) Rather, “the factors unique to marital dissolutions are weighed
in the balancing process that necessarily occurs in a decision whether to close
divorce proceedings or to seal records that are presumptively open.” (Id. at
p. 1061.)
In evaluating this balance, the court struck down the statute,
concluding it was not narrowly tailored to protect parties from economic
crimes. (Burkle, supra, 135 Cal.App.4th at pp. 1066, 1069–1070.) The court
drew a distinction between highly sensitive identifying information, such as
account and Social Security numbers or asset locations, that can facilitate
criminal activity, and more general information, such as the mere existence
and stated value of an asset or liability. (Id. at pp. 1065–1066.) Burkle thus
indicated the general right to financial privacy, without more, does not
preempt the public’s right of access.
21
Appellants argue their right to financial privacy overrides the right of
public access because the materials at issue were “taken from Yoram Tamir’s
desk” and encompassed information concerning appellants’ “ ‘employment,
compensation, salary, and expenses.’ ” However, apart from referencing their
general right to financial privacy, appellants do not identify any specific
prejudice or privacy concerns regarding disclosure of these materials that
would override the right of access. 8 They merely contend the unsealing order
would constitute “the kind of ‘ “government snooping” ’ and ‘ “overbroad
collection and retention of unnecessary information” ’ that the voters sought
to guard against when they adopted the California Constitution’s privacy
clause.” They argue their personal information “has nothing to do with the
Attorney General’s supervision of public charities.” However, as discussed
above, the Attorney General’s supervision of public charities encompasses not
only the nonprofit but also “unincorporated associations, trustees, and other
legal entities holding property for charitable purposes, commercial
fundraisers for charitable purposes, fundraising counsel for charitable
purposes, and commercial coventurers.” (Gov. Code, § 12581.)
8 Appellants cite Cassidy v. California Bd. of Accountancy (2013)
220 Cal.App.4th 620, 625, to assert an individual’s overriding privacy interest
in their financial information supports sealing. However, in Cassidy, the
court noted there was an overriding interest because the documents “were
not the subject of any adjudication in this case, were placed in the public
record without [a third party’s] consent, and thus there is no right to public
access to these private documents.” (Ibid.) Here, the record does not reflect
comparable facts. Likewise, appellants’ reliance on Burkle is inapposite.
While Burkle noted the information regarding assets and liabilities is subject
to privacy rights, it concluded those rights did not trump the First
Amendment right of access. (Burkle, supra, 135 Cal.App.4th 1045 at
p. 1059.)
22
Appellants’ reasoning, if adopted by this court, would essentially
mandate the sealing of all financial records filed in a court proceeding. And,
as explained in Burkle, such a sweeping rule would run counter to the First
Amendment right of access. (Burkle, supra, 135 Cal.App.4th at pp. 1059,
1061.) Moreover, appellants’ contention that their financial information is
unrelated to the Attorney General’s role in supervising public charities is
misleading. Appellants do not dispute they received funds from Newton
Center. Nor do they dispute they served as directors of Newton Center. And
the Government Code authorizes the Attorney General to obtain records—
including financial records—from such individuals. (See, e.g., Gov. Code,
§ 12588 [authorizing Attorney General to “require any agent, trustee,
fiduciary, beneficiary, institution, association, or corporation, or other person
to appear, at a named time and place, in the county designated by the
Attorney General, where the person resides or is found, to give information
under oath and to produce books, memoranda, papers, documents of title, and
evidence of assets, liabilities, receipts, or disbursements in the possession or
control of the person ordered to appear”].) Likewise, the Internal Revenue
Service requires Newton Center to disclose any compensation paid to a
charity’s directors. (See IRS Form 990, Instructions for Form 990 (2020)
pp. 25, 26 [“Form 990, Part VII, requires the listing of the organization’s
current or former officers, directors, trustees . . . and reporting of certain
compensation information related to such persons.”; “Organizations must
report compensation from themselves and from related organizations”].)
Accordingly, substantial evidence supports the family court’s decision to
unseal appellants’ compensation and financial records. 9
9 Because we conclude substantial evidence supports the finding that
appellants failed to demonstrate an overriding interest that overcomes the
right of public access and supports sealing of the record, we need not address
23
3. Use of the Documents Submitted Under Seal
Finally, appellants assert the family court erred in unsealing records
from the divorce proceedings because those documents “were neither used at
trial nor submitted as a basis for adjudication of nondiscovery matters.”
Specifically, appellants note no records were sealed in connection with trial.
They further contend the sealed records were not submitted as a basis for
adjudication but rather in connection with “an ancillary issue regarding
[Yoram’s] belated attempt to disqualify the judge pro tem” and a “related
motion for sanctions” against Yoram for his motion to disqualify. In
response, the Attorney General states “because the sealed records were never
identified, Appellants’ argument that they do not constitute discovery and
were not submitted for adjudication cannot be substantiated.”
The Attorney General fails to address appellants’ main point—namely,
that the motions for which the documents were submitted and sealed were
neither related to the underlying matter’s adjudication nor used at trial.
As explained by the court in Mercury Interactive, “We conclude that the
first sentence of footnote 25 [in NBC Subsidiary, supra, 20 Cal.4th at
page 1208,] meant that a number of appellate courts had found a First
Amendment right of access to documents filed in a civil case where they were
submitted to the trial court for its consideration in deciding a substantive
matter in that action. (See Black’s Law Dict. (8th ed. 2004) p. 45, col. 1
[defining ‘adjudication’ as ‘[t]he legal process of resolving a dispute; the
process of judicially deciding a case’]; see also Merriam-Webster’s Collegiate
the other factors set forth in rule 2.550(d). We also do not opine on whether
the Attorney General could have compelled production of such records in its
civil action, People v. Newton Center (Super. Ct. San Mateo County, No.
19CIV02188).
24
Dictionary (10th ed. 2001) p. 95 [defining ‘basis’ as ‘the principal component
of something . . . something on which something else is established or
based’].)” (Mercury Interactive, supra, 158 Cal.App.4th at p. 91.)
Here, the record indicates one motion to seal was in connection with a
motion for sanctions. The other motion to seal does not identify the related
motion for which it was submitted, but appears to be related to Celine’s trial
brief and a request for judicial notice. While the Attorney General takes
issue with the court’s failure to identify the specific documents at issue, there
is no attempt by the Attorney General to identify any sealing order connected
with the matter’s adjudication. However, at least two documents identified
by the Attorney General in his motion to unseal appear related to the
matter’s adjudication: (1) the trial brief of Soncino “re Tax Consequences”
and accompanying exhibits, and (2) the trial brief of Celine “re Allocation and
Valuation of the Community’s Interest in the Family Business” and
accompanying exhibits. Unfortunately, the record submitted by the parties
to this court does not provide further insight into the issues giving rise to the
motions to seal or the documents under seal. Accordingly, we find it
appropriate to reverse the family court’s order granting the Attorney
General’s motion to unseal, and remand to the family court to assess, in the
first instance, whether the documents subject to the motions to unseal were
used in trial or submitted as a basis for adjudication.
F. Order Setting Aside the Protective Orders
Finally, appellants argue the family court erred by terminating the
protective orders filed on December 12, 2011 and September 17, 2012. They
contend the documents at issue were discovery materials that were neither
used at trial nor submitted as a basis for adjudication, and merely deemed
confidential pursuant to the terms of the protective orders. The Attorney
25
General does not respond to this argument or otherwise assert the family
court properly set aside the protective orders.
The Attorney General’s motion to unseal was based on the factors set
forth in the sealed records rules. The family court granted the motion and set
aside the protective orders by “adopt[ing] the People’s argument and analysis
for purposes of this motion.” However, the sealed records rules only “apply to
records sealed or proposed to be sealed by court order.” (Rule 2.550(a)(1).)
And the protective orders do not constitute “records sealed or proposed to be
sealed.” Moreover, a general exchange of documents pursuant to a protective
order is not encompassed by the sealed records rules because such an
exchange does not amount to those materials being “used at trial or
submitted as a basis for adjudication of matters other than discovery motions
or proceedings.” (Rule 2.550(a)(3).) Accordingly, the family court erred in
setting aside the protective orders.
III. DISPOSITION
The order granting the motion to unseal is reversed, and the matter is
remanded to the family court to determine whether the sealed documents
were “used at trial or submitted as a basis for adjudication of matters other
than discovery motions or proceedings.” The parties are to bear their own
costs on appeal. (Rule 8.278(a)(3).)
26
MARGULIES, J.
WE CONCUR:
HUMES, P. J.
SANCHEZ, J.
A161782
In re Marriage of Tamir
27
Filed 12/20/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re Marriage of CELINE and
YORAM TAMIR
CELINE TAMIR et al., A161782
Plaintiffs and Appellants, (San Mateo County
v. Super Ct. No. FAM0113496)
YORAM TAMIR,
ORDER CERTIFYING OPINION
Defendant and Respondent; FOR PUBLICATION
[NO CHANGE IN JUDGMENT]
THE PEOPLE ex rel., ROB BONTA,
as Attorney General, etc.,
Intervener and Respondent.
THE COURT:
The opinion in the above-entitled matter filed on November 29, 2021,
was not certified for publication in the Official Reports. After the court’s
review of a request under California Rules of Court, rule 8.1120, and good
cause established under rule 8.1105, it is hereby ordered that the opinion
should be published in the Official Reports.
There is no change in the judgment.
Dated:
___________________________
MARGULIES, ACTING P.J.
Trial Court: San Mateo County Superior Court
Trial Judge: Hon. Sean P. Dabel
Counsel:
Ponist Law Group, Sean E. Ponist; Wilson Elser Moskowitz Edelman &
Dicker, Marty Brian Ready; Law Office of Alan S. Yockelson and Alan S.
Yockelson for Plaintiffs and Appellants.
No appearance for Defendant and Respondent.
Rob Bonta, Attorney General, Tania M. Ibanez, Assistant Attorney General,
Elizabeth S. Kim, Diane P. Cragg and Caitlin W. Noble, Deputy Attorneys
General, for Intervener and Respondent.
2