Tamir v. Tamir (In re Tamir)

• Decision Date: 29 November 2021
• Docket Number: A161782
• Citation: 72 Cal.App.5th 1068,288 Cal.Rptr.3d 48
• Parties: IN RE MARRIAGE OF Celine and Yoram TAMIR Celine Tamir et al., Plaintiffs and Appellants, v. Yoram Tamir, Defendant and Respondent; The People ex rel., Rob Bonta, as Attorney General, etc., Intervener and Respondent.
• Court: California Court of Appeals Court of Appeals

72 Cal.App.5th 1068

288 Cal.Rptr.3d 48

IN RE MARRIAGE OF Celine and Yoram TAMIRCeline Tamir et al., Plaintiffs and Appellants,

v. Yoram Tamir, Defendant and Respondent;The People ex rel., Rob Bonta, as Attorney General, etc., Intervener and Respondent.

A161782

Court of Appeal, First District, Division 1, California.

Filed November 29, 2021

Ponist Law Group, Sean E. Ponist, San Diego; Wilson Elser Moskowitz Edelman & Dicker, Marty Brian Ready, San Diego; 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.

Justice Margulies, J.

In connection with divorce proceedings and a related lawsuit, Isaac Soncino, Celine Tamir, and Yoram Tamir¹ 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 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

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 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 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.

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, 180 Cal.Rptr.3d 234 ( 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 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, 86 Cal.Rptr.2d 778, 980 P.2d 337 ( NBC Subsidiary ); In re Marriage of Nicholas (2010) 186 Cal.App.4th 1566, 1575, 113 Cal.Rptr.3d 629 ( Nicholas ); Overstock , supra , 231 Cal.App.4th at p. 484, 180 Cal.Rptr.3d 234.) "A strong presumption exists in favor of public access to court records in ordinary civil trials. [Citation.] That is because ‘the public has...