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In re Marriage of Nicholas

July 29, 2010


Appeal from an order of the Superior Court of Orange County, James L. Waltz, Judge. Affirmed. Request for judicial notice. Granted in part and denied in part. (Super. Ct. No. 02D010487).

The opinion of the court was delivered by: Aronson, J.



Consistent with First Amendment principles, California has a long-standing tradition of open civil proceedings. This applies with equal force to family law cases, although trial courts may redact or seal particular documents to protect private information concerning an overriding privacy interest, including matters pertaining to the custody and visitation of minor children. (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178 (NBC Subsidiary); In re Marriage of Burkle (2006) 135 Cal.App.4th 1045 (Burkle).)

The trial judge initially assigned to the family law case now before us issued several different orders sealing the court record and establishing a procedure blocking public access. Later, a newly assigned trial judge issued a revised sealing order to provide a procedure for public access in compliance with the NBC Subsidiary and Burkle decisions, as implemented by California Rules of Court, rules 2.550 and 2.551.

Appellant Henry Nicholas (Nicholas) contends the family law court lacked jurisdiction to issue the revised sealing order because it was bound by the initial family law judge's ruling, which he deems binding and unalterable by a successor trial judge. We do not find the contention persuasive.

We reject Nicholas's efforts to transform one of the initial trial judge's prior sealing orders into a juridical black hole from which no light can ever escape. Sealing orders, by their nature, turn on particular circumstances, which may change or evolve over time. Erecting a jurisdictional barrier would effectively prevent the court from exercising custody and control over its own files. We therefore follow well-established constitutional, case, and statutory authority subjecting sealing orders to continuing review and modification by the trial judge who sits in the same judicial proceeding.


A. Prior Sealing Orders

Nicholas is involved in a "highly contested" marital dissolution proceeding with his spouse Stacey Nicholas, who filed the petition in 2002. The couple has three minor children. Nicholas cofounded Broadcom Corporation, which he describes as a "successful and well-known high-technology company." Both the underlying action and a separate federal criminal indictment for securities fraud and narcotics crimes have drawn, in his words, "intense media scrutiny and interest . . . ." (See U.S. v. Nicholas (C.D. Cal. 2008) 594 F.Supp.2d 1116.)

The Nicholas divorce case initially was assigned to Judge Nancy Pollard. In January 2003, Judge Pollard filed the first sealing order in this case, based upon the parties' stipulation, which provided that "'[a]ny document filed with the Court that contains any Confidential Information . . . shall be filed under seal and labeled as set forth . . . .'" The order defined "'Confidential information'" to include information relating to family investments, holdings, and matters pertaining to "'family life, private life, personal characteristics, lifestyle, proclivities, customs, conduct, fitness, habits, sexual or other behavior, health and any other personal information. . . .'"

The Nicholas case subsequently was reassigned to Judge Salvador Sarmiento, who determined "the prominence of the Nicholas family in the Orange County community gives rise to such filings being newsworthy . . . ."

In December 2006, Judge Sarmiento issued a second sealing order, based on the parties' stipulation, requiring that any pleading or other document "that relates to the custody of the minor children shall be sealed from public view." The second sealing order further required the court to seal all previously filed documents and to remove them from the court computer system "[s]ince all filings in this matter heretofore have been documents relating to custody . . . ."

In January 2007, Judge Sarmiento filed a third sealing order that restricted access to the court files to the attorneys of record. No other person could access the court files without a prior court order.

In February 2007, Judge Sarmiento, acting on his own motion, filed a fourth sealing order. This order sealed all documents in the court file, including documents relating to family finances and holdings in Broadcom. The fourth sealing order did not contain any new findings. Instead, Judge Sarmiento incorporated by reference the blanket findings contained in the second sealing order of December 2006. The fourth sealing order itself was sealed, as was the docket sheet, and the entire court file.

In August 2007, respondent Los Angeles Times Communications LLC (the Times) filed a motion to intervene and to unseal the court records. The Times argued, "While the parties may be able to meet their burden of establishing that the Court should redact certain information about the Nicholases' children, or information such as bank or brokerage account numbers, Social Security numbers, telephone numbers, or home addresses -- redactions that the Times does not oppose -- they cannot come close to justifying the blanket sealing order that shields the entire court file from public view."

In December 2007, Judge Sarmiento issued a fifth sealing order.*fn2 The fifth sealing order vacated the fourth sealing order, but did not unseal any documents. Instead, acting pursuant to Code of Civil Procedure section 639, Judge Sarmiento used the fifth sealing order to appoint a special master to determine which court records, previously filed records and future filings, should be sealed or redacted.

The fifth sealing order provided the special master with general guidelines in recommending which records to seal. The order directed the special master to consider sealing pleadings, declarations, and exhibits that "mention the children." Conversely, the special master should unseal income and expense forms, notices of hearing, as well as pleadings, declarations, and exhibits that did not mention the children.*fn3

The fifth sealing order did not contain any findings of fact relating to the particularized standards and procedures in rule 2.550 of the California Rules of Court. Instead, the fifth sealing order incorporated by reference the findings made one year earlier in the second sealing order.

In February 2008, Nicholas and his wife each filed motions seeking further redaction and sealing of court records. Judge Sarmiento transferred the matter to the special master, but the record ...

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