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Court of Appeal:
Judge Properly Wiped Out Previous Judges’ Secrecy Orders
Opinion Says Statute Creating a Stay Where Motion Is Made to Declare a Party a Vexatious Litigant Means There Was a Lack of ‘Authority’ to Unseal Records in the Case While Proceedings Were Halted, but Order Is Not ‘Void’
By a MetNews Staff Writer
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LEE L. GABRIEL Orange Superior Court judge |
An Orange County attorney who has been branded a vexatious litigant has failed to persuade Div. Three of the Fourth District Court of Appeal that a judge improperly lifted eight sealing orders issued by the two judges who previously presided over the case in which she is being sued by a lawyer for fees.
Div. Three’s clerk is instructed by the unpublished opinion, filed Tuesday, to send a copy of it to the State Bar for possible disciplinary action against the appellant, Ally Alain of Laguna Niguel.
The rule that one Superior Court judge can’t countermand rulings by another judge of that court has an exception which, Acting Presiding Justice Thomas M. Goethals wrote, applies. And even though Orange Superior Court Judge Lee L. Gabriel should not have made a ruling on the unsealing when he did—on Feb. 13, 2024— because proceedings were stayed, pending final resolution of the motion to declare the defendant a vexatious litigant, there is no need for a reversal, Goethals said.
Suing for fees is the Law Offices of Mark B. Plummer, P.C., in Yorba Linda. He represented Alain, known as Nili Alai when Plummer filed suit against her and her husband in 2018, in an employment action against them in Orange Superior Court. brought by a paralegal, and, on a limited basis, in a medical malpractice/personal injury case they brought in Santa Clara Superior Court.
Alain is a dermatologist and her husband, Siamak Nabili, who was not a party to the appeal, is an internist. On Nov. 17, 2022, Alain, a medical doctor since 1995, was admitted to the State Bar of California.
Unsealing Order
In explaining the affirmance of Gabriel’s order to unseal all records in the case—which include the complaint—Goethals said:
“Based on First Amendment principles, California has a long-standing tradition of open civil proceedings; there is a strong presumption in favor of public access to court records in civil cases.”
He cited rule 2.550(c) of the California Rules of Court which provides:
“Unless confidentiality is required by law, court records are presumed to be open.”
The justice declared (using Alain’s former name, as he did throughout the opinion):
“Alai has not established that any filings in this matter must be sealed, and we are not persuaded by her argument that the current judge lacked jurisdiction to issue the unsealing order.”
‘Jurisdictional Overreach’
Accusing Gabriel of a “jurisdictional overreach,” Alain argued on appeal that “[m]ere disagreement, as here, with the prior judges’ rulings…is not enough to overturn that ruling.”
Acknowledging that the general rule is that Superior Court judges can’t tinker with rulings by other judges in a case, Goethals said that “an exception to this rule applies when the record shows the original judge is ‘unavailable’—for example, if he or she has retired from the bench” and noted that Judge James Crandall, who issued the first two sealing orders in the case, left the bench in 2023. Goethals wrote:
“In light of his retirement, there was nothing to prevent Judge Gabriel from reconsidering the propriety of sealing the complaint, as first ordered by Judge Crandall in July 2018, and as later reinforced over the years by subsequent trial court orders (none of which appear to have considered the propriety of the original sealing order).”
Those later orders were made by Judge Walter P. Schwarm.
Power to Unseal
Goethals continued:
“Even if Judge Crandall had not retired, however, the result would be the same. We have long recognized that a trial court judge has continuing jurisdiction to modify interim sealing orders to ensure compliance with the law.”
He noted that in the 2010 case of In re Marriage of Nicholas, it was spelled out that sealing orders are subject “to continuing review and modification by the trial judge.”
That case, also decided by the Fourth District’s Div. Three, decried the appellant’s “efforts to treat sealing orders as if they sealed caskets rather than presumptively open court records,” and said that a successor judge who “inherited the case” has “the attendant responsibilities to run an open and accessible courtroom.” Then-Justice Richard M. Aronson, now a private judge, wrote:
“Plainly, the power to issue sealing and unsealing orders underscores the provisional nature of sealing remedies.”
Santa Clara Case
Plummer’s complaint, seeking fees, contains two paragraphs—to be publicly bared under Gabriel’s ruling—which reference the case number of the medical malpractice action in Santa Clara Superior Court in which Alain is identified as “Jane Doe” and her husband is denominated “John Doe.” Alain argued on appeal that affirming the order would “de-anonymize Defendants’ otherwise pseudonym case,” protesting:
“A simple Google search of the pseudonym case caption or case number returns the full case records in a matter of seconds.”
That, Alain maintained in her brief, amounted to “asserting jurisdiction over the matter in another superior court.” She said in a footnote:
“The pseudonym case goes into detail about private medical history, inappropriate body photographs, and ‘invasion of privacy’.…”
Goethals pointed to the Aug. 5 2022 decision of the Sixth District Court of Appeal in Department of Fair Employment & Housing v. Superior Court of Santa Clara County. There, Acting Presiding Justice Adrienne Grover said:
“Much like closing the courtroom or sealing a court record, allowing a party to litigate anonymously impacts the First Amendment public access right. Before a party to a civil action can be permitted to use a pseudonym, the trial court must conduct a hearing and apply the overriding interest test: A party’s request for anonymity should be granted only if the court finds that an overriding interest will likely be prejudiced without use of a pseudonym, and that it is not feasible to protect the interest with less impact on the constitutional right of access. In deciding the issue the court must bear in mind the critical importance of the public’s right to access judicial proceedings. Outside of cases where anonymity is expressly permitted by statute, litigating by pseudonym should occur ‘only in the rarest of circumstances.’ ”
The phrase quoted by Grover was from the California Supreme Court’s 1999 decision in NBC Subsidiary (KNBC-TV), Inc. v. Superior Court.
Goethals commented: “Applying the test articulated in, we conclude Alai has not established that her Santa Clara medical malpractice action is entitled to continuing anonymity. She does not cite any statute permitting anonymity….”
He added that Alain fails to show that the case presented the “rarest of circumstances,” adding:
“Indeed, Alai does not identify what overriding interest is even at play here.”
Effect of Stay
The acting presiding justice noted that a motion to declare a party a vexatious litigant is made, Code of Civil Procedure §391.6 provides that “the litigation is stayed” and, if the motion is granted, the stay continues “until 10 days after the required security has been furnished and the moving defendant [is] given written notice thereof.” He said that on Feb. 13 of last year, when he granted the motion and ordered that Alain provide security in the amount of $100,000 security. “court lacked authority…to rule on any motions other than the vexatious litigant motion.”
Nonetheless, he said that allowing Alain “to complain about any noncompliance with section 391.6 would be inconsistent with the policies underlying the vexatious litigant statute,” elaborating:
“The purpose of staying litigation pending resolution of a vexatious litigant motion is presumably not to protect the vexatious litigant, but rather to protect the other party from an ongoing onslaught of motion practice. Allowing a vexatious litigant like Alai to use the stay requirement to invalidate other orders of the court would turn the statute on its head. We reject her argument that section 391.6 rendered the court’s February 13 unsealing order void.”
The opinion affirms Gabriel’s order denying a motion to seal papers in connection with the vexatious litigant motion and dismisses the purported appeal from the determination that Alain is a vexatious litigant based on nonappealability of such a finding.
Goethals remarked:
“To date, the case has nearly 2,000 docket entries, with over 100 motions filed. We need not summarize every procedural development here, but we note the amount of motion practice seems to us to be extraordinary (particularly given the straightforward issues involved), and has included repeated motions by Alai to seal and for sanctions.”
Separate Litigation
The conflict between Alain and Plummer has been before Div. Three on five prior occasions, with two opinions centering on Alain’s deprecating descriptions of her adversary on a website, resulting in a defamation suit against her. Goethals recited that at oral argument in connection with Alain’s appeal from the denial of her anti-SLAPP motion in that litigation, “an attorney who identified herself as Ally Alain (State Bar No. 345524) argued the matter on behalf of Alai.”
He continued: “Midway through oral argument on the case, Plummer (appearing in pro per) revealed that attorney Alain was in fact defendant, Nili Alai. This revelation came as a surprise to the court because Alain had not notified the court that she was appearing in pro per, and she had repeatedly referred to Alai in the third person throughout her opening argument. When the panel asked for an explanation, Alai/Alain explained she had changed her name, was now admitted to the bar, and did not think it was necessary or appropriate to notify the court that she was in fact a party to the case.”
Tuesday’s decision comes in Law Offices of Mark B. Plummer v. Alai, G063811.
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