Metropolitan News-Enterprise

 

Wednesday, October 20, 2021

 

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Court of Appeal Conceals Identity of Party Identified in Previous Opinion in the Case

First District Panel Denies Bid by Litigant to Issue Its Decision Under Seal

 

By a MetNews Staff Writer

(News and Analysis)

Div. Two of the First District Court of Appeal has denied an appellant’s request for the filing of its opinion in the case under seal, and likewise spurned his plea to hide from public view an opinion filed more than a year ago, but the justices did camouflage the man’s identity by using only his initials even though he is identified in the earlier decision by name.

Unpublished Opinion

Justice James Richman authored the unpublished opinion in M.M. v. R.B., A161934, filed Monday. The opinion affirms an order denying a request by a father, Michael Minasian, “to modify the custody and timeshare for” his son, who was born in 2003, and turned 18 earlier this month.

Alameda Superior Court Judge Jennifer Madden said last year, in turning down Minasian’s request for increased contact with his son, that that the father “is essentially asking this Court to ignore the desires of a young man who is less than a year away from adulthood and who should have some level of agency in this decision.” She found no attempts at alienation by the mother, Rosa Katz, and declared that Minasian “has not presented evidence which necessitates a change in either custody or visitation schedule.”

Minasian established his paternity in an action brought in 2004.

Four Issues Disregarded

Richman noted that three issues raised by the appellant, whom he denominated “M.M.,” relate to rulings made in earlier proceedings—one in 2015 and two in 2017—which were not timely appealed, and must be disregarded. Another supposed issue, he said, was a challenge to a discovery ruling which had been addressed by the court, though not on the merits, in a June 11, 2020 unpublished opinion.

There, Richman wrote for the panel in pointing out that the purported appeal was from a nonappealable order. The appeal was dismissed in that case, Michael Minasian v. Rosa Katz, A158517.

Richman said in Monday’s opinion that the only viable appeal—“which appears to be the focus of M.M.’s brief”—was from Madden’s decision not to alter custody or visitation, proclaiming that “the ‘issue’ has no merit.”

He derided Minasian’s brief, filed in pro per, lauded the caliber of Madden’s written decision, and in particular took issue with the appellant’s negative characterization of the judge’s conduct in the proceeding, commenting that her “handling of the case was exemplary.”

Mootness of Appeal

The justice added “one final note,” saying that “to the extent M.M. is appealing Judge Madden’s ruling insofar as it deals with custody issues”—the only issues so far as the opinion reveals—“the appeal would be moot in light of the fact that A.M. turned 18 in October 2021, and would no longer be subject to the jurisdiction of the court whose jurisdiction extends only to the parties’ minor children.”

Richman did not explain why the present appeal was not dismissed as moot.

He also did not explain why the parties’ identities were concealed where they were matters of public record (or why, even if they were not public matters, why anonymity was appropriate).

Minasian had sought protection even broader than referring to him by initials.

On June 21, he moved for an order sealing the forthcoming opinion in the case as well as the opinion issued last year, also seeking an order rendering nonpublic the record in the present appeal and the earlier one.

July 22 Order

The court said in a July 22 order:

“Appellant’s request to seal the opinion that will be filed in this appeal is denied. The decisions of this court are public documents and are not subject to sealing.”

The only readily ascertainable instance of the California Court of Appeal filing an opinion entirely under seal occurred on July 3, 2001 when this district’s Div. One did so in the case of Agency for the Performing Arts v. The Walt Disney Company, B138373. Then-justice Fred Woods (now retired), whose name appears as the author, when contacted at home by the METNEWS on the morning the unpublished opinion was filed under seal, expressed an unawareness that his staff had taken such an action; in response to a request by letter from this newspaper, Div. One on July 27, 2001, reissued the opinion, though with portions relating to certain financial information excised.

The July 22 order in the present case assures Minasian that “the court will, to the extent possible, take reasonable steps to conceal the parties’ identity and maintain their confidentiality in any opinion that is filed.”

The court did not explain how it could “maintain” confidentiality where no confidentiality had existed in the case to that point.

“Appellant’s request to seal the opinion that was filed in A158517, is denied,” the order says.

“The decision in that case is final and this court no longer has jurisdiction over the matter.”

It also says:

“The motion to seal the record in this appeal and the record in the prior appeal, case number A158517, is denied as unnecessary. The records for both appeals, including the reporter’s transcripts, the clerk’s transcripts, and all briefs that were or will be submitted by the parties, are already considered confidential and are not available to the public.”

 

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