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C.A. Shields Identity of Appellant Who Filed Opposition to Motion for Secrecy Order
By Roger M. Grace, editor
news and analysis
The Court of Appeal for this district has determined that a woman who was found to have physically and verbally abused her husband, from whom she is now estranged, should have her identity shielded—despite her written opposition to use by the court of her initials rather than her actual name.
Div. One acceded to the request by the husband for anonymity of the parties. He sued for divorce, obtained a domestic violence restraining order (“DVRO”) against his wife, and is the respondent in her appeal from that order, issued by Los Angeles Superior Court Judge Bradley S. Phillips.
The appellate court’s opinion, which was not certified for publication, was filed Wednesday.
The caption of the case throughout proceedings in the Superior Court and in the Court of Appeal, at the start, was James Rapore v. Maria Bostandjian; it’s now J.R. v. M.B. The case number is B331268.
Lawyer/Litigant’s Request
Rapore is a member of the prestigious multistate law firm of Mintz Levin Cohn Ferris Glovsky & Popeo. He’s stationed in its Century City office.
On March 12, 2024, through counsel, he filed a request that his initials, rather than his name, be used “in all opinions and records of this Court, including on the Court’s website.” Bostandjian—a 2015 graduate of USC’s Gould School of Law and who worked as an intern at Skadden, Arps, Slate, Meagher & Flom LLP during summers from 2013-16 but is not a member of the State Bar—filed opposition, through her lawyer, on March 27, 2024. The opposition says:
“[T]here is no basis for issuing orders requiring that all records of this Court, including the website, be amended to include the parties initials only. Such a request cannot reasonably be applied. This matter was litigated in the trial court using the parties true names, and neither requested anonymity. Moreover, the record on appeal has already been prepared by the lower court. Not only is the request far beyond the scope of Rule 8.90, but it is irrational and overly cumbersome to expect court staff to amend the entire record simply because Respondent prefers secrecy where there is no public policy for doing so.
“Indeed, there is no basis for issuing any orders. Rule 8.90 simply gives the appellate court discretion to use initials in the Opinion. It docs not provide grounds for issuing orders lo the appellate court staff, the lower courts, or the parties, to redact their true names from the record and replace them with initials.”
Reply to Opposition
Rapore’s attorney replied the following day, arguing:
“…California appellate courts routinely refrain from referring to the Parties by their full names in opinions and remove their names from the docket in appeals involving domestic violence restraining orders….In these cases, the parties were presumably referred to by their full names in trial court documents, yet the courts still excluded their names from the appellate docket and the opinion. Appellant fails to cite a single case where a request under Rule 8.90 in similar circumstances was denied.”
The reply goes on to say:
“Appellant is not seeking to infringe on Appellant’s constitutional rights but is seeking to protect his privacy rights, and she has provided no reason as to how identifying the parties by their initials is prejudicial to Appellant. On the contrary, having the parties identified by their initials not only protects Respondent’s privacy, but also Appellant’s, specifically, given the nature of this case and the fact that this is an appeal from a Domestic Violence Order that is in effect against her.”
Div. One’s Order
Div. One issued an order on April 4, setting forth:
“To the extent respondent seeks an order confirming that this Court will exercise its discretion to comply with California Rules of Court, Rule 8.90(b)(1) in connection with the opinion on appeal, the request is granted.”
That “rule”—which, by its terms, actually takes the form of a guideline—recommends that the reviewing court consider use of pseudonyms for “protected persons in domestic violence-prevention proceedings.”
The order continues:
“To the extent that the motion seeks relief other than that provided in Rule 8.90, the motion is denied.”
No Explanation
There was no explanation in the order, nor in Rothschild’s opinion, as to how an abuser—here, Bostandjian—would qualify as a “protected person.”
Rule 8.90(b)(11) does add to the list of those whose identities justices might consider concealing “[p]ersons in other circumstances in which use of that person’s full name would defeat the objective of anonymity for a person identified” in the preceding paragraphs. However, the husband and wife in Rapore v. Bostandjian have different surnames and there is no indication as to why use of the name of Maria Bostandjian would trigger an awareness on the part of the reader that the protected party is attorney James A. Rapore.
Bostandjian and Rapore are not persons whose relationship has been tracked by supermarket tabloids or have otherwise gained public attention.
Although Rapore, who did seek anonymity, is a “protected person,” Rothschild did not explain why discretion was exercised in favor of withholding his identity where it is a matter of public record, accessible electronically.
Sixth District Opinion
Div. One’s use of initials appears to reflect a posture that diverges from that of the Sixth District Court of Appeal expressed in its 2022 opinion in Department of Fair Employment and Housing v. Superior Court of Santa Clara County. There, Presiding Justice Mary J. Greenwood said:
“[An] important constitutional right is implicated when a party is allowed to proceed anonymously: the right of public access to court proceedings. Among the guarantees of the First Amendment to the United States Constitution is that court proceedings are open and public….Public access to court proceedings is essential to a functioning democracy. It promotes trust in the integrity of the court system, and it exposes abuses of judicial power to public scrutiny….The right of public access applies not only to criminal cases, but also to civil proceedings like this one….And the right to access court proceedings necessarily includes the right to know the identity of the parties.”
Greenwood declared that anonymity should be accorded parties only where there “is an overriding interest that outweighs the First Amendment right of public access to court proceedings” such as the likelihood of physical harm being inflicted on family members abroad.
Broad Protection Sought
In the Superior Court proceedings, Rapore sought an order restraining his wife—described by Rothschild as a “ ‘social media influencer’ with approximately 300,000 followers on the ‘Instagram’ social media platform”— from posting his “photo, name or any information” about him, on “any internet site, including YouTube and Instagram, and to remove all such content to which she has access or control.”
Phillips held that any such order would “unlawfully, constitute a violation of” Bostandjian’s “free-speech rights under the California Constitution.”
Rothschild said in a footnote:
“J.R. does not challenge the court’s denial of his request for orders restricting M.B.’s social media posts. We therefore need not—and do not—express any opinion concerning whether the posts in fact constitute protected speech.” The holding in the case is that substantial evidence supports the issuance of the DVRO.
Joining in the opinion were Justices Helen I. Bendix and Gregory Weingart.
Burbank attorney Susan Lynn Ferguson represented Bostandjian and Noelle M. Halaby and Maria D. Houser of the Law Office of Noelle M. Halaby in North Hollywood acted for Rapore.
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