Warner v. Warner

VALLÉE, J. Appeal by defendant from that part of an order which awards attorney’s fees to counsel for plaintiff.

The parties were divorced in 1950. In 1953 counsel for plaintiff appeared on her behalf in several proceedings arising out of the divorce action. On December 8,1953, plaintiff filed a notice of motion for an order requiring defendant to pay a reasonable fee to her counsel for representing her in those matters. The notice was supported by affidavits. Defendant filed an affidavit of his own in opposition to the motion. Plaintiff’s counsel filed an affidavit of her own in answer to the affidavit of defendant. When the matter came on for hearing before Judge Elmer D. Doyle, on motion of counsel for plaintiff, the court ordered that the affidavit of defendant and the answer thereto of counsel for plaintiff be “stricken from the file and are ordered removed from the file and sealed and retained by the County Clerk; and said documents to remain under seal except upon a further order of court.” The motion was then continued. It came on for hearing again before Judge Philbriek McCoy, was heard, and defendant was ordered to pay counsel for plaintiff $100 as attorney’s fees.

Defendant’s only point is that Judge Doyle erred in ordering that his affidavit in opposition to the motion be removed from the file and sealed. The affidavit is an attack on the character, reputation, integrity, and professional standing of counsel for plaintiff. It is offensive, scandalous, scurrilous, and defamatory; and it was wholly unnecessary to the [304]proof of defendant’s case.1 No purpose would be served in relating the content of the affidavit or in perpetuating it on the record. The court not only did not err in ordering the affidavit sealed, but exercised a wise discretion in doing so.

It is common practice to strike from the record and suppress matter of the character found in the affidavit of defendant. (Affidavits, Rogers v. Rogers, 3 Cal.Unrep. 559, 564 [31 P. 157], 2 Cal.Jur.2d 634, §24, anno: 111 A.L.R. 879, 883; pleadings, McNeil v. Higgins, 86 Cal.App.2d 723, 725 [195 P.2d 470], 41 Am.Jur. 531, §351; briefs, Sears v. Starbird, 75 Cal. 91 [16 P. 531, 7 Am.St.Rep. 123], Gage v. Gunther, 136 Cal. 338, 350 [68 P. 710, 89 Am.St.Rep. 141], Carpenter v. Pacific Mut. Life Ins. Co., 10 Cal.2d 307, 314 [74 P.2d 761], Green v. Elbert, 137 U.S. 615 [11 S.Ct. 188, 34 L.Ed. 792, 796], Supreme Council of Royal Arcanum v. Green, 237 U.S. 531, 546 [35 S.Ct. 724, 731, 59 L.Ed. 1089, 1102, L.R.A. 1916A 771], Washington Post Co. v. Chaloner, 250 U.S. 290 [39 S.Ct. 448, 63 L.Ed. 987, 989], 3 Am.Jur. 337, § 778, anno: 111 A.L.R. 879, 883; other records, 4 Cal.Jur.2d 238, § 425, 45 Am.Jur. 424, § 11, anno: 111 A.L.R. 879.) In Carpenter v. Pacific Mut. Life Ins. Co., supra, 10 Cal.2d 305, the court declared (p. 314) :