Stoltenberg v. Ampton Investments ( 2013 )

Filed 6/5/13 (Second of two modifications; first modification and unmodified opinion follow)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
HERBERT W. STOLTENBERG, as B235731
Trustee, etc. et al.,
(Los Angeles County
Plaintiffs and Respondents, Super. Ct. No. BC322141)
v. ORDER DENYING APPLICATION
AND MODIFYING OPINION AND
AMPTON INVESTMENTS, INC. et al., JUDGMENT
Defendants and Appellants.
THE COURT:
It is ordered that the opinion filed herein on April 4, 2013, be modified as follows:
Modify the Opinion on Denial of Application to Reinstate Appeal to read,
OPINION ON DENIALS OF APPLICATIONS TO REINSTATE APPEAL
AND PETITION FOR REHEARING
Following the April 4, 2013, issuance of our opinion in this appeal, defendants
filed a motion to reinstate their appeal on May 3, 2013—one court day before our
jurisdiction over the appeal would expire. Although defendants’ counsel stated in
the motion that they had complied with plaintiffs’ information subpoena, that
statement was not made under oath and no other evidence was provided, except an
uncertified copy of the New York trial court’s May 2, 2013, order to show cause that
vacated the prior contempt order issued, pending a further hearing on May 30, 2013.
On May 3, 2013, plaintiffs filed a “preliminary” opposition to defendants’
motion to reinstate their appeal. That unsworn opposition disputed defendants’
claimed compliance with plaintiffs’ information subpoena and attached a copy of
defendant Ampton Investment, Inc.’s purported handwritten responses to plaintiffs’
questions in connection with the information subpoena.
On May 6, 2013—the last day upon which this court had jurisdiction over this
appeal—defendants filed a supplement to their motion to reinstate their appeal. In
the supplement, defendants’ counsel represented that on May 6, 2013, the New York
trial court denied plaintiffs’ ex parte application to reinstate the contempt order.
The supplement was filed with a request for judicial notice of (1) plaintiffs’ May 6,
2013, application filed in the New York trial court for an order to show cause
seeking to reinstate the New York trial court’s prior contempt order; and (2) the
New York trial court’s May 6, 2013, order to show cause setting a hearing for May
30, 2013, on plaintiffs’ application to reinstate the contempt order, but denying
plaintiffs’ request for immediate reinstatement of the contempt order pending the
hearing on the order to show cause.
On May 15, 2013, defendants filed a renewed motion to reinstate and petition
for rehearing, in which they supplied a declaration of a New York attorney along
with requests for judicial notice and New York court orders. These filings basically
reiterate what defendants stated in their first application, but now in the form of a
sworn statement and with copies of court orders. Plaintiffs submitted evidence that
defendants still had not complied with the subpoenas and that defendants had
demanded a protective order that would effectively bar plaintiffs from using the
disclosed information to enforce the judgment. Plaintiffs noted that defendants
never moved for a protective order. Plaintiffs asserted that the New York judge’s
2
discomfort with California’s disentitlement doctrine may be the reason for his
vacating the contempt order.1
On May 31, 2013, defendants submitted a “supplement” to their motion in
which their attorney stated in a declaration that in a further court proceeding
before the New York court on May 29, 2013, defendants provided further
information subject to a protective order upon which the parties did not agree.
Defendants still had pending a motion to vacate the entry of the California
judgment in New York—a motion that has been pending for sometime. According
to defendants’ counsel, the New York court, being informed of the June 5, 2013,
deadline of this court to reinstate the defendants’ appeal, nevertheless failed to rule
and instead stayed proceedings pending further court order. According to
defendants, the court indicated that the parties could expect rulings in 10 days.
Thus, matters basically have not changed in any material respect since our last
ruling.
Defendants have not demonstrated that they have complied with court
orders. The contempt order seemingly was not vacated pending a further hearing
on the ground that defendants were in compliance with court orders. Moreover, no
formal contempt order is required for application of the disentitlement doctrine.
(See Stone v. Bach (1978) 80 Cal. App. 3d 442, 444-445.)
Defendants have had two months since our initial opinion to provide us with a
competent and unequivocal showing that they had complied fully with plaintiffs’
information subpoena and that the New York court had made an express finding of
full compliance. Defendants and plaintiffs have both provided their versions of the
oral proceedings before the court, but apparently those proceedings were “off the
record.” Had the New York trial court, knowing of our deadline, considered our
1
The fugitive disentitlement doctrine exists in New York. (See Wechsler v.
Wechsler (N.Y.App.Div. 2007) 847 N.Y.S.2d 26; In the Matter of Joshua M. v. Dimari
N. (N.Y.App.Div. 2004) 780 N.Y.S.2d 218; Peppin v. Lewis (N.Y. Fam. Ct. 2002) 752
N.Y.S.2d 807.
3
dismissal order inequitable, that court presumably would have acted upon the
pending motions before it with respect to compliance with its orders. Moreover, it
was defendants’ burden to provide us with an adequate record, and that would
include a transcript of a proceeding “on the record” or a reasonable substitute for
such a transcript. (See Cal. Rules of Court, rule 8.137.) Defendants have been
making last-minute efforts to avoid the disentitlement doctrine, but these efforts are
too little and too late.
Accordingly on the record before us, we deny defendants’ present
applications to reinstate the appeal and petition for rehearing.
This modification changes the judgment.
MOSK, Acting P. J. . KRIEGLER, J.
4
Filed 5/6/13 (first modification; unmodified opinion follows)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
HERBERT W. STOLTENBERG, as B235731
Trustee, etc. et al.,
(Los Angeles County
Plaintiffs and Respondents, Super. Ct. No. BC322141)
v. ORDER DENYING APPLICATION
AND MODIFYING OPINION AND
AMPTON INVESTMENTS, INC. et al., JUDGMENT
Defendants and Appellants.
THE COURT:
It is ordered that the opinion filed herein on April 4, 2013, be modified as follows:
Add after the signatures on page 12 the following:
OPINION ON DENIAL OF APPLICATION TO REINSTATE APPEAL
Following the April 4, 2013, issuance of our opinion in this appeal, defendants
filed a motion to reinstate their appeal on May 3, 2013—one court day before our
jurisdiction over the appeal would expire. Although defendants’ counsel stated in
the motion that they had complied with plaintiffs’ information subpoena, that
statement was not made under oath and no other evidence was provided, except an
uncertified copy of the New York trial court’s May 2, 2013, order to show cause that
vacated the prior contempt order issued, pending a further hearing on May 30, 2013.
On May 3, 2013, plaintiffs filed a “preliminary” opposition to defendants’
motion to reinstate their appeal. That unsworn opposition disputed defendants’
claimed compliance with plaintiffs’ information subpoena and attached a copy of
defendant Ampton Investment, Inc.’s purported handwritten responses to plaintiffs’
questions in connection with the information subpoena.
On May 6, 2013—the last day upon which this court had jurisdiction over this
appeal—defendants filed a supplement to their motion to reinstate their appeal. In
the supplement, defendants’ counsel represented that on May 6, 2013, the New York
trial court denied plaintiffs’ ex parte application to reinstate the contempt order.
The supplement was filed with a request for judicial notice of (1) plaintiffs’ May 6,
2013, application filed in the New York trial court for an order to show cause
seeking to reinstate the New York trial court’s prior contempt order; and (2) the
New York trial court’s May 6, 2013, order to show cause setting a hearing for May
30, 2013, on plaintiffs’ application to reinstate the contempt order, but denying
plaintiffs’ request for immediate reinstatement of the contempt order pending the
hearing on the order to show cause.
Defendants have not provided us, in a timely fashion, with a competent and
unequivocal showing that they had complied fully with plaintiffs’ information
subpoena, that the New York trial court had made an express finding of full
compliance and vacated the contempt order, and that no further proceedings were
pending or contemplated concerning the contempt order. Defendants have
submitted information not under oath that suggests they made last-minute efforts to
comply with the information subpoena, but that further proceedings concerning
that compliance were pending in the New York trial court.
Accordingly, we deny at this time defendants’ application to reinstate the
appeal.
This modification changes the judgment.
MOSK, Acting P. J. KRIEGLER, J.
2
Filed 4/4/13 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
HERBERT W. STOLTENBERG, as B235731
Trustee, etc. et al.,
(Los Angeles County
Plaintiffs and Respondents, Super. Ct. No. BC322141)
v.
AMPTON INVESTMENTS, INC. et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of the County of Los Angeles,
Terry A. Green, Judge. Dismissed.
Akerman Senterfitt, James G. McCarney; Sheppard, Mullin, Richter & Hampton
and Robert T. Sturgeon for Defendants and Appellants.
Love & Erskine, Richard A. Love, Kathleen M. Erskine; Greines, Martin, Stein &
Richland and Marc J. Poster for Plaintiffs and Respondents.
1
INTRODUCTION
Defendants, an individual and a corporation, appealed from a California judgment
in favor of plaintiffs, but did not post a bond to stay enforcement of the judgment.
Plaintiffs, after registering the judgment in New York where defendants are located,
attempted to enforce the registered sister-state judgment there by serving a subpoena
seeking financial information from the corporate defendant. Defendants did not comply
with the subpoena or with a New York trial court order compelling them to respond to it.
As a result, the New York trial court held defendants in contempt. In dismissing
defendants‟ appeal under the disentitlement doctrine, we hold that the doctrine applies to
noncompliance with and contempt of New York trial court orders, which noncompliance
and contempt directly affect and frustrate the enforcement of a California judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Following a jury trial, the trial court entered a judgment on the verdict in favor of
plaintiffs and respondents,1 awarding them a total of $8,516,704 in compensatory
damages, plus costs.2 Defendants Ampton Investments, Inc. and Laurence Strenger3
(defendants) filed a timely notice of appeal from the judgment but did not, pursuant to
1
Plaintiffs and respondents are Herbert W. Stoltenberg, trustee of the 1680 Property
Trust; Michael L. Epsteen, trustee of the Michael L. Epsteen Trust; Stephen Ellis Gordon,
trustee of the Stephen Ellis Gordon and Linda S. Gordon Revocable Trust; and Ruth Ann
Runnels LaMonica, trustee of the LaMonica Family Trust. We refer to them collectively
as plaintiffs.
2
The jury found that defendants acted with “malice or oppression,” but did not
award plaintiffs any amount for punitive damages.
3
The affidavit executed by plaintiffs‟ New York attorney in support of the second
order to show cause states in paragraph 5 that “[d]efendant Laurence N. Strenger is the
Chief Executive Officer, Managing Director, General Counsel, and a principle
shareholder of Ampton [Investments, Inc.].”
2
Code of Civil Procedure 917.1, post a bond to stay enforcement of the judgment. Instead,
defendants filed a petition for a writ of supersedeas to stay enforcement of the judgment
pending appeal, which petition this court denied.
Because enforcement of the judgment was not stayed, plaintiffs registered their
California judgment in the State of New York (N.Y. C.P.L.R 5401, et seq.), where
defendants are domiciled, and initiated enforcement proceedings in the courts of that
state. Among other steps, plaintiffs served a subpoena on defendant Ampton
Investments, Inc.4 for financial information, but defendants did not comply with it.
Plaintiffs then obtained from the New York trial court an order to show cause why
defendants should not be held in contempt. Defendants objected and moved to stay all
judgment enforcement proceedings. The New York trial court found there was no basis
for a stay and ordered both defendants to respond to the financial information subpoena
within ten days. The court‟s order stated, “Failure to comply with this Order may result
in [defendants] being held in contempt.” Nevertheless, defendants did not comply with
that order.
Plaintiffs next obtained a second order to show cause why defendants should not
be held in contempt. Defendants filed a cross-motion to dismiss the contempt proceeding
contending that they were not served properly with the order to show cause and other
underlying orders. Plaintiffs replied with their proof of proper service of the order to
show cause on defendants. The New York trial court entered an order finding defendants
in contempt, fining them $500, and ordering them to comply with the outstanding
subpoena within 30 days or face further sanctions, including costs. Plaintiffs gave notice
4
The declaration of plaintiffs‟ attorney in support of the motion to dismiss states in
paragraph 9 that “[p]laintiffs issued subpoenas for financial information,” presumably
one to the corporate defendant Ampton Investments, Inc. and one to the individual
defendant Laurence Strenger. In that same paragraph, plaintiffs‟ attorney further states
that “[p]laintiffs did not comply with the subpoenas.” The only New York subpoena in
the record, however, appears to be directed to Ampton Investments, Inc. alone. This
point is not discussed by the parties and, in any event, both the initial order requiring
defendants to respond to the subpoena and the subsequent order finding defendants in
contempt were issued against Ampton Investments, Inc. and Laurence Strenger.
3
of entry of the contempt order, but defendants still did not comply with the subpoena, the
order compelling compliance with it, or the contempt order.
In response to defendants‟ noncompliance with and contempt of the orders of the
New York trial court, plaintiffs filed in this court a motion to dismiss defendants‟ appeal
based upon the disentitlement doctrine. Defendants filed a notice of appeal in New York,
purporting to appeal from “the Judgment from the Superior Court for the State of
California, County of Los Angeles as entered in the Supreme Court of the State of New
York,” the initial order compelling compliance with the subpoena, and the subsequent
contempt order. Defendants also filed their opposition to the motion to dismiss the
appeal in this court contending that the disentitlement doctrine cannot be based on
noncompliance with trial court orders from another jurisdiction and that, in any event, the
New York trial court orders were not final and were pending appeal in that jurisdiction.
Plaintiffs subsequently filed a supplemental motion to dismiss this appeal, arguing
that defendants‟ continued noncompliance with the New York trial court orders,
including defendants‟ failure to comply with the subpoena within 30 days of the
contempt order, had, in effect, placed defendants in “double contempt.” Defendants then
paid the $500 sanction required by the contempt order but, to date, have not complied
with that portion of the contempt order requiring them to respond to plaintiffs‟ financial
information subpoena. Defendants responded to plaintiffs‟ second supplemental motion
to dismiss the appeal, maintaining, inter alia, that defendants had paid the $500 fine
required by the contempt order. We requested letter briefing on certain issues related to
the motion to dismiss the appeal, to which letter the parties responded.
Plaintiffs most recently filed a motion in the New York trial court for further
sanctions pursuant to the contempt finding against defendants. Plaintiffs also filed in this
court a second supplemental motion for judicial notice5 advising that defendants had not
yet complied with the New York trial court order compelling compliance with the
5
We grant each of the parties‟ respective motions for judicial notice.
4
information subpoena or the contempt order. Based on the foregoing, we scheduled the
motion to dismiss the appeal for oral argument.
DISCUSSION
A. Disentitlement Doctrine
An appellate court has the inherent power, under the “disentitlement doctrine,” to
dismiss an appeal by a party that refuses to comply with a lower court order. (See, e.g.,
Moffat v. Moffat (1980) 27 Cal. 3d 645, 652; MacPherson v. MacPherson (1939) 13
Cal. 2d 271, 277; Knoob v. Knoob (1923) 192 Cal. 95, 96-97; TMS, Inc. v. Aihara (1999)
71 Cal. App. 4th 377, 378-379; see also 1 Eisenberg et al., Cal. Practice Guide: Civil
Appeals and Writs (The Rutter Group 2012) § 5:37.2, pp. 5-20 to 5-21.) As the Supreme
Court observed in MacPherson v. MacPherson, supra, 13 Cal.2d at page 277, “A party to
an action cannot, with right or reason, ask the aid and assistance of a court in hearing his
demands while he stands in an attitude of contempt to legal orders and processes of the
courts of this state. [Citations.]”
We recently explained the equitable rationale underlying the doctrine. “„Dismissal
is not “„a penalty imposed as a punishment for criminal contempt. It is an exercise of a
state court‟s inherent power to use its processes to induce compliance‟” with a
presumptively valid order. [Citation.]‟ [Citation.] . . . [¶] Appellate disentitlement „is
not a jurisdictional doctrine, but a discretionary tool that may be applied when the
balance of the equitable concerns make it a proper sanction . . . .‟ (People v. Puluc-Sique
(2010) 182 Cal. App. 4th 894, 897 [106 Cal.Rptr.3d 365].” (In re E.M. (2012) 204
Cal. App. 4th 467, 474.) No formal judgment of contempt is required; an appellate court
“may dismiss an appeal where there has been willful disobedience or obstructive tactics.
(Alioto Fish Co. v. Alioto (1994) 27 Cal. App. 4th 1669, 1683.)” (In re Claudia S. (2005)
131 Cal. App. 4th 236, 244, italics added.) The doctrine “is based upon fundamental
equity and is not to be frustrated by technicalities.” (Stone v. Bach (1978) 80 Cal. App. 3d
442, 444.)
5
The disentitlement doctrine has been applied in a diverse number of cases,6
including cases such as this one in which an appellant is a judgment debtor who acts to
frustrate or obstruct legitimate efforts in a trial court to enforce a judgment. For example,
in TMS, Inc. v. Aihara, supra, 71 Cal. App. 4th 377, the appellants and judgment
debtors—an individual sole shareholder and two corporations he controlled—were
sanctioned and ordered by the trial court to answer postjudgment interrogatories
“designed to secure information to aid in the enforcement of a money judgment against
them.” (Id. at p. 378.) In response, the individual appellant moved to Japan and refused
to assist his attorneys in answering the postjudgment interrogatories. (Id. at pp. 378-379.)
The court concluded that it was “undisputed [that the appellants had] willfully refused to
comply with [the trial court‟s order to answer interrogatories]” and that “[g]iven [the
appellants‟] willful disobedience of the trial court‟s order . . . , we dismiss their appeal
from the judgment.” (Id. at p. 379.)
Similarly, in Stone v. Bach, supra, 80 Cal. App. 3d 442, the trial court entered a
judgment dissolving a partnership and dividing assets. (Id. at p. 443.) The judgment
recited that the appellant had previously been ordered to deposit partnership monies
collected by him into a trustee account, which he had not done. (Ibid.) Prior to the
judgment, the appellant had been found in contempt for failing to deposit partnership
6
“The power to dismiss an appeal for refusal to comply with a trial court order has
been exercised in a variety of circumstances, including: where a parent had taken and
kept children out of the state in violation of a divorce decree (MacPherson v.
MacPherson, supra, 13 Cal.2d at pp. 272-273; Knoob v. Knoob, supra, 192 Cal. at p. 96);
where a husband had failed to pay alimony as ordered in an interlocutory judgment of
divorce (Kottemann v. Kottemann [(1957)] 150 Cal.App.2d [483,] 484); where a party in
a civil action was a fugitive from justice and in contempt of the superior court for failure
to appear on criminal charges after being released on bail (Estate of Scott [(1957)] 150
Cal.App.2d [590,] 591-592); and where defendants willfully failed to comply with trial
court orders regarding a receivership. (Alioto Fish Co. v. Alioto, supra, 27 Cal.App.4th at
pp. 1682-1685.) Moreover, the inherent power to dismiss an appeal has been exercised in
several cases where a party failed or refused to appear for a judgment debtor
examination. (Say & Say v. Castellano [(1994)] 22 Cal.App.4th [88,] 94; Stone v. Bach,
supra, 80 Cal.App.3d at pp. 443-444; Tobin v. Casaus [(1954)] 128 Cal.App.2d [588,]
589, 593.)” (TMS, Inc. v. Aihara, supra, 77 Cal.App.4th at pp. 379-380.)
6
monies into the trustee account, and, after the judgment, he was again found in contempt,
this time for failing to appear for a judgment debtor examination. (Id. at pp. 443-444.)
Based on these facts, the court concluded, “Our duty in these circumstances is clear.
[The appellant‟s] conduct is intolerable. It demonstrates a deliberate effort to achieve a
stay of execution of the money judgment against him without complying with legal
procedures. At oral argument, his reason for refusal to comply with the trial court‟s
orders to deposit partnership funds into trust and to be sworn for examination was that the
orders and the judgment of the court are invalid, as he will assertedly demonstrate during
the appeal. This is the worst kind of bootstrapping. A trial court‟s judgment and orders,
all of them, are presumptively valid and must be obeyed and enforced. [Citation.] They
are not to be frustrated by litigants except by legally provided methods.” (Id. at p. 448,
italics added.)
In Tobin v. Casaus, supra, 128 Cal. App. 2d 588, the appellant appealed from a
personal injury judgment against him, but no stay of execution was sought or granted.
(Id. at p. 589.) In the trial court, a receiver was appointed to take over certain of the
appellant‟s assets and a judgment debtor examination of the appellant was scheduled.
(Ibid.) When the appellant failed to appear for the examination, a bench warrant issued
for his arrest. (Ibid.) The respondent moved to dismiss the appeal because, as of the time
of the motion, the appellant still had not surrendered on the warrant or otherwise satisfied
the demand of the trial court for his appearance. (Ibid.) Based on these facts, the court
dismissed the appeal, (id. at p. 593) saying, “Thus [the] appellant, with full information
obtained through this proceeding if in no other way, knew for at least three weeks that he
was being sought by the court and that a bench warrant for his arrest had been issued. . . .
It seems incredible that with the imminent prospect of losing his right of appeal in this
case, [the] appellant would persist in ignoring the court process.” (Id. at p. 592.) The
court added, “The right to an appeal must not be lightly forfeited, and where a doubt
exists as to a litigant‟s conduct being contumacious or wilful, an appellate court will
tolerate temporarily the acts which were disruptive of the judicial process. We always
prefer to resolve a cause on its merits; once the rights of the parties have been determined
7
with finality, then the thwarted authority and offended dignity of the court may be
assuaged with condign sanctions to the extent of the affront. [¶] But in the instant case
we are dealing with a litigant who not only has previously failed to appear as ordered, but
who up to this very time remains a fugitive from justice. Apparently he is unwilling to
respond to a court order with which he disagrees, but seeks to obtain on appeal a
conclusion with which he may be satisfied. As stated in Soderberg v. Soderberg (1923)
63 Cal. App. 492, 494, „Defendant is in no position to stipulate with the court under what
terms and conditions he will comply with the judgment.‟ There may be no infringement
„upon the court‟s inherent power to ignore the demands of litigants who persist in defying
the legal orders and processes of this state.‟ (MacPherson v. MacPherson, supra, at p.
279)” (Id. at p. 592-593; see Say & Say v. Castellano, supra, 22 Cal.App.4th at p. 94.)7
B. Application of Disentitlement Doctrine
In this case, defendants, as the appellants in TMS, Inc. v. Aihara, supra, 71
Cal. App. 4th 377, have been ordered by a trial court to respond to a postjudgment
discovery designed to obtain information to aid in the enforcement of the judgment being
appealed. In addition, they have been found to be in contempt of that order. Their
conduct “demonstrates a deliberate effort to achieve a stay of execution of the money
judgment against [them] without complying with legal procedures.” (Stone v. Bach,
supra, 80 Cal.App.3d at p. 448.) Such willful disobedience and obstruction of
presumptively valid orders can, and in this case does, provide a basis upon which to
dismiss the appeal under the disentitlement doctrine.
Defendants, as the appellant in Stone v. Bach, supra, 80 Cal. App. 3d 442, attempt
to justify their willful disobedience of a trial court‟s orders—in this case issued by a New
York trial court—by contending that those orders are invalid and therefore subject to
7
See also Empire Blue Cross and Blue Shield v. Finklestein (2d Cir. 1997) 111 F.3d
278, 282 [judgment debtor was disentitled to appeal judgment because he failed to
comply with orders to appear in connection with posttrial enforcement proceedings];
Motorola Credit Corp. v. Uzan (2d Cir. 2009) 561 F.3d 123, 130, fn. 7 [evasion of
enforcement procedure may invoke disentitlement doctrine].
8
reversal on appeal. “This is the worst kind of bootstrapping.” (Id. at p. 448.) Those
orders are presumptively valid and must be obeyed and enforced. Under New York law,
orders must be obeyed unless and until reversed on appeal. (See McCain v. Giuliani
(1997 N.Y.App.Div.) 653 N.Y.S.2d 556, 557; Seril v. Belnord Tenants Association (1988
N.Y.App.Div.) 526 N.Y.S.2d 462, 463-464.) Defendants have instead obstructed the
enforcement of those orders, thereby frustrating the enforcement of the California
judgment from which they appeal. This conduct is of the type to which the disentitlement
doctrine has been applied.
Defendants contend that the disentitlement doctrine cannot be applied to a
California appellant that is in violation of a trial court order from another jurisdiction.
They point to the quote in MacPherson v. MacPherson, supra, 13 Cal.2d at page 277
explaining that the disentitlement doctrine bars a party from seeking “the aid and
assistance of a court in hearing his demands while he stands in an attitude of contempt to
legal orders and processes of the courts of this state.” (Italics added.) Defendants
further assert that the “fugitive disentitlement doctrine,” by which federal courts have
dismissed appeals of a judgment against an appellant outside the jurisdiction because he
or she is a fugitive from a related criminal prosecution, is not relevant as it arises under a
specific statute—28 U.S.C. section 2466.8 According to defendants, because California‟s
legislature has not specifically provided that the disentitlement doctrine applies to orders
8
That statute was enacted in response to Degen v. United States (1996) 517 U.S.
820, in which the United States Supreme Court held that the fugitive disentitlement
doctrine should not apply in a civil forfeiture action when the claimant is a fugitive from
a related criminal prosecution. (Collazos v. United States (2d Cir. 2004) 368 F.3d 190,
198; see Empire Blue Cross and Blue Shield v. Finklestein, supra, 111 F.3d at p. 282
[distinguishing Degen saying, “We hold that we have discretion to dismiss the appeal of a
civil litigant who becomes a fugitive to escape the effect of the civil judgment”].) The
United States Supreme Court has said, “the justifications we have advanced for allowing
appellate courts to dismiss pending fugitive appeals all assume some connection between
a defendant‟s fugitive status and the appellate process, sufficient to make an appellate
sanction a reasonable response.” (Ortega-Rodriguez v. United States (1993) 507 U.S.
234, 244; see United States v. Morgan (2d Cir. 2001) 254 F.3d 424, 427.)
9
of sister-state courts, we should not extend the doctrine to such orders in this case. There
are, however, federal authorities that predate the enactment of 28 U.S.C. section 2466 and
do not limit the disentitlement doctrine to trial court orders from the same jurisdiction as
the appellate court. (See, e.g., In re Prevot (6th Cir. 1995) 59 F.3d 556, 566; Conforte v.
C.I.R. (9th Cir. 1982) 692 F.2d 587, 589; Broadway v. City of Montgomery, Alabama (5th
Cir. 1976) 530 F.2d 657, 659.)9
Neither the court in MacPherson v. MacPherson, supra, 13 Cal.2d at page 277,
nor the other California cases that repeat the phrase “courts of this state,” dealt with the
issue of whether the disentitlement doctrine could be based on contempt or frustration of
court orders issued by trial courts that were not “courts of this state.” There is no
indication in any of those cases that the language upon which defendants rely was
intended to exclude the application of the disentitlement doctrine to sister-state orders or
judgments.
There is no basis in logic or law to support the conclusion that we should treat a
New York trial court‟s orders differently than ones entered in this state. Article IV,
section 1 of the United States Constitution provides in pertinent part, that “Full Faith and
Credit shall be given in each state to the Public Acts, Records, and judicial proceedings
of every other state.” Title 28 of the United States Code section 1738 implements the full
faith and credit clause by providing, in substance, that judicial proceedings of any state
are entitled to the same treatment in every court within the United States as they have by
law or usage in the courts in which they occurred.
Had plaintiffs attempted to enforce the judgment in California by propounding
postjudgment special interrogatories seeking defendants‟ financial information,10
including information about assets defendants may have in New York, the disentitlement
doctrine would have applied to any noncompliance with the California trial court‟s orders
9
The United States Supreme Court applied the fugitive disentitlement doctrine as
early as 1876. (Smith v. United States (1876) 94 U.S. 97.)
10
Code of Civil Procedure section 708.020.
10
compelling responses to those interrogatories. (TMS, Inc. v. Aihara, supra, 71
Cal.App.4th at pp. 378-380.) For purposes of the disentitlement doctrine, there is no
meaningful distinction between New York trial court orders and California trial court
orders related to enforcement of a California judgment. The orders of the New York
court in issue were based solely on a California money judgment and were intended to
aid in the enforcement of that judgment. Thus, by violating those orders, defendants are
obstructing and frustrating the enforcement of a judgment of this state, while at the same
time seeking relief concerned that judgment in this court. Under the well-established
disentitlement doctrine, defendants are not entitled to the relief they seek on appeal.
Because defendants have repeatedly, and in contempt of sister-state orders,
frustrated the enforcement of the California judgment being appealed, we apply the
disentitlement doctrine to dismiss the appeal. In doing so, we reject defendants‟ request
that in the event we apply the disentitlement doctrine, we stay, rather than dismiss
immediately, the appeal to allow defendants to reconsider their determination not to
comply with the New York subpoena and the New York trial court orders. (See, e.g.,
Alioto Fish Co. v. Alioto, supra, 27 Cal.App.4th at p. 1691; Tobin v. Casaus, supra, 128
Cal.App.2d at p. 593.) This dismissal does not become final for 30 days, during which
time defendants can seek reinstatement of the appeal. (Cal. Rules of Court, rules
8.264(b)(1); 8.264(c); 8.268(a)(1); see Stone v. Bach, supra, 80 Cal.App.3d at pp. 448-
449.) But we do not suggest or imply how we might act upon such a request or petition.
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DISPOSITION
The appeal is dismissed. Plaintiffs shall recover their costs on appeal.
CERTIFIED FOR PUBLICATION
MOSK, Acting P. J.
We concur:
KRIEGLER, J.
O‟NEILL, J.
Judge of the Superior Court of Ventura County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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