Flout Court Orders, Get Your Appeal Dismissed — But Appellate Court Offers a Second Chance

There are two reasons I am surprised the Court of Appeal published the opinion in Findleton v. Coyote Valley Band of Pomo Indians (D1d2 Sep. 29, 2021) 2021 WL 4452323 nos. A156459 etc., ---- Cal.Rptr.3d ----. The first is that it holds, more forthrightly than I have seen before, that a final collateral order is treated as a judgment for purposes of Code of Civil Procedure section 904.1(a)(1). That is, not only is the collateral order appealable, but orders following it are appealable too under section 904.1(a)(2). (This is a sensible rule, it is just not very well-supported in the statute.)

The second reason I am surprised the court published this opinion on the disentitlement doctrine — i.e., dismissal of an appeal — is because the appellant's disregard and contempt for the lower court's orders was so brazen, and the grounds for disentitlement so clear, that I fear this opinion might mislead readers. In fact, much less egregious violations than the ones in this case — much, much less — may warrant disentitlement.

In Findleton, a contractor sued a Pomo Indian tribe over nonpayment for work building the tribe's new casino. The trial court compelled contractual mediation and arbitration, but the tribe refused. The court awarded sanctions against the tribe, but the tribe wouldn't pay. The court ordered the tribe to appear for judgment debtor examinations, but the tribe produced witnesses who either didn't know the information, or wouldn't give the information. The trial court called the examination "a sham." The tribe also brought crowds to the examinations to perform demonstrations and mock the plaintiff's attorney. The tribe also transferred its assets to a new corporation to evade collection, what the court called a fraudulent transfer.

Meanwhile, the trial court issued sanctions orders, and an order requiring the tribe to bond the sanctions order if the tribe wanted to stay them pending appeal.

The fees and sanctions orders were appealable as collateral orders — and so subsequent orders also were appealable as post-judgment orders.

The respondent argued several of the tribe's appeals should be dismissed because they were taken from nonappealable orders, i.e., an order denying a claim of exemption from judgment, an order denying a request to clarify orders, an order requiring a bond to stay enforcement and compelling asset recovery. The respondent correctly argued those orders were interlocutory, and thus were excluded from the meaning of appealable judgments under Code of Civil Procedure section 904.1(a)(1).

True, the court noted, but the respondent was overlooking something. First, the court noted, all these orders followed the orders awarding sanctions and attorney fees, which are appealable as final collateral orders. (Apex LLC v. Korusfood.com (2013) 222 Cal.App.4th 1010, 1016 [order granting attorney fees qualifies as appealable collateral order]; Serrano v. Stefan Merli Plastering Co. (2008) 162 Cal.App.4th 1014, 1026 [orders requiring party to pay costs appealable under collateral order doctrine]; cf. Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, 1686-1687 [order awarding fees was enforceable judgment for purposes of Enforcement of Judgments Act].) This includes fees and costs awarded as sanctions. (Bauguess v. Paine (1978) 22 Cal.3d 626, 634 fn. 3, superseded by statute on other grounds as stated in Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 809).

And given the orders on appeal followed final collateral orders, then these orders, in turn, were appealable as orders following an appealable order pursuant to Code of Civil Procedure section 904.1(a)(2). As the court put it: the orders "denying an exemption from execution, requiring an undertaking to stay the judgment, and denying clarification of the monetary judgments—are “order[s] made after” these collateral orders, which are the same as judgments for purposes of section 904.1. Thus, they are appealable under section 904.1, subdivision (a)(2)."

But the court's analysis is missing something. And what it is missing is analysis of the actual text of section 904.1. Section 904.1(a)(2) does not say that any order is appealable so long as it follows an appealable order. What section 904.1(a)(2) says is an order is appealable when it is "made after a judgment made appealable by paragraph (1)." And paragraph (a)(1) states that an appeal may be taken "From a judgment, except an interlocutory judgment...." *

So if the court has found the orders are made appealable by the collateral order doctrine, then that suggests they are not made appealable "by paragraph (1)." And so they would not fall under section 904.1(a)(2).

It probably makes sense to treat the collateral orders here as judgments under section 904.1(a)(1). But that does not appear to be what the (poorly-worded) statute says.

Appeals dismissed under the disentitlement doctrine:

The court offers a nice summary of the disentitlement doctrine:

“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.” (MacPherson v. MacPherson (1939) 13 Cal.2d 271, 277.) “It is contrary to the principles of justice to permit one who has flaunted the orders of the courts to seek judicial assistance.” (Estate of Scott (1957) 150 Cal.App.2d 590, 594.) This doctrine, known as “disentitlement,” recognizes an appellate court's “inherent power ... to dismiss an appeal by a party that refuses to comply with a lower court order.” (Stoltenberg v. Ampton Investments, Inc. (2013) 215 Cal.App.4th 1225, 1229 (Stoltenberg).) Dismissal is not a punishment for a party's contemptuous acts. (Id. at p. 1230.) Rather, it is an equitable tool, allowing an appellate court to “ ‘ “ ‘ “use its processes to induce compliance” ’ with a presumptively valid order.” ’ ” (Ibid.) “No formal judgment of contempt is required; an appellate court ‘may dismiss an appeal where there has been willful disobedience or obstructive tactics.” (Ibid.) “The doctrine ‘is based upon fundamental equity and is not to be frustrated by technicalities.’ ” (Ibid.)

What is strange here is that the court uses this opportunity to emphasize that courts "do not lightly apply the disentitlement doctrine." The court notes that a party's obstruction of, or failure to comply with, trial court orders must be willful, but then goes on to find this factor is easily met here.

The court then spends several pages explaining why disentitlement is warranted, and remarking on the tribe's "disregard for multiple valid superior court orders over a four-year period," and the tribe's "scurrilous" arguments on appeal, and the court's conclusion that the tribe "contumaciously refused to comply" the the order to mediate and arbitrate entered 10 years ago.

All this makes the reader wonder: does the court suggest that anything much less than this would not have warranted disentitlement?

Underscoring this concern, after all this analysis, and even though the court dismissed the appeals, the court still leniently ordered the dismissal was "without prejudice to a motion for reinstatement if the Tribe complies with the superior court orders within 90 days."

It is not clear why this second chance was merited here. Based on my review of other disentitlement doctrine cases, the facts here were more egregious than in other cases, and yet earned a lighter sanction. This is perhaps because one of the litigants is a Native-American tribe? But the sovereign-immunity claims had already been addressed, and rejected, in prior appeals.

I expect this opinion will be cited in oppositions to disentitlement motions in the future seeking similar leniency.

  • In fairness, the complete subdivision (a)(1) is impressively confounding: "(a) An appeal, other than in a limited civil case, may be taken from any of the following: (1) From a judgment, except an interlocutory judgment, other than as provided in paragraphs (8) [interlocutory orders re redemption of mortgages], (9) [interlocutory orders re partition], and (11) [interlocutory orders re sanctions greater than $5,000], or a judgment of contempt that is made final and conclusive by Section 1222." Ask: does the "other than" clause modify the principal subject "judgment," or the exception "interlocutory judgment"? The statute gets even more confusing when we reach the disjunctive "or." Are these judgments of contempt also included among the others that are appealable, or are they excepted from appealable judgments?

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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