The disentitlement doctrine

A potent secret weapon to destroy your opponent’s contemptuous appeal

Scott Tillett
2017 December

All court orders are valid and must be complied with. Parties may challenge disputed court orders through motions for reconsideration, writs, and petitions for review by the Supreme Court. But, when all such challenges prove unsuccessful, a party may not resort to self-help and simply disobey court orders it does not agree with.

So, what do you do when a defendant refuses to comply with a trial court’s order and then files an appeal, stripping the trial court of jurisdiction to enforce its order? The “disentitlement doctrine” is a powerful tool that can be employed to inflict appropriate consequences on defendants who act with such contempt for judicial decrees.

The disentitlement doctrine grants appellate courts discretionary power to stay or dismiss the appeal of a litigant who has refused to comply with a trial court’s orders. (TMS, Inc. v. Aihara (1999) 71 Cal.App.4th 377, 379.) “The rationale underlying the doctrine is that a party to an action cannot seek the aid and assistance of an appellate court while standing in an attitude of contempt to the legal orders and processes of the courts of this state.” (Gwartz v. Weilert (2014) 231 Cal.App.4th 750, 757.) Note that although the doctrine governs appellants who are in contempt of court, no formal adjudication of contempt is required, “the same principle applies to willful disobedience or obstructive tactics without such an adjudication.” (Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669 1682-1685, citations omitted.)

Application of this doctrine is not intended as a punishment. Instead it is an “exercise of a state court’s inherent power to use its processes to induce compliance with a presumptively valid order.” (Say & Say v. Castellano (1994) 22 Cal.App.4th 88, 94, citations omitted.) When a party opportunistically seeks aid from a reviewing court while harboring no intention of complying with an unfavorable trial court ruling, the integrity of the judicial system is compromised. Under such circumstances, an appellate court has the discretion to dismiss the offender’s appeal. (See In re L.J. (2013) 216 Cal.App.4th 1125, 1136 [appeal may be dismissed when a party “has signaled by his conduct that he will only accept a decision in his favor”].)

History of the disentitlement doctrine

The doctrine has its roots in criminal law. (People v. Redinger (1880) 55 Cal. 290, 298 [dismissing the appeal of a criminal defendant who had escaped from jail].) In the criminal context, it is often referred to as the “fugitive disentitlement doctrine,” because it has historically been applied “to dismiss the appeal of an appellant who is a fugitive from justice.” (People v. Clark (1927) 201 Cal. 474, 477.) But, California courts have imposed the doctrine on nonfugitive appellants in criminal cases where their conduct signals that they will only accept a decision in their favor. (See, e.g., People v. Brych (1988) 203 Cal.App.3d 1068, 1077 [dismissing the appeal where the appellant had served his sentence and lawfully moved out of the United States, but refused to communicate with counsel and concealed his location, raising doubts as to whether he would return to the United States, even if ordered to for retrial, which the court found “inherently offensive to the judicial process.”].)

California appellate courts have routinely applied the doctrine in family law appeals. For example, in dependency cases, courts have dismissed appeals where the appellant parent or guardian abducts the child, “frustrat[ing] the purpose of dependency law and mak[ing] it impossible to protect the child or act in the child’s best interests.” (See, e.g., In re Kamelia S. (2000) 82 Cal.App.4th 1224, 1229 [father absconded with minor]; Guardianship of Melissa W. (2002) 96 Cal.App.4th 1293, 1299 [grandparents – denied placement and guardianship – absconded with minor].) Disentitlement has also been applied to dismiss appeals in non-dependency family law cases. (See, e.g., Soderberg v. Soderberg (1923) 63 Cal.App. 492, 494-495 [dismissing husband’s appeal seeking modification of custody clause in divorce decree because the husband failed to comply with the requirement that he pay child support].)

However, nothing in logic or precedent limits application of the disentitlement doctrine to criminal and family law cases. The notion that an appellate court may stay or dismiss an appeal by a party who is in contempt of an underlying trial court’s order is equally applicable to parties in all civil actions.

Early application of disentitlement in civil appeals

Early examples of the application of the doctrine to dismiss civil appeals largely revolved around enforcement of judgments and did not refer to the disentitlement doctrine by name. For example, in Stone v. Bach (1978) 80 Cal.App.3d 442, the court dismissed a former partner’s appeal of a judgment in a partnership dissolution action because of the former partner’s willful violation of various trial court orders. (Id. at 443, 449.) The trial court had found the partner to be in contempt for willfully and repeatedly violating an order “in 13 specific instances… requiring him to deposit into specified accounts all partnership receipts in his possession,” and then again, after the judgment, “for refusing to be sworn for examination as a judgment debtor. [Citation.]” (Id. at p. 443-444.) The court referred to the appellant’s conduct as “intolerable” and “demonstrat[ing] a deliberate effort to achieve a stay of execution of the money judgment against him without complying with legal procedures.” (Id. at 448.)

The appellant’s proffered reasons for noncompliance, “…that the orders and the judgment of the court are invalid, [which] he [ ] assertedly [hoped to] demonstrate during the appeal,” enraged the court. It referred to the appellant’s conduct as “…the worst kind of bootstrapping,” stating: “A trial court’s judgment and orders, all of them, are presumptively valid and must be obeyed and enforced. [ ] They are not to be frustrated by litigants except by legally provided methods.” (Id. at 444-445, citing 6 Witkin, Cal. Procedure, supra, Appeal, § 235, p. 4225, emphasis added.)

Stone cited Tobin v. Casaus (1954) 128 Cal.App.2d 588, an even earlier case dismissing a civil appeal for noncompliance with court orders, which, like Stone: (1) also related to enforcement of a judgment; and (2) did not use the words “disentitlement doctrine.” In Tobin, the defendant appealed from a money judgment without staying execution, and twice failed to appear for a debtor’s examination, resulting in a bench warrant for his arrest. (Id. at 589.) The appellate court characterized the defendant’s position as “…unwilling to respond to a court order with which he disagrees, but seek[ing] to obtain on appeal a conclusion with which he may be satisfied.” (Id. at 593.) In dismissing the appeal, Tobin cited a 1939 California Supreme Court divorce case, stating: “There may be no infringement ‘upon the courts’ inherent power to ignore the demands of litigants who persist in defying the legal orders and processes of this state.” (Id. at 593, quoting MacPherson v. MacPherson (1939) 13 Cal.2d 271, 279.)

Application to civil matters

In 1990, in the context of a criminal appeal, the Second District acknowledged the applicability of the disentitlement doctrine to civil matters, noting that “[it] should apply with greater force in civil cases where an individual’s liberty is not at stake.’” (Doe v. Superior Court (1990) 222 Cal.App.3d 1406, 1409, quoting United States v. $129,374 in U.S. Currency (9th Cir. 1985) 769 F.2d 583, 588, original emphasis, other citations omitted.)

Despite the undeniable logic of this pronouncement, until recently, very few civil appellate decisions (published or not) have even discussed, much less employed, the disentitlement doctrine. In fact, a Westlaw search of the word “disentitlement” reveals that between 1990 and 2012, there were only 10 civil appellate opinions that discussed the disentitlement doctrine; all 10 were unpublished cases; and none resulted in dismissal of the appeal.

However, noticeably missing from this list of cases mentioning the word “disentitlement” between 1990 and 2012 are at least three published opinions in civil cases that applied the logic of the disentitlement doctrine (dismissal of appeal for willful failure to comply with court orders) without referring to the doctrine by name. These cases are Say & Say v. Castellano (1994) 22 Cal.App.4th 88, Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, and TMS, Inc. v. Aihara (1999) 71 Cal.App.4th 377.

In Say & Say, supra, the plaintiffs filed three separate appeals from various orders, including an appeal from an order dismissing the action for failure to file a vexatious litigant bond. (22 Cal.App.4th at 93.) The plaintiffs had repeatedly filed vague notices of appeal from nonappealable orders, purporting to appeal from any and all rulings, judgments, and orders made on or before the appeal; they then contended that the trial court lacked jurisdiction to act on its orders, pending the outcome on appeal. (Id. at 92.) The appellate court referred to the plaintiffs’ many appeals as a “frivolous… effort to thwart the superior court’s proper exercise of its jurisdiction, i.e., for purposes of harassment and delay,” and noted that both plaintiffs and their counsel had previously been warned and sanctioned by the court to dissuade their “frivolous tactics.” (Id. at 93.) Only one of the three notices of appeal filed by the plaintiffs encompassed an appealable order, dismissing the action for failure to post a vexatious litigant bond. (Id. at 93-94.) In dismissing that one actually appealable order, the court noted that the plaintiffs had recently been found in contempt of court on three separate occasions, and remained “flagrantly and persistently [in defiance of] court
order[s and thus] is not entitled ... to ask the aid and assistance of a court.” (Id. at 94, quoting Moffat v. Moffat (1980) 27 Cal.3d 645, 652.)

In Alioto, supra, the appellate court applied the disentitlement doctrine (again, not by name) to stay the defendants’ appeal of various sanctions orders stemming from their failure to pay attorney’s fees and violation of a receiver order. (27 Cal.App.4th at 1675-1678.) The defendants characterized the sanctions orders as judgments of civil contempt and then attacked the validity of the orders alleging they failed to follow procedural requirements for civil contempt orders. (Id. at 1681.) But, the appellate court explained that: “[t]he principle permitting [it] to stay or dismiss an appeal does not require a formal judgment of civil contempt. It ‘is based upon fundamental equity and is not to be frustrated by technicalities,’ such as the absence of a formal citation and judgment of contempt.” (Id. at 1683, quoting Stone, supra, 80 Cal.App.3d at 444, emphasis added.) Although the court merely stayed the appeal, it warned that this was temporary and that the appeal would be dismissed without further argument if the defendants did not comply with the receiver order within 30 days. (Id. at 1691.)

Similarly, in TMS, supra, the appellate court dismissed the defendants’ appeal from a money judgment when defendants’ sole shareholder moved out of the country and refused to comply with court orders requiring him to respond to postjudgment interrogatories designed to secure information to aid in enforcement of the judgment. (71 Cal.App.4th at 378-379, 380.) In exercising its inherent power to dismiss the defendants’ appeal, the TMS court cited a U.S. Supreme Court case that had affirmed a lower court dismissal of a labor union’s appeal from a civil judgment for failure to deliver government bonds in its possession to a receiver as it had been ordered by the court. (Id. at 380, citing National Union v. Arnold (1954) 348 U.S. 37, 44-45.)

Dismissal of civil appeals for disentitlement is on the rise

Since 2013, there has been a marked upswing in the use and application of the disentitlement doctrine in California civil appeals. Compared to the mere ten unpublished opinions between 1990 to 2012 containing the word “disentitlement” (as used herein), there were approximately twenty-eight results (published or unpublished) between 2013 and October 26, 2017. Ten of these twenty-eight cases, resulted in dismissal of the appeal under the disentitlement doctrine, four of which were published opinions: Stoltenberg v. Ampton Investments, Inc. (2013) 215 Cal.App.4th 1225; Gwartz v. Weilert (2014) 231 Cal.App.4th 750; Blumberg v. Minthorne (2015) 233 Cal.App.4th 1384; and Ironridge Global IV, Ltd. v. ScripsAmerica, Inc. (2015) 238 Cal.App.4th 259.

In Stoltenberg, supra, the appellate court dismissed the defendants’ appeal from a judgment because they had not posted a bond to stay enforcement. (215 Cal.App.4th at 1234.) The appellate court determined that dismissal was warranted because the defendants had failed to comply with an order compelling responses to “postjudgment discovery designed to obtain information to aid in the enforcement of the judgment being appealed.” (Id. at 1232.)

In Gwartz, supra, plaintiff purchasers won a $2.3 million judgment resulting from a jury trial of fraud claims stemming from their purchase of real property. (Gwartz, supra, 231 Cal.App.4th at 751.) The appellate court dismissed the defendants’ appeal, citing repeated violations of the trial court’s postjudgment orders enjoining them from selling or transferring their assets. (Id. at pp. 755-758.) The defendants did not deny transferring assets, but argued that they had done so in “good faith.” (Id. at p. 761.) The appellate court disagreed, stating: “[t]he record shows that defendants are seeking the benefits of an appeal while willfully disobeying the trial court’s valid orders and thereby frustrating [plaintiffs’] legitimate efforts to enforce the judgment… [and that] …the equitable considerations relevant to the disentitlement doctrine favor dismissal.” (Ibid.)

Blumberg, supra, involved a bench trial resulting in removal of the defendant as trustee, naming the plaintiff beneficiary as the successor trustee, and awarding damages. (233 Cal.App.4th at 1386.) Thereafter, the trial court ordered the defendant trustee to convey property to the beneficiary of the trust and to prepare an accounting. (Ibid.) The trustee appealed, conveyed the property to her daughter (instead of the plaintiff), and argued that the appeal stayed the trial court’s orders. (Id. at 1389.) The appellate court dismissed the appeal, referring to the defendant’s conduct as “despicable” and designed to “frustrate the attempts of the court to legitimately effect its own orders.” (Id. at 1391-92.) The defendant’s available remedies were to post a bond and seek writ relief from the Court of Appeal, “[i]t was not up to her to decide to ignore the court’s order under her privately held belief it was invalid.” (Id. at 1392.)

In Ironridge, supra, the parties settled the plaintiff’s action to recover a debt pursuant to which the defendant agreed to an initial stock transfer to the plaintiff and an additional transfer in the event the defendant’s stock decreased in value. (238 Cal.App.4th at 261.) But, when the stock prices fell, the defendant failed to transfer the additional stock, and the trial court entered an order compelling the defendant to do so and prohibiting the defendant from making any transfers to third parties until satisfying its obligation to the plaintiff. (Ibid.) The defendant appealed and ignored the order, transferring millions of shares to third parties, without transferring any further stock to plaintiff. (Id. at 262.) The defendant did not deny transferring stock to third parties, but instead argued that the settlement agreement did not restrict its ability to do so and that the trial court exceeded its authority, and that it was “…not required to comply with the trial court’s ‘invalid’ order.” (Id. at 266.) The appellate court determined that the enforcement order was valid, stating: “[d]efendant had no cause to disobey the court’s order, but did so, repeatedly,” without seeking a stay or writ relief, warranting dismissal of its appeal under the disentitlement doctrine. (Id. at 267.)

Presenting a pattern of disobedience

Because violation of a single court order is sufficient to dismiss an appeal, it must not come as a surprise that violation of multiple court orders should scream out for such relief. Where an appellant is “flagrantly and persistently [in defiance of] court order[s] … [t]his is a more than adequate ground for dismissing the appeal.” (Say & Say, supra, 22 Cal.App.4th at 94, emphasis added, brackets in original.) Further, application of the doctrine is not limited to situations where the defendant has disobeyed court orders in the same action (or even the same state). Where a party’s disobedience of court orders spans several actions, the appellate court may consider – and you should present evidence of – a broader pattern of recalcitrant conduct in other pending litigation. (Ibid.) In Say & Say, the appellant had recently been held in contempt on three occasions in three separate actions. (Id. at 94.) This repeated defiance of court orders in multiple actions fueled the court’s decision both to dismiss the appeal and to impose substantial monetary sanctions. (Id. at 94, 95.)

Courts may be indisposed to take such a measure

Although judicial economy and judicial integrity both favor dismissal, remember that courts may be indisposed to take such a measure in all but the most egregious cases. Be sure to file your motion to dismiss under the disentitlent doctrine early in the appellate process, before responding to the Appellant’s Opening Brief. This will give you the opportunity to inform the court of the defendant’s disdain for valid court orders, and to remind the court that dismissal could also save valuable resources (both the court’s and your client’s) that would need to be expended if the parties were to fully brief the issues and present oral argument. In making such a motion, the Supreme Court’s admonitions should be cited. In MacPherson v. MacPherson, supra, 13 Cal.2d at 277, the Court recognized that it undermines the integrity of the judicial process and defies notions of fair play and equity for a party to refuse to comply with adverse orders while asking the aid of the Courts of Appeal to issue orders more to its liking.

In addition to posing an affront to the authority of the courts and the integrity of the judicial process, such actions are a wasteful drain of the time and resources of your client, as well as the court. Permitting the defendant to appeal despite its disobedience of court orders forces your client to incur costly filing fees, your firm to devote substantial time responding to challenges to the valid court orders, including appellate briefing and oral argument, presumably while the disobedient defendant only intends to comply with the reviewing court’s decisions if they favor its position.

It is important to remember that disentitlement is “a discretionary tool that may be applied when the balance of the equitable concerns make it a proper sanction.” (Ironridge, supra, 238 Cal.App.4th at 265, citations omitted.) Unfortunately, there is a very real chance that the appellate court will be inclined to defer ruling on your disentitlement motion until after it considers the briefs and hears oral argument respecting the merits of the appeal. Although such belated treatment will not prevent the waste of judicial and party resources, it will nonetheless give the appellate court an additional reason to rule in your favor, especially in close cases.

For instance, if the defendant has flagrantly and repeatedly violated court orders, the appellate court will likely have a negative opinion of the defendant going into the appeal, increasing the chances of dismissal, whether on the merits or via disentitlement. As previously mentioned, all trial court orders are presumably valid, and a party’s willful noncompliance with a court order violates the integrity of our judicial system, and shows disdain for its established procedures for challenging disputed court orders (e.g., motions for reconsideration, writs, and petitions for review). Remember that “the merits of the appeal are irrelevant to the application of the [disentitlement] doctrine.” (Ironridge, supra, 238 Cal.App.4th at 265.) Thus, any disobedience of a court order should warrant application of the disentitlement doctrine to dismiss the offending party’s appeal.

However, appellate courts tend to be more conservative and deliberate than trial courts and, therefore, may be more likely to want to reach the merits of the offending party’s appeal, especially where, for example, the order not complied with is the party’s first offense, or where there are due process concerns (i.e., dismissal short of trial on the merits). For example, in San Francisco Unified Sch. Dist. ex. rel. Contreras v. First Student, Inc. (“SFUSD”) (2013) 213 Cal.App.4th 1212, the appellate court declined to apply the disentitlement doctrine to dismiss the plaintiffs’ (former employees) appeal of an injunction barring them from speaking to current employees about their qui tam False Claims Act claims. (Id. at 1240.) The appellate court did not limit its inquiry to the plaintiffs’ alleged non-compliance with the order enjoining them from speaking with the defendant’s current employees. Instead, the court reached the merits of the appeal and declined to apply the disentitlement doctrine, citing its “serious concern that [the] order conflicts with the policies articulated in the False Claims Act, and constituted an unconstitutional restraint on the free speech rights of the individual plaintiffs.” (Ibid.)

If you are faced with a defense citing SFUSD as the basis to deny application of the disentitlement doctrine, be aware that, in that case, the court carefully limited its refusal to apply the disentitlement doctrine based “on the present record.” (Ibid., emphasis added.) Further, if the defendant argues that dismissal is outweighed by the constitutional rights at issue, cite to the U.S. Supreme Court’s decision in National Union, supra, 348 U.S. at 44-45, where the Court held that dismissal of the appeal pursuant to the disentitlement doctrine was “an exercise of a state court’s inherent power to use its processes to induce compliance with a supplemental order reasonably issued in aid of execution” . . . and was not violative of the appellant’s Fourteenth Amendment due process rights. (Emphasis added.)

Finally, remind the court that permitting a disobedient defendant to appeal establishes a bad precedent, even if such a decision is unpublished. If an appellate court affords the defendant the right to appeal even after their abysmal disobedience to court orders, defendants will be emboldened and future disobedience will be virtually assured.

That a party may “eventually comply” is no defense

A defendant’s argument that a motion to dismiss under the disentitlement doctrine should be denied because the defendant may still comply with the court order in question in another pending action is circular. This is merely an attempt to establish terms under which the defendant is willing to comply with a valid order, which should not prevent dismissal.

An appeal was denied under just such circumstances in Soderberg v. Soderberg (1923) 63 Cal.App. 492. There, a former husband sought to set aside a divorce decree awarding his ex-wife custody of the couple’s child. (Id. at 492-493.) During the eight years following the divorce, the husband did not pay court-ordered child support and the wife remarried and moved to Arizona with the child. (Id. at 494.) The husband’s appeal contained an offer conditioning his compliance with the child support order on his ex-wife returning to California with the child. (Ibid.) On its own initiative, the appellate court refused to hear the merits of the husband’s appeal. Citing the husband’s non-compliance with the divorce decree, the court found the husband “is in no position to stipulate with the court under what terms and conditions he will comply with the judgment.” (Ibid.)

A defendant may also contend that if it ultimately complies with a court order in another pending action, it will no longer be in breach of a pending trial court order, rendering the disentitlement doctrine inapplicable. This argument has also been expressly rejected. In In re E.M. (2012) 204 Cal.App.4th 467, a mother fled to Mexico with her children to avoid conditions established in a dependency action. (Id. at 475-476.) An arrest warrant was issued, but later recalled when the trial court entered a disposition order. (Id. at 473.) The mother appealed. (Ibid.) The Department of Child and Family Services sought dismissal, invoking the disentitlement doctrine. (Id. at 474.) The mother argued that because the arrest warrant was withdrawn, she was not actively in breach of any order; making dismissal inappropriate. (Id. at 476.) The court rejected the mother’s position and dismissed the appeal, reasoning that dismissal is appropriate when a party has engaged in willful disobedience or obstructive tactics. (Id. at 476-477.) 

Even were the defendant to ultimately comply with the court order in question, it could be after it is too late to be of any benefit to your client. (See In re C.C. (2003) 111 Cal.App.4th 76, 85 [disentitlement doctrine has been applied when the conduct of a recalcitrant party “frustrates the ability of another party to obtain information it needs to protect its own legal rights”].)

Application of the disentitlement doctrine at the trial level

A court’s inherent power to dismiss an action for a party’s willful disobedience of court orders is not limited to the appellate courts. I have worked with trial counsel who have successfully used the disentitlement doctrine at the trial level to defeat summary judgment. Citing the disentitlement doctrine, the trial court refused to hear the motion until the defendant complied with its discovery order.

Despite its long obscurity, the disentitlement doctrine is a powerful tool to combat your opponent’s unwillingness to comply with court orders favorable to your client and to defeat otherwise potentially meritorious appeals. I would like to think that most parties adhere to the rule of law and that most of the time the defendants in your cases will comply with the court’s directives. However, if you find yourself faced with a defendant who will only accept a ruling favorable to itself, hopefully this article has provided some clarity and familiarity with the doctrine, enabling you to join the likes of plaintiffs who have recently employed it with increasing success in civil appeals.

Scott Tillett Scott Tillett

Scott Tillett is a partner and co-founder of the Los Angeles-based appellate firm, Pine Tillett Pine LLP. His practice is devoted exclusively to handling civil appeals, both state and federal. A graduate of USC Law School, he has been recognized by Super Lawyers as a Rising Star in appellate law in both 2016 and 2017.

The disentitlement doctrine

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