B IN THE COURT OF APPEAL

Transcription

1 B IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR PETRA STARKE, Plaintiff and Respondent, v. BIKRAM YOGA COLLEGE OF INDIA, LP, ET AL., Defendants and Appellants. APPEAL FROM THE SUPERIOR COURT FOR LOS ANGELES COUNTY HON. CRAIG D. KARLAN & HON. MITCHELL L. BECKLOFF, JUDGES NO. SC REPLY TO MOTION TO DISMISS UNDER THE DISENTITLEMENT DOCTRINE CALIFORNIA APPELLATE LAW GROUP LLP Anna-Rose Mathieson (No )* Jennifer Teaford (No ) 96 Jessie Street San Francisco, CA (415) Fax: (415) ATTORNEYS FOR PLAINTIFF AND RESPONDENT PETRA STARKE

2 Introduction Appellant Bikram Choudhury does not dispute that he repeatedly and willfully violated trial court orders in this case. He is currently a fugitive from justice, refusing to surrender to the bench warrant for his arrest issued by the trial court. Yet he asks this Court to intervene on his behalf and grant him relief in this appeal. This Court should not reward his gamesmanship and disrespect for the trial court. The disentitlement doctrine applies, and his appeal should be dismissed. I. The Disentitlement Doctrine Authorizes Dismissal Choudhury suggests that the disentitlement doctrine should not apply to allegedly void judgments, but cites no cases supporting that conclusion. To be fair, there are limited cases addressing the issue. But the rationale of the disentitlement doctrine suggests it should apply even when the appellant claims the judgment is void, and the closest precedent confirms this approach. The disentitlement doctrine 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, as mod. (May 6, 2013), as mod. rehg. den. (June 5, 2013); Gwartz v. Weilert (2014) 231 Cal.App.4th 750, 757.) 2

3 As set out in detail in Respondent s Brief, the judgment in this case is not void because it was entered after a trial, and thus Code of Civil Procedure section 580, subdivision (a) does not apply. Nor is it clear why a failure to comply with section 580 should render a judgment void, rather than voidable. Judgments are generally deemed void only when there is a lack of jurisdiction over the subject matter or the person, (Ironridge Global IV, Ltd. v. ScripsAmerica, Inc. (2015) 238 Cal.App.4th 259, 267), and there is no dispute in this case that the trial court had jurisdiction over both the subject matter and Choudhury. When a court has fundamental jurisdiction, but acts in excess of its jurisdiction, its act or judgment is merely voidable. (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 661.) 1 1 We acknowledge that the court in Dhawan v. Biring (2015) 241 Cal.App.4th 963, 973, held that failure to comply with section 580, subdivision (a) renders a judgment void rather than voidable, and the California Supreme Court referred to this failure as rendering a judgment void in Greenup v. Rodman (1986) 42 Cal.3d 822, 826. The Greenup Court did not squarely consider the issue, however, and the reference appears to be what the U.S. Supreme Court has referred to (in correcting its own similar mistakes) as a drive-by jurisdictional rulin[g] that should be accorded no precedential effect. (Arbaugh v. Y&H Corp. (2006) 546 U.S. 500, 511.) The U.S. Supreme Court s analysis is not dispositive on this point, of course, but it does highlight that cases suggesting that a statutory error rendered a judgment void may have been based on a misunderstanding of the jurisdictional issues at play. The trial court had both subject matter and personal jurisdiction over this matter; any statutory mistake under section 580 should not have rendered the 3

4 In any event, the merits of the appeal are irrelevant to the application of the [disentitlement] doctrine. (Ironridge Global IV, supra, 238 Cal.App.4th at p. 265; Stone v. Bach (1978) 80 Cal.App.3d 442, 448 [rejecting defendant s claim that dismissal was not warranted because the orders he violated were invalid ].) The rationale upon which [appellate] relief is denied is that it would be a flagrant abuse of the principles of equity and of the due administration of justice to consider the demands of a party who becomes a voluntary actor before a court and seeks its aid while he stands in contempt of its legal orders and processes. (Travis v. Travis (1948) 89 Cal.App.2d 292, 295.) That rationale applies just as strongly when the appellant claims a judgment is void rather than voidable. 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.) The closest precedent we have located is Ironridge, where the court suggested arguments that an appeal was void or voidable need not be analyzed before applying the disentitlement doctrine. (Ironridge Global IV, supra, 238 Cal.App.4th at p. 267.) In that case, the respondent moved to dismiss the appeal based on disentitlement, but the appellant argued the judgment was judgment void. (See, e.g., American Contractors Indemnity Co., supra, 33 Cal.4th at p. 661.) 4

5 void or voidable and that he was not required to comply with the trial court s invalid order. (Id. at p. 266.) The Court of Appeal explained that it need not consider defendant s arguments on the merits of the injunction because arguments as to the merits are irrelevant to the application of the disentitlement doctrine. (Ironridge Global IV, supra, 238 Cal.App.4th at p. 266.) The court went on to note that in any event it found no merits to defendant s attacks on the judgment but its analysis suggests that was simply gilding the lily with an alternative finding supporting the dismissal, and it need not have reached those issues. (Ibid.) Choudhury cites no case barring this Court from applying the disentitlement doctrine in cases where the appellant claims the judgment is void, and there is no reason for this Court to impose new limits on the doctrine in this case where the trial court had jurisdiction over the subject matter and person. This Court should not reward Choudhury s egregious misconduct by considering his appeal on the merits. II. No Formal Judgment of Contempt Is Needed and the Arrest Warrant Serves the Same Purpose Choudhury notes in passing that no contempt judgment has been entered in the trial court (Opp. 2), but none is needed. The principle permitting this court to stay or dismiss an appeal does not require a formal judgment of civil contempt. (Alioto 5

6 Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, 1683; see also Stone v. Bach, supra, 80 Cal.App.3d at p. 444.) Instead, an appellate court may dismiss an appeal based on the disentitlement doctrine where there has been willful disobedience or obstructive tactics. (Alioto Fish Co., supra, 27 Cal.App.4th at p. 1683; Stoltenberg, supra, 215 Cal.App.4th at p. 1230, quoting In re Claudia S. (2005) 131 Cal.App.4th 236, 244.) Choudhury never disputes the ample evidence of his willful disobedience and obstructive tactics in this case. (1 RT 7-9; 5 RT ; 1 CT , ; 2 CT 283, 285, ; 3 CT ; Jun Decl. Exh. B, p. 7.) And while the trial court did not issue a contempt order, it did issue a bench warrant for Choudhury s arrest for failing to appear. (Jun Decl. Exh. B, p. 6; Jun Decl. Exh. C, p. 14.) The trial court even gave Choudhury time to challenge that arrest warrant on appeal, a challenge he declined to pursue. (Jun Decl. Exh. C, p. 14.) Even if a judgment of contempt were required, the issuance of an arrest warrant would fill that role. (Tobin v. Casaus (1954) 128 Cal.App.2d 588, 593 [rejecting argument that contempt was required when bench warrant was issued, and noting 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 6

7 court order with which he disagrees, but seeks to obtain on appeal a conclusion with which he may be satisfied. ]; cf. Gwartz v. Weilert, supra, 231 Cal.App.4th 750, 761 [no contempt issued, and disentitlement doctrine applies because [t]he record shows that defendants are seeking the benefits of an appeal while willfully disobeying the trial court s valid orders ].) As the Tobin court noted more than 60 years ago, [i]t seems incredible that with the imminent prospect of losing his right of appeal in this case, appellant would persist in ignoring the court process. Yet if he has to this day taken any steps to surrender on the bench warrant, they have not been called to our attention. One who, with knowledge that he is being sought pursuant to court process, absents himself or flees, is a fugitive from justice. (Tobin, supra, 128 Cal.App.2d at p. 592.) The equities thus weigh in favor of applying the disentitlement doctrine, and [t]here 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 p. 593, quoting MacPherson, supra, 13 Cal.2d at p. 279.) III. Choudhury s Vague Claims Regarding Bankruptcy Do Not Alter the Result The appeal in its current posture only concerns claims against Bikram Choudhury personally. The appeal as to the companies are stayed because those entities declared bankruptcy. 7

8 To our knowledge, Bikram Choudhury has not declared personal bankruptcy, nor does his attorney s declaration suggest he has. Yet Choudhury still suggests the bankruptcy automatic stay should somehow prevent this Court from applying the disentitlement doctrine based on claims against him individually, and absolve him of any need to follow the trial court s orders to appear for a judgment debtor examination. But that s not how this works. Choudhury can t evade trial court orders for almost two years, then claim there is no prejudice because the bankruptcy estate has made claims against him for intermingling funds. First, while his attorney vaguely claims the bankruptcy trustee has in essence frozen all Choudhury s assets (Lager Decl. 6), Choudhury evaded the judgment debtor examination the trial court ordered to determine the scope of his assets. Given Choudhury s history of deceiving the court and hiding assets (e.g., Jun Decl. Exh. B, p. 7), there is zero reason to believe his current claim that all his personal assets are now part of the bankruptcy estate. While Choudhury acknowledges that whether the defendant poses any risk or delay or frustration in determining assets and liabilities should be considered by this Court in applying the disentitlement doctrine (Opp. 4), this factor weights directly and squarely against Choudhury given the trial court s explicit finding that he attempted to hide his assets and fled the 8

9 country. (Jun Decl. Exh. B, p. 7; see also 1 RT 7-9 [hiding assets]; 3 CT [same], [continued attempts to hinder determining assets and liabilities]; Jun Decl. Exh. B, pp [same].) Second, Choudhury provides no authority for the suggestion that a bankruptcy stay against companies owned by a party should somehow stay an appeal as to that party and his own act in filing an appeal brief belies that claim. There is absolutely nothing in the bankruptcy code s automatic stay provision (11 U.S.C. 362) that suggests a trial court does not have the power to order someone who has not filed for bankruptcy to sit for a judgment debtor examination, as the trial court did nearly a year ago. (Jun Decl. Exh. A, p. 4.) Finally, his claims are simply not relevant to the disentitlement analysis. His brief repeatedly suggests that Starke is somehow attempting to take priority over other debtors through this motion. But the reason Starke has the right to attempt to enforce the judgment now is because Choudhury chose not to post a bond to stay the appeal, nor did he obtain supersedeas relief or any other type of stay. And the reason this appeal should be dismissed under the disentitlement doctrine is because Choudhury chose to ignore the trial court s orders to sit for a judgment debtor examination. He can t disregard the trial court s orders, and then ask this Court to intervene on his behalf 9

10 and overturn the trial court s verdict. As the Supreme Court has long held, when an appellant seeks the court s aid on appeal it is manifestly just and proper that in invoking that aid she should submit herself to all legitimate orders and processes. [ ] She cannot, with right or reason, ask the aid or assistance of this court in hearing her demands, while she stands in an attitude of contempt to the legal orders and processes of the courts of this state.... (Knoob v. Knoob (1923) 192 Cal. 95, ) Conclusion For these reasons, respondent Petra Starke requests this Court to dismiss the appeal under the disentitlement doctrine. Dated: July 27, 2018 California Appellate Law Group LLP Anna-Rose Mathieson Jennifer Teaford By /s/ Anna-Rose Mathieson Anna-Rose Mathieson Attorneys for Respondent Petra Starke 10