Opinion
Page 1124a
216 Cal.App.4th 1124a __ Cal.Rptr.3d __ HERBERT W. STOLTENBERG, as Trustee, etc. et al., Plaintiffs and Respondents, v. AMPTON INVESTMENTS, INC. et al., Defendants and Appellants. B235731 California Court of Appeals, Second District, Fifth Division June 5, 2013THE COURT:.
IT IS ORDERED that the opinion filed herein on April 4, 2013, (215 Cal.App.4th 1225; ___Cal.Rptr.3d ___) be modified as follows, and the petition for rehearing is DENIED:
Modify the Opinion on Denial of Application to Reinstate Appeal [215 Cal.App.4th 1235-1236, advance report] 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
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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 discomfort with California’s disentitlement doctrine may be the reason for his vacating the contempt order.
The fugitive disentitlement doctrine exists in New York. (See Wechsler v. Wechsler (N.Y.App.Div. 2007) 45 A.D.3d 470 [847 N.Y.S.2d 26; In the Matter of Joshua M. v. Dimari N. (N.Y.App.Div. 2004) 9 A.D.3d 617 [780 N.Y.S.2d 218; Peppin v. Lewis (N.Y. Fam. Ct. 2002) 194 Misc.2d 151 [752 N.Y.S.2d 807].
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 [145 Cal.Rptr. 599].)
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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 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.