Glaser, Weil, Fink, Howard, Avchen & Shapiro, LLP v. Goldstein

CitationGlaser, Weil, Fink, Howard, Avchen & Shapiro, LLP v. Goldstein, B285198 (Cal. App. Oct 29, 2018)
Decision Date29 October 2018
Docket NumberB285198
CourtCalifornia Court of Appeals Court of Appeals
PartiesGLASER, WEIL, FINK, HOWARD, AVCHEN & SHAPIRO, LLP, Plaintiff and Respondent, v. GERALD GOLDSTEIN, Defendant and Appellant.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BC527647)

APPEAL from orders of the Superior Court of Los Angeles County, Edward Moreton, Jr., Judge Affirmed.

Klapach & Klapach and Joseph S. Klapach for Defendant and Appellant.

Krane & Smith and Daniel L. Reback for Plaintiff and Respondent.

____________________

INTRODUCTION

This appeal involves the intersection of several remedies by which civil judgments in California may be enforced. Judgment debtor Gerald Goldstein (Goldstein) is the person against whom a judgment has been rendered. Judgment creditor Glaser, Weil, Fink, Howard, Avchen & Shapiro, LLP (Glaser Weil) is the entity in whose favor a judgment has been rendered. Pursuant to the Code of Civil Procedure, Glaser, Weil formally examined Goldstein to discover property it could seize to satisfy its money judgment. After the judgment debtor examination, Glaser Weil then applied for three remedies to take control of Goldstein's assets to satisfy the judgment: a writ of execution, an assignment order, and a turnover over. The assignment and turnover orders are the subject of this appeal.

Goldstein appeals from the trial court's orders (1) assigning his right to receive payments from two corporations to judgment creditor Glaser Weil; and (2) directing him to turn over to the levying officer all share certificates and documents evidencing his ownership interest in three corporations.

Goldstein makes two claims of procedural error: (1) the turnover order is invalid because Glaser Weil failed to satisfy the statutory prerequisites in Code of Civil Procedure section 699.040;1 and (2) the trial court was authorized to issue an assignment order or a turnover order, but not both. Goldstein additionally contends that even if the orders were procedurally proper, the evidence is insufficient to support either order.

Glaser Weil has moved to dismiss Goldstein's appeal under the disentitlement doctrine, arguing that Goldstein has not complied with the turnover and other court orders and so should not be permitted to appeal.2

We deny the motion to dismiss. We affirm the trial court's assignment and turnover orders.

BACKGROUND

In February 2016, Glaser Weil obtained a judgment against Goldstein in the amount of $868,464.45 plus interest. Goldstein did not voluntarily pay the judgment.

In June 2017, after more than a year of only partially successful efforts to identify Goldstein's assets, Glaser Weil filed a motion for alternative orders (1) assigning to itself Goldstein's interest in and right to payments from TMC Music, Inc. (TMC) and Far Out Productions, Inc. (Far Out); or (2) directing Goldstein to turn over to the levying officer his share certificates in TMC, Far Out, and a third corporation, The Last Experience, Inc. (Last Experience).

Glaser Weil's motion was based almost entirely on Goldstein's testimony at an April 10, 2017, judgment debtor's examination pursuant to section 708.110. Goldstein testified he owned all the shares of Far Out, a record production company whose assets consist of master recordings of several thousand songs. Far Out has distribution agreements with Universal for the U.S. and Canada, and with BMG for the rest of the world.Far Out received advance payments as part of the distribution agreements and its earnings under these agreements generally went directly to Universal and BMG to repay the advances. However, Goldstein "may have" received payments from Far Out in 2016. The source of any payments would have been the Universal distribution agreement, which contains a pass-through provision allowing Far Out to receive a small percentage of the total earnings. There was no pass-through provision in the BMG agreement.

Goldstein also testified he owned all the shares of TMC, a music publishing company whose assets consist of about 500 musical compositions. TMC's income in 2016 was "around a million dollars." A declaration by Glaser Weil's counsel states Goldstein testified he " 'might have received some money' from [TMC] in the last year. (Id. at p. 50.)"3

The record on appeal does not include testimony from the judgment debtor's examination about Last Experience. In its motion, Glaser Weil attached a copy of an unpublished opinion from Division 2 of this court stating that Last Experience is a corporation formed no later than 2010 solely to hold Goldstein's film rights to footage of Jimi Hendrix's 1969 concerts. (Experience Hendrix, LLC v. The Last Experience, Inc. (May 8, 2017, B268414).) In the trial court, Goldstein did not dispute his ownership of Last Experience.

Due to Goldstein's failure to produce documents, the judgment debtor's examination could not be completed on April 10, 2017. The trial court ordered Goldstein to produce the requested documents by April 27, 2017 and return for further examination on May 4, 2017.

On May 4, 2017, Goldstein's counsel filed a declaration in which he stated that Goldstein was in poor health and would not attend the debtor's examination. Counsel attached a letter from Goldstein's doctor recommending that Goldstein not make any court appearances for 60 days. Goldstein did not produce documents, and the court set a contempt hearing for May 18, 2017. The court also continued the debtor's examination to that date.

Goldstein did not appear on May 18, 2017. His counsel appeared with a letter from Goldstein's doctor stating that Goldstein was suffering from high blood pressure and other health problems and should not engage in stressful activities for 60 days. The court found Goldstein in contempt for failing to produce any documents by April 27, 2017 as previously ordered. The court ordered Goldstein to produce documents by July 10, 2017, and to appear for his examination on July 17, 2017.

On June 12, 2017, Glaser Weil filed its motion for an assignment order or, alternatively, a turnover order. The hearing for the motion was set for July 17, 2017. It also applied for issuance of a writ of execution. On July 5, 2017, a writ of execution issued.

Goldstein produced some documents on July 10, 2017. He did not appear for his judgment debtor's examination on July 17, 2017. That same day, the court heard Glaser Weil's motion for an assignment or turnover order and issued both orders. Theturnover order required Goldstein to turn over all share certificates in TMC, Far Out and Last Experience, and all documents evidencing ownership interest in those corporations, within seven days. Goldstein did not comply with the turnover order.

On September 11, 2017, the court issued a bench warrant for Goldstein's arrest for his failure to appear at the July 17, 2017 judgment debtor's examination. The record does not show when or if Goldstein was served with this warrant. It does indicate that the fee for service of the warrant was paid on September 14, 2017.

On September 15, 2017, Goldstein filed a notice of appeal from the trial court's assignment and turnover orders.

On February 8, 2018, the court granted Goldstein's motion for nonsuit on the contempt charge related to his failure to appear at the July 17, 2017 debtor's examination. At Glaser Weil's request, the court continued the hearing on an order to show cause re contempt for Goldstein's failure to comply with the turnover order and with the document production order. On May 21, 2018, the hearing on the OSC was again continued to July 23, 2018. There is no further information in the record about the OSC.4

DISCUSSION
I. Motion For Disentitlement

Glaser Weil contends we should dismiss Goldstein's appeal under the disentitlement doctrine because Goldstein has willfullyignored orders of the trial court, has been held in contempt of court, has refused to comply with the turnover order which is the subject of this appeal, and is a "fugitive." We do not find disentitlement to be an appropriate sanction in this case and decline to dismiss the appeal.

A. Disentitlement Is Discretionary.

"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." (Stoltenberg v. Ampton Investments, Inc. (2013) 215 Cal.App.4th 1225, 1229.) Disentitlement is not a jurisdictional doctrine, but a " ' "discretionary tool that may be applied when the balance of the equitable concerns makes it a proper sanction."'' " (Id. at p. 1230.) A formal judgment of contempt is not a prerequisite to disentitlement. We may dismiss an appeal " 'where there has been willful disobedience or obstructive tactics.' " (Ibid, italics omitted.)

"The disentitlement doctrine 'is particularly likely to be invoked where the appeal arises out of the very order (or orders) the party has disobeyed.' (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2014) ¶ 2:340, p. 2-203.) Moreover, the merits of the appeal are irrelevant to the application of the doctrine. (See 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'].)" (Ironridge Global IV, Ltd. v. ScripsAmerica, Inc. (2015) 238 Cal.App.4th 259, 265 (Ironridge); cf. Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 545 (Imperial Bank) [considering appeal from turnover order by debtor who did not comply with turnover order].)

At the same time, the right to an appeal " 'must not be lightly forfeited, and where a doubt exists as to a litigant's...

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