Filed 2/25/15 Unmodified version attached




                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FOURTH APPELLATE DISTRICT

                                            DIVISION THREE


ADAM J. BLUMBERG,

   Plaintiff, Cross-Defendant and                      G050428
Respondent,
                                                       (Super. Ct. No. PRODS1000744)
        v.
                                                       ORDER MODIFYING OPINION
GLORIA M. MINTHORNE, as Trustee,                       AND DENYING PETITION FOR
etc.,                                                  REHEARING; NO CHANGE IN
                                                       JUDGMENT
   Defendant, Cross-Complainant and
Appellant.



                 It is hereby ordered that the opinion filed herein on January 27, 2015, be
modified as follows:
                 On page 4, in the second full paragraph, the penultimate sentence is
stricken and replaced by the following sentence: “Gloria later filed a declaration stating
the Pleasant Avenue property was an asset of the trust, and she had sold it and used the
proceeds to purchase the second Hesperia property.”
             On page 6, in the third full paragraph, the first sentence is stricken and
replaced by the following sentence: “On January 28, 2013, Gloria quitclaimed the
second Hesperia property to her daughter, Debra.”
             The petition for rehearing is DENIED. This modification does not effect a
change in the judgment.




                                                 MOORE, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



THOMPSON, J.




                                             2
Filed 1/27/15 Unmodified version Certified for publication 2/4/15 (order attached)




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FOURTH APPELLATE DISTRICT

                                             DIVISION THREE


ADAM J. BLUMBERG,

   Plaintiff , Cross-Defendant and                                G050428
Respondent,
                                                                  (Super. Ct. No. PRODS1000744)
        v.
                                                                  OPINION
GLORIA M. MINTHORNE, as Trustee,
etc.,

   Defendant, Cross-Complainant and
Appellant.



                 Appeal from a judgment of the Superior Court of San Bernardino County,
Cynthia Ann Ludvigsen, Judge. Appeal dismissed.
                 Law Office of Robert E. Dougherty and Robert E. Dougherty for
Defendant, Cross-Complainant and Appellant.
                 Blumberg Law Corporation and Ave Buchwald for Plaintiff, Cross-
Defendant and Respondent.
              This case is a dispute about the administration of a family trust and the
interpretation of trust documents. At the conclusion of a bench trial, the court decided in
favor of plaintiff Adam J. Blumberg, the step-grandson of defendant Gloria Minthorne.1
Gloria was ordered by the court to file an accounting and quitclaim certain property to
Adam. Gloria appealed. She quitclaimed that property to her daughter and failed to file
the accounting.
              Adam moved to dismiss the appeal, citing the disentitlement doctrine. We
agree with Adam that this is one of the rare cases where applying this doctrine is
appropriate due to Gloria’s flagrant violation of the court’s orders. The appeal is
therefore dismissed.
                                              I
                                          FACTS
              The Minthorne Family Living Trust (the trust) was signed by spouses
Gloria and Ralph Minthorne on February 19, 2008, soon after Ralph suffered a stroke.
Both had previous estate plans, written in 2007. They had been married since 2006,
when Ralph was 75 and Gloria was 61.
              With respect to the trust, Gloria and Ralph were both settlors; Gloria alone
was named as trustee. The parties both had assets and adult children from prior
marriages. Adam was one of Ralph’s grandchildren. The property in the trust included
an apartment building, originally owned by Ralph, and two single-family homes (the
Starshine property and the Pleasant Avenue property, respectively), previously owned by
Gloria. All of these properties went into the trust.
              The trust included two clauses regarding the division and distribution of the
trust property after Gloria or Ralph’s death. The first clause, section 4, stated, among

1Because of the possibility of confusion arising from common surnames, we use first
names where appropriate. No disrespect is intended.

                                              2
other provisions, that after the death of the deceased settlor, the trustee was to allocate the
entire trust estate to a survivor’s trust, and then distribute the net income for the benefit of
the surviving settlor in installments. The surviving settlor also had a general power of
appointment.
               The second clause, section 5, reads more like the provisions one expects to
see in a will. It stated, for example, that if Ralph died first, Gloria, “if she survives him,”
was to receive all personal effects, the contents of their home, and all bank accounts.
Certain personal property was devised to specific children of Ralph and Gloria, and one-
half of the interest in the apartment building was left to Gloria. “All the rest, residue, and
remainder of the trust estate, including the remaining one-half interest in” the apartment
building or its proceeds, if the building had been sold, was left to designated children and
grandchildren, including Adam and his sister Heather Blumberg. The Pleasant Avenue
property, not elsewhere mentioned, would also have been included in this remainder
estate. Essentially, Adam and Heather were each entitled to 12.5 percent of the total
proceeds.
               If Gloria was the first to die, her son Thomas George Brannan, Jr., was to
receive the Starshine property, her daughter Debra Michelle Brannan and her children
were to receive the Pleasant Avenue property, and “[a]ll of the balance of the trust estate
shall be distributed to Ralph E. Minthorne . . . .”
               Ralph died in November 2008. In January 2009, Gloria’s attorney, Samuel
P. Crowe, the same attorney who had drafted the trust, informed counsel for Ralph’s
children, Victor P. Skvarna, that the estate would be distributed in a manner consistent
with section 5 of the trust. Indeed, this letter quoted significant sections of section 5
without change. Gloria had already taken steps toward effecting the transfer of the
designated personal property and the Starshine property. Crowe stated the apartment
building was in escrow for a purchase price of $925,000, and the net proceeds would be
distributed pursuant to section 5.

                                               3
              Between March and August 2010, Skvarna, on Adam’s behalf, made
numerous requests for an accounting of the trust. The final request, in August, stated that
legal action would follow.
              In May 2009, Crowe advised Skvarna the sales price on the apartment
building had dropped to $800,000. The net proceeds Gloria received, as trustee, after the
mortgage was paid off, were approximately $313,000. Gloria deposited this check into
her personal bank account, and then wrote a check from that account to Crowe’s trust
account. Crowe distributed $157,000 to Gloria in two checks. All of this is essentially
consistent with section 5’s provision leaving Gloria 50 percent of the proceeds from the
apartment building. Gloria then used these funds to buy a home in Hesperia in
September 2009 (the first Hesperia property), taking title in her personal capacity.
              In April 2010, Gloria entered into a contract to sell the Pleasant Avenue
property, executing the deed as trustee. Gloria received approximately $108,000 which
was wired to her personal account. She also received a second payment of $1,800 also
deposited to the same account. Shortly thereafter, in April, she entered into a contract for
$87,500 to buy a property adjacent to the Hesperia property she had previously purchased
(the second Hesperia property). She took title to this property in her personal capacity,
not as trustee. Gloria later filed a declaration stating the Pleasant Avenue property was
an asset of the trust, and she had sold it and used the proceeds to purchase the first
Hesperia property. She acknowledged that property was an asset of the trust.
              In July 2010, Crowe advised Adam the total amount of trust funds to be
distributed to those other than Gloria was approximately $115,000, and accordingly his
share was approximately $14,000. A check in that amount was enclosed.
              On October 5, 2010, Adam filed a petition to remove Gloria as trustee,
recover trust property, compel an accounting, appoint a successor trustee, and for
damages. In sum, Adam alleged Gloria never provided a proper accounting, took the
position the Pleasant Avenue property was not a trust asset and wrongfully sold it,

                                              4
mishandled the apartment building administration and sale, and generally acted in bad
faith.
              The matter proceeded to trial. In its statement of decision, filed November
27, 2012, the court rejected Gloria’s argument that sections 4 and 5 were not inconsistent
and that she was entitled to everything under section 4. “Sections 4 and 5 cannot both be
applicable. The distribution sections of 5 make no sense if 4 applies.” The court rejected
Gloria’s claim that a construction of section 4 leaving her free to do as she wished with
all trust assets was consistent with Ralph’s intent “to make sure Gloria was taken care of
and then leave his property to his children and grandchildren. Neither [Gloria nor
Crowe] testified that he intended Gloria to have control over all the property if he died
first nor did they testify that he intended any scenario in which Gloria could control the
assets so as to leave his children and grandchildren with nothing. Section 4 permits such
a scenario, while Section 5 accomplishes the intent they both testified to — assuring that
Gloria was taken care of while leaving assets for his children and grandchildren. Gloria
was taken care of because she retained real property, all cash and bank accounts, all
personal property, and one-half interest in the apartment building and its income . . . .”
              The court also pointed to Gloria’s behavior after Ralph died as evidence of
Ralph’s intent. “All of her actions and communications with the children, grandchildren
and their representatives indicated that she understood Section 5 to be the operative
distribution provisions of the trust. [¶] . . . Only when the family insisted upon an
accounting . . . did Gloria begin to balk. When Ralph’s family members filed their
petition in this case, she then began to assert a position that she was entitled to everything
under Section 4 of the trust.” The court found the statements of Gloria’s attorney, her
agent, contradicted this assertion. In addition, the court found Gloria’s credibility lacking
“in key areas.”




                                              5
              In conclusion, the court found Gloria liable to Ralph’s children and
grandchildren. Gloria was removed as trustee and replaced by Adam. As relevant here,
Gloria was ordered to reconvey the first Hesperia property to Adam as trustee and
prepare and file an accounting, with a hearing on the accounting set for December 18,
2012.
              Gloria filed a notice of appeal on December 17, 2012. No accounting had
been filed and no quitclaim deed had been recorded. At the hearing on December 18, the
court set an order to show cause (OSC) hearing on the accounting and the status of the
deed for January 29, 2013.
              On January 28, 2013, Gloria quitclaimed the first Hesperia property to her
daughter, Debra. On the same day, she also filed a response to the OSC, arguing the
court’s orders were stayed pending appeal. Nonetheless, she offered to “voluntarily file
an accounting” within 60 days. She also suggested that as an alternative to conveying the
first Hesperia property, the court could either stay transfer without bond, appoint a
neutral temporary trustee to hold title, or stay transfer upon reasonable bond. Nowhere in
this filing does she mention that she either had already quitclaimed the property to Debra
or planned to do so on that same day.
              At the hearing on January 29, the court continued the hearing to permit
Adam to respond to Gloria’s filing. At the continued hearing on February 13, the trial
court ordered that by March 6, Gloria either quitclaim the property to Adam as trustee or
file a $90,000 undertaking. She was ordered to file and serve her accounting by March
27. Apparently neither the court nor Adam, at that point, were aware of Gloria’s
quitclaim to Debra.
              On March 6, Adam’s attorney appeared in court. According to the
transcript, Gloria’s attorney had phoned the court and stated he was sick, asking for a
continuance. The court denied the request. The court lifted the stay imposed by the
Probate Code, and stated it would order the clerk of the court to execute the quitclaim

                                             6
deed. Gloria and her counsel also failed to appear at the March 27 hearing on the
accounting. An OSC re sanctions was set. The record does not disclose that Gloria ever
filed an accounting, despite her statement that she would do so.
              According to Adam’s counsel, he learned for the first time of the quitclaim
to Debra on April 26, 2013. On April 30, Adam filed the instant motion to dismiss the
appeal. Gloria opposed, and requested sanctions of $4500 against Adam and his counsel
for filing the motion.
                                               II
                                        DISCUSSION
Statutory Background
              Generally, an appeal stays the operation of the judgment. But an “appeal
shall not stay the operation and effect of the judgment or order if the court requires an
undertaking, as provided in Section 917.9 of the Code of Civil Procedure, and the
undertaking is not given.” (Prob. Code, § 1310, subd. (d).) Code of Civil Procedure
section 917.9 states “(a) The perfecting of an appeal shall not stay enforcement of the
judgment or order . . . if the trial court, in its discretion, requires an undertaking and the
undertaking is not given, in any of the following cases: [¶] (1) Appellant was found to
possess money or other property belonging to respondent. [¶] (2) Appellant is required to
perform an act for respondent’s benefit pursuant to judgment or order under appeal.”
              “‘A trial court’s judgment and orders, all of them, are presumptively valid
and must be obeyed and enforced. [Citation.]’” (Stoltenberg v. Ampton Investments, Inc.
(2013) 215 Cal.App.4th 1225, 1231 (Stoltenberg.)


Disentitlement Doctrine
              “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.
[Citations.] As the Supreme Court observed in MacPherson v. MacPherson [(1939)] 13

                                               7
Cal.2d [271,] 277, ‘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. [Citations.]’ [¶] . . . [An] equitable
rationale underl[ies] the doctrine. ‘“Dismissal is not ‘“a penalty imposed as a punishment
for criminal contempt. It is an exercise of a state court’s inherent power to use its
processes to induce compliance”’ with a presumptively valid order. [Citation.]”
[Citation.]”’” (Stoltenberg, supra, 215 Cal.App.4th at pp. 1229-1230.) “No formal
judgment of contempt is required; an appellate court ‘may dismiss an appeal where there
has been willful disobedience or obstructive tactics. [Citations.] The doctrine ‘is based
upon fundamental equity and is not to be frustrated by technicalities.’ [Citation.]” (Id. at
p. 1230.)
              “The disentitlement doctrine has been applied to a wide range of cases,
including cases in which an appellant is a judgment debtor who has frustrated or
obstructed legitimate efforts to enforce a judgment. (E.g., Stoltenberg, supra, 215
Cal.App.4th 1225 [defendants repeatedly, and in contempt of sister-state orders,
frustrated the enforcement of the Cal. judgment that was the subject of their appeal];
TMS, Inc. v. Aihara (1999) 71 Cal.App.4th 377 [appeal dismissed where, despite trial
court’s order, defendants willfully refused to respond to postjudgment interrogatories];
Stone v. Bach (1978) 80 Cal.App.3d 442 [appellant disobeyed a prejudgment order
directing the deposit of partnership funds collected by him into a trustee account and,
after the judgment, was found in contempt for failing to appear at a judgment debtor
examination].)” (Gwartz v. Weilert (2014) 231 Cal.App.4th 750, 758.)


Gloria’s Conduct and the Doctrine’s Application
              Gloria disobeyed two court orders. The first order relates to the accounting,
which she claims she has now filed, but was not attached to her opposition to the motion
to dismiss. Any argument that she was not required to comply with the court’s order to

                                               8
file an accounting by March 27 is waived due to her agreement that she would file an
accounting within 60 days of January 29, 2013. She cannot now argue that she was not
truly required to follow an order she voluntarily agreed to comply with, therefore
relieving Adam of any necessity to file an argument that she was indeed required to
complete the accounting. She has, simply put, waived this issue by her agreement.
              The second issue is the conveyance of the property. Gloria’s conduct with
respect to this issue is, to put it bluntly, despicable. She was ordered to quitclaim the
property to Adam. She failed to do so. The court set an OSC. On the same day she filed
an opposition to the OSC, she recorded a quitclaim to her daughter at 4:10 in the
afternoon. The opposition does not mention this, instead suggesting a number of options
in lieu of quitclaiming the property to Adam, including staying the transfer, appointing a
neutral trustee, or staying transfer upon a reasonable bond. She was utterly dishonest
with the court.
              Gloria throws various varieties of pasta at the proverbial wall in her
opposition to Adam’s motion to dismiss, in an apparently desperate hope that something
will stick, all the while failing to distinguish her behavior from any case where the court
held the disentitlement doctrine applied. First, she argues the court’s order was “not
lawful” because of the stay, ignoring the court’s decision to lift the stay with respect to
the transfer of the property. She focuses on whether the appeal stayed Adam’s status as
the trustee, but that does not vitiate the court’s order. Her option was either to post the
bond or seek writ relief from the Court of Appeal. Similarly, she argues the amount of
the bond the court set was too high, exceeding the limit for damages under the relevant
statute. Again, her remedy was writ review, not ignoring the order. It was not up to her
to decide to ignore the court’s order under her privately held belief it was invalid. “‘A
trial court’s judgment and orders, all of them, are presumptively valid and must be
obeyed and enforced. [Citation.]’” (Stoltenberg, supra, 215 Cal.App.4th at p. 1231.)



                                              9
              Finally, she argues the “order to convey in this case is the equivalent of a
mandatory injunction.” Ordinarily, mandatory injunctions are stayed pending an appeal,
but she offers no authority for the proposition that rule should apply here. This case falls
under the Probate Code, and under general rules of statutory construction, more specific
statutes prevail over more general ones. (See Stone Street Capital, LLC v. California
State Lottery Com. (2008) 165 Cal.App.4th 109, 119.) Thus, Probate Code section 1310
applies, not the more general rules relating to mandatory injunctions.
              Gloria’s conduct since the judgment has frustrated the attempts of the court
to legitimately effect its own orders. She has missed court dates, failed to keep her own
promises, lacked candor in her communications with the court, and ignored the court’s
orders. She cannot therefore now seek relief from the appellate court. The disentitlement
doctrine applies.
                                             III
                                      DISPOSITION
              The appeal is dismissed. Needless to say, Gloria’s request for sanctions is
denied. Adam is entitled to his costs on appeal.




                                                   MOORE, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



THOMPSON, J.




                                             10
Filed 2/4/15

                           CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           FOURTH APPELLATE DISTRICT

                                    DIVISION THREE

ADAM J. BLUMBERG,

   Plaintiff, Cross-defendant and                  G050428
Respondent,
                                                   (Super. Ct. No. PRODS1000744)
        v.
                                                   ORDER GRANTING REQUEST FOR
GLORIA M. MINTHORNE, as Trustee,                   PUBLICATION; NO CHANGE IN
etc.,                                              JUDGMENT

   Defendant, Cross-complainant and
Appellant.

        Ironridge Global IV, Ltd has requested that our opinion, filed on January 27, 2015,
be certified for publication. It appears that our opinion meets the standards set forth in
California Rules of Court, rule 8.1105(c). The request is GRANTED.
        The opinion is ordered published in the Official Reports.


                                                  MOORE, J.

WE CONCUR:


RYLAARSDAM, ACTING P. J.


THOMPSON, J.
