Filed 1/29/15 Koudriavtseva v. Versailles on the Lake CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE

ALLA KOUDRIAVTSEVA,

     Plaintiff and Appellant,                                       G047114

         v.                                                         (Super. Ct. No. 30-2010-00362027)

VERSAILLES ON THE LAKE, LTD. et                                     OPINION
al.,

     Defendants and Respondents.
                   Appeal from a judgment of the Superior Court of Orange County, Robert
D. Monarch, Judge (Retired judge of the Orange Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) and Luis A. Rodriguez, Judge. Motion to
dismiss appeal granted. Appeal dismissed.
                   Shustak & Partners and Jennifer S. Hegemier for Plaintiff and Appellant.
                   Wood, Smith, Henning & Berman, Seymour B. Everett and Tracy M.
Lewis for Defendants and Respondents.
                                             *               *               *
              THE COURT:*
              Defendants filed a motion to dismiss plaintiff’s appeal based on the
disentitlement doctrine. Defendants contend plaintiff’s willful disobedience of a trial
court order precludes her appeal. We agree and dismiss the appeal.
                                     BACKROUND
              Plaintiff Alla Koudriavtseva sued the owner and the property manager of
her apartment complex (defendants), seeking compensation for personal injuries and
property damage allegedly caused by exposure to mold in her apartment. A five-week
jury trial ended in a defense verdict and a judgment against Koudriavtseva for costs
amounting to $111,169.
              On June 28, 2012, plaintiff appealed the judgment, but did not post a bond
to stay enforcement. Defendants commenced postjudgment discovery to enforce the
judgment, obtaining a February 28, 2013, court order to conduct a debtor’s exam on April
25, 2013. On March 5, 2013, plaintiff filed a substitution of attorney, relieving her
counsel of record and substituting herself in propia persona. She provided a residential
address in San Diego for service. Defendants attempted several times during March 2013
to personally serve plaintiff at the San Diego address with notice of the debtor’s exam,
but were never able to serve her.
              In April 2013, defendants served plaintiff by mail with postjudgment
requests for production of documents and special interrogatories. When plaintiff failed to
respond to the written discovery, defendants moved to compel, but the trial court denied
the motion “upon a procedural technicality.” In November 2013, defendants served
plaintiff again by mail with the same written discovery. Plaintiff once more failed to
respond to the discovery. Defendants filed a new motion to compel in March 2014, with
the hearing set for May 1, 2014.
___________________________________________________
*     Before O’Leary, P.J., Bedsworth, J., and Thompson, J.


                                             2
              Plaintiff submitted no written opposition to the motion to compel and did
not appear at the hearing. In an order issued May 6, 2014, the trial court granted the
motion to compel, ordering plaintiff to provide written discovery responses within 15
days of the order and to pay monetary sanctions of $1,124 to defendants.
              On June 6, 2014, defendants served plaintiff with notice of entry of the
May 6 order to respond to the written discovery and to pay sanctions within 15 days.
Two months later, plaintiff still had not complied with any part of the May 6 order. On
September 10, 2014, defendants filed the instant motion to dismiss plaintiff’s appeal
pursuant to the disentitlement doctrine (explained infra). Defendants argued in the
motion plaintiff’s “obstructive tactics and willful violation of a Superior Court order”
justify dismissal of her appeal.
              Appellate pro bono counsel for plaintiff filed an opposition to the motion to
dismiss the appeal, and a sur-reply. These documents argued plaintiff’s failure to comply
with the trial court’s May 6 order reflected not willful disobedience, but rather plaintiff’s
inability to function due to psychological problems, emotional fragility and poverty.
Plaintiff’s counsel stated in a declaration she and plaintiff had been working together
“over the last week” to respond to the written discovery. Counsel asked this court for a
few weeks to complete the task.
              On November 6, 2014, this court issued an order continuing consideration
of the motion for one month to allow plaintiff “time to comply with the trial court order”
of May 6 and thereby avoid dismissal of the appeal. The order directed the parties to
report to this court by letter filed no later than December 4, 2014, whether plaintiff had
complied with the May 6 order.
              Defendants timely reported plaintiff did not comply with the trial court
order by the December 4 deadline. Plaintiff filed no report.




                                              3
                                        DISCUSSION
A. 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
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.]’ [¶] . . . No formal
judgment of contempt is required; an appellate court ‘may dismiss an appeal where there
has been willful disobedience or obstructive tactics. [Citations.]’” (Stoltenberg v.
Ampton Investments (2013) 215 Cal.App.4th 1225, 1229-1230 (Stoltenberg).)
              Courts have applied the disentitlement doctrine to a wide range of cases,
including cases, like the instant one, where an appellant is a judgment debtor who has
frustrated or obstructed legitimate efforts to enforce a judgment. (See, e.g., Stoltenberg,
supra, 215 Cal.App.4th 1225 [defendants repeatedly, and in contempt of sister-state
orders, frustrated enforcement of California 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].)

B. Application of Disentitlement Doctrine Here
       Plaintiff has repeatedly frustrated defendants’ legitimate efforts to enforce their
judgment for costs. When, postjudgment, plaintiff filed a substitution of counsel and
began representing herself in propia persona, defendants were unable to serve her with
notice of the debtors exam at the address she provided, despite repeated efforts at service.
Plaintiff also refused to respond to the written discovery requests defendants served in
April 2013 and then again in November 2013.


                                               4
       Not only did plaintiff thwart defendant’s efforts to enforce the judgment, she flatly
disobeyed the trial court’s May 6, 2014 order to provide written discovery responses and
to pay sanctions. She also ignored this court’s November 6, 2014 order to file by
December 4 a letter reporting whether she had complied with the May 6 order.
       While this court has sympathy for the personal difficulties plaintiff has
experienced postjudgment, her conduct “‘demonstrates a deliberate effort to achieve a
stay of execution of the money judgment against [her] without complying with legal
procedures.’ [Citation.] Such willful disobedience and obstruction of presumptively
valid orders can, and in this case does, provide a basis upon which to dismiss the appeal
under the disentitlement doctrine.” (Stoltenberg, supra, 215 Cal.App.4th at p. 1232.)
                                      DISPOSITION
              The appeal is dismissed. In the interests of justice, each side shall bear its
own costs on appeal.
.




                                              5
