Filed 11/3/14 (pub. order 11/18/14; see end of opn.)




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                   FIFTH APPELLATE DISTRICT


BRIAN L. GWARTZ et al.,
                                                                           F066581
    Plaintiffs and Respondents,
                                                                 (Super. Ct. No. 09CECG01032)
    v.

MICHAEL WEILERT et al.,                                                  OPINION
    Defendants and Appellants.



         APPEAL from a judgment of the Superior Court of Fresno County. Kristi C.
Kapetan, Judge.
         Wild, Carter & Tipton and Steven E. Paganetti for Defendants and Appellants.
         Law Offices of Daniel B. Spitzer, Daniel B. Spitzer; and Cheryl A. Skigin for
Plaintiffs and Respondents.
                                                       -ooOoo-
       This appeal follows a highly publicized jury trial of a fraud claim arising from a
$2.3 million sale of 15 acres of land that included a residence, riding arena and associated
buildings, located on South Kings Canyon Road, Parlier, California. The plaintiffs who
purchased the property obtained a judgment for $1,553,800, which included $850,000 in
punitive damages.
       Plaintiffs were unsuccessful in attempting to collect the judgment and moved for
various postjudgment orders. The trial court granted these motions and the orders issued
have been referred to as the freeze order, the turnover order, the assignment order and the
charging order. Among other things, the orders enjoined defendants and their agents
from selling, spending, transferring or dissipating any of their assets, which included
money in any deposit account. When plaintiffs learned that defendants had violated the
orders, they filed a motion to dismiss the appeal under the doctrine of disentitlement.
Plaintiffs’ moving papers identified 47 different transfers of money that violated the trial
court’s orders.
       The motion to dismiss presents a threshold question that must be decided before
reaching the merits of the appeal. Based on our review of the motion and opposition
papers, including a declaration from defendant Michael Weilert that did not deny any of
the 47 transactions took place, and argument by counsel, we conclude the balance of the
equitable considerations relevant to the disentitlement doctrine favor dismissal. It would
be unjust to allow defendants to seek the benefits of an appeal while willfully disobeying
the trial court’s valid orders and frustrating plaintiffs’ legitimate efforts to enforce the
judgment.
       We therefore grant plaintiffs’ motion to dismiss the appeal.
                              FACTS AND PROCEEDINGS
The Parties
       The plaintiffs in this lawsuit are Brian L. Gwartz and his wife, Cheryl A. Skigin,
cotrustees of the Pendragon Trust.


                                               2.
       Michael Weilert, M.D. (Weilert) and his wife, Genevieve Weilert, who also is
known as Genevieve de Montremare (Genevieve),1 are the defendants in this action. The
following entities are owned or controlled by Weilert and Genevieve.
Defendants’ Related Entities
       The M&G Weilert Family, L.P. (Weilert FLP) is a limited partnership owned 10
percent by Weilert, 40 percent by Genevieve, and 50 percent by the Madonna della Pieta
Trust, which is a living trust established in February 2009 with Genevieve as its sole
trustee.2 It appears that the Weilert FLP has become the owner of many of the assets of
Weilert and Genevieve including the next three entities discussed. In addition,
defendants transferred investment real estate located in Clovis and Arroyo Grande to the
Weilert FLP after the judgment was entered, but before the motions for a new trial and
judgment notwithstanding the verdict were denied.
       Michael Weilert, M.D., Inc. (MD Inc.), is a California corporation that has been in
the business of providing medical service since 1981. Weilert once was the sole
shareholder of MD Inc. Now, Weilert FLP is the sole shareholder of MD Inc. Weilert
remains an employee of, and performs all the services associated with, the corporation.
Those services are provided to Pathology Associates, the business under which Weilert
conducts his medical practice as a pathologist.
       Pathology Associates is a California general partnership that provides pathology
services to physicians and hospitals. Weilert FLP is one of the general partners and holds

1      In responses to form interrogatories, Genevieve stated her name was (1)
Genevieve Marie Anna Sanders from birth in 1962 until she was married in February
1988, (2) Genevieve Marie Anna Hoffman from February 1988 until 1991, when it was
legally changed to Genevieve Marie de Montremare. Genevieve verified the responses
on May 7, 2010, using the name Genevieve Weilert. During a June 2010 independent
medical examination conducted to determine if Genevieve was capable of being deposed,
she stated she was Genevieve Sanders, not Genevieve Weilert.
2      Weilert testified that the property held within the trust was Genevieve’s sole and
separate property.


                                            3.
a 10 percent ownership interest in Pathology Associates. Also, Weilert is the managing
partner of Pathology Associates and, compared to the other partners, receives an
additional draw of $2,000 per month for acting in that capacity. At one time, MD Inc.
received partnership draws from the Pathology Associates.
         Sierra Pathology Building, LLC is a California limited liability company that owns
the building occupied by Pathology Associates. Weilert FLP owns a one-ninth interest in
Sierra Pathology Building, LLC.
         Free Market Medical Systems, LLC (Free Market) is a California limited liability
company that was formed shortly before the trial in this case. On April 5, 2013, Weilert
testified (1) Weilert FLP had put $150,000 into the company; (2) its purpose was to
develop software products for use in medical offices; (3) its other member was Patricia
Tam Ellis, a person familiar with software; (4) no application had been made for a
copyright, design patent or other form of intellectual property; and (5) no written business
plan existed. On May 3, 2013, Weilert testified he had made transfers of $100,000 and
$75,000 into Free Market’s bank account in anticipation of future business expense
because he expected “to start coding on projects” and would need to pay the programmer.
At the time, Weilert was the sole signatory on Free Market’s bank account with Wells
Fargo.
         Belle Reve, LLC is a California limited liability company owned by Weilert and
Genevieve.
         After the judgment was entered in this case in October 2012, Weilert and
Genevieve, along with MD Inc. and Weilert FLP filed petitions in bankruptcy court.3



3     On September 9, 2013, the bankruptcy case for MD Inc. was filed and assigned
case No. 13-16062. On September 13, 2013, defendants filed In re Michael Weilert and
Genevieve de Montremare (Bankr. E.D.Cal, Case No. 13-16155), a proceeding under
Chapter 7 (liquidation) of the Bankruptcy Code as well as the bankruptcy case for Weilert
FLP, which was assigned case No. 13-16156. [Fn. cont.]


                                             4.
Those bankruptcy proceedings are mentioned only briefly because (1) the transfers
examined here occurred before the petitions were filed and (2) any bankruptcy stay that
might have barred this court from moving forward in this matter has been lifted. (See pt.
I.B.3, post.)
The Underlying Fraudulent Real Estate Sale
       In March 2008, plaintiffs agreed to purchase approximately 15 acres of land from
Weilert for $2.3 million. The property included a residence, a riding arena and associated
buildings. The documents for the sale included (1) a California residential purchase
agreement and joint escrow instructions, (2) a real estate transfer disclosure statement, (3)
a buyer’s inspection advisory, and (4) a supplemental statutory and contractual
disclosures. All of these documents were prepared using preprinted forms published by
the California Association of Realtors. In the real estate transfer disclosure statement,
Weilert represented that he was not aware of any room additions, structural modification,
or other alterations or repairs (1) made without the necessary permits (except for the pool
house) or (2) not in compliance with building codes.
       Plaintiffs alleged Weilert made misrepresentations regarding the property,
including that (1) the construction of the residence had cost close to $2 million, (2)
marble lions imported from Genevieve’s family in France came with the house, (3) the
property had a private beach, and (4) the property had been permitted for a boat dock.
Plaintiffs also alleged the parties agreed that Weilert would complete a covered riding
arena, barn and irrigation system prior to the close of escrow.
The Lawsuit
       In March 2009, plaintiffs filed a complaint against Weilert and Genevieve,
alleging fraud and other causes of action arising from the real estate transaction.


       Weilert FLP had filed its first bankruptcy petition (case No. 13-14036) on June 7,
2013. On July 18, 2013, the bankruptcy trustee filed a motion to dismiss the case, which
the bankruptcy court granted in an order dated August 13, 2013.


                                             5.
       The trial began in September 2012. The first phase was a bench trial for the
purpose of determining whether the purchase agreement was an integrated document.
Defendants hoped to show the purchase agreement was integrated and its “as-is” clause
barred plaintiffs’ claims they made misrepresentations. The trial court rejected
defendants’ position, ruling the purchase agreement was not integrated and parol
evidence could be presented to the jury.
       During the second phase of the trial, a jury was presented with plaintiffs’ causes of
action for breach of contract, fraud by intentional misrepresentation, fraud by
concealment, negligent misrepresentation, and a common count for work, labor and
materials provided by plaintiffs to defendants. The jury decided these causes of action in
favor of plaintiffs and also awarded plaintiffs $850,000 in punitive damages.
The Judgment and Appeal
       On October 30, 2012, the trial court filed a judgment on jury verdict that awarded
plaintiffs $1,553,800, plus attorney fees and costs in an amount to be determined.
       Defendants subsequently filed a motion for a new trial and a motion for judgment
notwithstanding the verdict. The trial court denied these motions.
       On December 28, 2012, defendants filed a notice of appeal from the judgment and
the trial court’s order denying their motion for new trial and motion for judgment
notwithstanding the verdict.
       Defendants did not post a bond to stay the enforcement of the judgment as
provided in Code of Civil Procedure section 917.1.
The Postjudgment Orders
       On April 5, 2013, Weilert testified during a judgment debtor examination at the
superior court that Weilert FLP had a bank account with Wells Fargo Bank with
approximately $225,000. Plaintiffs requested the trial court for an order directing the
turnover of the funds. The court directed that the matter be put on calendar and a written
ex parte application be filed. The court then stated, “I again repeat my cautionary


                                             6.
comment. I think it behooves the judgment debtors not to change the status quo for the
next, whatever, two business days it may take to have the matter heard on the merits.”
       Despite this admonition, sometime between April 5, 2013, and the continued
judgment debtor examination on May 3, 2013, Weilert made transfers of $75,000 and
$100,000 to the bank account of Free Market.
       On May 3, 2013, a hearing was held on the written application for a turnover
order. The trial court continued the hearing on the turnover application and issued an
order prohibiting the transfer or concealment of assets. The written form of the May 3,
2013, order4 was filed on May 6, 2013, and provided that

       “(a) the judgment debtors, Weilert and Genevieve, individually or as
       agents, employees, officers or other representative capacity for (b) the
       Weilert FLP, (c) Free Market, (d) Belle Reve, (e) MD Inc., and (f) the
       [Madonna della Pieta] Trust, and their respective agents, representatives,
       employees and attorneys, and all others acting in concert with them, are
       hereby restrained and enjoined from selling, withdrawing, spending,
       transferring, encumbering, dissipating, or assigning any assets (including
       without limitation money on deposit in any deposit account) of the
       judgment debtors, Weilert FLP, Free Market, Belle Reve, MD Inc. and the
       [Madonna della Pieta] Trust.”
       The order continued the hearing on application for a turnover order until May 16,
2013, and stated the freeze order would remain in effect until that hearing.
       On May 16, 2013, the trial court reinstated the freeze order. The court also
granted plaintiffs’ motion for a turnover order and their motion for an assignment order.
The court took plaintiffs’ motion for a charging order under submission and filed a
written charging order on May 28, 2013.



4      The order was labeled “ORDER FOR TEMPORARY RESTRAINING ORDER,
FOR CONTINUED HEARING ON EX PARTE APPLICATION FOR TURNOVER
ORDER AND FOR CONTINUED JUDGMENT DEBTOR EXAMINATION OF
MICHAEL WEILERT.” For purposes of this opinion, it is referred to as the “freeze
order.”


                                             7.
       The turnover order directed defendants and their affiliated entities to deliver to the
levying officer (1) vehicles and their documents of title; (2) horses and their documents
of title; (3) documents of title for real estate in Fresno and San Luis Obispo Counties; and
(4) all certificated and uncertificated securities representing interests in MD Inc., Belle
Reve, LLC, Weilert FLP, Sierra Pathology Building, LLC, and Free Market.
       The assignment order stated that all payments due the defendants or the entities
they owned or controlled (to the extent necessary to satisfy the judgment in full) were
assigned to the plaintiffs. The order specifically mentioned (1) rental income from three
parcels of real property; (2) payments, distributions or partnership draws due to MD Inc.
from Pathology Associates; (3) payments due Belle Reve, LLC from any source; and (4)
payments due to Weilert or his affiliated entities from Sierra Pathology Building, LLC.
       The charging order stated that the interests of the defendants in the Weilert FLP;
Pathology Associates; Belle Reve, LLC; Sierra Pathology Building, LLC; and MD Inc.
were charged with the unpaid balance due under the October 30, 2012, judgment.
The Motion to Dismiss
       On December 23, 2013, plaintiffs filed their motion to dismiss this appeal. The
motion listed 47 transactions by defendants and their affiliated entities that violated the
trial court’s May 6, 2013, order prohibiting transfers of funds in a deposit account.
       Eventually, after a specific order from this court, defendants filed an opposition to
the motion to dismiss that addressed whether dismissal was appropriate under the
doctrine of disentitlement.
                                       DISCUSSION
       Plaintiffs’ motion to dismiss the appeal pursuant to California’s doctrine of
disentitlement presents this court with a threshold question that, if decided in plaintiffs’
favor, would mean the merits of defendants’ appeal from the judgment are not reached.
Because the motion to dismiss will be granted, this opinion sets forth our reasons for




                                              8.
dismissing the appeal and does not reach the merits of the appeal. (See Cal. Const., art.
VI, § 14 [written appellate decisions].)
I.     DISENTITLEMENT DOCTRINE
       A.     Legal Principles
       An appellate court has the 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 (Stoltenberg).) This doctrine of disentitlement is not
jurisdictional, but is a discretionary tool that may be used to dismiss an appeal when the
balance of the equitable concerns makes dismissal an appropriate sanction. (Id. at p.
1230.) The rationale underlying the doctrine is that a party to an action cannot seek the
aid and assistance of an appellate court while standing in an attitude of contempt to the
legal orders and processes of the courts of this state.5 (Ibid.) No formal judgment of
contempt is required under the doctrine of disentitlement. (Ibid.) An appellate court may
dismiss an appeal where the appellant has willfully disobeyed the lower court’s orders or
engaged in obstructive tactics. (Ibid.)
       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 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]; Stone v. Bach
(1978) 80 Cal.App.3d 442 [appellant disobeyed a prejudgment order directing the deposit


5      This rationale appears to be derived from the fundamental principle of equity
jurisprudence that one who seeks equity must do equity. (Dool v. First National Bank
(1929) 207 Cal. 347, 351.) A similar rationale underlies the equitable defense of unclean
hands. (Polanski v. Superior Court (2009) 180 Cal.App.4th 507, 532.)


                                             9.
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].)
       B.     Application of Doctrine to These Facts
              1.      Transfers Identified in Motion to Dismiss

       All 47 transactions identified in plaintiffs’ motion are not discussed here because it
will suffice to examine a portion of the transfers involving Weilert himself. These
transfers adequately demonstrate that Weilert violated the trial court’s freeze order.
       Specifically, we will consider 13 transfers totaling $285,000 that were made from
Weilert’s bank account to (1) MD Inc., (2) Belle Reve, (3) Free Market, and (4)
American Express between June 3, 2013, and September 13, 2013.
       The five transfers made by Weilert to MD Inc. totaled $135,0006 and were made
in the following amounts and on the following dates:
              Amount               Date
              $15,000              June 17, 2013
              $ 5,000              July 19, 2013
              $10,000              August 2, 2013
              $50,000              August 6, 2013
              $55,000              August 8, 2013
       Weilert also made four transfers totaling $3,000 to Belle Reve:
              Amount               Date
              $ 600                July 1, 2013
              $ 600                July 22, 2013
              $ 800                August 6, 2013


6      We recognize that the 47 transactions listed in the motion to dismiss include 14
transfers from MD Inc. to Weilert totaling $43,100. If these transfers are offset against
those made by Weilert to MD Inc., the net amount transferred from Weilert to MD Inc. is
$91,900.


                                            10.
               $ 1,000              August 12, 2013
       On June 20, 2013, Weilert transferred $120,000 to Free Market.
       From September 9 through 12, 2013, Weilert made three payments to American
Express totaling $27,000.
       Plaintiffs learned of these transactions when defendants filed schedules and
statements of financial affairs in the bankruptcy cases involving themselves, MD Inc. and
Weilert FLP.
               2.    Defendants’ Oppositions

       On January 7, 2014, defendants filed an opposition to plaintiffs’ motion to dismiss
the appeal that did not address the disentitlement doctrine, but argued a motion to dismiss
based on a failure to file an appellate brief was premature.
       On February 6, 2014, defendants filed a supplemental opposition to the motion to
dismiss and requested sanctions against plaintiffs on the ground that the motion was
frivolous. Again, defendants asserted a motion to dismiss for failure to file an appellant’s
opening brief was premature under California Rules of Court, rule 8.220(a).
       On March 7, 2014, this court filed an order stating that defendants had failed to
respond to the merits of the motion to dismiss and granted them 10 days leave to file such
a response.
       Defendants then filed an opposition that addressed the merits and was supported
by a declaration of Weilert and a motion for judicial notice of various documents.
Defendants’ opposition asserted (1) the motion to dismiss was subject to a bankruptcy
stay and (2) the facts did not support equitable relief under the disentitlement doctrine.
               3.    Bankruptcy Stay and Its Effect on the Appeal

       A few days after receiving this opposition from defendants, this court issued an
order directing plaintiffs to respond to defendants’ claim that a bankruptcy stay was in
effect. Plaintiffs’ reply stated the bankruptcy court had entered an order lifting the
automatic stay as to this appeal in its entirety. Defendants filed a supplemental

                                             11.
opposition stating this appeal may proceed by virtue of the bankruptcy court’s order
lifting the stay, but that order did not allow plaintiffs to pursue their motion to dismiss.
        The bankruptcy court order referenced by the parties was signed by United States
Bankruptcy Judge W. Richard Lee on October 10, 2013. The order states in relevant
part:

        “1. The Stay is lifted to permit the parties to proceed to a final
        determination of claims from the Court of Appeals but not to enforce any
        judgment against the debtor or bankruptcy estate. Any affirmation of the
        judgment obtained shall be brought back to this Court for the proper
        treatment of claims under the Bankruptcy Code.”
        We interpret this order to mean that this court is not barred from addressing any
issues necessary to resolve the appeal, including those issues presented by plaintiffs’
motion to dismiss under the disentitlement doctrine. Therefore, we explicitly reject
defendants’ interpretation that the bankruptcy stay was not lifted as to the motion to
dismiss.
               4.       Weilert’s Violations of the Freeze Order

        Weilert’s declaration in opposition to the motion to dismiss does not deny that any
of the 47 transactions listed in the motion took place. Indeed, Weilert effectively admits
the transfers occurred in the following statement:

        “[Plaintiffs] are substantially and materially wrong in the monetary amount
        they allege at page 8 of their motion seeking to dismiss my appeal.
        [Plaintiffs] reference an amount of $812,690.00. However, the actual
        amount is less than 1/3 of this amount. Without getting into the details of
        the various transfers, [plaintiffs] in effect re-calculated money twice or
        three times when the amount is the same money being transferred from one
        account to another.”
        In addition, Weilert’s declaration included the following assertion: “The actions I
took at all times relevant were done in good faith.” He offers no explanation for how he
could have been acting in good faith when transferring money in violation of the trial
court’s freeze order.



                                              12.
       Based on our review of the evidence presented to support the motion to dismiss
and the opposition papers (including the Weilert declaration), we conclude that Weilert
willfully violated the trial court’s freeze order on many occasions by transferring money.
       Initially, we note defendants did not address the violations raised in the motion to
dismiss in their first two sets of opposition papers. They addressed the violations and the
application of the disentitlement doctrine only after this court issued an order directing
them to do so.
       When defendants addressed merits of the motion to dismiss, they did not deny the
transfers listed in the motion occurred and did not explain how those transfers might have
been permissible under the trial court’s orders. Instead, defendants argued the amount of
money that had been moved was only one-third of the total identified in the motion to
dismiss. This approach, for all practical purposes, admits money was transferred in
violation of the freeze order.
       Furthermore, Weilert’s assertion that his actions were done in good faith is
unconvincing because defendants have offered no explanation for (1) how the transfers
could have been made without violating the trial court’s orders or (2) how he acted with a
pure heart and a head so empty that he did not realize he was violating the orders.7 In
addition, Weilert fails to explain his inaction—namely, his failure to comply with the
turnover order and the assignment order. For example, Weilert’s declaration does not



7      We note that in some contexts, a claim of subjective good faith is referred to as the
“pure heart, empty head” defense. (Jones, “Stop, Think & Investigate”: Should
California Adopt Federal Rule 11 (1993) 22 Sw.U. L.Rev. 337 [1983 amendment the
federal rule regarding sanctions eliminated the pure heart, empty head defense]; Maute,
Sporting Theory of Justice: Taming Adversarial Zeal with Logical Sanctions Doctrine
(1987) 20 Conn. L.Rev. 7, 18; see United States National Bank of Oregon v. Boge (1990)
311 Or. 550, 565 [814 P.2d 1082, 1090] [all that subjective good faith requires is a pure
heart and empty head]; Thornton v. Wahl (7th Cir. 1986) 787 F.2d 1151, 1154 [Judge
Easterbrook discusses sanctions under Fed. Rules Civ. Proc., rule 11, 28 U.S.C.A., for
counsel’s wildly untrue representations about state law].)


                                             13.
dispute the facts set forth in the declaration of Daniel Spitzer regarding the service of the
orders upon him.
       The record shows that defendants are seeking the benefits of an appeal while
willfully disobeying the trial court’s valid orders and thereby frustrating defendants’
legitimate efforts to enforce the judgment. Therefore, we conclude the equitable
considerations relevant to the disentitlement doctrine favor dismissal of this appeal.
II.    APPEAL IN CASE NO. F067958
       Weilert and Genevieve also filed an appeal from the freeze, turnover, assignment
and charging orders entered by the trial court after the judgment. That appeal has been
assigned case No. F067958.
       On May 13, 2014, plaintiffs filed a motion to dismiss the second appeal on the
same grounds asserted in their motion to dismiss the first appeal.
       We will grant that motion to dismiss in a separate order based on the rationale set
forth in this opinion.
                                      DISPOSITION
       The motion to dismiss the defendants’ appeal is granted. Plaintiffs shall recover
their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
       Defendants’ request for sanctions filed on February 6, 2014, is denied.


                                                              ________________________
                                                                             Franson, J.

WE CONCUR:

_____________________
Kane, Acting P.J.

____________________
Peña, J.




                                             14.
Filed 11/18/14



                                           IN THE

                 Court of Appeal of the State of California
                                    IN AND FOR THE

                              Fifth Appellate District



BRIAN L. GWARTZ et al.,
                                                                F066581
   Plaintiffs and Respondents,
                                                    (Super. Ct. No. 09CECG01032)
   v.
                                               ORDER GRANTING REQUEST FOR
MICHAEL WEILERT et al.,                               PUBLICATION

   Defendants and Appellants.


       As the nonpublished opinion filed on November 3, 2014, in the above entitled
matter hereby meets the standards for publication specified in the California Rules of
Court, rule 8.1105(c), it is ordered that the opinion be certified for publication in the
Official Reports.


                                                        _______________________
                                                                       Franson, J.


WE CONCUR:

_______________________
Kane, Acting P.J.

_______________________
Peña, J.
2.
