Filed 8/31/23 Sweeney v. Regional Water Quality Control Bd. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
JOHN SWEENEY,
Plaintiff and Appellant,
A166629
v.
REGIONAL WATER QUALITY (Solano County
CONTROL BOARD, SAN Super. Ct. No. FCS048136)
FRANCISCO BAY REGION,
Defendant and Respondent.
The Regional Water Quality Control Board, San Francisco Bay Region
(the Board) obtained a judgment of more than two million dollars against
John Sweeney and a club he owned, the Point Buckler Club, LLC (the Club).
The trial court later granted the Board’s motion for an order assigning to it
certain assets and income of Sweeney, the Club, and Sweeney’s wife, Jennifer
Lesa Frost, to satisfy the judgment. Sweeney appeals this order, contending
that it is overbroad and that the court lacks jurisdiction over Frost. The
Board asks us to dismiss the appeal due to Sweeney’s ongoing disobedience of
court orders. We decline to dismiss the appeal, and we affirm the order.
1
FACTUAL AND PROCEDURAL BACKGROUND
I. This Dispute
The facts underlying the judgment were set forth in a decision by a
different panel of this division. (Sweeney v. California Regional Water
Quality Control Bd. (2021) 61 Cal.App.5th 1093 (Sweeney I).) Briefly,
Sweeney bought an island in Suisun Marsh that appears to have been
previously used as a managed wetland for duck hunting. He transferred
ownership to the Club, of which he is the managing member, and they began
operating the island as a private recreational area for kiteboarding. Wishing
to restore the site as a duck hunting club, Sweeney carried out unpermitted
development projects on the island, including restoring an exterior levee that
had been breached in multiple places. (Sweeney I, supra, 61 Cal.App.5th at
pp. 1106–1107.)
The San Francisco Bay Conservation and Development Commission
(BCDC) inspected the site in 2014 and observed that the levee construction
work had removed tidal flow to the site’s interior and dried out tidal marsh
areas. Concluding the site was a tidal marsh rather than a managed
wetland, BCDC directed Sweeney to stop work and told him that any work
that could not be retroactively approved through the permit process would
likely need to be removed and the site restored to tidal marsh. (Sweeney I,
supra, 61 Cal.App.5th at pp. 1107–1108.)
Separately, the Board began an enforcement proceeding against
Sweeney and the Club based on violations of the federal Clean Water Act of
1977 (33 U.S.C. § 1251 et seq.) and the California Water Code. It ultimately
issued cleanup and abatement order number R2-2016-0038 (the abatement
order) on August 12, 2016, as well as administrative civil liability order
2
No. R2-2016-0008 (the liability order) assessing $2.8 million in penalties.
(Sweeney I, supra, 61 Cal.App.5th at pp. 1106–1110.)
Sweeney and the Club brought writ proceedings challenging the orders,
and they prevailed in the trial court. On February 18, 2021, in Sweeney I,
this division reversed the judgments and directed the trial court to deny the
petitions for writ of mandate and requests to set aside the abatement and
liability orders. (Sweeney I, supra, 61 Cal.App.5th at pp. 1107, 1151.)
On remand, the trial court entered judgment against Sweeney and the
Club (collectively, the judgment debtors), jointly and severally, and in favor of
the Board in the amount of $2,828,000 on September 3, 2021. As we explain
in another case we decide today, Sweeney v. Regional Water Quality Control
Board (Aug. 30, 2023, No. A163683) (nonpub. opn.) (No. A163683), the trial
court also granted the Board’s request for an injunction requiring Sweeney
and the Club to comply with the abatement order.1
The judgment debtors did not pay the judgment, claiming inability to
do so. The Board unsuccessfully sought discovery, including interrogatories,
document requests, and efforts to meet and confer, to assist them in enforcing
the judgment. We will discuss the Board’s efforts in further detail below.
On June 24, 2022, the Board moved for an order assigning to it the
judgment debtors’ interests in assets, payments, and future earnings and, to
the extent allowed by law, assigning Frost’s future earnings to the Board, and
restraining the judgement debtors from disposing of nonexempt amounts.
1 On our own motion, we take judicial notice of the appellate record in
No. A163683. We grant the Board’s request for judicial notice, filed May 26,
2023, of an order of this court denying Sweeney’s petition for habeas corpus
(Sweeney v. Superior Court (Jan. 20, 2023, A166041)) and filings in a
bankruptcy action filed by the Club in the Eastern District of California,
which we discuss in more detail below.
3
Before the August 24 hearing, the trial court issued a tentative ruling
granting the motion but directing the Board to modify its proposed order to
exclude Sweeney’s homestead exemption. (Code Civ. Proc., § 704.730.)2 At
the hearing, the Board submitted a revised proposed order that excluded any
amounts exempted pursuant to a valid homestead declaration. The trial
court assured Sweeney that the order preserved his right to assert the
homestead exemption and indicated it would adopt the revised proposed
order. The court signed the revised proposed order on August 24, 2022, and
it was filed on September 2 and served on Sweeney a week later (the
September 2 order).
Two portions of the September 2 order are particularly pertinent to this
appeal. First, in paragraph 2, certain rights to payments were assigned to
the Board until the judgment was satisfied or the order amended. Those
rights included a percentage of the judgment debtors’ and Frost’s disposable
earnings; 80 percent of the gross proceeds of the judgment debtors’ sales of
real, personal, or intangible property and of vehicles (including boats); 90
percent of gross proceeds from any other source of money going to the
judgment debtors; and 100 percent of the nonexempt loan value of any
insurance policy. And under paragraph 4, the Solano County Sheriff was
directed to transfer to the Board all amounts and rights “due and in favor of
and for the benefit of Sweeney or the Club, or any of Sweeney’s or the Club’s
parents, assignees, and other persons acting on their behalf.” Those amounts
included assets from the bank accounts and other accounts of the judgment
debtors and of Frost and the sale of a homestead, excluding the amounts
subject to a homestead exemption. Sweeney, the Club, and Frost were
2 All undesignated statutory references are to the Code of Civil
Procedure.
4
restrained from disposing of or spending nonexempt amounts, and they were
ordered to turn over records every month to ensure enforcement of and
compliance with the order.
Apparently in error, the trial court also signed the original proposed
order—which did not specify a homestead exemption—on August 31, 2022,
and filed the order on September 13 (the September 13 order). It does not
appear this order was served on the parties.
Sweeney filed a notice of appeal in his name only on November 10,
2022, indicating he appealed from both the order entered on September 2,
2022, and that entered on September 13, 2022, which he characterized as a
“Revised” order.
Subsequently, on January 18, 2023, the trial court withdrew the
erroneously filed September 13, 2022 order.3
II. Facts Pertinent to Disentitlement
Sweeney’s Noncompliance with Court Orders
In an effort to enforce the liability and abatement orders, the Board
sought discovery to verify Sweeney and the Club’s claims of inability to pay
and to assist in enforcement. We discuss the Board and the trial court’s
subsequent efforts to obtain Sweeney’s compliance with his discovery
obligations in detail in No. A163683, and we will not belabor the facts. For
purposes of this appeal, suffice it to say that Sweeney failed repeatedly to
appear for debtor examinations, even when ordered by the court; that the
trial court issued multiple warrants for his arrest due to his failure to appear;
that the trial court found he did not comply with subpoenas seeking
3 Neither party argues the trial court lacked jurisdiction to withdraw
the order while it was before this court on appeal.
5
documents; that the court found Sweeney in contempt of court; and that it
imposed financial, discovery, and issue sanctions.
Frost’s Noncompliance
While these events were unfolding, the Board sought to compel the
attendance of Frost at a third-party debtor examination on the grounds she
possessed or controlled property in which Sweeney had an interest, including
bank accounts, real property, and personal property, and that she knew of
the whereabouts of Sweeney’s assets and other information to aid in the
enforcement of the judgment. On February 17, 2022, the trial court ordered
her to appear on June 9, 2022. The application and order for Frost’s
appearance was personally served on March 20, 2022. Frost did not appear,
and the trial court continued the matter to July 7 for an examination and
order to show cause why the court should not impose sanctions. Frost did not
appear as ordered on July 7, August 24, September 22, or October 19, 2022,
and a warrant was issued for her arrest. Frost again failed to appear as
ordered on March 22, 2023. On that date the trial court found her in
contempt for willful failure to appear and produce documents on multiple
occasions, and it issued a further bench warrant.
Transactions After Assignment Order
The Club filed for bankruptcy in the Eastern District of California on
March 10, 2023. (In re Point Buckler Club, LLC (Bankr. E.D.Cal, No. 23-bk-
20755).) Filings in that action show the Club paid its counsel $17,762 in
March 2023, $9,500 of which was paid by Sweeney as “a gift to [the Club],”
which he did not expect to be repaid. They also show that the Club sold a
boat to Sweeney’s father-in-law for $10,000 in 2023. Sweeney testified at a
creditor examination that he sold the boat because in his view it was not
6
specifically listed in the turnover and assignment order, notwithstanding
that order’s express assignment of proceeds from the sale of boats.
DISCUSSION
I. Timeliness of Appeal
A threshold issue is whether this appeal is timely. We lack jurisdiction
over an untimely appeal. (In re Marriage of Micalizio (1988) 199 Cal.App.3d
662, 668–669 (Micalizio).)
The Board contends the September 2 order is the operative order and
that the notice of appeal filed on November 10 was untimely because more
than 60 days had elapsed since the order was served. (Cal. Rules of Court,
rule 8.104(a)(1)(B).)
We reject this contention. When a trial court substantially modifies a
judgment, the modified judgment becomes the appealable judgment. (Ellis v.
Ellis (2015) 235 Cal.App.4th 837, 842–843; Avenida San Juan Partnership v.
City of San Clemente (2011) 201 Cal.App.4th 1256, 1267; Neff v. Ernst (1957)
48 Cal.2d 628, 633–634.) A substantial modification is one that materially
affects the parties’ rights. (Ellis, at p. 842.) The September 13 order falls
within this rule: it substantially modified the September 2 order, to
Sweeney’s detriment, by omitting the homestead exemption. The September
13 order was thus the appealable order, at least while in effect.
The next question is the effect of the trial court’s action in withdrawing
the September 13 order. Micalizio is instructive on this point. There,
judgment was entered on April 29, 1986, and an amended judgment entered
on July 1, 1986. On November 21, 1986, the July 1 judgment was declared
void, and the appellant appealed the April 29 judgment on January 5, 1987.
(Micalizio, supra, 199 Cal.App.3d at pp. 667–668.) The court concluded that
the amended judgment, “even though void, superseded the first judgment and
7
remained in effect as the operative judgment, suspending the time to appeal
from the first judgment, until the amended judgment was declared void in a
trial court’s minute order of November 21, 1986. When the right of appeal is
suspended, an appeal may be taken within the time provided by law after the
right is restored.” (Id. at p. 671.) The appellant in Micalizio had no right to
appeal from the original judgment while the amended judgment was in place,
and when that judgment was reinstated it became a new judgment for
purposes of appeal. “[T]he time for filing a notice of appeal from that
judgment began from the date the second judgment was declared void in the
trial court.” (Id. at p. 672.)
Although the order before us is an order after judgment rather than a
judgment, we see no reason not to apply the same rule here. The Board
points out that the September 13 order did not refer to the September 2 order
and does not state that it amends or supersedes it. True enough. But the
competing orders rule on the same motion and relate to the same hearing,
and the September 13 order narrows Sweeney’s rights. In the circumstances,
the later order may properly be seen as an amended order that substantially
modifies the earlier order. It thus became the appealable order, and
Sweeney’s right to appeal the September 2 order was suspended as long as
the September 13 order was in effect. As to the September 2 order, then, the
November 10 notice of appeal was premature rather than untimely. We will
exercise our discretion to treat the notice of appeal as if filed after
reinstatement of the September 2 order. (See In re Teneka W. (1995) 37
Cal.App.4th 721, 727.)
8
II. Disentitlement Doctrine
Before proceeding to the merits of this appeal, we also consider the
Board’s contention that we should dismiss the appeal because of Sweeney’s
repeated defiance of court orders.
Under the disentitlement doctrine, an appellate court has inherent
authority to dismiss an appeal by a party who refuses to obey a trial court
order. (Stoltenberg v. Ampton Investments, Inc. (2013) 215 Cal.App.4th 1225,
1229 (Stoltenberg).) This is a discretionary tool, which allows an appeal to be
dismissed if justified by the balance of equities. (Gwartz v. Weilert (2014) 231
Cal.App.4th 750, 757 (Gwartz).) “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. [Citation.] No formal judgment of
contempt is required under the doctrine of disentitlement. [Citation.] An
appellate court may dismiss an appeal where the appellant has willfully
disobeyed the lower court’s orders or engaged in obstructive tactics.” (Id. at
pp. 757–758, fn. omitted.)
In re Marriage of Hofer (2012) 208 Cal.App.4th 454 is instructive. The
husband in that marital dissolution action had substantial income and assets
from businesses owned by his family. His wife sought discovery regarding his
financial condition, but he did not comply, despite three discovery orders and
sanctions. (Id. at pp. 456–457.) The trial court ordered the husband to pay
$200,000 for the wife’s attorney fees, and he appealed on the ground the trial
court failed to take into account his ability to pay. (Id. at pp. 457–458; Fam.
Code, § 2030.) The appellate court dismissed the appeal, explaining, “Where
a party unlawfully withholds evidence of his income and assets, he will not be
9
heard to complain that an order is not based on the evidence he refuses to
disclose.” (Hofer, at pp. 458–459, 461.)
Multiple cases have also applied the disentitlement doctrine to dismiss
or stay an appeal when a judgment debtor has frustrated or obstructed
efforts to enforce a judgment. (See, e.g., Gwartz, supra, 231 Cal.App.4th at
pp. 752, 758–761 [judgment debtors violated orders enjoining transfer of
assets]; Stoltenberg, supra, 215 Cal.App.4th at pp. 1227, 1232–1234
[appellants defied subpoena for financial information despite contempt
order]; Stone v. Bach (1978) 80 Cal.App.3d 442, 443–444, 448 [appellant twice
found in contempt for disobedience of orders to deposit funds and submit to
debtor examination]; Blumberg v. Minthorne (2015) 233 Cal.App.4th 1384,
1386, 1390–1392 [appellant defied court orders to file accounting and
quitclaim property, missed court dates, and lacked candor in communications
with court]; TMS, Inc. v. Aihara (1999) 71 Cal.App.4th 377 [judgment debtors
willfully disobeyed court order to answer postjudgment interrogatories];
Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, 1682–1683, 1691 [willful
defiance of trial court orders].)
The Board argues that Sweeney’s repeated defiance of court orders
meets these standards, and it asks us to apply the disentitlement doctrine to
dismiss this appeal. We agree that the record shows a dismaying pattern of
disobedience of court orders, and in the context of this case we are
particularly troubled by his “gift” of $9,500 to the Club and by the sale of the
Club’s boat to his father-in-law, in apparent violation of the very order he
challenges in this appeal. But, as we explain in No. A163683, it appears
Sweeney has made recent efforts to comply with trial court orders and the
record provided to us does not show clearly what, if any, discovery obligations
Sweeney is currently avoiding. Although the facts here might well support
10
application of the disentitlement doctrine, at the present juncture we decline
to exercise our discretion to dismiss the action. Instead, we will consider
appellants’ contentions on the merits.
III. Jurisdiction over Frost
Sweeney’s first contention is that the trial court lacked jurisdiction over
Frost because the Board did not serve her with process, but merely served the
assignment motion by mail. As a result, Sweeney argues, the order was void
as to Frost.
It is not clear that Sweeney has standing to raise this issue on Frost’s
behalf, and Frost is not a party to this appeal. (See Stump’s Market, Inc. v.
Plaza de Santa Fe Limited, LLC (2013) 212 Cal.App.4th 882, 892 [case must
present actual controversy between parties]; In re D.S. (2007) 156
Cal.App.4th 671, 674 [“a would-be appellant ‘lacks standing to raise issues
affecting another person’s interests’ ”].) But, as Sweeney points out, he has
an interest in Frost’s property, at least to the extent it is community
property. (See In re Marriage of Hillerman (1980) 109 Cal.App.3d 334, 340
[“The interest of each spouse in the assets of the marital community are
‘present, existing and equal’ during the continuance of the marriage”]; In re
Caitlin B. (2000) 78 Cal.App.4th 1190, 1193 [“ ‘Where the interests of two
parties interweave, either party has standing to litigate issues that have a[n]
impact upon the related interests”].)
Regardless of the outcome of that inquiry, we reject Sweeney’s
argument on the merits. First, Frost was personally served on March 20,
2022 with an order to appear for a debtor examination, requiring her to
“answer concerning property of the judgment debtor in your possession or
control . . .” The statutory scheme governing enforcement of money
judgments (§ 680.010 et seq.) authorizes a judgment creditor to serve
11
personally an order for examination of a third person who has possession or
control of property in which the judgment debtor has an interest (§ 708.120,
subds. (a) & (b)). Service of the order creates a lien on the judgment debtor’s
interest in the property. (§ 708.120, subd. (c).) And, under the same
statutory scheme, community property—including “the community property
interest of the spouse of the judgment debtor”—is subject to enforcement of a
money judgment. (§ 695.020.) We are satisfied the trial court had
jurisdiction to order community property in Frost’s possession or control to be
applied to satisfy the judgment.
Sweeney argues that the order improperly encompasses not only
community property but also Frost’s separate property in excess of the trial
court’s jurisdiction. We disagree, and we note that the Board disavows any
claim over Frost’s separate property under the order. Paragraph 2 of the
order assigns specified percentages of Frost’s future earnings, and Sweeney
makes no contention these earnings are not community property. (Fam.
Code, § 760.) Paragraph 4 authorizes transfers of any amounts “due and in
favor of and for the benefit of Sweeney or the Club”; this directive “includes
but is not limited to” a variety of categories, including “[a]ll assets from . . .
Frost’s” bank accounts and other accounts. Although the “[a]ll assets”
language in isolation may be broad enough to encompass Frost’s separate
property, its placement in paragraph 4 shows it extends only to assets that
are “due and in favor of and for the benefit of Sweeney or the Club,” not to
any separate property in which neither Sweeney nor the Club has an
interest.
We therefore reject Sweeney’s claim that the order exceeded the trial
court’s jurisdiction.
12
IV. Overbreadth
Sweeney’s remaining contention is that the order is overbroad in two
respects.
First, he argues the categories of property assigned to the Board are
unauthorized. Section 708.510, under which the request for an assignment
order was made, sets forth the categories of property that may be assigned.
It provides that a court may assign to the judgment creditor “all or part of a
right to payment due or to become due, whether or not the right is
conditioned on future developments, including but not limited to the following
types of payments: [¶] (1) Wages due from the federal government . . . [¶] (2)
Rents. [¶] (3) Commissions. [¶] (4) Royalties. [¶] (5) Payments due from a
patent or copyright. [¶] (6) Insurance policy loan value.” (§ 708.510, subd. (a),
italics added.)
Sweeney contends paragraph 2 of the order is overbroad because the
property it assigns is not limited to the six enumerated categories. He
contends the categories do not encompass such items as percentages of
disposable and future earnings; sales of real, personal, and intangible
property; and other sources of money. But by the terms of the statute, the six
categories are not exclusive, and Sweeney makes no showing that the
matters encompassed by the order do not constitute “all or part of a right to
payment due or to become due.” (§ 708.510, subd. (a).)
Second, Sweeney challenges paragraph 4 of the order, which directs the
transfer of “[a]ll accounts, accounts receivable, rights to payment of money,
contingent rights, contract rights, deposit and deposit accounts, checking
accounts, certificate of deposits, lines of credit, credit balances due under
ATM cards, savings accounts, trust accounts, and safety deposit boxes, claims
against third parties, monies due from third parties, due and in favor of and
13
for the benefit of Sweeney or the Club,” including assets from the judgment
debtors’ and Frost’s accounts. He also points to paragraph 6, which requires
Sweeney, the Club, and Frost to turn over records each month to ensure
enforcement of the order. Sweeney argues these provisions are overbroad
because they encompass Frost’s separate property. We have already
concluded that, properly read, paragraph 4 does not reach Frost’s separate
property. And Sweeney has not shown that he will suffer any injury through
Frost being required to turn over her records under paragraph 6. (See In re
Caitlin B., supra, 78 Cal.App.4th at p. 1193 [in the absence of intertwined
interests, party may not raise issues on appeal that do not affect his or her
own rights].)
Sweeney also contends paragraph 4 is overbroad because it seeks
turnover of cash or other assets held in the accounts subject to the order,
rather than merely documentary evidence of title. But section 699.040
authorizes the court to order the judgment debtor to transfer to the levying
officer not only “[p]ossession of documentary evidence of title to property of or
a debt owed to the judgment debtor,” but also “[p]ossession of the property
sought to be levied upon if the property is sought to be levied upon by taking
it into custody.” (§ 699.040, subd. (a)(1) & (2).) Sweeney has not shown the
order falls outside this authorization.
In his reply brief, Sweeney argues for the first time that the order
improperly requires Frost, a third party, rather than the judgment debtor, to
transfer the property to the levying officer. (§ 699.040, subd. (a); Office Depot,
Inc. v. Zuccarini (N.D. Cal. 2007) 488 F.Supp.2d 920, 922.) We do not
consider contentions raised for the first time in a reply brief. (Moran v.
Endres (2006) 135 Cal.App.4th 952, 956.)
14
DISPOSITION
The September 2, 2022 order is affirmed. To the extent the withdrawal
of the September 13 order was ineffective for lack of jurisdiction, the
September 13, 2022 is reversed. In the interests of justice, each party is to
bear its own costs on appeal.
TUCHER, P.J.
WE CONCUR:
FUJISAKI, J.
RODRÍGUEZ, J.
15
RODRÍGUEZ, J., Concurring.
I agree with and join in the majority’s disposition and analysis of the
merits. I write separately because I would have applied the doctrine of
appellate disentitlement and dismissed the appeal due to repeated and
ongoing violations of court orders. (Stoltenberg v. Ampton Investments, Inc.
(2013) 215 Cal.App.4th 1225, 1230 [“an appellate court ‘may dismiss an
appeal where there has been willful disobedience or obstructive tactics’ ”].)
“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.” (MacPherson v.
MacPherson (1939) 13 Cal.2d 271, 277.)
I won’t spill a lot of ink laying out the extent of the “ ‘wilful
disobedience or obstructive tactics’ ” at issue here (Alioto Fish Co. v. Alioto
(1994) 27 Cal.App.4th 1669, 1683); the majority ably does so. (Maj. opn. ante,
at pp. 5–7.) Suffice it to say John D. Sweeney repeatedly obstructed
respondent’s discovery efforts and violated numerous court orders to appear
at debtor examinations and hearings. (Id. at pp. 5–6.) The trial court
imposed monetary sanctions, found him in contempt on more than one
occasion, and issued several bench warrants for his arrest. (Ibid.)
Nevertheless — seemingly unbowed and undeterred — Sweeney’s refusal to
comply with court orders apparently continues. Moreover, even if he could
demonstrate some compliance, I would apply the doctrine and dismiss. I do
not believe “seeing the light” at the eleventh hour or halting and occasional
compliance at a time of a party’s choosing precludes appellate disentitlement.
I acknowledge the “right to an appeal must not be lightly forfeited, and
where a doubt exists as to a litigant’s conduct being contumacious or wilful,
an appellate court will tolerate temporarily the acts which were disruptive of
1
the judicial process.” (Tobin v. Casaus (1954) 128 Cal.App.2d 588, 592.) But
this is the hopefully rare case where a party’s persistent and willful
disobedience and obstructive conduct warrants appellate disentitlement.
_________________________
Rodríguez, J.
Sweeney v. Regional Water Quality Control Board, San Francisco Bay Region (A166629)
2