Filed 6/4/15 Kempton v. Cooper CA2/1 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION ONE 

KIMBERLY KEMPTON & CHARLES 

KINNEY, 

 Plaintiffs and Appellants, 

 v. 

CAROLYN COOPER et al., 

 Defendants and Respondents; 

and Related Cross-Action. 

 B255794 

 (Los Angeles County 

 Super. Ct. No. BC354136) 

 APPEAL from an order of the Los Angeles Superior Court granting award of 

attorney fees and costs. Barbara M. Scheper, Judge. Affirmed. 

 Charles G. Kinney for Appellant Judith Kempton as personal representative for the 

Estate of Kimberly Kempton. 

 Amezcua-Moll & Associates, Rosemary Amezcua-Moll, for Appellant Charles 

Kinney individually and for Judith Kempton as personal representative of the Estate of 

Kimberly Kempton; Nina Ringgold for Appellant Charles Kinney as Executor for the 

Estate of Harriet Kinney. 

 Marcus Watanabe & Dave, David M. Marcus, Eric Chomsky for Respondent 

Michele R. Clark. 

______________________ 
2

 Appeal from a post-judgment award for attorneys’ fees and costs incurred 

attempting to collect an earlier award of attorneys’ fees and costs. Affirmed. 

Background1

 On April 17, 2014, a Notice of Appeal was filed by Charles G. Kinney (Kinney), 

as attorney for nonparty appellants Judith Kempton as personal representative of the 

Estate of Kimberly Kempton (Kempton), and “non-party Charles Kinney as Executor for 

the Estate of Harriet Kinney.” A second attorney of record in this appeal is Nina 

Ringgold, representing appellant Charles Kinney individually. The appeal challenges the 

March 5, 2014 order of the Los Angeles Superior Court, Barbara M. Scheper, Judge, 

awarding $12,137.50 in favor of respondent Michele Clark, against Kinney individually, 

 1

 This court has granted respondent’s unopposed requests for judicial notice of 

various published and unpublished decisions stemming from this and related cases. 

(Evid. Code, §§ 452, subd. (d), 459, subd. (a); Taliaferro v. Davis (1963) 216 Cal.App.2d 

398, 401.) We take judicial notice of: (1) Order of the United States Bankruptcy Court 

filed October 18, 2012, abandoning to debtor Clark the estate’s right to recover attorneys’ 

fees from Kinney and Kempton; (2) Order of the United States Court of Appeals for the 

Ninth Circuit dated February 25, 2013, denying Kinney’s emergency motion to stay the 

District Court’s December 19, 2012 order remanding the removed action to the state 

court; (3) Order of the United States Bankruptcy Court filed February 27, 2013, denying 

Kinney’s emergency motion for stay; (4) Superior Court of Alameda document filed 

November 21, 2011, entitled Duties and Liabilities of Personal Representative; (5) 

Decision of Division Two of this court in Kempton v. Clark (Sept. 25, 2014, B248713) 

[nonpub. opn.], affirming award against Kempton for post-judgment attorney fees of 

$167,678.50, with directions to designate Kinney as a judgment debtor; (6) Order 

dismissing appeal in Kinney v. Clark (Dec. 31, 2014, B253093), from an order denying 

claim of exemption and allowing levy on funds to pay December 15, 2008 award of 

attorney fees and costs in favor of Clark and against Kinney. On our own motion we note 

the published opinion in In re Kinney (2011) 201 Cal.App.4th 951, in which Division 

Two of this court entered a prefiling order against Kinney, and declared that “Attorney 

Kinney is using Kempton as his proxy or puppet in order to continue his career as a 

vexatious litigant.” (Id. at pp. 953-954, 960-961.) We disregard, as unsupported, the 

appellants’ representations at oral argument, that some or all of these orders are not yet 

final and are subject to review by this or other courts. 

 We also disregard the parties’ purported incorporations by reference of their briefs 

and arguments in other appeals. (Soukup v. Law Offices of Herbert Hafif (2006) 39 

Cal.4th 260, 294; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 854.) 
3

for fees and costs incurred attempting to collect a December 15, 2008 fee award against 

both Kinney and Kempton (the March 5, 2014 order). 

 The attenuated history of proceedings that give rise to this appeal began in 2006. 

From earlier published and unpublished decisions in this and related cases, we glean this 

abbreviated summary: 

 In 2006, Kinney and Kimberly Kempton purchased residential property in the 

Silver Lake neighborhood of Los Angeles from Clark. Soon afterward Kinney and 

Kempton instigated actions and cross-actions against their neighbors, the seller, the 

seller’s real estate brokers, and the City of Los Angeles (among others), arising from 

claims of encroachment, nuisance, trespass, unmerchantability, and fraud. (Kempton v. 

City of Los Angeles, BC413357; Kempton v. City of Los Angeles, BC363837; Kempton v. 

Cooper, BC354136; Kempton v. Harris, BC354138; Kempton v. Harris, BC363261; 

Kempton v. Clark, BC374938.) (In re Kinney, supra, 201 Cal.App.4th at p. 954, fn. 3.) 

 The superior court in case No. BC354136 dismissed Kinney’s and Kempton’s 

unmerchantable-title cross-action against Clark, the seller, on demurer without leave to 

amend. The judgment was affirmed on appeal. (Kempton v. Clark (June 30, 2008, 

B200893) [nonpub. opn.].) An award of attorneys’ fees to Clark was affirmed on appeal 

by this court. (Kempton v. Clark (Feb. 3, 2010, B213386) [nonpub. opn.].)2

 

 2

 The Court of Appeal affirmed the trial court’s rulings and judgment in favor of 

the neighbor, Cooper, and against Kinney and Kempton. (Kempton v. Cooper (June 4, 

2009, B208943) [nonpub. opn.].) 

 In Kinney’s and Kempton’s action for encroachment against the neighbor, Cooper, 

the trial court’s final judgment granted title to the disputed strip to Cooper and enjoined 

appellants from interfering with her use of it. The judgment was affirmed on appeal. 

(Kempton v. Cooper (June 4, 2009, B229912) [nonpub. opn.].) Kinney and Kempton 

also appealed, unsuccessfully, from a $37,045 award of attorneys’ fees and costs in 

Cooper’s favor. (Kempton v. Cooper (Aug. 21, 2009, B210114) [nonpub. opn.].) 

 In Kinney’s and Kempton’s action against Clark’s brokers, the trial court entered 

summary judgment in the brokers’ favor, and this court affirmed. (Kempton v. Prudential 

California Realty (Nov. 3, 2011, B227418) [nonpub. opn.].) In a separate appeal, the 

trial court’s award of costs to the brokers was affirmed, and the court imposed sanctions 

against Kinney and Kempton for a frivolous appeal. (Kempton v. Prudential California 

Realty (Nov. 16, 2011, B231162) [nonpub. opn.].) 
4

 Clark declared bankruptcy in July 2010, due in part to expenses incurred 

defending against Kinney’s claims. (Kempton v. Clark, supra, B248713, at p. 4.) In 

March 2011, the bankruptcy court ordered Clark to appear and defend against Kinney’s 

and Kempton’s state court action, and in May 2012, the superior court in that case 

declared Kempton to be a vexatious litigant. (Ibid.) The trial court dismissed the 

superior court case with prejudice on June 15, 2012, for Kempton’s failure to post the 

required bond, and Kinney’s request to appeal the judgment was denied. (Ibid.) When 

the bankruptcy court denied Kinney’s motion to vacate the state court’s dismissal of the 

case, Kinney removed the case to federal court, which remanded it to the state court in 

December 2012, for lack of federal jurisdiction. (See fn. 1, above, judicial notice items 1, 

2 & 3.) Kinney appealed the remand to the Ninth Circuit Court of Appeals. (Id. at pp. 4-

5.)3

 

 Clark moved in the state court for an award of $176,880 against Kinney and 

Kempton, jointly, for her expenses in defending against their litigation in the bankruptcy 

proceedings. Kinney argued in opposition that Clark lacked standing to claim fees and 

costs due to her bankruptcy, but the bankruptcy court provided Clark with a finding that 

Kempton and Kinney lacked standing to object to the fee request, disclaiming any interest 

of the bankruptcy estate in a fee award to Clark, and ordering that the amount of fees 

 

 In Kinney’s and Kempton’s action against the City of Los Angeles, the judgment 

against Kinney and Kempton on the merits was affirmed in an unpublished opinion by 

Division Three of this court. (Kempton v. City of Los Angeles (Dec. 19, 2012, B236973) 

[nonpub. opn.].) 

3

 On April 20, 2010, Kempton (represented by Kinney) appealed from a state court 

order declaring Kinney a vexatious litigant. The appeal was dismissed on June 10, 2010, 

for Kempton’s lack of standing. (Kempton v. Clark, et al. (June 16, 2010, B223850) 

[nonpub. opn.].) The Supreme Court denied review. (Kempton v. Clark, et al.,

S184149.) On March 29, 2013, the United States District Court for the Northern District 

of California denied Kinney’s application for a temporary restraining order, protective 

order, and preliminary injunction against the State Bar of California (and a number of 

judges and justices of the trial and appellate courts) for another declaration of Kinney’s 

status as a vexatious litigant. (Kinney v. State Bar of Cal. (Mar. 29, 2013) 2013 U.S. 

Dist. Lexis 46022.) 
5

recoverable by Clark “will be adjudicated in the state court.” (Kempton v. Clark, supra, 

B248713, at p. 5.) 

 On March 13, 2013, the superior court awarded Clark attorneys’ fees of 

$167,678.50 against Kempton in Kempton v. Clark, supra, LASC No. BC374938, but 

denied Clark’s request that the fee order be entered against Kinney as well. On May 15, 

2013, the court also denied Kinney’s and Kempton’s motion to vacate the 2012 vexatious 

litigant prefiling order against Kempton. In ruling on the fee motion, the trial court 

rejected Kinney’s contention that the pending federal court appeal barred Clark’s fee 

request, and the federal courts denied his request for a stay of the superior court hearing 

pending the outcome of the federal appeal. (Kempton v. Clark, supra, B248713, at p. 6.) 

The Court of Appeal affirmed the court’s denial of the motion to vacate the vexatious 

litigant prefiling order against Kempton, and also affirmed the fee award in its entirety, 

modifying it to be payable jointly and severally by both Kinney and Kempton. (Id. at pp. 

8, 15.) 

 Judgment was entered against Kinney and Kempton on their claims against Clark 

and her brokers, for fraud, and their two resulting appeals were unsuccessful. (Kempton 

v. Prudential California Realty—John Aaroe Division (Feb. 25, 2009, 2d Civ. No. 

B213620) [nonpub. opn.].) Division Two of this district found the second of these 

appeals to be “insulting.” It affirmed the trial court’s cost award of $8,517.40 against 

Kempton and imposed sanctions for a frivolous appeal, finding the appeal to be “a 

subterfuge,” and “nothing but an attempt to reargue the merits of the trial court’s ruling” 

on the previously affirmed imposition of summary judgment. And it remanded the matter 

to the trial court with directions to determine and order Kinney and Kempton to pay the 

respondents’ fees and expenses incurred in resisting the appeal, as sanctions payable to 

the Court of Appeal. (Kempton v. Prudential California Realty—John Aaroe Division 

(Nov. 16, 2011, B231162) [nonpub. opn.].)4

 4

 Two other appeals challenging orders declaring Kinney to be a vexatious litigant 

were dismissed for Kempton’s lack of standing to challenge the orders. (Kempton v. 

Prudential California Realty—John Aaroe Division (Feb. 25, 2009, 2d Civ. No. 
6

 On December 9, 2013, Clark filed a motion against Kinney for $12,137.50, for 

additional fees incurred by her attorneys during their efforts to enforce the December 15, 

2008 fee award. Kinney opposed the motion on his own behalf, on behalf of Judith 

Kempton (identified as the personal representative of the Estate of Kimberly Kempton, 

who had since died), and on behalf of the nonparty Estate of Harriet Kinney.5

 Kinney 

argued that enforcement of the previous fee awards was automatically stayed by various 

earlier appeals; that Clark had failed to establish her right to recover, and had tried to levy 

on the wrong accounts; and that the federal bankruptcy court had exclusive jurisdiction 

over all the state court rulings. On March 5, 2014, the court (Barbara Scheper, Judge) 

granted the fee motion in its entirety, entering the order from which this appeal is taken.6 

Discussion 

 A postjudgment award of contractual attorney fees is an appealable order. (Code 

Civ. Proc., § 904.1, subd. (a)(2); Whiteside v. Tenet Healthcare Corp. (2002) 101 

Cal.App.4th 693, 706; Milman v. Shukhat (1994) 22 Cal.App.4th 538, 540, fn. 2.) 

 Appellants’ opening brief purports to challenge the March 5, 2014 fee order on 

four grounds (and a number of sub-grounds). Appellants contend: (1) Appellants 

(including the nonparty appellants) are aggrieved by the order; (2) the funds subject to 

Clark’s levy to enforce the underlying order were properly segregated; (3) Clark has not 

shown a right to collect the levied funds; and (4) Code of Civil Procedure section 685.040 

does not apply. The appeal has no merit. 

 

B213620) [nonpub. opn.] and Kempton v. Clark (June 10, 2010, 2d Civ. No. B223850) 

[nonpub. opn.].) 

 5

 The Certificate of Interested Entities Or Persons filed in this appeal by attorneys 

Kinney and Ringgold identifies the Estate of Harriet Kinney as an aggrieved party and 

“appellant in companion appeal w/ same iss.” 

6

 On September 25, 2014, the trial court made an additional award of attorneys’ 

fees and costs incurred in Clark’s earlier appeal. (Kempton v. Clark, B248713, at p. 3.) 
7

A. Standing To Appeal. 

 We first address the jurisdictional issue of the standing of the purported nonparty 

appellants in this appeal. 

 The March 5, 2014 order from which the appeal was taken awards Clark 

additional fees of $12,137.50 against Kinney individually. Kinney, then an attorney, 

filed the appeal on behalf of the Estate of Kimberly Kempton and the Estate of Harriet 

Kinney.7

 Nina Ringgold, an attorney, filed the appeal on behalf of Kinney individually. 

 Appellants Judith Kempton as personal representative for the Estate of Kimberly 

Kempton, and Charles Kinney as Executor for the Estate of Harriet Kinney, were not 

parties to the motion in the trial court, and the March 5, 2014 order grants no relief 

against them. Only their identification as appellants by Kinney (purporting to act as their 

attorney) on the notice of appeal and the covers of appellants’ briefs designates them as 

parties to the appeal in this court. 

 Appellants’ opening brief, filed September 10, 2014, argues that the Estate of 

Kimberly Kempton and the Estate of Harriet Kinney have standing to challenge the order, 

because they were aggrieved by the possibility that “some of their money was seized or 

might be seized” to collect the funds the order awards. According to appellants’ brief 

(but unconfirmed by anything in the record) the challenged order was at some point used, 

or will at some point be used, to levy on funds “for which Kinney was the attorney and 

which were not Kinney’s personal funds but in fact were owned by Kinney’s clients 

including [Harriet Kinney].” At oral argument counsel for the nonparty estates reiterated 

these claims, without reference to anything in the record. 

 7

 On December 12, 2014, the State Bar Review Department recommended 

Kinney’s disbarment and ordered his State Bar enrollment inactive as of December 15, 

2014, pursuant to Business and Professions Code section 6007, subdivision (c)(4), and 

rule 5.111(D)(1) of the Rules of Procedure of the State Bar. (In re Kinney, St. Bar 

Review Dept. case Nos. 09-O-18100 & 09-O-18760, Dec. 12, 2014.) The California 

State Bar Web site identifies Kinney as ineligible to practice law, as of December 15, 

2014. (http://members.calbar.ca.gov/fal/Member/Detail/66428.) 
8

 The appeal is not taken from any levy or threatened levy, however. It is taken 

only from the order entered March 5, 2014, awarding $12,137.50 in “additional 

attorneys’ fees and costs” in favor of Clark—an order to which Kinney’s clients are not 

parties, and by which, for all the record shows, they are not aggrieved. 

 “‘[O]nly parties of record may appeal ‘(which includes persons who are named as 

a party to the proceedings below or who take appropriate steps to become a party of 

record in the proceedings . . . .)’” (Eisenberg, et al., Civil Appeals and Writs (2014) ¶ 

2:271, p. 2-164, quoting County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736.) One 

is “aggrieved” whose rights or interests are injuriously affected by the judgment. (County 

of Alameda v. Carleson, supra, 5 Cal.3d at p. 737.) 

 The record reveals no steps by the Estate of Kempton or the Estate of Harriet 

Kinney to intervene in the trial court motion proceedings to become parties of record with 

respect to the underlying motion, or to show that they are aggrieved in any way by the 

challenged order. (See In re Miguel E. (2004) 120 Cal.App.4th 521, 539 [party of record, 

with right to appeal, “is a person named as a party to the proceedings or one who takes 

appropriate steps to become a party of record in the proceedings”]; In re Joseph G.

(2000) 83 Cal.App.4th 712, 715 [one who has not become a party of record in the trial 

court proceeding has no standing to appeal].)8

 

 Nor has any such effort been made in this court.9 Appellants mistakenly cite 

Plaza Hollister Ltd. Partnership v. County of San Benito, supra, 72 Cal.App.4th at pages 

 8

 Code of Civil Procedure section 387 provides, in pertinent part: “(a) Upon 

timely application, any person, who has an interest in the matter in litigation, or in the 

success of either of the parties, or an interest against both, may intervene in the action or 

proceeding. . . . [¶] (b) If . . . the person seeking intervention claims an interest relating to 

the property or transaction which is the subject of the action and that person is so situated 

that the disposition of the action may as a practical matter impair or impede that person’s 

ability to protect that interest, unless that person’s interest is adequately represented by 

existing parties, the court shall, upon timely application, permit that person to intervene.” 

9

 At the time of argument in this appeal, counsel for the nonparty estates orally 

represented to this court that the absence of notice to the estates of the motion in the trial 

court is shown by the motion’s proof of service. But the record neither indicates any 
9

13-22, for the proposition (among others) that an order “can be ‘collaterally attacked’ by 

a stranger ‘who is legally “aggrieved,”’” inferentially merely by affixing their names to a 

notice of motion (as the nonparty appellants did in this court). The case actually says that 

a stranger to the record who is aggrieved by a void judgment “may move to vacate the 

judgment, and on denial of the motion may have the validity of the judgment reviewed 

upon an appeal from the order denying the motion.” But here, the record reflects no 

motion by the nonparty appellants to vacate the order as void; they therefore have not 

obtained the right to the review discussed in Plaza Hollister Ltd. Partnership v. County of 

San Benito, supra. In this appeal, as in earlier proceedings, Kinney apparently has used 

Kempton (and her estate) merely “as his proxy or puppet in order to continue his career 

as a vexatious litigant.” (In re Kinney, supra, 201 Cal.App.4th at pp. 953-954.) As in 

earlier proceedings, Kinney “filed this appeal on behalf of Appellants—nonparties to this 

action who have not demonstrated they are aggrieved by the trial court’s order.” (Kinney 

v. Clark, supra, B253093 [nonpub. Order Dismissing Appeal] at p. 3.) Although the 

nonparties are now represented by licensed counsel, their purported appeals must be 

dismissed. 

 On this record, both the Estate of Kimberly Kempton, and the Estate of Harriet 

Kinney, lack standing to appeal from the March 5, 2014 order. As to them, the appeal 

must be dismissed. 

 Kinney is represented by a licensed attorney as an individual appellant. For that 

reason he is eligible to challenge the award in this appeal despite his identification as a 

vexatious litigant.10

 

reason notice to the estates was required, nor anything indicating an effort seeking relief 

from the absence of notice in the trial court. In the absence of a motion to intervene in 

the trial court, simply filing a notice of appeal in the estates’ names does not itself 

constitute an original proceeding for relief in this court, and does not confer this court 

with jurisdiction to hear their appeal from the challenged order. (Plaza Hollister Ltd. 

Partnership v. County of San Benito (1999) 72 Cal.App.4th 1, 13-22.) 

10 In early May 2015, after this appeal was fully briefed but before it was heard 

and submitted for decision, this court received substitutions of attorney, substituting 
10

B. Standards Of Review.

 Because Kinney does not challenge the existence of substantial evidence to 

support the challenged order awarding fees, we review de novo whether the award 

satisfies the legal requirements for such an order. (Conservatorship of Whitley (2010) 50 

Cal.4th 1206, 1213-1214; Carpenter & Zuckerman, LLP v. Cohen (2011) 195 

Cal.App.4th 373, 378.) The trial court’s resolution of factual issues, express and implied, 

must be affirmed if supported by substantial evidence, resolving all conflicts in favor of 

the respondent and indulging in all legitimate inferences to uphold the court’s ruling. 

(Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632; Heppler v. 

J.M. Peters Co. (1999) 73 Cal.App.4th 1265, 1290.) 

C. Kinney’s Contentions On Appeal. 

1. Separation of the Levied Funds. 

Kinney argues that as a trustee (attorney, executor, or cotrustee) for his clients, he 

had no duty to segregate, label, or ortherwise mark the funds on which Clark levied as 

subject to trust. We decline to address that question, for it has nothing to do with the 

validity of the order from which the appeal is taken. 

 The order challenged in this appeal is the March 5, 2014 order granting 

$12,137.50 in additional fees incurred by Clark’s attorneys to enforce a previous award 

for fees and costs. The appellate record does not identify any levy, nor does it show how 

any funds were or were not segregated or labeled. The only issue on appeal—the validity 

of the March 5, 2014 order—is unaffected by the manner or outcome of any subsequent 

levy. 

2. Clark’s Right to Collect the Funds. 

 Kinney argues that “Clark has failed to show how she or her attorneys have the 

right to funds under any order in BC354136 [listing three cost orders and two collection 

 

attorney Nina Ringgold, in place of former attorney Charles Kinney, as attorney for 

Judith Kempton as personal representative of the Estate of Kimberly Kempton; and 

substituting attorney Rosemary Amezcua-Moll, in place of former attorney Charles 

Kinney, as attorney for Charles Kinney both individually and as Executor for the Estate 

of Harriet Kinney. 
11

orders]; or the right to obtain additional attorney’s fees and costs for any collection 

efforts [underscore in original].” For these propositions the opening brief sets forth five 

subsidiary points: (1) there is exclusive federal jurisdiction; (2) a separate independent 

action is required; (3) there was no jurisdiction; (4) this is a violation of the discharge 

injunction; (5) the trustee has certain exclusive duties. 

 We do not address Kinney’s prime contention, that Clark has failed to show her 

right to funds under any of the listed fee orders. This appeal is about the validity of the 

March 5, 2014 award. It is not about any other orders, or the collection of funds. 

Moreover, the burden is Kinney’s to show error in the March 5, 2014 award—to show 

that Clark lacks a right to the award. As respondent, Clark has no burden to show “how 

she or her attorneys have the right to funds under any order” in the underlying case. 

(Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [appealed order is presumed 

correct; error must be affirmatively shown].) 

 Code of Civil Procedure section 685.040 provides for an award of reasonable and 

necessary costs of enforcing a judgment or order, including attorneys’ fees if the 

underlying judgment includes a fee award. Clark supported her motion for additional 

fees and costs with a supporting declaration, the sufficiency of which Kinney did not 

challenge in the trial court and does not challenge on appeal. Kinney has made no 

contention that the fees awarded in the March 5, 2014 order were not necessary, or that 

their amount was not justified. The other fee awards to which his argument alludes are 

not before us in this appeal. 

 We are unable to address Kinney’s sub-part (1) contention, that the trial court 

lacked jurisdiction for its March 5, 2014 order because “there is exclusive federal 

jurisdiction” based apparently on a bankruptcy proceeding involving Clark. The 

argument contains no record citations, the record contains no documents identifying the 

bankruptcy proceeding, and the record contains no documents showing the scope of 

federal bankruptcy jurisdiction in any particular proceeding. (Cal. Rules of Court, rule 

8.204(a)(1)(C) [appellate brief must “support any reference to matter in the record by a 

citation to the volume and page number of the record where the matter appears”]; Lonely 
12

Maiden Productions, LLC, v. GoldenTree Asset Management, LP (2011) 201 Cal.App.4th 

368, 384; Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 779-801 

[contentions on appeal are forfeited by failure to provide supporting record citations]; 

Liberty Nat’l Enterprises, L.P. v. Chicago Title Ins. Co. (2011) 194 Cal.App.4th 839, 846 

[failure to provide supporting record citations results in court’s disregard of unsupported 

assertions]; Dominguez v. Financial Indem. Co. (2010) 183 Cal.App.4th 388, 391 [court 

does not consider asserted facts because brief fails to provide supporting record 

citations].) 

 Kinney’s sub-part (2) argument contends that the appealed order is void because 

“a separate independent action is required.” Again, the argument rests upon supposed 

facts for which no record citations are provided, and that apparently have no support in 

the record. For these reasons we again are unable to address the contention. 

 Kinney contends in sub-part (3) of his argument that the appealed order is void 

because “there was no jurisdiction over independent non-judgment debtors.” The 

contention apparently is that the order is void because one of the appellants was not a 

party to the order or the motion on which it was based, and therefore that appellant’s 

funds cannot be subject to levy by Clark. Above, we have determined that the nonparty 

appellants have no standing to appeal from the order; and we have determined also that 

this appeal does not challenge any levy that might have followed the challenged order. 

 In sub-part (4) of his argument Kinney contends that the order violated an 

unidentified discharge injunction (apparently of the bankruptcy court). He cites no 

discharge injunction, nor does he identify any facts that would support his claim of error. 

Again, we are unable to address the issue. 

 In sub-part (5) of his argument Kinney asserts that Clark has shown no right to 

collect the funds that the appealed order awards, because “the trustee has certain 

exclusive duties.” The argument purports to make various points of bankruptcy law, 

closing with the contention that two contracts (the 2005 contract for the purchase of 

Clark’s residence, and Clark’s 2007 retention agreement with her attorneys) could be 

determined to be void if they were not affirmed by the bankruptcy trustee; and the 
13

assertion that in fact the agreements were not affirmed. But the record provides us with 

no basis on which to determine whether the referenced contracts are or are not vulnerable 

to that (or any other challenge), in some forum. They are not, however, vulnerable to 

challenge in this appeal. The identified contracts are not part of the record on appeal. 

Nothing in the record indicates whether they have or have not been affirmed in any 

required manner, nor what such an affirmation would entail. We have no basis on which 

to address these contentions. 

3. Kinney Cannot Use this Appeal to Collaterally Attack Previous 

Appealable Judgments or Orders. 

 Kinney contends that Code of Civil Procedure section 685.040 authorizes fee 

awards (such as the March 5, 2014 order) only if a valid order or judgment underlies the 

award; and he contends that there is no “valid” order underlying the March 5, 2014 fee 

award, because the validity of the order underlying that award “is being determined by 

the prior appeals B248713, B253093, and/or B258399, the BAP appeal, and/or ongoing 

federal cases.” Kinney is wrong both as a matter of fact, and as a matter of law. He is 

wrong as a matter of fact, because he fails to show that the validity of the order 

underlying the March 5, 2014 fee award remains to be determined, either in the cited 

appeals or in any other forum. And he is wrong on the law, because he fails to show that 

an appeal in any such case would render the trial court unable to enter its March 5, 2014 

order. 

 We take notice of the three state-court appeals on which Kinney relies to show the 

March 5, 2014 order’s vulnerability. In case No. B248713, a now-final decision of 

Division Two of this court affirmed the $167,678.50 award in Clark’s favor for fees and 

costs, modifying the award to specify that both Kinney and Kempton are jointly and 

severally liable for its payment. (Kempton v. Clark, supra, B248713.)11 

 11 The decision also affirmed the trial court’s denial of Kinney’s motion to vacate 

an order declaring Kempton a vexatious litigant. (Kempton v. Clark, supra, B248713, at 

pp. 2, 14-15.) 
14

 The appeal in case No. B253093 is also final, and cannot fulfill Kinney’s hope that 

underlying orders will be rendered void and contracts will be rescinded. This court 

dismissed the appeal in case No. B253093 on December 31, 2014, and Supreme Court 

review was denied (S224323). This court’s remittitur issued March 19, 2015. (Kinney et. 

al. v. Clark, supra, B253093.)12 

 Of the three state appeals relied on by Kinney for rescission of the 2005 and 2007 

agreements, only case No. B258399 remains pending. Kinney’s brief characterizes that 

appeal as being from a June 20, 2014 order allowing Clark to seize “about $11,354.10” 

for fees and costs awarded July 31, 2013. But Kinney is not a party to that appeal, nor 

does he offer any explanation or authority to show how that (or any other) pending appeal 

could render the March 5, 2014 fee award invalid. Nothing in the record fills that gap. 

He therefore is again incorrect both on the facts and on the law, for his appeal fails to 

show any way in which the trial court erred by entering the challenged March 5, 2014 

order. 

 Indeed, Kinney’s appeal and argument all but ignores the March 5, 2014 fee 

award, focusing instead on “improper efforts . . . to collect” on that award—collection 

efforts that are not reflected in the record and are not before us in this appeal. His brief’s 

statement of conclusion, identifying as “‘void’ orders” all the cost awards entered after 

the 2005 purchase contract and Clark’s 2007 retainer agreement with her attorneys, 

confirms that his appeal is actually intended as a collateral attack on orders going all the 

way back to the 2008 dismissal of Kinney’s suit against Clark. But despite his assertions 

that a score of previous judgments, orders, and contracts are void, they remain in place; 

Kinney has not shown how they can or will be set aside. 

 12 In the trial court Kinney identified only case No. B253093 as qualifying for an 

automatic stay of the court’s power to rule on the fee motion. Kinney characterizes that 

case as an appeal from an order for attorneys’ fees and costs of $9,850.00 in favor of 

Clark and her attorneys. It was in fact an appeal from an order denying Kinney’s claim 

of exemption and allowing a release of a levy against Kinney’s funds to pay a December 

15, 2008 award for fees and costs. (Charles Kinney et al. v. Clark, supra, B253093.) 
15

 Nor do pending appeals from earlier orders—in either state or federal courts—

preclude the court’s authority to enter the March 5, 2014 order. Unless a stay is obtained, 

bankruptcy and other federal court orders ordinarily are enforceable when issued, despite 

a pending appeal, and Kinney’s attempts to obtain a stay were unsuccessful. (See fn. 1, 

above, judicial notice items 2 & 3.) The Ninth Circuit appeal is thus no impediment. 

 Code of Civil Procedure section 916, subdivision (a), on which Kinney relies to 

argue that collections are stayed pending state-court appeals, does not address or affect 

the trial court’s authority to enter a fee award. Rather, it provides that (if and when it is 

applicable at all) the appealing party need not post an undertaking to stay the order’s 

enforcement. (Nielsen v. Stumbos (1990) 226 Cal.App.3d 301, 303-304.)13 

 The March 5, 2014 order entered a fee award; it did not provide for the award’s 

enforcement or collection. Kinney’s appeal wholly fails to show that the trial court 

lacked authority to enter that order. Moreover, we are bound by previous rulings in this 

and related cases, that “[n]either Kinney nor Kempton have standing to question Clark’s 

consent to the lien in her contract with her attorneys, and that the parties were ordered by 

the bankruptcy court to litigate their disputes, including their fee claims, in state court. 

(Kempton v. Clark, supra, B248713, at p. 12.) 

 More to the point, even if Kinney could establish that the earlier orders could in 

the future be determined to be void, they nevertheless have not been found void. They 

are valid until determined otherwise. We agree with Presiding Justice Boren’s 

determination in In re Kinney, supra, that notwithstanding his long record of unsuccessful 

litigation and appeals, Kinney “continues to sue and to appeal, wasting vast quantities of 

judicial resources and taxpayer money to process his absurd and unsupported claims.” 

(201 Cal.App.4th at p. 960.) 

 Nothing in Kinney’s assertions about void orders reveals any error in the trial 

court’s entry of the March 5, 2014 order. That is Kinney’s burden on appeal. 

 13 We express no opinion whether Kinney would be entitled to a stay of 

enforcement of any judgment or order by virtue of Code of Civil Procedure sections 916 

and 917.1, as he has argued he is. 
16

Conclusion 

 The Estate of Kimberly Kempton and the Estate of Harriet Kinney lack standing to 

appeal from the March 5, 2014 order, and their appeals from it must be dismissed. The 

March 5, 2014 order from which Kinney appeals does not violate any stay imposed by 

order or statute, and was within the authority of the trial court to enter in Clark’s favor. It 

must be affirmed. 

 We have not been asked to, nor do we, determine whether Kinney’s appeal, or his 

efforts on behalf of the parties he purports to represent in this appeal, are frivolous, 

vexatious, or deserving of sanctions. 

Disposition 

 The appeals of Judith Kempton as personal representative of the Estate of 

Kimberly Kempton, and Charles Kinney as Executor for the Estate of Harriet Kinney, are 

dismissed. The March 5, 2014 order of the superior court, awarding fees and costs in the 

amount of $12,137.50, incurred by Michele Clark in connection with her efforts to 

enforce her judgment against Charles Kinney, is affirmed. 

 Clark is entitled to recover her costs on appeal. 

 NOT TO BE PUBLISHED. 

 CHANEY, J. 

We concur: 

 ROTHSCHILD, P. J. 

 JOHNSON, J.