1

Filed 8/31/ 23 Sweeney v. R egional Water Quali ty Control Bd. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

JOHN SWEENEY, Plaintiff and Appellant,

v. REGIONAL WATER QUALITY CONTROL BOARD, SAN FRANCISCO BAY REGION, Defend ant and Respondent. A166629
(Solano County Super. Ct. No. FCS048136)

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 C lub). 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 wi fe, Jennifer Lesa Frost, to satisfy the judgment. Sweeney appeals this order, contending
that it is overbroad and that the court lack s 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 w e affirm the order.2 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 app e ar s to have been previously used as a managed wetland for duck hunting. He transferred ownership to the Club, of which he is the manag ing member, and they began operating t he 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 ti dal 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 a s administrative civil liability order3

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 judgment s and directed the trial court to deny the petitions for writ of mandate and requests to set as ide the abatement and liability orders. ( Sweeney I , supra , 61 Cal.App.5th at pp. 1107, 1151.) On remand, t he trial court entered judgment against Sweeney and the Club (collectively, the judgment debtors ) , jointly and severally, and in favor of
the Boar d 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. T he 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 mov ed 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 am ounts

.

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 East ern District of California, which we discuss in more detail below.4

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 s ubmitted 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 indic a ted it would adopt the revised p roposed order. The court signed the revised proposed order o n 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 procee ds 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
ins urance 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 p ersons 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 t o the Code of Civil Procedure.5

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 1 8 , 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 th is 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.6

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
attendanc e 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 serve d on March 2 0, 2022. Frost did not appear,

an d 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 t he 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 Af

ter 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 not7

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 tim ely. 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. 4 th 837, 842

– 843 ; Avenida San Juan Partnership v. City of San Clemente (2011) 201 C al.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 Septemb er 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 Janua ry 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 and8

remained in effect as the operative judgment, suspending the time to appeal fro m 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 j udgment 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 substan tially 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.)9

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 ap peal 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 equiti es. ( 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 a nd 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 or ders 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 appe aled 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 wi ll not be10

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 examinat ion]; 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.4t h 377 [judgment debtors willful ly 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 de fiance 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 cou r t orders, and in the context of this case we are particular ly 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 support11

application of the disentitlement doctrine, at the present ju ncture 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. 4 th 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 sta nding 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 in terest 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. 4 th 1190, 1193 [“ ‘Where the interests of two parties interweave, either party has s tanding 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 de btor examination, requiring her to “answer concerning property of the judgment debtor in your possession or
control

. . .” The statutory scheme governing enforcement of money judgment s (§ 680.010 et seq.) authorizes a judgment creditor to serve12

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

stat utory 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 F rost’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 earn ings, 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 lim ited 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 show s 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 tri al court’s jurisdiction.13

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 70 8 .510, under which the request for an ass ignment 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 dev elopments, 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 . H e 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 b y 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 direct s 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 part ies, monies due from third parties, due and in favor of and14

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 provision s 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

. A nd 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 o n 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 o f o r 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 t aking 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. 4 th 952, 956.)15 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.1

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 ongoin g 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, wit h 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 l ot 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 iss ued 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 a nd 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 of2

the judicial process.” ( Tobin v. Casaus (1954) 128 Cal.App.2d 588, 592.) But this is the hopefully rar e 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)