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Appeals Dismissed Based on ‘Disentitlement’
C.A. Says Indian Tribe Has Repeatedly Flouted Superior Court Orders
By a MetNews Staff Writer
The First District Court of Appeal yesterday found an appellant’s overall conduct to have been so outrageous as to warrant dumping its five appeals from trial court orders under the rarely invoked disentitlement doctrine, but agreed to consider a motion to reinstate the appeals if, within 90 days, it goes forth with the mediation and arbitration that has been compelled and pays the sanctions and attorney fees that have been awarded.
Justice Therese M. Stewart of Div. Two wrote the opinion which orders dismissal of appeals by the Coyote Valley Band of Pomo Indians. The band has been sued by Robert Findleton who provided construction work and rental services in connection with the building of a casino and has not been paid.
Their contract contains a clause requiring mediation and arbitration of any disputes by the American Arbitration Association—chosen by the tribe—but the tribe has refused to participate in alternate dispute resolution despite a previous Court of Appeal ruling that it waived tribal immunity by entering into the agreement. It has sought intercession by a tribal court that did not exist at the time the agreement was entered into, created a disturbance at a judgment debtor examination, has refused to provide discovery, and has transferred casino assets in an effort to conceal them.
Extensive Misconduct
“[T]he Tribe’s disregard for multiple valid superior court orders over a four-year period persuades us that the disentitlement doctrine is appropriately applied to these appeals,” Stewart wrote. “The Tribe’s conduct bears a strong resemblance to, but is more extensive than, the misconduct in many cases in which our courts have applied the disentitlement doctrine.”
She went on to say:
“[N]early 10 years after Findleton first filed the petition to compel mediation/arbitration, he has still not had his day in court, or, more specifically, in the arbitration tribunal selected by the Tribe to resolve the underlying dispute. In the face of its flagrant disregard of the trial court’s orders and judgments and its egregious obstruction of efforts to enforce them, the balance of the equities does not favor the Tribe.”
The tribe has appealed from orders imposing non-discovery monetary sanctions; compelling discovery and imposing sanctions; setting its fraudulent conveyance of assets; denying an exemption from execution; and denying a clarification of the order denying the exemption.
Contention Rejected
The tribe argued that it was impossible for it to abide by orders of Mendocino Superior Court Judge John A. Behnke because to do so would violate an injunction issued by the tribal court. The injunction, Stewart responded, barred collection proceeds and that, she said, does not preclude the tribe from engaging in mediation and arbitration.
Even if a conflict did exist, she commented, “it would be one of the Tribe’s own making,” noting:
“The Tribe is not duty bound to continue flouting the superior court order compelling mediation and arbitration. It is fully within the Tribe’s own control whether to do so. It could voluntarily dismiss the tribal court proceeding just as it voluntarily filed that proceeding years after the superior court action was underway.”
Payment Not Precluded
The tribal court’s order, Stewart added, does not bar the tribe from paying what it has been ordered to pay. She remarked:
“If it simply paid those judgments, there would be no need to engage in collection proceedings at all. It has not shown that it lacks control over the entities to which it transferred the casino assets out of which any judgments in favor of Findleton were to be satisfied….And even if something in one of the tribal orders did preclude payment of the judgments, the Tribe has never explained why those orders, obtained based on its own petitions in the tribal court, could not be addressed simply by voluntarily dismissing the tribal court actions or withdrawing the request for such relief.”
The case is Findleton v. Coyote Valley Band of Pomo Indians, A156459.
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