Filed 5/11/17 Havasu Lakeshore Investments v. Fleming CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
HAVASU LAKESHORE
INVESTMENTS, LLC,
Cross-Complainant and Respondent,
v.
TERRY L. FLEMING, SR.,
Cross-Defendant and Appellant.
G051908
(Super. Ct. No. 30-2011-00487736)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Deborah
C. Servino, Judge. Appeal Dismissed.
Law Offices of Randall S. Waier and Randall S. Waier for Cross-defendant
and Appellant.
Teeple Hall, Grant G. Teeple, Gregory M. Garrison, Frederick M. Reich,
and Julia M. Williams; and Donna Bader for Cross-complainant and Respondent.
* * *
2
Cross-defendant Terry L. Fleming, Sr.
1
appeals from a $3.6 million
judgment against him and in favor of cross-complainant Havasu Lakeshore Investments,
LLC (HLI) for Fleming’s constructive fraud in purchasing a loan on which HLI had
defaulted and then foreclosing on the loan. Based on Fleming’s postjudgment conduct,
however, HLI has moved for the dismissal of Fleming’s appeal under the disentitlement
doctrine. That doctrine prohibits a judgment debtor from seeking “the benefits of an
appeal while willfully disobeying the trial court’s valid orders and thereby frustrating [the
judgment creditor’s] legitimate efforts to enforce the judgment.” (Gwartz v. Weilert
(2014) 231 Cal.App.4th 750, 761 (Gwartz).) The record reveals that Fleming has made
repeated, deliberate, and obstructionist efforts to effectively stay execution of the
judgment without complying with legal procedures. He has lied under penalty of perjury
at his judgment debtor examination, refused to comply (for over one year) with the
court’s order requiring him to turn over certain bank account funds, and been held in
contempt by the court for his noncompliance with its turnover order. Accordingly, we
grant HLI’s motion and dismiss Fleming’s appeal.

1
For convenience and because Terry L. Fleming, Jr., is not a party to this
appeal, we refer in this opinion to Terry L. Fleming, Sr., individually, as “Fleming,” and
to Terry L. Fleming, Jr. as “Fleming, Jr.”
3
FACTS
2
The operative cross-complaint of the Peloquin parties (including HLI)
against the Fleming parties (including Fleming) was tried before a jury on a single cause
of action for constructive fraud.
3
By special verdict, the jury made findings in HLI’s
favor. On February 11, 2015, the court entered an approximately $3.6 million judgment
in favor of HLI.
On May 8, 2015, Fleming appealed from the judgment and from the court’s
denial of his motion for judgment notwithstanding the verdict. He contended the special
verdict form was legally insufficient to support the judgment because the jury arguably
made no finding on the causation element of constructive fraud.
Temporary Stay, Failure to Bond, and Fraudulent Transfers
On March 23, 2015, Fleming moved for a temporary stay of enforcement of
the judgment purportedly to save himself the cost of having to “‘re-bond’” if the court
awarded HLI attorney fees. The court granted Fleming’s temporary stay application, but

2 We take some facts from the declarations of HLI’s attorneys supporting
HLI’s January 20, 2017 motion to dismiss Fleming’s appeal; from the exhibits to that
motion; and from the exhibits to Fleming’s February 3, 2017 opposition to HLI’s motion
to dismiss. We hereby grant HLI’s motion for judicial notice filed on January 18, 2017.
HLI’s motion for judicial notice filed May 20, 2016, is denied as not
relevant to this appeal.
3
The Peloquin parties are HLI, Jean Victor Peloquin, Capital Source
Partners, and J. Victor Construction, Inc. The Fleming parties are Fleming (individually
and as trustee of the Terry Lee Fleming Family Trust), Fleming, Jr., and Havasu Landing,
LLC.
4
cautioned against fraudulent transfers. Despite the purported purpose for the stay, the
record does not reflect that Fleming ever posted a bond.
4
On June 2, 2015, HLI sued Fleming and Katherine Doucette in Riverside
County for violating the Uniform Fraudulent Transfer Act. (Civ. Code § 3439 et seq.,
now known as the Uniform Voidable Transactions Act.) This action concerned
Fleming’s March 6, 2015 transfer of a residential property in Indian Wells to Doucette
for no consideration, although the property was worth around $500,000. During the
punitive damages phase of trial, Fleming had failed to mention the Indian Wells property.
HLI’s action is still pending.
Around June 2015, HLI’s counsel learned from records subpoenaed from
JP Morgan Chase Bank (Chase) and Wells Fargo Bank that cashier’s checks made out to
Fleming on March 3, 2015, had totaled over $3 million. During the punitive damages
phase of trial, Fleming had testified that he held around $3 million in cash accounts at
those banks.
On July 10, 2015, the court issued an order charging Fleming’s interest in
Havasu Landing, LLC (Landing) and requiring that any distributions from Landing to
Fleming be made directly to HLI. During the punitive damages phase of trial, Fleming
had testified that Landing was worth over $5 million and that he was its sole owner.
On August 13, 2015, at Landing’s judgment debtor examination, Fleming’s
son, Fleming, Jr., testified that Fleming had transferred Landing stock to Fleming, Jr. on
February 1, 2015. Specifically, Fleming had transferred a $2.55 million interest in
Landing to Fleming, Jr. in exchange for $150,000 plus $2.4 million worth of future
management services to be rendered by Fleming, Jr. over the course of 12 years.

4
HLI’s motion to dismiss asserts “Fleming could not have obtained a bond at
the time of his stay request because he had already transferred or concealed nearly every
asset he owned.”
5
Fleming, Jr. and his attorney, Randall Waier, indicated that Landing had no intention of
making any profit distributions.
On August 21, 2015, HLI sued Landing, Fleming, and Fleming, Jr. in
Orange County Superior Court. HLI sought to set aside Fleming’s fraudulent transfer of
(1) 55 percent of his interest in Landing, as well as the managing member position, to
Fleming, Jr. for little to no consideration; and (2) $3.1 million from Chase and Wells
Fargo bank accounts to currently unknown parties. HLI’s action in Orange County
remains pending.
Fleming’s Failures to Appear for his Judgment Debtor Examination
On April 29, 2015, the court ordered Fleming to appear for a judgment
debtor examination on June 11, 2015. On May 21, 2015, HLI personally served Fleming
with the order to appear. On June 5, 2015, Fleming filed a motion to quash personal
service.
On June 11, 2015, when Fleming failed to appear for his examination, the
court continued it to July 16, 2015.
On July 14, 2015, the court denied Fleming’s motion to quash personal
service. The court found the “motion was not brought in good faith, and in fact, was
brought for purposes of delay,” and awarded HLI reasonable expenses of $3,675 to be
paid by Fleming within 30 days. Fleming filed a notice of appeal of the court’s ruling
denying his motion to quash, but sought to dismiss that appeal three months later.
5
Fleming has never paid the sanctions ordered by the court.
On July 16, 2015, Fleming again failed to appear for his judgment debtor
examination. The court denied HLI’s request for a bench warrant and continued
Fleming’s examination to August 13, 2015.

5 We take judicial notice of the record in case no. G052273.
6
On July 31, 2015, Fleming filed a motion for reconsideration of the court’s
denial of his motion to quash personal service. On August 5, 2015, the court granted
Fleming’s motion for reconsideration and scheduled a hearing for August 13, 2015. It
continued Fleming’s judgment debtor examination to August 27, 2015. On August 20,
2015, the court denied Fleming’s motion for reconsideration and reset his judgment
debtor examination to September 3, 2015.
On September 3, 2015, Fleming failed to appear for his examination. The
court issued an order to show cause regarding contempt for Fleming’s failure to appear
and ordered him to be present on September 10, 2015.
On September 10, 2015, Fleming failed to appear for his examination. The
court set an order to show cause regarding contempt for September 17, 2015 and
continued Fleming’s judgment debtor examination to the same date.
On September 17, 2015, Fleming failed to appear for his examination.
Fleming’s counsel represented to the court that Fleming had filed a writ petition with this
court on that date. The trial court continued the order to show cause to October 8, 2015.
On October 8, 2015, Fleming failed to appear for his examination. The
court issued and held a $250,000 bench warrant and ordered Fleming to appear within
five days of any denial of his writ petition.
On the evening of October 8, 2015, this court summarily denied Fleming’s
writ petition.
On October 13, 2015, Fleming, ex parte, “walked in . . . with specially
appearing counsel . . . Waier, on a stayed $250,000[] Bench Warrant for failing to appear
for Judgment Debtor Examinations.” The court ordered him to return to court on
November 12, 2015 for his judgment debtor examination.
Fleming’s Judgment Debtor Examination
7
On November 12, 2015, nearly six months after being served by HLI,
Fleming appeared for his judgment debtor examination and testified under oath as
follows. He was currently the sole trustee of the Terry Lee Fleming Family Trust and
was the only person who handled trust funds. He currently had around $2.6 million in a
Chase bank account ending in 368 and held in the name of his family trust, and was the
only person who could write checks on that account. He had taken funds out of his bank
accounts in the form of cashier’s checks totaling about $3 million, and did not deposit all
of the funds back into his checking account until “the last couple of weeks” before his
judgment debtor examination.
The Turnover Order
On November 12, 2015, immediately following Fleming’s testimony at his
judgment debtor examination, HLI’s counsel requested the court to issue a turnover order
for property Fleming had testified was in his custody or control. The court then issued an
order for delivery of property after examination (the turnover order). The turnover order
directed Fleming to “immediately deliver to the [Riverside County Sheriff] . . . all funds
on deposit with Chase Bank in the name of [the] Terry L. Flemming [sic] Sr. Family
Trust,” along with a golf cart and four guns.
HLI’s counsel asked the court (1) whether the court could hold Fleming in
the courtroom for service (so HLI’s counsel could “hand him a copy of the order”), or (2)
whether the order was effective from the bench. The court replied, “From the bench is
fine.” Fleming and his attorney Waier were present in open court and had an opportunity
to review the turnover order before the court signed it. Waier was shown the turnover
order before the court signed it.
The next day, HLI’s counsel e-mailed Waier to ask him to confirm
Fleming’s compliance with the turnover order, and “again” attaching a copy of the
turnover order. Waier replied that he (Waier) was “unable to accept service of this order
8
on behalf of” Fleming, and stated HLI’s counsel had to “personally serve [Fleming] with
that turnover order [in order for it] to be effective.” HLI’s counsel e-mailed Waier and
cited Code of Civil Procedure section 708.205, which provides that, at the conclusion of a
judgment debtor examination, “the court may order the judgment debtor’s interest in the
property in the possession or under the control of the judgment debtor . . . to be applied
toward the satisfaction of the money judgment if the property is not exempt from
enforcement of a money judgment. Such an order creates a lien on the property or debt.”
HLI’s Discovery that Fleming’s Testimony Was Perjured
On September 15, 2016, HLI took the debtor’s examination of Fleming’s
daughter, Patricia Wilson-Fleming. During the examination, HLI discovered numerous
facts that showed Fleming had lied during his judgment debtor examination on November
12, 2015. Specifically, Fleming had falsely testified that he was the trustee of his family
trust, that he alone controlled trust funds, and that he presently had around $2.6 million in
the trust’s Chase bank account ending in 368.
Fleming’s daughter testified and provided documents showing that, on
November 10, 2015, just two days before Fleming’s judgment debtor examination,
Fleming had made her the trustee of his family trust. According to bank records and
Fleming’s daughter’s testimony, on November 10, 2015, she had opened a new account
ending in 695 at Chase (the new account) in her name, as trustee of the trust. She had
deposited $2,628,500 into the new account, which money had come from Fleming in the
form of a cashier’s check or checks. On November 12, 2015 — the day of her father’s
judgment debtor’s examination and the court’s turnover order — she had withdrawn
$1,928,500 from the new account, leaving $700,000 in the new account. The next day,
on November 13, 2015, she had withdrawn $699,500 from the new account and received
13 cashier’s checks in various denominations made out to herself as trustee of the trust.
She had endorsed the cashier’s checks and given them to Fleming.
9
Fleming’s Contempt Judgment
On February 9, 2016, the court issued an order to show cause as to why
Fleming should not be held in contempt for willfully disobeying the turnover order. The
court heard testimony, took evidence, and was fully briefed on the matter.
On January 10, 2017, the court issued its decision finding Fleming guilty of
contempt. Specifically, the trial court found: “Instead of delivering the funds on deposit
at JPMorgan Chase Bank to the judgment creditor or the Riverside County Sheriff, on
November 13, 2015, Patricia Wilson-Fleming, as trustee of the Terry Lee Fleming
Family Trust, withdrew $699,500[] from the account and purchased 13 cashier’s checks
in her own name, which she then endorsed and gave to Mr. Fleming, who cashed them
all. Again, instead of delivering the cash to the judgment creditor or the Riverside
County Sheriff, Mr. Fleming negotiated each of the 13 cashier’s checks between
December 1, 2015 and September 12, 2016. [¶] On September 26, 2016, Mr. Fleming
arranged for the golf cart, the guns, and a check for [$25] to be delivered to the Riverside
County Sheriff. However, at no time has he delivered the funds that were in the
JPMorgan Chase Bank account in the name of his trust at the time the order of November
12, 2015 was entered.”
The court found Fleming “willfully disregarded” the turnover order by
failing to deliver the funds on deposit at Chase “in the name of his trust at the time the
order was entered.” The court further found Fleming and his attorney were aware of the
turnover order “because they were present in open court on November 12, 2015 when it
was signed by the Court and they had an opportunity to review the order prior to the
Court’s signing it.”
The court imposed a fine of $1,000 and ordered Fleming to pay reasonable
attorney fees and costs.
10
Disentitlement Briefing
On December 9, 2015, HLI moved this court for dismissal of Fleming’s
appeal under the disentitlement doctrine. On January 7, 2016, we denied HLI’s motion
“without prejudice to renew the motion if the superior court finds [Fleming] in contempt
for his failure to comply with the turnover order issued by the superior court on
November 12, 2015.”
Over a year later, on January 20, 2017, HLI renewed its motion for
dismissal of Fleming’s appeal under the disentitlement doctrine, advising us that the
superior court had held Fleming in contempt on January 10, 2017. HLI further argued
that, “not only has Fleming[] failed to comply with the court below’s turnover order and
continued his efforts to avoid collection of the Judgment over the past eleven months,
substantial evidence has come to light that Fleming[] perjured himself to do so.”
On February 3, 2017, Fleming filed an opposition to HLI’s renewed
motion. Fleming stated that the superior court was reconsidering its contempt order. He
declared that, on January 17, 2017 — i.e., after the court held him in contempt — he tried
to give duty-sheriff “Cynthia” at the Palm Desert substation a cashier’s check for
$699,500. Fleming further declared that on September 26, 2016, he personally delivered
$24 “to the Sheriff’s Palm Desert substation to Sgt. Koser, who testified he refused the
delivery.” Exhibits to Fleming’s opposition show he declared (1) that he “was not
served” on November 12, 2015 “with any signed order by” the court; (2) that, on
November 12, 2015, “the only account at Chase Bank, where [he] was both the trustee
and sole signatory” contained about $24; and (3) that the “Chase account . . . containing
the $699,500[], at the time the turnover order was read in court, was in the name of
Patricia Wilson-Fleming, as the sole trustee of [Fleming’s] revocable trust, under her
social security number, and she was further the sole signatory on that account.”
11
HLI’s February 16, 2017 reply to Fleming’s opposition attached as an
exhibit the superior court’s February 3, 2017 minute order denying Fleming’s application
to reopen the constructive contempt proceedings.
On March 16, 2017, we summarily denied Fleming’s petition for writ of
mandate or other appropriate relief concerning the trial court’s contempt holding and
turnover order.
6
DISCUSSION
The disentitlement doctrine empowers a reviewing court to dismiss an
appeal by a party who refuses to comply with trial court orders. (Stoltenberg v. Ampton
Investments, Inc. (2013) 215 Cal.App.4th 1225, 1229 (Stoltenberg).) “No formal
judgment of contempt is required; an appellate court ‘may dismiss an appeal where there
has been willful disobedience or obstructive tactics.’” (Id. at p. 1230.) An appeal may be
dismissed even if the noncompliant appellant believes that the trial court’s judgment or
order is invalid: “A trial court’s judgment and orders, all of them, are presumptively
valid and must be obeyed and enforced. [Citation.] They are not to be frustrated by
litigants except by legally provided methods.” (Stone v. Bach (1978) 80 Cal.App.3d 442,
448 (Stone).) Thus, the merits of an appeal are irrelevant to an appellate court’s
determination whether to dismiss the appeal. (Ironridge Global IV, Ltd. v.
ScripsAmerica, Inc. (2015) 238 Cal.App.4th 259, 266.) The disentitlement “doctrine ‘is
based upon fundamental equity and is not to be frustrated by technicalities.’”
(Stoltenberg, at p. 1230.) “‘[I]t would be a flagrant abuse of the principles of equity and
of the due administration of justice to consider the demands of a party who becomes a
voluntary actor before a court and seeks its aid while he stands in contempt of its legal
orders and processes.’” (Stone, at p. 444.)

6 We take judicial notice of the record in case no. G054622.
12
Stoltenberg involved “a judgment debtor who act[ed] to frustrate or
obstruct legitimate efforts in a trial court to enforce a judgment.” (Stoltenberg, supra,
215 Cal.App.4th at p. 1230.) The Stoltenberg defendants failed to post a bond to stay
enforcement of a California judgment, unsuccessfully applied for a writ to stay
enforcement of judgment, did not comply with the plaintiffs’ subpoena served in New
York for the corporate defendant’s financial information nor with a New York trial
court’s order compelling the defendants to respond, and were held in contempt by the
New York trial court. (Id. at pp. 1227-1228.) The defendants paid a $500 contempt fine,
but still did not provide the subpoenaed financial information. (Id. at p. 1229.)
Stoltenberg dismissed the defendants’ appeal, holding “that the disentitlement doctrine
applies to noncompliance with and contempt of New York trial court orders, which
noncompliance and contempt directly affect and frustrate the enforcement of a California
judgment.” (Id. at p. 1227.)
In Gwartz, supra, 231 Cal.App.4th 750, the defendants did not post a bond
to stay enforcement of judgment. (Id. at p. 755.) The trial court issued various orders,
including a freeze order, to help the plaintiffs collect their judgment from the defendants.
(Id. at p. 752.) The defendants violated the freeze order by transferring money from a
bank account. (Id. at p. 758.) Gwartz “conclude[d] the equitable considerations relevant
to the disentitlement doctrine favor dismissal of this appeal.” (Id. at p. 761.)
In Stone, supra, 80 Cal.App.3d 442, the trial court twice held the appellant
defendant in contempt, once for failing “to deposit into specified accounts all partnership
receipts in his possession” (id. at p. 443) and subsequently “for refusing to be sworn for
examination as a judgment debtor” (id. at p. 444). Stone concluded the appellant’s
conduct was intolerable and dismissed his appeal. (Id. at p. 448.)
In the case before us, Fleming has systematically abused the legal system to
hinder HLI’s collection of its judgment against him. He failed to post a bond to stay
enforcement of the judgment, despite the court’s granting him a temporary stay of
13
enforcement to allow him to do so. He made several transfers of his assets for little or no
consideration. He postponed his judgment debtor examination for months by, inter alia,
(1) moving to quash service of process (for which motion the court sanctioned him,
finding he had brought the motion for purposes of delay), (2) filing and dismissing an
appeal, and (3) petitioning for a writ (which petition we summarily denied). He failed to
pay sanctions ordered by the court for the delay. He finally appeared in court, but only
after the court issued and held a bench warrant for his appearance. At his judgment
debtor examination, he falsely testified under oath that he had over $2.6 million in trust
funds in a Chase bank account. The court ordered him to turn over his trust’s funds,
showed the order to Fleming’s counsel Waier, and issued the order from the bench.
Nonetheless, Waier and Fleming asserted the turnover order was not properly served.
They also took the position the order required Fleming to turn over a mere $24. After
over a year of Fleming’s blatant noncompliance, the court held him in contempt for
willfully disobeying the turnover order.
This chronology lays bare Fleming’s intolerable conduct. Fleming’s
behavior is even more reprehensible than that of the defendants in Stoltenberg, Gwartz,
and Stone. Not only did Fleming transfer his assets for little or no consideration, fail to
provide honest financial information, and disobey a court order (leading to the court’s
holding him in contempt), but he lied under penalty of perjury. His willful disobedience,
obstructionist tactics, and “utter[] dishonest[y]” (Blumberg v. Minthorne (2015) 233
Cal.App.4th 1384, 1392) disqualify him from seeking our aid on appeal.
DISPOSITION
The appeal is dismissed. HLI is entitled to costs on appeal.
14
IKOLA, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
FYBEL, J.