I'm not a huge fan of the appellate disentitlement doctrine. Either in how it's articulated or, in particular, how it's practically applied.
Justice Mosk's opinion here nonetheless seems right to me. At some point, it's entirely proper to dismiss an appeal -- or to at least think srongly about it -- based upon the defendant's refusal to follow presumptively lawful efforts to enforce the underlying (unstayed) judgment.
This is one of those cases.
I think the doctrine should be rarely applied. Primarily because it's profoundly unjust to let stand a judgment we know to be erroneous stand merely because the defendant refuses to comply with this erroneous judgment. We should prefer adjudication on the merits whenever possible.
I might well allow the appeal to be reinstated were the defendants -- now chastened -- to fully and immediately comply with the underlying order of the New York court here. But I think it's entirely permissible to say that, as things stand now, the appeal is dismissed. And maybe even to leave them guessing as to what might happen next.
(Though, truly, rather than say -- as Justice Mosk does -- that maybe the Court of Appeal will reinstate the appeal, and maybe it won't, I'd more likely say something like "Maybe I'll reinstate the appeal if you comply, and maybe you won't, but I'll definitely reinstate it if you comply and pay the other side their $20,000 [or whatever] in legal fees I anticipate they've had to spend thus far in order to confront your intransigence with the order." That'd give me a keen sense of how the defendants should be treated.)
