9:30 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
9:30 AM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
- NONE LISTED -
9:30 AM
- NONE LISTED -
9:30 AM
Adv#: 8:20-01018 Tustin Buick GMC v. Shack
FR: 4-30-20; 9-17-20; 11-19-20
Docket 1
SPECIAL NOTE: Stipulation to Continue to 2/18/2021 at 9:30 a.m. to be Filed and Order to be Lodged; Working on Settlement, per Jiwon Shin, Attorney for Plaintiff - td (1/4/2021)
April 30, 2020
Discovery Cut-off Date: July 31, 2020
Pretrial Conference Date: Sept. 17, 2020 at 9:30 a.m. (XX)
Deadline to file Joint Pretrial Stipulation: Sept. 3, 2020
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required. Nonappearance at the hearing will be deemed acceptance of the tentative ruling. Plaintiff to lodge a scheduling order consistent with the same within 7 days of the status conference.
November 19, 2020
As no pretrial stipulation or status report has been timely filed, the parties must appear at this hearing and advise the court of its status.
9:30 AM
Basis for Tentative Ruling
On Sept. 8, 2020, the parties filed a Stipulation [docket #11] indicating that the parties were close to reaching a settlement. An order approving the Settlement was entered on the same date [docket #13] continuing the Pretrial Conference to this hearing date. There is no indication on the docket that a settlement has been reached.
Note: Appearances at this hearing are required.
January 7, 2021
Continue Pretrial Conference one final time to February 18, 2021 at 9:30 a.m.; a Joint Pretrial Stipulation must be filed by February 4, 2021 if settlement pleadings have not been filed by such time.
Note: If all parties accept the tentative ruling, appearances at this hearing are not required and Plaintiff shall serve notice of the continued hearing date.
Debtor(s):
Maxwell Shack Represented By Stephen M Goodman
Defendant(s):
Maxwell Shack Pro Se
Plaintiff(s):
Tustin Buick GMC Represented By Kaitlyn Q Chang
Trustee(s):
Karen S Naylor (TR) Pro Se
9:30 AM
Adv#: 8:20-01135 Zhang et al v. SC Development Fund, LLC et al
Equitable Subordinaton under 11 USC Section 510 (c) ; 2. Preliminary Injunctive Relief; 3. Injunctive Relief; 4. Declaratory Relief; 5. Fraud; 6. Conspiracy To Commit Fraud; 7. Disallowance Of Claims under 11 USC Section 502(a), (d), (e); 8. Fraudulent Transfer under 11 USC Section 548; 9. Constructive
Fraudulent Transfer under 11 USC Sections 544, 550, 551 California Civil Code
Sections 3439.05 and 3439.07 (Another Summons Issued 10-14-20)
Docket 5
- NONE LISTED -
January 7, 2021
Continue Status Conference to April 8, 2021 at 9:30 a.m.; an updated Joint Status Report must be filed by March 25, 2021.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required; Plaintiff shall serve notice of the continued hearing date/time.
Debtor(s):
SC Development Fund, LLC Represented By Keith S Dobbins
Defendant(s):
SC Development Fund, LLC Pro Se
9:30 AM
Weneta M Kosmala Pro Se
Plaintiff(s):
Hui Xiu Zhang Represented By Elan Darvish
Jumbo Investment, Inc. Represented By Elan Darvish
Trustee(s):
Weneta M Kosmala (TR) Represented By Beth Gaschen Jeffrey I Golden
9:30 AM
Adv#: 8:20-01145 ESIRF, LLC v. Castro
Docket 1
- NONE LISTED -
January 7, 2021
Continue Status Conference to April 8, 2021 at 9:30 a.m. A motion for default judgment may self-calendared for the same date/time as the continued Status Conference date. Alternatively, the motion may be filed without a hearing pursuant to the procedure set forth in Local Bankruptcy Rule 9013-1(o).
Additional notes:
The motion for default judgment, supported by evidence, must be served on defendant and defendant's counsel in accordance with Local Rule 9013-1(d). If the motion for default judgment is not heard by the continued date of the Status Conference, THE ADVERSARY MAY BE DISMISSED at the Status Conference for failure to prosecute.
Note: If Plaintiff accepts the foregoing tentative ruling, appearance at this hearing is not required; Plaintiff shall serve notice of the continued hearing date/time.
Debtor(s):
Frank Hinojosa Castro Represented By Christopher P Walker
9:30 AM
Defendant(s):
Frank Hinojosa Castro Pro Se
Plaintiff(s):
ESIRF, LLC Represented By
Aaron D. Burden
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
9:30 AM
Docket 230
- NONE LISTED -
January 7, 2021
Grant motion, subject to overbid.
Debtor(s):
Orange County Bail Bonds, Inc. Represented By Marc C Forsythe Ryan S Riddles
Trustee(s):
Mark M Sharf (TR) Pro Se
10:00 AM
VS.
DEBTORS
Docket 105
- NONE LISTED -
January 7, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
William Raymond Harvey Represented By Farbood Majd
Joint Debtor(s):
Akram Naieharvey Represented By Farbood Majd
10:00 AM
Movant(s):
Nissan Motor Acceptance Represented By Kirsten Martinez
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA VS.
DEBTOR FR: 12-3-20
Docket 41
OFF CALENDAR: Stipulation for Adequate Protection Re: Section 362 Stay filed 1/4/21, Order approving Stipulation ENTERED on 1/4/21 --eas / td (1/4/2021)
December 3, 2020
Grant motion with 4001(a)(3) waiver unless Debtor is current by the time of the hearing, in which case an adequate protection order will be granted. If the parties require additional time to discussion a resolution, a continuance may be requested during the calendar roll call by the courtroom clerk just prior to the hearing. Available continued dates are: 12/10, 12/17/20, 1/7/21 and 1/14/21 at 10:00 a.m.
Debtor(s):
Leticia Rubio Represented By Michael D Franco
10:00 AM
Movant(s):
Wells Fargo Bank, NA, as Trustee, Represented By
Daniel K Fujimoto Caren J Castle
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
GOLDMAN SACHS BANK USA VS.
DEBTOR FR: 12-3-20
Docket 55
SPECIAL NOTE: This motion going forward per Bryan Moldo, Attorney for Movant - td (11/16/2020)
December 3, 2020
Deny motion without prejudice. Basis for Tentative Ruling:
Service issue:
Debtor was not served in accordance with FRBP 7004(b)(3) as required by FRBP 9014(b) for contested matters such as motions for relief from stay.
Rule 7004(b)(3) of the Fed.R.Bankr.P. requires that corporate entities be served "to the attention of an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of
10:00 AM
process." Merits:
362(d)(1): Movant is protected by a 26% equity cushion by its own calculation and has not demonstrated that the property has declined in value since the filing of the case or any other "cause" for relief from stay at this time.
362(d)(2): Movant's valuation establishes equity for this debtor's security interest in the property of at least $650,000 (even after deducting costs of sale).
January 7, 2021
Grant motion.
Basis for Tentative Ruling:
Service issue corrected
Supplemental brief (including revised appraisal) filed 12/10/21 [docket # 72]
No opposition filed to supplemental brief.
Debtor(s):
SC Development Fund IV, LLC Represented By Keith S Dobbins
Movant(s):
Goldman Sachs Bank c/o Genesis Represented By
Byron Z Moldo
Trustee(s):
Weneta M Kosmala (TR) Represented By Beth Gaschen Jeffrey I Golden
10:00 AM
10:00 AM
GOLDMAN SACHS BANK USA VS.
DEBTOR FR: 12-3-20
Docket 57
SPECIAL NOTE: This motion going forward per Bryan Moldo, Attorney for Movant - td (11/16/2020)
December 3, 2020
Continue hearing to January 7, 2021 at 10:00 a.m. to allow Movant to correct service issue: Debtor was not served with the Motion as required by LBR 4001-1(c)(1)(C)(i). Per FRBP 9014, service on Debtor must be made in accordance with FRBP 7004(b)(3). (XX)
Tentative ruling for 1/7/21 hearing (if unopposed): Grant the Motion.
Note: If Movant accepts the tentative ruling, appearance at today's hearing is not required.
January 7, 2021
10:00 AM
Grant the motion. Service issue corrected.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
SC Development Fund IV, LLC Represented By Keith S Dobbins
Movant(s):
Goldman Sachs Bank c/o Genesis Represented By
Byron Z Moldo
Trustee(s):
Weneta M Kosmala (TR) Represented By Beth Gaschen Jeffrey I Golden
10:00 AM
WILMINGTON TRUST, NA VS.
DEBTOR FR: 12-3-20
Docket 15
OFF CALENDAR: Notice of Voluntary Dismissal of Motion for Relief from the Automatic Stay filed 1/6/2021 - td (1/6/2021)
December 3, 2020
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
January 7, 2021
Deny motion without prejudice to Movant filing a new motion.
10:00 AM
Basis for Tentative Ruling:
In the current Motion, Movant based the value of the property solely on Debtor's statement of value in his Schedules, i.s., $480,000. Debtor has, by his opposition, refuted that value and asserts a value of $610,000. Though Movant was provided an opportunity to file a reply to Debtor's opposition, it has elected not to do so. Accordingly, Movant has not met its burden of proof regarding Debtor's lack of equity in the property, or that the value of the property has declined since the bankruptcy filing.
Special note: The U.S. Trustee has filed a motion to dismiss this case (scheduled for hearing on January 14, 2021 at 10:30 a.m.) due to Debtor's failure to attend multiple scheduled 341a creditors' meetings.
Debtor(s):
Arnulfo Alatorre Pro Se
Movant(s):
Wilmington Trust, National Represented By Darlene C Vigil
Trustee(s):
Thomas H Casey (TR) Pro Se
10:00 AM
VS.
DEBTORS; AND KAREN S. NAYLOR, CHAPTER 7 TRUSTEE
Docket 8
- NONE LISTED -
January 7, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Christopher Samuel Smit Represented By Kevin J Kunde
Joint Debtor(s):
Theresa Christine Smit Represented By Kevin J Kunde
10:00 AM
Movant(s):
American Honda Finance Represented By Vincent V Frounjian
Trustee(s):
Karen S Naylor (TR) Pro Se
10:30 AM
Docket 113
OFF CALENDAR: Voluntary Dismissal of U.S. Trustee's Motion, filed
12/8/2020 - td (12/8/2020)
- NONE LISTED -
Debtor(s):
Luis Alberto Rodriguez Jr. Represented By Michael Jones Sara Tidd
Movant(s):
United States Trustee (SA) Represented By Michael J Hauser Frank Cadigan
10:30 AM
Docket 20
- NONE LISTED -
January 7, 2021
Grant motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
John Julian Norman Represented By Michael Jones
Joint Debtor(s):
Ashley Marie Norman Represented By Michael Jones
Trustee(s):
Weneta M Kosmala (TR) Pro Se
10:30 AM
Cl. #2 | Southern California Edison | $1,164.87 |
Cl. #10 | Robert Huntington | Unknown |
Cl. #11 | Manuel Ruben Solarzano | $104,476.00 |
Cl. #16 | Raymond P. Tenold Trust | Unknown |
Cl. #17 | James F. Burke | $1,705.00 |
Cl. #19 | Estate of Charles Abshire Docket 135 | $500.00 |
OFF CALENDAR: Notice fo Withdrawal RE: Omnibus Motion filed 12/16/2020 - td (12/16/2020)
- NONE LISTED -
Debtor(s):
Little John's Antique Arms, Inc. Represented By Richard A Marshack Chad V Haes
D Edward Hays
10:30 AM
Cl. #1 | Paul Grisanti | $1,467.00 |
Cl. #4 | Theodore Lauriano | $2,400.00 |
Cl. #5 | Dale/Eileen Strong | $199,650.00 |
Cl. #7 | Estate of Charles Porter | $47,533.00 |
Cl. #8 | Charles Schuber | $30,561.75 |
Cl. #12 | Gene Kan | $84,000.00 |
Cl. #13 | Ron/Nicki Chambers | $129,357.00 |
Cl. #14 | Clair Emerson | $14,445.75 |
Cl. #15 | Sam Pistoresi Living Trust | $109,019.00 |
Cl. #16 | Rosalva Garcia Docket 136 | $45,000.00 |
OFF CALENDAR: Notice fo Withdrawal RE: Second Omnibus Motion filed 12/16/2020 - td (12/16/2020)
- NONE LISTED -
10:30 AM
Debtor(s):
Little John's Antique Arms, Inc. Represented By Richard A Marshack Chad V Haes
D Edward Hays
10:30 AM
Docket 126
- NONE LISTED -
January 7, 2021
Grant motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Little John's Antique Arms, Inc. Represented By Richard A Marshack Chad V Haes
D Edward Hays
Movant(s):
Little John's Antique Arms, Inc. Represented By Richard A Marshack Chad V Haes
D Edward Hays
10:30 AM
Docket 36
- NONE LISTED -
January 7, 2021
Grant motion -- dismiss case.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Julie Barela Represented By
Thomas B Ure
10:30 AM
(2) Requiring Report on Status of Chapter 11 Case FR: 12-3-20
Docket 1
- NONE LISTED -
December 3, 2020
Continue the Status Conference to January 7, 2021 at 10:30 a.m., same date/time as hearing on the motion of the US Trustee to dismiss or convert the case. (XX)
Note: Appearance at this hearing is not required.
January 7, 2021
Take status conference off calendar in light of granting of motion to dismiss case.
Debtor(s):
Julie Barela Represented By
Thomas B Ure
10:30 AM
Docket 1
- NONE LISTED -
January 7, 2021
Deadline to file plan*: Feb. 16, 2021 Plan Confirmation Hearing/
Continued Status Conference: Apr. 15, 2021 at 10:30 a.m.
Deadline to serve plan/
deadline notices/ballot: Feb. 23, 2021
Deadline for return of ballots/
filing objections to plan: Mar. 23, 2021
Deadline to file confirmation
brief/ballots/ tally analysis Apr. 6, 2021
*The court will not require a disclosure statement. However, the plan must include a brief statement discussing the circumstances precipitating the filing and the purpose of the plan. An updated chapter 11 status report is not required if a plan is timely filed by February 16, 2021.
Special Note: The court does not typically set a deadline for the filing of proofs of claim unless a deadline is specifically requested.
10:30 AM
Note: If Debtor is in substantial compliance with the requirements of the
U.S. Trustee, accepts the confirmation schedule proposed above, and there have been no significant developments in the case since the status report was filed, appearances at this hearing will not be required. It is Debtor's responsibility to confirm substantial compliance with the
U.S. Trustee in advance of the hearing. The Court will issue its own order re the continuance of the Status Conference.
Debtor(s):
American Sterling Corporation Represented By Nanette D Sanders
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
[LEVENE, NEALE, BENDER, YOO & BRILL L.L.P., ATTORNEYS FOR THE JOINT COMMITTEE OF CREDITORS HOLDING UNSECURED CLAIMS]
Docket 334
- NONE LISTED -
January 7, 2021
Approve fees and expenses on an interim basis as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Hytera Communications America Represented By
John W Lucas Jason H Rosell Victoria Newmark
10:30 AM
[PACHULSKI STANG ZIEHL & JONES LLP, GENERAL BANKRUPTCY COUNSEL FOR THE DEBTORS AND DEBTORS IN POSSESSION]
Docket 340
- NONE LISTED -
January 7, 2021
Approve fees and expenses on an interim basis as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Hytera Communications America Represented By
John W Lucas Jason H Rosell Victoria Newmark
10:30 AM
[STEPTOE & JOHNSON LLP AS CORPORATE AND SPECIAL COUNSEL FOR THE DEBTORS AND THE DEBTORS IN POSSESSION]
Docket 341
- NONE LISTED -
January 7, 2021
Approve fees and expenses on an interim basis as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Hytera Communications America Represented By
John W Lucas Jason H Rosell Victoria Newmark
Movant(s):
Steptoe & Johnson LLP Represented By John W Lucas
10:30 AM
[IMPERIAL CREDIT CAPITAL, LLC, INVESTMENT BANKER AND FINANCIAL ADVISOR TO THE DEBTORS AND DEBTORS IN POSSESSION]
Docket 342
- NONE LISTED -
January 7, 2021
Approve fees and expenses on an interim basis as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Hytera Communications America Represented By
John W Lucas Jason H Rosell Victoria Newmark
Movant(s):
Imperial Capital, LLC Represented By John W Lucas
10:30 AM
[OMNI AGENT SOLUTIONS, CASE ADMINISTRATIVE CONSULTANT TO THE DEBTORS AND DEBTORS IN POSSESSION]
Docket 343
- NONE LISTED -
January 7, 2021
Approve fees and expenses on an interim basis as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Hytera Communications America Represented By
John W Lucas Jason H Rosell Victoria Newmark
Movant(s):
Omni Agent Solutions Represented By John W Lucas
9:30 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
9:30 AM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
- NONE LISTED -
9:30 AM
- NONE LISTED -
9:30 AM
Adv#: 8:20-01151 Bristol SL Holdings, Inc v. HOWARD B. GROBSTEIN
Docket 1
SPECIAL NOTE: Stipulation for Judgment filed 10/29/2020; Judgment Lodged in LOU on 10/29/2020, Order #10292351 - td (10/30/2020)
January 14, 2021
In light of pending settlement, continue the Status Conference to February 18, 2021 at 9:30 a.m.; an updated Status Report must be filed by February 4, 2021 if a Rule 9019 motion has not been filed by such date.
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
Debtor(s):
Solid Landings Behavioral Health, Represented By
David L. Neale Juliet Y Oh Jeffrey S Kwong David M Samuels
Defendant(s):
HOWARD B. GROBSTEIN Pro Se
Plaintiff(s):
Bristol SL Holdings, Inc Represented By Nathan Fransen
9:30 AM
9:30 AM
Adv#: 8:19-01155 Kang Family 2007 Revocable Trust v. Kim et al
FR: 10-17-19; 1-16-20; 5-7-20; 6-4-20; 7-9-20
Docket 1
- NONE LISTED -
October 17, 2019
Discovery Cut-off Date: Mar. 6, 2020
Deadline to Attend Mediation: Jan. 31, 2020
Pretrial Conference Date: Apr. 30, 2020 at 9:30 a.m. Deadline to Lodge Joint Pretrial Stipulaton: Apr. 16, 2020
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.divider
January 16, 2020
Discovery Cut-off Date: Mar. 16, 2020
Pretrial Conference Date: May 7, 2020 at 9:30 a.m. (XX)
Deadline to Lodge Joint Pretrial Stipulaton: Apr. 23, 2020
Note: If all parties accept the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
9:30 AM
June 4, 2020
Continue the Pretrial Conference to July 9, 2020 at 9:30 a.m. to allow the parties to file an amended pretrial stipulation by June 25, 2020. The amended pretrial stipulation should address the comments of the court in its tentative ruling and also whether each party wishes to submit direct testimony by declaration in advance of the trial in accordance with this court's Trial Procedures or if they prefer live direct testimony. (XX)
Comments re the Pretrial Stipulation:
The court commends the parties for timely filing a thorough and thoughtful pretrial stipulation ("PS"), including a complete list of exhibits and witnesses. That said, the PS will need to be amended per the comments below.
Page 3, line 7: There appear to be action words missing, e.g., should "submitted a signed Letter of Intent to lease the property" be inserted?
Chronologically, paragraph 4 should probably replace paragraph 7.
Curiously, the Issues of Fact to be Litigated, starting on page 6, do not include all of the factual issues relating to 523(a)(2)(A) and (B). Instead, those issues have been relegated to section IV called Claims for Relief which includes mixed issues of fact and law re 523(a)(2). Also added are sections V (Remedies) and VI (Affirmative Defenses). Sections IV, V and VI (collectively the "Added Sections") are confusing and are not consistent with the structure of a pretrial stipulation as plainly set forth in LBR 7016-1(b)(2)(B) and (C). The section on Issues of Fact to be Litigated should include all issues of fact, including those that appear in the Added Sections. Similarly, the section on Issues of Law to be Litigated (Remaining Legal Issues) should include all legal issues, including those in the Added Sections. The court does not mind subheadings within the Issues of Fact and/or Issues of Law, but there should be one section on disputed facts and one section on issues of law.
Page 15, lines 1 and 3: "A list of" should be inserted after "Exhibits:" since
9:30 AM
the exhibits themselves are not attached.
It is the court's usual procedure to conduct direct testimony by declaration (the plaintiff submits written direct testimony 30 days before; the defendant does so 21 days before trial and both parties submit any evidentiary objections 7 days prior to trial). See, the court's Trial Procedures at cacb.uscourts.gov. However, direct testimony by declaration is not mandatory if the parties prefer live direct testimonyl By listing the direct examination time estimates in the PS, are the communicating a preference for live direct testimony as opposed to direct testimony by declaration (exclusive of adverse or rebuttal testimony)? Live direct vs. written direct will affect the trial time estimate.
The trial will likely take place the week of September 21, 2020. While in- person appearances may be possible by that time, the court is amenable to a video conference option for any parties who cannot appear in person.
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required; nonappearance at the hearing will be deemed acceptance of the tentative ruling.
July 9, 2020
The parties must appear and address the following issues:
Whether direct testimony will be presented by written declarations (see Court's Comment #5 above in the tentative ruling for June 4, 2020. This issue does not appear to be addressed in the amended pretrial stipulation. As previously noted, this affects the trial time estimate and setting of trial dates.
Whether the parties will be prepared to conduct the trial entirely by video conference (Zoom) if the trial is held in September during the week of September 21, 2020.
The trial cannot be set until the above issues have been addressed.
9:30 AM
Note: Appearances at this hearing are required.
January 14, 2021
Continue this Trial Procedures Conference to March 11, 2021 at 9:30 a.m.; postpone the Trial Dates to May 26, 2021 and May 27, 2021 starting each day at 9:30 a.m..
Note: If both parties accept the foregoing tentative ruling, appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing dates/times.
Debtor(s):
Peter Woo Sik Kim Represented By Andrew S Bisom
Defendant(s):
Peter Kim Pro Se
Sharon Kim Pro Se
Joint Debtor(s):
Sharon Soyun Kim Represented By Andrew S Bisom
Plaintiff(s):
Kang Family 2007 Revocable Trust Represented By
Edmond Richard McGuire
Trustee(s):
Weneta M Kosmala (TR) Represented By Lynda T Bui
9:30 AM
Rika Kido
9:30 AM
Adv#: 8:20-01154 Marshack v. Ra
Docket 1
- NONE LISTED -
January 14, 2021
Continue Status Conference to April 1, 2021 at 9:30 a.m.; an updated Status Report must be filed by March 18, 2021 if a motion for default judgement has not been filed by such date.
Special Note:
A motion for default judgment may self-calendared for the same date/time as the continued Status Conference date. Alternatively, the motion may be filed without a hearing pursuant to the procedure set forth in Local Bankruptcy Rule 9013-1(o).
The motion for default judgment, supported by evidence, must be served on defendant and defendant's counsel in accordance with Local Rule 9013-1(d). If the motion for default judgment is not heard by the continued date of the Status Conference, THE ADVERSARY MAY BE DISMISSED at the Status Conference for failure to prosecute.
Note: If Plaintiff accepts the foregoing tentative ruling, appearance at today's hearing is not required; Plaintiff to serve notice of the continued hearing date/time.
9:30 AM
Debtor(s):
Joseph Ra Represented By
David B Golubchik Jaenam J Coe
Defendant(s):
Joseph Ra Pro Se
Plaintiff(s):
Richard A. Marshack Represented By Thomas J Polis
Trustee(s):
Richard A Marshack (TR) Represented By Michael G Spector Thomas J Polis
9:30 AM
Adv#: 8:20-01004 Upstream Capital Investments LLC v. Guinto
FR: 4-2-20; 6-11-20; 11-5-20
Docket 1
CONTINUED: Pre-Trial Conference Continued to 4/1/2021 at 9:30 a.m., Per Order Entered 12/29/2020 (XX) - td (12/29/2020)
April 2, 2020
No proof of service or joint status report have been filed. Plaintiff must appear and advise the court as to why the same were not timely filed.
Note: Telephonic appearance by Plaintiff's counsel is required.
June 11, 2020 [TENTATIVE MODIFIED SINCE ORIGINAL POSTING]
Joint status report was not timely filed by May 28, 2020. Impose sanctions in the amount of $100 against Plaintiff's counsel for failure to do so.
Discovery Deadline: Aug. 14, 2020 Deadline to attend mandatory mediation: Sept. 30, 2020 Pretrial Conference: Nov. 5, 2020 at 9:30
a.m. (XX)
Joint Pretrial Stipulation due: Oct. 22, 2020
9:30 AM
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required; Plaintiff's counsel shall lodge a scheduling order consistent with the same. Sanctions payable within 30 days of the hearing, payable to the Clerk of the Bankruptcy Court - Central Dist. CA
November 5, 2020
Continue the Pretrial Conference to December 10, 2020 to allow Defendant one final opportunity to participate in the drafting of the Pretrial Stipulation. Defendant must advise Plaintiff's counsel of her suggested revisions to the Pretrial Stipulation no later than November 19, 2020 and Plaintiff will provide Defendant with a copy of the revised Pretrial Stipulation no later than November 30, 2020. The final version of the Joint Pretrial Stipulation must be filed no later than December 3, 2020.
Court's Comments
It is Defendant's best interest to participate in the drafting of the Joint Pretrial Stipulation ("Stipulation") because the Stipulation establishes all issues that will be decided at trial as well as the exhibits and witness that may be presented. Defendant is advised to review Local Bankruptcy Rule 7016-1 re the preparation of joint pretrial stipulations. Unless Defendant participates in the process, the unilateral Joint Pretrial Stipulation (except as noted below) will stand. Defendant is strongly advised to communicate with Plaintiff's counsel regarding the Stipulation.
On pages 2 and 3 of the Stipulation, Plaintiff lists all facts it believes are not in dispute. See paragraphs 1 (a) through (j). If Defendant disagrees with any of those facts, she needs to advise Plaintiff's counsel so that the disputed fact(s) can be included in paragraph 2 (starting at p.3, lines 15-27 to p. 4, lines 1-4). For example, if Defendant agrees that she filed a chapter 7 bankruptcy case on September 26, 2019, that is an "agreed" fact that need not be determined at trial. It is Defendant's responsibility to identify any facts
9:30 AM
in paragraph 1 that genuinely disputes and communicate that to Defendant.
Paragraph 2 includes facts that the parties do not agree on that must be decided by the court at trial, such as whether Defendant made false statements regarding the loan, etc.
Plaintiff states as an undisputed fact on p. 3 at lines 3-7 that a "default judgment for fraud was entered." However, though the complaint attaches several exhibits, a copy of the actual judgment (showing fraud) was not attached. This is important because the state court complaint also includes a cause of action for breach of contract (which is dischargeable) and there is at least a possibility that the judgment could be solely for breach of contract. The court notes that the judgment is not included on Plaintiff's list of exhibits.
Defendant needs to provide to Plaintiff's counsel by November 19, 2020
a) her list of witnesses (even if its just herself) and a short summary of what the witnesses will testify to; and b) her list of exhibits that she will present in her defense. If Defendant does not provide a list of witnesses or exhibits by November 19, 2020, she will not be allowed to present them at trial.
The trial date will be provided at the December 10, 2020 hearing.
Note: If the both parties accept the tentative ruling, appearances at this hearing are not required and Plaintiff shall serve notice of the continued hearing date and deadlines. Plaintiff is also encouraged to provide Defendant with a copy of the the tentative ruling prior to the hearing.
Debtor(s):
Catherine Melissa-Ann Guinto Represented By Lawrence B Yang
Defendant(s):
Catherine Melissa-Ann Guinto Pro Se
9:30 AM
Plaintiff(s):
Upstream Capital Investments LLC Represented By
Lynda E Jacobs
Trustee(s):
Weneta M Kosmala (TR) Pro Se
9:30 AM
Adv#: 8:20-01110 Myers v. Sandoval
(Another Summons Issued 10/30/2020)
Docket 1
- NONE LISTED -
January 14, 2021
No answer or other response to the Complaint has been filed by the defendant, Louis Sandoval. Accordingly, this Status Conference will be continued to April 15, 2021 at 9:30 a.m. to allow Plaintiff to file a motion for entry of a default judgment against the defendant which provides evidence to support the required elements of fraud under Bankruptcy Code Section 523(a)(2)(A).
Special Note:
A motion for default judgment may self-calendared for the same date/time as the continued Status Conference date. Alternatively, the motion may be filed without a hearing pursuant to the procedure set forth in Local Bankruptcy Rule 9013-1(o).
The motion for default judgment, supported by evidence, must be served on defendant and defendant's counsel in accordance with Local Rule 9013-1(d). If the motion for default judgment is not heard by the continued date of the Status Conference, THE ADVERSARY MAY BE DISMISSED at the Status Conference for failure to prosecute.
9:30 AM
The court strongly suggests that Plaintiff seek legal counsel regarding the preparation of a motion for default judgment.
Note: If Plaintiff accepts the foregoing tentative ruling, appearance at today's hearing is not required; Plaintiff to serve the defendant by mail with notice of the continued hearing date/time.
Debtor(s):
Louis Sandoval Represented By Steven B Lever
Defendant(s):
Louis Sandoval Pro Se
Plaintiff(s):
Charlotte Cysner Myers Pro Se
Trustee(s):
Weneta M Kosmala (TR) Pro Se
9:30 AM
Adv#: 8:20-01113 Dawam v. Yehia
Docket 27
- NONE LISTED -
January 14, 2021
Grant motion for the reasons stated in the Motion and Reply ; overrule opposition.
Basis for Tentative Ruling:
Over the past 26 years, this court has routinely stayed or abated nondischargeability adversary proceedings when state court actions were pending involving fraud and other torts such as conversion. If the state action results in a judgment in favor of the plaintiff, this court then determines if preclusion doctrines apply for purposes of dischargeability. For example, if the state judgment is entered against Debtor on the basis of fraud, such finding of fraud is likely to have preclusive effect in the nondischargeability trial. Conversely, if the state court judgment is based on "oppression," preclusion is not a certainty as "oppression" under California law does not rise to the level of "fraud" or other intentional tort for which discharge can be denied under either 523(a)(2)(A) or 523(a)(6). Finally, the court need not abstain in order to allow the state court action to proceed.
Deference Under the Colorado River Doctrine
Under the Colorado River Doctrine, the bankruptcy court has discretion
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to invoke a stay of bankruptcy proceedings, in favor of state court proceedings, and "that such power is distinct from, and not preempted by, the statutory bankruptcy abstention provisions 11 U.S.C. § 305; 28 U.S.C. § 1334(c). In re Bellucci, 119 B.R. 763, 767 (Bankr. E.D. Cal. 1990)
A Colorado River stay is a form of deference to state court jurisdiction rather than a recognized form of abstention, an exercise of such deference is subject to abstention analysis. Id. Citing Coopers & Lybrand v. Sun– Diamond Growers, 912 F.2d 1135, 1137 (9th Cir.1990). Under the Colorado River doctrine, a federal trial court has discretion, in "exceptional circumstances" and despite the general obligation to exercise jurisdiction, to stay or dismiss an action for reasons of wise judicial administration solely because of the existence of parallel litigation in state court. The doctrine applies in bankruptcy. See Wilkey v. Sutton (In re Sutton), 109 B.R. 238 (Bankr.W.D.Ky.1989); Tidwell Indus., Inc., 87 B.R. at 345. The determination is guided by an exceptional circumstances test based upon six factors that emerge from the Supreme Court's decisions in Colorado
River and its progeny:
The assumption of jurisdiction over any res or property in question.
The relative convenience of the state and federal forums.
The danger of unnecessarily piecemeal litigation.
The order in which concurrent tribunals obtained and exercised jurisdiction.
Whether federal or state law provides the rule of decision on the merits.
The adequacy of the state proceeding to protect the parties' rights.
These factors are "to be applied in a pragmatic, flexible manner with a view to the realities of the case at hand." Id at 775, citing Moses H. Cone Hospital, 460 U.S. at 21, 103 S.Ct. at 940. Mechanical applications are disfavored. Id.
The Motion cites Qingdao Tang-Buy Int’l Import & Export Co, No. 15- cv-00624-LB at 6 (N.D. Cal. Nov. 3, 2016) for a list of eight factors to be consider under the Colorado River Doctrine. I have located that case under the citation 2016 WL 6524396 with the same case number and date, however, this case has no relation to the Colorado River Doctrine or the relevant factors thereunder. The proper case appears to be R.R. St. & Co.
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Inc. v. Transp. Ins. Co., 656 F.3d 966, 978–79 (9th Cir. 2011), which provides that:
Drawing from Colorado River, Moses H.
Cone and subsequent Ninth Circuit cases, we have recognized eight factors for assessing the appropriateness of a Colorado River stay or dismissal: (1) which court first assumed jurisdiction over any property at stake; (2) the inconvenience of the federal forum; (3) the desire to avoid piecemeal litigation; (4) the order in which the forums obtained jurisdiction; (5) whether federal law or state law provides the rule of decision on the merits; (6) whether the state court proceedings can adequately protect the rights of the federal litigants; (7) the desire to avoid forum shopping; and (8) whether the state court proceedings will resolve all issues before the federal court. Holder, 305 F.3d at 870.
Assumption of Jurisdiction Over Property in Question This case revolves around a failed business arrangement between
Plaintiff and Defendant in the investment of a Farmers Insurance Agency in Huntington Beach (the "Agency") and the share of profits from the Agency. See FAC. There is no physical property at issue (which this factor seems to refer to). However, the dispute was first raised in the State Court Proceedings, more than two years before the bankruptcy was filed.
Therefore, the state court first assumed jurisdiction.
Inconvenience of the Federal Court
This factor does not really weigh either way. Defendant filed bankruptcy so she is subject to federal court. Plaintiff filed this adversary in bankruptcy court and does not allege that bankruptcy court is inconvenient. Plaintiff’s argument is more that underlying proceeding has been litigated for over 2 years in state court and has just passed the motion to dismiss and Answer stage in our court.
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Piecemeal Litigation
The danger of unnecessary piecemeal litigation favors allowing the state court to rule. The action is ready to proceed to trial in state court and this court has granted RFS. If this court were to go forward with the adversary, it would be some time until a pretrial conference is set, pre trial motions are heard and the matter is set for trial.
Order in which Tribunals Obtained and Exercised Jurisdiction.
The order in which the state and federal courts obtained jurisdiction over Plaintiff’s claims weigh in favor of a stay. The focus is on the relative progress of the cases in the state and federal forums—how the courts have "exercised" their jurisdiction. In Swift v. Bellucci, was filed nearly nine years before the Bellucci bankruptcy. While the State Court Proceeding is not that far along in our case. It is over two years progressed and is ready to proceed to trial. Conversely, Defendant only recently filed an Answer in this case.
Whether Federal or State Law Provides the Rule of Decision on the Merits
The underlying causes of action were filed in the State Court, based upon state court allegations of fraud and breach of contract. Once the state court has rendered a final judgment on the fraud claims, this court may rule whether the fraud claims are dischargeable based upon the doctrine of collateral estoppel. Conversely, the breach of contract claims are dischargeable, therefore, as this court has already ruled, Plaintiff may not pursue breach of contract in state court. This was the order of the Court pursuant to the RFS entered December 17, 2020 as docket #25, which was unopposed by Defendant.
Adequacy of the State Court Proceeding to Protect the Parties' Rights
As indicated in the previous factor, this court has already granted RFS to proceeding with all but two claims for relief in the state court action.
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Defendant did not file an opposition to the relief from stay. The underlying claims for relief are under state law and are best determined in the State Court Proceeding. Even if Plaintiff receives a positive outcome in the State Court Proceedings, he is not guaranteed a judgment in this court. As such, Defendant’s rights are protected. The issue of nondischargeability will be determined in bankruptcy court, but can be done more expeditiously if this court has a final judgment with findings from the that allow the application of collateral estoppel.
Desire to Avoid Forum Shopping
The State Court Proceeding has been ongoing for over two years. It wasn’t until shortly before trial that Defendant filed bankruptcy. The bankruptcy appears to have been filed to quickly stop the trial and bring the claims in front of this court, i.e. forum shop. This factor weighs in favor of deference.
Whether State Court Proceedings Will Resolve All Issues
All issues will not be resolved by the State Court Proceedings because this Court will ultimately decide the issue of nondischargeability. However, a final judgment with findings by the stat court will short circuit the litigation in this court when a proper motion for summary judgment (collateral estoppel) is brought. This factor weighs in favor of deference.
Stay Under §105(a)
Pursuant to section 105(a), the court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. 11 U.S.C. §105(a). Moreover, the ability to stay a proceeding is incidental to the court’s inherent powers. "The inherent powers of federal courts are those which are necessary to the exercise of all others." Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980). Such inherent powers are ones governed not by rule or statute but "which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court…" Id. at 764-65. Thus, "[i]t is well-established that district courts have inherent power to control their dockets and may impose sanctions … in the exercise of that discretion."
9:30 AM
Atchison, Topeka & Sante Fe Ry. Co. v. Hercules, Inc., 146 F.3d 1071, 1074 (9th Cir. 1988).
Staying this proceeding will conserve time and resources for the court and the parties. This adversary proceeding seeks a determination that a debt is nondischargeable under §523(a)(2) and (a)(4) for fraud. There is already a parallel action in state court to determine fraud based on the same allegations. The State Court Proceeding is ready to go to trial and should be permitted to do so. Once a final judgment has been entered, this court can determine whether the judgment, if any, is nondischargeable under §523(a) pursuant to a motion for summary judgment under the doctrine of collateral estoppel instead of a lengthy trial. Pursuant to §105, the court’s inherent power, and the status conference order, this adversary proceeding should be stayed.
Debtor(s):
Mazin M. Yehia Represented By Christine A Kingston
Defendant(s):
Mazin M. Yehia Represented By Christine A Kingston
Movant(s):
Naeel Hamdy Dawam Represented By Benjamin R Heston Richard G Heston
Plaintiff(s):
Naeel Hamdy Dawam Represented By Benjamin R Heston Richard G Heston
Trustee(s):
Jeffrey I Golden (TR) Pro Se
9:30 AM
Adv#: 8:20-01113 Dawam v. Yehia
FR: 10-22-20; 11-5-20
Docket 1
SPECIAL NOTE: Main Case Closed 8/11/2020 - td (8/25/2020)
October 22, 2020
Continue Status Conference to November 5, 2020 at 2:00 p.m., same date/time as hearing on Defendant's motion to dismiss. Updated Status Report not required for the November 5, 2020 hearing. (XX)
Note: If all parties accept the foregoing tentative ruling, appearances at today's hearing are not required.
January 14, 2021
Continue Status Conference to May 20, 2021 at 9:30 a.m.; updated Joint Status Report must be filed by May 6, 2021.
Note: If all parties accept the foregoing tentative ruling, appearances at today's hearing are not required.
Debtor(s):
Mazin M. Yehia Represented By
9:30 AM
Christine A Kingston
Defendant(s):
Mazin M. Yehia Pro Se
Plaintiff(s):
Naeel Hamdy Dawam Represented By Benjamin R Heston
Trustee(s):
Jeffrey I Golden (TR) Pro Se
10:00 AM
Adv#: 8:16-01024 Floorit Financial, Inc. v. Upadhyaya
FR: 4-9-20; 6-4-20; 9-10-20; 11-19-20
Docket 20
CONTINUED: Hearing on Examination Continued to 5/20/2021 at 10:00 a.m., Per Order Entered 1/11/2021 (XX) - td (1/11/2021)
June 4, 2020
Continue the examination to September 10, 2020 at 10:00 a.m. (XX) Basis for Tentative Ruling
The courthouse remains closed to in-person court appearances and on-site in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse, including by video conference, prior to September 10, 2020. Depending on the status of pandemic-related rules and policies in place on September 1, 2020, the September 10, 2020 hearing may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
September 10, 2020
10:00 AM
Continue the examination to November 19, 2020 at 10:00 a.m. (XX) Basis for Tentative Ruling
The courthouse is currently closed to in-person court appearances and on- site in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse, including by video conference, prior to November 19, 2020. Depending on the status of pandemic-related rules and policies in place on November 19, 2020, the examination may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
November 19, 2020
This tentative ruling applies to #s 15 and 16 on today's calendar:
The courthouse is currently closed to in-person court appearances and on- site in-person judgment debtor examinations. However, as this court now conducts hearings on the Zoom platform, the examination may be accommodated by placing the parties in a separate private Zoom "room" after the examinees are sworn in by the courtroom clerk. It will the responsibility of the Judgment Creditor to either have the court reporter call into the Zoom hearing at the commencement of the hearing or to make other arrangements for the participation of the court reporter. Alternatively, the Judgment Creditor is free to schedule an examination outside the courthouse, including by video conference, in which case this hearing will be continued to January 14, 2021 at 10:00 a.m.
The Judgment Creditor shall advise the courtroom clerk of its choice at the time of the calendar roll call.
10:00 AM
Debtor(s):
Darshan Upadhyaya Represented By Amid Bahadori
Defendant(s):
Darshan Upadhyaya Represented By Amid Bahadori
Plaintiff(s):
Floorit Financial, Inc. Represented By
Tom Roddy Normandin James T Jackson
Trustee(s):
Jeffrey I Golden (TR) Represented By Jeremy Faith Nina Z Javan
Meghann A Triplett
10:00 AM
Adv#: 8:16-01024 Floorit Financial, Inc. v. Upadhyaya
FR: 4-2-20; 6-4-20; 9-10-20; 11-19-20
Docket 23
CONTINUED: Hearing on Examination Continued to 5/20/2021 at 10:00 a.m., Per Order Entered 1/11/2021 (XX) - td (1/11/2021)
April 2, 2020
In order to comply with social distancing guidelines, continue the examination to June 4, 2020 at 10:00 a.m., except that the parties are free to stipulate to a remote videoconference examination at a mutually agreeable time prior to June 4, 2020.
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiff shall lodge an order consistent with the same.
June 4, 2020
Continue the examination to September 10, 2020 at 10:00 a.m. (XX) Basis for Tentative Ruling
The courthouse remains closed to in-person court appearances and on-site
10:00 AM
in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse in accordance with applicable rules, including by video conference, prior to September 10, 2020. Depending on the status of pandemic-related rules and policies in place on September 1, 2020, the September 10, 2020 hearing may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
September 10, 2020
Continue the examination to November 19, 2020 at 10:00 a.m. (XX) Basis for Tentative Ruling
The courthouse is currently closed to in-person court appearances and on- site in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse, including by video conference, prior to November 19, 2020. Depending on the status of pandemic-related rules and policies in place on November 19, 2020, the examination may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
November 19, 2020
This tentative ruling applies to #s 15 and 16 on today's calendar:
The courthouse is currently closed to in-person court appearances and on-
10:00 AM
site in-person judgment debtor examinations. However, as this court now conducts hearings on the Zoom platform, the examination may be accommodated by placing the parties in a separate private Zoom "room" after the examinees are sworn in by the courtroom clerk. It will the responsibility of the Judgment Creditor to either have the court reporter call into the Zoom hearing at the commencement of the hearing or to make other arrangements for the participation of the court reporter. Alternatively, the Judgment Creditor is free to schedule an examination outside the courthouse, including by video conference, in which case this hearing will be continued to January 14, 2021 at 10:00 a.m.
The Judgment Creditor shall advise the courtroom clerk of its choice at the time of the calendar roll call.
Debtor(s):
Darshan Upadhyaya Represented By Amid Bahadori
Defendant(s):
Darshan Upadhyaya Represented By Amid Bahadori
Plaintiff(s):
Floorit Financial, Inc. Represented By
Tom Roddy Normandin James T Jackson
Trustee(s):
Jeffrey I Golden (TR) Represented By Jeremy Faith Nina Z Javan
Meghann A Triplett
10:00 AM
VS.
DEBTORS
Docket 33
- NONE LISTED -
January 14, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Peter Ornelas Represented By
Kevin Tang
Joint Debtor(s):
Rebecca B Ornelas Represented By Kevin Tang
10:00 AM
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
(RE: 11411 Ayrshire Road, Los Angeles, CA 90049)
GOLDMAN SACHS BANK USA VS.
DEBTOR FR: 12-10-20
Docket 89
- NONE LISTED -
December 10, 2020
Continue hearing to February 11, 2021 at 10:00 a.m. to allow Movant to complete timely and adequate service to Debtor and to submit evidence that the subject property has declined in value since the bankruptcy filing. Movant must file any supplemental pleading(s) no later than January 21, 2021; any opposition must be filed no later than January 28, 2021; and any reply must be filed no later than February 4, 2021.
Basis for Tentative Ruling:
Service:
Debtor was not timely served with the Motion or notice of the hearing in accordance with FRBP 7004(b)(3) as required by FRBP 9014. The supplemental proof of service filed on December 3, 2020 shows untimely
10:00 AM
service.
Merits:
Movant needs to provide evidence (not supposition) that the subject property has declined in value during the term of the automatic stay. See, e.g., United Sav. Ass’n of Texas v. Timbers of Inwood Forest Associates, Ltd., 484 U.S.
365, 370 (1998) (“It is common ground that the ‘interest in property’ referred to by §362(d)(1) includes the right of a secured creditor to have the security applied in payment of the debt upon completion of reorganization; and that that interest is not adequately protected if the security is depreciating during the term of the stay.”) and In re Cambridge Woodbridge Apartments, LLC, 292 B.R. 832, 841 (Bankr. N.D. Ohio 2003) (stating that, to prevail under § 362(d)(1), a creditor must establish, among other things, “a decline in the value of the collateral securing the debt . . .”).
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required.
January 14, 2021
In light of the unrefuted supplemental evidence filed on December 14 [docket #127], grant the Motion.
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required.
Debtor(s):
SC Development Fund, LLC Represented By Keith S Dobbins
Movant(s):
Goldman Sachs Bank c/o Genesis Represented By
Byron Z Moldo
10:00 AM
Trustee(s):
Weneta M Kosmala (TR) Represented By Beth Gaschen Jeffrey I Golden
10:00 AM
(RE: 3415, 3417, 3417 West Bellevue Avenue, Los Angeles, CA 90026)
GOLDMAN SACHS BANK USA VS.
DEBTOR FR: 12-10-20
Docket 91
- NONE LISTED -
December 10, 2020
Continue hearing to January 14, 2021 at 10:00 a.m. to allow Movant to complete timely and adequate service to Debtor and to junior lienholder Jumbo Investments. (XX)
Basis for Tentative Ruling:
Service:
Debtor was not timely served with the Motion or notice of the hearing in accordance with FRBP 7004(b)(3) as required by FRBP 9014. The supplemental proof of service filed on December 3, 2020 shows untimely service.
The court will require notice to junior lienholder Jumbo Investments as well in light of the fact that Jumbo has been very active in the case.
10:00 AM
Tentative ruling for 1/14/21 hearing (if unopposed): Grant motion.
Note: If Movant accepts the foregoing tentative ruling, appearance at this hearing is not required.
January 14, 2021
Grant motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
SC Development Fund, LLC Represented By Keith S Dobbins
Movant(s):
Goldman Sachs Bank c/o Genesis Represented By
Byron Z Moldo
Trustee(s):
Weneta M Kosmala (TR) Represented By Beth Gaschen Jeffrey I Golden
10:00 AM
(RE: 2850 Delaware Avenue, Santa Monica, CA 90404)
GOLDMAN SACHS BANK USA VS.
DEBTOR FR: 12-10-20
Docket 93
- NONE LISTED -
December 10, 2020
Continue hearing to February 11, 2021 at 10:00 a.m. to allow Movant to complete timely and adequate service to Debtor and to submit evidence that the subject property has declined in value since the bankruptcy filing. Movant must file any supplemental pleading(s) no later than January 21, 2021; any opposition must be filed no later than January 28, 2021; and any reply must be filed no later than February 4, 2021.
Basis for Tentative Ruling:
Service:
Debtor was not timely served with the Motion or notice of the hearing in accordance with FRBP 7004(b)(3) as required by FRBP 9014. The supplemental proof of service filed on December 3, 2020 shows untimely service.
10:00 AM
Merits:
Movant needs to provide evidence (not supposition) that the subject property has declined in value during the term of the automatic stay. See, e.g., United Sav. Ass’n of Texas v. Timbers of Inwood Forest Associates, Ltd., 484 U.S.
365, 370 (1998) (“It is common ground that the ‘interest in property’ referred to by §362(d)(1) includes the right of a secured creditor to have the security applied in payment of the debt upon completion of reorganization; and that that interest is not adequately protected if the security is depreciating during the term of the stay.”) and In re Cambridge Woodbridge Apartments, LLC, 292 B.R. 832, 841 (Bankr. N.D. Ohio 2003) (stating that, to prevail under § 362(d)(1), a creditor must establish, among other things, “a decline in the value of the collateral securing the debt . . .”).
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required.
January 14, 2021
In light of the unrefuted supplemental evidence filed on December 14 [docket #127], grant the Motion.
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required.
Debtor(s):
SC Development Fund, LLC Represented By Keith S Dobbins
Movant(s):
Goldman Sachs Bank c/o Genesis Represented By
Byron Z Moldo
10:00 AM
Trustee(s):
Weneta M Kosmala (TR) Represented By Beth Gaschen Jeffrey I Golden
10:00 AM
(RE: 1532 Hi Point Street, Los Angeles, CA 90035)
GOLDMAN SACHS BANK USA VS.
DEBTOR FR: 12-10-20
Docket 95
- NONE LISTED -
December 10, 2020
Continue hearing to January 14, 2021 at 10:00 a.m. to allow Movant to complete timely and adequate service to Debtor and to junior lienholder Jumbo Investments. (XX)
Basis for Tentative Ruling:
Service:
Debtor was not timely served with the Motion or notice of the hearing in accordance with FRBP 7004(b)(3) as required by FRBP 9014. The supplemental proof of service filed on December 3, 2020 shows untimely service.
The court will require notice to junior lienholder Jumbo Investments as well in
10:00 AM
light of the fact that Jumbo has been very active in the case. Tentative ruling for 1/14/21 hearing (if unopposed): Grant motion.
Note: If Movant accepts the foregoing tentative ruling, appearance at this hearing is not required.
January 14, 2021
Grant the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
SC Development Fund, LLC Represented By Keith S Dobbins
Movant(s):
Goldman Sachs Bank c/o Genesis Represented By
Byron Z Moldo
Trustee(s):
Weneta M Kosmala (TR) Represented By Beth Gaschen Jeffrey I Golden
10:00 AM
(RE: 3515 Ocean View Avenue, Los Angeles, CA 90066)
GOLDMAN SACHS BANK USA VS.
DEBTOR FR: 12-10-20
Docket 97
- NONE LISTED -
December 10, 2020
Continue hearing to February 11, 2021 at 10:00 a.m. to allow Movant to complete timely and adequate service to Debtor and to submit evidence that the subject property has declined in value since the bankruptcy filing. Movant must file any supplemental pleading(s) no later than January 21, 2021; any opposition must be filed no later than January 28, 2021; and any reply must be filed no later than February 4, 2021.
Basis for Tentative Ruling:
Service:
Debtor was not timely served with the Motion or notice of the hearing in accordance with FRBP 7004(b)(3) as required by FRBP 9014. The supplemental proof of service filed on December 3, 2020 shows untimely
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service.
Merits:
Movant needs to provide evidence (not supposition) that the subject property has declined in value during the term of the automatic stay. See, e.g., United Sav. Ass’n of Texas v. Timbers of Inwood Forest Associates, Ltd., 484 U.S.
365, 370 (1998) (“It is common ground that the ‘interest in property’ referred to by §362(d)(1) includes the right of a secured creditor to have the security applied in payment of the debt upon completion of reorganization; and that that interest is not adequately protected if the security is depreciating during the term of the stay.”) and In re Cambridge Woodbridge Apartments, LLC, 292 B.R. 832, 841 (Bankr. N.D. Ohio 2003) (stating that, to prevail under § 362(d)(1), a creditor must establish, among other things, “a decline in the value of the collateral securing the debt . . .”).
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required.
January 14, 2021
In light of the unrefuted supplemental evidence filed on December 14 [docket #127], grant the Motion.
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required.
Debtor(s):
SC Development Fund, LLC Represented By Keith S Dobbins
Movant(s):
Goldman Sachs Bank c/o Genesis Represented By
10:00 AM
Trustee(s):
Byron Z Moldo
Weneta M Kosmala (TR) Represented By Beth Gaschen Jeffrey I Golden
10:00 AM
(RE: 15625 High Knoll Road, Encino, CA 91436)
GOLDMAN SACHS BANK USA VS.
DEBTOR FR: 12-10-20
Docket 99
- NONE LISTED -
December 10, 2020
Continue hearing to January 14, 2021 at 10:00 a.m. to allow Movant to complete timely and adequate service to Debtor. (XX)
Basis for Tentative Ruling:
Service:
Debtor was not timely served with the Motion or notice of the hearing in accordance with FRBP 7004(b)(3) as required by FRBP 9014. The supplemental proof of service filed on December 3, 2020 shows untimely service.
Tentative ruling for 1/14/21 hearing (if unopposed): Grant motion
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Note: If Movant accepts the foregoing tentative ruling, appearance at this hearing is not required.
January 14, 2021
Grant the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
SC Development Fund, LLC Represented By Keith S Dobbins
Movant(s):
Goldman Sachs Bank c/o Genesis Represented By
Byron Z Moldo
Trustee(s):
Weneta M Kosmala (TR) Represented By Beth Gaschen Jeffrey I Golden
10:30 AM
FR: 11-12-20
Docket 434
- NONE LISTED -
November 12, 2020:
If Claimant is an active corporation in good standing with the state of California, continue hearing date to January 14, 2021 at 10:30 a.m., with Patrick permitted to file supplemental pleadings by December 14, 2020; any supplemental response by Claimant to be filed by Dec. 23, 2020; and any reply to be filed by January 7, 2021. Discovery may be conducted in the interim in accordance with the adversary rules as permitted by FRBP 9014 for contested matters. Claimant is required to be represented by legal counsel re the filing of pleadings and appearance in court. (XX)
Basis for Tentative Ruling:
Background:
Creditor ProPainting ("Claimant") filed proof of claim no. 3 (the "Claim") in the general unsecured amount of $273,000 for goods and services as painting sub-contractor for two separate projects" related to the Renaissance Apartments (the "Renaissance Project") and the Stonebridge Apartments (the "Stonebridge Apartments").
Creditor Douglas Patrick ("Patrick") objects to the Claim and argues that it should be allowed in the reduced amount of $103,900 (the "Objection")
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[dkt. 434], (the "Reply")[dkt. 453]. Claimant opposes the Objection (the "Response")[dkt. 450]
Standing
The status of Claimant is critical for the following reasons:
1. Under Local Bankruptcy Rule 9011-2(a), a business entity such as a corporation, LLC or partnership, may only appear and file pleadings (other than a proof of claim) through legal counsel. Acccording to the California State Bar website, the author of the response filed on behalf of Claimant, Kwang Ho An ("An"), is not an attorney licensed to practice law in California. If that is the case, the Response is not properly before the court.
The fact that An is the president of Claimant suggests that the entity is a corporation and not a sole proprietorship and, therefore, must be represented by an attorney.
There is no evidence that Claimant is a business entity in good standing in the state of California. If it is not an active corporation or LLC, it may not appear to defend itself in any court proceeding as pointed out in the Reply.
Assuming that Claimant can establish good standing, it will need to employ legal counsel to represent it in this matter.
Standard
A proof of claim executed and filed in accordance with the Federal Rules of Bankruptcy Procedure 3001(f) constitutes prima facie evidence of the validity and amount of the claim. See Rule 3001(f); In re Lundell, 223 F.3d 1035, 1039 (9th Cir. 2000). Therefore, a proof of claim will be deemed allowed unless a party in interest objects. Lundell, 223 F.3d at 1039. Once a party in interest objects, the proof of claim will still provide some evidence as to its validity and amount, and will be strong enough to carry over a mere formal objection without more. Id. Thus, a party objecting to a claim must present affirmative evidence to overcome the presumption of its validity by showing
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"facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claims." Id. (citing In re Holm, 931 F.2d 620, 623 (9th Cir. 1991); In re King Street Inv., Inc., 219 B.R. 848, 858 (BAP 9th Cir. 1998). If the objector produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, then the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Lundell, 233 F.3d at 1039. The ultimate burden of persuasion remains at all times upon the claimant. Id.; Holm, 931 F.2d 620 (9th Cir. 1991).
Merits
The Claim is entitled to presumptive validity for the claim amount of
$273,000 (the Response asserts a claim in the increased amount of
$278,300). See, Response, p. 7:23. To date, Claimant has not amended its Claim to the increased amount of $278,300.
As the Claim is entitled to prima facie validity, Patrick must present affirmative evidence to overcome the Claim’s presumption of validity. Patrick argues that the Claim should be reduced to $103,900 in the Objection, and later argues that it should be reduced to $48,900 in the Reply. See, Obj., p. 7; Reply, p. 7. In support of his argument, based on evidence introduced for the first time in his Reply, Patrick argues that least $60,122 was paid by Debtor to Claimant for the Renaissance Project, and at least $112,470 was paid by Debtor to Claimant for the Stonebridge Project, leaving only $48,900 due under the Claim. Reply, p. 4-6. Patrick also argues that Claimant either was paid in full or voluntarily released its lien against the Renaissance Project which was sold in September 2013. Reply, p. 4. Claimant on the other hand, argues that no amounts were paid on account of the Renaissance Project ($109,200) and only $48,900 for the Stonebridge Project was previously paid leaving an unpaid balance of $169,100, plus interest, for the Stonebridge Project. Response, p. 2-4.
There appears to be a disputed question of fact regarding the amounts that were previously paid to Claimant by Debtor. Assuming Claimant has standing to assert the Claim, the court is inclined to continue the hearing to allow discovery pursuant to FRBP 9014 as requested by Patrick in his reply. See, Reply, p. 7. A continuance will also allow Claimant to address the
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evidence that was presented by Patrick for the first time in its Reply.
January 14, 2021
No tentative ruling. Debtor will be permitted up to 10 minutes to make key arguments in support of the Objection. Claimant Mr. An, will be permitted up to 10 minutes to respond and summarize his opposition to the Objection.
Debtor will be permitted up to 5 minutes to reply. Both parties should include the following issue as part their presentation: whether Pro Painting was a dba of Bonaview it entered into the contract with Debtor. At the conclusion of the oral argument, the hearing will be continued to February 11, 2021 at 10:30
a.m. for the Court's oral ruling on the objection.
Debtor(s):
Commercial Services Building Inc Represented By
Phillip B Greer
Trustee(s):
Karl T Anderson (TR) Represented By
Misty A Perry Isaacson Misty A Perry Isaacson Thomas J Polis
Robert M Dato Jason E Goldstein
10:30 AM
Docket 474
- NONE LISTED -
January 14, 2021
Deny motion for reconsideration for the reasons stated in the Opposition, except as to the issue of standing.
Basis for Tentative Ruling
The court has visited the Georgia Secretary of State website set forth in Debtor's opposition and determined that as of 1/13/21, Creditor Cunningham Builders has been reinstated and, therefore has standing to prosecute the Motion.
The claim objection was properly and timely served and Creditor's receipt of the same is unrefuted.
As pointed out by Debtor in the opposition, the notice of the objection states in clear and plain language that a written response was required to be filed 14 days prior to the hearing and that the failure to file a response could result in disallowance of the claim. Here, Creditor filed no response whatsoever. Not even a response requesting additional time to gather information.
The Court is not persuaded by Creditor's argument that it was not aware that it could submit evidence in support of its claim. The Claim Objection states on the last page that "CBL must come forward with evidence that it has
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an actual and valid claim against [Debtor] "
The declaration in support of the Claim Objection was sufficient to shift the burden of proof to Creditor. The standard of "sufficiency" applies in this Circuit.
The ultimate burden of proof rests with Creditor as a matter of law.
Pursuant to 11 U.S.C. § 502(j), "[a] claim that has been allowed or disallowed may be reconsidered for cause. A reconsidered claim may be allowed or disallowed according to the equities of the case." FRBP 3008 provides that, "A party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate. The court after a hearing on notice shall enter an appropriate order." Since Rule 3008 "is silent as to the standard applicable to a motion seeking to reconsider the allowance or disallowance of claims," courts apply the standards of either FRCP 59 or FRCP 60. See In re Wylie, 349 B.R. 204, 209 (BAP 9th Cir. 2006).
"Under Rule 59(e), a motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). "A motion brought under F.R.C.P. 59 involves reconsideration on the merits and should not be granted unless it is based on one or all of the following grounds: (1) to correct manifest errors of law or fact upon which the judgment is based; (2) to allow the moving party the opportunity to present newly discovered or previously unavailable evidence; (3) to prevent manifest injustice; or (4) to reflect an intervening change in controlling law." In re Oak Park Calabasas Condo. Ass'n, 302 B.R. 682, 683 (Bankr. C.D. Cal. 2003)(citing McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir.1999), cert. denied, 529 U.S. 1082 (2000).
Creditor has failed to demonstrate that the merits of the Disallowance Order should be reconsidered to correct manifest errors of law or fact, due to newly discovered evidence, necessary to prevent manifest injustice, or due to an intervening change in controlling law. Contrary to Creditor’s assertion that there was "no affirmative declaration that the declarant actually knew for sure
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that no money was owed or that the Creditor was paid" and that it was "simply one aging summary statement showed no money owed," see Mot., pl.
4:27-5:2, Patrick unequivocally stated that no money was owed per the aging summary and that his search of Debtor’s records did not produce any record to support the Claim. See Obj., p. 8, ¶¶5-6. This testimony was unrefuted because (setting aside why Creditor failed to respond since FRCP 59 looks at the underlying merits of the Disallowance Order) Creditor failed to file any opposition or appear at the hearing. Thus, based on the record before the court at the Objection hearing, the Disallowance Order was not based on any manifest error of fact. And Creditor’s argument that its principal "was not allowed any chance to rebut or respond to the Objection and was unaware of what was required to file or response with such limited to prepare" is inaccurate because Creditor was given an opportunity to file opposition by 14 days before the filing deadline
9. The BAP's decision in Wylie, 349 B.R. 204, 207-08 (BAP 9th Cir. 2006) is instructive. In Wylie, the creditor received notice of the objection but failed to file opposition or appear at the hearing. The creditor filed a motion for reconsideration relying on FRCP 60(b)(1). Id. at 210-211. The BAP held that the focus should first be on determining whether the creditor’s failure to appear at the claim objection hearing was the "result of its mistake, surprise, or neglect?" Id. at 210. "If so, was its failure to appear excusable?" Id. The BAP affirmed the bankruptcy court’s determination that the creditor’s failure to appear was not the result of a mistake, surprise, or neglect because the creditor received proper notice of the hearing. Id. at 211-12. The BAP thus found that the bankruptcy court did not abuse its discretion by refusing to reconsider the disallowance of the claim under FRCP 60(b)(1). Id. at 212. Here, as in Wylie, Creditor received proper notice but elected not to heed the warning in the notice regarding the filing of a response.
8. The court notes that Mr. Cunningham would not have been permitted to argue on behalf of Creditor at the hearing because business entities may not appear before the court without legal counsel.
Debtor(s):
Commercial Services Building Inc Represented By
10:30 AM
Trustee(s):
Phillip B Greer
Karl T Anderson (TR) Represented By
Misty A Perry Isaacson Misty A Perry Isaacson Thomas J Polis
Robert M Dato Jason E Goldstein
10:30 AM
[BROWN RUDNICK LLP, ATTORNEYS FOR CHAPTER 7 TRUSTEE, THOMAS H. CASEY]
Docket 678
- NONE LISTED -
January 14, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Lawrence Keith Dodge Represented By Mike D Neue Derrick Talerico Alan J Friedman William N Lobel
Trustee(s):
Thomas H Casey (TR) Represented By Cathrine M Castaldi
10:30 AM
Thomas H Casey Bruce A Hughes
10:30 AM
[BROWN RUDNICK LLP, ATTORNEYS FOR CHAPTER 7 TRUSTEE, THOMAS H. CASEY]
Docket 679
- NONE LISTED -
January 14, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Lawrence Keith Dodge Represented By Mike D Neue Derrick Talerico Alan J Friedman William N Lobel
Trustee(s):
Thomas H Casey (TR) Represented By Cathrine M Castaldi Thomas H Casey
10:30 AM
Bruce A Hughes
10:30 AM
Adv#: 8:16-01247 Damon v. Haythorne
FR: 7-16-19; 8-15-19; 10-17-19; 11-21-19; 1-30-20; 4-2-20; 6-11-20; 9-10-20;
11-19-20
Docket 128
CONTINUED: Judgment Debtor Examination is Continued to 3/11/2021 at 10:30 a.m., Per Order Entered 1/13/2021 (XX) - td (1/13/2021)
SPECIAL IMPORTANT NOTICE! In order to mitigate the spread of the COVID-19 virus, notice is hereby given that ALL hearings before Judge Smith will be by TELEPHONE APPEARANCE ONLY until further notice. The courtroom will be locked. Any party who wishes to appear must register in advance by contacting CourtCall at (866) 582-6878. It is suggested that parties register with CourtCall at least 30 minutes prior to the hearing. Through September 30, 2020, CourtCall is offering discounted registration for attorneys and free registration for parties without an attorney.
July 16. 2019
Stephen Haythorne to appear in court to be sworn in by the court clerk; the examination will take place outside the courtroom.
August 8, 2019
Stephen Haythorne to appear in court to be sworn in by the court clerk; the
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examination will take place outside the courtroom.
August 15, 2019
Stephen Haythorne to appear in court to be sworn in by the court clerk; the examination will take place outside the courtroom.
October 17, 2019
Judgment creditor has not sought the issuance of an OSC re contempt. Continue hearing to November 21, 2019 at 10:30 a.m. Any motion for OSC re contempt may be heard on the same date.
November 21, 2019
Judgment creditor to advise the court re the status of this matter. The court notes that judgment creditor has not sought the issuance of an OSC re contempt.
January 30, 2020
Judgment creditor to advise the court re the status of this matter, e.g., production of documents. Stephen Haythorne to appear in court to be sworn in by the court clerk; the examination will take place outside the courtroom.
June 11, 2020
Continue the examination to September 10, 2020 at 10:00 a.m. Basis for Tentative Ruling
The courthouse remains closed to in-person court appearances and on-site
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in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse, including by video conference, prior to September 10, 2020. Depending on the status of pandemic-related rules and policies in place on September 1, 2020, the September 10, 2020 hearing may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
September 10, 2020
Continue the examination to November 19, 2020 at 10:00 a.m. (XX) Basis for Tentative Ruling
The courthouse is currently closed to in-person court appearances and on- site in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse, including by video conference, prior to November 19, 2020. Depending on the status of pandemic-related rules and policies in place on November 19, 2020, the examination may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
10:30 AM
Debtor(s):
Stephen J Haythorne Represented By David S Henshaw
Defendant(s):
Stephen J Haythorne Pro Se
Plaintiff(s):
Hugh C Damon Represented By Robert P Goe Charity J Manee
Trustee(s):
Weneta M Kosmala (TR) Pro Se
10:30 AM
Adv#: 8:16-01247 Damon v. Haythorne
FR: 7-16-19; 8-15-19; 10-17-19; 11-21-19; 1-30-20; 4-2-20; 6-11-20; 9-10-20;
11-19-20
Docket 130
CONTINUED: Judgment Debtor Examination is Continued to 3/11/2021 at 10:30 a.m., Per Order Entered 1/13/2021 (XX) - td (1/13/2021)
SPECIAL IMPORTANT NOTICE! In order to mitigate the spread of the COVID-19 virus, notice is hereby given that ALL hearings before Judge Smith will be by TELEPHONE APPEARANCE ONLY until further notice. The courtroom will be locked. Any party who wishes to appear must register in advance by contacting CourtCall at (866) 582-6878. It is suggested that parties register with CourtCall at least 30 minutes prior to the hearing. Through September 30, 2020, CourtCall is offering discounted registration for attorneys and free registration for parties without an attorney.
July 16. 2019
Kelli Haythorne to appear in court to be sworn in by the court clerk; the examination will take place outside the courtroom.
August 8, 2019
Kelli Haythorne to appear in court to be sworn in by the court clerk; the
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examination will take place outside the courtroom.
August 15, 2019
Kelli Haythorne to appear in court to be sworn in by the court clerk; the examination will take place outside the courtroom.
October 17, 2019
Judgment creditor has not sought the issuance of an OSC re contempt. Continue hearing to November 21, 2019 at 10:30 a.m. Any motion for OSC re contempt may be heard on the same date.
November 21, 2019
Judgment creditor to advise the court re the status of this matter. The court notes that judgment creditor has not sought the issuance of an OSC re contempt.
January 30, 2020
Judgment creditor to advise the court re the status of this matter, e.g., production of documents. Kelli Haythorne to appear in court to be sworn in by the court clerk; the examination will take place outside the courtroom (no doctor's note was filed by January 16, 2020 excusing her appearance).
June 4, 2020
Continue the examination to September 10, 2020 at 10:00 a.m. Basis for Tentative Ruling
10:30 AM
The courthouse remains closed to in-person court appearances and on-site in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse, including by video conference, prior to September 10, 2020. Depending on the status of pandemic-related rules and policies in place on September 1, 2020, the September 10, 2020 hearing may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
September 10, 2020
Continue the examination to November 19, 2020 at 10:00 a.m. (XX) Basis for Tentative Ruling
The courthouse is currently closed to in-person court appearances and on- site in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse, including by video conference, prior to November 19, 2020. Depending on the status of pandemic-related rules and policies in place on November 19, 2020, the examination may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
10:30 AM
Debtor(s):
Stephen J Haythorne Represented By David S Henshaw
Defendant(s):
Stephen J Haythorne Pro Se
Plaintiff(s):
Hugh C Damon Represented By Robert P Goe Charity J Manee
Trustee(s):
Weneta M Kosmala (TR) Pro Se
10:30 AM
Docket 1043
CONTINUED: Hearing Continued to 5/6/2021 at 10:30 a.m., Per Order Entered 1/5/2021 (XX) - td (1/5/2021)
- NONE LISTED -
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson Robert P Goe
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe Claire K Wu
10:30 AM
Docket 1044
CONTINUED: Hearing Continued to 5/6/2021 at 10:30 a.m., Per Order Entered 1/5/2021 (XX) - td (1/5/2021)
- NONE LISTED -
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson Robert P Goe
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe Claire K Wu
10:30 AM
Docket 1045
CONTINUED: Hearing Continued to 5/6/2021 at 10:30 a.m., Per Order Entered 1/5/2021 (XX) - td (1/5/2021)
- NONE LISTED -
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson Robert P Goe
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe Claire K Wu
10:30 AM
FR: 12-17-20
Docket 293
OFF CALENDAR: Notice of Withdrawal of Motion, filed 1/13/2021 - td (1/13/2021)
December 17, 2020
Continue hearing to January 14, 2021 at 10:30 a.m to allow Movant to correct service issue: affected landlords were not served in accordance with FRBP 7004(b)(3) as required by FRBP 9014 for contested matters. (XX)
Service was made by email simply to : 'clin@president-llc.com' and
'achen@president-llc.com'
Tentative ruling for 1/14/21 hearing (if unopposed): Grant
Debtor(s):
Hytera Communications America Represented By
John W Lucas Jason H Rosell Victoria Newmark
10:30 AM
Docket 327
OFF CALENDAR: Joint Stipulation to Dismiss Motion, filed 1/6/2021 - td (1/7/2021)
- NONE LISTED -
Debtor(s):
Hytera Communications America Represented By
John W Lucas Jason H Rosell Victoria Newmark
10:30 AM
FR: 8-20-20; 11-19-20; 12-3-20
Docket 1
- NONE LISTED -
August 20, 2020
Claims bar date: Oct. 28, 2020 (notice to creditors by 8/28/20)
Deadline to file plan/DS: Dec. 18, 2020
Continued Status Conference: Nov. 19, 2020 at 10:30 a.m. (XX) Deadline to file Updated
Status Report: Nov. 5, 2020
Note: If Debtor is in substantial compliance with the requirements of the
U.S. Trustee, appearance at this Status Conference is not required. It is Debtor's responsibility to confirm compliance with the U.S. Trustee. The court will issue its own order re the foregoing schedule/deadlines.
November 19, 2020
Continue this Status Conference to December 3, 2020 at 10:30 a.m., same date/time as hearing on Debtor's motion to sell real property; updated Status Report not required for that hearing. (XX)
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Note: Appearance at this hearing is not required.
December 3, 2020
Continue Status Conference to January 14, 2021 at 10:30 a.m.; updated Status Report must be filed by January 7, 2021 if the case is still pending as of that date.(XX)
Note: Appearance at this hearing is not required.
January 14, 2021
Continue Status Conference to February 18, 2021 at 10:30 a.m., same date/time as hearing on motion filed by Debtor on 1/6/21; updated Status Report not required.
Note: Appearance at this hearing is not required.
Debtor(s):
Helen Weatherby Represented By Bert Briones
10:30 AM
GREEN ROCK II, LLC VS.
DEBTOR FR: 12-10-20
Docket 43
- NONE LISTED -
December 10, 2020
Continue hearing to January 14, 2021 at 10:00 a.m. to allow Movant to complete timely and adequate service to Debtor.
Basis for Tentative Ruling:
Service:
Debtor was not timely served with the Motion or notice of the hearing in accordance with FRBP 7004(b)(3) as required by FRBP 9014 for contested matters such as motions for relief from the stay.
Tentative ruling for 1/14/21 hearing (if unopposed): Grant motion with 4001(a)(3) waiver; deny request for prospective relief. Movant has not demonstrated evidence sufficient to support a bad faith finding. The court notes that a "duplicate" case that was filed in error was immediately closed.
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Note: If Movant accepts the foregoing tentative ruling, appearance at this hearing is not required.
January 14, 2021
Deny motion in light of granting of motion to dismiss the case.
Debtor(s):
Chase Merritt Global Fund LLC Represented By Thomas C Nguyen
Movant(s):
Green Rock II, LLC Wyoming Represented By Tinho Mang
10:30 AM
FR: 12-10-20
Docket 34
- NONE LISTED -
December 10, 2020
Grant motion -- Dismissal
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
January 14, 2021
Grant the Motion -- dismiss the case. Basis for Tentative Ruling
The Court has no confidence that this case can be administered properly, either as a Chapter 11 or a Subchapter V 11. During the hearing held on December 10, 2020, it became apparent that Debtor's attorney of record, has no experience in representing a business chapter 11 debtor and has proven not to be a quick study in coming up to speed on such representation. Among other things, counsel has been unable to navigate the Court's electonic fiing system on multiple occasions resulting in several pleadings
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being filed improperly, failed to timely file an application to be employed as counsel for Debtor, and failed to timely file an opposition to either of the two motions to dismiss filed by the U.S. Trustee and creditor Green Rock II ("Creditor").
By its order entered on December 18, 2020, the Court ordered any opposition by Debtor be filed by December 31, 2020. Debtor filed to file any opposition by such date, Instead, Debtor did not file an opposition to this Motion until January 12, 2021, just two days prior to today's hearing. The late pleading will not be considered.
Though the late opposition will not be considered on its merits, the Court observes one statement in the opposition at page 3 " While the debtor did not file a quarterly report, he did serve on the Trustee copies of the Bankruptcy Estate's checking account, believing this to be sufficient." This one statement illuminates counsel's profound lack of understanding of what is required to properly administer a chapter 11 case.
Counsel represented to the Court at the December 10, 2020 hearing that he would seek substitute counsel with chapter 11 experience to represent Debtor. This did not happen. Instead, counsel filed an application to employ him as general bankruptcy counsel for Debtor. The Court is not inclined to approve such an application. Debtor cannot appear in this case without legal counsel.
On or about December 30, 2020, Debtor elected to convert the case to one under Subchapter V. Such filing did not excuse Debtor from filing a timely opposition to the motions to dismiss, nor does it cleanse Debtor of its prior missteps in the case.
The Application to Employ Real Estate Agent ("Application") is fraught with inconsistencies. For example, Debtor states in the application that the property at 19362 Fisher Lane )"Fisher Property"), that it believes the value of the property to be $2M - $2.3M and that the proposed broker, Christopher Kwon ("Kwon") believes it to be worth $1.9M. See Application at p.2:15-20. Yet, the Listing Agreement attached to the Application dated 10/20/20 indicates a list price of only $1.775M. Further, as pointed out by Creditor in its opposition to the Application, Kwon's website for the Fisher Property
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indicates a list price as of 1/13/21 of $1.599M.
5. This is essentially a two-party dispute. Creditor (Green Rock) is one of two listed creditors with a secured debt of $1.35 million . The only other creditor, Dung No, is scheduled as an unsecured creditor in the amount of $65,000.
Debtor(s):
Chase Merritt Global Fund LLC Represented By Thomas C Nguyen
Movant(s):
United States Trustee (SA) Represented By Michael J Hauser
10:30 AM
FR: 12-10-20
Docket 38
- NONE LISTED -
December 10, 2020
Deny motion as moot in light if the US Trustee' motion to dismiss/convert case is granted.
Special note: Even if the US Trustee's motion is not granted, this hearing would need to be continued because Debtor was not served in accordance with FRBP 7004(b)(3) as required by FRBP 9014 for contested matters such as a motion to dismiss or convert a case brought against a debtor.
January 14, 2021
Grant the Motion if the Court denies the US Trustee's Motion to Dismiss or Convert the Case, also scheduled to be heard on this date; Deny the Motion if the Court grants the US Trustee's Motion to Dismiss or Convert the Case.
Basis for Tentative Ruling -- See Court's comments re #30 on today's calendar
10:30 AM
Debtor(s):
Chase Merritt Global Fund LLC Represented By Thomas C Nguyen
10:30 AM
Docket 21
- NONE LISTED -
January 14, 2021
Grant the Motion to dismiss this case due to Debtor Arnulfo Alatorre's failure attend two scheduled Rule 341(a) creditors' meetings.
No opposition or response has been filed by Debtor.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Arnulfo Alatorre Pro Se
Trustee(s):
Thomas H Casey (TR) Pro Se
2:00 PM
Adv#: 8:20-01010 Grobstein v. Degner
Docket 58
- NONE LISTED -
January 14, 2021
Grant the Motion.
Basis for Tentative Ruling
All evidentiary objections are overrruled.
Solid Landings Behavioral Health, Inc. and Sure Haven, Inc. ("Debtors") filed voluntary chapter 11 petitions on June 1, 2017. An order authorizing joint administration with several related debtors was entered on June 7, 2017. The order confirming the jointly administered liquidation plan was entered March 22, 2018, and Howard Grobstein was appointed liquidating trustee ("Plaintiff").
On January 30, 2020, Plaintiff commenced this adversary proceeding by filing his Complaint for Breach of Fiduciary Duty ("Complaint"). The Complaint alleges a single cause of action for breach of fiduciary duty against defendant, Gerik M. Degner ("Defendant"). Defendant filed an answer to the Complaint on April 21, 2020 ("Answer"), demanding a jury trial. Defendant also filed a third-party complaint (the "Third Party Complaint") against Starr Indemnity & Liability Company ("Starr") on April 22, 2020, and Starr filed its answer on May 26, 2020.
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Plaintiff now moves for partial summary judgment on Defendant’s 32nd affirmative defense, which defense alleges that Plaintiff’s claim for breach of fiduciary duty is barred by the business judgment rule under California Corporations Code § 309 and under California common law. By his Motion for Partial Summary Judgment on Defendant Gerik M. Degner’s Thirty- Second Affirmative Defense ("Motion"), Plaintiff argues that as Defendant was an officer and not a director of Debtors, California’s business judgment rule does not apply to him. Defendant opposes the Motion (the "Opposition") [AP dkt. 65].
A. Legal standard
A party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine issue of material fact, and establishing that it is entitled to judgment as a matter of law as to those matters upon which it has the burden of proof. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). The opposing party must make an affirmative showing on all matters placed in issue by the motion as to which it has the burden of proof at trial. Id. at 324. The substantive law will identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Id. A factual dispute is genuine where the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.
The court must view the evidence presented on the motion in the light most favorable to the opposing party. Id. "[I]f direct evidence produced by the moving party conflicts with direct evidence produced by the nonmoving party, the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact." T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 630–31 (9th Cir. 1987)(internal citations omitted).
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In the absence of any disputed material facts, the inquiry shifts to
whether the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323. Furthermore, where intent is at issue, summary judgment is seldom granted. See Provenz v. Miller, 102 F.3d 1478, 1489 (9th Cir. 1996), cert. denied, 118 S. Ct. 48 (1997). The shifting of burden within the context of motion for summary judgment is different, however, if the nonmoving party bears the burden of proof on a specific claim or defense:
Under Rule 56(c), the moving party bears the initial burden to establish that there are no genuine issues of material fact to be decided at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson, 477 U.S. at 248–50.
Where the nonmoving party will bear the burden of proof on a specific claim or defense at trial, the moving party may move for summary judgment based solely on the "pleadings, depositions, answers to interrogatories, and admissions on file." Celotex Corp., 477 U.S. at
324. There is no requirement "that the moving party support its motion with affidavits or other similar materials negating the opponent's claim." Id. at 323 (emphasis in original). The burden then shifts to the nonmoving party to produce "significantly probative evidence" of specific facts showing that there is a genuine issue of material fact requiring a trial. T.W. Elec. Serv., 809 F.2d at 630 (citing Fed.R.Civ.P. 56(e)).
The nonmoving party cannot "withstand a motion for summary judgment merely by making allegations; rather, the party opposing the motion must go beyond its pleadings and designate specific facts by use of affidavits, depositions, admissions, or answers to interrogatories showing there is a genuine issue for trial." In re Ikon Office Solutions, Inc., Sec. Lit., 277 F.3d 658, 666 (3d Cir.2002). If the nonmoving party fails to establish a triable issue on an essential element of its case and upon which it will bear the burden of proof at trial, the moving party is entitled to judgment as a matter of law.
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Celotex Corp., 477 U.S. at 322–23
In re Wellman, 2007 WL 4105275, *1, 3-4 (B.A.P. 9th Cir. 2007)(internal citations omitted).
Undisputed facts
Debtors are California corporations. Plaintiff’s Statement of Uncontroverted Facts ("SUF")[AP dkt. 59], 1, 4; Defendant’s Response to SUF ("SGI")[AP dkt. 68], 1, 4. Defendant was an officer (namely, the president) of Debtors. SUF 2, 5; SGI 2, 5.
Because the Business Judgment Rule (the "BJR") does not apply to Defendant, Plaintiff is entitled to partial summary adjudication as a matter of law
The parties agree that California law is applicable in this case. See Opp’n, 5:22-26. The parties also agree that the BJR exists in both statutory and common-law form under California law. See Mot., p. 6-8; Opp’n, 7:5-18 and 8:9-9:4; FDIC v. Van Dellen, 2012 U.S. Dist. LEXIS 146648, at *17-*18
(C.D. Cal. Oct. 5, 2012) ("California’s business judgment rule has two
components— immunization from liability that is codified at Corporations Code Section 309 and a judicial policy of deference to the exercise of good- faith business judgment in management decisions.") (internal quotation marks and citation omitted).
California’s statutory BJR is codified in Corporations Code § 309(c) which provides that "[a] person who performs the duties of a director in accordance with subdivisions (a) and (b) shall have no liability based upon any alleged failure to discharge the person’s obligations as a director.” California’s BJR is applicable only to corporate directors, however, and not corporate officers. See FDIC v. Perry, 2011 U.S. Dist. LEXIS 143222, at *10 (C.D. Cal. Dec. 13, 2011) ("California’s statutory BJR does not extend its protection to corporate officers. California Corporations Code 309, which
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codifies California’s common law BJR, expressly pertains to directors’ duties and liabilities and does not mention ‘officer’ anywhere in its text.
Consequently, the California legislature, without mistake, omitted officers in codifying BJR, and this Court cannot infer otherwise.") (internal citations omitted).
Likewise, California’s common law BJR only applies to corporate directors and not corporate officers. See FDIC v. Reis, 2013 U.S. Dist. LEXIS 197664, at *9 (C.D. Cal. Sep. 5, 2013) ("[T]he Court does not find persuasive Defendants’ arguments that the common law business judgment rule has been extended to officers . . . . The Court . . . finds that the business judgment rule does not protect officers’ corporate decisions."); Mot., p. 6-9.
Defendant is correct that only corporate directors are protected by the BJR. Opp’n, 7:6-8.
As discussed above, because Defendant will bear the burden of proof to prove his 32nd affirmative defense at trial, Plaintiff "may move for summary judgment based solely on the "pleadings, depositions, answers to interrogatories, and admissions on file," Wellman, 2007 WL 4105275 at 3 (citing Celotex Corp., 477 U.S. at 324) and the burden will be shifted "to the nonmoving party to produce ‘significantly probative evidence’ of specific facts showing that there is a genuine issue of material fact requiring a trial." Wellman, 2007 WL 4105275, *4 (citing T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 630–31 (9th Cir. 1987). The burden is therefore on Defendant to provide "significantly probative evidence" showing that Defendant was a director of Debtors, and not on Plaintiff as stated by Defendant. See Opp’n, 4:24.
To meet that burden, Defendant has submitted his own declaration in which he testifies, in summary, that:
Shortly after taking over as Debtors’ President, its owners requested that Defendant also act as a de facto director due to the leave of absence of Stephen Fennelly, Debtors’ director and CEO" and that for "almost a year, Defendant fulfilled his role as an officer while also
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acting as a director. While Defendant’s work as President emphasized increasing cash flow and reducing expenses – i.e. making the Debtor’s profitable – as a director, he renegotiated the terms of the Debtor’s existing line of credit while trying to obtain long-term financing and the sale of non-core assets.
Opp’n, 2:14-2; Declaration of Gerick Denger (the "Denger Declaration")[AP dkt. 66], 4-7, ¶¶13-24. Accordingly, Defendant’s position is that a material triable issue of fact exists such that the Motion cannot be granted because Defendant acted as de facto director which was allowed under Debtors’ bylaws pertaining to "advisory" directors. See Opp’n, 5:27-7:3 and 7:19-8:4.
The Denger Declaration, however, cannot be used to create a triable issue of fact because it contradicts Defendant’s own prior testimony. See Reply, 2:8-3:18. "The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony." Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir.
1991)(citing Radobenko v. Automated Equip. Corp., 520 F.2d 540, 544 (9th Cir. 1975)). The Ninth Circuit has reasoned that if a party could raise “raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." Kennedy, 925 F.2d at 266 (citations omitted). Thus, the Ninth Circuit has concluded that:
"[T]hat the Foster–Radobenko rule does not automatically dispose of every case in which a contradictory affidavit is introduced to explain portions of earlier deposition testimony. Rather, the Radobenko court was concerned with "sham" testimony that flatly contradicts earlier testimony in an attempt to "create" an issue of fact and avoid summary judgment. Therefore, before applying the Radobenko sanction, the district court must make a factual determination that the contradiction was actually a "sham."
Kennedy, 925 F.2d at 266 (citations omitted). In this case, the court can make the determination that the Denger Declaration contradicts his prior testimony in an attempt to "create" an issue of fact to avoid summary judgment.
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Defendant’s testimony in the Denger Declaration that he performed certain duties within his capacity as a de facto director contradicts he previous sworn statements that he performed these very same duties within his capacity as CEO and president of Debtors. See Reply, 3:19-7:21. For example, Defendant now testifies that, as a director, he brought in Insperity as a new human resources provider, worked with Debtors’ lender, Capstar to ensure liquidity and refinance Debtors’ debts, and brought back Brentwood to market the sale of Debtors’ facilities in Texas and Nevada. See Denger Decl., 4-5, ¶¶14-16. Yet, Defendant previously testified in his sworn responses to Plaintiff’s interrogatories that he performed these very same duties within his capacity as CEO and president:
Beginning in April 2016, Defendant, in his role as President, began to make operational changes and improvements to Solid Landings…
Human Resources…
Implemented Insperity….
Supplemental M. Reider Decl. [AP dkt. 72], Ex. S, 6:8-20. "In his role as CEO and President, Mr. Degner…worked with Capstar Bank…to be sure the Company had proper liquidity to finance its obligations as the operational changes were taking effect" and Brentwood was brought back to sell Debtors’ facilities in Nevada and Texas because Capstar had a prior relationship with Brentwood Id., Ex. S, 7:5-7 and 7:16-20. This testimony was signed under penalty of perjury. Id., Ex. S, p. 32.
During his sworn testimony before the court on July 26, 2017, Defendant also characterized his work with Capstar regarding Debtors’ financing and to bring back Brentwood to sell Debtors’ Nevada and Texas facilities to be part of his duties as president. See M. Reider Decl., Ex. U, 161:13-18, 166:25-167:14, 169:22-170:17 (page numbers referenced our at the bottom of the page). Thus, the Denger Declaration contradicts
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Defendant’s prior sworn testimony. See Supp. Reply, 3-8.
A finding that Defendant is now attempting to "create" a triable issue of fact by way of the Denger Declaration is further supported by Defendant’s failure to allege that he was a director of Debtors in his Third Party Complaint against Starr. See Supp. Reply, 7:23-8:25. In the Third Party Complaint, Defendant had every incentive to allege all potential causes of action against Starr for indemnification under the applicable D&O policy, but is only now alleging that he acted as a director for the first time- after the instant Motion was filed. Thus, the timing of this new, contradictory testimony leads the court to conclude that Defendant is attempting to "create" a triable issue of fact in defense against the Motion.
The court finds that the Denger Declaration is a "sham" declaration (as described by the Ninth Circuit) intended to create a triable issue of fact over whether Defendant performed certain duties within his capacity as an officer or director of Debtors. The Denger Declaration contradicts Defendant’s earlier sworn testimony that he performed those same duties within his capacity as CEO and president of Debtors. Under applicable Ninth Circuit law, "The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony." Kennedy, 952 F.2d 262 at 266.
Notably, Defendant submitted three pieces of documentary evidence: a client service agreement with Insperity, a marketing agreement, and a bill of sale, all of which were signed by him as "president." Denger Decl., Ex. A-C.
In sum, because Defendant bears the burden of proof regarding his BJR affirmative defense at trial, the burden is Defendant to defeat the Motion by producing "‘significantly probative evidence’ of specific facts showing that there is a genuine issue of material fact requiring a trial." Wellman, 2007 WL 4105275 *4. Defendant’s offer of a self-serving declaration (and the exhibits attached thereto) is not "significantly probative evidence" establishing a triable issue of material fact.
Even viewing the evidence in the light most favorable to Defendant, Plaintiff is
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entitled to partial summary adjudication on the 32nd affirmative defense as a matter of law.
EVIDENTIARY OBJECTIONS
Defendant's Evidentiary Objection to Declaration of Ste[hen Fennelly
Objection # Ruling
Overruled
Overruled
Overruled
Overruled
Debtor(s):
Solid Landings Behavioral Health, Represented By
David L. Neale Juliet Y Oh Jeffrey S Kwong David M Samuels
Defendant(s):
Gerik M. Degner Represented By Ismail Amin
2:00 PM
Plaintiff(s):
Howard B Grobstein Represented By Rodger M. Landau Monica Rieder
9:30 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
9:30 AM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
- NONE LISTED -
9:30 AM
[SC CASE]
Docket 10
- NONE LISTED -
Debtor(s):
Bonita J Vecchio Represented By Sean S Vahdat
Trustee(s):
Thomas H Casey (TR) Pro Se
9:30 AM
[TA CASE]
Docket 24
- NONE LISTED -
Debtor(s):
John E. Cusack Represented By Christine A Kingston
Joint Debtor(s):
Kathryn Cusack Represented By Christine A Kingston
Trustee(s):
Thomas H Casey (TR) Pro Se
9:30 AM
[TA CASE]
Docket 27
- NONE LISTED -
Debtor(s):
John E. Cusack Represented By Christine A Kingston
Joint Debtor(s):
Kathryn Cusack Represented By Christine A Kingston
Trustee(s):
Thomas H Casey (TR) Pro Se
9:30 AM
Docket 7
- NONE LISTED -
Debtor(s):
Thuan Le Represented By
Krystina T Tran
Trustee(s):
Weneta M Kosmala (TR) Pro Se
9:30 AM
Docket 8
- NONE LISTED -
Debtor(s):
Monique R Runge Pro Se
Trustee(s):
Karen S Naylor (TR) Pro Se
9:30 AM
Docket 9
- NONE LISTED -
Debtor(s):
Carla Joana Perez Perez Represented By Marlin Branstetter
Trustee(s):
Jeffrey I Golden (TR) Pro Se
9:30 AM
[TA CASE]
Docket 16
- NONE LISTED -
Debtor(s):
Luis Armenta Represented By Arlene M Tokarz
Joint Debtor(s):
Maria Teresa Armenta Represented By Arlene M Tokarz
Trustee(s):
Weneta M Kosmala (TR) Pro Se
9:30 AM
$31,689.00)
[TA CASE]
Docket 10
- NONE LISTED -
Debtor(s):
Matthew S. Cutler Represented By
R Grace Rodriguez
Joint Debtor(s):
Kristina H. M. Cutler Represented By
R Grace Rodriguez
Trustee(s):
Jeffrey I Golden (TR) Pro Se
9:30 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
9:30 AM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
NONE LISTED -
9:30 AM
9:30 AM
Adv#: 8:20-01160 Brazil v. Baskin
Docket 1
OFF CALENDAR: Order Approving Settlement and Judgment Entered 1/19/2021 - td (1/19/2021)
NONE LISTED -
Debtor(s):
Daniel Baskin Represented By Michael Jones Sara Tidd
Defendant(s):
Daniel Baskin Pro Se
Plaintiff(s):
Nicole Moraitis Brazil Represented By Michael Jones
Trustee(s):
Karen S Naylor (TR) Pro Se
9:30 AM
Adv#: 8:17-01071 Bral v. Beitler
FR: 9-20-18; 3-21-19; 8-15-19; 1-30-20; 5-21-20; 9-17-20
Docket 27
NONE LISTED -
September 20, 2018
Continue status conference to March 21, 2019 at 9:30 a.m.; updated status report to be filed by March 7, 2019 (XX)
March 21, 2019
Continue status conference to August 15, 2019 at 9:30 a.m.; updated joint status report to be filed by August 1, 2019. (XX)
Note: If all parties accept the foregoing tentative ruling, appearances at the March 21, 2019 hearing are not required.
August 15, 2019
Continue status conference to January 30, 2020 at 9:30 a.m.; updated status
9:30 AM
report must be filed by January 16, 2020. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued date/time.
January 30, 2020
Continue status conference to May 21, 2020 at 9:30 a.m.; updated joint status report must be filed by May 7, 2020. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued date/time.
May 21, 2020
Continue hearing to September 17, 2020 at 9:30 a.m. (XX)
Note: Appearance at this hearing is not required; non appearance at today's hearing shall be deemed acceptance of the tentative ruling.
September 17, 2020
Continue Status Conference to January 21, 2021; updated joint status report must be filed by January 7, 2021. (XX)
Special note: Starting 10/8/20 all hearings before Judge Smith will be by Zoom. See Court's website for details.
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
January 21, 2021
Continue the Status Conference to May 20, 2021 at 9:30 a.m.; updated
9:30 AM
Status Report must be filed by May 6, 2021. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
Debtor(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel Babak Samini Dean A Ziehl
Defendant(s):
Barry Beitler Represented By
Krikor J Meshefejian
Plaintiff(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel
9:30 AM
Adv#: 8:17-01071 Bral v. Beitler
FR: 9-20-18; 3-21-19; 8-15-19; 1-30-20; 5-21-20; 9-17-20
Docket 20
NONE LISTED -
September 20, 2018
Continue status conference to March 21, 2019 at 9:30 a.m.; updated status report to be filed by March 7, 2019 (XX)
March 21, 2019
Continuue status conference to August 15, 2019 at 9:30 a.m.; updated joint status report to be filed by August 1, 2019. (XX)
Note: If all parties accept the foregoing tentative ruling, appearances at the March 21, 2019 hearing are not required.
August 15, 2019
Continue status conference to January 30, 2020 at 9:30 a.m.; updated status report must be filed by January 16, 2020. (XX)
9:30 AM
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued date/time.
January 30, 2020
Continue status conference to May 21, 2020 at 9:30 a.m.; updated joint status report must be filed by May 7, 2020. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued date/time.
May 21, 2020
Continue hearing to September 17, 2020 at 9:30 a.m.; updated joint status report must be filed by September 3, 2020. (XX)
Note: Appearance at this hearing is not required; non appearance at today's hearing shall be deemed acceptance of the tentative ruling. Plaintiff to serve notice of the continued hearing date/time.
September 17, 2020
Continue Status Conference to January 21, 2021 at 9:30 am; updated joint status report must be filed by January 7, 2021. (XX)
Special note: Starting 10/8/20 all hearings before Judge Smith will be by Zoom. See Court's website for details.
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
January 21, 2021
9:30 AM
Continue the Status Conference to May 20, 2021 at 9:30 a.m.; updated Status Report must be filed by May 6, 2021. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
Debtor(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel Babak Samini Dean A Ziehl
Defendant(s):
Barry Beitler Represented By
Krikor J Meshefejian
Plaintiff(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel
9:30 AM
9:30 AM
Adv#: 8:17-01092 Beitler v. Bral
FR: 9-20-18; 3-21-19; 8-15-19; 1-30-20; 5-21-20; 9-17-20
Docket 35
NONE LISTED -
September 20, 2018
Continue status conference to March 21, 2019 at 9:30 a.m.; updated status report to be filed by March 7, 2019 (XX)
March 21, 2019
Continuue status conference to August 15, 2019 at 9:30 a.m.; updated joint status report to be filed by August 1, 2019. (XX)
Note: If all parties accept the foregoing tentative ruling, appearances at the March 21, 2019 hearing are not required.
August 15, 2019
Continue status conference to January 30, 2020 at 9:30 a.m.; updated status report must be filed by January 16, 2020. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued date/time.
9:30 AM
January 30, 2020
Continue status conference to May 21, 2020 at 9:30 a.m.; updated joint status report must be filed by May 7, 2020. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued date/time.
May 21, 2020
Continue hearing to September 17, 2020 at 9:30 a.m.; updated joint status report must be filed by September 3, 2020. (XX)
Note: Appearance at this hearing is not required; non appearance at today's hearing shall be deemed acceptance of the tentative ruling. Plaintiff to serve notice of the continued hearing date/time.
September 17, 2020
Continue Status Conference to January 21, 2021 at 9:30 am; updated joint status report must be filed by January 7, 2021.(XX)
Special note: Starting 10/8/20 all hearings before Judge Smith will be by Zoom. See Court's website for details.
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
January 21, 2021
Continue the Status Conference to May 20, 2021 at 9:30 a.m.; updated Status Report must be filed by May 6, 2021. (XX)
9:30 AM
Special Note: Re the comments of the parties in Section G of the Status Report, it is not clear what relief from the Court is sought. The court will entertain any properly filed motion.
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
Debtor(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel Babak Samini Dean A Ziehl
Defendant(s):
John Jean Bral Represented By William N Lobel Beth Gaschen Alan J Friedman
Plaintiff(s):
Barry Beitler Represented By
Krikor J Meshefejian Gary E Klausner
9:30 AM
Adv#: 8:17-01094 Beitler & Associates, Inc. dba Beitler Commercial v. Bral
FR: 9-20-18; 3-21-19; 8-15-19; 1-30-20; 5-21-20; 9-17-20
Docket 35
NONE LISTED -
September 20, 2018
Continue status conference to March 21, 2019 at 9:30 a.m.; updated status report to be filed by March 7, 2019 (XX)
March 21, 2019
Continue status conference to August 15, 2019 at 9:30 a.m.; updated joint status report to be filed by August 1, 2019. (XX)
Note: If all parties accept the foregoing tentative ruling, appearances at the March 21, 2019 hearing are not required.
August 15, 2019
Continue status conference to January 30, 2020 at 9:30 a.m.; updated status report must be filed by January 16, 2020. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued date/time.
9:30 AM
January 30, 2020
Continue status conference to May 21, 2020 at 9:30 a.m.; updated joint status report must be filed by May 7, 2020. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued date/time.
May 21, 2020
Continue hearing to September 17, 2020 at 9:30 a.m.; updated joint status report must be filed by September 3, 2020. (XX)
Note: Appearance at this hearing is not required; non appearance at today's hearing shall be deemed acceptance of the tentative ruling. Plaintiff to serve notice of the continued hearing date/time.
September 17, 2020
Continue Status Conference to January 21, 2021 at 9:30 am; updated joint status report must be filed by January 7, 2021. (XX)
Special note: Starting 10/8/20 all hearings before Judge Smith will be by Zoom. See Court's website for details.
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
January 21, 2021
Continue the Status Conference to May 20, 2021 at 9:30 a.m.; updated Status Report must be filed by May 6, 2021. (XX)
9:30 AM
Special Note: Re the comments of the parties in Section G of the Status Report, it is not clear what relief from the Court is sought. The court will entertain any properly filed motion.
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
Debtor(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel Babak Samini Dean A Ziehl
Defendant(s):
John Jean Bral Represented By William N Lobel Beth Gaschen Alan J Friedman
Plaintiff(s):
Beitler & Associates, Inc. dba Beitler Represented By
Krikor J Meshefejian Gary E Klausner
9:30 AM
Adv#: 8:20-01007 Grobstein v. Alpine Pacific Capital, LLC et al
[fr: 3/25/20, 6/24/20, 7/22/20]; 9-2-20, Rm 5D; 9-3-20
Docket 1
CONTINUED: Pre-trial Conference Continued to 12/2/2021 at 9:30 a.m.,
Per Order Entered 9/14/2020 (XX)- td (9/14/2020)
SPECIAL IMPORTANT NOTICE! In order to mitigate the spread of the COVID-19 virus, notice is hereby given that, starting with the March 19, 2020 hearings, ALL hearings before Judge Smith will be by TELEPHONE APPEARANCE ONLY until further notice. Any party who wishes to appear must register in advance by contacting CourtCall at (866)
582-6878. It is suggested that parties register with CourtCall at least 30 minutes prior to the hearing. Through September 30, 2020, CourtCall is offering discounted registration for attorneys and free registration for parties without an attorney.
September 3, 2020
Discovery Cut-off Date: Dec. 15, 2020
Pretrial Conference Date: Jan. 21, 2021 at 9:30 a.m. (XX) Deadline to File Join Pretrial Stipulation: Jan. 7, 2021
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
9:30 AM
Debtor(s):
Solid Landings Behavioral Health, Represented By
David L. Neale Juliet Y Oh Jeffrey S Kwong David M Samuels
Defendant(s):
Alpine Pacific Capital, LLC Pro Se
Gerik M. Degner Pro Se
Plaintiff(s):
Howard B Grobstein Represented By Rodger M. Landau
9:30 AM
Adv#: 8:19-01213 Marshack v. An et al
4. Recovery of Avoided Transfers
FR: 1-30-20; 3-19-20; 5-21-20; 7-23-20; 10-22-20
Docket 1
NONE LISTED -
January 30, 2020
Joint status report not timely filed.* Parties must appear and advise the court re the status of this matter.
* The Stipulation and Order [docket #s 5 & 6] only extended the answer date -- did not include an extension of the deadline to file a status report.
Note: Appearances at the hearing are required.
May 21, 2020
Continue the status conference to July 23, 2020 at 9:30 a.m.; updated status report must be filed by July 16, 2020 if the adversary is still pending by such date.
Note: Appearances at this hearing are not required.
January 21, 2021
9:30 AM
Continue status conference to April 8, 2021 at 9:30 a.m.; updated status report must be filed by March 25, 2021 if the adversary is still pending by such date. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
Debtor(s):
Prime Metals U.S.A., Inc. Represented By Steven Werth
Defendant(s):
Minho An Represented By
Michael H Yi
Byungwhan Chung Pro Se
Plaintiff(s):
Richard A Marshack Represented By Ronald S Hodges Robert P Goe Ryan S Riddles
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Laila Masud David M Goodrich Robert P Goe
9:30 AM
Adv#: 8:19-01218 Marshack v. Kim et al
FR: 2-6-20; 10-8-20
Docket 1
SPECIAL NOTE: Status Conference Scheduled for 11/5/2020 at 9:30
a.m. - td (7/31/2020)
CONTINUED: Pre-trial Conference Continued to 4/22/2021 at 9:30 a.m., Per Order Entered 7/31/2020 (XX) - td (7/31/2020)
February 6, 2020
Discovery Cut-off Date: June 1, 2020
Deadline to Attend Mediation: June 15, 2020
Pretrial Conference Date: July 16, 2020 at 9:30 a.m. (XX)
Deadline to Lodge Joint Pretrial Stipulation: July 6, 2020
Special Note: The joint status report filed 1/28/20 provides very little information regarding the status of the case, why there is no discovery schedule, and why Plaintiff is waiting for non-answering defendants to participate. Per the docket, only one defendant, Minho An, was granted an extension of time to January 7, 2020 to file an answer. An's answer was timely filed.
Note: If all parties agree with the foregoing schedule, appearances at
9:30 AM
today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
Debtor(s):
Prime Metals U.S.A., Inc. Represented By Steven Werth
Defendant(s):
Minho An Pro Se
Gill Su Sun Pro Se
Ik Dong Kim Pro Se
Plaintiff(s):
Richard A Marshack Represented By Ronald S Hodges Robert P Goe Ryan S Riddles
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Laila Masud David M Goodrich Robert P Goe
9:30 AM
Adv#: 8:18-01170 Add2Net, Inc. v. Natzic et al
FR: 12-6-18; 1-24-19; 4-18-19; 6-20-19; 8-22-19; 9-19-19; 12-5-19; 2-20-20;
4-16-20; 7-16-20; 9-17-20; 11-5-20
Docket 1
CONTINUED: Status Conference Continued to 4/1/2021 at 9:30 a.m., Per Order Entered 1/8/2021 (XX) - td (1/8/2021)
June 20, 2019
No tentative ruling. This tentative will be trailed to the 2:00 p.m. calendar along with the Motion to Dismiss
September 19, 2019
In light of the upcoming trial in the state court litigation, continue status conference to December 5, 2019 at 9:30 a.m.; updated status report must be filed by November 21, 2019. (XX)
Note: Appearances at today's hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
9:30 AM
Debtor(s):
George Carl Natzic Represented By Moises S Bardavid
Defendant(s):
Cheri Lynn Natzic Pro Se
George Carl Natzic Pro Se
Joint Debtor(s):
Cheri Lynn Natzic Represented By Moises S Bardavid
Plaintiff(s):
Add2Net, Inc. Represented By
Kevin Meek
Trustee(s):
Thomas H Casey (TR) Pro Se
9:30 AM
Adv#: 8:18-01206 Sakhai v. Masoudfar
[fr: 2/12/19, 7/23/19, 10/22/19, 1/21/20, 3/24/20, 6/30/20]; 9/29/20, Rm 5D; 10-1-20
Docket 1
NONE LISTED -
October 1, 2020
In light of pending settlement negotiations, continue this Status Conference to January 21, 2021 at 9:30 a.m.; an updated Status Report must be filed by January 7, 2021. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
January 21, 2021
Continue the Status Conference one final time to May 20, 2021 at 9:30 a.m.; updated Status Report must be filed by May 6, 2021. (XX)
Special Note: An updated Status Report was not filed by January 7, 2021 as ordered by the Court. If an updated Status Reportis not filed by May 6, 2021, monetary sanctions of not less than $100 will be imposed against Plaintiff's counsel.
Note: Appearances at this hearing are not required; Plaintiff to serve
9:30 AM
notice of the continued hearing date/time.
Debtor(s):
Mohsen Masoudfar Represented By
D Edward Hays
Defendant(s):
Mohsen Masoudfar Pro Se
Plaintiff(s):
Parastou Sakhai Represented By Jeffrey S Shinbrot
Trustee(s):
Weneta M Kosmala (TR) Represented By Reem J Bello
9:30 AM
Adv#: 8:19-01122 M.G.B. Construction, Inc. v. Duerscheidt
FR: 9-12-19; 11-7-19; 12-12-19; 6-11-20; 9-17-20; 12-17-20
Docket 1
NONE LISTED -
September 12, 2019
Continue Status Conference to November 7, 2019 at 9:30 a.m. (XX)
A motion for default judgment may self-calendared for the same date/time as the continued Status Conference date. Alternatively, the motion may be filed without a hearing pursuant to the procedure set forth in Local Bankruptcy Rule 9013-1(o).
The motion for default judgment, supported by evidence, must be served on defendant and defendant's counsel in accordance with Local Rule 9013-1(d).
If the motion for default judgment is not heard by the continued date of the Status Conference, THE ADVERSARY MAY BE DISMISSED at the Status Conference for failure to prosecute.
Note: Appearance at today's Status Conference is not required; Plaintiff to serve notice of the continued hearing date/time.
November 7, 2019
9:30 AM
Answer timely filed. Continue status conference to December 12, 2019 at 9:30 a.m.; joint status report must be filed by December 3, 2019. (XX)
Note: If both parties accept the foregoing tentative ruling, appearances at today's hearing are not required.
December 12, 2019
Discovery Cut-off Date: May 1, 2020
Pretrial Conference Date: Jun. 11, 2020 at 9:30 a.m. (XX) Deadline to File Pretrial Stipulation: May 28, 2020
Special Note: A 727 denial of discharge adversary cannot be settled for the benefit of a single creditor but, rather, settlement proceeds must be turned over to the chapter 7 trustee for distribution to all creditors. In re de Armond, 240 B.R. 51 (Bankr.C.D.Cal.1999).
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
June 11, 2020 [UPDATED TO REFLECT LATE FILED PLEADING]
Continue the Pretrial Conference to September 17, 2020 at 9:30 a.m.;amended pretrial stipulation must be filed by September 3, 2020 or sanctions will be imposed on counsel for both parties. Any pretrial motions must be filed by or before July 10, 2020 so that they can be heard no later than August 20, 2020 at 10:30 a.m.. The amended pretrial stipulation should address the comments of the court in its tentative ruling and also whether each party wishes to submit direct testimony by declaration in advance of the trial in accordance with this court's Trial Procedures (see court's website) or if they prefer all live direct testimony. (XX)
Court's Comments
9:30 AM
The Contested Issues of Law do not cite to a single statute applicable to the denial of discharge, e.g., 727(a)(2) or 727(a)(4).
The Contested Issues of Law do not state with specificity the how/when of the alleged false oaths, concealment of property interests, income, etc. See Pretrial Stipulation at pp. 8-10 and compare with Complaint at pp. 2-6.
Contrary to the representations in the Pretrial Stipulation, the parties are not ready for trial: Plaintiff indicates it intends to seek leave to amend the Complaint and to re-open discovery, whereas Defendant indicates she intends to seek to suspend the adversary proceeding pending her criminal trial. Such pretrial motions are not consistent with readiness for trial. Pretrial motions must be filed by the deadline noted above, i.e., no later than July 10, 2020.
Note: If both parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiff shall lodge an order consistent with the same.
December 17, 2020
The Joint Pretrial Stipulation filed on 12/12/20 is approved. Unless a pary requests otherwise, the court's ordinary procedures requiring direct testimony by declaraton (exclusive of adverse or rebuttal testimony) will apply.
January 21, 2021 (Modified since original posting)
Set trial for June 23-25, 2021 at 9:00 a.m.; direct testimony by declaration (see the court's trial procedures re direct testimony set forth on the court's website). Set Trial Procedures Conference for May 6, 2021 at 9:30 a.m.
Comments:
The parties are to appear and advise the court of any stipulations re the
9:30 AM
authentication and/or admission of certain exhibits, particularly those requiring testimony by a custodian or records.
The purpose of the Trial Procedures Conference is to go over trial logistics in a remote, Zoom environment. The court will issue its own Order Establishing Remote Trial Procedures in advance of the Trial Procedures Conference.
Note: Appearances at this hearing are required.
Debtor(s):
Cassandra Dean Duerscheidt Represented By Brian J Soo-Hoo
Defendant(s):
Cassandra Dean Duerscheidt Pro Se
Plaintiff(s):
M.G.B. Construction, Inc. Represented By Scott A Kron
Trustee(s):
Weneta M Kosmala (TR) Pro Se
9:30 AM
Adv#: 8:20-01156 Kosmala v. Xia
U.S.C. § 548(A)(1)(A); (3) To Avoid Fraudulent Transfer Pursuant To 11 U.S.C.
§ 548(A)(1)(B); (4) For Recovery Of Avoided Transfers Under 11 U.S.C. § 550;
(5) To Preserve Transfer For The Benefit Of The Estate Pursuant To 11 U.S.C.
§ 551; (6) Turnover Of The Property Of The Estate Pursuant To 11 U.S.C. § 542 Nature of Suit: (11 (Recovery of money/property - 542 turnover of property))
Docket 1
NONE LISTED -
January 21, 2021
Continue status conference to March 11, 2021 at 9:30 a.m. to allow Plaintiff to either file a proof of service showing proper service of the summons and complaint or to obtain another summons. (XX)
Comments:
The docket does not reflect that the summons and complaint were served and no status report has been filed. Failure to file a proof of service or to file a status report for the March 11, 2021 hearing will result in the imposition of sanctions against Plaintiff's in the amount of $100 and the issuance of an order to show cause why the adversary proceeding should not be dismissed for failure to prosecute.
Note: If Plaintiff accepts the tentative ruling, appearances at this hearing are not required.
9:30 AM
Debtor(s):
Alpha Floors, Inc. Represented By Eric J Fromme
Defendant(s):
Feiyu Xia Pro Se
Plaintiff(s):
Weneta Kosmala Represented By Reem J Bello
Trustee(s):
Weneta M Kosmala (TR) Represented By Reem J Bello
9:30 AM
Adv#: 8:19-01205 Elieff et al v. Kurtin
FR: 3-5-20; 4-9-20; 4-23-20; 8-20-20; 11-19-20; 12-17-20
Docket 11
NONE LISTED -
April 23, 2020
Continue Status Conference to August 20, 2020 at 9:30 a.m.; joint status report due August 6, 2020. (XX)
August 20, 2020
Continue Status Conference to November 19, 2020 at 9:30 a.m.; updated Joint Status Report to be filed by November 5, 2020. (XX)
Note: If all parties accept the foregoing tentative ruling, appearances at today's hearing is not required. Plaintiffs to serve notice of the continued hearing date/time.
November 19, 2020
Continue the hearing to December 17, 2020 at 9:30 a.m.; the court's order re the SJ Motion will be issued in the near future. (XX)
9:30 AM
Note: Appearances at this hearing are not required.
December 17, 2020
Continue Status Conference one final time to January 21, 2021 at 9:30 a.m. (XX)
Note: Appearances at this hearing are not required.
January 21, 2021
Continue the hearing to February 18, 2021 at 9:30 a.m.; the court's order re SJ will be issued on January 25, 2021. (XX)
Note: Appearances at this hearing are not required.
Debtor(s):
Bruce Elieff Represented By
Paul J Couchot Lisa Nelson
Defendant(s):
Todd Kurtin Represented By
Lewis R Landau Edward O Morales
Plaintiff(s):
Bruce Elieff Represented By
Paul J Couchot
Morse Properties, LLC Represented By Paul J Couchot
9:30 AM
4627 Camden, LLC Represented By Paul J Couchot
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe
9:30 AM
Adv#: 8:20-01157 Oregon Pacific Bank v. Bryant et al
Docket 1
NONE LISTED -
January 21, 2021
Deadline for Rule 26 Compliance: February 28, 2021
Discovery Cutoff Date: March 31, 2021
Pretrial Conference Date: May 6, 2021 at 9:30 a.m. (XX) Deadline to File Pretrial Stipulation: April 22, 2021
Note: If all parties accept the tentative ruling, appearances at this hearing are not required and Plaintiff shall lodge a scheduling order consistent with the same.
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
Debtor(s):
Eric C. Bryant Represented By Christine A Kingston
9:30 AM
Defendant(s):
Eric C. Bryant Pro Se
Gina K Bryant Pro Se
Joint Debtor(s):
Gina K Bryant Represented By Christine A Kingston
Plaintiff(s):
Oregon Pacific Bank Represented By Michael N Nicastro
Trustee(s):
Karen S Naylor (TR) Represented By Thomas H Casey
10:00 AM
Adv#: 8:13-01220 Bobinski v. Savastano
FR: 12-5-19; 1-16-20; 3-19-20; 4-30-20; 7-23-20; 10-22-20
Docket 183
NONE LISTED -
December 5, 2019
Examinee Dominic Savastano to appear in court for swearing in by the courtroom clerk; the examination will thereafter proceed outside the courtroom.
January 16, 2020
Examinee Dominic Savastano to appear in court for swearing in by the courtroom clerk; the examination will thereafter proceed outside the courtroom
March 19, 2020
Continue his matter to April 30, 2020 at 10:00 a.m. in light of special pandemic policy in effect. The parties are, however, free to stipulate to an examination outside the courthouse prior to April 30, 2020. (XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required.
10:00 AM
April 30, 2020
Continue his matter to July 23, 2020 at 10:00 a.m. in light of the special pandemic policy in effect. The parties are, however, free to stipulate to an examination outside the courthouse via video conference or otherwise prior to July 23, 2020. (XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required. Nonappearance at the hearing will be deemed acceptance of the tentative ruling.
July 23, 2020
Continue his matter to Oct. 22, 2020 at 10:00 a.m. in light of the special pandemic policy in effect. The parties are, however, free to stipulate to an examination outside the courthouse via video conference or otherwise prior to Oct. 22, 2020. (XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required. Nonappearance at the hearing will be deemed acceptance of the tentative ruling.
October 22, 2020
[Special Notice: This hearing is being conducted by Zoomgov. See the first page of the calendar for today's hearings for participation details.]
Once the witness has been sworn in by the Court Clerk, the parties will be placed in a separate Zoom break-out room for the examination scheduled for today.
January 21, 2021
10:00 AM
Continue the third party judgment debtor examination one final time to April 15, 2021 at 10:00 a.m.; if Judgment Creditor intends to pursue an Order to Show Cause, then she must file and serve a proper motion in accordance with Local Bankruptcy Rule 9020-1; she must also serve the examinees with proper Zoom notice of the continued hearing. (XX)
Additional Comments:
Judgment Creditor was advised by the court's courtroom deputy on 1/5/21 that a proper motion had not been filed and, to date, no motion has been filed.
Judgment Creditor did not serve the examinees with Zoom notice of the hearing.
This matter will be taken off calendar if Judgment Creditor continues to failure to properly prosecute this matter.
Note: If Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required.
Debtor(s):
Luis Savastano Represented By Nathan Fransen
Defendant(s):
Luis Savastano Represented By Nathan Fransen
Plaintiff(s):
Richard Bobinski Represented By Crystal Bergstrom
Trustee(s):
Karen S Naylor (TR) Represented By
Karen S Naylor (TR)
10:00 AM
10:00 AM
Adv#: 8:13-01220 Bobinski v. Savastano
FR: 9-12-19; 11-19-19; 1-16-20; 3-19-20; 4-30-20; 7-23-20; 10-22-20
Docket 175
NONE LISTED -
September 12, 2019
Examinee Guadalupe Savastano to appear in court to be sworn in by the court clerk. Thereafter, the examination will take place outside the courtroom
November 19, 2019
Continued to Jan. 16, 2020 at 10:30 a.m. per stipulation of the parties. (XX)
March 19, 2020
Continue his matter to April 30, 2020 at 10:00 a.m. in light of special pandemic policy in effect. The parties are, however, free to stipulate to an examination outside the courthouse prior to April 30, 2020. (XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required.
April 30, 2020
10:00 AM
Continue his matter to July 23, 2020 at 10:00 a.m. in light of the special pandemic policy in effect. The parties are, however, free to stipulate to an examination outside the courthouse via video conference or otherwise prior to July 23, 2020. (XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required. Nonappearance at the hearing will be deemed acceptance of the tentative ruling.
July 23, 2020
Continue his matter to Oct. 22, 2020 at 10:00 a.m. in light of the special pandemic policy in effect. The parties are, however, free to stipulate to an examination outside the courthouse via video conference or otherwise prior to Oct. 22, 2020. (XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required. Nonappearance at the hearing will be deemed acceptance of the tentative ruling.
October 22, 2020
[Special Notice: This hearing is being conducted by Zoomgov. See the first page of the calendar for today's hearings for participation details.]
Once the witness has been sworn in by the Court Clerk, the parties will be placed in a separate Zoom break-out room for the examination scheduled for today.
January 21, 2021
Continue the third party judgment debtor examination one final time to April
10:00 AM
15, 2021 at 10:00 a.m.; if Judgment Creditor intends to pursue an Order to Show Cause, then she must file and serve a proper motion in accordance with Local Bankruptcy Rule 9020-1; she must also serve the examinees with proper Zoom notice of the continued hearing. (XX)
Additional Comments:
Judgment Creditor was advised by the court's courtroom deputy on 1/5/21 that a proper motion had not been filed and, to date, no motion has been filed.
Judgment Creditor did not serve the examinees with Zoom notice of the hearing.
This matter will be taken off calendar if Judgment Creditor continues to failure to properly prosecute this matter.
Note: If Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required.
Debtor(s):
Luis Savastano Represented By Nathan Fransen
Defendant(s):
Luis Savastano Represented By Nathan Fransen
Movant(s):
Judicial Judgment Enforcement Represented By Crystal Bergstrom
Plaintiff(s):
Richard Bobinski Represented By
10:00 AM
Trustee(s):
Crystal Bergstrom
Karen S Naylor (TR) Represented By
Karen S Naylor (TR)
10:00 AM
Adv#: 8:19-01084 Constantin et al v. Duff
Docket 1
NONE LISTED -
January 21, 2021
Issues to be discussed at today's hearing:
1 Exhibits:
Submission of exhibit binders to the court, opposing counsel, and all witnesses 7 days before trial
Emailing of exhibits to the chambers email and all witnesses, opposing counsel and all witnesses 7 days before trial. Each exhibit to be saved as a separate .pdf file.
Emailing of rebuttal and impeachment documents in password- protected file
Share screen capability
Limitation of exhibits (exclusive of rebuttal/impeachment documents) to those listed in the Pretrial Stipulation.
Declarations
Plaintiff's only witnesses are adverse witnesses. Accordingly, Plaintiff will not be required to file direct testimony declarations in advance of
10:00 AM
trial.
Defendant to advise if he will be filing direct testimony declarations for himself and Dory Berenguel
Witness Protocol
Witness must be located in a quiet room alone with a laptop, computer or other electronic device that is capable of accessing Zoom, and opening/enlarging .pdf files
Witness may not be engage in communications with his/her lawyer or another witness during testimony.
Optional Final Pretrial Conference to test technology, presentation of exhibits, etc.
Adequacy of Captioning System
Debtor(s):
Michael J Duff Pro Se
Defendant(s):
Michael J. Duff Represented By David Brian Lally
Plaintiff(s):
Holly Constantin Represented By Alan W Forsley
Michael Constantin Represented By Alan W Forsley
Trustee(s):
Richard A Marshack (TR) Pro Se
10:30 AM
Adv#: 8:10-01386 Donahue v. Donahue et al
Docket 126
NONE LISTED -
December 17, 2020
Continue hearing to January 21, 2021 at 10:30 a.m. to allow Movant to correct service issue: (XX)
Basis for Tentative Ruling:
The notice of motion fails to advise of the 14-day opposition deadline as required by LBR 9013(c)(2)("…the notice of motion must advise the opposing party that LBR 9013-1(f) requires a written response to be filed and served at least 14 days before the hearing. "). The notice also fails to advise that hearing is only being conducted by Zoom and Movant did not serve the supplemental notice form, "ZoomGov Hearing Notice_ES_BK." See https://www.cacb.uscourts.gov/judges/self-calendaring/smith-e.
Note: If Movant accepts the tentative ruling, appearance at this hearing is not required.
January 21, 2021
Grant motion. Service issue corrected.
10:30 AM
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Nathan Michael Donahue Represented By Stephen Hosford
Defendant(s):
Nathan Michael Donahue Represented By Stephen Hosford
Torey Eden Donahue Represented By Stephen Hosford
Joint Debtor(s):
Torey Eden Donahue Represented By Stephen Hosford
Plaintiff(s):
Nancy Donahue Represented By Jerry D Hemme Michael C Rogers
Trustee(s):
Karen S Naylor (TR) Pro Se
10:30 AM
Docket 192
NONE LISTED -
January 21, 2021
Grant motion
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
William George Weiler Jr Represented By Robert C English
Trustee(s):
Richard A Marshack (TR) Represented By Leonard M Shulman Melissa Davis Lowe Ryan D O'Dea
10:30 AM
FR: 12-3-20
Docket 70
NONE LISTED -
December 3, 2020
Allow the claim as a secured claim in the reduced amount of $27,792.53. Basis for Tentative Ruling
Tustin Village Community Association ("Claimant") filed proof of claim no. 1 in the secured amount of $30,593.91 for "homeowner assessments." ("Claim") Debtor now moves to reduce the Claim amount to $23,585.40 (the "Motion")[dkt. 70] and (the "Reply")[dkt. 84]. Claimant opposes the Motion and requests that the Claim be reduced to only $27,792.53 (the "Opposition") [dkt. 79].
A proof of claim executed and filed in accordance with the Federal Rules of Bankruptcy Procedure 3001(f) constitutes prima facie evidence of the validity and amount of the claim, meaning that a proof of claim will be deemed allowed unless a party in interest objects. See Rule 3001(f); In re Lundell, 223 F.3d 1035, 1039 (9th Cir. 2000). Once an objection is filed, the proof of claim will still provide some evidence as to its validity and amount, and will be strong enough to carry over a mere formal objection without more. Id. Indeed, a party objecting to a claim must present affirmative evidence to overcome the presumption of its validity by showing "facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claims." Id. (citing In re Holm, 931 F.2d 620,
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623 (9th Cir. 1991); In re King Street Inv., Inc., 219 B.R. 848, 858 (BAP 9th Cir. 1998). If the objector produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, then the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Lundell, 233 F.3d at 1039. The ultimate burden of persuasion remains at all times upon the claimant. Id.; Holm, 931 F.2d 620 (9th Cir. 1991).
In this case, Claimant filed the Claim in accordance with Rule 3001.
The Claim was filed with Official Form 410 and included supporting documentation. See, Opp’n, Ex. A. As Claimant has complied with Rule 3001, the Claim is entitled to prima facie validity under Rule 3001(f) and it is, therefore, incumbant upon Debtor to present affirmative evidence to overcome the Claim’s presumed validity. In this case, Debtor has successfully rebutted the prima facie validity of the Claim because Claimant admits that Claim amount is inaccurate because it includes $2,801.38 of post-petition charges that should have not been added to the Claim amount. See Opp’n, p. 4. The now shifts onto Claimant to prove the ultimate validity of the Claim.
Claimant contends that its Claim amount of $27,792.53 (comprised of claimed amount of $30,593.94 minus postpetition charges of $2,801.38 and additional $71.38) consists of unpaid homeowner assessments that are fully by two components: (i) the Notice of Delinquent Assessment recorded on April 28, 2015 comprised of delinquent assessments, late fees, and legal expenses incurred from December 16, 2009 to March 1, 2015 totaling
$23,860.40 (the "2015 Delinquency Notice"), (ii) the Abstract of Judgment recorded on August 18, 2011 in the amount of, after credit for a small payment, $6,733.51 (the "Abstract of Judgment"). See Opp’n, p. 1-2.
Debtor maintains that the judgment amount of $5,087.13 underlying the Abstract of Judgment is being double billed by being included in the amount of $20,855.40 listed on the Notice of Default and Election to Sell recorded July 23, 2015, and the amount of $24,115.40 listed on the Trustee’s Notice of Sale recorded November 5, 2015. See Mot., p. 3-5 and Ex. 1-2; Reply, p. 2.
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The exhibits attached to the Declaration of Jeffrey Speights
demonstrate that there has been no double billing. The court has carefully reviewed the same line by line and concludes that the accountings substantiate Claimant's argument that the judgment amount of $6,733.51 (after an additional credit of $71.38) is not included in the CLA Ledger amount. Stated otherwise, the CLA ledger includes a deduction for the entire amount of the outstanding judgment, except $71.38, which is later credited in the Opposition.
January 21, 2021
Grant motion in part to allow a secured claim in the amount of $27,792.53. Basis for Tentative Ruling:
Background:
Tustin Village Community Association ("Claimant") filed proof of claim no. 1 (the "Claim") in the secured amount of $30,593.91 for "homeowner assessments." Debtor now moves to reduce the Claim amount to $23,585.40 (the "Motion")[dkt. 70] and (the "Reply")[dkt. 84]. Claimant opposes the Motion and requests that the Claim be reduced to only $27,792.53 (the "Opposition")[dkt. 79]. Trustee took no position on the Motion. Since Trustee has already disbursed $22,510.94 to Claimant pursuant to the confirmed plan, however, Trustee requests that the order include a provision excusing Trustee from any obligation to seek a return of the $22,510.94 to the extent the Claim is allowed at an amount less than $22,510.94 [dkt. 81].
The court incorporates the comments in its Tentative Ruling for December 3, 2020 herein (see above). At the conclusion of oral argument at the December 3, 2020 hearing, the hearing was continued to this date to allow Claimant to file a supplemental pleading addressing the discrepancy between the amount in the Notice of Trustee's Sale filed in November 2015 and the amount set forth in the Proof of Claim ("POC").
Claimant has adequately addressed the discrepancy between the
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Notice of Delinquent Assessment Lien and the Notice of Trustee’s Sale by a preponderance of the evidence
To address the discrepancy between the amount in the Notice of Trustee’s Sale filed in November 2015 and the Clam amount, Claimant explained that the Claim amount is higher because it consists of two parts: (1) the abstract of judgment recorded on August 18, 2011 in the amount of, after credit for a small payment, $6,733.51 (the "Abstract of Judgment"), and (2) the Notice of Delinquent Assessment recorded on April 28, 2015 plus delinquent assessments that came due afterwards (the "Notice of Delinquent Assessment Lien"). See Supp. Opp’n, 1-2. Further, the Notice of Trustee’s Sale recorded in November 2015 in the amount of $24,115.40 is based only upon the amounts owed under the Notice of Delinquent Assessment Lien.
And while the underlying ledgers on which the Notice of Delinquent Assessment Lien is based upon initially included the Abstract of Judgment amounts, the Abstract of Judgment amounts were deleted from the underlying ledger on March 10, 2015 before the Delinquent Assessment Lien was recorded on April 28, 2015. See Supp. Opp’n, 3-4 and Ex. C.
Debtor argues that the Abstract of Judgment was already included in the Delinquent Assessment Lien. In Exhibit B attached to the Notice of Delinquent Assessment Lien, the judgment amounts were included in the line item dated February 6, 2011, and the outstanding amount listed on the Notice of Trustee’s Sale recorded November 5, 2015 listed the amount owed as only
$24,115.40. Debtor contends that Claimant's explanation is not credible because its conclusion is based on ledgers created after the recorded notice.See Supp. Reply, 2-4.
While it is true that the Abstract of Judgment amounts were initially included in the underlying ledgers for the Notice of Delinquent Assessment Lien, but Debtor’s (based on the line items dated 2011 and 2012), the amounts were later deleted on March 10, 2015 -- before the Notice of Delinquent Assessment Lien was recorded on April 28, 2015. Moreover, the ledgers were included as Exhibit B to the recorded Notice of Delinquent Assessment Lien and the ledgers' ending balance of $19,225.40 matches the amount listed on page 1 of the Notice of the Delinquent Assessment Lien. See Supp., Opp’n, Ex. C, (p. 1 and last page of the exhibit). Thus,
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Claimant’s ledgers appear to be part of the recorded Notice of Delinquent Assessment Lien; there is no persuasive evidence that the ledgers were created after the Notice of Delinquent Assessment Lien was recorded.
Importantly, taking into account the amount set forth in the ledgers attached to the Notice of Delinquent Assessment Lien, if the Abstract of Judgment amounts ($5,087.13 + $1,575) are not deleted from the running balance, as Claimant explains that it did on March 10, 2015, the amounts owed under the Notice of Delinquent Assessment Lien would actually be
$25,887.53 ($19,225.40 + $5,087.13 + $1,575)- an amount that is higher than the $24,115.10 amount listed on the Notice of Trustee’s Sale. See Supp. Opp’n, Ex. C (last page of the exhibit).
It is logical that the $19,225.40 amount listd in the Notice of Delinquent Assessment Lien increased to $20,855.40 by the time of the recordation of the Notice of Default and Election to Sell on July 23, 2015, and that the amount subsequently increased to $24,115.40 as of November 5, 2015 when the Notice of Trustee’s Sale was recorded, exclusive of the Abstract of Judgment amounts. See Supp. Opp’n, Ex. C-E.
In sum, because Abstract of Judgment amounts were deleted from the Notice of Delinquent Assessment Lien (upon which the Notice of Trustee’s Sale is based), it is makes sense that the Claim amount would be higher than the Notice of Trustee’s Sale because the Claim includes the Abstract of Judgment plus the Delinquent Assessment Lien amounts. The court concludes that Claimant has met its ultimate burden of proof establishing entitlement to a secured claim in the amount of $27,792.53.
Note: If both parties accept the tentative ruling, appearances at this hearing is not required.
Debtor(s):
Orlando Martinez Represented By Mark S Martinez
10:30 AM
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
(Set at Conf. Hrg. Held 6-26-19) FR: 11-21-19; 2-20-20; 8-20-20
Docket 761
NONE LISTED -
November 21, 2019
Continue status conference to February 20, 2020 at 10:30 a.m.; an updated status report must be filed by February 6, 2020. (XX)
February 20, 2020
Debtor to advise the court as to the specific form of "court intervention" Debtor seeks. See Status report at p. 3:12-14.
August 20, 2020
No updated status report was filed by August 6, 2020 as ordered by the court. Debtor to appear and advise the court re the status of this case -- in particular the status of the pending arbitration.
If the arbitration is still pending, the status conference may be continued to October 15, 2020 at 10:30 a.m. by requesting a continuance during the court clerk's calendar roll call prior to the hearing. If the status conference is continued, an updated status report must be filed no later than October 1,
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2020 or monetary sanctions of not less than $100 will be imposed on Debtor's counsel.
January 21, 2021
Continue the status conference to May 20, 2021 at 10:30 a.m.; updated Status Report must be filed by May 6, 2021. (XX)
Note: Appearances at this status conference are not required.
Debtor(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel Babak Samini Dean A Ziehl
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Adv#: 8:17-01101 Martin D. Fern, individually and as Trustee of the v. Chamberlain et al
[fr: 9/26/17, 3/7/18, 9/26/18, 1/9/19, 6/12/19, 12/11/19, 3/4/20]; 9/30/20, Rm 5D; 10-1-20
Docket 20
NONE LISTED -
October 1, 2020
In light of pending state court litigation, continue this matter to January 21, 2021 at 10:30 a.m. (XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required.
January 21, 2021
In light of pending state court litigation, continue this matter to April 22, 2021 at 9:30 a.m.; updated Joint Status Report must be filed no later than April 8, 2021 and must include a copy of the Superior Court order or notice re the suspension of civil trials. (XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required.
10:30 AM
Debtor(s):
David Tudor Chamberlain Represented By Jeffrey I Golden Alan J Friedman Beth Gaschen
Defendant(s):
David Tudor Chamberlain Represented By Gregory S Page
Linda Chamberlain, an individual Represented By
Gregory S Page
Plaintiff(s):
Martin D. Fern, individually and as Represented By
Eric P Israel Sonia Singh
Linda Taylor-Fern, individually and Represented By
Eric P Israel Sonia Singh
10:30 AM
Adv#: 8:17-01101 Martin D. Fern, individually and as Trustee of the v. Chamberlain et al
[fr: 8/22/17, 9/26/17, 3/7/18, 9/26/18, 1/9/19, 6/12/19, 12/11/19, 3/4/20]; 9-30-20, Rm 5D; 10-1-20
Docket 1
NONE LISTED -
October 1, 2020
In light of pending state court litigation, continue this matter to January 21, 2021 at 10:30 a.m. Plaintiff shall file a status report regarding the status of the state court trial by or before January 7, 2021.(XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiffs shall serve Defendants with notice of the continued hearing date/time.
January 21, 2021
In light of pending state court litigation, continue this matter to April 22, 2021 at 9:30 a.m.; updated Joint Status Report must be filed no later than April 8, 2021 and must include a copy of the Superior Court order or notice re the suspension of civil trials. (XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required.
10:30 AM
Debtor(s):
David Tudor Chamberlain Represented By Jeffrey I Golden Alan J Friedman Beth Gaschen
Defendant(s):
David Tudor Chamberlain Pro Se Linda Chamberlain, an individual Pro Se
Plaintiff(s):
Martin D. Fern, individually and as Represented By
Eric P Israel
Linda Taylor-Fern, individually and Represented By
Eric P Israel
10:30 AM
FR: 8-20-20
Docket 607
NONE LISTED -
August 20, 2020
Continue hearing to December 17, 2020 at 10:30 a.m. in light of the pending appeal before the 9th Circuit on many, if not all, of the substantive issues raised in the Objection and Opposition. If the Circuit has not ruled by December 17, 2020, the hearing will be further continued from time to time until a decision is rendered. The pendency of the 9th Circuit appeal divests this court of jurisdication to adjudication the Objection.
Basis for Tentative Ruling
Trustee moves for an order disallowing Debtor’s Second Amended Exemptions (defined below) which seeks to exempt Debtor’s interests in certain causes of action and account receivables (the "Objection")[dkt. 607]. Debtor timely filed opposition to the Objection (the "Opposition")[dkt 610] to which Trustee timely replied (the "Reply")[dkt. 611].
In sum, this court lacks jurisdiction to adjudicate the merits of the Objection to the Second Amended Exemptions while the Ninth Circuit appeal of the First Amended Exemption Order remains pending.
When a bankruptcy court order is appealed, the bankruptcy court is divested of jurisdiction over the appealed order and it may not "vacate or
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modify an order while on appeal." In re Bialac, 694 F.2d 625, 627 (9th Cir. 1982); In re Padilla, 222, F.3d 1884, 1190 (9th Cir. 2000). "Once an appellate court renders its decision on the appealed order, jurisdiction remains with the appellate court until that court issues its mandate pursuant to Fed.R.App.P. 41." In re Marino, 234 B.R. 767, 770 (9th Cir. BAP 1999).
The timely filing of an appellate order from the BAP, however, confers jurisdiction on the Ninth Circuit and divests "both the BAP and the bankruptcy court of control over those aspects of the case involved in the appeal." See, Padilla, 222 F.3d at 1189-90 (emphasis added); Marino, 234 B.R. at 770) (stating that even if mandate is issued, timely appeal re-divests the lower court of jurisdiction). "The rule divesting lowers courts of jurisdiction of aspects of a case involved in an appeal is [sic] judge-made doctrine designed to avoid the confusion and waste of time that might flow from putting the same issues before two courts at the same time." Padilla, 222 F3d. at 1190 (emphasis added). The rule is "not absolute" though, because the lower court retains jurisdiction to "take actions that preserve the status quo during the pendency of an appeal…but ‘may not finally adjudicate substantial rights directly involved in the appeal.’" Id.
In this case, the court defers any ruling on the Objection because the court lacks jurisdiction to adjudicate issues that are currently pending on appeal that could impact this court's adjudication of the same, e.g., the validity of Debtor’s exemptions of the "Claims Against 3P," "Other Contingency," and Account Receivables. See, Mot., Ex. 12 (the First Amended Exemption Order) and Ex. 13 (the BAP Memorandum).
Per the First Amended Exemption Order, the court previously ruled on the substance of these issues. Debtor timely appealed these matters to the BAP thereby divesting this court of jurisdiction over these exemptions claims. And while the BAP affirmed the First Amended Exemption Order, Debtor timely appealed the BAP’s decision to the Ninth Circuit Court of Appeals, case no. 20-60006, and this appeal remains currently pending. See, Obj., p. 2, n. 1; Opp’n, p. 11:15-16. Thus, this court has again been divested of jurisdiction over these specific exemptions per the First Amended Exemption Order which is on appeal.
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That the appeal before the Ninth Circuit currently involves the same
issues is demonstrated by a comparison of Debtor’s opposition and Debtor’s Opening Br. [case. no. 20-60006, dkt. 9], p. 11-13; Opp’n, p. 5:25-6:6 and Opening Br., p. 14-15; Opp’n, p. 7:14-8:4 and Opening Br., p. 19-21. "A court may take judicial notice of a document filed in another court ‘not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.’" § 201:5 Judicial Notice of Bankruptcy Court's Own Records, Bankr. Evid. Manual § 201:5 (2019 ed.)(citations omitted). And while Debtor’s issue on appeal does not formally mention the Account Receivables, Debtor directly addresses the Account Receivables in her opening brief to the Ninth Circuit also. See, e.g., Opening Br., at p. 26.
The divesting of this court’s jurisdiction to adjudicate the Objection further promotes the goal of avoiding putting the same issues before two courts at the same time and risking confusion and the waste of judicial resources.
That Debtor added further citations in support of the Second Amended Exemptions [CCP §§ 695.030 and 688.1, Law v. Siegel, 571 U.S. 415 (2014), Baum v. Duckor, Spradling & Metzger, 72 Cal. App. 4th 54 (1999) and Murphy v. Allstate Ins. Co., 17 Cal. 3d 937 (1976)] does not change this result. Importantly, Debtor discusses all three cases at length in her opening brief to the Circuit. See, Opening Br. at pp. 9-11, 15, 19-22, 25, 30 and 34.
In In re Bialac, 694 F.2d 625, 626-27 (9th Cir. 1982) the Ninth Circuit affirmed the BAP’s vacating an injunction obtained by the debtor from a second bankruptcy court after the first bankruptcy court granted relief from stay for creditor to foreclose on a note. The Ninth Circuit reasoned that the second bankruptcy court lacked jurisdiction because the order granting relief from stay had been timely appealed and the issues before both courts were the same. See id. at 627. The Ninth Circuit found that the only difference between the proceedings was that the debtor was trying to further develop the argument that the note was necessary for reorganization, but even this further argument was insufficient to convey jurisdiction on the second bankruptcy court. See id.
Similarly here, by filing the Second Amended Exemptions with the new
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supporting citations, Debtor is attempting to add further argument to her contention that First Amended Exemptions are valid. However, as discussed above, those issues are already on appeal after Debtor timely appealed the First Amended Exemption Order to the Ninth Circuit. The court therefore only retains limited jurisdiction to "take actions that preserve the status quo during the pendency of an appeal…but ‘may not finally adjudicate substantial rights directly involved in the appeal.’" Padilla, 222 F3d. at 1190.
Note: If both parties accept the foregoing tentative ruling, appearances at today's hearing are not required.
January 21, 2021
Continue hearing to May 20, 2021 at 10:30 a.m.; status report regarding the status of the pending appeal before the Ninth Circuit must be filed by the Trustee on or before May 6, 2021 or sanctions in the amount of $400 will be imposed on Trustee's counsel. (XX)
Basis for Tentative Ruling:
The court previously ordered the Trustee to file a status report by January 14, 2021. No status report was timely filed by such date.
Note: If the parties accept the tentative ruling, appearances will not be required and the Trustee shall serve notice of the continued hearing date/time.
Debtor(s):
Lenore LuAnn Albert-Sheridan Pro Se
Trustee(s):
Jeffrey I Golden (TR) Represented By Jonathan A. Michaels Eric P Israel
Aaron E de Leest
10:30 AM
Sonia Singh
10:30 AM
First Amended Chapter 11 Plan of Reorganization (Set at Plan Conf. Hrg. Held 7/16/20)
Docket 152
OFF CALENDAR: Final Decree and Order Granting Motion for Entry of Final Decree, Discharge, and Order Closing Debtor's Chapter 11 Case Entered 10/9/2020 - td (10/9/2020)
NONE LISTED -
Debtor(s):
Gustavo Bautista Ortiz Represented By Giovanni Orantes Luis A Solorzano
Joint Debtor(s):
Amparo Hernandez Castro Represented By Giovanni Orantes Luis A Solorzano
10:30 AM
(Set at Plan Conf. hrg. held 7-16-20)
Docket 85
OFF CALENDAR: Order on Debtor's Motion to Convert Case Under 11
U.S.C. Sections 706(a) or 1112(a) Entered 9/29/2020; Case Converted from Chapter 11 to Chapter 7 - td (9/29/2020)
NONE LISTED -
Debtor(s):
Trent Tyrell Berglin Represented By Michael Jones Sara Tidd
Joint Debtor(s):
Adrienne Lynn Berglin Represented By Michael Jones Sara Tidd
10:30 AM
Docket 1077
NONE LISTED -
January 21, 2021
Grant motion in part to reduce the homestead exemption to $75,000.
Note: If the parties accept the tentative ruling, appearances at this hearing are not required.
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson Robert P Goe
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe Claire K Wu
10:30 AM
[THOMAS H. CASEY, CHAPTER 7 TRUSTEE]
Docket 49
NONE LISTED -
January 21, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
KOSEP USA, Inc. Represented By James C Bastian Jr
Trustee(s):
Thomas H Casey (TR) Represented By James C Bastian Jr Jai H Kim
10:30 AM
[SHULMAN BASTIAN FRIEDMAN & BUI LLP, ATTORNEY FOR THOMAS H. CASEY, CHAPTER 7 TRUSTEE]
Docket 45
NONE LISTED -
January 21, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
KOSEP USA, Inc. Represented By James C Bastian Jr
Trustee(s):
Thomas H Casey (TR) Represented By James C Bastian Jr Jai H Kim
10:30 AM
[HAHN FIFE & COMPANY, LLP, ACCOUNTANT FOR CHAPTER 7 TRUSTEE]
Docket 46
NONE LISTED -
January 21, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
KOSEP USA, Inc. Represented By James C Bastian Jr
Trustee(s):
Thomas H Casey (TR) Represented By James C Bastian Jr Jai H Kim
10:30 AM
Cl. #2 | Southern California Edison | $1,164.87 |
Cl. #10 | Robert Huntington | $Unknown |
Cl. #11 | Manuel Ruben Solarzano | $104,476.00 |
Cl. #16 | Raymond P. Tenold Trust | $Unknown |
Cl. #17 | James F. Burke | $1,705.00 |
Cl. #19 | Estate of Charles Abshire | $500,000.00 |
Docket 147 | ||
Courtroom Deputy: - NONE LISTED - |
January 21, 2021
Grant the Motion in its entirety.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Little John's Antique Arms, Inc. Represented By
10:30 AM
Richard A Marshack Chad V Haes
D Edward Hays
10:30 AM
Cl. #4 | Theodore Lauriano | $2,400.00 |
Cl. #5 | Dale/Eileen Strong | $199,650.00 |
Cl. #7 | Estate of Charles Porter | $47,533.00 |
Cl. #12 | Gene Kan | $84,000.00 |
Cl. #13 | Ron/Nicki Chambers | $129,357.00 |
Cl. #16 | Rosalva Garcia | $45,000.00 |
Docket 149 | ||
Courtroom Deputy: - NONE LISTED - |
January 21, 2021
Grant Motion as to Claim #5 (Dale & Eileen Strong), Claim #7 (Estate of Charles Porter) in the reduced amount of $19,474.25, Claim #12 (Gene Kan), Claim #13 (Ron & Nicki Chambers), and Claim #18 [erroneously identified as Claim #16 in the Motion (Rosalva Garcia). Continue hearing as to Claim #4 (Theodore Lauriano) to March 4, 2021 at 10:30 a.m. to allow Debtor to correct service [served at incorrect address]. (XX)
Basis for Tentative Ruling:
According to the Claims Register, the claim of Rosalva
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Garcia is Claim #18, not #16.
The proof of service attached to the Motion indicates that claimant Theodore Lauriano was served at "13723 Canyon Crest Way, Corona, CA 92880". However, the proof of claim shows the address as "13723 Canyon Crest Way, Eastvale CA 92880." Tentative ruling for 3/4/21 hearing (if unopposed): Grant.
Note: If Debtor accepts the tentative ruling, appearance at this hearing is not required.
Debtor(s):
Little John's Antique Arms, Inc. Represented By Richard A Marshack Chad V Haes
D Edward Hays
10:30 AM
FR: 10-22-20
Docket 1
OFF CALENDAR: Order Dismissing Case Pursuant to Motion by United States Trustee to Dismiss or Convert Case to One Under Chapter 7 Pursuant to 11 U.S.C. Section 1112(b) Entered 1/19/2021 - td (1/19/2021)
October 22, 2020
[Special Notice: This hearing is being conducted by Zoomgov. See the first page of the calendar for today's hearings for participation details.]
Claims Bar Date: 12/23/20 (notice to creditors by 10/23/20)
Deadline to file plan/DS: 1/11/21
Continued Ch 11 Status Conf: 1/21/21 at 10:30 a.m. (XX)
Updated Status Report due: 1/14/21 (waived if DS is filed by 1/11/20)
In addition to the foregoing, Debtor's counsel must file an employment application by or before October 30, 2020.
Note: If Debtor accepts the tentative ruling and is in substantial compliance with the requirements of the US Trustee, appearance at this hearing is not required. It is Debtor's responsibility to confirm substantial compliance with the US Trustee prior to the hearing. The court will issue its own order re the tentative ruling.
10:30 AM
Debtor(s):
Chase Merritt Global Fund LLC Represented By Thomas C Nguyen
10:30 AM
Docket 15
OFF CALENDAR: Notice of Voluntary Dismissal of Motion, filed 1/13/2021 - td (1/13/2021)
NONE LISTED -
Debtor(s):
Geoff Owen Delabar Represented By Christopher J Langley
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
Docket 524
NONE LISTED -
January 21, 2021
Grant the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Friendly Village MHP Associates LP Represented By
Howard Camhi
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Kristine A Thagard Arthur Grebow David Wood Tinho Mang Stefan Perovich
2:00 PM
Docket 938
NONE LISTED -
January 21, 2021
Sustain the Objections to Claim Nos. 9, and 11 subject to Claimants' rights under 11 U.S.C. 502(j) and Fed.R.Bankr.P. 3008. [This Tentative Ruling applies to Calendar #s 34 and 35]
Basis for Tentative Ruling:
Short Answer: Though Claimant has posed a number of procedural suggestions to the court, e.g., permitting Claimant to withdraw the Claim without prejudice to the nondischargeability action, postponing the hearing to a time after the Arbitration matter is resolved, or consolidating the Objection with the the nondischargeability action. However, Claimant has not presented a substantive response to the Objection on the merits of the same. Debtor has raised substantive objections sufficient to shift the ultimate burden of proof to Claimant; Claimant has not satisfied that burden of proof.
Long Answer:
On February 24, 2017, John Jean Bral ("Debtor") filed a voluntary chapter 11 petition. The claims bar date was June 16, 2017. On June 26, 2019, the Court approved Debtor’s fourth amended plan, which was subsequently filed on July 31, 2019 ("Plan")[dkt. #761] and the confirmation order was entered on July 31, 2019 (the "Confirmation Order")[dkt. #762].
The next post-confirmation status conference is set for January 21, 2021.
2:00 PM
Debtor moves for an order disallowing proof of claim no. 9 and 11 in their entirety (collectively, the "Objections")[dkt. 938, as to claim 9][dkt. 939- as to claim 11][dkt. 970- Omnibus Reply]. Debtor also filed his declaration in support of the Objections (the "Bral Declaration")[dkt. 163]. Alternatively, Debtor requests an order determining the amount of such claims. The claimants are Beitler & Associates, Inc. dba Beitler Commercial Realty Services ("BCRS") and Barry Beitler ("Beitler"), (hereafter, collectively, "Claimants."). Proof of claims nos. 9 and 11 are hereinafter referred to sometimes collectively as the "Claims."
Claimants oppose the Objections and request that the court either: (1) authorize Claimants to withdraw the Claims without prejudice to the pending dischargeability actions currently pending against Debtor, or (2) continue this hearing to a date after the completion of the judicial reference proceedings pending before Bankruptcy Judge Zive, scheduled for February 23 and 24, 2021 regarding the "Final Purchase Price" for the Debtor’s membership interests in Mission and Westcliff, or (3) consolidate the Objections with the dischargeability proceedings and treat the January 21, 2021 hearing on the Objections as a status and scheduling conference ("Omnibus Opposition")[dkt. 958].
The Claims’ Background Facts
Prior to 2007, Debtor and Beitler formed six single purpose entities as a series of limited liability companies to acquire and manage commercial real estate projects in Southern California. These limited liability companies include Westcliff Investors, LLC ("Westcliff’’), Ocean View Medical Investors, LLC ("Ocean View"), Harbor Medical Investors, LLC ("Harbor") and Mission Medical Investors, LLC ("Mission"). Debtor manages and partially owns Westcliff, Ocean View, Mission, and Harbor.
Debtor also formed Javaher Investors, LLC ("Javaher") and Eyestreet Medical Investors, LLC ("Eyestreet") which also own and manage commercial real estate projects. Debtor is the co-manager of Javaher and Eyestreet, and Beitler is not a co-manager of either. Debtor and Beitler own indirect interests in Javaher and Eyestreet through their respective membership interests in
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Westcliff. Westcliff, Ocean View, Harbor, Mission, Javaher and Eyestreet are collectively referred to herein as the "SPEs." After the SPEs' formation, they required management and certain brokerage services such as leasing and lease renewal. In 2006, Debtor formed Venture RE Group ("VREG") which for a period of time performed these services for the SPEs. VREG is owned 50% by Debtor and (contrary to the allegations in the Claim) 50% by Beitler. In October 2013, Debtor formed Bral Realty Advisors, Inc. ("BRAI"). On April 21, 2014, BCRS and Beitler filed a complaint against Debtor in LA Superior Court, case no. BC543410 (the "State Court Complaint"). BCRS and Beitler allege that Debtor breached several oral and implied agreements regarding the split of each of the SPEs property management fees between them and that the property management would be conducted through an entity owned and controlled by both of them. BCRS and Beitler also alleged that Debtor and Beitler entered into several oral agreements relating to VREG, including ownership, property management services, brokerage services, and deferred repayments of draws from VREG. See Obj., 9-12 (for ease of reference, citations to the Objections will be to the objection to Claim 9, dkt. 938).
The Objections are sustained because Debtor has rebutted the prima facie validity of the Claims and Claimants have failed to carry their ultimate burden of proof
A proof of claim executed and filed in accordance with FRBP 3001(f) constitutes prima facie evidence of the validity and amount of the claim. See Rule 3001(f); In re Lundell, 223 F.3d 1035, 1039 (9th Cir. 2000). Therefore, a proof of claim will be deemed allowed unless a party in interest objects.
Lundell, 223 F.3d at 1039. Once a party in interest objects, the proof of claim will still provide some evidence as to its validity and amount and will be strong enough to carry over a mere formal objection without more. Id. Thus, a party objecting to a claim must present affirmative evidence to overcome the presumption of its validity by showing "facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claims." Id. (citing In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)); In re King Street Inv., Inc., 219 B.R. 848, 858 (BAP 9th Cir. 1998). If the objector produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, then the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Lundell, 233 F.3d at 1039. The
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ultimate burden of persuasion remains at all times upon the claimant. Id.; Holm, 931 F.2d 620 (9th Cir. 1991).
In this case, Debtor alleges that the Claims should not be afforded the presumption of prima facie validity because Claimants both assert damages for the same actions but fail to allege the amount of damages, and Claimants fail to allege whether the SPE Management Agreements were in writing or oral agreements. See Obj., 13-15. The Claims, however, were filed on the official proof of claim form, included an attachment explaining that the Claims were based on the State Court Complaint and included a copy of the State Court Complaint. See Obj., Ex. 2. Moreover, Debtor’s argument that the underlying agreements are not attached to the Claims is not persuasive because there exists a fine distinction here- the Claims are not based on those agreements but rather on the state law causes of action alleged in the State Court Complaint (which is attached) that are bases on the alleged breaches of the underlying agreements. "There is an evidentiary presumption that a correctly prepared proof of claim is valid as to liability and amount….The rules add that a proof of claim executed and filed in accordance with the Federal Rules of Bankruptcy Procedure constitutes prima facie evidence of the validity and amount of the claim." In re Garner, 246 B.R. 617, 620–21 (B.A.P. 9th Cir. 2000)(internal citations omitted).
Accordingly, the Claims are entitled to the prima facie presumption of validity
because the Claims explain the underlying basis of the Claim and provided more than sufficient notice to Debtor regarding the alleged basis. Thus, Debtor must overcome this presumptive validity by negating one or more of the sworn facts in the Claims.
Debtor has rebutted the prima facie validity of the Claims.
Debtor has presented his declaration, with supporting documentation, refuting the underlying allegations in the State Court Complaint upon which the Claims are based, including that Beitler currently holds a 50% ownership in VREG. See Bral Decl. [dkt 163], 2-9; Obj., 22:21-23:11. Debtor has also presented several arguments that could make the Claims unenforceable against Debtor. For example, the causes of action in the State Court Complaint appear to be, at least partially, time-barred by the statute of limitations since the State Court Complaint was filed in 2014 but the alleged
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breaches occurred before 2012 or 2010 (Cal Code of Civ. Proc. § 339- 2 year statute of limitations for breach of oral contract & 4 year statute of limitations for breach of written contract) and the alleged intentional and negligent misrepresentations also occurred before 2012 or 2011 (Cal Code of Civ.
Proc. § 338(d)-- 3 year statute of limitations for intentional misrepresentation, and § 335.1- 2 year statute of limitations for negligent misrepresentation).
See Obj., 15-17 and 19-22. Accordingly, Debtor has presented sufficient evidence to negate one or more of the sworn facts in the Claims to rebut the prima facie validity of the Claims.
Claimants have failed to carry their burden to prove the ultimate validity of the Claims
Having rebutted the prima facie validity of the Claims, Debtor has shifted the burden onto Claimants to prove the ultimate validity of the Claims. In their Omnibus Opposition though, Claimants failed to provide any substantive arguments against the Objections. See Omnibus Reply, 6:4-11; see generally, Omnibus Opp’n, 8-11. Instead, Claimants proposed three alternatives to a ruling on the Objection which are addressed separately below.
Relief under FRBP 3006 is denied
First, pursuant to FRBP 3006, Claimants request that the court authorize Claimants to withdraw their Claims without prejudice to their pending dischargeability actions against Debtor. See Omnibus Opp’n, 8-9.
FRBP 3006 states, in relevant part, that, "If after a creditor has filed a proof of claim an objection is filed thereto… the creditor may not withdraw the claim except on order of the court after a hearing on notice to the trustee or debtor in possession, and any creditors’ committee elected pursuant to § 705(a) or appointed pursuant to §1102 of the Code." FRBP 3006 is akin to a voluntary dismissal under FRCP 41(a)(2). See Resorts International, Inc. v. Lowenschuss (In re Lowenschuss), 67 F.3d 1394, 1399 (9th Cir. 1995) (holding that bankruptcy court erred in not permitting conditional withdrawal of proof of claim by creditor). A "bankruptcy court's exercise of discretion over a creditor's voluntary withdrawal of claims" is reviewed for abuse of discretion.
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Id.
In this case, relief under FRBP 3006 is denied because, as noted by Debtor, such relief requires a motion and no noticed motion was filed even though Claimants have had notice since October 2020 (and the Objections were filed on October 1, 2020) that Debtor was not agreeable to allowing Claimants to withdraw the Claims. See Omnibus Reply, 3-6; FRBP 3006 (""If after a creditor has filed a proof of claim an objection is filed thereto… the creditor may not withdraw the claim except on order of the court after a hearing on notice…")(emphasis added).
The Final Purchase Price has mostly been determined
Claimants request a continuance of the hearing on the Objections until the Final Purchase Price is determined in the arbitration. See Omnibus Opp’n, 5-6 and 10. However, according to the Arbitration Order entered on October 27, 2020, a Final Purchase has already been effectively determined and the only limited issue to be decided is the is the validity and amount of the "Avalon Trust Deed" against Mission- "No other issues remains to be adjudicated to determine the Final Purchase Price." See Arbitration Order, 2,
¶4; Omnibus Reply, 12, ¶6 and Ex. 3; see also, FRE 201; In re Blumer, 95
B.R. 143, 146 (BAP 9th Cir. 1988)("It is well established that a court may take judicial notice of its own records..."). As such, Claimants’ argument that the court should defer ruling on the Objections until it can be determined whether general unsecured creditors will receive a distribution after the Final Purchase Price is adjudicated rings hollow. See Omnibus Opp’n, 9:25-10:17.
It is more likely, as presented by Debtor, that Claimants, who hold over 90% of the general unsecured claims in this case, have already determined that further litigation over the Claims does not make economic sense since further litigation over the Claims would only increase administrative expenses resulting in further decreased distributions to general unsecured creditors.
See Omnibus Reply, 11-13, ¶¶4-10; Omnibus Opp’n, 3:9-10.
Consolidation of the Objections with the pending adversary proceedings is denied
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Claimants last request is that the Objections be consolidated with the related, pending dischargeability actions and the court treat this hearing as a status conference in the dischargeability actions. See Omnibus Opp’n,
10-11. Related to this request is Claimants’ argument that, because the Plan has become effective yet, the estate continues to exist and Debtor is using estate resources to defend against the dischargeability actions. Id. In short, Claimants argue that issues of liability and dischargeability cannot be bifurcated.
First, as noted by Debtor, this request to consolidate the Objections with the adversary proceedings was not requested in a noticed motion, so the request is procedurally defective. See Omnibus Reply, 9.
Next, Debtor litigating the issue of Debtor’s liability within the context of claim objections is exactly what the court previously told the parties could occur. As noted by Claimants, a similar issue arose at the outset of adversary proceeding no. 17-01092. See Omnibus Opp’n, 7, n. 3. Debtor, at that time, had filed a motion to bifurcate the issues which was subsequently withdrawn at the hearing. However, unlike Claimants characterization that Debtor "is now attempting to do what was previously told he cannot do," see id., Debtor is doing exactly what Judge Clarkson said Debtor could do- which is to litigate the issue of liability within the context of the claim objection process and use estate resources to do so.
Reviewing the transcript of the October 19, 2017 hearing on Debtor’s motion to bifurcate the liability and dischargeability issues within the adversary proceedings (which was not cited by the parties), Judge Scott C. Clarkson determined that the motion was premature because Debtor’s counsel had not requested to be employed by the estate to defend the dischargeability actions- and show that the services would benefit to the estate. See Tr. of Oct. 19, 2017 Hr’g [AP dkt. 23], 17:21-19:2, 20:9, 38:16-21
(page references are to transcript page numbers at top right). Judge Clarkson then went on to advise, however, that litigating the liability portion could be compensable from the estate if done within the context of the claim objection process. See id., 20:11-17 and 38:23-39:8 ("I can actually say—I do have the discretion to say that you can be compensated, or Mr. Bral’s
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attorney can be compensated, for matters that would arise under claim objections…").
Judge Clarkson also advised that Debtor could also do what is occurring here now: Debtor litigating the issue of liability within the context of claims process which may affect the resolution of the dischargeability actions. See Tr. of Oct. 19, 2017 Hr’g [AP dkt. 23], 39:3-8 ("[Debtor] is going to have to decide maybe I want to give up on those dischargeability cases. But, I’ll still proceed under liability. Because if there’s no liability… then what is he worried about discharge for."). Accordingly, there is no basis for denying Debtor the opportunity to use the claims process to determine liability of Debtor’s estate for the Claims and requiring the consolidation of the Objections with the dischargeability actions.
In sum, Claimants’ three request are denied, and having presented no substantive opposition to the Objections, Claimants have failed to carry their burden to prove the ultimate validity of the Claims.
Debtor(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel Bobby Samini Dean A Ziehl
Gary A Pemberton Shane M Biornstad
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Docket 939
NONE LISTED -
January 21, 2021
Same tentative ruling as for #34 on today's calendar.
Debtor(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel Bobby Samini Dean A Ziehl
Gary A Pemberton Shane M Biornstad
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Docket 940
NONE LISTED -
January 21, 2021
Sustain the Objections to Claim No. 14 subject to Claimant's rights under 11
U.S.C. 502(j) and Fed.R.Bankr.P. 3008.
Basis for Tentative Ruling:
Short Answer: Though Claimant has posed a number of procedural suggestions to the court, e.g., permitting Claimant to withdraw the Claim without prejudice to the nondischargeability action, postponing the hearing to a time after the Arbitration matter is resolved, or consolidating the Objection with the the nondischargeability action. However, Claimant has not presented a substantive response to the Objection on the merits of the same. Debtor has raised substantive objections sufficient to shift the ultimate burden of proof to Claimant; Claimant has not satisfied that burden of proof.
Long Answer
Debtor has rebutted the prima facie validity of the Claims.
Here, Debtor has presented his declaration, with supporting documentation, that refutes the allegations in the Claim, including that the parties never agreed that Claimant would receive 50% of the top line revenues generated by VREG, the payments to BREG and BRAI by the SPEs were ordinary course payments, and the parties agreed that VREG would
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received 100% of the commissions generated from leasing activity performed on behalf of the SPEs. See Bral Decl. [dkt 163], 4-5, ¶¶14-22; Obj.,
12:21-13:20. Debtor also presented his testimony refuting the Claim’s allegations regarding capital contributions because the parties were sophisticated investors who knowingly entered into the OPAs, which are attached and reflect the ownership split between Debtor and Claimant. See Bral Decl. [dkt 163], 5-7, ¶¶24-39; Obj., 22:12-23:8. Debtor has explained how Claim 14 is duplicative of Claim 11 because it vaguely references allegations regarding the "other SPEs" but does not provide any additional details regarding them. See Obj., 10-11 and 19-22.
Debtor has also presented several arguments that the Claim is unenforceable against Debtor as a matter of law. For example, with regard to the Mission and Westcliff allegations, Debtor has argued that the Claim is time-barred since the OPA were signed in 2007 and 2007 (Code of Civil Procedure ("CCP") § 338(d)- 3 year statute of limitation for reformation), and barred by the parol evidence rule, promissory estoppel, and waiver. See, Obj., 16-19. With regard to the allegations regarding the SPEs, the Claim is also time-barred since the alleged breaches occurred before 2012 or 2010 (CCP § 339- 2 year statute of limitations for breach of oral contract & 4 year statute of limitations for breach of written contract), Claimant lacks standing since BCRS is the party who holds the Claim, and laches. See Obj., 19-22. Accordingly, Debtor has presented sufficient evidence to negate one or more of the sworn facts in the Claims to rebut the prima facie validity of the Claims.
Claimants have failed to carry their burden to prove the ultimate validity of the Claims
Having rebutted the prima facie validity of the Claims, Debtor has shifted the burden onto Claimants to prove the ultimate validity of the Claims. In their Omnibus Opposition though, Claimants failed to provide any substantive arguments against the Objections. See Omnibus Reply, 6:4-11; see generally, Omnibus Opp’n, 8-11. Instead, Claimants proposed three alternatives to a ruling on the Objection which are addressed separately below.
Relief under FRBP 3006 is denied
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First, pursuant to FRBP 3006, Claimants request that the court authorize Claimants to withdraw their Claims without prejudice to their pending dischargeability actions against Debtor. See Omnibus Opp’n, 8-9.
FRBP 3006 states, in relevant part, that, "If after a creditor has filed a proof of claim an objection is filed thereto… the creditor may not withdraw the claim except on order of the court after a hearing on notice to the trustee or debtor in possession, and any creditors’ committee elected pursuant to § 705(a) or appointed pursuant to §1102 of the Code." FRBP 3006 is akin to a voluntary dismissal under FRCP 41(a)(2). See Resorts International, Inc. v. Lowenschuss (In re Lowenschuss), 67 F.3d 1394, 1399 (9th Cir. 1995) (holding that bankruptcy court erred in not permitting conditional withdrawal of proof of claim by creditor). A "bankruptcy court's exercise of discretion over a creditor's voluntary withdrawal of claims" is reviewed for abuse of discretion. Id.
In this case, relief under FRBP 3006 is denied because, as noted by Debtor, such relief requires a motion and no noticed motion was filed even though Claimants have had notice since October 2020 (and the Objections were filed on October 1, 2020) that Debtor was not agreeable to allowing Claimants to withdraw the Claims. See Omnibus Reply, 3-6; FRBP 3006 (""If after a creditor has filed a proof of claim an objection is filed thereto… the creditor may not withdraw the claim except on order of the court after a hearing on notice…")(emphasis added).
The Final Purchase Price has effectively already been determined
Second, Claimants request a continuance of the Objections until the Final Purchase Price is determined in the arbitration. See Omnibus Opp’n, 5-6 and 10. Yet, pursuant to the Arbitration Order entered on October 27,
2020, a Final Purchase has already been effectively determined and the only limited issue to be decided is the and what remains to be decided is the validity and amount, if valid, of the "Avalon Trust Deed" against Mission- "No other issues remains to be adjudicated to determine the Final Purchase Price." See Arbitration Order, 2, ¶4; Omnibus Reply, 12, ¶6 and Ex. 3; see
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also, FRE 201; In re Blumer, 95 B.R. 143, 146 (BAP 9th Cir. 1988)("It is well established that a court may take judicial notice of its own records..."). As such, Claimants’ argument that the court should defer ruling on the Objections until it can be determined whether general unsecured creditors will receive a distribution after the Final Purchase Price is adjudicated rings hollow. See Omnibus Opp’n, 9:25-10:17.
It is more likely, as presented by Debtor, that Claimants, who hold over 90% of the general unsecured claims in this case, have already determined that further litigation over the Claims does not make economic sense since further litigation over the Claims would only increase administrative expenses resulting in further decreased distributions to general unsecured creditors.
See Omnibus Reply, 11-13, ¶¶4-10; Omnibus Opp’n, 3:9-10.
Consolidation of the Objections with the pending adversary proceedings is denied
Claimants last request is that the Objections be consolidated with the related, pending dischargeability actions and the court treat this hearing as a status conference in the dischargeability actions. See Omnibus Opp’n,
10-11. Related to this request is Claimants’ argument that, because the Plan has become effective yet, the estate continues to exist and Debtor is using estate resources to defend against the dischargeability actions. Id. In short, Claimants argue that issues of liability and dischargeability cannot be bifurcated.
First, as noted by Debtor, this request to consolidate the Objections with the adversary proceedings was not requested in a noticed motion, so the request is procedurally defective. See Omnibus Reply, 9. Next, Debtor is litigating the issue of Debtor’s liability within the context of claim objections is exactly what the court previously told the parties could occur. As noted by Claimants, a similar issue arose at the outset of adversary proceeding no.
17-01092. See Omnibus Opp’n, 7, n. 3. Debtor, at that time, had filed a motion to bifurcate the issues which was subsequently withdrawn at the hearing. However, unlike Claimants characterization that Debtor "is now attempting to do what was previously told he cannot do," see id., Debtor is doing exactly what Judge Clarkson said Debtor could do- which is to litigate
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the issue of liability within the context of the claim objection process and use estate resources to do so.
Reviewing the transcript of the October 19, 2017 hearing on Debtor’s motion to bifurcate the liability and dischargeability issues within the adversary proceedings (which was not cited by the parties), Judge Scott C. Clarkson determined that the motion was premature because Debtor’s counsel had not requested to be employed by the estate to defend the dischargeability actions- and show that the services would benefit to the estate. See Tr. of Oct. 19, 2017 Hr’g [AP dkt. 23], 17:21-19:2, 20:9, 38:16-21
(page references are to transcript page numbers at top right). Judge Clarkson then went on to advise, however, that litigating the liability portion could be compensable from the estate if done within the context of the claim objection process. See id., 20:11-17 and 38:23-39:8 ("I can actually say—I do have the discretion to say that you can be compensated, or Mr. Bral’s attorney can be compensated, for matters that would arise under claim objections…").
Judge Clarkson also advised that Debtor could also do what is occurring here now: Debtor litigating the issue of liability within the context of claims process which may affect the resolution of the dischargeability actions. See Tr. of Oct. 19, 2017 Hr’g [AP dkt. 23], 39:3-8 ("[Debtor] is going to have to decide maybe I want to give up on those dischargeability cases. But, I’ll still proceed under liability. Because if there’s no liability… then what is he worried about discharge for."). Accordingly, there is no basis for denying Debtor the opportunity to use the claims process to determine liability of Debtor’s estate for the Claims and requiring the consolidation of the Objections with the dischargeability actions.
In sum, Claimants’ three request are denied, and having presented no substantive opposition to the Objections, Claimants have failed to carry their burden to prove the ultimate validity of the Claims.
Debtor(s):
John Jean Bral Represented By Beth Gaschen
2:00 PM
Alan J Friedman William N Lobel Bobby Samini Dean A Ziehl Gary A Pemberton
Shane M Biornstad
2:00 PM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
2:00 PM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
NONE LISTED -
2:00 PM
FR: 7-23-20; 8-27-20; 12-17-20
Docket 118
NONE LISTED -
August 27, 2020
The court is inclined to grant the Motion but is concerned about the possible transfer of inventory that may be include intellectual property of Motorola.
Debtors need to address whether there is a way of excluding any such inventory. If not, this hearing may need to be postponed until a decision on the TRO/preliminary matter is adjudicated in District Court in Illinois.
The court notes that it does not share the UST's or Motorola's concerns about the independence of the Independent Director or the marketing efforts of Imperial.
December 17, 2020
Continue this hearing one final time to January 22, 2021 at 2:00 p.m.. By or before January 5, 2021, Debtors, Motorola, the Committee (and the UST at
2:00 PM
his option) shall meet and confer regarding a possible resolution of this motion with a focus on identifying agreed non-accused assets that may be sold. By or before January 7, 2021, Motorola shall file with the court a statement identifying all of the accused assets that are scheduled to be sold pursuant to the APA (Third Amended) and to which it objects as being within the scope of the pending Injunction Motion. By or before January 14, 2021, Debtors shall file a pleading in reply to Motorola's statement. In the event that an injunction order is entered by district court in Illinois prior to the continued hearing, Motorola shall file such order with this court within 24 hours of its issuance.
Basis for Tentative Ruling
This hearing was continue for the express purpose of allowing Motorola to obtain a ruling on its pending Injunction Motion. Nearly four months later, that has not happened and it is apparent to this court that a ruling may not be forthcoming any time soon, which is Judge Norgle's prerogative. Motorola's assertion that a ruling will be issued soon is not based on evidence or facts upon which this court can rely. Meanwhile, this chapter 11 case hangs in the balance.
Any injunction order will necessarily have to specifically identify the items that Debtors would be enjoined from selling or otherwise exploiting. Why can't Motorola identify such items now?
Debtors initially represented that the original APA did not include any accused items but has subsequently excluded many additional items. Absent some consensus with Motorola, Debtors will have to convince the court that the APA (Third Amended) is now "cleansed" of accused items.
Motorola complains that Debtors have included a caveat in the Third Amended APA as a precaution. Why? Such a caveat is for its benefit.
Any APA ultimately approved by this court must include a provision that the Buyer agrees to be bound by any injunction order issued by Judge Norgle.
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The bottom line is that the court is not 100% impressed with either Motorola or Debtors, but less so by Motorola. Debtors have at least made an effort to exclude potential accused items; Motorola just says no to everything.
January 22, 2021
Pursuant to the Notice of Agreed Proposed Order Regarding Sale of Non- Accused Inventory Pursuant to Initial Asset Purchase Agreement [dkt. 418], the agreed proposed order is approved. The hearing is off calendar. No appearances are necessary.
Debtor(s):
Hytera Communications America Represented By
John W Lucas Jason H Rosell Victoria Newmark Steptoe & Johnson
2:00 PM
FR:8-20-20; 8-27-20; 12-17-20
Docket 111
August 20, 2020
Continue hearing to August 27, 2020 at 10:00 a.m., same date/time as the Sale Motion. (XX)
Note: Appearances at today's hearing are not required.
--------------------------------------------------------------------
August 27, 2020
The court is inclined to continue the hearing on the Motion for six months until the disposition of the pending TRO/Preliminary Injunction matter is ruled on by the District Court in Illinois.
Basis for Continuance:
The court is not persuaded that Debtors' failure to seek or obtain an appeal bond for a $700M+ judgment is a basis for dismissal of the case as there is no evidence that Debtors had the ability to post such a bond and the fact that its parent (or indirect) parent may have had the ability to do so is, in the court's view, irrelevant as such entity had no legal duty to post such an appeal bond on behalf of Debtors.
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The court is concerned, however, with the fact that Debtors may have continued to distribute products containing Motorola's source code or other protected intellectual property in the absence of the issuance of an injunction by the District Court. See Ms. Huang's 341a testimony. The court is not aware of any declaration testimony by Debtors directly addressing this issue.
The scope of any injunction, if granted, could directly impact the viability of Debtors' reorganization.
December 17, 2020
Continue the hearing to January 22, 2021 at 2:00 p.m. (XX)
Special note: The court's comments above for the August 27, 2020 hearing stand
January 22, 2021
In light of the court’s approval of Debtors’ sale motion (see cal. no. 1 ), the Motion to Dismiss is denied. The hearing is off calendar. No appearances are necessary.
Debtor(s):
Hytera Communications America Represented By
John W Lucas Jason H Rosell Victoria Newmark Steptoe & Johnson
10:00 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
10:00 AM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
10:00 AM
NONE LISTED -
10:00 AM
Misc#: 1:20-00103
Docket 9
NONE LISTED -
January 25, 2021
Notice to Discipline; Consent to Terms of Reinstatement filed on January 22, 2021 as docket #19 approved. Counsel to lodge order approving Notice.
Disciplinary hearing is off calendar.
No appearance necessary.
1:30 PM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
1:30 PM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
1:30 PM
NONE LISTED -
1:30 PM
Docket 1
OFF CALENDAR: Order Dismissing Case for Failure to File Schedules, Statements, and/or Plan Entered 12/28/2020 - td (1/5/2021)
NONE LISTED -
Debtor(s):
Daniel L. Bassett Represented By
Joseph Arthur Roberts
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
NONE LISTED -
NONE LISTED -
Debtor(s):
Manuel Mancenido Represented By Joshua L Sternberg
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
NONE LISTED -
NONE LISTED -
Debtor(s):
Marissa L. Chery Represented By Michael D Franco
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 16
NONE LISTED -
NONE LISTED -
Debtor(s):
Shannon Jauch Represented By
Richard L. Sturdevant
Joint Debtor(s):
Nami Nitta Represented By
Richard L. Sturdevant
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 1
OFF CALENDAR: Order Dismissing Case for Failure to File Schedules, Statements, and/or Plan Entered 12/28/2020 - td (1/5/2021)
NONE LISTED -
Debtor(s):
Darrell Derane Powell Pro Se
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 1
OFF CALENDAR: Case Reassigned to Judge Wallace; Order Dismissing Case with Restriction Entered 1/4/2021 - td (1/5/2021)
NONE LISTED -
Debtor(s):
Rose Mary Fausto Pro Se
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
OFF CALENDAR: Order of Dismissal Arising from Debtor's Request for Voluntary Dismissal of Chapter 13 Entered 1/13/2021 - td (1/13/2021)
NONE LISTED -
Debtor(s):
Peter P. Tamarat Represented By Christopher J Langley
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
NONE LISTED -
NONE LISTED -
Debtor(s):
Juan Francisco Llamas Represented By Brian J Soo-Hoo
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
NONE LISTED -
NONE LISTED -
Debtor(s):
Geoff Owen Delabar Represented By Christopher J Langley
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 11
NONE LISTED -
NONE LISTED -
Debtor(s):
Derek P. Dunton Represented By Ahren A Tiller
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
OFF CALENDAR: Debtors' Notice of Conversion of Bankruptcy Case from Chapter 13 to Chapter 7 filed 1/6/2021; Case Converted to Chapter 7 - td (1/6/2021)
NONE LISTED -
Debtor(s):
Ronald Paguel Salgado Represented By Steven A Alpert
Joint Debtor(s):
Arlyn David Salgado Represented By Steven A Alpert
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
NONE LISTED -
NONE LISTED -
Debtor(s):
David R Johnson Represented By Julie J Villalobos
Joint Debtor(s):
Gail L Johnson Represented By Julie J Villalobos
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 16
OFF CALENDAR: Debtor's Notice of Conversion of Bankruptcy Case from Chapter 13 to Chapter 7 filed 1/25/2021; Case Converted to Chapter 7 - td (1/25/2021)
NONE LISTED -
Debtor(s):
Bryce Allen McGall Represented By
Edmond Richard McGuire
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 13
NONE LISTED -
NONE LISTED -
Debtor(s):
Michael Gregory Franco Represented By Anerio V Altman
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 84
NONE LISTED -
January 26, 2021
Grant the motion to dismiss if Debtor is not current by the time of the hearing. No motion to modify has been filed as of 12:00 pm this date.
Debtor(s):
Nelson D. Randin Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 88
OFF CALENDAR: Notice of Voluntary Dismissal of Motion, Docket No. 88, filed 1/12/2021 - td (1/12/2021)
NONE LISTED -
Debtor(s):
Nelson D. Randin Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 45
OFF CALENDAR: Debtor voluntarily converted to ch 7 on 1/26/21 --es
Debtor(s):
German A Gutierrez Represented By Christopher J Langley
Trustee(s):
Jeffrey I Golden (TR) Pro Se
2:30 PM
FR: 10-27-20; 11-24-20; 12-18-20
Docket 52
OFF CALENDAR: Trustee's Notice of Voluntary Dismissal of Motion, filed 1/25/2021 - td (1/25/2021)
November 24, 2020
Continue hearing to December 18, 2020 at 10:30 a.m., same date/time as hearing on approval of Debtor's pending motion to modify/suspend plan payments. (XX)
Note: If both parties accept the foregoing tentative ruing, appearances at this hearing are not required.
December 18, 2020
Continue hearing one final time to January 26, 2021 at 2:30 p.m. to allow Trustee to review new motion to modify/suspend payments filed 12/1620 [Docket #70] (XX)
Basis for Tentative Ruling
Debtor withdrew the prior motion and a filed a new one on December 16, 2020.
2:30 PM
Debtor(s):
Lonnie M Tee Represented By Christopher J Langley
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 10-27-20; 11-24-20; 12-18-20
Docket 58
NONE LISTED -
November 24, 2020
Continue hearing to December 18, 2020 at 10:30 a.m., same date/time as hearing on approval of Debtor's pending motion to modify/suspend plan payments. (XX)
Note: If both parties accept the foregoing tentative ruing, appearances at this hearing are not required.
December 18, 2020
Grant the Motion to dismiss the case.
January 26, 2021
New motion to modify filed 1/19/21. Trustee to advise if he approves of it.
Debtor(s):
Darlene Futrel Represented By
2:30 PM
Trustee(s):
Christopher J Langley
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 68
NONE LISTED -
January 26, 2021
Grant motion to dismiss. Debtor is more than $14,000 in arrears and there is no motion to modify pending.
Debtor(s):
Gregory Bettison Represented By Anthony P Cara
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 50
NONE LISTED -
January 26, 2021
Grant motion to dismiss unless Debtor is postpetition current by the time of the hearing.
Basis for Tentative Ruling
Despite the fact that the motion was filed more than two months ago, to date no motion to modify has been filed.
Debtor(s):
Richard Thomas McPhee Represented By Christopher J Langley
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 29
NONE LISTED -
January 26, 2021
Grant motion to dismiss unless Debtor is postpetition current by the time of the hearing.
Debtor(s):
Jennifer Mary Turunen Johnson Represented By Heather J Canning
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 40
NONE LISTED -
January 26, 2021
Grant the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required.
Debtor(s):
Bonifacio A. Baquiran Represented By Tina H Trinh
Joint Debtor(s):
Virginia Prenda Baquiran Represented By Tina H Trinh
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 38
OFF CALENDAR: Notice of Voluntary Dismissal of Motion filed 12/17/2020 - td (12/17/2020)
NONE LISTED -
Debtor(s):
Bonifacio A. Baquiran Represented By Tina H Trinh
Joint Debtor(s):
Virginia Prenda Baquiran Represented By Tina H Trinh
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 64
NONE LISTED -
January 26, 2021
Deny motion to dismss in light of Trustee's approval of Debtors' motion to modify filed on 1/20/21.
Debtors' counsel to lodge order re motion to modify.
Debtor(s):
Katrina Barrientos Represented By Amanda G Billyard Andy C Warshaw
Joint Debtor(s):
James Wee Represented By
Amanda G Billyard Andy C Warshaw
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 12-18-20
Docket 98
NONE LISTED -
December 18, 2020
Grant motion to dismiss unless Debtor is current with plan payments.
January 26, 2021
Deny motion in light of Trustee's approval of Debtor's pending motion to refinance residence filed 1/29/21.
Debtor(s):
Maureen T. Todd Represented By Christine A Kingston
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 12-18-20
Docket 75
OFF CALENDAR: Notice of Voluntary Dismissal of Motion, filed 1/14/2021 - td (1/14/2021)
December 18, 2020
Grant motion to dismiss case Basis for Tentative Ruling:
Debtor filed a motion to modify or suspend on 12/1/20, for which the Trustee filed no comments. However, Debtor seeks to extend the term of the plan from 60 to 84 months. Though the court is amenable to a small extension past 60 months, two years beyond the statutory period will not be approved.
Debtor(s):
Edgar Guzman Represented By Rebecca Tomilowitz
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 10-27-20; 11-24-20; 12-18-20
Docket 148
NONE LISTED -
November 24, 2020
Continue hearing to December 18, 2020 at 10:30 a.m. in light of motion to modify/suspend plan payments filed November 19, 2020. (XX)
Note: Appearances at this hearing are not required
December 18, 2020
Grant motion to dismiss case
January 26, 2021
Grant motion to dismiss in light of Debtors' withdrawal of motion to modify filed 1/20/21.
Debtor(s):
Giuseppe Galietta Represented By Joseph A Weber Fritz J Firman
2:30 PM
Joint Debtor(s):
Heldia F. De Galietta Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 10-27-20; 11-24-20; 12-18-20
Docket 80
NONE LISTED -
November 24, 2020
No tentative ruling; disposition will depend on outcome of calendar #36.
December 18, 2020
Grant motion to dismiss. No new pleadings filed since the last hearing.
January 26, 2021
Grant motion to dismiss.
No new pleadings filed since the last hearing.
Debtor(s):
Mian K. Taufique Represented By Christopher J Langley
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
2:30 PM
Docket 144
NONE LISTED -
January 26, 2021
The court is not inclined to approve the motion to modify. Debtor's counsel needs to explain why the dramatic decrease in distributions creditors warranted and how Debtors' declaration supports the same.
Debtor(s):
Douglas Allen Dawson Represented By Christine A Kingston
Joint Debtor(s):
Jennifer Ann Dawson Represented By Christine A Kingston
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 12-18-20
Docket 49
NONE LISTED -
December 18, 2020
Debtor's counsel to advise the court re the status of this matter. Debtor indicated in opposition that a motion to modify would be filed. As of today, no such motion has been filed.
January 26, 2021
Grant motion to dismiss case.
No motion to modify filed.
Debtor(s):
Romeo Torrecampo Tariman Represented By
Jaime G Monteclaro
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 12-18-20
Docket 76
NONE LISTED -
December 18, 2020
Continue hearing to January 26, 2021 at 2:30 p.m. in light of pending objection to claim which has been continued to January 21, 2021. (XX)
Debtor(s):
Orlando Martinez Represented By Mark S Martinez
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 10-27-20; 11-24-20; 12-18-20
Docket 59
NONE LISTED -
p
November 24, 2020
Continue hearing to Dec. 18, 2020 at 10:30 a.m., same date/time as hearing on motion to modify/suspend payments
December 18, 2020
Continue hearing to January 26, 2021 at 2:30 p.m. (XX)
January 26, 2021
No tentative ruling.
Special note: At the January 21, 2021 objection to claim hearing, the claim of the Tustin Village Community Association was allowed in the amount of
$27,792.53.
Debtor(s):
Orlando Martinez Represented By
2:30 PM
Trustee(s):
Mark S Martinez
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 12-18-20
Docket 66
SPECIAL NOTE: Debtor's Notice of Withdrawal of Opposition to Trustee's Motion to Dismiss Chapter 13 Proceeding, filed 1/20/2021 - td (1/20/2021)
December 18, 2020
Trustee to advise the court re the status of this matter -- whether all tax returns have been submitted and whether the delinquency has been cured. As of today, no motion to modify has been filed.
January 26, 2021
No tentative ruling.
Special note: At the January 21, 2021 objection to claim hearing, the claim of the Tustin Village Community Association was allowed in the amount of
$27,792.53.
Debtor(s):
Jose P. Hurtado Represented By Richard G Heston
2:30 PM
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:00 PM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
2:00 PM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
2:00 PM
NONE LISTED -
2:00 PM
Adv#: 8:18-01015 Speier v. SunCal Management LLC et al
Docket 496
NONE LISTED -
January 28, 2021
The following tentative ruling applies to matters 1, 3, 5 and 7 on today's Calendar:
The parties will be allowed to present oral argument regarding the Motion for Partial Summary Adjudication ("Main Motion") and the Motion to Strike the Singer Report ("Motion to Strike") as follows:
Defendants will be allowed up to 30 minutes to address both the Main Motion and the Motion to Strike. Plaintiff will then be allowed up to 30 minutes to respond. Defendants will be allowed up to 15 minutes to reply.
The parties should assume that the Court has read the pleadings and use oral argument to highlight key points.
At the conclusion of the oral argument, the matter will be taken under submission and a hearing on the Court's oral ruling will be set for March 11, 2021 at 2:00 p.m.. It is possible that a written ruling may be issued prior to March 11, 2021, in which case the parties will be notified.
Additional Comments:
2:00 PM
Plaintiff to address the issue of fraudulent transfer (either actual or constructive) as to Argent. Notably, the court previously denied the parties’ cross motions for summary judgment on the alter ego and successor liability claims [AP dkt. 451 and 458]. To the extent that SCM is found liable for any fraudulent transfer claims, the court’s granting of partial adjudication as to Argent would not impact Argent’s potential liability under Plaintiff’s yet to be adjudicated alter ego and successor liability claims.
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Tara Castro Narayanan
Defendant(s):
SunCal Management LLC Represented By Craig H Averch
2:00 PM
Aalok Sharma
Argent Management, LLC Represented By Craig H Averch Aalok Sharma
Plaintiff(s):
Steven M Speier Represented By Mike D Neue
Gary A Pemberton Brianna L Frazier Shane M Biornstad
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall Robert P Goe
2:00 PM
Adv#: 8:18-01015 Speier v. SunCal Management LLC et al
FR: 8-1-18; 9-11-18; 5-2-18; 5-7-19; 9-26-19; 12-17-19; 1-9-20; 3-26-20;
4-27-20; 5-28-20; 5-29-20; 12-17-20
Docket 95
NONE LISTED -
May 28, 2020
Continue status conference to May 29, 2020 at 2:00 p.m.
January 28, 2021
The following tentative rulng applies to matters 2, 4, 6, 9, 10, 11,
Continue Status Conference to November 4, 2021 at 2:00 p.m., same date/time set for Motion for Partial Summary Adjudication
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami
2:00 PM
Charles Liu James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo
Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Defendant(s):
SunCal Management LLC Represented By Craig H Averch Aalok Sharma
Argent Management, LLC Represented By Craig H Averch Aalok Sharma
Plaintiff(s):
Steven M Speier Represented By Mike D Neue
Gary A Pemberton Brianna L Frazier
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall
2:00 PM
2:00 PM
Adv#: 8:18-01021 Speier v. SunCal Management LLC et al
Docket 443
NONE LISTED -
NONE LISTED -
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez
2:00 PM
Lei Lei Wang Ekvall Mike D Neue
Tara Castro Narayanan
Defendant(s):
SunCal Management LLC Represented By Craig H Averch Aalok Sharma
Argent Management, LLC Represented By Craig H Averch Aalok Sharma
Movant(s):
SunCal Management LLC Represented By Craig H Averch Aalok Sharma
Argent Management, LLC Represented By Craig H Averch Aalok Sharma
Plaintiff(s):
Steven M Speier Represented By Mike D Neue
Gary A Pemberton Brianna L Frazier Shane M Biornstad
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall Robert P Goe
2:00 PM
Adv#: 8:18-01021 Speier v. SunCal Management LLC et al
FR: 8-1-18; 9-11-18; 5-2-18; 5-7-19; 9-26-19; 12-17-19; 1-9-20; 3-26-20;
4-27-20; 5-28-20; 5-29-20; 12-17-20
Docket 327
NONE LISTED -
May 28, 2020
Continue status conference to May 29, 2020 at 2:00 p.m.
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue
2:00 PM
Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Defendant(s):
SunCal Management LLC Represented By Craig H Averch
Argent Management, LLC Represented By Craig H Averch
Plaintiff(s):
Steven M Speier Represented By Mike D Neue
Gary A Pemberton Brianna L Frazier
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall
2:00 PM
Adv#: 8:18-01022 Speier v. SunCal Management LLC et al
Docket 445
NONE LISTED -
NONE LISTED -
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez
2:00 PM
Lei Lei Wang Ekvall Mike D Neue
Tara Castro Narayanan
Defendant(s):
SunCal Management LLC Represented By Craig H Averch Aalok Sharma
Argent Management, LLC Represented By Craig H Averch Aalok Sharma
Movant(s):
SunCal Management LLC Represented By Craig H Averch Aalok Sharma
Argent Management, LLC Represented By Craig H Averch Aalok Sharma
Plaintiff(s):
Steven M Speier Represented By Mike D Neue
Gary A Pemberton Brianna L Frazier Shane M Biornstad
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall Robert P Goe
2:00 PM
Adv#: 8:18-01022 Speier v. SunCal Management LLC et al
FR: 8-1-18; 9-11-18; 5-2-18; 5-7-19; 9-26-19; 12-17-19; 1-9-20; 3-26-20;
4-27-20; 5-28-20; 5-29-20; 12-17-20
Docket 329
NONE LISTED -
May 28, 2020
Continue status conference to May 29, 2020 at 2:00 p.m.
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow
2:00 PM
Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Defendant(s):
SunCal Management LLC Represented By Craig H Averch
Argent Management, LLC Represented By Craig H Averch
Plaintiff(s):
Steven M Speier Represented By Mike D Neue
Gary A Pemberton Brianna L Frazier
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall
2:00 PM
Adv#: 8:18-01023 SPEIER v. SUNCAL MANAGEMENT, LLC et al
Docket 391
NONE LISTED -
NONE LISTED -
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez
2:00 PM
Lei Lei Wang Ekvall Mike D Neue
Tara Castro Narayanan
Defendant(s):
SUNCAL MANAGEMENT, LLC Represented By
Craig H Averch Aalok Sharma
Argent Management LLC Represented By Craig H Averch Aalok Sharma
Movant(s):
SUNCAL MANAGEMENT, LLC Represented By
Craig H Averch Aalok Sharma
Argent Management LLC Represented By Craig H Averch Aalok Sharma
Plaintiff(s):
STEVEN M. SPEIER Represented By Evan C Borges Mike D Neue William N Lobel
Gary A Pemberton Brianna L Frazier Shane M Biornstad
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall Robert P Goe
2:00 PM
Adv#: 8:18-01023 SPEIER v. SUNCAL MANAGEMENT, LLC et al
FR: 8-1-18; 9-11-18; 5-2-18; 5-7-19; 9-26-19; 12-17-19; 1-9-20; 3-26-20;
4-27-20; 5-28-20; 5-29-20; 12-17-20
Docket 298
NONE LISTED -
January 9, 2020
No tentative ruling. Oral Argument only. Plaintiff will have 30 minutes to argue in favor of the Motion; Defendant will have 30 minutes to respond; Plaintiff will have 30 minutes to reply. The matter will then be taken under submission. Oral Ruling: March 26, 2020 at 2:00 p.m.
May 28, 2020
Continue status conference to May 29, 2020 at 2:00 p.m.
January 28, 2021
Continue Status Conference to November 4, 2021 at 2:00 p.m.
Debtor(s):
Palmdale Hills Property, LLC Represented By
2:00 PM
Paul J Couchot Peter W Lianides Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Defendant(s):
SUNCAL MANAGEMENT, LLC Represented By
Craig H Averch
Argent Management LLC Represented By Craig H Averch
Plaintiff(s):
STEVEN M. SPEIER Represented By Evan C Borges Mike D Neue William N Lobel
Gary A Pemberton Brianna L Frazier
2:00 PM
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall
2:00 PM
Adv#: 8:18-01024 SPEIER v. SUNCAL MANAGEMENT, LLC et al
FR: 8-1-18; 9-11-18; 5-2-18; 5-7-19; 9-26-19; 12-17-19; 1-9-20; 3-26-20;
4-27-20; 5-28-20; 5-29-20; 12-17-20
Docket 68
NONE LISTED -
May 28, 2020
Continue status conference to May 29, 2020 at 2:00 p.m.
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo
2:00 PM
Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Defendant(s):
SUNCAL MANAGEMENT, LLC Represented By
Craig H Averch
Argent Management LLC Represented By Craig H Averch
Plaintiff(s):
STEVEN M. SPEIER Represented By Evan C Borges Mike D Neue William N Lobel
Gary A Pemberton Brianna L Frazier
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall
2:00 PM
Adv#: 8:18-01025 SPEIER v. SUNCAL MANAGEMENT, LLC et al
(5) To Avoid and Recover Fruadulent Transfers
[Debtor: SunCal Bickford Ranch, LLC]
FR: 8-1-18; 9-11-18; 5-2-18; 5-7-19; 9-26-19; 12-17-19; 1-9-20; 3-26-20;
4-27-20; 5-28-20; 5-29-20; 12-17-20
Docket 77
NONE LISTED -
May 28, 2020
Continue status conference to May 29, 2020 at 2:00 p.m.
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo
2:00 PM
Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Defendant(s):
SUNCAL MANAGEMENT, LLC Represented By
Craig H Averch
Argent Management LLC Represented By Craig H Averch
Plaintiff(s):
STEVEN M. SPEIER Represented By Evan C Borges Mike D Neue William N Lobel
Gary A Pemberton Brianna L Frazier
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall
2:00 PM
Adv#: 8:18-01026 Speier v. SunCal Management LLC et al
(5) to Avoid and Recover Fraudulent Transfers [Debtor: SunCal Emerald Meadows, LLC]
FR: 8-1-18; 9-11-18; 5-2-18; 5-7-19; 9-26-19; 12-17-19; 1-9-20; 3-26-20;
4-27-20; 5-28-20; 5-29-20; 12-17-20
Docket 69
NONE LISTED -
May 28, 2020
Continue status conference to May 29, 2020 at 2:00 p.m.
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin
2:00 PM
Selia M Acevedo Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Defendant(s):
SunCal Management LLC Represented By Craig H Averch
Argent Management, LLC Represented By Craig H Averch
Plaintiff(s):
Steven M Speier Represented By Mike D Neue
Gary A Pemberton Brianna L Frazier
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall
2:00 PM
Adv#: 8:18-01125 Speier v. SunCal Management LLC et al
(5) To Avoid and Recover Preferential Transfers
[Debtor: SunCal Marblehead, LLC]
FR: 8-1-18; 9-11-18; 5-2-18; 5-7-19; 9-26-19; 12-17-19; 1-9-20; 3-26-20;
4-27-20; 5-28-20; 5-29-20; 12-17-20
Docket 105
NONE LISTED -
May 28, 2020
Continue status conference to May 29, 2020 at 2:00 p.m.
January 28, 2021
Continue Status Conference to November 4, 2021 at 2:00 p.m.
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami Charles Liu
James M Miller
2:00 PM
Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Defendant(s):
SunCal Management LLC Represented By Craig H Averch Doah Kim Aalok Sharma
Argent Management, LLC Represented By Craig H Averch Doah Kim Aalok Sharma
Plaintiff(s):
Steven M Speier Represented By Mike D Neue
Gary A Pemberton Heather B Dillion Brianna L Frazier
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
2:00 PM
Lei Lei Wang Ekvall
2:00 PM
Adv#: 8:18-01126 Speier v. SunCal Management, LLC et al
(5) To Avoid and Recover Preferential Transfers
[Debtor: SunCal Heartland, LLC]
FR: 8-1-18; 9-11-18; 5-2-18; 5-7-19; 9-26-19; 12-17-19; 1-9-20; 3-26-20;
4-27-20; 5-28-20; 5-29-20; 12-17-20
Docket 99
NONE LISTED -
May 28, 2020
Continue status conference to May 29, 2020 at 2:00 p.m.
January 28, 2021
Continue Status Conference to November 4, 2021 at 2:00 p.m.
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami Charles Liu
James M Miller
2:00 PM
Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Defendant(s):
SunCal Management, LLC Represented By Craig H Averch Aalok Sharma
Argent Management, LLC Represented By Craig H Averch Aalok Sharma
Plaintiff(s):
Steven M Speier Represented By Mike D Neue
Gary A Pemberton Heather B Dillion Brianna L Frazier
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall
2:00 PM
Adv#: 8:18-01127 Speier v. SunCal Management LLC et al
FR: 8-1-18; 9-11-18; 5-2-18; 5-7-19; 9-26-19; 12-17-19; 1-9-20; 3-26-20;
4-27-20; 5-28-20; 5-29-20; 12-17-20
Docket 98
NONE LISTED -
May 28, 2020
Continue status conference to May 29, 2020 at 2:00 p.m.
January 28, 2021
Continue Status Conference to November 4, 2021 at 2:00 p.m.
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver
2:00 PM
Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Defendant(s):
SunCal Management LLC Represented By Craig H Averch Aalok Sharma
Argent Management, LLC Represented By Craig H Averch Aalok Sharma
Plaintiff(s):
Steven M Speier Represented By Mike D Neue
Gary A Pemberton Heather B Dillion Brianna L Frazier
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall
2:00 PM
Adv#: 8:18-01128 Speier v. SunCal Management LLC et al
FR: 8-1-18; 9-11-18; 5-2-18; 5-7-19; 9-26-19; 12-17-19; 1-9-20; 3-26-20;
4-27-20; 5-28-20; 5-29-20; 12-17-20
Docket 98
NONE LISTED -
May 28, 2020
Continue status conference to May 29, 2020 at 2:00 p.m.
January 28, 2021
Continue Status Conference to November 4, 2021 at 2:00 p.m.
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver
2:00 PM
Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Defendant(s):
SunCal Management LLC Represented By Craig H Averch Aalok Sharma
Argent Management, LLC Represented By Craig H Averch Aalok Sharma
Plaintiff(s):
Steven M Speier Represented By Mike D Neue
Gary A Pemberton Heather B Dillion Brianna L Frazier
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall
2:00 PM
Adv#: 8:18-01129 Speier v. Argent Management, LLC et al
To Avoid and Recover Preferential Transfers
[Debtor: Delta Coves Venture LLC]
FR: 8-1-18; 9-11-18; 5-2-18; 5-7-19; 9-26-19; 12-17-19; 1-9-20; 3-26-20;
4-27-20; 5-28-20; 5-29-20; 12-17-20
Docket 100
NONE LISTED -
May 28, 2020
Continue status conference to May 29, 2020 at 2:00 p.m.
January 28, 2021
Continue Status Conference to November 4, 2021 at 2:00 p.m.
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami Charles Liu
James M Miller
2:00 PM
Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Defendant(s):
SunCal Management LLC Represented By Craig H Averch Aalok Sharma
Argent Management, LLC Represented By Craig H Averch Aalok Sharma
Plaintiff(s):
Steven M Speier Represented By Mike D Neue
Gary A Pemberton Heather B Dillion Brianna L Frazier
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall
9:30 AM
#1.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
9:30 AM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
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Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
9:30 AM
Adv#: 8:19-01214 Marshack v. Chang Ding Metal Co., Ltd. et al
Docket 53
OFF CALENDAR: Order Granting Application of Chapter 7 Trustee to Dismiss Remaining Claims in Adversary Proceeding Entered 1/22/2021 - td (1/22/2021)
Debtor(s):
Prime Metals U.S.A., Inc. Represented By Steven Werth
Defendant(s):
Chang Ding Metal Co., Ltd. Represented By Mohammad Tehrani Jeff D Kahane
Hoa Phat Steel Co., Ltd. Pro Se
Pomina 2 Steel Corporation Pro Se
Plaintiff(s):
Richard A Marshack Represented By Ronald S Hodges Robert P Goe Ryan S Riddles
Trustee(s):
Richard A Marshack (TR) Represented By
9:30 AM
D Edward Hays Laila Masud David M Goodrich Robert P Goe
9:30 AM
Adv#: 8:19-01214 Marshack v. Chang Ding Metal Co., Ltd. et al
California Civil Code Section 3439.04, 3439.05, 3439.07, 3439.08, 3439.09 Against Chang Ding; 5. Avoidance and Recovery of Constructive Fraudulent Transfers Pursuant to 11 USC Sections 544, 548, 550, 551; California Civil
Code Section 3439.04, 3439.05, 3439.07, 3439.08, 3439.09 Against Hoa Phat; and 6. Avoidance and Recovery of Constructive Fraudulent Transfers Pursuant to 11 USC Sections 544, 548, 550, 551; California Civil Code Section 3439.04,
3439.05, 3439.07, 3439.08, 3439.09 Against Pomina
(Another Summons Issued 4/15/2020)
FR: 7-16-20; 8-20-20; 9-10-20; 10-22-20; 11-19-20
Docket 1
OFF CALENDAR: Order Granting Application of Chapter 7 Trustee to Dismiss Remaining Claims in Adversary Proceeding Entered 1/22/2021 - td (1/22/2021)
Debtor(s):
Prime Metals U.S.A., Inc. Represented By Steven Werth
Defendant(s):
Chang Ding Metal Co., Ltd. Pro Se
Hoa Phat Steel Co., Ltd. Pro Se
9:30 AM
Pomina 2 Steel Corporation Pro Se
Plaintiff(s):
Richard A Marshack Represented By Ronald S Hodges Robert P Goe Ryan S Riddles
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Laila Masud David M Goodrich Robert P Goe
9:30 AM
Adv#: 8:19-01157 Caraveo et al v. Ra
FR: 10-17-19; 4-16-20; 7-16-20; 10-22-20
Docket 1
CONTINUED: Pre-trial Conference Continued to 6/10/2021 at 9:30
a.m.,Per Order Entered 12/14/2020 (XX) - td (12/14/2020)
Debtor(s):
Joseph Ra Represented By
David B Golubchik Jaenam J Coe
Defendant(s):
Joseph Ra Represented By
Jaenam J Coe
Plaintiff(s):
Marcelo Caraveo Represented By Christopher Barry
Holy Shirts and Pants, LLC Represented By Christopher Barry
Early Bird Restaurant, LLC Represented By Christopher Barry
Trustee(s):
Richard A Marshack (TR) Represented By
9:30 AM
Michael G Spector Thomas J Polis
9:30 AM
Adv#: 8:20-01161 Kurtin v. Elieff
Docket 1
NONE LISTED -
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson Robert P Goe
Defendant(s):
Bruce Elieff Pro Se
Plaintiff(s):
Todd Kurtin Represented By
Lewis R Landau
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe Claire K Wu
10:00 AM
DEUTSCHE BANK NATIONAL ASSOCIATION VS.
DEBTOR
FR: 8-6-20; 10-22-20; 12-17-20
Docket 54
CONTINUED: Hearing Continued to 3/4/2021 at 10:00 a.m., Per Order Entered 1/27/2021 (XX) - td (1/27/2021)
Debtor(s):
Orlando Martinez Represented By Mark S Martinez
Movant(s):
Deutsche Bank National Represented By Jacky Wang
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION VS.
DEBTORS FR: 12-17-20
Docket 54
OFF CALENDAR: Order Approving Adequate Protection Agreement Entered 12/17/20- mp(1/26/21)
Debtor(s):
William H Waller Represented By Christopher J Langley Michael Smith
Joint Debtor(s):
Sandra M Waller Represented By Christopher J Langley Michael Smith
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry
10:00 AM
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
FR: 11-19-20
Docket 441
CONTINUED: Hearing Continued to 4/1/2021 at 10:30 am, Per Order Entered 12/29/2020 (XX) - td (12/29/2020)
Debtor(s):
Commercial Services Building Inc Represented By
Phillip B Greer
Trustee(s):
Karl T Anderson (TR) Represented By
Misty A Perry Isaacson Misty A Perry Isaacson Thomas J Polis
Robert M Dato Jason E Goldstein
10:30 AM
[JEFFREY I. GOLDEN, CHAPTER 7 TRUSTEE]
Docket 29
NONE LISTED -
Debtor(s):
Raul Pacheco-Escutia Represented By
Michael H Colmenares
Joint Debtor(s):
Alicia Pacheco Represented By
Michael H Colmenares
Trustee(s):
Jeffrey I Golden (TR) Pro Se
10:30 AM
[Affects All Debtors]
Docket 618
NONE LISTED -
Debtor(s):
Solid Landings Behavioral Health, Represented By
David L. Neale Juliet Y Oh Jeffrey S Kwong David M Samuels
10:30 AM
(Set at s/c held 2/28/18)
[fr: 6/21/17, 6/28/17, 6/30/17, 7/20/17, 7/26/17, 7/28/17, 10/25/17, 2/7/18, 2/28/18, 8/29/18, 1/9/19, 6/12/19, 10/2/19, 1/29/20, 6/24/20, 7/22/20]; 9/2/20, Rm 5D; 9-3-20
Docket 1
NONE LISTED -
Debtor(s):
Solid Landings Behavioral Health, Represented By
David L. Neale Juliet Y Oh
10:30 AM
[JEFFREY I. GOLDEN, CHAPTER 7 TRUSTEE]
Docket 169
NONE LISTED -
Debtor(s):
Scott David Carlton Represented By Bruce V Rorty
Trustee(s):
Jeffrey I Golden (TR) Represented By
D Edward Hays Laila Masud
10:30 AM
[HAHN FIFE & COMPANY, LLP, ACCOUNTANT FOR CHAPTER 7 TRUSTEE]
Docket 168
NONE LISTED -
Debtor(s):
Scott David Carlton Represented By Bruce V Rorty
Trustee(s):
Jeffrey I Golden (TR) Represented By
D Edward Hays Laila Masud
10:30 AM
Docket 118
OFF CALENDAR: Notice of Voluntary Dismissal of Objection to Claim #6 by Claimant Pacific Premier Bank, Docket No. 118, filed 1/11/2021 - td (1/11/2021)
Debtor(s):
Maureen T. Todd Represented By Christine A Kingston
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
[FORCE TEN PARTNERS, LLC, FINANCIAL ADVISOR TO RICHARD A. MARSHACK, CHAPTER 7 TRUSTEE]
Docket 527
NONE LISTED -
Debtor(s):
Friendly Village MHP Associates LP Represented By
Howard Camhi
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Kristine A Thagard Arthur Grebow David Wood Tinho Mang Stefan Perovich
10:30 AM
Docket 530
NONE LISTED -
Debtor(s):
Friendly Village MHP Associates LP Represented By
Howard Camhi
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Kristine A Thagard Arthur Grebow David Wood Tinho Mang Stefan Perovich
10:30 AM
Docket 262
NONE LISTED -
Debtor(s):
Friendly Village GP, LLC Represented By Howard Camhi
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays David Wood Kristine A Thagard
10:30 AM
FR: 1-7-21 (Continued from 1-7-21 per Order Entered 1-14-21)
Docket 126
NONE LISTED -
Debtor(s):
Little John's Antique Arms, Inc. Represented By Richard A Marshack Chad V Haes
D Edward Hays
Movant(s):
Little John's Antique Arms, Inc. Represented By Richard A Marshack Chad V Haes
D Edward Hays
10:30 AM
Docket 396
NONE LISTED -
Debtor(s):
Hytera Communications America Represented By
John W Lucas Jason H Rosell Victoria Newmark
10:30 AM
Docket 83
NONE LISTED -
Debtor(s):
Golden Communications Inc. Represented By Marc C Forsythe
10:30 AM
FR: 11-5-20
Docket 1
NONE LISTED -
Debtor(s):
Christopher Summers Represented By
J Scott Williams
10:30 AM
Docket 33
OFF CALENDAR: Notice of Withdrawal of Objection to Claim of LVNV Funding, LLC, Claim No. 8-1; Docket Number 33, filed 1/20/2021 - td (1/20/2021)
Debtor(s):
Thomas M. Dickson Jr. Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
$3,410.00
Docket 56
OFF CALENDAR: Creditor Civic Financial Services, LLC's Notice of Withdrawal of Motion, filed 1/29/2021 - td (1/29/2021)
Debtor(s):
Stonewood Homes LLC Represented By William J King
Trustee(s):
Thomas H Casey (TR) Pro Se
10:30 AM
Docket 17
NONE LISTED -
Debtor(s):
Jose Lopez Represented By
James T Spratt
Joint Debtor(s):
Martha Alicia Lopez Represented By James T Spratt
Trustee(s):
Karen S Naylor (TR) Pro Se
10:30 AM
(OSC Issued 1/11/2021)
Docket 10
NONE LISTED -
Debtor(s):
Bryan Brenes-Rios Pro Se
Trustee(s):
Karen S Naylor (TR) Pro Se
2:00 PM
Cl. #12 (Elieff) Miller Barondess LLP Cl. #4 (Morse) Miller Barondess LLP Cl. #5 (Camden) Miller Barondess LLP
FR: 5-12-20; 5-19-20; 6-23-20; 6-25-20; 7-16-20; 10-22-20
Docket 360
NONE LISTED -
Debtor(s):
Bruce Elieff Represented By
Paul J Couchot Lisa Nelson
Movant(s):
Todd Kurtin Represented By
Lewis R Landau Edward O Morales
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe
2:00 PM
Cl. #21 (Elieff) E.O.C. Ord, Inc. Cl. # 8 (Morse) E.O.C. Ord, Inc. Cl. #10 (Camden) E.O.C. Ord, Inc.
FR: 5-12-20; 5-19-20; 6-23-20; 6-25-20; 7-16-20; 10-22-20
Docket 362
NONE LISTED -
Debtor(s):
Bruce Elieff Represented By
Paul J Couchot Lisa Nelson
Movant(s):
Todd Kurtin Represented By
Lewis R Landau Edward O Morales
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe
2:00 PM
FR: 5-7-20; 7-23-20; 10-22-20
Docket 375
NONE LISTED -
Debtor(s):
Bruce Elieff Represented By
Paul J Couchot Lisa Nelson
Movant(s):
Todd Kurtin Represented By
Lewis R Landau Edward O Morales
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe
2:00 PM
FR: 5-7-20; 7-23-20; 10-22-20
Docket 376
NONE LISTED -
Debtor(s):
Bruce Elieff Represented By
Paul J Couchot Lisa Nelson
Movant(s):
Todd Kurtin Represented By
Lewis R Landau Edward O Morales
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe
2:00 PM
FR: 5-12-20; 5-19-20; 6-23-20; 6-25-20; 7-16-20; 10-22-20
Docket 36
NONE LISTED -
Debtor(s):
Broadband Nation LLC Represented By Robert P Goe
2:00 PM
FR: 5-12-20; 5-19-20; 6-23-20; 6-25-20; 7-16-20; 10-22-20
Docket 35
NONE LISTED -
Debtor(s):
Broadband Nation LLC Represented By Robert P Goe
Movant(s):
Todd Kurtin Represented By
Lewis R Landau
2:00 PM
FR: 5-12-20; 5-19-20; 6-23-20; 6-25-20; 7-16-20; 10-22-20
Docket 36
NONE LISTED -
Debtor(s):
Heritage Colorado LLC Represented By Robert P Goe
Movant(s):
Todd Kurtin Represented By
Lewis R Landau
2:00 PM
FR: 5-12-20; 5-19-20; 6-23-20; 6-25-20; 7-16-20; 10-22-20
Docket 35
NONE LISTED -
Debtor(s):
Heritage Colorado LLC Represented By Robert P Goe
Movant(s):
Todd Kurtin Represented By
Lewis R Landau
2:00 PM
FR: 5-12-20; 5-19-20; 6-23-20; 6-25-20; 7-16-20; 10-22-20
Docket 36
NONE LISTED -
Debtor(s):
TDV Development Corporation Represented By Robert P Goe
2:00 PM
FR: 5-12-20; 5-19-20; 6-23-20; 6-25-20; 7-16-20; 10-22-20
Docket 35
NONE LISTED -
Debtor(s):
TDV Development Corporation Represented By Robert P Goe
10:30 AM
FR: 11-12-20; 1-14-21
Docket 434
NONE LISTED -
November 12, 2020:
If Claimant is an active corporation in good standing with the state of California, continue hearing date to January 14, 2021 at 10:30 a.m., with Patrick permitted to file supplemental pleadings by December 14, 2020; any supplemental response by Claimant to be filed by Dec. 23, 2020; and any reply to be filed by January 7, 2021. Discovery may be conducted in the interim in accordance with the adversary rules as permitted by FRBP 9014 for contested matters. Claimant is required to be represented by legal counsel re the filing of pleadings and appearance in court. (XX)
Basis for Tentative Ruling:
Background:
Creditor ProPainting ("Claimant") filed proof of claim no. 3 (the "Claim") in the general unsecured amount of $273,000 for goods and services as painting sub-contractor for two separate projects" related to the Renaissance Apartments (the "Renaissance Project") and the Stonebridge Apartments (the "Stonebridge Apartments").
Creditor Douglas Patrick ("Patrick") objects to the Claim and argues that it should be allowed in the reduced amount of $103,900 (the "Objection")
10:30 AM
[dkt. 434], (the "Reply")[dkt. 453]. Claimant opposes the Objection (the "Response")[dkt. 450]
Standing
The status of Claimant is critical for the following reasons:
1. Under Local Bankruptcy Rule 9011-2(a), a business entity such as a corporation, LLC or partnership, may only appear and file pleadings (other than a proof of claim) through legal counsel. Acccording to the California State Bar website, the author of the response filed on behalf of Claimant, Kwang Ho An ("An"), is not an attorney licensed to practice law in California. If that is the case, the Response is not properly before the court.
The fact that An is the president of Claimant suggests that the entity is a corporation and not a sole proprietorship and, therefore, must be represented by an attorney.
There is no evidence that Claimant is a business entity in good standing in the state of California. If it is not an active corporation or LLC, it may not appear to defend itself in any court proceeding as pointed out in the Reply.
Assuming that Claimant can establish good standing, it will need to employ legal counsel to represent it in this matter.
Standard
A proof of claim executed and filed in accordance with the Federal Rules of Bankruptcy Procedure 3001(f) constitutes prima facie evidence of the validity and amount of the claim. See Rule 3001(f); In re Lundell, 223 F.3d 1035, 1039 (9th Cir. 2000). Therefore, a proof of claim will be deemed allowed unless a party in interest objects. Lundell, 223 F.3d at 1039. Once a party in interest objects, the proof of claim will still provide some evidence as to its validity and amount, and will be strong enough to carry over a mere formal objection without more. Id. Thus, a party objecting to a claim must present affirmative evidence to overcome the presumption of its validity by showing
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"facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claims." Id. (citing In re Holm, 931 F.2d 620, 623 (9th Cir. 1991); In re King Street Inv., Inc., 219 B.R. 848, 858 (BAP 9th Cir. 1998). If the objector produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, then the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Lundell, 233 F.3d at 1039. The ultimate burden of persuasion remains at all times upon the claimant. Id.; Holm, 931 F.2d 620 (9th Cir. 1991).
Merits
The Claim is entitled to presumptive validity for the claim amount of
$273,000 (the Response asserts a claim in the increased amount of
$278,300). See, Response, p. 7:23. To date, Claimant has not amended its Claim to the increased amount of $278,300.
As the Claim is entitled to prima facie validity, Patrick must present affirmative evidence to overcome the Claim’s presumption of validity. Patrick argues that the Claim should be reduced to $103,900 in the Objection, and later argues that it should be reduced to $48,900 in the Reply. See, Obj., p. 7; Reply, p. 7. In support of his argument, based on evidence introduced for the first time in his Reply, Patrick argues that least $60,122 was paid by Debtor to Claimant for the Renaissance Project, and at least $112,470 was paid by Debtor to Claimant for the Stonebridge Project, leaving only $48,900 due under the Claim. Reply, p. 4-6. Patrick also argues that Claimant either was paid in full or voluntarily released its lien against the Renaissance Project which was sold in September 2013. Reply, p. 4. Claimant on the other hand, argues that no amounts were paid on account of the Renaissance Project ($109,200) and only $48,900 for the Stonebridge Project was previously paid leaving an unpaid balance of $169,100, plus interest, for the Stonebridge Project. Response, p. 2-4.
There appears to be a disputed question of fact regarding the amounts that were previously paid to Claimant by Debtor. Assuming Claimant has standing to assert the Claim, the court is inclined to continue the hearing to allow discovery pursuant to FRBP 9014 as requested by Patrick in his reply. See, Reply, p. 7. A continuance will also allow Claimant to address the
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evidence that was presented by Patrick for the first time in its Reply.
January 14, 2021
No tentative ruling. Debtor will be permitted up to 10 minutes to make key arguments in support of the Objection. Claimant Mr. An, will be permitted up to 10 minutes to respond and summarize his opposition to the Objection.
Debtor will be permitted up to 5 minutes to reply. Both parties should include the following issue as part their presentation: whether Pro Painting was a dba of Bonaview it entered into the contract with Debtor. At the conclusion of the oral argument, the hearing will be continued to February 11, 2021 at 10:30
a.m. for the Court's oral ruling on the objection. (XX)
February 11, 2021
In lieu of an Oral Ruling, the following is the ruling of the court regarding the Objection to Claim #3-2 filled on behalf ot Claimant Pro Painting. The Objecting Party, Douglas Patrick, shall lodge an order Sustaining the Objection and Disallowing the Claim in its entirety and shall attach a copy of the following as an exhibit to the order.
Standard
A proof of claim executed and filed in accordance with the Federal Rules of Bankruptcy Procedure 3001(f) constitutes prima facie evidence of the validity and amount of the claim. See Rule 3001(f); In re Lundell, 223 F.3d 1035, 1039 (9th Cir. 2000). Therefore, a proof of claim will be deemed allowed unless a party in interest objects.
Lundell, 223 F.3d at 1039. Once a party in interest objects, the proof of claim will still provide some evidence as to its validity and amount, and will be strong enough to carry over a mere formal objection without more. Id. Thus, a party objecting to a claim must present affirmative evidence to overcome the presumption of its validity by showing "facts tending to defeat the claim by probative force equal to that of the
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allegations of the proofs of claims." Id. (citing In re Holm, 931 F.2d 620, 623 (9th Cir. 1991); In re King Street Inv., Inc., 219 B.R. 848, 858 (BAP 9th Cir. 1998). If the objector produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, then the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Lundell, 233 F.3d at 1039. The ultimate burden of persuasion remains at all times upon the claimant.
Id.; Holm, 931 F.2d 620 (9th Cir. 1991).
Merits
A. Patrick has successfully rebutted the prima facie validity of the Claim, and Claimant has failed to carry its ultimate burden to demonstrate that validity of the Claim
As a preliminary matter, because Pro Painting is only a fictious business name, the real claimant is not Pro Painting but rather the party that owned the fictious business name during the relevant time periods. As discussed in greater detail below, that party is Bonaview Corporation and all references to "Claimant" hereafter refers to Bonaview Corporation.
Creditor Douglas Patrick ("Patrick") has successfully rebutted the prima facie validity of the Claim by demonstrating that Pro Painting was not registered fictious business name and cannot maintain its Claim, Bonaview Corporation ("Bonaview") held the Claim on the petition date, the Assignment (defined below) is more likely than not invalid, payments of at least $172,592 were previously paid to Claimant leaving an outstanding balance of, at best, only $48,900, and to the extent Georgia law is applicable to the Stonebridge Project, Claimant failed to be licensed in Georgia. The burden having shifted, Claimant has failed to carry its ultimate burden of proof to prove the ultimate validity of its Claim.
Pro Painting was never registered as a fictious business name and cannot recover on its Claim under California law
As a further preliminary matter, the dba has been inconsistently spelled the name of its fictious business, either as "Pro Painting" or "ProPainting." On
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the Claim and various documents (the underlying contractor contracts and invoices attached to the Claim, produced bank records, recorded mechanics lien), Claimant spells its name with two words as "Pro Painting." See, Obj., Ex. 1 (the Claim); Resp., Ex. A-H (invoices, mechanics lien, etc.); Supp. Br., Ex. 3 (produced bank records). Mr. Kwang Ho An ("Mr. An"), Claimant’s principal, also testified that that the spelling of Claimant was two words. See, Supp. Br., Ex. 1, p. 35 of 256 (top of page), ln. 17-18 ("Q How do you spell Pro Painting? A This is what I do. P-r-o space Painting."). Yet, in his responses to the Objection, Mr. An, Claimant’s president, used the spelling "ProPainting" in his declaration. See, Resp., p. 9, ¶1; Supp. Resp., p. 9 (Mr. An’s declarations).
Unfortunately, because this fictious business name was never officially registered, there is no official version of the Claimant’s name. Mr. An testified during his December 8, 2020 deposition that he believed "Pro Painting" was registered but could not name any specific local, state, or federal government agency with whom the name was registered. See, Supp. Br., Ex. 1, p.
38:4-39:11 (top of page)(Mr. An Depo. Tr., Dec. 8, 2020). Instead, Mr. An testified that he believed the bank requested it. See id. And when provided with the opportunity to provide evidence of the fictious business name having been registered, in the Supplemental Response, Claimant continued to argue that the fictious business name had been registered but failed to provide any evidence of such, including any evidence that it was registered with any country clerk. See, Supp. Resp., p. 7-9.
Under California Business and Professions Code, § 17910, fictious business names must be registered and under Business & Professions Code
§ 17918, and the failure to register a fictious business name is fatal to maintain any action on a contract entered into by the unregistered fictious business name:
[I]f a corporation enters into contracts in California using a fictitious business name it has not registered, such contracts are not void; rather, the "sole penalty" for a failure to register a fictitious business name "is a bar from maintaining an action on contracts made in the fictitious business name until the statement is filed." See Templeton Action Committee v. County of San Luis Obispo, 228 Cal. App. 4th
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427, 432 (2014) (citing Cal. Bus. & Prof. Code § 17918). In other words, an entity, such as AHMC, that fails to register its fictitious business name "may enter into contracts and transactions in the fictitious business name, but may not maintain actions on them," unless and until such failure is corrected. See 9 Witkin, Summary 11th Partn. § 11 (2017) (further observing "lack of compliance merely abates [an] action") (citing cases).
U.S. v. Jacobsen, 2018 WL 9619438, at *2 (N.D. Cal. May 22, 2018). A proof of claim is akin to an "action." See, In re Moran, 2012 WL 6645025, at *3 (Bankr. D.Hawaii 2012) ("A proof of claim is the means by which a creditor presents and demands payment of its claim in a bankruptcy case. Thus, filing a proof of claim initiates an action within the common legal meaning of that term."); Supp. Br., p. 3-4. As discussed in greater detail in the section below, during the relevant time period, the fictious business name was held by Mr. An’s corporation, Bonaview; thus, Mr. An’s corporation failed to comply with California Business and Professions Code, §§ 17910 and 17918 and cannot maintain an action on the contracts underlying the Claim.
The failure to register the fictious business name is also fatal to Claimant’s attempts to recover under the Stonebridge Project, which was located in Georgia, because even Claimant itself argues that Georgia law does not apply to this matter, the Stonebridge Project contractors contract were entered into in California, and the Stonebridge Contract included a choice of law provision designating California law to be applicable. See, Supp. Response, p. 8:12-17.
In sum, Patrick has rebutted the prima facie validity of the Claim by demonstrating that Claimant (i.e., Bonaview) never registered its fictious business name, and Claimant has failed to carry its ultimate burden to prove otherwise. Claimant is therefore barred from maintaining any action to recover the amount of its alleged debt under California law and the Claim is therefore disallowed in its entirety under 11 U.S.C. § 502(b)(1) because the Claim is unenforceable against Debtor under applicable law.
The evidence does not support a finding that the Claim was assigned from Bonaview to Mr. Kwang An
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The business structure of Claimant has been an issue from the outset of the Objection. During the November 20, 2020 initial hearing on the Objection, the court specifically questioned Mr. An on what exactly the business structure of Claimant was, to which Mr. An replied that Claimant was the dba of his sole proprietorship. Supp. Reply, p. 2:12-3:13 (pg. no. at top right of depo. tr.). Mr. An had the benefit of a sworn translator, his daughter, at the time he made this reply. See id., p. 1:18-2:11.
Since Claimant- Pro Painting- is actually a fictious business name, a crucial issue of the ownership of the dba arose because the owner of the dba is the holder of the Claim. See, Supp. Reply, p. 2:15-22. During his December 8, 2020 deposition Mr. An initially testified that Claimant was his dba. See Supp. Br., p. 12-14 and Ex. 1, p. 38:4-21 (top of page). Later, however, Mr.
An changed his testimony, after being questioned about bank records produced by Mr. An listing Pro Painting as the dba of Bonaview and testified that Claimant was the dba of Bonaview. See Supp. Br., p. 58:21-29:15 and p. 63:7-22; Supp. Reply, p. 2-6. Notably, Mr. An, for the first time during this December 8, 2020 deposition, testified that Bonaview assigned all of its claims (which would include the Claim) to Mr. An, individually in March 2010 (the "Assignment"). See, Supp. Br., p. 59:24-61:23 and Ex. 3, p. 241 (top of page)(the Assignment of Claims Agreement). No mention of the Assignment was made by Mr. An in his declaration filed in support of his Response on October 27, 2020. See, Resp., p. 9-11.
Claimant, through Mr. An’s later declaration included in the Supplemental Response, has attempted to clarify that Claimant- Pro Painting- was initially his own fictious business name but it was transferred to Bonaview in 2005 when Bonaview was formed. Later, in 2010 and in anticipation of Bonaview being dissolved, the fictious name of Pro Painting was transferred to Mr. An via the Assignment. See, Supp. Resp., p. 16, ¶¶2-5. Based on this clarification by Mr. An, it is undisputable that Bonaview held the Claim on the date the order for relief was entered against Debtor. The order for relief was entered on February 19, 2010 [dkt. 6] and the Assignment was allegedly signed in March 2010. Patrick has challenged the validity of the Assignment, arguing that the metadata of the PDF file of the Assignment shows that it was created on December 7, 2020 and Mr. An has failed to produce the original of
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the Assignment. See, Supp. Reply, p. 6-7. More importantly, however, the Assignment is contradictory with Mr. An’s own testimony.
In two versions of the Claim and his October 27, 2020 declaration filed in support of the Response, Mr. An testified that was the "President" of Claimant. See, Supp. Reply, p. 8-9; See, Resp., p. 9, ¶1 ("I am the president of creditor ProPainting."). And no mention of the Assignment was made by Mr. An in his earlier declaration. See, Resp., p. 9-11. This earlier testimony contradicts Mr. An’s testimony in his December 23, 2020 declaration that, "I am the sole proprietor of creditor ProPainting." See, Supp Resp., p. 16, ¶1.
Mr. An’s attempt to explain these contradictions is unpersuasive because it focuses on the ambiguity of Patrick’s counsel’s use of the term "drafted" when questioning Mr. An about the Assignment, but fails to address the contradictions contained in documents that Mr. An prepared himself- the two versions of the Claim and his two declarations.
The fact that two versions of the Claim failed to include a copy of the Attachment also undermines the validity of the Assignment because it was purportedly signed in March 2010- only two months before the initial Claim was filed in May 2010. As a result, Patrick has rebutted the prima facie validity of the Claim by providing sufficient evidence that the Assignment is invalid, so Bonaview, and not Mr. An, is the holder of the Claim but Bonaview is a suspended California Corporation. See, Supp. Br., p. 12:25-26, p. 21 (R. Sumera Decl.) and Ex. 3 (CA Secretary of State website printout). The ultimate burden having been shifted to Claimant to demonstrate, by a preponderance of the evidence, that the Assignment is valid, Claimant has failed to carry its burden as discussed above and no evidence is provided that Bonaview is in the process of being reinstated. Thus, Mr. An, individually, lacks standing to prosecute the Claim because he is not the holder of the Claim. And Mr. An, as president of Bonaview, cannot appear because no evidence has been provided that he is an attorney and Bonaview, as a suspended corporation, lacks standing and cannot appear before the Court.
The Claim is therefore disallowed in its entirety.
Claimant has not persuasively rebutted Patrick’s Argument that at least $172,592 were previously paid to Pro Painting
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Claimant was afforded the opportunity to address the new evidence
included in Patrick’s Reply showing that at least $175,592 was paid to Claimant, leaving an unpaid balance of, at best, was previously paid to Claimant leaving an outstanding balance of, at best, only $48,900.
Claimant, however, has failed to rebut this new evidence because it chose to produced heavily redacted bank records for Mr. An’s deposition and has not produced any other bank records with its Supplemental Response.
The unredacted bank records are extremely relevant to this matter because these documents could conclusively show what payments were made by Debtor to Claimant during the relevant time period.
There appears to be a disputed question of fact regarding the amounts that were previously paid to Claimant by Debtor. Assuming Claimant has standing to assert the Claim, the court is inclined to continue the hearing to allow discovery pursuant to FRBP 9014 as requested by Patrick in his reply. See, Reply, p. 7. A continuance will also allow Claimant to address the evidence that was presented by Patrick for the first time in its Reply.
The relevance of these bank records is evident further because, it shows that Debtor received $67,120 from Debtor on November 26, 2008. See, Supp.
Br., p. 178 (top of page). This payment was made after the alleged non- payment of invoices sent to Debtor in mid-2008, yet Claimant has not provided any explanation or accounting for this payment in its Supplemental Response. Claimant chose to produce the heavily redacted copies of these highly relevant bank records notwithstanding that it carried the ultimate burden to prove the validity the Claim.
Accordingly, Patrick has rebutted the prima facie validity of the Claim by demonstrating that, more likely than not, payments of at least $172,592 were previously paid to Claimant on account of the debt underlying the Claim. Claimant has failed to carry its ultimate burden of proof by failing to address or explain these payments. This is an alternate ground for disallowing the Claim.
Claimant was required to have a business license to conduct
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business in Georgia
To the extent Georgia law is applicable to the Stonebridge Project, Claimant failed to be licensed in Georgia and the contractors agreement underlying the Stonebridge Project is unenforceable against Debtor. Patrick argues that Claimant, as a contractor, was required to be licensed to conduct business in Georgia, have liability and workers’ compensation under Georgia law because the work was performed in Georgia, and Claimant failed to notify Debtor that Claimant would complete the work with subcontractors. See Supp. Br., 6-12; Supp. Reply, p. 9-12. Since Claimant failed to comply with these requirements, Claimant breached the contract for the Stonebridge Project and cannot recover for its work performed under Georgia law. Id.
Claimant counters that it was not required to do so because: (1) the contract for the Stonebridge Contract included a choice of law provision stating that California law was applicable, (2) Georgia law in any event includes a provision exempting subcontractors like Claimant from the business license requirement, (3) Debtor, and not Claimant, was not the contractor on the Stonebridge Project per Patrick’s own testimony, (4) Claimant that it did not have any employees in Georgia since it used subcontractors, (5) Debtor was aware that Claimant used subcontractors, and
these alleged license and insurance requirements are inapplicable to the basic fact that Claimant performed the painting of the Stonebridge Project pursuant to the Stonebridge Project contract, a fact that is not denied by Claimant, and is entitled to payment for its services. See, Supp. Reply, p. 8:23-11:4.
Focusing on only the licensing requirement, the court is persuaded that these requirements were applicable to Claimant. Georgia Code §
43-41-17(b) states:
As a matter of public policy, any contract entered into on or after July 1, 2008, for the performance of work for which a residential contractor or general contractor license is required by this chapter and not otherwise exempted under this chapter and which is between an owner and a contractor who does not have a valid and current license required for such work in accordance with this
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chapter shall be unenforceable in law or in equity by the unlicensed contractor…
Georgia law requires general contractors to be licensed for the contracts they enter to be valid and enforceable. Restor-It., Inc. v. Beck, 352 Ga. App. 613, 618, 835 S.E.2d 398, 403 (2019); Baja Properties, LLC v. Mattera, 812 S.E.2d 358, 362 (Ga.App., 2018)("Indeed, the general rule is that "where a statute provides that persons proposing to engage in a certain business shall procure a license before being authorized to do so, ... contracts made in violation of such statute are void and unenforceable.").
Mr. An testified at his deposition that Claimant did not have business license in Georgia. Supp. Br., Ex. 1, p. 45:3-10 (top of page). However, like the contractor in Restor-It, Claimant attempts to argue that Georgia Code § 43-41-17 carves out an exemption for "specialty contractors" and that pursuant to Patrick’s own testimony, Debtor was the general contractor who entered into the contract "to oversee and supervise" the Stonebridge Project and later contracted Claimant to provide painting services. See, Obj., p. 8, ¶ 4; Supp. Resp., p. 8:25-12 and p. 9:13-26.
The applicable exemption is found in Georgia Code § 43-41-17(f), which states:
"Nothing in this chapter shall preclude a specialty contractor from offering or contracting to perform or undertaking or performing for an owner limited, specialty, or specific trade contractor work. However, nothing in this chapter shall permit a specialty contractor to perform work falling within the licensing requirements of Chapter 14 of this title where such specialty contractor is not duly licensed under such chapter to perform such work. The board shall by rule or policy by January 1, 2008, identify specialty contractors or other criteria to determine eligibility under the exemption of this subsection. The specialty contractor otherwise exempted from license requirements under this chapter may perform work for an owner that would otherwise require a license under this chapter where the total scope of the work to be performed is predominantly of the type for which such specialty contractor is duly recognized as exempt under this subsection by the board, provided that such other work involved is incidental to and an integral part of the exempt work performed by the specialty contractor and does not exceed the greater of $10,000.00 or 25 percent of the total value at the time of contracting of the work to be performed."
OCGA § 43-41-17 (f) "exempts specialty contractors from securing a general contractor’s license to perform work under ...this chapter ... provided
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that such other work involved is incidental to and an integral part of the exempt work performed by the specialty contractor and does not exceed the greater of $10,000.00 or 25 percent of the total value at the time of contracting of the work to be performed." Restor-It, 352 Ga. App. At 619. To fall under the specialty contractor exemption from the licensing requirement, the value of the work performed must not be greater than $10,000 or 25% of the total value of the work to be performed. Id. In this case, because the Claim amount exceeds $10,000 and there is no evidence on what the total value of the work to be performed on the Stonebridge Project was at the time Claimant entered into the contract with Debtor, it is more likely than not that the specialty contractor exemption is inapplicable to Claimant. As a result, to the extent Georgia law is applicable to the Stonebridge Project, Patrick has rebutted the prima facie validity of the Claim by demonstrating that the Stonebridge Project contract is unenforceable against Debtor under Georgia Code § 43-101-1(b), and Claimant has failed to carry its ultimate burden of proof by not demonstrating otherwise. This is an alternate ground for disallowing the Claim because the Claim is unenforceable against Debtor under applicable law.
With regard to Claimant’s argument that Debtor knew that Claimant used subcontractors (an argument that was later expanded by Mr. An during oral argument on January 14, 2021 to allege that Debtor knew of Claimant’s deficient licensing and registration requirements because Debtor and Claimant had worked together for several years on various projects), the court construes the argument to be a waiver argument. But Claimant has not presented any evidence demonstrating that Debtor waived its rights under any California or Georgia licensing or registration laws, so Claimant’s argument is overruled. See generally, Resp. [dkt. 450] and Supp. Resp. [dkt. 483].
Finally, Patrick’s unclean hands argument to disallow the Claim is denied because it was raised for the first time in its Supplemental Reply. See, Supp. Reply, p. 12. Further, all parties shall bear their own costs.
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Debtor(s):
Commercial Services Building Inc Represented By
Phillip B Greer
Trustee(s):
Karl T Anderson (TR) Represented By
Misty A Perry Isaacson Misty A Perry Isaacson Thomas J Polis
Robert M Dato Jason E Goldstein
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Docket 962
CONTINUED: Hearing Continued to 2/18/2021 at 10:30 a.m., Per Order Entered 2/2/2021 (XX) - td (2/2/2021)
NONE LISTED -
Debtor(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel Bobby Samini Dean A Ziehl
Gary A Pemberton Shane M Biornstad
10:30 AM
[JEFFREY I. GOLDEN, CHAPTER 7 TRUSTEE]
Docket 39
NONE LISTED -
February 11, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Heather K Piper Represented By Karine Karadjian
Trustee(s):
Jeffrey I Golden (TR) Represented By Ryan W Beall
10:30 AM
[WEILAND GOLDEN GOODRICH LLP, COUNSEL FOR THE CHAPTER 7 TRUSTEE]
Docket 37
NONE LISTED -
February 11, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Heather K Piper Represented By Karine Karadjian
Trustee(s):
Jeffrey I Golden (TR) Represented By Ryan W Beall
10:30 AM
[HAHN FIFE & COMPANY LLP, ACCOUNTANT FOR CHAPTER 7 TRUSTEE]
Docket 34
NONE LISTED -
February 11, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Heather K Piper Represented By Karine Karadjian
Trustee(s):
Jeffrey I Golden (TR) Represented By Ryan W Beall
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(Set at DS Hrg Held 11-5-20) FR: 12-17-20
Docket 104
NONE LISTED -
December 17, 2020
Continue the Confirmation Hearing to to February 11, 2021 at 10:30 a.m.; the parties shall meet and confer no later than January 14, 2021 regarding a possible resolution of this matter. Any further pleadings in support of confirmation must be filed by January 21, 2021; any further responses by January 28, 2021 and any reply February 4, 2021. (XX)
The court has serious concerns regarding the timeline and feasibility of the completion of the construction of the Hazell Bell and Silverado properties and believes that a meet and confer between the parties might be helpful.
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required.
February 11, 2021
The court is inclined to deny confirmation. Basis for Tentative Ruling
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There are multiple discrepancies regarding the one accepting creditor, State Compensation/Northern California Collection Service ("State/Northern"):
State/Northern is listed on Schedule E/F as an unsecured creditor in the amount of $108,587.
State/Northern is not listed as an unsecured creditor in the List of General Unsecured Claims in Exh. 4 of the Plan/DS at p.46. However, "National Collection" is listed in Exh 4 in the amount of $108,587 but is not listed in Sch. E/F.
State/Northern filed a proof of claim [8-1] on Dec. 22, 2020 in the amount of $126,994.80 as a secured creditor, asserting a lien on "all assets" and attaching a UCC document to the proof of claim.
The proof of claim is presumed valid as of this date. However, the claim is treated as an unsecured claim under the Plan and is not otherwise provided for as a secured creditor under the Plan.
Feasibility
Debtor has not provided evidence of funds sufficient to make plan payments, $4,000 in additional payments to Classes 1 and 2, and pay for remaining construction re the Hazel Bell property. The photographs submitted by the Objecting Claimants appear to indicate substantially more work than represented by Debtor, and certainly more than $26,000.
Debtor refers to $143,000 in receivables. However approx. $108,00 of such receivables (Riggins and PCG) has been unpaid since August according to the MORs.
Objecting Creditors to advise the court of their position regarding the most recent reply filed by Debtor on 2/4/21 [docket 154].
Debtor(s):
MESCO, Inc. Represented By
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Michael G Spector Vicki L Schennum
10:30 AM
(2) Requiring Report on Status of Chapter 11 Case FR: 4-2-20; 9-10-20; 11-5-20; 12-17-20
Docket 1
NONE LISTED -
April 2, 2020
Debtor's counsel to advise the court re the status of procuring insurance for the uninsured properties.
Deadline to file plan and disclosure statement is July 25, 2020. Continue status conference to August 20, 2020 at 10:30 a.m. Updated status report must be filed by August 6, 2020 unless a plan and disclosure statement has been filed by such date, in which case the requirement of a status report will be waived.
Note: Appearance at this hearing is required.
September 10, 2020
Continue the status conference to November 5, 2020 at 10:30 a.m.; updated status report not required. (XX)
Note: Appearance at this hearing is not required.
November 5, 2020
10:30 AM
Continue status conference to January 21, 2021 at 10:30 a.m.; updated status report not required.
Note: Appearance at this hearing not required.
December 17, 2020
Continue the status conference to February 11, 2021 at 10:30 a.m. (XX)
February 11, 2021
No tentative ruling. Disposition will depend on the outcome of the confirmation hearing.
Debtor(s):
MESCO, Inc. Represented By
Michael G Spector
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Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
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Docket 0
NONE LISTED -
NONE LISTED -
9:30 AM
9:30 AM
Adv#: 8:14-01220 Lee et al v. Ciling et al
FR: 3-12-15; 4-7-15; 6-18-15; 8-18-15; 12-15-15; 4-14-16; 9-1-16; 6-22-17;
8-31-17; 4-12-18; 10-18-18; 12-13-18; 2-12-19; 3-12-19; 6-20-19; 9-19-19;
10-3-19; 11-7-19; 1-30-20; 10-8-20
Docket 59
NONE LISTED -
November 7, 2019
The status conference will be continued to January 30, 2020 at 9:30 a.m.; joint status report must be filed by January 16, 2020. (XX)
January 30, 2020
Discovery Cut-off Date: June 30, 2020
Deadline to Attend Mediation: Aug. 31, 2020
Pretrial Conference Date: Oct. 8, 2020 at 9:30 a.m. (XX) Deadline to File Joint Pretrial Stipulation: Sept. 24, 2020
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiffs shall serve/lodge a scheduling order consistent with the same.
9:30 AM
October 8, 2020
[Special Notice: This hearing is being conducted by Zoomgov. See the first page of the calendar for today's hearings for participation details.]
Continue as a STATUS CONFERENCE to February 18, 2021 at 9:30 a.m.; an updated Joint Status report must be filed by February 4, 2021.A new pretrial conference will be scheduled at the February 18, 2021 Status Conference. In the meantime, Defendants Sammy and Anke Ciling must provide Rule 26 disclosures to Plaintiff no later than November 9, 2020 and the parties must attend mediation no later than December 18, 2020. (XX)
Basis for Tentative Ruling:
The continued hearing date, February 18, 2021 takes into account the current January 19, 2021 sentencing date of Plaintiff Donald Lee ("Lee").
Defendant Sammy Ciling ("Ciling") has requested dismissal of the adversary proceeding due to the anticipated sentencing of Lee. First, the request is not properly before the court as it was not presented as a noticed motion in accordancee with applicable federal and local rules. Second, absent evidence that a plaintiff is unable to participate in litigation while incarcerated, such incarceration alone is not a basis for dismissal of a civil action. Accordingly, the request for dismissal is denied.
Defendants Ciling and Mrs. Ciling must comply with Rule 26 disclosure requirements.
The attendance at mediation is mandatory. Despite pandemic restrictions, mediations are now routinely conducted by video conference. Therefore, there should be no reason why mediation cannot take place in the timeframe set by the court.
Note: If ALL parties accept the foregoing tentative ruling, appearances at
9:30 AM
this hearing are not required and Plaintiff shall, within 7 days, lodge an order consistent with the tentative ruling.
February 18, 2021
Discovery Cut-off Date: April 30, 2021 Deadline to Attend Mediation: March 31, 2021 Pretrial Conference Date: June 17, 2021 Deadline to File Pretrial Stipulation:June 3, 2021
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
Debtor(s):
Donald Woo Lee Represented By
Robert B Rosenstein
Defendant(s):
American Edge Medical Co. Represented By Marc C Forsythe
Turko United LLC Pro Se
Nath Investments Inc. Represented By Marc C Forsythe
My Imaging Center Inc. Represented By Marc C Forsythe
Medical Imaging Rentals, Inc. Represented By Marc C Forsythe
9:30 AM
My Imaging Center LLC Pro Se
Lake Elsinore Diagnostics Inc. Pro Se
Temecula Diagnostic Center Inc. Pro Se
Anke Ciling Pro Se
Sammy Ciling Pro Se
Fallbrook Diagnostics Inc. Pro Se
Joint Debtor(s):
Linda Bae Lee Represented By
Robert B Rosenstein
Plaintiff(s):
Donald Woo Lee Represented By
Norma Ann Dawson Robert B Rosenstein
Linda Bae Lee Represented By
Norma Ann Dawson Robert B Rosenstein
Prime Partners Medical Group, Inc. Represented By
Norma Ann Dawson Robert B Rosenstein
Trustee(s):
Richard A Marshack (TR) Represented By Kyra E Andrassy David Wood
Matthew Grimshaw Nathan F Smith Arturo M Cisneros Norma Ann Dawson Robert S Lawrence Caroline Djang Brett Ramsaur
9:30 AM
9:30 AM
Adv#: 8:17-01095 Steward Financial LLC v. Bral
(Set at hrg. held 4-9-20) FR: 10-8-20
Docket 121
NONE LISTED -
October 8, 2020
Continue Status Conference to February 18, 2021 at 9:30 a.m.; updated Joint Status Report must be filed by February 4, 2021. (XX)
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiff shall notice of the continued hearing date/time.
February 18, 2021
In light of the pending appeal, continue this matter as a status conference to July 22, 2021 at 9:30 a.m.; updated status report must be filed by July 8, 2021.
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiff shall notice of the continued hearing date/time.
Debtor(s):
John Jean Bral Represented By
9:30 AM
Beth Gaschen Alan J Friedman William N Lobel Bobby Samini Dean A Ziehl Gary A Pemberton
Defendant(s):
John Jean Bral Represented By William N Lobel Beth Gaschen Alan J Friedman Gary A Pemberton
Movant(s):
Steward Financial LLC Represented By
Krikor J Meshefejian Gary E Klausner
Plaintiff(s):
Steward Financial LLC Represented By
Krikor J Meshefejian Gary E Klausner
9:30 AM
Adv#: 8:20-01151 Bristol SL Holdings, Inc v. HOWARD B. GROBSTEIN
Docket 1
SPECIAL NOTE: Stipulation for Judgment filed 10/29/2020; Judgment Lodged in LOU on 10/29/2020, Order #10292351 - td (10/30/2020)
January 14, 2021
In light of pending settlement, continue the Status Conference to February 18, 2021 at 9:30 a.m.; an updated Status Report must be filed by February 4, 2021 if a Rule 9019 motion has not been filed by such date. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
February 18, 2021
Take matter off calendar in light of entry of order approving settlement on February 11, 2021 [docket no. 628]
Note: No appearances at this hearing are required.
Debtor(s):
Solid Landings Behavioral Health, Represented By
David L. Neale
9:30 AM
Juliet Y Oh Jeffrey S Kwong David M Samuels
Defendant(s):
HOWARD B. GROBSTEIN Pro Se
Plaintiff(s):
Bristol SL Holdings, Inc Represented By Nathan Fransen
9:30 AM
Adv#: 8:19-01061 Marshack (TR) v. Patow et al
FR: 8-15-19; 1-16-20; 4-16-20; 7-16-20; 11-19-20
Docket 7
VACATED: Pre-trial Conference Vacated, Per Order Entered 1/13/2021 - td (1/13/2021)
August 15, 2019
Discovery Cut-off Date: 11/30/19
Pretrial Conference Date: 1/16/20 at 9:30 a.m. (XX) Deadline to file Pretrial Stipulationr: 1/9/20
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
Debtor(s):
James Christopher Patow Represented By
9:30 AM
Kevin J Kunde
Defendant(s):
James Christopher Patow Pro Se Alvin and Linda Patow 2006 Trust Pro Se Linda Patow, as Trustee of the Alvin Pro Se Linda Patow Pro Se
Plaintiff(s):
Richard A. Marshack (TR) Represented By
D Edward Hays Chad V Haes
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Chad V Haes
9:30 AM
Adv#: 8:20-01136 Marshack v. Levy et al
FR: 12-10-20
Docket 1
CONTINUED: Status Conference Continued to 4/8/2021 at 2:00 p.m., Per Order Entered 2/11/2021 (XX) - td (2/11/2021)
December 10, 2020
No tentative ruling -- disposition will depend on the outcome of Defendants' motion to dismiss also set for this date.
Debtor(s):
Friendly Village MHP Associates LP Represented By
Howard Camhi
Defendant(s):
Shaoul J. Levy Pro Se
Levy Affiliated Holdings LLC Pro Se LEVY FRIENDLY VILLAGE, LLC Pro Se 5450 PARAMOUNT LP Pro Se
9:30 AM
Plaintiff(s):
Richard A Marshack Represented By
Shant Kabateck LLP Karnikian Joana Fang
Nineli Sarkissian Brian Kabateck
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Kristine A Thagard Arthur Grebow David Wood Tinho Mang
9:30 AM
Adv#: 8:20-01122 Kosmala v. Chandar et al
FR: 11-5-20
Docket 1
NONE LISTED -
February 18, 2021
In light of pending mediation, continue this status conference to May 20, 2021 at 9:30 a.m.; updated joint status report must be filed by May 6, 2021.
Note: Appearances at this status conference are not required; Plaintiff shall serve notice of the continued status conference.
Debtor(s):
Sean Pate Represented By
Anerio V Altman
Defendant(s):
Deepak Chandar Pro Se
Reena A. Shah Pro Se
Spherebase, LLC Pro Se
Spherebase, LLC Pro Se
9:30 AM
Plaintiff(s):
Weneta M.A. Kosmala Represented By Erin P Moriarty
Trustee(s):
Weneta M Kosmala (TR) Represented By Erin P Moriarty
9:30 AM
Adv#: 8:19-01205 Elieff et al v. Kurtin
FR: 3-5-20; 4-9-20; 4-23-20; 8-20-20; 11-19-20; 12-17-20; 1-21-21
Docket 11
NONE LISTED -
April 23, 2020
Continue Status Conference to August 20, 2020 at 9:30 a.m.; joint status report due August 6, 2020. (XX)
August 20, 2020
Continue Status Conference to November 19, 2020 at 9:30 a.m.; updated Joint Status Report to be filed by November 5, 2020. (XX)
Note: If all parties accept the foregoing tentative ruling, appearances at today's hearing is not required. Plaintiffs to serve notice of the continued hearing date/time.
November 19, 2020
Continue the hearing to December 17, 2020 at 9:30 a.m.; the court's order re the
9:30 AM
SJ Motion will be issued in the near future. (XX)
Note: Appearances at this hearing are not required.
December 17, 2020
Continue Status Conference one final time to January 21, 2021 at 9:30 a.m. (XX)
Note: Appearances at this hearing are not required.
January 21, 2021
Continue the hearing to February 18, 2021 at 9:30 a.m.; the court's order re SJ will be issued on January 25, 2021. (XX)
Note: Appearances at this hearing are not required.
February 18, 2021
Continue status conference to May 20, 2021 at 9:30 a.m.; updated joint status report must be filed by May 6, 2021.
Note: Appearances at this hearing are not required; Plaintiff serve notice of the continued hearing date/time.
Debtor(s):
Bruce Elieff Represented By
Paul J Couchot Lisa Nelson
Defendant(s):
Todd Kurtin Represented By
9:30 AM
Lewis R Landau Edward O Morales
Plaintiff(s):
Bruce Elieff Represented By
Paul J Couchot
Morse Properties, LLC Represented By Paul J Couchot
4627 Camden, LLC Represented By Paul J Couchot
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe
9:30 AM
Adv#: 8:20-01046 Ehrenberg (TR) v. Benice et al
Docket 1
NONE LISTED -
July 16, 2020
Continue status conference to September 17. 2020 at 9:30 a.m. in light of the appointment of a chapter 11 trustee in the main case. Updated joint status report must be filed by September 3, 2020. (XX)
Note: If both parties accept the foregoing tentative ruling, appearances at this hearing are not required; Plaintiff shall serve notice of the continued hearing date/time.
September 17, 2020
[This tentative ruling has been modified since its original posting]
Continue this matter to November 19, 2020 at 9:30 a.m.; updated statius report must be filed by November 5, 2020. (XX)
Special note: Starting 10/8/20 all hearings before Judge Smith will be by Zoom. See Court's website for details.
9:30 AM
Note: Appearances at this hearing are not required.
November 19, 2020
An updated Status Report was not filed as ordered at the September 17, 2020 hearing. Therefore, the parties must appear at the hearing and advise the court re the status of this matter.
February 18, 2021
Continue status conference to May 20, 2021 at 9:30 a.m.; updated joint status report must be filed by May 6, 2021. The Plaintiff's request to consolidate the Disgorgement Motion [docket no. 381] with this adversary proceeding is granted. Plaintiff to lodge an order consistent with the same.
Note: Appearances at this hearing are not required; Plaintiff serve notice of the continued hearing date/time.
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson
Defendant(s):
Jeffrey S. Benice Represented By Jeffrey S Benice
Benice Law Represented By
Jeffrey S Benice
Plaintiff(s):
Howard M Ehrenberg (TR) Pro Se
9:30 AM
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe
9:30 AM
Adv#: 8:20-01091 Payday Loan, LLC v. Clesceri
Docket 1
OFF CALENDAR: Pre-trial Conference Set for 5/20/2021 at 9:30 a.m., Per Order Entered 12/3/2020 (XX) - td (2/9/2021)
August 6, 2020
Discovery Cut-off Date: Dec. 7, 2020
Deadline to Attend Mediation: Jan. 22, 2021
Pretrial Conference Date: Feb. 18, 2021 at 9:30 a.m. (XX)
Deadline to file Joint Pretrial Stipulation: Feb. 4, 2021
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiff shall lodge a scheduling order consistent with the same within 7 days of the hearing.
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
9:30 AM
Debtor(s):
Gary Clesceri Represented By Michael G Spector
Defendant(s):
Gary Clesceri Pro Se
Joint Debtor(s):
Charlene Clesceri Represented By Michael G Spector
Plaintiff(s):
Payday Loan, LLC Represented By Timothy J Silverman
Trustee(s):
Karen S Naylor (TR) Pro Se
9:30 AM
Adv#: 8:20-01018 Tustin Buick GMC v. Shack
FR: 4-30-20; 9-17-20; 11-19-20; 1-7-21
Docket 1
OFF CALENDAR: Order Granting Stipulation to Dismiss Adversary Case Without Prejudice and for this Court to Retain Jurisdiction Entered 1/19/2021 - td (1/19/2021)
April 30, 2020
Discovery Cut-off Date: July 31, 2020
Pretrial Conference Date: Sept. 17, 2020 at 9:30 a.m. (XX)
Deadline to file Joint Pretrial Stipulation: Sept. 3, 2020
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required. Nonappearance at the hearing will be deemed acceptance of the tentative ruling. Plaintiff to lodge a scheduling order consistent with the same within 7 days of the status conference.
November 19, 2020
As no pretrial stipulation or status report has been timely filed, the parties must appear at this hearing and advise the court of its status.
9:30 AM
Basis for Tentative Ruling
On Sept. 8, 2020, the parties filed a Stipulation [docket #11] indicating that the parties were close to reaching a settlement. An order approving the Settlement was entered on the same date [docket #13] continuing the Pretrial Conference to this hearing date. There is no indication on the docket that a settlement has been reached.
Note: Appearances at this hearing are required.
January 7, 2021
Continue Pretrial Conference one final time to February 18, 2021 at 9:30 a.m.; a Joint Pretrial Stipulation must be filed by February 4, 2021 if settlement pleadings have not been filed by such time. (XX)
Note: If all parties accept the tentative ruling, appearances at this hearing are not required and Plaintiff shall serve notice of the continued hearing date.
Debtor(s):
Maxwell Shack Represented By Stephen M Goodman
Defendant(s):
Maxwell Shack Pro Se
Plaintiff(s):
Tustin Buick GMC Represented By Kaitlyn Q Chang
Trustee(s):
Karen S Naylor (TR) Pro Se
9:30 AM
Adv#: 8:20-01008 Barrette v. United States of America, Treasury Department, Int
FR: 4-16-20; 6-11-20; 7-16-20; 9-17-20; 10-22-20; 12-10-20
Docket 1
NONE LISTED -
February 18, 2021
Continue this status conference to May 20, 2021 at 9:30 a.m.; an updated joint status report must be filed by May 6, 2021.
Note: Appearances at this hearing are not required if all the parties accept the foregoing tentative ruling and Plaintiff shall serve notice of the continued hearing date/time.
Debtor(s):
Jason M. Barrette Represented By
James D. Hornbuckle
Defendant(s):
United States of America, Treasury Pro Se
Plaintiff(s):
Jason M. Barrette Represented By
James D. Hornbuckle
9:30 AM
Trustee(s):
Richard A Marshack (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST COMPANY VS.
DEBTORS FR: 1-14-21
Docket 33
OFF CALENDAR: Order Granting Motion for Relief from the Automatic Stay (Settled by Stipulation) Entered 2/1/2021 - td (2/1/2021)
January 14, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Peter Ornelas Represented By
Kevin Tang
10:00 AM
Joint Debtor(s):
Rebecca B Ornelas Represented By Kevin Tang
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
VS.
DEBTORS
Docket 42
OFF CALENDAR: Order Granting Motion for Relief from the Automatic Stay (Settled by Stipulation) Entered 2/4/2021 - td (2/4/2021)
NONE LISTED -
Debtor(s):
James R. Cochrun Represented By Holly Roark
Joint Debtor(s):
Aurora Christina Carbonara Represented By Holly Roark
Movant(s):
Ford Motor Credit Company LLC Represented By
Sheryl K Ith
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
VS.
DEBTOR
Docket 9
NONE LISTED -
February 18, 2021
Grant the motion with all relief requested, except that the order granting relief from stay must be recorded with the County of Orange. Further relief from the automatic stay is subject to any applicable state and/or local eviction moratoriums. The state court shall determine the applicability of any such moratoriums.
Basis for Tentative Ruling:
The applicability of any state and/or local eviction moratoriums, as well as Debtor's eligiblity for any such moratoriums, is best determined and adjudicated by the Orange County Superior Court.
Debtor is not eligible to be a chapter 13 debtor under Bankruptcy Code 109(e) which requires that all chapter 13 debtors have "regular income." According to Debtor's schedules, she is unemployed and has no income with which to fund a chapter 13 plan. Expectation of income sometime in the future is not a substitute for compliance with the income requirement of Section 109(e).
10:00 AM
Debtor(s):
Lael Gonzales Pro Se
Movant(s):
Charles Sulahian Represented By Stephen E Ensberg
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
VS.
DEBTOR
Docket 20
NONE LISTED -
February 18, 2021
Deny motion for relief from the automatic stay; grant adequate protection payments in the amount of $10,937.50 per month, commencing March 1, 2021 through plan confirmation or payment of the Green Rock claim in full, whichever occurs first. If Debtor fails to make a payment by the first of the month, Movant shall notify Debtor and its counsel in writing. If the adequate protection default is not cured within 10 days of the date of the notice, Movant may file a declaration re non-payment and lodge an order granting immediate relief from stay with waiver of the FRBP 4001(a)(3), and all other relief requested in the Motion, including prospective relief for 180 days, except that relief under 362(d)(4) is denied as well as the request relief #11.
Basis for Tentative Ruling:
Section 362(n)(1) does not apply in this case
Pursuant to Fed.R.Bankr.P. (FRBP) 1020(a), the status of the case as a small business case shall be in accordance with the debtor's statement under this
10:00 AM
subdivision, unless and until the court enters an order finding that the debtor's statement is incorrect. FRBP 1020(b) provides that except as provided in subdivision (c), the U.S. Trustee or a party in interest may file an objection to the debtor's statement under subdivision (a) no later than 30 days after the conclusion of the 341a meeting .
The Federal Bankruptcy Rules are clear that a debtor which possesses the financial attributes that fall within those circumscribed by Section 101(51D)(A) for a small business debtor and for which no committee is appointed, but does not designate itself as a small business debtor, and is never designated a small business debtor by the court, may proceed through the case as a non-small business debtor. Rule 1020(b) establishes a specific deadline to object to debtor designation or non-designation at "no later than 30 days after the conclusion of the meeting of creditors held under § 341(a) of the Code, or within 30 days after any amendment to the statement, whichever is later." Absent timely objection, the case proceeds as a non-small business debtor case.
Whether the debtor has the "characteristics" of a small business is irrelevant, absent the affirmative election of the debtor. Finally, the non-binding case cited by Movant, In re Abundant Life Worship Ctr. of Hinesville GA Inc, is entirely distinguishable because in that case the debtor elected to be a small business case. Debtor here did not.
Movant has not met its burden of proof under 362(d)(2)(A)
According to Movant's own property values and debt (including default interest, which default interest addendum was not attached to the Motion), there is equity in the property. Notably, the court need not consider the default interest for purposes of the Motion because the addendum was only submitted with the Reply. See LBR 9013-1(g)(4) [matters presented fir the first time in reply documents will not be considered].
Movant has not sufficiently demonstrated bad faith
Filing a bankruptcy on the eve of (or even minutes before) a foreclosure sale is not, in and of itself, sufficient to establish bad faith.
10:00 AM
The court can take judicial notice of the fact that Debtor's prior counsel was not competent in bankruptcy matters and made many mistakes in the case that jeoporadized the continued administration of the case. The court declines to ascribe prior counsel's shortcomings to Debtor.
Movant has not sufficiently established that the current filing was a "scheme" to delay, hinder or defraud creditors
Entitlement to the extraordinary relief of 362(d)(4) is not established simply by the filing of more than one bankruptcy case. The court must consider the totality of the circumstances. In this case, the court presided over the prior case and is, therefore, of the grounds upon which such case was dismissed.
Movant has established that its the equity cushion is insufficient to protect its interest.
Debtor has offered the payment of $10,937.50 (non-default interest payment) to be adequate under the circumstances.
Debtor(s):
Chase Merritt Global Fund LLC Represented By
W. Derek May
Movant(s):
Secured Creditor, Green Rock II, Represented By
Tinho Mang
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
FR: 8-6-20; 9-17-20; 10-22-20; 11-19-20; 12-17-20
Docket 167
NONE LISTED -
August 6, 2020
Grant motion.
Debtor's lender is authorized to place the forbearance payments at the end of the loan.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
October 22, 2020
[Special Notice: This hearing is being conducted by Zoomgov. See the first page of the calendar for today's hearings for participation details.]
Grant the motion. If the parties require a further continuance of the hearing, a request may be made during the calendar roll call by the Court Clerk just prior to the hearing. Available continued hearing dates are: 11/5/20, 11/12/20, and 11/19/20 at 10:30 a.m.
10:30 AM
Note: This matter appears to be uncontested. Accordingly, no court appearances are required if the parties accept the tentative ruling to grant the Motion.
November 19, 2020
Grant the Motion, unless the parties require another continued hearing, in which case they may request a final continuance to December 17, 2020 at 10:30 a.m. during the courtroom clerk's calendar roll call just prior to today's hearing. No further continuances beyond December 17, 2020 will be granted unless a supplemental pleading or stipulation is filed explaining the reason(s) for the neceessity of a further hearing.
February 18, 2021
Deny motion for failure to prosecute. Basis for Tentative Ruling:
This matter has been pending for six months with no resolution. The parties were warned that the December 17, 2020 hearing would be the final hearing on the matter. The court, nevertheless, continued the December 17, 2020 hearing for an additional two months to this date. No further continuances will be granted.
Debtor(s):
Paul Edward Rubio Represented By Lauren Rode
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
Docket 542
NONE LISTED -
February 18, 2021
Grant the motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Friendly Village MHP Associates LP Represented By
Howard Camhi
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Kristine A Thagard Arthur Grebow David Wood Tinho Mang Stefan Perovich
10:30 AM
Docket 539
NONE LISTED -
February 18, 2021
Grant the motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Friendly Village MHP Associates LP Represented By
Howard Camhi
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Kristine A Thagard Arthur Grebow David Wood Tinho Mang Stefan Perovich
10:30 AM
Docket 268
NONE LISTED -
February 18, 2021
Grant the motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Friendly Village GP, LLC Represented By Howard Camhi
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays David Wood Kristine A Thagard
10:30 AM
U.S.C. Section 554(b) and Local Bankruptcy Rule 9013-1
Docket 40
SPECIAL NOTE: Catamount Properties 2018, LLC's Notice of Withdrawal of Notice of Opposition and Request for Hearing [Docket Entry No. 42] filed 2/10/2021 - td (2/10/2021)
February 18, 2021
Grant the motion.
Note: This matter appears to be uncontested as the only objection has been withdrawn. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Heather Leigh Tolson Represented By Fritz J Firman
Trustee(s):
Jeffrey I Golden (TR) Pro Se
10:30 AM
(Chapter 7 Trustee is Substituted in Place of Kurtin as Moving Party in Respect to Motion, Per Order Entered 10/9/2020)
FR: 5-7-20; 5-21-20; 6-25-20; 7-16-20; 9-17-20; 11-19-20
Docket 381
NONE LISTED -
June 25, 2020
Continue hearing to July 16, 2020 at 2:00 p.m. (XX)
July 16, 2020
The court is currently not persuaded that Section 329(a) provides a sufficient legal basis for the relief sought. It appears that Mr. Benice represents Debtor only in the dischargeability adversary proceeding. Section 329 (a) applies to "any attorney representing a debtor in a case under this title . . ." and FRBP 2016(b) an attorney for a debtor to file a disclosure statement "within 14 days after the order of relief" or "at another time as the court may direct."
Movant should focus his argument today the application to Section 329 to the circumstance where an attorney is representing a debtor solely in an dischargeability action and direct the court to the evidence he feels supports a finding that such representation was contemplated at the time of the subject
10:30 AM
transfer.
September 17, 2020
Continue this matter to November 19, 2020 at 10:30 a.m.; updated status report must be filed by November 5, 2020. (XX)
Note: Appearances at this hearing are not required.
November 19, 2020
No new pleadings have been filed in this matter. Trustee shall appear and advise the court regarding the status.
February 18, 2021
Continue hearing to July 22, 2021 at 9:30 a.m. in light of the court's granting of the chapter 7 trustee's request to consolidate this matter with Adversary No.
20-01046, pursuant to FRBP 7042 and FRCP 42.
Note: Appearances at this hearing are not required.
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson
Movant(s):
Todd Kurtin Represented By
Lewis R Landau
10:30 AM
Trustee(s):
Edward O Morales
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe
10:30 AM
Docket 25
NONE LISTED -
February 18, 2021
Grant the motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Lenore Renee Mallek-Passey Represented By Nicholas M Wajda
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
Docket 21
NONE LISTED -
February 18, 2021
Grant the motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Heladio Sanchez Pro Se
Trustee(s):
Karen S Naylor (TR) Pro Se
10:30 AM
FR: 5-12-20; 7-23-20; 9-3-20; 11-19-20; 12-10-20
Docket 7
NONE LISTED -
May 12, 2020
Deadline to file plan/disclosure statement: Aug. 14, 2020*
Claims Bar Date (service of notice by 5/19/20): July 20, 2020
Continued Status Conference: July 23, 2020 at 10:30am Deadline for Debtor and Trustee to
file Updated Status Report: July 9, 2020
*Special Note: The court has reviewed the report filed by the trustee on 5/11/20 and, in light of the same, no appearances at this status conference are required and the deadline for filing a plan has been modified to August 14, 2020. Non appearance at the hearing will be deemed acceptance of the tentative ruling. The court will issue its own order.
Note: Appearances at this hearing are not required if all parties accept the tentative ruling required.
July 23, 2020
10:30 AM
Extend the deadline for filing a plan and disclosure statement from August 14, 2020 to October 15, 2020 and continue the Status Conference to November 19, 2020 at 10:30 a.m.; an updated status report must be filed by Debtor by November 5, 2020 and by the Trustee by November 12, 2020. However, if Debtor timely files a plan and disclosure statement by October 15, 2020, updated status reports will not be required and the Status Conference will be continued to the date/time of the hearing regarding approval of the disclosure statement.
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required and the Court will issue its own order re the same.
September 3, 2020
Continue Status Conference to November 19, 2020 at 10:30 a.m.; an updated status report must be filed by Debtor by November 5, 2020 and by the Trustee by November 12, 2020. However, if Debtor timely files a plan and disclosure statement by October 15, 2020, updated status reports will not be required and the Status Conference will be continued to the date/time of the hearing regarding approval of the disclosure statement. (XX)
Note: Appearance at today's hearing is not required. The court will issue its own order re the tentative ruling.
November 19, 2020
Continue the Status Conference to December 10, 2020 at 10:30 a.m., the same date/time as hearing on the the approval of Debtor's disclosure statement; updated status report is not required for that hearing. (XX)
Note: Appearances at this hearing are not required.
December 10, 2020
10:30 AM
Continue Status Conference to February 18, 2021 at 10:30 a.m.; updated Status Report must be filed by February 4, 2021 unless an amended disclosure statement has been timely filed, in which case the requirement of a status report will be waived and the Status Conference continued to the same date/time as hearing on such amended disclosure statement. (XX)
Note: If Debtor is in substantial compliance with the requirements of the
U.S. Trustee, appearances at this hearing will not be required. It is Debtor's responsibility to confirm substantial compliance in advance of the hearing.
February 18, 2021
Continue status conference to March 11, 2021 at 10:30 a.m., same date/time set for hearing on approval Debtor's disclosure statement.
Special note: The court appreciates the updated status report filed by the Subchapter V Trustee [docket # 70]
Note: Appearances at this hearing are not required.
Debtor(s):
Vantage Point Apparel Software, Inc. Represented By
Michael Jones
Trustee(s):
Mark M Sharf (TR) Pro Se
10:30 AM
Docket 98
NONE LISTED -
February 18, 2021
Grant the motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Helen Weatherby Represented By Bert Briones
10:30 AM
[BERT BRIONES (DBA, RED HILL LAW GROUP) AS GENERAL BANKRUPTCY COUNSEL]
Docket 108
NONE LISTED -
February 18, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Helen Weatherby Represented By Bert Briones
10:30 AM
[GROBSTEIN TEEPLE, LLP AS ACCOUNTANTS FOR THE CHAPTER 11 DEBTOR]
Docket 107
NONE LISTED -
February 18, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Helen Weatherby Represented By Bert Briones
10:30 AM
FR: 8-20-20; 11-19-20; 12-3-20; 1-14-21
Docket 1
NONE LISTED -
August 20, 2020
Claims bar date: Oct. 28, 2020 (notice to creditors by 8/28/20) Deadline to file plan/DS: Dec. 18, 2020
Continued Status Conference: Nov. 19, 2020 at 10:30 a.m. (XX)
Deadline to file Updated
Status Report: Nov. 5, 2020
Note: If Debtor is in substantial compliance with the requirements of the
U.S. Trustee, appearance at this Status Conference is not required. It is Debtor's responsibility to confirm compliance with the U.S. Trustee. The court will issue its own order re the foregoing schedule/deadlines.
November 19, 2020
Continue this Status Conference to December 3, 2020 at 10:30 a.m., same date/time as hearing on Debtor's motion to sell real property; updated Status Report not required for that hearing. (XX)
10:30 AM
Note: Appearance at this hearing is not required.
December 3, 2020
Continue Status Conference to January 14, 2021 at 10:30 a.m.; updated Status Report must be filed by January 7, 2021 if the case is still pending as of that date.(XX)
Note: Appearance at this hearing is not required.
January 14, 2021
Continue Status Conference to February 18, 2021 at 10:30 a.m., same date/time as hearing on motion filed by Debtor on 1/6/21; updated Status Report not required. (XX)
Note: Appearance at this hearing is not required.
February 18, 2021
Take matter off calendar in light of the court's granting of Debtor's motion to dismiss the case.
Note: Appearances at this hearing are not required.
Debtor(s):
Helen Weatherby Represented By Bert Briones
10:30 AM
FR: 9-3-20; 12-17-20
Docket 1
NONE LISTED -
September 3, 2020
Claims bar date: Nov. 10, 2020 (notice by 9/10/20)
Deadline to file plan/DS: Dec. 1, 2020
Continued Status Conf: Dec. 17, 2020 at 10:30 a.m. (XX) Deadline to file Updated
Status Report*: Dec. 3, 2020
*Update report requirement waived if DS is timely filed.
Note: If Debtor is in substantial compliance with the requirements of the
U.S. Trustee, appearance at this hearing is not required and the court will issue it's own order re the same. It is Debtor's responsibility to confirm compliance with the UST prior to the hearing.
December 17, 2020
Continue the Status Conference to February 18, 2021 at 10:30 a.m.; updated
10:30 AM
Status Report must be filed by February 4, 2021. (XX)
Note: If Debtor is in substantial compliance with the requirements of the
U.S. Trustee, appearance at this hearing is not required and the court will issue it's own order re the same. It is Debtor's responsibility to confirm compliance with the UST prior to the hearing.
February 18, 2021
Continue status conference to April 1, 2021 at 10:30 a.m.; an updated status report must be filed by March 18, 2021 unless the case has been dismissed prior to such date.
Basis for Tentative Ruling
Debtor's late-filed status report [docket #94] indicates Debtor's intent to file a motion to dismiss this case.
Note: Appearances at this hearing are not required.
Debtor(s):
Golden Communications Inc. Represented By Marc C Forsythe
10:30 AM
Docket 66
NONE LISTED -
February 18, 2021
Approve the application.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Debtor is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Debtor's counsel will be so notified.
Debtor(s):
Stonewood Homes LLC Represented By William J King
Trustee(s):
Thomas H Casey (TR) Pro Se
10:30 AM
Docket 16
SPECIAL NOTE: Per Voice mail received from Dennis Connolly; he is subbed out as attorney for Debtor on 2/2/2021; new attorney is Krystina Tran. Case was converted to Chapter 7, so Motion is Moot. Hearing can go off calendar; he will not be making an appearance - td (2/16/2021)
February 18, 2021
Deny motion as moot in light of Debtor's conversion of the case to chapter 7.
Note: Appearance at this hearing is not required.
Debtor(s):
Margie Annette Arrington Represented By Krystina T Tran
Movant(s):
Margie Annette Arrington Represented By Krystina T Tran
Trustee(s):
Richard A Marshack (TR) Pro Se
10:30 AM
Docket 10
NONE LISTED -
February 18, 2021
Approve the application on condition that the 4.5% commission will be split evenly with any buyer agent; Overrule Creditor's objections as unpersuasive.
Debtor(s):
Chase Merritt Global Fund LLC Represented By
W. Derek May
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
Docket 17
NONE LISTED -
February 18, 2021
Deny the motion to dismiss without prejudice due to failure to state sufficient cause for dismissal.
Basis for Tentative Ruling
The court agrees with the Opposition filed by the Subchapter V trustee and incorporates his analysis by reference herein.
There is insufficient evidence of bad faith. As noted with respect to the court's tentative ruling regarding Movant's motion for relief from stay (#15 on today's calendar), the court is aware of the incompetency of Debtor's prior counsel in the prior chapter 11 cases to assist Debtor in navigating a chapter 11 cases, including his inability to utilize the court's electronic filing system, failure to timely file applications to employ his firm, failure to timely file an employment application for the real estate broker, failure to timely file responses, etc. None of those circumstances exist in the present case.
Debtor owns two parcels of real property, at least one of which is ready for marketing (Movant's own appraisal photographs depict a well-maintained high- end property (Fisher). No determination has yet been made by this court regarding the value of the properties -- which could, in theory, be higher than that asserted by Movant's appraiser.
10:30 AM
There is a subchapter V trustee involved in the case whose duty it is to try to facilitate a consensual plan and who will provide the court with a neutral assessment of the viability of the case.
Debtor has offered to make adequate protection payments; failure to do so will result in relief from stay.
The case was filed less than thirty days ago.
The court need not rule on the evidentiary objections as the court's consideration of the appraisal attached to Mr. Nguyen's declaration is not necessary for it to decide the Motion.
Debtor(s):
Chase Merritt Global Fund LLC Represented By
W. Derek May
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
FR: 2-11-21
Docket 962
CONTINUED: Hearing Continued to 3/4/2021 at 10:30 a.m., Per Order
Entered 2/11/2021 (XX) - td (2/11/2021)
NONE LISTED -
Debtor(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel Bobby Samini Dean A Ziehl
Gary A Pemberton Shane M Biornstad
1:30 PM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
1:30 PM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
NONE LISTED -
1:30 PM
1:30 PM
Docket 2
OFF CALENDAR: Debtor's Notice of Conversion of Bankruptcy Case from Chapter 13 to Chapter 7 filed 2/1/2021; Case Converted to Chapter 7 - td (2/9/2021)
NONE LISTED -
Debtor(s):
Margie Annette Arrington Represented By Krystina T Tran
Trustee(s):
Richard A Marshack (TR) Pro Se
1:30 PM
Docket 2
NONE LISTED -
NONE LISTED -
Debtor(s):
Jim Walter Pittman Represented By Chris T Nguyen
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
NONE LISTED -
NONE LISTED -
Debtor(s):
Manuel Mancenido Represented By Joshua L Sternberg
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
NONE LISTED -
NONE LISTED -
Debtor(s):
Marissa L. Chery Represented By Michael D Franco
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 1-26-21
Docket 84
NONE LISTED -
January 26, 2021
Grant the motion to dismiss if Debtor is not current by the time of the hearing. No motion to modify has been filed as of 12:00 pm this date.
February 23, 2021
Grant the motion to dismiss. Basis for Tentative Ruling:
A motion to modify was not filed by February 16, 2021 as ordered by the Court at the January 26, 2021 hearing.
Debtor(s):
Nelson D. Randin Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
2:30 PM
Docket 32
OFF CALENDAR: Notice of Voluntary Dismissal of Motion, filed 2/16/2021 - td (2/16/2021)
NONE LISTED -
Debtor(s):
Kalani James Robert Green Represented By
Rabin J Pournazarian
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 89
NONE LISTED -
February 23, 2021
Grant the motion to dismiss.
Debtor(s):
Lisa Nguyen Represented By
Christine A Kingston
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 10-27-20; 11-24-20; 12-18-20; 1-26-21
Docket 58
OFF CALENDAR: Voluntary Dismissal of Motion Filed 2/17/21 -mp2/17/21
November 24, 2020
Continue hearing to December 18, 2020 at 10:30 a.m., same date/time as hearing on approval of Debtor's pending motion to modify/suspend plan payments. (XX)
Note: If both parties accept the foregoing tentative ruing, appearances at this hearing are not required.
December 18, 2020
Grant the Motion to dismiss the case.
January 26, 2021
New motion to modify filed 1/19/21. Trustee to advise if he approves of it.
Debtor(s):
Darlene Futrel Represented By
2:30 PM
Trustee(s):
Christopher J Langley
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 1-26-21
Docket 68
NONE LISTED -
January 26, 2021
Grant motion to dismiss. Debtor is more than $14,000 in arrears and there is no motion to modify pending.
February 23, 2021
Grant the motion to dismiss. Basis for Tentative Ruling
No apparent progress since the last hearing. Further, Debtor has defaulted on adequate protection payments to lender. Order granting relief from stay lodged on 2/17/21.
Debtor(s):
Gregory Bettison Represented By Anthony P Cara
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
2:30 PM
FR: 1-26-21
Docket 50
NONE LISTED -
January 26, 2021
Grant motion to dismiss unless Debtor is postpetition current by the time of the hearing.
Basis for Tentative Ruling
Despite the fact that the motion was filed more than two months ago, to date no motion to modify has been filed.
February 23, 2021
Motion to modify filed 2/12/21. Deny the motion to dismiss if Trustee has no opposition to the motion to modify.
Debtor(s):
Richard Thomas McPhee Represented By Christopher J Langley
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
2:30 PM
Docket 108
NONE LISTED -
February 23, 2021
Continue hearing to April 27, 2021 at 2:30 p.m. in light of pending motion to modify.
Debtor(s):
William Raymond Harvey Represented By Farbood Majd
Joint Debtor(s):
Akram Naieharvey Represented By Farbood Majd
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 142
NONE LISTED -
NONE LISTED -
Debtor(s):
Michelle Renee Gillespie Represented By Andy C Warshaw
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 10-27-20; 11-24-20; 12-18-20; 1-26-21
Docket 148
NONE LISTED -
November 24, 2020
Continue hearing to December 18, 2020 at 10:30 a.m. in light of motion to modify/suspend plan payments filed November 19, 2020. (XX)
Note: Appearances at this hearing are not required
December 18, 2020
Grant motion to dismiss case
January 26, 2021
Grant motion to dismiss in light of Debtors' withdrawal of motion to modify filed 1/20/21.
February 23, 2021
Continue hearing to April 27, 2021 at 2:30 p.m. in light of pending motion for approval of refinance (opposition and request for hearing filed by a creditor)
2:30 PM
Debtor(s):
Giuseppe Galietta Represented By Joseph A Weber Fritz J Firman
Joint Debtor(s):
Heldia F. De Galietta Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 141
NONE LISTED -
February 23, 2021
Continue hearing to April 27, 2021 at 2:30 p.m. in light of pending motion to modify filed 2/19/21.
Debtor(s):
Troy Bernard Jemerson Represented By Nicholas M Wajda
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 107
NONE LISTED -
February 23, 2021
Grant motion to dismiss case if a motion to modify has not been filed by the time of the hearing. If a motion to modify has been filed, continue the hearing to April 27, 2021 at 2:30 p.m.
Debtor(s):
Katherine Burroughs Heidelman Represented By
Steven A Alpert
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 12-18-20; 1-26-21
Docket 49
OFF CALENDAR: Order of Dismissal Arising from Debtor's Request for Voluntary Dismissal of Chapter 13 Entered 2/23/2021 - td (2/23/2021)
December 18, 2020
Debtor's counsel to advise the court re the status of this matter. Debtor indicated in opposition that a motion to modify would be filed. As of today, no such motion has been filed.
January 26, 2021
Grant motion to dismiss case. No motion to modify filed.
February 23, 2021
No tentative ruling for this matter. Debtor's counsel to appear and advise the court re the status of the case.
2:30 PM
Debtor(s):
Romeo Torrecampo Tariman Represented By
Jaime G Monteclaro
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 12-18-20; 1-26-21
Docket 76
NONE LISTED -
December 18, 2020
Continue hearing to January 26, 2021 at 2:30 p.m. in light of pending objection to claim which has been continued to January 21, 2021. (XX)
February 23, 2021
No tentative ruling. Debtor to advise the court whether he intends to hire a new lawyer or if he will be representing himself. Debtor to also inform the court if he agrees with the comments made in the chapter 13 trustee's comments regarding his motion to modify the plan.
Debtor(s):
Orlando Martinez Represented By Mark S Martinez
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
9:00 AM
Adv#: 8:19-01084 Constantin et al v. Duff
Docket 1
CONTINUED: Trial Continued to 6/23/2021 and 6/24/2021 at 9:00 a.m., Per Order Entered 2/8/2021 (XX) - td (2/8/2021)
Debtor(s):
Michael J Duff Pro Se
Defendant(s):
Michael J. Duff Pro Se
Plaintiff(s):
Holly Constantin Represented By Alan W Forsley
Michael Constantin Represented By Alan W Forsley
Trustee(s):
Richard A Marshack (TR) Pro Se
9:00 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
9:00 AM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
9:00 AM
Adv#: 8:19-01084 Constantin et al v. Duff
(Set at PTC held 6-18-20) FR: 2-24-21
Docket 1
CONTINUED: Trial Continued to 6/23/2021 and 6/24/2021 at 9:00 a.m., Per Order Entered 2/8/2021 (XX) - td (2/8/2021)
Debtor(s):
Michael J Duff Pro Se
Defendant(s):
Michael J. Duff Pro Se
Plaintiff(s):
Holly Constantin Represented By Alan W Forsley
Michael Constantin Represented By Alan W Forsley
Trustee(s):
Richard A Marshack (TR) Pro Se
9:00 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
9:00 AM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
9:30 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
9:30 AM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
NONE LISTED -
9:30 AM
9:30 AM
Adv#: 8:19-01215 Marshack v. R-Techo, Co., Ltd.
Recovery of Unauthorized, Improper Distributions to Shareholders; 7. Substantive Consolidation; 8. Breach of Fiduciary Duty; 9. Turnover of Property of the Estate; 10. Preservations of Avoided Transfers; 11. Disallowance of Claims; and 12. Temporary Restraining Order and Preliminary Injunction
(Another Summons Issued 12/7/2020)
Docket 1
OFF CALENDAR: Another Summons Issued 2/16/2021; New Status Conference Set for 5/6/2021 at 9:30 a.m. (xx) - td (2/16/2021)
NONE LISTED -
Debtor(s):
Prime Metals U.S.A., Inc. Represented By Steven Werth
Defendant(s):
R-Techo, Co., Ltd. Pro Se
Plaintiff(s):
Richard A Marshack Represented By Ronald S Hodges Robert P Goe
9:30 AM
Trustee(s):
Ryan S Riddles
Richard A Marshack (TR) Represented By
D Edward Hays Laila Masud David M Goodrich Robert P Goe
9:30 AM
Adv#: 8:20-01170 Casey v. Joshi et al
To Avoid and Recover Fraudulent Tranfers; 2) For Recovery of Transfers;
3) For Preservation of Transfers; 4) For Disallowance of Claim
Docket 1
NONE LISTED -
March 4, 2021
This adversary appears to be a duplicate of Adv No. 20-01171 though no motion to consolidate the adversaries has been filed. Plaintiff to appear and advise the court re the status of this matter as no Status Report has been filed.
Debtor(s):
One Source Facility Solution, Inc. Represented By
James R Selth Nina Z Javan
Defendant(s):
Dilip Joshi Pro Se
Nishan Joshi Pro Se
Vasanti Joshi Pro Se
JP MORGAN CHASE BANK, NA Pro Se WELLS FARGO BANK, N.A. Pro Se
West One Property Services, Inc. Pro Se
9:30 AM
Loan Care, LLC Pro Se
NewRez LLC Pro Se
Flagstar Mortgage Corp. Pro Se
CITIBANK N.A. Pro Se
Orlando A Molina Pro Se
Plaintiff(s):
Thomas H Casey Represented By Brennan Mitch
Trustee(s):
Thomas H Casey (TR) Pro Se
9:30 AM
Adv#: 8:20-01171 Casey v. Joshi et al
1) To Avoid and Recover Fraudulent Transfers; 2) For Recovery of Transfers;
3) For Preservation of Transfers; 4) For Disallowance of Claim
Docket 1
SPECIAL NOTE: Notice of Voluntary Dismissal of All Claims Against Defendants Nishan Joshi and West One Property Services, Inc. Only, filed 2/26/2021 - td (2/26/2021)
March 4, 2021
Discovery Cut-off Date: Sept. 3, 2021
Deadline to Attend Mediation: Aug. 2, 2021
Pretrial Conference Date: Oct. 14, 2021 at 9:30 a.m. Deadline to file Joint Pretrial Stipulation: Sept. 30, 2021:
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
Debtor(s):
One Source Facility Maintenance, Represented By
James R Selth
Defendant(s):
Dilip Joshi Pro Se
Nishan Joshi Pro Se
9:30 AM
Vasanti Joshi Pro Se
Orlando A Molina Pro Se
JPMORGAN CHASE BANK N.A. Pro Se
Citibank, N.A. Pro Se
WELLS FARGO BANK, N.A. Pro Se
Flagstar Mortgage Corp. Pro Se
NewRez LLC Pro Se
Loan Care, LLC Pro Se
West One Property Services, Inc. Pro Se
Plaintiff(s):
Thomas H Casey Represented By Brennan Mitch
Trustee(s):
Thomas H Casey (TR) Pro Se
9:30 AM
Adv#: 8:20-01090 Kosmala v. Szwachowicz
FR: 8-6-20; 11-19-10
Docket 3
CONTINUED: Status Conference Continued to 6/17/2021 at 9:30 a.m., Per Order Entered 2/18/2021 (XX) - td (2/18/2021)
Debtor(s):
Simon Szwachowicz Represented By Matthew C Mullhofer
Defendant(s):
Marta Szwachowicz Pro Se
Plaintiff(s):
Weneta M.A. Kosmala Represented By Reem J Bello
Trustee(s):
Weneta M Kosmala (TR) Represented By Reem J Bello
9:30 AM
Ryan W Beall
9:30 AM
Adv#: 8:20-01016 Romex Textiles, Inc. v. Kim
FR: 4-30-20; 8-6-20
Docket 1
OFF CALENDAR: Order Approving Stipulation to Dismiss Adversary Proceeding Entered 1/4/2021 - td (1/4/2021)
SPECIAL IMPORTANT NOTICE! In order to mitigate the spread of the COVID-19 virus, notice is hereby given that ALL hearings before Judge Smith will be by TELEPHONE APPEARANCE ONLY until further notice. The courtroom will be locked. Any party who wishes to appear must register in advance by contacting CourtCall at (866) 582-6878. It is suggested that parties register with CourtCall at least 30 minutes prior to the hearing. Through September 30, 2020, CourtCall is offering discounted registration for attorneys and free registration for parties without an attorney.
August 6, 2020
Discovery Cut-off Date: Jan. 29, 2021
Pretrial Conference Date: Mar. 4, 2021 at 9:30 a.m. (XX) Deadline to file Joint Pretrial Stipulation: Feb. 18, 2021
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiff shall lodge a scheduling order
9:30 AM
consistent with the same within 7 days of the hearing.
Debtor(s):
Dana Kim Represented By
Kelly K Chang
Defendant(s):
Dana Kim Pro Se
Plaintiff(s):
Romex Textiles, Inc. Represented By Nico N Tabibi
Trustee(s):
Jeffrey I Golden (TR) Pro Se
9:30 AM
Adv#: 8:20-01165 Braski v. Ascendium Education Solutions et al
Docket 1
NONE LISTED -
March 4, 2021
Discovery Cut-off Date: June 4, 2021
Deadline to Attend Mediation: July 30, 2021
Pretrial Conference Date: Sept. 2, 2021 at 9:30 a.m. Deadline to file Joint Pretrial Stipulation: Aug. 19, 2021
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
Debtor(s):
Lisa Anne Braski Represented By Jeffrey N Wishman
Defendant(s):
Ascendium Education Solutions Pro Se
Educational Credit Management Pro Se
9:30 AM
Plaintiff(s):
Lisa Anne Braski Represented By Marcus G Tiggs Leon D Bayer
Trustee(s):
Jeffrey I Golden (TR) Pro Se
10:00 AM
VS.
DEBTORS
Docket 106
OFF CALENDAR: Dismissal of Motion for Relief from Automatic Stay filed 2/16/2021 - td (2/16/2021)
NONE LISTED -
Debtor(s):
Angel Patricio Monico Represented By James A Hayes Jr
Joint Debtor(s):
Margara Elizabeth Monico Represented By James A Hayes Jr
Movant(s):
Orange County's Credit Union Represented By Brett P Ryan
Diana Torres-Brito Bonni S Mantovani
10:00 AM
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL ASSOCIATION VS.
DEBTOR
FR: 8-6-20; 10-22-20; 12-17-20; 2-4-21
Docket 54
OFF CALENDAR: Notice of Withdrawal of Movant's Motion for Relief from the Automatic Stay filed 2/23/2021 - td (2/23/2021)
August 6, 2020 [MODIFIED SINCE ORIGINAL POSTING]
Continue hearing to allow parties to meet and confer re possible forebearance. Available continued hearing dates are: August 13, 2020, August 20, 2020 and September 3, 2020 at 10:00 a.m. The parties may request a particular date during the clerk's calendar roll call just prior to the hearing.
December 17, 2020
Movant to advise the court regarding the status of the trial loan modification. If more time is need to resolve the matter, the hearing may be continued one final time by requesting a continuance during the clerk's calendar roll call just prior to the hearing. Available continued hearing dates are January 14, 2021,
January 21, 2021 and February 4, 2021 at 10:00 a.m.
10:00 AM
Debtor(s):
Orlando Martinez Represented By Mark S Martinez
Movant(s):
Deutsche Bank National Represented By Jacky Wang
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
VS.
DEBTOR
Docket 48
NONE LISTED -
March 4, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Paul E Marshall Represented By James R Selth
Movant(s):
VW Credit Leasing, LTD Represented By Kirsten Martinez
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
10:00 AM
VS.
DEBTOR
Docket 52
OFF CALENDAR: Order Granting Motion for Relief from the Automatic Stay (Settled by Stipulation) Entered 2/24/2021 - td (2/24/2021)
NONE LISTED -
Debtor(s):
Almazella Northington Represented By Norma Duenas
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
VS.
DEBTOR
Docket 47
OFF CALENDAR: Withdrawal of Motion for Relief from Stay filed 2/22/2021 - td (2/23/2021)
NONE LISTED -
Debtor(s):
Bryce Allen McGall Represented By
Edmond Richard McGuire
Movant(s):
2nd Chance Mortgages Inc. Represented By Henry D Paloci
Trustee(s):
Weneta M.A. Kosmala (TR) Represented By Erin P Moriarty
10:00 AM
VS. DEBTOR FR: 2-11-21
Docket 35
NONE LISTED -
February 11, 2021
Grant with 4001(a)(3) waiver; deny relief request #7 as Movant has provided no evidence or grounds for extraordinary relief.
Basis for Tentative Ruling:
Movant seeks an order making it effective for two years -- essentially requesting relief under 362(d)(4) without meeting the requirement for such relief as set forth in 362(d)(4) (e.g., multiple filings or transfer of property).
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required if Movant accepts the tentative ruling. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
10:00 AM
March 4, 2021
Movant to advise the court re the status of this matter. If more time is needed to finalize the adequate protection order, a further continuance may be requested during the Clerk's calendar roll call prior to the commencement of the hearing. Available continued dates: March 11, 2021, April 1, 2021, April 8,
2021 or April 22, 2021 at 10:00 a.m.
Debtor(s):
Jose J Sanchez Represented By Gary Polston
Movant(s):
Veros Credit, LLC Represented By Robert M Tennant
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
VS.
DEBTORS
Docket 11
NONE LISTED -
March 4, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Miguel Angel Hernandez Represented By Daniel King
Joint Debtor(s):
Marlene E Perez Represented By Daniel King
10:00 AM
Movant(s):
Partners Federal Credit Union Represented By Yuri Voronin
Trustee(s):
Richard A Marshack (TR) Pro Se
10:30 AM
FR: 2-11-21, 2-18-21
Docket 962
CONTINUED: Hearing Continued to 4/1/2021 at 10:30 a.m., Per Order Entered 2/24/2021 (XX) - td (2/24/2021)
NONE LISTED -
Debtor(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel Bobby Samini Dean A Ziehl
Gary A Pemberton Shane M Biornstad
10:30 AM
(Set at DS hrg. held 12-17-20)
Docket 244
NONE LISTED -
March 4, 2021
Confirm the amended plan on the following conditions:
The fair and equitable requirement of Section 1191(c)(2)(A) requires that the plan provide that "all of the projected disposable income of the debtor . . . " will be applied. Debtor has proposed a guaranteed minimun of "actual" disposable income without providing the legal basis for this new standard in light of the clear and unambiguous statutory requirement. In order to be confirmed, the plan must provide for projected disposable income, i.e.,
$287,047. See, by analogy In re Anderson, 21 F.3d. 355, 357 (9th Cir. 1994) [interpreting 1325(b)(1)(B) to require projected disposable income as stated in the statute and not actual disposable income]
Debtor amends the plan to clearly state the remedies in the event that payments are not made in order to satisfy Section 1191(c)(3)(B), e.g., cure period followed by right of creditors to seek enforcement of the plan, In re Ellingsworth Residential Community Association, Inc. 2020 WL 6122645 (Bankr.M.D. Fla.Oct. 16 2020), dismissal or conversion of case, waiver of discharge, etc.
With respect to Debtor’s principal’s post-petition insider compensation claim (the "Insider Compensation Claim"), on the one hand, the Plan states
10:30 AM
that Robert Miller agreed to subordinate his Insider Compensation Claim of
$88,500 to be paid outside of the Plan if the Plan is confirmed and not converted to chapter 7. See Plan, Ex. D, p. 21:-23-22:6 (page numbers at top of page) . Yet, the Plan exhibits show Mr. Miller receiving $55,000 on the effective date of the Plan on account of the Insider Compensation Claim.
Plan, Ex. E. The DS also states that Mr. Miller will receive $55,000 in full satisfaction of his Insider Compensation Claim on the Effective Date. DS, p. 27-28. Similarly, the Confirmation Brief also indicates that Mr. Miller will receive this payment. See Conf. Br., p. 23:25-24:1.
Amend the plan to include the revisions requested by the Trustee:
Assets will not revest in the Debtor upon confirmation but rather upon entry of the discharge; and
The Debtor's related persons/entities execute a tolling agreement regarding potential avoidance power actions ( as mentioned in Docket #243,
p. 42 of 56 at lines 21-26).
Additional Comments:
The court overrules the Objecting Creditor's objections regarding feasibility and lack of good faith.
Debtor(s):
Orange County Bail Bonds, Inc. Represented By Marc C Forsythe Ryan S Riddles
10:30 AM
Trustee(s):
Mark M Sharf (TR) Pro Se
10:30 AM
[GOE FORSYTHE & HODGES LLP, COUNSEL FOR DEBTOR AND DEBTOR IN POSSESSION]
Docket 262
NONE LISTED -
March 4, 2021
Approve fees in the amount of $300,000 and expenses as requested. Basis for Tentative Ruling:
The court is aware that, contrary to the characterization of Objecting Creditor, this was not a simple case. It has been a highly contentious case with over 200 docket entries. The court accepts Debtor's counsel's voluntary reduction of $70,000 as a reasonable and sufficient. To the extent Objecting Creditor seeks a reduction in excess of $70,000, such objections are overruled.
Debtor(s):
Orange County Bail Bonds, Inc. Represented By Marc C Forsythe Ryan S Riddles
Trustee(s):
Mark M Sharf (TR) Pro Se
10:30 AM
[FOGG BOOKKEEPING SERVICES, ACCOUNTANT FOR ORANGE COUNTY BAIL BONDS, INC.]
Docket 263
NONE LISTED -
March 4, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Orange County Bail Bonds, Inc. Represented By Marc C Forsythe Ryan S Riddles
Trustee(s):
Mark M Sharf (TR) Pro Se
10:30 AM
[GRIFFITHS, DIEHL & COMPANY, INC., ACCOUNTANT FOR DEBTOR]
Docket 264
NONE LISTED -
March 4, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Orange County Bail Bonds, Inc. Represented By Marc C Forsythe Ryan S Riddles
Trustee(s):
Mark M Sharf (TR) Pro Se
10:30 AM
FR: 5-7-20; 6-4-20; 7-16-20; 11-19-20; 12-17-20
Docket 123
NONE LISTED -
June 4, 2020
Continue this hearing to July 16, 2020 at 10:30 a.m., the same date/time set for hearing on approval of Debtor's amended disclosure statement and the Subchapter V status conference. (XX)
Basis for Tentative Ruling
The court would like to review this motion along with the disclosure statement in order to put the entire matter in context. The court would also appreciate input from the Subchapter V Trustee has provided the most objective view of the viability and prospects for reorganization than either of the warring parties.
The court encourages the Movant and Debtor to work with the Trustee regarding the possible terms of a consensual plan that will end this costly litigation once and for all.
The court encourages Debtor to re-review the Trustee's status report filed on April 29, 2020, in particular re the alleged $7M contingent ACIC claim filed Debtor on its behalf, for which Debtor is not contractually liable, the status of the Civic Center lease as statutorily rejected, and the fair market rental value of the premises.
10:30 AM
Note: If the parties accept the foregoing tentative ruling, appearances at today's hearing are excused; non-appearance at the hearing will be deemed acceptance of the tentative ruling.
July 16, 2020
Continue this hearing to November 19, 2020 at 10:30 a.m., the same date as the continued hearing on approval of the disclosure statement. See tentative ruling for Cal. #28. (XX)
Basis for Tentative Ruling:
While the court understands and appreciates Global's objection to the continuation of the case as a Subchapter V, Debtor is making efforts toward reorganization. It would appear that Debtor's business will ride or die on the outcome of the November 3, 2020 election results re the bail law. The court believes Debtor has sufficiently made the case for allowing the case to continue at least until the election. If the results are not favorable, it would seem that dismissal or conversion would be appropriate.
Note: If Movant accepts the tentative ruling, appearances at today's hearing are not required.
November 19, 2020
Continue this hearing one final time to December 17, 2020 at 10:30 a.m., the same date/time as hearing on approval of Debtor's disclosure statement. (XX)
The Court's Brief, Abbreviated Comments
The court is inclined to deny the Motion on the basis of lack of good faith, a heavy burden of proof which rests with the Movant.
10:30 AM
The filing of a bankruptcy case in lieu of posting an appeal bond is not per se bad faith.
The conversion of a chapter 11 case to Sub Chapter V is not per se bad faith.The court does not find the cases cited by Movant re good faith issues in published Sub Chapter V cases persuasive -- in one case the election to convert to Sub Chapter V was made 15 months after the initial filing. In another the court found lack of impairment of the objecting creditor's property interest. In light of the disallowance of the ACIC claim and the apparent equity in the Saddozai property, it is unlikely that Movant can demonstrate significant harm to any property interest.
The election results are in and the outcome is favorable to Debtor's bail bond business, which militates in favor allowing the reorganization process to proceed.
Notwithstanding the foregoing comments, the court will re-review the Motion in conjunction with Debtor's disclosure statement and plan in preparation for the December 17, 2020 hearing.
Debtor's request to strike the supplemental brief is denied. Under LBR 9013-1(m)(4), unless otherwise ordered by the court, "a continuance of the hearing of a motion automatically extends the time for filing and serving opposing or responsive documents and reply documents." This hearing was continued from July 16, 2020 and the supplemental brief was filed on October 29, 2020, twenty-one days prior to today's hearing.
The court will reserve its full analysis for the December 17, 2020 hearing and is inclined not to entertain any substantive argument at today's hearing.
Note: If all parties accept the foregoing tentative ruling (i.e., the continuance to Dec. 17, 2020), appearances at this hearing are not required.
December 17, 2020
10:30 AM
Deny Motion
Basis for Tentative Ruling
See the court's comment #s 1-4 above in its November 19, 2020 tentative ruling.
March 4, 2021
Deny motion if plan is confirmed.
Debtor(s):
Orange County Bail Bonds, Inc. Represented By Marc C Forsythe Ryan S Riddles
Trustee(s):
Mark M Sharf (TR) Pro Se
10:30 AM
(2) Requiring Report on Status of Subchapter V Case; (3) Requiring Subchapter V Trustee to Appear at the Status Conference; and (4) Setting Scheduling for Subchapter V Plan Confirmation
FR: 4-30-20; 7-16-20; 11-19-20; 12-17-20
Docket 105
NONE LISTED -
April 30, 2020
Continue Status Conference to July 16, 2020 at 10:30 a.m. Debtor must file an amended plan and disclosure statement no later than June 3, 2020. The hearing on approval of Debtor's amended disclosure statement shall also be July 16, 2020 at 10:30 a.m. Any response/comments to the amended disclosure statement must be filed no later than June 24, 2020. The Subchapter V Trustee shall file an updated status report by June 24, 2020 but may, at his option, file comments to the amended disclosure statement in lieu of an updated status report. Any reply by Debtor must be filed no later than July 9, 2020. (XX)
[GOLD STAR PLEADING]]* The Subchapter V Trustee's status report filed as Docket #130 is designated as a "Gold Star Pleading" due to its thoroughness and thoughtful analysis.
*Special Note: "Gold Star" designation above signifies an exceptionally well- prepared pleading.
Note: If all parties, i.e., Debtor, Subch V Trustee, U.S. Trustee and
10:30 AM
Creditor GBF, accept the foregoing tentative ruling, appearances at this hearing are not required. Non appearances by all parties will be deemed acceptance of the tentative ruling.
July 16, 2020
Continue status conference to November 19, 2020 at 10:30 a.m.; updated status report by Trustee must be filed by November 12, 2020 unless the Trustee has filed a response to the amended disclosure statement, in which case the requirement of an updated status report will be waived. (XX)
Note: Appearances at this hearing are not required.
November 19, 2020
Continue Status Conference to December 17, 2020 at 10:30 a.m., same date/time as hearing on approval of Debtor's disclosure statement; updated Status Report not required. (XX)
Note: Appearances at this hearing are not required.
December 17, 2020
Continue Status Conference to February 18, 2021 at 10:30 a.m., same date/time as plan confirmation hearing. Updated status report is not required.
March 4, 2021
Off calendar if the plan is confirmed.
10:30 AM
Debtor(s):
Orange County Bail Bonds, Inc. Represented By Marc C Forsythe Ryan S Riddles
Trustee(s):
Mark M Sharf (TR) Pro Se
10:30 AM
[WENETA M.A. KOSMALA, CHAPTER 7 TRUSTEE]
Docket 0
NONE LISTED -
March 4, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Luz D Meza Pro Se
Trustee(s):
Weneta M.A. Kosmala (TR) Pro Se
10:30 AM
Cl. #4 Theodore Lauriano $2,400.00 FR: 1-21-21
Docket 149
OFF CALENDAR: Withdrawal of Objection to Claim No. 4 filed by Theodore Lauriano, filed 1/28/2021 - td (1/29/2021)
January 21, 2021
Grant Motion as to Claim #5 (Dale & Eileen Strong), Claim #7 (Estate of Charles Porter) in the reduced amount of $19,474.25, Claim #12 (Gene Kan), Claim #13 (Ron & Nicki Chambers), and Claim #18 [erroneously identified as Claim #16 in the Motion (Rosalva Garcia). Continue hearing as to Claim #4 (Theodore Lauriano) to March 4, 2021 at 10:30 a.m. to allow Debtor to correct service [served at incorrect address]. (XX)
Basis for Tentative Ruling:
According to the Claims Register, the claim of Rosalva Garcia is Claim #18, not #16.
The proof of service attached to the Motion indicates that claimant Theodore Lauriano was served at "13723 Canyon Crest Way, Corona, CA
10:30 AM
92880". However, the proof of claim shows the address as "13723 Canyon Crest Way, Eastvale CA 92880." Tentative ruling for 3/4/21 hearing (if unopposed): Grant.
Note: If Debtor accepts the tentative ruling, appearance at this hearing is not required.
Debtor(s):
Little John's Antique Arms, Inc. Represented By Richard A Marshack Chad V Haes
D Edward Hays
10:30 AM
[KAREN SUE NAYLOR, CHAPTER 7 TRUSTEE]
Docket 38
NONE LISTED -
March 4, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Mark N. Glover Represented By Halli B Heston
Joint Debtor(s):
Connie M. Glover Represented By Halli B Heston
Trustee(s):
Karen S Naylor (TR) Pro Se
10:30 AM
[HAHN FIFE & COMPANY LLP, ACCOUNTANT FOR CHAPTER 7 TRUSTEE]
Docket 34
NONE LISTED -
March 4, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Mark N. Glover Represented By Halli B Heston
Joint Debtor(s):
Connie M. Glover Represented By Halli B Heston
Trustee(s):
Karen S Naylor (TR) Pro Se
10:30 AM
F.R.B.P. 2017 and to Order Counsel to File a 2016(b) Statement
Docket 14
OFF CALENDAR: Order Approving Stipulation Regarding Counsel's Fees Pursuant to U.S. Trustee's Motion Under 11 U.S.C. §329 Entered 1/22/2021 - td (1/22/2021)
NONE LISTED -
Debtor(s):
Daniel L. Bassett Represented By
Joseph Arthur Roberts
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
Docket 1
NONE LISTED -
March 4, 2021
Deadline to file plan/disclosure stmt: April 20, 2021
Continued Status Conference: June 17, 2021 at 10:30am
Deadline to file Updated Status Report (Debtor) June 3, 2021 Deadline to file Update Status Report (Trustee) June 10, 2021
An Updated Status Report need not be filed by either Debtor or Trustee if a plan and disclosure statement is filed by or before June 3, 2021.
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required. The Court will issue it's own order.
Debtor(s):
Chase Merritt Global Fund LLC Represented By
W. Derek May
Trustee(s):
Robert Paul Goe (TR) Pro Se
2:00 PM
Adv#: 8:20-01178 Banning Bench Community of Interest Association, I v. Elieff
Docket 5
NONE LISTED -
March 4, 2021
Grant the motion in its entirety with leave to amend. An amended complaint must be filed no later than March 25, 2021 and a responsive pleading no later than April 22, 2021.
Basis for Tentative Ruling:
Short Answer:
Standing as a Creditor: Plaintiff asserts the ability to seek relief re alter ego pursuant to CCP 187, but does not cite CCP 187 in the complaint.
523(a)(2)(A)
The First Claim for Relief fails to allege all of the elements of fraud that are required to properly plead nondischargeability on the basis of 523(a)(2)(A). This statute excludes from discharge any debt "obtained by false pretenses, a false representation or actual fraud". In addition, the elements of fraud are 1) a representation, 2) known to be false when made, 3) for the purpose of deceving a creditor, 4)who relied on such representation, 5) to its financial detriment. FRCP 9 requires that fraud be alleged with particularity.
2:00 PM
Here, the debt is the Fee Judgment. The complaint, on its face, fails to allege the who/what/when/where/how Defendant obtained money, peoperty, services, or an extension, renewal, or refinancing of credit, by fraud. It further fails to adequately allege the false statements or false representations made by Defendant with respect to the creation of the Fee Judgment. It fails to alleges any facts concerning Plaintiff's justifiable reliance on any alleged false statements, nor does it allege a nexis between such statements and the financial harm suffered by Plaintiff.
727(a)
The Second Claim for Relief lumps several claims into a single claim.
Each distinct claim should be set forth in a separate claim. More substantively, the as to 723(a)(2), the complaint should clearly allege activity that occured within one year of the bankruptcy filing. The complaint alleges transfers going back over more than a decade but only vaguely refers to activity occuring in September 2019. See Comp. ¶24. As to the claims under 723(a)(3), (a)(4), and (a)(5), the allegations are generally recitations of the statutory language without alleging specific facts for each claim.
Long Answer
Defendant moves to dismiss the Complaint under FRCP 12(b)(6) with prejudice (the "Motion")[dkt. 5] and (the "Reply")[dkt. 22]. Plaintiffs oppose the Motion (the "Opposition")[dkt. 15]. Both parties filed requests for judicial notice in support of their papers [dkt. 6 & 19].
Procedural Background
The Claim Objections
Banning Bench Community of Interest Association, Inc. ("Banning") filed proof of claim no. 19 in the general unsecured amount of $747,360.09 for "State Court Judgment Awarding Statutory Attorneys’ Fees" on February 13, 2020 in Bruce Elieff’s bankruptcy case. Highland Springs Conference and Training Center ("Highland") filed proof of claim no. 15 in the general unsecured amount of $881,398.89 for "Judgment for Attorneys’ Fees" on
2:00 PM
February 10, 2020 in Bruce Elieff’s bankruptcy case. Creditor Todd Kurtin previously filed objections to these claims [dkt. 574 & 575] but those objections were subsequently withdrawn [dkt. 903]. Howard Ehrenberg, the chapter 7 trustee of Bruce Elieff’s substantively consolidated bankruptcy estates ("Trustee") later filed objections to Banning and Highland’s claims (collectively, the "Claim Objections) [dkt. 1043 & 1045] on December 2, 2020. Per court approved stipulation, the hearings on the Claim Objections were continued to May 2, 2021 [dkt. 1093].
The Adversary Proceeding
Banning and Highland (collectively, "Plaintiffs") filed the instant nondischageability complaint (the "Complaint") against Bruce Elieff ("Defendant") giving rise to the instant adversary proceeding on December 20, 2020. The Complaint alleges a cause of action under § 523(a)(2)(A), and a second cause of action under various subsections of § 727(a).
Legal standard
FRCP 12(b)(6), made applicable to this adversary proceeding under FRBP 7012, provides that a party may move to dismiss a claim for relief for "failure to state a claim upon which relief can be granted[.]" In Atlantic Corp.
v. Twombly, 550 U.S. 544, 561 2007), the Supreme Court established more stringent notice-pleading standards for motions to dismiss under FRCP 12(b) (6). A plaintiff is required to provide more than "labels and conclusions, and a formulaic recitation of the elements of a cause of action ...." Id. at 555. The plaintiff must provide "enough facts to state a claim to relief that is plausible on its face" to nudge "their claims across the line from conceivable to plausible[.]" Id. at 570.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The plausibility standard is not akin to a ‘probability
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requirement,’ but it asks more than a sheer possibility that a defendant has acted unlawfully." Id. "Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and probability of entitlement to relief." Id. While legal conclusions can provide the framework of a complaint, "they must be supported by factual allegations." Id. at 679. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. (internal citations omitted). The court must construe the complaint in the light most favorable to the plaintiff, accept all well-pleaded factual allegations as true, and "all reasonable inferences drawn from them". Johnson v. Riverside Healthcare Sys., LP., 534 F.3d 1116, 1122 (9th Cir. 1990).
The court may consider: 1) the complaint and answer; 2) any documents attached or mentioned in the pleadings; 3) documents not attached but "integral" to the claims; and 4) matters subject to judicial notice. Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010); Lee v.
City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)("If the documents are not physically attached to the complaint, they may be considered if the documents' ‘authenticity ... is not contested’ and ‘the plaintiff's complaint necessarily relies’ on them."); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 1988)("The court need not, however, accept as true allegations that contradict matters properly subject to judicial notice or by exhibit."); Gerritsen v. Warner Bros. Ent. Inc., 116 F. Supp. 3d 1104, 1118 (C.D. Cal. 2015)("The incorporation by reference doctrine "permits a district court to consider documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleadings."). When documents attached to a complaint contradict allegations in the complaint, the document must prevail. See Ott v. Home Sav. & Loan Assoc., 265 F.2d 643, 646 fn.1 (9th Cir. 1958) (when allegations are inconsistent with the terms of a contract attached as an exhibit, the terms of the contract must prevail over the inconsistent allegations). If the court considers evidence that is outside the four categories listed above, the court must covert the FRCP 12(b)(6) motion to a motion for summary judgment under FRCP 56. See FRCP 12(d); Gerritson, 116 F.Supp.3d at 1118.
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Fee Judgment Background
In November 2006, Plaintiffs, along with several other environmental group plaintiffs, filed separate Petitions for Writ of Mandate against defendant the City of Banning in Riverside Superior Court. These plaintiffs sought to set aside land use entitlements the City of Banning had granted to SunCal Companies to develop 1,500 acres of land, known as "Black Bench Ranch," that were adjacent to the San Bernardino National Forest. See Compl., ¶¶
8-12, 30-34. Because SunCal subsequently conveyed its rights under the project to SCC/Black Bench, LLC ("SCC/BB"), SCC/BB was added as the real party in interest in these related actions (collectively, the "State Court Litigation"). See Compl., 30-34; Def. RJN, Def. RJN, Ex. A-B (Petitions for Writs of Mandate).
In their petitions for writ of mandate, Plaintiffs pled that the Notice of Determination regarding the Black Bench Project was filed on October 27, 2006. See Def. RJN, Def. RJN, Ex. A-B (Petitions for Writs of Mandate). On April 8, 2008, four separate judgments were entered granting Plaintiffs’ requests for a Peremptory Writs of Mandate directed to the City of Banning. See Compl., ¶35; Def. RJN, Ex. C-F (the judgments). In October 2008, judgment for attorneys’ fees and costs (collectively, the "Fee Judgment") were entered in favor of Plaintiffs against SCC/BB, granting Banning $288,920.01 in costs and attorneys’ fees against SCC/BB and $421,819.96 in costs and attorneys’ fees against SCC/BB in favor of Highland. See Compl., ¶37; Def. RJN, Ex. G-H (the Fee Judgment).
Plaintiffs’ initial attempt to add SCC Acquisitions, Inc. ("SCCA") to the Fee Judgment as an alias was denied. On appeal, the lower court’s ruling was overruled and remanded, and on January 12, 2017, SCCA was added to the Fee Judgment as the alter ego of SCC/BB. See Compl., ¶¶42-45; Pl.
RJN, Ex. A (Notice of entry of Judgment adding SCCA to Fee Judgment as judgment debtor). The Fee Judgment serves as the basis for the proof of claims filed by Plaintiffs that are currently the subject of Trustee’s Claim Objections.
There is no statute of limitations applicable to Code of Civil Procedure ("CCP") § 187 but the Complaint fails to cite to CCP §
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187
Defendant’s first argument is that Plaintiffs lack standing to assert their
§§ 523 and 727 claims because, on the petition date, Plaintiffs were not creditors of Defendant since they did not hold an enforceable debt against Defendant. See Mot., p. 8-10; Reply, p. 4-6. Relying on People v. Clauson, 231 Cal. App. 2d 374, 376 (1964), Defendant argues that the statute of limitations for Plaintiffs’ alter ego claims are connected directly to the statute of limitations for the claims asserted in the State Court Litigation. Because the statute of limitations for the claims asserted in the State Court Litigation expired, at the latest, on October 27, 2006 under California Public Resources Code §§ § 21167(b) or (d), the statute of limitations for the alter ego claims also expired on October 27, 2006. See Mot., p. 8-10; Reply, p. 4-6.
Defendant’s argument that the statute of limitations applicable to the underlying claim is also applicable to the alter ego claim is accurate. As one district court, interpreting People v. Clauson, found, the applicable statute of limitations for alter ego claims is the statute of limitations for the underlying claim upon which the alter ego claim is based. "Clauson does not stand for the proposition that alter ego claims are not subject to the statute of limitations… the Court finds that plaintiff's claims, to the extent they are premised on an alter ego theory of liability, are subject to the same statute of limitations that attend each underlying claim." Gerling Global Reinsurance Corp. of Am., et al. v. Fremont General Corp., et al., Case No. CV05-5454 (PJWx), 2005 WL 8167691, *8 (C. D. Cal., Dec. 15, 2005), aff'd, 287 F. App'x
3 (9th Cir. 2008).
Defendant’s argument lacks merit, however, because it misinterprets the underlying basis of Plaintiffs’ alter ego claims. The basis of these alter ego claims is not the direct claims asserted in the State Court Litigation, rather, the basis is CCP § 187. See Opp’n, p. 4-5. And because there is no applicable statute of limitations to CCP § 187, there is no appliable statute of limitations to Plaintiffs’ alter ego claims. See Highland Springs Conference and Training Center, et al. v. City of Banning, et al., 244 Cal.App.4th 267, 287 (Jan. 26, 2016)("No statute of limitations applies to a section 187 motion to amend a judgment to add a judgment debtor.").
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Defendant maintains that the Complaint does not request that
Defendant be "added" to the Fee Judgment under CCP § 187 and even it if did, the court lacks the authority to alter or amend the Fee Judgment under 28
U.S.C. § 1738 and California law. See Mot., p. 10; Reply, p. 5. The Complaint does not specifically cite to CCP § 187 and on that basis the Motion will be granted with leave to amend because this deficiency could easily be fixed by amendment. And such amendment would not be futile because, under Ninth Circuit authority not cited by the parties, Plaintiffs could rely on CCP § 187:
We have held that Federal Rule of Civil Procedure 69(a)8 empowers federal courts to rely on state law to add judgment-debtors under Rule 69(a), which "permits judgment creditors to use any execution method consistent with the practice and procedure of the state in which the district court sits."…Because California law allows amendment of a judgment to add a judgment-debtor, we held that the district court did not abuse its discretion in so doing….
The instant case is analogous since the Levanders also were judgment-creditors attempting to collect on a debt. As such, Rule 69(a) authorized the use of California law to collect on their debt, and the district court erred by holding that the bankruptcy court did not have the jurisdiction to allow them to do so.
In re Levander, 180 F.3d 1114, 1120–22 (9th Cir. 1999). The Ninth Circuit went on to hold that, "the district court erred when it reversed the bankruptcy court's order, because the bankruptcy court had jurisdiction to add the Partnership as a judgment-debtor under both its inherent power and § 187 of the California Code of Civil Procedure." Id. at 1123; Bank of Montreal v. SK Foods, LLC, 476 B.R. 588, 597 (N.D. Cal. 2012), aff'd sub nom. Bank of Montreal v. Salyer, 599 F. App'x 706 (9th Cir. 2015).
Finally, the court will not rule, within the context of a FRCP 12(b)(6) motion, on the merits of Defendant’s affirmative defense that doctrine of laches bars Plaintiffs’ claims under §§ 187. Rather, the court must construe the Complaint in the light most favorable to Plaintiffs, and accept all well-
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pleaded factual allegations as true, and "all reasonable inferences drawn from them". See Johnson v. Riverside Healthcare Sys., LP., 534 F.3d 1116, 1122 (9th Cir. 1990).
Even taking the allegations in the Complaint as true, because the Complaint fails to cite CCP § 187, the Motion will be granted. Leave to amend will be granted, however, because amendment to the Complaint will not be futile in light of the Ninth Circuit authority cited above which may convey standing on Plaintiffs if the allegations in the amended Complaint are viewed as true.
The First Claim is Inadequately Pled
Plaintiffs allege a sole count under § 523(a)(2)(A) against Defendant for fraud (the "First Claim"). See Compl., 18-19, ¶¶58-62. Under § 523(a)(2) (A), a debt is nondischargeable if the debt is for "for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained, by…(A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider's financial condition[.]"
Where fraud is alleged, "under FRCP 9(b), applicable via Rule 7009, fraud must be pleaded with particularity." In re Jacks, 266 B.R. 728, 734 (BAP 9th Cir. 2001). Allegations of fraud must comply with FRCP (9)(b). "To comply with Rule 9(b), allegations of fraud must be specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong." Bly-Magee v. Cal., 236 F.3d 1014, 1019 (9th Cir. 2001). Moreover, "[t]erms such as 'conversion,' ... 'willful,' 'oppressive,' 'fraudulent,' and 'malicious' are generic terms of a conclusory nature. Stating them serially in a complaint does not transmute them into fact." In re Aboukhater, 165 B.R. 904, 909 (BAP 9th Cir. 1994).
For a debt to be non-dischargeable pursuant to § 532(a)(2)(A), the following five elements must be proven by a preponderance of the evidence:
(1) the debtor made the representations; (2) that at the time he knew they
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were false; (3) that he made them with the intention and purpose of deceiving the creditor; (4) that the creditor justifiably relied on such representations; and
(5) that the creditor sustained the alleged loss and damage as the proximate result of the representations having been made. In re Kirsh, 973 F.2d. 1454, 1457 (9th Cir. 1992). The § 523(a)(2)(A) elements mirror the elements of common law fraud. In re Younie, 211 B.R. 367, 373 (9th Cir. BAP 1997). " ‘Actual fraud’ in Section 523(a)(2)(A) includes ‘forms of fraud, like fraudulent conveyance schemes, that can be effected without a false representation.’ " In re Wing Cheung Wong, 802 F. App'x 280, 282 (9th Cir. 2020)(citing Husky Int'l Elecs., Inc. v. Ritz, 136 S. Ct. 1581, 1590, 194 L. Ed. 2d 655 (2016)). A statement about a single asset may be a "statement respecting the debtor’s financial condition under 523(a)(2)(A). See Lamar, Archer, & Cofrin, LLP, 138 S.Ct. 1752, 1764 (2018).
In this case, the First Claim is not plausible. The Complaint generically refers to "numerous instances of fraud" but does not specify which part of § 523(a)(2)(A) it is alleging Defendant committed- a false pretense, a false representation, and/or actual fraud. As discussed above, allegations of fraud must be pled with particularity. See Compl., ¶61; Mot., p. 11-12; Reply, p. 6.
The Complaint does not plead any facts regarding justifiable reliance at
all.
Finally, the Complaint fails to allege facts showing the connection
between the Fee Judgment and the conduct that Defendant allegedly committed. See Mot., p. 12:8. Section 523 states that a debt for money (here, the Fee Judgment) is nondischargeable to the extent the debt (the Fee Judgment) was obtained by false pretenses, false representation or actual fraud. If alleging a false representation, Plaintiffs have failed to make any connection between Elieff’s statements that he is not the alter ego of SCCA to entry of the Fee Judgment. And if alleging actual fraud (a Husky claim), Plaintiffs have similarly failed to make any connection between the transfer of assets, tradenames, and sham liens to entry of the Fee Judgment in 2008.
See Compl, 37; Opp’n, p. 5-7.
Plaintiffs have failed to state a plausible claim under § 523(a)(2)(A) because, viewing the allegations in the Complaint that Defendant is the alter ego of SCCA as true, Plaintiffs have failed to allege any facts that the Fee
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Judgment was obtained by false pretenses, false representations, or actual fraud. Instead, the Complaint alleges facts that support the inference that the Fee Judgment was entered as a routine procedural matter for attorneys’ fees and costs after entry of the judgments in the State Court Litigation. See Compl., ¶37.
The Second Claim is Inadequately Pled
In their second claim for relief (the "Second Claim"), Plaintiffs seek to deny Defendant’s discharge under § 727(a)(2)(A) and (B), (a)(3), (a)(4), and (a)(5). See Compl., p. 19-20, ¶¶63-69. Starting with the claims under § 727(a)(2)(A) and (B), those sections deny a discharge to a debtor when,
[T]he "debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charge with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated or concealed…(A) property of the debtor, within one year before the filing of the petition… or (B) property of the estate, after the date of the filing of the petition[.]
11 U.S.C. § 727(a)(2)(emphasis added). "Section 727(a)(2) is intended to prevent the discharge of a debtor who attempts to avoid payment to creditors by concealing or otherwise disposing of assets." 6 Collier on Bankruptcy ¶ 727.02[1] (16th 2020). It requires a showing of actual intent as distinguished from constructive intent. Id. at ¶ [3][a]; Mot., p. 14. Actual intent may be demonstrated by "circumstantial evidence or on inferences drawn from a course of conduct" such as the badges of fraud. Id. at ¶[3][b] (16th 2020). As noted by the Ninth Circuit:
Certain "badges of fraud" strongly suggest that a transaction's purpose is to defraud creditors unless some other convincing explanation appears.
These factors, not all of which need be present, include 1) a close relationship between the transferor and the transferee; 2) that the transfer was in anticipation of a pending suit; 3) that the transferor Debtor was insolvent or in poor financial [**6] condition at the time; 4) that all or substantially all of the Debtor's property was transferred; 5) that the transfer so completely depleted the Debtor's assets that the creditor has been hindered or delayed in
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recovering any part of the judgment; and 6) that the Debtor received inadequate consideration for the transfer.
In re Woodfield, 978 F.2d 516, 518 (9th Cir. 1992).
In this case, the Complaint alleges facts regarding the transfer and concealment of Defendant’s assets that occurred within over more than a decade with only a vague reference to activity taking place in September 2019, within one year of the petition date. See Compl., ¶¶16-24. This is inadequate.
Under 11 U.S.C. § 727(a)(3), a debtor’s discharge is denied where "the debtor has concealed, destroyed, mutilated, falsified, or failed to keep or preserve any recorded information, including books, documents, records, and papers, from which the debtor’s financial condition or business transactions might be ascertained, unless such act or failure to act was justified under all of the circumstances of the case." As explained by the Ninth Circuit: A creditor states a prima facie case under § 727(a)(3) by showing " ‘(1) that the debtor failed to maintain and preserve adequate records, and (2) that such failure makes it impossible to ascertain the debtor's financial condition and material business transactions.’ "… After showing inadequate or nonexistent records, "the burden of proof then shifts to the debtor to justify the inadequacy or nonexistence of the records."…
The Seventh Circuit has held that § 727(a)(3) "places an affirmative duty on the debtor to create books and records accurately documenting his business affairs."… The court also noted that when a debtor is sophisticated and carries on a business involving substantial assets, "creditors have an expectation of greater and better record keeping.…" Although § 727(a)(3) does not demand absolute completeness in a debtor's records, it does require a debtor to keep and preserve records that will enable his creditors to accurately ascertain his financial condition and business transactions… Thus, we hold that when a debtor owns and controls numerous business entities and engages in substantial financial transactions, the complete absence of recorded information related to those entities and transactions establishes a prima facie violation of 11 U.S.C. § 727(a)(3). Likewise, we hold that when a debtor transfers a substantial amount of money to a third party, the failure to
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keep any documentation evidencing the terms of the transfer or the fact that the payment actually took place establishes a prima facie violation of 11
U.S.C. § 727(a)(3).
If a creditor establishes a prima facie violation of § 727(a)(3), a debtor may show that he is nonetheless entitled to discharge by establishing that his failure to keep or preserve records was justified under the circumstances of his case. In re Caneva, 550 F.3d 755, 761–63 (9th Cir. 2008)(citations omitted). Here, even viewing the allegations in the Complaint as true, Plaintiffs have failed to adequately allege a plausible prima facie case under § 727(a)(3) because they have merely recited the statutory language without alleging any specifics regarding the alleged failure to maintain financial records.
11 U.S.C. § 727(a)(4) denies a discharge to the debtor where "the debtor knowingly and fraudulently, in or connection with the case, made a false oath or account." "A false statement or an omission in the debtor's bankruptcy schedules or statement of financial affairs can constitute a false oath." In re Retz, 606 F.3d 1189, 1196 (9th Cir. 2010) (citations omitted). "To prevail, a plaintiff must show that ‘(1) the debtor made a false oath in connection with the case; (2) the oath related to a material fact; (3) the oath was made knowingly; and (4) the oath was made fraudulently.’ " Id. at 1197 (citations omitted).
Additionally, the statement must be material fact. In re Aubrey, 111
B.R. 268, 274 (9th Cir. BAP 1990). "A false statement is material if it bears a relationship to the debtor's business transactions or estate, or concerns the discovery of assets, business dealings, or the existence and disposition of the debtor's property." In re Wills, 243 B.R. 58, 62 (B.A.P. 9th Cir. 1999). The plaintiff must also "show that the debtor knowingly and fraudulent made a false oath." Id. at 64. The fraudulent intent must be actual, not constructive, and can be established by circumstantial evidence. Id.
Here, the Second Claim fails to allege any facts regarding a false oath being fraudulently made by Defendant in this case. See Compl., ¶¶53-55; Opp’n, p. 8. The alleged false oaths in this case is Defendant’s assertion that he is not indebted to Plaintiffs although he listed them on his list of creditors.
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See id., ¶53. This is insufficient. As fraud must be pled with particularity, this statement alone does not rise to the level of fraudulent intent As for § 727(a) (4)(C), this section refers to extortion and bribery committed by the debtor during the case:
The conduct of the debtor under section 727(a)(4)(C) must be done "in or in connection with the case" in which he or she is presently a debtor, unless it is in connection with a case concerning an insider under section 727(a)(7). The conduct referred to in section 152 of title 18 may be done "in any case under title 11." Section 727(a)(4)(C) covers any "extortion," even using that word in a broad, general sense, and bribery. It also covers an attempt to extort, and an attempt to bribe, which makes it unnecessary to establish that the consideration for acting or forbearing was paid, or for that matter, that the promised act was carried out. In addition, the giving or offering of bribes is forbidden. 6 Collier on Bankruptcy P 727.06 (16th 2020).
Accordingly, the Complaint allegations referring to Defendant’s transfer of assets to his brother fail to state a plausible claim for relief under § 727(a)(4) (C). See Opp’n, p. 8; Compl., 25-28.
Finally, 11 U.S.C. § 727(a)(5) denies a discharge where "the debtor has failed to explain satisfactorily, before determination of denial of discharge under this paragraph, any loss of assets or deficiency of assets to meet the debtor’s liabilities." A creditor objecting under § 727(a)(5) has the burden to prove that (1) the debtor owned identifiable assets at a time not too remote from the petition date; (2) the debtor no longer owned the assets on the date the bankruptcy petition was filed or order for relief granted; and (3) the bankruptcy documents do not reflect an adequate explanation for the disposition of the assets. In re Retz, 606 F.3d 1189, 1205 (9th Cir. 2010).
Once a prima facie case is made, "the debtor must offer credible evidence regarding the disposition of the missing assets." Id. Whether the explanation is satisfactory is a question of fact for the bankruptcy court to determine. Id.
Here, Plaintiffs do not allege a plausible claim for relief under § 727(a) (5). While Plaintiffs have alleged that Defendant transferred tens of millions of dollars overseas and to insiders for inadequate consideration over a period spanning over a decade, Plaintiffs have failed to allege that the bankruptcy documents (schedules, SOFA, or other bankruptcy pleadings) fail to
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adequately explain the disposition of those assets transferred. See Compl., ¶ 56; Opp’n, p. 9. Ultimately, viewing the allegations in the Complaint as true, Plaintiffs have plausibly pled claims for relief under §§ 727 (a)(2)(A) and (B), and (a)(3). The Complaint does not allege plausible claims for relief under §§ 727(a)(4) and (a)(5).
Leave to amend is granted
Leave to amend a complaint or claim is generally within the discretion of the bankruptcy court and is reviewed under the abuse of discretion standard. Mende v. Dun & Bradstreet, Inc., 670 F.2d 129 (9th Cir. 1982).
FRCP 15(a) (made applicable to this proceeding by FRBP 7015) provides that a party may amend the party’s pleading by leave of court and leave shall be freely given when justice so requires. The Ninth Circuit applies this rule with "extreme liberality." Forsyth v. Humana, Inc., 114 F.3d 1467, 1482 (9th Cir.
1997). In exercising its discretion, a bankruptcy court "must be guided by the underlying purpose of Rule 15 to facilitate decision on the merits, rather than on the pleadings or technicalities." In re Magno, 216 B.R. 34 (9th Cir. BAP 1997). A bankruptcy court considers the following factors in determining whether a motion to amend should be granted: (1) undue delay; (2) bad faith;
(3) futility of amendment; and (4) prejudice to the opposing party. Hurn v. Retirement Fund Trust of Plumbing, Etc., 648 F.2d 1252, 1254 (9th Cir. 1981). While recognizing the principles that leave to amend should be freely granted and the preference for decisions on the merits, if the court finds that a complaint has failed to state a claim, dismissal may be without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). A court may also dismiss a complaint without leave to amend when amendment would be futile. McQuillion v. Schwarzenegger, 369 F.3d 1091, 1099 (9th Cir. 2004).
In light of the Ninth Circuit’s policy of granting leave to amend with "extreme liberality," leave to amend the Complaint is granted.
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Debtor(s):
Bruce Elieff Represented By
Lisa Nelson Robert P Goe
Defendant(s):
Bruce Elieff Represented By
Robert P Goe
Plaintiff(s):
Banning Bench Community of Represented By
John G McClendon
Highland Springs Conference and Represented By
Josh Chatten-Brown
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe Claire K Wu
9:30 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
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Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
9:30 AM
NONE LISTED -
9:30 AM
Adv#: 8:18-01172 Pacific Western Bank v. Gaglio et al
FR: 12-6-18; 12-20-18; 6-20-19; 8-1-19; 10-3-19; 4-9-20; 9-10-20; 12-10-20
Docket 1
OFF CALENDAR: Order Granting Motion and Joint Motion for Order Dismissing Complaint Entered 3/8/2021 - td (2/12/2021)
December 20, 2018
Discovery Cut-off Date: May 3, 2019
Pretrial Conference Date: June 20, 2019 at 9:30
a.m. (XX)
Deadline to Lodge Joint Pretrial Stipulation: June 6, 2019
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
Debtor(s):
Jack G. Gaglio Represented By Timothy S Huyck
Defendant(s):
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Jack G. Gaglio Pro Se
Laura A. Gaglio Pro Se
Joint Debtor(s):
Laura A. Gaglio Represented By Timothy S Huyck
Plaintiff(s):
Pacific Western Bank Represented By Kenneth Hennesay
Trustee(s):
Karen S Naylor (TR) Pro Se
9:30 AM
Adv#: 8:19-01084 Constantin et al v. Duff
(Set per Order Entered 2/8/2021)
Docket 1
CONTINUED: Trial Status Conference Continued to 4/22/2021 at 9:30 a.m., Per Order Entered 2/24/2021 (XX) - td (2/24/2021)
NONE LISTED -
Debtor(s):
Michael J Duff Pro Se
Defendant(s):
Michael J. Duff Represented By David Brian Lally
Plaintiff(s):
Holly Constantin Represented By Alan W Forsley
Michael Constantin Represented By Alan W Forsley
Trustee(s):
Richard A Marshack (TR) Pro Se
9:30 AM
Adv#: 8:19-01155 Kang Family 2007 Revocable Trust v. Kim et al
FR: 10-17-19; 1-16-20; 5-7-20; 6-4-20; 7-9-20; 1-14-21
Docket 1
NONE LISTED -
October 17, 2019
Discovery Cut-off Date: Mar. 6, 2020
Deadline to Attend Mediation: Jan. 31, 2020
Pretrial Conference Date: Apr. 30, 2020 at 9:30 a.m. Deadline to Lodge Joint Pretrial Stipulaton: Apr. 16, 2020
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.divider
January 16, 2020
Discovery Cut-off Date: Mar. 16, 2020
Pretrial Conference Date: May 7, 2020 at 9:30 a.m. (XX)
Deadline to Lodge Joint Pretrial Stipulaton: Apr. 23, 2020
Note: If all parties accept the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
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June 4, 2020
Continue the Pretrial Conference to July 9, 2020 at 9:30 a.m. to allow the parties to file an amended pretrial stipulation by June 25, 2020. The amended pretrial stipulation should address the comments of the court in its tentative ruling and also whether each party wishes to submit direct testimony by declaration in advance of the trial in accordance with this court's Trial Procedures or if they prefer live direct testimony. (XX)
Comments re the Pretrial Stipulation:
The court commends the parties for timely filing a thorough and thoughtful pretrial stipulation ("PS"), including a complete list of exhibits and witnesses. That said, the PS will need to be amended per the comments below.
Page 3, line 7: There appear to be action words missing, e.g., should "submitted a signed Letter of Intent to lease the property" be inserted?
Chronologically, paragraph 4 should probably replace paragraph 7.
Curiously, the Issues of Fact to be Litigated, starting on page 6, do not include all of the factual issues relating to 523(a)(2)(A) and (B). Instead, those issues have been relegated to section IV called Claims for Relief which includes mixed issues of fact and law re 523(a)(2). Also added are sections V (Remedies) and VI (Affirmative Defenses). Sections IV, V and VI (collectively the "Added Sections") are confusing and are not consistent with the structure of a pretrial stipulation as plainly set forth in LBR 7016-1(b)(2)(B) and (C). The section on Issues of Fact to be Litigated should include all issues of fact, including those that appear in the Added Sections. Similarly, the section on Issues of Law to be Litigated (Remaining Legal Issues) should include all legal issues, including those in the Added Sections. The court does not mind subheadings within the Issues of Fact and/or Issues of Law, but there should be one section on disputed facts and one section on issues of law.
Page 15, lines 1 and 3: "A list of" should be inserted after "Exhibits:" since
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the exhibits themselves are not attached.
It is the court's usual procedure to conduct direct testimony by declaration (the plaintiff submits written direct testimony 30 days before; the defendant does so 21 days before trial and both parties submit any evidentiary objections 7 days prior to trial). See, the court's Trial Procedures at cacb.uscourts.gov. However, direct testimony by declaration is not mandatory if the parties prefer live direct testimonyl By listing the direct examination time estimates in the PS, are the communicating a preference for live direct testimony as opposed to direct testimony by declaration (exclusive of adverse or rebuttal testimony)? Live direct vs. written direct will affect the trial time estimate.
The trial will likely take place the week of September 21, 2020. While in- person appearances may be possible by that time, the court is amenable to a video conference option for any parties who cannot appear in person.
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required; nonappearance at the hearing will be deemed acceptance of the tentative ruling.
July 9, 2020
The parties must appear and address the following issues:
Whether direct testimony will be presented by written declarations (see Court's Comment #5 above in the tentative ruling for June 4, 2020. This issue does not appear to be addressed in the amended pretrial stipulation. As previously noted, this affects the trial time estimate and setting of trial dates.
Whether the parties will be prepared to conduct the trial entirely by video conference (Zoom) if the trial is held in September during the week of September 21, 2020.
The trial cannot be set until the above issues have been addressed.
9:30 AM
Note: Appearances at this hearing are required.
January 14, 2021
Continue this Trial Procedures Conference to March 11, 2021 at 9:30 a.m.; postpone the Trial Dates to May 26, 2021 and May 27, 2021 starting each day at 9:30 a.m..(XX)
Note: If both parties accept the foregoing tentative ruling, appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing dates/times.
March 11, 2021
Counsel for Plaintiff and Defendants to advise the Court Clerk if they have read the Remote Trial Procedures set forth in the Tentative Ruling field as the same will be discussed at today's hearing.
Remote Trial Procedures
The trial in the above-captioned adversary proceeding is set for May 26 and May 27, 2021 commencing at 9:00 a.m. In light of the current COVID-19 pandemic, the Chief Judge of the District Court has issued orders
closing all courthouses in Central District of California until further notice. See Order of the Chief Judge No. 21-02 (January 29, 2021). Pursuant to Rule 43(a) of the Federal Rules of Civil Procedure ("Federal Rules"), made applicable here by 9017 of the Federal Rules of Bankruptcy Procedure ("Bankruptcy Rules"), the current pandemic and closure of the Court's facilities provide "good cause in compelling circumstances" to conduct the Plan Confirmation Hearing remotely, through the use of telephonic and videoconferencing technologies.
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Further, the Court finds that the procedures adopted herein will
provide "adequate safeguards" for purposes of Federal Rule 43(a) and ensure due process of law. These procedures will (i) enable the Court to identify, communicate with, and judge the demeanor of all witnesses in real time, (ii) enable counsel for the parties to see and hear the witness testimony, interpose objections, and communicate with the Court in real time, (iii) enable the parties, the witnesses and the Court to have simultaneous access to an identical set of pre-marked exhibits, (iv) avoid any undue influence or interference with the witnesses in connection with their testimony, and (v) preserve the ability of any witness to be represented by counsel during the proceeding, and to communicate with such counsel as the Court deems appropriate.
The following additional rules/requirements shall apply:
Audio and Video Conference Solutions. Trial shall take place using the telephonic and videoconferencing solutions described herein. Participants in the Trial will be connected with the courtroom using these technologies but will not be physically present in the courtroom. The Court will utilize Zoom for Government for audio and video. The Zoom dial-in information and URL (internet address) that enables participation in the audio and video portion of the proceedings are posted on the court’s website at www.cacb.uscourts.gov under the tentative ruling field for each day of trial (each day of the trial has a separate login information).
2 Required Equipment. For purposes of participation in the Trial each participating attorney and each witness must have simultaneous access to: (1) a computer or other electronic device equipped with a camera that is capable of receiving and transmitting video using the Zoom audio/video platform; (2) Internet browsing software that is adequate to facilitate participation on the Zoom audio/video platform; (3) an Internet connection with bandwidth adequate to support the individual's use of Zoom; and (4) Adobe Acrobat Reader for purposes of reviewing exhibits, as directed by counsel or the Court. All parties must be situated in a quiet location to provide clear audio. (Although a headset is not required, the Court has found that headsets typically provide the highest quality audio when using the Zoom platform.)
9:30 AM
Prior Notice of Trial Participants. By 12:00 p.m. on May 19, 2021 the parties shall provide to the Court via email (Chambers_ESmith@cacb.uscourts.gov), and to each other, a list of all attorneys and witnesses who will participate in the Trial, together with an email address and telephone number for each. The telephone number provided should be a number at which the attorney or witness can be reached during the Trial in the event of an interruption in the audio or video feed. This requirement is in addition to any other requirements previously established by the Court for the parties to disclose to each other, by a date certain, the identity of the witnesses they intend to present at the Trial.
Electronic Submission of Trial Exhibits. On or before May 19, 2021, the parties shall provide to the Court via email (Chambers_ESmith@cacb.uscourts.gov), each other, and each witness, a .pdf (Adobe Acrobat) file of each exhibit the parties may use at the Trial for any purposes, including for rebuttal or impeachment.
The parties may distribute these electronic documents by way of a secure link to an FTP or other file sharing service, if necessary.
Each exhibit must be a separate .pdf file.
The .pdf files shall be named sequentially. Plaintiff's exhibits shall be numbered as follows: P_Ex_1, P_Ex_2, P_Ex_3, etc. Defendants exhibits shall be lettered as follows: D_Ex_A, D_Ex_B, D_Ex_3, etc.
Upon receipt of the electronic documents (or a download link),
Each attorney and witness shall take the steps necessary to ensure that all electronic documents can be successfully opened and are readily available during the Trial.
Each rebuttal or impeachment exhibit must be separately
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password-protected with a unique password. If, and only if, a party seeks to use a rebuttal or impeachment exhibit, the party will be required to provide the password for that particular exhibit. During trial, if an exhibit is used for rebuttal or impeachment, counsel offering the exhibit will provide the password and the exhibit will be
displayed using the Zoom for Government "Share Screen" feature.
Paper Copies of Trial Exhibits. On or before May 19, 2021, the parties shall submit paper copies of Trial Exhibits to the court.
Remote Witness Testimony. Having found "good cause in compelling circumstances" and "adequate safeguards," any witness called to testify at the Trial shall testify by contemporaneous transmission from a different location into the courtroom (each a "Remote Witness").
A subpoena served on a Remote Witness must include the information in this Order Establishing Remote Trial Hearing Procedures.
All Remote Witnesses shall be placed under oath and their testimony shall have the same effect and be binding upon the Remote Witness in the same manner as if such Remote Witness was sworn and testified in open court.
Each Remote Witness shall provide their testimony from a quiet room and must situate themselves in such a manner as to be able to both view the video feed and be seen by the Court.
While the Remote Witness is sworn and testifying: (i) no person may be present in the room from which the Remote Witness is testifying, (ii) the Remote Witness may not have in the room any documents except the exhibits submitted by the parties pursuant to Paragraph 4 above and any declaration submitted in lieu of direct testimony, and (iii) may not communicate with any other person regarding the subject of their testimony, by electronic means or otherwise. If the witness or their counsel seek to communicate with one another, either shall openly request a
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recess for such purpose. If such request is granted by the Court, the witness and their counsel may privately confer "offline," i.e., by telephonic means that are not transmitted to the other parties.
Courtroom Formalities. Although conducted using videoconferencing technologies, the Trial constitutes a court proceeding. No person shall record— from any location or by any means—the audio or video of the Trial. The audio recording created and maintained by the Court shall constitute the official record of the Trial. Further, the formalities of a courtroom shall be observed. Counsel and witnesses shall dress appropriately, exercise civility, and otherwise conduct themselves in a manner consistent with the dignity of the Court and its proceedings.
The Court may require that all parties (attorneys, clients and witnesses) appear and participate in a Technical Status Conference with the Court's technology staff prior to the trial to ensure that any technological issues are addressed and resolved.
Continuance of Trial: The Court reserves the right to reschedule the commencement of the Trial if it determines that proceeding with the currently scheduled Trial dates would be infeasible.
Debtor(s):
Peter Woo Sik Kim Represented By Andrew S Bisom
Defendant(s):
Peter Kim Pro Se
Sharon Kim Pro Se
Joint Debtor(s):
Sharon Soyun Kim Represented By Andrew S Bisom
9:30 AM
Plaintiff(s):
Kang Family 2007 Revocable Trust Represented By
Edmond Richard McGuire
Trustee(s):
Weneta M Kosmala (TR) Represented By Lynda T Bui Rika Kido
9:30 AM
Adv#: 8:20-01175 Casey v. Banuelos, III
Docket 1
NONE LISTED -
March 11, 2021
Continue Status Conference to May 20, 2021 at 9:30 a.m.; updated Status Report must be filed by May 6, 2021.
Note: Appearance at this hearing is not required; Plaintiff to serve notice of the continued hearing date/time.
Debtor(s):
Mark Jeffrey Berry Represented By Francis Guilardi
Defendant(s):
Benjamin Banuelos, III Pro Se
Plaintiff(s):
Thomas H. Casey Pro Se
Trustee(s):
Thomas H Casey (TR) Pro Se
9:30 AM
Adv#: 8:20-01156 Kosmala v. Xia
FR: 1-21-21
Docket 1
OFF CALENDAR: Another Summons Issued 2/3/2021; New Status Conference Set for 4/22/2021 at 9:30 am (xx) - td (2/3/2021)
January 21, 2021
Continue status conference to March 11, 2021 at 9:30 a.m. to allow Plaintiff to either file a proof of service showing proper service of the summons and complaint or to obtain another summons. (XX)
Comments:
The docket does not reflect that the summons and complaint were served and no status report has been filed. Failure to file a proof of service or to file a status report for the March 11, 2021 hearing will result in the imposition of sanctions against Plaintiff's in the amount of $100 and the issuance of an order to show cause why the adversary proceeding should not be dismissed
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for failure to prosecute.
Note: If Plaintiff accepts the tentative ruling, appearances at this hearing are not required.
Debtor(s):
Alpha Floors, Inc. Represented By Eric J Fromme
Defendant(s):
Feiyu Xia Pro Se
Plaintiff(s):
Weneta Kosmala Represented By Reem J Bello
Trustee(s):
Weneta M Kosmala (TR) Represented By Reem J Bello
9:30 AM
Adv#: 8:20-01178 Banning Bench Community of Interest Association, I v. Elieff
Docket 1
NONE LISTED -
March 11, 2021
Continue Status Conference to June 3, 2021 at 9:30 a.m.; updated Status Report must be filed by May 20, 2021.
Note: Appearances at this hearing are not required; Plaintiffs to serve notice of the continued hearing date/time.
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson Robert P Goe
Defendant(s):
Bruce Elieff Pro Se
Plaintiff(s):
Banning Bench Community of Represented By
John G McClendon
Highland Springs Conference and Represented By
John G McClendon
9:30 AM
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe Claire K Wu
9:30 AM
Adv#: 8:20-01174 Chicago Title Insurance Company v. Adam
Docket 1
NONE LISTED -
March 11, 2021
Continue Status Conference to April 15, 2021 at 2:00 p.m., same date/time as Defendant's Motion to Dismiss Adversary Proceeding; updated status report not required.
Note: Appearances at this Status Conference are not required; Plaintiff to serve notice of the continued hearing date/time.
Debtor(s):
Chandra Marie Adam Pro Se
Defendant(s):
Chandra Marie Adam Pro Se
Plaintiff(s):
Chicago Title Insurance Company Represented By
Karen A Ragland
Trustee(s):
Thomas H Casey (TR) Pro Se
10:00 AM
VS.
DEBTOR
Docket 11
NONE LISTED -
March 11, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Judy Unsil Lim Represented By Eric M Sasahara
Movant(s):
Financial Services Vehicle Trust Represented By
Marjorie M Johnson
10:00 AM
Trustee(s):
Thomas H Casey (TR) Pro Se
10:30 AM
[RICHARD A. MARSHACK, CHAPTER 7 TRUSTEE]
Docket 311
NONE LISTED -
March 11, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Richard V Valdes Represented By David M Reeder
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Sarah Cate Hays Chad V Haes Kristine A Thagard
10:30 AM
[MARSHACK HAYS LLP, ATTORNEYS FOR RICHARD A. MARSHACK, CHAPTER 7 TRUSTEE]
Docket 308
NONE LISTED -
March 11, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Richard V Valdes Represented By David M Reeder
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Sarah Cate Hays Chad V Haes Kristine A Thagard
10:30 AM
[HAHN FIFE & COMPANY, ACCOUNTANT FOR CHAPTER 7 TRUSTEE]
Docket 307
NONE LISTED -
March 11, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Richard V Valdes Represented By David M Reeder
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Sarah Cate Hays Chad V Haes Kristine A Thagard
10:30 AM
Adv#: 8:16-01247 Damon v. Haythorne
FR: 7-16-19; 8-15-19; 10-17-19; 11-21-19; 1-30-20; 4-2-20; 6-11-20; 9-10-20;
11-19-20; 1-14-21
Docket 128
CONTINUED: Hearing Continued to 5/11/2021 at 10:30 a.m., Per Order Entered 3/8/2021 (XX) - td (3/8/2021)
SPECIAL IMPORTANT NOTICE! In order to mitigate the spread of the COVID-19 virus, notice is hereby given that ALL hearings before Judge Smith will be by TELEPHONE APPEARANCE ONLY until further notice. The courtroom will be locked. Any party who wishes to appear must register in advance by contacting CourtCall at (866) 582-6878. It is suggested that parties register with CourtCall at least 30 minutes prior to the hearing. Through September 30, 2020, CourtCall is offering discounted registration for attorneys and free registration for parties without an attorney.
July 16. 2019
Stephen Haythorne to appear in court to be sworn in by the court clerk; the examination will take place outside the courtroom.
August 8, 2019
Stephen Haythorne to appear in court to be sworn in by the court clerk; the
10:30 AM
examination will take place outside the courtroom.
August 15, 2019
Stephen Haythorne to appear in court to be sworn in by the court clerk; the examination will take place outside the courtroom.
October 17, 2019
Judgment creditor has not sought the issuance of an OSC re contempt. Continue hearing to November 21, 2019 at 10:30 a.m. Any motion for OSC re contempt may be heard on the same date.
November 21, 2019
Judgment creditor to advise the court re the status of this matter. The court notes that judgment creditor has not sought the issuance of an OSC re contempt.
January 30, 2020
Judgment creditor to advise the court re the status of this matter, e.g., production of documents. Stephen Haythorne to appear in court to be sworn in by the court clerk; the examination will take place outside the courtroom.
June 11, 2020
Continue the examination to September 10, 2020 at 10:00 a.m. Basis for Tentative Ruling
The courthouse remains closed to in-person court appearances and on-site
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in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse, including by video conference, prior to September 10, 2020. Depending on the status of pandemic-related rules and policies in place on September 1, 2020, the September 10, 2020 hearing may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
September 10, 2020
Continue the examination to November 19, 2020 at 10:00 a.m. (XX) Basis for Tentative Ruling
The courthouse is currently closed to in-person court appearances and on- site in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse, including by video conference, prior to November 19, 2020. Depending on the status of pandemic-related rules and policies in place on November 19, 2020, the examination may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
10:30 AM
Debtor(s):
Stephen J Haythorne Represented By David S Henshaw
Defendant(s):
Stephen J Haythorne Pro Se
Plaintiff(s):
Hugh C Damon Represented By Robert P Goe Charity J Manee
Trustee(s):
Weneta M Kosmala (TR) Pro Se
10:30 AM
Adv#: 8:16-01247 Damon v. Haythorne
FR: 7-16-19; 8-15-19; 10-17-19; 11-21-19; 1-30-20; 4-2-20; 6-11-20; 9-10-20;
11-19-20; 1-14-21
Docket 130
CONTINUED: Hearing Continued to 5/11/2021 at 10:30 a.m., Per Order Entered 3/8/2021 (XX) - td (3/8/2021)
SPECIAL IMPORTANT NOTICE! In order to mitigate the spread of the COVID-19 virus, notice is hereby given that ALL hearings before Judge Smith will be by TELEPHONE APPEARANCE ONLY until further notice. The courtroom will be locked. Any party who wishes to appear must register in advance by contacting CourtCall at (866) 582-6878. It is suggested that parties register with CourtCall at least 30 minutes prior to the hearing. Through September 30, 2020, CourtCall is offering discounted registration for attorneys and free registration for parties without an attorney.
July 16. 2019
Kelli Haythorne to appear in court to be sworn in by the court clerk; the examination will take place outside the courtroom.
August 8, 2019
Kelli Haythorne to appear in court to be sworn in by the court clerk; the
10:30 AM
examination will take place outside the courtroom.
August 15, 2019
Kelli Haythorne to appear in court to be sworn in by the court clerk; the examination will take place outside the courtroom.
October 17, 2019
Judgment creditor has not sought the issuance of an OSC re contempt. Continue hearing to November 21, 2019 at 10:30 a.m. Any motion for OSC re contempt may be heard on the same date.
November 21, 2019
Judgment creditor to advise the court re the status of this matter. The court notes that judgment creditor has not sought the issuance of an OSC re contempt.
January 30, 2020
Judgment creditor to advise the court re the status of this matter, e.g., production of documents. Kelli Haythorne to appear in court to be sworn in by the court clerk; the examination will take place outside the courtroom (no doctor's note was filed by January 16, 2020 excusing her appearance).
June 4, 2020
Continue the examination to September 10, 2020 at 10:00 a.m. Basis for Tentative Ruling
10:30 AM
The courthouse remains closed to in-person court appearances and on-site in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse, including by video conference, prior to September 10, 2020. Depending on the status of pandemic-related rules and policies in place on September 1, 2020, the September 10, 2020 hearing may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
September 10, 2020
Continue the examination to November 19, 2020 at 10:00 a.m. (XX) Basis for Tentative Ruling
The courthouse is currently closed to in-person court appearances and on- site in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse, including by video conference, prior to November 19, 2020. Depending on the status of pandemic-related rules and policies in place on November 19, 2020, the examination may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
Debtor(s):
Stephen J Haythorne Represented By David S Henshaw
10:30 AM
Defendant(s):
Stephen J Haythorne Pro Se
Plaintiff(s):
Hugh C Damon Represented By Robert P Goe Charity J Manee
Trustee(s):
Weneta M Kosmala (TR) Pro Se
10:30 AM
Docket 105
NONE LISTED -
March 11, 2021
Grant motion subject to overbids. Any overbidders wishing to bid on the real property known as 23882 Innisbrook Lane, Laguna Niguel, CA 92677 should state their names during the Clerk's calendar roll call prior to the commencement of the hearing. If there are no overbidders, the motion will be granted as filed.
Debtor(s):
Jean A Butler-Boren Represented By Thomas J Polis
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
[MARK M. SHARF, SUBCHAPTER V TRUSTEE]
Docket 257
NONE LISTED -
March 11, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Orange County Bail Bonds, Inc. Represented By Marc C Forsythe Ryan S Riddles
Trustee(s):
Mark M Sharf (TR) Pro Se
10:30 AM
[SULMEYERKUPETZ, A PROFESSIONAL CORPORATION, ATTORNEYS FOR DEBTOR IN POSSESSION]
Docket 197
NONE LISTED -
March 11, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
10827 Studebaker LLC, a California Represented By
Steven Werth Alan G Tippie
10:30 AM
(Set at Conf Hrg held 9-17-20)
Docket 79
OFF CALENDAR: Order Granting Reorganized Debtor's Motion to Administratively Close Individual Chapter 11 Case Entered 2/9/2021 - td (3/8/2021)
NONE LISTED -
Debtor(s):
Luis Alberto Rodriguez Jr. Represented By Michael Jones Sara Tidd
10:30 AM
Docket 65
NONE LISTED -
March 11, 2021
Approve Disclosure Statement with amendments noted in the Tentative Ruling. Confirmation Schedule: Deadline to file final version of Disclosure Statement: Mar. 18, 2021; Deadline to mail plan packages: March 25, 2021; Deadline for creditors to accept/reject/object to the plan: April 22, 2021; Deadline to file confirmation brief: May 6, 2021. Confirmation hearing: May 20, 2021 at 10:30 a.m.
Court's Comments:
DS, p. 8-10 and p. 30:4-9. Trustee’s first objection is that the chapter 13 bankruptcy of Mr. Lonnie Tee, Debtor’s principal ("Mr. Tee"), should be disclosed and an explanation of how the proposed monthly insider compensation of payments of $13,000 will be sufficient for Mr. Tee to make his personal chapter 13 plan payments of $14,525 starting in July 2021. See Obj., p. 2. Debtor counters that such disclosure was not necessary because most of the creditors in the personal case are also creditors of Debtor so such disclosure is immaterial. See Response, p. 5-6, ¶¶11-14, 17. And with regard to insufficient insider compensation to make chapter 13 plan payments, Debtor argues that Mr. Tee and his wife receive Social Security income and Debtor’s expenses could be further reduced by Mr. Tee’s wife replacing an employee of Debtor. See id., ¶¶15-16. Debtor agrees to make such disclosure in an amendment DS if the court deems it necessary. See id., ¶17.
10:30 AM
Trustee’s objection is sustained and Debtor is required to make disclosure of Mr. Tee’s personal bankruptcy. First, Debtor has an independent duty under § 1125 to make full disclosure, so whether the creditors in the related bankruptcy cases already know of both cases is irrelevant. The application of § 1125 is made applicable by the Court’s requirement that a disclosure statement be filed. § 1181(b). Second, the possibility that there could be insufficient income to fund Mr. Tee’s personal plan payments because (setting aside the feasibility issues of Mr. Tee’s personal case) raises feasibility issues in this case. See Obj., p. 2:5-11.
DS, p. 17:1-3. Since there are no property tax claims, delete the section entitled "Property Tax Claims".
DS, p. 19:13. In Class 1, delete "Claims Secured Only on Real Property of the Debtor." It is confusing to classify a class only to state that claims in that class don’t exist. Reclassify Class 2 as Class 1, and move other classes "up" in number also.
DS, p. 20:21-21:8. Change references to the IRS "loan" to "debt" or "claim."
DS, p. 20. Trustee objects that the DS should explain what happens if the projected revenue does not increase from $600,000 to
$850,000 per year. Obj., p. 2-3. This objection is sustained.
DS, p. 21:15-17. If there are no priority unsecured claims in Class 3, make Class 4 the new Class 3. It is confusing to create a class only to state that claims in that class don’t exist.
DS, p. 23:17. Change "valuation of said creditor’s claim" to some certain date, such as the Effective Date: "valuation of said creditor’s claim as of the Effective Date." This clarification helps avoid a potential violation of § 1123(a)(4) which requires the same treatment of a particular class unless the holder of unless the holder of a particular claim agrees to less favorable treatment. If an allowed claim is paid off before the year 5 payment from the
10:30 AM
Incentive Fund, as currently drafted, it is unclear whether that paid-off creditor would receive this Incentive Fund payment. If not, such treatment could create different Plan treatment of claims in current Class 4.
DS, p. 32-22. In the section regarding remedies in the event of payment defaults as required by § 1191, Trustee objects that the remedy provided for unsecured creditors (that they may request a security interest against all of Debtor’s property within 180 days following the effective date) will create disparate treatment of unsecured creditors. See Obj., p. 3-4. Trustee’s objection is sustained. As explained by Trustee, if the Plan is confirmed non-consensually, estate property will remain estate property, which also ensures that unsecured creditors receive the same treatment if the case is eventually converted to chapter 7. See id. The proposed remedy of granting a security interest may create a situation where certain assets are diverted to a small number of unsecured creditors at the expense of the unsecured creditor class as a whole.
In addition to Trustee’s objection, the proposed security interest remedy is fatal for two reasons. First, as currently drafted, an unsecured creditor may request the lien even if Debtor is not in default within the 180 after the Effective Date. Second, this provision is not actually a remedy whatsoever for a Plan default that occurs after 180 days from the Effective Date. Debtor has agreed to remove this security interest remedy provision. See Resp., p. 7:20-23.
DS, p. 33. The DS and Plan propose a procedure for parties to the Plan to provide written notice to Debtor and give 30 days for Debtor to cure the Plan. Trustee objects to this provision because Debtor is attempting to impose on Trustee a duty which is not in the Bankruptcy Code. See Obj., p.
Trustee’s objection is sustained and Debtor has agreed to exempt Trustee from the application of this provision. See Obj., p. 16-18.
DS, p. 33-34 and p. 47. The DS states that all estate property will vest in Debtor except for intellectual property. Trustee objects because under a cramdown conformation, estate property and property acquired after confirmation remains property of the estate under § 1186(a). See Obj., p.
5:6-9. Debtor has agreed to modify the DS as requested by Trustee. See
10:30 AM
Resp., p. 8:18-26.
DS, p. 36. The DS/Plan provides that Debtor may liquidate its property at any time following the Effective Date. Trustee states that this demonstrate Debtor’s intent to transfer assets out of the ordinary course of business post-confirmation, and that Debtor should not be allowed to, especially if the Plan is confirmed via cramdown and all property remains estate property. See Obj., p. 5:1-6. Debtor is willing to remove the provision if the "Trustee finds it offensive for some reason and the Court believes that it is best." Resp., p. 8, ¶23. Trustee’s objection is overruled on the condition that any liquidation of property, whether the Plan is confirmed consensually or non-consensually, is subject to court approval. The additional condition of court approval balances Trustee’s concerns with Debtor’s interest in being able to exercise its business judgment. The Plan already also provides for such oversight in the event of a consensual Plan confirmation. See DS, p. 34:5-9; Plan, p. 33:18-22.
DS, p. 45-46 and Exhibit C. Revise the disposable income projections. First, subtotals should be included, such as the subtotal of "Expenses" and Chapter 11 Plan Payments. Second, the section for operating expenses should also be revised to take out the payment to Class 2 which is not an operating expense of Debtor. The Class 2 payment should be included under the Chapter 11 Plan Payments section.
DS, p. 47:23. Section 1193, not § 1127, is applicable to plan modifications in subchapter V. Debtor has agreed to make this correction. See Resp., 9:21-25; Obj., p. 6:1-5.
Debtor(s):
Vantage Point Apparel Software, Inc. Represented By
Michael Jones
10:30 AM
Trustee(s):
Mark M Sharf (TR) Pro Se
10:30 AM
FR: 5-12-20; 7-23-20; 9-3-20; 11-19-20; 12-10-20; 2-18-21
Docket 7
NONE LISTED -
May 12, 2020
Deadline to file plan/disclosure statement: Aug. 14, 2020*
Claims Bar Date (service of notice by 5/19/20): July 20, 2020
Continued Status Conference: July 23, 2020 at 10:30am Deadline for Debtor and Trustee to
file Updated Status Report: July 9, 2020
*Special Note: The court has reviewed the report filed by the trustee on 5/11/20 and, in light of the same, no appearances at this status conference are required and the deadline for filing a plan has been modified to August 14, 2020. Non appearance at the hearing will be deemed acceptance of the tentative ruling. The court will issue its own order.
Note: Appearances at this hearing are not required if all parties accept the tentative ruling required.
July 23, 2020
10:30 AM
Extend the deadline for filing a plan and disclosure statement from August 14, 2020 to October 15, 2020 and continue the Status Conference to November 19, 2020 at 10:30 a.m.; an updated status report must be filed by Debtor by November 5, 2020 and by the Trustee by November 12, 2020. However, if Debtor timely files a plan and disclosure statement by October 15, 2020, updated status reports will not be required and the Status Conference will be continued to the date/time of the hearing regarding approval of the disclosure statement.
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required and the Court will issue its own order re the same.
September 3, 2020
Continue Status Conference to November 19, 2020 at 10:30 a.m.; an updated status report must be filed by Debtor by November 5, 2020 and by the Trustee by November 12, 2020. However, if Debtor timely files a plan and disclosure statement by October 15, 2020, updated status reports will not be required and the Status Conference will be continued to the date/time of the hearing regarding approval of the disclosure statement. (XX)
Note: Appearance at today's hearing is not required. The court will issue its own order re the tentative ruling.
November 19, 2020
Continue the Status Conference to December 10, 2020 at 10:30 a.m., the same date/time as hearing on the the approval of Debtor's disclosure statement; updated status report is not required for that hearing. (XX)
Note: Appearances at this hearing are not required.
December 10, 2020
10:30 AM
Continue Status Conference to February 18, 2021 at 10:30 a.m.; updated Status Report must be filed by February 4, 2021 unless an amended disclosure statement has been timely filed, in which case the requirement of a status report will be waived and the Status Conference continued to the same date/time as hearing on such amended disclosure statement. (XX)
Note: If Debtor is in substantial compliance with the requirements of the
U.S. Trustee, appearances at this hearing will not be required. It is Debtor's responsibility to confirm substantial compliance in advance of the hearing.
February 18, 2021
Continue status conference to March 11, 2021 at 10:30 a.m., same date/time set for hearing on approval Debtor's disclosure statement. (XX)
Special note: The court appreciates the updated status report filed by the Subchapter V Trustee [docket # 70]
Note: Appearances at this hearing are not required.
March 11, 2021
Continue Status Conference to May 20, 2021 at 10:30 a.m.; updated Status Report not required.
Debtor(s):
Vantage Point Apparel Software, Inc. Represented By
Michael Jones
10:30 AM
Trustee(s):
Mark M Sharf (TR) Pro Se
10:30 AM
Docket 97
NONE LISTED -
March 11, 2021
Grant motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Golden Communications Inc. Represented By Marc C Forsythe
10:30 AM
[GOE FORSYTHE & HODGES LLP, ATTORNEYS FOR DEBTOR AND DEBTOR IN POSSESSION]
Docket 98
NONE LISTED -
March 11, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Golden Communications Inc. Represented By Marc C Forsythe
10:30 AM
FR: 12-3-20
Docket 1
NONE LISTED -
December 3, 2020
Deadline to file plan*: Feb. 16, 2021
Continued Status Conf: Mar. 11, 2021 at 10:30 a.m. (XX) Updated Status Report due: Feb. 25, 2021 (Debtor); Mar. 4, 2021 (Trustee)
*The court will not require a disclosure statement. However, the plan must include 1) a brief history of Debtor's business operations and the circumstances precipitating the filing; 2) a liquidation analysis; and 3) projections supporting Debtor's ability to make payments during the term of the plan.
Note: If Debtor is in substantial compliance with the requirements of the
U.S. Trustee and there have been no significant developments in the case since the status reports were filed, appearances at this hearing will not be required. The Court will issue its own order re the Status Conference. It is Debtor's responsibility to confirm substantial compliance with the U.S. Trustee in advance of the hearing.
March 11, 2021
10:30 AM
Continue Status Conference to May 6, 2021 at 10:30 a.m. Debtor may schedule a hearing on approval of its plan for the same date/time. If so, a confirmation brief must be filed by or before April 22, 2021.
Special note to Subchapter V Trustee: The court did not require Debtor to file a disclosure statement. See tentative ruling for December 3, 2021.
Note: Appearances at this Status Conference are not required.
Debtor(s):
Beck & Chase Enterprises, Inc. Represented By Jeffrey B Smith
10:30 AM
[OSC issued 2/8/2021]
Docket 23
OFF CALENDAR: Debtor Paid $135.00 (both third and final installment payments), Paid in Full 3/3/2021, Receipt #80075400 - td(3/3/2021)
NONE LISTED -
Debtor(s):
Jacob Choi Pro Se
Joint Debtor(s):
Rachel Choi Pro Se
Trustee(s):
Jeffrey I Golden (TR) Pro Se
10:30 AM
Docket 27
NONE LISTED -
March 11, 2021
Grant the motion in its entirety.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Jose Lopez Represented By
James T Spratt
Joint Debtor(s):
Martha Alicia Lopez Represented By James T Spratt
Trustee(s):
Karen S Naylor (TR) Pro Se
10:30 AM
Docket 22
NONE LISTED -
March 11, 2021
Sustain Debtor's Objection and disallow claim in its entirety. Deny request for attorneys fees.
Basis for Tentative Ruling:
The request for attorneys fees is denied because Debtor has failed to provide evidence of any contract providing for such fees to the claimant. The court declines to speculate re the existence of any such attorneys fee provision and there is no basis for taking judicial notice of the same.
Note: If Debtor accepts the tentative ruling, appearance at this hearing is not required.
Debtor(s):
John Steven Domingos Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:00 PM
Adv#: 8:18-01015 Speier v. SunCal Management LLC et al
FR: 1-28-21
Docket 496
January 28, 2021
The following tentative ruling applies to matters 1, 3, 5 and 7 on today's Calendar:
The parties will be allowed to present oral argument regarding the Motion for Partial Summary Adjudication ("Main Motion") and the Motion to Strike the Singer Report ("Motion to Strike") as follows:
Defendants will be allowed up to 30 minutes to address both the Main Motion and the Motion to Strike. Plaintiff will then be allowed up to 30 minutes to respond. Defendants will be allowed up to 15 minutes to reply.
The parties should assume that the Court has read the pleadings and use oral argument to highlight key points.
At the conclusion of the oral argument, the matter will be taken under submission and a hearing on the Court's oral ruling will be set for March 11, 2021 at 2:00 p.m.. It is possible that a written ruling may be issued prior to March 11, 2021, in which case the parties will be notified. (XX)
2:00 PM
Additional Comments:
Plaintiff to address the issue of fraudulent transfer (either actual or constructive) as to Argent. Notably, the court previously denied the parties’ cross motions for summary judgment on the alter ego and successor liability claims [AP dkt. 451 and 458]. To the extent that SCM is found liable for any fraudulent transfer claims, the court’s granting of partial adjudication as to Argent would not impact Argent’s potential liability under Plaintiff’s yet to be adjudicated alter ego and successor liability claims.
March 11, 2021 (Updated)
Continue this hearing to March 30, 2021 at 2:00 p.m. on the court's own motion.
Reason for Tentative Ruling:
The court requires additional time to review and analyze the pleadings, caselaw and evidentiary objections.
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue
2:00 PM
Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Tara Castro Narayanan
Defendant(s):
SunCal Management LLC Represented By Craig H Averch Aalok Sharma
Argent Management, LLC Represented By Craig H Averch Aalok Sharma
Plaintiff(s):
Steven M Speier Represented By Mike D Neue
Gary A Pemberton Brianna L Frazier Shane M Biornstad
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall Robert P Goe
2:00 PM
Adv#: 8:18-01015 Speier v. SunCal Management LLC et al
FR: 8-1-18; 9-11-18; 5-2-18; 5-7-19; 9-26-19; 12-17-19; 1-9-20; 3-26-20;
4-27-20; 5-28-20; 5-29-20; 12-17-20; 1-28-21
Docket 95
CONTINUED: Status Conference Continued to 11/4/2021 at 2:00 p.m., Per Order Entered 2/26/2021 (XX) - td (3/1/2021)
May 28, 2020
Continue status conference to May 29, 2020 at 2:00 p.m.
January 28, 2021
The following tentative rulng applies to matters 2, 4, 6, 9, 10, 11,
Continue Status Conference to November 4, 2021 at 2:00 p.m., same date/time set for Motion for Partial Summary Adjudication
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
2:00 PM
Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Defendant(s):
SunCal Management LLC Represented By Craig H Averch Aalok Sharma
Argent Management, LLC Represented By Craig H Averch Aalok Sharma
Plaintiff(s):
Steven M Speier Represented By Mike D Neue
Gary A Pemberton Brianna L Frazier
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller
2:00 PM
Mike D Neue
Lei Lei Wang Ekvall
2:00 PM
Adv#: 8:18-01021 Speier v. SunCal Management LLC et al
FR: 1-28-21
Docket 443
NONE LISTED -
January 28, 2021
The following tentative ruling applies to matters 1, 3, 5 and 7 on today's Calendar:
The parties will be allowed to present oral argument regarding the Motion for Partial Summary Adjudication ("Main Motion") and the Motion to Strike the Singer Report ("Motion to Strike") as follows:
Defendants will be allowed up to 30 minutes to address both the Main Motion and the Motion to Strike. Plaintiff will then be allowed up to 30 minutes to respond. Defendants will be allowed up to 15 minutes to reply.
The parties should assume that the Court has read the pleadings and use oral argument to highlight key points.
At the conclusion of the oral argument, the matter will be taken under submission and a hearing on the Court's oral ruling will be set for March 11, 2021 at 2:00 p.m.. It is possible that a written ruling may be issued prior to March 11, 2021, in which case the parties will be notified. (XX)
2:00 PM
Additional Comments:
Plaintiff to address the issue of fraudulent transfer (either actual or constructive) as to Argent. Notably, the court previously denied the parties’ cross motions for summary judgment on the alter ego and successor liability claims [AP dkt. 451 and 458]. To the extent that SCM is found liable for any fraudulent transfer claims, the court’s granting of partial adjudication as to Argent would not impact Argent’s potential liability under Plaintiff’s yet to be adjudicated alter ego and successor liability claims.
March 11, 2021 (Updated)
Continue this hearing to March 30, 2021 at 2:00 p.m. on the court's own motion.
Reason for Tentative Ruling:
The court requires additional time to review and analyze the pleadings, caselaw and evidentiary objections.
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow
2:00 PM
Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Tara Castro Narayanan
Defendant(s):
SunCal Management LLC Represented By Craig H Averch Aalok Sharma
Argent Management, LLC Represented By Craig H Averch Aalok Sharma
Movant(s):
SunCal Management LLC Represented By Craig H Averch Aalok Sharma
Argent Management, LLC Represented By Craig H Averch Aalok Sharma
Plaintiff(s):
Steven M Speier Represented By Mike D Neue
Gary A Pemberton Brianna L Frazier Shane M Biornstad
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller
2:00 PM
Mike D Neue
Lei Lei Wang Ekvall Robert P Goe
2:00 PM
Adv#: 8:18-01021 Speier v. SunCal Management LLC et al
FR: 8-1-18; 9-11-18; 5-2-18; 5-7-19; 9-26-19; 12-17-19; 1-9-20; 3-26-20;
4-27-20; 5-28-20; 5-29-20; 12-17-20; 1-28-21
Docket 327
CONTINUED: Status Conference Continued to 11/4/2021 at 2:00 p.m., Per Order Entered 2/26/2021 (XX) - td (3/1/2021)
May 28, 2020
Continue status conference to May 29, 2020 at 2:00 p.m.
January 28, 2021
The following tentative rulng applies to matters 2, 4, 6, 9, 10, 11,
Continue Status Conference to November 4, 2021 at 2:00 p.m., same date/time set for Motion for Partial Summary Adjudication
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
2:00 PM
Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Defendant(s):
SunCal Management LLC Represented By Craig H Averch
Argent Management, LLC Represented By Craig H Averch
Plaintiff(s):
Steven M Speier Represented By Mike D Neue
Gary A Pemberton Brianna L Frazier
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall
2:00 PM
2:00 PM
Adv#: 8:18-01022 Speier v. SunCal Management LLC et al
FR: 1-28-21
Docket 445
NONE LISTED -
January 28, 2021
The following tentative ruling applies to matters 1, 3, 5 and 7 on today's Calendar:
The parties will be allowed to present oral argument regarding the Motion for Partial Summary Adjudication ("Main Motion") and the Motion to Strike the Singer Report ("Motion to Strike") as follows:
Defendants will be allowed up to 30 minutes to address both the Main Motion and the Motion to Strike. Plaintiff will then be allowed up to 30 minutes to respond. Defendants will be allowed up to 15 minutes to reply.
The parties should assume that the Court has read the pleadings and use oral argument to highlight key points.
At the conclusion of the oral argument, the matter will be taken under submission and a hearing on the Court's oral ruling will be set for March 11, 2021 at 2:00 p.m.. It is possible that a written ruling may be issued prior to March 11, 2021, in which case the parties will be notified. (XX)
2:00 PM
Additional Comments:
Plaintiff to address the issue of fraudulent transfer (either actual or constructive) as to Argent. Notably, the court previously denied the parties’ cross motions for summary judgment on the alter ego and successor liability claims [AP dkt. 451 and 458]. To the extent that SCM is found liable for any fraudulent transfer claims, the court’s granting of partial adjudication as to Argent would not impact Argent’s potential liability under Plaintiff’s yet to be adjudicated alter ego and successor liability claims.
March 11, 2021 (Updated)
Continue this hearing to March 30, 2021 at 2:00 p.m. on the court's own motion.
Reason for Tentative Ruling:
The court requires additional time to review and analyze the pleadings, caselaw and evidentiary objections.
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow
2:00 PM
Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Tara Castro Narayanan
Defendant(s):
SunCal Management LLC Represented By Craig H Averch Aalok Sharma
Argent Management, LLC Represented By Craig H Averch Aalok Sharma
Movant(s):
SunCal Management LLC Represented By Craig H Averch Aalok Sharma
Argent Management, LLC Represented By Craig H Averch Aalok Sharma
Plaintiff(s):
Steven M Speier Represented By Mike D Neue
Gary A Pemberton Brianna L Frazier Shane M Biornstad
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller
2:00 PM
Mike D Neue
Lei Lei Wang Ekvall Robert P Goe
2:00 PM
Adv#: 8:18-01022 Speier v. SunCal Management LLC et al
FR: 8-1-18; 9-11-18; 5-2-18; 5-7-19; 9-26-19; 12-17-19; 1-9-20; 3-26-20;
4-27-20; 5-28-20; 5-29-20; 12-17-20; 1-28-21
Docket 329
CONTINUED: Status Conference Continued to 11/4/2021 at 2:00 p.m., Per Order Entered 2/26/2021 (XX) - td (3/1/2021)
May 28, 2020
Continue status conference to May 29, 2020 at 2:00 p.m.
January 28, 2021
The following tentative rulng applies to matters 2, 4, 6, 9, 10, 11,
Continue Status Conference to November 4, 2021 at 2:00 p.m., same date/time set for Motion for Partial Summary Adjudication
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin
2:00 PM
Asa S Hami Charles Liu James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo
Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Defendant(s):
SunCal Management LLC Represented By Craig H Averch
Argent Management, LLC Represented By Craig H Averch
Plaintiff(s):
Steven M Speier Represented By Mike D Neue
Gary A Pemberton Brianna L Frazier
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall
2:00 PM
Adv#: 8:18-01023 SPEIER v. SUNCAL MANAGEMENT, LLC et al
FR: 1-28-21
Docket 391
NONE LISTED -
January 28, 2021
The following tentative ruling applies to matters 1, 3, 5 and 7 on today's Calendar:
The parties will be allowed to present oral argument regarding the Motion for Partial Summary Adjudication ("Main Motion") and the Motion to Strike the Singer Report ("Motion to Strike") as follows:
Defendants will be allowed up to 30 minutes to address both the Main Motion and the Motion to Strike. Plaintiff will then be allowed up to 30 minutes to respond. Defendants will be allowed up to 15 minutes to reply.
The parties should assume that the Court has read the pleadings and use oral argument to highlight key points.
At the conclusion of the oral argument, the matter will be taken under submission and a hearing on the Court's oral ruling will be set for March 11, 2021 at 2:00 p.m.. It is possible that a written ruling may be issued prior to March 11, 2021, in which case the parties will be notified. (XX)
2:00 PM
Additional Comments:
Plaintiff to address the issue of fraudulent transfer (either actual or constructive) as to Argent. Notably, the court previously denied the parties’ cross motions for summary judgment on the alter ego and successor liability claims [AP dkt. 451 and 458]. To the extent that SCM is found liable for any fraudulent transfer claims, the court’s granting of partial adjudication as to Argent would not impact Argent’s potential liability under Plaintiff’s yet to be adjudicated alter ego and successor liability claims.
March 11, 2021 (Updated)
Continue this hearing to March 30, 2021 at 2:00 p.m. on the court's own motion.
Reason for Tentative Ruling:
The court requires additional time to review and analyze the pleadings, caselaw and evidentiary objections.
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow
2:00 PM
Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Tara Castro Narayanan
Defendant(s):
SUNCAL MANAGEMENT, LLC Represented By
Craig H Averch Aalok Sharma
Argent Management LLC Represented By Craig H Averch Aalok Sharma
Movant(s):
SUNCAL MANAGEMENT, LLC Represented By
Craig H Averch Aalok Sharma
Argent Management LLC Represented By Craig H Averch Aalok Sharma
Plaintiff(s):
STEVEN M. SPEIER Represented By Evan C Borges Mike D Neue William N Lobel
Gary A Pemberton Brianna L Frazier Shane M Biornstad
2:00 PM
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall Robert P Goe
2:00 PM
Adv#: 8:18-01023 SPEIER v. SUNCAL MANAGEMENT, LLC et al
FR: 8-1-18; 9-11-18; 5-2-18; 5-7-19; 9-26-19; 12-17-19; 1-9-20; 3-26-20;
4-27-20; 5-28-20; 5-29-20; 12-17-20; 1-28-21
Docket 298
CONTINUED: Status Conference Continued to 11/4/2021 at 2:00 p.m., Per Order Entered 2/26/2021 (XX) - td (3/1/2021)
January 9, 2020
No tentative ruling. Oral Argument only. Plaintiff will have 30 minutes to argue in favor of the Motion; Defendant will have 30 minutes to respond; Plaintiff will have 30 minutes to reply. The matter will then be taken under submission. Oral Ruling: March 26, 2020 at 2:00 p.m.
May 28, 2020
Continue status conference to May 29, 2020 at 2:00 p.m.
January 28, 2021
Continue Status Conference to November 4, 2021 at 2:00 p.m.
2:00 PM
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Defendant(s):
SUNCAL MANAGEMENT, LLC Represented By
Craig H Averch
Argent Management LLC Represented By Craig H Averch
Plaintiff(s):
STEVEN M. SPEIER Represented By Evan C Borges Mike D Neue William N Lobel
Gary A Pemberton
2:00 PM
Trustee(s):
Brianna L Frazier
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall
9:00 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
9:00 AM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
9:00 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
9:00 AM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
9:00 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
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Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
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#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
9:30 AM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
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NONE LISTED -
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Adv#: 8:17-01226 Marshack v. Wallace et al
Docket 47
NONE LISTED -
NONE LISTED -
Debtor(s):
29 Prime, Inc. Represented By
Richard L Barnett Christine D Barker
Defendant(s):
Russell B. Wallace Pro Se
Tony Redman Pro Se
Jason Martin Pro Se
Local Zoom, Inc. Pro Se
OC Listing, Inc. Pro Se
Sky Motorsports, Inc. Pro Se
Haleh Fardi Pro Se
1Network.Com Pro Se
Plaintiff(s):
Richard A. Marshack Represented By
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Trustee(s):
Rosemary Amezcua-Moll
Richard A Marshack (TR) Represented By Caroline Djang
Rosemary Amezcua-Moll
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Adv#: 8:19-01155 Kang Family 2007 Revocable Trust v. Kim et al
FR: 10-17-19; 1-16-20; 5-7-20; 6-4-20; 7-9-20; 1-14-21; 3-18-21
Docket 1
- NONE LISTED -
October 17, 2019
Discovery Cut-off Date: Mar. 6, 2020
Deadline to Attend Mediation: Jan. 31, 2020
Pretrial Conference Date: Apr. 30, 2020 at 9:30 a.m. Deadline to Lodge Joint Pretrial Stipulaton: Apr. 16, 2020
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.divider
January 16, 2020
Discovery Cut-off Date: Mar. 16, 2020
Pretrial Conference Date: May 7, 2020 at 9:30 a.m. (XX)
Deadline to Lodge Joint Pretrial Stipulaton: Apr. 23, 2020
Note: If all parties accept the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
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June 4, 2020
Continue the Pretrial Conference to July 9, 2020 at 9:30 a.m. to allow the parties to file an amended pretrial stipulation by June 25, 2020. The amended pretrial stipulation should address the comments of the court in its tentative ruling and also whether each party wishes to submit direct testimony by declaration in advance of the trial in accordance with this court's Trial Procedures or if they prefer live direct testimony. (XX)
Comments re the Pretrial Stipulation:
The court commends the parties for timely filing a thorough and thoughtful pretrial stipulation ("PS"), including a complete list of exhibits and witnesses. That said, the PS will need to be amended per the comments below.
Page 3, line 7: There appear to be action words missing, e.g., should "submitted a signed Letter of Intent to lease the property" be inserted?
Chronologically, paragraph 4 should probably replace paragraph 7.
Curiously, the Issues of Fact to be Litigated, starting on page 6, do not include all of the factual issues relating to 523(a)(2)(A) and (B). Instead, those issues have been relegated to section IV called Claims for Relief which includes mixed issues of fact and law re 523(a)(2). Also added are sections V (Remedies) and VI (Affirmative Defenses). Sections IV, V and VI (collectively the "Added Sections") are confusing and are not consistent with the structure of a pretrial stipulation as plainly set forth in LBR 7016-1(b)(2)(B) and (C). The section on Issues of Fact to be Litigated should include all issues of fact, including those that appear in the Added Sections. Similarly, the section on Issues of Law to be Litigated (Remaining Legal Issues) should include all legal issues, including those in the Added Sections. The court does not mind subheadings within the Issues of Fact and/or Issues of Law, but there should be one section on disputed facts and one section on issues of law.
Page 15, lines 1 and 3: "A list of" should be inserted after "Exhibits:" since
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the exhibits themselves are not attached.
It is the court's usual procedure to conduct direct testimony by declaration (the plaintiff submits written direct testimony 30 days before; the defendant does so 21 days before trial and both parties submit any evidentiary objections 7 days prior to trial). See, the court's Trial Procedures at cacb.uscourts.gov. However, direct testimony by declaration is not mandatory if the parties prefer live direct testimonyl By listing the direct examination time estimates in the PS, are the communicating a preference for live direct testimony as opposed to direct testimony by declaration (exclusive of adverse or rebuttal testimony)? Live direct vs. written direct will affect the trial time estimate.
The trial will likely take place the week of September 21, 2020. While in- person appearances may be possible by that time, the court is amenable to a video conference option for any parties who cannot appear in person.
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required; nonappearance at the hearing will be deemed acceptance of the tentative ruling.
July 9, 2020
The parties must appear and address the following issues:
Whether direct testimony will be presented by written declarations (see Court's Comment #5 above in the tentative ruling for June 4, 2020. This issue does not appear to be addressed in the amended pretrial stipulation. As previously noted, this affects the trial time estimate and setting of trial dates.
Whether the parties will be prepared to conduct the trial entirely by video conference (Zoom) if the trial is held in September during the week of September 21, 2020.
The trial cannot be set until the above issues have been addressed.
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Note: Appearances at this hearing are required.
January 14, 2021
Continue this Trial Procedures Conference to March 11, 2021 at 9:30 a.m.; postpone the Trial Dates to May 26, 2021 and May 27, 2021 starting each day at 9:30 a.m..(XX)
Note: If both parties accept the foregoing tentative ruling, appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing dates/times.
March 11, 2021
Counsel for Plaintiff and Defendants to advise the Court Clerk if they have read the Remote Trial Procedures set forth in the Tentative Ruling field as the same will be discussed at today's hearing.
Remote Trial Procedures
The trial in the above-captioned adversary proceeding is set for May 26 and May 27, 2021 commencing at 9:00 a.m. In light of the current COVID-19 pandemic, the Chief Judge of the District Court has issued orders
closing all courthouses in Central District of California until further notice. See Order of the Chief Judge No. 21-02 (January 29, 2021). Pursuant to Rule 43(a) of the Federal Rules of Civil Procedure ("Federal Rules"), made applicable here by 9017 of the Federal Rules of Bankruptcy Procedure ("Bankruptcy Rules"), the current pandemic and closure of the Court's facilities provide "good cause in compelling circumstances" to conduct the Plan Confirmation Hearing remotely, through the use of telephonic and videoconferencing technologies.
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Further, the Court finds that the procedures adopted herein will
provide "adequate safeguards" for purposes of Federal Rule 43(a) and ensure due process of law. These procedures will (i) enable the Court to identify, communicate with, and judge the demeanor of all witnesses in real time, (ii) enable counsel for the parties to see and hear the witness testimony, interpose objections, and communicate with the Court in real time, (iii) enable the parties, the witnesses and the Court to have simultaneous access to an identical set of pre-marked exhibits, (iv) avoid any undue influence or interference with the witnesses in connection with their testimony, and (v) preserve the ability of any witness to be represented by counsel during the proceeding, and to communicate with such counsel as the Court deems appropriate.
The following additional rules/requirements shall apply:
Audio and Video Conference Solutions. Trial shall take place using the telephonic and videoconferencing solutions described herein. Participants in the Trial will be connected with the courtroom using these technologies but will not be physically present in the courtroom. The Court will utilize Zoom for Government for audio and video. The Zoom dial-in information and URL (internet address) that enables participation in the audio and video portion of the proceedings are posted on the court’s website at www.cacb.uscourts.gov under the tentative ruling field for each day of trial (each day of the trial has a separate login information).
2 Required Equipment. For purposes of participation in the Trial each participating attorney and each witness must have simultaneous access to: (1) a computer or other electronic device equipped with a camera that is capable of receiving and transmitting video using the Zoom audio/video platform; (2) Internet browsing software that is adequate to facilitate participation on the Zoom audio/video platform; (3) an Internet connection with bandwidth adequate to support the individual's use of Zoom; and (4) Adobe Acrobat Reader for purposes of reviewing exhibits, as directed by counsel or the Court. All parties must be situated in a quiet location to provide clear audio. (Although a headset is not required, the Court has found that headsets typically provide the highest quality audio when using the Zoom platform.)
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Prior Notice of Trial Participants. By 12:00 p.m. on May 19, 2021 the parties shall provide to the Court via email (Chambers_ESmith@cacb.uscourts.gov), and to each other, a list of all attorneys and witnesses who will participate in the Trial, together with an email address and telephone number for each. The telephone number provided should be a number at which the attorney or witness can be reached during the Trial in the event of an interruption in the audio or video feed. This requirement is in addition to any other requirements previously established by the Court for the parties to disclose to each other, by a date certain, the identity of the witnesses they intend to present at the Trial.
Electronic Submission of Trial Exhibits. On or before May 19, 2021, the parties shall provide to the Court via email (Chambers_ESmith@cacb.uscourts.gov), each other, and each witness, a .pdf (Adobe Acrobat) file of each exhibit the parties may use at the Trial for any purposes, including for rebuttal or impeachment.
The parties may distribute these electronic documents by way of a secure link to an FTP or other file sharing service, if necessary.
Each exhibit must be a separate .pdf file.
The .pdf files shall be named sequentially. Plaintiff's exhibits shall be numbered as follows: P_Ex_1, P_Ex_2, P_Ex_3, etc. Defendants exhibits shall be lettered as follows: D_Ex_A, D_Ex_B, D_Ex_3, etc.
Upon receipt of the electronic documents (or a download link),
Each attorney and witness shall take the steps necessary to ensure that all electronic documents can be successfully opened and are readily available during the Trial.
Each rebuttal or impeachment exhibit must be separately
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password-protected with a unique password. If, and only if, a party seeks to use a rebuttal or impeachment exhibit, the party will be required to provide the password for that particular exhibit. During trial, if an exhibit is used for rebuttal or impeachment, counsel offering the exhibit will provide the password and the exhibit will be
displayed using the Zoom for Government "Share Screen" feature.
Paper Copies of Trial Exhibits. On or before May 19, 2021, the parties shall submit paper copies of Trial Exhibits to the court.
Remote Witness Testimony. Having found "good cause in compelling circumstances" and "adequate safeguards," any witness called to testify at the Trial shall testify by contemporaneous transmission from a different location into the courtroom (each a "Remote Witness").
A subpoena served on a Remote Witness must include the information in this Order Establishing Remote Trial Hearing Procedures.
All Remote Witnesses shall be placed under oath and their testimony shall have the same effect and be binding upon the Remote Witness in the same manner as if such Remote Witness was sworn and testified in open court.
Each Remote Witness shall provide their testimony from a quiet room and must situate themselves in such a manner as to be able to both view the video feed and be seen by the Court.
While the Remote Witness is sworn and testifying: (i) no person may be present in the room from which the Remote Witness is testifying, (ii) the Remote Witness may not have in the room any documents except the exhibits submitted by the parties pursuant to Paragraph 4 above and any declaration submitted in lieu of direct testimony, and (iii) may not communicate with any other person regarding the subject of their testimony, by electronic means or otherwise. If the witness or their counsel seek to communicate with one another, either shall openly request a
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recess for such purpose. If such request is granted by the Court, the witness and their counsel may privately confer "offline," i.e., by telephonic means that are not transmitted to the other parties.
Courtroom Formalities. Although conducted using videoconferencing technologies, the Trial constitutes a court proceeding. No person shall record— from any location or by any means—the audio or video of the Trial. The audio recording created and maintained by the Court shall constitute the official record of the Trial. Further, the formalities of a courtroom shall be observed. Counsel and witnesses shall dress appropriately, exercise civility, and otherwise conduct themselves in a manner consistent with the dignity of the Court and its proceedings.
The Court may require that all parties (attorneys, clients and witnesses) appear and participate in a Technical Status Conference with the Court's technology staff prior to the trial to ensure that any technological issues are addressed and resolved.
Continuance of Trial: The Court reserves the right to reschedule the commencement of the Trial if it determines that proceeding with the currently scheduled Trial dates would be infeasible.
Debtor(s):
Peter Woo Sik Kim Represented By Andrew S Bisom
Defendant(s):
Peter Kim Pro Se
Sharon Kim Pro Se
Joint Debtor(s):
Sharon Soyun Kim Represented By Andrew S Bisom
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Plaintiff(s):
Kang Family 2007 Revocable Trust Represented By
Edmond Richard McGuire
Trustee(s):
Weneta M Kosmala (TR) Represented By Lynda T Bui Rika Kido
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Adv#: 8:19-01205 Elieff et al v. Kurtin
Docket 174
- NONE LISTED -
March 18, 2021
Tentative Ruling re the Motion Amendment To Page 25, lines 9 and 10:
"Plaintiffs are entitled to judgment as a matter of law on their claims for relief to mandatorily subordinate the Kurtin Claim and the Kurtin Liens under § 510(b). Both the Kurtin Claim and the Kurtin Liens are subordinated by this relief because the term "claim" referenced in §510(b) includes both unsecured and secured, i.e., in rem lien rights to payment. 11 U.S.C. §§ 101(5) and 510(b); Johnson v. Home State Bank, 501 U.S. 78, 84, 111 S. Ct. 2150, 2154 (1991). Accordingly, pursuant to § 510(b), no payments will be made on account of the Kurtin Claim and Kurtin Liens until the claims of all other unsecured creditors have been paid in full in the Elieff, Morse and Camden cases, and after allowed interests as to Morse and Camden.
Although the Court finds that the Kurtin Claim and the Kurtin Liens are subject to mandatory subordination under 510(b), the Kurtin Liens are not avoided. "
In addition, the Court will delete the following statement that appears on pages 33 and 34 of the Ruling:
"Even though the bankruptcy case was converted to chapter 7 while the MSJ and the Reconsideration Motion remained pending, the
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expeditious resolution of the § 510(b) claims is important because the status of the Kurtin Claims and Liens will need to be resolved in the chapter 7 for distribution purposes."
The Court declines to make all other amendments requested by the parties.
Basis for the Tentative Ruling Background
Creditor Todd Kurtin moves to amend the Decision (defined below) under FRCP 52(b) and FRBP 7052; alternately, Kurtin requests an amended judgment pursuant to FRBP 9023 and FRCP 59(e) and Local Bankruptcy Rule 9013-4 (the "Amendment Motion")[dkt. 174], (the "Reply")[dkt. 197], and (the "Kurtin Opposition to Cross Motion")[dkt. 194](incorporated herein by reference in the Reply). Kurtin seeks to correct the Decision by adding the additional finding and conclusion in the Decision or in a separate final judgment on the Decision:
Although the Court finds that the Kurtin Claim is subject to mandatory subordination under § 510(b), the Kurtin Lien rights are not avoided
and retain lien priority notwithstanding subordination of the Kurtin Claim.
Amendment Motion, 6:20-27 (the "Kurtin Proposed Amendments"). Trustee opposes the Amendment Motion [dkt. 175] and has filed his own cross motion seeking to amend the Decision to include Trustee’s proposed language (the "Cross Motion")[dkt. 189]. Since the legal issues raised in the Amendment Motion are the identical legal issues raised in the Cross Motion, and because Kurtin has already requested that the Kurtin Opposition to Cross Motion be considered within the context of the Amendment Motion, the court will also take judicial notice of Trustee’s pleadings and arguments raised in the Cross Motion and Trustee’s Reply to the Kurtin Opposition to Cross Motion [dkt.
196] within the context of the Amendment Motion.
Facts
On January 26, 2021, the court entered its Memorandum of Decision
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and Order on: (1) Joint Motion for Summary Judgment on Claim for Mandatory Subordination of Claim Pursuant as to 11 U.S.C. §510(B)["the MSJ"], (2) Joint Motion For Reconsideration or, Alternatively, Entry of Partial Final Judgment Under FRCP 54(b) or Certification Under 28 U.S.C. §1292(B) [the "Reconsideration Motion"], (3) Post-Hearing Procedural Matters (the "Decision")[dkt. 167]. The court ruled to partially grant Trustee’s MSJ as to his mandatory subordination claim under § 510(b) and denied Trustee’s claim under § 510(c)(2). As for the Reconsideration Motion, the court denied Trustee’s request of the earlier dismissal of Trustee’s § 510(c)(2) claims with prejudice and for certification under 28 U.S.C. § 1292(b), but the court granted Trustee’s request for entry of partial final judgment under FRCP 54(b). Decision, 34-36. To date, no partial summary adjudication judgment based on the Decision has been entered.
Prior to entry of the Decision, but after the court had orally ruled to deny Trustee’s claims for relief related to § 510(c)(2) on August 13, 2020, Trustee voluntarily converted the case to chapter 7 and the conversion order was entered on September 10, 2020 [AP dkt. 158, 160][BK dkt. 863, 921].
The legal standard for relief under FRCP 52(b)
Under FRCP 52(b), made applicable herein by FRBP 7052, "On a party’s motion filed no later than 28 days after the entry of judgment, the court may amend its findings - or make additional findings - and may amend the judgment accordingly." FRBP 7052 reduces the 28 day period to 14 days after entry of judgment. The main purpose of Rule 52(b) is "to create a record upon which the appellate court may obtain the necessary understanding of the issues to be determined on appeal." See In re St. Marie Development Corp. of Montana, Inc., 334 B.R. 663, 675 n.3 (Bankr. D. Mont. 2005); see also 9C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2582 (3d ed. 2015). A motion to amend under Rule 52(b) may be used "to clarify essential findings or conclusions, correct errors of law or fact, or to present newly discovered evidence." 10 Collier on Bankruptcy ¶ 7052.03 (16th ed. 2015) (citing Wal-Mart Stores, Inc. v. El-Amin (In re El- Amin), 252 B.R. 652, 656 (Bankr. E.D. Va. 2000) (the purpose of the rule is to correct an "egregious error of law or fact, not the resubmission of
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unsuccessful arguments")) (additional citations omitted).
In this case, the issue currently raised in the Amendment Motion (and Cross Motion) of whether mandatory subordination of the Kurtin Claim under
§ 510(b) also subordinated the Kurtin Liens was raised in prior pleadings but the Decision did not squarely address it. See MSJ [dkt. 57], 20:27-21:2, Section III(D); Reply in Support of Reconsideration Motion [dkt. 144], 6:5-19. Accordingly, the court will amend the Decision to clarify an essential finding or conclusion regarding mandatory subordination under § 510(b) and the Kurtin Liens. See Decision, 25:5-10.
The Kurtin Liens were mandatorily subordinated under § 510(b)
Kurtin seeks to include the Kurtin Proposed Amendments to the Decision because: (1) the Decision only mandatorily subordinated Kurtin’s secured claims under 510(b), (2) the Decision did not avoid the Kurtin Liens or otherwise affect the validity or priority of said liens, (3) case conversion to chapter 7 on September 10, 2020 is a new fact that occurred after submission of the matter but before entry of the Decision, (4) in chapter 7, Trustee cannot may make distributions to creditors under § 726 from the collateral encumbered by the Kurtin Liens before the collateral is distributed to Kurtin as required by § 725 (also raising cash collateral issues), and (3) Trustee is taking the position that mandatory subordination of Kurtin’s claims includes mandatory subordination of the Kurtin Liens. Decision, 2:7-4:2 Trustee indeed takes the position that under § 510(b), the "subordination of a ‘claim’ (a defined term that includes secured claims) for ‘distribution purposes" necessarily subordinates the payment rights otherwise associated with the liens securing this claim. Trustee Opp’n to Amendment Mot., 5:15-17.
Trustee has also filed his own cross motion (the "Cross Motion")[dkt. 189] proposing to add his own language, the "Trustee’s Proposed Amendments" to the Decision in order to eliminate any ambiguity in the Decision upon which Kurtin is relying upon for his position regarding Kurtin’s distributional rights in the case. See Trustee Opp’n to Amendment Mot., 11-12.
The Bankruptcy Code distinguishes between a "claim" and a "lien") but the Supreme Court has interpreted "claim" to include liens
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The plain meaning of a statute should control in situations where there is no specific proof of contrary Congressional intent. See U.S. v. Ron Pair Enters., 489 U.S. 235, 242-43 (1989)("where, as here, the statute's language is plain, 'the sole function of the courts is to enforce it according to its terms."). The court’s interpretation of statutes is guided by certain interpretative canons. See Reply to Kurtin Opp’n to Cross Mot., 4-6. The court must assume that Congress "says in a statute what it means and means in a statute what it says there." Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253–54, 112 S.Ct. 1146, 1149 (1992). Court must also assume that "[w]here Congress knows how to say something but chooses not to, its silence is controlling." Animal Legal Def. Fund v. U.S. Dep't of Agric., 789 F.3d 1206, 1217 (11th Cir. 2015). Courts will also "ordinarily resist reading words or elements into a statute that do not appear on its face[.]" Bates v.
U.S., 522 U.S. 23, 29, 118 S. Ct. 285, 290 (1997). "[W]hen a statute omits a
specific matter from its coverage, the inclusion of such matter in another statute on a related subject demonstrates an intent to omit the matter from the coverage of the statute in which it is not mentioned." In re Burns, 291 B.R. 846, 851 (B.A.P. 9th Cir. 2003). "Interpretations that nullify statutory provisions or render them superfluous are, and should be, disfavored." Patagonia Corp. v. Bd. of Governors of Fed. Rsrv. Sys., 517 F.2d 803, 813 (9th Cir. 1975). Finally, "[i]t is well-established that when the statute’s language is plain, the sole function of the courts- at least where the disposition is not absurd- is to enforce it according to its terms." In re Del Biaggio, 834 F.3d 1003, 1010 (9th Cir. 2016).
Turning the plain language of the statute, as a preliminary matter, the terms "claims" and "liens" are defined terms in the Bankruptcy Code. Under § 101(5), the "term ‘claim’ means… right to payment, whether or not such right is reduced to judgment…secured, or unsecured[.]" The Code also defines the term "lien" to mean "charge against or interest in property to secure payment of a debtor or performance of an obligation. 11 U.S.C. § 101(37).
Indeed, the Code even defines "judicial lien" as a "lien obtained by judgment, levy, sequestration, or other legal or equitable process of proceeding." 11
U.S.C. § 101(36).
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With those definitions of "claims" and "liens" in mind, § 510(b) reads as follows:
For the purpose of distribution under this title, a claim arising from rescission of a purchase or sale of a security of the debtor or of an affiliate of the debtor, for damages arising from the purchase or sale of such a security, or for reimbursement or contribution allowed under section 502 on account of such a claim, shall be subordinated to all claims or interests that are senior to or equal the claim or interest represented by such security, except that if such security is common stock, such claim has the same priority as common stock.
11 U.S.C. § 510(b)(emphasis added).
The Court’s reading of § 510(b) is guided by the U.S. Supreme Court’s ruling in Johnson v. Home State Bank, 501 U.S. 78, 84, 111 S. Ct. 2150, 2154 (1991). This case was initially cited by Kurtin to support his contention that there is a distinction between "claims" and in rem lien rights. See Reply to Trustee Opp’n to Amendment Mot., 8. The Ninth Circuit BAP has summarized Johnson as follows:
Johnson held that the chapter 7 discharge extinguishes the debtor's personal liability for the underlying debt, but the creditor's rights under the mortgage or deed of trust against the collateral securing the debt survive and pass through bankruptcy…. In Johnson, the debtor had…received a chapter 7 discharge. The Supreme Court was confronted with the question of whether the secured creditor's lien rights survived the discharge and, if so, whether those lien rights constituted a "claim" that could be scheduled and adjusted in the debtor's subsequent chapter 13 bankruptcy case. Id. at 80-81. The Supreme Court held that the secured creditor's lien rights survived the chapter 7 discharge and that those lien rights constituted a "claim" for bankruptcy purposes that was subject to adjustment in the subsequent chapter 13. Id. at 84-87. In so holding, Johnson explained that the "bankruptcy discharge extinguishe[d] only one mode of enforcing a claim— namely, an action against the debtor in personam—while leaving intact
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another—namely, an action against the debtor in rem." Id. at 84.
In re Reilly, No. 3:18-BK-05319-DPC, 2020 WL 710371, at *5 (B.A.P. 9th Cir. Feb. 11, 2020).
Relevant to the instant matter, the Johnson court also made specific findings regarding liens and claims, concluding that "a mortgage interest [i.e., a lien] that survives the discharge of a debtor's personal liability is a "claim" within the meaning of § 101(5). Even after the debtor's personal obligations have been extinguished, the mortgage holder still retains a ‘right to payment’ in the form of its right to the proceeds from the sale of the debtor's property." Johnson, supra, at 84, 2150. The Supreme Court further explained that including liens against a debtor’s property, even if the debtor had no personal liability, within the term "claims" was fully consistent with the rest of the Bankruptcy Code and supported by the legislative background and history of the Code. Id. at 85-86, 2154-55.
Other courts have applied Johnson and found that an in rem right is a "claim." See In re Airadigm Commc'ns, Inc., 616 F.3d 642, 664 (7th Cir.
2010)(rejecting the argument that a lien is not a right to payment because, "The term ‘claim’ is defined broadly in the Bankruptcy Code. And under Johnson v. Home State Bank, a right that is purely in rem may give rise to a ‘right to payment.’"); In re Curtis Ctr. Ltd. P'ship, 192 B.R. 648, 662 (Bankr.
E.D. Pa. 1996)("The Court is persuaded that, as in Johnson, this right to enforce an obligation against property of the estate [only] amounts to a claim as that term is used in the Bankruptcy Code."); In re Derrick, 190 B.R. 346, 356 (Bankr. W.D. Wis. 1995)("While Johnson dealt with a mortgage rather than a judgment lien, it relied upon the definition of "claim" found in 11 U.S.C.
§ 101(5), which provides that a "claim" is a "right to payment" or a "right to an equitable remedy for breach of performance." The court noted that the mortgage holder retained a "right to payment" in the form of its right to the proceeds from the sale of the debtor's property. Id. Similarly, the creditor's right to foreclose may be viewed as a "right to an equitable remedy." Id. By the same definition, a judgment lien is a claim."); see also In re PPI Enterprises (U.S.), Inc., 324 F.3d 197, 203 (3d Cir. 2003)(citing Johnson for the proposition that, "Under § 101(5), a "claim" refers broadly to a creditor's
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right to recovery."); In re Orange Cty. Nursery, Inc., 439 B.R. 144, 149 (C.D. Cal. 2010)(citing to Johnson and finding that, when defining the term "claim" in the Code, "Congress intended to adopt the broadest available definition of claim.").
In short, while Kurtin’s position is that the definition of a "claim" is not relevant because Kurtin’s lien rights are in rem rights, see Reply to Trustee Opp’n to Amendment Mot., 7:9-9:8, in Johnson, the Supreme Court ruled that an in rem lien right is a "claim" within the meaning of § 101(5). The Court, therefore, interprets the term "claim" in § 510(b) to include in rem lien rights and will amend the Decision to clarify that both the Kurtin Claim and the Kurtin Liens were mandatorily subordinated under § 510(b). The court is also mindful of Kurtin’s argument, relying on Law v. Siegel, 571 U.S. 415, 421, 134
S. Ct. 1188 (2014), that the court may not create equitable remedies when those remedies contradict the express mandates of the Code. See Reply to Opp’n to Amend Mot., 6:6-18. Subordinating the Kurtin Liens under § 510(b) is not creating a new remedy, however, but simply applying the Supreme Court’s definition of the term "claim" in Johnson to the facts of this case.
The Argument Under § 725 Section 725 provides that:
After the commencement of a case under this chapter, but before final distribution of property of the estate under section 726 of this title, the trustee, after notice and a hearing, shall dispose of any property in which an entity other than the estate has an interest, such as a lien, and that has not been disposed of under another section of this title.
11 U.S.C. § 725 (emphasis added).
The Court agrees with the position of Trustee that:
Section 725 requires a Chapter 7 trustee to ‘dispose’ or sell all encumbered property owned by the estate before the trustee makes a final distribution. The mandate in this statute merely accommodates the obvious: The need to sell encumbered property before a final
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distribution is made Section 725 does not require a trustee to
accept the validity or priority of the liens encumbering property of the estate. Nor does it vitiate the powers vested in the trustee by Article V of the Bankruptcy Code, and in particular, the power to subordinate claims provided for in Section 510(b)." See Cross Mot. at 11:13-20.
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson Robert P Goe
Defendant(s):
Todd Kurtin Represented By
Lewis R Landau Edward O Morales
Plaintiff(s):
Bruce Elieff Pro Se
Morse Properties, LLC Pro Se
4627 Camden, LLC Pro Se
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe Claire K Wu
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Adv#: 8:19-01205 Elieff et al v. Kurtin
Docket 189
- NONE LISTED -
March 18, 2021
Deny motion as moot in light of ruling re the Kurtin Motion re Amendment
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson Robert P Goe
Defendant(s):
Todd Kurtin Represented By
Lewis R Landau Edward O Morales
Plaintiff(s):
Bruce Elieff Pro Se
Morse Properties, LLC Pro Se
4627 Camden, LLC Pro Se
2:00 PM
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe Claire K Wu
10:00 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for Judge Erithe A. Smith’s Cases" on the Court's website at:
10:00 AM
https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
NONE LISTED -
10:00 AM
Docket 19
NONE LISTED -
March 23, 2021
The court is inclined to grant the Motion, however, service to the utility companies appears to be improper. If so, the hearing re the Motion will be continued to April 1, 2021 at 10:00 a.m., with notice by overnight to be made no later than March 24, 2021; opposition by March 30, 2021 and reply presented orally at the hearing.
Basis for Tentative Ruling:
Service to the utility companies was not made in accordance with FRBP 7004(b)(3) as required by FRBP 9014 for contested matter such as this. It appears that the utility companies were served at post office boxes, presumably the place where payments are made. Service pursuant to 7004(b)(3) must be made to the attention of an officer, managing or general agent, or to any other agent authorized by appointment or by law to accept service of process.
Debtor(s):
The Source Hotel, LLC Represented By Ron Bender Juliet Y Oh
10:00 AM
Docket 21
NONE LISTED -
March 23, 2021
Grant the motion with the modifications set forth in the Reply and with the order language proposed by Shady Bird. Final hearing: May 6, 2021 at 10:30
a.m. Supplemental pleadings by Debtor, if any, must be filed by Apri 15, 2021; any response by April 22, 2021 and and reply by April 29, 2021.
Debtor(s):
The Source Hotel, LLC Represented By Ron Bender Juliet Y Oh
2:00 PM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
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To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
Parties in interest and members of the public may connect to the video
2:00 PM
and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone).
Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
2:00 PM
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
2:00 PM
Adv#: 8:18-01015 Speier v. SunCal Management LLC et al
FR: 1-28-21; 3-11-21
Docket 496
OFF CALENDAR: In light of the Court’s intent to issue written rulings in lieu of oral rulings, all hearings on the 2:00 pm calendar regarding oral rulings are off calendar - sb/td (3/30/2021)
January 28, 2021
The following tentative ruling applies to matters 1, 3, 5 and 7 on today's Calendar:
The parties will be allowed to present oral argument regarding the Motion for Partial Summary Adjudication ("Main Motion") and the Motion to Strike the Singer Report ("Motion to Strike") as follows:
Defendants will be allowed up to 30 minutes to address both the Main Motion and the Motion to Strike. Plaintiff will then be allowed up to 30 minutes to respond. Defendants will be allowed up to 15 minutes to reply.
The parties should assume that the Court has read the pleadings and use oral argument to highlight key points.
At the conclusion of the oral argument, the matter will be taken under
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submission and a hearing on the Court's oral ruling will be set for March 11, 2021 at 2:00 p.m.. It is possible that a written ruling may be issued prior to March 11, 2021, in which case the parties will be notified. (XX)
Additional Comments:
Plaintiff to address the issue of fraudulent transfer (either actual or constructive) as to Argent. Notably, the court previously denied the parties’ cross motions for summary judgment on the alter ego and successor liability claims [AP dkt. 451 and 458]. To the extent that SCM is found liable for any fraudulent transfer claims, the court’s granting of partial adjudication as to Argent would not impact Argent’s potential liability under Plaintiff’s yet to be adjudicated alter ego and successor liability claims.
March 11, 2021 (Updated)
Continue this hearing to March 30, 2021 at 2:00 p.m. on the court's own motion. (XX)
Reason for Tentative Ruling:
The court requires additional time to review and analyze the pleadings, caselaw and evidentiary objections.
March 30, 2021 (Updated)
Special Note: The written ruling in lieu of today's Oral Ruling has not yet been posted for this adversary. However, the court's written is substantively identical to the the ruling for #2 on today's calendar re SunCal Torrance, which has been posted. See ruling for #2.
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
2:00 PM
Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Tara Castro Narayanan
Defendant(s):
SunCal Management LLC Represented By Craig H Averch Aalok Sharma
Argent Management, LLC Represented By Craig H Averch Aalok Sharma
Plaintiff(s):
Steven M Speier Represented By Mike D Neue
Gary A Pemberton Brianna L Frazier Shane M Biornstad
2:00 PM
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall Robert P Goe
2:00 PM
Adv#: 8:18-01021 Speier v. SunCal Management LLC et al
FR: 1-28-21; 3-11-21
Docket 443
OFF CALENDAR: In light of the Court’s intent to issue written rulings in lieu of oral rulings, all hearings on the 2:00 pm calendar regarding oral rulings are off calendar - sb/td (3/30/2021)
January 28, 2021
The following tentative ruling applies to matters 1, 3, 5 and 7 on today's Calendar:
The parties will be allowed to present oral argument regarding the Motion for Partial Summary Adjudication ("Main Motion") and the Motion to Strike the Singer Report ("Motion to Strike") as follows:
Defendants will be allowed up to 30 minutes to address both the Main Motion and the Motion to Strike. Plaintiff will then be allowed up to 30 minutes to respond. Defendants will be allowed up to 15 minutes to reply.
The parties should assume that the Court has read the pleadings and use oral argument to highlight key points.
At the conclusion of the oral argument, the matter will be taken under
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submission and a hearing on the Court's oral ruling will be set for March 11, 2021 at 2:00 p.m.. It is possible that a written ruling may be issued prior to March 11, 2021, in which case the parties will be notified. (XX)
Additional Comments:
Plaintiff to address the issue of fraudulent transfer (either actual or constructive) as to Argent. Notably, the court previously denied the parties’ cross motions for summary judgment on the alter ego and successor liability claims [AP dkt. 451 and 458]. To the extent that SCM is found liable for any fraudulent transfer claims, the court’s granting of partial adjudication as to Argent would not impact Argent’s potential liability under Plaintiff’s yet to be adjudicated alter ego and successor liability claims.
March 11, 2021 (Updated)
Continue this hearing to March 30, 2021 at 2:00 p.m. on the court's own motion. (XX)
Reason for Tentative Ruling:
The court requires additional time to review and analyze the pleadings, caselaw and evidentiary objections.
March 30, 2021
Written Ruling in Lieu of Oral Ruling is set forth below:
RULING:
Grant the Motion as to Third and Fourth Claims for relief for constructive fraudulent transfer claims under state and federal law.
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Partially grant the Motion as First Claim for Relief for intentional fraudulent transfer under state law and find that the reasonably
equivalent value prong of the CC § 3439.08 statutory defense against CC § 3439.04(a)(1) has been satisfied.
Deny the Motion as to the Second Claim for Relief for intentional fraudulent transfer claim under 11 U.S.C. § 548
Background
An involuntary petition was filed against SunCal Torrance Properties, LLC ("Debtor") on November 14, 2008, case no. 08-17472. The order for relief was entered on January 6, 2009 and plaintiff, Steven M. Spier ("Trustee" or "Plaintiff") was appointed chapter 11 trustee and subsequently was later appointed to be the liquidating trustee under the confirmed joint chapter 11 plans.
Trustee filed the complaint against SunCal Management, LLC ("SCM") and Argent Management, LLC ("Argent")(collectively, "Defendants") on May 1, 2012, giving rise to the instant adversary proceeding. Trustee filed a total of twelve adversary proceedings against Defendants. In all 12 of those related adversary proceedings, Trustee seeks the return of management fees paid by the debtors to SCM during the four years preceding their bankruptcies (2004 and 2008). The second amended complaint ("SAC") was filed on May 14, 2014. The court subsequently partially granted Defendants’ motion to dismiss and dismissed without leave to amended Trustee’s causes of action seeking to recover expenses paid prior to May 2008 as being barred by the applicable 4-year status of limitations [AP dkt. 116]. Defendants filed their answers on December 5, 2014.
On May 31, 2016, the order denying SCM’s motion for partial summary adjudication finding that res judicata did not bar the claims for relief alleged by Trustee in the SAC was entered. The motion for reconsideration was also denied [AP dkt. 305]. The Adversary Proceeding was transferred to Judge Geraldine Mund on September 12, 2016. The case was transferred back to Judge Erithe Smith on January 29, 2018.
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On June 1, 2018, pursuant to the parties’ court approved joint stipulation, Plaintiff filed his third amended complaint (the "TAC") alleging claims for relief to avoid and recover fraudulent transfers and preferences only. Per the order approving the joint stipulation, Defendants’ answers to the SAC were deemed to be their answer to the TAC [dkt. 325]. The court subsequently denied the parties’ cross motions for summary judgment on the alter ego and successor liability claims [AP dkt. 403, 408]. The order granting Plaintiff’s motion for partial summary adjudication that SCM was Debtor’s statutory and non-statutory insider was entered on June 17, 2020 [AP 436, 437].
Defendants now move for summary adjudication on Plaintiff’s actual and constructive fraudulent transfer claims in the TAC alleged under both federal and state law which seek to recover amounts paid (the "Payments") by Debtor to SCM during the four years preceding Debtor’s bankruptcy filed on November 14, 2008 (the "Motion")[AP dkt. 443] and (the "Reply")[AP dkt. 469]. Plaintiff opposes the Motion (the "Opposition") [AP dkt. 449].
Summary Judgment Standard
A party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine issue of material fact, and establishing that it is entitled to judgment as a matter of law as to those matters upon which it has the burden of proof. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). The opposing party must make an affirmative showing on all matters placed in issue by the motion as to which it has the burden of proof at trial. Id. at 324. The substantive law will identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Id. A factual dispute is genuine where the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. The court must view the evidence presented on the motion in the light most favorable to the opposing party. Id.
In ruling on a summary judgment motion, the court should never weigh
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the evidence. Anderson, 477 U.S. at 255. Instead, the Court’s role is to assess whether a genuine dispute exists as to the material facts requiring a trial. Id. at 249. In conducting this assessment, "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Tolan v. Cotton, 572 U.S. 650, 651 (2014). Furthermore, where intent is at issue, summary judgment is seldom granted. See Provenz v.
Miller, 102 F.3d 1478, 1489 (9th Cir. 1996), cert. denied, 118 S. Ct. 48
(1997).
The Motion is partially granted as to Argent
In the SAC, Plaintiff seeks to recover the Payments from Defendants based on intentional and constructive fraudulent transfers under state and federal law. See SAC, 19-21, ¶¶91-108. The alleged Payments occurred in the 2 and 4 years preceding Debtor’s bankruptcy filed in November 2008.
See id. Plaintiff admits, however, that defendant Argent was not formed until 2009. See SAC, 10, ¶54; Argent Answer, 9, ¶54. As such, Plaintiff’s direct constructive and intentional fraudulent transfer claims against Argent are dismissed because Plaintiff has presented no evidence in opposition to the Motion that Argent (who did not exist during the relevant time periods as admitted by Plaintiff) directly received any Payments.
Notably, the court previously denied the parties’ cross motions for summary judgment on the alter ego and successor liability claims [AP dkt. 451, 458]. To the extent that SCM is found liable for any fraudulent transfer claims, the court’s dismissal of the direct fraudulent transfer claims against Argent does not impact Argent’s potential liability under Plaintiff’s yet to be adjudicated alter ego and successor liability claims. See SAC, ¶¶ 99, 108, 118, 126.
The Motion is granted as to Plaintiff’s Constructive Fraudulent Transfer Claims
Federal law
In the Fourth Claim for Relief, Plaintiff seeks recovery of the Payments made within 2 years of the petition date as constructive fraudulent transfers
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under § 548(a)(1)(B). See TAC, ¶¶ 94-100. The trustee may avoid constructively fraudulent transfers of debtor’s interest in property made within 2 years of the petition date under § 548(a)(1)(B). "A transfer is a constructive fraudulent transfer if the debtor receives less than reasonably equivalent value in exchange for the transfer, and the transfer is made while the debtor is in financial distress. In re Fink, 217 B.R. 614, 618–19 (Bankr. C.D. Cal.
1997).
As summarized by in Fink:
There are three kinds of financial distress that may make a transaction a constructive fraudulent transfer: (a) the debtor is insolvent, or the transfer renders the debtor insolvent; (b) the transfer leaves the debtor undercapitalized or nearly insolvent (i.e., with insufficient assets to carry on its business); (c) the debtor intends to incur debts beyond its ability to pay.
Constructive fraudulent transfer law applies without regard to intent (except the intent to incur debts in the last alternative)… The elements of a cause of action for constructive fraudulent transfer by an insolvent under section 548(a) are as follows: the debtor (1) made a transfer or incurred an obligation, (2) without receiving a reasonably equivalent value in exchange, (3) while insolvent, and (4) within [two years] year before the date of the filing of the bankruptcy petition.
Fink, 217 B.R. at 618–19 (citations omitted); 11 U.S.C. § 548(a)(1).
The Bankruptcy Code defines insolvent as a "financial condition such that the sum of the entity’s debts is greater than all such entity’s property, at a fair valuation, exclusive of" certain property transferred, concealed or removed or exempt property. 11 U.S.C. § 101(32). A transfer is defined as "each mode, direct and indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with—(i) property; or (ii) an interest in property." 11 U.S.C. § 101(54)(D). The trustee "has the burden of proving the elements of a fraudulent transfer by a preponderance of the evidence." In re 3dfx Interactive, Inc., 389 B.R. 842, 863 (Bankr. N.D. Cal. 2008), subsequently aff'd sub nom. In re 3DFX Interactive, Inc., 585 F. App'x 626
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(9th Cir. 2014).
The Payments were for reasonable equivalent value as a matter of law
Defendants first argument is that the Payments, as a matter of law, cannot be deemed to be constructively fraudulent because the Payments were for reasonably equivalent value since the Payments discharged Debtor’s obligations under the Development Management Agreement ("DMA") entered into between Debtor and SCM, and the loan agreement between Debtor and Lehman (as defined in the Motion) entered into in November 2006 (the "Loan Agreement"). UF 21, 23, 31; Mot., 16-20. The DMA set the amount of management fees paid to SCM based as 3% of the estimated final sale price of Debtor’s undeveloped parcel of land (the "Project"), 1% for sales management, and 100% reimbursement of expenses incurred by SCM. UF 27-29.
According to the report prepared by Plaintiff’s expert witness, Neal Singer (the "Singer Report"), the total amounts paid to SCM between December 2006 to September 2008 was $961,686 for management fees,
$27,315 for site supervision, $51,521 for staff payroll, and $36,286 staff marketing. Pl. Appendix of Evid., Ex. 1, p. 9 (Neal Singer Report); GI 6-8, p. 62 (Fact Creating Disputed Issues). Plaintiff alleges that Debtor overpaid SCM by $766,686. GI 26, p. 64 (Fact Creating Disputed Issues).
Defendants rely on In re Fitness Holdings Int’l, Inc., 714 F.3d 1141, 1145-1146 (9th Cir. 2013) which states that:
[T]o the extent a transfer is made in satisfaction of a "claim" (i.e., a "right to payment"), that transfer is made for "reasonably equivalent value" for purposes of § 548(a)(1)(B)(i). And a determination that a transfer was made for "reasonably equivalent value" precludes a determination that it was constructively fraudulent under § 548(a)(1)(B).
Before making a ruling that repayment of a debt constituted a transfer for reasonably equivalent value though "the court must determine whether the purported ‘debt’ constituted a right to payment under state law" and if it did not, "the court may recharacterize the debtor's obligation to the transferee
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under state law principles." Id. at 1147.
Unlike the SunCal Oak Knoll, LLC, adversary proceeding no.
18-01015, Judge Mund made no findings or ruling regarding Plaintiff’s original breach of contract claim in this adversary proceeding and Plaintiff subsequently amended the complaint to delete the breach of contract claim for relief. Nonetheless, because the facts of the SunCal Oak Knoll case are almost identical, this court incorporates and adopts Judge Mund’s analysis concerning the validity of the DMA in SunCal Oak Knoll as applicable to the DMA involving Debtor in this adversary proceeding. See Mot., p. 10:7-22; August 2, 2017 Memorandum of Decision Granting Defendants’ Motion for Summary Judgment in Part and Continuing Hearing ("August 2017 Memorandum of Decision")[18-01015, AP dkt. 342]. In the August 2017 Memorandum of Decision, Judge Mund explained that SunCal Oak Knoll, LLC breached the DMA first by failing to pay the management fees and expenses when Lehman filed for bankruptcy in September 2008. UF 77-78; 2017 Aug. 2017 Mem. of Decision, 23:24-28. This finding necessarily implies that, before the breach, the DMA was a valid contract and there were continuing obligations to pay the management fees and expenses, i.e., a right to payment in favor of SCM. See Reply, 9:1-25. Because the Payments were made in satisfaction of a claim, the DMA, the Payments were for reasonably equivalent value as a matter of law. See Fitness Holdings, 714 F.3d at 1145-1146. The same reasoning applies here with respect to payments made by Debtor pursuant to the DMA.
Plaintiff’s responsive arguments against Defendants’ position are not persuasive. First, Plaintiff argues that the court should find a genuine dispute exists as to whether the Payments satisfied an antecedent debtor because Defendants also allege that the Payments were for "new value" in a "contemporaneous exchange." Opp’n, 37:9-19. Plaintiff’s argument misses the mark because these two affirmative defenses were unambiguously pled as affirmative defenses to the preference claim for relief -- not the constructive fraudulent claims for relief. Reply, 8:9-15; GI (Facts Creating Dispute) 70-72.
Plaintiff’s second argument against finding that the Payments paid under the DMA were not for reasonably equivalent value is that there is an
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exception to the rule that payments made on account of an antecedent debt are reasonably equivalent value. Relying on In re Sw. Supermarkets, LLC, 325 B.R. 417, 430-31 (Bankr. D. Ariz. 2005), Plaintiff argues that the exception exists when there are other badges of fraud present, such as an insider relationship between the debtor and the payee. Plaintiff further argues that the exception is applicable to the instant case because the court, in its June 17, 2020 order, has already found that SCM was an insider of Debtor and that SCM dominated and controlled Debtor, so the Payments were not made at arms-length. Opp’n, 37:24-39:24. Supermarkets is not binding on this court and was issued years before the Ninth Circuit’s decision in Fitness Holdings case, and the other cases cited by Plaintiff are also not persuasive.
Opp’n, 28:28-39:6; Reply 11:2-12:20. The only binding authority cited by the parties, Fitness Holdings, makes no mention of an exception to the rule that payments made on account of an antecedent debt are reasonably equivalent value- an important omission given the facts of that case involved the payment of almost $12 million to the debtor’s sole shareholder- an insider- on account of promissory notes which the chapter 7 trustee was seeking to recover as constructively fraudulent. Id. at 1143-44; Reply 11:15-20.
Plaintiff next argues that a material dispute as to whether there was "true up" provision that required SCM to return fees to Debtor if the estimated gross sale price of the Project upon which the fees were based upon was too high in light of the actual final price of the Project. Opp’n, 39:25-40:14. There is no question that the DMA does not contain a "true-up provision," the Oak Knoll court also came to the same conclusion, and Plaintiff does not point to any specific provision in the DMA for such "true-up provision." See Bruce Cook Decl., Ex. 6 (the DMA); Opp’n, 17-18; Aug. 2017 Mem. of Decision [AP dkt. 342 in 18-01015], 22:6-7. Plaintiff’s reliance on Lehman’s contentions in pleadings is unpersuasive because Plaintiff has not provided any legal authority that Lehman’s arguments in its pleadings can somehow be imputed to Defendants as some type of admission. See GI 41-42 (Facts Creating Dispute). And Plaintiff’s reliance on the testimony of Tom Rollins and Ed Nolan to establish a genuine dispute on whether a "true up" provision in the DMA is faulty for two reasons. See GI 44 (Facts Creating Dispute). First, Rollins and Nolan’s "understanding" of how to interpret the DMAs does not override the plain language of the DMA. Second, Nolan’s testimony actually
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supports Defendant’s position, and the plain language of the DMA, that any "true up" provision would occur when the Project was finally sold. And Rollins testimony, viewing it most favorably for Plaintiff, establishes that management fees could be adjusted based on revised sale projections at any time, but the testimony certainly does not establish that Defendants were required to periodically adjust the sale projections, which would result in revised management fee amounts. See GI 44 (Facts Creating Dispute). During oral argument, Plaintiff’s counsel could not point to any specific provision requiring periodic adjustments to the sale projections either.
In her August 2017 ruling in the Oak Knoll adversary proceeding concerning Plaintiff’s breach of contract claim, Judge Mund found that any "true up" provision contained in the Grandparent Operating Agreement (as defined in the summary judgment motion) was not applicable because the Oak Knoll debtor breached the DMA in 2008, prior to the Project being sold to Lehman in 2012 and, further, the Project was not sold as a fully-built-out which could have triggered any "true up" provision. Aug. 2017 Mem. of Decision in 18-01021, 6:27-8:9. This reasoning also applies to the instant case because, like Oak Knoll, Debtor also failed to pay certain management fees and the Project was never sold as fully built-out Project. Accordingly, any true-up requirement was never triggered as a matter of law. See Reply 15:2-15.
For the above reasons, Defendants have demonstrated that there is no genuine dispute of material fact that the Payments were paid according to the terms of the DMA which were a continuing obligation of Debtor (i.e., SCM’s right to payment from Debtor) until Debtor breached the DMA in 2008 by failing to pay the Management fees. There is also no "true-up" provision in the DMA that was "triggered" because Debtor’s breached the DMA and the Project was never sold as fully-built-out. Viewing the evidence in the light most favorable to Plaintiff, under the Ninth Circuit’s binding authority of Fitness Holdings, Defendants are entitled to partial summary adjudication as a matter of law because Plaintiff cannot carry his burden to demonstrate that the Payments to Defendants were for less than reasonably equivalent value by a preponderance of the evidence. Stated otherwise, because the Payments were paid to satisfy Debtor’s obligations under the DMA- a claim against Debtor- the Payments cannot be constructively fraudulent under
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Fitness Holdings. In so holding, the court need not consider Defendants’ alternative argument regarding the substance of the Singer Report.
State law
In the Third Claim for Relief, Plaintiff seeks recovery of the Payments made within 4 years of the petition date as constructive fraudulent transfers under § 544(b) and California Civil Code ("CC") §§ 3439.04(a)(2), 3439.05 and 3439.07. See TAC, ¶¶84-93. The "strong-arm" powers under § 544(b) allow a trustee to utilize remedies available to creditors under state law.
California’s Uniform Fraudulent Transfer Act (in effect for transfers occurring before 2016) under CC § 3439 et seq. provides such a remedy. Under CC § 3439.04(a)(2), a transfer is constructively fraudulent as to a creditor whose claim arose before the transfer if the transfer was made without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor’s remaining assets are unreasonably small or the debtor intended to incur debts beyond his or her ability to repay. Under CC § 3439.05, "A transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation." Section 3439 mirrors the Bankruptcy Code and defines a "transfer" as "every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease, license, and creation of a lien or other encumbrance." Civ. Code § 3439.01(l). The trustee "has the burden of proving the elements of a fraudulent transfer by a preponderance of the evidence." In re 3dfx Interactive, Inc., 389 B.R. 842, 863 (Bankr. N.D. Cal. 2008), subsequently aff'd sub nom. In re 3DFX Interactive, Inc., 585 F. App'x 626 (9th Cir. 2014).
Though the Ninth Circuit in Fitness Holdings only analyzed reasonably equivalent value under § 548(a)(1)(B), this court finds that the reasoning applies with equal force to claims for relief brought under CC§ 3439. Under CC § 3439.03, "value is given for a transfer or obligation if, in exchange for
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the transfer or obligation, property is transferred or an antecedent debt is secured or satisfied . . . ." (emphasis added). Consistent with the ruling in Fitness, value was given within the meaning of CC § 3439.03 because he Payments satisfied an antecedent debt under the DMA. Accordingly, the court finds and concludes that the Payments were made for reasonably equivalent value as a matter of law under CC § 3439 as well.
The Motion is Denied as to Plaintiff’s Intentional Fraudulent Transfer Claim for Relief
Federal law
In the SAC, in the Fourth Claim for Relief, Plaintiff seeks recovery of the Payments made within 2 years of the petition date as intentional fraudulent transfers under § 548(a)(1)(A). See SAC, 20-21. Under 11 U.S.C.
§ 548(a)(1), a trustee may avoid transfers made with "actual intent to hinder, delay, or defraud" creditors made "within 2 years before the date of the filing of the petition." The Code in § 101(54)(D) defines "transfers" as "each mode, direct and indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with—(i) property; or (ii) an interest in property." The necessary intent to "hinder, delay or defraud" creditors" may be inferred based on the traditional "badges of fraud". See In re Acequia, Inc., 34 F.3d 800, 805-06 (9th Cir. 1994)("[C]ourts applying...§ 548(a)(1) frequently infer fraudulent intent from the circumstances surrounding the transfer, taking particular note of certain recognized indicia or badges of fraud.").
The Ninth Circuit recognizes "actual or threatened litigation against the debtor," "insolvency or other unmanageable indebtedness on the part of the debtor" and "a special relationship between the debtor and the transferee" as three of the "more common circumstantial indicia of fraudulent intent." Id. at 806. A transferee’s fraudulent intent may be imputed to the transferor if the transferee controls the debtor’s disposition of the transferred property. See In re Brobeck, Phleger & Harrison LLP, 408 B.R. 318, 339 (Bankr. N.D. Cal.
2009). Given the subject nature of intent, actual fraudulent intent is a question of fact. Id. at 340. The trustee "has the burden of proving the elements of a fraudulent transfer by a preponderance of the evidence." In re 3dfx Interactive, Inc., 389 B.R. 842, 863 (Bankr. N.D. Cal. 2008),
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subsequently aff'd sub nom. In re 3DFX Interactive, Inc., 585 F. App'x 626 (9th Cir. 2014).
In this case, the fact that Plaintiff has not demonstrated a triable issue of material fact that the Payments were for less than reasonably equivalent value is not fatal to Plaintiff’s intentional fraudulent transfer claims under § 548(a)(1)(A). "Unlike constructively fraudulent transfers, the adequacy or equivalence of consideration provided for the actually fraudulent transfer is not material to the question whether the transfer is actually fraudulent… Conversely, the transferor's intent is immaterial to the constructively fraudulent transfer in which the issue is the equivalence of the consideration coupled with either insolvency, or inadequacy of remaining capital, or inability to pay debts as they mature." In re Cohen, 199 B.R. 709, 717 (B.A.P. 9th Cir. 1996).
Turning to other badges of fraud, there continues to be disputed issues of material fact. For example, Defendants presented evidence of the projected appraised value of the Project that exceeds Debtor’s liabilities, but Plaintiff has submitted rebuttal evidence in the form of Howard Grobstein’s expert witness report (to which Defendants have not moved to strike) opining that Debtor was insolvent and the declaratory testimony of certain principals of Debtor, SCM, and D.E. Shaw (a creditor of Debtor) that Debtor stopped paying its debts as they became due. Cf. Mot., 33; Opp’n, 18-19.
The court has also previously found that SCM was an insider of Debtor, and though the court did not find that SCM "dominated and controlled" Debtor, the court did find that SC substantially operated all of Debtor’s business, was the managing agent of Debtor, controlled Debtor’s day-to-day operations, and processed the underlying Payments to itself, notwithstanding Lehman’s control over the Project, on Debtor’s behalf. See Exhibit 1 to Order Granting In Part And Denying In Part The Trustee's Motion For Partial Summary Adjudication That SunCal Management, LLC Was An Insider Of The Debtor Lodged On June 5, 2020 [AP dkt. 486], 0019-25. And while Defendants’ did not conceal the Payments (concealment being another badge of fraud), the court has also previously found that the Payments were not made at arms-length due to SCM’s control over the payment process.
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See id. at 0025; see Mot., 31; Opp’n, 20:89; GI 78.
Plaintiff has presented rebuttal evidence that raises questions of disputed facts regarding badges of fraud other than lack of reasonably equivalent value. The court is required to believe Plaintiff’s evidence and all justifiable inferences drawn in Plaintiff’s favor. See Tolan v. Cotton, 572 U.S. 650, 651 (2014). And the court cannot weigh the evidence against each other.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The court therefore finds that disputed facts remain regarding the badges of fraud that could cumulatively demonstrate fraudulent intent at trial, so Defendants have not established that Defendants are entitled to partial summary adjudication in Defendants’ favor. Where intent is at issue, summary judgment is seldom granted. See Provenz v. Miller, 102 F.3d 1478, 1489 (9th Cir. 1996), cert.
denied, 118 S. Ct. 48 (1997).
State law
In the SAC, in the Third Claim for Relief, Plaintiff seeks recovery of the Payments made within 4 years of the petition date as intentional fraudulent transfers under § 544 and CC §§ 3439.04(a)(1) and 3439.07. See SAC,
21-22. Under CC § 3439.04(a)(1), Trustee may avoid transfers made with "actual intent to hinder, delay, or defraud" creditors. The necessary intent to "hinder, delay or defraud" creditors" may be inferred from the traditional "badges of fraud." See Attebury Grain Ltd. Liab. Co. v. Grayn Co., 721 F. App'x 669, 671 (9th Cir. 2018)("Under California law, a transaction may be voided if a debtor makes a transfer with the intent to "hinder, delay, or defraud" its creditors... This intent can be inferred based on consideration of the statute's non-exhaustive list of eleven badges of fraud."); Civ. Code § 3439.04(b). A creditor seeking to avoid a fraudulent transfer under Civil Code
§ 3439.04(a) bears the "burden of proving the elements of the claim for relief by a preponderance of the evidence." CC § 3439.04(c); In re 3dfx Interactive, Inc., 389 B.R. 842, 863 (Bankr. N.D. Cal. 2008), subsequently aff'd sub nom. In re 3DFX Interactive, Inc., 585 F. App'x 626 (9th Cir. 2014).
CC § 3439.04(b)(1)-(11) sets forth a nonexclusive, eleven-factor test for determining whether a transfer was made with an actual intent to hinder, delay, or defraud a creditor. Consideration maybe given, among other
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factors, to any or all of the following badges of fraud: (1) The transfer or obligation was to an insider or other person with a special relationship with the debtor; (2) The debtor retained possession or control over the property after the transfer; (3) The transfer was not disclosed; (4) Actual or threatened litigation against the debtor at the time of the transfer; (5) The transfer included all or substantially all of the debtor’s assets; (6) The debtor absconded; (7) The debtor removed or concealed assets; (8) The value of the consideration received by the debtor was not reasonably equivalent to the value of the asset transfer; (9) Insolvency or other unmanageable indebtedness on the part of the debtor; (10) The transfer occurred shortly after a substantial debt was incurred; and (11) Whether the debtor transferred the essential assets of the business to a lienholder who transferred the assets to an insider of the debtor. Id.
CC § 3439.08 states that, "A transfer or an obligation is not voidable under paragraph (1) of subdivision (a) of Section 3439.04, against a person who took in good faith and for a reasonably equivalent value or against any subsequent transferee or obligee." Thus, good faith and reasonably equivalent value is a statutory defense to intentional fraudulent transfer claims under CC § 3439.04(a)(1):
Civil Code section 3439.08, subdivision (a) provides a defense to an action based on section 3439.04, subdivision (a). Section 3439.08, subdivision (a) states that "[a] transfer or an obligation is not voidable under subdivision (a) of Section 3439.04, against a person who took in good faith and for a reasonably equivalent value " Thus,
a showing of good faith and reasonably equivalent value is all that is required to defeat a creditor's action based on section 3439.04, subdivision (a).
Annod Corp. v. Hamilton & Samuels, 100 Cal. App. 4th 1286, 1294 (2002).
Here, while not explicitly citing to the CC § 3439.08(a), the court deems Defendants to be requesting such relief based on Defendants’ citation to Annod while making arguments regarding reasonably equivalent value. See Mot., p. 31:1-16. As discussed above, viewing the undisputed facts in the light most favorable to Plaintiff, Defendants have demonstrated that the
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Payments were made for reasonably equivalent value by a preponderance of the evidence. Thus, the reasonably equivalent value prong of CC § 3439.08(a) has been satisfied and Defendants are entitled to partial summary adjudication on that element of CC § 3439.08(a).
Defendant has not established, however, the second prong of the CC § 3439.08(a) statutory defense to actual fraudulent intent transfer- good faith. For the same reasons discussed above, disputed facts regarding
several badges of fraud, i.e., fraudulent intent, remains, so Defendants have not demonstrated that they are entitled to partial summary adjudication on the good faith prong of their statutory defense, or on the issue of fraudulent intent overall. The court is required to believe Plaintiff’s evidence and all justifiable inferences drawn in Plaintiff’s favor. See Tolan v. Cotton, 572 U.S. 650, 651 (2014). And the court cannot weigh the evidence against each other.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). As a result, Defendants have not established that Defendants are entitled to partial summary adjudication on the CC § 3439.08(a) defense, and as a result, Defendants are not entitled to partial summary adjudication of Plaintiff’s actual fraudulent transfer claim for relief under state law.
Conclusion
The Motion is granted as to the Third and Fourth claims for constructive fraudulent transfer claims because Plaintiff cannot satisfy the "less than reasonably equivalent value" elements of the claims viewing the evidence in the light most favorable to Plaintiff and as a matter of law.
The Motion is partially granted as to First Claim for Relief for intentional fraudulent transfer under state law. CC § 3439.08(a) provides a statutory defense against CC § 3439.04(a)(1) has two elements (reasonably equivalent value and good faith) and Plaintiff has satisfied the first element- that the Payments were made for reasonably equivalent value. Plaintiff has not satisfied the second element of good faith.
The Motion is denied as to the Second Claim for Relief for intentional fraudulent transfer claim under federal law because there remain disputed issues of fact regarding the "badges of fraud."
2:00 PM
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Tara Castro Narayanan
Defendant(s):
SunCal Management LLC Represented By Craig H Averch Aalok Sharma
Argent Management, LLC Represented By Craig H Averch Aalok Sharma
Movant(s):
SunCal Management LLC Represented By
2:00 PM
Craig H Averch Aalok Sharma
Argent Management, LLC Represented By Craig H Averch Aalok Sharma
Plaintiff(s):
Steven M Speier Represented By Mike D Neue
Gary A Pemberton Brianna L Frazier Shane M Biornstad
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall Robert P Goe
2:00 PM
Adv#: 8:18-01022 Speier v. SunCal Management LLC et al
FR: 1-28-21; 3-11-21
Docket 445
OFF CALENDAR: In light of the Court’s intent to issue written rulings in lieu of oral rulings, all hearings on the 2:00 pm calendar regarding oral rulings are off calendar - sb/td (3/30/2021)
January 28, 2021
The following tentative ruling applies to matters 1, 3, 5 and 7 on today's Calendar:
The parties will be allowed to present oral argument regarding the Motion for Partial Summary Adjudication ("Main Motion") and the Motion to Strike the Singer Report ("Motion to Strike") as follows:
Defendants will be allowed up to 30 minutes to address both the Main Motion and the Motion to Strike. Plaintiff will then be allowed up to 30 minutes to respond. Defendants will be allowed up to 15 minutes to reply.
The parties should assume that the Court has read the pleadings and use oral argument to highlight key points.
At the conclusion of the oral argument, the matter will be taken under
2:00 PM
submission and a hearing on the Court's oral ruling will be set for March 11, 2021 at 2:00 p.m.. It is possible that a written ruling may be issued prior to March 11, 2021, in which case the parties will be notified. (XX)
Additional Comments:
Plaintiff to address the issue of fraudulent transfer (either actual or constructive) as to Argent. Notably, the court previously denied the parties’ cross motions for summary judgment on the alter ego and successor liability claims [AP dkt. 451 and 458]. To the extent that SCM is found liable for any fraudulent transfer claims, the court’s granting of partial adjudication as to Argent would not impact Argent’s potential liability under Plaintiff’s yet to be adjudicated alter ego and successor liability claims.
March 11, 2021 (Updated)
Continue this hearing to March 30, 2021 at 2:00 p.m. on the court's own motion. (XX)
Reason for Tentative Ruling:
The court requires additional time to review and analyze the pleadings, caselaw and evidentiary objections.
March 30, 2021 (Updated)
Special Note: The written ruling in lieu of today's Oral Ruling has not yet been posted for this adversary. However, the court's written is substantively identical to the the ruling for #2 on today's calendar re SunCal Torrance, which has been posted. See ruling for #2.
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot
2:00 PM
Peter W Lianides Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Tara Castro Narayanan
Defendant(s):
SunCal Management LLC Represented By Craig H Averch Aalok Sharma
Argent Management, LLC Represented By Craig H Averch Aalok Sharma
Movant(s):
SunCal Management LLC Represented By Craig H Averch Aalok Sharma
Argent Management, LLC Represented By Craig H Averch
2:00 PM
Aalok Sharma
Plaintiff(s):
Steven M Speier Represented By Mike D Neue
Gary A Pemberton Brianna L Frazier Shane M Biornstad
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall Robert P Goe
2:00 PM
Adv#: 8:18-01023 SPEIER v. SUNCAL MANAGEMENT, LLC et al
FR: 1-28-21; 3-11-21
Docket 391
OFF CALENDAR: In light of the Court’s intent to issue written rulings in lieu of oral rulings, all hearings on the 2:00 pm calendar regarding oral rulings are off calendar - sb/td (3/30/2021)
January 28, 2021
The following tentative ruling applies to matters 1, 3, 5 and 7 on today's Calendar:
The parties will be allowed to present oral argument regarding the Motion for Partial Summary Adjudication ("Main Motion") and the Motion to Strike the Singer Report ("Motion to Strike") as follows:
Defendants will be allowed up to 30 minutes to address both the Main Motion and the Motion to Strike. Plaintiff will then be allowed up to 30 minutes to respond. Defendants will be allowed up to 15 minutes to reply.
The parties should assume that the Court has read the pleadings and use oral argument to highlight key points.
At the conclusion of the oral argument, the matter will be taken under
2:00 PM
submission and a hearing on the Court's oral ruling will be set for March 11, 2021 at 2:00 p.m.. It is possible that a written ruling may be issued prior to March 11, 2021, in which case the parties will be notified. (XX)
Additional Comments:
Plaintiff to address the issue of fraudulent transfer (either actual or constructive) as to Argent. Notably, the court previously denied the parties’ cross motions for summary judgment on the alter ego and successor liability claims [AP dkt. 451 and 458]. To the extent that SCM is found liable for any fraudulent transfer claims, the court’s granting of partial adjudication as to Argent would not impact Argent’s potential liability under Plaintiff’s yet to be adjudicated alter ego and successor liability claims.
March 11, 2021 (Updated)
Continue this hearing to March 30, 2021 at 2:00 p.m. on the court's own motion. (XX)
Reason for Tentative Ruling:
The court requires additional time to review and analyze the pleadings, caselaw and evidentiary objections.
March 30, 2021 (Updated)
Special Note: The written ruling in lieu of today's Oral Ruling has not yet been posted for this adversary. However, the court's written is substantively identical to the the ruling for #2 on today's calendar re SunCal Torrance, which has been posted. See ruling for #2.
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot
2:00 PM
Peter W Lianides Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Tara Castro Narayanan
Defendant(s):
SUNCAL MANAGEMENT, LLC Represented By
Craig H Averch Aalok Sharma
Argent Management LLC Represented By Craig H Averch Aalok Sharma
Movant(s):
SUNCAL MANAGEMENT, LLC Represented By
Craig H Averch Aalok Sharma
Argent Management LLC Represented By Craig H Averch
2:00 PM
Aalok Sharma
Plaintiff(s):
STEVEN M. SPEIER Represented By Evan C Borges Mike D Neue William N Lobel
Gary A Pemberton Brianna L Frazier Shane M Biornstad
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall Robert P Goe
9:30 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
9:30 AM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
NONE LISTED -
9:30 AM
Adv#: 8:18-01170 Add2Net, Inc. v. Natzic et al
FR: 12-6-18; 1-24-19; 4-18-19; 6-20-19; 8-22-19; 9-19-19; 12-5-19; 2-20-20;
4-16-20; 7-16-20; 9-17-20; 11-5-20; 1-8-21
Docket 1
CONTINUED: Status Conference Continued to 6/3/2021 at 9:30 a.m., Per Order Entered 3/19/2021 (XX) - am/td (3/19/2021)
June 20, 2019
No tentative ruling. This tentative will be trailed to the 2:00 p.m. calendar along with the Motion to Dismiss
September 19, 2019
In light of the upcoming trial in the state court litigation, continue status conference to December 5, 2019 at 9:30 a.m.; updated status report must be filed by November 21, 2019. (XX)
Note: Appearances at today's hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
9:30 AM
Debtor(s):
George Carl Natzic Represented By Moises S Bardavid
Defendant(s):
George Carl Natzic Pro Se
Cheri Lynn Natzic Pro Se
Joint Debtor(s):
Cheri Lynn Natzic Represented By Moises S Bardavid
Plaintiff(s):
Add2Net, Inc. Represented By
Kevin Meek
Trustee(s):
Thomas H Casey (TR) Pro Se
9:30 AM
Adv#: 8:19-01180 Marshack v. Sweeney et al
FR: 3-5-20; 9-10-20; 12-17-20
Docket 1
SPECIAL NOTE: Unilateral Notice of Settlement of Matter and Request to Continue Pre-trial Proceeding filed 12/3/2020 - td (12/3/2020)
March 5, 2020
Deadline to file Motions re Default Judgment: April 3, 2020 Discovery Cut-off Date: Aug. 3, 2020
Pretrial Conference Date: Sept. 10, 2020 at 9:30 a.m. (XX)
Deadline to File Joint Pretrial Stipulation: Aug. 27, 2020
Special note: Plaintiff indicates in the Unilateral Status Report that some defendants have responded; however the docket does not reflect the filing of any answers. The court, therefore, assumes such "responses" were informal.
Note: If Plaintiff accepts the foregoing tentative ruling, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
December 17, 2020
9:30 AM
Continue the hearing as a Status Conference to April 1, 2021 at 9:30 a.m.; an updated Status Report must be filed by March 18, 2021 if the adversary proceeding is still pending as of such date. (XX)
Note: Appearances at this hearing are not required; Plaintiff shall serve notice of the continued hearing date/time.
April 1, 2021
In light of pending settlement, continue this hearing to June 3, 2021 at 9:30
a.m. as a holding date; updated status report must be filed by May 20, 2021 if the matter is still pending as of that date.
Note: Appearances at this hearing are not required; Plaintiff shall serve notice of the continued hearing date/time.
Debtor(s):
Francis J Marzec Represented By Christine A Kingston
Defendant(s):
Anita Sweeney Pro Se
Tori Sweeney Pro Se
Michael Marzec Pro Se
Beth Marzec Pro Se
Plaintiff(s):
Richard A Marshack Represented By Anerio V Altman
Trustee(s):
Richard A Marshack (TR) Represented By Anerio V Altman
9:30 AM
9:30 AM
Adv#: 8:20-01154 Marshack v. Ra
FR: 1-14-21
Docket 1
OFF CALENDAR: Order Granting Motion for Default Judgment and Default Judgment Entered 3/8/2021 - td (3/8/2021)
January 14, 2021
Continue Status Conference to April 1, 2021 at 9:30 a.m.; an updated Status Report must be filed by March 18, 2021 if a motion for default judgement has not been filed by such date. (XX)
Special Note:
A motion for default judgment may self-calendared for the same date/time as the continued Status Conference date. Alternatively, the motion may be filed without a hearing pursuant to the procedure set forth in Local Bankruptcy Rule 9013-1(o).
The motion for default judgment, supported by evidence, must be served on defendant and defendant's counsel in accordance with Local Rule 9013-1(d). If the motion for default judgment is not heard by the continued date of the Status Conference, THE ADVERSARY MAY BE DISMISSED at the Status Conference for failure to prosecute.
Note: If Plaintiff accepts the foregoing tentative ruling, appearance at
9:30 AM
today's hearing is not required; Plaintiff to serve notice of the continued hearing date/time.
Debtor(s):
Joseph Ra Represented By
David B Golubchik Jaenam J Coe
Defendant(s):
Joseph Ra Pro Se
Plaintiff(s):
Richard A. Marshack Represented By Thomas J Polis
Trustee(s):
Richard A Marshack (TR) Represented By Michael G Spector Thomas J Polis
9:30 AM
Adv#: 8:19-01162 Becharoff Capital Corporation v. Rietveld
FR: 11-7-19; 5-21-20; 8-20-20; 10-1-20; 12-17-20
Docket 1
CONTINUED: Pre-trial Conference Continued to 5/20/2021 at 9:30 a.m., Per Order Entered 3/29/2021 (XX) - td (3/29/2021)
November 7, 2019
Discovery Cut-off Date: April 1, 2020
Pretrial Conference Date: May 21, 2020 at 9:30 a.m. (XX)
Deadline to File Joint Pretrial Stipulation: May 7, 2020
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
August 20, 2020
If more time is needed for settlement discussions, continue the pretrial conference to October 1, 2020 at 9:30 a.m. Plaintiff must file either a joint pretrial stipulation (if no settlement) or a status report (settlement reached or pending) by no later than September 22, 2020 or monetary sanctions may be imposed. (XX)
9:30 AM
Note: If all parties accept the foregoing tentative ruling, appearances at today's hearing are not required and Plaintiff shall serve notice of the continued hearing date/time.
October 1, 2020
Continue this Pretrial Conference to December 17, 2020 at 9:30 a.m. as a Status Conference; an updated Status Report must be filed by December 3, 2020. (XX)
Special Note: A Status Report was not timely filed by September 17, 2020 as previously ordered by the Court [docket #14]. If this adversary proceeding remains pending as of December 3, 2020 and no Status Report is filed by such date, sanctions in an amount of not less than $200 will be imposed on Plaintiff's counsel for failure to do so.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time on Defendant.
December 17, 2020
Set Pretrial Conference for April 1, 2021 at 9:30 a.m.; Joint Pretrial Stipulation must be filed by March 18, 2021. (XX)
Special note: As the first Status Conference was held more than one year ago, the court will not simply continue the Status Conference any further. Either the matter will settle or proceed to trial.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiff shall lodge an order consistent with the same.
9:30 AM
Debtor(s):
Richard Allen Rietveld Represented By Alon Darvish
Defendant(s):
Richard Allen Rietveld Pro Se
Plaintiff(s):
Becharoff Capital Corporation Represented By Fritz J Firman
Trustee(s):
Richard A Marshack (TR) Pro Se
9:30 AM
Adv#: 8:20-01004 Upstream Capital Investments LLC v. Guinto
FR: 4-2-20; 6-11-20; 11-5-20; 1-14-21
Docket 1
CONTINUED: Pre-Trial Conference Continued to 7/22/2021 at 9:30 a.m., Per Order Entered 3/22/2021 (XX) - td (3/22/2021)
[Special Notice: This hearing is being conducted by Zoomgov. See the first page of the calendar for today's hearings for participation details.]
April 2, 2020
No proof of service or joint status report have been filed. Plaintiff must appear and advise the court as to why the same were not timely filed.
Note: Telephonic appearance by Plaintiff's counsel is required.
June 11, 2020 [TENTATIVE MODIFIED SINCE ORIGINAL POSTING]
Joint status report was not timely filed by May 28, 2020. Impose sanctions in the amount of $100 against Plaintiff's counsel for failure to do so.
Discovery Deadline: Aug. 14, 2020 Deadline to attend mandatory mediation: Sept. 30, 2020 Pretrial Conference: Nov. 5, 2020 at 9:30
9:30 AM
a.m. (XX)
Joint Pretrial Stipulation due: Oct. 22, 2020
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required; Plaintiff's counsel shall lodge a scheduling order consistent with the same. Sanctions payable within 30 days of the hearing, payable to the Clerk of the Bankruptcy Court - Central Dist. CA
November 5, 2020
Continue the Pretrial Conference to December 10, 2020 to allow Defendant one final opportunity to participate in the drafting of the Pretrial Stipulation. Defendant must advise Plaintiff's counsel of her suggested revisions to the Pretrial Stipulation no later than November 19, 2020 and Plaintiff will provide Defendant with a copy of the revised Pretrial Stipulation no later than November 30, 2020. The final version of the Joint Pretrial Stipulation must be filed no later than December 3, 2020.
Court's Comments
It is Defendant's best interest to participate in the drafting of the Joint Pretrial Stipulation ("Stipulation") because the Stipulation establishes all issues that will be decided at trial as well as the exhibits and witness that may be presented. Defendant is advised to review Local Bankruptcy Rule 7016-1 re the preparation of joint pretrial stipulations. Unless Defendant participates in the process, the unilateral Joint Pretrial Stipulation (except as noted below) will stand. Defendant is strongly advised to communicate with Plaintiff's counsel regarding the Stipulation.
On pages 2 and 3 of the Stipulation, Plaintiff lists all facts it believes are not in dispute. See paragraphs 1 (a) through (j). If Defendant disagrees with any of those facts, she needs to advise Plaintiff's counsel so that the disputed fact(s) can be included in paragraph 2 (starting at p.3, lines 15-27 to p. 4,
9:30 AM
lines 1-4). For example, if Defendant agrees that she filed a chapter 7 bankruptcy case on September 26, 2019, that is an "agreed" fact that need not be determined at trial. It is Defendant's responsibility to identify any facts in paragraph 1 that genuinely disputes and communicate that to Defendant.
Paragraph 2 includes facts that the parties do not agree on that must be decided by the court at trial, such as whether Defendant made false statements regarding the loan, etc.
Plaintiff states as an undisputed fact on p. 3 at lines 3-7 that a "default judgment for fraud was entered." However, though the complaint attaches several exhibits, a copy of the actual judgment (showing fraud) was not attached. This is important because the state court complaint also includes a cause of action for breach of contract (which is dischargeable) and there is at least a possibility that the judgment could be solely for breach of contract. The court notes that the judgment is not included on Plaintiff's list of exhibits.
Defendant needs to provide to Plaintiff's counsel by November 19, 2020
her list of witnesses (even if its just herself) and a short summary of what the witnesses will testify to; and b) her list of exhibits that she will present in her defense. If Defendant does not provide a list of witnesses or exhibits by November 19, 2020, she will not be allowed to present them at trial.
The trial date will be provided at the December 10, 2020 hearing.
Note: If the both parties accept the tentative ruling, appearances at this hearing are not required and Plaintiff shall serve notice of the continued hearing date and deadlines. Plaintiff is also encouraged to provide Defendant with a copy of the the tentative ruling prior to the hearing.
Debtor(s):
Catherine Melissa-Ann Guinto Represented By Lawrence B Yang
9:30 AM
Defendant(s):
Catherine Melissa-Ann Guinto Pro Se
Plaintiff(s):
Upstream Capital Investments LLC Represented By
Lynda E Jacobs
Trustee(s):
Weneta M Kosmala (TR) Pro Se
10:00 AM
VS.
DEBTOR
Docket 41
NONE LISTED -
April 1, 2021
Grant with 4001(a)(3) waiver, except that no foreclosure sale of the property may be scheduled prior to August 1, 2021.
Special note: The chapter 7 trustee has filed an application to employ a real estate broker re a short sale of the property and indicates a list price of only
$900,000. The August 1, 2021 date is to allow the trustee an opportunity for a short sale.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Dennis Ulrich Represented By William P White
10:00 AM
Movant(s):
JPMorgan Chase Bank, National Represented By
Nancy L Lee
Trustee(s):
Jeffrey I Golden (TR) Represented By Reem J Bello
10:00 AM
VS.
DEBTORS
Docket 40
OFF CALENDAR: Order approving APO Entered 3/30/21- mp/td (3/29/21)
NONE LISTED -
Debtor(s):
Dae Min Kang Represented By
James D. Hornbuckle
Joint Debtor(s):
Jaie Yoon Kang Represented By
James D. Hornbuckle
Movant(s):
CITIZENS BANK N.A. Represented By Christina J Khil
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
VS.
DEBTOR
Docket 59
NONE LISTED -
April 1, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Michael Gregory Franco Represented By Anerio V Altman
Movant(s):
Wells Fargo Bank, N.A., d/b/a Wells Represented By
Jenelle C Arnold
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
10:00 AM
VS.
DEBTOR
FR: 2-11-21; 3-4-21
Docket 35
NONE LISTED -
February 11, 2021
Grant with 4001(a)(3) waiver; deny relief request #7 as Movant has provided no evidence or grounds for extraordinary relief.
Basis for Tentative Ruling:
Movant seeks an order making it effective for two years -- essentially requesting relief under 362(d)(4) without meeting the requirement for such relief as set forth in 362(d)(4) (e.g., multiple filings or transfer of property).
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required if Movant accepts the tentative ruling. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
10:00 AM
March 4, 2021
Movant to advise the court re the status of this matter. If more time is needed to finalize the adequate protection order, a further continuance may be requested during the Clerk's calendar roll call prior to the commencement of the hearing. Available continued dates: March 11, 2021, April 1, 2021, April
8, 2021 or April 22, 2021 at 10:00 a.m.
April 1, 2021
No APO has been filed. Continue hearing one final time to April 15, 2021 at 10:00 a.m.
Note: Appearances not required if the parties accept the foregoing tentative ruling; Movant to serve notice of the continued hearing date/time.
Debtor(s):
Jose J Sanchez Represented By Gary Polston
Movant(s):
Veros Credit, LLC Represented By Robert M Tennant
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
U.S.C. Section 366 (OST Entered 3/12/2021)
FR: 3-23-21
Docket 19
NONE LISTED -
March 23, 2021
The court is inclined to grant the Motion, however, service to the utility companies appears to be improper. If so, the hearing re the Motion will be continued to April 1, 2021 at 10:00 a.m., with notice by overnight to be made no later than March 24, 2021; opposition by March 30, 2021 and reply presented orally at the hearing. (XX)
Basis for Tentative Ruling:
Service to the utility companies was not made in accordance with FRBP 7004(b)(3) as required by FRBP 9014 for contested matter such as this. It appears that the utility companies were served at post office boxes, presumably the place where payments are made. Service pursuant to 7004(b)(3) must be made to the attention of an officer, managing or general agent, or to any other agent authorized by appointment or by law to accept service of process.
April 1, 2021
Grant the Motion.
10:00 AM
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
The Source Hotel, LLC Represented By Ron Bender Juliet Y Oh
10:30 AM
FR: 11-19-20; 2-4-20
Docket 441
CONTINUED: Hearing Continued to 5/6/2021 at 10:30 a.m., Per Order Entered 3/25/2021 (XX) - td (3/25/2021)
November 19, 2020
Continue this hearing to January 21, 2021 at 10:30 a.m. to allow a) Objecting Party to take discovery as permitted by FRBP 9014 for contested matters and
additional briefing by the parties to address the issues set forth in the the court's "Basis for Tentative Ruling" comments.
Basis for Tentative Ruling
Creditor State Compensation Insurance Fund ("Claimant") filed proof of claim no. 8-1 (the "Claim") in the general unsecured amount of $1,350,389.47 for "Insurance Policy" for unpaid workers’ compensation insurance premiums for policy years 2002-2006.
Creditor Douglas Patrick ("Patrick") objects to the Claim and requests disallowance in full because the Claim includes several errors that increased the premium amounts (the "Objection")[dkt. 441]. Claimant opposes the Objection (the "Opposition")[dkt. 454].
The Objection is continued for further briefing regarding statute of
10:30 AM
limitations and whether the Claim has already been fully adjudicated and liquidated prepetition
A proof of claim executed and filed in accordance with the Federal Rules of Bankruptcy Procedure 3001(f) constitutes prima facie evidence of the validity and amount of the claim. See Rule 3001(f); In re Lundell, 223 F.3d 1035, 1039 (9th Cir. 2000). Therefore, a proof of claim will be deemed allowed unless a party in interest objects. Lundell, 223 F.3d at 1039. Once a party in interest objects, the proof of claim will still provide some evidence as to its validity and amount, and will be strong enough to carry over a mere formal objection without more. Id. Thus, a party objecting to a claim must present affirmative evidence to overcome the presumption of its validity by showing "facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claims." Id. (citing In re Holm, 931 F.2d 620, 623 (9th Cir. 1991); In re King Street Inv., Inc., 219 B.R. 848, 858 (BAP 9th Cir. 1998). If the objector produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, then the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Lundell, 233 F.3d at 1039. The ultimate burden of persuasion remains at all times upon the claimant. Id.; Holm, 931 F.2d 620 (9th Cir. 1991).
In this case, Claimant filed the Claim in accordance with Rule 3001.
The Claim was filed with Official Form 410 and included supporting documentation. See, Obj., Ex. 1 (the Claim). Thus, Claimant has complied with Rule 3001 and the Claim is entitled to prima facie validity under Rule 3001(f).
Since the Claim is entitled to prima facie validity, Patrick must present affirmative evidence to overcome the Claim’s presumption of validity. Patrick argues that the Claim includes the following errors: Claimant misclassified Debtor’s employees as "electrical" workers resulting in higher insurance premiums, mistakenly charged for employees that worked outside of California and were not insured under the policy, and failed to explain why the "Experience Modifier" increased from 105% to 172% in one year. See, Obj.,
p. 2. Claimant counters that Patrick fails to rebut the prima facie validity of the Claim because Patrick’s arguments relate only to the 2006 policy year premiums (and not the 2002-2005 policy year premiums) underlying the claim
10:30 AM
and Claimant already conducted an internal, prepetition audit which confirmed the amounts claimed in the Claim. See, Opp’n, p. 4. Patrick’s responds by challenging the reliability of the evidence provided by Claimant (such as pointing out that policy contract that was attached to the Opposition was "revised" in August 2010 and therefore cannot be the policy contract entered into by Debtor and Claimant in 2000), that Debtor was unaware that amounts were owed for policy years 2002-2005 until the Claim was filed, and stating that Claimant failed to attach its internal audit records so the accuracy of Claimant’s figures cannot be confirmed because Debtor does not have access to those internal audit records. See, Reply, p. 3-4 and Opp’n, p. 6 of Ex. A. Claimant’s argument that the Objection only raises arguments regarding the 2006 policy year is also undermined by Claimant’s own exhibit of a letter from Debtor’s prepetition counsel to Claimant dated January 23, 2007 that references the ongoing dispute over the final audits for the policy years 2003-2007. See, Opp’n, Ex. C.
Accordingly, there is a disputed question of fact regarding the accuracy of Claimant’s calculation of the insurance premiums due for the policy years 2002-2006. Such dispute may warrant discovery as requested by Patrick. In addition, the parties must address the threshold issue regarding the statute of limitations and whether the Claim is already fully adjudicated and liquidated.
Patrick has raised the argument that any breach of the policy contract that occurred before October 7, 2005 may be barred by the 4-year statute of limitations for written contracts. See, Reply, p. 3, n. 1. As this argument was first raised in the Reply, Claimant has not had an opportunity to address it.
On the other hand, Claimant raises the argument that the Claim has been fully adjudicated and liquidated prepetition with following testimony from Kimberly Byrne: "State Fund’s records do not indicate that Debtor requested reconsideration of State Fund’s determination or appealed to the Administrative Hearing Bureau at the California Department of Insurance" and "State Fund’s records do not show that Debtor disputed the revised experience modification with State Fund, the WCIRB or appealed to the Administrative Hearings Bureau of the California Department of Insurance within the time prescribed by law." See, Kimberly Byrne Decl., p. 2-3, ¶5 and
p. 3, ¶6 (emphasis added).
10:30 AM
EVIDENTIARY OBJECTIONS
Objection #* Ruling
Sustained
Overruled: the testimony identifies the documents as "final"
bills. The objection is in the nature of argument.
Overruled: the objection is in the nature of argument
Sustained: hearsay
Overruled: th testimony is in the nature of argument
Sustained: hearsay
*For ease of reference, the court has assigned a chronologica number to each objection .
Debtor(s):
Commercial Services Building Inc Represented By
Phillip B Greer
Trustee(s):
Karl T Anderson (TR) Represented By
Misty A Perry Isaacson Misty A Perry Isaacson Thomas J Polis
Robert M Dato Jason E Goldstein
10:30 AM
FR: 2-11-21, 2-18-21; 3-4-21
Docket 962
CONTINUED: Hearing Continued to 5/6/2021 at 10:30 a.m., Per Order Entered 3/23/2021 (XX) - td (3/23/2021)
NONE LISTED -
Debtor(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel Bobby Samini Dean A Ziehl
Gary A Pemberton Shane M Biornstad
10:30 AM
Docket 166
NONE LISTED -
April 1, 2021
Deny motion without prejudice. Debtors have not responded to the objections to the Motion filed by the ch. 13 trustee and judgment lien creditor Janice Vinci.
Debtor(s):
Giuseppe Galietta Represented By Joseph A Weber Fritz J Firman
Joint Debtor(s):
Heldia F. De Galietta Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
[KAREN SUE NAYLOR, CHAPTER 7 TRUSTEE]
Docket 51
NONE LISTED -
April 1, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Manufacture Resource Products, Inc. Represented By
Thomas J Polis
Trustee(s):
Karen S Naylor (TR) Represented By Nanette D Sanders
10:30 AM
[RiINGSTAD & SANDERS LLP, ATTORNEY FOR KAREN SUE NAYLOR, CHAPTER 7 TRUSTEE]
Docket 48
NONE LISTED -
April 1, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Manufacture Resource Products, Inc. Represented By
Thomas J Polis
Trustee(s):
Karen S Naylor (TR) Represented By Nanette D Sanders
10:30 AM
[HAHN FIFE & COMPANY LLP, ACCOUNTANT FOR CHAPTER 7 TRUSTEE]
Docket 46
NONE LISTED -
April 1, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Manufacture Resource Products, Inc. Represented By
Thomas J Polis
Trustee(s):
Karen S Naylor (TR) Represented By Nanette D Sanders
10:30 AM
FR: 10-17-19; 4-9-20; 4-30-20; 6-18-20; 9-17-20; 12-17-20
Docket 1
NONE LISTED -
October 17, 2019
Claims bar date: Jan. 17, 2020 (notice to be served by 11/15/19
Deadline to file plan/DS Feb. 20, 2020
Continued Status Conf.: Apr. 9, 2020 at 10:30 a.m. (XX)
Updated Status Report Due: Mar. 19, 2019 (unless the plan/DS has been
the report
filed by such date, in which case requirement will be waived)
Note: If Debtor is in substantial compliance with the requirements of the United States Trustee, appearance at this hearing is not required. It is Debtor's responsiblity to confirm compliance with the UST prior to the hearing.
April 9, 2020
Continue Status Conference to April 30, 2020 at 10:30 a.m., the same
10:30 AM
date/time as hearing on approval of Debtor's Disclosure Statement; an updated status report is not required. (XX)
Note: Appearance at this hearing is not required. Non appearance at the hearing will be deemed acceptance of the tentative ruling.
April 30, 2020
Continue status conference to June 18, 2020 at 10:30 a.m., same date/time set for the continued hearing on approval of Debtor's disclosure statement. (XX)
Note: Appearances at this hearing are not required. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
June 18, 2020
Continue status conference to September 17, 2020 at 10:30 a.m.; updated status report not required. (XX)
Note: Appearances at this hearing are not required. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
September 17, 2020
Continue status conference to November 5, 2020 at 10:30 a.m.; court to issue order to show cause why this case should not be dismissed or converted due to Debtor's inability to confirm a plan within a reasonable period of time.
Hearing on such OSC shall be scheduled for November 5, 2020 at 10:30 a.m.
December 17, 2020
Continue Status Conference to April 1, 2021 at 10:30 a.m.; An updated Status report must be filed by March 18, 2021 unless Debtor has filed a
10:30 AM
motion to dismiss the case by such date, in which case the requirement of a report will be waived. (XX)
Special Note: Regarding Buchanan's request in its statement that any funds on hand be distributed to it, the court shall rule on that matter in context of a motion to dismiss the case.
Note: If the parties accept the tentative ruling, appearances at this hearing are not required.
April 1, 2021
Continue status conference to May 6, 2021 at 10:30 a.m. in light of Debtor's intent to move for dismissal of the case.
Note: Appearances at this hearing are not required.
Debtor(s):
10827 Studebaker LLC, a California Represented By
Steven Werth
10:30 AM
Docket 1062
NONE LISTED -
April 1, 2021
Deny approval of application. Basis for Tentative Ruling:
The point raised by the U.S. re duplication of services to be performed by Mr. Taylor is well-taken.
Trustee has not sufficiently disclosed a) why Mr. Taylor cannot perform all tax services pursuant to the previously approved employment application, and
b) the division of services.
The court has a duty to closely scrutinize an employment application providing for the employment of a professional at the rate of $710/hour for services that match the description of services to be rendered by another professional.
Trustee says that Mr. Ord, an attorney, will not be acting as an attorney but rather as a "consultant" but does not fully explain the difference. Further, this representation is undermined by the fact that Mr. Ord intends to use the services of an associate in his office. Will she be acting as an attorney or a consultant at $395/hr? What specific services will she be rendering?
10:30 AM
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson Robert P Goe
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe Claire K Wu
10:30 AM
FR: 1-7-21 (Continued from 1-7-21 per Order Entered 1-14-21); 2-4-21
Docket 126
NONE LISTED -
January 7, 2021
Grant motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
February 4, 2021
Continue this hearing as a Status Conference to April 1, 2021 at 10:30 a.m. in light of Debtor's continued collection efforts and the possibility of the filing of a motion to dismiss the case; an updated Status Report must be filed by March 18, 2021. (XX)
Note: Appearances at this hearing are not required.
April 1, 2021
10:30 AM
[This Tentative Ruling has been modified since the original posting]
This Motion will go off calendar in light of the interim disbursement of funds authorized by this court's order entered January 14, 2021 [dkt 161] and the granting of the Motion to Dismiss which provides for the final disbursement of funds remaining in the estate. Motion as moot in light of the granting of the Motion to Dismiss Case, which includes the same requested relief.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Little John's Antique Arms, Inc. Represented By Richard A Marshack Chad V Haes
D Edward Hays
Movant(s):
Little John's Antique Arms, Inc. Represented By Richard A Marshack Chad V Haes
D Edward Hays
10:30 AM
Docket 175
NONE LISTED -
April 1, 2021
Grant the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Little John's Antique Arms, Inc. Represented By Richard A Marshack Chad V Haes
D Edward Hays
10:30 AM
[MARSHACK HAYS LLP AS GENERAL BANKRUPTCY COUNSEL]
Docket 179
NONE LISTED -
April 1, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Little John's Antique Arms, Inc. Represented By Richard A Marshack Chad V Haes
D Edward Hays
10:30 AM
[KARL T. ANDERSON CPA, INC., AUCTION MONITOR FOR THE CHAPTER 11 DEBTOR-IN-POSSESSION]
Docket 178
NONE LISTED -
April 1, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Little John's Antique Arms, Inc. Represented By Richard A Marshack Chad V Haes
D Edward Hays
10:30 AM
(2) Requiring Report on Status of Chapter 11 Case FR: 6-4-20; 9-17-20; 12-10-20
Docket 1
NONE LISTED -
June 4, 2020
Claims bar date: Aug. 7, 2020 (notice by 6/6/20)
Deadline to file plan/DS: Aug. 28, 2020
Continued Status Conference: Sept. 17, 2020 at 10:30 a.m. (XX) Deadline to file Status Report: Sept. 3, 2020*
*Status report not required if 1) Debtor has filed a plan and DS, or 2) Debtor has filed a motion to dismiss the case by such date.
Note: If Debtor accepts the foregoing tentative ruling and is in substantial compliance with the requirements of the U.S. Trustee, appearance at this hearing is not required; the court shall enter it's own order.
September 17, 2020
Continue Status Conference to December 10, 2020 at 10:30 a.m.; an updated Status Report must be filed by December 3, 2020 if the case has not been dismissed by such date. (XX)
Special Note: Starting October 8, 2020, all hearings before Judge Smith will be by Zoom videoconference. See details on the court's website at
10:30 AM
cacb.uscourts.gov
Note: Appearance at this hearing is not required; the court will issue it's own order.
December 10, 2020
Continue the Status Conference to April 1, 2021 at 10:30 a.m.; an updated Status Report must be filed by March 18, 2021 if the case is still pending as of such date. (XX)
Note: If Debtor is in substantial compliance with the requirements of the
U.S. Trustee, appearances at this hearing will not be required. It is Debtor's responsibility to confirm substantial compliance in advance of the hearing.
April 1, 2021
Off calendar in light of the court's ruling for calendar no. 19 granting the Motion to Dismiss Case.
Debtor(s):
Little John's Antique Arms, Inc. Represented By Richard A Marshack Chad V Haes
10:30 AM
FR: 9-3-20; 12-17-20; 2-18-21
Docket 1
OFF CALENDAR: Order Granting Motion: (1) Authorizing Payment of Fees Due United States Trustee; and (2) Dismissing Case with All Orders and Agreements Remaining in Full Force and Effect Entered 3/11/2021 - td (3/23/2021)
September 3, 2020
Claims bar date: Nov. 10, 2020 (notice by 9/10/20)
Deadline to file plan/DS: Dec. 1, 2020
Continued Status Conf: Dec. 17, 2020 at 10:30 a.m. (XX) Deadline to file Updated
Status Report*: Dec. 3, 2020
*Update report requirement waived if DS is timely filed.
Note: If Debtor is in substantial compliance with the requirements of the U.S. Trustee, appearance at this hearing is not required and the court will issue it's own order re the same. It is Debtor's responsibility
10:30 AM
to confirm compliance with the UST prior to the hearing.
December 17, 2020
Continue the Status Conference to February 18, 2021 at 10:30 a.m.; updated Status Report must be filed by February 4, 2021. (XX)
Note: If Debtor is in substantial compliance with the requirements of the U.S. Trustee, appearance at this hearing is not required and the court will issue it's own order re the same. It is Debtor's responsibility to confirm compliance with the UST prior to the hearing.
February 18, 2021
Continue status conference to April 1, 2021 at 10:30 a.m.; an updated status report must be filed by March 18, 2021 unless the case has been dismissed prior to such date. (XX)
Basis for Tentative Ruling
Debtor's late-filed status report [docket #94] indicates Debtor's intent to file a motion to dismiss this case.
Note: Appearances at this hearing are not required.
Debtor(s):
Golden Communications Inc. Represented By Marc C Forsythe
10:30 AM
Docket 35
NONE LISTED -
April 1, 2021
[This Tentative Ruling has been modified since the original posting to add Comment #1a]
Continue this hearing to May 20, 2021 at 10:30 a.m. to allow Debtor to correct service and other issues. Amended Disclosure Statement must be filed no later than April 22, 2021; any opposition must be filed by May 6, 2021; any reply must be filed by May 13, 2021.
Basis for Tentative Ruling:
Service issue: Notice was improper because Debtor did not serve a separate notice of the disclosure statement hearing which provided
notice of the 14-day opposition deadline. Per LBR 9013-1(c)(2), the "notice of motion must advise the opposing party that LBR 9013-1(f) requires a
written response to be filed and served at least 14 days before the hearing." See LBR 3017-1(b)("Objections to the adequacy of a
disclosure statement must be filed and served on the proponent not less than 14 days before the hearing, unless otherwise ordered by the court."). Debtor only filed the supplemental Zoom notice [dkt. 37] which does not include the opposition deadline information.
1a. Debtor needs to address all of the comments raised by the U.S. Trustee
10:30 AM
The secured claim in Class 1 also is impaired because the Plan alters claimant's prepetition contractual rights to proceed with nonjudicial foreclosure of the Property. See DS, p. 6:16-20. Under the broad definition of "impairment" under § 1124, "any alteration of the rights constitutes impairment even if the value of the rights is enhanced." In re L & J Anaheim Assocs., 995 F.2d 940, 942 -943(9th Cir. 1993)(emphasis added)(holding that secured creditor was impaired when that creditor could not "invoke the substantive remedies or procedural mechanisms available to it at state law" pursuant to its contractual rights under the loan agreement and its collateral would be sold under the chapter 11 plan). This section should be revised.
Because the Effective Date of the Plan will be 30 days after the confirmation order is entered, this raises feasibility issues since it is unclear whether there will be sufficient time file and obtain court approval of an employment application for a broker for the Dana Point Property, adequately market the property, and file and obtain approval of a sale motion before the confirmation order is entered. See DS, p. 2:16-17 and p. 6:25-7:2.
Pg. 8:12: TWF needs to be defined
Pg. 10:3-13: Either identify the general unsecured creditors or attache a list of the same as an exhibit.
Pg. 11:10-11: Provide a list of executory contracts that may be subject to assumption
Pg. 13:24; 17:5: The claims bar date was January 8, 2021
Pg. 15:18-19; 19:15-8: Delete discussion re the pledging of projected disposable income if this provision is not applicable.
Note: If Debtor and the UST accept the foregoing tentative ruling, appearances at this hearing are not required.
10:30 AM
Debtor(s):
Christopher Summers Represented By
J Scott Williams
10:30 AM
FR: 11-5-20; 2-4-21
Docket 1
NONE LISTED -
November 5, 2020
Claims bar date: Jan. 8, 2021 (notice by Nov. 9, 2020)
Deadline to file plan/DS: 1/15/21
Continued Status Conf: Feb. 4, 2021 at 10:30 am (XX) Updated Status Report due: Jan. 21, 2021 (waived if plan/DS timely filed)
Note: Appearance at this hearing is not required if Debtor accepts the foregoing tentative ruling and Debtor is in substantial compliance with the requirements of the U.S. Trustee. It is Debtor's responsiblity to confirm such compliance with the U.S. Trustee prior to the hearing. The court will prepare its own Order re the status conference.
February 4, 2021
Continue Status Conference to April 1, 2021 at 10:30 a.m.; updated Status Report not required. (XX)
Note: Appearance at this hearing is not required.
10:30 AM
Apri 1, 2021
Continue status conference to May 20, 2021 at 10:30 a.m.; updated status report is not required if the amended disclosure statement is timely filed on April 22, 2021.
Note: Appearances at this hearing are not required.
Debtor(s):
Christopher Summers Represented By
J Scott Williams
10:30 AM
(OSC Issued 2/18/2021)
Docket 20
OFF CALENDAR: Third Payment of $84.50 Due 2/15/2021 and Final Payment of $84.50 Due 3/15/2021 Paid 3/17/2021, Receipt #80075415 - td (3/23/2021)
NONE LISTED -
Debtor(s):
Muhammad Faisal Taqi Pro Se
Trustee(s):
Richard A Marshack (TR) Pro Se
2:00 PM
Docket 1011
CONTINUED: Hearing Continued to 7/26/2021 at 2:00 p.m., Per Order Entered 3/22/2021 (XX) - td (3/22/2021)
NONE LISTED -
Debtor(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel Bobby Samini Dean A Ziehl
Gary A Pemberton Shane M Biornstad
2:00 PM
Docket 1022
CONTINUED: Hearing Continued to 7/26/2021 at 2:00 p.m., Per Order Entered 3/22/2021 (XX) - td (3/22/2021)
NONE LISTED -
Debtor(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel Bobby Samini Dean A Ziehl
Gary A Pemberton Shane M Biornstad
9:30 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
9:30 AM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
9:30 AM
9:30 AM
Adv#: 8:19-01213 Marshack v. An et al
4. Recovery of Avoided Transfers
FR: 1-30-20; 3-19-20; 5-21-20; 7-23-20; 10-22-20; 1-21-21
Docket 1
SPECIAL NOTE: Notice of Voluntary Dismissal of Only Defendant Byungwhan Chung, an individual, filed 3/25/2021 - td (3/26/2021)
January 30, 2020
Joint status report not timely filed.* Parties must appear and advise the court re the status of this matter.
* The Stipulation and Order [docket #s 5 & 6] only extended the answer date -- did not include an extension of the deadline to file a status report.
Note: Appearances at the hearing are required.
May 21, 2020
Continue the status conference to July 23, 2020 at 9:30 a.m.; updated status report must be filed by July 16, 2020 if the adversary is still pending by such date.
Note: Appearances at this hearing are not required.
9:30 AM
January 21, 2021
Continue status conference to April 8, 2021 at 9:30 a.m.; updated status report must be filed by March 25, 2021 if the adversary is still pending by such date. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
April 8, 2021
Continue status conference one final time to May 20, 2021 at 9:30 a.m.; updated status report must be filed by May 6, 2021.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiff shall serve notice of the continued hearing date/time.
Debtor(s):
Prime Metals U.S.A., Inc. Represented By Steven Werth
Defendant(s):
Minho An Represented By
Michael H Yi
Byungwhan Chung Pro Se
Plaintiff(s):
Richard A Marshack Represented By Ronald S Hodges Robert P Goe
9:30 AM
Trustee(s):
Ryan S Riddles
Richard A Marshack (TR) Represented By
D Edward Hays Laila Masud David M Goodrich Robert P Goe
9:30 AM
Adv#: 8:20-01135 Zhang et al v. SC Development Fund, LLC et al
1. Equitable Subordinaton under 11 USC Section 510 (c) ; 2. Preliminary Injunctive Relief; 3. Injunctive Relief; 4. Declaratory Relief; 5. Fraud; 6. Conspiracy To Commit Fraud; 7. Disallowance Of Claims under 11 USC Section 502(a), (d), (e); 8. Fraudulent Transfer under 11 USC Section 548; 9. Constructive Fraudulent Transfer under 11 USC Sections 544, 550, 551 California Civil Code Sections 3439.05 and 3439.07
(Another Summons Issued 10-14-20) FR: 1-7-21
Docket 5
NONE LISTED -
January 7, 2021
Continue Status Conference to April 8, 2021 at 9:30 a.m.; an updated Joint Status Report must be filed by March 25, 2021. (XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required; Plaintiff shall serve notice of the continued hearing date/time.
April 8, 2021
Discovery Cut-off Date: Aug. 31, 2021 Deadline to Attend Mandatory Mediation: Sept. 30, 2021 Pretrial Conference Date: Nov. 4, 2021 at 9:30
am
9:30 AM
Deadline to File Pretrial Stipulation: Oct. 21, 2021
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
Debtor(s):
SC Development Fund, LLC Represented By Keith S Dobbins
Defendant(s):
SC Development Fund, LLC Pro Se
Weneta M Kosmala Pro Se
Plaintiff(s):
Hui Xiu Zhang Represented By Elan Darvish
Jumbo Investment, Inc. Represented By Elan Darvish
Trustee(s):
Weneta M Kosmala (TR) Represented By Beth Gaschen Jeffrey I Golden
9:30 AM
Adv#: 8:20-01145 ESIRF, LLC v. Castro
FR: 1-7-21
Docket 1
OFF CALENDAR: Order Approving Stipulation and for Judgment Excepting Debt from Discharge Pursuant to 11 U.S.C. §§523(a)(2)(A), 523(a)(4); and Dismissing Claims for Relief Pursuant to 11 U.S.C. § 1328(a)(2) Entered 2/1/2021 - td (2/1/2021)
January 7, 2021
Continue Status Conference to April 8, 2021 at 9:30 a.m. A motion for default judgment may self-calendared for the same date/time as the continued Status Conference date. Alternatively, the motion may be filed without a hearing pursuant to the procedure set forth in Local Bankruptcy Rule 9013-1(o). (XX)
Additional notes:
The motion for default judgment, supported by evidence, must be served on defendant and defendant's counsel in accordance with Local Rule 9013-1(d). If the motion for default judgment is not heard by the continued date of the Status Conference, THE ADVERSARY MAY BE DISMISSED at the Status Conference for failure to prosecute.
9:30 AM
Note: If Plaintiff accepts the foregoing tentative ruling, appearance at this hearing is not required; Plaintiff shall serve notice of the continued hearing date/time.
Debtor(s):
Frank Hinojosa Castro Represented By Christopher P Walker
Defendant(s):
Frank Hinojosa Castro Pro Se
Plaintiff(s):
ESIRF, LLC Represented By
Aaron D. Burden
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
VS.
DEBTORS
Docket 84
OFF CALENDAR: Order Granting Motion for Relief from the Automatic Stay (Settled by Stipulation) Entered 3/22/2021 - td (3/22/2021)
NONE LISTED -
Debtor(s):
Katrina Barrientos Represented By Amanda G Billyard Andy C Warshaw
Joint Debtor(s):
James Wee Represented By
Amanda G Billyard Andy C Warshaw
Movant(s):
Freedom Mortgage Corporation Represented By
Dane W Exnowski
10:00 AM
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
VS.
DEBTORS; AND KAREN S. NAYLOR, CHAPTER 7 TRUSTEE
Docket 11
NONE LISTED -
April 8, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Adolfo Rodriguez Carabali Represented By
Juan Castillo-Onofre
Joint Debtor(s):
Guadalupe Brito De Rodriguez Represented By
Juan Castillo-Onofre
10:00 AM
Movant(s):
Mechanics Bank Auto Finance Represented By Vincent V Frounjian
Trustee(s):
Karen S Naylor (TR) Pro Se
10:00 AM
VS.
DEBTOR
Docket 9
NONE LISTED -
April 8, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Karen Ann McColley Represented By Gary Polston
Movant(s):
Yamaha Motor Finance Corp. Represented By Karel G Rocha
Trustee(s):
Weneta M.A. Kosmala (TR) Pro Se
10:00 AM
10:30 AM
[WENETA M.A. KOSMALA, CHAPTER 7 TRUSTEE]
Docket 131
CONTINUED: Hearing Continued to 5/11/2021 at 10:30 a.m., Per Order Entered 3/24/2021 (XX) - jl/td (3/24/2021)
NONE LISTED -
Debtor(s):
Taylor Tech Inc. Represented By Anthony A Friedman
Trustee(s):
Weneta M.A. Kosmala (TR) Represented By Beth Gaschen Jeffrey I Golden
10:30 AM
[WEILAND GOLDEN GOODRICH LLP, ATTORNEYS FOR CHAPTER 7 TRUSTEE WENETA M.A. KOSMALA]
Docket 124
CONTINUED: Hearing Continued to 5/11/2021 at 10:30 a.m., Per Order Entered 3/24/2021 (XX) - jl/td (3/24/2021)
NONE LISTED -
Debtor(s):
Taylor Tech Inc. Represented By Anthony A Friedman
Trustee(s):
Weneta M.A. Kosmala (TR) Represented By Beth Gaschen Jeffrey I Golden
10:30 AM
[HAHN FIFE & COMPANY, LLP, ACCOUNTANT FOR CHAPTER 7 TRUSTEE]
Docket 126
CONTINUED: Hearing Continued to 5/11/2021 at 10:30 a.m., Per Order Entered 3/24/2021 (XX) - jl/td (3/24/2021)
NONE LISTED -
Debtor(s):
Taylor Tech Inc. Represented By Anthony A Friedman
Trustee(s):
Weneta M.A. Kosmala (TR) Represented By Beth Gaschen Jeffrey I Golden
10:30 AM
[INDEPENDENT MANAGEMENT SERVICES,TRUSTEE FIELD REPRESENTATIVE]
Docket 125
CONTINUED: Hearing Continued to 5/11/2021 at 10:30 a.m., Per Order Entered 3/24/2021 (XX) - jl/td (3/24/2021)
NONE LISTED -
Debtor(s):
Taylor Tech Inc. Represented By Anthony A Friedman
Trustee(s):
Weneta M.A. Kosmala (TR) Represented By Beth Gaschen Jeffrey I Golden
10:30 AM
Docket 268
NONE LISTED -
April 8, 2021
Grant motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Joseph Ra Represented By
David B Golubchik Jaenam J Coe
Trustee(s):
Richard A Marshack (TR) Represented By Michael G Spector Thomas J Polis
10:30 AM
Cl. #12 (Elieff) Miller Barondess LLP Cl. #4 (Morse) Miller Barondess LLP Cl. #5 (Camden) Miller Barondess LLP
FR: 5-12-20; 5-19-20; 6-23-20; 6-25-20; 7-16-20; 10-22-20; 2-4-21
Docket 360
NONE LISTED -
June 25, 2020
TENTATIVE RULING
Continue hearing to July 16, 2020 at 2:00 p.m. (XX)
July 16, 2020
Overrule that portion of the objection based on Sec. 502(b)(1) as moot in light of this court's order re substantive consolidation.
As to the 502(b)(4) portion of the objection, the following will apply:
10:30 AM
Discovery deadline of September 4, 2020
Continued hearing date: October 22, 2020 at 2:00 p.m. (XX)
Any supplemental pleadings by the objecting party must be filed by September 17, 2020; any supplemental response pleadings must be filed by October 1, 2020; any supplemental reply pleadings must be filed by October 8, 2020.
Note: If the parties accept the foregoing tentative ruling, appearance at this hearing is not required.
--------------------------------------------------------------
October 22, 2020
[Special Notice: This hearing is being conducted by Zoomgov. See the first page of the calendar for today's hearings for participation details.]
Continue hearing to February 4, 2021 at 2:00 p.m. (XX)
Note: Appearances at this hearing are not required.
February 4, 2021
Continue this matter to April 8, 2021 at 10:30 a.m. as a Status Conference; updated Status Report must be filed by April 1, 2021. (XX)
Note: Appearances at today's hearing are not required.
April 8, 2021
Overrule objection for failure to prosecute without prejudice to the chapter 7 trustee or other interested party re-filing an objection to the claim.
10:30 AM
Alternatively, Mr. Kurtin may verbally withdraw the objection during the calendar roll call, in which case a notice of withdrawal of objection must be filed within 7 days of today's hearing.
Debtor(s):
Bruce Elieff Represented By
Paul J Couchot Lisa Nelson
Movant(s):
Todd Kurtin Represented By
Lewis R Landau Edward O Morales
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe
10:30 AM
Cl. #21 (Elieff) E.O.C. Ord, Inc. Cl. # 8 (Morse) E.O.C. Ord, Inc. Cl. #10 (Camden) E.O.C. Ord, Inc.
FR: 5-12-20; 5-19-20; 6-23-20; 6-25-20; 7-16-20; 10-22-20; 2-4-21
Docket 362
NONE LISTED -
June 25, 2020
TENTATIVE RULING
Continue hearing to July 16, 2020 at 2:00 p.m. (XX)
July 16, 2020
Overrule that portion of the objection based on Sec. 502(b)(1) as moot in light of this court's order re substantive consolidation.
As to the 502(b)(4) portion of the objection, the following will apply:
10:30 AM
Discovery deadline of September 4, 2020
Continued hearing date: October 22, 2020 at 2:00 p.m. (XX)
Any supplemental pleadings by the objecting party must be filed by September 17, 2020; any supplemental response pleadings must be filed by October 1, 2020; any supplemental reply pleadings must be filed by October 8, 2020.
Note: If the parties accept the foregoing tentative ruling, appearance at this hearing is not required.
October 22, 2020
[Special Notice: This hearing is being conducted by Zoomgov. See the first page of the calendar for today's hearings for participation details.]
Continue hearing to February 4, 2021 at 2:00 p.m.(XX)
Note: Appearances at this hearing are not required.
February 4, 2021
Continue this matter to April 8, 2021 at 10:30 a.m. as a Status Conference; updated Status Report must be filed by April 1, 2021. (XX)
Note: Appearances at today's hearing are not required.
April 8, 2021
Overrule objection for failure to prosecute without prejudice to the chapter 7 trustee or other interested party re-filing an objection to the claim.
Alternatively, Mr. Kurtin may verbally withdraw the objection during the
10:30 AM
calendar roll call, in which case a notice of withdrawal of objection must be filed within 7 days of today's hearing.
Debtor(s):
Bruce Elieff Represented By
Paul J Couchot Lisa Nelson
Movant(s):
Todd Kurtin Represented By
Lewis R Landau Edward O Morales
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe
10:30 AM
FR: 5-7-20; 7-23-20; 10-22-20; 2-4-21
Docket 375
NONE LISTED -
October 22, 2020
[Special Notice: This hearing is being conducted by Zoomgov. See the first page of the calendar for today's hearings for participation details.]
Continue hearing to February 4, 2021 at 2:00 p.m. (XX)
Note: Appearances at this hearing are not required.
February 4, 2021
Continue this matter to April 8, 2021 at 10:30 a.m. as a Status Conference; updated Status Report must be filed by April 1, 2021. (XX)
Note: Appearances at today's hearing are not required.
April 8, 2021
Overrule objection for failure to prosecute without prejudice to the chapter 7 trustee or other interested party re-filing an objection to the claim.
Alternatively, Mr. Kurtin may verbally withdraw the objection during the
10:30 AM
calendar roll call, in which case a notice of withdrawal of objection must be filed within 7 days of today's hearing.
Debtor(s):
Bruce Elieff Represented By
Paul J Couchot Lisa Nelson
Movant(s):
Todd Kurtin Represented By
Lewis R Landau Edward O Morales
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe
10:30 AM
FR: 5-7-20; 7-23-20; 10-22-20; 2-4-21
Docket 376
NONE LISTED -
October 22, 2020
[Special Notice: This hearing is being conducted by Zoomgov. See the first page of the calendar for today's hearings for participation details.]
Continue hearing to February 4, 2021 at 2:00 p.m. (XX)
Note: Appearances at this hearing are not required.
February 4, 2021
Continue this matter to April 8, 2021 at 10:30 a.m. as a Status Conference; updated Status Report must be filed by April 1, 2021. (XX)
Note: Appearances at today's hearing are not required.
April 8, 2021
Overrule objection for failure to prosecute without prejudice to the chapter 7 trustee or other interested party re-filing an objection to the claim.
10:30 AM
Alternatively, Mr. Kurtin may verbally withdraw the objection during the calendar roll call, in which case a notice of withdrawal of objection must be filed within 7 days of today's hearing.
Debtor(s):
Bruce Elieff Represented By
Paul J Couchot Lisa Nelson
Movant(s):
Todd Kurtin Represented By
Lewis R Landau Edward O Morales
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe
10:30 AM
FR: 5-12-20; 5-19-20; 6-23-20; 6-25-20; 7-16-20; 10-22-20; 2-4-21
Docket 36
NONE LISTED -
June 25, 2020
TENTATIVE RULING
Continue hearing to July 16, 2020 at 2:00 p.m. (XX)
July 16, 2020
Same tentative ruling as for #45
October 22, 2020
[Special Notice: This hearing is being conducted by Zoomgov. See the first page of the calendar for today's hearings for participation details.]
Continue hearing to February 4, 2021 at 2:00 p.m. (XX)
February 4, 2021
10:30 AM
Continue this matter to April 8, 2021 at 10:30 a.m. as a Status Conference; updated Status Report must be filed by April 1, 2021. (XX)
Note: Appearances at today's hearing are not required.
April 8, 2021
Overrule objection for failure to prosecute without prejudice to the chapter 7 trustee or other interested party re-filing an objection to the claim.
Alternatively, Mr. Kurtin may verbally withdraw the objection during the calendar roll call, in which case a notice of withdrawal of objection must be filed within 7 days of today's hearing.
Debtor(s):
Broadband Nation LLC Represented By Robert P Goe
10:30 AM
FR: 5-12-20; 5-19-20; 6-23-20; 6-25-20; 7-16-20; 10-22-20; 2-4-21
Docket 35
NONE LISTED -
June 25, 2020
TENTATIVE RULING
Continue hearing to July 16, 2020 at 2:00 p.m. (XX)
July 16, 2020
Same tentative ruling as #46 (XX)
October 22, 2020
[Special Notice: This hearing is being conducted by Zoomgov. See the first page of the calendar for today's hearings for participation details.]
Continue hearing to February 4, 2021 at 2:00 p.m. (XX)
Note: Appearances at this hearing are not required.
10:30 AM
February 4, 2021
Continue this matter to April 8, 2021 at 10:30 a.m. as a Status Conference; updated Status Report must be filed by April 1, 2021. (XX)
Note: Appearances at today's hearing are not required.
April 8, 2021
Overrule objection for failure to prosecute without prejudice to the chapter 7 trustee or other interested party re-filing an objection to the claim.
Alternatively, Mr. Kurtin may verbally withdraw the objection during the calendar roll call, in which case a notice of withdrawal of objection must be filed within 7 days of today's hearing.
Debtor(s):
Broadband Nation LLC Represented By Robert P Goe
Movant(s):
Todd Kurtin Represented By
Lewis R Landau
10:30 AM
FR: 5-12-20; 5-19-20; 6-23-20; 6-25-20; 7-16-20; 10-22-20; 2-4-21
Docket 36
NONE LISTED -
June 25, 2020
TENTATIVE RULING
Continue hearing to July 16, 2020 at 2:00 p.m. (XX)
July 16, 2020
Same tentative ruling as #45 (XX)
October 22, 2020
[Special Notice: This hearing is being conducted by Zoomgov. See the first page of the calendar for today's hearings for participation details.]
Continue hearing to February 4, 2021 at 2:00 p.m. (XX)
Note: Appearances at this hearing are not required.
10:30 AM
February 4, 2021
Continue this matter to April 8, 2021 at 10:30 a.m. as a Status Conference; updated Status Report must be filed by April 1, 2021. (XX)
Note: Appearances at today's hearing are not required.
April 8, 2021
Overrule objection for failure to prosecute without prejudice to the chapter 7 trustee or other interested party re-filing an objection to the claim.
Alternatively, Mr. Kurtin may verbally withdraw the objection during the calendar roll call, in which case a notice of withdrawal of objection must be filed within 7 days of today's hearing.
Debtor(s):
Heritage Colorado LLC Represented By Robert P Goe
Movant(s):
Todd Kurtin Represented By
Lewis R Landau
10:30 AM
FR: 5-12-20; 5-19-20; 6-23-20; 6-25-20; 7-16-20; 10-22-20; 2-4-21
Docket 35
NONE LISTED -
June 25, 2020
TENTATIVE RULING
Continue hearing to July 16, 2020 at 2:00 p.m. (XX)
July 16, 2020
Same tentative ruling as #46 (XX)
October 22, 2020
[Special Notice: This hearing is being conducted by Zoomgov. See the first page of the calendar for today's hearings for participation details.]
Continue hearing to February 4, 2021 at 2:00 p.m. (XX)
Note: Appearances at this hearing are not required.
10:30 AM
February 4, 2021
Continue this matter to April 8, 2021 at 10:30 a.m. as a Status Conference; updated Status Report must be filed by April 1, 2021. (XX)
Note: Appearances at today's hearing are not required.
April 8, 2021
Overrule objection for failure to prosecute without prejudice to the chapter 7 trustee or other interested party re-filing an objection to the claim.
Alternatively, Mr. Kurtin may verbally withdraw the objection during the calendar roll call, in which case a notice of withdrawal of objection must be filed within 7 days of today's hearing.
Debtor(s):
Heritage Colorado LLC Represented By Robert P Goe
Movant(s):
Todd Kurtin Represented By
Lewis R Landau
10:30 AM
FR: 5-12-20; 5-19-20; 6-23-20; 6-25-20; 7-16-20; 10-22-20; 2-4-21
Docket 36
NONE LISTED -
June 25, 2020
TENTATIVE RULING
Continue hearing to July 16, 2020 at 2:00 p.m. (XX)
July 16, 2020
Same tentative ruling as #45 (XX)
October 22, 2020
[Special Notice: This hearing is being conducted by Zoomgov. See the first page of the calendar for today's hearings for participation details.]
Continue hearing to February 4, 2021 at 2:00 p.m. (XX)
Note: Appearances at this hearing are not required.
10:30 AM
February 4, 2021
Continue this matter to April 8, 2021 at 10:30 a.m. as a Status Conference; updated Status Report must be filed by April 1, 2021. (XX)
Note: Appearances at today's hearing are not required.
April 8, 2021
Overrule objection for failure to prosecute without prejudice to the chapter 7 trustee or other interested party re-filing an objection to the claim.
Alternatively, Mr. Kurtin may verbally withdraw the objection during the calendar roll call, in which case a notice of withdrawal of objection must be filed within 7 days of today's hearing.
Debtor(s):
TDV Development Corporation Represented By Robert P Goe
10:30 AM
FR: 5-12-20; 5-19-20; 6-23-20; 6-25-20; 7-16-20; 10-22-20; 2-4-21
Docket 35
NONE LISTED -
June 25, 2020
TENTATIVE RULING
Continue hearing to July 16, 2020 at 2:00 p.m. (XX)
Continue hearing to February 4, 2021 at 2:00 p.m. (XX)
Note: Appearances at this hearing are not required.
February 4, 2021
Continue this matter to April 8, 2021 at 10:30 a.m. as a Status Conference; updated Status Report must be filed by April 1, 2021. (XX)
Note: Appearances at today's hearing are not required.
April 8, 2021
10:30 AM
Overrule objection for failure to prosecute without prejudice to the chapter 7 trustee or other interested party re-filing an objection to the claim.
Alternatively, Mr. Kurtin may verbally withdraw the objection during the calendar roll call, in which case a notice of withdrawal of objection must be filed within 7 days of today's hearing.
Debtor(s):
TDV Development Corporation Represented By Robert P Goe
10:30 AM
Docket 439
NONE LISTED -
April 8, 2021
Grant the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
HCA West, Inc Represented By John W Lucas Jason H Rosell
Victoria Newmark
10:30 AM
Docket 18
NONE LISTED -
April 8, 2021
Grant motion on an interim basis on the terms set forth in the Motion, except that no postpetition cash collateral shall be used to pay legal fees, through and including June 10, 2021. All secured creditors will retain their liens in the same priority as existed as of the petition date. A final hearing shall be held on June 10, 2021 at 10:30 a.m.; Debtor must file any supplemental pleadings in support of the Motion by May 20, 2021; any further opposition or response must be filed by May 27, 2021; any reply must be filed by June 3, 2021.
Debtor to self-calendar a hearing on any motion to value property on its own. Court's Comments re the Motion and Opposition:
Payment of operating expenses on the property maintains the value of the property to benefit of objecting creditor A&G. A&G's objection to the use of cash collateral to pay utilities, landscaping, repairs, etc. is unreasonable. Moreover, Debtor has offered a replacement lien in the cash collateral expended (in order of priority).
Because net rents are insufficient to pay the contractual payments to the senior, 1st position lender, Debtor is not required to apportion the net rents between such senior lender and the junior lender A&G.
10:30 AM
A&G has not established a diminution in the value of its interest in the subject property entitling it to adequate protection payments. See US v. Timbers of Inwood Forest, 484 U.S. 365 (1988).
The court accepts Debtor's valuation of the property on an interim basis as it is the only admissible evidence of value that has been presented at this point. As aptly stated in In re Russell, 567 B.R. 833, 840 (Bankr.Mont.2017): "an owner is competent to give his or her opinion on the value of his or her property, most often simply by stating the conclusion without stating a reason. See Hon. Barry Russell, BANKRUPTCY EVIDENCE MANUAL, 2016–2017 ed. § 701:2; South Central Livestock Dealers, Inc. v. Security State Bank of Hedley, Tex., 614 F.2d 1056, 1061 (5th Cir. 1980). While a debtor's estimate of value may be acceptable in certain cases, the Court may give little weight to an opinion if not based upon sufficient facts. In re Plummer, 20 Mont. B.R. 468, 478 (Bankr. D. Mont. 2003). . . ." See also, Fed.R.Evid. 701. A&G's citation to Zillow is, as it has acknowledged, completely inadmissible. It's evidentiary objections to the statement of value by Enayat Ali Jiwani are, therefore, overruled.
A&G's evidentiary objection to the exhibits attached to the Motion on the basis of insufficient authentication are well-taken. Mr. Jiwani's declaration should have specifically addressed and authenticated each exhibit. Proper authentication/personal knowledge/foundation will need to be provided for the final hearing.
The court does not base its decision to grant the motion on an interim on the declaration of real estate broker David Pai as Mr. Pai is 1) not the owner of the property and 2) the conclusory declaration does not rise to the level of even a broker's opinion (e.g., no cap rate, comparables, etc.).
Pursuant to LBR 1001-1(a), the court waives the requirement of the use of Statement Regarding Cash Collateral or Debtor in Possession Financing as required by LBR 4001-2(a) in this instance but cautions Debtor's counsel to utilize this form in the future.
10:30 AM
Debtor(s):
DEA Brothers Sisters LLC Represented By Roger J Plasse
10:30 AM
Docket 23
NONE LISTED -
April 8, 2021
Approve employment application.
Special Note: The approval of this application may not be interpreted as implying approval of "co-counsel" Osborn & Plasse ("O&P") who has not filed an employment application. It is unclear what O&P's role would be re the representation of Debtor in this bankruptcy case.
Note: As this matter appears to be uncontested, appearance at the hearing is not required.
Debtor(s):
DEA Brothers Sisters LLC Represented By Roger J Plasse John H Bauer
2:00 PM
Adv#: 8:20-01136 Marshack v. Levy et al
Docket 30
CONTINUED: Status Conference Continued to 6/10/2021 at 10:30 am, Per Order Entered 3/31/2021 (XX) - am/td (4/1/2021)
NONE LISTED -
Debtor(s):
Friendly Village MHP Associates LP Represented By
Howard Camhi
Defendant(s):
Shaoul J. Levy Represented By Howard Steinberg
Levy Affiliated Holdings LLC Represented By Howard Steinberg
LEVY FRIENDLY VILLAGE, LLC Represented By
Howard Steinberg
5450 PARAMOUNT LP Represented By Howard Steinberg
Plaintiff(s):
Richard A Marshack Represented By
Shant Kabateck LLP Karnikian
2:00 PM
Trustee(s):
Joana Fang Nineli Sarkissian Brian Kabateck
Richard A Marshack (TR) Represented By
D Edward Hays Kristine A Thagard Arthur Grebow David Wood Tinho Mang Stefan Perovich
2:00 PM
Adv#: 8:20-01136 Marshack v. Levy et al
FR: 12-10-20; 2-18-21
Docket 1
CONTINUED: Status Conference Continued to 6/10/2021 at 10:30 am, Per Order Entered 3/31/2021 (XX) - am/td (4/1/2021)
December 10, 2020
No tentative ruling -- disposition will depend on the outcome of Defendants' motion to dismiss also set for this date.
Debtor(s):
Friendly Village MHP Associates LP Represented By
Howard Camhi
Defendant(s):
Shaoul J. Levy Pro Se
Levy Affiliated Holdings LLC Pro Se LEVY FRIENDLY VILLAGE, LLC Pro Se 5450 PARAMOUNT LP Pro Se
Plaintiff(s):
Richard A Marshack Represented By
2:00 PM
Trustee(s):
Shant Kabateck LLP Karnikian Joana Fang
Nineli Sarkissian Brian Kabateck
Richard A Marshack (TR) Represented By
D Edward Hays Kristine A Thagard Arthur Grebow David Wood Tinho Mang
9:30 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
9:30 AM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
9:30 AM
NONE LISTED -
9:30 AM
Adv#: 8:20-01065 Kosmala v. U.S. Customs and Border Protection
[Set per another summons issued on 7/7/2020]
FR: 9-29-20, Rm 5D; 10-1-20; 12-10-20; 2-11-21
Docket 1
CONTINUED: Status Conference Continued to 6/17/2021 at 9:30 a.m., Per Order Entered 3/18/2021 (XX) - td (3/19/2021)
NONE LISTED -
Debtor(s):
Alpha Floors, Inc. Represented By Eric J Fromme
Defendant(s):
U.S. Customs and Border Protection Pro Se
Plaintiff(s):
Weneta M.A. Kosmala Represented By Jeffrey I Golden Reem J Bello Ryan W Beall
9:30 AM
Trustee(s):
Weneta M Kosmala (TR) Represented By Reem J Bello
9:30 AM
Adv#: 8:20-01110 Myers v. Sandoval
Docket 19
NONE LISTED -
April 15, 2021
Continue this hearing to May 11, 2021 at 2:00 p.m., same date and time as the hearing on Defendant's motion to dismiss the adversary so that all matters can be heard in the same hearing. (XX)
Note: No appearances for the April 15, 2021 hearing are required.
Debtor(s):
Louis Sandoval Represented By Steven B Lever
Defendant(s):
Louis Sandoval Pro Se
Plaintiff(s):
Charlotte Cysner Myers Pro Se
Trustee(s):
Weneta M.A. Kosmala (TR) Pro Se
9:30 AM
Adv#: 8:20-01110 Myers v. Sandoval
(Another Summons Issued 10/30/2020) FR: 1-14-21
Docket 1
NONE LISTED -
January 14, 2021
No answer or other response to the Complaint has been filed by the defendant, Louis Sandoval. Accordingly, this Status Conference will be continued to April 15, 2021 at 9:30 a.m. to allow Plaintiff to file a motion for entry of a default judgment against the defendant which provides evidence to support the required elements of fraud under Bankruptcy Code Section 523(a)(2)(A). (XX)
Special Note:
A motion for default judgment may self-calendared for the same date/time as the continued Status Conference date. Alternatively, the motion may be filed without a hearing pursuant to the procedure set forth in Local Bankruptcy Rule 9013-1(o).
The motion for default judgment, supported by evidence, must be served on defendant and defendant's counsel in accordance with Local Rule 9013-1(d). If the motion for default judgment is not heard by the continued date of the Status Conference, THE ADVERSARY MAY BE DISMISSED at the Status
9:30 AM
Conference for failure to prosecute.
The court strongly suggests that Plaintiff seek legal counsel regarding the preparation of a motion for default judgment.
Note: If Plaintiff accepts the foregoing tentative ruling, appearance at today's hearing is not required; Plaintiff to serve the defendant by mail with notice of the continued hearing date/time.
April 15, 2021
Continue this hearing to May 11, 2021 at 2:00 p.m., same date and time as the hearing on Defendant's motion to dismiss the adversary so that all matters can be heard in the same hearing. (XX)
Note: No appearances for the April 15, 2021 hearing are required.
Debtor(s):
Louis Sandoval Represented By Steven B Lever
Defendant(s):
Louis Sandoval Pro Se
Plaintiff(s):
Charlotte Cysner Myers Pro Se
Trustee(s):
Weneta M Kosmala (TR) Pro Se
10:00 AM
Adv#: 8:13-01220 Bobinski v. Savastano
FR: 12-5-19; 1-16-20; 3-19-20; 4-30-20; 7-23-20; 10-22-20; 1-21-21
Docket 183
OFF CALENDAR: Order to Vacate Orders for Appearance and Examination of Guadalupe Savastano and Dominc Savastano Entered 3/16/2021 - td (3/16/2021)
December 5, 2019
Examinee Dominic Savastano to appear in court for swearing in by the courtroom clerk; the examination will thereafter proceed outside the courtroom.
January 16, 2020
Examinee Dominic Savastano to appear in court for swearing in by the courtroom clerk; the examination will thereafter proceed outside the courtroom
March 19, 2020
Continue his matter to April 30, 2020 at 10:00 a.m. in light of special pandemic policy in effect. The parties are, however, free to stipulate to an
10:00 AM
examination outside the courthouse prior to April 30, 2020. (XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required.
April 30, 2020
Continue his matter to July 23, 2020 at 10:00 a.m. in light of the special pandemic policy in effect. The parties are, however, free to stipulate to an examination outside the courthouse via video conference or otherwise prior to July 23, 2020. (XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required. Nonappearance at the hearing will be deemed acceptance of the tentative ruling.
July 23, 2020
Continue his matter to Oct. 22, 2020 at 10:00 a.m. in light of the special pandemic policy in effect. The parties are, however, free to stipulate to an examination outside the courthouse via video conference or otherwise prior to Oct. 22, 2020. (XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required. Nonappearance at the hearing will be deemed acceptance of the tentative ruling.
October 22, 2020
[Special Notice: This hearing is being conducted by Zoomgov. See the first page of the calendar for today's hearings for participation details.]
Once the witness has been sworn in by the Court Clerk, the parties will be placed in a separate Zoom break-out room for the examination scheduled for
10:00 AM
today.
January 21, 2021
Continue the third party judgment debtor examination one final time to April 15, 2021 at 10:00 a.m.; if Judgment Creditor intends to pursue an Order to Show Cause, then she must file and serve a proper motion in accordance with Local Bankruptcy Rule 9020-1; she must also serve the examinees with proper Zoom notice of the continued hearing. (XX)
Additional Comments:
Judgment Creditor was advised by the court's courtroom deputy on 1/5/21 that a proper motion had not been filed and, to date, no motion has been filed.
Judgment Creditor did not serve the examinees with Zoom notice of the hearing.
This matter will be taken off calendar if Judgment Creditor continues to failure to properly prosecute this matter.
Note: If Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required.
Debtor(s):
Luis Savastano Represented By Nathan Fransen
Defendant(s):
Luis Savastano Represented By Nathan Fransen
Plaintiff(s):
Richard Bobinski Represented By
10:00 AM
Trustee(s):
Crystal Bergstrom
Karen S Naylor (TR) Represented By
Karen S Naylor (TR)
10:00 AM
Adv#: 8:13-01220 Bobinski v. Savastano
FR: 9-12-19; 11-19-19; 1-16-20; 3-19-20; 4-30-20; 7-23-20; 10-22-20; 1-21-21
Docket 175
OFF CALENDAR: Order to Vacate Orders for Appearance and Examination of Guadalupe Savastano and Dominc Savastano Entered 3/16/2021 - td (3/16/2021)
September 12, 2019
Examinee Guadalupe Savastano to appear in court to be sworn in by the court clerk. Thereafter, the examination will take place outside the courtroom
November 19, 2019
Continued to Jan. 16, 2020 at 10:30 a.m. per stipulation of the parties. (XX)
March 19, 2020
Continue his matter to April 30, 2020 at 10:00 a.m. in light of special pandemic policy in effect. The parties are, however, free to stipulate to an examination outside the courthouse prior to April 30, 2020. (XX)
10:00 AM
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required.
April 30, 2020
Continue his matter to July 23, 2020 at 10:00 a.m. in light of the special pandemic policy in effect. The parties are, however, free to stipulate to an examination outside the courthouse via video conference or otherwise prior to July 23, 2020. (XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required. Nonappearance at the hearing will be deemed acceptance of the tentative ruling.
July 23, 2020
Continue his matter to Oct. 22, 2020 at 10:00 a.m. in light of the special pandemic policy in effect. The parties are, however, free to stipulate to an examination outside the courthouse via video conference or otherwise prior to Oct. 22, 2020. (XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required. Nonappearance at the hearing will be deemed acceptance of the tentative ruling.
October 22, 2020
[Special Notice: This hearing is being conducted by Zoomgov. See the first page of the calendar for today's hearings for participation details.]
Once the witness has been sworn in by the Court Clerk, the parties will be placed in a separate Zoom break-out room for the examination scheduled for today.
10:00 AM
January 21, 2021
Continue the third party judgment debtor examination one final time to April 15, 2021 at 10:00 a.m.; if Judgment Creditor intends to pursue an Order to Show Cause, then she must file and serve a proper motion in accordance with Local Bankruptcy Rule 9020-1; she must also serve the examinees with proper Zoom notice of the continued hearing. (XX)
Additional Comments:
Judgment Creditor was advised by the court's courtroom deputy on 1/5/21 that a proper motion had not been filed and, to date, no motion has been filed.
Judgment Creditor did not serve the examinees with Zoom notice of the hearing.
This matter will be taken off calendar if Judgment Creditor continues to failure to properly prosecute this matter.
Note: If Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required.
Debtor(s):
Luis Savastano Represented By Nathan Fransen
Defendant(s):
Luis Savastano Represented By Nathan Fransen
10:00 AM
Movant(s):
Judicial Judgment Enforcement Represented By Crystal Bergstrom
Plaintiff(s):
Richard Bobinski Represented By Crystal Bergstrom
Trustee(s):
Karen S Naylor (TR) Represented By
Karen S Naylor (TR)
10:00 AM
U.S. BANK NA VS.
DEBTOR
Docket 42
SPECIAL NOTE: Supplemental notice of hearing to be held remotely using Zoomgov audio and video, fld. 3/19/21, dkt #43 (RE: 4/15/2 hrg.) - td (3/22/2021)
April 15, 2021
[UPDATED SINCE ORIGINAL POSTING TO REFLECT LATE OPPOSITION FILED BY DEBTOR]
Though no proof of payments is attached to the late Opposition, if Movant agrees that Debtor is now current on payments, the court will grant a standard adequate protection order 1) requiring that Debtor remain current and 2) allowing Movant to file a declaration re nonpayment along with a proposed order granting immediate relief from the stay if Debtor fails to timely make a payment within the contractual grace period in the future.
Note: If the parties accept the foregoing tentative ruling, appearances at today's hearing are not required.
Note: This matter appears to be uncontested. Accordingly, no court
10:00 AM
appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Jose J Sanchez Represented By Gary Polston
Movant(s):
U.S. Bank NA, successor trustee to Represented By
JaVonne M Phillips Nancy L Lee
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
VS.
DEBTOR
FR: 2-11-21; 3-4-21; 4-1-21
Docket 35
OFF CALENDAR: Order Approving APO Entered 4/13/21- mp/td(4/13/21)
February 11, 2021
Grant with 4001(a)(3) waiver; deny relief request #7 as Movant has provided no evidence or grounds for extraordinary relief.
Basis for Tentative Ruling:
Movant seeks an order making it effective for two years -- essentially requesting relief under 362(d)(4) without meeting the requirement for such relief as set forth in 362(d)(4) (e.g., multiple filings or transfer of property).
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required if Movant accepts the tentative ruling. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
10:00 AM
March 4, 2021
Movant to advise the court re the status of this matter. If more time is needed to finalize the adequate protection order, a further continuance may be requested during the Clerk's calendar roll call prior to the commencement of the hearing. Available continued dates: March 11, 2021, April 1, 2021, April
8, 2021 or April 22, 2021 at 10:00 a.m.
April 1, 2021
No APO has been filed. Continue hearing one final time to April 15, 2021 at 10:00 a.m. (XX)
Note: Appearances not required if the parties accept the foregoing tentative ruling; Movant to serve notice of the continued hearing date/time.
April 15, 2021
Take this matter off calendar in light of APO stipulation filed 4/12/21
Note: Appearances at this hearing are not required; Movant's counsel to lodge an adequate protection order within 7 days of the hearing.
Debtor(s):
Jose J Sanchez Represented By Gary Polston
Movant(s):
Veros Credit, LLC Represented By Robert M Tennant
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
10:00 AM
VS.
DEBTOR
Docket 34
NONE LISTED -
April 15, 2021
Grant motion with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Jay Chihwan Jung Represented By Jaenam J Coe
Movant(s):
Prime Business Credit, Inc. Represented By Maria L Garcia
Aviram Edward Muhtar
10:00 AM
Trustee(s):
Scott Lee
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
VS.
DEBTOR
Docket 11
NONE LISTED -
April 15, 2021
Grant motion with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Teresa Beazley Represented By Timothy McFarlin
Movant(s):
Toyota Lease Trust, as serviced by Represented By
Austin P Nagel
Trustee(s):
Thomas H Casey (TR) Pro Se
10:00 AM
10:00 AM
VS.
DEBTORS
Docket 22
NONE LISTED -
April 15, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Ronaldo Marquez Represented By Stephen L Burton
Joint Debtor(s):
Cristina Marquez Represented By Stephen L Burton
10:00 AM
Movant(s):
Bridgecrest Credit Company, LLC Represented By
Erica T Loftis Pacheco
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
Adv#: 8:19-01108 Pipitone v. Choice Motor Credit, LLC
Docket 78
OFF CALENDAR: Voluntary Dismissal of Motion to Withdraw as Counsel filed 4/14/2021 - td (4/14/2021)
April 15, 2021
Continue hearing to May 20, 2021 at 10:30 a.m. to allow Movant to correct service issue: Debtor was not served with the Motion. However, if Movant is able to file an amended proof of service showing timely service of the Motion to Debtor within 24 hours of today's hearing, the Motion will be granted and the May 20, 2021 hearing will be taken off calendar.
Note: If Movant accepts the foregoing tentative ruling, appearance at today's hearing is not required.
Debtor(s):
Alicia K Pipitone Represented By Marc A Goldbach
Defendant(s):
Choice Motor Credit, LLC Represented By
Misty A Perry Isaacson
10:30 AM
Plaintiff(s):
Alicia Pipitone Represented By Douglas A. Crowder
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
[RICHARD A. MARSHACK, CHAPTER 7 TRUSTEE]
Docket 38
NONE LISTED -
April 15, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Milan & Sahadev Inc. Represented By John R Setlich
Trustee(s):
Richard A Marshack (TR) Represented By Donald W Sieveke
10:30 AM
[DONALD W. SIEVEKE, ATTORNEY FOR RICHARD A. MARSHACK, CHAPTER 7 TRUSTEE]
Docket 34
NONE LISTED -
April 15, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Milan & Sahadev Inc. Represented By John R Setlich
Trustee(s):
Richard A Marshack (TR) Represented By Donald W Sieveke
10:30 AM
[KARL T. ANDERSON CPA, INC., ACCOUNTANTS FOR RICHARD A. MARSHACK, CHAPTER 7 TRUSTEE]
Docket 35
NONE LISTED -
April 15, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Milan & Sahadev Inc. Represented By John R Setlich
Trustee(s):
Richard A Marshack (TR) Represented By Donald W Sieveke
10:30 AM
[THE LAW OFFICES OF MICHAEL G. SPECTOR, ATTORNEYS FOR THE REORGANIZED DEBTOR]
Docket 181
NONE LISTED -
April 15, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
MESCO, Inc. Represented By
Michael G Spector Vicki L Schennum
10:30 AM
Requiring Report on Status of Chapter 11 Case (Holding Date)
FR: 4-2-20; 9-10-20; 11-5-20; 12-17-20; 2-11-21
Docket 1
OFF CALENDAR: Order Confirming Debtor's First Amended Chapter 11 Plan of Reorganization, as Modified Entered 3/9/2021 - td (3/9/2021)
April 2, 2020
Debtor's counsel to advise the court re the status of procuring insurance for the uninsured properties.
Deadline to file plan and disclosure statement is July 25, 2020. Continue status conference to August 20, 2020 at 10:30 a.m. Updated status report must be filed by August 6, 2020 unless a plan and disclosure statement has been filed by such date, in which case the requirement of a status report will be waived.
Note: Appearance at this hearing is required.
September 10, 2020
Continue the status conference to November 5, 2020 at 10:30 a.m.; updated status report not required. (XX)
10:30 AM
Note: Appearance at this hearing is not required.
November 5, 2020
Continue status conference to January 21, 2021 at 10:30 a.m.; updated status report not required.
Note: Appearance at this hearing not required.
December 17, 2020
Continue the status conference to February 11, 2021 at 10:30 a.m. (XX)
February 11, 2021
No tentative ruling. Disposition will depend on the outcome of the confirmation hearing.
Debtor(s):
MESCO, Inc. Represented By
Michael G Spector
10:30 AM
Docket 109
NONE LISTED -
April 15, 2021
Grant the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Eric C. Bryant Represented By Christine A Kingston
Joint Debtor(s):
Gina K Bryant Represented By Christine A Kingston
Trustee(s):
Karen S Naylor (TR) Represented By Thomas H Casey
10:30 AM
Docket 43
OFF CALENDAR: Voluntary Dismissal of U.S. Trustee's Motion, filed
3/19/2021 - td (3/19/2021)
NONE LISTED -
Debtor(s):
Christopher Summers Represented By
J Scott Williams
10:30 AM
Docket 66
NONE LISTED -
April 15, 2021
Grant the Motion -- Debtor and all tenants must vacate the subject property by or before May 21, 2021, or such later time that the parties may agree to.
Basis for Tentative Ruling:
Debtor has known since he voluntarily converted the case to chapter 7 on or about January 25, 2021 that a) the property has substantial equity and b) the chapter 7 trustee would have a duty to sell the property and he, therefore, should have started making preparations to move soon thereafter.
May 21, 2021 is more than 90 days from the conversion of the case on January 25, 2021 and more than 60 days after the filing of the Motion on March 19, 2021.
Note: If the Trustee and Debtor accept the tentative ruling, appearances at today's hearing are not required.
Debtor(s):
Bryce Allen McGall Represented By
Edmond Richard McGuire
10:30 AM
Trustee(s):
Weneta M.A. Kosmala (TR) Represented By Erin P Moriarty
10:30 AM
Docket 30
NONE LISTED -
April 15, 2021
Deny the Motion.
Basis for Tentative Ruling
Using Debtor’s own figures, Prime’s third priority lien is partially secured by Debtor’s residence, and, therefore, the lien cannot be stripped under § 506(d) as a matter of law due to the anti-modification statute found in § 1322(b).
See Zimmer v. PSB Lending Corp. (In re Zimmer), 313 F.3d 1220, 1224 (9th Cir. 2002) ("The Supreme Court rejected this approach of bifurcation and stripping down, primarily because the debtors' argument failed to consider the fact that § 1322(b)(2) ‘focuses on the modification of the 'rights of holders,'… because the creditor's claim was partially secured… it was entitled to the protections of the antimodification clause.")(internal citations omitted)(citing Nobelman v. Am. Sav. Bank, 508 U.S. 324 (1993)).
The court further notes that the Guaranty signed by Jung created a debt independent from that of the primary obligor in the event of default.
Debtor(s):
Jay Chihwan Jung Represented By Jaenam J Coe
10:30 AM
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
Docket 14
NONE LISTED -
April 15, 2021
Deny the Motion due to insufficient grounds stated therefor. Basis for Tentative Ruling
Movant has the burden of proving that the case was filed for an improper purpose or in bad faith. Movant has failed to meet that burden in this instance.
Debtor(s):
Rosa A Fridman Represented By Scott Talkov
Movant(s):
Karl Avetoom Pro Se
Trustee(s):
Thomas H Casey (TR) Pro Se
10:30 AM
Docket 13
NONE LISTED -
April 15, 2021
Grant the Motion.
Basis for Tentative Ruling
Debtor seeks to avoid 7 judicial liens encumbering the condominium located at 16542 Blackbeard Lane #304, Huntington Beach, CA 92649 (the "Property") under § 522(f)("Motion")[dkt. 13]. Title is currently held by Moisey
O. Fridman and Rosa A. Fridman, Trustees of The Fridman Family Trust u/d/t April 14, 2000 ("Trust"), as to an undivided 68.3% interest and Alex Fridman, a single man, as to an undivided 31.7% interest, all as tenants in common. The fair market value of the Property is $337,687, with $230,640 (all figures rounded down) representing the fair market value of Debtor’s 68.3% interest in the Property. Debtor has claimed a homestead exemption under Code of Civil Procedure §704.730(a) in the amount of $600,000 ("Homestead Exemption"). As such, Debtor seeks to avoid the following 7 judicial liens which were all recorded in Orange County in favor of creditor Karl Avetoom ("Avetoom"):
Preliminary Exception No. | Judgment Entry Date | Judgment Recording Date | Court | Case |
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"Exception 14" | 11/18/11 | 11/18/11 | OC Superior Court | Avetoom v. Mosey and Rosa Fridman (30-2010-003454 90) ("2010 IIED Action") |
"Exception 15" | 11/18/11 | 1/17/12 | Same | 2010 IIED Action |
"Exception 17" | 8/13/14 | 9/30/14 | Same | 2010 IIED Action |
"Exception 15- Amendment" | 11/18/11 | 3/11/15 | Same | 2010 IIED Action |
"Exception 18" | 3/16/15 | 3/11/15 | Same | 2010 IIED Action |
"Exception 21" | 8/13/20 | 11/19/20 | Same | Avetoom v. Risbrough, et al. (30-2015-008207 60) ("2015 Fraudulent Transfer Action") |
"Exception 22" | 10/6/20 | 11/19/20 | Same | 2015 Fraudulent Transfer Action |
Creditors Avetoom [dkt. 16, 22, 33], Charles L. Murray III ("Murray")[dkt. 25], and Victor Balakin [dkt. 30] oppose the Motion.
The procedural objections raised by Murray and Balakin are overruled
As a preliminary matter, LBR 9013-1(f) requires that any opposition to a motion must be filed no later than 14 days before the hearing. Here, the opposition deadline in this case was April 1, 2021. Yet, Avetoom (dkt. 33- filed Apr. 13, 2021), Murray (dkt. 25-filed Apr. 7, 2021), and Balakin (dkt. 30- filed Apr. 12, 2021) all filed untimely oppositions. The court could exercise its discretion to strike these pleadings and not consider them since they were filed after the reply deadline under LBR 9013-1(f). Instead , the court will consider these pleadings by exercising its discretion under in LBR 1001-1(d)
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which states, "The court may waive the application of any Local Bankruptcy Rule in any case or proceeding, or make additional orders as it deems appropriate, in the interest of justice."
Similarly, the court will exercise of discretion under LBR 1001-1(d) to overrule the objections raised by Avetoom, Murray, and Balakin regarding Debtor’s failure to comply with LBR 4003-2 to file separate motions for each Avetoom lien to be avoided, and failing to serve a copy of the Motion and notice to purported lienholders Murray and Balakin. The court finds that the objecting parties have not been prejudiced by Debtor’s procedural deficiencies because only Avetoom’s liens are being avoided under the Motion and he had ample opportunity to object, and Murray and Balakin were able to each file their own oppositions which the court will consider.
Moreover, if the Motion is granted, Murray and Balakin would appear to benefit from ruling since their purported liens would presumably move up in priority.
The Motion is granted under § 522 (f)
The Ninth Circuit Bankruptcy Appellate Panel summarized the statutory requirements to avoid a lien under § 522(f) as follows:
There are four basic elements to avoiding a lien under §522(f)(1)(A): First, there must be an exemption to which the debtor ‘would have been entitled under subsection (b) of this section.’ 11 U.S.C. §522(f). Second, the property must be listed on the debtor’s schedules and claimed as exempt. Third, the lien must impair that exemption. Fourth, the lien must be … a judicial lien. In re Goswami, 304 B.R. 386, 390-1 (9th Cir. BAP 2003) (citing In re Mohring, 142 B.R. 389, 392-3 (9th Cir. 1994)). "The debtor has the burden of showing she is entitled to lien avoidance under section 522(f)." Mohring, 24 F.3d at 247.
As for the first element, Debtor has demonstrated that she would be entitled to the Homestead Exemption. Debtor has provided her declaration that establishes that she has lived at the Property since it was acquired in 2013 and that her 68.3% interest in the Property is property of the estate, notwithstanding that it was previously placed into a family trust. And Debtor
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has indicated her intent to continue to reside there. See Reply, 22-24; Diaz v. Kosmala (In re Diaz), 547 B.R. 329, 336 (BAP 9th Cir. 2016); But see Avetoom Opp’n [dkt. 22], 2-3. As for the second element, the Property was listed on Debtor’s schedules and claimed as exempt under Code of Civil Procedure § 704.730(a)(2) thereby satisfying the second element. See Mot., 16-17 (page nos. at top of document).
And with regard to the third element, the liens to be avoided, individually and collectively, impair Debtor’s Homestead Exemption. The fair market value of Debtor’s 68.3% interest in the Property is only $230,640 and the amount of Debtor’s Homestead Exemption is $600,000. Goswami, 304
B.R. at 390 ("Avoidance of a judicial lien may be allowed even if the claimed exemption amount is de minimis."). Thus, the liens to avoided impair Debtor’s Homestead Exemption because Debtor is unable to fully take her
$600,000 exemption in this case. Avetoom, relying on In re Pederson, 230
B.R. 158, 164 (B.A.P. 9th Cir. 1999), argues that Exceptions 14 and 15 (Part 1) [and Exception 15 Part 2 because it relates back to Exception 15 Part (1)] cannot be avoided because those liens were recorded in 2011 and 2012 and before Debtor acquired her interest in the Property in 2013. See Opp’n [dkt. 22], 4-5. because "A debtor must acquire an interest in property before the judicial lien attaches in order to be able to avoid the lien under § 522(f)(1)." Pederson, supra, at 164. The reasoning in that case is that under California law, a judgment lien recorded before a judgment debtor acquires real property attaches simultaneously with the judgment debtor’s acquisition of the real property. Id. at 163. But this case is unique because, unlike Pederson, the automatic stay was in effect at the time Debtor acquired the Property, so the judgment liens could not "attach" to Debtor’s property due to § 362(a)(5) which prohibits "any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before commencement of the case under this title." See Reply, 11-14. At best then, Exceptions 14 and 15 (Part 1) [and Exception 15 (Part 2) which relates back as an amendment to Exception (Part 1)] attached on after October 29, 2013 when the automatic stay was lifted, i.e. after Debtor had acquired her interest in the Property in May 2013. And there’s no question that the remaining liens, Exceptions 17, 18, 21, and 22 were recorded after 2013 when Debtor acquired the Property. Accordingly, the third element is satisfied for all of the liens to be avoided.
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Finally, with regard to the fourth element, all of the liens to be avoided are judicial liens which arose from Avetoom’s recording of either judgments or abstracts of judgements. See Mot., 25-66 (page nos. at top of document).
Under California law, upon recording of an Abstract of Judgment, a judgment lien is created against a debtor's real property. See CCP § 697.310(a)("[A] judgment lien on real property is created under this section by recording an abstract of a money judgment with the county recorder."). Under the Bankruptcy Code, a judgment lien is a judicial lien. See 11 U.S.C. § 101(36) (defining "judicial lien" as a "lien obtained by judgment ..."). See In re Coy, 552 B.R. 199, 203 (Bankr. C.D. Cal. 2016). Avetoom’s argument that the court should find Exception 21 is not a judicial lien because it is the product of a settlement is denied for two reasons. First, the actual document recorded giving rise to Exception 21 was a judgment- not a settlement agreement or a hearing transcript which Aveetom argues demonstrates the parties’ intent to create a lien via the settlement. See Opp’n, 5-7. Second, even consensual judgment are judicial liens subject to avoidance under § 522(f). See In re Applebaum, 162 B.R. 548, 552 (Bankr. E.D. Cal. 1993)("As with most consent judgments, the Bank's lien derives from an abstract of judgment, not the party's consent. Section 522(f) accordingly applies and the filing of the lien may be avoided.").
Finally, the court rejects Avetoom’s argument that the court’s § 522(f) ruling is a collateral attack on the parties’ prior settlement or will somehow impede on the state court’s jurisdiction. See Opp’n, 22. The avoidance of judicial liens under § 522(f) is within the bankruptcy court’s exclusive jurisdiction over Debtor’s property. See 28 U.S.C. § 1334(c) ("The district court in which a case under title 11 is commenced or is pending shall have exclusive jurisdiction…of all the property, wherever located, of the debtor as of the commencement of such case, and of property of the estate[.]"). Sustaining these arguments would have the effect of empowering the parties or the state court to limit the court’s jurisdiction to effectuate § 522(f) which would be contrary to 28
U.S.C. § 1334(c).
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Debtor(s):
Rosa A Fridman Represented By Scott Talkov
Movant(s):
Rosa A Fridman Represented By Scott Talkov
Trustee(s):
Thomas H Casey (TR) Pro Se
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Docket 49
NONE LISTED -
April 15, 2021
Deny the Motion.
Basis for Tentative Ruling
Movant has the burden of proof to demonstrate that the subject property is a single asset real estate within the meaning of Section 101(51B) of the Code. It has not met that burden in the court's view.
The court recognizes that the majority view is that undeveloped land generating no income may meet the requirements of Section 101(51B). This court does not necessarily agree with that view but, even if it did, where the property is partially developed for a purpose that will involve more than simply the operation of real property, such as a full-service hotel with restaurant, bar, laundry services, etc., 101(51B) does not apply.
Movant has not established the legal status of Debtor's interest in the real property. Debtor doesn't own fee title to the property and it is unclear whether Debtor does or does not have an active leasehold interest and, if so, the length of such lease.
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Debtor(s):
The Source Hotel, LLC Represented By Ron Bender Juliet Y Oh
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Docket 51
NONE LISTED -
April 15, 2021
Deny Motion.
A more detailed tentative ruling may be posted at any time prior to the hearing.
Debtor(s):
The Source Hotel, LLC Represented By Ron Bender Juliet Y Oh
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Docket 1
OFF CALENDAR: Order Reassigning Bankruptcy Case Pursuant to General Order 11-01 to Judge with Prior Related Case/Proceeding Entered 3/18/2021; Case Transferred to LA Division, New Case Number is 2:21-12171-BR - td (3/19/2021)
NONE LISTED -
Debtor(s):
Z Real Estate Holdings LLC Represented By Marc A Goldbach
Trustee(s):
Mark M Sharf (TR) Pro Se
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Adv#: 8:20-01174 Chicago Title Insurance Company v. Adam
Docket 6
NONE LISTED -
April 15, 2021
Grant the Motion to Dismiss Basis for Tentative Ruling:
Short Answer:
Plaintiff has not established standing to bring the Complaint.
Even if standing had been established Plaintiff was properly listed on Defendant's schedules and received notice of the bankruptcy filing and deadline to file a nondischargeability complaint. Plaintiff offers no evidence that it did not receive the bankruptcy notice. In fact, there is no declaration from any employee of Plaintiff explaining the entity's office mail procedures.
The complaint was filed seven months after the deadline. This court lacks authority to extend the deadline.
Long Answer:
On February 7, 2020, Chandra Marie Adam ("Defendant") filed a voluntary chapter 7 petition. The 341(a) meeting of creditors was first set for March 26, 2020. The deadline for dischargeability complaints was May 15, 2020 ("523 Deadline"). Debtor received her discharge on May 26, 2020.
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The Adversary Proceeding
On December 17, 2020, plaintiff Chicago Title Insurance Company, a Florida corporation ("Plaintiff") filed a nondischargeabilty complaint against Defendant alleging causes of action under §§ 523(a)(2)(A) and (a)(3)(B) ("Complaint"). The Complaint alleges that Plaintiff issued a title insurance policy to Wachovia Bank ("Wachovia") for real property that served as collateral for a HELOC obtained by Defendant and her brother during the pendency of Defendant’s parents’ chapter 7 bankruptcy case. After the chapter 7 trustee in Defendant’s parent’s bankruptcy case successfully obtained a judgment against Wachovia avoiding the unauthorized postpetition transfer of the deed of trust securing the HELOC, Plaintiff paid Wachovia pursuant to the title insurance policy and the defect in title. Plaintiff, who holds the rights and remedies available to Wachovia against Defendant due to a subrogation provision in the title insurance policy, then sued Defendant in state court and obtained a judgment in the amount of $324,185 ("State Court Judgment")(figures rounded down) for Defendant’s fraud based on misrepresentations made to Wachovia during the HELOC loan transaction with respect to the ownership of the subject property. The Complaint seeks a judgment finding the State Court Judgment to be nondischargeable.
The answer deadline was January 19, 2021 and on that date, Defendant filed the instant FRCP 12(b)(6) motion seeking to dismiss the Complaint under FRCP 12(b)(6) and FRBP 7012 for failure to allege a plausible claim for relief because the Complaint was filed almost seven months after the 523 Deadline ("Motion")[dkt. 6, 7] and ("Reply")[dkt. 18]. Plaintiff opposes the Motion ("Opposition")[dkt. 15].
Legal standard
FRCP 12(b)(6), made applicable to this adversary proceeding under FRBP 7012, provides that a party may move to dismiss a claim for relief for "failure to state a claim upon which relief can be granted[.]" In Atlantic Corp.
v. Twombly, 550 U.S. 544, 561 (2007), the Supreme Court established more stringent notice-pleading standards for motions to dismiss under FRCP 12(b) (6). A plaintiff is required to provide more than "labels and conclusions, and a
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formulaic recitation of the elements of a cause of action ...." Id. at 555. The plaintiff must provide "enough facts to state a claim to relief that is plausible on its face" to nudge "their claims across the line from conceivable to plausible[.]" Id. at 570.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The plausibility standard is not akin to a ‘probability requirement,’ but it asks more than a sheer possibility that a defendant has acted unlawfully." Id. "Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and probability of entitlement to relief." Id. While legal conclusions can provide the framework of a complaint, "they must be supported by factual allegations." Id. at 679. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. (internal citations omitted). The court must construe the complaint in the light most favorable to the plaintiff, accept all well-pleaded factual allegations as true, and "all reasonable inferences drawn from them". Johnson v. Riverside Healthcare Sys., LP., 534 F.3d 1116, 1122 (9th Cir. 1990).
The court may consider: 1) the complaint and answer; 2) any documents attached or mentioned in the pleadings; 3) documents not attached but "integral" to the claims; and 4) matters subject to judicial notice. Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010); Lee v.
City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)("If the documents are not physically attached to the complaint, they may be considered if the documents' ‘authenticity ... is not contested’ and ‘the plaintiff's complaint necessarily relies’ on them."); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 1988)("The court need not, however, accept as true allegations that contradict matters properly subject to judicial notice or by exhibit."); Gerritsen v. Warner Bros. Ent. Inc., 116 F. Supp. 3d 1104, 1118 (C.D. Cal. 2015)("The incorporation by reference doctrine "permits a district court to consider documents whose contents are alleged in a complaint and
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whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleadings."). When documents attached to a complaint contradict allegations in the complaint, the document must prevail. See Ott v. Home Sav. & Loan Assoc., 265 F.2d 643, 646 fn.1 (9th Cir. 1958) (when allegations are inconsistent with the terms of a contract attached as an exhibit, the terms of the contract must prevail over the inconsistent allegations). If the court considers evidence that is outside the four categories listed above, the court must covert the FRCP 12(b)(6) motion to a motion for summary judgment under FRCP 56. See FRCP 12(d); Gerritson, 116 F.Supp.3d at 1118.
Plaintiff lacks standing to prosecute the Complaint
In the Reply, Defendant argues that Plaintiff lacks standing because the State Court Judgment was entered in favor of "Chicago Title Insurance Company, a Nebraska corporation" but the Complaint alleges that Plaintiff is "Chicago Title Company, a Florida corporation." See Reply, 6-7; Compl., ¶4 and Ex. 23. Although this argument was raised for the first time in the Reply, the court will consider it because the court can raise the issue of standing sua sponte. Se Carrico v. City & Cnty of San Francisco, 656 F.3d 1002, 1005 (finding that a court may raise standing issue at any time sua sponte).
Standing is comprised of two components as follows:
Standing is comprised of Article III requirements and prudential considerations: "[S]tanding jurisprudence contains two strands: Article III standing, which enforces the Constitution's case-or- controversy requirement... and prudential standing, which embodies "judicially self-imposed limits on the exercise of federal jurisdiction[.]" Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11–12 (2004)(citation omitted), abrogated on other grounds by Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014). "A federal court may exercise jurisdiction over a litigant only when that litigant meets constitutional and prudential standing requirements." In re Veal,
450 B.R. 897, 906 (B.A.P. 9th Cir. 2011)(citing Elk Grove Unified Sch. Dist.).
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First, the plaintiff must have suffered an "injury in fact" - an invasion of a legally protected interest which is (a) concrete and particularized, and (b) "actual or imminent, not 'conjectural' or 'hypothetical."'
Second, there must be a causal connection between the injury and the conduct complained or - the injury has to be "fairly traceable to the challenged action of the defendant, and not ... the result [ of] the independent action of some third party not before the court."
Third, it must be "likely," as opposed to merely "speculative," that the injury will be redressed by a favorable decision."
Kardules v. City of Columbus, 95 F.3d at 1346 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-1 (1992)). The party invoking federal jurisdiction has the burden of establishing the elements of standing. Id. at 561-562. Each element of standing "must be supported with the manner and degree of evidence required at each
successive stage of the litigation." Defenders of Wildlife, 504 U.S. 16 at 561.
In this case, Defendant’s argument focuses on the first element of Article III standing, injury-in-fact. The plaintiff must clearly allege sufficient facts demonstrating injury-in-fact. Spokeo, Inc. v. Robins,
578 U.S._, 136 S.Ct. 1540 (2016). Under the Twombley/Iqbal standards, the complaint must allege sufficient facts to make the operative allegations "plausible," even as to allegations pertaining to injury-in-fact that would give rise to subject matter jurisdiction. Amidax Trading Group v. S.W.I.F.T. SCRL, 671 F.3d 140, 145-149 (2d Cir. 2011). Viewing the allegations in the Complaint as true, on the face of the Complaint, Plaintiff lacks standing because it has not suffered any injury-in-fact. "Chicago Title Insurance Company, a Nebraska corporation" ("CTIC-Neb") obtained the State Court Judgment, not Plaintiff, who is a separate legal entity incorporated in Florida. Because the Complaint does not explain how Plaintiff came to acquire the rights of CTIC-Neb under the State Court Judgment, Plaintiff has
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failed to state a plausible claim for relief since Plaintiff lacks standing.
Plaintiff has failed to allege a plausible claim for relief under § 523 Under Rule 4007(c), the deadline to file a dischargeability complaint is
60 days after the first date set for the meeting of creditors. The primary purpose for the deadline in Rule 4007(c) is to facilitate the debtor's fresh start in a timely and expeditious manner. See Schunck v. Santos (In re Santos), 112 B.R. 1001, 1006 (9th Cir. BAP 1990). Rule 9006(b)(3) authorizes the court to enlarge the time for filing a complaint under Rule 4007(c) only when a motion for such an extension is made before the time has expired.
In this case, the court served notice of the 523 Deadline on February 9, 2020 to "Chicago Title Insurance Company" at Plaintiff’s main Orange County office located at 16969 Von Karmen Ave, Ste. 150, Irvine , CA 92606 ("OC Office"). See Mot. Ex. A. And there is no question that the Complaint was filed almost seven months after the 523 Deadline and that Plaintiff did not file a motion to extend the 523 Deadline before it expired. Accordingly, Defendant argues that the Complaint is barred by Rule 4007(c). See Mot.,
2-3.
Plaintiff counters that the Complaint is not time barred because notice was improper due to Defendant improperly scheduling Plaintiff’s debt and did not include the address for Plaintiff’s attorneys in the underlying state court action. See Opp’n, 7-8. In addition, Plaintiff argues that Defendant "cleverly" chose to list the OC Office in an effort to not provide notice to Plaintiff and Defendant’s schedules lacked identifying information which would have made it easier for Plaintiff to determine that Defendant was judgment debtor of Plaintiff. Id. at 6. These arguments are unpersuasive for several reasons.
First, Defendant duly scheduled the debt owed to Plaintiff. In determining whether a debtor has been duly scheduled, the BAP has explained:
The correct test is whether this debt was scheduled in time to permit a timely request for a determination of discharge or a timely proof of claim. In
order for a debt to be duly listed, the debtor must state the name and address
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of the creditor. The burden is on the debtors to use reasonable diligence in
completing their schedules and lists. If a creditor proves that an address is
incorrect, the debtor must justify the inaccuracy in preparing his schedules....
An incorrect or careless omission is not enough.
In re Fauchier, 71 B.R. 212, 215 (B.A.P. 9th Cir. 1987); In re Kern, 171 B.R.
679, 682 (Bankr. D. Ariz. 1994).
Here, Debtor has explained the efforts she went through to find an address for CTIC-Neb which were reasonable in light of the fact that this search proved to be more difficult since CTIC-Neb was a dissolved corporation. See Mot. 6-8. The 523 Deadline notice also included Defendant’s identifying information. See Reply, 3. More importantly, Plaintiff has not argued that the OC Office is not a valid address for Plaintiff or that it was not actually received in that office.. See generally, Opp’n. The court finds that Plaintiff’s debt was properly scheduled.
Second, because there is a presumption that the court’s mailing of the 523 Deadline notice was received by Plaintiff. "The Supreme Court has held that upon proof that mail is properly addressed, stamped and deposited in an appropriate receptacle, it is presumed to have been received by the addressee in the ordinary course of the mails." In re De la Cruz, 176 B.R. 19, 22 (B.A.P. 9th Cir. 1994). "In order to rebut this presumption, something more than a mere declaration of a creditor alleging non-receipt is required." Id. Here, Plaintiff has failed to rebut the presumption that it received the 523 Deadline notice because Plaintiff has not demonstrated that the OC Office is not a valid address for Plaintiff.
Third, the argument that Defendant was required to serve Plaintiff’s state court counsel is flawed because an "attorney who has represented a creditor in state court proceedings does not, by virtue of that relationship alone, represent the creditor with respect to that same debt in a federal bankruptcy proceeding." Fauchier, 71 B.R. at 215. Finally, the Complaint fails to allege when Plaintiff received actual notice of Defendant’s bankruptcy filing. See Mot., 8-9. This date is relevant because, "The Ninth Circuit has held that notice is sufficient when the creditor has actual knowledge of the bankruptcy filing in time to file a complaint under § 523." De la Cruz, 176 B.R.
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at 23. Accordingly, viewing the allegations in the Complaint in the light most favorable to Plaintiff, Plaintiff has not pled plausible claims for relief under § 523 because the Complaint is time-barred by FRBP 4007(c).
Debtor(s):
Chandra Marie Adam Pro Se
Defendant(s):
Chandra Marie Adam Pro Se
Plaintiff(s):
Chicago Title Insurance Company Represented By
Karen A Ragland
Trustee(s):
Thomas H Casey (TR) Pro Se
2:00 PM
Adv#: 8:20-01174 Chicago Title Insurance Company v. Adam
FR: 3-11-21
Docket 1
- NONE LISTED -
March 11, 2021
Continue Status Conference to April 15, 2021 at 2:00 p.m., same date/time as Defendant's Motion to Dismiss Adversary Proceeding; updated status report not required. (xx)
Note: Appearances at this Status Conference are not required; Plaintiff to serve notice of the continued hearing date/time.
April 15, 2021
Take the matter off calendar if the motion to dismiss the adversary proceeding is granted.
Debtor(s):
Chandra Marie Adam Pro Se
Defendant(s):
Chandra Marie Adam Pro Se
2:00 PM
Plaintiff(s):
Chicago Title Insurance Company Represented By
Karen A Ragland
Trustee(s):
Thomas H Casey (TR) Pro Se
10:00 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for Judge Erithe A. Smith’s Cases" on the Court's website at:
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https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
- NONE LISTED -
10:00 AM
Docket 5
- NONE LISTED -
Debtor(s):
Plamex Investment, LLC Represented By Ron Bender Juliet Y Oh Monica Y Kim
10:00 AM
Docket 6
- NONE LISTED -
Debtor(s):
Plamex Investment, LLC Represented By Ron Bender Juliet Y Oh Monica Y Kim
9:00 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
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Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
- NONE LISTED -
9:30 AM
[TA CASE]
Docket 11
- NONE LISTED -
Debtor(s):
Patrick Michael Herrle Pro Se
Trustee(s):
Thomas H Casey (TR) Pro Se
9:30 AM
Docket 14
- NONE LISTED -
Debtor(s):
Bilal Temel Represented By
Clifford Bordeaux
Trustee(s):
Jeffrey I Golden (TR) Pro Se
9:30 AM
Docket 17
- NONE LISTED -
Debtor(s):
Kimberly Dawn Peterson Represented By Brian J Soo-Hoo
Trustee(s):
Thomas H Casey (TR) Pro Se
9:30 AM
Docket 11
- NONE LISTED -
Debtor(s):
Manuel Rivera Represented By Arlene M Tokarz
Joint Debtor(s):
Teresita Rivera Represented By Arlene M Tokarz
Trustee(s):
Richard A Marshack (TR) Pro Se
9:30 AM
[TA CASE]
Docket 9
- NONE LISTED -
Debtor(s):
Yvonne Gutierrez Represented By Marlin Branstetter
Trustee(s):
Karen S Naylor (TR) Pro Se
9:30 AM
Docket 8
- NONE LISTED -
Debtor(s):
Blanca Maritza Lopez-Choc Represented By Marlin Branstetter
Trustee(s):
Karen S Naylor (TR) Pro Se
9:30 AM
Docket 12
- NONE LISTED -
Debtor(s):
Jae Woo Lee Pro Se
Joint Debtor(s):
Kyung A Kang Pro Se
Trustee(s):
Richard A Marshack (TR) Pro Se
9:30 AM
Hearing RE: Pro se Reaffirmation Agreement Between Debtor and Toyota Motor Credit Corporation (RE: 2016 Toyota Camry - Amount: $16,215.56) [SC CASE]
Docket 9
- NONE LISTED -
Debtor(s):
Frances Elaine Hill Tran Pro Se
Trustee(s):
Weneta M.A. Kosmala (TR) Pro Se
9:30 AM
(RE: 2016 Nissan Maxima Sedan 4D S V6 - $18,021.22) [TA CASE]
Docket 12
- NONE LISTED -
Debtor(s):
Sheldon Chester Goodridge Pro Se
Trustee(s):
Karen S Naylor (TR) Pro Se
9:30 AM
Docket 7
- NONE LISTED -
Debtor(s):
Jennyfer Sickler Represented By Julie J Villalobos
Trustee(s):
Thomas H Casey (TR) Pro Se
1:00 PM
Adv#: 8:17-01226 Marshack v. Wallace et al
Docket 0
- NONE LISTED -
Debtor(s):
29 Prime, Inc. Represented By
Richard L Barnett Christine D Barker
Defendant(s):
Russell B. Wallace Pro Se
1Network.Com Pro Se
Tony Redman Pro Se
Jason Martin Pro Se
Local Zoom, Inc. Pro Se
OC Listing, Inc. Pro Se
Sky Motorsports, Inc. Pro Se
Haleh Fardi Pro Se
Plaintiff(s):
Richard A. Marshack Represented By
Rosemary Amezcua-Moll
1:00 PM
Trustee(s):
Richard A Marshack (TR) Represented By Caroline Djang
Rosemary Amezcua-Moll
9:30 AM
#1.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
9:30 AM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
- NONE LISTED -
9:30 AM
- NONE LISTED -
9:30 AM
Adv#: 8:17-01073 Woodlawn Colonial, L P v. Delannoy
FR: 7-27-17; 9-21-17, 4-12-18; 5-31-18; 7-19-18; 9-20-18; 12-6-18; 3-21-19;
5-9-19; 6-18-19; 9-19-19; 11-21-19; 1-30-20; 4-2-20; 7-16-20; 10-22-20
Docket 1
SPECIAL NOTE: Order Granting Plaintiff Woodlawn Colonial, L.P.'s
Motion (1) to Dismiss Plaintiff's First & Second Claims for Relief; & (2) for Entry of Judgment on Plaintiff's Third Claim for Relief Entered 9/6/2019; Non-Dischargeable Judgment Entered 9/6/2019. Remaining Issue is Defendant's Counterclaim fld 6/12/17, dkt #7 - td (9/6/2019)
CONTINUED: Status Conference Continued to 7/22/2021 at 9:30 a.m., Per Order Entered 4/8/2020 (XX) - am (4/8/2021)
July 27, 2017
No tentative ruling -- the disposition of the status conference will depend upon the outcome of Plaintiff's motion for stay of the adversary proceeding, which set on today's 10:30am calendar.
September 21, 2017
Impose sanctions against counsel for Plaintiff in the amount of $100 for failure to file joint status report as required by LBR 7016-1.
Discovery Cut-off Date: Jan. 18, 2018
9:30 AM
Deadline to File Pretrial Motions: Feb. 1, 2018
Reserved hearing date re Pretrial Motions: Mar. 8, 2018 at 2:00 p.m. (xx) Pretrial Conference: Apr. 12, 2018 at 9:30 a.m. (XX)
Deadline to File Pretrial Stipulation Mar. 29, 2018
Special Note: Defendant's counterclaim may be moot in light of the sale of the truck by the Trustee.
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
July 19, 2018
In light of pending appeal, continue status conference to September 20, 2018 at 9:30 a.m., updated status report must be filed by September 13, 2018. (XX)
Note: Appearances at this hearing are not required.
September 20, 2018
Continue status conference to December 6, 2018 at 9:30 a.m.; updated status report must be filed by November 29, 2018. (XX)
Note: Appearances at today's hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
December 6, 2018
Continue status conference to March 21, 2019 at 9:30 a.m.; updated joint status report must be filed by March 7, 2019 (XX)
Note: Appearances at today's hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
9:30 AM
March 21, 2019
Continue status conference to May 9, 2019 at 2:00 p.m., same date/time as hearing on Plaintiff's motion for summary judgment; updated status report not required. (XX)
Note: Appearances at the March 21, 2019 status conference are not required.
Debtor(s):
Chad Paul Delannoy Represented By Robert P Goe Charity J Manee
Defendant(s):
Chad Paul Delannoy Represented By Robert P Goe Charity J Manee
Thomas J Eastmond
Plaintiff(s):
Woodlawn Colonial, L P Represented By Howard M Bidna Evan Rothman
Trustee(s):
Thomas H Casey (TR) Represented By Thomas H Casey Kathleen J McCarthy
9:30 AM
Adv#: 8:17-01101 Martin D. Fern, individually and as Trustee of the v. Chamberlain et al
[fr: 9/26/17, 3/7/18, 9/26/18, 1/9/19, 6/12/19, 12/11/19, 3/4/20]; 9/30/20, Rm 5D; 10-1-20; 1-21-21
Docket 20
- NONE LISTED -
October 1, 2020
In light of pending state court litigation, continue this matter to January 21, 2021 at 10:30 a.m. (XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required.
January 21, 2021
In light of pending state court litigation, continue this matter to April 22, 2021 at 9:30 a.m.; updated Joint Status Report must be filed no later than April 8, 2021 and must include a copy of the Superior Court order or notice re the suspension of civil trials. (XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required.
April 22, 2021
9:30 AM
Continue hearing to August 19, 2021 at 9:30 a.m.; updated joint status report must be filed by August 5, 2021.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required.
Debtor(s):
David Tudor Chamberlain Represented By Jeffrey I Golden Alan J Friedman Beth Gaschen
Defendant(s):
David Tudor Chamberlain Represented By Gregory S Page
Linda Chamberlain, an individual Represented By
Gregory S Page
Plaintiff(s):
Martin D. Fern, individually and as Represented By
Eric P Israel Sonia Singh
Linda Taylor-Fern, individually and Represented By
Eric P Israel Sonia Singh
9:30 AM
Adv#: 8:17-01101 Martin D. Fern, individually and as Trustee of the v. Chamberlain et al
[fr: 8/22/17, 9/26/17, 3/7/18, 9/26/18, 1/9/19, 6/12/19, 12/11/19, 3/4/20]; 9-30-20, Rm 5D; 10-1-20; 1-21-21
Docket 1
- NONE LISTED -
October 1, 2020
In light of pending state court litigation, continue this matter to January 21, 2021 at 10:30 a.m. Plaintiff shall file a status report regarding the status of the state court trial by or before January 7, 2021.(XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiffs shall serve Defendants with notice of the continued hearing date/time.
January 21, 2021
In light of pending state court litigation, continue this matter to April 22, 2021 at 9:30 a.m.; updated Joint Status Report must be filed no later than April 8, 2021 and must include a copy of the Superior Court order or notice re the suspension of civil trials. (XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required.
9:30 AM
April 22, 2021
Continue hearing to August 19, 2021 at 9:30 a.m.; updated joint status report must be filed by August 5, 2021.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required.
Debtor(s):
David Tudor Chamberlain Represented By Jeffrey I Golden Alan J Friedman Beth Gaschen
Defendant(s):
David Tudor Chamberlain Pro Se Linda Chamberlain, an individual Pro Se
Plaintiff(s):
Martin D. Fern, individually and as Represented By
Eric P Israel
Linda Taylor-Fern, individually and Represented By
Eric P Israel
9:30 AM
Adv#: 8:19-01218 Marshack v. Kim et al
FR: 2-6-20; 10-8-20; 1-21-21
Docket 1
SPECIAL NOTE: Status Conference Scheduled for 4/22/2021 at 9:30 a.m. (as to Defendants Gill Sun and Ik Kim) - td (7/31/2020)
SPECIAL NOTE: Notice of Voluntary Dismissal of Only Defendant Ik Dong Kim, aka Kim Zk Dong, an individual, with Prejudice, filed 2/3/2021 - td (2/3/2021); Notice of Voluntary Dismissal of Only Defendant Gill Su Sun, an individual, with Prejudice, filed 3/25/2021 - td (3/26/2021)
CONTINUED: Pre-trial Conference Continued to 5/20/2021 at 9:30 a.m., Per Order Enteed 3/29/2021 (XX) - td (3/29/2021)
February 6, 2020
Discovery Cut-off Date: June 1, 2020
Deadline to Attend Mediation: June 15, 2020
Pretrial Conference Date: July 16, 2020 at 9:30 a.m. (XX)
Deadline to Lodge Joint Pretrial Stipulation: July 6, 2020
Special Note: The joint status report filed 1/28/20 provides very little information regarding the status of the case, why there is no discovery schedule, and why Plaintiff is waiting for non-answering defendants to
9:30 AM
participate. Per the docket, only one defendant, Minho An, was granted an extension of time to January 7, 2020 to file an answer. An's answer was timely filed.
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
Debtor(s):
Prime Metals U.S.A., Inc. Represented By Steven Werth
Defendant(s):
Ik Dong Kim Pro Se
Gill Su Sun Pro Se
Minho An Pro Se
Plaintiff(s):
Richard A Marshack Represented By Ronald S Hodges Robert P Goe Ryan S Riddles
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Laila Masud David M Goodrich Robert P Goe
9:30 AM
Adv#: 8:19-01218 Marshack v. Kim et al
(Another Summons Issued 2/11/2020) FR: 4-30-10; 6-4-20; 8-6-20; 11-5-20
Docket 1
SPECIAL NOTE: Pre-trial Conference Scheduled for 4/22/2021 at 9:30
a.m. (as to Defendant Minho An) - td (7/31/2020)
OFF CALENDAR: Notice of Voluntary Dismissal of Only Defendant Ik Dong Kim, aka Kim Zk Dong, an individual, with Prejudice, filed 2/3/2021; Notice of Voluntary Dismissal of Only Defendant Gill Su Sun, an individual, with Prejudice, filed 3/25/2021 (No Answer Nor Motion for Summary Judgment filed by Either Defendant Filed) - td (3/26/2021)
[Special Notice: This hearing is being conducted by Zoomgov. See the first page of the calendar for today's hearings for participation details.]
August 6, 2020
Joint status report was not timely filed by July 23, 2020 as required by this court's order entered June 2, 2020 [docket #24]. Impose sanctions in the amount of $100 against Plaintiff's counsel.
9:30 AM
November 5, 2020
Continue the adversary proceeding as a Status Conference as to defendants Gill Sun and Ik Kim to April 22, 2021 at 9:30 a.m. Any request for default and/or motion for default judgment as to Defendant Sun must be filed so that it can be heard or decided on or prior to April 22, 2021. Defendant Kim must be served with the summons and complaint on or prior to February 1, 2021. As to Defendant Minho An, the existing discovery and mediation deadlines stand, as well as the pretrial conference scheduled for April 22, 2021 at 9:30
a.m. (XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiff shall lodge an order consistent with the same within 7 days of the hearing.
Debtor(s):
Prime Metals U.S.A., Inc. Represented By Steven Werth
Defendant(s):
Ik Dong Kim Pro Se
Gill Su Sun Pro Se
Minho An Represented By
Michael H Yi
Plaintiff(s):
Richard A Marshack Represented By Ronald S Hodges Robert P Goe Ryan S Riddles
Trustee(s):
Richard A Marshack (TR) Represented By
9:30 AM
D Edward Hays Laila Masud David M Goodrich Robert P Goe
9:30 AM
Adv#: 8:19-01084 Constantin et al v. Duff
(Set per Order Entered 2/8/2021) FR: 3-11-21
Docket 1
- NONE LISTED -
April 22, 2021
Take this matter off calendar in light of Plaintiff's pending motion to dismiss this adversary proceeding.
Note: Appearances at this hearing are not required.
Debtor(s):
Michael J Duff Pro Se
Defendant(s):
Michael J. Duff Represented By David Brian Lally
Plaintiff(s):
Holly Constantin Represented By Alan W Forsley
Michael Constantin Represented By Alan W Forsley
9:30 AM
Trustee(s):
Richard A Marshack (TR) Pro Se
9:30 AM
Adv#: 8:19-01108 Pipitone v. Choice Motor Credit, LLC
FR: 8-22-19; 10-3-19; 11-21-19; 1-16-20; 8-6-20; 9-10-20; 11-5-20; 12-17-20
Docket 1
CONTINUED: Pre-trial Conference Continued to 6/17/2021 at 9:30 a.m., Per Order Entered 3/1/2021 (XX) - td (3/1/2021)
August 22, 2019
Continue Status Conference to October 3, 2019 at 9:30 a.m. (XX)
A motion for default judgment may self-calendared for the same date/time as the continued Status Conference date. Alternatively, the motion may be filed without a hearing pursuant to the procedure set forth in Local Bankruptcy Rule 9013-1(o).
The motion for default judgment, supported by evidence, must be served on defendant and defendant's counsel in accordance with Local Rule 9013-1(d).
If the motion for default judgment is not heard by the continued date of the Status Conference, THE ADVERSARY MAY BE DISMISSED at the Status Conference for failure to prosecute.
Note: Appearance at this hearing is not required; Plaintiff to serve Defendant with notice of the continued status conference date/time.
9:30 AM
October 3, 2019
Continue status conference to November 21, 2019 at 9:30 a.m.; updated status report must be filed by November 7, 2019. (XX)
The status conference is being continued in light of Plaintiff's representations in the status report that some issues have been resolved and that Defendant has hired new counsel to set aside default.
Note: Appearance at this hearing is not required; Plaintiff to serve Defendant with notice of the continued status conference date/time.
January 16, 2020
Discovery Cut-off Date: May 15, 2020
Deadline to Attend Mediation: June 30, 2020
Pretrial Conference Date: Aug. 6, 2020 at 9:30 a.m. (XX) Deadline to File Joint Pretrial Stipulation: July 23, 2020
Special Note: In the JSR, Plaintiff seeks more than 7 months to complete discovery without explanation.
Note: If all parties accept the the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
November 5, 2020
Continue the Pretrial Conference to December 17, 2020 at 9:30 a.m. Plaintiff must file and serve any motion for leave to amend the Complaint by or before November 19, 2020, such that the motion can be decided and/or heard by December 17, 2020. (XX)
Note: If both parties accept the foregoing tentative ruling, appearances
9:30 AM
at today's hearing are not required.
December 17, 2020
Continue the Pretrial Conference to April 22, 2021 at 9:30 a.m.; Joint Pretrial Stipulation must be filed by April 8, 2021. (XX)
Debtor(s):
Alicia K Pipitone Represented By Marc A Goldbach
Defendant(s):
Choice Motor Credit, LLC Represented By
Misty A Perry Isaacson
Plaintiff(s):
Alicia Pipitone Pro Se
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
9:30 AM
Adv#: 8:20-01156 Kosmala v. Xia
U.S.C. § 548(A)(1)(A); (3) To Avoid Fraudulent Transfer Pursuant To 11 U.S.C.
§ 548(A)(1)(B); (4) For Recovery Of Avoided Transfers Under 11 U.S.C. § 550;
(5) To Preserve Transfer For The Benefit Of The Estate Pursuant To 11 U.S.C.
§ 551; (6) Turnover Of The Property Of The Estate Pursuant To 11 U.S.C. § 542 Nature of Suit: (11 (Recovery of money/property - 542 turnover of property))
(Another Summons Issued 2-3-21)
Docket 1
- NONE LISTED -
April 22, 2021
In light of default entered against Defendant on April 9, 2021, continue the Status Conference to June 17, 2021 at 9:30 a.m.
Special Note:
A motion for default judgment may self-calendared for the same date/time as the continued Status Conference date. Alternatively, the motion may be filed without a hearing pursuant to the procedure set forth in Local Bankruptcy Rule 9013-1(o).
The motion for default judgment, supported by evidence, must be served on defendant and defendant's counsel in accordance with Local Rule 9013-1(d). If the motion for default judgment is not heard by the continued date of the Status Conference, THE ADVERSARY MAY BE DISMISSED at the Status Conference for failure to prosecute.
9:30 AM
Note: Appearance at this hearing is not required; Plaintiff shall serve Defendant with notice of the continued hearing date/time.
Debtor(s):
Alpha Floors, Inc. Represented By Eric J Fromme
Defendant(s):
Feiyu Xia Pro Se
Plaintiff(s):
Weneta Kosmala Represented By Reem J Bello
Trustee(s):
Weneta M.A. Kosmala (TR) Represented By Reem J Bello
9:30 AM
Adv#: 8:19-01234 Miller v. Elieff et al
FR: 4-2-20; 6-18-20; 12-17-20
Docket 2
OFF CALENDAR: Order Approving Stipulation Between Plaintiff Jacqueline Miller and Defendant Bruce Elieff Regarding Resolution of Case Entered 4/12/2021. Order on Request for Dismissal Pursuant to FRBP 7041 of Defendant Camden, LLC Entered 4/19/2021 - td (4/19/2021)
April 2, 2020
No joint status report has been timely filed. The parties must appear and advise the court as to why the JSR was not timely filed..
Note: Telephonic appearances by the parties' counsel are required.
June 18, 2020
Continue status conference to December 17, 2020 at 9:30 a.m.; updated joint status report must be filed by December 3, 2020. (XX)
Note: If both parties accept the foregoing tentative ruling, appearances
9:30 AM
at this hearing are not required and Plaintiff shall serve notice of the continued hearing date/time.
December 17, 2020
Discovery Cut-off Date: Mar. 17, 2021
Pretrial Conference Date: Apr. 22, 2021 at 9:30 a.m. (XX)
Deadline to file Joint Pretrial Stipulation: Apr. 8, 2021
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
Debtor(s):
Bruce Elieff Represented By
Paul J Couchot Lisa Nelson
Defendant(s):
Bruce Elieff Represented By
Jeffrey S Benice
4627 Camden, LLC Represented By Jeffrey S Benice
Plaintiff(s):
Jacqueline Miller Represented By James Denison
9:30 AM
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe
10:00 AM
VS.
DEBTORS
Docket 46
- NONE LISTED -
April 22, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Jorge Sanchez Represented By Kevin Tang
Joint Debtor(s):
Zoila Quinonez Represented By Kevin Tang
10:00 AM
Movant(s):
TD Auto Finance LLC Represented By Sheryl K Ith
Trustee(s):
Jeffrey I Golden (TR) Pro Se
10:00 AM
VS.
DEBTOR
Docket 62
- NONE LISTED -
April 22, 2021
Continue hearing to June 3, 2021 at 2:00 p.m., same date and time as the hearing on Movant's motion to excuse the state court receiver from the turnover requirements of 11 U.S.C. Section 543. Ordinary 21/14/7 briefing deadlines under LBR 9013-1 apply.
Special Note:
Tentative ruling for 6/3/21: Based on the evidence presented thus far, the court is inclined to deny the Motion due to the lack of evidence that the property has declined in value since the petition date and the lack of evidence to refute the owner's opinion as to the value of the property. Despite the tentative ruling, the court declines to rule at today's hearing or to entertain oral argument because it would like to view the Motion in the context of the turnover motion.
Additional note to the parties: In this court, pleadings rife with snide, petty, snarky hyperbole is unpleasantly distracting and degrades the quality of one's argument and position.
10:00 AM
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required.
Debtor(s):
The Source Hotel, LLC Represented By Ron Bender Juliet Y Oh
10:00 AM
VS.
DEBTORS
Docket 10
- NONE LISTED -
April 22, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Jonathan E Hicks Represented By Bert Briones
Joint Debtor(s):
Christi A Hicks Represented By Bert Briones
Movant(s):
ACAR Leasing LTD d/b/a GM Represented By
10:00 AM
Trustee(s):
Sheryl K Ith
Richard A Marshack (TR) Pro Se
10:00 AM
Docket 10
- NONE LISTED -
April 22, 2021
Grant motion on condition that Debtor provides proof of permanent loan modification from SPS by or before April 29, 2021. If Debtor fails to provide such proof, the Motion will be denied.
Basis for Tentative Ruling
The loan modification eliminating over $50,000 in arrearages is the only substantive changed financial circumstances. Absent the loan modification, Debtor is actually in a worse financial condition in the current case (see below).
Notwithstanding the slight increase in her spouse's hourly wage rate, Debtor's net monthly income in the current case ($6,418.35) is less than her net monthly income in the prior case ($6,487.58). More significantly, Debtor's net disposable income in the current case ($1,603.82) is less than the disposable income in her prior case ($2,852.58), a reduction of $1,248.76 in disposable income. Further, it appears Debtor has fallen further behind in HOA payments -- $38,686.04 in arrearages in the prior plan vs. $45,235.00 in the current plan. Finally, Debtor now has a $520.00 monthly car payment and
10:00 AM
overall monthly expenses have increased by $1,179.53.
Debtor has had two prior unsuccessful chapter 13 cases (18-13735ES and 19-13509), both of which were dismissed due to failure to make plan payments with disposable income almost double the current case.
Note: If Debtor accepts the tentative ruling, appearance at this hearing is not required.
Debtor(s):
Erica Duarte Bruce Represented By Andrew Moher
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
(2) Requiring Report on Status of Chapter 11 Case
[Lead Case: (Lead Case: Hytera Communications America (West), Inc. (Case Number: 8:20-bk-11507-ES) ] Jointly Administered With Member Cases: Hytera America Incorporated (Case Number: 8:20-bk-11508-ES) and HYT North America, Inc. (Case Number: 8:20-bk-11509-ES)]
FR: 8-6-20; 12-17-20
Docket 1
CONTINUED: Status Conference Continued to 5/6/2021 at 10:30 a.m. on Court's Own Motion. Pachulski Stang Ziehl & Jones LLP will Provide Notice, per Nancy Lockwood (XX) - td (2/17/2021)
August 6, 2020
Continue Status Conference to December 17, 2020 at 10:30 am; updated Status Report must be filed by December 3, 2020. (XX)
Note: If Debtors are in substantial compliance with the requirements of the United States Trustee, appearance at this Status Conference is not required. It is Debtors' responsibility to confirm the status of their compliance with the UST in advance of the hearing. The court will issue its own order re continuance of the hearing.
December 17, 2020
10:30 AM
Continue Status Conference to April 22, 2021 at 10:30 a.m.; updated Status Report must be filed by April 15, 2021 unless a plan and disclosure statement has been filed by such date, in which case the requirement of an updated status report shall be waived. (XX)
Note: Appearance at this hearing is not required.
Debtor(s):
HCA West, Inc Represented By John W Lucas Jason H Rosell
Victoria Newmark
2:00 PM
Adv#: 8:20-01010 Grobstein v. Degner
Docket 82
CONTINUED: Hearing Continued to 5/6/2021 at 2:00 p.m. on the Court's
Own Motion. Plaintiff to Provide Notice (XX) - am/td (4/19/2021)
- NONE LISTED -
Debtor(s):
Solid Landings Behavioral Health, Represented By
David L. Neale Juliet Y Oh Jeffrey S Kwong David M Samuels
Defendant(s):
Gerik M. Degner Represented By Ismail Amin
Plaintiff(s):
Howard B Grobstein Represented By Rodger M. Landau Monica Rieder
1:30 PM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
1:30 PM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
- NONE LISTED -
1:30 PM
Docket 15
OFF CALENDAR: Debtor's Notice of Conversion of Bankruptcy Case from Chapter 13 to Chapter 7 filed 3/16/2021; Case Converted to Chapter 7 - td (3/16/2021)
Debtor(s):
Sergio Miramontes Represented By Anerio V Altman
Trustee(s):
Thomas H Casey (TR) Pro Se
1:30 PM
Docket 1
- NONE LISTED -
Debtor(s):
April Hindahl Pro Se
Movant(s):
April Hindahl Pro Se
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 29
- NONE LISTED -
Debtor(s):
Jay Chihwan Jung Represented By Jaenam J Coe
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
- NONE LISTED -
Debtor(s):
John Benyamin Represented By James G. Beirne
Joint Debtor(s):
Jacklin Bettaryouren Represented By James G. Beirne
Movant(s):
John Benyamin Represented By James G. Beirne
Jacklin Bettaryouren Represented By James G. Beirne
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
- NONE LISTED -
Debtor(s):
David Bruce Dodson Represented By Anthony B Vigil
Joint Debtor(s):
Penny Sue Dodson Represented By Anthony B Vigil
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 5
- NONE LISTED -
Debtor(s):
Lael Gonzales Pro Se
Movant(s):
Lael Gonzales Pro Se
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 19
- NONE LISTED -
Debtor(s):
Michael Collins Represented By Douglas A. Crowder
Joint Debtor(s):
Lyann Courant Represented By Douglas A. Crowder
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 20
- NONE LISTED -
Debtor(s):
John Steven Domingos Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 17
- NONE LISTED -
Debtor(s):
Lael Gonzales Pro Se
Movant(s):
Lael Gonzales Pro Se
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
- NONE LISTED -
Debtor(s):
Roman Israel Pacheco Represented By David Lozano
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
- NONE LISTED -
Debtor(s):
Evan Mitchell Rothman Represented By Scott Dicus
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
- NONE LISTED -
Debtor(s):
Julio Cesar Pichardo Represented By Christopher J Langley
Joint Debtor(s):
Rocio Pichardo Represented By Christopher J Langley
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
- NONE LISTED -
Debtor(s):
Jim Walter Pittman Represented By Chris T Nguyen
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
- NONE LISTED -
Debtor(s):
Manuel Mancenido Represented By Joshua L Sternberg
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 16
- NONE LISTED -
Debtor(s):
Shannon Jauch Represented By
Richard L. Sturdevant
Joint Debtor(s):
Nami Nitta Represented By
Richard L. Sturdevant
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
[ANERIO V. ALTMAN, ESQ, ATTORNEY FOR DEBTORS]
Docket 85
- NONE LISTED -
Debtor(s):
John C Crismon Represented By Anerio V Altman
Joint Debtor(s):
Rhonda L Crismon Represented By Anerio V Altman
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 62
OFF CALENDAR: Notice of Withdrawal of Trustee's Motion, filed 4/20/2021 - td (4/20/2021)
Debtor(s):
David Patterson Represented By Amanda G Billyard
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 48
OFF CALENDAR; Notice of Withdrawal of Trustee's Motion, filed 4/19/2021 - td (4/19/2021)
Debtor(s):
Roberto Llamas Represented By Rebecca Tomilowitz
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 54
- NONE LISTED -
Debtor(s):
Stephen Jacob Maki Represented By Nicholas M Wajda
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR 2-23-21
Docket 89
- NONE LISTED -
Debtor(s):
Lisa Nguyen Represented By
Christine A Kingston
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 56
- NONE LISTED -
Debtor(s):
Douglas Robert Redding Represented By Sunita N Sood
Joint Debtor(s):
Dana Marie Redding Represented By Sunita N Sood
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 1-26-21; 2-23-21
Docket 50
- NONE LISTED -
Debtor(s):
Richard Thomas McPhee Represented By Christopher J Langley
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 42
- NONE LISTED -
Debtor(s):
Mary Guenther Represented By Timothy McFarlin
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 2-23-21
Docket 108
OFF CALENDAR: Notice of Withdrawal of Trustee's Motion, filed 4/19/2021 - td (4/19/2021)
Debtor(s):
William Raymond Harvey Represented By Farbood Majd
Joint Debtor(s):
Akram Naieharvey Represented By Farbood Majd
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 10-27-20; 11-24-20; 12-18-20; 1-26-21; 2-23-21
Docket 148
- NONE LISTED -
Debtor(s):
Giuseppe Galietta Represented By Joseph A Weber Fritz J Firman
Joint Debtor(s):
Heldia F. De Galietta Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 2-23-21
Docket 141
- NONE LISTED -
Debtor(s):
Troy Bernard Jemerson Represented By Nicholas M Wajda
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 82
- NONE LISTED -
Debtor(s):
Michael Mitchell Wise Represented By Michael Jones Sara Tidd
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 2-23-21
Docket 107
- NONE LISTED -
Debtor(s):
Katherine Burroughs Heidelman Represented By
Steven A Alpert
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 75
- NONE LISTED -
Debtor(s):
Alfred Trejo Represented By
Michael G Spector
Joint Debtor(s):
Margaret F. Trejo Represented By Michael G Spector
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 94
OFF CALENDAR: Trustee's Notice of Withdrawal, filed 3/3/2021 - td (3/3/2021)
Debtor(s):
Hang Nga Thi Le Represented By Tina H Trinh
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 126
- NONE LISTED -
Debtor(s):
Darryl L. Cazares Represented By
Joseph Arthur Roberts
Joint Debtor(s):
DeAnna J. Cazares Represented By
Joseph Arthur Roberts
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 37
- NONE LISTED -
Debtor(s):
Jamie Miller Campagnolo Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 200
- NONE LISTED -
Debtor(s):
Paul Edward Rubio Represented By Lauren Rode
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 85
OFF CALENDAR: Notice of Withdrawal of Trustee's Motion, filed 3/10/2021 - td (3/10/2021)
Debtor(s):
David Hepburn Represented By Julie J Villalobos
Joint Debtor(s):
Kimberly Hepburn Represented By Julie J Villalobos
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 38
OFF CALENDAR: Notice of Withdrawal of Trustee's Motion for Order Dismissing Chapter 13, filed 3/3/2021 - td (3/3/2021)
Debtor(s):
Cassia Catrina McGee Represented By
Rabin J Pournazarian
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 12-18-20; 1-26-21; 2-23-21
Docket 76
- NONE LISTED -
Debtor(s):
Orlando Martinez Represented By Mark S Martinez
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 32
- NONE LISTED -
Debtor(s):
Lenore Renee Mallek-Passey Represented By Nicholas M Wajda
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 92
- NONE LISTED -
Debtor(s):
Tovias Martinez Represented By Todd L Turoci
Jaime A Cuevas Jr.
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
9:00 AM
Adv#: 8:17-01226 Marshack v. Wallace et al
(Set at PTC held 4-9-20) FR: 10-28-20 & 10-29-20
Docket 47
NONE LISTED -
NONE LISTED -
Debtor(s):
29 Prime, Inc. Represented By
Richard L Barnett
Defendant(s):
Russell B. Wallace Pro Se
Tony Redman Pro Se
Jason Martin Pro Se
Local Zoom, Inc. Pro Se
OC Listing, Inc. Pro Se
Sky Motorsports, Inc. Pro Se
Haleh Fardi Pro Se
1Network.Com Pro Se
9:00 AM
Plaintiff(s):
Richard A. Marshack Represented By
Rosemary Amezcua-Moll
Trustee(s):
Richard A Marshack (TR) Represented By Caroline Djang
Rosemary Amezcua-Moll
9:00 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
9:00 AM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
- NONE LISTED -
9:00 AM
- NONE LISTED -
9:00 AM
Adv#: 8:17-01226 Marshack v. Wallace et al
(Set at PTC held 4-9-20)
FR: 10-28-20 & 10-29-20; 4-28-21
Docket 47
TRIALED TO 9:30 AM - td (4/28/2021 5:27 PM)
- NONE LISTED -
Debtor(s):
29 Prime, Inc. Represented By
Richard L Barnett
Defendant(s):
Russell B. Wallace Pro Se
Tony Redman Pro Se
Jason Martin Pro Se
Local Zoom, Inc. Pro Se
OC Listing, Inc. Pro Se
Sky Motorsports, Inc. Pro Se
Haleh Fardi Pro Se
1Network.Com Pro Se
9:00 AM
Plaintiff(s):
Richard A. Marshack Represented By
Rosemary Amezcua-Moll
Trustee(s):
Richard A Marshack (TR) Represented By Caroline Djang
Rosemary Amezcua-Moll
9:00 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
9:00 AM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
NONE LISTED -
9:30 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
9:30 AM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
NONE LISTED -
9:30 AM
Adv#: 8:19-01215 Marshack v. R-Techo, Co., Ltd.
Recovery of Unauthorized, Improper Distributions to Shareholders; 7. Substantive Consolidation; 8. Breach of Fiduciary Duty; 9. Turnover of Property of the Estate; 10. Preservations of Avoided Transfers; 11. Disallowance of Claims; and 12. Temporary Restraining Order and Preliminary Injunction
(Another Summons Issued 2/16/2021)
Docket 1
NONE LISTED -
May 6, 2021
Continue the Status Conference to July 15, 2021 at at 9:30 a.m.; updated Joint Status Report must be filed by July 1, 2021. (XX)
Note: If the parties accept the tentative ruling, appearance at this hearing is not required.
Debtor(s):
Prime Metals U.S.A., Inc. Represented By Steven Werth
Defendant(s):
R-Techo, Co., Ltd. Pro Se
9:30 AM
Plaintiff(s):
Richard A Marshack Represented By Ronald S Hodges Robert P Goe Ryan S Riddles
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Laila Masud David M Goodrich Robert P Goe
9:30 AM
Adv#: 8:20-01157 Oregon Pacific Bank v. Bryant et al
(Set at SC held 1-21-21)
Docket 1
OFF CALENDAR: Order Approving Stipulation to Dismiss Adversary Case Based on Settlement Entered 4/13/2021 - am/td (4/13/2021)
January 21, 2021
Deadline for Rule 26 Compliance: February 28, 2021
Discovery Cutoff Date: March 31, 2021
Pretrial Conference Date: May 6, 2021 at 9:30 a.m. (XX) Deadline to File Pretrial Stipulation: April 22, 2021
Note: If all parties accept the tentative ruling, appearances at this hearing are not required and Plaintiff shall lodge a scheduling order consistent with the same.
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
9:30 AM
Debtor(s):
Eric C. Bryant Represented By Christine A Kingston
Defendant(s):
Eric C. Bryant Pro Se
Gina K Bryant Pro Se
Joint Debtor(s):
Gina K Bryant Represented By Christine A Kingston
Plaintiff(s):
Oregon Pacific Bank Represented By Michael N Nicastro
Trustee(s):
Karen S Naylor (TR) Represented By Thomas H Casey
10:00 AM
U.S. BANK TRUST NA, AS TRUSTEE OF CABANA SERIES III TRUST VS.
DEBTORS
Docket 63
OFF CALENDAR: Order Granting Motion for Relief from the Automatic Stay (Settled by Stipulation) Entered 5/5/2021 - td (5/5/2021)
Debtor(s):
Douglas Robert Redding Represented By Sunita N Sood
Joint Debtor(s):
Dana Marie Redding Represented By Sunita N Sood
Movant(s):
U.S. Bank Trust National Represented By
Erica T Loftis Pacheco
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
VS.
DEBTORS
Docket 51
OFF CALENDAR: Order Granting Motion for Relief from the Automatic Stay (Settled by Stipulation) Entered 4/27/2021 - td (4/27/2021)
NONE LISTED -
Debtor(s):
Stephen Tague La Fountain Represented By Kevin Tang
Joint Debtor(s):
Rosemary Ann La Fountain Represented By Kevin Tang
Movant(s):
Capital One Auto Finance, a division Represented By
Marjorie M Johnson
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
VS.
DEBTOR
Docket 38
NONE LISTED -
May 6, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Luz D Meza Pro Se
Movant(s):
JPMorgan Chase Bank, N.A. Represented By Jenelle C Arnold
10:00 AM
Trustee(s):
Weneta M.A. Kosmala (TR) Pro Se
10:00 AM
VS.
DEBTOR
Docket 11
NONE LISTED -
May 6, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Brian Steven Skelton Represented By Brian J Soo-Hoo
Movant(s):
JPMorgan Chase Bank, N.A. Represented By Jenelle C Arnold
10:00 AM
Trustee(s):
Jeffrey I Golden (TR) Pro Se
10:00 AM
DAVID LENHARDT and FRED PETERS VS.
DEBTOR
Docket 14
NONE LISTED -
May 6, 2021
Grant motion for the limited relief of seeking and/or obtaining an order in state court for attorneys fees and costs. The state court may make whatever findings/determinations that are directly relevant to its determination of the amount of such fees and costs.
Special note: In his response, Debtor requests that this court "limit relief from for the sole purpose of determining an amount of attorney's fees with no other factors of law or other determination allowed." The court has no idea as to what "factors of law" or "other determination" Debtor is referring but the court declines to restrain the state court from making whatever findings/determinations it deems appropriate in order to support its ruling on the motion for attorneys fees/costs.
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required and Movants shall lodge an order consistent with the same.
10:00 AM
Debtor(s):
Alan Dickinson Represented By Sundee M Teeple
Movant(s):
Alan Dickinson Represented By Sundee M Teeple Sundee M Teeple Sundee M Teeple Sundee M Teeple
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
GOLDEN RAIN FOUNDATION OF LAGUNA WOODS VS.
DEBTOR
Docket 20
NONE LISTED -
May 6, 2021
Grant motion for the limited relief of seeking and/or obtaining an order in state court for attorneys fees and costs. The state court may make whatever findings/determinations that are directly relevant to its determination of the amount of such fees and costs.
Special note: In his response, Debtor requests that this court "limit relief from for the sole purpose of determining an amount of attorney's fees with no other factors of law or other determination allowed." The court has no idea as to what "factors of law" or "other determination" Debtor is referring but the court declines to restrain the state court from making whatever findings/determinations it deems appropriate in order to support its ruling on the motion for attorneys fees/costs.
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required and Movants shall lodge an order consistent with the same.
10:00 AM
Debtor(s):
Alan Dickinson Represented By Sundee M Teeple
Movant(s):
Golden Rain Foundation of Laguna Represented By
David Lenhardt
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
KARL AVETOOM VS.
DEBTOR
Docket 31
NONE LISTED -
May 6, 2021
Grant the motion for the limited purpose of allowing the contempt hearing originally scheduled to be heard on April 9, 2021 to proceed. However, relief from the stay is not lifted to allow Movant to collect any monetary award that may be ordered by the state court.
Basis for Tentative Ruling:
The Order to Show Cause issued by the OC Superior Courtt ("State Court") on February 22, 2021 in case no. 30-2010-00345490 states on that it has been issued regarding the possible contempt of two of its orders issued on August 19, 2019 and November 16, 2020.
In Yellow Express, LLC, v. Dingley (In re Dingley), 514 B.R. 591 (B.A.P. 9th Cir.2014) , the Panel held that the 9th Circuit "has created a bright-line rule on whether the automatic stay applies to state court contempt proceedings, whether they are based on nonpayment of a monetary sanction
10:00 AM
or some other behavior which violates a state court order: if the sanction order ‘does not involve a determination [or collection] of the ultimate obligation of the bankrupt nor does it represent a ploy by a creditor to harass him’ the automatic stay does not prevent the proceeding from going forward.” (quoting David v. Hooker, LTD, 560 F.2d 412,418 (9th Cir.1977)." See also, In re Dumas, 19 B.R. 676, 678 (State court's sentence for contempt as to bankruptcy for debtor's disobeying its subpoena before bankruptcy was not affected by automatic stay even if it were imposed at the request of creditor).
4. Movant does not have relief from the stay to do anything other than seek a ruling on the Order to Show Cause. He may not attempt collect any monetary award or to otherwise any contempt order to collect his underlying debt.
Note: if all parties accept the tentative ruling, appearances at the hearing are not required.
Debtor(s):
Rosa A Fridman Represented By Scott Talkov
Movant(s):
Karl Avetoom Pro Se
Trustee(s):
Thomas H Casey (TR) Pro Se
10:00 AM
Docket 18
NONE LISTED -
May 6, 2021
Grant motion in its entirety. Basis for Tentative Ruling:
In light of the dismissal of Debtor's prior chapter 11 case on September 20, 2021, the automatic stay in this case expired on April 4, 2021 pursuant to 11
U.S.C. 362(c)(3)(A). No motion was timely made by Debtor for the continuation of the stay by the 30 days pursuant to 11 U.S.C. 362(c)(3)(B).
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Robert G Campoy Represented By Chris T Nguyen
10:00 AM
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
Adv#: 8:21-01014 Marshack v. Cavanaugh et al
(Application filed 4/14/2021) FR: 5-5-21, Crtrm 5C before SC
Docket 29
NONE LISTED -
May 6, 2021
The court is inclined to grant the Application with a bond of $10,000; however Plaintiff will need to address the Exemption Statement.
EVIDENTIARY RULINGS
Defendants' Objection to the Declaration of Richard Marshack
Paragraph # Ruling
Overruled
Overruled as to the fact of possession of the subject documents; Sustained as to the truth of their content.
Exhs. A-I;3-11 Overruled as to the fact of possession of the
subject documents; Sustained as to the
truth of their content or authenticity of the same
10:00 AM
Plaintiff's Evidentiary Objections to Declaration of Douglas S. Cavanaugh
Paragraph # Ruling
6: 2:3-6 Overruled
7: 2:7-9 Sustained as to "I have amended . . . to the Distributions")
8: 2:10-11 Overruled
9: 2:12-14 Overruled
Debtor(s):
Ruby's Diner, Inc., a California Represented By William N Lobel Jeffrey P Nolan
Defendant(s):
Douglas Cavanaugh Represented By Leo A Bautista
Ralph Kosmides Represented By Leo A Bautista
Beachcomber Management Crystal Pro Se Lighthouse Cafe, LLC Pro Se Beachcomber at Crystal Cove, LLC Pro Se Shake Shack Crystal Cove, LLC Pro Se
Plaintiff(s):
Richard A. Marshack Represented By Christopher Dale Beatty
10:00 AM
Trustee(s):
Richard A Marshack (TR) Represented By Laila Masud
D Edward Hays Tinho Mang
10:00 AM
Adv#: 8:21-01014 Marshack v. Cavanaugh et al
(Application filed 4/14/2021) FR: 5-5-21, Crtrm 5C before SC
Docket 35
NONE LISTED -
May 6, 2021
The court is inclined to grant the Application with a bond of $10,000; however Plaintiff will need to address the Exemption Statement.
EVIDENTIARY RULINGS
Plaintiff's Evidentiary Objections to Declaration of Ralph Kosmides
Paragraph # Ruling
5: 1:25 - 2:2 Sustained
5: 2:3 - 6 Sustained as to "which made it appear ...they had not." Overruled as to the balance
7: 2:14-20 Sustained as to "Hesch reviewed the issues ... and not loans." Overruled as to the balance.
8: 2:21-22 Sustained
10:00 AM
9: 2:23-27 Sustained (Note: Defendant has apparently objected to the
Marshack
authenticity of certain or all of such documents re Declaration)
10: 3:1-4 Overruled
11 3:5-7 Sustained as to "I have amended . . . to the Distributions")
FRE 1002
13: 3:10-15 Overruled
Exh. A Sustained
Debtor(s):
Ruby's Diner, Inc., a California Represented By William N Lobel Jeffrey P Nolan
Defendant(s):
Douglas Cavanaugh Represented By Leo A Bautista
Ralph Kosmides Represented By Leo A Bautista
Beachcomber Management Crystal Pro Se Lighthouse Cafe, LLC Pro Se Beachcomber at Crystal Cove, LLC Pro Se Shake Shack Crystal Cove, LLC Pro Se
10:00 AM
Plaintiff(s):
Richard A. Marshack Represented By Christopher Dale Beatty
Trustee(s):
Richard A Marshack (TR) Represented By Laila Masud
D Edward Hays Tinho Mang
10:30 AM
FR: 11-19-20; 2-4-20; 4-1-21
Docket 441
NONE LISTED -
November 19, 2020
Continue this hearing to January 21, 2021 at 10:30 a.m. to allow a) Objecting Party to take discovery as permitted by FRBP 9014 for contested matters and
b) additional briefing by the parties to address the issues set forth in the the court's "Basis for Tentative Ruling" comments.
Basis for Tentative Ruling
Creditor State Compensation Insurance Fund ("Claimant") filed proof of claim no. 8-1 (the "Claim") in the general unsecured amount of $1,350,389.47 for "Insurance Policy" for unpaid workers’ compensation insurance premiums for policy years 2002-2006.
Creditor Douglas Patrick ("Patrick") objects to the Claim and requests disallowance in full because the Claim includes several errors that increased the premium amounts (the "Objection")[dkt. 441]. Claimant opposes the Objection (the "Opposition")[dkt. 454].
The Objection is continued for further briefing regarding statute of limitations and whether the Claim has already been fully adjudicated and liquidated prepetition
10:30 AM
A proof of claim executed and filed in accordance with the Federal
Rules of Bankruptcy Procedure 3001(f) constitutes prima facie evidence of the validity and amount of the claim. See Rule 3001(f); In re Lundell, 223 F.3d 1035, 1039 (9th Cir. 2000). Therefore, a proof of claim will be deemed allowed unless a party in interest objects. Lundell, 223 F.3d at 1039. Once a party in interest objects, the proof of claim will still provide some evidence as to its validity and amount, and will be strong enough to carry over a mere formal objection without more. Id. Thus, a party objecting to a claim must present affirmative evidence to overcome the presumption of its validity by showing "facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claims." Id. (citing In re Holm, 931 F.2d 620, 623 (9th Cir. 1991); In re King Street Inv., Inc., 219 B.R. 848, 858 (BAP 9th Cir. 1998). If the objector produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, then the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Lundell, 233 F.3d at 1039. The ultimate burden of persuasion remains at all times upon the claimant. Id.; Holm, 931 F.2d 620 (9th Cir. 1991).
In this case, Claimant filed the Claim in accordance with Rule 3001.
The Claim was filed with Official Form 410 and included supporting documentation. See, Obj., Ex. 1 (the Claim). Thus, Claimant has complied with Rule 3001 and the Claim is entitled to prima facie validity under Rule 3001(f).
Since the Claim is entitled to prima facie validity, Patrick must present affirmative evidence to overcome the Claim’s presumption of validity. Patrick argues that the Claim includes the following errors: Claimant misclassified Debtor’s employees as "electrical" workers resulting in higher insurance premiums, mistakenly charged for employees that worked outside of California and were not insured under the policy, and failed to explain why the "Experience Modifier" increased from 105% to 172% in one year. See, Obj.,
p. 2. Claimant counters that Patrick fails to rebut the prima facie validity of the Claim because Patrick’s arguments relate only to the 2006 policy year premiums (and not the 2002-2005 policy year premiums) underlying the claim and Claimant already conducted an internal, prepetition audit which confirmed the amounts claimed in the Claim. See, Opp’n, p. 4. Patrick’s responds by challenging the reliability of the evidence provided by Claimant
10:30 AM
(such as pointing out that policy contract that was attached to the Opposition was "revised" in August 2010 and therefore cannot be the policy contract entered into by Debtor and Claimant in 2000), that Debtor was unaware that amounts were owed for policy years 2002-2005 until the Claim was filed, and stating that Claimant failed to attach its internal audit records so the accuracy of Claimant’s figures cannot be confirmed because Debtor does not have access to those internal audit records. See, Reply, p. 3-4 and Opp’n, p. 6 of Ex. A. Claimant’s argument that the Objection only raises arguments regarding the 2006 policy year is also undermined by Claimant’s own exhibit of a letter from Debtor’s prepetition counsel to Claimant dated January 23, 2007 that references the ongoing dispute over the final audits for the policy years 2003-2007. See, Opp’n, Ex. C.
Accordingly, there is a disputed question of fact regarding the accuracy of Claimant’s calculation of the insurance premiums due for the policy years 2002-2006. Such dispute may warrant discovery as requested by Patrick. In addition, the parties must address the threshold issue regarding the statute of limitations and whether the Claim is already fully adjudicated and liquidated.
Patrick has raised the argument that any breach of the policy contract that occurred before October 7, 2005 may be barred by the 4-year statute of limitations for written contracts. See, Reply, p. 3, n. 1. As this argument was first raised in the Reply, Claimant has not had an opportunity to address it.
On the other hand, Claimant raises the argument that the Claim has been fully adjudicated and liquidated prepetition with following testimony from Kimberly Byrne: "State Fund’s records do not indicate that Debtor requested reconsideration of State Fund’s determination or appealed to the Administrative Hearing Bureau at the California Department of Insurance" and "State Fund’s records do not show that Debtor disputed the revised experience modification with State Fund, the WCIRB or appealed to the Administrative Hearings Bureau of the California Department of Insurance within the time prescribed by law." See, Kimberly Byrne Decl., p. 2-3, ¶5 and
p. 3, ¶6 (emphasis added).
EVIDENTIARY OBJECTIONS
10:30 AM
Objection #* Ruling
Sustained
Overruled: the testimony identifies the documents as "final"
bills. The objection is in the nature of argument.
Overruled: the objection is in the nature of argument
Sustained: hearsay
Overruled: th testimony is in the nature of argument
Sustained: hearsay
*For ease of reference, the court has assigned a chronologica number to each objection .
May 6, 2021
If the settlement is still being finalized this hearing may be continued one final time by the parties requesting a continuance during the calendar roll call prior to the hearing. Available continued hearing dates are July 15, 2021 or July 22, 2021 at 10:30 a.m. (XX)
Debtor(s):
Commercial Services Building Inc Represented By
Phillip B Greer
Trustee(s):
Karl T Anderson (TR) Represented By
Misty A Perry Isaacson Misty A Perry Isaacson Thomas J Polis
10:30 AM
Robert M Dato Jason E Goldstein
10:30 AM
Docket 40
NONE LISTED -
May 6, 2021
Approve employment application.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Trustee is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Trustee's counsel will be so notified.
Debtor(s):
Daghan Izberk Represented By Joseph A Weber
Trustee(s):
Thomas H Casey (TR) Represented By Thomas H Casey
10:30 AM
Docket 109
NONE LISTED -
May 6, 2021
Deny Motion without prejudice to Movant pursuing any claims it believes it has against Debtor in a non-bankruptcy court of competent jurisdiction.
Basis for Tentative Ruling:
As noted by the Chapter 13 Trustee in his comments, Debtor has completed her plan payments and has no legal obligatons to pay anything more to the trustee. In fact, as also pointed out by the trustee, this court has no authority to entertain or approve any further modification of the plan for the payment of any administrative claim asserted by Movant as the 60-month period has expired. Simply stated, there are no funds from which Movant's claim can be paid from the bankruptcy estate.
Even if the plan term had not already expired, the court has no evidence that Movant's claim qualifies as an administrative claim within the meaning Section 503(b)(1)(A), i.e., that the loan proceeds were "actual, neccessary costs and expenses of preserving the [bankruptcy] estate." According to Debtor's confirmed plan and various bankruptcy schedules, Debtor was required to pay the entirety of her disposable income as a flight attendant, i.e., $434.00, to pay 100% of her unsecured debt. Nothing in the plan (or in any of the motons to modify/suspend plan payments) suggests the necessity of $315,000. The burden of proving an administrative expense claim is on the claimant.” Microsoft Corp. v. DAK Indus.(In re DAK Indust.). 66 F.3d 1091, 1094 (9th Cir.1995). Movant has not met that burden of proof in this matter.
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It would appear that any claim(s) that Movant may have against Debtor must be properly brought in a non-bankruptcy court of competent jurisdiction, including its request for an accounting.
Note: If Movant accepts the tentatitve ruling, appearance at this hearing is not required and Movant shall lodge an order consistent with the same within seven days of the hearing.
Debtor(s):
Mary L. Pesce Represented By Fritz J Firman
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
FR: 2-11-21, 2-18-21; 3-4-21; 4-1-21
Docket 962
CONTINUED: Hearing Continued to 7/22/2021 at 10:30 a.m., Per Order Entered 4/28/2021 (XX) - td (4/28/2021)
Debtor(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel Bobby Samini Dean A Ziehl
Gary A Pemberton Shane M Biornstad
10:30 AM
Adv#: 8:19-01084 Constantin et al v. Duff
Docket 80
NONE LISTED -
May 6, 2021
Grant the Motion.
Special Note: Debtor requests that the adversary be dismissed with prejudice. The motion does not request dismissal with prejudice. Though the deadline for filing a 727 action has expired, the court will only grant the motion with prejudice if Plaintiff agrees to the same.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required.
Debtor(s):
Michael J Duff Pro Se
Defendant(s):
Michael J. Duff Represented By David Brian Lally
Plaintiff(s):
Holly Constantin Represented By Alan W Forsley
10:30 AM
Michael Constantin Represented By Alan W Forsley
Trustee(s):
Richard A Marshack (TR) Pro Se
10:30 AM
FR: 10-17-19; 4-9-20; 4-30-20; 6-18-20; 9-17-20; 12-17-20; 4-1-21
Docket 1
NONE LISTED -
October 17, 2019
Claims bar date: Jan. 17, 2020 (notice to be served by 11/15/19
Deadline to file plan/DS Feb. 20, 2020
Continued Status Conf.: Apr. 9, 2020 at 10:30 a.m. (XX)
Updated Status Report Due: Mar. 19, 2019 (unless the plan/DS has been
the report
filed by such date, in which case requirement will be waived)
Note: If Debtor is in substantial compliance with the requirements of the United States Trustee, appearance at this hearing is not required. It is Debtor's responsiblity to confirm compliance with the UST prior to the hearing.
April 9, 2020
Continue Status Conference to April 30, 2020 at 10:30 a.m., the same
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date/time as hearing on approval of Debtor's Disclosure Statement; an updated status report is not required. (XX)
Note: Appearance at this hearing is not required. Non appearance at the hearing will be deemed acceptance of the tentative ruling.
April 30, 2020
Continue status conference to June 18, 2020 at 10:30 a.m., same date/time set for the continued hearing on approval of Debtor's disclosure statement. (XX)
Note: Appearances at this hearing are not required. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
June 18, 2020
Continue status conference to September 17, 2020 at 10:30 a.m.; updated status report not required. (XX)
Note: Appearances at this hearing are not required. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
September 17, 2020
Continue status conference to November 5, 2020 at 10:30 a.m.; court to issue order to show cause why this case should not be dismissed or converted due to Debtor's inability to confirm a plan within a reasonable period of time.
Hearing on such OSC shall be scheduled for November 5, 2020 at 10:30 a.m.
December 17, 2020
Continue Status Conference to April 1, 2021 at 10:30 a.m.; An updated Status report must be filed by March 18, 2021 unless Debtor has filed a
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motion to dismiss the case by such date, in which case the requirement of a report will be waived. (XX)
Special Note: Regarding Buchanan's request in its statement that any funds on hand be distributed to it, the court shall rule on that matter in context of a motion to dismiss the case.
Note: If the parties accept the tentative ruling, appearances at this hearing are not required.
April 1, 2021
Continue status conference to May 6, 2021 at 10:30 a.m. in light of Debtor's intent to move for dismissal of the case. (XX)
May 6, 2021
Continue the status conference to May 20, 2021 at 10:30 a.m., same date/time set for hearing on Debtor's motion to dismiss the case. (XX)
Note: Appearances at today's hearing are not required.
Note: Appearances at this hearing are not required.
Debtor(s):
10827 Studebaker LLC, a California Represented By
Steven Werth
10:30 AM
FR: 1-14-21
Docket 1043
CONTINUED: Hearing Continued to 8/19/2021 at 10:30 a.m., Per Order Entered 4/20/2021 (XX) - td (4/20/2021)
NONE LISTED -
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson Robert P Goe
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe Claire K Wu
10:30 AM
FR: 1-14-21
Docket 1044
CONTINUED: Hearing Continued to 8/19/2021 at 10:30 a.m., Per Order Entered 4/20/2021 (XX) - td (4/20/2021)
NONE LISTED -
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson Robert P Goe
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe Claire K Wu
10:30 AM
FR: 1-14-21
Docket 1045
CONTINUED: Hearing Continued to 8/19/2021 at 10:30 a.m., Per Order Entered 4/20/2021 (XX) - td (4/20/2021)
NONE LISTED -
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson Robert P Goe
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe Claire K Wu
10:30 AM
Docket 56
NONE LISTED -
May 6, 2021
Grant the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Jorge Sanchez Represented By Kevin Tang
Joint Debtor(s):
Zoila Quinonez Represented By Kevin Tang
Trustee(s):
Jeffrey I Golden (TR) Pro Se
10:30 AM
Docket 37
OFF CALENDAR: Order Approving Stipulation RE: Motion to Vacate Order sustaining Objection to Claim of Axos Bank Claim Number 18, or , in the Alternative, for Reconsideration of Order Sustaining Objection to Claim of Axos Bank, Claim Number 18 Entered 4/27/2021 - td (4/27/2021)
NONE LISTED -
Debtor(s):
Lenore Renee Mallek-Passey Represented By Nicholas M Wajda
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
Docket 456
NONE LISTED -
May 6, 2021
Grant the Motion, except the language appearing in paragraphs L and 8 in the proposed order attached to the Motion as Exhibit A is not approved.
Basis for Tentative Ruling:
The court declines to make findings re the successor liability of the purchaser. The language in paragraphs L and 8 are not addressed in the Motion itself with supporting legal authority and also do not appear in the purchase agreement. As the court previously noted on the record during a hearing on the prior sale motion, this court lacks the jurisdiction to find that the purchaser, Hytera US Inc. (an entity that is not in bankruptcy before this court) is not liable for "any liability whatsoever" under any legal theory within the context of a sale motion.
Debtor(s):
HCA West, Inc Represented By John W Lucas Jason H Rosell
Victoria Newmark
10:30 AM
10:30 AM
[PACHULSKI STANG ZIEHL & JONES LLP, GENERAL BANKRUPTCY COUNSEL FOR THE DEBTORS AND DEBTORS IN POSSESSION]
Docket 463
NONE LISTED -
May 6, 2021
Approve fees and expenses on an interim basis as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
HCA West, Inc Represented By John W Lucas Jason H Rosell
Victoria Newmark
10:30 AM
L.L.P. for Approval of Fees and Reimbursement of Expenses
[LEVENE, NEALE, BENDER, YOO & BRILL L.L.P., ATTORNEYS FOR THE JOINT COMMITTEE OF CREDITORS HOLDING UNSECURED CLAIMS]
Docket 454
NONE LISTED -
May 6, 2021
Approve fees and expenses on an interim basis as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
HCA West, Inc Represented By John W Lucas Jason H Rosell
Victoria Newmark
10:30 AM
[STEPTOE & JOHNSON LLP AS CORPORATE AND SPECIAL COUNSEL FOR THE DEBTORS AND THE DEBTORS IN POSSESSION]
Docket 464
NONE LISTED -
May 6, 2021
Approve fees and expenses on an interim basis as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
HCA West, Inc Represented By John W Lucas Jason H Rosell
Victoria Newmark
10:30 AM
[IMPERIAL CAPITAL, LLC AS INVESTMENT BANKER AND FINANCIAL ADVISOR TO THE DEBTORS AND DEBTORS IN POSSESSION]
Docket 465
NONE LISTED -
May 6, 2021
Approve fees and expenses on an interim basis as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
HCA West, Inc Represented By John W Lucas Jason H Rosell
Victoria Newmark
10:30 AM
Requiring Report on Status of Chapter 11 Case
[Lead Case: (Lead Case: Hytera Communications America (West), Inc. (Case Number: 8:20-bk-11507-ES) ] Jointly Administered With Member Cases: Hytera America Incorporated (Case Number: 8:20-bk-11508-ES) and HYT North America, Inc. (Case Number: 8:20-bk-11509-ES)]
FR: 8-6-20; 12-17-20; 4-22-21
Docket 1
NONE LISTED -
August 6, 2020
Continue Status Conference to December 17, 2020 at 10:30 am; updated Status Report must be filed by December 3, 2020. (XX)
Note: If Debtors are in substantial compliance with the requirements of the United States Trustee, appearance at this Status Conference is not required. It is Debtors' responsibility to confirm the status of their compliance with the UST in advance of the hearing. The court will issue its own order re continuance of the hearing.
December 17, 2020
Continue Status Conference to April 22, 2021 at 10:30 a.m.; updated Status Report must be filed by April 15, 2021 unless a plan and disclosure statement has been filed by such date, in which case the requirement of an updated status report shall be waived. (XX)
10:30 AM
Note: Appearance at this hearing is not required.
May 6, 2021
Continue the Status Conference to September 30, 2021 at 10:30 a.m.; updated Status Report must be filed by September 16, 2021 unless a plan and disclosure statement has been filed by such date, in which the requirement of a Status Report will be waived. (XX)
Note: Appearance at this hearing is not required.
Debtor(s):
HCA West, Inc Represented By John W Lucas Jason H Rosell
Victoria Newmark
10:30 AM
Docket 98
NONE LISTED -
May 6, 2021
Approve overbid procedures. This matter will be put on "second call" and will be called at the end of the court's 10:30 a.m. calendar in order to allow the bidding process to proceed outside the virtual court.
Debtor(s):
Stonewood Homes LLC Represented By William J King
Trustee(s):
Thomas H Casey (TR) Represented By Karen S. Naylor
10:30 AM
FR: 3-23-21
Docket 21
NONE LISTED -
March 23, 2021
Grant the motion with the modifications set forth in the Reply and with the order language proposed by Shady Bird. Final hearing: May 6, 2021 at 10:30 a.m. Supplemental pleadings by Debtor, if any, must be filed by Apri 15, 2021; any response by April 22, 2021 and and reply by April 29, 2021. (XX)
May 6, 2021
Grant the motion on a final basis. Basis for Tentative Ruling:
No new pleadings were filed since the initial hearing.
Note: Appearances at this hearing are not required.
Debtor(s):
The Source Hotel, LLC Represented By
10:30 AM
Ron Bender Juliet Y Oh
10:30 AM
Docket 1
NONE LISTED -
May 6, 2021
Claims Bar Date: 7/12/21 -- notice to creditors by 5/12/21 Deadline to file plan/discl. stmt: not set at this time
Continued Status Conference: 8/12/21 at 10:30 a.m. (XX) Updated Status Report due: 7/29/21
Note: If Debtor is in substantial compliance with the requirements of the US Trustee, appearance at this hearing is not required.
Debtor(s):
The Source Hotel, LLC Represented By Ron Bender Juliet Y Oh
10:30 AM
Docket 55
NONE LISTED -
May 6, 2021
Deny application to employ co-general bankruptcy counsel without prejudice to Debtor seeking to employ the Firm on a special counsel basis for discrete services that are not duplicative of services already being rendered by Debtor's current general counsel.
Basis for Tentative Ruling
The court is not persuaded by the Reply that grounds exist for the employment of two separate law firms to act as general bankruptcy counsel. The fact that the United States Trustee has not objected is not a persuasive factor.
Debtor(s):
DEA Brothers Sisters LLC Represented By Roger J Plasse John H Bauer
10:30 AM
Docket 64
NONE LISTED -
May 6, 2021
Approve the application.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Debtor is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Debtor's counsel will be so notified.
Debtor(s):
DEA Brothers Sisters LLC Represented By Roger J Plasse John H Bauer
10:30 AM
Docket 1
NONE LISTED -
May 6, 2021
Claims Bar Date: 7/12/21 [notice to creditors by 5/12/21]
Deadline to File Plan/Disc. Stmt 8/11/21 -- no additional extensions Continued Status Conference: 9/2/21 at 10:30 a.m. (XX)
Updated Status Report due: 8/19/21 (waived if plan/ds timely filed)
Note: If Debtor accepts the foregoing tentative ruling and there is no objection by the US Trustee or other party, appearances at this hearing are not required; court to issue its own order.
Debtor(s):
DEA Brothers Sisters LLC Represented By Roger J Plasse
2:00 PM
Adv#: 8:20-01010 Grobstein v. Degner
FR: 4/22/21
Docket 82
NONE LISTED -
May 6, 2021
Partially grant the Motion. Grant partial summary adjudication on the first element for breach of fiduciary duty in Plaintiff’s favor- that Defendant owed the fiduciary duty of care to Debtors as Debtor’s president. Deny all other relief requested.
Basis for Tentative Ruling:
Solid Landings Behavioral Health, Inc. ("Solid Landings") filed a voluntary chapter 11 on June 1, 2017. An order authorizing joint administration with several related debtors, including Sure Haven, Inc.("Sure Haven"), was entered on June 7, 2017. The order confirming the related debtors’ liquidation plan was entered March 22, 2018, and Howard Grobstein was appointed liquidating trustee ("Plaintiff").
On January 30, 2020, Plaintiff filed the within complaint alleging a single cause of action for breach of fiduciary duty against the defendant, Gerik M. Degner ("Defendant"). The order denying Defendant’s motion to dismiss or transfer the complaint was entered April 14, 2020. Defendant filed his answer on April 21, 2020 demanding a jury trial. Defendant also filed a third-party complaint against Starr Indemnity & Liability Company ("Starr") on
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April 22, 2020, and Starr filed its answer on May 26, 2020. On January 21, 2021, the court entered its order granting Plaintiff’s first motion for partial summary adjudication as to Defendant’s 32nd affirmative defense, holding that the business judgment rule was not applicable to Defendant as a defense.
Plaintiff now moves for partial summary judgment on his breach of fiduciary duty claim for relief ("Motion" and "Points and Authorities")[AP dkt. 82] and ("Reply")[AP dkt. 103]. Defendant opposes the Motion ("Opposition")[AP dkt. 96].
Legal standard
Under FRCP 56(a), made applicable herein by FRBP 7056, "[t]he The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine issue of material fact, and establishing that it is entitled to judgment as a matter of law as to those matters upon which it has the burden of proof. Celotex Corporation v.
Catrett, 477 U.S. 317, 323 (1986). The opposing party must make an affirmative showing on all matters placed in issue by the motion as to which it has the burden of proof at trial. Id. at 324. The substantive law will identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Id. A factual dispute is genuine where the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.
The court must view the evidence presented on the motion in the light most favorable to the opposing party. Id. "Therefore, at summary judgment, the judge must view the evidence in the light most favorable to the nonmoving party: if direct evidence produced by the moving party conflicts with direct evidence produced by the nonmoving party, the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact."
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630–31 (9th Cir. 1987)(internal citations omitted). In the absence of any disputed material facts, the inquiry shifts to whether the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323. Furthermore, where
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intent is at issue, summary judgment is seldom granted. See Provenz v. Miller, 102 F.3d 1478, 1489 (9th Cir. 1996), cert. denied, 118 S. Ct. 48
(1997).
Undisputed facts
Stephen Fennelly ("Fennelly"), Mark Shandrow ("Shandrow"), and Elizabeth Perry ("Perry")(collectively, "Owners") owned 99% of Sure Haven and 100% of the other four related debtors. Owners were the only directors of Solid Landings and Sure Haven (collectively, "Debtors"). Debtors provided 12-step treatment and alternative treatment programs for people suffering from substance abuse. Owners entered the substance abuse treatment business in approximately 2009, opening a sober living residence in Costa Mesa. Debtors expanded rapidly in 2014 and 2015 and peaked around September 2015. At that time, Debtors were operating in California, Nevada, and Texas and offered 550 beds, serving more than 3,000 clients annually, and employed approximately 1,200 employees. Plaintiff’s Statement of Undisputed Facts ("UF") 1-3, 8 (It is unclear whether Defendant is disputing some of these facts because Defendant effectively tries to rewrite the UF in Defendant’s Statement of Genuine Issues ("GI") without citation to any evidence. As such, to the extent any SUF is not "adequately controverted by citation to evidence filed in opposition to the [summary judgment] motion", such fact is deemed admitted under LBR 7056-1(f)).
Debtors began experiencing financial problems in the second half of 2015 after Debtors failed implement the infrastructure, such as specialized medical billing software, necessary for the expanded enterprise to operate effectively, litigation with Costa Mesa over regulations that severely restricted the use of property in Costa Mesa for substance abuse treatment services, and overextending themselves pursuing the development of large facilities in Long Beach and Santa Ana to replace the Costa Mesa facilities. UF 8, 10-11. Fennelly approached Defendant for assistance at that time.
Defendant, who had worked with Fennelly in investment banking in 2009, found Alpine Pacific Capital, LLC ("Alpine"), a private equity group. Debtors approached Alpine and Defendant to help Debtors obtain bridge financing since collections to alleviate cash flow issues. UF 4-5. In
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November 2015, Alpine helped Debtors obtain a $7.5 million line of credit from CapStar Bank ("CapStar") secured by substantially all of Debtors’ assets. UF 9. Alpine also assisted Owners in their effort to sell the business with the help of Brentwood Capital Advisors, LLC ("Brentwood"), an investment bank. UF 12. These sale efforts were halted in December 2015 after an outside accounting firm could not complete its analysis of Debtors’ revenue because Debtors’ revenue and profit numbers were inflated and severely inaccurate. UF 14.
Around the end of 2015, Debtors began losing revenue for two primary reasons: (1) insurance companies stopped paying for substance abuse treatments and that revenue represented 95% of Debtors’ revenue, and (2) Debtors’ reduction in operation in an effort to cut expenses resulted in declining patient censuses and further reduced revenues. UF 10-11. In January 2016, Owners communicated with outside counsel about the possibility of a chapter 11 filing but no petition was filed. UF 16. Several months later, on April 15, 2016, Defendant became president of Debtors. UF
18. Owners hired him because they had asked Defendant to identify other possible sources of debt for Debtors and Defendant had told Owners that hiring him as president would facilitate lending for Debtors’ financing. UF 18; Fennelly Decl., 4, ¶13.
Defendant served as president from April 15, 2016 through July 28, 2017. UF 19. During that time, Defendant managed Debtors’ daily operations, at least in part (even though Defendant had no experience in the healthcare industry) and corporate finance duties. UF 19; GI 19. Defendant received daily emails informing him of Debtors’ financial status and the patient census and Owners also received emails regarding the same. UF 20-21, 24, 42, 47, 54, 57-64; GI 20. Per the patient census reports, at Debtors’ peak in 2015, Debtors had 350 patients, at the end of May 2016, Debtors had 175 patients, and by the end of May 2017, Debtors had 14 patients. UF 27. Defendant and Owners received financial reports report indicating that, as of May 31, 2016, Debtors owed approximately $2.9 million in accrued accounts payable, of which more than 40% (approximately $1.2 million) was more than 90 days past due, that Debtors were struggling to cover basic expenses, like insurance and payroll, and that funds were insufficient to spend on marketing which was necessary to attract new
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patients. UF 7, 21-25. The May 2016 financials that Defendant received on July 12, 2016 also indicated that between February 2016 and May 2016, Debtors’ revenue declined approximately 50% – from approximately $8 million in February to approximately $4 million in May and that the declining revenue had caused Debtors to begin incurring substantial losses, with Debtors losing $886,825 in May 2016. UF 21, 26. In May 2016, Owners and Defendant discussed ceasing operations. Fennelly Decl., Ex. 6. Defendant also knew that a term sheet to sell Debtors’ Long Beach facility to Behavioral Property Partners ("BPP") had stalled due to BPP’s failure to provide information about their funding. UF 32.
During Defendants’ tenure as president, Debtors lost approximately
$24.6 million and all of the related debtors lost $32.8 million. Fennelly Decl., Ex. 263. Defendant negotiated a Forbearance Agreement with CapStar on August 31, 2016 that nominally increased the credit limit but became due on October 15, 2016. UF 39. On that date, the balance owed to CapStar was
$6,913,917.78. UF 51. The effort to sell Debtors’ assets in Long Beach and Texas (and certain real estate assets of Debtors’ affiliates) in 2016 was ultimately unsuccessful as well and the purported $8.5 million purchase price would, at best, only result in net proceeds of $4 million to Debtors. UF 56.
The only assets Debtors ever sold to BPP were the real properties in which Debtors’ Long Beach facilities were housed, which yielded net proceeds of
$265,828.26. UF 65.
The court declines to rule on Defendant’s procedural objections
Defendant raises two procedural arguments against the Motion. First, Defendant contends that the Motion (consisting of a 47 page "Motion" and 21 page "Memorandum of Points and Authorities") violates U.S. District Court Local Civil Rule 11-6 which sets the page length for briefs at 25 pages unless permitted by order of the court. See also LBR 1001-1(e)(1)("A matter not specifically covered by these Local Bankruptcy Rules may be determined, if possible, by parallel or analogy to the F.R.Civ.P., the FRBP, or the Local Civil Rules.")(emphasis added). Second, Defendant objects to Plaintiff’s failure to produce all 238 exhibits filed in support of the Motion since Plaintiff did not supplement its initial disclosures under FRCP 26(a) in violation of FRCP 26(e). Accordingly, Defendant requests a continuance under FRCP 56(d)(2)
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to allow Defendant the opportunity to review these newly produced exhibits and conduct additional discovery. See Opp’n, 7 and 12. Plaintiff counters that email exhibits were only "recently obtained" from Fennelly’s counsel (without giving the actual date) by Plaintiff and in any event, Defendant was on notice since August 31, 2020 (when Plaintiff served his initial FRCP 26(a) disclosures to Defendant) that there were emails in Owners’ possession but Defendant himself failed to conduct discovery on Owners. See Reply, 22-27. While the court notes that Plaintiff’s initial FRCP 26 disclosures stated that "some of these emails" were in Plaintiff’s possession and "that others" were in the possession of third parties, see Supp. Decl. of M. Rieder, Ex. 14, p. 8, because the court will largely deny the Motion on the merits in Defendants’ favor as discussed below, these two procedural objections will have no bearing on the outcome so the court declines to rule on Defendants’ procedural objections.
Defendants’ arguments regarding Plaintiff’s lack of admissible evidence, see Opp’n, 13-15, repeat the arguments raised by Defendant in his 251 total evidentiary objections. As such, the court need not address these evidentiary arguments again here since the court’s rulings on the evidentiary objections will do so.
Plaintiff has failed to carry his burden to demonstrate the absence of material facts and that Plaintiff is entitled to summary judgment as a matter of law as to the entirety of the claim for relief
As Debtors are both California corporations, California law is applicable. See, e.g., Davis & Cox v. Summa Corp., 751 F.2d 1507, 1527 (9th Cir. 1985) ("Claims involving ‘internal affairs’ of corporations, such as the breach of fiduciary duties, are subject to the laws of the state of incorporation."). Under California law, "[t]he elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach." City of Atascadero
Merrill Lynch, Pierce, Fenner & Smith, Inc., 68 Cal. App. 4th 445, 483 (1998); see P. & A., 2. The plaintiff has the initial burden of proving not only the existence of a fiduciary duty, but also the failure to perform it. LaMonte v. Sanwa Bank California, 45 Cal. App. 4th 509, 517 (1996). Turning to these elements individually:
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Defendant had a fiduciary duty to Debtors
Under California law, "officers of corporations who participate in the management of the corporation are considered fiduciaries as a matter of law" and one of those fiduciary duties is the duty of care. See L.A. Mem’l Coliseum Com. v. Insomniac, Inc., 233 Cal. App. 4th 803, 834 (2015); GAB Bus. Servs. v. Lindsey & Newsom Claim Servs., 83 Cal. App. 4th 409, 420-21 (2000) ("An officer who participates in management of the corporation, exercising some discretionary authority, is a fiduciary of the corporation as a matter of law."). The fiduciary duties owed by the officer of a California corporation include the duty of care. See, e.g., FDIC v. McSweeney, 976 F.2d 532, 538 (9th Cir. 1992) ("Under California statutory and common law, shareholders and corporations have an established right to sue corporate directors and officers for negligent breach of the duty of care."). The duty of care requires corporate officers to exercise "reasonable care, diligence, and skill in their work." In re Heritage Bond Litig., 2004 U.S. Dist. LEXIS 15387, at
*13 (C.D. Cal. Jun. 28, 2004); Mot., P. & A., 3-4.
In this case, because Defendant served as president of Debtors from April 14, 2016 to July 28, 2017, see P. & A., 3-4, UF 19; GI 19, and managed (at least in part) the daily operations of Debtors, see, UF 67; GI 67, Defendant owed a fiduciary duty to Debtors as a matter of law.
There are questions of material fact over whether Defendant breached his fiduciary duty to Debtors
Plaintiff argues that Defendant breached his duty of care to Debtors by failing to cease Debtors’ operations or file for bankruptcy no later than July 15, 2016. By that date, Defendant purportedly knew with absolute certainty, from the financial reports he received about Debtors and communications with Owners, that Debtors’ downward spiral could not be stopped and continuing to operate Debtor would only cause further losses. Defendant nonetheless continued to operate Debtors after July 15, 2016 for almost an entire additional year, losing millions per month, after any officer exercising reasonable care would have ceased operations, and Defendant ultimately caused Debtors to lose $20,552,236.43 during that time. See P. & A., 4-18.
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Defendant counters that Owners were not disinterested directors but rather officers themselves of Debtors (Fennelly as CEO, Shandrow as Chief Revenue Officer, and Perry as Chief Culture Officer) who supervised Defendant, made strategic decisions on behalf of Debtors, and performed day-to-day management of Debtors themselves, which is evidenced by the fact that Owners were copied on the emails regarding Debtors’ finances.
Opp’n, 16-17; Degner Decl., 2, ¶ 2; B. Dully Decl., 2, ¶ 7-8 (reporting directly to Fennelly); S. Halberstadt Decl., 2-3, ¶ 10 (summarizing emails in which Owners are described as officers and/or participating in Debtors’ operations). As officers of Debtors, Defendant argues that Owners themselves beached their fiduciary duties, not Defendant, because Owners, not Defendant, ultimately had the authority to decide whether to cease operations or file for bankruptcy (which they failed to do in January 2016 when they discussed filing for chapter 11 months before Defendant even was hired as president). See Opp’n, 18-20.
Viewing the evidence in the light most favorable to the non-moving party, Defendant, Plaintiff has failed to carry his burden to demonstrate that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. First, that Owners served as officers of Debtors is unrefuted. Second, the scope of Owners involvement in Debtor’s operations as officers remains disputed. And while Plaintiff argues that Owners were solely reliant on Defendant for deciding whether to continue Debtors’ operations, this argument is undermined by the undisputed facts that Fennelly himself testified that Defendant was only hired a president to lend further credibility to Defendant’s efforts to obtain debt financing for Debtors (or "facilitate lending" as Defendant described it, Fennelly Decl., 4, ¶13) so the scope of his duties were to be limited to the "finance department," Owners themselves had successfully operated Debtors for several years before 2015 and Defendant’s appointment, and Fennelly appears to have remained active in Debtors’ affairs even during his leave of absence. See UF 8, 18; Degner Decl., Ex. L (texts between S. Fennelly and Defendant discussing Debtors’ business). In other words, viewing the evidence in the light most favorable to Defendant, and drawing all reasonable inferences in favor of Defendant, it is unlikely that Owners would have left the day-to-day operational management of Debtors solely to Defendant, with no input from Owners, when at least
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Fennelly knew that Defendant had no experience in operations or the healthcare industry. See UF 4, 6. Plaintiff’s arguments is further undermined that Owners themselves demonstrated an intent to operate notwithstanding the dire financial condition of Debtors in January 2016 when Owners themselves refused to file for bankruptcy even after insurance payments constituting a significant portion of Debtors’ revenue suddenly stopped in late 2015, Debtors’ were in litigation with Costa Mesa, and Debtors overextended attempting to develop larger treatment facilities. See UF 8, 10,
16. Stated otherwise, Debtors were already in a financial death spiral when Defendant assumed the position of president of Debtors and factual issues abound as whether Defendant pursued a course of action (lack of action) that rose to the level of breach of his fiduciary duty.
Plaintiff has also failed to show that Defendant breached his fiduciary duties when, again viewing the evidence in the light most favorable to Defendant, it appears that there is material dispute as to whether Defendant was the only individual that wanted to continue operating Debtors after July 15, 2016 as the Motion argues. It appears that Owners, or at least Fennelly as CEO, wanted to continue operating past July 15, 2016. Exhibit J to Defendant’s declaration is the engagement letter between Solid Landings and Brentwood, signed by Fennelly and dated July 7, 2016, confirming Brentwood’s engagement for a possible sale of Debtors’ Texas and Nevada assets, but no mention of Debtors’ California assets is included. Plaintiff’s attempts to paint Defendant as the only individual who wanted to pursue the ill-fated 2016 sale is therefore undermined by this engagement letter signed by Debtors’ CEO only 8 days before the July 15, 2016 date (the date Plaintiff argues Defendant should have known to cease operations or file for bankruptcy). And even if Defendant had wanted to cease operations or file for bankruptcy, given Owner’s intent to continue operating at Debtors’ business in California (as evidenced by their refusal to file for bankruptcy in January 2016, May 2016, and the Brentwood engagement letter signed July 8, 2016), that Defendant as president could overrule the CEO who wanted to try to continue efforts to sell Debtor’s assets on July 8, 2016. This lends support to Defendant’s argument that Owners retained "ultimate control of the Debtors’ operations and strategic decision making." See Opp’n, 5.
Plaintiff’s reliance on Defendant’s past testimony for the position that
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Defendant has admitted that he was solely responsible for Debtors’ daily operations is unpersuasive because Defendant in that testimony did not state that Owners had no role in Debtors’ daily operations whatsoever. See Reply, 11-13. Again viewing the evidence in the light most favorable to Defendant, that past testimony can be construed as Defendant admitting that he played a major role (but not sole authority) in Debtors’ daily operations. And to the extent that he took over Fennelly’s operational duties during Fennelly’s leave of absence, Defendant makes no mention of taking over the duties of the other two Owners in that past testimony. See e.g., Degner Decl. [dkt. 66], 7,
¶ 24 ("In that role, in conjunction with the Debtors’ other remaining directors, Perry and Shandrow, I prepared the strategic plans to keep the Debtors functioning and, potentially saving them.) (emphasis added).
Finally, in his declaration, Defendant testifies about his strategic plan for the company in terms of streamlining expenses and obtaining favorable financing, the actions he took to do so, and the challenges he faced. See, e.g., Degner Decl at ¶¶ 16-20, 22-25, 29. Viewing the facts in a light most favorable to Defendant, there are material issues of fact as whether Defendant's efforts constitute a breach of his fiduciary duty to Debtors.
3. There are questions of material fact over whether Defendant’s breach, if any, caused the damages allegedly suffered by Debtors
Plaintiff argues that Defendant alone caused Debtors to continue operating past July 15, 2016 and as such, Defendant should be liable for the damages in an amount equal to the losses suffered by Debtors during that time. Plaintiff therefore seeks damages in the total amount of
$20,552,236.43 plus 7% interest on the amounts awarded against Defendant with the interest on the amount awarded for each month running from the end of that month through the date on which final judgment is entered. See P. & A., 18-20; SUF 70 (while Defendant disputes the amounts, Defendant has offered no opposing evidence, see SGI 70).
Under California law, a fiduciary who breaches his duty of care is liable for damages in "the amount which will compensate for all the detriment
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proximately caused thereby, whether it could have been anticipated or not." See Cal. Civ. Code § 3333 ("For the breach of an obligation not arising from contract, the measure of damages…is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not."); Michelson v. Hamada, 29 Cal. App. 4th 1566, 1584 (1994)(holding the fiduciary liable for estimated income lost as a result of the fiduciary’s improper management of a business); Smith v. Arthur Andersen Ltd. Liab. P’ship, 421 F.3d 989, 1004 (9th Cir. 2005)(agreeing "that the complaint states a cognizable harm to Boston Chicken when it alleges that the defendants ‘prolonged’ the firm's existence, causing it to expend corporate assets that would not have been spent ‘if the corporation [had been] dissolved in a timely manner, rather than kept afloat with spurious debt.’"). "Although causation is a question of fact, it may be decided as a matter of law if, under undisputed facts, reasonable minds could not differ." In re Heritage Bond Litig., 2004 U.S. Dist. LEXIS 15387, at *24 (C.D. Cal.
June 28, 2004).
In opposition, Defendant raises several arguments. First, Defendant argues that under California Civil Code § 1431.2(a), when there are multiple tortfeasors, the damages must be allocated between the tortfeasors. See Opp’n, 21. This argument is unpersuasive because, as explained by Plaintiff, the plain language of Civil Code § 1431.2 requires "the application of comparative fault only to non-economic damages in personal injury, property damage and wrongful death cases’ and not for claims for economic damages, such as breach of fiduciary duty claims. See Reply, 15-19. Civil Code § 1431.2(a), states…"In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint." (emphasis added). Defendant’s own cited legal authority supports Plaintiff’s position. See Dafonte v. Up-Right, Inc., 2 Cal. 4th 593, 601 (1992)("Section 1431.2 declares plainly and clearly that in tort suits for personal harm or property damage, no ‘defendant’ shall have ‘joint’ liability for ‘non-economic’ damages, and ‘each defendant’ shall be liable ‘only’ for those ‘non-economic’ damages directly attributable to his or her own ‘percentage of fault.’"); Evangelatos v. Superior Ct., 44 Cal. 3d 1188, 1239 (1988)("Second, it is well to recall exactly what Proposition 51 provides. It repeals the joint and several rule only as applied to noneconomic damages, i.e. pain and suffering,
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emotional distress, loss of consortium and the like. (Civ. Code, § 1431.2, subd. (b)(2).)"); Pfeifer v. John Crane, Inc., 220 Cal. App. 4th 1270, 1318 (2013)("Under Civil Code section 1431.2, JCI's liability for noneconomic damages is limited by its share of comparative fault."); Vollaro v. Lispi, 224 Cal. App. 4th 93, 99 (2014)("…Proposition 51…abolished joint and several liability for noneconomic damages in personal injury cases… Proposition 51, which amended Civil Code section 1431 and added Civil Code sections 1431.1 through 1431.5…").
Second, Defendant contends that Owners are solely responsible for any damages sustained by the Debtors after January 2016 (or May 2016) because their failure to file for bankruptcy then caused Debtors to continue operating through May 31, 2017, and Owners were also Debtors’ corporate officers so they also fiduciary duties to Debtors. See Opp’n, 21-22. Viewing the evidence in the light most favorable to Defendant, this position raises a material factual dispute because it raises the issue of whether Defendant’s breach, if any, was the proximate cause Plaintiff’s damages. See Civ. Code § 3333 ("For the breach of an obligation not arising from contract, the measure of damages…is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not." (emphasis added). "[T]he proper test for determining actual cause is the ‘substantial factor’ test, under which the defendant's conduct will be regarded as an actual cause of the plaintiff's harm if it was a substantial factor in bringing about the harm." Heritage Bond Litig., supra, at 25. Based on Plaintiff’s own undisputed facts, Debtors were already in a "financial death spiral" at the end of 2015 (months before Defendant was hired as president) because insurance payments constituting a significant portion of Debtors’ revenue suddenly stopped in late 2015, Debtors’ were in litigation with Costa Mesa, and Debtors overextended attempting to develop larger treatment facilities. See UF 8, 10, 16. And as discussed above, Owners were also corporate officers of Debtors during 2015 who themselves owed fiduciary duties to Debtors. As a result, a dispute remains over material facts since reasonable minds could disagree over whether Defendant’s breach, if any, was a substantial factor in bring about Debtors’ damages or whether Debtors were already in a "financial death spiral" and contemplating bankruptcy prior to Defendant’s hiring as president.
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Plaintiff’s reliance on California Corporations Code § 309 to argue that Owners cannot be liable for damages because they enjoy statutory immunity under the business judgment rule ignores the undisputed fact that Owners were also officers of Debtors and as this court has previously ruled, the business judgment rule is applicable to directors but not corporate officers.
See Reply, 20-21. Thus, the scope of Owners’ actions, whether as directors or officers, also remains a disputed material fact affecting not only the second element of whether Defendant breach his fiduciary duty, but also whether such breach, if any, was the proximate cause of Debtors’ damages.
Conclusion
Under California law, "[t]he elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach." City of Atascadero, supra, at
483. Plaintiff has carried his burden to demonstrate that there is no genuine dispute as to any material fact regarding the existence of a fiduciary duty, and that Plaintiff is entitled to partial summary adjudication on this first element. But because genuine disputes remain as to material facts regarding the second and third element, Plaintiff has not carried his burden under FRCP 56(a) as to these last two elements.
EVIDENTIARY OBJECTIONS
Defendant's Evidentiary Objectons to Declaration of Monica Reider
Objection # Ruling
- Exh. 3 Admitted for the purpose of showing the document attached to Proof of Claim #77, not the truth of its
contents
Sustained
- 8 Overruled
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Defendant's Evidentiary Objections to Declaration of Stephen Fennelly
Objection # Ruling
Overruled
Overruled
Overruled
- 7 Sustained.
Admitted as received by Declarant but not for truth of content
Admitted as received by Declarant but not for truth of content
Overruled
Sustained
As to the remainder of the objections re emails, emails sent by third parties to other third parties (not including Mr. Fennelly) are Sustained, emails sent by third parties (including to Mr. Fennelly) are admitted as emails received but not for the truth of content, emails sent by Mr. Degner are Overruled, and emails sent by Mr. Fennelly are Overruled.
Debtor(s):
Solid Landings Behavioral Health, Represented By
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David L. Neale Juliet Y Oh Jeffrey S Kwong David M Samuels
Defendant(s):
Gerik M. Degner Represented By Ismail Amin
Plaintiff(s):
Howard B Grobstein Represented By Rodger M. Landau Monica Rieder
2:00 PM
Adv#: 8:20-01161 Kurtin v. Elieff
Docket 10
CONTINUED: Hearing Continued to 6/17/2021 at 2:00 pm, Per Order Entered 4/2/2021 (XX) - am/td (4/14/2021)
NONE LISTED -
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson Robert P Goe
Defendant(s):
Bruce Elieff Represented By
Robert P Goe
Plaintiff(s):
Todd Kurtin Represented By
Lewis R Landau
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe Claire K Wu
2:00 PM
9:30 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
9:30 AM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
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Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
NONE LISTED -
10:00 AM
VS.
DEBTOR
Docket 60
NONE LISTED -
May 6, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Harry K. James Represented By Julie J Villalobos
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry Eric P Enciso
10:00 AM
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
(RE: 1006 S. Hathaway St Unit D, Santa Ana, CA 92705)
EASTSIDE DEVELOPMENT, CO. VS.
DEBTOR
Docket 19
NONE LISTED -
May 11, 2021
Grant the Motion with all relief requested therein, except that relief request #9 is denied.
Basis for Tentative Ruling/General Comments
Relief request #9 seeks 180-day prospective relief against any debtor, not just the debtor in this case. No grounds for such extraordinary relief have been stated.
Debtor has filed a late opposition to the Motion, requesting an order providing for no lockout prior to June 7, 2021. However, Debtor apparently does not realize that the automatic stay in this case expired on March 25, 2021. Bankruptcy Code Section 362(c)(3) provides that if a debtor has had a bankruptcy case pending and dismissed within a year of the current filing, the automatic stay in the current case expires 30 days after the petition was filed.unless the debtor files a motion extending the stay beyond the 30-day limit. Section 362(c)(3)(B) requires that the motion be filed and the hearing
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on the motion occur before the expiration of the 30 days. Here, Debtor's prior bankruptcy case was dismissed on February 16, 2021, which is within one year of the current case which was filed on February 23, 2021. As Debtor did not file a motion to extend the stay or obtain a hearing date within 30 days, the stay expired as a matter of law on March 25, 2021. The court has no authority to entertain a motion after the 30 days has expired.
If Eastside Development is agreeable to allowing Debtor until June 7, 2021 to vacate the premises, Movant can so advise the clerk during the calendar roll call just prior to the commencement of the hearing and the parties will not have to stay for the hearing.
The expiration of the automatic stay has no impact upon any applicable moratoriums under federal, state or local laws.
Debtor(s):
William Andrew Deans Pro Se
Movant(s):
Eastside Development, Co. Represented By Barry L O'Connor
Trustee(s):
Karen S Naylor (TR) Pro Se
10:00 AM
(RE: 1004 S. Hathaway St Unit P, Santa Ana, CA 92705)
EASTSIDE DEVELOPMENT, CO. VS.
DEBTOR
Docket 21
NONE LISTED -
May 11, 2021
Grant the Motion with all relief requested therein, except that relief request #9 is denied.
Basis for Tentative Ruling/General Comments
Relief request #9 seeks 180-day prospective relief against any debtor, not just the debtor in this case. No grounds for such extraordinary relief have been stated.
Debtor has filed a late opposition to the Motion, requesting an order providing for no lockout prior to June 7, 2021. However, Debtor apparently does not realize that the automatic stay in this case expired on March 25, 2021. Bankruptcy Code Section 362(c)(3) provides that if a debtor has had a bankruptcy case pending and dismissed within a year of the current filing, the automatic stay in the current case expires 30 days after the petition was filed.unless the debtor files a motion extending the stay beyond the 30-day limit. Section 362(c)(3)(B) requires that the motion be filed and the hearing
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on the motion occur before the expiration of the 30 days. Here, Debtor's prior bankruptcy case was dismissed on February 16, 2021, which is within one year of the current case which was filed on February 23, 2021. As Debtor did not file a motion to extend the stay or obtain a hearing date within 30 days, the stay expired as a matter of law on March 25, 2021. The court has no authority to entertain a motion after the 30 days has expired.
If Eastside Development is agreeable to allowing Debtor until June 7, 2021 to vacate the premises, Movant can so advise the clerk during the calendar roll call just prior to the commencement of the hearing and the parties will not have to stay for the hearing.
The expiration of the automatic stay has no impact upon any applicable moratoriums under federal, state or local laws.
Debtor(s):
William Andrew Deans Pro Se
Movant(s):
Eastside Development, Co. Represented By Barry L O'Connor
Trustee(s):
Karen S Naylor (TR) Pro Se
10:00 AM
(RE: 1006 S. Hathaway St Unit E, Santa Ana, CA 92705)
EASTSIDE DEVELOPMENT, CO. VS.
DEBTOR
Docket 23
NONE LISTED -
May 11, 2021
Grant the Motion with all relief requested therein, except that relief request #9 is denied.
Basis for Tentative Ruling/General Comments
Relief request #9 seeks 180-day prospective relief against any debtor, not just the debtor in this case. No grounds for such extraordinary relief have been stated.
Debtor has filed a late opposition to the Motion, requesting an order providing for no lockout prior to June 7, 2021. However, Debtor apparently does not realize that the automatic stay in this case expired on March 25, 2021. Bankruptcy Code Section 362(c)(3) provides that if a debtor has had a bankruptcy case pending and dismissed within a year of the current filing, the automatic stay in the current case expires 30 days after the petition was filed.unless the debtor files a motion extending the stay beyond the 30-day limit. Section 362(c)(3)(B) requires that the motion be filed and the hearing
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on the motion occur before the expiration of the 30 days. Here, Debtor's prior bankruptcy case was dismissed on February 16, 2021, which is within one year of the current case which was filed on February 23, 2021. As Debtor did not file a motion to extend the stay or obtain a hearing date within 30 days, the stay expired as a matter of law on March 25, 2021. The court has no authority to entertain a motion after the 30 days has expired.
If Eastside Development is agreeable to allowing Debtor until June 7, 2021 to vacate the premises, Movant can so advise the clerk during the calendar roll call just prior to the commencement of the hearing and the parties will not have to stay for the hearing.
The expiration of the automatic stay has no impact upon any applicable moratoriums under federal, state or local laws.
Debtor(s):
William Andrew Deans Pro Se
Movant(s):
Eastside Development, Co. Represented By Barry L O'Connor
Trustee(s):
Karen S Naylor (TR) Pro Se
10:00 AM
(RE: 1004 S. Hathaway St Unit C, Santa Ana, CA 92705)
EASTSIDE DEVELOPMENT, CO. VS.
DEBTOR
Docket 25
NONE LISTED -
May 11, 2021
Grant the Motion with all relief requested therein, except that relief request #9 is denied.
Basis for Tentative Ruling/General Comments
Relief request #9 seeks 180-day prospective relief against any debtor, not just the debtor in this case. No grounds for such extraordinary relief have been stated.
Debtor has filed a late opposition to the Motion, requesting an order providing for no lockout prior to June 7, 2021. However, Debtor apparently does not realize that the automatic stay in this case expired on March 25, 2021. Bankruptcy Code Section 362(c)(3) provides that if a debtor has had a bankruptcy case pending and dismissed within a year of the current filing, the automatic stay in the current case expires 30 days after the petition was filed.unless the debtor files a motion extending the stay beyond the 30-day limit. Section 362(c)(3)(B) requires that the motion be filed and the hearing
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on the motion occur before the expiration of the 30 days. Here, Debtor's prior bankruptcy case was dismissed on February 16, 2021, which is within one year of the current case which was filed on February 23, 2021. As Debtor did not file a motion to extend the stay or obtain a hearing date within 30 days, the stay expired as a matter of law on March 25, 2021. The court has no authority to entertain a motion after the 30 days has expired.
If Eastside Development is agreeable to allowing Debtor until June 7, 2021 to vacate the premises, Movant can so advise the clerk during the calendar roll call just prior to the commencement of the hearing and the parties will not have to stay for the hearing.
The expiration of the automatic stay has no impact upon any applicable moratoriums under federal, state or local laws.
Debtor(s):
William Andrew Deans Pro Se
Movant(s):
Eastside Development, Co. Represented By Barry L O'Connor
Trustee(s):
Karen S Naylor (TR) Pro Se
10:00 AM
Adv#: 8:21-01014 Marshack v. Cavanaugh et al
(Application filed 4/14/2021)
FR: 5-5-21, Crtrm 5C before SC; 5-6-21
Docket 35
NONE LISTED -
May 6, 2021
The court is inclined to grant the Application with a bond of $10,000; however Plaintiff will need to address the Exemption Statement.
EVIDENTIARY RULINGS
Plaintiff's Evidentiary Objections to Declaration of Ralph Kosmides
Paragraph # Ruling
5: 1:25 - 2:2 Sustained
5: 2:3 - 6 Sustained as to "which made it appear ...they had not." Overruled as to the balance
7: 2:14-20 Sustained as to "Hesch reviewed the issues ... and not loans." Overruled as to the balance.
8: 2:21-22 Sustained
10:00 AM
9: 2:23-27 Sustained (Note: Defendant has apparently objected to the
Marshack
authenticity of certain or all of such documents re Declaration)
10: 3:1-4 Overruled
11 3:5-7 Sustained as to "I have amended . . . to the Distributions")
FRE 1002
13: 3:10-15 Overruled
Exh. A Sustained
May 11, 2021
This matter remains under review by the court; a tentative ruling may be posted at any time prior to the hearing.
Debtor(s):
Ruby's Diner, Inc., a California Represented By William N Lobel Jeffrey P Nolan
Defendant(s):
Douglas Cavanaugh Represented By Leo A Bautista
Ralph Kosmides Represented By Leo A Bautista
Beachcomber Management Crystal Pro Se
10:00 AM
Lighthouse Cafe, LLC Pro Se Beachcomber at Crystal Cove, LLC Pro Se Shake Shack Crystal Cove, LLC Pro Se
Plaintiff(s):
Richard A. Marshack Represented By Christopher Dale Beatty
Trustee(s):
Richard A Marshack (TR) Represented By Laila Masud
D Edward Hays Tinho Mang
10:00 AM
Adv#: 8:21-01014 Marshack v. Cavanaugh et al
(Application filed 4/14/2021)
FR: 5-5-21, Crtrm 5C before SC; 5-6-21
Docket 29
NONE LISTED -
May 6, 2021
The court is inclined to grant the Application with a bond of $10,000; however Plaintiff will need to address the Exemption Statement.
EVIDENTIARY RULINGS
Defendants' Objection to the Declaration of Richard Marshack
Paragraph # Ruling
Overruled
Overruled as to the fact of possession of the subject documents; Sustained as to the truth of their content.
Exhs. A-I;3-11 Overruled as to the fact of possession of the
subject documents; Sustained as to the
truth of their content or authenticity of the same
10:00 AM
Plaintiff's Evidentiary Objections to Declaration of Douglas S. Cavanaugh
Paragraph # Ruling
6: 2:3-6 Overruled
7: 2:7-9 Sustained as to "I have amended . . . to the Distributions")
8: 2:10-11 Overruled
9: 2:12-14 Overruled
May 11, 2021
This matter remains under review by the court; a tentative ruling may be posted at any time prior to the hearing.
Debtor(s):
Ruby's Diner, Inc., a California Represented By William N Lobel Jeffrey P Nolan
Defendant(s):
Douglas Cavanaugh Represented By Leo A Bautista
Ralph Kosmides Represented By Leo A Bautista
Beachcomber Management Crystal Pro Se Lighthouse Cafe, LLC Pro Se Beachcomber at Crystal Cove, LLC Pro Se
10:00 AM
Shake Shack Crystal Cove, LLC Pro Se
Plaintiff(s):
Richard A. Marshack Represented By Christopher Dale Beatty
Trustee(s):
Richard A Marshack (TR) Represented By Laila Masud
D Edward Hays Tinho Mang
10:30 AM
Adv#: 8:16-01247 Damon v. Haythorne
FR: 7-16-19; 8-15-19; 10-17-19; 11-21-19; 1-30-20; 4-2-20; 6-11-20; 9-10-20;
11-19-20; 1-14-21; 3-11-21
Docket 128
CONTINUED: Examination Continued to 7/1/2021 at 10:30 a.m., Per Order Entered 5/4/2021 (XX) - td (5/4/2021)
SPECIAL IMPORTANT NOTICE! In order to mitigate the spread of the COVID-19 virus, notice is hereby given that ALL hearings before Judge Smith will be by TELEPHONE APPEARANCE ONLY until further notice. The courtroom will be locked. Any party who wishes to appear must register in advance by contacting CourtCall at (866) 582-6878. It is suggested that parties register with CourtCall at least 30 minutes prior to the hearing. Through September 30, 2020, CourtCall is offering discounted registration for attorneys and free registration for parties without an attorney.
July 16. 2019
Stephen Haythorne to appear in court to be sworn in by the court clerk; the examination will take place outside the courtroom.
August 8, 2019
Stephen Haythorne to appear in court to be sworn in by the court clerk; the
10:30 AM
examination will take place outside the courtroom.
August 15, 2019
Stephen Haythorne to appear in court to be sworn in by the court clerk; the examination will take place outside the courtroom.
October 17, 2019
Judgment creditor has not sought the issuance of an OSC re contempt. Continue hearing to November 21, 2019 at 10:30 a.m. Any motion for OSC re contempt may be heard on the same date.
November 21, 2019
Judgment creditor to advise the court re the status of this matter. The court notes that judgment creditor has not sought the issuance of an OSC re contempt.
January 30, 2020
Judgment creditor to advise the court re the status of this matter, e.g., production of documents. Stephen Haythorne to appear in court to be sworn in by the court clerk; the examination will take place outside the courtroom.
June 11, 2020
Continue the examination to September 10, 2020 at 10:00 a.m. Basis for Tentative Ruling
The courthouse remains closed to in-person court appearances and on-site
10:30 AM
in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse, including by video conference, prior to September 10, 2020. Depending on the status of pandemic-related rules and policies in place on September 1, 2020, the September 10, 2020 hearing may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
September 10, 2020
Continue the examination to November 19, 2020 at 10:00 a.m. (XX) Basis for Tentative Ruling
The courthouse is currently closed to in-person court appearances and on- site in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse, including by video conference, prior to November 19, 2020. Depending on the status of pandemic-related rules and policies in place on November 19, 2020, the examination may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
10:30 AM
Debtor(s):
Stephen J Haythorne Represented By David S Henshaw
Defendant(s):
Stephen J Haythorne Pro Se
Plaintiff(s):
Hugh C Damon Represented By Robert P Goe Charity J Manee
Trustee(s):
Weneta M Kosmala (TR) Pro Se
10:30 AM
Adv#: 8:16-01247 Damon v. Haythorne
FR: 7-16-19; 8-15-19; 10-17-19; 11-21-19; 1-30-20; 4-2-20; 6-11-20; 9-10-20;
11-19-20; 1-14-21; 3-11-21
Docket 130
CONTINUED: Examination Continued to 7/1/2021 at 10:30 a.m., Per Order Entered 5/4/2021 (XX) - td (5/4/2021)
SPECIAL IMPORTANT NOTICE! In order to mitigate the spread of the COVID-19 virus, notice is hereby given that ALL hearings before Judge Smith will be by TELEPHONE APPEARANCE ONLY until further notice. The courtroom will be locked. Any party who wishes to appear must register in advance by contacting CourtCall at (866) 582-6878. It is suggested that parties register with CourtCall at least 30 minutes prior to the hearing. Through September 30, 2020, CourtCall is offering discounted registration for attorneys and free registration for parties without an attorney.
July 16. 2019
Kelli Haythorne to appear in court to be sworn in by the court clerk; the examination will take place outside the courtroom.
August 8, 2019
Kelli Haythorne to appear in court to be sworn in by the court clerk; the
10:30 AM
examination will take place outside the courtroom.
August 15, 2019
Kelli Haythorne to appear in court to be sworn in by the court clerk; the examination will take place outside the courtroom.
October 17, 2019
Judgment creditor has not sought the issuance of an OSC re contempt. Continue hearing to November 21, 2019 at 10:30 a.m. Any motion for OSC re contempt may be heard on the same date.
November 21, 2019
Judgment creditor to advise the court re the status of this matter. The court notes that judgment creditor has not sought the issuance of an OSC re contempt.
January 30, 2020
Judgment creditor to advise the court re the status of this matter, e.g., production of documents. Kelli Haythorne to appear in court to be sworn in by the court clerk; the examination will take place outside the courtroom (no doctor's note was filed by January 16, 2020 excusing her appearance).
June 4, 2020
Continue the examination to September 10, 2020 at 10:00 a.m. Basis for Tentative Ruling
10:30 AM
The courthouse remains closed to in-person court appearances and on-site in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse, including by video conference, prior to September 10, 2020. Depending on the status of pandemic-related rules and policies in place on September 1, 2020, the September 10, 2020 hearing may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
September 10, 2020
Continue the examination to November 19, 2020 at 10:00 a.m. (XX) Basis for Tentative Ruling
The courthouse is currently closed to in-person court appearances and on- site in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse, including by video conference, prior to November 19, 2020. Depending on the status of pandemic-related rules and policies in place on November 19, 2020, the examination may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
Debtor(s):
Stephen J Haythorne Represented By David S Henshaw
10:30 AM
Defendant(s):
Stephen J Haythorne Pro Se
Plaintiff(s):
Hugh C Damon Represented By Robert P Goe Charity J Manee
Trustee(s):
Weneta M Kosmala (TR) Pro Se
10:30 AM
Docket 577
NONE LISTED -
May 11, 2021
Grant the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Friendly Village MHP Associates LP Represented By
Howard Camhi
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Kristine A Thagard Arthur Grebow David Wood Tinho Mang Stefan Perovich
10:30 AM
Docket 580
NONE LISTED -
May 11, 2021
Grant the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Friendly Village MHP Associates LP Represented By
Howard Camhi
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Kristine A Thagard Arthur Grebow David Wood
10:30 AM
Tinho Mang Stefan Perovich
10:30 AM
Docket 583
NONE LISTED -
May 11, 2021
Grant the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Friendly Village MHP Associates LP Represented By
Howard Camhi
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Kristine A Thagard Arthur Grebow David Wood Tinho Mang Stefan Perovich
10:30 AM
10:30 AM
Docket 284
NONE LISTED -
May 11, 2021
Grant the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Friendly Village GP, LLC Represented By Howard Camhi
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays David Wood Kristine A Thagard
10:30 AM
Docket 287
NONE LISTED -
May 11, 2021
Grant the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Friendly Village GP, LLC Represented By Howard Camhi
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays David Wood Kristine A Thagard
10:30 AM
Docket 290
NONE LISTED -
May 11, 2021
Grant the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Friendly Village GP, LLC Represented By Howard Camhi
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays David Wood Kristine A Thagard
10:30 AM
[WENETA M.A. KOSMALA, CHAPTER 7 TRUSTEE]
FR: 4-8-21
Docket 131
NONE LISTED -
May 11, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Taylor Tech Inc. Represented By Anthony A Friedman
Trustee(s):
Weneta M.A. Kosmala (TR) Represented By Beth Gaschen Jeffrey I Golden
10:30 AM
[WEILAND GOLDEN GOODRICH LLP, ATTORNEYS FOR CHAPTER 7 TRUSTEE WENETA M.A. KOSMALA]
FR: 4-8-21
Docket 124
NONE LISTED -
May 11, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Taylor Tech Inc. Represented By Anthony A Friedman
Trustee(s):
Weneta M.A. Kosmala (TR) Represented By Beth Gaschen Jeffrey I Golden
10:30 AM
[HAHN FIFE & COMPANY, LLP, ACCOUNTANT FOR CHAPTER 7 TRUSTEE]
FR: 4-8-21
Docket 126
NONE LISTED -
May 11, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Taylor Tech Inc. Represented By Anthony A Friedman
Trustee(s):
Weneta M.A. Kosmala (TR) Represented By Beth Gaschen Jeffrey I Golden
10:30 AM
[INDEPENDENT MANAGEMENT SERVICES,TRUSTEE FIELD REPRESENTATIVE]
FR: 4-8-21
Docket 125
NONE LISTED -
May 11, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Taylor Tech Inc. Represented By Anthony A Friedman
Trustee(s):
Weneta M.A. Kosmala (TR) Represented By Beth Gaschen Jeffrey I Golden
10:30 AM
[FORCE TEN PARTNERS, LLC, FINANCIAL ADVISOR TO THE CHAPTER 7 TRUSTEE]
Docket 138
NONE LISTED -
May 11, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Taylor Tech Inc. Represented By Anthony A Friedman
Trustee(s):
Weneta M.A. Kosmala (TR) Represented By Beth Gaschen Jeffrey I Golden
10:30 AM
Docket 48
NONE LISTED -
May 11, 2021
Grant the Motion in its entirety. Basis for Tentative Ruling:
No party submitted an overbid by or before the April 27, 2021 deadline.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
American Sterling Corporation Represented By Nanette D Sanders
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
(B) For Entry of Order Extending Time for Performance of Obligations Arising Under Unexpired Non-Residential Real Property Leases
Docket 17
NONE LISTED -
May 11, 2021
Deny Motion.
Basis for Tentative Ruling
Debtor has failed to file any evidence in support of the Motion as required by LBR 9013-1(c)(3). No declaration or documentary evidence is attached to the Motion. Though Debtor makes a reference to projections filed early in the case [docket 12], the projections do not jibe with the MOR filed for the period ending March 31, 2021 [docket #32] which shows no receipts whatsoever. The failure to file supporting evidence alone is sufficient ground for denying the Motion irrespective of the other grounds stated by the objecting landlords.
As pointed out by objecting parties, Debtor has not, and apparently cannot, satisfy the relief from forfeiture requirement of CCP 1179. That being the case, the leases expired prepetition and cannot be assumed. Section 365(d)(3)(B) does not change that circumstance.
10:30 AM
Debtor(s):
Mehr Group of Companies Holding Represented By
Andy C Warshaw
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
Docket 26
NONE LISTED -
May 11, 2021
Grant Motion for the reasons stated in the Motion and Reply, which the court adopts by reference herein.
Debtor(s):
Mehr Group of Companies Holding Represented By
Andy C Warshaw
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
Hearing RE: Motion for relief from the automatic stay [UNLAWFUL DETAINER] PCH RESTAURANT & MARINA, LLC
VS.
DEBTOR
Docket 28
NONE LISTED -
May 11, 2021
Grant Motion for the reasons stated in the Motion and Reply, which the court adopts by reference herein.
Debtor(s):
Mehr Group of Companies Holding Represented By
Andy C Warshaw
Movant(s):
PCH Restaurant & Marina, LLC Represented By
Ryan D O'Dea
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
Docket 1
NONE LISTED -
May 11, 2021
No tentative ruling; disposition will depend on outcome of other matters on today's calendar.
Debtor(s):
Mehr Group of Companies Holding Represented By
Andy C Warshaw
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
FR: 4/16/21
Docket 6
NONE LISTED -
May 11, 2021
Grant motion on final basis on terms set forth in the signed cash collateral stipulation.
Note: Appearances at this hearing are not required.
Debtor(s):
Plamex Investment, LLC Represented By Ron Bender Juliet Y Oh Monica Y Kim
Movant(s):
Plamex Investment, LLC Represented By Ron Bender Juliet Y Oh Monica Y Kim
2:00 PM
Adv#: 8:20-01110 Myers v. Sandoval
Docket 25
NONE LISTED -
May 11, 2021
Grant the Motion to Dismiss the Complaint with leave to amend the Complaint as to the 523(a)(2) claim; Grant the Motion to Dismiss the Complaint without leave to amend the Complaint as to the claim for relief under 727(a)(4).
Plaintiff must file and serve an Amended Complaint no later than June 11, 2021; Defendant must file and serve his response to the Amended Complaint no later than July 12, 2021.
Basis for Tentative Ruling:
Louis Sandoval, debtor and defendant ("Defendant") filed a voluntary chapter 7 petition on July 3, 2020. Charlotte Myers ("Plaintiff") filed a complaint asserting that her debt was excepted from discharge under §§ 523(a)(2) and for denial of discharge under 727(a)(4) ("Complaint") on July 20, 2020. Defendant did not file an answer to the Complaint but has filed this motion to dismiss the Complaint pursuant to Federal Rules of Civil Procedure (FRCP) 12(b)(6) ("Dismissal Motion"). Plaintiff’s pending motion for entry of a default judgment is scheduled for hearing at the same time as the Dismissal Motion.
Legal standard
FRCP 12(b)(6), made applicable to this adversary proceeding by
2:00 PM
Federal Rules of Bankruptcy Procedure 7012, provides that a party may move to dismiss a claim for relief for "failure to state a claim upon which relief can be granted[.]" In Atlantic Corp. v. Twombly, 550 U.S. 544, 561 (2007), the Supreme Court established stringent notice-pleading standards for motions to dismiss under FRCP 12(b)(6). A plaintiff is required to provide more than "labels and conclusions, and a formulaic recitation of the elements of a cause of action ...." Id. at 555. The plaintiff must provide "enough facts to state a claim to relief that is plausible on its face" to nudge "their claims across the line from conceivable to plausible[.]" Id. at 570.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The plausibility standard is not akin to a ‘probability requirement,’ but it asks more than a sheer possibility that a defendant has acted unlawfully." Id. "Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and probability of entitlement to relief." Id. While legal conclusions can provide the framework of a complaint, "they must be supported by factual allegations." Id. at 679. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. (internal citations omitted).
The court must construe the complaint in the light most favorable to the plaintiff, accept all well-pleaded factual allegations as true, and "all reasonable inferences drawn from them". Johnson v. Riverside Healthcare Sys., LP., 534 F.3d 1116, 1122 (9th Cir. 1990).
The court may consider: 1) the complaint and answer; 2) any documents attached or mentioned in the pleadings; 3) documents not attached but "integral" to the claims; and 4) matters subject to judicial notice. Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010); Lee v.
City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)("If the documents are not physically attached to the complaint, they may be considered if the documents' ‘authenticity ... is not contested’ and ‘the plaintiff's complaint
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necessarily relies’ on them.").
Plaintiff has failed to allege a plausible claim for relief under § 523
Even construing the Complaint liberally, as required for pro se litigants, and construing the Complaint in the light most favorable to Plaintiff, the Complaint, as currently written, fails to allege any plausible claims for relief.
See, In re Kashani, 190 B.R. 875, 883 (B.A.P. 9th Cir. 1995)("The courts are to make reasonable allowances for pro se litigants and are to construe pro se papers and pleadings liberally.").
Although the caption of the Complaint references §§ 523(a)(2) and 727(a)(4) as the basis for the nondischargeability of Defendant’s debt to her and the denial of Defendant’s discharge respectively, the Complaint itself does not set forth any claims for relief under either statute. See Compl., 1 (§§ 523(a)(2) and 727(a)(4) are cited only in the Complaint title caption and footer). That alone is basis for granting the Motion because the Complaint fails to satisfy the pleading notice requirements of FRCP 8. "The purpose of notice pleading is to ‘give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.’ " In re Bey, 2014 WL 4071042, at *3 (Bankr. C.D. Cal. Aug. 14, 2014). The Complaint alleges certain factual allegations but does not tie the allegations to either §523(a)(2) or 727(a)(4)
To the extent the Complaint is alleging a claim for relief for fraud under
§ 523(a)(2)(A), the Complaint falls short of the higher pleading standards of FRCP 9. Where fraud is alleged, "under FRCP 9(b), applicable via Rule 7009, fraud must be pleaded with particularity." In re Jacks, 266 B.R. 728, 734 (BAP 9th Cir. 2001). Allegations of fraud must comply with FRCP (9)(b). "To comply with Rule 9(b), allegations of fraud must be specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong." Bly-Magee v. Cal., 236 F.3d 1014, 1019 (9th Cir. 2001).
Under § 523(a)(2)(A), a debt is nondischargeable if the debt is for "for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained, by…(A) false pretenses, a false representation, or
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actual fraud, other than a statement respecting the debtor's or an insider's financial condition[.]" For a debt to be non-dischargeable pursuant to § 532(a)(2)(A), the following five elements must be proven by a preponderance of the evidence: (1) the debtor made the representations; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the creditor; (4) that the creditor justifiably relied on such representations; and (5) that the creditor sustained the alleged loss and damage as the proximate result of the representations having been made. In re Kirsh, 973 F.2d. 1454, 1457 (9th Cir. 1992).
In this case, even viewing the Complaint in the light most favorable to Plaintiff, the Complaint fails to allege any specific false statement(s) (or when such false statement(s) was/were made to Plaintiff), that Defendant knew the statement(s) to be false when made; that Defended intended to deceive Plaintiff, that Plaintiff’s reliance on Defendant’s alleged false statement(s) was justifiable, and that she relied on such false statement(s) to her financial detriment. At best, the Complaint alleges that Defendant borrowed $50,000 from Plaintiff during the course of their personal relationship which Debtor did not repay. And while Plaintiff alleges additional facts in her Opposition to the Motion, the court will only consider the "four corners" of the Complaint as required within the context of FRCP 12(b)(6).
Plaintiff has failed to allege a plausible claim for relief under § 727
As previously noted, the Complaint’s title caption and footer also refers to § 727(a)(4). Bankruptcy Code Section 727(a)(4) denies a discharge to the debtor where "the debtor knowingly and fraudulently, in or connection with the [bankruptcy] case, made a false oath or account." "A false statement or an omission in the debtor's bankruptcy schedules or statement of financial affairs can constitute a false oath." In re Retz, 606 F.3d 1189, 1196 (9th Cir. 2010) (citations omitted). "To prevail, a plaintiff must show that ‘(1) the debtor made a false oath in connection with the case; (2) the oath related to a material fact;
the oath was made knowingly; and (4) the oath was made fraudulently.’ " Id. at 1197 (citations omitted). Additionally, the statement must be material fact. In re Aubrey, 111 B.R. 268, 274 (9th Cir. BAP 1990). "A false statement is material if it bears a relationship to the debtor's business transactions or estate, or concerns the discovery of assets, business dealings, or the
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existence and disposition of the debtor's property." In re Wills, 243 B.R. 58, 62 (B.A.P. 9th Cir. 1999). The plaintiff must also "show that the debtor knowingly and fraudulent made a false oath." Id. at 64. The fraudulent intent must be actual, not constructive, and can be established by circumstantial evidence. Id.
In this matter, the Complaint does not allege any false statement or false oath or that he engaged in any misconduct in connection with the bankruptcy case itself. The alleged misconduct of taking advantage of Plaintiff’s "kindness and willingness to fraudulently borrow" $50,000 from Plaintiff was not committed "in or in connection with the case" because it occurred well before the bankruptcy case was filed in 2020. Accordingly, even viewing the Complaint in the light most favorable to Plaintiff, Plaintiff has failed to allege a plausible claim for relief under § 727(a)(4).
Leave to amend the Complaint is partially granted
Leave to amend a complaint or claim is generally within the discretion of the bankruptcy court and is reviewed under the abuse of discretion standard. Mende v. Dun & Bradstreet, Inc., 670 F.2d 129 (9th Cir. 1982).
FRCP 15(a) (made applicable to this proceeding by FRBP 7015) provides that a party may amend the party’s pleading by leave of court and leave shall be freely given when justice so requires. The Ninth Circuit applies this rule with "extreme liberality." Forsyth v. Humana, Inc., 114 F.3d 1467, 1482 (9th Cir. 1997). In exercising its discretion, a bankruptcy court "must be guided by the underlying purpose of Rule 15 to facilitate decision on the merits, rather than on the pleadings or technicalities." In re Magno, 216 B.R. 34 (9th Cir.
BAP 1997). A bankruptcy court considers the following factors in determining whether a motion to amend should be granted: (1) undue delay; (2) bad faith;
futility of amendment; and (4) prejudice to the opposing party. Hurn v. Retirement Fund Trust of Plumbing, Etc., 648 F.2d 1252, 1254 (9th Cir. 1981). While recognizing the principles that leave to amend should be freely granted and the preference for decisions on the merits, if the court finds that a complaint has failed to state a claim, dismissal may be without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). A court may also dismiss a complaint without leave to amend when amendment would be futile. McQuillion v. Schwarzenegger, 369 F.3d 1091, 1099 (9th Cir.
2:00 PM
2004).
Here, although Plaintiff has not requested leave to amend, in light of the Ninth Circuit’s policy of granting leave to amend with "extreme liberality," the court will grant Plaintiff the opportunity to amend the Complaint as to a claim under 523(a)(2) in order to satisfy the pleading requirements for fraud. The court strongly encourages Plaintiff to seek legal counsel in assisting her with the filing of an amended complaint. Leave to amend will not be granted for the § 727 claim for relief, however, because the loans were issued in the 2013 and the personal relationship ended in 2019. As such, Defendant’s alleged conduct did not occur "in or in connection with" Defendant’s bankruptcy case which was filed in 2020.
Debtor(s):
Louis Sandoval Represented By Steven B Lever
Defendant(s):
Louis Sandoval Represented By Steven B Lever
Plaintiff(s):
Charlotte Cysner Myers Pro Se
Trustee(s):
Weneta M.A. Kosmala (TR) Pro Se
2:00 PM
Adv#: 8:20-01110 Myers v. Sandoval
Docket 19
NONE LISTED -
April 15, 2021
Continue this hearing to May 11, 2021 at 2:00 p.m., same date and time as the hearing on Defendant's motion to dismiss the adversary so that all matters can be heard in the same hearing. (XX)
Note: No appearances for the April 15, 2021 hearing are required.
May 11, 2021
Deny the Motion for Default Judgment Basis for the Tentative Ruling
A defendant's default in failing to respond to a complaint, does not automatically entitle the plaintiff to entry of a default judgment; rather, the bankruptcy court has broad discretion to conduct such hearings and receive such evidence as it deemed proper prior to entering default judgment. See In re Trevisan, 300 BR 708 (Bankr. E.D. Wis. 2003) ("In nondischargeability proceedings, bankruptcy courts should exercise their discretion to require creditors to prove a prima facie case, and not just rely
2:00 PM
on debtor's default in failing to answer creditor's complaint in order to prevent creditor from obtaining default judgment, regardless of the merits of its complaint").
Under FRBP 7055(b), the court may require a plaintiff to demonstrate a prima facie case by competent evidence in a prove-up trial to obtain a default judgment. See In re Liu, 282 B.R. 904 (Bankr. C.D. Cal. 2002); In re Villegas, 132 B.R. 742, 746 (9th Cir. BAP 1991); TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987). In such a hearing, the plaintiff must demonstrate each of the elements of a cause of action to support a prima facie case. See In re Bui, 188 B.R. 274, 276 (Bankr. N.D. Cal. 1995). The court has wide discretion under FRBP 7055 to consider whether the evidence presented supports a claim and warrants judgment for the plaintiff. See In re Beltran, 182 B.R. 820, 823-24 (9th Cir. BAP 1995).
Under FRBP 7055(b), the court may require a plaintiff to demonstrate a prima facie case by competent evidence in a prove-up trial to obtain a default judgment. See In re Liu, 282 B.R. 904 (Bankr. C.D. Cal. 2002); In re Villegas, 132 B.R. 742, 746 (9th Cir. BAP 1991); TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987). In such a hearing, the plaintiff must demonstrate each of the elements of a cause of action to support a prima facie case. See In re Bui, 188 B.R. 274, 276 (Bankr. N.D. Cal. 1995). The court has wide discretion under FRBP 7055 to consider whether the evidence presented supports a claim and warrants judgment for the plaintiff. See In re Beltran, 182 B.R. 820, 823-24 (9th Cir. BAP 1995).
Here, Plaintiff filed a form motion for default judgment with no evidence in support of the Motion. There are no declarations attached to the Motion. The Complaint is also bare bones and includes no specific allegations under either §523(a)(2) or §727(a)(4) (other than in the caption and footer of the Complaint. The Motion does not include any evidence in support of the allegations, such as a sworn statement (declaration), copies of checks, etc. While Plaintiff might have a meritorious case against Defendant, she has not demonstrated a prima facie case for nondischargeability under §523(a)(2) or objection to discharge under §
2:00 PM
727(a)(4).
Moreover, since the filing of the Motion, Defendant has filed a motion to dismiss the Complaint that is set for hearing on May 11 at 2:00 pm. While this is no excuse for Defendant’s failure to participate in the case up to this point (assuming he was properly served with the Complaint and Another Summons), he is now showing an interest in defending the action. Since there is a strong preference to litigate cases on the merits in the Ninth Circuit, default is not appropriate.
Debtor(s):
Louis Sandoval Represented By Steven B Lever
Defendant(s):
Louis Sandoval Pro Se
Plaintiff(s):
Charlotte Cysner Myers Pro Se
Trustee(s):
Weneta M.A. Kosmala (TR) Pro Se
2:00 PM
Adv#: 8:20-01110 Myers v. Sandoval
(Another Summons Issued 10/30/2020) FR: 1-14-21; 4-15-21
Docket 1
NONE LISTED -
January 14, 2021
No answer or other response to the Complaint has been filed by the defendant, Louis Sandoval. Accordingly, this Status Conference will be continued to April 15, 2021 at 9:30 a.m. to allow Plaintiff to file a motion for entry of a default judgment against the defendant which provides evidence to support the required elements of fraud under Bankruptcy Code Section 523(a)(2)(A). (XX)
Special Note:
A motion for default judgment may self-calendared for the same date/time as the continued Status Conference date. Alternatively, the motion may be filed without a hearing pursuant to the procedure set forth in Local Bankruptcy Rule 9013-1(o).
The motion for default judgment, supported by evidence, must be served on defendant and defendant's counsel in accordance with Local Rule 9013-1(d). If the motion for default judgment is not heard by the continued date of the Status Conference, THE ADVERSARY MAY BE DISMISSED at the Status
2:00 PM
Conference for failure to prosecute.
The court strongly suggests that Plaintiff seek legal counsel regarding the preparation of a motion for default judgment.
Note: If Plaintiff accepts the foregoing tentative ruling, appearance at today's hearing is not required; Plaintiff to serve the defendant by mail with notice of the continued hearing date/time.
April 15, 2021
Continue this hearing to May 11, 2021 at 2:00 p.m., same date and time as the hearing on Defendant's motion to dismiss the adversary so that all matters can be heard in the same hearing. (XX)
Note: No appearances for the April 15, 2021 hearing are required.
May 6, 2021
Continue the Status Conference to August 19, 2021. A Joint Status Report must be filed by August 5, 2021
Debtor(s):
Louis Sandoval Represented By Steven B Lever
Defendant(s):
Louis Sandoval Pro Se
Plaintiff(s):
Charlotte Cysner Myers Pro Se
2:00 PM
Trustee(s):
Weneta M Kosmala (TR) Pro Se
9:30 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
9:30 AM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
NONE LISTED -
9:30 AM
Adv#: 8:17-01071 Bral v. Beitler
FR: 9-20-18; 3-21-19; 8-15-19; 1-30-20; 5-21-20; 9-17-20; 1-20-21
Docket 27
NONE LISTED -
September 20, 2018
Continue status conference to March 21, 2019 at 9:30 a.m.; updated status report to be filed by March 7, 2019 (XX)
March 21, 2019
Continue status conference to August 15, 2019 at 9:30 a.m.; updated joint status report to be filed by August 1, 2019. (XX)
Note: If all parties accept the foregoing tentative ruling, appearances at the March 21, 2019 hearing are not required.
August 15, 2019
Continue status conference to January 30, 2020 at 9:30 a.m.; updated status
9:30 AM
report must be filed by January 16, 2020. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued date/time.
January 30, 2020
Continue status conference to May 21, 2020 at 9:30 a.m.; updated joint status report must be filed by May 7, 2020. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued date/time.
May 21, 2020
Continue hearing to September 17, 2020 at 9:30 a.m. (XX)
Note: Appearance at this hearing is not required; non appearance at today's hearing shall be deemed acceptance of the tentative ruling.
September 17, 2020
Continue Status Conference to January 21, 2021; updated joint status report must be filed by January 7, 2021. (XX)
Special note: Starting 10/8/20 all hearings before Judge Smith will be by Zoom. See Court's website for details.
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
January 21, 2021
Continue the Status Conference to May 20, 2021 at 9:30 a.m.; updated
9:30 AM
Status Report must be filed by May 6, 2021. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
May 20, 2021
Continue Status Conference to September 30, 2021 at 9:30 a.m.; updated Status Report must be filed by September 16, 2021.
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
Debtor(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel Babak Samini Dean A Ziehl
Defendant(s):
Barry Beitler Represented By
Krikor J Meshefejian
Plaintiff(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel
9:30 AM
Adv#: 8:17-01071 Bral v. Beitler
FR: 9-20-18; 3-21-19; 8-15-19; 1-30-20; 5-21-20; 9-17-20; 1-21-21
Docket 20
NONE LISTED -
September 20, 2018
Continue status conference to March 21, 2019 at 9:30 a.m.; updated status report to be filed by March 7, 2019 (XX)
March 21, 2019
Continuue status conference to August 15, 2019 at 9:30 a.m.; updated joint status report to be filed by August 1, 2019. (XX)
Note: If all parties accept the foregoing tentative ruling, appearances at the March 21, 2019 hearing are not required.
August 15, 2019
Continue status conference to January 30, 2020 at 9:30 a.m.; updated status report must be filed by January 16, 2020. (XX)
9:30 AM
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued date/time.
January 30, 2020
Continue status conference to May 21, 2020 at 9:30 a.m.; updated joint status report must be filed by May 7, 2020. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued date/time.
May 21, 2020
Continue hearing to September 17, 2020 at 9:30 a.m.; updated joint status report must be filed by September 3, 2020. (XX)
Note: Appearance at this hearing is not required; non appearance at today's hearing shall be deemed acceptance of the tentative ruling. Plaintiff to serve notice of the continued hearing date/time.
September 17, 2020
Continue Status Conference to January 21, 2021 at 9:30 am; updated joint status report must be filed by January 7, 2021. (XX)
Special note: Starting 10/8/20 all hearings before Judge Smith will be by Zoom. See Court's website for details.
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
January 21, 2021
9:30 AM
Continue the Status Conference to May 20, 2021 at 9:30 a.m.; updated Status Report must be filed by May 6, 2021. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
May 20, 2021
Continue Status Conference to September 30, 2021 at 9:30 a.m.; updated Status Report must be filed by September 16, 2021.
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
Debtor(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel Babak Samini Dean A Ziehl
9:30 AM
Defendant(s):
Barry Beitler Represented By
Krikor J Meshefejian
Plaintiff(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel
9:30 AM
Adv#: 8:17-01092 Beitler v. Bral
FR: 9-20-18; 3-21-19; 8-15-19; 1-30-20; 5-21-20; 9-17-20; 1-21-21
Docket 35
NONE LISTED -
September 20, 2018
Continue status conference to March 21, 2019 at 9:30 a.m.; updated status report to be filed by March 7, 2019 (XX)
March 21, 2019
Continuue status conference to August 15, 2019 at 9:30 a.m.; updated joint status report to be filed by August 1, 2019. (XX)
Note: If all parties accept the foregoing tentative ruling, appearances at the March 21, 2019 hearing are not required.
August 15, 2019
Continue status conference to January 30, 2020 at 9:30 a.m.; updated status report must be filed by January 16, 2020. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued date/time.
9:30 AM
January 30, 2020
Continue status conference to May 21, 2020 at 9:30 a.m.; updated joint status report must be filed by May 7, 2020. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued date/time.
May 21, 2020
Continue hearing to September 17, 2020 at 9:30 a.m.; updated joint status report must be filed by September 3, 2020. (XX)
Note: Appearance at this hearing is not required; non appearance at today's hearing shall be deemed acceptance of the tentative ruling. Plaintiff to serve notice of the continued hearing date/time.
September 17, 2020
Continue Status Conference to January 21, 2021 at 9:30 am; updated joint status report must be filed by January 7, 2021.(XX)
Special note: Starting 10/8/20 all hearings before Judge Smith will be by Zoom. See Court's website for details.
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
January 21, 2021
Continue the Status Conference to May 20, 2021 at 9:30 a.m.; updated Status Report must be filed by May 6, 2021. (XX)
9:30 AM
Special Note: Re the comments of the parties in Section G of the Status Report, it is not clear what relief from the Court is sought. The court will entertain any properly filed motion.
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
May 20, 2021
Continue Status Conference to September 30, 2021 at 9:30 a.m.; updated Status Report must be filed by September 16, 2021.
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
Debtor(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel Babak Samini
9:30 AM
Dean A Ziehl
Defendant(s):
John Jean Bral Represented By William N Lobel Beth Gaschen Alan J Friedman
Plaintiff(s):
Barry Beitler Represented By
Krikor J Meshefejian Gary E Klausner
9:30 AM
Adv#: 8:17-01094 Beitler & Associates, Inc. dba Beitler Commercial v. Bral
FR: 9-20-18; 3-21-19; 8-15-19; 1-30-20; 5-21-20; 9-17-20; 1-21-21
Docket 35
NONE LISTED -
September 20, 2018
Continue status conference to March 21, 2019 at 9:30 a.m.; updated status report to be filed by March 7, 2019 (XX)
March 21, 2019
Continue status conference to August 15, 2019 at 9:30 a.m.; updated joint status report to be filed by August 1, 2019. (XX)
Note: If all parties accept the foregoing tentative ruling, appearances at the March 21, 2019 hearing are not required.
August 15, 2019
Continue status conference to January 30, 2020 at 9:30 a.m.; updated status report must be filed by January 16, 2020. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued date/time.
9:30 AM
January 30, 2020
Continue status conference to May 21, 2020 at 9:30 a.m.; updated joint status report must be filed by May 7, 2020. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued date/time.
May 21, 2020
Continue hearing to September 17, 2020 at 9:30 a.m.; updated joint status report must be filed by September 3, 2020. (XX)
Note: Appearance at this hearing is not required; non appearance at today's hearing shall be deemed acceptance of the tentative ruling. Plaintiff to serve notice of the continued hearing date/time.
September 17, 2020
Continue Status Conference to January 21, 2021 at 9:30 am; updated joint status report must be filed by January 7, 2021. (XX)
Special note: Starting 10/8/20 all hearings before Judge Smith will be by Zoom. See Court's website for details.
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
January 21, 2021
Continue the Status Conference to May 20, 2021 at 9:30 a.m.; updated Status Report must be filed by May 6, 2021. (XX)
9:30 AM
Special Note: Re the comments of the parties in Section G of the Status Report, it is not clear what relief from the Court is sought. The court will entertain any properly filed motion.
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
May 20, 2021
Continue Status Conference to September 30, 2021 at 9:30 a.m.; updated Status Report must be filed by September 16, 2021.
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
Debtor(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel Babak Samini Dean A Ziehl
9:30 AM
Defendant(s):
John Jean Bral Represented By William N Lobel Beth Gaschen Alan J Friedman
Plaintiff(s):
Beitler & Associates, Inc. dba Beitler Represented By
Krikor J Meshefejian Gary E Klausner
9:30 AM
Adv#: 8:19-01213 Marshack v. An et al
4. Recovery of Avoided Transfers
FR: 1-30-20; 3-19-20; 5-21-20; 7-23-20; 10-22-20; 1-21-21; 4-8-21
Docket 1
SPECIAL NOTE: Notice of Voluntary Dismissal of Only Defendant Byungwhan Chung, an individual, filed 3/25/2021 - td (3/26/2021)
CONTINUED: Status Conference Continued to 8/19/2021 at 9:30 a.m., Per Order Entered 5/17/2021 (XX) - td (5/17/2021)
January 30, 2020
Joint status report not timely filed.* Parties must appear and advise the court re the status of this matter.
* The Stipulation and Order [docket #s 5 & 6] only extended the answer date -- did not include an extension of the deadline to file a status report.
Note: Appearances at the hearing are required.
May 21, 2020
Continue the status conference to July 23, 2020 at 9:30 a.m.; updated status report must be filed by July 16, 2020 if the adversary is still pending by such
9:30 AM
date.
Note: Appearances at this hearing are not required.
January 21, 2021
Continue status conference to April 8, 2021 at 9:30 a.m.; updated status report must be filed by March 25, 2021 if the adversary is still pending by such date. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
April 8, 2021
Continue status conference one final time to May 20, 2021 at 9:30 a.m.; updated status report must be filed by May 6, 2021.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiff shall serve notice of the continued hearing date/time.
Debtor(s):
Prime Metals U.S.A., Inc. Represented By Steven Werth
Defendant(s):
Minho An Represented By
Michael H Yi
Byungwhan Chung Pro Se
9:30 AM
Plaintiff(s):
Richard A Marshack Represented By Ronald S Hodges Robert P Goe Ryan S Riddles
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Laila Masud David M Goodrich Robert P Goe
9:30 AM
Adv#: 8:19-01218 Marshack v. Kim et al
FR: 2-6-20; 10-8-20; 1-21-21; 4-22-21
Docket 1
SPECIAL NOTE: Notice of Voluntary Dismissal of Only Defendant Ik
Dong Kim, aka Kim Zk Dong, an individual, with Prejudice, filed 2/3/2021 - td (2/3/2021); Notice of Voluntary Dismissal of Only Defendant Gill Su Sun, an individual, with Prejudice, filed 3/25/2021 - td (3/26/2021)
CONTINUED: Pretrial Conference Continued to 8/19/2021 at 9:30 a.m., Per Order Entered 5/17/2021 (XX) - td (5/17/2021)
February 6, 2020
Discovery Cut-off Date: June 1, 2020
Deadline to Attend Mediation: June 15, 2020
Pretrial Conference Date: July 16, 2020 at 9:30 a.m. (XX)
Deadline to Lodge Joint Pretrial Stipulation: July 6, 2020
Special Note: The joint status report filed 1/28/20 provides very little information regarding the status of the case, why there is no discovery schedule, and why Plaintiff is waiting for non-answering defendants to participate. Per the docket, only one defendant, Minho An, was granted an extension of time to January 7, 2020 to file an answer. An's answer was timely filed.
9:30 AM
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
Debtor(s):
Prime Metals U.S.A., Inc. Represented By Steven Werth
Defendant(s):
Ik Dong Kim Pro Se
Gill Su Sun Pro Se
Minho An Pro Se
Plaintiff(s):
Richard A Marshack Represented By Ronald S Hodges Robert P Goe Ryan S Riddles
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Laila Masud David M Goodrich Robert P Goe
9:30 AM
Adv#: 8:18-01206 Sakhai v. Masoudfar
[fr: 2/12/19, 7/23/19, 10/22/19, 1/21/20, 3/24/20, 6/30/20]; 9/29/20, Rm 5D; 10-1-20; 1-21-21
Docket 1
NONE LISTED -
October 1, 2020
In light of pending settlement negotiations, continue this Status Conference to January 21, 2021 at 9:30 a.m.; an updated Status Report must be filed by January 7, 2021. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
January 21, 2021
Continue the Status Conference one final time to May 20, 2021 at 9:30 a.m.; updated Status Report must be filed by May 6, 2021. (XX)
Special Note: An updated Status Report was not filed by January 7, 2021 as ordered by the Court. If an updated Status Reportis not filed by May 6, 2021, monetary sanctions of not less than $100 will be imposed against Plaintiff's counsel.
Note: Appearances at this hearing are not required; Plaintiff to serve
9:30 AM
notice of the continued hearing date/time.
May 20, 2021
Continue Status Conference to July 1, 2021 at 9:30 a.m. Court to issue an Order To Show Cause why this adversary should not be dismissed for lack of prosecution to be heard on July 1, 2021 at 9:30 a.m. Sanctions in the amount of $100.00 shall be imposed on Plaintiff's counsel for failing to timely file a Status Report by May 6, 2021, payable to the Clerk of the Court by June 21, 2021.
Basis for Tentative Ruling:
The court ruled re the January 21, 2021 Status Conference that sanctions would be imposed if a Status Report was not filed for this hearing by May 6, 2021.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing not required and Plaintiff shall serve notice of the continued hearing date/time.
Debtor(s):
Mohsen Masoudfar Represented By
D Edward Hays
Defendant(s):
Mohsen Masoudfar Pro Se
Plaintiff(s):
Parastou Sakhai Represented By Jeffrey S Shinbrot
9:30 AM
Trustee(s):
Weneta M Kosmala (TR) Represented By Reem J Bello
9:30 AM
Adv#: 8:20-01122 Kosmala v. Chandar et al
FR: 11-5-20; 2-18-21
Docket 1
CONTINUED: Status Conference Continued to 7/22/2021 at 9:30 a.m., Per
Order Entered 5/19/2021 (XX) - td (5/19/2021)
February 18, 2021
In light of pending mediation, continue this status conference to May 20, 2021 at 9:30 a.m.; updated joint status report must be filed by May 6, 2021. (XX)
Note: Appearances at this status conference are not required; Plaintiff shall serve notice of the continued status conference.
Debtor(s):
Sean Pate Represented By
Anerio V Altman
Defendant(s):
Deepak Chandar Pro Se
Reena A. Shah Pro Se
Spherebase, LLC Pro Se
9:30 AM
Spherebase, LLC Pro Se
Plaintiff(s):
Weneta M.A. Kosmala Represented By Erin P Moriarty
Trustee(s):
Weneta M Kosmala (TR) Represented By Erin P Moriarty
9:30 AM
Adv#: 8:19-01155 Kang Family 2007 Revocable Trust v. Kim et al
[Trial is Currently Set for 5/26/21 at 9:30 am and 5/27/21 at 9:30 am]
Docket 1
OFF CALENDAR: Order Approving Stipulation for Entry of Judgment and Stipulated Judgment Entered 5/14/2021 - td (5/14/2021)
May 6, 2021
Off-Calendar. This matter has settled.
Note: Appearances at this Status Conference are not required.
Debtor(s):
Peter Woo Sik Kim Represented By David Brian Lally
Defendant(s):
Peter Kim Represented By
David Brian Lally
Sharon Kim Represented By
David Brian Lally
9:30 AM
Joint Debtor(s):
Sharon Soyun Kim Represented By David Brian Lally
Plaintiff(s):
Kang Family 2007 Revocable Trust Represented By
Edmond Richard McGuire
Trustee(s):
Weneta M.A. Kosmala (TR) Represented By Lynda T Bui Rika Kido
9:30 AM
Adv#: 8:19-01163 O'Gara Coach Company, LLC v. Ra
FR: 11-7-19; 5-21-20; 10-22-20; 11-19-20
Docket 1
OFF CALENDAR: Plaintiff's Notice of Voluntary Dismissal of Adversary Proceeding filed 5/11/21- mp(5/17/21)
November 7, 2019
Discovery Cut-off Date: Mar. 13, 2020 Deadline to File Summary Judgment Motion: Mar. 31, 2020
Pretrial Conference Date: May 21, 2020 at 9:30 a.m. (XX)
Deadline to File Joint Pretrial Stipulation: May 7, 2020
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
November 19, 2020
In light of the chapter 7 trustee's pending 727 denial of discharge action, continue this Status Conference to May 20, 2021 at 9:30 a.m.; an updated Status Report must be filed by May 6, 2021. (XX)
9:30 AM
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
Debtor(s):
Joseph Ra Represented By
David B Golubchik Jaenam J Coe
Defendant(s):
Joseph Ra Represented By
Jaenam J Coe
Plaintiff(s):
O'Gara Coach Company, LLC Represented By Thomas J Polis
Trustee(s):
Richard A Marshack (TR) Represented By Michael G Spector Thomas J Polis
9:30 AM
Adv#: 8:19-01164 Laplant v. Ra
FR: 11-7-19; 7-23-20; 9-17-20; 12-17-20
Docket 1
NONE LISTED -
November 7, 2019
Discovery Cut-off Date: May 1, 2020 Deadline to Attend Mandatory Mediation: June 15, 2020
Pretrial Conference Date: July 23, 2020 at 9:30 a.m. (XX)
Deadline to File Joint Pretrial Stipulation: July 9, 2020
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
September 17, 2020
[This tentative ruling has been modified since its original posting]
Continue hearing to December 17, 2020 at 9:30 a.m.; Updated status report must be filed by December 3, 2020. (XX)
9:30 AM
Special Note: The Status Conference is being continued because the deadline for the chapter 7 trustee to file a 727 action has been extended to November 2, 2020. It is Plaintiff's responsibility to track the status of any further extensions and/or 727 filing and to report such status in a timely filed updated Status Report. Failure to do so by December 3, 2020 may result in the imposition of sanctions against Plaintiff's counsel in an amount of not less than $100.00.
Additional note: Starting 10/8/20 all hearings before Judge Smith will be by Zoom. See Court's website for details.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiff shall serve notice of the continued hearing date/time.
December 17, 2020
In light of the pending 727 adversary proceeding filed by the Chapter 7 Trustee, continue this Status Conference to May 20, 2021 at 9:30 a.m.; updated Status Report must be filed by May 6, 2021 (XX)
Note: If Plaintiff accepts the foregoing tentative ruling, appearance at this hearing is not required; Plaintiff shall serve notice of the continued hearing date/time.
May 20, 2021
Plaintiff to appear and advise the court if he intends to proceed with his declaratory relief claim for relief.
Special Note: On March 8, 2021, this court entered its order granting the chapter 7 trustee's motion for default judgment re denial of discharge under 727, mooting Plaintiff's 523 nondischargeability claims for relief. However, the declaratory claim for relief remains.
Note: Appearance at this Status Conference is required.
9:30 AM
Debtor(s):
Joseph Ra Represented By
David B Golubchik
Defendant(s):
Joseph Ra Pro Se
Plaintiff(s):
Joseph Laplant Represented By Bret D Lewis
Trustee(s):
Richard A Marshack (TR) Represented By Michael G Spector
9:30 AM
Adv#: 8:19-01162 Becharoff Capital Corporation v. Rietveld
FR: 11-7-19; 5-21-20; 8-20-20; 10-1-20; 12-17-20; 4-1-21
Docket 1
SPECIAL NOTE: Notice that the CAse has been Settled, filed 5/19/2021 - td (5/20/2021)
November 7, 2019
Discovery Cut-off Date: April 1, 2020
Pretrial Conference Date: May 21, 2020 at 9:30 a.m. (XX)
Deadline to File Joint Pretrial Stipulation: May 7, 2020
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
August 20, 2020
If more time is needed for settlement discussions, continue the pretrial conference to October 1, 2020 at 9:30 a.m. Plaintiff must file either a joint pretrial stipulation (if no settlement) or a status report (settlement reached or pending) by no later than September 22, 2020 or monetary sanctions may be imposed. (XX)
9:30 AM
Note: If all parties accept the foregoing tentative ruling, appearances at today's hearing are not required and Plaintiff shall serve notice of the continued hearing date/time.
October 1, 2020
Continue this Pretrial Conference to December 17, 2020 at 9:30 a.m. as a Status Conference; an updated Status Report must be filed by December 3, 2020. (XX)
Special Note: A Status Report was not timely filed by September 17, 2020 as previously ordered by the Court [docket #14]. If this adversary proceeding remains pending as of December 3, 2020 and no Status Report is filed by such date, sanctions in an amount of not less than $200 will be imposed on Plaintiff's counsel for failure to do so.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time on Defendant.
December 17, 2020
Set Pretrial Conference for April 1, 2021 at 9:30 a.m.; Joint Pretrial Stipulation must be filed by March 18, 2021. (XX)
Special note: As the first Status Conference was held more than one year ago, the court will not simply continue the Status Conference any further. Either the matter will settle or proceed to trial.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiff shall lodge an order consistent with the same.
May 20, 2021
9:30 AM
Impose sanctions against Plaintiff's counsel in the amount of $100 for failure to timely file either a Joint Pretrial Stipulation or Status Report by May 6, 2021 (See Order at docket #29).
Note: Appearance at this hearing is required.
Debtor(s):
Richard Allen Rietveld Represented By Alon Darvish
Defendant(s):
Richard Allen Rietveld Pro Se
Plaintiff(s):
Becharoff Capital Corporation Represented By Fritz J Firman
Trustee(s):
Richard A Marshack (TR) Pro Se
9:30 AM
Adv#: 8:20-01175 Casey v. Banuelos, III
FR: 3-11-21
Docket 1
OFF CALENDAR: Order Approving Chapter 7 Trustee's Request for Voluntary Dismissal of Complaint Against Defendant and Request to Take Status Conference Off Calendar ENTERED 5/19/21. --eas/td (5/19/2021 )
March 11, 2021
Continue Status Conference to May 20, 2021 at 9:30 a.m.; updated Status Report must be filed by May 6, 2021. (XX)
Note: Appearance at this hearing is not required; Plaintiff to serve notice of the continued hearing date/time.
Debtor(s):
Mark Jeffrey Berry Represented By Francis Guilardi
Defendant(s):
Benjamin Banuelos, III Pro Se
9:30 AM
Plaintiff(s):
Thomas H. Casey Pro Se
Trustee(s):
Thomas H Casey (TR) Pro Se
9:30 AM
Adv#: 8:19-01205 Elieff et al v. Kurtin
FR: 3-5-20; 4-9-20; 4-23-20; 8-20-20; 11-19-20; 12-17-20; 1-21-21; 2-18-21
Docket 11
NONE LISTED -
April 23, 2020
Continue Status Conference to August 20, 2020 at 9:30 a.m.; joint status report due August 6, 2020. (XX)
August 20, 2020
Continue Status Conference to November 19, 2020 at 9:30 a.m.; updated Joint Status Report to be filed by November 5, 2020. (XX)
Note: If all parties accept the foregoing tentative ruling, appearances at today's hearing is not required. Plaintiffs to serve notice of the continued hearing date/time.
November 19, 2020
Continue the hearing to December 17, 2020 at 9:30 a.m.; the court's order re the SJ Motion will be issued in the near future. (XX)
9:30 AM
Note: Appearances at this hearing are not required.
December 17, 2020
Continue Status Conference one final time to January 21, 2021 at 9:30 a.m. (XX)
Note: Appearances at this hearing are not required.
January 21, 2021
Continue the hearing to February 18, 2021 at 9:30 a.m.; the court's order re SJ will be issued on January 25, 2021. (XX)
Note: Appearances at this hearing are not required.
February 18, 2021
Continue status conference to May 20, 2021 at 9:30 a.m.; updated joint status report must be filed by May 6, 2021. (XX)
Note: Appearances at this hearing are not required; Plaintiff serve notice of the continued hearing date/time.
May 20, 2021
Continue the Status Conference to November 18, 2021 at 9:30 a.m.; updated Joint Status Report must be filed by November 4, 2021.
Special note: The court will not sua sponte dismiss the remaining claims. If either party is dissatisfied with the tentative ruling, he can file a properly
9:30 AM
noticed motion for relief.
Note: If both parties accept the tentative ruling, appearances at this hearing are not required and Plaintiff shall service of the continued hearing date/time.
Debtor(s):
Bruce Elieff Represented By
Paul J Couchot Lisa Nelson
Defendant(s):
Todd Kurtin Represented By
Lewis R Landau Edward O Morales
Plaintiff(s):
Bruce Elieff Represented By
Paul J Couchot
Morse Properties, LLC Represented By Paul J Couchot
4627 Camden, LLC Represented By Paul J Couchot
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe
9:30 AM
Adv#: 8:20-01046 Ehrenberg (TR) v. Benice et al
Docket 1
NONE LISTED -
July 16, 2020
Continue status conference to September 17. 2020 at 9:30 a.m. in light of the appointment of a chapter 11 trustee in the main case. Updated joint status report must be filed by September 3, 2020. (XX)
Note: If both parties accept the foregoing tentative ruling, appearances at this hearing are not required; Plaintiff shall serve notice of the continued hearing date/time.
September 17, 2020
[This tentative ruling has been modified since its original posting]
Continue this matter to November 19, 2020 at 9:30 a.m.; updated statius report must be filed by November 5, 2020. (XX)
Special note: Starting 10/8/20 all hearings before Judge Smith will be by Zoom. See Court's website for details.
Note: Appearances at this hearing are not required.
9:30 AM
November 19, 2020
An updated Status Report was not filed as ordered at the September 17, 2020 hearing. Therefore, the parties must appear at the hearing and advise the court re the status of this matter.
February 18, 2021
Continue status conference to May 20, 2021 at 9:30 a.m.; updated joint status report must be filed by May 6, 2021. The Plaintiff's request to consolidate the Disgorgement Motion [docket no. 381] with this adversary proceeding is granted. Plaintiff to lodge an order consistent with the same.(XX)
Note: Appearances at this hearing are not required; Plaintiff serve notice of the continued hearing date/time.
May 20, 2021
Continue the Status Conference to August 19, 2021 at 9:30 a.m.; updated Joint Status Report must be filed by August 4, 2021.
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson
Defendant(s):
Jeffrey S. Benice Represented By Jeffrey S Benice
9:30 AM
Benice Law Represented By
Jeffrey S Benice
Plaintiff(s):
Howard M Ehrenberg (TR) Pro Se
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe
9:30 AM
Adv#: 8:20-01091 Payday Loan, LLC v. Clesceri
(Another Summons Issued 9/17/2020) FR: 12-3-20
Docket 1
December 3, 2020
Discovery Cut-off Date: Apr. 2, 2021 Deadline to Attend Mandatory Mediation: Mar. 1, 2021
Pretrial Conference Date: May 20, 2021 at 9:30 a.m. (XX)
Deadline to file Joint Pretrial Stipulation: May 6, 2021
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
May 20, 2021
Both parties must appear for today's Pretrial Conference and explain why they have not complied with deadlines ordered in this court's December 3, 2020 Scheduling Order, including the requirement that a Joint Pretrial Stipulation be filed by May 6, 2021.
Basis for Tentative Ruling
9:30 AM
This court issued a Scheduling Order on December 3, 2020 ordering as follows: 1) March 1, 2021 as the deadline for the parties to attend mandatory mediation, 2) April 2, 2021 as the deadline to complete discovery and 3) May 6, 2021 as the deadline for the filing of the joint pre-trial stipulation.
Apparently, neither party has complied with the court-ordered deadlines. For example, in the unilateral status report filed by Plaintiff on May 6, 2021, Plaintiff indicates that it won't complete discovery until "120 days from conclusion of Status Conference." Today's hearing is not a Status Conference -- it is a Pretrial Conference. No explanation is provided as to why Plaintiff did not complete discovery by April 1, 2021 or whether any discovery has been done since December 3, 2020 (over five months ago).
Defendant filed a separate unilateral Status Report on May 12, 2020 indicating that he has no money and that he has received his bankruptcy discharge. However, lack of money is not a defense to a dischargeability complant and the bankruptcy discharge order did not discharge Plaintiff's claim because Defendant did not list Defendant as a creditor. See Bankruptcy Code Section 523(c)(3)(A).
Note: Appearances at this hearing are required.
Debtor(s):
Gary Clesceri Represented By Michael G Spector
Defendant(s):
Gary Clesceri Represented By Michael G Spector
9:30 AM
Joint Debtor(s):
Charlene Clesceri Represented By Michael G Spector
Plaintiff(s):
Payday Loan, LLC Represented By Timothy J Silverman
Trustee(s):
Karen S Naylor (TR) Pro Se
9:30 AM
Adv#: 8:20-01008 Barrette v. United States of America, Treasury Department, Int
FR: 4-16-20; 6-11-20; 7-16-20; 9-17-20; 10-22-20; 12-10-20; 2-18-21
Docket 1
CONTINUED: Status Conference Continued to 7/22/2021 at 9:30 a.m., Per
Order Entered 5/19/2021 (XX) - td (5/19/2021)
February 18, 2021
Continue this status conference to May 20, 2021 at 9:30 a.m.; an updated joint status report must be filed by May 6, 2021. (XX)
Note: Appearances at this hearing are not required if all the parties accept the foregoing tentative ruling and Plaintiff shall serve notice of the continued hearing date/time.
May 20, 2021
Continue Status Conference to August 19, 2021 at 9:30 a.m.; updated Joint Status Report must be filed by August 5, 2021.
Note: Appearances at this hearing are not required if all the parties accept the foregoing tentative ruling and Plaintiff shall serve notice of the continued hearing date/time.
9:30 AM
Debtor(s):
Jason M. Barrette Represented By
James D. Hornbuckle
Defendant(s):
United States of America, Treasury Pro Se
Plaintiff(s):
Jason M. Barrette Represented By
James D. Hornbuckle
Trustee(s):
Richard A Marshack (TR) Pro Se
9:30 AM
Adv#: 8:20-01115 Ray Hodge & Associates, L.L.C. v. Howard
FR: 11-5-20
Docket 1
NONE LISTED -
[Special Notice: This hearing is being conducted by Zoomgov. See the first page of the calendar for today's hearings for participation details.]
November 5, 2020
Discovery Cut-off Date: Apr. 1, 2021
Deadline to Attend Mediation: Feb.15, 2021
Pretrial Conference Date: May 20, 2021 at 9:30 am (XX) Deadline to Lodge Joint Pretrial Stipulation: May 5, 2021
Special Note: The court commends the parties for timely filing a complete and thoughtful joint status report. Good job!
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
9:30 AM
Debtor(s):
Vincent Dwyne Howard Represented By Anerio V Altman
Defendant(s):
Vincent Dwyne Howard Pro Se
Plaintiff(s):
Ray Hodge & Associates, L.L.C. Represented By
James R Selth
Trustee(s):
Weneta M Kosmala (TR) Pro Se
10:00 AM
Adv#: 8:16-01024 Floorit Financial, Inc. v. Upadhyaya
FR: 4-9-20; 6-4-20; 9-10-20; 11-19-20; 1-14-21
Docket 20
CONTINUED: Hearing Continued to 8/5/2021 at 10:00 a.m., Per Order
Entered 5/19/2021 (XX) - td (5/19/2021)
June 4, 2020
Continue the examination to September 10, 2020 at 10:00 a.m. (XX) Basis for Tentative Ruling
The courthouse remains closed to in-person court appearances and on-site in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse, including by video conference, prior to September 10, 2020. Depending on the status of pandemic-related rules and policies in place on September 1, 2020, the September 10, 2020 hearing may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
September 10, 2020
10:00 AM
Continue the examination to November 19, 2020 at 10:00 a.m. (XX) Basis for Tentative Ruling
The courthouse is currently closed to in-person court appearances and on- site in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse, including by video conference, prior to November 19, 2020. Depending on the status of pandemic-related rules and policies in place on November 19, 2020, the examination may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
November 19, 2020
This tentative ruling applies to #s 15 and 16 on today's calendar:
The courthouse is currently closed to in-person court appearances and on- site in-person judgment debtor examinations. However, as this court now conducts hearings on the Zoom platform, the examination may be accommodated by placing the parties in a separate private Zoom "room" after the examinees are sworn in by the courtroom clerk. It will the responsibility of the Judgment Creditor to either have the court reporter call into the Zoom hearing at the commencement of the hearing or to make other arrangements for the participation of the court reporter. Alternatively, the Judgment Creditor is free to schedule an examination outside the courthouse, including by video conference, in which case this hearing will be continued to January 14, 2021 at 10:00 a.m.
The Judgment Creditor shall advise the courtroom clerk of its choice at the time of the calendar roll call.
10:00 AM
Debtor(s):
Darshan Upadhyaya Represented By Amid Bahadori
Defendant(s):
Darshan Upadhyaya Represented By Amid Bahadori
Plaintiff(s):
Floorit Financial, Inc. Represented By
Tom Roddy Normandin James T Jackson
Trustee(s):
Jeffrey I Golden (TR) Represented By Jeremy Faith Nina Z Javan
Meghann A Triplett
10:00 AM
Adv#: 8:16-01024 Floorit Financial, Inc. v. Upadhyaya
FR: 4-2-20; 6-4-20; 9-10-20; 11-19-20; 1-14-21
Docket 23
CONTINUED: Hearing Continued to 8/5/2021 at 10:00 a.m., Per Order
Entered 5/19/2021 (XX) - td (5/19/2021)
April 2, 2020
In order to comply with social distancing guidelines, continue the examination to June 4, 2020 at 10:00 a.m., except that the parties are free to stipulate to a remote videoconference examination at a mutually agreeable time prior to June 4, 2020.
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiff shall lodge an order consistent with the same.
June 4, 2020
Continue the examination to September 10, 2020 at 10:00 a.m. (XX) Basis for Tentative Ruling
The courthouse remains closed to in-person court appearances and on-site
10:00 AM
in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse in accordance with applicable rules, including by video conference, prior to September 10, 2020. Depending on the status of pandemic-related rules and policies in place on September 1, 2020, the September 10, 2020 hearing may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
September 10, 2020
Continue the examination to November 19, 2020 at 10:00 a.m. (XX) Basis for Tentative Ruling
The courthouse is currently closed to in-person court appearances and on- site in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse, including by video conference, prior to November 19, 2020. Depending on the status of pandemic-related rules and policies in place on November 19, 2020, the examination may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
November 19, 2020
This tentative ruling applies to #s 15 and 16 on today's calendar:
The courthouse is currently closed to in-person court appearances and on-
10:00 AM
site in-person judgment debtor examinations. However, as this court now conducts hearings on the Zoom platform, the examination may be accommodated by placing the parties in a separate private Zoom "room" after the examinees are sworn in by the courtroom clerk. It will the responsibility of the Judgment Creditor to either have the court reporter call into the Zoom hearing at the commencement of the hearing or to make other arrangements for the participation of the court reporter. Alternatively, the Judgment Creditor is free to schedule an examination outside the courthouse, including by video conference, in which case this hearing will be continued to January 14, 2021 at 10:00 a.m.
The Judgment Creditor shall advise the courtroom clerk of its choice at the time of the calendar roll call.
Debtor(s):
Darshan Upadhyaya Represented By Amid Bahadori
Defendant(s):
Darshan Upadhyaya Represented By Amid Bahadori
Plaintiff(s):
Floorit Financial, Inc. Represented By
Tom Roddy Normandin James T Jackson
Trustee(s):
Jeffrey I Golden (TR) Represented By Jeremy Faith Nina Z Javan
Meghann A Triplett
10:00 AM
CHARLES SULAHIAN VS.
DEBTOR
Docket 27
OFF CALENDAR: Order of Dismissal Arising from Chapter 13 Confirmation Hearing Entered 5/3/2021 - td (5/3/2021)
NONE LISTED -
Debtor(s):
Lael Gonzales Pro Se
Movant(s):
Charles Sulahian Represented By Stephen E Ensberg
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
VS.
DEBTOR
Docket 11
NONE LISTED -
May 20, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Mary Lou Ham Represented By
Thomas E Brownfield
Movant(s):
Bank of America, N.A. Represented By Robert P Zahradka
10:00 AM
Trustee(s):
Karen S Naylor (TR) Pro Se
10:00 AM
CORDES & COMPANY, LLC VS.
DEBTOR
Docket 101
NONE LISTED -
May 20, 2021 [Tentative Ruling has been modified since original posting]
Grant with 4001(a)(3) waiver.
Special Note: The tentative ruling has been modified to reflect Debtor's non- opposition to the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
The Source Hotel, LLC Represented By Ron Bender Juliet Y Oh
10:00 AM
Movant(s):
Cordes & Company, by and through Represented By
Peter F Jazayeri
Cordes & Company, by and through Represented By
Peter F Jazayeri
10:30 AM
FR: 08/11/05; 9-8-05; 12-15-06; 4-20-06; 10-12-06; 4-12-07; 10-18-07; 4-17-08;
10-16-08; 4-16-09; 10-15-09; 4-8-10; 4-7-11 (rescheduled from 4/6/12); 4-5-12;
4-4-13; 5-8-14; 5-7-15; 5-5-16; 5-4-17; 5-10-18; 5-24-18; 5-31-18; 5-30-19;
5-21-20
Docket 1596
SPECIAL NOTE: Although CIAO reflects case number as 8:01-16577-ES; Correct Case Number is 2:01-16577-ES and is assigned to Judge Smith in Santa Ana - td (5/13/2020)
11/20/03
Continue hearing to January 22, 2004 at 10:30am. Counsel for Reorganized Debtor, Marc Cohen, was not served with the status conference notice re this hearing.
Updated status report due January 12, 2004.
1/22/04
Continue status conference to July 8, 2004 at 10:30 a.m. Updated status report shall be filed by June 28,2004
If there are no outstanding U. S. Trustee issues, appearances at today's hearing are waived.
7/8/04
Continue status conference to December 9, 2004 at 10:30 a.m. Updated
10:30 AM
status report shall be filed by November 29, 2004.
If there are no outstanding U. S. Trustee issues, appearances at today's hearing are waived.
12/9/04
Continue status conference to July 14, 2005 at 10:30 a.m. Updated status report shall be filed by July 5, 2005.
If there are no outstanding U. S. Trustee issues, appearances at today's hearing are waived.
7/14/05*
Continue status conference to December 15, 2005 at 10:30am; updated status report shall be filed by December 5, 2005.
Note: If there are no outstanding U. S. Trustee issues, appearances at today's hearing are waived.
*The court appreciates the detailed report submitted on behalf of the Reorganized Debtor.
12/15/05
If Debtor is in full compliance with the requirements of the U.S. Trustee, including payments of quarterly fees, continue hearing to June 8, 2006, 2006 at 10:30 a.m. at the Santa Ana Courthouse; updated status report due April 6, 2006.
April 20, 2006
10:30 AM
Continue status conference to October 12, 2006 at 1030 a.m. ; updated status report due October 2, 2006. Debtor to indicate in October status report whether the case is ready for the entry of a final decree.
Note: If Debtor is in full compliance with the requirements of the U.S. Trustee, including payments of quarterly fees, appearances at today's hearing are waived.
October 12, 2006
Per the most recently filed status report, this matter appears to be progressing satisfactorily. Continue status conference to April 12, 2007 at 1030 a.m. ; updated status report due April 2, 2007.
Note: If Debtor is in full compliance with the requirements of the U.S. Trustee, including payments of quarterly fees, appearances at today's hearing are waived.
------------------------------------------------------------------------
April 12, 2007
Continue status conference to October 18, 2007 at 1030 a.m. ; updated status report due October 4, 2007. The status report for the October 18 hearing should advise court why a final decree should not be entered and the case closed, as substantially consummated. (XX)
Note: If Debtor is in full compliance with the requirements of the U.S. Trustee, including payments of quarterly fees, appearances at today's hearing are waived.
October 18, 2007
Continue status conference to April 17, 2008 at 1030 a.m. ; updated status report due April 7, 2008. (XX)
Note: If Debtor is in full compliance with the requirements of the U.S.
10:30 AM
Trustee, including payments of quarterly fees, appearances at today's hearing are waived.
April 17, 2008
Continue status conference to October 16, 2008 at 1030 a.m. ; updated status report due October 6, 2008.
Note: If Debtor is in full compliance with the requirements of the U.S. Trustee, including payments of quarterly fees, appearances at today's hearing are waived.
October 16, 2008
Continue status conference to April 16, 2009 at 10:30 a.m. ; updated status report due April 6, 2009. The April 6, 2009 status report should include only updated information and need not include a repetition of the history of the case. (XX)
Note: If Debtor is in full compliance with the requirements of the U.S. Trustee, including payments of quarterly fees, appearances at today's hearing are waived.
April 16, 2009
Continue status conference to October 15, 2009 at 10:30 a.m.; updated status report to be filed by October 5, 2009.
Note: If Debtor is in full compliance with the requirements of the U.S. Trustee, including payments of quarterly fees, appearances at today's hearing are waived.
October 15, 2009
Continue status conference to April 8, 2010 at 1030 a.m. ; updated status report due March 25, 2010. (XX)
10:30 AM
Note: If Debtor is in full compliance with the requirements of the U.S. Trustee, including payments of quarterly fees, appearances at today's hearing are waived.
April 8, 2010
Continue status conference to April 7, 2011 at 10:30 a.m. ; updated status report to be filed by March 28, 2011. (XX)
Note: Appearance at this hearing is excused.
April 7, 2011
Continue status conference to April 6, 2012 at 10:30 a.m. ; updated status report to be filed by March 23, 2012. (XX)
Note: Appearance at this hearing is excused.
April 5, 2012
Continue status conference to April 4, 2013 at 10:30 a.m. ; updated status report to be filed by March 21, 2013. (XX)
Note: Appearance at this hearing is excused.
May 2, 2013
Continue status conference to May 8, 2014 at 10:30 a.m. ; updated status report to be filed by April 24, 2014 (XX)
Note: Appearance at this hearing is excused.
May 8, 2014
10:30 AM
Continue status conference to May 7, 2015 at 9:30 a.m.; updated report to be filed by April 23, 2015.
Comments re Status Report:
The current status report is essentially a "cut and paste" of the prior May 2, 2013 postconfirmation report. The court has previously requested that the Reorganized Debtor limit its report to updated activity in the case that has occurred since the prior status conference. Instead, the same report is continually filed. The court should not have to comb through repetitive reports line by line to determine the current status.
Sanctions will be imposed against counsel for the Reorganized Debtor in an amount of not less than $100 if the 2015 report is not limited to new information.
Note: Appearance at today's hearing is not required
May 7, 2015
Continue status conference to May 5, 2016 at 10:30 a.m.; updated report to be filed by April 21, 2016. (XX)
May 5, 2016
Continue status conference to May 4, 2017 at 10:30 a.m.; updated report to be filed by April 20, 2017. (XX)
Note: Appearance at today's hearing is not required.
May 4, 2017
Continue status conference to May 10, 2018 at 10:30 a.m.; updated report to be filed by April 26, 2018 (XX)
10:30 AM
Note: Appearance at today's hearing is not required.
May 31, 2018
Continue status conference to May 30, 2019 at 10:30 a.m.; updated report to be filed by May 16, 2019 (XX)
Note: Appearance at today's hearing is not required.
May 30, 2019
Continue status conference to May 21, 2020 at 10:30 a.m.; updated report to be filed by May 7, 2020 (XX)
Note: Appearance at today's hearing is not required.
May 21,2020
Continue status conference to May 20, 2021 at 10:30 a.m.; updated report to be filed by May 6, 2021. (XX)
Note: Appearance at today's hearing is not required.i
May 20, 2021
An updated Status Report was not timely filed. Appearance at this hearing is required.
10:30 AM
Debtor(s):
California Power Exchange Corp Represented By
Joseph A Eisenberg Philip S Warden Ashleigh A Danker Alan Z Yudkowsky Marc S Cohen
Julie A Belezzuoli Alicia Clough
10:30 AM
(Set at Ch 11 Plan Conf. hrg. held 6-15-17)
FR: 12-14-17; 5-31-18; 11-15-18; 5-30-19; 11-21-19; 5-21-20; 11-19-20
Docket 5270
NONE LISTED -
December 14, 2017
A post-confirmation status report was due November 30, 2017 per the Confirmation Order entered June 28, 2017 [docket #5285]. Impose sanctions of $100 against Reorganized Debtor's counsel for failure to do so; court to issue OSC why the case should not be dismissed for failure to prosecute.
Note: Appearance at this hearing is required.
May 31, 2018
Continue status conference to November 15, 2018 at 10:30 a.m.; updated status report to be filed by November 1, 2018. (XX)
Note: Appearance at this hearing is not required.
November 15, 2018
Continue status conference to May 30, 2019 at 10:30 a.m.; updated status report must be filed by May 16, 2019 unless a final decree has been entered by such date. (XX)
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Note: Appearance at this hearing is not required.
May 30, 2019
Continue status conference to November 21, 2019 at 10:30 a.m.; updated status report must be filed by November 7, 2019, 2019 unless a final decree has been entered by such date. (XX)
Note: Appearance at this hearing is not required.
November 21, 2019
Continue status conference to May 21, 2020 at 10:30 a.m.; updated status report must be filed by May 7, 2020 unless a final decree has been entered by such date. (XX)
Note: Appearance at this hearing is not required.
May 21, 2020
Continue status conference to November 19, 2020 at 10:30 a.m.; updated report to be filed by November 5, 2020. (XX)
Note: Appearance at today's hearing is not required.
November 19, 2020
Continue status conference to May 20, 2021 at 10:30 a.m.; updated status report must be filed by May 6, 2021. (XX)
Note: Appearance at today's hearing is not required.
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May 20, 2021
Continue Status Conference to November 18, 2021 at 10:30 a.m.; updated Status Report must be filed by November 4, 2021.
Note: Appearance at today's hearing is not required.
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
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Lei Lei Wang Ekvall
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FR: 8-6-20; 9-17-20; 10-22-20; 11-19-20; 12-17-20; 2-18-21
Docket 167
NONE LISTED -
August 6, 2020
Grant motion.
Debtor's lender is authorized to place the forbearance payments at the end of the loan.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
October 22, 2020
[Special Notice: This hearing is being conducted by Zoomgov. See the first page of the calendar for today's hearings for participation details.]
Grant the motion. If the parties require a further continuance of the hearing, a
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request may be made during the calendar roll call by the Court Clerk just prior to the hearing. Available continued hearing dates are: 11/5/20, 11/12/20, and 11/19/20 at 10:30 a.m.
Note: This matter appears to be uncontested. Accordingly, no court appearances are required if the parties accept the tentative ruling to grant the Motion.
November 19, 2020
Grant the Motion, unless the parties require another continued hearing, in which case they may request a final continuance to December 17, 2020 at 10:30 a.m. during the courtroom clerk's calendar roll call just prior to today's hearing. No further continuances beyond December 17, 2020 will be granted unless a supplemental pleading or stipulation is filed explaining the reason(s) for the neceessity of a further hearing.
February 18, 2021
Deny motion for failure to prosecute. Basis for Tentative Ruling:
This matter has been pending for six months with no resolution. The parties were warned that the December 17, 2020 hearing would be the final hearing on the matter. The court, nevertheless, continued the December 17, 2020 hearing for an additional two months to this date. No further continuances will be granted.
May 20, 2021
Deny motion without prejudice. Basis for Tentative Ruling
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This matter has been pending for more than ten months. The hearing will not be further continued under any circumstances.
Note: Appearances at this hearing are not required.
Debtor(s):
Paul Edward Rubio Represented By Lauren Rode
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
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(Set at Conf. Hrg. Held 6-26-19)
FR: 11-21-19; 2-20-20; 8-20-20; 1-21-21
Docket 761
NONE LISTED -
November 21, 2019
Continue status conference to February 20, 2020 at 10:30 a.m.; an updated status report must be filed by February 6, 2020. (XX)
February 20, 2020
Debtor to advise the court as to the specific form of "court intervention" Debtor seeks. See Status report at p. 3:12-14.
August 20, 2020
No updated status report was filed by August 6, 2020 as ordered by the court. Debtor to appear and advise the court re the status of this case -- in particular the status of the pending arbitration.
If the arbitration is still pending, the status conference may be continued to October 15, 2020 at 10:30 a.m. by requesting a continuance during the court clerk's calendar roll call prior to the hearing. If the status conference is continued, an updated status report must be filed no later than October 1,
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2020 or monetary sanctions of not less than $100 will be imposed on Debtor's counsel.
January 21, 2021
Continue the status conference to May 20, 2021 at 10:30 a.m.; updated Status Report must be filed by May 6, 2021. (XX)
Note: Appearances at this status conference are not required.
May 20, 2021
Continue the status conference to September 30, 2021 at 10:30 a.m.; updated status report must be filed by September 16, 2021.
Note: Appearances at this status conference are not required.
Debtor(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel Babak Samini Dean A Ziehl
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FR: 8-20-20; 1-21-21
Docket 607
NONE LISTED -
August 20, 2020
Continue hearing to December 17, 2020 at 10:30 a.m. in light of the pending appeal before the 9th Circuit on many, if not all, of the substantive issues raised in the Objection and Opposition. If the Circuit has not ruled by December 17, 2020, the hearing will be further continued from time to time until a decision is rendered. The pendency of the 9th Circuit appeal divests this court of jurisdication to adjudication the Objection.
Basis for Tentative Ruling
Trustee moves for an order disallowing Debtor’s Second Amended Exemptions (defined below) which seeks to exempt Debtor’s interests in certain causes of action and account receivables (the "Objection")[dkt. 607]. Debtor timely filed opposition to the Objection (the "Opposition")[dkt 610] to which Trustee timely replied (the "Reply")[dkt. 611].
In sum, this court lacks jurisdiction to adjudicate the merits of the Objection to the Second Amended Exemptions while the Ninth Circuit appeal of the First Amended Exemption Order remains pending.
When a bankruptcy court order is appealed, the bankruptcy court is divested of jurisdiction over the appealed order and it may not "vacate or
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modify an order while on appeal." In re Bialac, 694 F.2d 625, 627 (9th Cir. 1982); In re Padilla, 222, F.3d 1884, 1190 (9th Cir. 2000). "Once an appellate court renders its decision on the appealed order, jurisdiction remains with the appellate court until that court issues its mandate pursuant to Fed.R.App.P. 41." In re Marino, 234 B.R. 767, 770 (9th Cir. BAP 1999).
The timely filing of an appellate order from the BAP, however, confers jurisdiction on the Ninth Circuit and divests "both the BAP and the bankruptcy court of control over those aspects of the case involved in the appeal." See, Padilla, 222 F.3d at 1189-90 (emphasis added); Marino, 234 B.R. at 770) (stating that even if mandate is issued, timely appeal re-divests the lower court of jurisdiction). "The rule divesting lowers courts of jurisdiction of aspects of a case involved in an appeal is [sic] judge-made doctrine designed to avoid the confusion and waste of time that might flow from putting the same issues before two courts at the same time." Padilla, 222 F3d. at 1190 (emphasis added). The rule is "not absolute" though, because the lower court retains jurisdiction to "take actions that preserve the status quo during the pendency of an appeal…but ‘may not finally adjudicate substantial rights directly involved in the appeal.’" Id.
In this case, the court defers any ruling on the Objection because the court lacks jurisdiction to adjudicate issues that are currently pending on appeal that could impact this court's adjudication of the same, e.g., the validity of Debtor’s exemptions of the "Claims Against 3P," "Other Contingency," and Account Receivables. See, Mot., Ex. 12 (the First Amended Exemption Order) and Ex. 13 (the BAP Memorandum).
Per the First Amended Exemption Order, the court previously ruled on the substance of these issues. Debtor timely appealed these matters to the BAP thereby divesting this court of jurisdiction over these exemptions claims. And while the BAP affirmed the First Amended Exemption Order, Debtor timely appealed the BAP’s decision to the Ninth Circuit Court of Appeals, case no. 20-60006, and this appeal remains currently pending. See, Obj., p. 2, n. 1; Opp’n, p. 11:15-16. Thus, this court has again been divested of jurisdiction over these specific exemptions per the First Amended Exemption Order which is on appeal.
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That the appeal before the Ninth Circuit currently involves the same
issues is demonstrated by a comparison of Debtor’s opposition and Debtor’s Opening Br. [case. no. 20-60006, dkt. 9], p. 11-13; Opp’n, p. 5:25-6:6 and Opening Br., p. 14-15; Opp’n, p. 7:14-8:4 and Opening Br., p. 19-21. "A court may take judicial notice of a document filed in another court ‘not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.’" § 201:5 Judicial Notice of Bankruptcy Court's Own Records, Bankr. Evid. Manual § 201:5 (2019 ed.)(citations omitted). And while Debtor’s issue on appeal does not formally mention the Account Receivables, Debtor directly addresses the Account Receivables in her opening brief to the Ninth Circuit also. See, e.g., Opening Br., at p. 26.
The divesting of this court’s jurisdiction to adjudicate the Objection further promotes the goal of avoiding putting the same issues before two courts at the same time and risking confusion and the waste of judicial resources.
That Debtor added further citations in support of the Second Amended Exemptions [CCP §§ 695.030 and 688.1, Law v. Siegel, 571 U.S. 415 (2014), Baum v. Duckor, Spradling & Metzger, 72 Cal. App. 4th 54 (1999) and Murphy v. Allstate Ins. Co., 17 Cal. 3d 937 (1976)] does not change this result. Importantly, Debtor discusses all three cases at length in her opening brief to the Circuit. See, Opening Br. at pp. 9-11, 15, 19-22, 25, 30 and 34.
In In re Bialac, 694 F.2d 625, 626-27 (9th Cir. 1982) the Ninth Circuit affirmed the BAP’s vacating an injunction obtained by the debtor from a second bankruptcy court after the first bankruptcy court granted relief from stay for creditor to foreclose on a note. The Ninth Circuit reasoned that the second bankruptcy court lacked jurisdiction because the order granting relief from stay had been timely appealed and the issues before both courts were the same. See id. at 627. The Ninth Circuit found that the only difference between the proceedings was that the debtor was trying to further develop the argument that the note was necessary for reorganization, but even this further argument was insufficient to convey jurisdiction on the second bankruptcy court. See id.
Similarly here, by filing the Second Amended Exemptions with the new
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supporting citations, Debtor is attempting to add further argument to her contention that First Amended Exemptions are valid. However, as discussed above, those issues are already on appeal after Debtor timely appealed the First Amended Exemption Order to the Ninth Circuit. The court therefore only retains limited jurisdiction to "take actions that preserve the status quo during the pendency of an appeal…but ‘may not finally adjudicate substantial rights directly involved in the appeal.’" Padilla, 222 F3d. at 1190.
Note: If both parties accept the foregoing tentative ruling, appearances at today's hearing are not required.
January 21, 2021
Continue hearing to May 20, 2021 at 10:30 a.m.; status report regarding the status of the pending appeal before the Ninth Circuit must be filed by the Trustee on or before May 6, 2021 or sanctions in the amount of $400 will be imposed on Trustee's counsel. (XX)
Basis for Tentative Ruling:
The court previously ordered the Trustee to file a status report by January 14, 2021. No status report was timely filed by such date.
Note: If the parties accept the tentative ruling, appearances will not be required and the Trustee shall serve notice of the continued hearing date/time.
May 20, 2021
In light of pending appeal, continue the hearing to September 16, 2021 at 10:30 a.m.; an updated status report must be filed by September 2, 2021 if the Ninth Circuit has not issued a decision by such date.
Note: Appearances at this hearing are not required; Trustee shall serve
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notice of the continued hearing date/time.
Debtor(s):
Lenore LuAnn Albert-Sheridan Pro Se
Trustee(s):
Jeffrey I Golden (TR) Represented By Jonathan A. Michaels Eric P Israel
Aaron E de Leest Sonia Singh
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Docket 218
NONE LISTED -
May 20, 2021
Grant motion. Debtor shall remit to counsel for Buchanan Mortgage Holdings, LLC whatever funds are in its bank account as of May 20, 2021.
Basis for Tentative Ruling
In its response, Buchanan seeks turnover of the sum of approximately
$11,000.00, the amount represented to remaining according to Motion as of April 26, 2021. However, Debtor filed a monthly operating report for the period ending April 30, 2021 on May 4, 2021 [docket #225] indicating a balalnce of only $5,509.08. The amount may or may not be less than that as of the time of the hearing.
Note: If the parties accept the tentative ruling, appearances at this hearing are not required and Movant shall lodge an order consistent with the same within 7 days of the hearing.
Debtor(s):
10827 Studebaker LLC, a California Represented By
Steven Werth Alan G Tippie
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FR: 10-17-19; 4-9-20; 4-30-20; 6-18-20; 9-17-20; 12-17-20; 4-1-21; 5-6-21
Docket 1
NONE LISTED -
October 17, 2019
Claims bar date: Jan. 17, 2020 (notice to be served by 11/15/19
Deadline to file plan/DS Feb. 20, 2020
Continued Status Conf.: Apr. 9, 2020 at 10:30 a.m. (XX)
Updated Status Report Due: Mar. 19, 2019 (unless the plan/DS has been
the report
filed by such date, in which case requirement will be waived)
Note: If Debtor is in substantial compliance with the requirements of the United States Trustee, appearance at this hearing is not required. It is Debtor's responsiblity to confirm compliance with the UST prior to the hearing.
April 9, 2020
Continue Status Conference to April 30, 2020 at 10:30 a.m., the same
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date/time as hearing on approval of Debtor's Disclosure Statement; an updated status report is not required. (XX)
Note: Appearance at this hearing is not required. Non appearance at the hearing will be deemed acceptance of the tentative ruling.
April 30, 2020
Continue status conference to June 18, 2020 at 10:30 a.m., same date/time set for the continued hearing on approval of Debtor's disclosure statement. (XX)
Note: Appearances at this hearing are not required. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
June 18, 2020
Continue status conference to September 17, 2020 at 10:30 a.m.; updated status report not required. (XX)
Note: Appearances at this hearing are not required. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
September 17, 2020
Continue status conference to November 5, 2020 at 10:30 a.m.; court to issue order to show cause why this case should not be dismissed or converted due to Debtor's inability to confirm a plan within a reasonable period of time.
Hearing on such OSC shall be scheduled for November 5, 2020 at 10:30 a.m.
December 17, 2020
Continue Status Conference to April 1, 2021 at 10:30 a.m.; An updated Status report must be filed by March 18, 2021 unless Debtor has filed a
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motion to dismiss the case by such date, in which case the requirement of a report will be waived. (XX)
Special Note: Regarding Buchanan's request in its statement that any funds on hand be distributed to it, the court shall rule on that matter in context of a motion to dismiss the case.
Note: If the parties accept the tentative ruling, appearances at this hearing are not required.
April 1, 2021
Continue status conference to May 6, 2021 at 10:30 a.m. in light of Debtor's intent to move for dismissal of the case. (XX)
May 6, 2021
Continue the status conference to May 20, 2021 at 10:30 a.m., same date/time set for hearing on Debtor's motion to dismiss the case. (XX)
Note: Appearances at today's hearing are not required.
May 20, 2021
Take Status Conference off calendar in light of the granting of Debtor's motion to dismiss the case.
Note: Appearances at today's hearing are not required.
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Debtor(s):
10827 Studebaker LLC, a California Represented By
Steven Werth
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Adv#: 8:20-01156 Kosmala v. Xia
Docket 15
NONE LISTED -
May 20, 2021 [Tentative Ruling has been expanded since original post]
Partially grant, and partially deny the Motion. Grant the Motion as to the second claim for relief under § 548(a)(1)(A), the third claim for relief under
§ 548(a)(1) (B), and the fourth claim for relief under § 550 in the total amount of $123,001.77. Deny the Motion as to the first claim for relief under § 547, the fifth claim for relief under § 551, and the sixth claim for relief under § 542. Deny the request for attorneys’ fees and costs set forth in the Complaint.
Basis for Tentative Ruling:
Alpha Floors, Inc. ("Debtor") filed a voluntary chapter 7 petition on September 24, 2019. Weneta Kosmala was appointed as the Chapter 7 Trustee ("Plaintiff"). On September 2, 2021, Plaintiff filed a complaint ("Complaint") alleging the following 6 causes of action against the sole defendant, Mr. Feiyu Xia ("Defendant"): (1) avoidance of preferential transfer, (2) avoidance of intentional fraudulent transfer under § 548(a)(1) (A); (3) avoidance of constructive fraudulent transfer under § 548(a)(1)(B);
recovery of avoided transfers under § 550, (5) preservation of the transfer under § 551, and (6) turnover of estate property under § 542. Default was entered against Defendant on April 9, 2021.
Plaintiff moves for entry of default judgment against Defendant under FRBP 7055 and LBR 7055-1 ("Motion")[dkt. 15]. Plaintiff is seeking
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to avoid and recover the following three transfers that were made to Defendant: $14,643 payment on February 28, 2019 ("Transfer I"), $7,897.28 payment on August 26, 2019 ("Transfer II"), $100,461.49 payment on September 4, 2019 ("Transfer III" and collectively with Transfer I and Transfer II, the "Transfers"). See Mot., Ex. 1, ¶¶ 15-17 (Compl.), Ex. 3 (Payroll Report).
Legal standard
Under FRBP 7055(b), the court may require a plaintiff to demonstrate a prima facie case by competent evidence in a prove-up trial to obtain a default judgment. See In re Liu, 282 B.R. 904 (Bankr. C.D. Cal. 2002); In re Villegas, 132 B.R. 742, 746 (9th Cir. BAP 1991); TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987). In such a hearing, the plaintiff must demonstrate each of the elements of a cause of action to support a prima facie case. See In re Bui, 188 B.R. 274, 276 (Bankr. N.D. Cal. 1995). The court has wide discretion under FRBP 7055 to consider whether the evidence presented supports a claim and warrants judgment for the plaintiff. See In re Beltran, 182 B.R. 820, 823-24 (9th Cir. BAP 1995).
Applying the foregoing standard and as explained below, Plaintiff has presented a prima facie case with as to the claims for relief under §§ 548 and 550 but not as to the claims under § 547, 551, and 542.
A. Plaintiff has not demonstrated a prima facie case for relief under
§ 547(b)
Plaintiff’s first claim for relief is under § 547(b). See Compl., 4-5. For a transfer to constitute an avoidable preference under § 547(b), five elements will have to be proven: (1) that the transfers were made for the benefit of a creditor; (2) the transfers were on account of an antecedent debt; (3) the transfers were made while Debtor was insolvent; (4) the transfers were made within 90 days of the petition date; and (5) the transfers enabled Defendant to receive a larger share of the estate than if the transfers had not been made. Union Bank v. Wolas, 502 U.S. 151, 154-55 (1991). A creditor will be found to have received more under the transfer whenever distribution in a hypothetical chapter 7 bankruptcy is less than 100%. In re Lewis W.
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Shurtleff, Inc., 778 F.2d 1416, 1421 (9th Cir. 1985). Once the trustee proves his prima facie case under
§ 547(b), the creditor may raise one of the defenses set out in § 547(c). In re Jan Weilert RV, Inc., 315 F.3d 1192, 1197 (9th Cir. 2003).
Here, Plaintiff failed to present a prima facie case as to the element of antecedent debt. The Complaint merely states on conclusory fashion that the Transfers were made on account of an antecedent debt but there are no factual allegations in the Complaint regarding that antecedent debt. See Compl., 4, ¶23. The Motion states that Defendant was a creditor of Debtor because she was listed on the SOFA as receiving salary and severance pay, but the Complaint actually undermines this argument because the Transfers were payments that were made in addition to Defendant’s normal salary. See Mot., 5; Compl., 3, ¶14. Thus, per Plaintiff’s own Complaint, the Transfers were not payments made on account of any employment related antecedent debt.
Moreover, with respect to Transfer I, which was made more than 90 days after the petition date but within one year of the petition date, Plaintiff has failed to show that Debtor was insolvent on the date of Transfer I. Plaintiff attempts to rely on the 90-day prior to the petition date presumption of insolvency to lump all of the individual transfers together to argue that all of the Transfers were made while insolvent. See Mot., 6:1-11. This argument fails though because although preference avoidance period increases from 90 days to 1 year if the preference is made to an insider of the debtor (like in this case since Defendant is a statutory insider of Debtor as its CEO), Plaintiff has not provided any legal authority that the presumption of insolvency within 90 days of the petition date also increases to 1 year in cases of preferences to insiders. And since Plaintiff has not demonstrated that there was an antecedent debt, Plaintiff has not demonstrated a prima facie case regarding the element that the transfer be for the benefit of a creditor since Plaintiff has not demonstrated that Defendant was a creditor.
With regard to the other elements of § 547(b), Plaintiff has demonstrated a prima facie case as follows: (1) Transfer II and Transfer II (not Transfer I as discussed above) were made while Debtor was insolvent,
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(2) the Transfers were of Debtor’s property- Debtor’s funds in its bank account, (3) the Transfers were made during the preference period which was increased to 1 year because Defendant was an insider of Debtor, and
Defendant received a larger share of the estate because the bankruptcy case was a no-asset case. See Mot., 6-7.
Plaintiff has presented a prima facie case under § 548(a)(1)(A)
Under 11 U.S.C. § 548(a)(1), a trustee may avoid transfers made with "actual intent to hinder, delay, or defraud" creditors made "within 2 years before the date of the filing of the petition." The Code in § 101(54)(D) defines "transfers" as "each mode, direct and indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with—(i) property; or (ii) an interest in property." The necessary intent to "hinder, delay or defraud" creditors" may be inferred based on the traditional "badges of fraud". See In re Acequia, Inc., 34 F.3d 800, 805-06 (9th Cir. 1994)("[C]ourts applying...§ 548(a)(1) frequently infer fraudulent intent from the circumstances surrounding the transfer, taking particular note of certain recognized indicia or badges of fraud.").
Plaintiff has also made a prima facie showing that, with regard to Transfers II and III, Debtor was insolvent at the time of those transfers. While Plaintiff attempts to rely on the 90-day presumption of insolvency to demonstrate insolvency, see Mot., 9:17-23, that presumption is only applicable to § 547, not § 548. See 11 U.S.C. § 547(f)("For the purposes of this section, the debtor is presumed to have been insolvent on and during the 90 days immediately preceding the date of the filing of the petition.") (emphasis added). Nonetheless, the timing of Transfer II and III, within 1 ½ week prior to the petition date and on the petition date, indicates that Debtor was more likely than not insolvent since it filed for bankruptcy so soon thereafter based on the filed schedules listing Debtor’s total assets at
$1,170,683.67 but unsecured claims totaling $1,861,860.28. See Schedule E/F [dkt. 5, case no. 19-13441]. And while Plaintiff did not include Schedule E/F with the Motion, the court may take judicial notice on its own. See FRE 201(c)(1) and (d)(" The court…may take judicial notice on its own… at any stage of the proceeding. "); In re Blumer, 95 B.R. 143, 146 (BAP 9th Cir.
1988)("It is well established that a court may take judicial notice of its own
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records...").
Plaintiff has presented a prima facie case under § 548(a)(1)(B) as to Transfers II and III
The trustee may avoid constructively fraudulent transfers of debtor’s interest in property made within 2 years of the petition date under § 548(a)(1) (B). "A transfer is a constructive fraudulent transfer if the debtor receives less than reasonably equivalent value in exchange for the transfer, and the transfer is made while the debtor is in financial distress. In re Fink, 217 B.R.
614, 618–19 (Bankr. C.D. Cal. 1997). The Bankruptcy Code defines insolvent as a "financial condition such that the sum of the entity’s debts is greater than all such entity’s property, at a fair valuation, exclusive of" certain property transferred, concealed or removed or exempt property. 11 U.S.C. § 101(32).
With respect to Transfers II and III Plaintiff has demonstrated a prima facie case under § 548(a)(1)(B) as follows: (1) Debtor received less than equivalent value in exchange for the Transfers because Defendant did not perform any services in exchange for the Transfers, (2) the transfers were of Debtor’s property- its funds in its bank account, and (3) Debtor was insolvent at the time of the Transfers II and II which were both made within 1 ½ weeks of the petition date. As discussed above, the timing of Transfer II and III, within 1 ½ week prior to the petition date and on the petition date, indicates that Debtor was more likely than not insolvent since it filed for bankruptcy soon thereafter and its schedules indicate that it was insolvent on the petition date. No such showing has been made with regard to Transfer I, however, which was made approximately 7 months prior to the petition date and Plaintiff’s reliance on the presumption of insolvency is without merit since § 547(f) is not applicable to § 548.
Plaintiff has presented a prima facie case under § 550
Under § 550(a) , a trustee may recover from the initial transferee for the benefit of the estate transfers set aside pursuant to § 544 or the value of those transfers. The use of the word "may" in § 550(a) provides bankruptcy
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courts with discretion to first determine whether to award any recovery under
§ 550, and second, to determine which of the alternative forms of relief to grant- the property itself or the value of the property transferred. In re Taylor, 599 F.3d 880, 890 (9th Cir. 2010)(citing In re Bremer, 408 B.R. 355, 359 (BAP 10th Cir. 2009). "The purpose of § 550(a) is ‘to restore the estate to the financial condition it would have enjoyed if the transfer had not occurred.’" Taylor, 599 F.3d at 890. "The statute does not explain when a court should award the trustee recovery of the actual property and when it should, in the alternative, award the trustee recovery of the value of the property" but only states that a "court must issue a ‘single satisfaction.’" Id. Property recovered under § 550 is retained for the benefit of the estate and becomes property of the estate per § 541(a)(3). In re Allen, 768 F.3d 274, 282-84 (3rd. 2014) (finding that § 550(a) recovered property is property of the estate under § 541(a)(3) irrespective of actual possession of the property transferred).
In this case, because Plaintiff has demonstrated a prima face case under § 548(a)(1)(A) for the Transfers, and § 548(a)(1)(B) for the Transfers (except Transfer I), Plaintiff has demonstrated a prima facie case under § 550 for the value of the property transferred ($14,643 + $7,897.28 + $100,461.49
= $123,001.77) but not recovery of the actual property transferred, i.e., the same dollars that were actually transferred since Plaintiff has not made a prima facie showing of which actual dollars that were transferred to Defendant.
Plaintiff has not presented a prima facie case under § 551
"Any transfer avoided under section… 548… is preserved for the benefit of the estate but only with respect to property of the estate." "The preservation under section 551, by its express terms, applies ‘only … to property of the estate.’" 5 Collier on Bankruptcy P 551.02 (16th 2021); Heintz v. Carey (In re Heintz), 198 B.R. 581, 585 (B.A.P. 9th Cir. 1996)("The literal words of the statute mean that a trustee cannot preserve an avoided transfer for the benefit of the estate if the lien or other avoided transfer relates to property that is not property of the estate."). As discussed above under § 550, Plaintiff is not recovering any specific asset but rather the value of the Debtor’s funds that were transferred. And as discussed below under § 542, the funds transferred prepetition were not estate property since no estate existed
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prepetition.
Therefore, because there is no specific asset that is estate property that must be preserved for the benefit of the estate so Plaintiff has failed to demonstrate a prima facie case under § 551.
Plaintiff has not presented a prima face case under § 542
"Bankruptcy Code § 542(a) grants a bankruptcy trustee the power to recover property of the debtor’s estate or such property’s value." Shapiro v. Henson, 739 F.3d 1198, 1199 (9th Cir. 2014). Under § 542(a), an entity in possession or control of estate property that the trustee may use, sell, or lease under § 363 of this title, or that the debtor may exempt under § 522, must turnover the estate property to the trustee "unless such property is of inconsequential value or benefit to the estate." "To prevail in a turnover action under § 542(a), a trustee must establish: (1) that property of the estate is or was in the possession, custody, or control of an entity during the pendency of the case; (2) that the property may be used by the trustee under
§ 363; and (3) that the property has more than inconsequential value or benefit to the estate." In re Chantel, 2015 WL 3988985, at *8 (BAP 9th Cir. July 1, 2015)(citing In re Bailey, 380 B.R. 486, 492 (BAP 6th Cir. 2008)).
Furthermore, "an essential element of a turnover order, necessarily decided in every turnover ruling, is that the property to be turned over is property of the estate," In re White, 389 B.R. 693, 699 (BAP 9th Cir. 2008). But property of the estate does not apply to property which has been fraudulently or preferentially transferred before the bankruptcy filing, because such property does not become "property of the estate until it has been recovered by the estate. In re BMT-NW Acquisitions, Inc., 582 B.R. 846, 865-66 (Bankr.Del.2018) (Court held that the chapter 7 trustee could not state a claim for relief under § 542(a) in an avoidance action for relief under §§ 547 and 548.)
Here, Plaintiff has failed to make a prima facie showing that Defendant is in possession of estate property during the pendency of the case. The Transfers occurred prepetition, so the funds from Debtor’s bank account could not be estate property since no bankruptcy estate was in existence at the time. See 11 U.S.C. § 541(a)(1)("The commencement of a case…
10:30 AM
creates an estate… comprised of … all legal or equitable interests of the debtor in property as of the commencement of the case.") Plaintiff argues that because Debtor has an interested in the funds transferred, once the Transfers are avoided, the funds transferred will be property of the estate become estate property. See Mot., 10:15-24. This argument is unpersuasive for two reasons. First, on the petition date, Debtor (and thus Trustee) did not have an interest in the specific funds transferred to Defendant; rather, the estate had an interest in avoidance causes of action to recover Debtor’s property or the value of such property transferred. Second, because Plaintiff has not recovered any specific asset that becomes estate property but is rather recovering the value of such funds transferred, the funds previously transferred to Defendant do not become estate property under § 541. See 11
U.S.C. § 541(a)(3)("Such estate is comprised of all the following property…Any interest in property that the trustee recovers under section…550[.]"). Stated differently even after entry of this default judgment, the estate’s interest is in the default judgment (and collecting on that default judgment), not the actual funds that were transferred to Defendant.
Deny the Motion as to any claim for attorney’s fees and costs
The Complaint requests attorneys’ fees and costs. See Compl., 9, ¶7. However, the Motion does not mention this request. The court is addressing this issue to the extent there is an implicit request for such an award. In this regard, Plaintiff has not presented any legal authority to support the request in the Complaint for an award of fees and costs.
Debtor(s):
Alpha Floors, Inc. Represented By Eric J Fromme
Defendant(s):
Feiyu Xia Pro Se
10:30 AM
Plaintiff(s):
Weneta Kosmala Represented By Reem J Bello Ryan W Beall
Trustee(s):
Weneta M.A. Kosmala (TR) Represented By Reem J Bello
10:30 AM
[THOMAS H. CASEY, CHAPTER 7 TRUSTEE]
Docket 54
NONE LISTED -
May 20, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Danny Huynh Represented By Phu D Nguyen
Trustee(s):
Thomas H Casey (TR) Pro Se
10:30 AM
[HAHN FIFE & COMPANY, LLP, ACCOUNTANT FOR CHAPTER 7 TRUSTEE]
Docket 52
NONE LISTED -
May 20, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Danny Huynh Represented By Phu D Nguyen
Trustee(s):
Thomas H Casey (TR) Pro Se
10:30 AM
[THOMAS H. CASEY, CHAPTER 7 TRUSTEE]
Docket 48
NONE LISTED -
May 20, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Gustavo Gomez Gonzalez Represented By Daniel King
Joint Debtor(s):
Rocio Ramirez De Gomez Represented By Daniel King
Trustee(s):
Thomas H Casey (TR) Pro Se
10:30 AM
(Set at DS Hrg Held 3/11/2021)
Docket 84
SPECIAL NOTE: Stipulation Resolving Chapter 11 Plan Treatment of IRS Claim, filed 5/5/2021; Order Approving Stipulation Lodged in LOU on 5/5/2021, Order #10307622 - td (5/5/2021)
May 20, 2021
Confirm the consensual Second Amended Plan, including the stipulated treatment of the IRS claim, on condition that Debtor pays the Subchapter V Trustee's fees (on terms acceptable to the Trustee), as well as any outstanding UST and court fees on or before the Effective Date of the Plan. Post-confirmation Status Conference shall be heard on November 18, 2021 at 10:30 a.m. and the post-confirmation Status Report must be filed by or before November 4, 2021.
Special Note: If Debtor and the Trustee reach a resolution of the payment of the Trustee's fees prior to the hearing, such payment terms may be included in the Confirmaton Order.
Note: If all parties agree with the tentative ruling and special note, appearances at this hearing are not required.
Debtor(s):
Vantage Point Apparel Software, Inc. Represented By
Michael Jones
10:30 AM
Trustee(s):
Mark M Sharf (TR) Pro Se
10:30 AM
FR: 5-12-20; 7-23-20; 9-3-20; 11-19-20; 12-10-20; 2-18-21; 3-11-21
Docket 7
NONE LISTED -
May 12, 2020
Deadline to file plan/disclosure statement: Aug. 14, 2020*
Claims Bar Date (service of notice by 5/19/20): July 20, 2020
Continued Status Conference: July 23, 2020 at 10:30am Deadline for Debtor and Trustee to
file Updated Status Report: July 9, 2020
*Special Note: The court has reviewed the report filed by the trustee on 5/11/20 and, in light of the same, no appearances at this status conference are required and the deadline for filing a plan has been modified to August 14, 2020. Non appearance at the hearing will be deemed acceptance of the tentative ruling. The court will issue its own order.
Note: Appearances at this hearing are not required if all parties accept the tentative ruling required.
July 23, 2020
10:30 AM
Extend the deadline for filing a plan and disclosure statement from August 14, 2020 to October 15, 2020 and continue the Status Conference to November 19, 2020 at 10:30 a.m.; an updated status report must be filed by Debtor by November 5, 2020 and by the Trustee by November 12, 2020. However, if Debtor timely files a plan and disclosure statement by October 15, 2020, updated status reports will not be required and the Status Conference will be continued to the date/time of the hearing regarding approval of the disclosure statement.
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required and the Court will issue its own order re the same.
September 3, 2020
Continue Status Conference to November 19, 2020 at 10:30 a.m.; an updated status report must be filed by Debtor by November 5, 2020 and by the Trustee by November 12, 2020. However, if Debtor timely files a plan and disclosure statement by October 15, 2020, updated status reports will not be required and the Status Conference will be continued to the date/time of the hearing regarding approval of the disclosure statement. (XX)
Note: Appearance at today's hearing is not required. The court will issue its own order re the tentative ruling.
November 19, 2020
Continue the Status Conference to December 10, 2020 at 10:30 a.m., the same date/time as hearing on the the approval of Debtor's disclosure statement; updated status report is not required for that hearing. (XX)
Note: Appearances at this hearing are not required.
December 10, 2020
10:30 AM
Continue Status Conference to February 18, 2021 at 10:30 a.m.; updated Status Report must be filed by February 4, 2021 unless an amended disclosure statement has been timely filed, in which case the requirement of a status report will be waived and the Status Conference continued to the same date/time as hearing on such amended disclosure statement. (XX)
Note: If Debtor is in substantial compliance with the requirements of the
U.S. Trustee, appearances at this hearing will not be required. It is Debtor's responsibility to confirm substantial compliance in advance of the hearing.
February 18, 2021
Continue status conference to March 11, 2021 at 10:30 a.m., same date/time set for hearing on approval Debtor's disclosure statement. (XX)
Special note: The court appreciates the updated status report filed by the Subchapter V Trustee [docket # 70]
Note: Appearances at this hearing are not required.
March 11, 2021
Continue Status Conference to May 20, 2021 at 10:30 a.m.; updated Status Report not required. (XX)
May 20, 2021
Take Status Conference off calendar if the Second Amended Plan is confirmed.
Note: Appearances at this hearing are not required.
10:30 AM
Debtor(s):
Vantage Point Apparel Software, Inc. Represented By
Michael Jones
Trustee(s):
Mark M Sharf (TR) Pro Se
10:30 AM
Docket 479
NONE LISTED -
May 20, 2021
Grant the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
HCA West, Inc Represented By John W Lucas Jason H Rosell
Victoria Newmark
10:30 AM
Docket 35
NONE LISTED -
April 1, 2021
[This Tentative Ruling has been modified since the original posting to add Comment #1a]
Continue this hearing to May 20, 2021 at 10:30 a.m. to allow Debtor to correct service and other issues. Amended Disclosure Statement must be filed no later than April 22, 2021; any opposition must be filed by May 6, 2021; any reply must be filed by May 13, 2021. (XX)
Basis for Tentative Ruling:
Service issue: Notice was improper because Debtor did not serve a separate notice of the disclosure statement hearing which provided
notice of the 14-day opposition deadline. Per LBR 9013-1(c)(2), the "notice of motion must advise the opposing party that LBR 9013-1(f) requires a
written response to be filed and served at least 14 days before the hearing." See LBR 3017-1(b)("Objections to the adequacy of a
disclosure statement must be filed and served on the proponent not less than 14 days before the hearing, unless otherwise ordered by the court."). Debtor only filed the supplemental Zoom notice [dkt. 37] which does not include the opposition deadline information.
1a. Debtor needs to address all of the comments raised by the U.S.
10:30 AM
Trustee
The secured claim in Class 1 also is impaired because the Plan alters claimant's prepetition contractual rights to proceed with nonjudicial foreclosure of the Property. See DS, p. 6:16-20. Under the broad definition of "impairment" under § 1124, "any alteration of the rights constitutes impairment even if the value of the rights is enhanced." In re L & J Anaheim Assocs., 995 F.2d 940, 942 -943(9th Cir. 1993)(emphasis added)(holding that secured creditor was impaired when that creditor could not "invoke the substantive remedies or procedural mechanisms available to it at state law" pursuant to its contractual rights under the loan agreement and its collateral would be sold under the chapter 11 plan). This section should be revised.
Because the Effective Date of the Plan will be 30 days after the confirmation order is entered, this raises feasibility issues since it is unclear whether there will be sufficient time file and obtain court approval of an employment application for a broker for the Dana Point Property, adequately market the property, and file and obtain approval of a sale motion before the confirmation order is entered. See DS, p. 2:16-17 and p. 6:25-7:2.
Pg. 8:12: TWF needs to be defined
Pg. 10:3-13: Either identify the general unsecured creditors or attache a list of the same as an exhibit.
Pg. 11:10-11: Provide a list of executory contracts that may be subject to assumption
Pg. 13:24; 17:5: The claims bar date was January 8, 2021
Pg. 15:18-19; 19:15-8: Delete discussion re the pledging of projected disposable income if this provision is not applicable.
Note: If Debtor and the UST accept the foregoing tentative ruling,
10:30 AM
appearances at this hearing are not required.
May 20, 2021
Deny approval of disclosure statement. Basis for Tentative Ruling
Debtor has filed a status report indicating that he is unable to formulate a viable chapter 11 plan.
Note: Appearances at this hearing are not required.
Debtor(s):
Christopher Summers Represented By
J Scott Williams
10:30 AM
FR: 11-5-20; 2-4-21; 4-1-21
Docket 1
NONE LISTED -
November 5, 2020
Claims bar date: Jan. 8, 2021 (notice by Nov. 9, 2020)
Deadline to file plan/DS: 1/15/21
Continued Status Conf: Feb. 4, 2021 at 10:30 am (XX) Updated Status Report due: Jan. 21, 2021 (waived if plan/DS timely filed)
Note: Appearance at this hearing is not required if Debtor accepts the foregoing tentative ruling and Debtor is in substantial compliance with the requirements of the U.S. Trustee. It is Debtor's responsiblity to confirm such compliance with the U.S. Trustee prior to the hearing. The court will prepare its own Order re the status conference.
February 4, 2021
Continue Status Conference to April 1, 2021 at 10:30 a.m.; updated Status Report not required. (XX)
Note: Appearance at this hearing is not required.
10:30 AM
Apri 1, 2021
Continue status conference to May 20, 2021 at 10:30 a.m.; updated status report is not required if the amended disclosure statement is timely filed on April 22, 2021. (XX)
Note: Appearances at this hearing are not required.
May 20, 2021
Continue status conference to June 3, 2021 at 10:30 a.m.; updated status report not required.
Note: Appearances at this hearing are not required.
Debtor(s):
Christopher Summers Represented By
J Scott Williams
10:30 AM
Docket 64
NONE LISTED -
May 20, 2021
Grant the motion subject to overbid and subject to the terms requested by Green Rock II, except that 1) all ordinary costs of sale shall be paid out of escrow, whether or not they exceed 8%, and 2) monthly adequate protection payments starting June 1, 2021 shall be reduced to $1500/mo.
Basis for Tentative Ruling:
Cost of Sale of 8% is an estimate. If the COS turns out to be 8.5% or 9%, it should be paid.
With a payment of $1.4M of its $1.6M claim, Green Rock will be receiving payment of approximately 87% of its claim from the Fisher Lane property, leaving approximately $200,000 owing and secured by the Mar Vista property, which has a value of between $450,000 [Green Rock's estimate} and
$700,000 [Debtor's estimate]. Under these circumstances, $10,937.50 is not an appropriate adequate protection payment. $1,500/mo (14% of 10,937.50) is fair given a) the substantial paydown of the claim (which could be less than
$200,000 depending on the outcome of the claim objection hearing) and b) the security of the Mar Vista property.
10:30 AM
Debtor(s):
Chase Merritt Global Fund LLC Represented By
W. Derek May
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
Docket 18
OFF CALENDAR: Notice of Voluntary Dismissal of Motion, filed 5/17/2021 - td (5/17/2021)
NONE LISTED -
Debtor(s):
John Benyamin Represented By James G. Beirne
Joint Debtor(s):
Jacklin Bettaryouren Represented By James G. Beirne
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
Docket 6
NONE LISTED -
May 20, 2021
Court's Comments re the Motion:
As a general matter, the court is not opposed to limiting notice in certain circumstances. However, the court is concerned that in this case a significant percentage of the creditors are governmental units, i.e., county recorders and that such creditors may have an interest in, for example, the timing of the filing of a plan and disclosure statement or the sale or use of property of the estate and the compromise or settlement of controversies.
Some of the notices for which Debtor seeks limitation are not onerous, causing the court to question the necessity of the same. For example, motions governed by FRBP 4001 need only be noticed to the 20 largest unsecured creditors (absent a creditors' committee). Similarly, objections to claims need only be served on the affected claimant under FRBP 3007; same for reconsideration of claims under FRBP 3008. In the same vein, notice re the employment of professionals under FRBP 2014 does nto require notice to all creditors (just the 20 largest unsecured or creditors committee members). So why is a limitation notice re the same necessary?
The court does not understand the necessity for limitation of notice re disclosures under FRBP 2019.
10:30 AM
The court does not understand why all creditors should not receive notice of fee applications pursuant to FRBP 2002(a)(6) -- the entire fee application need not be served on all creditors.
Bottom line: Debtor's counsel needs to clarify the scope/necessity of the requested limit notice order.
Debtor(s):
Synrgo, Inc. Represented By
Sean A OKeefe
10:30 AM
Docket 7
NONE LISTED -
May 20, 2021
Grant, subjec to Plaintiff clarifying that it is not seeking to pay wage claims to employees that exceed the $13,650.00 per employee priority limitation set forth in Section 507(a)(4) and 507(a)(5).
Debtor(s):
Synrgo, Inc. Represented By
Sean A OKeefe
10:30 AM
Docket 8
NONE LISTED -
NONE LISTED -
Debtor(s):
Synrgo, Inc. Represented By
Sean A OKeefe
10:30 AM
Docket 9
NONE LISTED -
NONE LISTED -
Debtor(s):
Synrgo, Inc. Represented By
Sean A OKeefe
10:30 AM
Docket 11
NONE LISTED -
NONE LISTED -
Debtor(s):
Synrgo, Inc. Represented By
Sean A OKeefe
2:00 PM
Adv#: 8:19-01216 Marshack v. Hyundai Steel Company
Docket 59
CONTINUED: Hearing Continued to 5/27/2021 at 10:00 a.m., Per Order
Entered 5/17/2021 (XX) - td (5/17/2021)
NONE LISTED -
Debtor(s):
Prime Metals U.S.A., Inc. Represented By Steven Werth
Defendant(s):
Hyundai Steel Company Represented By Philip S Warden
Plaintiff(s):
Richard A Marshack Represented By Ronald S Hodges Robert P Goe Ryan S Riddles
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Laila Masud David M Goodrich
2:00 PM
Robert P Goe David Wood
2:00 PM
Adv#: 8:19-01216 Marshack v. Hyundai Steel Company
Docket 64
CONTINUED: Hearing Continued to 5/27/2021 at 10:00 a.m., Per Order
Entered 5/17/2021 (XX) - td (5/17/2021)
NONE LISTED -
Debtor(s):
Prime Metals U.S.A., Inc. Represented By Steven Werth
Defendant(s):
Hyundai Steel Company Represented By Philip S Warden
Plaintiff(s):
Richard A Marshack Represented By Ronald S Hodges Robert P Goe Ryan S Riddles
Trustee(s):
Richard A Marshack (TR) Represented By
2:00 PM
D Edward Hays Laila Masud David M Goodrich Robert P Goe David Wood
1:30 PM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
1:30 PM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
1:30 PM
Docket 22
NONE LISTED -
Debtor(s):
John R Godlewski Represented By Julie J Villalobos
Joint Debtor(s):
Ashley Godlewski Represented By Julie J Villalobos
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 1
OFF CALENDAR: Order Dismissing Case for Failure to File Schedules, Statements, and/or Plan Entered 4/1/2021 - td (5/4/2021)
Debtor(s):
Ray Radulescu Pro Se
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 12
NONE LISTED -
Debtor(s):
Arnulfo Alatorre Pro Se
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
NONE LISTED -
Debtor(s):
Aaron Gail Espiritu Represented By
Ethan Kiwhan Chin
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 21
NONE LISTED -
Debtor(s):
Ronaldo Marquez Represented By Stephen L Burton
Joint Debtor(s):
Cristina Marquez Represented By Stephen L Burton
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 13
OFF CALENDAR: Order of Dismissal Arising from Debtor's Request for Voluntary Dismissal of Chapter 13 Entered 5/6/2021 - adm (5/6/2021)
Debtor(s):
Robert G Campoy Represented By Chris T Nguyen
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 6
NONE LISTED -
Debtor(s):
Jennifer Kay LaBounty Represented By Jacqueline D Serrao
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 28
OFF CALENDAR: Debtor's Notice of Conversion of Bankruptcy Case from Chapter 13 to Chapter 7 filed 5/14/2021; Case Converted to Chapter 7 - td (5/14/2021)
Debtor(s):
Alan Dickinson Represented By Christopher J Langley
Trustee(s):
Weneta M.A. Kosmala (TR) Pro Se
1:30 PM
Docket 2
NONE LISTED -
Debtor(s):
John Benyamin Represented By James G. Beirne
Joint Debtor(s):
Jacklin Bettaryouren Represented By James G. Beirne
Movant(s):
John Benyamin Represented By James G. Beirne
Jacklin Bettaryouren Represented By James G. Beirne
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 19
NONE LISTED -
Debtor(s):
Michael Collins Represented By Douglas A. Crowder
Joint Debtor(s):
Lyann Courant Represented By Douglas A. Crowder
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
NONE LISTED -
Debtor(s):
Roman Israel Pacheco Represented By David Lozano
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 31
NONE LISTED -
Debtor(s):
Shantel Higgs Oloju Represented By Bert Briones
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
NONE LISTED -
Debtor(s):
Julio Cesar Pichardo Represented By Christopher J Langley
Joint Debtor(s):
Rocio Pichardo Represented By Christopher J Langley
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 58
NONE LISTED -
Debtor(s):
Karolynne Johnson Represented By Julie J Villalobos
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 36
NONE LISTED -
Debtor(s):
Maria Guadalupe Canales Represented By Daniel King
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 68
NONE LISTED -
Debtor(s):
Ellie Elape Lam Represented By Christopher J Langley Michael Smith
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 42
NONE LISTED -
Debtor(s):
Zeta Jayectin Besas Represented By
Hasmik Jasmine Papian
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 49
NONE LISTED -
Debtor(s):
Francine Rosu Represented By Julie J Villalobos
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 1-26-21; 2-23-21; 4-27-21
Docket 50
NONE LISTED -
Debtor(s):
Richard Thomas McPhee Represented By Christopher J Langley
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 4-27-21
Docket 42
NONE LISTED -
Debtor(s):
Mary Guenther Represented By Timothy McFarlin
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 61
NONE LISTED -
Debtor(s):
Kayleen R Hittesdorf Represented By Julie J Villalobos
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 113
NONE LISTED -
Debtor(s):
John M. MacDonald Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 59
OFF CALENDAR: Order on Debtor's Motion to Convert Case Under 11
U.S.C. §§706(a) or 1112(a) Entered 5/21/2021; Case Converted from Chapter 13 to Chapter 7 - td (5/21/2021)
Debtor(s):
Hong-Hai Thi Tran Represented By Brian J Soo-Hoo
Movant(s):
Amrane (SA) Cohen (TR) Pro Se
Trustee(s):
Richard A Marshack (TR) Pro Se
2:30 PM
FR: 10-27-20; 11-24-20; 12-18-20; 1-26-21; 2-23-21; 4-27-21
Docket 148
NONE LISTED -
Debtor(s):
Giuseppe Galietta Represented By Joseph A Weber Fritz J Firman
Joint Debtor(s):
Heldia F. De Galietta Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 79
OFF CALENDAR: Voluntary Dismissal of Motion filed 5/6/21- mp(5/11/21)
Debtor(s):
Jerome W. Harney Represented By Joseph A Weber
Joint Debtor(s):
Jamie L. Harney Represented By Joseph A Weber
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 12-18-20
Docket 41
NONE LISTED -
Debtor(s):
Michael A. Balogh Represented By Joseph A Weber Fritz J Firman
Joint Debtor(s):
Brenda R. Julian Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
9:30 AM
Adv#: 8:19-01155 Kang Family 2007 Revocable Trust v. Kim et al
(Set at SC held 1-14-21)
Docket 1
Debtor(s):
Peter Woo Sik Kim Represented By Andrew S Bisom
Defendant(s):
Peter Kim Pro Se
Sharon Kim Pro Se
Joint Debtor(s):
Sharon Soyun Kim Represented By Andrew S Bisom
Plaintiff(s):
Kang Family 2007 Revocable Trust Represented By
Edmond Richard McGuire
Trustee(s):
Weneta M Kosmala (TR) Represented By Lynda T Bui Rika Kido
9:30 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
9:30 AM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
9:30 AM
Adv#: 8:19-01155 Kang Family 2007 Revocable Trust v. Kim et al
§523(a)(3)(a) and 11 U.S.C. §523(a)(2)(B)
(Set at SC held 1-14-21) FR: 5-26-21
Docket 1
OFF CALENDAR: Order Approving Stipulation for Entry of Judgment and Stipulated Judgment Entered 5/14/2021 - td (5/14/2021)
Debtor(s):
Peter Woo Sik Kim Represented By Andrew S Bisom
Defendant(s):
Peter Kim Pro Se
Sharon Kim Pro Se
Joint Debtor(s):
Sharon Soyun Kim Represented By Andrew S Bisom
Plaintiff(s):
Kang Family 2007 Revocable Trust Represented By
Edmond Richard McGuire
9:30 AM
Trustee(s):
Weneta M Kosmala (TR) Represented By Lynda T Bui Rika Kido
10:00 AM
Docket 48
NONE LISTED -
Debtor(s):
Synrgo, Inc. Represented By
Sean A OKeefe
10:00 AM
Adv#: 8:19-01216 Marshack v. Hyundai Steel Company
FR: 5-20-21
Docket 59
NONE LISTED -
Debtor(s):
Prime Metals U.S.A., Inc. Represented By Steven Werth
Defendant(s):
Hyundai Steel Company Represented By Philip S Warden
Plaintiff(s):
Richard A Marshack Represented By Ronald S Hodges Robert P Goe Ryan S Riddles
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Laila Masud David M Goodrich Robert P Goe David Wood
10:00 AM
Adv#: 8:19-01216 Marshack v. Hyundai Steel Company
(3) Awarding Sanctions Against Hyundai Steel Company FR: 5-20-21
Docket 64
NONE LISTED -
Debtor(s):
Prime Metals U.S.A., Inc. Represented By Steven Werth
Defendant(s):
Hyundai Steel Company Represented By Philip S Warden
Plaintiff(s):
Richard A Marshack Represented By Ronald S Hodges Robert P Goe Ryan S Riddles
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Laila Masud David M Goodrich
10:00 AM
Robert P Goe David Wood
2:00 PM
FR: 5-20-21
Docket 7
NONE LISTED -
Debtor(s):
Synrgo, Inc. Represented By
Sean A OKeefe
2:00 PM
FR: 5-20-21
Docket 8
NONE LISTED -
Debtor(s):
Synrgo, Inc. Represented By
Sean A OKeefe
2:00 PM
FR: 5-20-21
Docket 11
NONE LISTED -
Debtor(s):
Synrgo, Inc. Represented By
Sean A OKeefe
2:00 PM
Docket 28
NONE LISTED -
Debtor(s):
Synrgo, Inc. Represented By
Sean A OKeefe
9:30 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
9:30 AM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
NONE LISTED -
9:30 AM
9:30 AM
Adv#: 8:18-01170 Add2Net, Inc. v. Natzic et al
U.S.C. §523(a)(6)); and (4) Denial of Limited Discharge (11 U.S.C. §524(a)(3)
FR: 12-6-18; 1-24-19; 4-18-19; 6-20-19; 8-22-19; 9-19-19; 12-5-19; 2-20-20;
4-16-20; 7-16-20; 9-17-20; 11-5-20; 1-8-21; 4-1-21
Docket 1
CONTINUED: Status Conference Continued to 7/22/2021 at 9:30 a.m., Per
Order Entered 5/21/2021 (XX) - td (5/21/2021)
June 20, 2019
No tentative ruling. This tentative will be trailed to the 2:00 p.m. calendar along with the Motion to Dismiss
September 19, 2019
In light of the upcoming trial in the state court litigation, continue status conference to December 5, 2019 at 9:30 a.m.; updated status report must be filed by November 21, 2019. (XX)
Note: Appearances at today's hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
9:30 AM
Debtor(s):
George Carl Natzic Represented By Moises S Bardavid
Defendant(s):
George Carl Natzic Pro Se
Cheri Lynn Natzic Pro Se
Joint Debtor(s):
Cheri Lynn Natzic Represented By Moises S Bardavid
Plaintiff(s):
Add2Net, Inc. Represented By
Kevin Meek
Trustee(s):
Thomas H Casey (TR) Pro Se
9:30 AM
Adv#: 8:19-01180 Marshack v. Sweeney et al
FR: 3-5-20; 9-10-20; 12-17-20; 4-1-21
Docket 1
SPECIAL NOTE: Unilateral Notice of Settlement of Matter and Request to Continue Status Conference filed 5/31/2021 - td (6/1/2021)
March 5, 2020
Deadline to file Motions re Default Judgment: April 3, 2020 Discovery Cut-off Date: Aug. 3, 2020
Pretrial Conference Date: Sept. 10, 2020 at 9:30 a.m. (XX)
Deadline to File Joint Pretrial Stipulation: Aug. 27, 2020
Special note: Plaintiff indicates in the Unilateral Status Report that some defendants have responded; however the docket does not reflect the filing of any answers. The court, therefore, assumes such "responses" were informal.
Note: If Plaintiff accepts the foregoing tentative ruling, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
December 17, 2020
9:30 AM
Continue the hearing as a Status Conference to April 1, 2021 at 9:30 a.m.; an updated Status Report must be filed by March 18, 2021 if the adversary proceeding is still pending as of such date. (XX)
Note: Appearances at this hearing are not required; Plaintiff shall serve notice of the continued hearing date/time.
April 1, 2021
In light of pending settlement, continue this hearing to June 3, 2021 at 9:30
a.m. as a holding date; updated status report must be filed by May 20, 2021 if the matter is still pending as of that date. (XX)
Note: Appearances at this hearing are not required; Plaintiff shall serve notice of the continued hearing date/time.
June 3, 2021
Continue as a Status Conference to July 15, 2021 at 9:30 a.m.; updated Status Report must be filed by July 8, 2021 if the adversary has not been dismissed by such date.
Note: Appearances at this hearing are not required.
Debtor(s):
Francis J Marzec Represented By Christine A Kingston
Defendant(s):
Anita Sweeney Pro Se
Tori Sweeney Pro Se
Michael Marzec Pro Se
9:30 AM
Beth Marzec Pro Se
Plaintiff(s):
Richard A Marshack Represented By Anerio V Altman
Trustee(s):
Richard A Marshack (TR) Represented By Anerio V Altman
9:30 AM
Adv#: 8:20-01178 Banning Bench Community of Interest Association, I v. Elieff
FR: 3-11-21
Docket 1
NONE LISTED -
March 11, 2021
Continue Status Conference to June 3, 2021 at 9:30 a.m.; updated Status Report must be filed by May 20, 2021. (XX)
Note: Appearances at this hearing are not required; Plaintiffs to serve notice of the continued hearing date/time.
June 3, 2021
Continue Status Conference to July 15, 2021 at 9:30 a.m.; Court to issue Order to Show Cause why this adversary should not be dismissed for failure of Plaintiff to file an amended complaint by March 25, 2021 as ordered by the court [docket #26]. The hearing on the OSC will be heard on July 15, 2021 at 9:30 a.m.
Note: Appearances at this hearing are not required.
9:30 AM
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson Robert P Goe
Defendant(s):
Bruce Elieff Pro Se
Plaintiff(s):
Banning Bench Community of Represented By
John G McClendon
Highland Springs Conference and Represented By
John G McClendon
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe Claire K Wu
10:00 AM
U.S. BANK N.A.
VS.
DEBTOR
Docket 38
OFF CALENDAR: Order approving APO Entered 6/1/21- mp/td (6/1/21)
NONE LISTED -
Debtor(s):
Christine Martinez Represented By Julie J Villalobos
Movant(s):
U. S. Bank National Association as Represented By
Christina J Khil
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
VS.
DEBTOR
Docket 50
OFF CALENDAR: Movant's Notice of Withdrawal of Motion, filed 5/26/2021 - td (5/26/2021)
NONE LISTED -
Debtor(s):
Kim-Lan T Nguyen Represented By Thinh V Doan
Movant(s):
Community Loan Servicing, LLC Represented By
Jenelle C Arnold
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
KARL AVETOOM VS.
DEBTOR
Docket 56
NONE LISTED -
June 3, 2021
Grant relief from the automatic on the following conditions: 1) Movant must seek a finding from the state court as to whether Debtor agreed on the record to a voluntary lien on the subject property or whether she agreed to the enforcement of the underlying judgment; and 2) Movant may not enforce any lien without further order of the court. The court's Order To Grant Debtor's Motion to Avoid Lien entered on April 28, 2021 [docket #45], which is currently on appeal, remains in full force and effect and is not in any way affected by the granting of this motion for relief from stay. Debtor, along with the chapter 7 trustee, has standing to appear in the hearing in state court regarding the amendment of the subject judgment.
Basis for Tentative Ruling:
The court has closely reviewed the transcript from the July 19, 2019 state court hearing in which the terms of the settlement agreement were read into the record [Exh. 1 to the Motion], the state court's Minute Order of February 13, 2020 [Exh. 2 to the Motion], and the Judgment entered August 13, 2020
10:00 AM
[Exh. 3 to the Motion]. Nothing in any of the documents indicate that Debtor agreed to a consensual lien against the subject property, i.e., independent of the agreement to a judgment that may be enforced by the recordation of a lien against the subject property. That said, this court shall defer to the state court to make that factual determination.
Debtor(s):
Rosa A Fridman Represented By Scott Talkov
Movant(s):
Karl Avetoom Pro Se
Trustee(s):
Karl T Anderson (TR) Represented By Melissa Davis Lowe
10:00 AM
VS.
DEBTORS
Docket 14
NONE LISTED -
June 3, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Emad Eldin Ahmed Elhasany Represented By Kevin J Kunde
Joint Debtor(s):
Noha Abdel Kader Hamad Represented By Kevin J Kunde
10:00 AM
Movant(s):
Financial Services Vehicle Trust Represented By
Marjorie M Johnson
Trustee(s):
Jeffrey I Golden (TR) Pro Se
10:00 AM
VS.
DEBTOR
Docket 8
NONE LISTED -
June 3, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Linda Lindgren Represented By Julie J Villalobos
Movant(s):
AMERICAN HONDA FINANCE Represented By
Vincent V Frounjian
10:00 AM
Trustee(s):
Richard A Marshack (TR) Pro Se
10:30 AM
Docket 133
CONTINUED: Hearing Continued to 7/1/2021 at 10:30 a.m., Per Order Entered 5/12/2021 (XX) - td (5/12/2021)
NONE LISTED -
Debtor(s):
Darryl L. Cazares Represented By
Joseph Arthur Roberts
Joint Debtor(s):
DeAnna J. Cazares Represented By
Joseph Arthur Roberts
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
Docket 119
CONTINUED: Hearing Continued to 6/10/2021 at 10:30 a.m., Per Order
Entered 5/26/2021 (XX) - td (5/26/2021)
NONE LISTED -
Debtor(s):
Eric C. Bryant Represented By Christine A Kingston
Joint Debtor(s):
Gina K Bryant Represented By Christine A Kingston
Trustee(s):
Karen S Naylor (TR) Represented By Thomas H Casey
10:30 AM
Docket 58
NONE LISTED -
June 3, 2021
Deny motion without prejudice. Basis for Tentative Ruling
Service
All creditors were not served as required by FRBP 2002(a)(4). In addition, a supplemental Zoom notice was not served on all creditors.
Merits
In a chapter 11 case, a creditor is only required to file a proof of claim if its claim is not scheduled or is scheduled as disputed, contingent or unliquidated. FRBP 3003(c)(2). Any creditor whose claim does not fall into those categories may elect not to file a proof of claim and will still be treated as a creditor of the estate. Here, Debtor did not schedule any of his debt as disputed, contingent or unliquidated. Accordingly, Movant's position that Debtor only has allowed claims of $2400 is incorrect.
Debtor's schedules show real property with a combined value of approximately $3.7M, leaving potential equity in excess of $1M even assuming post-petition interest, charges etc of $160,000. Movant has not countered the property values with its own evidence.
10:30 AM
Based on the pleadings, conversion to chapter 7 would appear to be in the best interests of all creditors. Chapter 7 trustees are adept at investigating the value of estate assets and employing real estate professionals who are skilled in marketing distressed properties. The court cannot, as urged by Movant, assume that a chapter 7 trustee will be unable to sell the properties simply because Debtor has been unable to do so.
Note: If Movant accepts the tentative ruling, appearance at this hearing is not required.
Debtor(s):
Christopher Summers Represented By
J Scott Williams
10:30 AM
FR: 11-5-20; 2-4-21; 4-1-21; 5-20-21
Docket 1
NONE LISTED -
November 5, 2020
Claims bar date: Jan. 8, 2021 (notice by Nov. 9, 2020)
Deadline to file plan/DS: 1/15/21
Continued Status Conf: Feb. 4, 2021 at 10:30 am (XX) Updated Status Report due: Jan. 21, 2021 (waived if plan/DS timely filed)
Note: Appearance at this hearing is not required if Debtor accepts the foregoing tentative ruling and Debtor is in substantial compliance with the requirements of the U.S. Trustee. It is Debtor's responsiblity to confirm such compliance with the U.S. Trustee prior to the hearing. The court will prepare its own Order re the status conference.
February 4, 2021
Continue Status Conference to April 1, 2021 at 10:30 a.m.; updated Status Report not required. (XX)
Note: Appearance at this hearing is not required.
10:30 AM
Apri 1, 2021
Continue status conference to May 20, 2021 at 10:30 a.m.; updated status report is not required if the amended disclosure statement is timely filed on April 22, 2021. (XX)
Note: Appearances at this hearing are not required.
May 20, 2021
Continue status conference to June 3, 2021 at 10:30 a.m.; updated status report not required. (XX)
Note: Appearances at this hearing are not required.
June 3, 2021
No tentative ruling. Disposition depends on the outcome of #11 on today's calendar.
Debtor(s):
Christopher Summers Represented By
J Scott Williams
10:30 AM
Docket 43
NONE LISTED -
June 3, 2021
Confirm plan -- all applicable requirements of Sections 1129 and 1191(a). Approve abandonment of certain Residual Interests. Post-confirmation Status Conference is set for December 2, 2021 at 10:30 a.m.; a post-confirmation Status Report must be filed by November 18, 2021.
Note: As this matter is uncontested, appearances at the hearing are not required.
Debtor(s):
American Sterling Corporation Represented By Nanette D Sanders
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
FR: 1-7-21
Docket 1
NONE LISTED -
January 7, 2021
Deadline to file plan*: Feb. 16, 2021 Plan Confirmation Hearing/
Continued Status Conference: Apr. 15, 2021 at 10:30 a.m.
Deadline to serve plan/
deadline notices/ballot: Feb. 23, 2021
Deadline for return of ballots/
filing objections to plan: Mar. 23, 2021
Deadline to file confirmation
brief/ballots/ tally analysis Apr. 6, 2021
*The court will not require a disclosure statement. However, the plan must include a brief statement discussing the circumstances precipitating the filing and the purpose of the plan. An updated chapter 11 status report is not required if a plan is timely filed by February 16, 2021.
Special Note: The court does not typically set a deadline for the filing of
10:30 AM
proofs of claim unless a deadline is specifically requested.
Note: If Debtor is in substantial compliance with the requirements of the
U.S. Trustee, accepts the confirmation schedule proposed above, and there have been no significant developments in the case since the status report was filed, appearances at this hearing will not be required. It is Debtor's responsibility to confirm substantial compliance with the
U.S. Trustee in advance of the hearing. The Court will issue its own order re the continuance of the Status Conference.
June 3, 2021
Off calendar in light of confirmation of Subchapter V Plan.
Debtor(s):
American Sterling Corporation Represented By Nanette D Sanders
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
Docket 59
NONE LISTED -
June 3, 2021
Grant the Motion only as to the forced place insurance in the amount of
$1511.70 plus accrued interest claimed thereon; Deny the Motion in all other respects.
Basis for Tentative Ruling
A proof of claim executed and filed in accordance with the Federal Rules of Bankruptcy Procedure 3001(f) constitutes prima facie evidence of the validity and amount of the claim. See Rule 3001(f); In re Lundell, 223 F.3d 1035, 1039 (9th Cir. 2000). Therefore, a proof of claim will be deemed allowed unless a party in interest objects. Lundell, 223 F.3d at 1039. Once a party in interest objects, the proof of claim will still provide some evidence as to its validity and amount, and will be strong enough to carry over a mere formal objection without more. Id. Thus, a party objecting to a claim must present affirmative evidence to overcome the presumption of its validity by showing "facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claims." Id. (citing In re Holm, 931 F.2d 620, 623 (9th Cir. 1991); In re King Street Inv., Inc., 219 B.R. 848, 858 (BAP 9th Cir.
1998). If the objector produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, then the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Lundell, 233 F.3d at 1039. The ultimate burden of persuasion remains at all times upon the claimant. Id.; Holm, 931 F.2d 620 (9th Cir.
10:30 AM
1991). Under 11 U.S.C. § 502(b)(1), a proof of claim shall be disallowed if it is "unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unmatured."
Under 11 U.S.C. § 502(b)(1), Debtor objects to the portion of the Claim that seeks default interest, fees, and other improper charges in excess of
$323,703.71 ("Motion")[dkt. 59] and ("Reply")[dkt. 82]. Accordingly, Debtor argues that the interest charges should be limited to the contract rate of 10.5% per annum, which would allow for 12 months additional interest at
$10,937.50 per month or a total of $131,250 in total interest, plus principal of
$1,250,000 and foreclosure fees and expenses of $10,910.56 for a total reduced allowed claim of $1,392,160.56. Green Rock Opposes the Motion ("Opposition")[dkt. 77].
As the Claim is entitled to prima facie validity, Debtor is required to present affirmative evidence to overcome this presumption of validity. Debtor has failed to do so. Debtor argues that the Note is ambiguous as to whether the Default Interest Addendum is part of the Note because the Default Interest Addendum was executed by Nguyen in his individual capacity only, the Note and the Default Interest Addendum do not cross reference each other, and Nguyen was listed as the "borrower" on the first page of the Default Interest Addendum. See Mot., 4-7 and Ex. A (Ex. 1, p. 12-16 bates stamp). Relying on Civil Code § 1649 ("If the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it."), Debtor contends that the court should construe the note as Nguyen understood it, and against Green Rock as the drafter of the Note and Default Interest Addendum, and that Nguyen understood that the Default Interest Addendum was not part of the Note but rather part of his discussions to act as co-borrower and guarantor of the loan. See Mot., 2:26-3:6. This argument is unpersuasive for several reasons, however, even assuming that the listing of Nguyen as "borrower" on the Default Interest Addendum creates an ambiguity. First, the signature block of the Default Interest Addendum clearly identifies Nguyen as the "Manager" for Debtor and the "borrower" in the signature block is Debtor. This indicates that it was the intention of both Debtor and Nguyen that Debtor was to be the
10:30 AM
sole borrower since there is no separate signature line for Nguyen individually. Second, the signature block for the Default Interest Addendum matches the signature block for all of the other documents executed, including the Note. Next, both the Note and the Default Interest Addendum were dated August 1, 2019 which indicates that the documents were executed as part of the same transaction. The Note and Default Interest Addendum are the fourth round of loan documents executed by Debtor who executed similar documents in October 2017, May 2018, and November 2018. These earlier loan transactions also listed Nguyen as the "borrower" in the default interest addendum, but there is no testimony that Nguyen contested those prior default interest addendum becoming part of the underlying promissory notes. This indicates that the parties at all times intended the default interest addendums to be part of the underlying promissory notes under the four rounds of loan documents executed.
Finally, Nguyen’s testimony does not state that he ever actually borrowed money from Green Rock. Nguyen testified that he had "discussions" and "executed a number of documents" but no such other documents are provided by Debtor. See Mot., 12, ¶¶8-9. This is significant because without any promissory note executed by Nguyen in his individual capacity, there is no other promissory note that the Default Interest Addendum relates to other than the Note.
Relying on In re Crystal Properties, Ltd., L.P., 268 F.3d 743, 750 (9th Cir. 2001), Debtor argues that the default interest provisions of the Default Interest Addendum were not triggered because the loan was not accelerated before it matured on March 1, 2020. See Mot., 7-8. Importantly, the default interest provision is not tied to the acceleration clause; rather, the default interest rate is automatically triggered by Debtor’s default under the Note. In Crystal Properties, the relevant language stated that "[s]hould default be made in any payment provided for in this note, ... at the option of the holder hereof and without notice or demand, the entire balance of principal and accrued interest then remaining unpaid shall become immediately due and payable, and thereafter bear interest, until paid in full, at the increased rate...." Id. at 753. Thus, only after lender accelerated the loan could the default interest "thereafter" begin to accrue in Crystal Properties. Unlike that case, in section 2 of the Default Interest Addendum, an event of default gives Green Rock the option to accelerate the loan but there is no mention of
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default interest in that section. In section 3 of the Default Interest Addendum, the default interest "shall automatically" start to accrue upon any event of default. See Mot., Ex. A (Ex. 1, p. 12 bates stamp). Thus, the triggering event for the default interest provision in this case was drafted differently from Crystal Properties and the Ninth Circuit recognized in Crystal Properties that parties could draft different "triggering" events for default interest. Crystal Properties, supra, at 754 (listing cases). The Note unambiguously describes the nonpayment of any monthly payment as a default. "If I do not pay the full amount of each monthly payment on the date it is due, I will be in default." Mot., Ex. A (Ex. 1, p. 6 bates stamp). Debtor defaulted on its January 2020 payment after prepaying interest for October – December 2019. See Opp’n, 9 and 13-14. Accordingly, the Note and Default Interest provided that default interest of 20.875% began after section 3 of the Default Interest Addendum was "triggered" by Debtor’s failure to pay the January 2020 payment. Whether the loan was accelerated before the maturity date of March 1, 2021 is not relevant in this case because the default interest provision is not connected to the acceleration clause.
Debtor’s other arguments regarding the attorney fee provision and appraisal are overruled because the plain terms of the Note- which Debtor admits are valid- provides for the inclusion of attorney fees to Green Rock and the appraisal is a litigation expense incurred by Green Rock. See Mot., 8-9; Opp’n, 10-12. Debtor’s argument that this provision was not "triggered" because there as no payment default is erroneous because, as discussed above, Debtor defaulted under the Note by failing to make the January 2020 payment.
In sum, with regard to the default interest, attorney fee provision and appraisal, Debtor has failed to rebut the prima facie validity of the Claim and the Motion is partially denied. With regard to the forced place insurance amount of $1,511.70 plus 20.875% monthly interest, Debtor has successfully rebutted the prima facie validity of the Claim. Debtor has provided a copy of an insurance policy for the Fisher Lane Property that was valid from September 4, 2020 to September 4, 2021. Green Rock is claiming forced placed insurance from February 19, 2021 to April 6, 2021. See Mot., Ex. A (Ex. 7, p. 122 bates stamp). Debtor has therefore presented affirmative evidence showing that Fisher Lane Property was insured and that there was
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no need for Green Rock to force place insurance thereby shifting the burden of persuasion onto Green Rock. See Mot., 9:13-15. Because the Opposition is silent on this point, Green Rock has failed to carry its burden to prove the ultimate validity of the $1,511.70 plus 20.875% monthly interest claimed for forced placed insurance. See generally, Opp’n.
Debtor(s):
Chase Merritt Global Fund LLC Represented By
W. Derek May
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
Docket 33
NONE LISTED -
June 3, 2021
Sustain the objection. For purposes of plan confirmation, the Claim is estimated at $0.00 pursuant to 11 U.S.C. 502(c)(1)
Basis for Tentative Ruling
A proof of claim executed and filed in accordance with FRBP 3001(f) constitutes prima facie evidence of the validity and amount of the claim. Rule 3001(f); Lundell v. Anchor Const. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). Therefore, a proof of claim will be deemed allowed unless a party in interest objects. Lundell, 223 F.3d at 1039. A party who seeks to defeat a claim must provide sufficient evidence and show facts which have probative force equal to that of the "allegations of the proofs of claims themselves." Id. at 1039. Once a party in interest objects, the proof of claim will still provide some evidence as to its validity and amount, and will be strong enough to carry over a mere formal objection without more. Id. Thus, a party objecting to a claim must present affirmative evidence to overcome the presumption of its validity by showing "facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claims." Id. (citing In re Holm, 931 F.2d 620, 623 (9th Cir. 1991); In re King Street Inv., Inc., 219 B.R. 848, 858 (BAP 9th Cir. 1998). If the objector produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, then the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Lundell, 233 F.3d at 1039. The ultimate
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burden of persuasion remains at all times upon the claimant. Id.; Holm, 931 F.2d 620 (9th Cir. 1991).
In this matter, Debtors have provided sufficient evidence to negate personal liability for the $900k claim through the Memorandum of Understanding attached to the proof of claim which clearly indicates the agreement between the corporate entity Advantage Manufacturing Inc and Claimant. The ultimate burden of persuasion then shifted to Claimant.
Claimant has not met its ultimate burden of proof based on the following:
Allegations in a complaint do not constitute evidence.
Statements based on information and belief do not constitute evidence.
Claimant has presented a 182-page deposition of Debtors' accountant, Elaine Han, without even marking the testimony that it believes somehow supports a finding of alter ego. See LBR 7030-1(b)(2) (requiring the marking of testimony offered in a contested hearing).
In sum, Claimant has provided no evidence of alter ego liability.
Pursuant to Bankruptcy Code Section 502(c)(1), this court must estimate, for purpose of allowance for plan confirmation purposes, "any contingent or unliquidated claim, the fixing or liquidation of which, as the case may be, would unduly delay the administration of the case;" See, In re Corey,
892 F.2d 829, 834 (9th Cir. 1989). The discretion of the court in this regard is broad. Id.
Though Claimant provides no information re the status of the case pending in District Court, it appears the case was filed more than three years ago in 2017 and is not yet ready for trial (jury trial demanded). Debtors have listed numerous other creditors, including the IRS. As the litigation in District Court could take several months to years, such a delay would unduly delay the administration of this chapter 13 case. Accordingly, based on the lack of
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evidence presented in support of the alter ego claim, the court determines that, for plan confirmation purposes, the amount of the claim is estimated at zero. Obviously, Debtors' discharge could be adversely affected if they are later determined to be liable in the District Court action.
Debtor(s):
Michael Collins Represented By Douglas A. Crowder
Joint Debtor(s):
Lyann Courant Represented By Douglas A. Crowder
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
Docket 12
NONE LISTED -
June 3, 2021
Approve the application. Overrule objections thereto. Basis for Tentative Ruling:
Neither the objections raised by Debtor or Lawrence Remsen state grounds sufficient to deny the Application. The court incorporates by reference the Trustee's analysis in the Application and Reply.
Special Note: The court is aware that on May 31, 2021 Debtor filed a motion to convert the case to chapter 13, which is set for hearing on July 1, 2021.
The filing of the Motion does not moot the Application or this hearing.
Debtor(s):
Alicia Marie Richards Pro Se
Trustee(s):
Richard A Marshack (TR) Pro Se
10:30 AM
Docket 18
NONE LISTED -
June 1, 2021
Approve Application to Employ Real Estate Agent. Overrule Objections except with respect to paragraph 7 of Trustee’s Addendum to Exclusive Authorization and Right to Sell Agreement which erroneously include the name of a bankruptcy estate unrelated to this case.
Basis for Tentative Ruling
Under 11 U.S.C. § 327(a), a professional may not be employed by a trustee unless the professional does not "hold or represent an interest adverse to the estate, and that are disinterested persons" and may assist the trustee in carrying out the trustee’s duties. To be a "disinterested person," the professional person cannot be a creditor, equity security holder, insider, or an investment banker for any outstanding security of the debtor. 11 U.S.C. § 101(14). Here, the Firm is qualified to represent Trustee as special counsel based on the Firm’s specialized experience in family law and bankruptcy law. See App., 6, ¶¶ 2-4 (C. Yoshikane Decl.). Employment of the Firm is in the best interest of creditors because Agent will assist Trustee in monetizing the estate’s interest in the Property by marketing and selling the Property.
Agent’s proposed compensation of 5.8% of the purchase, with 2.9% to be shared with any buyer’s agent, is reasonable given the fact that Agent has agreed that the estate must net as much. Agent is also "disinterested person" within the meaning of § 101(14) because Agent represents no
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interest which would be adverse to Debtors, the estate, creditors, or any party in interest in this proceeding. See App., 6-7, ¶¶ 8-10.
The Objections are overruled for several reasons. First, Debtor’s argument that the Application as being premature because there are no valid claims to pay due to Debtor’s cross-claims against creditors is without merit because a review of the Claims Register indicates that there are already two claims filed by Merrick Bank and Eugene Zech in the total amount of
$70,869.01. See FRE 201(c)(1) and (d)(" The court…may take judicial notice on its own… at any stage of the proceeding. "); In re Blumer, 95 B.R. 143, 146 (BAP 9th Cir. 1988)("It is well established that a court may take judicial notice of its own records..."); Reply, 4. These two claims are presumptively valid under § 502 since there have been no objections to those filed claims and because the claims bar of August 10, 2021 has not yet passed, other claims may still be filed. Debtor’s objection to the reasonableness of Agent’s proposal to incur up to $15,000 to repair and prepare the Property for marketing is also overruled because such expenses will remain subject to court approval. There is also no evidence that Agent is engaged in any house flipping scheme. These unsupported allegations are insufficient to rebut the discretion provided to chapter 7 trustees to select their own professionals.
See Reply, 5-7. Accordingly, the Application is approved.
The court will sustain Debtor’s objection to paragraph 7 of Trustee’s Addendum to Exclusive Authorization and Right to Sell Agreement ("Addendum"), however, because it includes a reference to the bankruptcy estate of "Igor Shabanets" which appears to be a typographical error. See App., Ex. 1, 12, ¶ 7. Thus, paragraph 7 of the Addendum will be interlineated to refer to the bankruptcy estate of Alicia Marie Richards.
Special Note: The court is aware that on May 31, 2021 Debtor filed a motion to convert the case to chapter 13, which is set for hearing on July 1, 2021.
The filing of the Motion does not moot the Application or this hearing.
Debtor(s):
Alicia Marie Richards Pro Se
10:30 AM
Trustee(s):
Richard A Marshack (TR) Pro Se
2:00 PM
FR: 4-15-21
Docket 51
NONE LISTED -
April 15, 2021
Deny Motion.
A more detailed tentative ruling may be posted at any time prior to the hearing.
Debtor(s):
The Source Hotel, LLC Represented By Ron Bender Juliet Y Oh
2:00 PM
SHADY BIRD LENDING, LLC VS.
DEBTOR FR: 4-22-21
Docket 62
NONE LISTED -
April 22, 2021
Continue hearing to June 3, 2021 at 2:00 p.m., same date and time as the hearing on Movant's motion to excuse the state court receiver from the turnover requirements of 11 U.S.C. Section 543. Ordinary 21/14/7 briefing deadlines under LBR 9013-1 apply. (XX)
Special Note:
Tentative ruling for 6/3/21: Based on the evidence presented thus far, the court is inclined to deny the Motion due to the lack of evidence that the property has declined in value since the petition date and the lack of evidence to refute the owner's opinion as to the value of the property. Despite the tentative ruling, the court declines to rule at today's hearing or to entertain oral argument because it would like to view the Motion in the context of the turnover motion.
2:00 PM
Additional note to the parties: In this court, pleadings rife with snide, petty, snarky hyperbole is unpleasantly distracting and degrades the quality of one's argument and position.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required.
Debtor(s):
The Source Hotel, LLC Represented By Ron Bender Juliet Y Oh
Movant(s):
Shady Bird Lending, LLC Represented By Daniel A Lev Ronald N Richards
9:30 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
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Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
NONE LISTED -
9:30 AM
Adv#: 8:19-01122 M.G.B. Construction, Inc. v. Duerscheidt
FR: 9-12-19; 11-7-19; 12-12-19; 6-11-20; 9-17-20; 12-17-20; 1-21-21
Docket 1
NONE LISTED -
September 12, 2019
Continue Status Conference to November 7, 2019 at 9:30 a.m. (XX)
A motion for default judgment may self-calendared for the same date/time as the continued Status Conference date. Alternatively, the motion may be filed without a hearing pursuant to the procedure set forth in Local Bankruptcy Rule 9013-1(o).
The motion for default judgment, supported by evidence, must be served on defendant and defendant's counsel in accordance with Local Rule 9013-1(d).
If the motion for default judgment is not heard by the continued date of the Status Conference, THE ADVERSARY MAY BE DISMISSED at the Status Conference for failure to prosecute.
Note: Appearance at today's Status Conference is not required; Plaintiff to serve notice of the continued hearing date/time.
November 7, 2019
9:30 AM
Answer timely filed. Continue status conference to December 12, 2019 at 9:30 a.m.; joint status report must be filed by December 3, 2019. (XX)
Note: If both parties accept the foregoing tentative ruling, appearances at today's hearing are not required.
December 12, 2019
Discovery Cut-off Date: May 1, 2020
Pretrial Conference Date: Jun. 11, 2020 at 9:30 a.m. (XX) Deadline to File Pretrial Stipulation: May 28, 2020
Special Note: A 727 denial of discharge adversary cannot be settled for the benefit of a single creditor but, rather, settlement proceeds must be turned over to the chapter 7 trustee for distribution to all creditors. In re de Armond, 240 B.R. 51 (Bankr.C.D.Cal.1999).
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
June 11, 2020 [UPDATED TO REFLECT LATE FILED PLEADING]
Continue the Pretrial Conference to September 17, 2020 at 9:30 a.m.;amended pretrial stipulation must be filed by September 3, 2020 or sanctions will be imposed on counsel for both parties. Any pretrial motions must be filed by or before July 10, 2020 so that they can be heard no later than August 20, 2020 at 10:30 a.m.. The amended pretrial stipulation should address the comments of the court in its tentative ruling and also whether each party wishes to submit direct testimony by declaration in advance of the trial in accordance with this court's Trial Procedures (see court's website) or if they prefer all live direct testimony. (XX)
Court's Comments
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The Contested Issues of Law do not cite to a single statute applicable to the denial of discharge, e.g., 727(a)(2) or 727(a)(4).
The Contested Issues of Law do not state with specificity the how/when of the alleged false oaths, concealment of property interests, income, etc. See Pretrial Stipulation at pp. 8-10 and compare with Complaint at pp. 2-6.
Contrary to the representations in the Pretrial Stipulation, the parties are not ready for trial: Plaintiff indicates it intends to seek leave to amend the Complaint and to re-open discovery, whereas Defendant indicates she intends to seek to suspend the adversary proceeding pending her criminal trial. Such pretrial motions are not consistent with readiness for trial. Pretrial motions must be filed by the deadline noted above, i.e., no later than July 10, 2020.
Note: If both parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiff shall lodge an order consistent with the same.
December 17, 2020
The Joint Pretrial Stipulation filed on 12/12/20 is approved. Unless a pary requests otherwise, the court's ordinary procedures requiring direct testimony by declaraton (exclusive of adverse or rebuttal testimony) will apply.
January 21, 2021 (Modified since original posting)
Set trial for June 23-25, 2021 at 9:00 a.m.; direct testimony by declaration (see the court's trial procedures re direct testimony set forth on the court's website). Set Trial Procedures Conference for May 6, 2021 at 9:30 a.m.
Comments:
The parties are to appear and advise the court of any stipulations re the
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authentication and/or admission of certain exhibits, particularly those requiring testimony by a custodian or records.
The purpose of the Trial Procedures Conference is to go over trial logistics in a remote, Zoom environment. The court will issue its own Order Establishing Remote Trial Procedures in advance of the Trial Procedures Conference.
Note: Appearances at this hearing are required.
June 10, 2021
The parties are to appear and advise the court of the status of this matter. Basis for Tentative Ruling
Parties to advise the court re the status of stipulations re the admission of documents, specifically the Wells Fargo letter that was still an issue as of the last hearing.
Whether the parties prefer a virtual Zoom hearing on the currently scheduled dates of July 28, 29 and 30, 2021 or an in-person trial on
If the parties prefer the virual Zoom trial, a trial procedures hearing may be set for July 21, 2021 at 1:30 p.m. to address any techical issues such as the electronic submission of evidence, screen sharing, etc.
Debtor(s):
Cassandra Dean Duerscheidt Represented By Brian J Soo-Hoo
Defendant(s):
Cassandra Dean Duerscheidt Pro Se
9:30 AM
Plaintiff(s):
M.G.B. Construction, Inc. Represented By Scott A Kron
Trustee(s):
Weneta M Kosmala (TR) Pro Se
9:30 AM
Adv#: 8:19-01157 Caraveo et al v. Ra
FR: 10-17-19; 4-16-20; 7-16-20; 10-22-20; 2-4-21
Docket 1
OFF CALENDAR: Order Granting Plaintiff's Voluntary Dismissal of Adversary Proceeding, Without Prejudice Entered 5/26/2021 - td (5/26/2021)
October 17, 2019
Discovery Cut-off Date: Mar. 16, 2020
Deadline to Attend Mediation: Feb. 7, 2020
Pretrial Conference Date: Apr.16, 2020 at 9:30 a.m. (XX)
Deadline to File Joint Pretrial Stipulation: Apr. 2, 2020
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required; Plaintiff to lodge a scheduling order within 7 days of the hearing.
Debtor(s):
Joseph Ra Represented By
David B Golubchik
9:30 AM
Jaenam J Coe
Defendant(s):
Joseph Ra Represented By
Jaenam J Coe
Plaintiff(s):
Marcelo Caraveo Represented By Christopher Barry
Holy Shirts and Pants, LLC Represented By Christopher Barry
Early Bird Restaurant, LLC Represented By Christopher Barry
Trustee(s):
Richard A Marshack (TR) Represented By Michael G Spector Thomas J Polis
10:00 AM
vs.
DEBTOR
Docket 53
CONTINUED: Hearing Continued to 7/15/2021 at 10:00 a.m., Per Order
Entered 6/2/2021 (XX) - td (6/2/2021)
NONE LISTED -
Debtor(s):
Khanh Tien Tran Represented By Halli B Heston
Movant(s):
NewRez LLC d/b/a Shellpoint Represented By Robert P Zahradka
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
VS.
DEBTORS
Docket 94
OFF CALENDAR: Order Granting Motion for Relief from the Automatic Stay Under 11 U.S.C. §362 (Settled by Stipulation) Entered 5/26/2021 - td (5/26/2021)
NONE LISTED -
Debtor(s):
Katrina Barrientos Represented By Amanda G. Billyard Andy C Warshaw
Joint Debtor(s):
James Wee Represented By
Amanda G. Billyard Andy C Warshaw
Movant(s):
TD Auto Finance LLC Represented By Jennifer H Wang
10:00 AM
Trustee(s):
Sheryl K Ith
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
RYAL W. RICHARDS VS.
DEBTOR
Docket 34
NONE LISTED -
June 10, 2021
Grant the Motion to allow all matters pending before the family law court EXCEPT matters relating to the sale of the subject Newport Beach real property and/or eviction of Debtor from the property.
Basis for Tentative Ruling:
. Granting relief from the automatic stay to allow family law related litigation to be fully adjudicated in state court is entirely consistent with the law of this circuit. See, MacDonald v. MacDonald (In re MacDonald ), 755 F.2d 715, 717 (9th Cir.1985) ("It is appropriate for bankruptcy courts to avoid incursions into family law matters “out of consideration of court economy, judicial restraint, and deference to our state court brethren and their established expertise in such matters.” ... Schulze v. Schulze, 15 B.R. 106, 109 (Bankr.S.D.Ohio 1981) (granting debtor's wife relief from stay to complete state proceedings for divorce, child custody and property division)".
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The bankruptcy court is a court of limited jurisdiction and cannot be used to avoid state court rulings/orders that a party believes were wrongfully decided or unjust -- the appropriate avenue is the appeal of such rulings or orders. Under 28 U.S.C. 1334(c)(1), this court has the discretion to abstain from hearing matters where 1) state law predominates over bankruptcy issues, 2) there is an existing related proceeding in state court (at either the trial or appellate level), 3) there is no federal jurisdiction other than the filing of the bankruptcy petition, 4) the likelihood that the filing of the bankruptcy case involved forum shopping by the debtor, 5) the presence of nondebtor parties, and 6) the lack of any substantive effect on the administration of the bankruptcy case if absention is exercised. See, In re Tucson Estates, 912 F.2d 1162, 1166-68 (9th Cir. 1990). As the issues to be adjudicated in this case involve all state law issues regarding marital property division and distribution, there is an existing related state court proceeding, there is no federal jurisdiction beyond the filing of the bankruptcy petition, there are affected nondebtor parties, the adjudication in state court will not substantively impact the administration of this estate because this is essentially a two-party dispute between Debtor and her former spouse that cannot be resolved through the chapter 7 case.
Under 11 U.S.C. § 362(a), a bankruptcy filing imposes an automatic stay of virtually all civil litigation against the debtor. A bankruptcy court “shall” lift the automatic stay “for cause.” 11 U.S.C. § 362(d)(1); Tucson Estates, 912 F.2d at 1166. “ ‘Cause’ has no clear definition and is determined on a case-by- case basis.” Id. “Where a bankruptcy court may abstain from deciding issues in favor of an imminent state court trial involving the same issues, cause may exist for lifting the stay as to the state court trial.” Id., citing Piombo Corp. v. Castlerock Props. (In re Castlerock Props.), 781 F.2d 159, 163 (9th Cir.1986).
Contrary to Debtor's assertions, Movant has standing to bring the Motion as he is a party in the family law marital dissolution matters.
Relief from the automatic stay will not be allowed for the purpose of selling or otherwise taking control over the real property, irrespective of any outstanding state court orders. The property is now property of the bankruptcy estate under the exclusive control of the chapter 7 trustee who has exclusive authority to sell the property, subject to any community property
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interest of Movant. 11 U.S.C. 541(a). Indeed, this court approved the chapter 7 trustee's application for the employment of a real estate broker to sell the subject property at a hearing held on June 3, 2021. While the state court may determine the respective interest of Movant and Debtor according to California law, the sale of the property is under the control of the chapter 7 trustee and, therefore, relief from stay is not granted for that purpose.
Similarly, relief from stay is not granted for the purpose of evicting Debtor from the property -- only the chapter 7 trustee has authority to demand turnover of the property from Debtor.
Debtor(s):
Alicia Marie Richards Pro Se
Movant(s):
Ryal W. Richards Represented By Kevin E Robinson
Trustee(s):
Richard A Marshack (TR) Pro Se
10:00 AM
VS.
DEBTOR
Docket 22
NONE LISTED -
June 10, 2021
Continue hearing to July 1, 2021 to allow Movant to correct defective service -- Debtor was not served with the Motion as required by Local Bankruptcy Rule 4001-1(c)(1)(C). Service must be completed this date.
Special Note: Tentative ruling for 7/1/21 hearing (if unopposed): Grant with 4001(a)(3) waiver; deny request for annulment of other extraordinary prospective relief (i.e., relief request #s4, 7, 9, 210, and 11). Movant has not identified any actions taken postpetition that would warrant annulment, nor has Movant stated any grounds for prospective or in rem relief.
Note: If Movant accepts the foregoing tentative ruling, appearance at this hearing is not required.
Debtor(s):
Barry M Schleider Represented By Christopher C Barsness
10:00 AM
Movant(s):
1520 Nutmeg LP Represented By Steven A Fink
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
VS.
DEBTOR
Docket 12
NONE LISTED -
June 10, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Linda Lee Rock Pro Se
Movant(s):
Credit Union of Southern California Represented By
Karel G Rocha
Trustee(s):
Jeffrey I Golden (TR) Pro Se
10:00 AM
10:00 AM
VS.
DEBTOR
Docket 10
NONE LISTED -
June 10, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Mahmoud Hoso Represented By Julie J Villalobos
Movant(s):
TD Auto Finance LLC Represented By Sheryl K Ith
10:00 AM
Trustee(s):
Karen S Naylor (TR) Pro Se
10:30 AM
Adv#: 8:20-01136 Marshack v. Levy et al
FR: 4-8-21
Docket 30
OFF CALENDAR: Order granting stipulation to dismiss case entered 6/10/21- mp/td(6/10/21)
June 10, 2021
It appears this matter has been resolved and is mooted by this Court's Order entered May 12, 2021 in the main case which approves a compromise between the parties. Plaintiff to advise the court if he intends to dismiss this adversary proceeding pursuant to the compromise. If so, he must file a notice of dismissal within 7 days of this hearing. If not, he must appear at today's hearing and advise the court of the status of the settlement.
Debtor(s):
Friendly Village MHP Associates LP Represented By
Howard Camhi
Defendant(s):
Shaoul J. Levy Represented By Howard Steinberg
Levy Affiliated Holdings LLC Represented By
10:30 AM
Howard Steinberg
LEVY FRIENDLY VILLAGE, LLC Represented By
Howard Steinberg
5450 PARAMOUNT LP Represented By Howard Steinberg
Plaintiff(s):
Richard A Marshack Represented By
Shant Kabateck LLP Karnikian Joana Fang
Nineli Sarkissian Brian Kabateck
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Kristine A Thagard Arthur Grebow David Wood Tinho Mang Stefan Perovich
10:30 AM
Adv#: 8:20-01136 Marshack v. Levy et al
FR: 12-10-20; 2-18-21, 4-8-21
Docket 1
OFF CALENDAR: Order granting stipulation to dismiss case entered 6/10/21- mp/td(6/10/21)
December 10, 2020
No tentative ruling -- disposition will depend on the outcome of Defendants' motion to dismiss also set for this date.
June 10, 2021
Same tentative ruling as for #10 on today's calendar.
Debtor(s):
Friendly Village MHP Associates LP Represented By
Howard Camhi
Defendant(s):
Shaoul J. Levy Pro Se
Levy Affiliated Holdings LLC Pro Se
10:30 AM
LEVY FRIENDLY VILLAGE, LLC Pro Se 5450 PARAMOUNT LP Pro Se
Plaintiff(s):
Richard A Marshack Represented By
Shant Kabateck LLP Karnikian Joana Fang
Nineli Sarkissian Brian Kabateck
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Kristine A Thagard Arthur Grebow David Wood Tinho Mang
10:30 AM
Adv#: 8:20-01174 Chicago Title Insurance Company v. Adam
Docket 23
SPECIAL NOTE: Order Granting Defendant, Chandra Marie Adam's Motion to Dismiss Adversary Complaint Entered 5/19/2021 - td (5/19/2021)
June 10, 2021
Deny the Motion on the ground that the subject debt is not consumer debt within the meaning of Section 523(d) of the Bankruptcy Code
Basis for the Tentative Ruling:
The State Court Judgment was not a "consumer debt" under 11 U.S.C.
§ 523(d) for several reasons. First, the State Court Judgment is a unambiguously a judgment based on fraud. See Pl. RJN, Ex. I, p. 2-3 of the Order Granting Summary Adjudication (finding Defendant liable for fraud and conspiracy to defraud). Thus, this case is similar to the Tinajero case where the court found that state court judgment based on fraudulent conduct in a real estate purchase was not a consumer debt for 11 U.S.C. § 523(d).
Tinajero, supra at 1, 8. As noted by the Ninth Circuit BAP, "Tort liability judgments, for example, do not fit within either category of § 101(8)'s definition of a consumer debt." Id. at 7; See Opp’n, 4-7. Next, Defendant’s attempts to frame Defendant’s liability as arising from her HELOC application- a consumer transaction- mischaracterizes the facts of this case. Plaintiff was not the lender under the HELOC; rather, Wachovia was the lender and Plaintiff was the title insurance company. Defendant was therefore only liable
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to Wachovia- not Plaintiff- in 2007 when the HELOC was taken out. Years later, in 2010, the chapter 7 trustee in Defendant’s parents bankruptcy case successfully avoided the postpetition transfer of the deed of trust securing the HELOC by Defendant to Wachovia, and Plaintiff was required to reimburse Wachovia under the title insurance policy. Even at that point, however, Defendant was not liable to Plaintiff. It was only after Plaintiff sued Defendant in state court for fraud and obtained the State Court Judgment that Defendant became liable to Plaintiff. Defendant’s liability to Plaintiff could not have arisen in 2007 when the HELOC was taken out. Third, Defendant has failed to show that Defendant voluntarily incurred her liability for the State Court Judgment because the State Court Judgment was entered against Defendant. See Pl. RJN, Ex. I. Finally, Defendant has failed to explain how the fraud judgment served any "personal, family, or household purpose" when it was entered against Defendant.
Debtor(s):
Chandra Marie Adam Pro Se
Defendant(s):
Chandra Marie Adam Represented By Eugene S Fu
Plaintiff(s):
Chicago Title Insurance Company Represented By
Karen A Ragland
Trustee(s):
Thomas H Casey (TR) Pro Se
10:30 AM
FR: 6-3-21
Docket 119
NONE LISTED -
June 10, 2021
Grant the Motion.
Basis for Tentative Ruling:
Oregon Pacific Bank, trustee of the Pedigo Living Trust (the "Trust") moves for court approval of the waiver executed by debtor Gina Bryant ("Gina") and the Trust waiving Gina’s attorney-client privilege with the Mahaffey Law Group, P.C. ("Mahaffey") ("Motion")[dkt. 119] and ("Reply")[dkt. 136]. See Mot., Ex. 4 (Waiver). Mahaffey opposes the Motion ("Opposition") [dkt. 124]. The purpose of the attorney-client privilege waiver is to allow the Trust and Angela Pedigo (through her guardian and conservator Susan Calzaretta of Rogue Valley Fiduciary Services, LLC) to defend against fee claims filed by Mahaffey in Oregon state court for the total sum of
$113,620.17. Mahaffey has refused to turnover the client files that the Trust requires in order to defend itself in Oregon state court.
Mahaffey does not have standing to oppose the Motion
As preliminary matter, there is an ambiguity as to who Mahaffey’s client is in the retainer agreement because "Client" is defined as debtor Gina Bryant ("Gina") individually and signed by Gina individually, but the scope of
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services appears to pertain to Gina as trustee of the Trust. The scope of services was defined as, "Legal Services for Trustee/Attorney in Fact issues regarding Gina Bryant as successor Trustee and attorney in fact for the Pedigo Living Trust, and Jim and Angela Pedigo." See Mot., Ex. 1 (Retainer agreement). Accordingly, there is an ambiguity over whether Gina, individually or as trustee of the Trustee, was Mahaffey’s client in addition to Angela Pedigo. See Reply 5-7.
In either event, none of his clients appear to have authorized Mahaffey to oppose the Motion. If Gina was Mahaffey’s client, she signed the Waiver and therefore did not authorize Gina. If the Trust was Mahaffey’s client, the Trust also did not authorize Mahaffey to oppose the Motion filed by the Trust. See Reply, 7-8. And the attorney-client privilege is held by the client- not Mahaffey. See U.S. v. Fisher, 692 F.Supp. 488, 494 (E.D.Pa. 1988) ("It is well established that the attorney-client privilege belongs to the client."); see also Devlyne v. Lassen Mun. Utility Dist., 2011 WL 4905672, at *5 (E.D.Cal. 2011); Reply 5-7.
The Waiver is approved as any interest the estate may have in the attorney-client privilege is abandoned
The distinction of whether Gina or the Trust is Mahaffey’s client is important because Mahaffey appears to be mixing the two by seeking payment from the Trust in Oregon state court (who would presumably then be the client and hold the attorney-client privilege) but arguing here that Gina, in her individual capacity, is the holder of the attorney-client privilege that should not be waived. See Reply, 5:27-28; see generally, Opp’n. If Gina was the client, the Trust has no obligation under the fee agreement to pay Mahaffey and Gina, as the holder of the privilege has voluntarily waived the attorney- client privilege in the Waiver. See Reply, 8:7-12. Conversely, if Gina was the client, as trustee of the Trust, the Trust may be liable for the payment of Mahaffey’s fees and the Trust is the holder of the attorney-client privilege.
Further adding to the confusion is that there is a split of authority over whether the Chapter 7 Trustee is the holder of the attorney-client privilege if Gina was the client:
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"Some courts hold that an individual chapter 7 debtor's privileges transfer to
the trustee and the trustee controls the privileges as a matter of law… other courts hold that an individual chapter 7 debtor's privileges do not transfer to the trustee and therefore remain under the debtor's control….And still other courts take a balancing approach which weighs potential harm to the individual chapter 7 debtor by allowing the trustee to control the debtor's privileges against the trustee's need for privileged information in the administration of the estate."
In re Chandar, 2017 WL 5484315, at *1 (Bankr. E.D. Cal. Nov. 13, 2017)(citations omitted); See also In re Miller, 247 B.R. 704, 708 (Bankr. N.D.Ohio 2000) (citing Gresk v. Brown (In re Brown), 227 B.R. 875, 879 (Bankr.
S.D.Ind.1998)) (examining "three approaches to a trustee's power to waive the attorney-client privilege of an individual debtor": "1) the bankruptcy trustee as a matter of law succeeds to the attorney-client privilege; 2) the attorney- client privilege cannot be waived at all by the trustee on behalf of the debtor; and 3) the particular circumstances of the case must be examined to determine the extent of the trustee's power to waive the attorney-client privilege").
To the extent the estate holds the attorney-client privilege with Mahaffey, the Waiver is approved and the Chapter 7 Trustee’s abandonment (via consent to the Waiver) of the attorney-client privilege is approved. See Reply, 8-9 (requesting approval of the Waiver under either Rule 9019 or § 554(b). The court declines to analyze this Motion under Rule 9019 because, as the Trust admits, there has been "no litigation or dispute specifically over the attorney-client privilege between the Estate and the Debtors or the [Trust]." See Reply, 9:2-4. Under 11 U.S.C. § 554(b), "the court may order the trustee to abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate" at the request of a party in interest. Thus, in "order to approve a motion to abandon property, the bankruptcy court must find either that (1) the property is burdensome to the estate or (2) of inconsequential value and inconsequential benefit to the estate." In re Viet Vu, 245 B.R. 644, 647 (BAP 9th Cir. 2000) (citation omitted). Once a bankruptcy court has determined whether "the factual predicates for abandonment ... are present, the court's decision to authorize or deny abandonment is reviewed for an abuse of discretion." Id. (citing In re Johnston, 49 F.3d 538, 540 (9th Cir. 1995)). However, "[a]n order
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compelling abandonment is the exception, not the rule." Viet Vu, 245 B.R. at 647. The party requesting abandonment has the burden of proof under the preponderance of evidence standard. See, id. at 650; 5 Collier on Bankruptcy P 554.02 (16th 2018).
In this case, the attorney-client privilege is of inconsequential value and benefit to the estate because Mahaffey has not filed a claim against the estate. Waiving the privilege, however, is in the best interest of the estate because it helps to preserve the global settlement that was previously approved by the court in which the estate received $50,000 since the waiver of the attorney-client privilege was a settlement term. See Reply, 9-10.
Debtor(s):
Eric C. Bryant Represented By Christine A Kingston
Joint Debtor(s):
Gina K Bryant Represented By Christine A Kingston
Trustee(s):
Karen S Naylor (TR) Represented By Thomas H Casey
10:30 AM
[MARK SHARF, SUBCHAPTER V TRUSTEE]
Docket 101
NONE LISTED -
June 10, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Vantage Point Apparel Software, Inc. Represented By
Michael Jones
Trustee(s):
Mark M Sharf (TR) Pro Se
10:30 AM
[M. JONES AND ASSOCIATES, ATTORNEY FOR DEBTORS]
Docket 107
NONE LISTED -
June 10, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Vantage Point Apparel Software, Inc. Represented By
Michael Jones
Trustee(s):
Mark M Sharf (TR) Pro Se
10:30 AM
Docket 122
TRAILED TO 2:00 PM (XX) - td (6/4/2021)
NONE LISTED -
Debtor(s):
The Source Hotel, LLC Represented By Ron Bender Juliet Y Oh
10:30 AM
Docket 123
TRAILED TO 2:00 PM (XX) - td (6/4/2021)
NONE LISTED -
Debtor(s):
The Source Hotel, LLC Represented By Ron Bender Juliet Y Oh
10:30 AM
Docket 100
NONE LISTED -
June 10, 2021
Continue hearing to July 16, 2021 at 10:00 a.m., same date/time set for evidentiary hearing re the value of the subject property (see tentative ruling for #19 on today's calendar).
Debtor(s):
DEA Brothers Sisters LLC Represented By John H Bauer
10:30 AM
FR: 4-8-21
Docket 18
NONE LISTED -
April 8, 2021
Grant motion on an interim basis on the terms set forth in the Motion, except that no postpetition cash collateral shall be used to pay legal fees, through and including June 10, 2021. All secured creditors will retain their liens in the same priority as existed as of the petition date. A final hearing shall be held on June 10, 2021 at 10:30 a.m.; Debtor must file any supplemental pleadings in support of the Motion by May 20, 2021; any further opposition or response must be filed by May 27, 2021; any reply must be filed by June 3, 2021.
Debtor to self-calendar a hearing on any motion to value property on its own. (XX)
Court's Comments re the Motion and Opposition:
Payment of operating expenses on the property maintains the value of the property to benefit of objecting creditor A&G. A&G's objection to the use of cash collateral to pay utilities, landscaping, repairs, etc. is unreasonable. Moreover, Debtor has offered a replacement lien in the cash collateral expended (in order of priority).
Because net rents are insufficient to pay the contractual payments to the
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senior, 1st position lender, Debtor is not required to apportion the net rents between such senior lender and the junior lender A&G.
A&G has not established a diminution in the value of its interest in the subject property entitling it to adequate protection payments. See US v. Timbers of Inwood Forest, 484 U.S. 365 (1988).
The court accepts Debtor's valuation of the property on an interim basis as it is the only admissible evidence of value that has been presented at this point. As aptly stated in In re Russell, 567 B.R. 833, 840 (Bankr.Mont.2017): "an owner is competent to give his or her opinion on the value of his or her property, most often simply by stating the conclusion without stating a reason. See Hon. Barry Russell, BANKRUPTCY EVIDENCE MANUAL, 2016–2017 ed. § 701:2; South Central Livestock Dealers, Inc. v. Security State Bank of Hedley, Tex., 614 F.2d 1056, 1061 (5th Cir. 1980). While a debtor's estimate of value may be acceptable in certain cases, the Court may give little weight to an opinion if not based upon sufficient facts. In re Plummer, 20 Mont. B.R. 468, 478 (Bankr. D. Mont. 2003). . . ." See also, Fed.R.Evid. 701. A&G's citation to Zillow is, as it has acknowledged, completely inadmissible. It's evidentiary objections to the statement of value by Enayat Ali Jiwani are, therefore, overruled.
A&G's evidentiary objection to the exhibits attached to the Motion on the basis of insufficient authentication are well-taken. Mr. Jiwani's declaration should have specifically addressed and authenticated each exhibit. Proper authentication/personal knowledge/foundation will need to be provided for the final hearing.
The court does not base its decision to grant the motion on an interim basis on the declaration of real estate broker David Pai as Mr. Pai is 1) not the owner of the property and 2) the conclusory declaration does not rise to the level of even a broker's opinion (e.g., no cap rate, comparables, etc.).
Pursuant to LBR 1001-1(a), the court waives the requirement of the use of Statement Regarding Cash Collateral or Debtor in Possession Financing as required by LBR 4001-2(a) in this instance but cautions Debtor's counsel to utilize this form in the future.
10:30 AM
June 10, 2021
Continue hearing to July 16, 2021 at 10:00 a.m., same date/time set for evidentiary hearing re the value of the subject property (see tentative ruling for #19 on today's calendar). Interim use of cash collateral permitted on the same basis as for the April 8, 2021 hearing.
Debtor(s):
DEA Brothers Sisters LLC Represented By Roger J Plasse
10:30 AM
Docket 86
NONE LISTED -
June 10, 2021
This matter needs to be set for an evidentiary hearing re the value of the property due to conflicting testimony. Evidentiary hearing date: July 16, 2021 at 10:00 a.m. via Zoom. All declarants must be present at the hearing for cross examination. The parties are to review the Court's Zoom policy for trials.
Special Note: The court strongly suggests that the parties meet and confer regarding a resolution of the value issue prior to the July 16, 2021 hearing.
Debtor(s):
DEA Brothers Sisters LLC Represented By Roger J Plasse John H Bauer
2:00 PM
FR: 4-15-21; 6-3-21
Docket 51
CONTINUED: Matter Continued to June 17, 2021 at 2:00 pm at Request of Parties (XX)- mp/td(6/10/21)
April 15, 2021
Deny Motion.
Debtor(s):
The Source Hotel, LLC Represented By Ron Bender Juliet Y Oh
2:00 PM
SHADY BIRD LENDING, LLC VS.
DEBTOR
FR: 4-22-21; 6-3-21
Docket 62
CONTINUED: Matter Continued to June 17, 2021 at 2:00 pm at Request of Parties (XX)- mp/td(6/10/21)
April 22, 2021
Continue hearing to June 3, 2021 at 2:00 p.m., same date and time as the hearing on Movant's motion to excuse the state court receiver from the turnover requirements of 11 U.S.C. Section 543. Ordinary 21/14/7 briefing deadlines under LBR 9013-1 apply. (XX)
Special Note:
Tentative ruling for 6/3/21: Based on the evidence presented thus far, the court is inclined to deny the Motion due to the lack of evidence that the property has declined in value since the petition date and the lack of evidence to refute the owner's opinion as to the value of the property. Despite the tentative ruling, the court declines to rule at today's hearing or to entertain oral
2:00 PM
argument because it would like to view the Motion in the context of the turnover motion.
Additional note to the parties: In this court, pleadings rife with snide, petty, snarky hyperbole is unpleasantly distracting and degrades the quality of one's argument and position.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required.
Debtor(s):
The Source Hotel, LLC Represented By Ron Bender Juliet Y Oh
Movant(s):
Shady Bird Lending, LLC Represented By Daniel A Lev Ronald N Richards
2:00 PM
(Trailed from 10:30 am)
Docket 122
CONTINUED: Matter Continued to June 17, 2021 at 2:00 pm at Request of Parties (XX)- mp/td(6/10/21)
NONE LISTED -
Debtor(s):
The Source Hotel, LLC Represented By Ron Bender Juliet Y Oh
2:00 PM
(Trailed from 10:30 a.m.)
Docket 123
CONTINUED: Matter Continued to June 17, 2021 at 2:00 pm at Request of Parties (XX)- mp/td(6/10/21)
NONE LISTED -
Debtor(s):
The Source Hotel, LLC Represented By Ron Bender Juliet Y Oh
9:30 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
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Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
NONE LISTED -
9:30 AM
Adv#: 8:14-01220 Lee et al v. Ciling et al
Preliminary and Permanent Injunction; 7. Conversion; 8. Breach of Fiduciary Duty; 9. Breach of Implied Covenant of Good Faith and Fair Dealing; and 10. Involuntary Dissolution of Defendant Fallbrook Diagnostics, Inc.
FR: 3-12-15; 4-7-15; 6-18-15; 8-18-15; 12-15-15; 4-14-16; 9-1-16; 6-22-17;
8-31-17; 4-12-18; 10-18-18; 12-13-18; 2-12-19; 3-12-19; 6-20-19; 9-19-19;
10-3-19; 11-7-19; 1-30-20; 10-8-20; 2-18-21
Docket 59
NONE LISTED -
November 7, 2019
The status conference will be continued to January 30, 2020 at 9:30 a.m.; joint status report must be filed by January 16, 2020. (XX)
January 30, 2020
Discovery Cut-off Date: June 30, 2020
Deadline to Attend Mediation: Aug. 31, 2020
Pretrial Conference Date: Oct. 8, 2020 at 9:30 a.m. (XX) Deadline to File Joint Pretrial Stipulation: Sept. 24, 2020
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiffs shall serve/lodge a scheduling order consistent with the same.
9:30 AM
October 8, 2020
[Special Notice: This hearing is being conducted by Zoomgov. See the first page of the calendar for today's hearings for participation details.]
Continue as a STATUS CONFERENCE to February 18, 2021 at 9:30 a.m.; an updated Joint Status report must be filed by February 4, 2021.A new pretrial conference will be scheduled at the February 18, 2021 Status Conference. In the meantime, Defendants Sammy and Anke Ciling must provide Rule 26 disclosures to Plaintiff no later than November 9, 2020 and the parties must attend mediation no later than December 18, 2020. (XX)
Basis for Tentative Ruling:
The continued hearing date, February 18, 2021 takes into account the current January 19, 2021 sentencing date of Plaintiff Donald Lee ("Lee").
Defendant Sammy Ciling ("Ciling") has requested dismissal of the adversary proceeding due to the anticipated sentencing of Lee. First, the request is not properly before the court as it was not presented as a noticed motion in accordancee with applicable federal and local rules. Second, absent evidence that a plaintiff is unable to participate in litigation while incarcerated, such incarceration alone is not a basis for dismissal of a civil action. Accordingly, the request for dismissal is denied.
Defendants Ciling and Mrs. Ciling must comply with Rule 26 disclosure requirements.
The attendance at mediation is mandatory. Despite pandemic restrictions, mediations are now routinely conducted by video conference. Therefore, there should be no reason why mediation cannot take place in the timeframe set by the court.
Note: If ALL parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiff shall, within 7 days, lodge an order consistent with the tentative ruling.
9:30 AM
February 18, 2021
Discovery Cut-off Date: April 30, 2021 Deadline to Attend Mediation: March 31, 2021
Pretrial Conference Date: June 17, 2021 at 9:30 am (XX) Deadline to File Pretrial Stipulation: June 3, 2021
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
June 17, 2021
Impose sanctions in the amount of $100 against Plaintiffs' counsel for failure to file a pretrial stipulation as required by Local Bankruptcy Rule 7016-1(b), The court shall issue an order to show cause why this adversary proceeding should not be dismissed due to lack of prosecution.
Basis for Tentative Ruling:
This adversary proceeding appears to be languishing. The parties were ordered to attend mediation by March 31, 2021. However, no notice of the status of the mediation has been filed by any mediator, suggesting that the mediation did not take place. In addition, not only was the pretrial stipulation not filed, Plaintiffs did not even file a status report advising the court of the status of this matter. Finally, this adversary has been pending for several years.
Note: Appearances at this heaaring ARE required.
9:30 AM
Debtor(s):
Donald Woo Lee Represented By
Robert B Rosenstein
Defendant(s):
American Edge Medical Co. Represented By Marc C Forsythe
Turko United LLC Pro Se
Nath Investments Inc. Represented By Marc C Forsythe
My Imaging Center Inc. Represented By Marc C Forsythe
Medical Imaging Rentals, Inc. Represented By Marc C Forsythe
My Imaging Center LLC Pro Se
Lake Elsinore Diagnostics Inc. Pro Se
Temecula Diagnostic Center Inc. Pro Se
Anke Ciling Pro Se
Sammy Ciling Pro Se
Fallbrook Diagnostics Inc. Pro Se
Joint Debtor(s):
Linda Bae Lee Represented By
Robert B Rosenstein
Plaintiff(s):
Donald Woo Lee Represented By
Norma Ann Dawson Robert B Rosenstein
Linda Bae Lee Represented By
9:30 AM
Norma Ann Dawson Robert B Rosenstein
Prime Partners Medical Group, Inc. Represented By
Norma Ann Dawson Robert B Rosenstein
Trustee(s):
Richard A Marshack (TR) Represented By Kyra E Andrassy David Wood
Matthew Grimshaw Nathan F Smith Arturo M Cisneros Norma Ann Dawson Robert S Lawrence Caroline Djang Brett Ramsaur
9:30 AM
Adv#: 8:17-01153 Hinker v. Hinker
FR: 12-14-17; 3-22-18; 3-29-18; 6-21-18; 9-20-18; 12-6-18; 4-18-19; 9-19-19;
12-5-19; 5-21-20; 12-17-20
Docket 1
NONE LISTED -
March 29, 2018
Continue status conference to June 21, 2018 at 9:30 a.m.; updated report re status of state court action must be filed by June 7, 2018. (XX)
Note: Appearances at this hearing are not required; Plaintiff shall serve notice of the continued hearing date/time.
June 21, 2018
Continue status conference to September 20, 2018 at 9:30 a.m.; updated report re status of state court action must be filed by September 7, 2018. (XX)
Note: Appearances at this hearing are not required; Plaintiff shall serve notice of the continued hearing date/time.
September 20, 2018
Continue status conference to December 6, 2018 at 9:30 a.m.; updated status report must be filed by November 29, 2018. (XX)
9:30 AM
Special Note: The status report for December 6, 2018 should provide a substantive update of the status/procedural posture of the state court action.
Note: Appearances at today's hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
December 6, 2018
Continue status conference to April 18, 2019 at 9:30 a.m.; updated joint status report must be filed by April 4, 2019. (XX)
Note: Appearances at today's hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
April 18, 2019
In light of pending state court litigation, continue status conference to September 19, 2019 at 9:30 a.m.; updated status report must be filed by September 5, 2019. (XX)
Note: Appearances at today's hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
September 19, 2019
In light of the upcoming trial in the state court litigation, continue status conference to December 5, 2019 at 9:30 a.m.; updated status report must be filed by November 21, 2019. (XX)
Note: Appearances at today's hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
December 5, 2019
In light of the pending state court matter, continue this Status Conference to May 21, 2020 at 9:30 a.m.; updated Joint Status Report must be filed by May 7, 2020. (XX)
9:30 AM
Note: Appearances at today's hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
May 21, 2020
Continue hearing to December 17, 2020 at 9:30 a.m.; updated joint status report must be filed by December 3, 2020. (XX)
Note: Appearance at this hearing is not required; non appearance at today's hearing shall be deemed acceptance of the tentative ruling. Plaintiff to serve notice of the continued hearing date/time.
December 17, 2020
Due to pending state court litigation, continue the Status Conference to June 17, 2021 at 9:30 a.m.; an updated Joint Status Report must be filed by June 3, 2021. (XX)
Note: Appearances at this hearing are not required; Plaintiff shall serve notice of the continued hearing date/time.
June 17, 2021
In light of the pending state court action, continue the Status Conference to December 16, 2021 at 9:30 a.m.; updated Status Report must be filed no later than December 2, 2021.
Note: Appearances at this hearing re not required; Plaintiff to serve notice of the continued hearing date/time.
9:30 AM
Debtor(s):
Todd Leroy Hinker Represented By
Diane L Mancinelli
Defendant(s):
Todd Leroy Hinker Pro Se
Plaintiff(s):
Christine Hinker Represented By Marc C Forsythe
Trustee(s):
Richard A Marshack (TR) Pro Se
9:30 AM
Adv#: 8:19-01078 Bertrand H Dulac and Georgette C Dulac, Trustees o v. Dulac et al
FR: 7-18-19; 9-19-19; 12-5-19; 2-6-20; 6-4-20; 9-3-20; 11-19-20
Docket 1
SPECIAL NOTE: Status conference set for 6/17/2021 at 9:30 a.m. re: Complaint in intervention - td (11/23/2020)
CONTINUED: Continued to 10/21/2021 at 9:30 a.m. as a Status Conference, Per Order Entered 6/14/2021 (XX) - td (6/14/2021)
July 18, 2019
Continue status conference to September 19, 2019 at 9:30 a.m. to allow the chapter 7 trustee the opportunity to intervene. (XX)
Special Note: It appears the complaint is seeking relief against property of the bankruptcy estate and, therefore, the chapter 7 trustee would be an indispensable party.
Note: If all parties accept the foregoing tentative ruling, appearances at today's hearing are not required and Plaintiff shall serve notice of the continued hearing date/time (including service to the chapter 7 trustee).
September 19, 2019
9:30 AM
Continue status conference to December 5, 2019 at 9:30 a.m.; updated status report must be filed by November 21, 2019. (XX)
Special comment: The court notes that though the Trustee signed the Joint Status Report on 9/17/19, the Trustee dismissed her Complaint in Intervention on 9/16/19.
Note: Appearances at today's hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
December 5, 2019
Continue the Status Conference to February 6, 2020 at 9:30 a.m., same date/time as Status Conference now set for Third Party Complaint. Joint Status Report must be filed by January 23, 2020. (XX)
Note: Appearances at today's hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
February 6, 2020
Continue status conference to June 4, 2020 at 9:30 a.m.; updated joint status report must be filed by May 21, 2020. Any motion for relief from stay and/or abstention must be filed no later than April 16, 2020 and set for hearing no later than May 7, 2020. (XX)
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiffs shall lodge a scheduling order consistent with the same.
September 3, 2020
Continue Status Conference to November 19, 2020 at 9:30 a.m.; updated
9:30 AM
joint status report must be filed by November 5, 2020. (XX)
November 19, 2020
Discovery Cut-off Date: May 14, 2021
Deadline to Attend Mediation: Apr. 2, 2021
Pretrial Conference Date: Jun. 17, 2021 at 9:30 a.m. (XX)
Deadline to File Joint Pretrial Stipulation: Jun. 3, 2021
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
Debtor(s):
Lillian Sikanovski Dulac Represented By Michael Jones Sara Tidd
Defendant(s):
Ronald H. Dulac Pro Se
Lillian Sikanovski Pro Se
Plaintiff(s):
Bertrand H Dulac and Georgette C Represented By
Ronald Appel
Trustee(s):
Weneta M Kosmala (TR) Represented By Erin P Moriarty
9:30 AM
9:30 AM
Adv#: 8:19-01078 Bertrand H Dulac and Georgette C Dulac, Trustees o v. Dulac et al
FR: 2-6-20; 6-4-20; 9-3-20; 11-19-20
Docket 16
SPECIAL NOTE: Status conference set for 6/17/2021 at 9:30 a.m. re: Original Complaint - td (11/23/2020)
CONTINUED: Continued to 10/21/2021 at 9:30 a.m. as a Status Conference, Per Order Entered 6/14/2021 (XX) - td (6/14/2021)
February 6, 2020
Continue status conference to June 4, 2020 at 9:30 a.m.; updated joint status report must be filed by May 21, 2020. Any motion for relief from stay and/or abstention must be filed no later than April 16, 2020 and set for hearing no later than May 7, 2020. (XX)
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiffs shall lodge a scheduling order consistent with the same.
September 3, 2020
Continue Status Conference to November 19, 2020 at 9:30 a.m.; updated joint status report must be filed by November 5, 2020. (XX)
9:30 AM
November 19, 2020
Discovery Cut-off Date: May 14, 2021
Deadline to Attend Mediation: Apr. 2, 2021
Pretrial Conference Date: Jun. 17, 2021 at 9:30 a.m. (XX)
Deadline to File Joint Pretrial Stipulation: Jun. 3, 2021
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff in Intervention shall serve/lodge a scheduling order consistent with the same.
Debtor(s):
Lillian Sikanovski Dulac Represented By Michael Jones Sara Tidd
Defendant(s):
Ronald H. Dulac Pro Se
Lillian Sikanovcki Dulac Pro Se
Plaintiff(s):
Bertrand H Dulac and Georgette C Represented By
Ronald Appel Michael Jones
Trustee(s):
Weneta M Kosmala (TR) Represented By Erin P Moriarty
9:30 AM
Adv#: 8:19-01108 Pipitone v. Choice Motor Credit, LLC
FR: 8-22-19; 10-3-19; 11-21-19; 1-16-20; 8-6-20; 9-10-20; 11-5-20; 12-17-20;
4-22-21
Docket 1
NONE LISTED -
August 22, 2019
Continue Status Conference to October 3, 2019 at 9:30 a.m. (XX)
A motion for default judgment may self-calendared for the same date/time as the continued Status Conference date. Alternatively, the motion may be filed without a hearing pursuant to the procedure set forth in Local Bankruptcy Rule 9013-1(o).
The motion for default judgment, supported by evidence, must be served on defendant and defendant's counsel in accordance with Local Rule 9013-1(d).
If the motion for default judgment is not heard by the continued date of the Status Conference, THE ADVERSARY MAY BE DISMISSED at the Status Conference for failure to prosecute.
Note: Appearance at this hearing is not required; Plaintiff to serve Defendant with notice of the continued status conference date/time.
October 3, 2019
9:30 AM
Continue status conference to November 21, 2019 at 9:30 a.m.; updated status report must be filed by November 7, 2019. (XX)
The status conference is being continued in light of Plaintiff's representations in the status report that some issues have been resolved and that Defendant has hired new counsel to set aside default.
Note: Appearance at this hearing is not required; Plaintiff to serve Defendant with notice of the continued status conference date/time.
January 16, 2020
Discovery Cut-off Date: May 15, 2020
Deadline to Attend Mediation: June 30, 2020
Pretrial Conference Date: Aug. 6, 2020 at 9:30 a.m. (XX) Deadline to File Joint Pretrial Stipulation: July 23, 2020
Special Note: In the JSR, Plaintiff seeks more than 7 months to complete discovery without explanation.
Note: If all parties accept the the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
November 5, 2020
Continue the Pretrial Conference to December 17, 2020 at 9:30 a.m. Plaintiff must file and serve any motion for leave to amend the Complaint by or before November 19, 2020, such that the motion can be decided and/or heard by December 17, 2020. (XX)
Note: If both parties accept the foregoing tentative ruling, appearances at today's hearing are not required.
9:30 AM
December 17, 2020
Continue the Pretrial Conference to April 22, 2021 at 9:30 a.m.; Joint Pretrial Stipulation must be filed by April 8, 2021. (XX)
June 17, 2021
Continue Pretrial Conference one final time to August 19, 2021 at 9:30 a.m. to allow the parties to file an amended Pretrial Stipulation by or before August 5, 2021. Any motion re the Request for Admissions must be filed so that a hearing can be held by or before July 22, 2021 on regular notice.
Basis for Tentative Ruling:
It is not clear that all of the issues of fact set forth in Section B are all really in dispute. Practice Tip: The parties should start each issue of fact with the word "Whether" in order to focus the parties on whether the particular matter is really contested or not. The court has the following comments re a few of the items in Section B to illustrate the point:
Par. 1 - Does Plaintiff dispute that she only made one payment re the Equity Loan?
Par. 1 - Does Plaintiff dispute that the Equity Loan became delinquent on or about December 25, 2017 and remained in default until November 21, 2018?
Par. 3 - Which, if any, party disputes that the Amended Equity Loan includes the provisions set forth in subparagraphs a - d?
Par. 4 - Which, if any, party disputes the facts stated in this paragraph?
Par. 19 - Does Defendant really dispute that Plaintiff's chapter 13 plan was confirmed on May 12, 2019? Or just that it did not receive notice of the same?
9:30 AM
The court declines to go through each and every one of the 53 paragraphs but directs the parties to do so to determine which facts really are in dispute and must be determined at trial.
Note: If both parties accept the foregoing tentative ruling, appearances at this hearing are not required.
Debtor(s):
Alicia K Pipitone Represented By Marc A Goldbach
Defendant(s):
Choice Motor Credit, LLC Represented By
Misty A Perry Isaacson
Plaintiff(s):
Alicia Pipitone Pro Se
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
9:30 AM
Adv#: 8:20-01090 Kosmala v. Szwachowicz
FR: 8-6-20; 11-19-10; 3-4-21
Docket 3
OFF CALENDAR: Order Approving Stipulation for Order Dismissing Adersary Proceeding with Prejudice Entered 5/17/2021 - td
NONE LISTED -
Debtor(s):
Simon Szwachowicz Represented By Matthew C Mullhofer
Defendant(s):
Marta Szwachowicz Pro Se
Plaintiff(s):
Weneta M.A. Kosmala Represented By Reem J Bello
9:30 AM
Trustee(s):
Weneta M Kosmala (TR) Represented By Reem J Bello Ryan W Beall
9:30 AM
Adv#: 8:20-01065 Kosmala v. U.S. Customs and Border Protection
[Set per another summons issued on 7/7/2020]
FR: 9-29-20, Rm 5D; 10-1-20; 12-10-20; 2-11-21; 4-15-21
Docket 1
CONTINUED: Status Conference Continued to 9/30/2021 at 9:30 a.m., Per Order Entered 6/2/2021 (XX) - adm (6/2/2021)
NONE LISTED -
Debtor(s):
Alpha Floors, Inc. Represented By Eric J Fromme
Defendant(s):
U.S. Customs and Border Protection Pro Se
Plaintiff(s):
Weneta M.A. Kosmala Represented By Jeffrey I Golden Reem J Bello Ryan W Beall
9:30 AM
Trustee(s):
Weneta M Kosmala (TR) Represented By Reem J Bello
9:30 AM
Adv#: 8:20-01156 Kosmala v. Xia
(Another Summons Issued 2-3-21) FR: 4-22-21
Docket 1
OFF CALENDAR: Order Granting Motion for Default Judgment Under Local Bankruptcy Rule 7055-1 and Judgment Entered 5/28/2021 - td (5/28/2021)
April 22, 2021
In light of default entered against Defendant on April 9, 2021, continue the Status Conference to June 17, 2021 at 9:30 a.m. (XX)
Special Note:
A motion for default judgment may self-calendared for the same date/time as the continued Status Conference date. Alternatively, the motion may be filed without a hearing pursuant to the procedure set forth in Local Bankruptcy
9:30 AM
Rule 9013-1(o).
The motion for default judgment, supported by evidence, must be served on defendant and defendant's counsel in accordance with Local Rule 9013-1(d). If the motion for default judgment is not heard by the continued date of the Status Conference, THE ADVERSARY MAY BE DISMISSED at the Status Conference for failure to prosecute.
Note: Appearance at this hearing is not required; Plaintiff shall serve Defendant with notice of the continued hearing date/time.
Debtor(s):
Alpha Floors, Inc. Represented By Eric J Fromme
Defendant(s):
Feiyu Xia Pro Se
Plaintiff(s):
Weneta Kosmala Represented By Reem J Bello
Trustee(s):
Weneta M.A. Kosmala (TR) Represented By Reem J Bello
9:30 AM
Adv#: 8:20-01091 Payday Loan, LLC v. Clesceri
(Another Summons Issued 9/17/2020) FR: 12-3-20; 5-20-21
Docket 1
December 3, 2020
Discovery Cut-off Date: Apr. 2, 2021 Deadline to Attend Mandatory Mediation: Mar. 1, 2021
Pretrial Conference Date: May 20, 2021 at 9:30 a.m. (XX)
Deadline to file Joint Pretrial Stipulation: May 6, 2021
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
May 20, 2021
Both parties must appear for today's Pretrial Conference and explain why they have not complied with deadlines ordered in this court's December 3, 2020 Scheduling Order, including the requirement that a Joint Pretrial Stipulation be filed by May 6, 2021.
Basis for Tentative Ruling
This court issued a Scheduling Order on December 3, 2020 ordering as
9:30 AM
follows: 1) March 1, 2021 as the deadline for the parties to attend mandatory mediation, 2) April 2, 2021 as the deadline to complete discovery and 3) May 6, 2021 as the deadline for the filing of the joint pre-trial stipulation.
Apparently, neither party has complied with the court-ordered deadlines. For example, in the unilateral status report filed by Plaintiff on May 6, 2021, Plaintiff indicates that it won't complete discovery until "120 days from conclusion of Status Conference." Today's hearing is not a Status Conference -- it is a Pretrial Conference. No explanation is provided as to why Plaintiff did not complete discovery by April 1, 2021 or whether any discovery has been done since December 3, 2020 (over five months ago).
Defendant filed a separate unilateral Status Report on May 12, 2020 indicating that he has no money and that he has received his bankruptcy discharge. However, lack of money is not a defense to a dischargeability complant and the bankruptcy discharge order did not discharge Plaintiff's claim because Defendant did not list Defendant as a creditor. See Bankruptcy Code Section 523(c)(3)(A).
Note: Appearances at this hearing are required.
June 17, 2021
The court approves the uniliateral pretrial stipulation filed by Plaintiff, except that the issues set forth in Section 3(A) (1) - (4) are issues of fact that should be included in Section 2. The trial date shall be October 25, 2021 at 9:00
a.m. in person in Courtroom 5A unless a party files a request to appear via Zoom by or before September 24, 2021. Except for adverse or rebuttal testimony, direct testimony shall be submitted by declaration in accordance with this court's Trial Procedures (see court website for details).
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required. Plaintiff shall lodge an order consistent with the same within 7 days of today's hearing.
9:30 AM
Debtor(s):
Gary Clesceri Represented By Michael G Spector
Defendant(s):
Gary Clesceri Represented By Michael G Spector
Joint Debtor(s):
Charlene Clesceri Represented By Michael G Spector
Plaintiff(s):
Payday Loan, LLC Represented By Timothy J Silverman
Trustee(s):
Karen S Naylor (TR) Pro Se
10:00 AM
VS.
DEBTOR
Docket 39
CONTINUED: Hearing Continued to 8/19/2021 at 10:00 a.m., Per Order
Entered 6/15/2021 (XX) - td (6/15/2021)
NONE LISTED -
Debtor(s):
Grace Bradshaw Represented By Joon M Khang
Movant(s):
AmeriHome Mortgage Company, Represented By
Robert P Zahradka
Trustee(s):
Weneta M.A. Kosmala (TR) Represented By Erin P Moriarty
10:00 AM
VS.
DEBTOR
Docket 82
NONE LISTED -
June 17, 2021
No tentative ruling -- disposition will depend upon the outcome of motions set for 10:30 a.m. on today's calendar. This matter will be trailed to the 10:30
a.m. calendar.
Debtor(s):
Mehr Group of Companies Holding Represented By
Andy C Warshaw Richard L. Sturdevant
Movant(s):
BCORE RETAIL BROOKHURST Represented By
George B Blackmar
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:00 AM
(OST Entered 6/9/2021)
CAM XI TRUST, its successors and/or assignees vs.
DEBTOR
Docket 20
NONE LISTED -
June 17, 2021
Continue the hearing to July 22, 2021 at 10:00 a.m. to allow Movant to file and serve supplemental evidence re 1) the monthly payment amount, 2) the number of missed payments, and 3) the date of the first default under the promissory note. The supplemental pleading must be filed by June 24, 2021; any opposition by Debtor must be filed and served by July 8, 2021; any reply to the opposition must be filed by July 15, 2021.
Basis for Tentative Ruling
The court is inclined to grant the motion with all extraordinary relief requested in light of 1) the fact that 17 prior bankruptcy cases have been filed affecting this case, 2) The junior lien recorded by Debtor in 2010 includes beneficiaries who are known to the courts in the District for engaging in fraudulent activity concerning distressed real property and 3) Debtor's chapter 13 plan appears to be infeasible as it does not provide for payment in full of the arrearages over 60 months plus payment of current postpetition mortgage payments.
10:00 AM
However, the Motion fails to include the following critical evidence:
The amount of the monthly payment
A ledger that establishes the dates and amount of missed payments
This is information is necessary to determine whether the payments were in default at the time of the reccordation of the 2010 junior deed of trust.
Note: If Movant accepts the tentative ruling, it must provide notice of the continued hearing date/time and the deadlines therein as well as the Zoom notice, including the call-in telephone number information.
Debtor(s):
Urbana Foote Pro Se
Movant(s):
CAM XI TRUST, its successors Represented By Joshua L Scheer Reilly D Wilkinson
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
[POLIS & ASSOCIATES, APLC, CHAPTER 7 TRUSTEE'S SPECIAL LITIGATION COUNSEL]
Docket 519
OFF CALENDAR: Polis & Associates' Withdrawal of its Final Application for Fees and Reimbursement of Expenses as Chapter 7 Trustee's Special Litigation Counsel, filed 6/7/2021 - td (6/7/2021)
NONE LISTED -
Debtor(s):
Commercial Services Building Inc Represented By
Phillip B Greer
Trustee(s):
Karl T Anderson (TR) Represented By
Misty A Perry Isaacson Misty A Perry Isaacson Thomas J Polis
Robert M Dato Jason E Goldstein
10:30 AM
(Set per Order Entered 3/15/2021)
Docket 59
NONE LISTED -
June 17, 2021
Continue the hearing to July 22, 2021 at 10:30 a.m. to allow Debtor to 1) serve, by June 18, 2021, all creditors with the Amended Plan filed [dkt # 74] with notice that the deadline to file an objection to confirmation of the same is July 8, 2021; 2) propose remedies for default under the Amended Plan as required by Bankruptcy Code Section 1191(c)(3).
Basis for Tentative Ruling
The Amended Plan includes a material term change -- the extension of the term from three to five years -- that all creditors did not receive notice of. The court has no way of knowing whether a creditor (other than the two secured creditors) might have filed an objection to the modification of the term.
The Amended Plan does not satisfy 1191(c)(3).
Clarify whether insider claims will be paid pro rata with unsecured creditors.
Note: If the parties accept the tentative ruling, appearances at this hearing are not required.
10:30 AM
Debtor(s):
Beck & Chase Enterprises, Inc. Represented By Jeffrey B Smith
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
FR: 12-3-20; 3-11-21
Docket 1
NONE LISTED -
December 3, 2020
Deadline to file plan*: Feb. 16, 2021
Continued Status Conf: Mar. 11, 2021 at 10:30 a.m. (XX) Updated Status Report due: Feb. 25, 2021 (Debtor); Mar. 4, 2021 (Trustee)
*The court will not require a disclosure statement. However, the plan must include 1) a brief history of Debtor's business operations and the circumstances precipitating the filing; 2) a liquidation analysis; and 3) projections supporting Debtor's ability to make payments during the term of the plan.
Note: If Debtor is in substantial compliance with the requirements of the
U.S. Trustee and there have been no significant developments in the case since the status reports were filed, appearances at this hearing will not be required. The Court will issue its own order re the Status Conference. It is Debtor's responsibility to confirm substantial compliance with the U.S. Trustee in advance of the hearing.
March 11, 2021
10:30 AM
Continue Status Conference to May 6, 2021 at 10:30 a.m. Debtor may schedule a hearing on approval of its plan for the same date/time. If so, a confirmation brief must be filed by or before April 22, 2021.
Special note to Subchapter V Trustee: The court did not require Debtor to file a disclosure statement. See tentative ruling for December 3, 2021.
Note: Appearances at this Status Conference are not required.
June 17, 2021
Continue hearing to July 22, 2021 at 10:30 a.m.; updated Status Report not required.
Note: Appearances at this Status Conference are not required.
Debtor(s):
Beck & Chase Enterprises, Inc. Represented By Jeffrey B Smith
10:30 AM
Docket 60
- NONE LISTED -
June 17, 2020
Continue confirmation hearing to August 5, 2021 at 10:30 a.m. to allow Debtor to address the following issues: feasibility, treatment of Green Rock's claim re default interest in light of this court's June 15, 2021 Order, and entitlement to discharge. Amended Confirmation Brief must be filed by July 15, 2021; responses by July 22, 2021; reply by July 29, 2021. In addition, the parties are ordered to meet and confer re a possible resolution of the outstanding issues no later than July 8, 2021.
Basis for Tentative Ruling
Green Rock raises valid arguments re the treatment of its remaining claim and applicable default interest, eligibility of Debtor for discharge, and feasibility. That said, the court believes that a resolution of the issues are achievable if all parties meet in good faith. Green Rock has now received nearly 90% of its secured claim and should be negotiating from that standpoint and not as if it is still owed $1.6M. In this regard, the court is not inclined to entertain any oral argument against the granting of a continuance.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required.
Debtor(s):
Chase Merritt Global Fund LLC Represented By
10:30 AM
Trustee(s):
W. Derek May
Robert Paul Goe (TR) Pro Se
10:30 AM
(2) Requiring Report on Status of Subchapter V Case by Debtor and Subchapter V Trustee; and (3) Requiring Subchapter V Trustee to Appear at the Status Conference
FR: 3-4-21
Docket 1
- NONE LISTED -
March 4, 2021
Deadline to file plan/disclosure stmt: April 20, 2021
Continued Status Conference: June 17, 2021 at 10:30am (XX)
Deadline to file Updated Status Report (Debtor) June 3, 2021 Deadline to file Update Status Report (Trustee) June 10, 2021
An Updated Status Report need not be filed by either Debtor or Trustee if a plan and disclosure statement is filed by or before June 3, 2021.
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required. The Court will issue it's own order.
June 17, 2021
Continue status conference to August 5, 2021 at 10:30 a.m.; updated status report not required.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required.
10:30 AM
Debtor(s):
Chase Merritt Global Fund LLC Represented By
W. Derek May
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
Docket 22
OFF CALENDAR: Notice of Withdrawal of Motion, filed 6/14/2021 - td (6/14/2021)
- NONE LISTED -
Debtor(s):
Alicia Marie Richards Pro Se
Trustee(s):
Richard A Marshack (TR) Pro Se
10:30 AM
Docket 27
- NONE LISTED -
June 17, 2021
Grant the Motion.
Note: In light of the Trustee's withdrawal of his motion to abandon the subject claims, there does not appear to be any substantive opposition to Debtor's motion.
Debtor(s):
Alicia Marie Richards Pro Se
Trustee(s):
Richard A Marshack (TR) Pro Se
10:30 AM
FR: 5-11-21
Docket 26
OFF CALENDAR: Order Granting PCH Restaurant & Marina, LLC's Motion to Compel Rejection of Terminated Nonresidential Lease Entered 5/17/2021 - td (5/17/2021)
May 11, 2021
Grant Motion for the reasons stated in the Motion and Reply, which the court adopts by reference herein.
Debtor(s):
Mehr Group of Companies Holding Represented By
Andy C Warshaw
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
PCH RESTAURANT & MARINA, LLC VS.
DEBTOR FR: 5-11-21
Docket 28
OFF CALENDAR: Declaration of Ryan D. O'Dea in Support of Entry of Order Filed 5/14/2021; Order Granting Motion for Relief from Stay Entered 5/17/2021 - td (6/15/2021)
May 11, 2021
Grant Motion for the reasons stated in the Motion and Reply, which the court adopts by reference herein.
Debtor(s):
Mehr Group of Companies Holding Represented By
Andy C Warshaw
Movant(s):
PCH Restaurant & Marina, LLC Represented By
10:30 AM
Trustee(s):
Ryan D O'Dea
Robert Paul Goe (TR) Pro Se
10:30 AM
Docket 72
- NONE LISTED -
June 17, 2021
Grant Motion for the reasons stated and the legal authority presented in the Motion and Reply
Debtor(s):
Mehr Group of Companies Holding Represented By
Andy C Warshaw Richard L. Sturdevant
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
Docket 78
- NONE LISTED -
June 17, 2021
Deny motion if the court grants lessor's motion to compel rejection [See # 21 on today's calendar]
Debtor(s):
Mehr Group of Companies Holding Represented By
Andy C Warshaw Richard L. Sturdevant
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
FR: 5-11-21
Docket 1
- NONE LISTED -
May 11, 2021
No tentative ruling; disposition will depend on outcome of other matters on today's calendar.
June 17, 2021
No tentative ruling; disposition will depend on outcome of other matters on today's calendar.
Debtor(s):
Mehr Group of Companies Holding Represented By
Andy C Warshaw
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
Docket 32
- NONE LISTED -
June 17, 2021
Sustain the Objection as follows: Claimant shall have an allowed secured claim in the amount of $10,596.28 should be secured and an unsecured claim in the amount of $56,036.51. The Objection to attorneys fees and other charges as unreasonable is overruled.
Basis for Tentative Ruling
Under the Davis-Stirling Act, associations "shall levy regular and special assessments sufficient to perform its obligations under the governing documents and this act." Cal. Civ. Code § 5600 (West).
Homeowners associations may collect reasonable attorney's fees. Cal. Civ. Code § 5650 (West). To protect homeowners, the Legislature required notice to homeowners before an association could foreclose on an assessment lien. See Diamond v. Superior Ct., 217 Cal. App. 4th 1172, 1191, 159 Cal. Rptr. 3d 110, 123 (2013), as modified on denial of reh'g (July 12, 2013). Focusing on the Legislature’s intent to protect homeowners, the court in In re Basave De Guillen held that an association’s lien on a home is limited to the amount stated in the notice. In re Basave De Guillen, 604 B.R. 826, 837 (B.A.P. 9th Cir. 2019). Further, the notice must include "an itemized statement showing the delinquent assessments (and related fees and costs) owing at the time of the notice." Id. Continuing liens following the notice could not be assessed. Id. at 838. Homeowners wishing the assess amounts following the notice of lien would have to file
10:30 AM
successive liens. Id. at 839.
In In re Basave De Guillen, the court upheld the bankruptcy court’s ruling that only the amount stated in the homeowner association’s recorded notice of lien, $29,970.65 (principal of $21,398.02 plus pre-petition interest of $8,572.63) was secured. In re Basave De Guillen, 604 B.R. at 831. The rest of the balance, $34,166.55, which consisted of fees following the notice of lien, was unsecured. Id. Here, the Court should hold similarly. The amount listed in the HOA’s recorded notice of lien is $10,596.28 See Claim 8-1, p. 27. The subsequent legal fees and fees of collection incurred after the 2015 Assessment Lien that were not listed in the notice of lien cannot be secured under because notice was not provided to Debtor as required by the Davis-Stirling Act. Rather. Accordingly, only $10,596.28 of the HOA’s claim is secured and the remaining balance, $56,036.51 ($66,632.79-
$10,596.28), that is, is allowed as an unsecured claim.
Debtor(s):
Erica Duarte Bruce Represented By Andrew Moher
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
Docket 1
- NONE LISTED -
June 17, 2021
Claims Bar Date: 8/20/21 Deadline to file plan/DS
(subject to any motion to
extend exclusivity) 9/30/21
Continued Ch 11 Status Conf.: 10/14/21 at 10:30 a.m.
Updated Status Report due: 9/30/21 (waived if plan and DS filed)
Note: If Debtors are in substantial compliance with the requirements of the UST, appearance at this hearing is not required. Court to issue its own order.
Debtor(s):
Plamex Investment, LLC Represented By Ron Bender Juliet Y Oh Monica Y Kim
2:00 PM
Adv#: 8:20-01161 Kurtin v. Elieff
FR: 5-6-21
Docket 10
CONTINUED: Hearing Continued to 8/19/2021 at 2:00 pm, Per Order
Entered 5/24/2021 (XX) - td (5/24/2021)
- NONE LISTED -
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson Robert P Goe
Defendant(s):
Bruce Elieff Represented By
Robert P Goe
Plaintiff(s):
Todd Kurtin Represented By
Lewis R Landau
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev
2:00 PM
Sean A OKeefe Claire K Wu
2:00 PM
FR: 4-15-21; 6-3-21; 6-10-21
Docket 51
- NONE LISTED -
April 15, 2021
Deny Motion.
Debtor(s):
The Source Hotel, LLC Represented By Ron Bender Juliet Y Oh
2:00 PM
SHADY BIRD LENDING, LLC VS.
DEBTOR
FR: 4-22-21; 6-3-21; 6-10-21
Docket 62
- NONE LISTED -
April 22, 2021
Continue hearing to June 3, 2021 at 2:00 p.m., same date and time as the hearing on Movant's motion to excuse the state court receiver from the turnover requirements of 11 U.S.C. Section 543. Ordinary 21/14/7 briefing deadlines under LBR 9013-1 apply. (XX)
Special Note:
Tentative ruling for 6/3/21: Based on the evidence presented thus far, the court is inclined to deny the Motion due to the lack of evidence that the property has declined in value since the petition date and the lack of evidence to refute the owner's opinion as to the value of the property. Despite the tentative ruling, the court declines to rule at today's hearing or to entertain oral argument because it would like to view the Motion in the context of the turnover motion.
2:00 PM
Additional note to the parties: In this court, pleadings rife with snide, petty, snarky hyperbole is unpleasantly distracting and degrades the quality of one's argument and position.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required.
Debtor(s):
The Source Hotel, LLC Represented By Ron Bender Juliet Y Oh
Movant(s):
Shady Bird Lending, LLC Represented By Daniel A Lev Ronald N Richards
2:00 PM
FR: 6-10-21
Docket 122
NONE LISTED -
NONE LISTED -
Debtor(s):
The Source Hotel, LLC Represented By Ron Bender Juliet Y Oh
2:00 PM
FR: 6-10-21
Docket 123
NONE LISTED -
NONE LISTED -
Debtor(s):
The Source Hotel, LLC Represented By Ron Bender Juliet Y Oh
1:30 PM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for
1:30 PM
Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
1:30 PM
Docket 2
NONE LISTED -
Debtor(s):
Evelyn Ahumada Represented By Heather J Canning
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 19
NONE LISTED -
Debtor(s):
Vanessa Allison Tunks Represented By Rex Tran
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 13
NONE LISTED -
Debtor(s):
Sina Krause Represented By
Trang Phuong Nguyen
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 45
NONE LISTED -
Debtor(s):
Erica Duarte Bruce Represented By Andrew Moher
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 17
NONE LISTED -
Debtor(s):
Barry M Schleider Represented By Christopher C Barsness
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 22
NONE LISTED -
Debtor(s):
John R Godlewski Represented By Julie J Villalobos
Joint Debtor(s):
Ashley Godlewski Represented By Julie J Villalobos
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 12
NONE LISTED -
Debtor(s):
Arnulfo Alatorre Pro Se
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 21
NONE LISTED -
Debtor(s):
Ronaldo Marquez Represented By Stephen L Burton
Joint Debtor(s):
Cristina Marquez Represented By Stephen L Burton
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 20
NONE LISTED -
Debtor(s):
John Steven Domingos Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 73
NONE LISTED -
Debtor(s):
Eric Anthony Perez Represented By Christopher J Langley Michael Smith
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 38
OFF CALENDAR: Notice of Voluntary Dismissal of Motion, filed 6/14/2021 - td (6/14/2021)
Debtor(s):
Thana Eddik Represented By
Gregory M Shanfeld
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 5-25-21
Docket 49
OFF CALENDAR: Notice of Voluntary Dismissal of Motion, filed 6/10/2021 - td (6/10/2021)
Debtor(s):
Francine Rosu Represented By Julie J Villalobos
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 1-26-21; 2-23-21; 4-27-21; 5-25-21
Docket 50
NONE LISTED -
Debtor(s):
Richard Thomas McPhee Represented By Christopher J Langley
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 4-27-21; 5-25-21
Docket 42
NONE LISTED -
Debtor(s):
Mary Guenther Represented By Timothy McFarlin
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 10-27-20; 11-24-20; 12-18-20; 1-26-21; 2-23-21; 4-27-21; 5-25-21
Docket 148
NONE LISTED -
Debtor(s):
Giuseppe Galietta Represented By Joseph A Weber Fritz J Firman
Joint Debtor(s):
Heldia F. De Galietta Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
9:00 AM
Adv#: 8:19-01084 Constantin et al v. Duff
(Set at PTC held 6-18-20) FR: 2-24-21 & 2-25-21
Docket 1
OFF CALENDAR: Order approving plaintiff's motion to dismiss 11 U.S.C section 727 adversary action entered 5-6-21 - adm (5/6/21).
Debtor(s):
Michael J Duff Pro Se
Defendant(s):
Michael J. Duff Pro Se
Plaintiff(s):
Holly Constantin Represented By Alan W Forsley
Michael Constantin Represented By Alan W Forsley
Trustee(s):
Richard A Marshack (TR) Pro Se
9:00 AM
Adv#: 8:19-01084 Constantin et al v. Duff
(Set at PTC held 6-18-20) FR: 2-24-21; 6-23-21
Docket 1
OFF CALENDAR: Order approving plaintiff's motion to dismiss 11 U.S.C section 727 adversary action entered 5-6-21 - adm (5/6/21).
Debtor(s):
Michael J Duff Pro Se
Defendant(s):
Michael J. Duff Pro Se
Plaintiff(s):
Holly Constantin Represented By Alan W Forsley
Michael Constantin Represented By Alan W Forsley
Trustee(s):
Richard A Marshack (TR) Pro Se
9:30 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
9:30 AM
"Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
NONE LISTED -
10:00 AM
DEUTSCHE BANK NATIONAL TRUST COMPANY VS.
DEBTOR FR: 5-11-21
Docket 60
OFF CALENDAR: Order Granting Motion for Relief from the Automatic Stay Under 11 U.S.C. Section 362 (Settled by Stipulation) Entered 5/19/2021 - td (5/19/2021)
May 6, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
10:00 AM
Debtor(s):
Harry K. James Represented By Julie J Villalobos
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
VS.
DEBTOR
Docket 73
NONE LISTED -
July 1, 2021
Grant with 4001(a)(3) waiver and co-debtor relief requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Kayleen R Hittesdorf Represented By Julie J Villalobos
Movant(s):
THE BANK OF NEW YORK Represented By Jenelle C Arnold Dane W Exnowski
10:00 AM
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
1520 NUTMEG LP VS.
DEBTOR FR: 6-10-21
Docket 22
OFF CALENDAR: Order of Dismissal Arising from Chapter 13 Confirmation Hearing Entered 6/23/2021 - td (6/23/2021)
June 10, 2021
Continue hearing to July 1, 2021 at 10:00 a.m. to allow Movant to correct defective service -- Debtor was not served with the Motion as required by Local Bankruptcy Rule 4001-1(c)(1)(C). Service must be completed this date. (XX)
Special Note: Tentative ruling for 7/1/21 hearing (if unopposed): Grant with 4001(a)(3) waiver; deny request for annulment of other extraordinary prospective relief (i.e., relief request #s4, 7, 9, 210, and 11). Movant has not identified any actions taken postpetition that would warrant annulment, nor has Movant stated any grounds for prospective or in rem relief.
Note: If Movant accepts the foregoing tentative ruling, appearance at this hearing is not required.
10:00 AM
Debtor(s):
Barry M Schleider Represented By Christopher C Barsness
Movant(s):
1520 Nutmeg LP Represented By Steven A Fink
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
[THOMAS H. CASEY, CHAPTER 7 TRUSTEE]
Docket 25
NONE LISTED -
July 1, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Saul San Elias Represented By Stephen D Brittain
Trustee(s):
Thomas H Casey (TR) Pro Se
10:30 AM
[RICHARD A. MARSHACK, CHAPTER 7 TRUSTEE]
Docket 515
NONE LISTED -
July 1, 2021
Approve total fees and expenses as requested on a fnal basis. Basis for Tentative Ruling
Objecting creditors have not stated a basis for a specific reduction in the trustee's statutory fees.
Debtor(s):
Structured Investments Co., LLC Pro Se
Trustee(s):
Richard A Marshack (TR) Represented By Leonard M Shulman Franklin J Contreras
10:30 AM
[HAHN FIFE & COMPANY LLP, ACCOUNTANT TO THE CHAPTER 7 TRUSTEE]
Docket 511
NONE LISTED -
July 1, 2021
Approve fees and expenses on a final basis as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Structured Investments Co., LLC Pro Se
Trustee(s):
Richard A Marshack (TR) Represented By Leonard M Shulman Franklin J Contreras
10:30 AM
[SHULMAN HODGES & BASTIAN LLP, ATTORNEYS FOR THE CHAPTER 7 TRUSTEE]
Docket 451
NONE LISTED -
July 1, 2021
Approve total fees in the amount of $722,034.35 and expenses as requested on a final basis.*
Basis for Tentative Ruling
The approved amount represents a reduction of $127,417.65 or 15% of total fees requested.
The court believes that the firm should accept the proposed reduction as a gesture of fairness to the unsecured creditors. The reduction could be higher or lower if the court takes the matter under submission and does a line-by-line analysis of the fees.
The court believes the objecting creditors should accept the proposed amount because 1) the objection does not provide specific instances where the fees were unreasonable justifying a reduction of more than 50%, and 2) there is no question that there was much legal work to be done in this case. Put another way, the vague objection to the imbalance of distribution does not assist the court in its evaluation of the reasonableness of the fees which, as a matter of
10:30 AM
law, have priority over unsecured claims.
*Caveat to the tentative ruling: The final fee application filed by the Firm indicates on page 7 that it has received $376,671.67 and seeks the holdback of $209,256.83 plus fees not previously approved in the amount of
$263.523.50. These three figures add up to $849,452.00 with the total current new request being $472,780.33. However, the Trustee's final report in Exh D indicates that the Firm has already received $709,115.40 and that no additional payments will be made. This apparent discrepancy needs to be explained. If in fact, the Firm is being paid $709,115.40 against total fees of
$849,452.00 (a 17% reduction), then the 15% reduction suggested in the tentative ruling would not apply.
Debtor(s):
Structured Investments Co., LLC Pro Se
Trustee(s):
Richard A Marshack (TR) Represented By Leonard M Shulman Franklin J Contreras
10:30 AM
Adv#: 8:16-01247 Damon v. Haythorne
FR: 7-16-19; 8-15-19; 10-17-19; 11-21-19; 1-30-20; 4-2-20; 6-11-20; 9-10-20;
11-19-20; 1-14-21; 3-11-21; 5-11-21
Docket 128
CONTINUED: Judgment Debtor Examination Continued to 9/2/2021 at
10:30 a.m., Per Order Entered 6/28/2021 (XX) - td (6/28/2021)
SPECIAL IMPORTANT NOTICE! In order to mitigate the spread of the COVID-19 virus, notice is hereby given that ALL hearings before Judge Smith will be by TELEPHONE APPEARANCE ONLY until further notice. The courtroom will be locked. Any party who wishes to appear must register in advance by contacting CourtCall at (866) 582-6878. It is suggested that parties register with CourtCall at least 30 minutes prior to the hearing. Through September 30, 2020, CourtCall is offering discounted registration for attorneys and free registration for parties without an attorney.
July 16. 2019
Stephen Haythorne to appear in court to be sworn in by the court clerk; the examination will take place outside the courtroom.
August 8, 2019
Stephen Haythorne to appear in court to be sworn in by the court clerk; the
10:30 AM
examination will take place outside the courtroom.
August 15, 2019
Stephen Haythorne to appear in court to be sworn in by the court clerk; the examination will take place outside the courtroom.
October 17, 2019
Judgment creditor has not sought the issuance of an OSC re contempt. Continue hearing to November 21, 2019 at 10:30 a.m. Any motion for OSC re contempt may be heard on the same date.
November 21, 2019
Judgment creditor to advise the court re the status of this matter. The court notes that judgment creditor has not sought the issuance of an OSC re contempt.
January 30, 2020
Judgment creditor to advise the court re the status of this matter, e.g., production of documents. Stephen Haythorne to appear in court to be sworn in by the court clerk; the examination will take place outside the courtroom.
June 11, 2020
Continue the examination to September 10, 2020 at 10:00 a.m. Basis for Tentative Ruling
The courthouse remains closed to in-person court appearances and on-site
10:30 AM
in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse, including by video conference, prior to September 10, 2020. Depending on the status of pandemic-related rules and policies in place on September 1, 2020, the September 10, 2020 hearing may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
September 10, 2020
Continue the examination to November 19, 2020 at 10:00 a.m. (XX) Basis for Tentative Ruling
The courthouse is currently closed to in-person court appearances and on-site in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse, including by video conference, prior to November 19, 2020. Depending on the status of pandemic-related rules and policies in place on November 19, 2020, the examination may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
10:30 AM
Debtor(s):
Stephen J Haythorne Represented By David S Henshaw
Defendant(s):
Stephen J Haythorne Pro Se
Plaintiff(s):
Hugh C Damon Represented By Robert P Goe Charity J Manee
Trustee(s):
Weneta M Kosmala (TR) Pro Se
10:30 AM
Adv#: 8:16-01247 Damon v. Haythorne
FR: 7-16-19; 8-15-19; 10-17-19; 11-21-19; 1-30-20; 4-2-20; 6-11-20; 9-10-20;
11-19-20; 1-14-21; 3-11-21; 5-11-21
Docket 130
CONTINUED: Judgment Debtor Examination Continued to 9/2/2021 at 10:30 a.m., Per Order Entered 6/28/2021 (XX) - td (6/28/2021)
SPECIAL IMPORTANT NOTICE! In order to mitigate the spread of the COVID-19 virus, notice is hereby given that ALL hearings before Judge Smith will be by TELEPHONE APPEARANCE ONLY until further notice. The courtroom will be locked. Any party who wishes to appear must register in advance by contacting CourtCall at (866) 582-6878. It is suggested that parties register with CourtCall at least 30 minutes prior to the hearing. Through September 30, 2020, CourtCall is offering discounted registration for attorneys and free registration for parties without an attorney.
July 16. 2019
Kelli Haythorne to appear in court to be sworn in by the court clerk; the examination will take place outside the courtroom.
August 8, 2019
10:30 AM
Kelli Haythorne to appear in court to be sworn in by the court clerk; the examination will take place outside the courtroom.
August 15, 2019
Kelli Haythorne to appear in court to be sworn in by the court clerk; the examination will take place outside the courtroom.
October 17, 2019
Judgment creditor has not sought the issuance of an OSC re contempt. Continue hearing to November 21, 2019 at 10:30 a.m. Any motion for OSC re contempt may be heard on the same date.
November 21, 2019
Judgment creditor to advise the court re the status of this matter. The court notes that judgment creditor has not sought the issuance of an OSC re contempt.
January 30, 2020
Judgment creditor to advise the court re the status of this matter, e.g., production of documents. Kelli Haythorne to appear in court to be sworn in by the court clerk; the examination will take place outside the courtroom (no doctor's note was filed by January 16, 2020 excusing her appearance).
June 4, 2020
Continue the examination to September 10, 2020 at 10:00 a.m. Basis for Tentative Ruling
10:30 AM
The courthouse remains closed to in-person court appearances and on-site in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse, including by video conference, prior to September 10, 2020. Depending on the status of pandemic-related rules and policies in place on September 1, 2020, the September 10, 2020 hearing may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
September 10, 2020
Continue the examination to November 19, 2020 at 10:00 a.m. (XX) Basis for Tentative Ruling
The courthouse is currently closed to in-person court appearances and on-site in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse, including by video conference, prior to November 19, 2020. Depending on the status of pandemic-related rules and policies in place on November 19, 2020, the examination may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
Debtor(s):
Stephen J Haythorne Represented By David S Henshaw
10:30 AM
Defendant(s):
Stephen J Haythorne Pro Se
Plaintiff(s):
Hugh C Damon Represented By Robert P Goe Charity J Manee
Trustee(s):
Weneta M Kosmala (TR) Pro Se
10:30 AM
FR: 6-3-21
Docket 133
NONE LISTED -
July 1, 2021
Set the matter for an evidentiary hearing regarding the value of the property. Available date: October 27, 2021 at 10:00 a.m. The hearing will be IN PERSON in Courtroom 5A unless the parties request otherwise.
Basis for Tentative Ruling
The court cannot assess the factual dispute without an evidentiary hearing. Both appraisers will need to be present for cross examination. Any discovery must be done in accordance with the adversary rules as set forth in the FRBP and LBRs.
Note: If both parties accept the tentative ruling, appearances at this hearing are not required and Movant shall give notice of the evidentiary hearing.
Debtor(s):
Darryl L. Cazares Represented By
Joseph Arthur Roberts
10:30 AM
Joint Debtor(s):
DeAnna J. Cazares Represented By
Joseph Arthur Roberts
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
Docket 53
NONE LISTED -
July 1, 2021
Grant the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Dennis Ulrich Represented By William P White
Trustee(s):
Jeffrey I Golden (TR) Represented By Reem J Bello
10:30 AM
Docket 607
NONE LISTED -
July 1, 2021
Grant the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Friendly Village MHP Associates LP Represented By
Howard Camhi
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Kristine A Thagard Arthur Grebow David Wood Tinho Mang Stefan Perovich
10:30 AM
Docket 312
NONE LISTED -
July 1, 2021
Grant the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Friendly Village GP, LLC Represented By Howard Camhi
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays David Wood Kristine A Thagard
10:30 AM
[JEFFREY I. GOLDEN, CHAPTER 7 TRUSTEE]
Docket 31
NONE LISTED -
July 1, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Richard Mark Wood Represented By Richard G Heston
Joint Debtor(s):
Georgina Ayala Wood Represented By Richard G Heston
Trustee(s):
Jeffrey I Golden (TR) Pro Se
10:30 AM
Docket 64
OFF CALENDAR: Voluntary Dismissal of U.S. Trustee's Motion to
Dismiss or Convert Debtor's Case Under 11 U.S.C. §1112(b) filed 6/4/2021 - td (6/4/2021)
NONE LISTED -
Debtor(s):
Christopher Summers Represented By
J Scott Williams
10:30 AM
Docket 79
NONE LISTED -
July 1, 2021
Continue hearing to Augut 5, 2021 at 10:30 a.m. in light of 1) improper service to creditors (County of Orange was not served) and 2) Debtor has filed evidence of a pending purchase agreement that would be sufficient to pay the Movant's claim.
Debtor(s):
Christopher Summers Represented By
J Scott Williams
10:30 AM
Docket 55
NONE LISTED -
July 1, 2021
Continue this hearing to July 15, 2021 at 10:30 a.m. to allow Debtor to file a substantive reply to the Trustee's supplemental opposition. Any supplemental reply must be filed no later than July 8, 2021 and must be limited to issues raised in the supplemental opposition. No new issues may be raised in the reply. If Debtor does not wish to file a reply to the supplemental opposition, the court will hear oral argument at today's hearing and take the matter under submission, with a ruling to be issued by or before July 8, 2021 (no new pleadings by any party).
Debtor(s):
Alicia Marie Richards Pro Se
Trustee(s):
Richard A Marshack (TR) Represented By Richard G Heston
10:30 AM
Docket 151
NONE LISTED -
July 1, 2021
The court is inclined to approve the Application but is not entirely comfortable with the plan not to include a listing price for Debtor's property. A minimum value for Debtor's property should be disclosed.
Debtor(s):
The Source Hotel, LLC Represented By Ron Bender Juliet Y Oh
2:00 PM
Adv#: 8:19-01205 Elieff et al v. Kurtin
Docket 221
NONE LISTED -
July 1, 2021
The court is inclined to either 1) grant the motion for the dismissal of the subject claims without prejudice and for the extension of Section 546(a) as requested in the Motion, OR 2) suspend further litigation of this adversary proceeding pending exhaustion of the appeal process and suspend the distributions of estate funds to all creditors pending the same.
Basis for Tentative Ruling:
Short Answer:
There is Eleventh Circuit authority for extending the 546(a) statutory period. However, Plaintiff takes the risk that, on appeal, the Ninth Circuit may not follow the Eleventh Circuit and the estate's claims will be forever barred.
Alternatively, if the court holds the adversary in abeyance pending completion of the appeal process, 1) a second appeal is avoided, 2) the estate's claims remain viable, and 3) Defendant is not harmed by distributions that he would be entitled to if he prevails in his current appeal.
Long Answer
2:00 PM
On January 26, 2021, the court entered its Memorandum of Decision
and Order ("Decision")[dkt. 167] on the Motion for Summary Judgment on Plaintiff’s Mandatory Subordination of Claim ("MSJ") and Plaintiff’s Motion for Reconsideration of the Dismissal Order ("Reconsideration Motion"). The court partially granted Trustee’s MSJ as to his mandatory subordination claim under
§ 510(b) and denied Trustee’s claim under § 510(c)(2). As for the Reconsideration Motion, the court denied Trustee’s request of the earlier dismissal of Trustee’s § 510(c)(2) claims with prejudice and for certification under 28 U.S.C. § 1292(b), but the court granted Trustee’s request for entry of partial final judgment under FRCP 54(b).
By orders entered April 5, 2021, the court granted Defendant’s motion to amend the Decision [dkt. 208] and denied Plaintiff’s cross-motion to amend the Decision as moot [dkt. 206]. Based on the court’s Decision, as amended, final judgment in Plaintiff’s favor, and against Defendant, was entered on the First, Sixth, and Ninth claims for relief ("Judgment")[dkt. 207]. Defendant has appealed the Judgment to the BAP ("Appeal").
Plaintiff now moves for an order dismissing the remaining unadjudicated claims for relief (5th, 7th, 8th, and 10th-16th)(collectively, "Avoidance Claims") without prejudice and an extension of the § 546(a) two- year deadline until the later of 12 months or 30 days after any appeal of the Judgment with respect to the 1st, 6th, and 9th claims for relief (collectively, "Subordination Claims"). Alternatively, Plaintiff requests a discretionary stay holding in abeyance all further litigation related to the Avoidance Claims until the appeal of the Judgment is concluded ("Motion")[dkt. 221]. Defendant opposes the Motion ("Opposition")[dkt. 227].
Plaintiff’s request to voluntarily dismiss the case under FRCP 41(a) (2) can be granted because the § 546(a) statute of limitations can be extended by FRCP 9006(b) according to non-binding Circuit authority.
Under FRCP 41(a)(2), made applicable herein by FRBP 7041, "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." The Ninth Circuit has long held that the
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decision to grant a voluntary dismissal under Rule 41(a)(2) is addressed to the sound discretion of the District Court, and its order will not be reversed unless the District Court has abused its discretion." Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143, 145 (9th Cir. 1982). The Ninth Circuit plainly stated the standard for the application of FRCP 41(a)(2) as follows: "A district court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some plain legal prejudice as a
result. Waller v. Fin. Corp. of Am., 828 F.2d 579, 583 (9th Cir.1987); see also Hamilton, 679 F.2d at 145–46.
In this case, Defendant argues that the voluntary dismissal of the Avoidance Claims should be denied because Plaintiff’s request is contingent on the court also extending the § 546(a) statute of limitation to allow Plaintiff to refile the Avoidance Claims in the event the Judgment is later reversed but
§ 546(a) cannot be extended under Rule 9006(b). See Mot., 4:16-20; Opp’n,
3. In relevant part, § 546(a) states that avoidance claims "may not be commenced after the later of… 2 years after the entry of the order for relief; or…1 year after the appointment or election of the first trustee under section 702, 1104…" 11 U.S.C. § 546(a). Defendant cites to In re Walnut Hill, Inc., 2018 WL 2672242 * 1 (Bankr. D. Conn. 2018) which held that § 546(a) cannot be extended by Rule 9006(d) since that rule only allows a bankruptcy court to extend a deadline imposed by the FBRP or a court order. See Walnut Hill, supra, at * 1 ("‘By its plain language, Rule 9006(b) only applies to deadlines set "by these rules or by a notice given thereunder[,] [sic] or by order of court’. Nowhere in the Rule does it mention statutory deadlines."). And Defendant accurately notes that In re Omect, Inc., 349 B.R. 620, 623 (Bankr. N.D. Cal. 2006) is in apposite to this case because, unlike that case, there is no stipulation to extend the § 546(a) deadline here.
However, there is persuasive authority that supports Plaintiff’s position. In In re Fundamental Long Term Care, Inc., 501 B.R. 784, 788 (Bankr. M.D. Fla. 2013), the bankruptcy court, relying on the Eleventh Circuit, stated:
"There is no question the Court has the authority to enlarge the two-
year limitations period under section 546(a). Rule 9006(b) specifically provides that the Court, in its discretion, may enlarge the time period for
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completing any act required under the Federal Rules of Bankruptcy Procedure. Section 546, of course, is a statute—not a bankruptcy rule.
Nevertheless, the Eleventh Circuit Court of Appeals has expressly held that bankruptcy courts can enlarge the § 546(a) two-year limitations period under Rule 9006."
Id. at 787–88 (internal citations omitted)(citing In re Int'l Admin. Servs., Inc., 408 F.3d 689, 699 (11th Cir. 2005)). In International Administrative, which was cited by the Fundamental Long Term court, the Eleventh Circuit held in that case that § 546(a) can be extended under Rule 9006(b). Int’l Admin., supra, at 699; In re Campbellton-Graceville Hosp. Corp., 616 B.R. 177, 182 (Bankr. N.D. Fla. 2019)("Bankruptcy Courts have authority to enlarge the two- year statute of limitations period under Section 546 for cause, pursuant to Rule 9006(b) and binding Eleventh Circuit precedent in In re International Administrative Services, Inc."); In re ThermoView Indus., Inc., 381 B.R. 225, 229 (Bankr. W.D. Ky. 2008)(agreeing with the prior court’s extension of the § 546(a) deadline by application of Rule 9006(b)). In light of International Administrative which the court finds more persuasive than Walnut Hill, the court finds that § 546(a) may be extended under Rule 9006(b). Accordingly, Defendant will not suffer legal prejudice by the dismissal of the Avoidance Claims and an extension of the § 546(a) deadline.
Voluntary dismissal will also benefit Defendant because Defendant will avoid incurring additional legal fees and costs adjudicating the Avoidance Claims which may ultimately be moot if the Judgment is affirmed. See Mot., 6-7. Finally, in opposition to the Landis stay, Defendant argued that there is a fair possibility of harm to Defendant if the adversary proceeding is stayed because Plaintiff’s objection to Defendant’s claims under § 502(d) will remain pending. See Opp’n, 5. Defendant will therefore benefit from voluntary dismissal of the adversary proceeding (instead of a stay of the adversary proceeding) because these § 502(d) claim objections in the FAC will be dismissed.
Plaintiff alternative request for abeyance of adversary proceeding while the Appeal is pending
The Supreme Court has made clear that all courts have the inherent
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power to stay civil cases before them "in a manner which will promote economy of time and effort for itself, for counsel, and for litigants." Landis v.
N. Am. Co., 299 U.S. 248, 254–55 (1936). When considering a motion for a Landis stay, courts weigh a series of competing interests, including (1) "the possible damage that may result from the granting of a stay," (2) "the hardship or inequity which a party may suffer in being required to go forward," and (3) "the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay." Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th Cir. 2005). The party seeking the stay "bears the burden of establishing its need." Clinton v. Jones, 520 U.S. 681, 708 (1997). A "court may decide in its discretion to stay civil proceedings... ‘when the interests of justice seem…to require such action[.]’ " SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1375 (D.C. Cir. 1980)(quoting U.S. v. Kordel, 397 U.S. 1, 12 n.27 (1970)).
Though Plaintiff did not address any of the Landis factors in the Motion, this court has the inherent power to stay the adversary proceeding sua sponte. Here, if the adversary is held in abeyance and the distribution of estate assets is also held in abeyance, all of the Landis factors are satisfied.
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson Robert P Goe
Defendant(s):
Todd Kurtin Represented By
Lewis R Landau Edward O Morales
Plaintiff(s):
Bruce Elieff Pro Se
Morse Properties, LLC Pro Se
4627 Camden, LLC Pro Se
2:00 PM
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe Claire K Wu
9:30 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for Judge Erithe A. Smith’s Cases" on the Court's website at:
9:30 AM
https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
NONE LISTED -
9:30 AM
Adv#: 8:19-01215 Marshack v. R-Techo, Co., Ltd.
(Another Summons Issued 2/16/2021) FR: 5/6/21
Docket 1
CONTINUED: Status Conference Continued to 8/19/2021 at 9:30 a.m., Per
Order Entered 6/9/2021 (XX) - td (6/9/2021)
May 6, 2021
Continue the Status Conference to July 15, 2021 at at 9:30 a.m.; updated Joint Status Report must be filed by July 1, 2021.(XX)
Note: If the parties accept the tentative ruling, appearance at this hearing is not required.
Debtor(s):
Prime Metals U.S.A., Inc. Represented By Steven Werth
9:30 AM
Defendant(s):
R-Techo, Co., Ltd. Pro Se
Plaintiff(s):
Richard A Marshack Represented By Ronald S Hodges Robert P Goe Ryan S Riddles
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Laila Masud David M Goodrich Robert P Goe
9:30 AM
Adv#: 8:19-01180 Marshack v. Sweeney et al
U.S.C. §542, 547, 548, 550 and California Civil Code Sec. 3439 et seq.
FR: 3-5-20; 9-10-20; 12-17-20; 4-1-21; 6-3-21
Docket 1
SPECIAL NOTE: Unilateral Notice of Settlement of Matter and Request to Continue Status Conference filed 5/31/2021 - td (6/1/2021). Order Approving Compromise Between Chapter 7 Trustee Richard A. Marshack and Defendants Michael and Beth Marzec Entered on Main Case on 6/16/2021 - td (6/16/2021)
March 5, 2020
Deadline to file Motions re Default Judgment: April 3, 2020 Discovery Cut-off Date: Aug. 3, 2020
Pretrial Conference Date: Sept. 10, 2020 at 9:30 a.m. (XX)
Deadline to File Joint Pretrial Stipulation: Aug. 27, 2020
Special note: Plaintiff indicates in the Unilateral Status Report that some defendants have responded; however the docket does not reflect the filing of any answers. The court, therefore, assumes such "responses" were informal.
Note: If Plaintiff accepts the foregoing tentative ruling, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
December 17, 2020
9:30 AM
Continue the hearing as a Status Conference to April 1, 2021 at 9:30 a.m.; an updated Status Report must be filed by March 18, 2021 if the adversary proceeding is still pending as of such date. (XX)
Note: Appearances at this hearing are not required; Plaintiff shall serve notice of the continued hearing date/time.
April 1, 2021
In light of pending settlement, continue this hearing to June 3, 2021 at 9:30
a.m. as a holding date; updated status report must be filed by May 20, 2021 if the matter is still pending as of that date. (XX)
Note: Appearances at this hearing are not required; Plaintiff shall serve notice of the continued hearing date/time.
June 3, 2021
Continue as a Status Conference to July 15, 2021 at 9:30 a.m.; updated Status Report must be filed by July 8, 2021 if the adversary has not been dismissed by such date. (XX)
Note: Appearances at this hearing are not required.
July 15, 2021 [UPDATED]
Continue Status Conference to December 16, 2021 at 9:30 a.m.; updated status report must be filed by December 9, 2021.
Note: Appearances at this hearing are not required.
Debtor(s):
Francis J Marzec Represented By Christine A Kingston
9:30 AM
Defendant(s):
Anita Sweeney Pro Se
Tori Sweeney Pro Se
Michael Marzec Pro Se
Beth Marzec Pro Se
Plaintiff(s):
Richard A Marshack Represented By Anerio V Altman
Trustee(s):
Richard A Marshack (TR) Represented By Anerio V Altman
9:30 AM
Adv#: 8:19-01164 Laplant v. Ra
Docket 21
NONE LISTED -
NONE LISTED -
Debtor(s):
Joseph Ra Represented By
David B Golubchik Jaenam J Coe
Defendant(s):
Joseph Ra Represented By
Jaenam J Coe Bret D Lewis
Plaintiff(s):
Joseph Laplant Represented By Bret D Lewis
Trustee(s):
Richard A Marshack (TR) Represented By Michael G Spector Thomas J Polis
9:30 AM
Adv#: 8:19-01164 Laplant v. Ra
FR: 11-7-19; 7-23-20; 9-17-20; 12-17-20; 5-20-21
Docket 1
NONE LISTED -
November 7, 2019
Discovery Cut-off Date: May 1, 2020 Deadline to Attend Mandatory Mediation: June 15, 2020
Pretrial Conference Date: July 23, 2020 at 9:30 a.m. (XX)
Deadline to File Joint Pretrial Stipulation: July 9, 2020
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
September 17, 2020
[This tentative ruling has been modified since its original posting]
9:30 AM
Continue hearing to December 17, 2020 at 9:30 a.m.; Updated status report must be filed by December 3, 2020. (XX)
Special Note: The Status Conference is being continued because the deadline for the chapter 7 trustee to file a 727 action has been extended to November 2, 2020. It is Plaintiff's responsibility to track the status of any further extensions and/or 727 filing and to report such status in a timely filed updated Status Report. Failure to do so by December 3, 2020 may result in the imposition of sanctions against Plaintiff's counsel in an amount of not less than $100.00.
Additional note: Starting 10/8/20 all hearings before Judge Smith will be by Zoom. See Court's website for details.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiff shall serve notice of the continued hearing date/time.
December 17, 2020
In light of the pending 727 adversary proceeding filed by the Chapter 7 Trustee, continue this Status Conference to May 20, 2021 at 9:30 a.m.; updated Status Report must be filed by May 6, 2021 (XX)
Note: If Plaintiff accepts the foregoing tentative ruling, appearance at this hearing is not required; Plaintiff shall serve notice of the continued hearing date/time.
May 20, 2021
Plaintiff to appear and advise the court if he intends to proceed with his declaratory relief claim for relief.
Special Note: On March 8, 2021, this court entered its order granting the chapter 7 trustee's motion for default judgment re denial of discharge under 727, mooting Plaintiff's 523 nondischargeability claims for relief. However,
9:30 AM
the declaratory claim for relief remains.
Note: Appearance at this Status Conference is required.
Debtor(s):
Joseph Ra Represented By
David B Golubchik
Defendant(s):
Joseph Ra Pro Se
Plaintiff(s):
Joseph Laplant Represented By Bret D Lewis
Trustee(s):
Richard A Marshack (TR) Represented By Michael G Spector
9:30 AM
Adv#: 8:19-01162 Becharoff Capital Corporation v. Rietveld
FR: 11-7-19; 5-21-20; 8-20-20; 10-1-20; 12-17-20; 4-1-21; 5-20-21
Docket 1
SPECIAL NOTE: Notice that the CAse has been Settled, filed 5/19/2021 - td (5/20/2021)
SPECIAL NOTE: Notice that the case has been settled and the plaintiff intends to dismiss its objection to debtor/defendant's discharge, filed 7/6/21 - adm (7/7/2021)
November 7, 2019
Discovery Cut-off Date: April 1, 2020
Pretrial Conference Date: May 21, 2020 at 9:30 a.m. (XX)
Deadline to File Joint Pretrial Stipulation: May 7, 2020
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
August 20, 2020
If more time is needed for settlement discussions, continue the pretrial conference to October 1, 2020 at 9:30 a.m. Plaintiff must file either a joint
9:30 AM
pretrial stipulation (if no settlement) or a status report (settlement reached or pending) by no later than September 22, 2020 or monetary sanctions may be imposed. (XX)
Note: If all parties accept the foregoing tentative ruling, appearances at today's hearing are not required and Plaintiff shall serve notice of the continued hearing date/time.
October 1, 2020
Continue this Pretrial Conference to December 17, 2020 at 9:30 a.m. as a Status Conference; an updated Status Report must be filed by December 3, 2020. (XX)
Special Note: A Status Report was not timely filed by September 17, 2020 as previously ordered by the Court [docket #14]. If this adversary proceeding remains pending as of December 3, 2020 and no Status Report is filed by such date, sanctions in an amount of not less than $200 will be imposed on Plaintiff's counsel for failure to do so.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time on Defendant.
December 17, 2020
Set Pretrial Conference for April 1, 2021 at 9:30 a.m.; Joint Pretrial Stipulation must be filed by March 18, 2021. (XX)
Special note: As the first Status Conference was held more than one year ago, the court will not simply continue the Status Conference any further. Either the matter will settle or proceed to trial.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiff shall lodge an order
9:30 AM
consistent with the same.
May 20, 2021
Impose sanctions against Plaintiff's counsel in the amount of $100 for failure to timely file either a Joint Pretrial Stipulation or Status Report by May 6, 2021 (See Order at docket #29).
Note: Appearance at this hearing is required.
July 15, 2021
Continue this hearing one final time to September 2, 2021 at 9:30 a.m. to allow Plaintiff to re-notice creditors re the intent to dismiss the 727 claims.
Basis for Tentative Ruling:
The notice given by Plaintiff does not provide a 14-day notice of the opportunity to object to the dismissal of 727 claims.
Note: If the parties accept the foregoing tentative ruling, appearances at today's hearing are not required.
Debtor(s):
Richard Allen Rietveld Represented By Alon Darvish
Defendant(s):
Richard Allen Rietveld Pro Se
Plaintiff(s):
Becharoff Capital Corporation Represented By Fritz J Firman
9:30 AM
Trustee(s):
Richard A Marshack (TR) Pro Se
9:30 AM
Adv#: 8:20-01178 Banning Bench Community of Interest Association, I v. Elieff
Docket 1
NONE LISTED -
July 15, 2021
Dismiss adversary proceeding -- no response to OSC was filed.
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson Robert P Goe
Defendant(s):
Bruce Elieff Represented By
Robert P Goe
Plaintiff(s):
Banning Bench Community of Represented By
John G McClendon
Highland Springs Conference and Represented By
Josh Chatten-Brown
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie
9:30 AM
Daniel A Lev Sean A OKeefe Claire K Wu
9:30 AM
Adv#: 8:20-01178 Banning Bench Community of Interest Association, I v. Elieff
FR: 3-11-21; 6-3-21
Docket 1
NONE LISTED -
March 11, 2021
Continue Status Conference to June 3, 2021 at 9:30 a.m.; updated Status Report must be filed by May 20, 2021. (XX)
Note: Appearances at this hearing are not required; Plaintiffs to serve notice of the continued hearing date/time.
June 3, 2021
Continue Status Conference to July 15, 2021 at 9:30 a.m.; Court to issue Order to Show Cause why this adversary should not be dismissed for failure of Plaintiff to file an amended complaint by March 25, 2021 as ordered by the court [docket #26]. The hearing on the OSC will be heard on July 15, 2021 at 9:30 a.m. (XX)
Note: Appearances at this hearing are not required.
July 15, 2021
9:30 AM
Take Status Conference off calendar in light of dismissal of the adversary proceeding.
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson Robert P Goe
Defendant(s):
Bruce Elieff Pro Se
Plaintiff(s):
Banning Bench Community of Represented By
John G McClendon
Highland Springs Conference and Represented By
John G McClendon
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe Claire K Wu
10:00 AM
NEWREZ LLC
vs. DEBTOR FR: 6-10-21
Docket 53
OFF CALENDAR: Order Granting Motion for Relief from the Automatic Staty Under 11 U.S.C. §362 (Settled by Stipulation) Entered 6/4/2021 - td (6/4/2021)
NONE LISTED -
Debtor(s):
Khanh Tien Tran Represented By Halli B Heston
Movant(s):
NewRez LLC d/b/a Shellpoint Represented By Robert P Zahradka
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
VS.
DEBTORS
Docket 65
NONE LISTED -
July 15, 2021
If Debtor is now current with postpetition payments, immediate relief from stay will be denied but an adequate protection order will be granted. The court encourages the parties to work out the terms of any adequate protection order.
Debtor(s):
Bonifacio A. Baquiran Represented By Tina H Trinh
Joint Debtor(s):
Virginia Prenda Baquiran Represented By Tina H Trinh
Movant(s):
Select Portfolio Servicing Inc., as Represented By
Jenelle C Arnold
10:00 AM
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
VS.
DEBTOR
Docket 46
OFF CALENDAR: Order Approving APO signed 7/9/21- mp(7/9/21)
Debtor(s):
Kalani James Robert Green Represented By
Rabin J Pournazarian
Movant(s):
Wilmington Savings Fund Society, Represented By
Dane W Exnowski
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
VS.
DEBTOR; AND RICHARD A. MARSHACK, CHAPTER 7 TRUSTEE
Docket 9
NONE LISTED -
July 15, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Debbi Lopez Represented By
Bert Briones
Movant(s):
AMERICAN HONDA FINANCE Represented By
Vincent V Frounjian
10:00 AM
Trustee(s):
Richard A Marshack (TR) Pro Se
10:00 AM
VS.
DEBTOR
Docket 8
NONE LISTED -
July 15, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Catalina Palomino Represented By Michael Smith
Movant(s):
Santander Consumer USA Inc. Represented By Sheryl K Ith
Trustee(s):
Jeffrey I Golden (TR) Pro Se
10:00 AM
10:00 AM
VS.
DEBTORS; AND JEFFREY I. GOLDEN, CHAPTER 7 TRUSTEE
Docket 11
NONE LISTED -
July 15, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Jose Andres Garcia Represented By Thinh V Doan
Joint Debtor(s):
Regina Enedina Garcia Represented By Thinh V Doan
Movant(s):
AMERICAN HONDA FINANCE Represented By
10:00 AM
Trustee(s):
Vincent V Frounjian
Jeffrey I Golden (TR) Pro Se
10:30 AM
Docket 216
NONE LISTED -
July 15, 2021
Grant motion to modify plan pursuant to Bankruptcy Code Section 1127(e).
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Cristhian Contador Represented By Arnold P Peter
Christopher C Barsness
Joint Debtor(s):
Paige Contador Represented By Arnold P Peter
Christopher C Barsness
10:30 AM
Docket 218
NONE LISTED -
July 15, 2021
Grant Motion in its entirety as well as the terms requested by E*Trade Bank except request #5 under "Response."
Basis for Tentative Ruling:
E*Trade requests the following language: "In the event that the property is destroyed or damaged prior to the close of escrow, pursuant to the Deed of Trust, the creditor shall be entitled to its full rights as a loss payee with respect to the insurance proceeds and shall retain its security interest in such proceeds up to the entire balance due on the Deed of Trust." As the insurance policy has not been provided, the court declines to affirmatively grant such relief. The creditor's rights under any insurance policy will remain whatever they are.
Special Note: This motion is likely unnecessary in light of the following:
Pursuant to 11 U.S.C. 1141(b), unless otherwise provided in the plan or the confirmation order, "the confirmation of a plan vests all of the property of the estate in the debtor." Accordingly, court approval to sell non-estate property is not required.
Upon plan confirmation, Debtor becomes a "reorganized debtor" and is no longer a "debtor in possession." Accordingly, in the court's view Section 327
10:30 AM
(employment of professionals) no longer applies and the reorganized debtor is free to employ professionals without court approval. See In re Mullendore, 517 B.R. 232, 238 (Bankr.D. Mont. 2014).
In light of the comments in paragraph 2 above, there would appear to be no need for Debtor to apply for the employment of the broker (or new general counsel). That said, the court will sign a "comfort" order re the sale and employment applications.
Debtor(s):
Cristhian Contador Represented By Arnold P Peter
Christopher C Barsness
Joint Debtor(s):
Paige Contador Represented By Arnold P Peter
Christopher C Barsness
10:30 AM
Docket 145
NONE LISTED -
July 15, 2021
Grant the Motion except that paragraph 14(b) is denied as to the following language: "The trustee has the discretion to shorten the deadline to submit overbids."
Basis for Tentative Ruling:
The trustee states no business reason for setting a deadline for the submission of bids (which is only four days following this hearing) and then reserving the right to shorten the 4-day deadline.
Debtor(s):
Eric C. Bryant Represented By Christine A Kingston
Joint Debtor(s):
Gina K Bryant Represented By Christine A Kingston
Movant(s):
Karen S Naylor (TR) Represented By Thomas H Casey
10:30 AM
Trustee(s):
Karen S Naylor (TR) Represented By Thomas H Casey
10:30 AM
Docket 37
OFF CALENDAR: Debtor's Notice of Withdrawal of Objection to Claim # 5, filed 6/22/2021 - td (6/22/2021)
NONE LISTED -
Debtor(s):
Geoff Owen Delabar Represented By Christopher J Langley Michael Smith
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
[ROBERT P. GOE, SUBCHAPTER V TRUSTEE]
Docket 79
NONE LISTED -
July 15, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
American Sterling Corporation Represented By Nanette D Sanders
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
[RINGSTAD & SANDERS LLP, ATTORNEY FOR DEBTOR-IN-POSSESSION]
Docket 75
NONE LISTED -
July 15, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
American Sterling Corporation Represented By Nanette D Sanders
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
Docket 98
NONE LISTED -
July 15, 2021
Continue hearing to August 19, 2021 at 10:30 a.m. to allow Debtor to correct defective service to Claimant.
Basis for Tentative Ruling:
The Motion was not served at the exact address indicated on the proof of claim as required by FRBP 3007. The address on the proof of claim is "BCORE Retail Brookhurst Adams LLC c/o Blackmar, Principe & Schmelter, APC, 600 B Street, Suite 2250, San Diego, CA 92101." The Motion was served at the correct address but not in care of BP&S.
Tentative ruling for 8/19/21 hearing (if unopposed):
Disallow the sum of $137,954 ($57,954 + $80,000) and allow the claim in the amount of $155,762.01 ($293,716.01- $137,954).
Note: If Debtor accepts the tentative ruling, appearance at this hearing is not required and Debtor shall re-serve the Motion.
Debtor(s):
Mehr Group of Companies Holding Represented By
Andy C Warshaw
10:30 AM
Trustee(s):
Richard L. Sturdevant
Robert Paul Goe (TR) Pro Se
10:30 AM
Docket 27
OFF CALENDAR: Order of Dismissal Arising from Chapter 13 Confirmation Hearing Entered 6/23/2021 - td (6/23/2021)
NONE LISTED -
Debtor(s):
Barry M Schleider Represented By Christopher C Barsness
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
Docket 84
NONE LISTED -
July 15, 2021
This matter will be called on the regular calendar.
Basis for Tentative Ruling/ Comments re the Application
Notice of the Application does not include all salient compensation terms, e.g., 1% of financing and 1% of equity investment.
The court is concerned about NAI's lack of a substantive shopping center portfolio, especially in light of the fact that NAI is also listed as the broker for the Source Hotel.
The court is concerned about what appears to be a pattern of this broker not disclosing a listing price (e.g., Source Hotel). Moreover, it appears Debtor has previously obtained a broker's opinion as to the value of the subject property. The may require that the opinion be provided to the court to ensure that any sale offers are not "low ball" offers.
The court is concerned about the fact that the proposed broker NAI owes money to the bankruptcy estate of its predecessor NAI Capital Inc. The court is less concerned about any nefarious motivation on the part of Debtor's counsel than it is about the potential motivation of NAI to take any and all listings (regardless of expertise) in order to satisfy the debt. No information is
10:30 AM
provided regarding the time frame for payment of the promissory note to the NCI bankruptcy estate.
Debtor(s):
Plamex Investment, LLC Represented By Ron Bender Juliet Y Oh Monica Y Kim
10:30 AM
Docket 36
July 15, 2021
Deny motion. Debtor's Schedule J show negative monthly income of $182. As such, Debtor does not have regular disposable income from which to fund a chapter 13 plan as required by Bankruptcy Code Section 109(e).
Basis for tentative ruling:
Not only does Debtor's schedule J show negative monthly income of
$182.00, his schedule J fails to provide information regarding the expenses associated with the (four?) rentals.
Objecting Creditor and Trustee have raised an additional eligibility issue concerning the true balance of Debtor's secured debt. At a minimum, Debtor should have filed a reply with documentary proof of the current balance of the secured debt.
Debtor(s):
Scott Peter Hamilton Represented By Julie Nong
Trustee(s):
Karen S Naylor (TR) Pro Se
2:00 PM
Docket 18
NONE LISTED -
July 15, 2021 [UPDATED SINCE ORIGINAL POSTING]
Continue the hearing to August 12, 2021 at 2:00 p.m. to allow Movant to comply with LBR 2004-f which requires compliance with LBR 7026-1(c)(2) and (c)(3). A joint stipulation addressing each objectionable document request must filed no later than August 2, 2021. The current 2004 examination and productions dates are suspended and will be re-set at the August 12, 2021 hearing. The deadline for the Bank to file a 523 or 727 complaint will be extended from September 13, 2021 to October 13, 2021.
Court's General Comments re the Motion
Bank has not established sufficient nexus between Gryphon's activiites dating back to 2014 and representations made by Debtor. Bank also seeks all of debtor's bank statements going back to 2014 (not just that of Gryphons).
Bank admits it may already have documents -- Debtor need not provide those documents again -- this is a debtor in a chapter 7 case. Bank must identify all documents it already has.
Regarding the documents from Gryphon -- Bank can obtain such documents in the pending District Court action against Gryphon.
The court is concerned that the scope of the document production is designed to assist the Bank in its action pending in District Court.
2:00 PM
Note: If all parties accept the tentative ruling, appearances at today's hearing are not required.
4. Re Debtor's demand for witness fees for third parties -- Debtor does not appear to have standing to make such a demand. The affected person would have such standing.
4. Bank needs to scale back it's discovery substantially or the court will do so. The purpose of a 2004 examination is to permit a creditor to examine Debtor's assets and liabilities.
Debtor(s):
Nelson Yen Represented By
Jonathan J. Lo
Trustee(s):
Jeffrey I Golden (TR) Pro Se
2:00 PM
Docket 19
NONE LISTED -
July 15, 2021
Deny motion to quash. As to the request to modify the 2004 examination order or for protective order, continue the hearing to August 12, 2021 at 2:00
p.m. to allow Movant to comply with LBR 2004-f which requires compliance with LBR 7026-1(c)(2) and (c)(3). A joint stipulation addressing each objectionable document request must filed no later than August 2, 2021. The current 2004 examination and productions dates are suspended and will be re-set at the August 12, 2021 hearing. The deadline for the Bank to file a 523 or 727 complaint will be extended from September 13, 2021 to October 13, 2021.
Basis for Tentative Ruling:
Insufficient grounds/evidence presented to support the request to quash the subpoena. Notably, there is no declaration by Ms. Ko confirming her position with Gryphon, i.e., was/is she an officer (CFO) or not? She has not met her initial burden of proof.
See comments for #24 on today's calendar.
Note: If all parties acept the tentative ruling, appearances at today's hearing are not required.
2:00 PM
Debtor(s):
Nelson Yen Represented By
Jonathan J. Lo
Trustee(s):
Jeffrey I Golden (TR) Pro Se
10:00 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for Judge Erithe A. Smith’s Cases" on the Court's website at:
10:00 AM
https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
10:00 AM
(Set at hrg. held 6-10-21)
Docket 86
CONTINUED: Evidentiary Hearing is Continued to 8/25/2021 at 10:00
a.m., Per Order Entered 7/15/2021 (XX) - td (7/15/2021)
Debtor(s):
DEA Brothers Sisters LLC Represented By Roger J Plasse John H Bauer
10:00 AM
362(D)(3) FR: 6-10-21
Docket 100
CONTINUED: Hearing is Continued to 8/25/2021 at 10:00 a.m., Per Order
Entered 7/15/2021 (XX) - td (7/15/2021)
Debtor(s):
DEA Brothers Sisters LLC Represented By John H Bauer
10:00 AM
FR: 4-8-21; 6-10-21
Docket 18
CONTINUED: Hearing is Continued to 8/25/2021 at 10:00 a.m., Per Order
Entered 7/15/2021 (XX) - td (7/15/2021)
Debtor(s):
DEA Brothers Sisters LLC Represented By Roger J Plasse
9:00 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for Judge Erithe A. Smith’s Cases" on the Court's website at:
9:00 AM
https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
NONE LISTED -
9:30 AM
Docket 17
NONE LISTED -
NONE LISTED -
Debtor(s):
Mark A. Trebon Represented By Richard L Barnett
Joint Debtor(s):
Mary Kay Trebon Represented By Richard L Barnett
Trustee(s):
Jeffrey I Golden (TR) Pro Se
9:30 AM
[TA CASE]
Docket 10
NONE LISTED -
NONE LISTED -
Debtor(s):
Gustavo Martinez Enriquez Represented By Marlin Branstetter
Trustee(s):
Karen S Naylor (TR) Pro Se
9:30 AM
[SC CASE]
Docket 10
NONE LISTED -
NONE LISTED -
Debtor(s):
Jose Luis Arriaga Represented By Christopher P Walker
Trustee(s):
Jeffrey I Golden (TR) Pro Se
9:30 AM
Docket 11
NONE LISTED -
NONE LISTED -
Debtor(s):
Justin Vernon Mills Represented By Marshall S Tierney
Joint Debtor(s):
Susan Alicia Mills Represented By Marshall S Tierney
Trustee(s):
Jeffrey I Golden (TR) Pro Se
9:30 AM
Docket 13
NONE LISTED -
NONE LISTED -
Debtor(s):
Viet Dinh Huynh Represented By Timothy McFarlin
Trustee(s):
Jeffrey I Golden (TR) Pro Se
9:30 AM
[SC CASE]
Docket 10
NONE LISTED -
NONE LISTED -
Debtor(s):
Carey Lee Sharp Represented By Marlin Branstetter
Trustee(s):
Weneta M.A. Kosmala (TR) Pro Se
9:30 AM
[SC CASE]
Docket 7
NONE LISTED -
NONE LISTED -
Debtor(s):
Eliazar Salazar Tapia Pro Se
Trustee(s):
Richard A Marshack (TR) Pro Se
9:30 AM
Docket 8
NONE LISTED -
NONE LISTED -
Debtor(s):
Israel J Alas Pro Se
Trustee(s):
Thomas H Casey (TR) Pro Se
9:30 AM
Docket 16
NONE LISTED -
NONE LISTED -
Debtor(s):
Sammy Dale James Represented By Bert Briones
Joint Debtor(s):
Elizabeth Kathryn James Represented By Bert Briones
Trustee(s):
Weneta M.A. Kosmala (TR) Pro Se
9:30 AM
Docket 9
NONE LISTED -
NONE LISTED -
Debtor(s):
Norberto Tadeo Represented By Bert Briones
Trustee(s):
Jeffrey I Golden (TR) Pro Se
9:30 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for Judge Erithe A. Smith’s Cases" on the Court's website at:
9:30 AM
https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
NONE LISTED -
9:30 AM
Adv#: 8:17-01073 Woodlawn Colonial, L P v. Delannoy
FR: 7-27-17; 9-21-17, 4-12-18; 5-31-18; 7-19-18; 9-20-18; 12-6-18; 3-21-19;
5-9-19; 6-18-19; 9-19-19; 11-21-19; 1-30-20; 4-2-20; 7-16-20; 10-22-20, 4-22-21
Docket 1
SPECIAL NOTE: Order Granting Plaintiff Woodlawn Colonial, L.P.'s Motion (1) to Dismiss Plaintiff's First & Second Claims for Relief; & (2) for Entry of Judgment on Plaintiff's Third Claim for Relief Entered 9/6/2019; Non-Dischargeable Judgment Entered 9/6/2019. Remaining Issue is Defendant's Counterclaim fld 6/12/17, dkt #7 - td (9/6/2019)
July 27, 2017
No tentative ruling -- the disposition of the status conference will depend upon the outcome of Plaintiff's motion for stay of the adversary proceeding, which set on today's 10:30am calendar.
September 21, 2017
Impose sanctions against counsel for Plaintiff in the amount of $100 for failure to file joint status report as required by LBR 7016-1.
Discovery Cut-off Date: Jan. 18, 2018
Deadline to File Pretrial Motions: Feb. 1, 2018
Reserved hearing date re Pretrial Motions: Mar. 8, 2018 at 2:00 p.m. (xx) Pretrial Conference: Apr. 12, 2018 at 9:30 a.m.
9:30 AM
(XX)
Deadline to File Pretrial Stipulation Mar. 29, 2018
Special Note: Defendant's counterclaim may be moot in light of the sale of the truck by the Trustee.
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
July 19, 2018
In light of pending appeal, continue status conference to September 20, 2018 at 9:30 a.m., updated status report must be filed by September 13, 2018. (XX)
Note: Appearances at this hearing are not required.
September 20, 2018
Continue status conference to December 6, 2018 at 9:30 a.m.; updated status report must be filed by November 29, 2018. (XX)
Note: Appearances at today's hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
December 6, 2018
Continue status conference to March 21, 2019 at 9:30 a.m.; updated joint status report must be filed by March 7, 2019 (XX)
Note: Appearances at today's hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
March 21, 2019
9:30 AM
Continue status conference to May 9, 2019 at 2:00 p.m., same date/time as hearing on Plaintiff's motion for summary judgment; updated status report not required. (XX)
Note: Appearances at the March 21, 2019 status conference are not required.
Debtor(s):
Chad Paul Delannoy Represented By Robert P Goe Charity J Manee
Defendant(s):
Chad Paul Delannoy Represented By Robert P Goe Charity J Manee
Thomas J Eastmond
Plaintiff(s):
Woodlawn Colonial, L P Represented By Howard M Bidna Evan Rothman
Trustee(s):
Thomas H Casey (TR) Represented By Thomas H Casey Kathleen J McCarthy
9:30 AM
Adv#: 8:17-01095 Steward Financial LLC v. Bral
(Set at hrg. held 4-9-20) FR: 10-8-20; 2-18-21
Docket 121
NONE LISTED -
October 8, 2020
Continue Status Conference to February 18, 2021 at 9:30 a.m.; updated Joint Status Report must be filed by February 4, 2021. (XX)
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiff shall notice of the continued hearing date/time.
February 18, 2021
In light of the pending appeal, continue this matter as a status conference to July 22, 2021 at 9:30 a.m.; updated status report must be filed by July 8, 2021. (XX)
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiff shall notice of the continued hearing date/time.
July 22, 2021
9:30 AM
In light of the pending appeal, continue this Status Conference to December 16, 2021 at 9:30 a.m.; updated Joint Status Report must be filed by December 2, 2021.
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiff shall notice of the continued hearing date/time.
Debtor(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel Bobby Samini Dean A Ziehl
Gary A Pemberton
Defendant(s):
John Jean Bral Represented By William N Lobel Beth Gaschen Alan J Friedman Gary A Pemberton
Movant(s):
Steward Financial LLC Represented By
Krikor J Meshefejian Gary E Klausner
Plaintiff(s):
Steward Financial LLC Represented By
Krikor J Meshefejian
9:30 AM
Gary E Klausner
9:30 AM
Adv#: 8:18-01170 Add2Net, Inc. v. Natzic et al
FR: 12-6-18; 1-24-19; 4-18-19; 6-20-19; 8-22-19; 9-19-19; 12-5-19; 2-20-20;
4-16-20; 7-16-20; 9-17-20; 11-5-20; 1-8-21; 4-1-21; 6-3-21
Docket 1
OFF CALENDAR: Order (A) Approving Joint Stipulation and Motion for
Entry of Dismissal Without Prejudice and (B) Dismissing Adversary Proceeding Without Prejudice Entered 6/25/2021 - td (6/25/2021)
June 20, 2019
No tentative ruling. This tentative will be trailed to the 2:00 p.m. calendar along with the Motion to Dismiss
September 19, 2019
In light of the upcoming trial in the state court litigation, continue status conference to December 5, 2019 at 9:30 a.m.; updated status report must be filed by November 21, 2019. (XX)
Note: Appearances at today's hearing are not required; Plaintiff to serve
9:30 AM
notice of the continued hearing date/time.
Debtor(s):
George Carl Natzic Represented By Moises S Bardavid
Defendant(s):
George Carl Natzic Pro Se
Cheri Lynn Natzic Pro Se
Joint Debtor(s):
Cheri Lynn Natzic Represented By Moises S Bardavid
Plaintiff(s):
Add2Net, Inc. Represented By
Kevin Meek
Trustee(s):
Thomas H Casey (TR) Pro Se
9:30 AM
Adv#: 8:18-01206 Sakhai v. Masoudfar
[fr: 2/12/19, 7/23/19, 10/22/19, 1/21/20, 3/24/20, 6/30/20]; 9/29/20, Rm 5D; 10-1-20; 1-21-21; 5-20-21
Docket 1
NONE LISTED -
October 1, 2020
In light of pending settlement negotiations, continue this Status Conference to January 21, 2021 at 9:30 a.m.; an updated Status Report must be filed by January 7, 2021. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
January 21, 2021
Continue the Status Conference one final time to May 20, 2021 at 9:30 a.m.; updated Status Report must be filed by May 6, 2021. (XX)
Special Note: An updated Status Report was not filed by January 7, 2021 as ordered by the Court. If an updated Status Reportis not filed by May 6, 2021, monetary sanctions of not less than $100 will be imposed against Plaintiff's counsel.
Note: Appearances at this hearing are not required; Plaintiff to serve
9:30 AM
notice of the continued hearing date/time.
May 20, 2021
Continue Status Conference to July 1, 2021 at 9:30 a.m. Court to issue an Order To Show Cause why this adversary should not be dismissed for lack of prosecution to be heard on July 1, 2021 at 9:30 a.m. Sanctions in the amount of $100.00 shall be imposed on Plaintiff's counsel for failing to timely file a Status Report by May 6, 2021, payable to the Clerk of the Court by June 21, 2021.
Basis for Tentative Ruling:
The court ruled re the January 21, 2021 Status Conference that sanctions would be imposed if a Status Report was not filed for this hearing by May 6, 2021.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing not required and Plaintiff shall serve notice of the continued hearing date/time.
July 22, 2021 [UPDATED SINCE ORGINAL POSTING]
The court has now reviewed the unilateral pretrial order filed on 7/22/21. Counsel tor Plaintiff needs to revise the order to include a short description of the nature of the testimony of each witness, indicate whether Debtor will be called as an adverse witness, and delete the "phantom" exhibit and witness numbers. Revised order to be lodged by July 26, 2021. Trial date: October 27 at 9:00 a.m. via Zoom; the court's Trial Procedures will apply.
9:30 AM
Debtor(s):
Mohsen Masoudfar Represented By
D Edward Hays
Defendant(s):
Mohsen Masoudfar Pro Se
Plaintiff(s):
Parastou Sakhai Represented By Jeffrey S Shinbrot
Trustee(s):
Weneta M Kosmala (TR) Represented By Reem J Bello
9:30 AM
Adv#: 8:20-01122 Kosmala v. Chandar et al
FR: 11-5-20; 2-18-21; 5-20-21
Docket 1
NONE LISTED -
February 18, 2021
In light of pending mediation, continue this status conference to May 20, 2021 at 9:30 a.m.; updated joint status report must be filed by May 6, 2021. (XX)
Note: Appearances at this status conference are not required; Plaintiff shall serve notice of the continued status conference.
July 22, 2021
In light of the pending settlement, continue his matter this Status Conference to September 30, 2021 at 9:30 a.m.; updated Status Report must be filed by September 16, 2021 if the adversary proceeding is still pending by such date.
Note: Appearances at this Status Conference are not required; Plaintiff shall serve notice of the continued status conference.
9:30 AM
Debtor(s):
Sean Pate Represented By
Anerio V Altman
Defendant(s):
Deepak Chandar Pro Se
Reena A. Shah Pro Se
Spherebase, LLC Pro Se
Spherebase, LLC Pro Se
Plaintiff(s):
Weneta M.A. Kosmala Represented By Erin P Moriarty
Trustee(s):
Weneta M Kosmala (TR) Represented By Erin P Moriarty
9:30 AM
Adv#: 8:20-01004 Upstream Capital Investments LLC v. Guinto
FR: 4-2-20; 6-11-20; 11-5-20; 1-14-21; 4-1-21
Docket 1
NONE LISTED -
April 2, 2020
No proof of service or joint status report have been filed. Plaintiff must appear and advise the court as to why the same were not timely filed.
Note: Telephonic appearance by Plaintiff's counsel is required.
June 11, 2020 [TENTATIVE MODIFIED SINCE ORIGINAL POSTING]
Joint status report was not timely filed by May 28, 2020. Impose sanctions in the amount of $100 against Plaintiff's counsel for failure to do so.
Discovery Deadline: Aug. 14, 2020 Deadline to attend mandatory mediation: Sept. 30, 2020 Pretrial Conference: Nov. 5, 2020 at 9:30
a.m. (XX)
Joint Pretrial Stipulation due: Oct. 22, 2020
Note: If the parties accept the foregoing tentative ruling, appearances at
9:30 AM
this hearing are not required; Plaintiff's counsel shall lodge a scheduling order consistent with the same. Sanctions payable within 30 days of the hearing, payable to the Clerk of the Bankruptcy Court - Central Dist. CA
November 5, 2020
Continue the Pretrial Conference to December 10, 2020 to allow Defendant one final opportunity to participate in the drafting of the Pretrial Stipulation. Defendant must advise Plaintiff's counsel of her suggested revisions to the Pretrial Stipulation no later than November 19, 2020 and Plaintiff will provide Defendant with a copy of the revised Pretrial Stipulation no later than November 30, 2020. The final version of the Joint Pretrial Stipulation must be filed no later than December 3, 2020.
Court's Comments
It is Defendant's best interest to participate in the drafting of the Joint Pretrial Stipulation ("Stipulation") because the Stipulation establishes all issues that will be decided at trial as well as the exhibits and witness that may be presented. Defendant is advised to review Local Bankruptcy Rule 7016-1 re the preparation of joint pretrial stipulations. Unless Defendant participates in the process, the unilateral Joint Pretrial Stipulation (except as noted below) will stand. Defendant is strongly advised to communicate with Plaintiff's counsel regarding the Stipulation.
On pages 2 and 3 of the Stipulation, Plaintiff lists all facts it believes are not in dispute. See paragraphs 1 (a) through (j). If Defendant disagrees with any of those facts, she needs to advise Plaintiff's counsel so that the disputed fact(s) can be included in paragraph 2 (starting at p.3, lines 15-27 to p. 4, lines 1-4). For example, if Defendant agrees that she filed a chapter 7 bankruptcy case on September 26, 2019, that is an "agreed" fact that need not be determined at trial. It is Defendant's responsibility to identify any facts in paragraph 1 that genuinely disputes and communicate that to Defendant.
Paragraph 2 includes facts that the parties do not agree on that must be
9:30 AM
decided by the court at trial, such as whether Defendant made false statements regarding the loan, etc.
Plaintiff states as an undisputed fact on p. 3 at lines 3-7 that a "default judgment for fraud was entered." However, though the complaint attaches several exhibits, a copy of the actual judgment (showing fraud) was not attached. This is important because the state court complaint also includes a cause of action for breach of contract (which is dischargeable) and there is at least a possibility that the judgment could be solely for breach of contract. The court notes that the judgment is not included on Plaintiff's list of exhibits.
Defendant needs to provide to Plaintiff's counsel by November 19, 2020
her list of witnesses (even if its just herself) and a short summary of what the witnesses will testify to; and b) her list of exhibits that she will present in her defense. If Defendant does not provide a list of witnesses or exhibits by November 19, 2020, she will not be allowed to present them at trial.
The trial date will be provided at the December 10, 2020 hearing.
Note: If the both parties accept the tentative ruling, appearances at this hearing are not required and Plaintiff shall serve notice of the continued hearing date and deadlines. Plaintiff is also encouraged to provide Defendant with a copy of the the tentative ruling prior to the hearing.
Debtor(s):
Catherine Melissa-Ann Guinto Represented By Lawrence B Yang
Defendant(s):
Catherine Melissa-Ann Guinto Pro Se
Plaintiff(s):
Upstream Capital Investments LLC Represented By
Lynda E Jacobs
9:30 AM
Trustee(s):
Weneta M Kosmala (TR) Pro Se
9:30 AM
(Chapter 7 Trustee is Substituted in Place of Kurtin as Moving Party in Respect to Motion, Per Order Entered 10/9/2020)
FR: 5-7-20; 5-21-20; 6-25-20; 7-16-20; 9-17-20; 11-19-20; 2-18-21
July 22, 2021
Continue this hearing to August 19, 2021 at 9:30 a.m., same date/time as the next hearing in Adv. No. 20-01046 (this matter has been consolidated with Adv No. 20-01046)
Note: Appearances at this hearing are not required at this hearing.
Docket 381
OFF CALENDAR: Order Consolidating Motion with Adversary #20-01046 Entered 2/23/21- mp(7/12/21)
June 25, 2020
Continue hearing to July 16, 2020 at 2:00 p.m. (XX)
July 16, 2020
9:30 AM
The court is currently not persuaded that Section 329(a) provides a sufficient legal basis for the relief sought. It appears that Mr. Benice represents Debtor only in the dischargeability adversary proceeding. Section 329 (a) applies to "any attorney representing a debtor in a case under this title . . ." and FRBP 2016(b) an attorney for a debtor to file a disclosure statement "within 14 days after the order of relief" or "at another time as the court may direct."
Movant should focus his argument today the application to Section 329 to the circumstance where an attorney is representing a debtor solely in an dischargeability action and direct the court to the evidence he feels supports a finding that such representation was contemplated at the time of the subject transfer.
September 17, 2020
Continue this matter to November 19, 2020 at 10:30 a.m.; updated status report must be filed by November 5, 2020. (XX)
Note: Appearances at this hearing are not required.
November 19, 2020
No new pleadings have been filed in this matter. Trustee shall appear and advise the court regarding the status.
February 18, 2021
Continue hearing to July 22, 2021 at 9:30 a.m. in light of the court's granting of the chapter 7 trustee's request to consolidate this matter with Adversary No. 20-01046, pursuant to FRBP 7042 and FRCP 42. (XX)
Note: Appearances at this hearing are not required.
9:30 AM
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson
Movant(s):
Todd Kurtin Represented By
Lewis R Landau Edward O Morales
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe
9:30 AM
Adv#: 8:20-01161 Kurtin v. Elieff
FR: 2-4-21
Docket 1
SPECIAL NOTE: Stipulation to Continue Haering on Plaintiff's Motion for Summary Judgment to 6/17/21 at 2:00 pm; and (2) Extending Discovery Cutoff and Related Scheduling Order Dates and Deadlines filed 3/31/21; and to Continue Pre-trial Conference to 9/16/21 at 9:30 a.m.; Order Approving Stipulation Lodged in LOU on 3/31/21, Order #10304773 - td (3/31/2021)
February 4, 2021
Discovery Cut-off Date: June 1, 2021 Deadline to file Summary Jgmt Motion: March 4, 2021
Pretrial Conference Date: July 22, 2021 at 9:30 a.m. (XX)
Deadline to file Joint Pretrial Stipulation: July 8, 2021
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
9:30 AM
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson Robert P Goe
Defendant(s):
Bruce Elieff Pro Se
Plaintiff(s):
Todd Kurtin Represented By
Lewis R Landau
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe Claire K Wu
9:30 AM
Adv#: 8:20-01008 Barrette v. United States of America, Treasury Department, Int
FR: 4-16-20; 6-11-20; 7-16-20; 9-17-20; 10-22-20; 12-10-20; 2-18-21; 5-20-21
Docket 1
NONE LISTED -
February 18, 2021
Continue this status conference to May 20, 2021 at 9:30 a.m.; an updated joint status report must be filed by May 6, 2021. (XX)
Note: Appearances at this hearing are not required if all the parties accept the foregoing tentative ruling and Plaintiff shall serve notice of the continued hearing date/time.
May 20, 2021
Continue Status Conference to August 19, 2021 at 9:30 a.m.; updated Joint Status Report must be filed by August 5, 2021.
Note: Appearances at this hearing are not required if all the parties accept the foregoing tentative ruling and Plaintiff shall serve notice of the continued hearing date/time.
July 22, 2021
9:30 AM
Discovery Cut-off Date: Jan. 21, 2022
Pretrial Conference Date: Feb. 17, 2022 at 9:30 a.m. Deadline to Lodge Joint Pretrial Stipulation: Feb. 3, 2022
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
Debtor(s):
Jason M. Barrette Represented By
James D. Hornbuckle
Defendant(s):
United States of America, Treasury Pro Se
Plaintiff(s):
Jason M. Barrette Represented By
James D. Hornbuckle
Trustee(s):
Richard A Marshack (TR) Pro Se
9:30 AM
Adv#: 8:20-01113 Dawam v. Yehia
FR: 10-22-20; 11-5-20; 1-14-21
Docket 1
SPECIAL NOTE: Main Case Closed 8/11/2020 - td (8/25/2020). Order on Motion for Order Abstaining and Abating Adversary Proceeding Pending Trial of State Court Proceeding After Grant of Relief from Automatic Stay Entered 1/27/2021 - td (1/27/2021)
October 22, 2020
Continue Status Conference to November 5, 2020 at 2:00 p.m., same date/time as hearing on Defendant's motion to dismiss. Updated Status Report not required for the November 5, 2020 hearing. (XX)
Note: If all parties accept the foregoing tentative ruling, appearances at today's hearing are not required.
January 14, 2021
Continue Status Conference to May 20, 2021 at 9:30 a.m.; updated Joint Status Report must be filed by May 6, 2021.
Note: If all parties accept the foregoing tentative ruling, appearances at today's hearing are not required.
9:30 AM
July 22, 2021
Continue Status Conference to August 19, 2021 at 9:30 a.m. as a holding date pending completion of the settlement; updated Status Report must be filed by August 12, 2021 if the adversary is still pending as of such date.
Note: If all parties accept the foregoing tentative ruling, appearances at today's hearing are not required. Plaintiff shall give notice of the continued hearing date/time.
Debtor(s):
Mazin M. Yehia Represented By Christine A Kingston
Defendant(s):
Mazin M. Yehia Pro Se
Plaintiff(s):
Naeel Hamdy Dawam Represented By Benjamin R Heston
Trustee(s):
Jeffrey I Golden (TR) Pro Se
10:00 AM
(OST Entered 6/9/2021)
CAM XI TRUST, its successors and/or assignees VS.
DEBTOR FR: 6-17-21
Docket 20
OFF CALENDAR: Order of Dismissal Arising from Debtor's Request for Voluntary Dismissal of Ch 13 with Restrictions (11 U.S.C. Sections 109(g)(2) and 1307(b) Entered 7/21/2021 - (7/21/2021)
June 17, 2021
Continue the hearing to July 22, 2021 at 10:00 a.m. to allow Movant to file and serve supplemental evidence re 1) the monthly payment amount, 2) the number of missed payments, and 3) the date of the first default under the promissory note. The supplemental pleading must be filed by June 24, 2021; any opposition by Debtor must be filed and served by July 8, 2021; any reply to the opposition must be filed by July 15, 2021. (XX)
Basis for Tentative Ruling
10:00 AM
The court is inclined to grant the motion with all extraordinary relief requested in light of 1) the fact that 17 prior bankruptcy cases have been filed affecting this case, 2) The junior lien recorded by Debtor in 2010 includes beneficiaries who are known to the courts in the District for engaging in fraudulent activity concerning distressed real property and 3) Debtor's chapter 13 plan appears to be infeasible as it does not provide for payment in full of the arrearages over 60 months plus payment of current postpetition mortgage payments.
However, the Motion fails to include the following critical evidence:
The amount of the monthly payment
A ledger that establishes the dates and amount of missed payments
This is information is necessary to determine whether the payments were in default at the time of the reccordation of the 2010 junior deed of trust.
Note: If Movant accepts the tentative ruling, it must provide notice of the continued hearing date/time and the deadlines therein as well as the Zoom notice, including the call-in telephone number information.
July 22, 2021
Take matter off calendar in light of Debtor's voluntary dismissal of the bankruptcy case. The case is being dismissed with a 180-day restriction against re-filing another bankruptcy case pursuant to 11 U.S.C. 109(g)(2).
Debtor(s):
Urbana Foote Pro Se
Movant(s):
CAM XI TRUST, its successors Represented By Joshua L Scheer Reilly D Wilkinson
10:00 AM
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
FR: 11-19-20; 2-4-20; 4-1-21; 5-6-21
Docket 441
OFF CALENDAR: Order Approving Settlement Between State Compensation Insurance Fund and Douglas J. Patrick Entered 6/15/2021 - td (6/15/2021)
November 19, 2020
Continue this hearing to January 21, 2021 at 10:30 a.m. to allow a) Objecting Party to take discovery as permitted by FRBP 9014 for contested matters and
additional briefing by the parties to address the issues set forth in the the court's "Basis for Tentative Ruling" comments.
Basis for Tentative Ruling
Creditor State Compensation Insurance Fund ("Claimant") filed proof of claim no. 8-1 (the "Claim") in the general unsecured amount of $1,350,389.47 for "Insurance Policy" for unpaid workers’ compensation insurance premiums for policy years 2002-2006.
Creditor Douglas Patrick ("Patrick") objects to the Claim and requests disallowance in full because the Claim includes several errors that increased the premium amounts (the "Objection")[dkt. 441]. Claimant opposes the Objection (the "Opposition")[dkt. 454].
10:30 AM
The Objection is continued for further briefing regarding statute of limitations and whether the Claim has already been fully adjudicated and liquidated prepetition
A proof of claim executed and filed in accordance with the Federal Rules of Bankruptcy Procedure 3001(f) constitutes prima facie evidence of the validity and amount of the claim. See Rule 3001(f); In re Lundell, 223 F.3d 1035, 1039 (9th Cir. 2000). Therefore, a proof of claim will be deemed allowed unless a party in interest objects. Lundell, 223 F.3d at 1039. Once a party in interest objects, the proof of claim will still provide some evidence as to its validity and amount, and will be strong enough to carry over a mere formal objection without more. Id. Thus, a party objecting to a claim must present affirmative evidence to overcome the presumption of its validity by showing "facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claims." Id. (citing In re Holm, 931 F.2d 620, 623 (9th Cir. 1991); In re King Street Inv., Inc., 219 B.R. 848, 858 (BAP 9th Cir. 1998). If the objector produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, then the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Lundell, 233 F.3d at 1039. The ultimate burden of persuasion remains at all times upon the claimant. Id.; Holm, 931 F.2d 620 (9th Cir. 1991).
In this case, Claimant filed the Claim in accordance with Rule 3001.
The Claim was filed with Official Form 410 and included supporting documentation. See, Obj., Ex. 1 (the Claim). Thus, Claimant has complied with Rule 3001 and the Claim is entitled to prima facie validity under Rule 3001(f).
Since the Claim is entitled to prima facie validity, Patrick must present affirmative evidence to overcome the Claim’s presumption of validity. Patrick argues that the Claim includes the following errors: Claimant misclassified Debtor’s employees as "electrical" workers resulting in higher insurance premiums, mistakenly charged for employees that worked outside of California and were not insured under the policy, and failed to explain why the "Experience Modifier" increased from 105% to 172% in one year. See, Obj.,
p. 2. Claimant counters that Patrick fails to rebut the prima facie validity of
10:30 AM
the Claim because Patrick’s arguments relate only to the 2006 policy year premiums (and not the 2002-2005 policy year premiums) underlying the claim and Claimant already conducted an internal, prepetition audit which confirmed the amounts claimed in the Claim. See, Opp’n, p. 4. Patrick’s responds by challenging the reliability of the evidence provided by Claimant (such as pointing out that policy contract that was attached to the Opposition was "revised" in August 2010 and therefore cannot be the policy contract entered into by Debtor and Claimant in 2000), that Debtor was unaware that amounts were owed for policy years 2002-2005 until the Claim was filed, and stating that Claimant failed to attach its internal audit records so the accuracy of Claimant’s figures cannot be confirmed because Debtor does not have access to those internal audit records. See, Reply, p. 3-4 and Opp’n, p. 6 of Ex. A. Claimant’s argument that the Objection only raises arguments regarding the 2006 policy year is also undermined by Claimant’s own exhibit of a letter from Debtor’s prepetition counsel to Claimant dated January 23, 2007 that references the ongoing dispute over the final audits for the policy years 2003-2007. See, Opp’n, Ex. C.
Accordingly, there is a disputed question of fact regarding the accuracy of Claimant’s calculation of the insurance premiums due for the policy years 2002-2006. Such dispute may warrant discovery as requested by Patrick. In addition, the parties must address the threshold issue regarding the statute of limitations and whether the Claim is already fully adjudicated and liquidated.
Patrick has raised the argument that any breach of the policy contract that occurred before October 7, 2005 may be barred by the 4-year statute of limitations for written contracts. See, Reply, p. 3, n. 1. As this argument was first raised in the Reply, Claimant has not had an opportunity to address it.
On the other hand, Claimant raises the argument that the Claim has been fully adjudicated and liquidated prepetition with following testimony from Kimberly Byrne: "State Fund’s records do not indicate that Debtor requested reconsideration of State Fund’s determination or appealed to the Administrative Hearing Bureau at the California Department of Insurance" and "State Fund’s records do not show that Debtor disputed the revised experience modification with State Fund, the WCIRB or appealed to the Administrative Hearings Bureau of the California Department of Insurance
10:30 AM
within the time prescribed by law." See, Kimberly Byrne Decl., p. 2-3, ¶5 and
p. 3, ¶6 (emphasis added).
EVIDENTIARY OBJECTIONS
Objection #* Ruling
Sustained
Overruled: the testimony identifies the documents as "final"
bills. The objection is in the nature of argument.
Overruled: the objection is in the nature of argument
Sustained: hearsay
Overruled: th testimony is in the nature of argument
Sustained: hearsay
*For ease of reference, the court has assigned a chronologica number to each objection .
May 6, 2021
If the settlement is still being finalized this hearing may be continued one final time by the parties requesting a continuance during the calendar roll call prior to the hearing. Available continued hearing dates are July 15, 2021 or July 22, 2021 at 10:30 a.m. (XX)
Debtor(s):
Commercial Services Building Inc Represented By
Phillip B Greer
10:30 AM
Trustee(s):
Karl T Anderson (TR) Represented By
Misty A Perry Isaacson Misty A Perry Isaacson Thomas J Polis
Robert M Dato Jason E Goldstein
10:30 AM
FR: 2-11-21, 2-18-21; 3-4-21; 4-1-21; 5-6-21
Docket 962
CONTINUED: Hearing Continued to 10/21/2021 at 10:30 a.m., Per Order
Entered 7/14/2021 (XX) - td (7/14/2021)
May 6, 2021
If the matter is settled, deny motion as moot. Alternatively, Movant may voluntarily withdraw the motion. If the parties require more time to complete the settlement, the hearing may be continued one final time to June 3, 2021 or June 10, 2021 at 10:30 a.m. by requesting a continuance during the calendar roll call just prior to the hearing.
Debtor(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel Bobby Samini Dean A Ziehl
Gary A Pemberton Shane M Biornstad
10:30 AM
Adv#: 8:19-01108 Pipitone v. Choice Motor Credit, LLC
Docket 87
NONE LISTED -
July 22, 2021
Grant the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Alicia K Pipitone Represented By Marc A Goldbach
Defendant(s):
Choice Motor Credit, LLC Represented By
Misty A Perry Isaacson
Plaintiff(s):
Alicia Pipitone Represented By Douglas A. Crowder
10:30 AM
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
Docket 71
OFF CALENDAR: Notice of Withdrawal of Debtors' Motion to Compel Trustee to Abandon All Property filed 7/21/2021 - td (7/21/2021)
July 22, 2021
Grant the motion as to all unabandoned property except as to Debtors' interest in the Oracle stock options ("Stock Options"). Continue the hearing solely as to the Stock Options to September 16, 2021 at 10:30 a.m.. The Trustee shall file a pleading by or before August 19, 2021 advising the Court of the status of her administration of the Stock Options; Debtors may file a reply to such pleading by or before Sept. 2, 2021.
Basis for the Tentative Ruling:
The Trustee's opposition does not appear to oppose the abandonment of all assets other than the Stock Options. Notably, the real property has previously been abandoned and is, therefore, not the subject of this Motion.
Debtors have provided no legal authority for their position that the Stock Options are not property of the bankruptcy estate and have not met their burden of establishing that the Stock Options are of no or inconsequential value to the estate.
The court finds the legal authority cited in Trustee's Opposition persuasive, to wit In re Dittmar, 618 F/3d 1199 )10th Cir. 210); In re Dibiase, 270 BR 673 (Bankr.W.D.Tex. 2001).
10:30 AM
The Court is not denying the Motion as to the Stock Options at this time because of its concern about the status of Trustee's administration of this asset. Trustee's counsel was approved by order of the Court on February 17, 2021 and yet Trustee's declaration in the Opposition is vague about the specifics of the progress that has been made in the past five months. If Trustee cannot show any progress in administering the subject asset in the next 28 days, the court might be inclined to grant the Motion as to the same.
Note: If all parties accept the tentative ruling, appearances at this hearing are not required.
Debtor(s):
Richard A. Richards Represented By Timothy McFarlin
Joint Debtor(s):
Erin Richards Represented By Timothy McFarlin
Trustee(s):
Weneta M.A. Kosmala (TR) Represented By Erin P Moriarty
10:30 AM
Docket 147
NONE LISTED -
July 22, 2021
Grant the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Eric C. Bryant Represented By Christine A Kingston
Joint Debtor(s):
Gina K Bryant Represented By Christine A Kingston
Movant(s):
Karen S Naylor (TR) Represented By Thomas H Casey
10:30 AM
Trustee(s):
Karen S Naylor (TR) Represented By Thomas H Casey
10:30 AM
(Set per Order Entered 3/15/2021) FR: 6-17-21
Docket 59
NONE LISTED -
June 17, 2021
Continue the hearing to July 22, 2021 at 10:30 a.m. to allow Debtor to 1) serve, by June 18, 2021, all creditors with the Amended Plan filed [dkt # 74] with notice that the deadline to file an objection to confirmation of the same is July 8, 2021; 2) propose remedies for default under the Amended Plan as required by Bankruptcy Code Section 1191(c)(3). (XX)
Basis for Tentative Ruling
The Amended Plan includes a material term change -- the extension of the term from three to five years -- that all creditors did not receive notice of. The court has no way of knowing whether a creditor (other than the two secured creditors) might have filed an objection to the modification of the term.
The Amended Plan does not satisfy 1191(c)(3).
Clarify whether insider claims will be paid pro rata with unsecured creditors.
Note: If the parties accept the tentative ruling, appearances at this hearing are not required.
10:30 AM
July 22, 2021
This hearing is off calendar in light of Debtor filing a second amended plan on July 2, 2021 and setting a confirmation hearing re the same on August 5, 2021 at 10:30 a.m.
Note: Appearances at today's hearing are not required.
Debtor(s):
Beck & Chase Enterprises, Inc. Represented By Jeffrey B Smith
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
Docket 61
NONE LISTED -
July 22, 2021
Sustain Objection
Note: This matter appears to be uncontested. Accordingly, no court appearance by or on behalf of Debtor is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Debtor's counsel will be so notified.
Debtor(s):
John Steven Domingos Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
FR: 6-3-21
Docket 33
NONE LISTED -
June 3, 2021
Sustain the objection. For purposes of plan confirmation, the Claim is estimated at $0.00 pursuant to 11 U.S.C. 502(c)(1)
Basis for Tentative Ruling
A proof of claim executed and filed in accordance with FRBP 3001(f) constitutes prima facie evidence of the validity and amount of the claim. Rule 3001(f); Lundell v. Anchor Const. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). Therefore, a proof of claim will be deemed allowed unless a party in interest objects. Lundell, 223 F.3d at 1039. A party who seeks to defeat a claim must provide sufficient evidence and show facts which have probative force equal to that of the "allegations of the proofs of claims themselves." Id. at 1039. Once a party in interest objects, the proof of claim will still provide some evidence as to its validity and amount, and will be strong enough to carry over a mere formal objection without more. Id. Thus, a party objecting to a claim must present affirmative evidence to overcome the presumption of its validity by showing "facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claims." Id. (citing In re Holm, 931 F.2d 620, 623 (9th Cir. 1991); In re King Street Inv., Inc., 219 B.R. 848, 858 (BAP 9th Cir. 1998). If the objector produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, then the burden
10:30 AM
reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Lundell, 233 F.3d at 1039. The ultimate burden of persuasion remains at all times upon the claimant. Id.; Holm, 931 F.2d 620 (9th Cir. 1991).
In this matter, Debtors have provided sufficient evidence to negate personal liability for the $900k claim through the Memorandum of Understanding attached to the proof of claim which clearly indicates the agreement between the corporate entity Advantage Manufacturing Inc and Claimant. The ultimate burden of persuasion then shifted to Claimant.
Claimant has not met its ultimate burden of proof based on the following:
Allegations in a complaint do not constitute evidence.
Statements based on information and belief do not constitute evidence.
Claimant has presented a 182-page deposition of Debtors' accountant, Elaine Han, without even marking the testimony that it believes somehow supports a finding of alter ego. See LBR 7030-1(b)(2) (requiring the marking of testimony offered in a contested hearing).
In sum, Claimant has provided no evidence of alter ego liability.
Pursuant to Bankruptcy Code Section 502(c)(1), this court must estimate, for purpose of allowance for plan confirmation purposes, "any contingent or unliquidated claim, the fixing or liquidation of which, as the case may be, would unduly delay the administration of the case;" See, In re Corey,
892 F.2d 829, 834 (9th Cir. 1989). The discretion of the court in this regard is broad. Id.
Though Claimant provides no information re the status of the case pending in District Court, it appears the case was filed more than three years ago in 2017 and is not yet ready for trial (jury trial demanded). Debtors have listed numerous other creditors, including the IRS. As the litigation in District
10:30 AM
Court could take several months to years, such a delay would unduly delay the administration of this chapter 13 case. Accordingly, based on the lack of evidence presented in support of the alter ego claim, the court determines that, for plan confirmation purposes, the amount of the claim is estimated at zero. Obviously, Debtors' discharge could be adversely affected if they are later determined to be liable in the District Court action.
July 22, 2021
Sustain the objection. For purposes of plan confirmation, the Claim is estimated at $0.00 pursuant to 11 U.S.C. 502(c)(1).
Basis for Tentative Ruling:
Same comments as for the June 3, 2021 hearing (see above). The striking of the answer of the corporate entity and default judgment against the same has no legal impact on, and does nothing to advance Claimant's argument or evidence regarding Debtor's alleged liability under the equitable theory of alter ego.
Note: If Claimant acceepts the tentative ruling, appearances at this hearing are not required.
Debtor(s):
Michael Collins Represented By Douglas A. Crowder
Joint Debtor(s):
Lyann Courant Represented By Douglas A. Crowder
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
[FINANCIAL RELIEF LEGAL ADVOCATES, INC. AND JOHN H. BAUER - DEBTOR'S ATTORNEY]
Docket 132
NONE LISTED -
July 22, 2021
Approve fees and expenses on an interm basis as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
DEA Brothers Sisters LLC Represented By John H Bauer
10:30 AM
U.S.C. Section 727 and FRBP Rule 4004(b)(1)
Docket 80
NONE LISTED -
July 22, 2021
The Trustee will have 10 minutes to highlight arguments in support of the Motion; Debtor will have 10 minutes to highlight arguments in opposition to the Motion; Trustee will have 5 minutes to respond. The matter will then be taken under submission. A written ruling will be issue by July 27, 2021.
Debtor(s):
Alicia Marie Richards Pro Se
Trustee(s):
Richard A Marshack (TR) Represented By Richard G Heston
10:30 AM
FR: 7-1-21
Docket 55
NONE LISTED -
July 1, 2021
Continue this hearing to July 15, 2021 at 10:30 a.m. to allow Debtor to file a substantive reply to the Trustee's supplemental opposition. Any supplemental reply must be filed no later than July 8, 2021 and must be limited to issues raised in the supplemental opposition. No new issues may be raised in the reply. If Debtor does not wish to file a reply to the supplemental opposition, the court will hear oral argument at today's hearing and take the matter under submission, with a ruling to be issued by or before July 8, 2021 (no new pleadings by any party).
July 22, 2021
Debtor will have 10 minutes to highlight arguments in support of the Motion; Opponents will each have 10 minutes to highlight arguments in opposition to the Motion;; Debtor will have 5 minutes to respond. The matter will then be taken under submission. A written ruling will be issue by July 27, 2021.
Debtor(s):
Alicia Marie Richards Pro Se
10:30 AM
Trustee(s):
Richard A Marshack (TR) Represented By Richard G Heston
10:30 AM
Docket 1
OFF CALENDAR: Order Granting Emergency Motion of Debtor and Debtor in Possession For Order Dismissing Chapter 11 Case Entered 5/27/2021 - td (5/27/2021)
NONE LISTED -
Debtor(s):
Synrgo, Inc. Represented By
Sean A OKeefe
2:00 PM
Adv#: 8:20-01010 Grobstein v. Degner
Docket 117
CONTINUED: Hearing Continued to 10/21/2021 at 2:00 p.m., Per Order Entered 7/2/2021 (XX) - adm/td (7/12/2021)
NONE LISTED -
Debtor(s):
Solid Landings Behavioral Health, Represented By
David L. Neale Juliet Y Oh Jeffrey S Kwong David M Samuels
Defendant(s):
Gerik M. Degner Represented By Ismail Amin
Plaintiff(s):
Howard B Grobstein Represented By Rodger M. Landau Monica Rieder
2:00 PM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for Judge Erithe A. Smith’s Cases" on the Court's website at:
2:00 PM
https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
2:00 PM
FR 4-1-21
Docket 1011
CONTINUED: Hearing Continued to 12/9/2021 at 2:00 pm, Per Order
Entered 6/8/2021 (XX) - td (6/8/2021)
Debtor(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel Bobby Samini Dean A Ziehl
Gary A Pemberton Shane M Biornstad
2:00 PM
FR: 4-1-21
Docket 1022
CONTINUED: Hearing Continued to 12/9/2021 at 2:00 pm, Per Order
Entered 6/8/2021 (XX) - td (6/8/2021)
Debtor(s):
John Jean Bral Represented By Beth Gaschen Alan J Friedman William N Lobel Bobby Samini Dean A Ziehl
Gary A Pemberton Shane M Biornstad
1:30 PM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for Judge Erithe A. Smith’s Cases" on the Court's website at:
1:30 PM
https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
1:30 PM
Docket 1
OFF CALENDAR: Order Dismissing Case for Failure to File Schedules, Statements, and/or Plan Entered 7/6/2021 - td (7/13/2021)
Debtor(s):
Lisa Michele Giannelli Pro Se
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
NONE LISTED -
Debtor(s):
Adam Paul Dunn Represented By Andy C Warshaw
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 18
NONE LISTED -
Debtor(s):
Hector German Gabira Represented By Anerio V Altman
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
NONE LISTED -
Debtor(s):
Kelly Kristine Goodman Represented By Brian J Soo-Hoo
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 8
OFF CALENDAR: Order of Dismissal Arising from Debtor's Request for Voluntary Dismissal of Chapter 13 Entered 7/23/2021 - td (7/26/2021)
Debtor(s):
Bassam Istambouli Represented By Anerio V Altman
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 10
NONE LISTED -
Debtor(s):
Phillip Kwan Represented By
Julie J Villalobos
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 17
OFF CALENDAR: Order of Dismissal Arising from Debtor's Request for Voluntary Dismissal of Ch 13 with Restrictions (11 U.S.C. Sections 109(g)(2) and 1307(b) Entered 7/21/2021 - td (7/21/2021)
Debtor(s):
Urbana Foote Pro Se
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 15
NONE LISTED -
Debtor(s):
Rosie Aldaz Represented By
Halli B Heston
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 13
NONE LISTED -
Debtor(s):
Christine Lee Miller Represented By Jonathan D Doan
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
NONE LISTED -
Debtor(s):
Evelyn Ahumada Represented By Heather J Canning
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 19
NONE LISTED -
Debtor(s):
Vanessa Allison Tunks Represented By Rex Tran
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 13
NONE LISTED -
Debtor(s):
Sina Krause Represented By
Trang Phuong Nguyen
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 45
NONE LISTED -
Debtor(s):
Erica Duarte Bruce Represented By Andrew Moher
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 49
NONE LISTED -
Debtor(s):
Ronaldo Marquez Represented By Stephen L Burton
Joint Debtor(s):
Cristina Marquez Represented By Stephen L Burton
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 19
NONE LISTED -
Debtor(s):
Michael Collins Represented By Douglas A. Crowder
Joint Debtor(s):
Lyann Courant Represented By Douglas A. Crowder
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 20
NONE LISTED -
Debtor(s):
John Steven Domingos Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
NONE LISTED -
Debtor(s):
Roman Israel Pacheco Represented By David Lozano
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 6-22-21
Docket 73
NONE LISTED -
Debtor(s):
Eric Anthony Perez Represented By Christopher J Langley Michael Smith
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 5-25-21
Docket 42
NONE LISTED -
Debtor(s):
Zeta Jayectin Besas Represented By
Hasmik Jasmine Papian
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 94
NONE LISTED -
Debtor(s):
Mario Jonathan Saldivar Represented By Joshua L Sternberg
Joint Debtor(s):
Alicia Marie Braddock Represented By Joshua L Sternberg
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 97
NONE LISTED -
Debtor(s):
Edgar Guzman Represented By Rebecca Tomilowitz
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 4-27-21
Docket 126
OFF CALENDAR: Notice of Withdrawal of Trustee's Motion, filed 7/20/2021 - td (7/20/2021)
Debtor(s):
Darryl L. Cazares Represented By
Joseph Arthur Roberts
Joint Debtor(s):
DeAnna J. Cazares Represented By
Joseph Arthur Roberts
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 4-27-21
Docket 200
NONE LISTED -
Debtor(s):
Paul Edward Rubio Represented By Lauren Rode
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 94
NONE LISTED -
Debtor(s):
David Hepburn Represented By Julie J Villalobos
Joint Debtor(s):
Kimberly Hepburn Represented By Julie J Villalobos
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 12-18-20; 5-25-21
Docket 41
OFF CALENDAR: Notice of Withdrawal of Trustee's Motion, filed 7/20/2021 - td (7/20/2021)
Debtor(s):
Michael A. Balogh Represented By Joseph A Weber Fritz J Firman
Joint Debtor(s):
Brenda R. Julian Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
9:00 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
9:00 AM
"Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
NONE LISTED -
9:00 AM
Adv#: 8:19-01122 M.G.B. Construction, Inc. v. Duerscheidt
Objection to Discharge [11 U.S.C. §727(a)(4)] (Set at PTC Held 1-21-21)
Docket 1
OFF CALENDAR: Trial Dates Set for 9/22/21, 9/23/21, and 9/24/21 at 9:00 each day, Per Trial Procedures Status Conference Held 6/10/21 (XX) - td (6/10/2021)
NONE LISTED -
Debtor(s):
Cassandra Dean Duerscheidt Represented By Brian J Soo-Hoo
Defendant(s):
Cassandra Dean Duerscheidt Pro Se
Plaintiff(s):
M.G.B. Construction, Inc. Represented By Scott A Kron
Trustee(s):
Weneta M Kosmala (TR) Pro Se
10:00 AM
Docket 60
NONE LISTED -
July 28, 2021
Grant the Motion if unopposed.
Debtor(s):
Scott Peter Hamilton Represented By Julie Nong
Trustee(s):
Karen S Naylor (TR) Represented By Nanette D Sanders
9:00 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for Judge Erithe A. Smith’s Cases" on the Court's website at:
9:00 AM
https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
9:00 AM
Adv#: 8:19-01122 M.G.B. Construction, Inc. v. Duerscheidt
(Set at PTC Held 1-21-21) FR: 7-28-21
Docket 1
OFF CALENDAR: Trial Dates Set for 9/22/21, 9/23/21, and 9/24/21 at 9:00 each day, Per Trial Procedures Status Conference Held 6/10/21 (XX) - td (6/10/2021)
Debtor(s):
Cassandra Dean Duerscheidt Represented By Brian J Soo-Hoo
Defendant(s):
Cassandra Dean Duerscheidt Pro Se
Plaintiff(s):
M.G.B. Construction, Inc. Represented By Scott A Kron
Trustee(s):
Weneta M Kosmala (TR) Pro Se
9:00 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for Judge Erithe A. Smith’s Cases" on the Court's website at:
9:00 AM
https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
9:00 AM
Adv#: 8:19-01122 M.G.B. Construction, Inc. v. Duerscheidt
(Set at PTC Held 1-21-21) FR: 7-28-21; 7-29-21
Docket 1
OFF CALENDAR: Trial Dates Set for 9/22/21, 9/23/21, and 9/24/21 at 9:00 each day, Per Trial Procedures Status Conference Held 6/10/21 (XX) - td (6/10/2021)
Debtor(s):
Cassandra Dean Duerscheidt Represented By Brian J Soo-Hoo
Defendant(s):
Cassandra Dean Duerscheidt Pro Se
Plaintiff(s):
M.G.B. Construction, Inc. Represented By Scott A Kron
Trustee(s):
Weneta M Kosmala (TR) Pro Se
9:30 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for Judge Erithe A. Smith’s Cases" on the Court's website at:
9:30 AM
https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
NONE LISTED -
10:00 AM
Adv#: 8:16-01024 Floorit Financial, Inc. v. Upadhyaya
FR: 4-9-20; 6-4-20; 9-10-20; 11-19-20; 1-14-21; 5-20-21
Docket 20
CONTINUED: Order Approving Stipulation to Continue Examinations to November 18, 2021 at 10:00 a.m. Entered 7/28/2021- mp/td (7/28/2021)
June 4, 2020
Continue the examination to September 10, 2020 at 10:00 a.m. (XX) Basis for Tentative Ruling
The courthouse remains closed to in-person court appearances and on-site in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse, including by video conference, prior to September 10, 2020. Depending on the status of pandemic-related rules and policies in place on September 1, 2020, the September 10, 2020 hearing may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
10:00 AM
September 10, 2020
Continue the examination to November 19, 2020 at 10:00 a.m. (XX) Basis for Tentative Ruling
The courthouse is currently closed to in-person court appearances and on- site in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse, including by video conference, prior to November 19, 2020. Depending on the status of pandemic-related rules and policies in place on November 19, 2020, the examination may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
November 19, 2020
This tentative ruling applies to #s 15 and 16 on today's calendar:
The courthouse is currently closed to in-person court appearances and on- site in-person judgment debtor examinations. However, as this court now conducts hearings on the Zoom platform, the examination may be accommodated by placing the parties in a separate private Zoom "room" after the examinees are sworn in by the courtroom clerk. It will the responsibility of the Judgment Creditor to either have the court reporter call into the Zoom hearing at the commencement of the hearing or to make other arrangements for the participation of the court reporter. Alternatively, the Judgment Creditor is free to schedule an examination outside the courthouse, including by video conference, in which case this hearing will be continued to January 14, 2021 at 10:00 a.m.
The Judgment Creditor shall advise the courtroom clerk of its choice at the time of the calendar roll call.
10:00 AM
Debtor(s):
Darshan Upadhyaya Represented By Amid Bahadori
Defendant(s):
Darshan Upadhyaya Represented By Amid Bahadori
Plaintiff(s):
Floorit Financial, Inc. Represented By
Tom Roddy Normandin James T Jackson
Trustee(s):
Jeffrey I Golden (TR) Represented By Jeremy Faith Nina Z Javan
Meghann A Triplett
10:00 AM
Adv#: 8:16-01024 Floorit Financial, Inc. v. Upadhyaya
FR: 4-2-20; 6-4-20; 9-10-20; 11-19-20; 1-14-21; 5-20-21
Docket 23
CONTINUED: Order Approving Stipulation to Continue Examinations to November 18, 2021 at 10:00 a.m. Entered 7/28/2021- mp/td (7/28/2021)
April 2, 2020
In order to comply with social distancing guidelines, continue the examination to June 4, 2020 at 10:00 a.m., except that the parties are free to stipulate to a remote videoconference examination at a mutually agreeable time prior to June 4, 2020.
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiff shall lodge an order consistent with the same.
June 4, 2020
Continue the examination to September 10, 2020 at 10:00 a.m. (XX) Basis for Tentative Ruling
10:00 AM
The courthouse remains closed to in-person court appearances and on-site in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse in accordance with applicable rules, including by video conference, prior to September 10, 2020. Depending on the status of pandemic-related rules and policies in place on September 1, 2020, the September 10, 2020 hearing may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
September 10, 2020
Continue the examination to November 19, 2020 at 10:00 a.m. (XX) Basis for Tentative Ruling
The courthouse is currently closed to in-person court appearances and on- site in-person judgment debtor examinations. Judgment creditor is free to schedule an examination outside the courthouse, including by video conference, prior to November 19, 2020. Depending on the status of pandemic-related rules and policies in place on November 19, 2020, the examination may be further continued.
Note: If the Judgment Creditor accepts the foregoing tentative ruling, appearance at this hearing is not required and Judgment Creditor shall serve notice of the continued hearing date/time. Non-appearance at the hearing will be deemed acceptance of the tentative ruling.
November 19, 2020
This tentative ruling applies to #s 15 and 16 on today's calendar:
10:00 AM
The courthouse is currently closed to in-person court appearances and on- site in-person judgment debtor examinations. However, as this court now conducts hearings on the Zoom platform, the examination may be accommodated by placing the parties in a separate private Zoom "room" after the examinees are sworn in by the courtroom clerk. It will the responsibility of the Judgment Creditor to either have the court reporter call into the Zoom hearing at the commencement of the hearing or to make other arrangements for the participation of the court reporter. Alternatively, the Judgment Creditor is free to schedule an examination outside the courthouse, including by video conference, in which case this hearing will be continued to January 14, 2021 at 10:00 a.m.
The Judgment Creditor shall advise the courtroom clerk of its choice at the time of the calendar roll call.
Debtor(s):
Darshan Upadhyaya Represented By Amid Bahadori
Defendant(s):
Darshan Upadhyaya Represented By Amid Bahadori
Plaintiff(s):
Floorit Financial, Inc. Represented By
Tom Roddy Normandin James T Jackson
Trustee(s):
Jeffrey I Golden (TR) Represented By Jeremy Faith Nina Z Javan
Meghann A Triplett
10:00 AM
VS.
DEBTORS
Docket 123
NONE LISTED -
August 5, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Stephen B Fuller Represented By Richard G Heston
Joint Debtor(s):
Renee M Fuller Represented By Richard G Heston
10:00 AM
Movant(s):
Wells Fargo Bank, N.A., d/b/a Wells Represented By
Jenelle C Arnold
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
VS.
DEBTOR
Docket 42
OFF CALENDAR: Notice of Voluntary Dismissal of Motion, filed 8/4/2021 - td (8/4/2021)
August 5, 2021
Deny request for immediate relief from stay; grant standard adequate protection order.
Explanation of Tentative Ruling
Debtor has presented evidence of payment of the the amount referenced in the Motion as being delinquent.
The general terms of the adequate protection order a) 10-day notice to Debtor and Debtor's attorney if payment is not received by the grace period under the note up to three times; 2) if Debtor does not cure the default within 10 days of the date appearing on the notice, Movant may file a declaration re non-payment and lodge an order granting immediate relief from stay; 3) upon the fourth default, the Movant may immediately file and lodge a declaration re nonpayment and an order without a 10-day notice.
10:00 AM
The parties are free to agree on adequate protection terms that are different from that in paragraph 2 above.
Note: If both parties accept the tentative ruling, appearances at today's hearing are not required.
Debtor(s):
Jose Saavedra Represented By Chris T Nguyen
Movant(s):
Freedom Mortgage Corporation Represented By
Dane W Exnowski
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
VS.
DEBTOR
Docket 38
OFF CALENDAR: Voluntary Dismissal of Motion, filed 8/4/2021 - td (8/4/2021)
August 5, 2021
Grant with 4001(a)(3) waiver and co-debtor relief.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Scott Bryan Sornbutnark Represented By John D Sarai
Movant(s):
US Bank Trust National Association, Represented By
10:00 AM
Trustee(s):
Dane W Exnowski Arnold L Graff
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
VS.
DEBTOR
Docket 13
NONE LISTED -
August 5, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Mario Alberto Martinez Represented By Kevin J Kunde
Movant(s):
JPMorgan Chase Bank, N.A Represented By Jenelle C Arnold
10:00 AM
Trustee(s):
Karen S Naylor (TR) Pro Se
10:00 AM
NIRANJAN SHAH & BHARATIBEN SHAH, CO-TRUSTEES OF THE SHAH FAMILY TRUST DTD 09/24/2008
vs.
DEBTOR
Docket 20
NONE LISTED -
August 5, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Bill Ying Li Represented By
Chunping Shen
Movant(s):
Niranjan & Bharatiben Shah, Tr Represented By
Neil B Katz
10:00 AM
Trustee(s):
Karen S Naylor (TR) Pro Se
10:00 AM
VS.
DEBTOR
Docket 11
NONE LISTED -
August 5, 2021
Grant with 4001(a)(3) waiver.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Bryan Dain Represented By
Julie J Villalobos
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
Sheryl K Ith
10:00 AM
Trustee(s):
Jeffrey I Golden (TR) Pro Se
10:30 AM
(Set at s/c held 2/28/18)
[fr: 6/21/17, 6/28/17, 6/30/17, 7/20/17, 7/26/17, 7/28/17, 10/25/17, 2/7/18, 2/28/18, 8/29/18, 1/9/19, 6/12/19, 10/2/19, 1/29/20, 6/24/20, 7/22/20]; 9/2/20, Rm 5D; 9-3-20; 2-4-21
Docket 1
NONE LISTED -
September 3, 2020
Continue Post-Confirmation Status Conference to February 4, 2021 at 10:30 a.m.; updated Status Report must be filed by January 21, 2021. (XX)
Note: Appearance at this hearing is not required.
February 4, 2021
Continue Status Conference to August 5, 2021 at 10:30 a.m.; updated Status Report must be filed by July 22, 2021. (XX)
Note: Appearance at this hearing is not required.
August 5, 2021
Continue Post-Confirmation Status Conference to February 10, 2022 at 10:30 a.m.; updated Status Report must be filed by January 27, 2022.
Note: Appearance at this hearing is not required.
10:30 AM
Debtor(s):
Solid Landings Behavioral Health, Represented By
David L. Neale Juliet Y Oh
10:30 AM
[RICHARD A. MARSHACK, CHAPTER 7 TRUSTEE]
Docket 59
NONE LISTED -
August 5, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Team Business Solutions, Inc. Represented By
J Scott Williams
Trustee(s):
Richard A Marshack (TR) Represented By Thomas J Eastmond Robert P Goe
10:30 AM
[GOE FORSYTHE & HODGE LLP, ATTORNEYS FOR RICHARD A. MARSHACK, CHAPTER 7 TRUSTEE]
Docket 57
NONE LISTED -
August 5, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Team Business Solutions, Inc. Represented By
J Scott Williams
Trustee(s):
Richard A Marshack (TR) Represented By Thomas J Eastmond Robert P Goe
10:30 AM
Docket 516
OFF CALENDAR: Order Regarding Motion for Order Further Extending the Time Periods During Which the Debtors Have the Exclusive Right to File a Plan and to Solicit Acceptances Thereof Pursuant to Section 1121(D) of the Bankruptcy Code Entered 7/30/2021 - td (7/30/2021)
NONE LISTED -
Debtor(s):
HCA West, Inc Represented By John W Lucas Jason H Rosell
Victoria Newmark
10:30 AM
FR: 7-1-21
Docket 79
NONE LISTED -
July 1, 2021
Continue hearing to August 5, 2021 at 10:30 a.m. in light of 1) improper service to creditors (County of Orange was not served) and 2) Debtor has filed evidence of a pending purchase agreement that would be sufficient to pay the Movant's claim. (XX)
August 5, 2021
Continue this hearing to September 9, 2021 at 10:30 a.m. as a holding date in the event that the pending sale of the real property does not close escrow.
Debtor(s):
Christopher Summers Represented By
J Scott Williams
10:30 AM
Docket 85
NONE LISTED -
August 5, 2021
Grant the motion, subject to overbid.
Debtor(s):
Christopher Summers Represented By
J Scott Williams
10:30 AM
(Set per Notice of Hearing filed 7/2/21)
Docket 83
NONE LISTED -
August 5, 2021
Continue the hearing one final time to September 9, 2021 at 10:30 a.m. to all Debtor to address the following matters:: 1) treatment of the Class 2A claim of ASB and non-compliance with 11 U.S.C. 1129(a)(7); and 2) the comments of the Sub V Trustee to Debtor's Second Amended Plan [dkt. 86]. Debtor to file supplemental brief by August 19, 2021; any response to the same must be filed by August 26 , 2021, and any reply by Debtor must be filed by September 2, 2021.
Basis for Tentative Ruling
Though Debtor disputes the secured status of ASB, ASB currently holds an allowed secured claim. The Second Amended Plan (SAP) does not provide for interest (i.e., present value), in violation of Section 1129(a)(7). There is also the issue of "fair and equitable treatment" of the ASB claim due to the lack of interest provided. See Sections 1129(b)(2)(A), 1191(b) and 1191(c) (1). Although ASB has not filed an objection to its treatment under the SAP, this court has an independent duty to make a finding that the SAC complies with all applicable provisions of 1129(a).
2. Debtor needs to address the comments/requests for information
10:30 AM
articulated by the Sub V Trustee in his comments to the SAP. [Dkt # 86]
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required.
Debtor(s):
Beck & Chase Enterprises, Inc. Represented By Jeffrey B Smith Alexis Galindo
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
FR: 12-3-20; 3-11-21; 6-17-21
Docket 1
NONE LISTED -
December 3, 2020
Deadline to file plan*: Feb. 16, 2021
Continued Status Conf: Mar. 11, 2021 at 10:30 a.m. (XX) Updated Status Report due: Feb. 25, 2021 (Debtor); Mar. 4, 2021 (Trustee)
*The court will not require a disclosure statement. However, the plan must include 1) a brief history of Debtor's business operations and the circumstances precipitating the filing; 2) a liquidation analysis; and 3) projections supporting Debtor's ability to make payments during the term of the plan.
Note: If Debtor is in substantial compliance with the requirements of the
U.S. Trustee and there have been no significant developments in the case since the status reports were filed, appearances at this hearing will not be required. The Court will issue its own order re the Status Conference. It is Debtor's responsibility to confirm substantial compliance with the U.S. Trustee in advance of the hearing.
March 11, 2021
10:30 AM
Continue Status Conference to May 6, 2021 at 10:30 a.m. Debtor may schedule a hearing on approval of its plan for the same date/time. If so, a confirmation brief must be filed by or before April 22, 2021.
Special note to Subchapter V Trustee: The court did not require Debtor to file a disclosure statement. See tentative ruling for December 3, 2021.
Note: Appearances at this Status Conference are not required.
June 17, 2021
Continue hearing to July 22, 2021 at 10:30 a.m.; updated Status Report not required.
Note: Appearances at this Status Conference are not required.
August 5, 2021
Continue status conference to September 9, 2021 at 10:30 a.m.; updated status report not required.
Debtor(s):
Beck & Chase Enterprises, Inc. Represented By Jeffrey B Smith
10:30 AM
Docket 60
NONE LISTED -
June 17, 2020
Continue confirmation hearing to August 5, 2021 at 10:30 a.m. to allow Debtor to address the following issues: feasibility, treatment of Green Rock's claim re default interest in light of this court's June 15, 2021 Order, and entitlement to discharge. Amended Confirmation Brief must be filed by July 15, 2021; responses by July 22, 2021; reply by July 29, 2021. In addition, the parties are ordered to meet and confer re a possible resolution of the outstanding issues no later than July 8, 2021. (XX)
Basis for Tentative Ruling
Green Rock raises valid arguments re the treatment of its remaining claim and applicable default interest, eligibility of Debtor for discharge, and feasibility. That said, the court believes that a resolution of the issues are achievable if all parties meet in good faith. Green Rock has now received nearly 90% of its secured claim and should be negotiating from that standpoint and not as if it is still owed $1.6M. In this regard, the court is not inclined to entertain any oral argument against the granting of a continuance.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required.
10:30 AM
August 5, 2021
Confirm the amended plan with certain additional provisions to be set forth in the confirmation order. Set postconfirmation Status Conference for February 10, 2022 at 10:30 a.m.; Postconfirmation Status Report must be filed by January 27, 2021.
Provisions to be included in the confirmation order:
Acknowledge that the County of Orange holds a secured claim against the Mira Vista proerty in the amount of $22,555.78.
Acknowledge that Dung Ngo holds an unsecured claim in the amount of
$65,000.
The provisions requested by Green Rock in its pleading filed 7/22/21 [dkt. 100]
Note: If all parties accept the foregoing tentative ruling, appearance at this hearing is not required.
Debtor(s):
Chase Merritt Global Fund LLC Represented By
W. Derek May
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
(2) Requiring Report on Status of Subchapter V Case by Debtor and Subchapter V Trustee; and (3) Requiring Subchapter V Trustee to Appear at the Status Conference
FR: 3-4-21; 6-17-21
Docket 1
NONE LISTED -
March 4, 2021
Deadline to file plan/disclosure stmt: April 20, 2021
Continued Status Conference: June 17, 2021 at 10:30am (XX)
Deadline to file Updated Status Report (Debtor) June 3, 2021 Deadline to file Update Status Report (Trustee) June 10, 2021
An Updated Status Report need not be filed by either Debtor or Trustee if a plan and disclosure statement is filed by or before June 3, 2021.
Note: If all parties accept the foregoing tentative ruling, appearances at this hearing are not required. The Court will issue it's own order.
June 17, 2021
Continue status conference to August 5, 2021 at 10:30 a.m.; updated status report not required. (XX)
Note: If the parties accept the foregoing tentative ruling, appearances at
10:30 AM
this hearing are not required.
August 5, 2021
Take the status conference off calendar in light of confirmation of the amended plan.
Debtor(s):
Chase Merritt Global Fund LLC Represented By
W. Derek May
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
Docket 114
NONE LISTED -
August 5, 2021
Grant the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Plamex Investment, LLC Represented By Ron Bender Juliet Y Oh Monica Y Kim
10:30 AM
Docket 16
NONE LISTED -
August 5, 2021
Grant the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Tara Ann Russo Represented By Ethan D Kirschner
Trustee(s):
Thomas H Casey (TR) Pro Se
10:30 AM
Docket 69
NONE LISTED -
August 5, 2021
Grant the motion on the terms requested by the chapter 13 trustee if there is no opposition.
Debtor(s):
John W. Fox Represented By
Ali R Nader
Joint Debtor(s):
Lisa D. Fox Represented By
Ali R Nader
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:00 PM
Adv#: 8:18-01125 Speier v. SunCal Management LLC et al
Docket 678
CONTINUED: Hearing Continued to 12/2/2021 at 2:00 p.m., Per Order
Entered 7/27/2021 (XX) - td (7/27/2021)
NONE LISTED -
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta
2:00 PM
Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Tara Castro Narayanan
Defendant(s):
SunCal Management LLC Represented By Craig H Averch Doah Kim Aalok Sharma
Argent Management, LLC Represented By Craig H Averch Doah Kim Aalok Sharma
Plaintiff(s):
Steven M Speier Represented By Mike D Neue
Gary A Pemberton Heather B Dillion Brianna L Frazier Shane M Biornstad
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall Robert P Goe
2:00 PM
Adv#: 8:18-01126 Speier v. SunCal Management, LLC et al
Docket 628
CONTINUED: Hearing Continued to 12/2/2021 at 2:00 p.m., Per Order
Entered 7/27/2021 (XX) - td (7/27/2021)
NONE LISTED -
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta
2:00 PM
Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Tara Castro Narayanan
Defendant(s):
SunCal Management, LLC Represented By Craig H Averch Aalok Sharma
Argent Management, LLC Represented By Craig H Averch Aalok Sharma
Plaintiff(s):
Steven M Speier Represented By Mike D Neue
Gary A Pemberton Heather B Dillion Brianna L Frazier Shane M Biornstad
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall Robert P Goe
2:00 PM
Adv#: 8:18-01127 Speier v. SunCal Management LLC et al
Docket 592
CONTINUED: Hearing Continued to 12/2/2021 at 2:00 p.m., Per Order
Entered 7/27/2021 (XX) - td (7/27/2021)
NONE LISTED -
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta
2:00 PM
Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Tara Castro Narayanan
Defendant(s):
SunCal Management LLC Represented By Craig H Averch Aalok Sharma
Argent Management, LLC Represented By Craig H Averch Aalok Sharma
Plaintiff(s):
Steven M Speier Represented By Mike D Neue
Gary A Pemberton Heather B Dillion Brianna L Frazier Shane M Biornstad
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall Robert P Goe
2:00 PM
Adv#: 8:18-01128 Speier v. SunCal Management LLC et al
Docket 594
CONTINUED: Hearing Continued to 12/2/2021 at 2:00 p.m., Per Order
Entered 7/27/2021 (XX) - td (7/27/2021)
NONE LISTED -
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta
2:00 PM
Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Tara Castro Narayanan
Defendant(s):
SunCal Management LLC Represented By Craig H Averch Aalok Sharma
Argent Management, LLC Represented By Craig H Averch Aalok Sharma
Plaintiff(s):
Steven M Speier Represented By Mike D Neue
Gary A Pemberton Heather B Dillion Brianna L Frazier Shane M Biornstad
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall Robert P Goe
2:00 PM
Adv#: 8:18-01129 Speier v. Argent Management, LLC et al
Docket 599
CONTINUED: Hearing Continued to 12/2/2021 at 2:00 p.m., Per Order
Entered 7/27/2021 (XX) - td (7/27/2021)
NONE LISTED -
Debtor(s):
Palmdale Hills Property, LLC Represented By Paul J Couchot Peter W Lianides
Richard W Esterkin Asa S Hami Charles Liu
James M Miller Raymond H. Aver Sean A OKeefe Marc J Winthrop Martin Pritikin Selia M Acevedo Francis T Donohue Richard H Golubow Louis R Miller Jeffrey W Broker Kavita Gupta
2:00 PM
Garrick A Hollander R Grace Rodriguez Lei Lei Wang Ekvall Mike D Neue
Tara Castro Narayanan
Defendant(s):
SunCal Management LLC Represented By Craig H Averch Aalok Sharma
Argent Management, LLC Represented By Craig H Averch Aalok Sharma
Plaintiff(s):
Steven M Speier Represented By Mike D Neue
Gary A Pemberton Heather B Dillion Brianna L Frazier Shane M Biornstad
Trustee(s):
Steven M Speier (TR) Represented By Louis R Miller Mike D Neue
Lei Lei Wang Ekvall Robert P Goe
9:30 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for Judge Erithe A. Smith’s Cases" on the Court's website at:
9:30 AM
https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
NONE LISTED -
9:30 AM
Adv#: 8:14-01220 Lee et al v. Ciling et al
Docket 204
OFF CALENDAR: Order Dismissing Adversary Proceeding Entered 7/30/2021 - td (7/30/2021)
NONE LISTED -
Debtor(s):
Donald Woo Lee Represented By
Robert B Rosenstein
Defendant(s):
American Edge Medical Co. Represented By Marc C Forsythe
Turko United LLC Pro Se
Nath Investments Inc. Represented By Marc C Forsythe
My Imaging Center Inc. Represented By Marc C Forsythe
Medical Imaging Rentals, Inc. Represented By Marc C Forsythe
My Imaging Center LLC Pro Se
Lake Elsinore Diagnostics Inc. Pro Se
9:30 AM
Temecula Diagnostic Center Inc. Pro Se
Anke Ciling Pro Se
Sammy Ciling Pro Se
Fallbrook Diagnostics Inc. Pro Se
Joint Debtor(s):
Linda Bae Lee Represented By
Robert B Rosenstein
Plaintiff(s):
Donald Woo Lee Represented By
Norma Ann Dawson Robert B Rosenstein
Linda Bae Lee Represented By
Norma Ann Dawson Robert B Rosenstein
Prime Partners Medical Group, Inc. Represented By
Norma Ann Dawson Robert B Rosenstein
Trustee(s):
Richard A Marshack (TR) Represented By Kyra E Andrassy David Wood
Matthew Grimshaw Nathan F Smith Arturo Cisneros Norma Ann Dawson Robert S Lawrence Caroline Djang Brett Ramsaur
9:30 AM
Adv#: 8:14-01220 Lee et al v. Ciling et al
FR: 3-12-15; 4-7-15; 6-18-15; 8-18-15; 12-15-15; 4-14-16; 9-1-16; 6-22-17;
8-31-17; 4-12-18; 10-18-18; 12-13-18; 2-12-19; 3-12-19; 6-20-19; 9-19-19;
10-3-19; 11-7-19; 1-30-20; 10-8-20; 2-18-21; 6-17-21
Docket 59
OFF CALENDAR: Order Dismissing Adversary Proceeding Entered 7/30/2021 - td (7/30/2021)
November 7, 2019
The status conference will be continued to January 30, 2020 at 9:30 a.m.; joint status report must be filed by January 16, 2020. (XX)
January 30, 2020
Discovery Cut-off Date: June 30, 2020
Deadline to Attend Mediation: Aug. 31, 2020
Pretrial Conference Date: Oct. 8, 2020 at 9:30 a.m. (XX) Deadline to File Joint Pretrial Stipulation: Sept. 24, 2020
Note: If all parties agree with the foregoing schedule, appearances at
9:30 AM
today's hearing are waived and Plaintiffs shall serve/lodge a scheduling order consistent with the same.
October 8, 2020
[Special Notice: This hearing is being conducted by Zoomgov. See the first page of the calendar for today's hearings for participation details.]
Continue as a STATUS CONFERENCE to February 18, 2021 at 9:30 a.m.; an updated Joint Status report must be filed by February 4, 2021.A new pretrial conference will be scheduled at the February 18, 2021 Status Conference. In the meantime, Defendants Sammy and Anke Ciling must provide Rule 26 disclosures to Plaintiff no later than November 9, 2020 and the parties must attend mediation no later than December 18, 2020. (XX)
Basis for Tentative Ruling:
The continued hearing date, February 18, 2021 takes into account the current January 19, 2021 sentencing date of Plaintiff Donald Lee ("Lee").
Defendant Sammy Ciling ("Ciling") has requested dismissal of the adversary proceeding due to the anticipated sentencing of Lee. First, the request is not properly before the court as it was not presented as a noticed motion in accordancee with applicable federal and local rules. Second, absent evidence that a plaintiff is unable to participate in litigation while incarcerated, such incarceration alone is not a basis for dismissal of a civil action. Accordingly, the request for dismissal is denied.
Defendants Ciling and Mrs. Ciling must comply with Rule 26 disclosure requirements.
The attendance at mediation is mandatory. Despite pandemic restrictions, mediations are now routinely conducted by video conference. Therefore, there should be no reason why mediation cannot take place in the timeframe set by the court.
9:30 AM
Note: If ALL parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiff shall, within 7 days, lodge an order consistent with the tentative ruling.
February 18, 2021
Discovery Cut-off Date: April 30, 2021 Deadline to Attend Mediation: March 31, 2021
Pretrial Conference Date: June 17, 2021 at 9:30 am (XX) Deadline to File Pretrial Stipulation: June 3, 2021
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
June 17, 2021
Impose sanctions in the amount of $100 against Plaintiffs' counsel for failure to file a pretrial stipulation as required by Local Bankruptcy Rule 7016-1(b), The court shall issue an order to show cause why this adversary proceeding should not be dismissed due to lack of prosecution.
Basis for Tentative Ruling:
This adversary proceeding appears to be languishing. The parties were ordered to attend mediation by March 31, 2021. However, no notice of the status of the mediation has been filed by any mediator, suggesting that the mediation did not take place. In addition, not only was the pretrial stipulation not filed, Plaintiffs did not even file a status report advising the court of the status of this matter. Finally, this adversary has been pending for several years.
Note: Appearances at this heaaring ARE required.
9:30 AM
Debtor(s):
Donald Woo Lee Represented By
Robert B Rosenstein
Defendant(s):
American Edge Medical Co. Represented By Marc C Forsythe
Turko United LLC Pro Se
Nath Investments Inc. Represented By Marc C Forsythe
My Imaging Center Inc. Represented By Marc C Forsythe
Medical Imaging Rentals, Inc. Represented By Marc C Forsythe
My Imaging Center LLC Pro Se
Lake Elsinore Diagnostics Inc. Pro Se
Temecula Diagnostic Center Inc. Pro Se
Anke Ciling Pro Se
Sammy Ciling Pro Se
Fallbrook Diagnostics Inc. Pro Se
Joint Debtor(s):
Linda Bae Lee Represented By
Robert B Rosenstein
Plaintiff(s):
Donald Woo Lee Represented By
Norma Ann Dawson Robert B Rosenstein
9:30 AM
Linda Bae Lee Represented By
Norma Ann Dawson Robert B Rosenstein
Prime Partners Medical Group, Inc. Represented By
Norma Ann Dawson Robert B Rosenstein
Trustee(s):
Richard A Marshack (TR) Represented By Kyra E Andrassy David Wood
Matthew Grimshaw Nathan F Smith Arturo M Cisneros Norma Ann Dawson Robert S Lawrence Caroline Djang Brett Ramsaur
9:30 AM
Adv#: 8:20-01111 Razaghi v. Baniassad et al
FR: 10-22-20
Docket 1
NONE LISTED -
October 22, 2020
[Special Notice: This hearing is being conducted by Zoomgov. See the first page of the calendar for today's hearings for participation details.]
Tentative Schedule:
Discovery Cut-off Date: Mar. 15, 2021* Deadline to Attend Mandatory Mediation: Feb. 1, 2021
Pretrial Conference Date: May 6, 2021 at 9:30 a.m. Deadline to File Pretrial Stipulation: Apr. 22, 2021
* Plaintiff's unilateral status report suggested a discovery cut-off date of July 2021, which does not appear to be warranted under the circumstances.
Special Note to Plaintiff's Counsel: Though this action appears to be one under 11 USC 523 (nondischargeability), the Third Cause of Action appears to assert a crime under California law, which is beyond the scope of the
9:30 AM
jurisdiction of this court.
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
Debtor(s):
Kourosh Baniassad Represented By Kaveh Ardalan
Defendant(s):
Kourosh Baniassad Pro Se
Ida Baniassad Pro Se
Joint Debtor(s):
Ida Baniassad Represented By Kaveh Ardalan
Plaintiff(s):
Kamran Razaghi Represented By Peter R Afrasiabi
Trustee(s):
Thomas H Casey (TR) Pro Se
9:30 AM
Adv#: 8:21-01021 Murphy v. Granite State Management et al
Docket 1
NONE LISTED -
August 12, 2021
Continue this Status Conference to October 21, 2021 at 9:30 a.m. to allow Plaintiff the opportunity to re-serve the summons and complaint in accordance with Federal Rules of Bankruptcy Procedure 7004(b)(3).
Continue the hearing on the Motion for Default Judgment now improperly set for August 20, 2020 to October 21, 2021 at 9:30 a.m.
Basis for Tentative Ruling:
The proof of service re service of the Summons and Complaint indicate that both corporate defendants were improperly served. FRBP 7004(b)(3) requires that a complaint filed against a corporate entity must be served by mailing a copy of the summons and complaint "to the attention of an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process. Plaintiff needs to research the appropriate person to be served as to both defendants, as well as the proper address.
In order to re-serve the summons and complaint, Plaintiff must request the issuance of Another Summons from the court's clerk's office.
The motion for default judgment is also improperly served per FRBP 7004(b)(3). Further, the motion for default judgment will not be considered
9:30 AM
until the summons and complaint have been properly served and no responsive pleadings by the defendants have been filed.
If no answer or other responsive pleading is filed after proper service of the summons and complaint, any motion for default judgment must be supported by a declaration, along with any evidence in support of the complaint in order to establish a prima facie case for entry of default judgment.
Note: If Plaintiff accepts the foregoing tentative ruling, appearance at today's Status Conference is not required.
Debtor(s):
Andrew Michael Murphy Pro Se
Defendant(s):
Granite State Management Pro Se
Sallie Mae Pro Se
Plaintiff(s):
Andrew Murphy Pro Se
Trustee(s):
Weneta M.A. Kosmala (TR) Pro Se
9:30 AM
Adv#: 8:21-01023 Avetoom v. Fridman
Docket 1
NONE LISTED -
August 12, 2021
Continue Status Conference to September 9, 2021 at 2:00 p.m., same date/time set for hearing on Plaintiff's motion for summary judgment. Updated Joint Status Report not required.
Note: If all parties accept the foregoing tentative ruling, appearances at this Status Conference are not required.
Debtor(s):
Rosa A Fridman Represented By Scott Talkov
Defendant(s):
Rosa Fridman Pro Se
Plaintiff(s):
Karl Avetoom Pro Se
Trustee(s):
Karl T Anderson (TR) Represented By Melissa Davis Lowe
10:00 AM
VS.
DEBTORS
Docket 44
NONE LISTED -
August 12, 2021
Grant with 4001(a)(3) waiver; deny request for co-debtor relief Basis for Tentative Ruling
Co-debtor relief only applies in chapter 13 cases, not chapter 7 cases.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Gabriel John Torres Represented By Anthony B Vigil
10:00 AM
Joint Debtor(s):
Julie Marie Torres Represented By Anthony B Vigil
Movant(s):
U.S. BANK NATIONAL Represented By Sean C Ferry
Trustee(s):
Weneta M.A. Kosmala (TR) Represented By Weneta Kosmala Erin P Moriarty
10:00 AM
VS.
DEBTOR
Docket 43
NONE LISTED -
August 12, 2021
If the moving party is agreeable to the terms of an adequate protection order, the hearing may be continued to 8/19, 9/9, or 9/16 at 10:00 a.m. by requesting a continuance the matter is called during the clerk's calendar roll call.
Debtor(s):
Geoff Owen Delabar Represented By Christopher J Langley Michael Smith
Movant(s):
Ally Bank Represented By
Marjorie M Johnson
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
MARVIN OLSHI AS TRUSTEE OF THE MARVIN T. OLSHI TRUST; HAL SEARS AS TRUSTEE OF THE HAL MARSHALL SEARS REVOCABLE TRUST
VS.
DEBTOR
Docket 55
NONE LISTED -
August 12, 2021
Grant the Motion with waiver of FRBP 4001(a)(3). Basis for Tentative Ruling:
As Debtor admits in the opposition, the property was foreclosed on prepetition, i.e., in July 2020. Accordingly, Debtor did not hold legal title to the property as of the petition date and, as such, the property itself is not property of the estate and "equity" is a non-issue.
If Debtor is arguing that he, or the bankruptcy estate, has a claim against the foreclosing party for unlawful foreclosure, such is litigation that must be commenced by the chapter 7 trustee -- Debtor currently has no standing to bring such a motion.
Movant has provided proof of the unlawful detainer action brought against Debtor, including a writ of possession.
10:00 AM
Movant has relief from stay to recover the property in accordance with any applicable California state law, subject to applicable moritoriums, if any.
Debtor(s):
Scott Peter Hamilton Represented By Julie Nong
Movant(s):
Marvin Oishi as trustee of the Represented By Barry L O'Connor
Trustee(s):
Karen S Naylor (TR) Represented By Nanette D Sanders
10:00 AM
VS.
DEBTOR
Docket 11
NONE LISTED -
August 12, 2021
Grant with 4001(a)(3) waiver; Movant may proceed with unlawful detainer/eviction proceedings in accordance with applicable California law.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Sean Thanh Dao Represented By Brian J Soo-Hoo
Movant(s):
Hua Zhang Represented By
Barry L O'Connor
10:00 AM
Trustee(s):
Thomas H Casey (TR) Pro Se
10:00 AM
VS.
DEBTOR
Docket 13
SPECIAL NOTE: Debtor's Motion for Voluntaray Dismissal of Chapter 13 Case filed 8/2/2021; Routed to Chambers - td (8/2/2021)
August 12, 2021
Grant with 4001(a)(3) waiver and relief under 362(d)(4).
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Elizabeth Nguyen Le Pro Se
Movant(s):
The Rama Fund, LLC Represented By Martin W. Phillips
10:00 AM
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
Cl. #38-1 | Robert D. Starr and Elvia Sanchez | $2,721.25 |
Cl. #39-1 | Shurise Knettel | $25,000.00 |
Cl. #40-1 | Mary L. Flyr | $1,117.95 |
Cl. # 41-1 | Nelson and Generosa Bisarra | $3,306.07 |
Docket 422 | ||
Courtroom Deputy: - NONE LISTED - |
August 12, 2021
Grant the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Clayton M. Anderson, APC Represented By Mufthiha Sabaratnam
Trustee(s):
Jeffrey I Golden (TR) Represented By
10:30 AM
Cicely T Ray Beth Gaschen Jeffrey I Golden
10:30 AM
[KEESAL YOUNG & LOGAN, REAL ESTATE COUNSEL FOR RICHARD MARSHACK, TRUSTEE FOR FRIENDLY VILLAGE MHP ASSOCIATES]
Docket 618
NONE LISTED -
August 12, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Friendly Village MHP Associates LP Represented By
Howard Camhi
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Kristine A Thagard Arthur Grebow David Wood Tinho Mang
10:30 AM
Stefan Perovich
10:30 AM
[KARL T. ANDERSON, CPA, INC., ACCOUNTANT FOR CHAPTER 7 TRUSTEE]
Docket 622
NONE LISTED -
August 12, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Friendly Village MHP Associates LP Represented By
Howard Camhi
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Kristine A Thagard Arthur Grebow David Wood
10:30 AM
Tinho Mang Stefan Perovich
10:30 AM
[GREBOW & RUBIN, LLP, SPECIAL COUNSEL FOR RICHARD A. MARSHACK IN HIS CAPACITY AS CHAPTER 7 TRUSTEE RE CALIFORNIA MOBILEHOME PARK LAWS]
Docket 630
NONE LISTED -
August 12, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Friendly Village MHP Associates LP Represented By
Howard Camhi
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Kristine A Thagard Arthur Grebow David Wood Tinho Mang
10:30 AM
Stefan Perovich
10:30 AM
[KABATECK LLP, FIELDS LAW, BANKRUPTCY TRUSTEE FOR FRIENDLY VILLAGE MHP ASSOCIATES, L.P.]
Docket 619
NONE LISTED -
August 12, 2021
Approve fees and expenses as requested.
Note: This matter appears to be uncontested. Accordingly, no court appearance by Applicant is required. Should an opposition party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Applicant will be so notified.
Debtor(s):
Friendly Village MHP Associates LP Represented By
Howard Camhi
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Kristine A Thagard Arthur Grebow David Wood Tinho Mang
10:30 AM
Stefan Perovich
10:30 AM
[THOMAS H. CASEY, CHAPTER 7 TRUSTEE]
Docket 71
OFF CALENDAR: Rescheduled for 9/9/2021 at 10:30 a.m.; Amended Notice filed 7/15/2021 (XX) - td (7/16/2021)
NONE LISTED -
Debtor(s):
Dubitec America Inc Represented By Gordon A Petersen
Trustee(s):
Thomas H Casey (TR) Represented By Gordon A Petersen Anerio V Altman
10:30 AM
[ANERIO V. ALTMAN, ESQ., ATTORNEY FOR TRUSTEE THOMAS H. CASEY]
Docket 69
OFF CALENDAR: Rescheduled for 9/9/2021 at 10:30 a.m.; Amended Notice filed 7/15/2021 (XX) - td (7/16/2021)
NONE LISTED -
Debtor(s):
Dubitec America Inc Represented By Gordon A Petersen
Trustee(s):
Thomas H Casey (TR) Represented By Gordon A Petersen Anerio V Altman
10:30 AM
[HAHN FIFE & COMPANY, LLP, ACCOUNTANT FOR CHAPTER 7 TRUSTEE]
Docket 67
OFF CALENDAR: Rescheduled for 9/9/2021 at 10:30 a.m.; Amended Notice filed 7/15/2021 (XX) - td (7/16/2021)
NONE LISTED -
Debtor(s):
Dubitec America Inc Represented By Gordon A Petersen
Trustee(s):
Thomas H Casey (TR) Represented By Gordon A Petersen Anerio V Altman
10:30 AM
Adv#: 8:19-01205 Elieff et al v. Kurtin
Docket 232
NONE LISTED -
August 12, 2021
Deny the Motion based upon the analysis set forth in the Opposition, which the Court incorporates by reference herein.
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson Robert P Goe
Defendant(s):
Todd Kurtin Represented By
Lewis R Landau Edward O Morales
Plaintiff(s):
Bruce Elieff Pro Se
Morse Properties, LLC Pro Se
4627 Camden, LLC Pro Se
10:30 AM
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe Claire K Wu
10:30 AM
FR: 11-5-20; 2-4-21; 4-1-21; 5-20-21; 6-3-21
Docket 1
CONTINUED: STATUS CONFERENCE CONTINUED TO SEPTEMBER 9,
2021 AT 10:30 A.M. (continued at 8/5/21 hearing) eas
November 5, 2020
Claims bar date: Jan. 8, 2021 (notice by Nov. 9, 2020)
Deadline to file plan/DS: 1/15/21
Continued Status Conf: Feb. 4, 2021 at 10:30 am (XX) Updated Status Report due: Jan. 21, 2021 (waived if plan/DS timely filed)
Note: Appearance at this hearing is not required if Debtor accepts the foregoing tentative ruling and Debtor is in substantial compliance with the requirements of the U.S. Trustee. It is Debtor's responsiblity to confirm such compliance with the U.S. Trustee prior to the hearing. The court will prepare its own Order re the status conference.
February 4, 2021
Continue Status Conference to April 1, 2021 at 10:30 a.m.; updated Status Report not required. (XX)
10:30 AM
Note: Appearance at this hearing is not required.
Apri 1, 2021
Continue status conference to May 20, 2021 at 10:30 a.m.; updated status report is not required if the amended disclosure statement is timely filed on April 22, 2021. (XX)
Note: Appearances at this hearing are not required.
May 20, 2021
Continue status conference to June 3, 2021 at 10:30 a.m.; updated status report not required. (XX)
Note: Appearances at this hearing are not required.
June 3, 2021
No tentative ruling. Disposition depends on the outcome of #11 on today's calendar.
August 12, 2021
Continue the Status Conference to September 9, 2021 at 10:30 a.m.; Debtor must file an updated Status Report regarding the status of the real property sale no later than September 2, 2021
Note: Appearances at this hearing are not required.
10:30 AM
Debtor(s):
Christopher Summers Represented By
J Scott Williams
10:30 AM
Docket 190
NONE LISTED -
August 12, 2021
Grant the Motion. Overrule Objections. The proposed order may include language to the effect that the rights of junior secured lienholders under applicable state law are not affected by the Stipulation.
Basis for Tentative Ruling:
The Stipulation is in the best interests of the bankruptcy estate for the reasons stated in the Motion and the Reply, which the court incorporates by reference herein.
Re the Opposition of Westransco: The Reply confirms that the validity and/or priority of Westransco's warehouse lien is not impacted by the Stipulation. Similarly, nothing in the Stipulation adversely impacts any administrative claim that Westransco may assert against the bankruptcy estate. The parties need to meet and confer regarding appropriate language to that effect in the proposed order approving the Stipulation.
Re the Opposition of EB5 Investors ("EB5"): The objections of this creditor are not well-taken for the following reasons:
This case has been pending for nearly six months. During that time, numerous hearings have been held regarding, among other things, the
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use of cash collateral to maintain the property (which enures to the benefit of EB5), the continued custodial supervision of the receiver (which also benefits EB5), and the gifting of $200,000 by Shady Bird for repairs/improvements to the subject property (which benefits EB5). Perhaps most importantly, there is Shady Bird's pending motion for relief from the automatic stay which, if granted, would allow Shady Bird to immediately foreclose on the property.
The the deadline for marketing/sale of the property is not "lightning fast" or "aggressive" under the circumstances in this case. First, the property has been marketed since June. Second, as previously mentioned, there is a pending motion for relief from the automatic stay. Third, absent a sale, interest will continue to accrue on the debt to Shady Bird. Fourth, EB5 has stated no basis for disputing the amount of Shady Bird's claim as stated in the Stipulation. Fourth, as a junior lienholder on a partially constructed hotel for which Debtor lacks funding to complete, the fact that EB5's interest is at risk is expected. Fifth, EB5 will have the right to be heard re any motion to sell the property, including the marketing efforts, overbid procedures and sale price. Sixth, in light of the foregoing, EB5 has stated no persuasive reason(s) for not approving the Stipulation.
Debtor(s):
The Source Hotel, LLC Represented By Ron Bender Juliet Y Oh
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(2) Requiring Report on Status of Chapter 11 Case FR: 5-6-21
Docket 1
NONE LISTED -
May 6, 2021
Claims Bar Date: 7/12/21 -- notice to creditors by 5/12/21 Deadline to file plan/discl. stmt: not set at this time
Continued Status Conference: 8/12/21 at 10:30 a.m. (XX) Updated Status Report due: 7/29/21
Note: If Debtor is in substantial compliance with the requirements of the US Trustee, appearance at this hearing is not required.
August 12, 2021
Continue this Status Conference to September 30, 2021 at 2:00 p.m. The deadline for fiing a plan and disclosure statement will be set at that hearing. An updated Status Report must be filed by September 23, 2021.
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Debtor(s):
The Source Hotel, LLC Represented By Ron Bender Juliet Y Oh
10:30 AM
Docket 114
NONE LISTED -
August 12, 2021
Grant in part; deny in part. Grant as to Agent’s authority to advance $1,000 under the Employment Order and Trustee’s use of the Survey in attempting to sell the Property; Deny as to Trustee’s request to reimburse $1,000 to Agent now under LBR 2016-2 without prejudice to Agent seeking such reimbursement if the Property is sold. Overrule Debtor's objections.
Basis for Tentative Ruling:
Debtor scheduled an ownership interest in the real property located at 351 Catalina Drive, Newport Beach, CA ("Property"). Trustee is marketing the Property for sale and believes that some prospective buyers may be interested in demolishing the existing structure and constructing a new building on the Property, or remodeling the existing structure. One prospective buyer has agreed to share in the cost of a property survey report ("Survey") if the estate contributes $1,000 towards the total $3,000 price for the Survey. The Survey will determine the buildable envelope, setbacks, and height restrictions for the lot. The Survey was scheduled for July 19, 2021 and Trustee’s real estate agent, Clarence Yoshikane ("Agent") advanced the
$1,000 on behalf of the estate.
Pursuant to the order authorizing Agent’s employment ("Employment Order"), Agent was authorized to advance up to $15,000 for maintenance of the Property and other miscellaneous expenses without further court order.
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According to the Motion, any prospective buyer that would like to view the Survey will be required to sign an indemnification agreement ("Indemnification Agreement") which indemnifies Trustee, the estate, and Debtor from any claims arising from the prospective buyers reliance upon or use of the Survey. See Mot., Ex. D.
The Motion is partially granted to confirm Agent may advance the
$1,000 to pay for the Survey which may be reimbursed when the Property is sold
The first issue is whether Agent has the authority to advance the
$1,000 to pay for the Survey. As both parties acknowledge, the Employment Order specifically authorized Agent to advance up to $15,000 for a variety of costs including, in relevant part, miscellaneous expenses. See Mot., 4; Opp’n 5:14-17 (page no. at top) and Ex. A (Employment Order); Reply, 2:4-8 and 4:4-8. Accordingly, no further court order was required for Agent to advance the $1,000 to pay for the Survey.
The second issue is whether Agent may be reimbursed the $1,000 from estate funds under LBR 2016-2 which provides, in relevant part, that, "If a trustee determines that it is necessary or appropriate to pay actual and necessary administrative expenses of the estate using estate funds, and such expenses do not exceed $5,000[.]" LBR 2016-2 lists the type of expenses that qualify as "actual and necessary administrative expenses of the estate"; one of those authorized expenses is "costs to advertise sale[.]" LBR
2016-2(b)(1). The authority for Agent’s advance of the $1,000 is the Employment Order which approved Agent’s employment application. See Reply, Reply, 2:4-8 and 4:4-8. Turning to that employment application, it provides in pertinent part:
". . . Agent has agreed to advance up to $5,000 to maintain, repair and/or clean up the Property, pay utilities and other miscellaneous expenses. Additionally, Agent will advance up to $10,000 to cut back, clean up and/or remove overgrown bushes and trees after obtaining and providing three bids to the Trustee. If, and only if, the Property is sold by the Estate, said advance, subject to subsequent Court approval shall be reimbursed."
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Application by Chapter 7 Trustee to Employ Real Estate Agent [dkt. 18], 3:21-26 (emphasis added).
Because Trustee and Agent agreed in the employment application (which was subsequently approved by the Employment Order) that any advances would only be reimbursed if the Property was sold, the request to reimburse $1,000 to Agent now under LBR 2016-2 is denied without prejudice to Agent seeking such reimbursement if the Property is sold.
The Motion is partially granted to confirm Trustee use of the Survey is within the purview of Trustee’s business judgment
A further issue raised in the Motion appears to be Debtor’s objection to Trustee’s use of the Survey in Trustee’s marketing efforts to sell the Property. See Opp’n, 5:26-6:12 (page no. at top). Debtor’s objection is partly based on her belief that the Survey could create liability for Debtor or the estate in future litigation regarding the enforceability of the Indemnity Agreement. Id.
Debtor has threatened to file "a motion to suppress dissemination" in an effort to stop Trustee from using the Survey. Id. at Ex. C, 30 (page no. at top).
The court overrules Debtor’s objection to Trustee’s purchase and/or use of the Survey. "A chapter 7 trustee proposing a sale… of estate property is entitled to great deference in exercising his or her business judgment in that context." In re Alaska Fishing Adventure, LLC, 594 B.R. 883, 890 (Bankr. D. Alaska 2018). Trustee has testified that the Survey will be required to sell the Property because prospective buyers are interested in demolishing the old building and constructing a new building on the Property, or remodeling the existing structure. See Mot., 3 and 6. As such, the court will defer to Trustee’s business judgment that the Survey will help sell the Property more quickly. Such business judgment is reasonable under the circumstances.
The court will also defer to Trustee’s business judgment that the estate’s interests are adequately protected by the Indemnification Agreement. Debtor’s argument that the Indemnification Agreement may be found to be unenforceable in some future litigation is unfounded. The court is not aware
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of any legal authority that supports the argument that a chapter 7 debtor may be held personally or legally liable for actions taken by a chapter 7 trustee during the course of a bankruptcy case and Debtor has cited the court to no such authority. Though Trustee does not represent Debtor, he nevertheless added Debtor to the Indemnification Agreement as an indemnified party as an accommodation to Debtor in order to address Debtor’s concerns of her future liability arising from the Indemnification Agreement. See Mot., Ex. 3, 29; Reply, 2:18-21. If Debtor would like to have her name deleted from the Indemnification Agreement as an indemnified party for any reason, the court will grant that request at the hearing if Debtor requests it.
EVIDENTIARY OBJECTIONS TO THE DECLARATION OF LISA WILHELM
Objection # Ruling
SUSTAINED: Lack of foundation; improper expert opinion.
Ms. Wilhelm's declaration does not establish a foundation
or basis for providing an expert opinion as what is in the
best interest of a bankruptcy estate.
SUSTAINED: Lack of foundation; improper expert opinion.
or responsibility
Ms. Wilhelm's declaration does not provide a foundation basis for providing expert opinion that it is the
each buyer to pay for its own survey and not to share the survey with other prospective buyers.
SUSTAINED: Improper expert opinion. Ms. Wilhelm's declaration does not provide a foundation for her legal opinion re Debtor's and/or the bankruptcy estate's legal liability with respect to the survey.
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Debtor(s):
Alicia Marie Richards Pro Se
Trustee(s):
Richard A Marshack (TR) Represented By Richard G Heston
2:00 PM
FR: 7-15-21
Docket 18
NONE LISTED -
July 15, 2021 [UPDATED SINCE ORIGINAL POSTING]
Continue the hearing to August 12, 2021 at 2:00 p.m. to allow Movant to comply with LBR 2004-f which requires compliance with LBR 7026-1(c)(2) and (c)(3). A joint stipulation addressing each objectionable document request must filed no later than August 2, 2021. The current 2004 examination and productions dates are suspended and will be re-set at the August 12, 2021 hearing. The deadline for the Bank to file a 523 or 727 complaint will be extended from September 13, 2021 to October 13, 2021. (XX)
Court's General Comments re the Motion
Bank has not established sufficient nexus between Gryphon's activiites dating back to 2014 and representations made by Debtor. Bank also seeks all of debtor's bank statements going back to 2014 (not just that of Gryphons).
Bank admits it may already have documents -- Debtor need not provide those documents again -- this is a debtor in a chapter 7 case. Bank must identify all documents it already has.
Regarding the documents from Gryphon -- Bank can obtain such documents in the pending District Court action against Gryphon.
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The court is concerned that the scope of the document production is designed to assist the Bank in its action pending in District Court.
Re Debtor's demand for witness fees for third parties -- Debtor does not appear to have standing to make such a demand. The affected person would have such standing.
Bank needs to scale back it's discovery substantially or the court will do so. The purpose of a 2004 examination is to permit a creditor to examine Debtor's assets and liabilities.
Note: If all parties accept the tentative ruling, appearances at today's hearing are not required.
Debtor(s):
Nelson Yen Represented By
Jonathan J. Lo
Trustee(s):
Jeffrey I Golden (TR) Pro Se
2:00 PM
FR: 7-15-21
Docket 19
NONE LISTED -
July 15, 2021
Deny motion to quash. As to the request to modify the 2004 examination order or for protective order, continue the hearing to August 12, 2021 at 2:00
p.m. to allow Movant to comply with LBR 2004-f which requires compliance with LBR 7026-1(c)(2) and (c)(3). A joint stipulation addressing each objectionable document request must filed no later than August 2, 2021. The current 2004 examination and productions dates are suspended and will be re-set at the August 12, 2021 hearing. The deadline for the Bank to file a 523 or 727 complaint will be extended from September 13, 2021 to October 13, 2021. (XX)
Basis for Tentative Ruling:
Insufficient grounds/evidence presented to support the request to quash the subpoena. Notably, there is no declaration by Ms. Ko confirming her position with Gryphon, i.e., was/is she an officer (CFO) or not? She has not met her initial burden of proof.
See comments for #24 on today's calendar.
Note: If all parties acept the tentative ruling, appearances at today's hearing are not required.
2:00 PM
Debtor(s):
Nelson Yen Represented By
Jonathan J. Lo
Trustee(s):
Jeffrey I Golden (TR) Pro Se
9:30 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for Judge Erithe A. Smith’s Cases" on the Court's website at:
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https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
NONE LISTED -
9:30 AM
Adv#: 8:17-01101 Martin D. Fern, individually and as Trustee of the v. Chamberlain et al
[fr: 9/26/17, 3/7/18, 9/26/18, 1/9/19, 6/12/19, 12/11/19, 3/4/20]; 9/30/20, Rm 5D; 10-1-20; 1-21-21; 4-22-21
Docket 20
NONE LISTED -
October 1, 2020
In light of pending state court litigation, continue this matter to January 21, 2021 at 10:30 a.m. (XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required.
January 21, 2021
In light of pending state court litigation, continue this matter to April 22, 2021 at 9:30 a.m.; updated Joint Status Report must be filed no later than April 8, 2021 and must include a copy of the Superior Court order or notice re the suspension of civil trials. (XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required.
April 22, 2021
9:30 AM
Continue hearing to August 19, 2021 at 9:30 a.m.; updated joint status report must be filed by August 5, 2021. (XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required.
August 19, 2021
In light of pending state court litigation, continue this matter to February 17, 2022 at 9:30 a.m.; an updated Joint Status Report must be filed no later than February 3, 2022.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiff shall serve notice of the continued Status Conference date/time.
Debtor(s):
David Tudor Chamberlain Represented By Jeffrey I Golden Alan J Friedman Beth Gaschen
Defendant(s):
David Tudor Chamberlain Represented By Gregory S Page
Linda Chamberlain, an individual Represented By
Gregory S Page
Plaintiff(s):
Martin D. Fern, individually and as Represented By
Eric P Israel Sonia Singh
9:30 AM
Linda Taylor-Fern, individually and Represented By
Eric P Israel Sonia Singh
9:30 AM
Adv#: 8:17-01101 Martin D. Fern, individually and as Trustee of the v. Chamberlain et al
[fr: 8/22/17, 9/26/17, 3/7/18, 9/26/18, 1/9/19, 6/12/19, 12/11/19, 3/4/20]; 9-30-20, Rm 5D; 10-1-20; 1-21-21; 4-22-21
Docket 1
NONE LISTED -
October 1, 2020
In light of pending state court litigation, continue this matter to January 21, 2021 at 10:30 a.m. Plaintiff shall file a status report regarding the status of the state court trial by or before January 7, 2021.(XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiffs shall serve Defendants with notice of the continued hearing date/time.
January 21, 2021
In light of pending state court litigation, continue this matter to April 22, 2021 at 9:30 a.m.; updated Joint Status Report must be filed no later than April 8, 2021 and must include a copy of the Superior Court order or notice re the suspension of civil trials. (XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required.
9:30 AM
April 22, 2021
Continue hearing to August 19, 2021 at 9:30 a.m.; updated joint status report must be filed by August 5, 2021. (XX)
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required.
August 19, 2021
In light of pending state court litigation, continue this matter to February 17, 2022 at 9:30 a.m.; an updated Joint Status Report must be filed no later than February 3, 2022.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiff shall serve notice of the continued Status Conference date/time.
Debtor(s):
David Tudor Chamberlain Represented By Jeffrey I Golden Alan J Friedman Beth Gaschen
Defendant(s):
David Tudor Chamberlain Pro Se Linda Chamberlain, an individual Pro Se
Plaintiff(s):
Martin D. Fern, individually and as Represented By
Eric P Israel
Linda Taylor-Fern, individually and Represented By
Eric P Israel
9:30 AM
9:30 AM
Adv#: 8:19-01213 Marshack v. An et al
4. Recovery of Avoided Transfers
FR: 1-30-20; 3-19-20; 5-21-20; 7-23-20; 10-22-20; 1-21-21; 4-8-21; 5-20-21
Docket 1
SPECIAL NOTE: Notice of Voluntary Dismissal of Only Defendant Byungwhan Chung, an individual, filed 3/25/2021 - td (3/26/2021)
CONTINUED: Order approving Stipulation re continuance SIGNED 8/17/21; Status Conference is continued to 11/18/21 at 9:30 a.m. --eas
OFF CALENDAR: Order Granting Stipulation to Continue Status Conference to November 18, 2021 at 9:30 AM Entered on 8-17-21 - jl (8/17/21)
January 30, 2020
Joint status report not timely filed.* Parties must appear and advise the court re the status of this matter.
* The Stipulation and Order [docket #s 5 & 6] only extended the answer date -- did not include an extension of the deadline to file a status report.
Note: Appearances at the hearing are required.
9:30 AM
May 21, 2020
Continue the status conference to July 23, 2020 at 9:30 a.m.; updated status report must be filed by July 16, 2020 if the adversary is still pending by such date.
Note: Appearances at this hearing are not required.
January 21, 2021
Continue status conference to April 8, 2021 at 9:30 a.m.; updated status report must be filed by March 25, 2021 if the adversary is still pending by such date. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
April 8, 2021
Continue status conference one final time to May 20, 2021 at 9:30 a.m.; updated status report must be filed by May 6, 2021.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing are not required and Plaintiff shall serve notice of the continued hearing date/time.
May 20, 2021
Continue Status Conference to July 1, 2021 at 9:30 a.m. Court to issue an Order To Show Cause why this adversary should not be dismissed for lack of prosecution to be heard on July 1, 2021 at 9:30 a.m.
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Basis for Tentative Ruling:
In his status report filed for the April 21, 2021 hearing, Plaintiff represented that this matter would be resolved. No motion for approval of compromise has been filed in the main case and an updated Status Report was not timely filed by May 6, 2021.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing not required and Plaintiff shall serve notice of the continued hearing date/time.
Debtor(s):
Prime Metals U.S.A., Inc. Represented By Steven Werth
Defendant(s):
Minho An Represented By
Michael H Yi
Byungwhan Chung Pro Se
Plaintiff(s):
Richard A Marshack Represented By Ronald S Hodges Robert P Goe Ryan S Riddles
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Laila Masud David M Goodrich Robert P Goe
9:30 AM
Adv#: 8:19-01215 Marshack v. R-Techo, Co., Ltd.
(Another Summons Issued 2/16/2021) FR: 5/6/21; 7-15-21
Docket 1
NONE LISTED -
May 6, 2021
Continue the Status Conference to July 15, 2021 at at 9:30 a.m.; updated Joint Status Report must be filed by July 1, 2021.(XX)
Note: If the parties accept the tentative ruling, appearance at this hearing is not required.
August 19, 2021
Discovery Cut-off Date: July 29, 2022
Pretrial Conference Date: Sept. 8, 2022 at 9:30 a.m. Deadline to File Joint Pretrial Stipulation: Aug. 25, 2022:
9:30 AM
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
Debtor(s):
Prime Metals U.S.A., Inc. Represented By Steven Werth
Defendant(s):
R-Techo, Co., Ltd. Pro Se
Plaintiff(s):
Richard A Marshack Represented By Ronald S Hodges Robert P Goe Ryan S Riddles
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Laila Masud David M Goodrich Robert P Goe
9:30 AM
Adv#: 8:19-01218 Marshack v. Kim et al
FR: 2-6-20; 10-8-20; 1-21-21; 4-22-21; 5-20-21
Docket 1
SPECIAL NOTE: Notice of Voluntary Dismissal of Only Defendant Ik Dong Kim, aka Kim Zk Dong, an individual, with Prejudice, filed 2/3/2021 - td (2/3/2021); Notice of Voluntary Dismissal of Only Defendant Gill Su Sun, an individual, with Prejudice, filed 3/25/2021 - td (3/26/2021)
CONTINUED: Order approving Stipulation re continuance SIGNED 8/17/21; Status Conference is continued to 11/18/21 at 9:30 a.m. --eas
OFF CALENDAR: Order Granting Stipulation to Continue Pre-Trial Conference to November 18, 2021 at 9:30 AM Entered on 8-17-21 - jl (8/17/21)
February 6, 2020
Discovery Cut-off Date: June 1, 2020
Deadline to Attend Mediation: June 15, 2020
Pretrial Conference Date: July 16, 2020 at 9:30 a.m. (XX)
Deadline to Lodge Joint Pretrial Stipulation: July 6, 2020
Special Note: The joint status report filed 1/28/20 provides very little
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information regarding the status of the case, why there is no discovery schedule, and why Plaintiff is waiting for non-answering defendants to participate. Per the docket, only one defendant, Minho An, was granted an extension of time to January 7, 2020 to file an answer. An's answer was timely filed.
Note: If all parties agree with the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
May 20, 2021
Continue Pretrial Conference to July 1, 2021 at 9:30 a.m. Court to issue an Order To Show Cause why this adversary should not be dismissed for lack of prosecution to be heard on July 1, 2021 at 9:30 a.m.
Basis for Tentative Ruling:
Prior to the April 21, 2021 Pretrial Conference, Plaintiff represented that this matter would be resolved. No motion for approval of compromise has been filed in the main case and a Pretrial Stipulation was not timely filed by May 6, 2021.
Note: If the parties accept the foregoing tentative ruling, appearances at this hearing not required and Plaintiff shall serve notice of the continued hearing date/time.
August 19, 2021
Appearance at this Status Conference is required. Plaintiff must appear and explain why the settlement has not been approved and/or completed after several months.
9:30 AM
Debtor(s):
Prime Metals U.S.A., Inc. Represented By Steven Werth
Defendant(s):
Ik Dong Kim Pro Se
Gill Su Sun Pro Se
Minho An Pro Se
Plaintiff(s):
Richard A Marshack Represented By Ronald S Hodges Robert P Goe Ryan S Riddles
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Laila Masud David M Goodrich Robert P Goe
9:30 AM
Adv#: 8:19-01058 Euretig et al v. Pate
FR: 6-20-19; 12-19-19; 11-19-20
Docket 1
NONE LISTED -
June 20, 2019
This adversary proceeding will be stayed in light of the pending state court action, with periodic status conferences. Continue this status conference to December 19, 2019 at 9:30 a.m. An updated status report re the status of the state court action must be filed by December 12, 2019. (XX)
Special note: It is highly likely that once the updated status report is filed, the December 19, 2019 status conference will be continued without the necessity for appearances.
Note: Appearances at this hearing are waived; Plaintiff to lodge a scheduling order consistent with the same.
December 19, 2019
In light of the pending state court matter, continue this Status Conference to November 19, 2020 at 9:30 a.m.; updated joint status report must be filed by November 5, 2020. All discovery stayed until further notice. (XX)
Note: Appearances at this hearing are waived; Plaintiff to lodge a scheduling order consistent with the same.
9:30 AM
November 19, 2020
In light of pending state court litigation, continue the Status Conference to August 19, 2021 at 9:30 a.m.; updated Status Report must be filed by August 5, 2021. (XX)
Note: Appearances at this hearing are waived; Plaintiff to lodge a scheduling order consistent with the same.
August 19, 2021
In light of the representation made in the Status Report filed August 5, 2021, regarding a settlement in the state court action, this Status Conference will be continued to November 18, 2021 at 9:30 a.m.; an updated Joint Status Report must be filed by November 4, 2021. The court will set the discovery deadline and the pretrial conference at the November 18, 2021 Status Conference.
Note: If both parties accept the tentative ruling, appearances at today's hearing is not required and Plaintiff will serve notice of the continued hearing date/time.
Debtor(s):
Sean Pate Represented By
Anerio V Altman
Defendant(s):
Sean Pate Pro Se
Plaintiff(s):
Gary Edelston Represented By Jayne A Peeters
Earl B Abramson Represented By
9:30 AM
Jayne A Peeters
Sunwest Trust Represented By Jayne A Peeters
Oxnard Street, LLC Represented By Jayne A Peeters
Michal Gutentag Represented By Jayne A Peeters
Barbara Edelston Represented By Jayne A Peeters
Beth Rakow Represented By
Jayne A Peeters
Jay Rakow Represented By
Jayne A Peeters
Sunwest Trust Represented By Jayne A Peeters
Louis Schwartz Represented By Jayne A Peeters
David P Abramson Represented By Jayne A Peeters
Rachel Euretig Represented By Jayne A Peeters
Andrew Euretig Represented By Jayne A Peeters
Zvi Gutentag Represented By
Jayne A Peeters
Trustee(s):
Weneta M Kosmala (TR) Represented By Erin P Moriarty
9:30 AM
Adv#: 8:19-01108 Pipitone v. Choice Motor Credit, LLC
FR: 8-22-19; 10-3-19; 11-21-19; 1-16-20; 8-6-20; 9-10-20; 11-5-20; 12-17-20;
4-22-21; 6-17-21
Docket 1
NONE LISTED -
August 22, 2019
Continue Status Conference to October 3, 2019 at 9:30 a.m. (XX)
A motion for default judgment may self-calendared for the same date/time as the continued Status Conference date. Alternatively, the motion may be filed without a hearing pursuant to the procedure set forth in Local Bankruptcy Rule 9013-1(o).
The motion for default judgment, supported by evidence, must be served on defendant and defendant's counsel in accordance with Local Rule 9013-1(d).
If the motion for default judgment is not heard by the continued date of the Status Conference, THE ADVERSARY MAY BE DISMISSED at the Status Conference for failure to prosecute.
Note: Appearance at this hearing is not required; Plaintiff to serve Defendant with notice of the continued status conference date/time.
October 3, 2019
9:30 AM
Continue status conference to November 21, 2019 at 9:30 a.m.; updated status report must be filed by November 7, 2019. (XX)
The status conference is being continued in light of Plaintiff's representations in the status report that some issues have been resolved and that Defendant has hired new counsel to set aside default.
Note: Appearance at this hearing is not required; Plaintiff to serve Defendant with notice of the continued status conference date/time.
January 16, 2020
Discovery Cut-off Date: May 15, 2020
Deadline to Attend Mediation: June 30, 2020
Pretrial Conference Date: Aug. 6, 2020 at 9:30 a.m. (XX) Deadline to File Joint Pretrial Stipulation: July 23, 2020
Special Note: In the JSR, Plaintiff seeks more than 7 months to complete discovery without explanation.
Note: If all parties accept the the foregoing schedule, appearances at today's hearing are waived and Plaintiff shall serve/lodge a scheduling order consistent with the same.
November 5, 2020
Continue the Pretrial Conference to December 17, 2020 at 9:30 a.m. Plaintiff must file and serve any motion for leave to amend the Complaint by or before November 19, 2020, such that the motion can be decided and/or heard by December 17, 2020. (XX)
Note: If both parties accept the foregoing tentative ruling, appearances at today's hearing are not required.
9:30 AM
December 17, 2020
Continue the Pretrial Conference to April 22, 2021 at 9:30 a.m.; Joint Pretrial Stipulation must be filed by April 8, 2021. (XX)
June 17, 2021
Continue Pretrial Conference one final time to August 19, 2021 at 9:30 a.m. to allow the parties to file an amended Pretrial Stipulation by or before August 5, 2021. Any motion re the Request for Admissions must be filed so that a hearing can be held by or before July 22, 2021 on regular notice. (XX)
Basis for Tentative Ruling:
It is not clear that all of the issues of fact set forth in Section B are all really in dispute. Practice Tip: The parties should start each issue of fact with the word "Whether" in order to focus the parties on whether the particular matter is really contested or not. The court has the following comments re a few of the items in Section B to illustrate the point:
Par. 1 - Does Plaintiff dispute that she only made one payment re the Equity Loan?
Par. 1 - Does Plaintiff dispute that the Equity Loan became delinquent on or about December 25, 2017 and remained in default until November 21, 2018?
Par. 3 - Which, if any, party disputes that the Amended Equity Loan includes the provisions set forth in subparagraphs a - d?
Par. 4 - Which, if any, party disputes the facts stated in this paragraph?
Par. 19 - Does Defendant really dispute that Plaintiff's chapter 13 plan was confirmed on May 12, 2019? Or just that it did not receive notice of the same?
9:30 AM
The court declines to go through each and every one of the 53 paragraphs but directs the parties to do so to determine which facts really are in dispute and must be determined at trial.
Note: If both parties accept the foregoing tentative ruling, appearances at this hearing are not required.
August 19, 2021
Approve Joint Pretrial Stipulation filed on August 5, 2021 [docket #94]. Appearances at this hearing are required.
Court Appearance Required to Discuss the Following:
Trial Dates: Available dates are either Nov. 22, 2021 (full day) and Nov. 23, 2021 (half day) or Jan. 26, 2022 (full day) and Jan. 27, 2022 (full day). Trial days start at 9:00 a.m. and conclude by 5:00 p.m.
Manner of Trial: The parties to advise the court regarding a preference for an in-person trial, virtual (Zoom) trial, or a hybrid trial, i.e., in-person and Zoom.
Trial Procedures: The court's usual procedure is to require direct testimony (not including adverse or rebuttal testimony) by declarations filed 30 days prior to the trial by plaintiff and 21 days prior to trial by defendant. All declarants must be available at trial for cross examination. The parties are to advise the court if they agree to this procedure or if they would like to request all-live testimony. All-live testimony may increase the length of the trial by one or more days.
Additional Witnesses/Exhibits: Witnesses and/or exhibits not identified in the Pretrial Stipulation are generally not permitted, except for impeachment or rebuttal purposes.
9:30 AM
Debtor(s):
Alicia K Pipitone Represented By Marc A Goldbach
Defendant(s):
Choice Motor Credit, LLC Represented By
Misty A Perry Isaacson
Plaintiff(s):
Alicia Pipitone Pro Se
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
9:30 AM
Adv#: 8:20-01046 Ehrenberg (TR) v. Benice et al
Docket 1
NONE LISTED -
July 16, 2020
Continue status conference to September 17. 2020 at 9:30 a.m. in light of the appointment of a chapter 11 trustee in the main case. Updated joint status report must be filed by September 3, 2020. (XX)
Note: If both parties accept the foregoing tentative ruling, appearances at this hearing are not required; Plaintiff shall serve notice of the continued hearing date/time.
September 17, 2020
[This tentative ruling has been modified since its original posting]
Continue this matter to November 19, 2020 at 9:30 a.m.; updated statius report must be filed by November 5, 2020. (XX)
Special note: Starting 10/8/20 all hearings before Judge Smith will be by Zoom. See Court's website for details.
Note: Appearances at this hearing are not required.
9:30 AM
November 19, 2020
An updated Status Report was not filed as ordered at the September 17, 2020 hearing. Therefore, the parties must appear at the hearing and advise the court re the status of this matter.
February 18, 2021
Continue status conference to May 20, 2021 at 9:30 a.m.; updated joint status report must be filed by May 6, 2021. The Plaintiff's request to consolidate the Disgorgement Motion [docket no. 381] with this adversary proceeding is granted. Plaintiff to lodge an order consistent with the same.(XX)
Note: Appearances at this hearing are not required; Plaintiff serve notice of the continued hearing date/time.
May 20, 2021
Continue the Status Conference to August 19, 2021 at 9:30 a.m.; updated Joint Status Report must be filed by August 4, 2021. (XX)
Note: Appearances at this hearing are not required; Plaintiff to serve notice of the continued hearing date/time.
August 19, 2021
Continue this matter to December 2, 2021 at 9:30 a.m.; updated Status Report must be filed by November 18, 2021.
Note: If all parties accept the tentative ruling, appearances at this hearing are not required and the trustee shall serve notice of the continued hearing date/time.
9:30 AM
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson
Defendant(s):
Jeffrey S. Benice Represented By Jeffrey S Benice
Benice Law Represented By
Jeffrey S Benice
Plaintiff(s):
Howard M Ehrenberg (TR) Pro Se
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe
9:30 AM
Adv#: 8:20-01113 Dawam v. Yehia
FR: 10-22-20; 11-5-20; 1-14-21; 7-22-21
Docket 1
SPECIAL NOTE: Main Case Closed 8/11/2020 - td (8/25/2020). Order on Motion for Order Abstaining and Abating Adversary Proceeding Pending Trial of State Court Proceeding After Grant of Relief from Automatic Stay Entered 1/27/2021 - td (1/27/2021)
October 22, 2020
Continue Status Conference to November 5, 2020 at 2:00 p.m., same date/time as hearing on Defendant's motion to dismiss. Updated Status Report not required for the November 5, 2020 hearing. (XX)
Note: If all parties accept the foregoing tentative ruling, appearances at today's hearing are not required.
January 14, 2021
Continue Status Conference to May 20, 2021 at 9:30 a.m.; updated Joint Status Report must be filed by May 6, 2021.
Note: If all parties accept the foregoing tentative ruling, appearances at today's hearing are not required.
9:30 AM
July 22, 2021
Continue Status Conference to August 19, 2021 at 9:30 a.m. as a holding date pending completion of the settlement; updated Status Report must be filed by August 12, 2021 if the adversary is still pending as of such date. (XX)
Note: If all parties accept the foregoing tentative ruling, appearances at today's hearing are not required. Plaintiff shall give notice of the continued hearing date/time.
August 19, 2021
Continue this Status Conference to September 30, 2021 at 9:30 a.m.; updated Status Report must be filed by September 16, 2021. The court shall issue an Order to Show Cause Why This Adversary Should Not Be Dismissed For Failure to Prosecute, which OSC shall be heard on September 30, 2021 at 9:30 a.m.
Note: If all the parties accept the tentative ruling, appearances at this hearing are not required.
Debtor(s):
Mazin M. Yehia Represented By Christine A Kingston
Defendant(s):
Mazin M. Yehia Pro Se
Plaintiff(s):
Naeel Hamdy Dawam Represented By Benjamin R Heston
Trustee(s):
Jeffrey I Golden (TR) Pro Se
9:30 AM
9:30 AM
Adv#: 8:20-01110 Myers v. Sandoval
(Another Summons Issued 10/30/2020) FR: 1-14-21; 4-15-21; 5-11-21
Docket 1
NONE LISTED -
January 14, 2021
No answer or other response to the Complaint has been filed by the defendant, Louis Sandoval. Accordingly, this Status Conference will be continued to April 15, 2021 at 9:30 a.m. to allow Plaintiff to file a motion for entry of a default judgment against the defendant which provides evidence to support the required elements of fraud under Bankruptcy Code Section 523(a)(2)(A). (XX)
Special Note:
A motion for default judgment may self-calendared for the same date/time as the continued Status Conference date. Alternatively, the motion may be filed without a hearing pursuant to the procedure set forth in Local Bankruptcy Rule 9013-1(o).
The motion for default judgment, supported by evidence, must be served on defendant and defendant's counsel in accordance with Local Rule 9013-1(d). If the motion for default judgment is not heard by the continued date of the Status Conference, THE ADVERSARY MAY BE DISMISSED at the Status
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Conference for failure to prosecute.
The court strongly suggests that Plaintiff seek legal counsel regarding the preparation of a motion for default judgment.
Note: If Plaintiff accepts the foregoing tentative ruling, appearance at today's hearing is not required; Plaintiff to serve the defendant by mail with notice of the continued hearing date/time.
April 15, 2021
Continue this hearing to May 11, 2021 at 2:00 p.m., same date and time as the hearing on Defendant's motion to dismiss the adversary so that all matters can be heard in the same hearing. (XX)
Note: No appearances for the April 15, 2021 hearing are required.
May 11, 2021
Continue the Status Conference to August 19, 2021 at 9:30 a.m.. A Joint Status Report must be filed by August 5, 2021 (XX)
August 19, 2021
Continue the Status Conference to Sepember 16, 2021 at 2:00 p.m., the same date/time set for hearing on Defendant's motion to dismiss. Updated Status Report not required.
Note: Appearances at this hearing are not required.
9:30 AM
Debtor(s):
Louis Sandoval Represented By Steven B Lever
Defendant(s):
Louis Sandoval Pro Se
Plaintiff(s):
Charlotte Cysner Myers Pro Se
Trustee(s):
Weneta M Kosmala (TR) Pro Se
10:00 AM
U.S. BANK, N.A.
VS.
DEBTOR
Docket 32
OFF CALENDAR: Order Granting Motion for Relief from the Automatic Stay Under 11 U.S.C. §362 (Settled by Stipulation) Entered 8/5/2021 - td (8/5/2021)
NONE LISTED -
Debtor(s):
Joseph Hauck Represented By Julie J Villalobos
Movant(s):
U.S. Bank, N.A., successor trustee to Represented By
Robert P Zahradka Megan E Lees
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
AMERIHOME MORTGAGE COMPANY, LLC VS.
DEBTOR FR: 6-17-21
Docket 39
SPECIAL NOTE: Stipulation for Order to Continue Heraing on Motion for Relief from Automatic Stay, fled 8/11/2021; Order Approving Stipulation to Continue Hearing on Motion Lodged in LOUon 8/11/2021, Order # 10315861 - td (8/11/2021)
OFF CALENDAR: Order Granting Stipulation to Continue Hearing to December 2, 2021 at 10:00 AM Entered on 8-16-21 - jl (8/16/21)
NONE LISTED -
Debtor(s):
Grace Bradshaw Represented By Joon M Khang
Movant(s):
AmeriHome Mortgage Company, Represented By
Robert P Zahradka
10:00 AM
Trustee(s):
Weneta M.A. Kosmala (TR) Represented By Erin P Moriarty
10:30 AM
Docket 632
NONE LISTED -
August 19, 2021
Grant the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Friendly Village MHP Associates LP Represented By
Howard Camhi
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays Kristine A Thagard Arthur Grebow David Wood Tinho Mang Stefan Perovich
10:30 AM
Docket 319
NONE LISTED -
August 19, 2021
Grant the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
Friendly Village GP, LLC Represented By Howard Camhi
Trustee(s):
Richard A Marshack (TR) Represented By
D Edward Hays David Wood Kristine A Thagard
10:30 AM
Docket 105
NONE LISTED -
August 19, 2021
Grant the Motion.
Note: This matter appears to be uncontested. Accordingly, no court appearance by the Movant is required. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required and Movant will be so notified.
Debtor(s):
One Source Facility Maintenance, Represented By
James R Selth
Trustee(s):
Thomas H Casey (TR) Pro Se
10:30 AM
Docket 349
CONTINUED: Hearing Continued to 9/9/2021 at 10:30 a.m., Per Order
Entered 8/5/2021 (XX) - td (8/5/2021)
NONE LISTED -
Debtor(s):
Orange County Bail Bonds, Inc. Represented By Marc C Forsythe Ryan S Riddles
Trustee(s):
Mark M Sharf (TR) Pro Se
10:30 AM
FR: 1-14-21; 5-6-21
Docket 1043
CONTINUED: Hearing Continued to 12/2/2021 at 10:30 a.m., Per Order Entered 7/28/2021 (XX) - am/td (7/30/2021)
NONE LISTED -
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson Robert P Goe
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe Claire K Wu
10:30 AM
FR: 1-14-21; 5-6-21
Docket 1044
CONTINUED: Hearing Continued to 12/2/2021 at 10:30 a.m., Per Order Entered 7/28/2021 (XX) - am/td (7/30/2021)
NONE LISTED -
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson Robert P Goe
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe Claire K Wu
10:30 AM
FR: 1-14-21; 5-6-21
Docket 1045
CONTINUED: Hearing Continued to 12/2/2021 at 10:30 a.m., Per Order Entered 7/28/2021 (XX) - am/td (7/30/2021)
NONE LISTED -
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson Robert P Goe
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe Claire K Wu
10:30 AM
Docket 120
CONTINUED: Hearing Continued to 9/16/2021 at 10:30 a.m., Per Order
Entered 8/9/2021 (XX) - td (8/9/2021)
NONE LISTED -
Debtor(s):
Alicia Marie Richards Pro Se
Trustee(s):
Richard A Marshack (TR) Represented By Richard G Heston
10:30 AM
Docket 124
CONTINUED: Hearing Continued to 9/16/2021 at 10:30 a.m., Per Order
Entered 8/9/2021 (XX) - td (8/9/2021)
NONE LISTED -
Debtor(s):
Alicia Marie Richards Pro Se
Trustee(s):
Richard A Marshack (TR) Represented By Richard G Heston
10:30 AM
Docket 128
NONE LISTED -
August 19, 2021
Grant in part; deny in part. Grant to amend the employment order to allow the Trustee to employ Richard Heston of Heston & Heston as General Counsel, effective July 21, 2021. Deny as to nunc pro tunc employment.
Basis for Tentative Ruling:
Because the Motion seeks to amend the Employment Order, the Motion is akin to an employment application and must satisfy the requirements of § 327. Under § 327(a), a professional may not be employed by a trustee unless the professional does not "hold or represent an interest adverse to the estate, and that are disinterested persons" and may assist the trustee in carrying out the trustee’s duties. To be a "disinterested person," the professional person cannot be a creditor, equity security holder, insider, or an investment banker for any outstanding security of the debtor. 11 U.S.C. § 101(14). In this case, because the court already previously approved the employment of the Firm, the court necessarily previously found that the Firm was qualified and disinterested under § 327(a) to serve as Trustee’s professional. Accordingly, the Firm has satisfied the requirements of § 327(a) to act as general bankruptcy counsel for Trustee.
The date of the Firm’s employment as general counsel will be as of the filing date of this Motion, i.e., July 21, 2021. Estate professionals “cannot
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recover fees for services rendered to the estate unless those services have been previously authorized by a court order.” In re Atkins, 69 F.3d 970, 973 (9th Cir. 1995)(affirming grant of nunc pro tunc employment of accounting firm). However, the bankruptcy court may approve the retroactive employment of professional only if “exceptional circumstances exist.” Id. at 974. “A bankruptcy court's entry of a nunc pro tunc approval is reviewed for abuse of discretion or erroneous application of the law.” Atkins, 69 F.3d at 973.
"To establish the presence of exceptional circumstances, professionals seeking retroactive approval must satisfy two requirements: they must (1) satisfactorily explain their failure to receive prior judicial approval; and (2) demonstrate that their services benefitted the bankrupt estate in a significant manner." Id. "Moreover, the professional must have satisfied the criteria for employment pursuant to 11 U.S.C. § 327, other than the usual requirement of pre-employment approval." Id. at 976.
A bankruptcy court may also consider any of the following additional factors when exercising its discretion on whether to grant retroactive employment:
The debtor, trustee or committee expressly contracted with the professional person to perform the services which were thereafter rendered;
The party for whom the work was performed approves the entry of the nunc pro tunc order;
The applicant has provided notice of the application to creditors and parties in interest and has provided an opportunity for filing objections;
No creditor or party in interest offers reasonable objection to the entry of the nunc pro tunc order;
The professional satisfied all the criteria for employment pursuant to... § 327...and [Rule 2014]... at or before the time
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services were actually commenced and remained qualified during the period for which services were provided;
The work was performed properly, efficiently, and to a high standard of quality;
No actual or potential prejudice will inure to the estate or other parties in interest;
The applicant's failure to seek pre-employment approval is satisfactorily explained; and
The applicant exhibits no pattern of inattention or negligence in soliciting judicial approval for the employment of professionals.
Atkins, 69 F.3d at 974 (citing In re Twinton Properties P’ship, 27 B.R. 817, 819-20 (Bankr. M.D. Tenn. 1983)). A bankruptcy court is not required to consider the Twinton Properties factors listed above, however, and may rule on a request for nunc pro tunc employment without doing so. Id. at 976. As noted by the Ninth Circuit, the Twinton Properties are optional considerations, while a "satisfactory explanation" for the delayed employment application is mandatory for retroactive employment. Atkins, supra, at 976 (holding that the Twinton Properties "may be, but need not be, considered by the court in exercising its discretion").
In this case, the court will deny the request to approve the nunc pro tunc relief and will not retroactively date the employment of the Firm as general counsel. The Motion discusses two reasons why retroactive relief is sought: 1) the Firm inadvertently or mistakenly identified that is was seeking employment as "special counsel" in the initial Employment Application, and
(2) to insulate the Firm from Debtor’s future fee objections. See Mot., 2:14-16, 3:11-13, 4:21-23.
As to the first reason, there does not appear to be any evidence of inadvertence or mistake in the Employment Application -- it clearly identified that the Firm was seeking employment as special counsel, including in the
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footer of every page which was labelled "Application to Employ Special Counsel." See Opp’n, 4:1-19 and Ex. A (Employment Application). And contrary to the Firm’s argument that the scope of services was broadly written to detail those services customarily provided by general counsel, the scope of services in the Employment Application were narrowly tailored to the sale of Debtor’s residence only with no mention of other services usually provided by general counsel, i.e., claims analysis/objections; analysis of potential avoidance causes of action, etc.. See Mot., 2:14-16; Opp’n, Ex. A, 7, ¶ 24.
Significantly, the Employment Application narrowly provides that "[t]he Firm has agreed to be employed to perform services in connection with marshaling assets of the estate, including the Catalina property, obtaining orders as necessary and appropriate for the sale of such property, including orders to obtain possession pending sale in the event Debtor fails and/or refuses to cooperate with the Trustee and his agents in marketing and selling the property, and aiding in the administration of same pursuant to 11 U.S.C. § 327(e). " Id. (emphasis added). Section 327(e) is the subsection that specifically allows a trustee to employ a professional person a special purpose.
Further, the court notes that the Motion is not supported by the declaration of the Trustee indicating either 1) his intent that the employment be general representation or 2) why he signed off on an application that clearly indicates that is for the employment of special counsel.
The second reason for nunc pro tunc relief offered by the Firm also does not satisfactorily explain the Firm’s failure to receive prior judicial approval. In fact, the Firm admits that it filed the Motion due to events that occurred after entry of the Employment Order, i.e., Debtor’s notice to the Firm that she will object to all fees incurred by the Firm. See Mot., 3:11-13 ("On numerous occasions since entry of the order, Debtor has indicated in emails that she will object to all services rendered by the Heston Firm on the basis that it is acting as special counsel, not as general counsel to the Trustee.") (emphasis added). Nor has the Firm provided any legal authority supporting its position that nunc tunc pro relief, which may only be granted if “exceptional circumstances exist,” may be used as a litigation tactic to preemptively defend against a pro se debtor’s threatened objection to fees. That this could
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potentially be a surplus case is even more reason to not effectively deny any valid objections that Debtor may have to the Firm’s services rendered outside the scope of its court-approved employment as special counsel. Estate professionals “cannot recover fees for services rendered to the estate unless those services have been previously authorized by a court order.” Atkins, 69 F.3d at 973. To clarify, that the court will not grant retroactive relief under the Motion is not a denial of all fees incurred by the Firm prior to the Motion which may still be compensable under its scope of services as special counsel.
Debtor(s):
Alicia Marie Richards Pro Se
Trustee(s):
Richard A Marshack (TR) Represented By Richard G Heston
10:30 AM
Docket 138
CONTINUED: Hearing Continued to 9/16/2021 at 10:30 a.m., Per Order
Entered 8/9/2021 (XX) - td (8/9/2021)
NONE LISTED -
Debtor(s):
Alicia Marie Richards Pro Se
Trustee(s):
Richard A Marshack (TR) Represented By Richard G Heston
10:30 AM
FR: 6-17-21
Docket 72
NONE LISTED -
June 17, 2021
Grant Motion for the reasons stated and the legal authority presented in the Motion and Reply
August 19, 2021
Continue this hearing to September 30, 2021 at 10:30 a.m.
Special Note: Debtor may set any Rule 9019 motion for hearing on September 30, 2021 at 10:30 a.m.
Note: Appearances at this hearing are not required.
Debtor(s):
Mehr Group of Companies Holding Represented By
Andy C Warshaw Richard L. Sturdevant
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
10:30 AM
FR: 6-17-21
Docket 78
NONE LISTED -
June 17, 2021
Deny motion if the court grants lessor's motion to compel rejection [See # 21 on today's calendar]
August 19, 2021
Continue this hearing to September 30, 2021 at 10:30 a.m.
Special Note: Debtor may set any Rule 9019 motion for hearing on September 30, 2021 at 10:30 a.m.
Note: Appearances at this hearing are not required.
Debtor(s):
Mehr Group of Companies Holding Represented By
Andy C Warshaw Richard L. Sturdevant
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
10:30 AM
FR: 7-15-21
Docket 98
NONE LISTED -
July 15, 2021
Continue hearing to August 19, 2021 at 10:30 a.m. to allow Debtor to correct defective service to Claimant. (XX)
Basis for Tentative Ruling:
The Motion was not served at the exact address indicated on the proof of claim as required by FRBP 3007. The address on the proof of claim is "BCORE Retail Brookhurst Adams LLC c/o Blackmar, Principe & Schmelter, APC, 600 B Street, Suite 2250, San Diego, CA 92101." The Motion was served at the correct address but not in care of BP&S.
Tentative ruling for 8/19/21 hearing (if unopposed):
Disallow the sum of $137,954 ($57,954 + $80,000) and allow the claim in the amount of $155,762.01 ($293,716.01- $137,954).
Note: If Debtor accepts the tentative ruling, appearance at this hearing is not required and Debtor shall re-serve the Motion.
August 19, 2021
10:30 AM
Continue this hearing to September 30, 2021 at 10:30 a.m.
Special Note: Debtor may set any Rule 9019 motion for hearing on September 30, 2021 at 10:30 a.m.
Note: Appearances at this hearing are not required.
Debtor(s):
Mehr Group of Companies Holding Represented By
Andy C Warshaw Richard L. Sturdevant
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
FR: 5-11-21; 6-17-21
Docket 1
NONE LISTED -
May 11, 2021
No tentative ruling; disposition will depend on outcome of other matters on today's calendar.
June 17, 2021
No tentative ruling; disposition will depend on outcome of other matters on today's calendar.
August 19, 2021
Continue this hearing to September 30, 2021 at 10:30 a.m. An updated Status Report need only be filed by September 16, 2021 if a Rule 9019 motion to approve compromise has not been filed by such date.
Special Note: Debtor may set any Rule 9019 motion for hearing on September 30, 2021 at 10:30 a.m.
10:30 AM
Note: Appearances at this hearing are not required.
Debtor(s):
Mehr Group of Companies Holding Represented By
Andy C Warshaw
Trustee(s):
Robert Paul Goe (TR) Pro Se
10:30 AM
FR: 4/16/21; 5-11-21
Docket 6
CONTINUED: Hearing Continued to 10/21/2021 at 10:30 a.m., Per Order
Entered 7/30/2021 (XX) - td (7/30/2021)
May 11, 2021
Grant motion on final basis on terms set forth in the signed cash collateral stipulation.
Note: Appearances at this hearing are not required.
Debtor(s):
Plamex Investment, LLC Represented By Ron Bender Juliet Y Oh Monica Y Kim
Movant(s):
Plamex Investment, LLC Represented By Ron Bender Juliet Y Oh Monica Y Kim
10:30 AM
Docket 16
OFF CALENDAR: Order of Dismissal Arisig from Debtor's Request for Voluntary Dismissal of Chapter 13 Entered 7/23/2021 - td (8/11/2021)
NONE LISTED -
Debtor(s):
Bassam Istambouli Represented By Anerio V Altman
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:30 AM
Docket 34
NONE LISTED -
August 19, 2021
Grant the Motion if service per the OST is correct.
Debtor(s):
Advantage Manufacturing, Inc. Represented By Michael G Spector Vicki L Schennum
Trustee(s):
Robert Paul Goe (TR) Pro Se
2:00 PM
Adv#: 8:20-01161 Kurtin v. Elieff
FR: 5-6-21; 6-17-21
Docket 10
NONE LISTED -
August 19, 2021
Plaintiff will have 25 minutes to highlight arguments in support of the Motion; Defendant will have 25 minutes to respond; Plaintiff will have 10 minutes for final comments. The hearing will then be adjourned to September 2, 2021 at 2:00 pm, at which time the court will issue an oral ruling. If a written ruling is posted prior to the hearing, counsel will be so notified.
Debtor(s):
Bruce Elieff Represented By
Lisa Nelson Robert P Goe
Defendant(s):
Bruce Elieff Represented By
Robert P Goe
Plaintiff(s):
Todd Kurtin Represented By
Lewis R Landau
2:00 PM
Trustee(s):
Howard M Ehrenberg (TR) Represented By Alan G Tippie Daniel A Lev Sean A OKeefe Claire K Wu
1:30 PM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for Judge Erithe A. Smith’s Cases" on the Court's website at:
1:30 PM
https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
NONE LISTED -
1:30 PM
Docket 11
OFF CALENDAR: Order of Dismissal Arising from Debtor's Request for Voluntary Dismissal of Chapter 13 with Restrictions (11 U.S..C. Sections 109(g)(2) and 1307(b)) Entered 8/13/2021 - td (8/13/2021)
NONE LISTED -
Debtor(s):
Elizabeth Nguyen Le Pro Se
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 21
NONE LISTED -
NONE LISTED -
Debtor(s):
Curtis Maurice Arrington Represented By Bert Briones
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 16
NONE LISTED -
NONE LISTED -
Debtor(s):
Randolph Gregory Umagat Represented By Bryn C Deb
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 3
NONE LISTED -
NONE LISTED -
Debtor(s):
Anthony Thomas Vanausdoll Represented By Sundee M Teeple
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 17
NONE LISTED -
NONE LISTED -
Debtor(s):
Mark Miltko Represented By
Christine A Kingston
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
NONE LISTED -
NONE LISTED -
Debtor(s):
Zenaida Miranda Rodriguez Represented By Amanda G. Billyard
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 4
NONE LISTED -
NONE LISTED -
Debtor(s):
Michael Silvio Cesarini Represented By Andy C Warshaw
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
NONE LISTED -
NONE LISTED -
Debtor(s):
Adam Paul Dunn Represented By Andy C Warshaw
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 18
NONE LISTED -
NONE LISTED -
Debtor(s):
Hector German Gabira Represented By Anerio V Altman
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
NONE LISTED -
NONE LISTED -
Debtor(s):
Kelly Kristine Goodman Represented By Brian J Soo-Hoo
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 10
NONE LISTED -
NONE LISTED -
Debtor(s):
Phillip Kwan Represented By
Julie J Villalobos
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
NONE LISTED -
NONE LISTED -
Debtor(s):
Evelyn Ahumada Represented By Heather J Canning
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
1:30 PM
Docket 2
NONE LISTED -
NONE LISTED -
Debtor(s):
Roman Israel Pacheco Represented By David Lozano
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 36
NONE LISTED -
NONE LISTED -
Debtor(s):
Jesus M Razo Represented By
Christopher J Langley
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
Docket 50
NONE LISTED -
NONE LISTED -
Debtor(s):
Kalani James Robert Green Represented By
Rabin J Pournazarian
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 7-27-21
Docket 97
OFF CALENDAR: Notice of Withdrawal of Trustee's Motion for Order Dismissing Chapter 13, filed 8/12/2021 - td (8/12/2021)
NONE LISTED -
Debtor(s):
Edgar Guzman Represented By Rebecca Tomilowitz
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
2:30 PM
FR: 7-27-21
Docket 94
NONE LISTED -
NONE LISTED -
Debtor(s):
David Hepburn Represented By Julie J Villalobos
Joint Debtor(s):
Kimberly Hepburn Represented By Julie J Villalobos
Trustee(s):
Amrane (SA) Cohen (TR) Pro Se
10:00 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for Judge Erithe A. Smith’s Cases" on the Court's website at:
10:00 AM
https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0
NONE LISTED -
10:00 AM
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone).
Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
For more information on appearing before Judge Smith by ZoomGov, please see the "Notice of Video and Telephonic Appearance Procedures for Judge Erithe A. Smith’s Cases" on the Court's website at: https://www.cacb.uscourts.gov/judges/honorable-erithe-smith under the "Telephonic Instructions" section.
10:00 AM
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
10:00 AM
(Set at hrg. held 6-10-21) FR: 7-16-21
Docket 86
NONE LISTED -
June 10, 2021
This matter needs to be set for an evidentiary hearing re the value of the property due to conflicting testimony. Evidentiary hearing date: July 16, 2021 at 10:00 a.m. via Zoom. All declarants must be present at the hearing for cross examination. The parties are to review the Court's Zoom policy for trials. (XX)
Special Note: The court strongly suggests that the parties meet and confer regarding a resolution of the value issue prior to the July 16, 2021 hearing.
August 25, 2021
EVIDENTIARY OBJECTIONS
Debtor's Evidentiary Objections to the Declaration of Omar Amaya
Objection # Ruling
SUSTAINED. Relevance
10:00 AM
SUSTAINED. Relevance
Debtor's Evidentiary Objections to Declaration of Mike Young
Objection # Ruling
OVERRULED
OVERRULED
SUSTAINED. Lack of Foundation*
OVERRULED
SUSTAINED as to "properties similar to the ones used as 'comparables' in the Douglass Appraisal." Lack of Foundation* OVERRULED as to the balance
SUSTAINED. Lack of Foundation*
OVERRULED
OVERRULED
SUSTAINED
OVERRULED
OVERRULED
OVERRULED
A&G's Evidentiary Objections to Declaration of Rod Hefington [Doc.144]
1 OVERRULED. Authenticated by Doc. 156
10:00 AM
A&G's Evidentiary Objections to Declaration of Rod Hefington [Doc.183]
1 OVERRULED. Opinion testimony
IV. A&G's Evidentiary Objections to Declaration of Rober Doglass [Doc. 126]
OVERRULED
OVERRULED
OVERRULED
SUSTAINED (bolded language in objection). Lack of Foundation*
- 66 OVERRULED
Debtor(s):
DEA Brothers Sisters LLC Represented By Roger J Plasse John H Bauer
10:00 AM
362(D)(3)
FR: 6-10-21; 7-16-21
Docket 100
NONE LISTED -
June 10, 2021
Continue hearing to July 16, 2021 at 10:00 a.m., same date/time set for evidentiary hearing re the value of the subject property (see tentative ruling for #19 on today's calendar). (XX)
Debtor(s):
DEA Brothers Sisters LLC Represented By John H Bauer
10:00 AM
FR: 4-8-21; 6-10-21; 7-16-21
Docket 18
NONE LISTED -
April 8, 2021
Grant motion on an interim basis on the terms set forth in the Motion, except that no postpetition cash collateral shall be used to pay legal fees, through and including June 10, 2021. All secured creditors will retain their liens in the same priority as existed as of the petition date. A final hearing shall be held on June 10, 2021 at 10:30 a.m.; Debtor must file any supplemental pleadings in support of the Motion by May 20, 2021; any further opposition or response must be filed by May 27, 2021; any reply must be filed by June 3, 2021.
Debtor to self-calendar a hearing on any motion to value property on its own. (XX)
Court's Comments re the Motion and Opposition:
Payment of operating expenses on the property maintains the value of the property to benefit of objecting creditor A&G. A&G's objection to the use of cash collateral to pay utilities, landscaping, repairs, etc. is unreasonable. Moreover, Debtor has offered a replacement lien in the cash collateral expended (in order of priority).
10:00 AM
Because net rents are insufficient to pay the contractual payments to the senior, 1st position lender, Debtor is not required to apportion the net rents between such senior lender and the junior lender A&G.
A&G has not established a diminution in the value of its interest in the subject property entitling it to adequate protection payments. See US v. Timbers of Inwood Forest, 484 U.S. 365 (1988).
The court accepts Debtor's valuation of the property on an interim basis as it is the only admissible evidence of value that has been presented at this point. As aptly stated in In re Russell, 567 B.R. 833, 840 (Bankr.Mont.2017): "an owner is competent to give his or her opinion on the value of his or her property, most often simply by stating the conclusion without stating a reason. See Hon. Barry Russell, BANKRUPTCY EVIDENCE MANUAL, 2016–2017 ed. § 701:2; South Central Livestock Dealers, Inc. v. Security State Bank of Hedley, Tex., 614 F.2d 1056, 1061 (5th Cir. 1980). While a debtor's estimate of value may be acceptable in certain cases, the Court may give little weight to an opinion if not based upon sufficient facts. In re Plummer, 20 Mont. B.R. 468, 478 (Bankr. D. Mont. 2003). . . ." See also, Fed.R.Evid. 701. A&G's citation to Zillow is, as it has acknowledged, completely inadmissible. It's evidentiary objections to the statement of value by Enayat Ali Jiwani are, therefore, overruled.
A&G's evidentiary objection to the exhibits attached to the Motion on the basis of insufficient authentication are well-taken. Mr. Jiwani's declaration should have specifically addressed and authenticated each exhibit. Proper authentication/personal knowledge/foundation will need to be provided for the final hearing.
The court does not base its decision to grant the motion on an interim basis on the declaration of real estate broker David Pai as Mr. Pai is 1) not the owner of the property and 2) the conclusory declaration does not rise to the level of even a broker's opinion (e.g., no cap rate, comparables, etc.).
Pursuant to LBR 1001-1(a), the court waives the requirement of the use of Statement Regarding Cash Collateral or Debtor in Possession Financing as required by LBR 4001-2(a) in this instance but cautions Debtor's counsel to
10:00 AM
utilize this form in the future.
June 10, 2021
Continue hearing to July 16, 2021 at 10:00 a.m., same date/time set for evidentiary hearing re the value of the subject property (see tentative ruling for #19 on today's calendar). Interim use of cash collateral permitted on the same basis as for the April 8, 2021 hearing. (XX)
Debtor(s):
DEA Brothers Sisters LLC Represented By Roger J Plasse
9:00 AM
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
9:00 AM
"Telephonic Instructions" section.
To assist in creating a proper record and for the efficiency of these proceedings, please:
Connect 10 minutes before your hearing time so that you have time to check in.
Change your Zoom name to include your calendar number, first initial and last name, and client name (ex. 5, R. Smith, ABC Corp.) if appearing by video. This can be done by clicking on "More" and "Rename" from the Participants list or by clicking on the three dots on your video tile.
Mute your audio to minimize background noise unless and until it is your turn to speak. Consider turning your video off until it is your turn to appear.
Say your name every time you speak.
Disconnect from the meeting by clicking "Leave" when you have completed your appearance(s).
Docket 0