Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Title: In Re Kevan Harry Gilman, Debtor v. Kevan Harry Gilman

April 4, 2012

TITLE: IN RE KEVAN HARRY GILMAN, DEBTOR; TAMMY PHILLIPS & TAMMY R. PHILLIPS, A PROF. LAW CORP., APPELLANTS
v.
KEVAN HARRY GILMAN, APPELLEE



Bankr. Case No. 1:11-bk-11603-VK (Ch. 7) Adv. No. 1:11:ap-01389-VK

The opinion of the court was delivered by: The Honorable David O. Carter, Judge

CIVIL MINUTES - GENERAL

Julie Barrera Not Present Courtroom Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:

NONE PRESENT NONE PRESENT

PROCEEDING (IN CHAMBERS): ORDER GRANTING DEFENDANT/APPELLEE'S MOTION TO DISMISS APPEAL FOR LACK OF JURISDICTION AND DENYING ALL PARTIES' MOTIONS FOR SANCTIONS

Before the Court is a frivolous appeal to a frivolous motion that sought to strike a frivolous affirmative defense, as well as frivolous motions for sanctions. Specifically, before the Court is Defendant/Appellee Kevan Harry Gilman's Motion to Dismiss Appeal for Lack of Jurisdiction and Motion for Monetary Sanctions. ("Mot.") (D. Ct. Dkt. 12).*fn1 Also before the Court are two motions for sanctions by Appellants. See Appellants' Notice of Motion for Sanctions on Appeal (D. Ct. Dkt. 24); Appellants' Motion to Strike and For Sanctions (D. Ct. Dkt. 28). The Court finds these matters appropriate for decision without oral argument. Fed. R. Civ. P. 78; Local Rule 7-15. The Court has considered the moving, opposing, and replying papers, and hereby GRANTS the Motion to Dismiss for Lack of Jurisdiction and DENIES all other motions.

I. BACKGROUND

Defendant/Appellee Kevan Harry Gilman ("Appellee") filed for bankruptcy in February 2011. Chapter 7 Voluntary Petition (Bankr. Dkt. 1). In May 2011, Plaintiffs/Appellants Tammy Phillips & Tammy R. Phillips, a Professional Law Corporation ("Appellants") filed a complaint in an adversary proceeding seeking to prevent Appellee from discharging a debt allegedly owed to Appellants as a result of a state court judgment. Compl. (A.P. Dkt. 1) at 2. Appellee filed an answer to the complaint, asserting as one of his three affirmative defense a defense labeled "Malicious Prosecution -- Offset." Answer to Complaint (A.P. Dkt. 8.) at 3. It read, in it its entirety: "Answering Defendant alleges that if any monies are owed to Plaintiff(s) that such sum is offset by monies owed to Defendant because of the other specious allegations contained in Plaintiff's Complaint." Id.

Appellants sought to strike that "affirmative defense" by filing a motion titled: "Special Motion to Strike Under California's anti-SLAPP Statute."*fn2 See Plaintiff's Special Motion to Strike Under California's anti-SLAPP Statute (A.P. Dkt. 10).

On August 24, 2011, the Bankruptcy Court heard oral argument on the "anti-SLAPP motion." RT 08/24/11 (A.P. Dkt. 62) at 1. Judge Victoria S. Kaufman denied the "anti-SLAPP motion" on the grounds that the statute did not apply where the motion was brought by the plaintiff to strike an affirmative defense raised by the defendant in a federal bankruptcy adversary proceeding. Id. at 7-11, 20. The order denying the motion was prepared by Appellee and filed on October 20, 2011. Order Denying Plaintiff's Special Motion to Strike Under anti-SLAPP Statute (A.P. Dkt. 38). Without asking leave of either court, Appellants directly appealed Judge Kaufman's denial of their "anti-SLAPP motion" to this Court on November 3, 2011, as if it were a final order under 28 U.S.C. § 158(a)(1). Appellee now seeks to dismiss the appeal on the grounds that this Court lacks jurisdiction to hear the matter because the order denying Appellants' anti-SLAPP motion was not a final order. Mot. at 4.

II. LEGAL STANDARD

District courts have jurisdiction over appeals from bankruptcy court orders and judgments under 28 U.S.C. § 158. The statute gives parties wishing to appeal a "final" order an appeal as a matter of right. 18 U.S.C. § 158(a)(1). For all other orders, an appeal may only be taken with the leave of the See 18 U.S.C. §§ 158(a)(2)-(3); In re City of Desert Hot Springs, 339 F.3d 782, 787-88 (9th Cir. 2003) (holding that district courts have discretion to hear appeals from interlocutory orders, and that the Ninth Circuit has "no jurisdiction to consider whether such exercises of discretion are An order from bankruptcy court is considered final -- that is, appealable as a matter of right -- for the purposes of 28 U.S.C. 158(a)(1) when it: ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.