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In Re George S. Louie Bk v. George S. Louie

March 28, 2013

IN RE GEORGE S. LOUIE BK
DEBTOR.
DAVID WONG,
APPELLANT,
v.
GEORGE S. LOUIE,
APPELLEE.



The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge

ORDER AFFIRMING AWARD OF ATTORNEY'S FEES

Appellant David Wong ("Appellant") appeals the Bankruptcy Court's award of $7,500 in attorney's fees to Keith Cable, the attorney of debtor and appellee George S. Louie ("Appellee"). (Appellant's Opening Brief ("Opening Brief"), ECF No. 13.) Appellee*fn1 opposes the motion. (Real Party in Interest's Brief in Opp'n ("Opp'n"), ECF No. 14.)

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Bankruptcy Court made the following findings of fact and conclusions of law that are relevant to this appeal during a hearing held on March 6, 2012. (Excerpts of Record ("ER") 7-20, ECF No. 13-1.) Appellee's Chapter 7 bankruptcy case began on February 28, 2011, with the filing of an involuntary petition by Robert Carichoff, Elena Sadur, and Leslie Wolf, each of whom was represented by Appellant David Wong. (Id. 9:8--16.) "[F]or some . . . months beforehand, [Appellant] had been trying to take judgment debtor examinations [in] California superior courts." (Id. 9:22--10:1.) Appellant had been "continually frustrated by [Appellee], who repeatedly sought ways to defer and delay the judgment debtor examinations, often relying on medical appointments and requests for accommodation, which requests were regularly granted." (Id. 10:2--5.) Appellant attended a hearing regarding a judgment debtor's examination on March 3, 2011, in the Superior Court of California, County of Alameda ("Alameda Superior Court" or "Superior Court"), but he "did not mention to the Superior Court that he had caused to be filed an involuntary bankruptcy petition to the Superior Court." (Id. 10:10--14.) At "a subsequent hearing, apparently on March 7, [Appellant] says he did mention the petition, and Appellant called Mr. Cable [who represented Appellee] on or about March 9 . . . to tell him about filing the involuntary petition." (Id. 10:15--19.)

"The [S]uperior [C]court subsequently issued a bench warrant, and Mr. Cable was engaged [by Appellee] to get the bench warrant withdrawn, and that ultimately occurred. But before that could occur, [Appellant] Mr. Wong had filed a contempt request[,] which was post-petition that was filed on or following March 10, 2011, and the matter was set for a hearing on June 1, 2011." (Id. 10:20--25.) "The bench warrant was ultimately vacated but after Mr. Cable had incurred considerable expense in representing [Appellee] Mr. Louie with respect to that." (Id. 11:1--4.)

Appellant's appearance in the Alameda Superior Court on March 3, 2011 was an act by Appellant to attempt to collect a judgment. (Id. 15:3--5.) The Bankruptcy Court "[was] persuaded as a matter of fact that [Appellant] was in a position that he could have stopped" the judgment debtor's examination and subsequent contempt request and hearing. (Id. 15:17--18.) "[Appellant]'s request for a judgment debtor examination . . . violate[d] the automatic stay." (Id. 16:3--5.) The Bankruptcy Court found that Appellant's actions were "a willful violation of the automatic stay." (Id. 16:11--12.)

The Bankruptcy Court found that "Cable was billing at $350 an hour for this kind of matter and he was put to about 30 hours of work in order to resolve the whole problem of the warrant," but further found "that 20 hours would have sufficed." (Id. 16:25--17:4.) The Bankruptcy Court awarded $7,500, "payable to Mr. Cable as the attorney for [Appellee] Mr. Louie, because the violation was willful within the meaning of 11 U.S.C. Section 362(k)(1)." (Id. 17:6--17:9.)

II. ISSUES PRESENTED ON APPEAL

Appellant lists eleven issues in his Statement of Issues on Appeal, of which judicial notice is taken.*fn2 (Designation of Record, Statement of Issues on Appeal, and Notice of Ordering Transcripts ("Designation of Record" or "Statement of Issues on Appeal") 5:11--7:16, ECF No. 340 (Case No. 11-25036).) However, only three of the eleven issues are presented in Appellant's Opening Brief. (See Opening Brief 8:16--17, 13:5--6, 17:10--11.)

Since Appellant does not argue most of the issues raised in his Statement of Issues on Appeal, the issues presented in Appellant's Opening Brief will be analyzed rather than the issues listed in his Statement of Issues on Appeal, with one exception discussed at the end of this Order. Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986) ("The [appellate court] will not ordinarily consider matters on appeal that are not specifically and distinctly argued in appellant's opening brief and therefore we decline to consider any of [Appellants'] additional claims here." (citation omitted)).

The three arguments Appellant raises in his Opening Brief follow:

1) "11 USC [§] 342(g)(2) forbids imposing monetary penalties for automatic stay violations occurring prior to [the] order for relief being entered," (Opening Brief 8:16--17);

2) "The automatic stay of an involuntary [bankruptcy] petition arises upon [issue of the] order for relief," (id. 13:5--6);

3) "When the debtor is the plaintiff in the case, the automatic stay does not ...


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