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In re Abrahams

United States District Court, S.D. California

March 30, 2015

In Re: CHARLES L. ABRAHAMS Debtor.
v.
MATHIAS HEINTZ, et al., Appellees. CHARLES L. ABRAHAMS Appellant, Bankruptcy No. 10-00968-CL7

ORDER

WILLIAM Q. HAYES, District Judge.

The matters before the Court are the Petition for Writ of Mandamus filed by Appellant Charles Abrahams (ECF No. 7) and the Chapter 7 Trustee's Emergency Motion for Order Striking Appellant's Petition for Writ of Mandamus filed by Leslie T. Gladstone (ECF No. 9).

I. Background

On November 13, 2014, Appellant Charles Abrahams commenced this action by filing a notice of appeal from the United States Bankruptcy Court for the Southern District of California, appealing various billers issued on September 8, 2014 by U.S. Bankruptcy Judge Christopher Latham in Bankruptcy Case No. 10-00968-CL7 (the "Bankruptcy Action"). (ECF No. 1). On December 29, 2014, Appellant filed an amended notice of appeal, appealing various orders issued by ti Bankruptcy Judges Christopher Latham, Laura Taylor, and Louise Adler in Bankruptcy Case No. 10-00968-CL7 and Adversary Proceeding No. 12-90132-CL. (ECF No. 2). On January 2, 2015, the Court issued a scheduling order, stating that "[t]his Court shall receive a Record of Appeal no later than February 6, 2015" and 103 later than March 6, 2015, Appellant shall serve and file its opening brief and supporting evidence." (ECF No. 3 at 1-2). The docket reflects that Appellant has not filed a Record of Appeal or an opening brief

On March 18, 2015, Appellant filed the Petition for Writ of Mandamus, accompanied by thirty-seven exhibits. (ECF Nos. 7, 8). The petition for writ of mandamus contends that Adversary Proceeding No. 15-90013-CL, which was originally filed in San Diego County Superior Court, should be remanded to San Diego County Superior Court. The petition further requests that the Court "dismiss" an order entered by the Bankruptcy Court in that case. (ECF No. 7 at 36).

On March 24, 2015, Leslie T. Gladstone filed the Chapter 7 Trustee's Emergency Motion for Order Striking Appellant's Petition for Writ of Mandamus. (ECF No. 9). On March 25, 2015, the Court issued an Order to Show Cause as to why this Bankruptcy Appeal should not be dismissed for failure to prosecute and as to why Appellant's petition for writ of mandamus should not be denied for lack of jurisdiction. (ECF No. 11). On March 26, 2015, the Court issued an Order, stating that "Appellant Charles Abrahams shall file any response to the Emergency Motion to Strike Petition for Writ of Mandamus... no later than Monday, March 30, 2015 at 8:00 AM." The Court further vacated the portion of its March 25, 2015 Order to Show Cause that ordered Appellant to show cause as to why his writ of mandamus should not be denied for lack of jurisdiction. On March 30, 2015, Appellant filed an opposition to the emergency motion to strike. (ECF No. 13).

II. Discussion

Leslie Gladstone asserts that she is the Chapter 7 Trustee in the Bankruptcy Action. Leslie Gladstone contends that the Petition for Writ of Mandamus appeals a different proceeding, which involves different bankruptcy court orders, parties, and property.

Leslie Gladstone asserts that on January 12, 2015, she filed a motion for an order approving sale at 1048 E Avenue, National City, California in the Bankruptcy Case. Leslie Gladstone asserts that Appellant failed to appear at the hearing and instead filed a civil rights complaint in San Diego County Superior Court related to 1048 E Avenue, National City, California. Leslie Gladstone asserts that Appellant also filed a lis pendens on the property at 1048 E Avenue, National City, California, which would hold up the sale. Leslie Gladstone asserts that she removed the case to Bankruptcy Court (Adversary Proceeding No. 15-90013-CL), where Judge Latham issued an order expunging the lis pendens.

Appellant's Petition for Writ of Mandamus seeks to "dismiss" Judge Latham's order expunging the lis pendens and remand Adversary Proceeding No. 15-90013-CL to state court. Appellant contends that the Bankruptcy Court lacks jurisdiction over his civil rights action filed in state court. In opposition to the emergency motion to strike, Appellant again contends that the Bankruptcy Court is acting without jurisdiction. Appellant cites state law California Code of Civil Procedure section 405.39 for the proposition that a writ of mandate is his only avenue for relief for appealing an expungement order and Orange County v. Hongkong and Shanghai Banking Corp. Ltd, 52 F.3d 821 (9th Cir. 1995) for the proposition that an expungement order is not immediately appealable.

Appellant's petition for writ of mandamus relates to a different bankruptcy proceeding than the proceeding at issue in this appeal. In addition, Appellant has not shown that he cannot obtain the relief he desires through the "regular appeals process." Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 380-81 (2004); see also DeGeorge v. U.S. Dist. Court for Cent. Dist. of Cal., 219 F.3d 930, 935 (9th Cir. 2000) ("If writs of mandamus could be obtained merely because an order was not immediately appealable... mandamus would eviscerate the statutory scheme established by Congress to strictly circumscrib[e] piecemeal appeal....") (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383 (1953)). Finally, Appellant has not shown that the Bankruptcy Judge's order expunging the lis pendens was clearly erroneous as a matter of law. See Bauman v. United States Dist. Ct., 557 F.2d 650, 654-55 (9th Cir. 1977). Appellant's Petition for Writ of Mandamus is denied. Leslie Gladstone's emergency motion to strike is granted to the extent it seeks expedited resolution of the Petition for Writ of Mandamus.

III. Conclusion

IT IS HEREBY ORDERED that the Petition for Writ of Mandamus (ECF No. 7 DENIED.

IT IS FURTHER ORDERED that the Chapter 7 Trustee's Emergency Motion for Order Striking Appellant's Petition for Writ of Mandamus (ECF No. 9) is GRANTED to the extent it seeks expedited resolution of the Petition for Writ of Mandamus.


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