United States Bankruptcy Appellate Panel of the Ninth Circuit
In re: Kevan Harry Gilman, Debtor.
Kevan Harry Gilman, Appellees. Tammy R. Phillips; Tammy R. Phillips, A Professional Law Corporation, Appellants, Tammy R. Phillips; Tammy R. Phillips, A Professional Law Corporation, Appellants,
Kevan Harry Gilman, Appellee. Adv. No. 1:11-ap-01389-VK
and Submitted on November 29, 2018 at Pasadena, California
from the United States Bankruptcy Court for the Central
District of California Honorable Victoria S. Kaufman,
Bankruptcy Judge, Presiding
Charles Quentin Jakob argued for Appellants;
E. Ellis of Ellis Law Group, LLP, argued for Appellee
Before: TAYLOR, LAFFERTY, and SPRAKER, Bankruptcy Judges.
TAYLOR, BANKRUPTCY JUDGE
Tammy R. Phillips and Tammy R. Phillips, a Professional
Corporation (jointly, "Creditors"), obtained an $8,
250 judgment against debtor, Kevan Gilman. Under California
law, they were entitled to recover reasonable attorneys'
fees in obtaining and collecting this amount, and the state
court awarded them about $100, 000 in prepetition fees.
Apparently other state court fee requests were pending or are
anticipated as they asserted that total state court fees
approximate $1, 000, 000.
chapter 7 case, they obtained a determination that Debtor was
not entitled to a discharge. They also actively litigated
issues in the main case itself. The bankruptcy court
determined that they were entitled to an award of reasonable
fees in connection with this activity. Creditors requested
approximately $750, 000 in fees arising from main case
activity and $1, 400, 000 in fees in the adversary
proceeding. They also requested costs. The bankruptcy court
awarded $137, 907.66 and $166, 453.58, respectively, in fees
and costs. This appeal arises from the reduced awards.
that proportionality is not a hallmark of Creditors'
approach, the appeals before us raise a multitude of issues.
We address the appeals in three documents that we file
concurrently. In this opinion, we address an issue of first
impression that was a partial basis for fee reduction in both
the main case and the adversary proceeding: the applicability
of CCP § 685.080,  which creates a two-year deadline for
requesting fees incurred in collection activities, and §
108(c)(2), which tolls the time for certain actions during
the pendency of a bankruptcy case. We conclude the bankruptcy
court correctly found CCP § 685.080 applicable to these
requests for an award of postpetition fees and unaffected by
§ 108(c). Accordingly, we discern no error in the
reduction of the requested fees on this basis and AFFIRM the
bankruptcy court's orders in this regard. In separate,
unpublished decisions, we address the bankruptcy court's
further reduction of the requested fees.
2011, Debtor filed a chapter 7 petition and scheduled his
debt to Creditors. He also scheduled an ownership interest in
real property in Van Nuys, California and, in relation to
this real property, claimed an enhanced homestead exemption.
actively participated in the bankruptcy case. They filed an
adversary proceeding and obtained a judgment under § 727
that denied Debtor a discharge. During the course of this
litigation and four years after filing the adversary
proceeding, they filed a motion for partial judgment on the
pleadings as to an attorneys' fees claim for relief,
seeking a determination that they were entitled to recover
fees and costs incurred in the discharge litigation; but they
did not seek an immediate award of fees. The bankruptcy court
granted the motion and specified that the adversary
litigation was enforcement of a judgment for purposes of CCP
§ 685.040. As Creditors did not request it, the order
did not rule on the appropriateness of any specific fees and
litigation in the main case, Creditors also successfully
blocked Debtor's request for a homestead exemption
enhancement. Litigation continues on their attempt to block
the entirety of Debtor's asserted homestead exemption.
prevailed (in part) on their exemption objection, Creditors
filed a motion in the main case under CCP § 685.040 and
other theories to recover their attorneys' fees and
costs. They requested a lodestar award of $756, 425 plus
other costs. All of the requested fees and costs were
incurred postpetition and in the bankruptcy proceeding.
meantime and after denial of Debtor's discharge,
Creditors filed a motion in the adversary proceeding and
requested an award of $1, 400, 000 in attorneys' fees
plus other costs associated with the adversary proceeding
under CCP § 685.040.
hearing, the bankruptcy court entered memorandum decisions
and separate orders granting in part and denying in part the
two CCP § 685.040 motions. It awarded Creditors $134,
214.50 in fees and $3, 693.16 in costs in the main case and
$162, 613.60 in fees and $3, 839.98 in costs in the adversary
proceeding. In determining these reductions, it found that
$322, 000.05 of the fees in the main case and $942, 154 of
the fees in the adversary proceeding were time-barred and
subject to disallowance under CCP § 685.080.
bankruptcy court had jurisdiction under 28 U.S.C.
§§ 1334 and 157(b)(2)(B). We have jurisdiction
under 28 U.S.C. § 158.
§§ 685.040 and 685.080 apply to Creditors' fee
request? Does § 108(c) toll the time limits of CCP
§ 685.080 in this case?
review "de novo questions of law concerning entitlement
to attorney's fees." PSM Holding Corp. v.
Nat'l Farm Fin. Corp., 884 ...