NOT FOR PUBLICATION
FILED
FEB 1 2021
SUSAN M. SPRAUL, CLERK
U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT
In re: BAP No. CC-20-1132-LGF
CHARLES A. HAMM, II,
Debtor. Bk. No. 9:18-bk-10785-DS
CHARLES A. HAMM, II, Adv. No. 9:18-ap-01045-DS
Appellant,
v. MEMORANDUM
SHANNA BURCAR; JOHN C. BARLOW; DISMISSING APPEAL
NANCY BARLOW,
Appellees.
Before: LAFFERTY, GAN, and FARIS, Bankruptcy Judges.
This is an appeal from the bankruptcy court’s order entered May 19,
2020, awarding attorneys’ fees to appellees on their claims under
§ 727(a)(4) and § 523(a)(6) (“Fee Order”).
The Panel has reviewed the Fee Order, the parties’ briefs, and the
appellate record, as well as the bankruptcy court docket and relevant
imaged pages.
After this appeal was filed, this Panel vacated and remanded the
bankruptcy court’s grant of summary judgment on the § 523 claim. That
decision is currently on appeal at the Ninth Circuit Court of Appeals.
The order on appeal is interlocutory because there has not been a full
and final disposition of the adversary proceeding. Temkin v. Belli (In re
Belli),
268 B.R. 851, 855 (9th Cir. BAP 2001) (for purposes of jurisdiction
over bankruptcy appeals under
28 U.S.C. § 158(a)(1), finality in adversary
proceedings does not differ from finality in ordinary federal civil actions
under
28 U.S.C. § 1291). Appeal of an interlocutory order requires leave of
the Panel. See
28 U.S.C. § 158.
Leave to appeal is appropriate if the proposed appeal involves (1) a
controlling question of law, (2) as to which there is substantial ground for
difference of opinion, and (3) interests of judicial economy would be served
because an immediate appeal may materially advance ultimate termination
of the litigation or avoid wasted litigation. See, e.g., Lompa v. Price (In re
Price),
79 B.R. 888, 889 (9th Cir. BAP 1987), aff’d,
871 F.2d 97 (9th Cir. 1989).
Those criteria are not met here. Although appellees urge the Panel to
review the portion of the order that awarded fees under Civil Rule 37, that
fee award is not easily severable from the portion of the fee award that is
based on the California anti-SLAPP statute. An immediate review of that
portion of the order would not materially advance the ultimate termination
of the litigation because the § 523 claim has not been finally adjudicated.
2
Appellant will be able to challenge the Fee Order upon timely appeal
from a final judgment in the adversary proceeding. See Am. Ironworks &
Erectors, Inc. v. N. Am. Const. Corp.,
248 F.3d 892, 897-98 (9th Cir. 2001);
Baldwin v. Redwood City,
540 F.2d 1360, 1364 (9th Cir. 1976).
This appeal is hereby ORDERED DISMISSED as interlocutory. 1
A certified copy of this order sent to the bankruptcy court shall serve
as the Panel's mandate.
1 Appellant filed two motions in this appeal. The first is a Motion to Remand. The
dismissal of this appeal renders that motion moot. The second is a Motion to Dismiss
Plaintiff’s Second Cause of Action. The Panel has remanded that claim to the
bankruptcy court. Accordingly, we lack jurisdiction to grant either motion, and both are
DENIED.
3
