In re: Christine M. Emmerson ( 2012 )

FILED
APR 03 2012
SUSAN M SPRAUL, CLERK
1 U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
2
3 UNITED STATES BANKRUPTCY APPELLATE PANEL
4 OF THE NINTH CIRCUIT
5 In re: ) BAP No. EC-11-1346-PaDMk
)
6 CHRISTINE M. EMMERSON, ) Bankr. No. 09-36284-C
)
7 Debtor. ) Adv. No. 09-02626-C
______________________________)
8 )
CHRISTINE M. EMMERSON, )
9 )
Appellant, )
10 )
v. ) M E M O R A N D U M1
11 )
TONY D. REGIS, )
12 )
Appellee, )
13 )
MICHAEL MCGRANAHAN, Chapter )
14 13 Trustee; UNITED STATES )
TRUSTEE, )
15 )
Interested Parties. )
16 ______________________________)
17 Argued and Submitted on March 22, 2012
at Sacramento, California
18
Filed - April 3, 2012
19
Appeal from the United States Bankruptcy Court
20 for the Eastern District of California
21 Honorable Christopher M. Klein, Chief Bankruptcy Judge, Presiding
22
Appearances: Mark J. Hannon, Esq. for Appellant Christine M.
23 Emmerson; Herman Franck, Esq. for Appellee Tony D.
Regis
24
25 Before: PAPPAS, DUNN and MARKELL, Bankruptcy Judges.
26
1
This disposition is not appropriate for publication.
27 Although it may be cited for whatever persuasive value it may have
(see Fed. R. App. P. 32.1), it has no precedential value. See 9th
28 Cir. BAP Rule 8013-1.
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1 Chapter 72 debtor Christine M. Emmerson (“Emmerson”) appeals
2 the bankruptcy court’s judgment entered June 28, 2011, declaring
3 that a state court judgment against her in favor of creditor Tony
4 D. Regis (“Regis”) was excepted from discharge under § 523(a)(6)
5 based on the application of issue preclusion. We AFFIRM.
6 FACTS
7 This is the second appeal to the Panel from the bankruptcy
8 court’s judgment in this adversary proceeding. Our Memorandum
9 deciding the previous appeal contained a detailed recitation of
10 the relevant facts. Emmerson v. Regis (In re Emmerson), BAP case
11 no. EC-10-1150-MoDH (9th Cir. BAP Mar. 25, 2010). Because the
12 parties are also familiar with the facts, we need only summarize
13 them here, and describe the events following our remand of the
14 judgment to the bankruptcy court in connection with the first
15 appeal.
16 Emmerson and Regis are the parents of a minor child (“the
17 Child”). Their relationship ended acrimoniously, prompting a
18 multi-year child custody battle in Sacramento Superior Court,
19 Family Court Department (the “Family Court Proceeding”). While
20 the Family Court Proceeding was pending, Emmerson commenced an
21 action against Regis seeking a partition of the parties’ jointly-
22 owned former residence in Sacramento Superior Court, Civil Court
23 Department (the “Partition Action”). Regis filed a cross-
24 complaint in the Partition Action, alleging claims against
25 Emmerson for child abduction and child enticement in which he
26
2
Unless otherwise indicated, all chapter, section and rule
27 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
the Federal Rules of Bankruptcy Procedure, Rules 1001-9037. The
28 Federal Rules of Civil Procedure are referred to as “Civil Rules.”
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1 sought, inter alia, an award of compensatory and punitive damages
2 pursuant to Cal. Civ. Code § 49.33 In August 2008, before the trial in the Partition Action, the
4 Family Court awarded full legal custody of the Child to Emmerson,
5 with no visitation rights to Regis unless initiated and sought by
6 the Child.
7 Trial was scheduled in the Partition Action for October 6,
8 2008. Emmerson failed to appear at trial, and the state court
9 conducted a nonjury trial. The evidence and testimony offered by
10 Regis were uncontroverted. On February 5, 2009, the state court
11 entered an Order Following Trial in the Partition Action (the
12 “Civil Court Order”) awarding Regis $473,500 in damages, including
13 $50,000 in punitive damages, and $400,000 in general damages as
14 compensation for the “loss of his relationship with [the Child]
15 for a period of eight years and extreme and severe emotional
16 distress suffered by that loss [at $50,000 per year].” The state
17 court also awarded Regis $23,500 in damages for breach of
18 contract.4 Emmerson did not appeal the Civil Court Order.
19
3
20 Cal. Civ. Code § 49. Protection from abduction,
seduction, and injury to servant.
21
The rights of personal relations forbid: (a) The abduction or
22 enticement of a child from a parent, or from a guardian entitled
to its custody; (b) The seduction of a person under the age of
23 legal consent; (c) Any injury to a servant which affects his
ability to serve his master, other than seduction, abduction or
24 criminal conversation.
4
25 Recall that the original complaint filed by Emmerson in
state court was for partition of a residence jointly owned by her
26 and Regis. As to that cause of action, the state court found her
in breach of contract by failing to pay her half of mortgage
27 payments on that residence for thirty-two months. The state court
awarded Regis $23,500 in damages for her breach. The bankruptcy
28 (continued...)
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1 When Emmerson thereafter filed a petition under chapter 7,
2 Regis commenced this adversary proceeding seeking to except the
3 entire amount awarded to him by the state court, $473,500, from
4 discharge by Emmerson under § 523(a)(6). After Emmerson filed an
5 answer, Regis filed a motion for summary judgment relying on the
6 issue preclusive effects of the Civil Court Order. Emmerson
7 opposed the motion.
8 The bankruptcy court conducted a hearing on Regis’s motion
9 for summary judgment on April 27, 2010. After hearing from
10 counsel for both Regis and Emmerson, the court held that the Civil
11 Court Order’s award of damages under Cal. Civ. Code § 49 met the
12 requirements for an exception to discharge under § 523(a)(6), and
13 thus, issue preclusion applied. The bankruptcy court granted the
14 summary judgment motion and entered a judgment on April 29, 2010,
15 declaring that $450,000 of the award in the Civil Court Order to
16 Regis was nondischargeable under § 523(a)(6). Emmerson appealed
17 the bankruptcy court’s judgment to the Panel.
18 On appeal, the Panel agreed with the bankruptcy court that,
19 under the facts of the case and applicable state law, the award of
20 damages to Regis made by the state court under Cal. Civ. Code § 4921 met the five threshold requirements for issue preclusion. In re
22 Emmerson, Mem. Dec. at 17 (“[W]e conclude that all five threshold
23 elements have been satisfied.”). However, the Panel noted that,
24 under California law, a bankruptcy court’s decision to apply issue
25
26 4
(...continued)
court would later determine that only the $450,000 damage award,
27 based on Cal. Civ. Code § 49, was nondischargeable under
§ 523(a)(6). Tr. Hr’g 13:14—14:6, April 27, 2010. The amount of
28 the nondischargeable award is not at issue in this appeal.
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1 preclusion does not end with analysis of the five threshold
2 elements. Instead, in California, a trial court is required to
3 conduct a “mandatory ‘additional’ inquiry into whether imposition
4 of issue preclusion would be fair and consistent with sound public
5 policy.” Mem. Dec. at 15, citing Khaligh v. Hadegh (In re
6 Khaligh), 338 B.R. 817, 824-25 (9th Cir. BAP 2006). The Panel
7 determined that “the record [in this appeal] is devoid of any
8 indication that the bankruptcy court conducted the mandatory
9 fairness/public policy inquiry.” In re Emmerson, Mem. Dec. at 17.
10 Therefore, although affirming that the bankruptcy court had
11 properly determined that issue preclusion was available in this
12 case, the Panel remanded the action to the bankruptcy court with
13 instructions that it make an inquiry whether application of issue
14 preclusion in this case would be fair and consistent with
15 California public policy. Id. at 18.
16 On remand, Emmerson filed a motion for summary judgment,
17 arguing that the state court did not have subject matter
18 jurisdiction to enter its order, and that principles of fairness
19 and public policy warranted against the application of issue
20 preclusion. Emerson asserted that the Civil Court Department
21 lacked subject matte jurisdiction of the child abduction and child
22 endangerment claims which should instead have been raised in the
23 Family Court Proceeding pending before the Family Court
24 Department. Emmerson argued that because the Civil Court
25 Department lacked subject matter jurisdiction, it would be unfair
26 to apply issue preclusion to the Civil Court Order. Regis opposed
27 Emmerson’s motion and filed yet another motion for summary
28 judgment.
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1 The bankruptcy court held another hearing on June 21, 2011.
2 After taking the issues under submission, the bankruptcy court
3 entered a memorandum of decision on June 28, 2011 (“Memorandum”).
4 In it, the court first noted that, as a result of the BAP’s
5 decision, the Memorandum was the law of the case that the five
6 threshold requirements for issue preclusion had been satisfied.
7 Consequently, the court reasoned, the only question for decision
8 was whether the application of issue preclusion in this case would
9 be fair and consistent with sound public policy and would not
10 result in injustice.
11 In addressing the parties’ arguments, the bankruptcy court
12 observed that there was no statutory restriction on the power of a
13 California civil court to enter orders in family law-related
14 matters. The court reviewed the case law and noted that, at most,
15 the cases cited by Emmerson “articulate prudential considerations
16 to be taken into account in management of conflicting and
17 multiplicitous litigation.” The court observed that, at the time
18 it made its prior decision, it had been “mindful” of the seemingly
19 inconsistent positions taken by the family and civil court in
20 their orders. Nevertheless, the bankruptcy court considered that
21 it would be “unseemly” for it to interfere with the “harmonization
22 of inconsistent decisions rendered by the same state court.” In
23 this respect, it was significant to the bankruptcy court that
24 Emmerson could still request review of the Civil Court Order
25 either by the civil court or, failing relief there, in the state
26 appellate courts.
27 The bankruptcy court concluded that application of issue
28 preclusion in this case was indeed consistent with notions of
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1 fairness and public policy considerations, and concluded it should
2 reaffirm its judgment declaring Regis’s claim against Emmerson
3 nondischargeable based on the Civil Court Order. Since the
4 parties’ latest summary judgment motions were not necessary to
5 trigger the bankruptcy court’s analysis on remand, both motions
6 were denied. The bankruptcy court entered another judgment on
7 June 28, 2011, determining that the Civil Court Order awarding
8 Regis $450,000 was excepted from Emmerson’s discharge pursuant to
9 § 523(a)(6).
10 Emmerson filed a timely notice of appeal on July 1, 2011.
11 JURISDICTION
12 The bankruptcy court had jurisdiction under 28 U.S.C. §§ 133413 and 157(b)(2)(I). The Panel has jurisdiction under 28 U.S.C.
14 § 158.
15 ISSUE
16 Whether the bankruptcy court abused its discretion in
17 applying issue preclusion.
18 STANDARD OF REVIEW
19 If issue preclusion is available, the decision to apply it is
20 reviewed for abuse of discretion. Dias v. Elique, 436 F.3d 1125,
21 1128 (9th Cir. 2006); Lopez v. Emergency Serv. Restoration, Inc.
22 (In re Lopez), 367 B.R. 99, 108 (9th Cir. BAP 2007).
23 In applying an abuse of discretion test, we first "determine
24 de novo whether the [bankruptcy] court identified the correct
25 legal rule to apply to the relief requested." United States v.
26 Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009)(en banc). If the
27 bankruptcy court identified the correct legal rule, we then
28 determine whether its "application of the correct legal standard
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1 [to the facts] was (1) illogical, (2)implausible, or (3) without
2 support in inferences that may be drawn from the facts in the
3 record." Id. (internal quotation marks omitted). If the
4 bankruptcy court did not identify the correct legal rule, or its
5 application of the correct legal standard to the facts was
6 illogical, implausible, or without support in inferences that may
7 be drawn from the facts in the record, then the bankruptcy court
8 has abused its discretion. Id.9 DISCUSSION
10 I.
11 It is helpful to note first what the issues are, and are not,
12 in this appeal.
13 The bankruptcy court determined that, through the application
14 of preclusion in this action, Regis has shown that, under
15 § 523(a)(6), the $450,000 debt from the Civil Court Order was
16 excepted from discharge in Emmerson’s bankruptcy case. The
17 bankruptcy court’s decision was appealed to this Panel. The Panel
18 remanded the action to the bankruptcy court with the single
19 instruction that it should review the application of issue
20 preclusion solely to determine if it was consistent with fairness
21 and public policy. On remand, the bankruptcy court concluded that
22 its decision, as affirmed on appeal by the Panel, that the five
23 threshold elements of issue preclusion were satisfied constituted
24 the law of the case, something Emmerson has not challenged in
25 this appeal. Consequently, the only issue presented to the Panel
26 here is whether, on remand, the bankruptcy court abused its
27 discretion in deciding that fairness and public policy were not
28 offended in applying issue preclusion to the Civil Court Order.
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1 II.
2 The bankruptcy court addressed both public policy and
3 fairness in its decision. We discern no abuse of discretion in
4 its decision.
5 Under California case law, the public policies underlying the
6 doctrine of issue preclusion must be examined before concluding
7 that it should be applied in a particular setting. Lucido v.
8 Super. Ct., 795 P.2d 1223, 1226 (Cal. 1990). Those policies
9 include:
10 conserving judicial resources and promoting judicial
economy by minimizing repetitive litigation, preventing
11 inconsistent judgments which undermine the integrity of
the judicial system, and avoiding the harassment of
12 parties through repeated litigation. (Allen v. McCurry
(1980) 449 U.S. 90, 94 [66 L. Ed. 2d 308, 101 S. Ct.
13 411]; Montana v. United States (1979) 440 U.S. 147,
153–154 [59 L. Ed. 2d 210, 99 S. Ct. 970]; [People v.]
14 Sims, [651 P.2d 333 (Cal. 1982)]; Syufy Enterprises v.
City of Oakland (2002) 104 Cal. App.4th 869, 878 [128
15 Cal. Rptr. 2d 808].)
16 Murray v. Alaska Airlines, 237 P.3d 565, 577 (Cal. 2010);
17 Vandenburg v. Super. Ct., 21 Cal. 4th 815, 829 (1999) (policies
18 include “to preserve the integrity of the judicial system, promote
19 judicial economy, and protect litigants from harassment by
20 vexatious litigation.”). The bankruptcy court examined several
21 different policy considerations before it reached its decision.
22 First, the bankruptcy court observed that policies of
23 judicial economy and preserving the integrity of the judicial
24 system are promoted by allowing the state courts to resolve
25 alleged inconsistencies in their judgments. As the court noted,
26 in this case, the superior court that entered the two judgments in
27 question is presumably in a better position to address any
28 inconsistencies in the orders. Moreover, if after Emmerson asks
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1 the state court for relief she remains dissatisfied with its
2 decision, she may resort to the district court of appeal. The
3 bankruptcy court reasoned that, under the principle of comity,
4 this review function should be performed at the state court level.
5 We agree with the bankruptcy court. The comity doctrine
6 counsels lower federal courts to resist engagement in certain
7 areas otherwise falling within their jurisdiction. The doctrine
8 reflects “a proper respect for state functions, a recognition of
9 the fact that the entire country is made up of a Union of separate
10 state governments, and a continuance of the belief that the
11 National Government will fare best if the States and their
12 institutions are left free to perform their separate functions in
13 separate ways.” Levin v. Commerce Energy, Inc., 130 S. Ct. 2323,
14 2330 (2010). Comity between state and federal law may be
15 considered in examining the public policy implications of issue
16 preclusion. Murray, 237 P.3d at 577.
17 The importance of comity with state law is heightened under
18 the facts of this case because Emmerson has asked the bankruptcy
19 court to rule in a dispute implicating the state law of domestic
20 relations. The Supreme Court has historically cautioned against
21 involvement of the federal courts in the relations of parent and
22 child:
23 One of the principal areas in which this Court has
customarily declined to intervene is the realm of
24 domestic relations. Long ago we observed that "[t]he
whole subject of the domestic relations of husband and
25 wife, parent and child, belongs to the laws of the
States and not to the laws of the United States." In re
26 Burrus, 136 U.S. 586, 593, 34 L. Ed. 500, 10 S. Ct. 850(1890). See also Mansell v. Mansell, 490 U.S. 581, 587,
27 104 L. Ed. 2d 675, 109 S. Ct. 2023 (1989) ("[D]omestic
relations are preeminently matters of state law"); Moore
28 v. Sims, 442 U.S. 415, 435, 60 L. Ed. 2d 994, 99 S. Ct.
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1 2371 (1979) ("Family relations are a traditional area of
state concern").
2
3 Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12-13 (2004).
4 The damages awarded in the Civil Court Order were based on
5 “loss of [Regis’s] relationship with [the Child] for a period of
6 eight years and extreme and severe emotional distress caused by
7 that loss.” Civil Court Order at 7. Although the domestic
8 relations exception is not directly applicable here because the
9 Civil Court Order does not affect a divorce, alimony, or child
10 support, Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992), the
11 longstanding policy of the federal courts to avoid entanglement in
12 disputes related to the parent-child relationship is clearly
13 implicated, something that reinforces the bankruptcy court’s
14 decision to apply the doctrine of comity.
15 The second area of public policy addressed by the bankruptcy
16 court relates to Emmerson’s argument that the Superior Court Civil
17 Court Department lacked subject matter jurisdiction to enter the
18 Civil Court Order because “family law issues can not be addressed
19 or adjudicated in civil courts and that when a family law case is
20 pending, the civil court lacks subject matter jurisdiction because
21 the family court already has subject matter jurisdiction.”
22 Emmerson Op. Br. at 5. The bankruptcy court considered this
23 argument but rejected it for three reasons: (1) there is no
24 statutory grounds for restricting the subject matter jurisdiction
25 of the civil court; (2) Emmerson’s argument is based solely on
26 case law which does not establish that the civil court lacked
27 jurisdiction and, at most, suggests that prudential considerations
28 be taken into account in managing conflicting litigation; and
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1 (3) sound public policy and fairness counsel in favor of letting
2 California courts resolve questions of their own jurisdiction over
3 questions of California law.
4 The bankruptcy court’s third reason for its decision warrants
5 our first comment, because it is supported by a published,
6 precedential opinion of the Panel. Emmerson commenced the Civil
7 Court Proceeding for partition of a house jointly owned by her and
8 Regis. Regis asserted a cross-claim seeking, among other relief,
9 damages for violation of Cal. Civ. Code § 49. Emmerson answered
10 the cross-claim, but did not raise the affirmative defense of lack
11 of subject matter jurisdiction. Emmerson then failed to appear at
12 trial, and the state court ultimately entered a judgment in favor
13 of Regis and against her. Emmerson did not appeal. In other
14 words, Emmerson never raised the jurisdiction issue in the state
15 court, either in the superior court or in an appeal.
16 In Audre, Inc. v. Casey (In re Audre, Inc.), 216 B.R. 19, 28
17 (9th Cir. BAP 1997), the Panel examined the claim of a creditor
18 that asked the bankruptcy court to consider the subject matter
19 jurisdiction of a California state court judgment. Another
20 creditor challenged the claim on the grounds that it was based on
21 a judgment by the family court that did not have jurisdiction over
22 tort claims. The Panel ruled, “neither [plaintiff] raised lack of
23 jurisdiction issues at the Family Court trial or in their trial
24 and post-trial briefs. They should not be allowed to do so for the
25 first time in the bankruptcy court. The appropriate place for
26 such argument is the California Court of Appeals.” Id. In short,
27 not only does Audre stand for the proposition that the California
28 Court of Appeals is the appropriate place for determining the
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1 subject matter jurisdiction of a judgment that is based on state
2 law, but failure to raise the jurisdictional argument in the state
3 proceeding, as in this case, prevents the jurisdiction argument
4 from being considered by the bankruptcy court. See generally
5 Greener v. Workers’ Comp. Appeals Bd., 6 Cal. 4th 1028, 1036
6 (1993) (challenge to subject matter jurisdiction “is properly
7 brought by demurrer to the complaint.”).
8 The bankruptcy court was correct in its conclusion that
9 Emmerson had access to the civil court and state appellate courts
10 to seek relief from the Civil Court Order. If Emmerson is correct
11 that the civil court lacked subject matter jurisdiction, Cal. Code
12 Civ. Proc. 473(d)(2011) provides that the state court may, at any
13 time,5 set aside that order if it is void on its face. Talley v.
14 Valuation Counselors Grp., Inc., 191 Cal. App. 4th 132, 146 (Cal.
15 Ct. App. 2010). An order is void on its face if the court
16 entering the order did not have subject matter jurisdiction.
17 Sindler v. Brennan, 105 Cal. App. 4th 1350, 1353 (Cal. Ct. App.
18 2003).
19 Further, as the bankruptcy court correctly observed, if she
20 does not get the relief from judgment she seeks in the superior
21 court, Emmerson still has access to the state appellate courts
22 under Cal. Code Civ. Proc. §§ 100 (“Any party shall have the right
23 to appeal any judgment or final order consistent with the law
24 governing appeals.”); 904.1 (appeal from an order or judgment of
25
5
Cal. Code Civ. Proc. § 473(b) provides that a party seeking
26 relief from judgment on the grounds of mistake, inadvertence,
surprise, or excusable neglect must bring a motion within six
27 months of entry of the order. However, a party seeking to set
aside a void order or judgment under Cal. Code Civ. Proc. § 473(b)
28 has no time limitation.
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1 the superior court is to the district court of appeals). Emmerson
2 is free at either the superior court or court of appeals to pursue
3 her argument that the civil court division did not have subject
4 matter jurisdiction: “Lack of subject matter jurisdiction is not
5 waived by failure to demur, but can be attacked by motion or
6 suggestion at any time during trial or on appeal, or by
7 application for an extraordinary writ, and even by collateral
8 attack in most cases[.]" Great W. Casinos v. Morongo Band of
9 Mission Indians, 74 Cal. App.4th 1407, 1418-19 (Cal. Ct. App.
10 1999).
11 In short, the bankruptcy court did not err in its legal
12 conclusion that Emmerson had access to the state superior and
13 appellate courts to seek redress from inconsistencies in the two
14 orders.
15 The bankruptcy court was also correct in its conclusion that
16 there were no statutory grounds for denying the jurisdiction of
17 the civil court to enter the Civil Court Order. A California
18 superior court has subject matter jurisdiction over most original
19 "causes." CAL. CONST. ART VI § 10.6 The statutory grant of
20 jurisdiction to the superior court is in Cal. Code Civ. Proc.
21
6
CAL. CONST. ART. VI § 10. Original jurisdiction
22
The Supreme Court, courts of appeal, superior courts,
23 and their judges have original jurisdiction in habeas
corpus proceedings. Those courts also have original
24 jurisdiction in proceedings for extraordinary relief in
the nature of mandamus, certiorari, and prohibition. The
25 appellate division of the superior court has original
jurisdiction in proceedings for extraordinary relief in
26 the nature of mandamus, certiorari, and prohibition
directed to the superior court in causes subject to its
27 appellate jurisdiction.
Superior courts have original jurisdiction in all
28 other causes.
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1 § 410.10: “A court of this state [defined in the Constitution as
2 the Supreme Court, the courts of appeals, and the superior court]
3 may exercise jurisdiction on any basis not inconsistent with the
4 Constitution of this state or of the United States.” It is
5 important to recognize that this grant of jurisdiction is to the
6 superior court as a whole:
7 In a multi-department superior court . . . Jurisdiction
is vested by the constitution in the court, not a
8 particular judge or department . . . Whether sitting
separately or together, the judges hold but one and the
9 same court. The division into departments is for the
convenient dispatch of business.
10
11 People v. Stuyvesant Ins. Co., 261 Cal. App. 2d 773, 785 (Cal. Ct.
12 App. 1968).
13 Two of the cases relied on by Emmerson acknowledge that the
14 civil court has jurisdiction. Burkle v. Burkle, 144 Cal. App. 4th
15 387, 395 (Cal. Ct. App. 2007); Askew v. Askew, 22 Cal. App. 4th
16 942, 956 (Cal. Ct. App. 1994). However, Emmerson alleges those
17 cases go on to say that, where there is an open family law case,
18 only the family court has subject matter jurisdiction over all
19 domestic matters, and the court lacks jurisdiction over a
20 subsequent civil action in a family law matter.
21 As noted in Stuyvesant Ins. Co., the jurisdictional grant
22 remains in the court as a whole, and only divests other
23 departments of jurisdiction to prevent interference with the
24 exercise of power by the assigned department:
25 [W]here a proceeding has been duly assigned for hearing
and determination to one department of the superior
26 court by the presiding judge of said court in conformity
with the rules thereof, and the proceeding so assigned
27 has not been finally disposed of therein or legally
removed therefrom, it is beyond the jurisdictional
28 authority of another department of the same court to
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1 interfere with the exercise of the power of the
department to which the proceeding is so assigned.
2
3 261 Cal. App.2d at 786. We conclude that the cases cited by
4 Emmerson are consistent with this restricted jurisdiction
5 principle. Each of the cases holds that a family court has
6 jurisdiction over the matters before it, and would oust the
7 jurisdiction of any subsequently filed civil suit over those
8 specific matters. However, pendency of the family court action
9 does not oust jurisdiction over matters that were not presented in
10 the family court or necessary to carry out its work.
11 In Askew v. Askew, the Superior Court Family Court Department
12 characterized five properties as community property. One spouse
13 then commenced an action in the Superior Court Civil Court
14 Department challenging that characterization. The appellate court
15 ruled that “the civil trial court in effect usurped the power and
16 obligation of the family law court to determine the character of
17 the five properties.” Askew, 22 Cal. App. 4th at 956.
18 In Burkle v. Burkle, the family court entered an interim
19 support order. One spouse then pursued a civil proceeding to
20 enforce that support order. The appellate court ruled that “when
21 a dissolution proceeding is pending, neither party to that
22 proceeding has the right to file a separate civil action to
23 enforce an interim support order issued in the dissolution
24 proceeding.” Burkle, 144 Cal. App. 4th at 395. The other cases
25 cited by Emmerson either represent that the jurisdiction of the
26 family court restricts the jurisdiction of subsequent civil
27 proceedings on a narrow range of matters, or that the civil court
28 should not consider certain types of family law related cases.
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1 In short, as shown by the very cases cited by Emmerson, a
2 family court’s exercise of the jurisdiction of the superior court
3 does not divest other departments, such as the civil court, of
4 subject matter jurisdiction except to the extent it is necessary
5 to carry out the family court’s work. Emmerson’s argument that
6 the exercise of jurisdiction by the family court completely
7 divests the other departments of jurisdiction over family law
8 matters in general lacks merit. The cited cases are also
9 consistent with the bankruptcy court’s determination that “at
10 most, the cases articulate prudential considerations to be taken
11 into account in management of conflicting and multiplicitous
12 litigation.” Memorandum at 5.
13 As to the “fairness” prong of public policy, the bankruptcy
14 court acknowledged that the two rulings of the superior court were
15 arguably inconsistent, of which the bankruptcy court was aware at
16 the time of its original ruling. Nevertheless, it held that “upon
17 mature reflection on remand, this court remains persuaded that the
18 interests of fairness, sound public policy, and avoiding injustice
19 are best served by imposing issue preclusion in this situation.”
20 Memorandum at 3. Again, that Emmerson still has access to the
21 state superior and appellate courts to seek redress from any
22 alleged inconsistencies in the two orders weighs heavily in favor
23 of the fairness of application of issue preclusion in this case.
24 All things considered, we conclude that the bankruptcy court
25 fulfilled the instructions of the Panel on remand, giving full
26 consideration to whether applying issue preclusion would be fair
27 to Emmerson under these facts, whether it would be consistent with
28 sound public policy, and whether injustice would result if the
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1 Civil Court Order were given preclusive effect. The bankruptcy
2 court applied the correct law to the facts of this case, and its
3 conclusions were not illogical, implausible, or without support in
4 inferences that may be drawn from the facts in the record. The
5 bankruptcy court did not abuse its discretion.
6 CONCLUSION
7 We AFFIRM the judgment of the bankruptcy court.
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