Eden Place v. Sholem Perl , 811 F.3d 1120 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE SHOLEM PERL, No. 14-60039
Debtor.
BAP No.
13-1328
EDEN PLACE, LLC,
Appellant,
OPINION
v.
SHOLEM PERL,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Kirscher, Taylor, and Dunn, Bankruptcy Judges, Presiding
Argued and Submitted
August 31, 2015—Pasadena, California
Filed January 8, 2016
Before: Susan P. Graber, Johnnie B. Rawlinson,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Rawlinson;
Dissent by Judge Watford
2 IN RE PERL
SUMMARY*
Bankruptcy
On appeal from the Bankruptcy Appellate Panel, the
panel reversed the bankruptcy court’s determination that
Eden Place, LLC, violated the automatic stay by evicting a
chapter 13 debtor from a residential property.
The panel held that it had jurisdiction over the appeal.
Because the case did not involve a remand, the panel applied
the two-part finality test articulated in SS Farms, LLC v.
Sharp (In re SK Foods, L.P.), 676 F.3d 798 (9th Cir. 2012).
The panel concluded that the bankruptcy court’s decision (1)
resolved and seriously affected substantive rights and (2)
finally determined the discrete issue to which it was
addressed.
On the merits, the panel concluded that the debtor had no
legal or equitable interest remaining in the property at the
time of his eviction. An unlawful detainer judgment and writ
of possession entered pursuant to California Code of Civil
Procedure § 415.46 bestowed legal title and all rights of
possession upon Eden Place. Accordingly, Eden Place did
not violate the automatic stay provisions of 11 U.S.C.
§ 362(a).
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
IN RE PERL 3
Dissenting, Judge Watford wrote that he would dismiss
the appeal for lack of jurisdiction because the bankruptcy
court’s order, finding a stay violation but postponing until
later a ruling on damages, could not be deemed final.
COUNSEL
Ronald N. Richards (argued), Law Offices of Ronald
Richards & Associates, APC, Beverly Hills, California;
Howard N. Madris, Law Office of Howard N. Madris, APC,
Beverly Hills, California, for Appellant.
No appearance for Appellee.
OPINION
RAWLINSON, Circuit Judge:
Appellant Eden Place, LLC (Eden Place), appeals the
decision of the Bankruptcy Appellate Panel (BAP) affirming
the bankruptcy court’s determination that Eden Place violated
the automatic stay provisions of the Bankruptcy Code by
evicting Debtor Sholem Perl (Perl) from a residential
property. Because we conclude that Perl had no legal or
equitable interest remaining in the property at the time of his
eviction, we reverse the bankruptcy court’s ruling that Eden
Place violated the automatic stay.
4 IN RE PERL
I. BACKGROUND1
A. State Court Proceedings
Perl and a joint tenant owned a single-family duplex in
Los Angeles, California. After refinancing, Perl defaulted on
his mortgage payments, and Bank of America instituted
foreclosure proceedings. The property was sold to Eden
Place through a non-judicial foreclosure sale on March 20,
2013. Eden Place timely recorded the trustee’s deed nine
days later.
Despite the legal transfer of title, Perl refused to vacate
the premises. Eden Place served Perl with a three-day notice
to quit, and later served Perl with two unlawful detainer
complaints, one for each side of the duplex. In response, Perl
filed a complaint against Eden Place to set aside the trustee’s
sale (Complaint to Set Aside Sale), and Eden Place filed a
cross-complaint for damages, trespass, and interference with
prospective economic advantage (Cross-Complaint), and a
motion to expunge Perl’s lis pendens.
On June 11, 2013, the state court entered judgment in
favor of Eden Place on the unlawful detainer actions,
resulting in a judgment for possession and restitution. Three
days later, the state court entered a Writ of Possession in
favor of Eden Place. Sometime between June 14 and June
24, the Los Angeles County Sheriff posted the lockout notice.
On June 19, the state court heard Perl’s motion to stay the
unlawful detainer proceedings and set various conditions for
a stay. Once Perl failed to meet the conditions, the unlawful
1
The background facts are taken from the BAP’s opinion. See Eden
Place, LLC v. Perl (In re Perl), 513 B.R. 566, 568 (B.A.P. 9th Cir. 2014).
IN RE PERL 5
detainer judgment for possession remained in effect,
culminating in eviction by the Sheriff.
B. Bankruptcy Court Proceedings
Rather than complying with the state court requirements
to stay the unlawful detainer proceedings, Perl filed a
“skeletal” chapter 13 bankruptcy petition pro se. He failed to
file any schedules, financial affairs statement, or proposed
plan of reorganization. Although not listed as a creditor,
Eden Place learned of the bankruptcy filing from Perl’s
counsel, who informed Eden Place that no exceptions to the
automatic stay applied and that any eviction would violate the
automatic stay.
Perl also filed a notice of removal in the three state court
actions (Complaint to Set Aside Sale, Cross-Complaint, and
Unlawful Detainer Actions). Because there was a previously
scheduled state court hearing to expunge the lis pendens on
the property, Eden Place sought to remand the three state
court actions and also sought relief from the automatic stay
(Stay Relief Motion). Eden Place argued, in the alternative,
that the automatic stay did not apply because the property was
not property of the estate. Specifically, Eden Place argued
that, prior to the filing of the bankruptcy petition by Perl,
Eden Place purchased the property at a trustee’s sale,
recorded the trustee’s deed, and obtained a judgment and writ
of possession.
Before the bankruptcy court held a hearing on the Stay
Relief Motion, the Sheriff proceeded with the lockout and
evicted Perl. As a result, Perl was unable to remove some of
his personal belongings. Perl then filed an emergency motion
to enforce the automatic stay, arguing that the eviction
6 IN RE PERL
interfered with protectable equitable interests based on his
continued possessory interest in the premises.
Over Eden Place’s objection, the bankruptcy judge
determined that Perl’s “bare possessory interest, coupled with
the possibility of some sort of relief [from the pending
litigation]” gave “the bankruptcy estate a protected interest
that is subject to the automatic stay.” Accordingly, the
bankruptcy court determined that Eden Place had violated the
automatic stay when it evicted Perl, and that the eviction was
void. The bankruptcy court stayed its determination
regarding contempt sanctions because Perl had not yet offered
evidence of damages. Although Eden Place later filed a
status report pursuant to the bankruptcy court’s order, Perl
never filed anything further in his bankruptcy case.
Eventually, the bankruptcy case was dismissed for Perl’s
failure to appear at the creditor’s meeting. Eden Place timely
appealed the bankruptcy court’s order to the BAP.
C. BAP Proceedings
The BAP determined that it had jurisdiction over the
appeal because Eden Place remained subject to a claim for
damages based on the bankruptcy court’s finding that Eden
Place violated the automatic stay.
After examining its jurisdiction, the BAP turned to the
“sole issue” before it: whether “at the time Perl filed his
bankruptcy petition, he had any remaining interest in the
Residence protected by the automatic stay.” Applying
California law, the BAP held that Perl’s ownership interest
was terminated prepetition when Eden Place purchased the
property at the trustee’s sale. Nevertheless, the BAP held that
Perl had a recognizable equitable interest in the property by
IN RE PERL 7
virtue of his physical occupancy, notwithstanding the
illegality of his continued occupancy.
The BAP noted that “changing the locks on the
Residence, locking inside Perl’s personal property, which was
also property of the estate, was an act to exercise control over
property of the estate in violation of” the automatic stay.
Thus, the BAP affirmed the bankruptcy court’s ruling, and
Eden Place filed a timely appeal to this court.
II. STANDARD OF REVIEW
“Whether the automatic stay provisions of 11 U.S.C.
§ 362(a) have been violated is a question of law reviewed de
novo.” Mwangi v. Wells Fargo Bank, N.A. (In re Mwangi),
764 F.3d 1168, 1173 (9th Cir. 2014) (citation omitted). “We
review a bankruptcy court decision independently and
without deference to the [BAP]’s decision. . . .” Decker v.
Tramiel (In re JTS Corp.), 617 F.3d 1102, 1109 (9th Cir.
2010) (citation omitted).
III. DISCUSSION
A. Jurisdiction - Finality
Before considering the merits of Eden Place’s appeal, we
first consider whether we have jurisdiction over the appeal.
See Sahagun v. Landmark Fence Co. (In re Landmark Fence
Co.), 801 F.3d 1099, 1102 (9th Cir. 2015); see also Stanley v.
Crossland, Crossland, Chambers, MacArthur & Lastreto (In
re Lakeshore Vill. Resort, Ltd.), 81 F.3d 103, 105 (9th Cir.
1996). The bankruptcy court determined as a matter of law
that Eden Place violated the automatic stay when it evicted
Perl, but deferred its ruling on the contempt sanctions.
8 IN RE PERL
Subsequently, the bankruptcy case was dismissed because
Perl failed to appear at the creditor’s meeting. However, the
bankruptcy court retained jurisdiction over “all issues arising
under Bankruptcy Code” §§ 110 (penalties), 329 (attorney’s
fees), and 362 (automatic stay).
The BAP determined that it had jurisdiction because there
was a final order from the bankruptcy court, and Eden Place
remained subject to a claim for damages based on the
bankruptcy court’s determination that Eden Place violated the
automatic stay. See Eden Place, LLC v. Perl (In re Perl), 513
B.R. 566, 571 n.5 (B.A.P. 9th Cir. 2014). We agree.
We also have jurisdiction over appeals from final
judgments and orders of the bankruptcy court. See 28 U.S.C.
§ 158(d). In determining what constitutes an appealable order
in bankruptcy proceedings, we have adopted a “pragmatic
approach.” Rosson v. Fitzgerald (In re Rosson), 545 F.3d
764, 769 (9th Cir. 2008) (citation omitted).
In Bullard v. Blue Hills Bank, 135 S. Ct. 1686, 1692
(2015), the Supreme Court reaffirmed the principle that, for
jurisdictional purposes, “[t]he rules are different in
bankruptcy. . . .” In an ordinary civil case, a party may
appeal the district court’s judgment only under 28 U.S.C.
§ 1291 and only if the decision “ends the litigation on the
merits and leaves nothing for the court to do but execute the
judgment.” Firestone Tire & Rubber Co. v. Risjord, 449 U.S.
368, 373–74 (1981) (citation and internal quotation marks
omitted). In bankruptcy cases, though, which typically are
IN RE PERL 9
appealed (as this one is) under 28 U.S.C. § 158(d),2 a
pragmatic approach is warranted; the court uses a more
flexible standard. Orders in bankruptcy cases may be
appealed immediately “if they finally dispose of discrete
disputes within the larger case. . . .” Bullard, 135 S. Ct. at
1692 (citation omitted).3 The Court went on to hold that an
order declining to confirm a proposed repayment plan was
not “final” because the debtor remained free to propose an
alternative plan; the process of attempting to arrive at an
approved plan that would allow the bankruptcy to move
forward was fluid. Id. at 1690, 1693.
Our precedent has not been entirely pellucid regarding the
flexible concept of finality in the bankruptcy context. In
some instances, we have applied the following four-part test:
2
An appellate court hearing an interlocutory appeal from a district court
that is sitting in bankruptcy can apply 28 U.S.C. § 1292, Connecticut Nat’l
Bank v. Germain, 503 U.S. 249, 254 (1992), but that exception does not
apply here. This appeal comes from the BAP, not the district court.
3
Before Bullard, we had made the same point.
We have adopted a pragmatic approach to finality
in bankruptcy because certain proceedings in a
bankruptcy case are so distinctive and conclusive either
to the rights of individual parties or the ultimate
outcome of the case that final decisions as to them
should be appealable as of right. Our approach
emphasizes the need for immediate review, rather than
whether the order is technically interlocutory.
Alexander v. Compton (In re Bonham), 229 F.3d 750, 761 (9th Cir. 2000)
(citation, alteration, and internal quotation marks omitted).
10 IN RE PERL
(1) the need to avoid piecemeal litigation;
(2) judicial efficiency; (3) the systemic
interest in preserving the bankruptcy court’s
role as the finder of fact; and (4) whether
delaying review would cause either party
irreparable harm.
In re Landmark Fence, 801 F.3d at 1102 (citation and internal
quotation marks omitted); see also Meyer v. U.S. Trustee (In
re Scholz), 699 F.3d 1167, 1170 (9th Cir. 2012).
In other instances, we look to whether the bankruptcy
court’s decision: “1) resolves and seriously affects
substantive rights and 2) finally determines the discrete issue
to which it is addressed.” SS Farms, LLC v. Sharp (In re SK
Foods, L.P.), 676 F.3d 798, 802 (9th Cir. 2012) (citation
omitted); see also Law Offices of Nicholas A. Franke v.
Tiffany (In re Lewis), 113 F.3d 1040, 1043 (9th Cir. 1997).
A survey of our precedent reveals that the four-part
finality test articulated in In re Landmark Fence is utilized
almost exclusively when determining the finality of a case
involving a remand to the bankruptcy court. See In re
Landmark Fence, 801 F.3d at 1101–02; see also In re Scholz,
699 F.3d at 1170; In re Lakeshore Vill., 81 F.3d at 104, 106;
Congrejo Invs., LLC v. Mann (In re Bender), 586 F.3d 1159,
1161, 1164 (9th Cir. 2009); Saxman v. Educ. Credit Mgmt.
Corp. (In re Saxman), 325 F.3d 1168, 1171 (9th Cir. 2003);
Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 1182, 1187
(9th Cir. 2003); Scovis v. Henrichsen (In re Scovis), 249 F.3d
975, 978, 980 (9th Cir. 2001); Lundell v. Anchor Constr.
Specialists, Inc. (In re Lundell), 223 F.3d 1035, 1038 (9th Cir.
2000); Walthall v. United States, 131 F.3d 1289, 1292–93
(9th Cir. 1997); Bonner Mall P’ship v. U.S. Bancorp Mortg.
IN RE PERL 11
Co. (In re Bonner Mall P’ship), 2 F.3d 899, 902, 904 (9th Cir.
1993).
On the other hand, when the decision of the bankruptcy
court is affirmed or reversed, rather than remanded, we have
applied the two-part finality test articulated in In re SK
Foods, 676 F.3d at 802. See In re Rosson, 545 F.3d at 769;
see also In re Lewis, 113 F.3d at 1043; Dye v. Brown (In re
AFI Holding, Inc.), 530 F.3d 832, 836 (9th Cir. 2008);
Schulman v. California (In re Lazar), 237 F.3d 967, 974, 985
(9th Cir. 2001); Duckor Spradling & Metzger v. Baum Trust
(In re P.R.T.C., Inc.), 177 F.3d 774, 777, 780 (9th Cir. 1999);
New Life Health Ctr. Co. v. I.R.S. (In re New Life Health Ctr.
Co.), 102 F.3d 428, 429 (9th Cir. 1996) (per curiam); United
States v. Stone (In re Stone), 6 F.3d 581, 583 (9th Cir. 1993);
Elliott v. Four Seasons Props. (In re Frontier Props., Inc.),
979 F.2d 1358, 1361, 1364 (9th Cir. 1992); Turgeon v.
Victoria Station Inc. (In re Victoria Station Inc.), 840 F.2d
682, 683–84 (9th Cir. 1988); United States v. Technical
Knockout Graphics, Inc. (In re Technical Knockout Graphics,
Inc.), 833 F.2d 797, 798, 801 (9th Cir. 1987); Farber v. 405
N. Bedford Dr. Corp. (In re 405 N. Bedford Dr. Corp.),
778 F.2d 1374, 1376–77 (9th Cir. 1985).
Because this case did not involve a remand, application of
the two-part finality test is appropriate. See In re SK Foods,
676 F.3d at 802. Notwithstanding the fact that no financial
penalty or sanction has yet been assessed against Eden Place,
the bankruptcy court’s determination that Eden Place violated
the automatic stay is a substantive ruling with real effects,
including money damages that could be sought by Perl
indefinitely. See Price v. Rochford, 947 F.2d 829, 831–32
(7th Cir. 1991) (holding that a cause of action for violation of
the automatic stay survives the termination of the bankruptcy
12 IN RE PERL
proceeding). The bankruptcy court’s order determined the
discrete issue of whether there was a stay violation, which
was the only issue litigated in the bankruptcy proceedings and
before the BAP. See In re SK Foods, 676 F.3d at 802
(discussing finality in the bankruptcy context). As a practical
matter, resolution of this issue resolved the entire case and
thereby qualifies as a final decision under our pragmatic
approach to finality in the bankruptcy context. See id.
We respectfully part company with our dissenting
colleague’s view of the finality of the bankruptcy court’s
order, largely because the cases relied on by the dissent were
decided in the context of general civil litigation rather than in
the bankruptcy context, where “[t]he rules are different . . .”
Bullard, 135 S. Ct. at 1692. Neither are we persuaded by the
out-of-circuit authority cited in the dissent. Rather, we look
to our precedent specifically addressing finality in the
bankruptcy context. That precedent persuades us that the
ruling by the bankruptcy court that Eden Place violated the
automatic stay resolved the only issue in the case, and
seriously affected substantive rights related to damages.
There is no question that the discrete issue addressed by the
bankruptcy court—violation of the automatic stay—has been
definitively and finally resolved. Resolution of that issue is
as final as it will ever be in this case.
We also look to the clear language of the bankruptcy
appeals statute, which as the Supreme Court noted,
“authorizes appeals as of right not only from final judgments
in cases but from final judgments, orders, and decrees in
cases and proceedings.” Id. (quoting 28 U.S.C. § 158(a))
(alteration and internal quotation marks omitted). After
considering our applicable precedent and the clear language
of the statute, we hold that the bankruptcy court’s order that
IN RE PERL 13
Eden Place violated the automatic stay was final and
appealable. See 28 U.S.C. § 158(d).
B. Merits - Violation of Automatic Stay
Having resolved the issue of finality, we now turn to the
merits of this case—whether Eden Place violated the
automatic stay. We start from the premise that the filing of
a bankruptcy petition creates the bankruptcy estate, which
includes “all legal or equitable interests of the debtor in
property as of the commencement of the case.” 11 U.S.C.
541(a)(1). The bankruptcy filing acts as an automatic stay of
“any act to obtain possession of property of the estate or of
property from the estate or to exercise control over property
of the estate. . . .” 11 U.S.C. § 362(a)(3). The violation of
the automatic stay inquiry determines whether the debtor, in
isolation, has any protectable legal, equitable, or possessory
interest. See Ramirez v. Fuselier (In re Ramirez), 183 B.R.
583, 587 (B.A.P. 9th Cir. 1995); see also 11 U.S.C.
§ 362(a)(3). Thus, the question in this case is whether Perl
had any remaining legal or equitable possessory interest in
the property after Eden Place properly recorded the trustee’s
deed from the non-judicial foreclosure sale, and after the state
court fully adjudicated in the unlawful detainer proceedings
Perl’s remaining possessory interest in the premises. See id.
We look to state law to determine property interests in
bankruptcy proceedings. See Butner v. United States,
440 U.S. 48, 54–55 (1979). We conclude that under
California law, entry of judgment and a writ of possession
following unlawful detainer proceedings extinguishes all
other legal and equitable possessory interests in the real
property at issue. See Vella v. Hudgins, 572 P.2d 28, 30 (Cal.
1977).
14 IN RE PERL
The BAP correctly determined that Perl had no remaining
legal interest in the property because, when Eden Place
purchased the property at the foreclosure sale and recorded its
deed within fifteen days of the sale, any legal interest Perl
retained in the property was extinguished. See Wells Fargo
Bank v. Neilsen, 178 Cal. App. 4th 602, 613–14 (2009), as
modified; see also Cal. Civ. Code. § 2924h(c). But, the BAP
went further, reasoning that Perl’s unlawful possession
bestowed equitable possessory rights upon him, which he
retained until the Sheriff actually dispossessed him of the
property by executing the writ of possession. See In re Perl,
513 B.R. at 574–76. However, whether Perl had actual
possession of the property when he filed for bankruptcy has
no bearing on whether he had a cognizable possessory
interest in the property. In resolving this issue, the unlawful
detainer statutory provisions are the point of departure for our
analysis.
California’s unlawful detainer statutory scheme was
designed to adjudicate the right to possession of realty
between a landlord and tenant when the tenant is in violation
of the lease. See Knowles v. Robinson, 387 P.2d 833, 836–37
(Cal. 1963). The unlawful detainer provisions authorize a
summary proceeding that adjudicates the right to immediate
possession of the property. See Vella, 572 P.2d at 30. For
this reason, claims regarding title to the property are not
generally litigated in an unlawful detainer proceeding. See id.
One exception to the rule that title is not generally determined
in an unlawful detainer proceeding is found in California
Code of Civil Procedure § 1161a, governing the right of
possession by a party initiating an unlawful detainer
proceeding after obtaining title at a nonjudicial foreclosure
IN RE PERL 15
sale.4 See id. The exception allows for “a narrow and
4
California Code of Civil Procedure § 1161a provides in relevant part:
(b) In any of the following cases, a person who holds
over and continues in possession of a manufactured
home, mobilehome, floating home, or real property
after a three-day written notice to quit the property has
been served upon the person, or if there is a subtenant
in actual occupation of the premises, also upon such
subtenant, as prescribed in Section 1162, may be
removed therefrom as prescribed in this chapter:
(1) Where the property has been sold pursuant to a
writ of execution against such person, or a person
under whom such person claims, and the title
under the sale has been duly perfected.
(2) Where the property has been sold pursuant to a
writ of sale, upon the foreclosure by proceedings
taken as prescribed in this code of a mortgage, or
under an express power of sale contained therein,
executed by such person, or a person under whom
such person claims, and the title under the
foreclosure has been duly perfected.
(3) Where the property has been sold in accordance
with Section 2924 of the Civil Code, under a
power of sale contained in a deed of trust executed
by such person, or a person under whom such
person claims, and the title under the sale has been
duly perfected.
(4) Where the property has been sold by such
person, or a person under whom such person
claims, and the title under the sale has been duly
perfected.
(5) Where the property has been sold in accordance
with Section 18037.5 of the Health and Safety
16 IN RE PERL
sharply focused examination of title.” Id.; see also Mortg.
Guarantee Co. v. Smith, 50 P.2d 835, 836 (Cal. Ct. App.
1935) (noting that in actions brought under § 1161a, title is
determined “as a necessary element of the remedy of
unlawful detainer”).
In California, an unlawful detainer proceeding is quasi in
rem and, accordingly, a judgment rendered in an unlawful
detainer proceeding is “not binding upon the world, but
conclusive only between the parties and their privies.” Park
v. Powers, 42 P.2d 75, 79 (Cal. 1935). Pursuant to Code of
Civil Procedure § 415.46,5 no occupant of the premises
retains any possessory interest of any kind following service
of the writ of possession. See Cal. Code Civ. Proc.
§ 715.020(d) (explaining that “if the summons, complaint,
and prejudgment claim of right to possession were served
Code under the default provisions of a conditional
sale contract or security agreement executed by
such person, or a person under whom such person
claims, and the title under the sale has been duly
perfected.
5
California Code of Civil Procedure § 415.46 provides in relevant part:
(a) In addition to the service of a summons and
complaint in an action for unlawful detainer upon a
tenant and subtenant, if any, as prescribed by this
article, a prejudgment claim of right to possession may
also be served on any person who appears to be or who
may claim to have occupied the premises at the time of
the filing of the action. Service upon occupants shall be
made pursuant to subdivision (c) by serving a copy of
a prejudgment claim of right to possession, as specified
in subdivision (f), attached to a copy of the summons
and complaint at the same time service is made upon
the tenant and subtenant, if any.
IN RE PERL 17
upon the occupants in accordance with Section 415.46, no
occupant of the premises, whether or not the occupant is
named in the judgment for possession, may object to the
enforcement of the judgment . . .”)
We recognize that the BAP may have considered itself
bound to follow its prior decision in Williams v. Levi (In re
Williams), 323 B.R. 691 (9th Cir. BAP 2005), and the cases
upon which In re Williams relied. See id. at 699 (citing Di
Giorgio v. Lee (In re Di Giorgio), 200 B.R 664 (C.D. Cal.
1996), and Westside Apartments, LLC v. Butler (In re Butler),
271 B.R. 867, 876–77 (Bankr. C.D. Cal. 2002)). However,
we are not persuaded that those cases engaged in the proper
analysis.
The earliest case espousing the reasoning adopted by the
BAP is In re DiGiorgio. The DiGiorgios were the defendants
in an unlawful detainer action. They subsequently entered
into a Stipulation for Judgment, forfeiting the lease and
providing for the issuance of a writ of possession. See 200
B.R. at 667. After the writ of possession was issued by the
court, but before it was executed, the DiGiorgios filed a
voluntary petition for bankruptcy. See id. Relying on
California Code of Civil Procedure § 715.050, the Sheriff’s
Department indicated its intent to enforce the writ of
possession without seeking relief from the automatic stay.6
6
California Code of Civil Procedure § 715.050 provides in relevant part:
Except with respect to enforcement of a judgment for
money, a writ of possession issued pursuant to a
judgment for possession in an unlawful detainer action
shall be enforced pursuant to this chapter without delay,
notwithstanding receipt of notice of the filing by the
defendant of a bankruptcy proceeding.
18 IN RE PERL
In addition to ruling that § 715.050 was preempted by the
Bankruptcy Code, the district court held that, although the
DiGiorgios had no legal possessory interest in the tenancy at
the time of the filing of the bankruptcy petition, they retained
an equitable possessory interest by virtue of their continued
physical presence. See id. at 670–71.
This holding was repeated in In re Butler, and adopted by
the BAP in In re Williams, see 323 B.R. at 699. In In re
Butler, the court relied upon California Civil Code § 1006.
See 271 B.R. at 870–71. That statute provides:
Title by Occupancy; extent
Occupancy for any period confers a title
sufficient against all except the state and those
who have title by prescription, accession,
transfer, will, or succession; but the title
conferred by occupancy is not a sufficient
interest in real property to enable the occupant
or the occupant's privies to commence or
maintain an action to quiet title, unless the
occupancy has ripened into title by
prescription.
The bankruptcy court concluded that, under California
case law, “the mere possession of real estate is constantly
treated as property, which may be purchased and sold, and for
the recovery of which an action may be maintained against
Because we resolve this case without relying upon the provisions of
§ 715.050, we express no view on whether the state statute is preempted
by the Bankruptcy Code.
IN RE PERL 19
one having no better title.” In re Butler, 271 B.R. at 871
(citations omitted) (emphasis added).
The flaw in the bankruptcy court’s analysis is that the
unlawful detainer proceedings under § 1161a are expressly
designed to determine who has superior title to the property,
including the right to immediate possession. See Vella,
572 P.2d at 30. As a result, the prevailing party in the
unlawful detainer proceeding under § 1161a has “better title”
than the evicted resident. In re Butler, 271 B.R. at 871. The
conclusion that the occupying resident retains an equitable
possessory interest is inconsistent with § 1161a, which
contemplates a final and binding adjudication of legal title
and rights of immediate possession. See Mortg. Guarantee
Co., 50 P.2d at 836; see also Vella, 572 P.2d at 30. We
therefore conclude that because Perl had no remaining
interest in the property, legal or equitable, when the
bankruptcy petition was filed, the bankruptcy court erred in
concluding that Eden Place violated the automatic stay by
executing the writ of possession.
The unlawful detainer judgment and writ of possession
entered pursuant to California Code Civil Procedure § 415.46
bestowed legal title and all rights of possession upon Eden
Place. See Vella, 572 P.2d at 30. Thus, at the time of the
filing of the bankruptcy petition, Perl had been completely
divested of all legal and equitable possessory rights that
would otherwise be protected by the automatic stay. See id.
Consequently, the Sheriff’s lockout did not violate the
automatic stay because no legal or equitable interests in the
property remained to become part of the bankruptcy estate.
See id.; see also 11 U.S.C. § 541(a)(1) (describing the
bankruptcy estate as consisting of “all legal or equitable
20 IN RE PERL
interests of the debtor in property as of the commencement of
the case”).
IV. CONCLUSION
The bankruptcy court erred when it ruled that Eden Place
violated the automatic stay provisions of the Bankruptcy
Code. Perl had no legal or equitable interest remaining in the
property after issuance of the unlawful detainer judgment and
writ of possession in state court. We therefore reverse the
bankruptcy court order. We need not and do not reach any
other issues presented on appeal.
REVERSED.
WATFORD, Circuit Judge, dissenting:
I would dismiss this appeal for lack of jurisdiction. The
appeal is taken from a bankruptcy court order that cannot by
any stretch be deemed final, even under the more relaxed
standard for finality that we apply in bankruptcy appeals. See
Bullard v. Blue Hills Bank, 135 S. Ct. 1686, 1692 (2015).
The bankruptcy court’s June 28, 2013, order found that
Eden Place had violated the automatic stay by evicting Perl
and his wife from their home. The court postponed deciding
whether damages or sanctions should be awarded as a remedy
for that violation until a subsequent hearing scheduled for the
following month. Rather than wait to see whether the
bankruptcy court would actually award damages or sanctions,
Eden Place immediately filed a notice of appeal. As it turned
out, the bankruptcy court never held the subsequent hearing
IN RE PERL 21
because Perl failed to appear at a scheduled creditors’
meeting, and the bankruptcy court therefore dismissed his
Chapter 13 case altogether.
The Bankruptcy Appellate Panel (BAP) correctly held
that dismissal of Perl’s underlying bankruptcy case did not
render his request for damages or sanctions moot. See Price
v. Rochford, 947 F.2d 829, 831–32 (7th Cir. 1991). But the
BAP did not make clear why it thought jurisdiction existed to
hear the appeal. The BAP might have assumed that it had
jurisdiction under 28 U.S.C. § 158(a)(1), which grants district
courts (and by extension the BAP) jurisdiction over appeals
“from final judgments, orders, and decrees.” Or the BAP
might have exercised jurisdiction under § 158(a)(3), which
allows the BAP to hear appeals, “with leave of the court,
from other interlocutory orders and decrees.” Either way, we
have jurisdiction to review the BAP’s decision only if the
underlying bankruptcy court order was in fact final.
28 U.S.C. § 158(d)(1). Since the BAP never addressed this
issue, we have to do so in the first instance. See In re
Lievsay, 118 F.3d 661, 662–63 (9th Cir. 1997) (per curiam).
Bankruptcy court orders are final and appealable “if they
finally dispose of discrete disputes within the larger case.”
Bullard, 135 S. Ct. at 1692 (internal quotation marks
omitted). So the question for us is whether the bankruptcy
court’s order finally disposed of the discrete dispute over
Eden Place’s alleged violation of the automatic stay. The
answer to that question turns on which of two general rules
applies. On the one hand, an order is not final if it determines
liability but does not resolve the plaintiff’s request for
damages or other relief. Liberty Mutual Insurance Co. v.
Wetzel, 424 U.S. 737, 744 (1976). On the other hand, an
order resolving the merits of a dispute is final, even if it
22 IN RE PERL
leaves a request for attorney’s fees unresolved. Budinich v.
Becton Dickinson & Co., 486 U.S. 196, 200–02 (1988).
The first rule applies here. This is not a case in which the
bankruptcy court resolved the merits of the dispute and left
unresolved only a request for attorney’s fees. The bankruptcy
court’s order merely determined liability; it left entirely
unresolved the relief to be awarded, which included a
potential award of compensatory and punitive damages as
well as an award of attorney’s fees. (Eden Place incorrectly
asserts that Perl requested attorney’s fees alone as relief; in
fact, his motion requested all appropriate relief, including but
not limited to attorney’s fees.) Because the bankruptcy
court’s order determined liability but left the issue of
damages unresolved, this case is governed by Wetzel. Under
the finality rule established there, the bankruptcy court’s
order did not finally determine even “the discrete issue of
whether there was a stay violation,” Maj. op. at 12, because
the order resolved only liability and nothing else.
Eden Place contends the bankruptcy court’s order should
be deemed final under In re Dyer, 322 F.3d 1178 (9th Cir.
2003). Our decision in that case construed 11 U.S.C.
§ 105(a), a catch-all provision granting bankruptcy courts the
authority to “issue any order, process, or judgment that is
necessary or appropriate to carry out the provisions of this
title.” See 322 F.3d at 1184 n.3. We held that an order
finding a violation of the automatic stay but postponing
assessment of appropriate sanctions under § 105(a) is final
and therefore immediately appealable. Id. at 1185–87. That
ruling is probably wrong; a well-developed body of law holds
that “[a] determination that contempt has occurred is not final
if the question of sanctions is postponed.” 15B Charles A.
IN RE PERL 23
Wright et al., Federal Practice and Procedure § 3917, at
377–78 (2d ed. 1992 & Supp. 2015) (collecting cases).
But we can put that matter to one side. The only portion
of Dyer that has any bearing on this case is the court’s
observation, in dicta, that the finality analysis might be
different if the court were confronted with an order finding a
stay violation but postponing assessment of damages under
11 U.S.C. § 362(h) (now § 362(k)). 322 F.3d at 1186–87
n.10. Because § 362(k) authorizes an award of “damages,”
the finality of orders under that statute is controlled by
Wetzel. We held that § 105(a), by contrast, is “a sanction
authority only and, as such, controlled by the principles of
Budinich.” Id. at 1187 n.10. In support of that holding, we
cited an Eleventh Circuit case, In re Atlas, 210 F.3d 1305,
1307–08 (11th Cir. 2000), for the proposition that the
distinction between attorney’s fees and damages is “crucial to
[the] analysis” of whether an order finding a stay violation
but not addressing remedies is final. See In re Dyer, 322 F.3d
at 1187 n.10.
What we said in dicta in Dyer about the finality of orders
under § 362(k) is entirely correct. Our sister circuits have
uniformly held that an order finding a stay violation but
postponing assessment of damages under § 362(k) is not
final. See In re Atlas, 210 F.3d at 1307–08; In re Fugazy
Express, Inc., 982 F.2d 769, 774–76 (2d Cir. 1992); Matter of
Morrell, 880 F.2d 855, 856–57 (5th Cir. 1989); In re Brown,
803 F.2d 120, 121–23 (3d Cir. 1986). Although there is some
uncertainty as to whether an order finding a stay violation but
leaving unresolved only the determination of attorney’s fees
is final, see In re Porto, 645 F.3d 1294, 1300–01 (11th Cir.
2011); In re Johnson, 501 F.3d 1163, 1168–69 (10th Cir.
2007), it is perfectly clear that an order finding a violation of
24 IN RE PERL
the automatic stay and postponing a determination of
damages under § 362(k) is not final. Under that rule, which
governs here, the bankruptcy court’s order cannot be deemed
final.
Whatever the merits of the rule established by Dyer for
orders under § 105(a), it doesn’t apply here. It’s true that Perl
cited § 105(a) in his moving papers when requesting
sanctions for Eden Place’s stay violation, but in fact no relief
was available to him under that statutory provision.
Individual debtors like Perl have a specific remedy available
to them under § 362(k), so it would not be “necessary or
appropriate” for the bankruptcy court to enforce the stay by
imposing contempt sanctions under the catch-all authority
granted by § 105(a). See In re Snowden, 769 F.3d 651, 661
(9th Cir. 2014) (citing In re Roman, 283 B.R. 1, 14–15 (9th
Cir. BAP 2002)). The bankruptcy court recognized as much.
At the hearing on Perl’s motion, the court noted that it was
considering the imposition of punitive damages, which are
available under § 362(k) in some circumstances but not
available under § 105(a) to remedy a past stay violation. See
In re Dyer, 322 F.3d at 1192–93. And when the court later
dismissed Perl’s case, it retained jurisdiction over “all issues
arising under Bankruptcy Code §[§] 110, 329 and 362.” It
did not retain jurisdiction to award any relief under § 105,
presumably because it recognized that no such relief would
be available.
What we are left with, then, is an order finding a stay
violation but postponing until later a ruling on damages under
§ 362(k). Because that order addressed liability but deferred
a determination of damages, it was not final under Wetzel, our
dicta in Dyer, or the uniform holdings of our sister circuits.
I would dismiss the appeal for lack of jurisdiction.