Lisa Golden v. Jeffrey Rogers ( 2022 )

FILED
NOT FOR PUBLICATION
JAN 13 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: LISA KAYE GOLDEN, No. 21-55441
Debtor, D.C. No.
______________________________ 3:20-cv-00102-TWR-NLS
JEFFREY ROGERS,
MEMORANDUM*
Plaintiff-Appellant,
v.
LISA KAYE GOLDEN, Debtor;
RICHARD KIPPERMAN,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Todd W. Robinson, District Judge, Presiding
Submitted January 11, 2022**
Pasadena, California
Before: RAWLINSON and CALLAHAN, Circuit Judges, and BLOCK,*** District
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Judge.
Debtor Lisa Kaye Golden (Golden) filed a Chapter 7 bankruptcy petition,
and asserted an interest in residential properties located at 5154 Mariner Drive,
5146 Mariner Drive, 1872 Crystal Bluff Court, and 1704 Emerald Cliff Point in
San Diego, California. Jeffrey Rogers (Rogers) initiated an adversary proceeding,
and sought, inter alia, an accounting of assets due to Golden’s purported breach of
their partnership agreements. Rogers appeals the bankruptcy court’s denial of his
adversary claims, and its determination that Rogers and Golden were entitled to an
equal division of proceeds from the sale of the properties.
The Trustee of the bankruptcy estate contends that Rogers’ appeal is moot
because the properties have been sold.1 We disagree. Rogers has limited his
appeal to the bankruptcy court’s decision that proceeds from the sale of the
properties are to be divided equally. The bankruptcy court would not be impeded
from fashioning relief with respect to the division of proceeds from the sale of
these properties. See Hornwood v. Sylmar Plaza, L.P. (In re Sylmar Plaza, L.P.),
***
The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
1
Rogers concedes that the property located at 5154 Mariner is not at issue
in this appeal. In any event, the property is not part of the bankruptcy estate and is
in receivership pursuant to a state court order. As a result, we do not address any
issues related to this property.
2
314 F.3d 1070, 1074 (9th Cir. 2002) (holding that appeal was not equitably moot
because the “claim [was] only for monetary damages against solvent debtors, [and
was] not a case in which it would be impossible to fashion effective relief. Nor has
there been such a comprehensive change in circumstances as to render it
inequitable for the court to consider the merits of the appeal.”) (citations omitted).
Contrary to Rogers’ assertions, the bankruptcy court did not improperly
deviate from the pretrial order or conduct a flawed accounting of partnership
assets. The pretrial order alerted Rogers that the bankruptcy court would conduct
an accounting of assets, and that Golden disputed Rogers’ accounting, in part
because Rogers “took $200,000 in mortgage deductions to her detriment.” Rogers’
contentions elide the findings of the bankruptcy court that acquisition of the
properties did not involve a typical partnership because Rogers “received all of the
deductions . . . by essentially misrepresenting the ownership of the properties.”
The bankruptcy court further emphasized that “both parties suffered from
inaccuracies in their testimony.”
Rogers does not persuasively dispute the bankruptcy court’s findings, which
were consistent with the pretrial order and amply supported the bankruptcy court’s
equal division of the partnership assets. See First Card v. Hunt (In re Hunt), 238
F.3d 1098, 1101-02 (9th Cir. 2001) (explaining that “a pretrial order will be
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liberally construed to permit consideration of any issues that are embraced within
its language”) (citation omitted); see also Decker v. Tramiel (In re JTS Corp.), 617
F.3d 1102, 1109 (9th Cir. 2010) (articulating that “[w]e must accept the bankruptcy
court’s findings of fact, unless the court is left with the definite and firm conviction
that a mistake has been committed”) (citation and internal quotation marks
omitted).
Rogers further asserts that the bankruptcy court was required to appoint an
“outside expert” to perform “a proper accounting.” Prior to trial, the bankruptcy
court agreed to appoint an independent expert, but Rogers chose to retain an
accountant to support his claims. Ultimately, the bankruptcy court determined that
the opinion of Rogers’ accountant was unreliable because he did not “consider the
entire scope of the partnership,” his opinion “was not based on a review of any
source documents,” and he “relied on . . . Rogers who was not credible.” Rogers
fails to demonstrate that the bankruptcy court was compelled to appoint an
independent expert as a result of the flawed opinion relied on by Rogers. See Fed.
R. Evid. 706(a) (“The court may appoint any expert that the parties agree
on and any of its own choosing. . . .”); Fed. R. Bankr. Proc. 9017 (making the
Federal Rules of Evidence applicable in bankruptcy proceedings); see also
Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1051 n.7 (9th Cir. 2002) (“While the
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court has discretion to appoint an expert under Federal Rule of Evidence 706,
[Rogers has] not shown how [the bankruptcy court’s] decision not to do so was an
abuse of discretion”).
AFFIRMED.
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