Mark Shoemaker v. Alfred Siegel ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: MARK ALAN SHOEMAKER, No. 18-55182
Debtor. D.C. No. 2:17-cv-02033-RGK
______________________________
MARK ALAN SHOEMAKER, MEMORANDUM*
Appellant,
v.
ALFRED H. SIEGEL, Chapter 7 Trustee; et
al.,
Appellees.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted January 15, 2019**
Before: TROTT, TALLMAN, and CALLAHAN, Circuit Judges.
Chapter 7 debtor Mark Alan Shoemaker appeals pro se from the 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).
court’s judgment affirming the bankruptcy court’s order dismissing Shoemaker’s
adversary proceeding against the Chapter 7 trustee and the trustee’s attorneys. We
have jurisdiction under 28 U.S.C. § 158(d). We review de novo a district court’s
decision on appeal from a bankruptcy court and apply the same standards applied
by the district court. Motor Vehicle Cas. Co. v. Thorpe Insulation Co. (In re
Thorpe Insulation Co.), 677 F.3d 869, 879 (9th Cir. 2012). We affirm.
The bankruptcy court properly dismissed as barred by the litigation privilege
Shoemaker’s fraud claims against defendants Siegel, Friedman, and Levene, Neale,
Bender, Yoo & Brill LLP (“LNBYB”), and Shoemaker’s breach of fiduciary duty
claim against defendant Siegel. See Cal. Civ. Code § 47(b); Graham–Sult v.
Clainos, 756 F.3d 724, 741-42 (9th Cir. 2014) (discussing California’s litigation
privilege).
The bankruptcy court properly dismissed Shoemaker’s negligence and
breach of fiduciary duty claims against defendants Lewis, Friedman, and LNBYB
because Shoemaker failed to allege facts sufficient to state a plausible claim for
relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678-81 (2009) (to avoid dismissal, “a
complaint must contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face” (citation and internal quotation marks
omitted)); Hayes v. County of San Diego, 305 P.3d 252, 255-56 (Cal. 2013)
(elements of a negligence claim); Knox v. Dean, 140 Cal. Rptr. 3d 569, 582-83 (Ct.
2 18-55182
App. 2012) (elements of breach of fiduciary duty claim).
The bankruptcy court properly dismissed on the basis of quasi-judicial
immunity Shoemaker’s negligence and negligent misrepresentation claims against
defendant Siegel, and his negligent misrepresentation claims against defendants
Friedman and LNBYB, because defendants’ acts were within the scope of the
authority conferred upon them by statute or the court. See Harris v. Wittman (In re
Harris), 590 F.3d 730, 742 (9th Cir. 2009) (a bankruptcy trustee and trustee’s
court-approved attorneys enjoy quasi-judicial immunity when acting within the
scope of their authority and pursuant to court order).
The bankruptcy court did not abuse its discretion in denying Shoemaker
further leave to amend because Shoemaker failed to cure the deficiencies identified
by the bankruptcy court despite an opportunity to do so. See Ditto v. McCurdy,
510 F.3d 1070, 1078-79 (9th Cir. 2007) (standard of review).
AFFIRMED.
3 18-55182