Blair Wallace v. Wright Grandchildren, L.P. , 678 F. App'x 528 ( 2017 )


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  •                                                                             FILED
    NOT FOR PUBLICATION
    FEB 23 2017
    UNITED STATES COURT OF APPEALS                    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    In re: ALEXANDRA M. SPIEGEL,                       No. 15-15239
    Debtor,                             D.C. No. 2:14-cv-00576-GEB
    ------------------------------
    MEMORANDUM*
    BLAIR WALLACE,
    Plaintiff-Appellant,
    v.
    WRIGHT GRANDCHILDREN, L.P.;
    MICHAEL WRIGHT,
    Defendants-Appellees,
    and
    STEPHEN HUNG,
    Defendant.
    Appeal from the United States District Court
    for the Eastern District of California
    Garland E. Burrell, Jr., District Judge, Presiding
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    Argued and Submitted February 13, 2017
    San Francisco, California
    Before: BERZON and CLIFTON, Circuit Judges, and LASNIK,** District Judge.
    Plaintiff Blair Wallace, successor in interest to Chapter 7 debtor Alexandra
    Spiegel, appeals the district court’s order affirming the judgment by the bankruptcy
    court in favor of Defendants Wright Grandchildren L.P. and Michael Wright
    (collectively, “the Wrights”) as to their claims for judicial foreclosure and
    declaratory relief and against Wallace as to his counterclaims. We have
    jurisdiction pursuant to 28 U.S.C. §§ 1291 and 158(d)(1). We affirm.
    This appeal hinges on whether Wallace could have made a valid tender of
    $150,000 to the Wrights that, pursuant to a release clause in a loan agreement
    between Spiegel and the Wright Grandchildren L.P., would have required the
    Wrights to release their security interest in a parcel of land then owned by Spiegel.
    Under California law, which controls here, “A valid tender of performance must be
    of the full debt, in good faith, unconditional, and with the ability to perform.”
    Intengan v. BAC Home Loans Servicing LP, 
    154 Cal. Rptr. 3d 727
    , 731 (Cal. Ct.
    App. 2013) (emphasis added) (citing Cal. Civ. Code, §§ 1486, 1493-95). Despite
    Wallace’s contentions to the contrary, none of the California state court cases or
    **
    The Honorable Robert S. Lasnik, United States District Judge for the
    Western District of Washington, sitting by designation.
    2
    civil code provisions cited by him excuse his need to show that he had the ability
    to perform by being able to pay the $150,000. See, e.g., Ersa Grae Corp. v. Fluor
    Corp., 
    2 Cal. Rptr. 2d 288
    (Cal. Ct. App. 1991); Backus v. Sessions, 
    10 P.2d 51
    , 56
    (Cal. 1941). See also Cal. Civ. Code § 1495 (“An offer of performance is of no
    effect if the person making it is not able and willing to perform according to the
    offer.”).
    The bankruptcy court did not clearly err in finding that Wallace had failed to
    demonstrate his ability to pay the Wrights $150,000 during the relevant time
    period. See Blausey v. United States Trustee, 
    552 F.3d 1124
    , 1132 (9th Cir. 2009).
    The bankruptcy court did not credit Wallace’s testimony that he had the money
    available to satisfy the release clause, and Wallace provided no documentary
    evidence to otherwise show that he had or could get the money, even though such
    evidence should have been relatively easy to obtain. Although Wallace argues that
    the trial court clearly erred by ignoring evidence of his ability to perform, none of
    the evidence identified by Wallace on appeal demonstrates clear error.
    AFFIRMED.
    3
    

Document Info

Docket Number: 15-15239

Citation Numbers: 678 F. App'x 528

Judges: Berzon, Clifton, Lasnik

Filed Date: 2/23/2017

Precedential Status: Non-Precedential

Modified Date: 10/19/2024