Guerra v. Jaramillo

FILED
NOT FOR PUBLICATION MAR 20 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: AVON TOWNHOMES No. 12-60024
VENTURE,
BAP No. 11-1068
Debtor.
------------------------------ MEMORANDUM*
JOE GUERRA,
Appellant,
v.
ROBERT JARAMILLO; MOHAMED
POONJA,
Appellees.
In re: AVON TOWNHOMES No. 12-60025
VENTURE,
BAP No. 11-1069
Debtor.
------------------------------
RAYMUNDO LUJANO,
Appellant,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
v.
ROBERT JARAMILLO; MOHAMED
POONJA,
Appellees.
Appeals from the Ninth Circuit
Bankruptcy Appellate Panel
Hollowell, Donovan, and Dunn, Bankruptcy Judges, Presiding
Submitted February 6, 2014**
Before: LEAVY, GRABER, and W. FLETCHER, Circuit Judges.
Appellants Joe Guerra and Raymundo Lujano appeal the Ninth Circuit
Bankruptcy Appellate Panel’s ("BAP") affirmance of the bankruptcy court’s order
sanctioning them for bad faith under the bankruptcy court’s inherent authority.
Reviewing the sanctions order for abuse of discretion, Miller v. Cardinale (In re
Deville), 361 F.3d 539, 547 (9th Cir. 2004), we affirm.
1. Appellants received appropriate notice and process, and the bankruptcy
court did not violate their due process rights. The BAP correctly held that the
sanctions here were civil in nature because they were compensatory. See Lasar v.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
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Ford Motor Co., 399 F.3d 1101, 1111 (9th Cir. 2005) ("It is well-established that
compensatory fines are civil sanctions in the context of contempt proceedings.").
2. The BAP correctly held that Appellants failed to show prejudice from the
alleged ex parte communication. See Ludwig v. Astrue, 681 F.3d 1047, 1055 (9th
Cir. 2012) (holding that prejudice must be shown from an ex parte
communication). Given the nature of the communication at issue here, we reject
Appellants’ contention that the alleged ex parte communication required the
bankruptcy judge to recuse himself. See, e.g., Blixseth v. Yellowstone Mountain
Club, No. 12-35986, 2014 WL 606707, *2 (9th Cir. Feb. 18, 2014) (per curiam)
("While ex parte communications are discouraged, they . . . don’t necessarily call
for recusal." (citation omitted)).
3. The bankruptcy court did not clearly err in either its "bad faith"
determination or its findings concerning Curtis Guerra’s role. See Willms v.
Sanderson, 723 F.3d 1094, 1099 (9th Cir. 2013) (holding that we review for clear
error the bankruptcy court’s factual findings).
4. Appellants waived their argument concerning the relevant factors that the
bankruptcy court should have considered by failing to raise the argument before
the bankruptcy court. See O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1063
n.3 (9th Cir. 2007) (holding that arguments not raised before the trial court are
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waived). Although the BAP declined review on the ground of waiver and Appellee
raised the issue of waiver in his brief, Appellants did not address the issue. In
these circumstances, we decline to exercise our discretion to reach the issue.
AFFIRMED.
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