Namvar v. Neilson (In Re Namvar)

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 22 2014
MOLLY C. DWYER, CLERK
In the Matter of: EZRI NAMVAR, No. 12-56767 U.S. COURT OF APPEALS
Debtor, D.C. No. 2:12-cv-01827-GAF
MOUSA NAMVAR,
MEMORANDUM*
Appellant,
v.
R. TODD NEILSON, Trustee for the
Chapter 11 Bankruptcy Estate of Ezri
Namvar,
Appellee.
In the Matter of: MISSION REAL No. 12-56768
ASSOCIATES, LLC,
D.C. No. 2:12-cv-01830-GAF
Debtor,
MOUSA NAMVAR, an individual,
Appellant,
v.
MISSION REAL ASSOCIATES, LLC,
Appellee.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted April 11, 2014
Pasadena, California
Before: FARRIS and HURWITZ, Circuit Judges, and FRIEDMAN, Senior District
Judge.**
Mousa Namvar (“Mousa”) submitted a claim in the bankruptcy proceedings
of Mission Real Associates, LLC (“Mission Real”), seeking eighteen percent of the
proceeds from a court-ordered sale of commercial property (“the Improvements”).
Mission Real, as debtor in possession, sought a declaratory judgment that Mousa
was not entitled to the claimed proceeds from the sale. The trustee in the
bankruptcy proceedings for Ezri Namvar (“Ezri”), Mousa’s brother, also objected
to the claim and requested a declaratory judgment that Mousa could not diminish
Ezri’s ownership interest in the Improvements.
The bankruptcy court issued summary judgments in favor of Mission Real
and the trustee, and the district court affirmed. We have jurisdiction under 28
U.S.C. §§ 158(d) and 1291. We affirm.
**
The Honorable Paul L. Friedman, Senior District Judge for the U.S.
District Court for the District of Columbia, sitting by designation.
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1. Mousa did not raise a genuine issue of material fact. The deed for the
Improvements does not identify Mousa as an owner, and the “Amendment to
Operating Agreement of Mission Real Associates LLC” and the “Assignment and
Assumption of Interest in Mission Real Associates, LLC” (collectively “Mission
Real Amendments”) do not list Mousa as a member of Mission Real. Although the
Mission Real Operating Agreement may have been ambiguous in some aspects, the
bankruptcy court properly excluded parol evidence as to ownership interests in the
LLC, because the Mission Real Amendments clearly identify the members of
Mission Real and their relative interests. See JCC Dev. Corp. v. Levy, 146 Cal.
Rptr. 3d 635, 642 (Ct. App. 2012). Even if Mousa was a beneficiary of an alleged
resulting trust, that trust was avoided in bankruptcy. 11 U.S.C. § 544(a)(3). And,
no admissible evidence in the record supports the claim that Ezri assigned Mousa
some or all of his interest in the Improvements.
2. The bankruptcy judge’s evidentiary rulings do not mandate reversal.
Ezri’s deposition would not be admissible at trial, because Mousa admits that Ezri
would not be available to testify, and neither Mission Real nor the Erzi trustee was
represented at the deposition. Fed. R. Evid. 804(b)(1)(B); Hoover v. Switlik
Parachute Co., 663 F.2d 964, 967 n.3 (9th Cir. 1981).
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The 2008 letter from Ezri to Mousa was not an admission by the bankruptcy
trustee, and any statements in the letter therefore did not bind the trustee under
Federal Rule of Evidence 801(d)(2). Calhoun v. Baylor, 646 F.2d 1158, 1162–63
(6th Cir. 1981). Nor was any statement by Ezri in the letter “so decidedly against
the declarant’s interest” to require admission under Rule 804(b)(3). Donovan v.
Crisostomo, 689 F.2d 869, 877 (9th Cir. 1982).
Mousa’s argument that the 2008 letter was a verbal act, see Fed. R. Evid.
801(c) advisory committee note (“If the significance of an offered statement lies
solely in the fact that it was made . . . the statement is not hearsay. . . .”), was not
raised below, and therefore is waived. Rather, Mousa offered the letter in the
bankruptcy court as evidence of a prior oral agreement, making it hearsay. Fed. R.
Evid. 801(c)(2). Moreover, the letter does not purport to establish or affect an
interest in property. See Fed. R. Evid. 803(15). The letter discusses a proposed
division of proceeds from a sale of the Improvements that never occurred.
Finally if, as Mousa argues, the 2003 e-mail was submitted to show Ezri’s
then-existing state of mind under Rule 803(3), any error in excluding it was
harmless, as Ezri’s state of mind was not at issue in the bankruptcy proceedings.
AFFIRMED.
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