Aram Arakelyan v. Danny Still, Jr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 20 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
In the Matter of: DANNY R. STILL, Jr., No. 12-56475
Debtor, D.C. No. 2:12-cv-00613-DOC
ARAM ARAKELYAN; ANAHITA MEMORANDUM*
ARAKELYAN,
Appellants,
v.
DANNY R. STILL, Jr.; DIANE
TRISTAN,
Appellees.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted May 15, 2014**
Pasadena, California
Before: PREGERSON, REINHARDT, and NGUYEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Defendants appeal the district court’s order affirming the judgment of the
bankruptcy court. Because the parties are familiar with the factual background and
procedural history of this case, we need not discuss them here. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. “Whether a given representation is an expression of opinion or a
statement of fact depends on the circumstances of the particular case.” Daniels v.
Oldenburg, 100 Cal. App. 2d 724, 727 (1950). “[W]hen a party possesses or holds
itself out as possessing superior knowledge or special information or expertise
regarding the subject matter and a plaintiff is so situated that it may reasonably rely
on such supposed knowledge, information, or expertise, the defendant’s
representation may be treated as one of material fact.” Bily v. Arthur Young & Co.,
3 Cal. 4th 370, 408 (1992). Here, Aram Arakelyan’s statement — that the only
way to save the property was through a straw sale — was offered as an assertion of
fact by someone who held himself out as having superior knowledge of mortgages
and home foreclosures.
“Whether reliance is justified is a question of fact for the determination of
the trial court; the issue is whether the person who claims reliance was justified in
believing the representation in the light of his own knowledge and experience.”
Gray v. Don Miller & Assocs., Inc., 35 Cal. 3d 498, 503 (1984). The bankruptcy
2
court correctly found that the Stills, who “were vulnerable and unsophisticated
first-time home owners,” and who “appeared to be ignorant of how loan financing
works,” were justified in “believ[ing] everything that Aram told them if it meant
that they could save [their home].”
Thus, Aram Arakelyan’s statement was an actionable misrepresentation, and
the Stills justifiably relied on this statement.
2. Defendants waived their argument as to the treble damages award by not
raising it on their first appeal to the district court. An appeal of “a bankruptcy
court’s [final] order . . . must be taken within the time allowed under the
bankruptcy rules, or the right to appeal will be waived.” Preblich v. Battley, 181
F.3d 1048, 1056 (9th Cir. 1999). Defendants had fourteen days from the date the
bankruptcy court issued its final order (September 10, 2008) to appeal the
allocation of treble damages. Fed. R. Bankr. Proc. 8002(a). Defendants did not
raise the issue until their second appeal to the district court in April 2012, almost
four years later. Defendants thus waived the issue.
AFFIRMED.
3