Arturo Gonzalez

Opinion

3 OCT 15 2019 4

5 C CL enE tR raK l U D. iS st. r B icA t N ofK CR aU liP foT rC nY ia COURT BY b a k c h e l l DEPUTY CLERK 6

11 In re: Case No. 2:15-bk-25283-RK

12 ARTURO GONZALEZ, Chapter 7

13 Debtor. MEMORANDUM DECISION ON MOTION BY CHAPTER 7 TRUSTEE, WESLEY H. 14 AVERY, PURSUANT TO FRCP 11 AND

15 FRBP 9011 FOR SANCTIONS AGAINST DEBTOR, ARTURO GONZALEZ, 16 INCLUDING MONETARY SANCTIONS OF ATTORNEY FEES AND COSTS AND 17 DIRECTIVES OF A NONMONETARY NATURE 18

19 This bankruptcy case came on for hearing on August 20, 2019 on the Motion of 20 Wesley H. Avery, Chapter 7 Trustee, Pursuant to FRBP [Federal Rule of Civil Procedure] 21 11 and FRBP [Federal Rule of Bankruptcy Procedure] 9011 for Sanctions against the 22 Debtor, Arturo Gonzalez, including Monetary Sanctions of Attorney Fees and Costs and 23 Directives of a Nonmonetary Nature (“Motion”), Electronic Case Filing No. (“ECF”) 408. 24 Brett B. Curlee, of the Law Office of Brett Curlee, appeared for the Chapter 7 Trustee. 25 Debtor Arturo Gonzalez appeared for himself. 26 The Chapter 7 Trustee, Wesley H. Avery (“Trustee”) filed the Motion a separate 27 1 July 9, 2019, Debtor, Arturo Gonzalez, (“Debtor”) filed his “Response to Docket 395, 396, 2 397, 408, 409 Motion by Chapter 7 Trustee, Wesley H. Avery, Objecting to Exemptions 3 Claimed in a Homestead and in Real Estate Brokerage Commissions Identified in the 4 Amended Schedules (Docket No. 393), filed May 21, 2019, by Debtor Arturo Gonzalez; 5 and Requesting Order for Turnover of Commissions Belonging to the Bankruptcy Estate; 6 Memorandum of Points and Authorities; Declaration of Brett B. Curlee in Support 7 Thereof” (“Opposition”), ECF 420. The Trustee filed a reply thereto on August 13, 2019 8 (“Reply”), ECF 438. After the hearing on the Motion on August 20, 2019, the court took 9 the Motion under submission. 10 Having considered the Motion, the RJN, the Opposition, and the Reply, and having 11 also considered the arguments of the parties made at the hearing on August 20, 2019, 12 the court makes the following rulings on the Motion. 14 Pursuant to the Motion, the Trustee seeks relief under Federal Rule of Bankruptcy 15 Procedure 9011 (“Rule 9011”) and Federal Rule of Civil Procedure 11 (“Rule 11”), 16 claiming that Debtor’s motions, adversary actions, and amendments have been filed to 17 harass the Trustee and delay these proceedings in bad faith. Motion, ECF 408 at 3. 18 Specifically, the Trustee requests the following monetary and non-monetary sanctions 19 against Debtor: 20 a) Strike the complaint and dismiss adversary action no. 2:19-ap-01126-RK; 21 b) Strike the complaint in adversary action no. 2:18-ap-01371-RK and dismiss 22 that adversary action as it pertains to the Trustee; 23 c) Strike the Motion to Alter, or Amend the Judgement, or Request for New 24 Trial regarding Debtor’s homestead and tools of the trade exemptions 25 (Docket No. 364) and the turnover order (Docket No. 16 in Adv. No. 2:16- 26 ap-01037) and to amend the Findings of Fact and Conclusions of Law 27 regarding the same. See also Docket No. 388 filed in the Main Bankruptcy 1 d) Strike the Motion to Alter, or Amend the Judgement, or Request for New 2 Trial regarding revocation of discharge (Docket No. 123, 129 in Adv. No. 3 2:16-ap-01037-RK) and to amend the Findings of Fact and Conclusions of 4 Law regarding same (Docket No. 123, Adv. No. 2:16-ap-01037-RK). This 5 Motion is Docket No. 137 in Adv. No. 2:16-ap-01037-RK; 6 e) Strike the Motion for Trustee to Protect Debtor’s Interest (Docket No. 47 in 7 Adv. No. 18-ap-01371-RK). This Motion was filed in Adv. No. 18-ap-01371- 8 RK; 9 f) Strike the Amended Schedules (Docket No. 393), filed May 21, 2019; 10 g) Order Debtor shall first submit all pleadings to be filed in the bankruptcy 11 case or any adversary action related to the bankruptcy case for court 12 approval before filing that the Court deems are not duplicative or frivolous; 13 and, 14 h) Order Debtor to pay attorneys’ fees and costs of not less than $15,000 to 15 Trustee’s counsel and co-counsel as sanctions for causing Trustee to 16 respond to Debtor’s bad faith filings. 17 Id. at 2. 18 Debtor opposed the Motion, arguing that the Trustee has proceeded incorrectly 19 and is harassing Debtor. Opposition, ECF 420 at 4. As explained in greater detail below, 20 the court denies the Motion for procedural deficiencies, mootness, and lack of merit. 22 A. The Trustee’s Motion is Procedurally Deficient 23 Rule 9011, the bankruptcy parallel to Rule 11, is “an extraordinary remedy, one to 24 be exercised with extreme caution.” Operating Engineers Pension Trust v. A-C Co., 859 25 F.2d 1336, 1345 (9th Cir. 1988). An award of sanctions for a violation of Rule 9011 is “an 26 exceptionally serious matter reserved for those rare situations in which a claim or 27 defense is asserted without any evidentiary support or legal basis, or for improper 1 Trustees v. Quinones (In re Quinones), 543 B.R. 638, 646 (Bankr. N.D. Cal. 2015) (citing 2 inter alia Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990)). A party seeking 3 sanctions therefore must strictly comply with all of Rule 9011’s procedural requirements 4 for an award. Radcliffe v. Rainbow Construction Co., 254 F.3d 772, 789 (9th Cir. 2001); 5 Barber v. Miller, 146 F.3d 707, 710-711 (9th Cir. 1998). 6 The language of Rule 90111 mirrors that of Rule 11, so courts analyzing sanctions 7 under Rule 9011 commonly rely on cases interpreting Rule 11. Miller v. Cardinale (In re 8 DeVille), 361 F.3d 539, 550 and n. 5 (9th Cir. 2004) (citation omitted) (describing Rule 9 9011 as the “bankruptcy twin” of Rule 11). Further, when Rule 9011 was adopted in its 10 present form in 1997, the drafters of the amended bankruptcy rules referred readers to 11 the notes accompanying the 1993 amendments of Rule 11 for guidance. Id. at 551 and 12 n. 8. When interpreting Rule 9011, as stated in In re Deville, the Ninth Circuit continues 13 “to adhere to the practice that precedents interpreting Rule 11 may prove a helpful guide” 14 and “looks to the Advisory Committee Notes to the 1993 Amendments to Rule 11” to 15 inform judgments about the procedures required in imposing sanctions under Rule 9011. 16 Id. at 552.2 17 18 19 1 Federal Rule of Bankruptcy Procedure 9011(c)(1)(A) provides: 20

A motion for sanctions under this rule shall be made separately from other motions or requests 21 and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 7004. The motion for sanctions may not be filed with or presented to the court 22 unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not 23 withdrawn or appropriately corrected, except that this limitation shall not apply if the conduct alleged is the filing of a petition in violation of subdivision (b). If warranted, the court may award 24 to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held 25 jointly responsible for violations committed by its partners, associates, and employees.

26 2 The current wording of Federal Rule of Bankruptcy Procedure 9011(c) dates from 1997, and the essentially identical language in Federal Rule of Civil Procedure 11(c) dates from 1993. The Advisory 27 Committee Notes on the 1997 Amendments to Rule 9011 state: “For an explanation of these amendments, see the advisory committee note to the 1993 amendments to Fed. R. Civ. P. 11.” Fed. R. Bankr. P. 9011; 1 i. The Rule 9011(c)(1)(A) “Safe Harbor” 2 Rule 9011(c)(1)(A) requires that before a motion for sanctions is filed with the 3 court, the motion must have been served on the party whose conduct is alleged to violate 4 the rule, and the alleged violating party must be allowed at least twenty-one days to 5 correct or withdraw the offending pleading, allegation, or denial (the “Safe Harbor”). Fed. 6 R. Bankr. P. 9011(c)(1)(A). To comply with Rule 9011, a moving party therefore must 7 serve its sanctions motion “on the plaintiffs with a demand for retraction of the allegedly 8 offending allegations,” and then allow the plaintiffs at least twenty-one days to retract the 9 pleading before filing the motion with the court. Radcliffe v. Rainbow Construction Co., 10 254 F.3d at 788-789 (emphasis added). In Barber v. Miller, the Ninth Circuit held that the 11 procedural requirements of the Safe Harbor are mandatory. 146 F.3d at 710-711. The 12 court emphasized that the Advisory Committee Notes “make abundantly clear” that the 13 revised Rule 9011(c)(1)(A), like Rule 11(c)(1)(A), establishes a safe harbor in that “a 14 party will not be subject to sanctions on the basis of another party’s motion unless, after 15 receiving the motion, it refused to withdraw that position or to acknowledge candidly that 16 it does not currently have evidence to support a specified allegation.” Id. at 710 (citing 17 Advisory Committee Notes, 1993 Amendment). 18 The purpose of the Safe Harbor “is to give the offending party the opportunity, 19 within 21 days after service of the motion for sanctions, to withdraw the offending 20 pleading and thereby escape sanctions.” Id. (emphasis in original). The Safe Harbor 21 was adopted to, among others, encourage the withdrawal of papers that violate Rule 22 9011 without involving the court, thereby avoiding sanction proceedings whenever 23 possible and streamlining the litigation process. 5A Charles Alan Wright & Arthur R. 24 Miller, Federal Practice and Procedure, § 1337.2 (4th ed., online ed., August 2019 25 update); see also, Truesdell v. Southern California Permanente Medical Group, 293 F.3d 26 1146, 1151 (9th Cir. 2002) (safe harbor is meant to give an opportunity to remedy any 27 alleged misconduct); Ellis v. Devig, No. 3:08-cv-19, 2008 U.S. Dist. LEXIS 29893, 2008 1 Notably, in addition to service of the motion in compliance with Rule 9011(c)(1)(A), 2 “counsel should be expected to give informal notice to the other party, whether in person 3 or by a telephone call or letter, of a potential violation before proceeding to prepare and 4 serve a Rule 11 motion.” Barber v. Miller, 146 F.3d at 710 (citing Advisory Comm. Notes, 5 1993 Amend.); see also, Crane v. Rodriguez, No. 2:15-cv-0208 TLN KJN P, 2017 WL 6 132122 at *2 (E.D. Cal. 2017) (citing Advisory Committee Notes, 1993 Amendment and 7 noting that plaintiff did not provide defendants with informal notice of his intention to seek 8 sanctions contemplated under Rule 11).3 9 ii. The Motion Provides Insufficient Evidence that Debtor had Notice 10 Pursuant to Rule 9011(c)(1)(A) 11 The purpose of the Rule 9011 Safe Harbor is to afford plaintiffs an opportunity to 12 avoid sanctions. Here, there is insufficient evidence that the Trustee’s bare service of the 13 Motion provided Debtor the opportunity to withdraw or retract the allegedly offending 14 pleadings. The Trustee’s counsel stated that on May 24, 2019, he served the Motion on 15 the Debtor at his address at 1139 Sanford Ave., Wilmington, California 90744. 16 Declaration of Brett B. Curlee, ¶ 7 (ECF 408 at 16) (“Curlee Declaration”). The Trustee 17 filed the Motion on June 22, 2019, more than twenty-one days after service of the Motion 18 on Debtor. Debtor did not withdraw or retract any of the allegedly offending pleadings 19 before the Trustee filed the Motion, filing the Opposition on July 9, 2019. 20 There is no evidence that the Trustee informally notified Debtor, by telephone call 21 or letter, of his intention to move for sanctions before serving the Motion on Debtor. The 22 Advisory Committee Notes to the 1993 amendments to Rule 11 indicate that “in most 23 cases” counsel should give some informal notice to the plaintiff that he intends to move 24 3 See also Ellis v. Devig, No. 3:08-cv-19, 2008 U.S. Dist. LEXIS 29893, 2008 WL 1735389 at *1 25 (D.N.D. 2008) (“The language of Rule 11, along with the Advisory Committee Notes, clearly sets forth the procedure which parties must follow when they believe sanctions may be appropriate. First, the other party 26 should be informally notified of the potential violation before service of the Rule 11 motion. If the issue is not resolved after informal notification, the party seeking sanctions must serve a separate motion for 27 sanctions upon the other party. After the motion has been served, the other party has the 21-day safe harbor period to withdraw or correct the challenged paper. The district court should not be involved in the 1 for sanctions. Federal Rule of Civil Procedure 11, Advisory Committee Notes, 1993 2 Amendment. Here, Debtor is proceeding without counsel, and there is no evidence that a 3 demand letter or similar communication was made before the Trustee served Debtor on 4 May 24, 2019. 5 Additionally, neither the Motion nor the Curlee Declaration includes any evidence 6 of a request that Debtor withdraw any of the allegedly offending pleadings. The court is 7 unable to determine if the Trustee ever indicated to Debtor, whether verbally or in writing, 8 that a refusal to withdraw the allegedly offending pleadings might result in sanctions. 9 There is no evidence that the Trustee made any “demand for retraction of the allegedly 10 offending allegations,” Radcliffe v. Rainbow Construction Co., 254 F.3d at 788-789, while 11 serving the Motion on Debtor. The evidence before the court fails to demonstrate that 12 Debtor had sufficient notice—either informally given before service of the motion, or 13 formally included with service of the Motion by the Trustee’s counsel—that Debtor had an 14 opportunity, within twenty-one days, to withdraw the offending pleadings “and thereby 15 escape sanctions.” Barber v. Miller, 146 F.3d at 710 (emphasis in original). 16 In Holgate v. Baldwin, 425 F.3d 671 (9th Cir. 2005), the moving party served the 17 plaintiff “with a letter and a copy of the motion he intended to file” if plaintiffs did not cure 18 the allegedly sanctionable conduct. 425 F.3d at 678. Attaching a letter setting forth the 19 demand for withdrawal when serving the motion upon plaintiff and complying with the 20 safe harbor waiting period give a plaintiff sufficient notice that a refusal to retract an 21 allegedly offending pleading may give rise to sanctions under Rule 9011. Similarly, 22 informally notifying plaintiff—before serving the motion—of the intention to move for 23 sanctions but for withdrawal of allegedly sanctionable pleadings, and then complying with 24 the safe harbor period after service of a motion, provides adequate notice to a plaintiff. 25 Here, however, there is no letter or other evidence before the court demonstrating that 26 the Trustee ever demanded that Debtor retract any pleadings within the safe harbor 27 period. 1 Because Debtor is not represented by counsel, and there is no evidence of any 2 withdrawal request having been made by the Trustee’s counsel, the court determines that 3 the Motion is insufficient to satisfy the stringent notice requirements of Rule 9011. 4 B. The Sanctions Requested by the Trustee are Either Moot or Without Merit 5 In the Motion, the Trustee requests monetary and non-monetary sanctions against 6 Debtor. See ECF 408 at 2. The court addresses each request in turn. 7 a) Strike the complaint and dismiss adversary action no. 2:19-ap-01126-RK; 8 Because by order on July 19, 2019, the court dismissed the adversary proceeding 9 for lack of standing, the Trustee’s request is therefore moot. ECF 14, Adv. No. 2:19-ap- 10 01126-RK. 11 b) Strike the complaint in adversary action no. 2:18-ap-01371-RK and dismiss 12 that adversary action as it pertains to the Trustee; 13 Because by order on August 21, 2019, the court, on its own motion, struck the 14 second amended complaint of Debtor on grounds that the second amended complaint 15 was not an authorized amended pleading because Debtor did not comply with Federal 16 Rule of Bankruptcy Procedure 7015 and Federal Rule of Civil Procedure 15(a)(1) and (2), 17 the Trustee’s request is therefore moot. ECF 73, Adv. No. 2:18-ap-01371-RK. 18 c) Strike the Motion to Alter, or Amend the Judgement, or Request for New 19 Trial regarding Debtor’s homestead and tools of the trade exemptions 20 (Docket No. 364) and the turnover order (Docket No. 16 in Adv. No. 2:16- 21 ap-01037-RK) and to amend the Findings of Fact and Conclusions of Law 22 regarding the same. See also Docket No. 388 filed in the Main Bankruptcy 23 Case, No. 2:15-bk-25283-RK; 24 Because by order on August 23, 2019, the court denied Debtor’s motions, the 25 Trustee’s request is therefore moot. ECF 448, No. 2:15-bk-25283-RK, and ECF 170, 26 Adv. No. 2:16-ap-01037-RK. 27 d) Strike the Motion to Alter, or Amend the Judgement, or Request for New 1 2:16-ap-01037-RK) and to amend the Findings of Fact and Conclusions of 2 Law regarding same (Docket No. 123, Adv. No. 2:16-ap-01037-RK). This 3 Motion is Docket No. 137 in Adv. No. 2:16-ap-01037-RK; 4 Because by order on June 19, 2019, the court denied the Debtor’s motions for lack 5 of compliance with Local Bankruptcy Rule 9013-1(c), the Trustee’s request is therefore 6 moot. ECF 152 and 170, Adv. No. 2:16-ap-01037-RK. 7 e) Strike the Motion for Trustee to Protect Debtor’s Interest (Adv. No. 47). This 8 Motion was filed in Adv. No. 2:18-ap-01371-RK; 9 Because by order on August 22, 2019, the court denied the Debtor’s motions for 10 lack of good cause and for the reasons set forth in the Trustee’s written opposition, the 11 Trustee’s request is therefore moot. ECF 74, Adv. No. 2:18-ap-01371-RK. 12 f) Strike the Amended Schedules (Docket No. 393), filed May 21, 2019; 13 By order on August 21, 2019, the court disallowed the claimed exemptions in 14 Debtor’s Schedule C in his amended schedules to the extent that Debtor’s expressions of 15 his views purported to amend his schedules to claim a homestead exemption or 16 exemptions in real estate sales commissions different from what the court previously 17 decided in its orders on Debtor’s claimed exemptions, and the court determined that 18 Debtor’s statements in the Amended Schedule did not affect the law of the case set forth 19 in the court’s prior rulings, the Trustee’s request is therefore moot. ECF 443 and 444, 20 No. 2:15-bk-25283-RK. 21 g) Order Debtor shall first submit all pleadings to be filed in the bankruptcy 22 case or any adversary action related to the bankruptcy case for court 23 approval before filing that the Court deems are not duplicative or frivolous 24 Courts have the authority to “regulate the activities of abusive litigants by imposing 25 carefully tailored restrictions under . . . appropriate circumstances.” Ringgold-Lockhart v. 26 County of Los Angeles, 761 F.3d 1057, 1061 (9th Cir. 2014) (citing De Long v. 27 Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990)). For instance, the All Writs Act, 28 1 litigation histories. Id. A pre-filing order, however, “should be a remedy of last resort.” 2 Id. at 1062 (citations omitted). Under the Constitution, the right to access the courts is 3 fundamental and essential to our democracy. Id. at 1061-1062. Moreover, courts should 4 exercise particular caution before using a pre-filing order against a pro se plaintiff. In re 5 Greenstein, 576 B.R. 139, 186 (Bankr. C.D. Cal. 2017) (citing Pavilonis v. King, 626 F.2d 6 1075, 1079 (1st Cir. 1980) (cited with approval in De Long v. Hennessey, 912 F.2d at 7 1147)). 8 A court imposing pre-filing restrictions must: (i) “give litigants notice and ‘an 9 opportunity to oppose the order before it [is] entered’; (ii) compile an adequate record for 10 appellate review, including ‘a listing of all the cases and motions that led the district court 11 to conclude that a vexatious litigant order was needed’; (iii) make substantive findings of 12 frivolousness or harassment; and (iv) tailor the order narrowly so as ‘to closely fit the 13 specific vice encountered.’” Ringgold-Lockhart v. County of Los Angeles, 761 F.3d at 14 1062 (citing De Long v. Hennessey, 912 F.2d at 1147-1148). Elements one and two are 15 procedural, while elements three and four are substantive. 16 Before imposing a pre-filing order, however, a court must evaluate whether a party 17 is a vexatious litigant and whether a pre-filing order will stop the vexatious litigation or if 18 other sanctions are adequate. Id. (citing Molski v. Evergreen Dynasty Corp., 500 F.3d 19 1047, 1058 (9th Cir. 2007)). In order to make a finding of frivolousness or harassment by 20 a litigant, courts must evaluate both the number and the content of the filings—either one 21 on its own is insufficient: 22 “While we have not established a numerical definition for frivolousness, we have said that even if a litigant’s petition is 23 frivolous, the court must make a finding that the number of complaints was inordinate. Litigiousness alone is not enough 24 either: The plaintiff’s claims must not only be numerous, but also be patently without merit.” 25 Id. at 1064 (internal quotations and citations omitted). 26 27 1 Additionally, the Ninth Circuit stated in Ringgold-Lockhart that courts should 2 consider five substantive factors when analyzing the two substantive elements and 3 determining whether a party is a “vexatious litigant”: 4 i. “the litigant's history of litigation and in particular whether it entailed 5 vexatious, harassing or duplicative lawsuits; 6 ii. the litigant's motive in pursuing the litigation, e.g., does the litigant have an 7 objective good faith expectation of prevailing?; 8 iii. whether the litigant is represented by counsel; 9 iv. whether the litigant has caused needless expense to other parties or has 10 posed an unnecessary burden on the courts and their personnel; and 11 v. whether other sanctions would be adequate to protect the courts and other 12 parties.” 13 Id. 14 Although the Trustee provided an adequate summary of the procedural history of 15 the case in the Motion, his analysis fails to support a finding that a pre-filing order is 16 appropriate at this time. 17 The court finds that the first element, Debtor’s history of litigation, weighs 18 marginally in favor of Debtor. The Trustee identifies specific pleadings that he 19 characterizes as duplicative or filed in bad faith, including: 20 (i) the Motion to Alter, or Amend the Judgment, or Request for New Trial 21 regarding Debtor's homestead and tools of the trade exemption (Docket No. 22 364) and the turnover order (Docket No. 19 in Adv. No. 2:16-ap-01037), 23 Docket No. 388 filed in the Bankruptcy Case, and Trustee's opposition 24 thereto (Docket Nos. 389 and 390); 25 (ii) Debtor's Motion to Alter, or Amend the Judgment, or Request for New Trial 26 on revocation of discharge and to amend the findings of fact and 27 conclusions of law regarding same (Docket No. 123, Adv. No. 2:16-ap- 1 01037-RK), Docket No. 137, Adv. No. 2:16-ap-01037-RK, and Trustee's 2 Opposition thereto (Docket Nos. 139 and 140, Adv. No. 2:16-ap-01037-RK); 3 (iii) Debtor's Motion for Trustee to Protect Debtor's Interest (Docket No. 47, 4 Adv. No. 2:16-ap-01037-RK), Adv. No. 2:18-ap-01371-RK, and Trustee's 5 Opposition thereto (Docket Nos. 49 and 50, Adv. No. 2:18-ap-01371-RK); 6 (iv) Amended Schedules (Docket No. 393), filed on May 21, 2019 by the Debtor 7 in the bankruptcy case; 8 (v) Debtor’s complaints in Adv. Nos. 2:16-ap-01037-RK and 2:19-ap-01126- 9 RK; and, 10 (vi) Debtor’s amended complaint in Adv. No. 2:18-ap-01371-RK. 11 Motion at 9-10. 12 The Trustee argues that the three adversary proceedings and additional pleadings 13 in the bankruptcy case were filed in bad faith to harass the Trustee. The court agrees 14 that Debtor’s arguments have at times been repetitive, however, the Motion does not 15 adequately demonstrate that the number and content of Debtor’s pleadings indicate 16 harassment or frivolousness. 17 Judge Barash’s opinion in In re Greenstein is apt here. In that case, Debtor was 18 “proceeding pro se to remedy what she believe[d] was the wrongful foreclosure of her 19 home. . . .” 576 B.R. at 187. In multiple proceedings Debtor in In re Greenstein alleged 20 that her home was sold in the bankruptcy due to fraud, but she was unsuccessful in 21 obtaining relief. Id. The court noted that her duplicative and futile pleadings did “not 22 mean that her commencement of [the] proceedings [had] been abusive. The court 23 [found] that she [had] been aggressively pursuing her rights, and at times [had] been 24 misguided in her efforts, but the Court [was] not prepared to conclude that her conduct 25 towards [the moving party had] been vexatious.” Id. at 187-188. The Debtor in In re 26 Greenstein started with motions seeking relief from an In Rem Order, which were denied. 27 Id. at 188. Debtor also commenced multiple adversary proceedings “seeking the same 1 of conduct was by no means efficient. But it [did] not appear to the court to be a pattern of 2 abuse.” Id. 3 Similarly, in this case, the court is not persuaded at this time that Debtor’s motions 4 and adversary complaints are sufficient to constitute a series of “frivolous” or “harassing” 5 proceedings. Debtor’s various motions for reconsideration have been both denied and 6 granted. Compare “Order Denying Debtor’s Motions for Reconsideration of Turnover of 7 Commissions Order Due to New Facts in this Case,” ECF 365, No. 2:15-bk-25283-RK, 8 with “Order Granting Debtor’s Motion for Reconsideration of Orders on Debtor’s Claims of 9 ‘Tools of the Trade’ and Homestead Exemption, Vacating Hearing and Setting Briefing 10 Schedule,” ECF 213, No. 2:15-bk-25283-RK. Those motions and others in these 11 proceedings have been numerous, but like the court in In re Greenstein, on this record 12 the court would characterize Debtor’s conduct as aggressive and misguided rather than 13 vexatious at this time. In re Greenstein, 576 B.R. at 187. Courts in the Ninth Circuit 14 evaluate a pro se party’s briefing and compliance with technical rules with “great 15 leniency.” Tillman v. Danielson (In re Tillman), 2008 Bankr. LEXIS 4685, 2008 WL 16 8462961 at *2 (9th Cir. BAP 2008) (citing Horphag Research Ltd. v. Garcia, 475 F.3d 17 1029, 1034 (9th Cir.2006); Draper v. Coombs, 792 F.2d 915, 924 (9th Cir.1986)). The 18 court has presided over all of Debtor’s proceedings patiently and ruled impartially and 19 with great latitude to him as a self-represented litigant. The court cautions Debtor that 20 the court would likely be inclined to find sanctionable the filing of any further duplicative 21 pleadings. 22 The court finds that the second element, Debtor’s motive in pursuing the litigation, 23 weighs in favor of Debtor. The Motion provides insufficient evidence that Debtor is 24 proceeding in bad faith. As discussed supra, the court affords a certain degree of latitude 25 to pro se debtors. Here, Debtor has brought his case with considerable effort and 26 attention, notwithstanding the burden the case has placed on the Trustee and the court. 27 On its face, the Motion does not adequately plead that Debtor does not objectively have a 1 Third, as previously discussed, the Debtor is representing himself. This element 2 weighs in favor of Debtor. 3 The court finds that the fourth element, whether Debtor has caused unnecessary 4 expenses and posed a burden on other parties and the court, weighs only slightly in favor 5 of Debtor. The court recognizes that these proceedings have imposed a burden on the 6 Trustee and the court, but a prefiling injunction is not justified at this time. “[E]very 7 person is entitled to his day in court, but no more. The administration of justice requires 8 that there be finality to the judicial process.” Bullen v. DeBretteville, 239 F.2d 824, 829 9 (9th Cir. 1956), overruled on other grounds by, Lacy v. Maricopa County, 693 F.3d 896 10 (9th Cir. 2012). But for Debtor recently filing appeals—instead of further duplicative 11 actions before this court—the pre-filing order determination would very likely weigh in the 12 Trustee’s favor. Debtor is entitled to his day in court, and he has had that day and more. 13 Finally, pursuant to the fifth element under Ringgold-Lockhart v. County of Los 14 Angeles, if Debtor commences any additional proceeding in this court asserting the same 15 claims or defenses that have already been adjudicated, the Trustee may seek dismissal 16 of the matter by res judicata and the court may reconsider an awarding of sanctions. 17 For the foregoing reasons, the court determines that a prefiling injunction is not 18 appropriate at this time and denies the Trustee’s request. 19 h) Order Debtor to pay attorney fees and costs of not less than $15,000 to 20 Trustee’s counsel and co-counsel as sanctions for causing Trustee to 21 respond to Debtor’s bad faith filings. 22 Because the court is not imposing sanctions under Rule 9011, the court denies the 23 Trustee’s request for attorneys’ fees and costs. Markus v. Gschwend (In re Markus), 313 24 F.3d 1146, 1151 (9th Cir. 2002) (“It is clear that attorneys’ fees and expenses incurred as 25 a result of violating Bankruptcy Rule 9011 can be shifted only at the motion of one of the 26 parties, and only after the rule-offending party has been given the benefit of the Rule’s 27 21-day safe harbor[;]” citing Barber v. Miller, 146 F.3d at 710-711). 1 C. Debtor is Cautioned that the Court has Authority to Reconsider the Issue of 2 Vexatious Litigant Relief and Impose Sanctions on its Own Initiative 3 Pursuant to Rule 9011(c)(1)(B) 4 Pursuant to Rule 9011, a court may award appropriate sanctions on its own 5 || motion, if it first issues an order to show cause describing the specific misconduct. Fed. 6 || R. Bankr. P. 9011(c)(1)(B). The court reminds Debtor that the court may reconsider the 7 || sanctions issue should additional repetitive pleadings or otherwise harassing conduct 8 || occur in these proceedings. 10 ### 11 12 13 14 15 16 17 18 19 20 21

23 Date: October 15, 2019 24 Robert Kwan United States Bankruptcy Judge 25 26 27 28