Guerra v. Jaramillo

Opinion

FILED NOT FOR PUBLICATION MAR 20 2014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,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. v.

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).

2 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

3 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.