In re: Advanced Biomedical, Inc.

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: December 2, 2016
• Docket: CC-16-1100-DKiF
• Status: Unpublished

Opinion

FILED DEC 02 2016 1 NOT FOR PUBLICATION 2 SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT 3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. CC-16-1100-DKiF ) 6 ADVANCED BIOMEDICAL, INC., ) Bk. No. 14-15938-MW ) 7 Debtor. ) Adv. Proc. No. 14-01275-MW ______________________________) 8 ) ADVANCED BIOMEDICAL, INC., ) 9 ) Appellant, ) 10 ) v. ) M E M O R A N D U M1 11 ) SPECIALTY LABORATORIES, INC., ) 12 ) Appellee. ) 13 ______________________________) 14 Argued and Submitted on November 17, 2016 at Pasadena, California 15 Filed - December 2, 2016 16 Appeal from the United States Bankruptcy Court 17 for the Central District of California 18 Honorable Mark S. Wallace, Bankruptcy Judge, Presiding 19 Appearances: Dixon Leon Gardner argued for Appellant; Timothy 20 Carl Aires of Aires Law Firm argued for Appellee. 21 Before: DUNN,2 KIRSCHER, and FARIS, Bankruptcy Judges. 22 23 24 1 This disposition is not appropriate for publication. 25 Although it may be cited for whatever persuasive value it may have (see Fed. R. App. P. 32.1), it has no precedential value. 26 See 9th Cir. BAP Rule 8024-1. 27 2 Hon. Randall L. Dunn, United States Bankruptcy Judge for 28 the District of Oregon, sitting by designation. 1 Appellant Advanced Biomedical, Inc. (“ABI”) appeals from a 2 bankruptcy court judgment determining that, because ABI’s 3 accounts receivable (“Receivables”) were assigned prepetition to 4 Specialty Laboratories, Inc. (“SLI”), the Receivables were not 5 property of ABI’s chapter 113 bankruptcy estate. 6 We AFFIRM. 7 I. BACKGROUND 8 SLI sued ABI in the Superior Court (“Superior Court”) of the 9 State of California, County of Orange (“State Court Litigation”). 10 The State Court Litigation was resolved on January 10, 2014, by 11 the entry of a stipulated judgment (“State Court Judgment”) in 12 favor of SLI and against ABI in the amount of $227,386.99. On 13 January 15, 2014, SLI filed with the California Secretary of 14 State a Notice of Judgment Lien against ABI. 15 When the State Court Judgment remained unsatisfied, SLI 16 sought and obtained relief in the Superior Court pursuant to Cal. 17 Civ. Proc. Code § 708.510 in the form of an “Assignment Order Re: 18 Rights to Payment of Money Due or to Become Due” (“Assignment 19 Order”). The Assignment Order provides in relevant part: 20 IT IS HEREBY ORDERED that the interest, if any, of . . . [ABI] . . . in its rights to payment of money due 21 or to become due, whether styled accounts receivable, general intangibles, accounts, deposit accounts, 22 royalties, fees, commissions, or otherwise, from its activities as a provider of clinical laboratory 23 services to physicians, clinics, hospitals, and other healthcare providers, whether standing in the name of 24 “Advanced Biomedical Inc.” or “Pathology Laboratory Services,” and from or through any business entity or 25 26 3 Unless specified otherwise, all chapter and section 27 references are to the Bankruptcy Code, 11 U.S.C. §§ 101–1532, and all “Rule” references are to the Federal Rules of Bankruptcy 28 Procedure, Rules 1001–9037.

-2- 1 person [with] which they are affiliated . . . is assigned to [SLI] . . . to the extent necessary to 2 satisfy the judgment entered in this action in full, which as of September 3, 2014, is $242,320.07. 3 4 The Assignment Order was entered in the State Court Litigation on 5 September 25, 2014. 6 On October 1, 2014, ABI filed a voluntary Chapter 11 7 petition. On October 14, 2014, SLI commenced an adversary 8 proceeding by filing a complaint (“Complaint”), amended on 9 January 8, 2015, against ABI. The Complaint sought a 10 determination that the Receivables were not property of ABI’s 11 bankruptcy estate.4 12 Although the record on appeal does not include a copy of 13 ABI’s answer to the Complaint, ABI’s amended trial brief filed on 14 November 6, 2015, asserted the following theories in opposition 15 to the Complaint: 16 - SLI has no right to enforce the Assignment Order. Under 17 this theory, ABI (1) disputes that under Cal. Civ. Proc. Code 18 § 708.510 the Assignment Order constitutes an absolute assignment 19 of the Receivables to SLI; (2) asserts that the Assignment Order 20 is not enforceable because (a) the IRS held a first priority lien 21 in the Receivables at the time the Assignment Order was entered 22 and because the IRS never received notice of the proceedings that 23 resulted in the entry of the Assignment Order; (b) SLI never gave 24 notice of it to “anyone who owes money to [ABI]”; (c) SLI never 25 gave a written demand to ABI to turn over the proceeds of the 26 4 27 As alternative relief, the Complaint sought a determination that SLI was a judgment lien creditor with a 28 security interest in the Receivables.

-3- 1 Receivables; (d) SLI failed to follow proper procedures to 2 enforce the Assignment Order; and (e) SLI’s proof of claim filed 3 in the bankruptcy case admits that the Assignment Order is not 4 part of SLI’s claim. 5 - SLI failed to include debtor’s other secured creditors and 6 obligors in the adversary proceeding with the result that the 7 bankruptcy court cannot decide the priority and extent of SLI’s 8 lien. 9 - Assignment orders against debtors-in-possession are 10 disfavored as a matter of Ninth Circuit law. 11 - SLI filed the adversary proceeding in bad faith. 12 ABI’s post-trial brief filed on November 25, 2015, restated 13 its arguments that under California law, the Assignment Order is 14 ineffective to transfer title of ABI’s Receivables to SLI. 15 The bankruptcy court tried the issues raised in the 16 Complaint on November 20, 2015. Three days after the trial, 17 ABI’s counsel contacted a Bankruptcy Specialist at the Internal 18 Revenue Service (“IRS”). Shortly thereafter, the United States 19 of America, on behalf of its agency, the IRS, moved to intervene 20 in the Adversary Proceeding. The bankruptcy court granted the 21 motion and authorized the IRS to file a post-trial brief to 22 address the issue of whether the Assignment Order was effective 23 where recorded IRS tax liens existed at the time the Assignment 24 Order was entered. ABI joined in the IRS’s post-trial brief, and 25 incorporated into that joinder a “response,” in which ABI for the 26 first time asserted that any levy by SLI against the Receivables 27 under the Assignment Order constituted both a preferential 28 transfer and a violation of the absolute priority rule.

-4- 1 The bankruptcy court entered its Memorandum Decision and 2 Order (“Decision”) on March 22, 2016, in which it determined that 3 the Assignment Order effected an absolute transfer of ABI’s 4 interest in the Receivables to SLI, such that SLI became the 5 owner of the Receivables not later than September 25, 2014. The 6 Decision was followed by entry of judgment in favor of SLI on 7 March 31, 2016. ABI filed a timely Notice of Appeal on April 13, 8 2016. 9 II. JURISDICTION 10 The bankruptcy court had jurisdiction under 28 U.S.C. 11 §§ 1334 and 157(b)(2)(A) and (O). We have jurisdiction under 12 28 U.S.C. § 158. 13 III. ISSUES 14 Whether the bankruptcy court erred when it determined that 15 the Assignment Order, entered pursuant to Cal. Code of Civ. Proc. 16 § 708.510, was an absolute assignment. 17 Whether the bankruptcy court erred when it determined that 18 the Assignment Order was effective to transfer to SLI, 19 prepetition, ABI’s interest in the Receivables, such that the 20 Receivables were not property of ABI’s bankruptcy estate. 21 IV. STANDARDS OF REVIEW 22 We review a bankruptcy court's legal conclusions and 23 application of state law de novo. Circle K Corp. v. Collins 24 (In re Circle K Corp.), 98 F.3d 484, 486 (9th Cir. 1996); Hopkins 25 v. Cerchione (In re Cerchione), 414 B.R. 540, 545 (9th Cir. BAP 26 2009). 27 /// 28 ///

-5- 1 V. DISCUSSION 2 A. The Scope of This Appeal is Limited to Matters Considered by the Bankruptcy Court. 3 4 This panel generally will not consider a claim or issue that 5 was not properly raised in the bankruptcy court. Mano–Y & M, 6 Ltd. v. Field (In re Mortg. Store, Inc.), 773 F.3d 990, 998 (9th 7 Cir. 2014); Hasse v. Rainsdon (In re Pringle), 495 B.R. 447, 453 8 n.2 (9th Cir. BAP 2013). 9 Citing Jovanich v. United States, 813 F.2d 1035, 1037 (9th 10 Cir. 1987), ABI includes in its opening brief arguments that it 11 concedes “were not raised in the pleadings, at trial, and the 12 post-trial” proceedings, asserting that our consideration of 13 those arguments is “needed to prevent a miscarriage of justice 14 and to preserve the integrity of the judicial process.” ABI’s 15 Opening Brief at 11:6-9. However, as stated in Jovanich, the 16 Ninth Circuit has permitted “only narrow and discretionary 17 exceptions to the general rule against considering issues for the 18 first time on appeal.” 813 F.2d at 1037. Specifically, new 19 issues are considered “(1) when review is necessary to prevent a 20 miscarriage of justice or to preserve the integrity of the 21 judicial process, (2) when a change in law raises a new issue 22 while an appeal is pending, and (3) when the issue is purely one 23 of law.” Id. Under more recent case law, the Ninth Circuit 24 recognizes four exceptions which authorize an appellate court to 25 exercise its discretion to reach issues otherwise waived in the 26 trial court: 27 - Exceptional circumstances explain why the issue was not raised in the trial court; 28

-6- 1 - New issues have become relevant while the appeal was pending because of a change in the law; 2 - The issue presented was purely legal and the opposing 3 party will not be prejudiced by the failure to raise the issue in the district court; or 4 - Plain error has occurred and the issue must be 5 addressed to avoid an injustice. 6 See Kaass Law v. Wells Fargo Bank, N.A., 799 F.3d 1290, 1293 (9th 7 Cir. 2015). 8 ABI’s Opening Brief is replete with arguments not presented 9 to the bankruptcy court, including that (1) the Assignment Order 10 violated due process under the 5th and 14th Amendments of the 11 U.S. Constitution, (2) transfer of title to the Receivables to 12 SLI without the IRS’s consent and before its priority tax liens 13 were paid in full constitutes a conversion pursuant to Cal. Civ. 14 Proc. Code § 701.040, and (3) the Assignment Order is avoidable 15 as a preference pursuant to § 547 of the Bankruptcy Code. We 16 decline ABI’s invitation to consider new issues in this appeal. 17 “[W]e will not reframe an appeal to review what would be in 18 effect a different case than the one decided by the [trial] 19 court.” Baccei v. United States, 632 F.3d 1140, 1149 (9th Cir. 20 2011). Further, an issue merely alluded to or raised in passing 21 at the trial court level, such as the preference issue raised in 22 ABI’s joinder to the IRS’s post-trial brief, is not necessarily 23 preserved for appeal. See Conservation NW v. Sherman, 715 F.3d 24 1181, 1188 (9th Cir. 2013). Here, the preference issue was 25 buried in a brief authorized by the bankruptcy court solely on 26 the issue of whether the existence of IRS tax liens precluded the 27 28

-7- 1 Assignment Order from becoming effective as a matter of law.5 2 B. The Receivables Are Not Property of ABI’s Bankruptcy Estate. 3 When ABI filed its bankruptcy petition, all of its legal or 4 equitable interests in property held on that date became property 5 of its bankruptcy estate. See § 541. In this appeal, the 6 ultimate issue is whether the Assignment Order served to divest 7 ABI of title to the Receivables before the bankruptcy case was 8 commenced. The existence and scope of ABI’s interest in the 9 Receivables is determined under California state law. See Butner 10 v. United States, 440 U.S. 48, 54 (1979). 11 1. The Assignment Order Effectively Transferred Title to the Receivables to SLI. 12 13 Cal. Civ. Proc. Code § 708.510 provides the relevant 14 statutory authority for disposition of this appeal: 15 Assignment of right to payments; service of notice; factors considered in ordering assignment; amount 16 assigned 17 (a) Except as otherwise provided by law, upon application of the judgment creditor on noticed motion, 18 the court may order the judgment debtor to assign to the judgment creditor . . . all or part of a right to 19 payment due or to become due, whether or not the right is conditioned on future developments . . . 20 . . . 21 (d) A right to payment may be assigned pursuant to this 22 article only to the extent necessary to satisfy the 23 5 Further, subsequent to filing the instant appeal, ABI 24 commenced an adversary proceeding in the bankruptcy court seeking 25 to avoid the Assignment Order as a preferential transfer. SLI filed a motion to dismiss the complaint, inter alia, because it 26 argues that the preference claim was a compulsory counterclaim in 27 the litigation which resulted in the judgment upon which this appeal is based. The proceedings on these issues are ongoing in 28 the bankruptcy court.

-8- 1 money judgment. 2 . . . 3 (Emphasis added.) 4 The bankruptcy court determined that, on its face, the 5 Assignment Order satisfied all of the requirements and 6 prerequisites of Cal. Civ. Proc. Code § 708.501(a) and (d): 7 The Assignment Order recites that it was issued in response to a noticed motion (“with proof of service 8 having been made”) brought by [SLI]. The [State Court] assigned to [SLI] all rights to payment due or to 9 become due, but only to the extent necessary to satisfy the [State Court Judgment] of $242,320.07. No doubt 10 exists that [SLI] is a “judgment creditor” within the meaning of section 708.510(a). 11 12 Decision at 6:3-7. 13 Further, the bankruptcy court determined that a direct 14 assignment of the Receivables by the Superior Court to SLI did 15 not impact the validity of the assignment, despite the language 16 of Cal. Civ. Proc. Code § 708.501(a), which appears to authorize 17 the Superior Court only to “order the judgment debtor to assign 18 to the judgment creditor.” In reaching this conclusion, the 19 bankruptcy court relied on Weingarten Realty Investors v. Chiang, 20 212 Cal. App. 4th 163 (4th Dist. 2012). As noted by the 21 bankruptcy court, in Weingarten, the California Court of Appeal 22 found no defect in the assignment order before it which directly 23 transferred property to a judgment creditor rather than merely 24 ordering the judgment debtor to transfer the property. 25 We agree that, by its terms, the Assignment Order 26 transferred title to the Receivables to SLI as authorized by Cal. 27 Civ. Proc. Code § 708.510, and that the direct assignment is 28 valid under California law.

-9- 1 However, ABI asserts the Assignment Order was not effective 2 to transfer title based on the language of Cal. Civ. Proc. Code 3 § 708.530, which provides: 4 (a) Except as provided in subdivision (b), the effect and priority of an assignment ordered pursuant to this 5 article is governed by Section 955.1 of the Civil Code. For the purpose of priority, an assignee of a right to 6 payment pursuant to this article shall be deemed to be a bona fide assignee for value under the terms of 7 Section 955.1 of the Civil Code. 8 Cal. Civil Code § 955.1 provides: 9 (a) Except as provided in Sections 954.5 and 955 and subject to subdivisions (b) and (c), a transfer 10 other than one intended to create a security interest pursuant to paragraph (1) or (3) of subdivision (a) of 11 Section 9109 of the Commercial Code, of any payment intangible, as defined in Section 9102 of the 12 Commercial Code, and any transfer of accounts, chattel paper, payment intangibles, or promissory notes 13 excluded from the coverage of Division 9 of the Commercial Code by paragraph (4) of subdivision (d) of 14 Section 9109 of the Commercial Code shall be deemed perfected as against third persons upon there being 15 executed and delivered to the transferee an assignment thereof in writing. 16 (b) As between bona fide assignees of the same right 17 for value without notice, the assignee first giving notice of the right to the obligor in writing has 18 priority. 19 (c) The assignment is not, of itself, notice to the obligor so as to invalidate any payments made by the 20 obligor to the transferor. 21 . . . 22 ABI contends that taken together these two statutes 23 establish that the transfer under the Assignment Order is only 24 “perfected” in the assignee as a creditor, not as an owner. We 25 disagree. An assignee is not a creditor for purposes of these 26 statutes. By its terms, Cal. Civ. Proc. Code § 708.530 provides 27 that SLI is “deemed an assignee for value.” Cal. Civil Code 28 § 955.1 merely establishes SLI’s rights with respect to third

-10- 1 parties. Specifically, by giving notice to an obligor, SLI could 2 obtain priority over subsequent assignees. 3 As further support for its contention that there was no 4 absolute assignment of the Receivables, ABI points out that there 5 was no mechanism in the Assignment Order to assign back to ABI 6 rights to collect the Receivables once the underlying judgment 7 debt had been satisfied. ABI argues that the absence of a 8 reassignment mechanism establishes there was no absolute transfer 9 in the first instance. However, there was no need for the 10 Assignment Order to establish a reassignment mechanism. The 11 existence of Cal. Civ. Proc. Code § 708.560, which provides a 12 statutory mechanism for reassignment, defeats this argument. 13 Cal. Civ. Proc. Code § 708.560 provides: 14 (a) Either the judgment creditor or the judgment debtor may apply to the court on noticed motion for an order 15 to modify or set aside the assignment order. The notice of motion shall be served on the other party. 16 Service shall be made personally or by mail. 17 (b) The court shall make an order modifying or setting aside the assignment order upon a showing that there 18 has been a material change in circumstances since the time of the previous hearing on the assignment order. 19 The court may order a reassignment of the right to payments as necessary. The order shall state whether 20 and to what extent it applies to payments already made. 21 The bankruptcy court did not err when it determined that 22 title to the Receivables was transferred to SLI prepetition. As 23 such, the Receivables did not become property of ABI’s bankruptcy 24 estate. 25 2. The Assignment Order is Not Void. 26 Notwithstanding that the Assignment Order was entered as 27 authorized pursuant to Cal. Civ. Proc. Code § 708.510 and 28 expressly transfers the Receivables to SLI, ABI contends that a

-11- 1 number of “infirmities” nevertheless render the Assignment Order 2 void. In addressing these varied arguments, we begin with the 3 premise that 4 The preclusive effect of a state court judgment in a subsequent federal lawsuit generally is determined by 5 the full faith and credit statute, which provides that state judicial proceedings “shall have the same full 6 faith and credit in every court within the United States . . . as they have by law or usage in the courts 7 of such State . . . from which they are taken.” 28 U.S.C. § 1738. 8 9 Gayden v. Nourbakhsh (In re Nourbakhsh), 67 F.3d 798, 800 (9th 10 Cir. 1995) (internal citations omitted). ABI did not appeal the 11 Assignment Order, so for purposes of the current dispute, it is 12 final. 13 First, ABI asserts that the Assignment Order violates 14 bankruptcy policies and purposes. Specifically, ABI contends 15 that the purpose of bankruptcy is to rehabilitate debtors 16 successfully and to maximize the value of the bankruptcy estate, 17 and that bankruptcy courts are required to preserve a level 18 playing field for all parties. ABI’s argument in this regard 19 suggests that, in determining that the Assignment Order 20 effectively transferred ABI’s interest in the Receivables, the 21 bankruptcy court violated this purpose and has increased rather 22 than minimized litigation in the bankruptcy case because the 23 bankruptcy court’s Decision “forces [ABI] to file an adversary 24 proceeding to recover the Receivables under [§ 547] as a 25 preferential transfer.” Opening Brief at 20:17-18. Nothing in 26 the Bankruptcy Code or case law supports ABI’s contention that, 27 as a matter of policy, a bankruptcy court must determine an order 28 void so that a party does not need to litigate whether that order

-12- 1 is avoidable as a preferential transfer. 2 Second, ABI asserts that the Assignment Order is void 3 because it violates California law. Citing Global Money Mgmt. v. 4 McDonnold, 2009 WL 3352574 *3 (S.D. Cal. Oct. 15, 2009), ABI 5 contends that the Assignment Order is not enforceable. ABI 6 asserts that the California court could not affect title to 7 property in another state even with personal jurisdiction over 8 the property’s owner. ABI asserts that Global Money Mgmt. stands 9 for the proposition that “a California Superior Court has 10 personal jurisdiction over a non-resident defendant who owns 11 property outside of California, because there is no change of 12 title to property under any assignment order issued under [Cal. 13 Civ. Proc. Code] § 708.510.” Opening Brief at 23:18-24:10 14 (emphasis added). By this argument ABI appears to contend that 15 to the extent the Receivables were owed by persons or entities 16 outside of California, the California court had no jurisdiction 17 to assign them to SLI. The error in this argument stems from 18 ABI’s misapprehension of the nature of the Assignment Order. 19 What was assigned to SLI was ABI’s “rights to payment of money 20 due or to become due.” Nothing in the Assignment Order purports 21 to impact the rights of any person or entity obligated to pay. 22 See Cal. Civ. Proc. Code § 708.540 (“The rights of an obligor are 23 not affected by an order assigning the right to payment until 24 notice of the order is received by the obligor. For purposes of 25 this section, ‘obligor’ means the person who is obligated to make 26 payments to the judgment debtor or who may become obligated to 27 make payments to the judgment debtor depending upon future 28 developments.”). Further, as stated by the bankruptcy court,

-13- 1 The mere fact that [the Assignment Order] may not be effective against a particular obligor (or even all 2 obligors) because of lack of notice to them does not alter the effectiveness of the [Assignment Order] 3 against [ABI]. 4 Decision at 10:23-26. We observe, as did the bankruptcy court, 5 that Cal. Civ. Proc. Code § 708.510 contains no condition 6 precedent that obligors receive notice prior to the issuance of 7 the Assignment Order. 8 Third, ABI asserts that the Assignment Order is void because 9 the IRS did not receive notice of the proceedings under Cal. Civ. 10 Proc. Code § 708.510. As stated by the bankruptcy court, 11 “[N]othing in the language of the Assignment Order mentions the 12 IRS or in any way affects or purports to affect the IRS’s 13 rights.” Decision at 9:28-10:1. Nothing in Cal. Civ. Proc. Code 14 § 708.510 requires that lien creditors receive notice prior to 15 the issuance of the Assignment Order. This is not surprising, 16 because an assignee takes property subject to existing liens. 17 Moreover, 26 U.S.C. § 7425 preserves the IRS’s liens in the 18 context of the Assignment Order. 19 Notwithstanding our discussion of ABI’s contentions that the 20 Assignment Order is void, we restate that the Assignment Order is 21 a final order entered in the State Court Litigation that ABI did 22 not appeal. ABI’s challenges to the validity of the Assignment 23 Order therefore constitute nothing more than an impermissible 24 collateral attack on the Assignment Order. 25 3. The Bankruptcy Court’s Judgment is Not Void. 26 ABI asserts that the bankruptcy court’s judgment itself is 27 void, because “bankruptcy law disfavors levies and assignments.” 28

-14- 1 ABI cites to cases6 which hold that a bankruptcy court does not 2 enforce a levy against property of the bankruptcy estate. While 3 true, it is a principle inapplicable in the context of this 4 appeal. There has been no attempt to levy in the bankruptcy 5 court. The Assignment Order was entered before the bankruptcy 6 petition was filed, and the bankruptcy court determined that the 7 Receivables were not property of the bankruptcy estate for the 8 reasons cited above. 9 VI. CONCLUSION 10 The Assignment Order was effective to transfer title to the 11 Receivables to SLI prior to the commencement of the bankruptcy 12 case. Therefore, the Receivables never became property of ABI’s 13 bankruptcy estate. We AFFIRM the judgment of the bankruptcy 14 court. 15 We deny ABI’s request that in the event we affirm the 16 judgment we require the bankruptcy court to consider issues 17 relating to the value of the Receivables, the impact of the IRS’s 18 liens on SLI’s rights in the Receivables, and the impact on SLI’s 19 rights in the Receivables to the extent obligors are not 20 California residents as not properly within the scope of issues 21 before the Panel to decide in this appeal. Such issues may or 22 may not have to be decided by the bankruptcy court in further 23 proceedings in ABI’s bankruptcy case. 24 25 6 Priestly v. Hilliard & Tabor (In re Argonaut Shoe Co.), 26 187 F. 784 (9th Cir. 1911); Grant v. Burns (In re Am. Elec. Tel. 27 Co.), 211 F. 88 (7th Cir. 1914); and NVLAND, Inc. v. Vogel (In re Ocean Downs Racing Ass’n, Inc.), 164 B.R. 249 (Bankr. D. 28 Md. 1993).

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