In re: H Granados Communications, Inc.

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: December 24, 2013
• Docket: CC-13-1145-TaDKi
• Status: Published

Opinion

FILED 1 ORDERED PUBLISHED DEC 24 2013 SUSAN M. SPRAUL, CLERK 2 U.S. BKCY. APP. PANEL O F TH E N IN TH C IR C U IT 3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 6 In re: ) BAP No. CC-13-1145-TaDKi ) 7 H GRANADOS COMMUNICATIONS, ) Bk. No. 1:12-bk-10197-AA INC., ) 8 ) Debtor. ) 9 ______________________________) ) 10 REDIGER INVESTMENT ) CORPORATION; DURINGER LAW ) 11 GROUP, PLC, ) ) 12 Appellants, ) ) 13 v. ) O P I N I O N ) 14 H GRANADOS COMMUNICATIONS, ) INC. ) 15 ) Appellee. ) 16 ) 17 Argued and Submitted on November 21, 2013 at Pasadena, California 18 Filed – December 24, 2013 19 Appeal from the United States Bankruptcy Court 20 for the Central District of California 21 Honorable Alan M. Ahart, Bankruptcy Judge, Presiding 22 23 Appearances: Edward L. Laird, II of Duringer Law Group, PLC argued for appellants Rediger Investment 24 Corporation and Duringer Law Group, PLC; Elaine V. Nguyen of Weintraub & Selth, APC argued for 25 appellee H. Granados Communications, Inc. 26 27 Before: TAYLOR, DUNN, and KIRSCHER, Bankruptcy Judges. 28 1 TAYLOR, Bankruptcy Judge: 2 3 The bankruptcy court held appellants Rediger Investment 4 Corporation (“Rediger”) and its counsel, the Duringer Law Group, 5 PLC (“Duringer Firm” and, jointly, the “Appellants”) in civil 6 contempt under 11 U.S.C. § 105(a)1 for violation of the 7 automatic stay. As a result, it awarded sanctions against the 8 Appellants, jointly and severally, in the amount of $23,072.09. 9 Rediger and the Duringer Firm appeal. We AFFIRM. 10 FACTS 11 The Duringer Firm, representing Rediger, commenced an 12 unlawful detainer action in state court (“State Court Action”) 13 against H Granados Communications, Inc. (“Debtor”) and its 14 president, Henry Granados. Four months later, the Debtor filed 15 for bankruptcy relief under chapter 11. It listed Rediger on 16 its Schedule F, its List of Creditors Holding 20 Largest 17 Unsecured Claims, and its creditor mailing matrix.2 As a 18 result, Rediger promptly received notice (“Notice of 19 Bankruptcy”) of the bankruptcy case (the “Bankruptcy”). At an 20 early point in the Bankruptcy, the Debtor obtained an order 21 limiting notice of most events in the chapter 11 case to, among 22 1 Unless otherwise indicated, all chapter and section 23 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532. 24 All “Rule” references are to the Federal Rules of Bankruptcy Procedure and all “Civil Rule” references are to the Federal 25 Rules of Civil Procedure. 26 2 We exercise our discretion to take judicial notice of 27 documents filed in the bankruptcy case. See O’Rourke v. Seaboard Sur. Co. (In re E.R. Fegert, Inc.), 887 F.2d 955, 28 957-58 (9th Cir. 1989).

2 1 others, the 20 largest unsecured creditors; this included 2 Rediger. Thus, Rediger received notices throughout the 3 Bankruptcy. 4 It also appears that the Debtor filed the Notice of 5 Bankruptcy in the State Court Action on or about the petition 6 date of January 8, 2012. The record includes a copy of the 7 Notice of Bankruptcy bearing a stamp of the Executive 8 Officer/Clerk for the Superior Court of California, County of 9 Los Angeles, dated January 8, 2012. ECF No. 226, Ex. G at 29. 10 The record also contains a copy of the case summary in the State 11 Court Action as of January 23, 2013, which includes an entry 12 dated January 8, 2012 and states “Notice of Bankruptcy Filed.” 13 ECF No. 242, Ex. J at 70. Debtor’s counsel submitted these 14 documents, and there is no evidence that the Duringer Firm 15 objected to submission of the documents as evidence. In fact, 16 and as discussed further below, the Duringer Firm conceded the 17 veracity of these documents at oral argument. 18 Despite this notice, the Duringer Firm (on behalf of 19 Rediger) continued to prosecute the State Court Action against 20 the Debtor during the first three-quarters of 2012: it obtained 21 a default judgment against the Debtor and Mr. Granados, filed a 22 declaration of accrued interest, and eventually obtained a writ 23 of execution. 24 Debtor’s bankruptcy counsel apparently was oblivious to the 25 events occurring in the State Court Action;3 but eventually, on 26 27 3 It is unclear from the record who represented the Debtor 28 in the State Court Action.

3 1 November 1, 2012, she personally filed a notice of stay of 2 proceedings (“Notice of Stay”) in the State Court Action and 3 served the same on both Rediger and the Duringer Firm. As a 4 result, there is no dispute that as of November 2, 2012, both 5 Rediger and the Duringer Firm knew that the Bankruptcy existed. 6 One month later, the Los Angeles County Sheriff levied on 7 the Debtor’s DIP bank account at City National Bank (“Bank”), 8 which deprived the Debtor of the use of $27,941.26. In 9 response, Debtor’s counsel wrote to the Sheriff and the Bank, 10 advising of the pending Bankruptcy and demanding a release of 11 the levy. Debtor’s counsel also sent this letter to the 12 Duringer Firm, underscoring the bankruptcy notices previously 13 provided to the Appellants. 14 This letter initiated a series of communications between 15 Debtor’s counsel and the Duringer Firm. It appears, in 16 particular, that the latter was attempting to obtain 17 verification of the exact party in bankruptcy; that is, whether 18 it was the Debtor or Mr. Granados or both. The volley of 19 communications went on for over a month. 20 At the end of December 2012, the Debtor moved for an order 21 to show cause why the Appellants should not be found in contempt 22 for willfully violating the automatic stay. The bankruptcy 23 court issued an order to show cause and identified five events 24 as possible stay violations: (1) filing a request for entry of 25 default judgment and supporting declaration in the State Court 26 Action; (2) obtaining entry of default judgment; (3) filing a 27 declaration of accrued interest and obtaining a writ of 28 execution; (4) causing the Los Angeles County Sheriff to serve a

4 1 levy on the Debtor’s DIP bank account at the Bank; and 2 (5) refusing to release the levied funds despite repeated 3 requests by Debtor’s counsel. 4 During this time, the Debtor also actively worked to remedy 5 (or limit the effects of) the stay violations with respect to 6 both the State Court Action and levied funds. On January 15, 7 2013, the levy of funds finally was released and credited to the 8 Debtor’s DIP bank account. One week later, the state court 9 vacated the previously entered default judgment. 10 The bankruptcy court heard the OSC and found that both 11 Rediger and the Duringer Firm willfully violated the stay. It, 12 therefore, held them in civil contempt under § 105(a), awarded 13 compensatory damages, and instructed the Debtor to file 14 declaratory evidence of the fees and costs incurred as a result 15 of the stay violations. The Debtor submitted a memorandum 16 (“Damages Memorandum”), along with the declarations of its 17 counsel and an employee, detailing the costs and expenses 18 incurred by counsel and employees in connection with the stay 19 violations. The bankruptcy court entered its order holding the 20 Appellants in civil contempt (“Contempt Order”) on February 19, 21 2013. 22 At a continued hearing on the sanctions issue, the 23 bankruptcy court, relying on its tentative ruling, awarded the 24 compensatory sanctions for costs incurred as a result of the 25 stay violations. These included attorneys’ fees for review of 26 the Appellants’ opposition to the Damages Memorandum and 27 appearance at the sanctions hearing. The bankruptcy court 28 thereafter entered an order awarding sanctions against the

5 1 Appellants, jointly and severally, in the amount of $23,072.09 2 (“Sanctions Award”). 3 The Appellants timely appealed. 4 JURISDICTION 5 The bankruptcy court had jurisdiction under 28 U.S.C. 6 §§ 1334 and 157(b). We have jurisdiction over this appeal 7 pursuant to 28 U.S.C. § 158. 8 ISSUES 9 Did the bankruptcy court abuse its discretion in: 10 (1) finding that the Appellants wilfully violated the automatic 11 stay and, thus, holding them in civil contempt; or (2) awarding 12 sanctions against them in connection with the civil contempt 13 determination? 14 STANDARDS OF REVIEW 15 We review the decision to impose contempt and an award of 16 sanctions for an abuse of discretion. See Knupfer v. Lindblade 17 (In re Dyer), 322 F.3d 1178, 1191 (9th Cir. 2003) (civil 18 contempt); Rosales v. Wallace (In re Wallace), 490 B.R. 898, 19 904-05 (9th Cir. BAP 2013) (sanctions award for civil contempt). 20 The underlying factual findings are reviewed for clear error. 21 In re Dyer, 322 F.3d at 1191. 22 Abuse of discretion is a two-prong test; first, we 23 determine de novo whether the bankruptcy court identified the 24 correct legal rule for application. See United States v. 25 Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc). If 26 not, then the bankruptcy court necessarily abused its 27 discretion. See id. at 1262. Otherwise, we next review whether 28 the bankruptcy court’s application of the correct legal rule was

6 1 clearly erroneous; we will affirm unless its findings were 2 illogical, implausible, or without support in inferences that 3 may be drawn from the facts in the record. See id. 4 DISCUSSION 5 A. Preliminary Issues 6 1. The Appellants’ request for judicial notice is denied. 7 The Appellants move for this Panel’s judicial notice, 8 pursuant to Federal Rule of Evidence 201, of the following 9 documents in the State Court Action: (1) the state court 10 complaint; and (2) a judgment and writ of possession entered on 11 September 22, 2011. We reviewed the documents and deny the 12 motion for judicial notice as the documents do not enhance our 13 review or otherwise lend assistance in the present appeal. 14 2. The scope of appeal includes the Contempt Order. 15 The Debtor argues that appeal of the Contempt Order is 16 untimely. It contends that Appellants filed the Notice of 17 Appeal more than 14 days after entry of the Contempt Order and 18 also failed to designate the Contempt Order therein. 19 The Contempt Order was an interlocutory order that became 20 final and appealable once the bankruptcy court awarded 21 sanctions. See Weyerhaeuser Co. v. Int’l Longshoremen’s & 22 Warehousemen’s Union, 733 F.2d 645, 645 (9th Cir. 1984); see 23 also Donovan v. Mazzola, 761 F.2d 1411, 1417 (9th Cir. 1985). 24 Upon entry of the Sanctions Award, the Contempt Order merged 25 into the earlier order. Thus, the Contempt Order is also 26 subject to this appeal. See Am. Ironworks & Erectors, Inc. v. 27 N. Am. Const. Corp., 248 F.3d 892, 897-98 (9th Cir. 2001). 28 ///

7 1 B. The Bankruptcy Court Did Not Err in Entering the Contempt 2 Order. 3 1. The record is sufficient to review the issues on 4 appeal. 5 A motion for contempt is a contested matter and, 6 consequently, subject to Rule 9014. In turn, in a contested 7 matter, the bankruptcy court must render findings of fact and 8 conclusions of law as required by Civil Rule 52(a) (incorporated 9 by Rules 7052 and 9014(c)). 10 Here, the bankruptcy court made no express findings in 11 connection with the Contempt Order, but did adopt a tentative 12 ruling. The tentative, however, merely states that the 13 bankruptcy court intended to grant the Debtor’s request for 14 civil contempt; it contains no factual discussion or legal 15 analysis. Thus, the tentative is not a substitute for the 16 findings required by Rule 9014(c). 17 Where the bankruptcy court rules without articulating its 18 findings, however, there is no reversible error where the record 19 provides the reviewing court with a full, complete, and clear 20 view of the issues on appeal. First Yorkshire Holdings, Inc. v. 21 Pacifica L 22, LLC (In re First Yorkshire Holdings, Inc.), 470 22 B.R. 864, 871 (9th Cir. BAP 2012) (citation omitted). Review of 23 the record suffices when it contains clear references to the 24 factual basis supporting the bankruptcy court’s ultimate 25 conclusions. Id. Here, the record as a whole provides us with 26 a full, complete, and clear view of the issues on appeal. 27 Therefore, we turn to review of the Contempt Order. 28 ///

8 1 2. The Appellants wilfully violated the automatic stay. 2 Section 362(k) permits the recovery of damages resulting 3 from a stay violation. This subsection, however, applies only 4 to individuals, which, as relevant here, excludes corporations. 5 See Johnston Envtl. Corp. v. Knight (In re Goodman), 991 F.2d 6 613, 619 (9th Cir. 1993) (discussing former § 362(h)). 7 Nonetheless, a corporation may be entitled to recovery for a 8 stay violation under § 105(a) as a sanction for civil contempt. 9 See id. at 620; In re Dyer, 322 F.3d at 1191 (for civil contempt 10 purposes, the automatic stay under § 362 “qualifies as a 11 specific and definite court order.”). 12 To find a party in civil contempt for a stay violation, the 13 threshold inquiry turns on a finding of “willfulness.” Id. at 14 1191. The bankruptcy court must find that: (1) the party knew 15 of the automatic stay; and (2) the party’s actions that violated 16 the stay were intentional. Id. Thus, it is irrelevant whether 17 the party exhibited bad faith or had a subjective intent to 18 violate the stay. Id. The movant bears the burden of showing 19 by clear and convincing evidence that the party violated the 20 stay. See id. 21 In its opening brief, the Duringer Firm contends that it 22 was unaware of the Bankruptcy until Debtor’s counsel served it 23 with the Notice of Stay on November 2, 2012. The law firm does 24 not expressly contest that Rediger, its client, was aware of the 25 Bankruptcy; in fact, the law firm conceded as much at the 26 sanctions hearing. 27 At oral argument, however, the Appellants expressly 28 conceded a willful violation of the automatic stay. In

9 1 particular, the Duringer Firm, in substance, conceded that the 2 Notice of Bankruptcy was filed in the State Court Action at the 3 commencement of the Bankruptcy. The law firm subsequently 4 conceded that the stay was willfully violated. This is 5 sufficient to affirm a “willfulness” finding under § 105(a), and 6 our review of the bankruptcy court’s finding of civil contempt 7 for a stay violation need not go any farther. 8 Even so, the record supports the bankruptcy court’s 9 determination of “wilfulness.” First, as previously stated, the 10 record contains two documents showing that the Notice of 11 Bankruptcy was filed in the State Court Action on or about the 12 date of the bankruptcy petition. The Appellants neither 13 contested this below or on appeal; the Duringer Firm, instead, 14 conceded the veracity of the documents at oral argument. This 15 establishes that the Appellants were cognizant of the Bankruptcy 16 – and, more importantly, aware of the automatic stay – in 17 January of 2012. 18 In addition, the record further supports that the 19 Appellants were otherwise made aware of the Bankruptcy and the 20 automatic stay long before the OSC issued. As to Rediger, the 21 record shows that it was served with the Notice of Bankruptcy at 22 the end of January 2012. And, as one of the Debtor’s largest 20 23 creditors, Rediger continued thereafter to receive notices of 24 the Debtor’s filings. Rediger, thus, was, charged with notice 25 of the stay shortly after the case was filed. 26 As to the Duringer Firm, even if we accept that it was 27 unaware of the Bankruptcy until November 2012 – which we do not 28 – the record is clear that Debtor’s counsel served the law firm

10 1 with the Notice of Stay on November 2, 2012. The law firm, 2 thus, clearly had notice of the Bankruptcy as of that date. 3 In sum, the record provides alternative evidence supporting 4 that the Appellants were aware of the Bankruptcy and, thus, 5 charged with knowledge of the automatic stay at various points 6 during the Bankruptcy; this satisfies the first prong of the 7 “willfulness” standard under Dyer. 8 The second prong requires that the actions taken in 9 violation of the stay were intentional. The record affirms that 10 the Duringer Firm, on behalf of its client Rediger, pursued 11 relief in the State Court Action that violated the stay: namely, 12 moving for and then obtaining a default judgment; filing a 13 declaration of accrued interest; obtaining a writ of execution; 14 and causing the Los Angeles County Sheriff to levy on the 15 Debtor’s DIP bank account. The Duringer Firm also failed to 16 take affirmative action to undo the effects of stay violative 17 action after receiving the November 2, 2012 notice; it did not 18 vacate, and it did not cancel, the default judgment. True, 19 there was limited confusion as Debtor’s counsel initially 20 checked a box indicating that both defendants, not just the 21 Debtor, were in bankruptcy. But this over-inclusion of parties, 22 if anything, required a cessation of the entire State Court 23 Action until further clarification - instead, it stopped 24 nothing. 25 These instances are each and independently an intentional 26 stay violation. These were not accidental or inadvertent 27 actions by the Duringer Firm. Thus, the second prong of the 28 Dyer standard is satisfied.

11 1 This record clearly supported a determination of 2 “willfulness.” The Duringer Firm’s admission at oral argument 3 further supports that the bankruptcy court did not abuse its 4 discretion in holding the Appellants in civil contempt for 5 violation of the automatic stay. 6 C. The Bankruptcy Court Did Not Err in Entering the Sanctions 7 Award. 8 It appears that the Appellants advance three main arguments 9 against the Sanctions Award: (1) that under Sternberg v. 10 Johnston, 595 F.3d 937 (9th Cir. 2010), damages for a stay 11 violation under § 105(a) are limited to efforts to enforce the 12 stay or remedy a violation, but do not include costs incurred in 13 pursuing sanctions; (2) that in order for Debtor to recover 14 damages, the Appellants’ actions must have interfered with the 15 Debtor’s reorganization efforts; and (3) that the charges 16 awarded are beyond the scope authorized by Ninth Circuit and 17 U.S. Supreme Court authority and otherwise are unreasonable. We 18 address these arguments in turn. 19 1. Stay violation damages appropriately include 20 attorneys’ fees incurred after the Appellants remedied 21 the stay violations. 22 In the Ninth Circuit, a debtor’s recovery of attorneys’ 23 fees under § 362(k) is limited to fees and costs incurred in 24 enforcing and remedying the stay violation; it does not include 25 fees and costs incurred in pursuing damages for the stay 26 violation. Sternberg, 595 F.3d at 947. Sternberg, however, 27 does not control here because the Debtor is not an individual 28 and, thus, as a matter of law, § 362(k) is inapplicable.

12 1 Moreover, Sternberg does not limit the recovery of fees and 2 costs to § 362(k); instead, a debtor’s recovery of damages is 3 also available under § 105(a). This is confirmed in the 4 decision itself, which provides that the basis for the decision 5 was the statutory language of § 362(k), not the bankruptcy 6 court’s civil contempt authority under § 105(a). See id. at 946 7 n.3 (“As this opinion does not consider the civil contempt 8 authority of the court, it does not limit the availability of 9 contempt sanctions, including attorney fees, for violation of 10 the automatic stay, where otherwise appropriate.”). 11 There is no clear authority in our circuit that expressly 12 limits the recovery of fees under § 105(a) solely to those 13 incurred in enforcing and remedying a stay violation. Indeed, 14 analogous case authority involving § 105(a) sanctions suggests a 15 result to the contrary. In the context of a willful violation 16 of the discharge injunction, the bankruptcy court may award 17 actual damages and attorneys’ fees to the debtor as a civil 18 contempt sanction. See Walls v. Wells Fargo Bank, N.A., 276 19 F.3d 502, 507 (9th Cir. 2002) (“[C]ompensatory civil contempt 20 allows an aggrieved debtor to obtain compensatory damages, 21 attorneys fees, and the offending creditor’s compliance with the 22 discharge injunction.”); Nash v. Clark Cnty. Dist. Attorney’s 23 Office (In re Nash), 464 B.R. 874, 880 (9th Cir. BAP 2012) 24 (bankruptcy court may award actual damages, punitive damages, 25 and attorneys’ fees as a civil contempt sanction for a willful 26 violation of the discharge injunction); see also Espinosa v. 27 United Student Aid Funds, Inc., 553 F.3d 1193, 1205 n.7 (9th 28 Cir. 2008), aff’d, 559 U.S. 260 (2010) (same). While not

13 1 identical transgressions, a stay violation under § 105(a) is 2 analogous to a discharge injunction violation; both implicate 3 offenses to prophylactic injunctions exclusively available under 4 the Bankruptcy Code. 5 Further, unlike a damages award under § 362(k), an award of 6 attorneys’ fees and costs under § 105(a) does not arise in “an 7 ordinary damages action.” See Sternberg, 595 F.3d at 948. The 8 text of § 105(a) does not provide for or otherwise reference the 9 term “damages.” Instead, civil contempt under § 105(a) enables 10 the bankruptcy court to remedy a violation of a specific order. 11 See In re Dyer, 322 F.3d at 1196. Thus, the “American Rule” on 12 attorneys’ fees is inapplicable in a § 105(a) context. See In 13 re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 941 (9th 14 Cir. 2011) (exception to the American Rule exists where a party 15 violates a court order). 16 Based on the foregoing, we hold that a damages award under 17 § 105(a) for a willful stay violation may appropriately include 18 attorneys’ fees and costs incurred in pursuing damages for the 19 violation. 20 2. Whether a creditor’s stay violation interferes with a 21 chapter 11 debtor’s reorganization efforts is 22 irrelevant to calculating damages. 23 The Appellants next argue that in order to recover damages 24 for a stay violation, a debtor must show that the creditor’s 25 actions interfered with the debtor’s reorganization efforts. In 26 support of this proposition, they cite In re Orient River Invs., 27 Inc., 105 B.R. 790 (Bankr. E.D. Pa. 1989); Matter of Lehan 28 Bros., Inc., 29 B.R. 553 (Bankr. M.D. Fla. 1983); and In re

14 1 Augustino Enters., Inc., 13 B.R. 210 (Bankr. D. Mass. 1981). 2 We reject this argument. The case authority cited in 3 support of this proposition is inapposite. None of these cases 4 involved sanctions under § 105(a); instead, they predominantly 5 address damages under the predecessor of § 362(k), which, as 6 previously discussed, does not apply here. The relevant inquiry 7 in calculating damages is whether the Debtor sustained injury as 8 a result of the Appellants’ violative actions; the manner in 9 which it sustained injury is not, in and of itself, dispositive 10 of the inquiry. 11 3. The bankruptcy court did not err in awarding the 12 attorneys’ fees based on the Appellants’ civil 13 contempt. 14 Further, the Appellants contend that certain charges 15 awarded (as designated in an exhibit to their opposition to the 16 Debtor’s Damages Memorandum) exceed the scope of fees permitted 17 under pertinent authority and are otherwise unreasonable. They 18 assert that, at most, Debtor’s counsel may claim $4,534.50 and 19 that, under federal law, this amount is subject to further 20 reduction under the lodestar method. Additionally, they assert 21 that other considerations require further reduction, including 22 Debtor’s counsel’s request for attorneys’ fees for clerical 23 tasks and online research. In conclusion, Appellants argue that 24 $2,500 is a reasonable amount for sanctions based on these 25 considerations, as well as the experience of Debtor’s counsel, 26 the limited skill required to file a motion for a contempt 27 order, and the fact that Debtor could have avoided the whole 28 encounter had its counsel promptly communicated with the

15 1 Duringer Firm. 2 Sanctions for civil contempt must either be compensatory or 3 designed to coerce compliance. See In re Dyer, 322 F.3d at 4 1192. Attorneys’ fees are an appropriate component of civil 5 contempt sanctions. Id. at 1195. This includes reasonable 6 attorneys’ fees incurred in the process of voiding the stay 7 violation. Id. An award of fees incurred in litigating an 8 issue that does not flow from the stay violation, however, is 9 improper. Id. at 1195 & n.19. 10 The record shows that Debtor’s counsel submitted a detailed 11 time summary of fees incurred. These entries reflect legal 12 tasks performed by counsel in connection with the stay violation 13 issues and within the appropriate time frame. 14 The bankruptcy court approved these costs. In doing so, it 15 implicitly determined that the costs were reasonable and 16 supported by evidence. This, in turn, is supported by the 17 bankruptcy court’s statement at the sanctions hearing, providing 18 that it awarded almost but not all of the requested fees and 19 costs. As reflected in the Sanctions Award, it subtracted 20 messenger fees and costs to copy the pleadings filed in the 21 State Court Action. Nor is there anything in the record showing 22 that the Appellants objected to any particular cost or expense 23 with any level of detail or specificity. It, thus, is clear 24 that the bankruptcy court not only reviewed the pertinent 25 documents, but determined that the costs were reasonable and 26 adequately supported. 27 With the exception of application of the lodestar method, 28 the Appellants fail to support any of these arguments with any

16 1 authority. They fail to adequately explain, for example, how 2 this Panel may reduce the amount of fees awarded by substituting 3 its own calculation based on the lodestar method. The 4 Appellants also fail to expressly identify which time entries 5 relate to clerical tasks or other inappropriate functions. 6 Ultimately, they paint with broad strokes, but fail to properly 7 support their arguments within the framework of appellate 8 review. We are not in the business of substituting our own 9 factual determinations for those of the bankruptcy court. 10 At oral argument, the Appellants also argued that the 11 bankruptcy court should have employed a comparative fault system 12 in assessing damages. They argued that the bankruptcy court 13 failed to take into account the Appellants’ actions – and the 14 Debtor’s alleged inaction – in mitigating the damages resulting 15 from the stay violation. First, we need not consider these 16 arguments inasmuch as it does not appear that the Appellants 17 expressly raised these points before the bankruptcy court. 18 Second, this is simply not the standard under § 105(a). 19 The Duringer Firm makes much of its efforts to contact Debtor’s 20 counsel during the final months of 2012 to confirm whether the 21 Debtor filed bankruptcy. Whatever its motive or belief, the law 22 firm’s excuse is irrelevant. Once the Appellants were made 23 aware of the Bankruptcy, the onus was on them to cease all 24 efforts related to the Debtor in the State Court Action without 25 further order from the bankruptcy court and to remedy the impact 26 of existing stay violative actions. See In re Dyer, 322 F.3d at 27 1192 (creditor has an affirmative duty to remedy a stay 28 violation).

17 1 It was not the responsibility of Debtor’s counsel to 2 further confirm the existence of the Bankruptcy with the 3 Duringer Firm. To the extent that the law firm was truly 4 confused, a search in PACER or the bankruptcy court’s CM/ECF 5 system4 would have provided a simple and swift answer. Nothing 6 precluded the law firm from accessing PACER or CM/ECF – like 7 numerous other creditors and law firms do on a daily basis. It 8 is unclear why the law firm insisted on obtaining this 9 information directly from Debtor’s counsel. Instead, it 10 inappropriately disclaimed responsibility for its stay 11 violations, and it failed to take affirmative action to remedy 12 the various stay violations for nearly two months – a violation 13 of the stay in and of itself. Thus, the arguments as to 14 mitigation are largely (or completely) inapposite under these 15 circumstances. 16 In sum, on this record, the bankruptcy court did not err in 17 awarding the fees as compensatory damages. 18 CONCLUSION 19 For the reasons set forth above, we AFFIRM the bankruptcy 20 court. 21 22 23 24 4 25 In fact, our independent review of the website for the Central District of California, see Fed. R. Evid. 201(b)(2) and 26 (c)(1), confirms that links for PACER and CM/ECF exist directly 27 on the actual homepage. See United States Bankruptcy Court for the Central District of California, http://www.cacb.uscourts.gov 28 (last visited on Dec. 24, 2013).