FILED OCT 4 2019 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT
UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT
In re: BAP No. SC-18-1273-LBKu
JERRY RICHARDSON and ZOE Bk. No. 15-00461-LT13 RICHARDSON,
Debtors.
JERRY RICHARDSON; ZOE RICHARDSON,
Appellants,
v. MEMORANDUM*
PRDO RETAIL INVESTORS, LP; A&C PROPERTIES, INC.,
Appellees.
Argued and Submitted on September 26, 2019 at Pasadena, California
Filed – October 4, 2019
* This disposition is not appropriate for publication. Although it may be cited for whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential value, see 9th Cir. BAP Rule 8024-1. Appeal from the United States Bankruptcy Court for the Southern District of California
Honorable Laura S. Taylor, Bankruptcy Judge, Presiding
Appearances: Julian McMillan argued for Appellants; John Stanton Addams of Niddrie Addams Fuller Singh LLP argued for Appellees.
Before: LAFFERTY, BRAND, and KURTZ, Bankruptcy Judges.
INTRODUCTION
Chapter 131 debtors Jerry and Zoe Richardson were the guarantors of
a lease between their business and Appellee PRDO Retail Investors, LP
(“PRDO”). Postpetition, PRDO, through its property manager, Appellee
A&C Properties, Inc. (“A&C”) caused billing statements for prepetition
amounts owed to be sent to the Richardsons at their home address. Some of
those statements contained additional language that was offensive and
threatening. The Richardsons moved for damages under § 362(k) against
PRDO and A&C and its agent. After an evidentiary hearing, the
bankruptcy court found that it could not determine who had added the
offensive language to the billing statements and thus declined to award
1 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532.
2 any emotional distress or punitive damages. The bankruptcy court,
however, found that an award of attorneys’ fees was appropriate for A&C’s
postpetition acts of sending the billing statements to Mr. Richardson. The
bankruptcy court reduced or disallowed the majority of fees requested,
ultimately awarding just over $20,000 in fees and costs.
Because we conclude that the bankruptcy court did not clearly err in
its findings regarding the addition of the offensive language or abuse its
discretion in determining the amount of damages, we AFFIRM.
FACTUAL BACKGROUND
The Richardsons were the guarantors on a commercial lease of real
property in Oceanside, California, between their business, Richardson
Wilson Enterprises, LLC, dba Hut No. 8, and PRDO. After the business
defaulted and filed a chapter 11 bankruptcy, PRDO sued the Richardsons
in state court and obtained a judgment of approximately $105,000 against
them in July 2014.2
The Richardsons filed a chapter 13 case in January 2015 and
confirmed a plan.3 PRDO was listed on the schedules (care of A&C),
received notice of the case, and actively participated in it. Nevertheless,
during the pendency of the Richardsons’ case, between March and
2 The Richardsons’ partner, another guarantor, was also named as a defendant in the state court lawsuit. He filed a chapter 7 bankruptcy in May 2014. 3 The Richardsons completed their plan and received a discharge in May 2018.
3 November 2015, A&C sent monthly billing statements to the Richardsons’
home address, which was also the address for noticing the business. In
February 2016, the Richardsons’ counsel sent a letter to PRDO and A&C
demanding that they cease collection activity, which they apparently did.
In May 2016, the Richardsons filed a motion for sanctions under
§ 362(k) against PRDO, A&C, and A&C’s property manager, Jennifer
Cameron,4 for violations of the automatic stay. In their motion, the
Richardsons alleged that, postpetition, despite knowledge of the
bankruptcy case, A&C sent seven monthly billing statements to them and
that three of those statements contained threats, inappropriate language
and racial slurs, which they alleged had been added by Ms. Cameron. They
also alleged that Ms. Cameron had called their place of business to demand
that they make their payments to the chapter 13 trustee. The Richardsons
sought an award of damages, including “monetary damages, emotional
distress damages, attorneys’ fees and costs, punitive sanctions, and other
appropriate sanctions . . . .”
PRDO, A&C, and Ms. Cameron (collectively, “Respondents”)
opposed the motion.5 Respondents acknowledged that billing statements
4 Ms. Cameron now goes by the last name of Stumph. For consistency with the bankruptcy court record, she is referred to herein as Ms. Cameron. 5 The Richardsons did not provide a complete record on appeal. We have thus exercised our discretion to review the bankruptcy court’s electronic docket and (continued...)
4 may have been sent inadvertently as part of a batch billing, but they denied
the remaining allegations, asserting that those allegations were
“fraudulent” and that the Richardsons themselves had added the
inappropriate language to the three billing statements. Respondents
provided copies of telephone billing records to support their assertion that
no phone calls had been made to the Richardsons’ business.
At the initial hearing on the matter, the bankruptcy court authorized
the parties to take discovery. It eventually set the matter for an evidentiary
hearing, which took place on September 15 and 18 and October 16, 2017.6
Mr. and Ms. Richardson testified, as did their neighbor, Charlotte Collins,
Ms. Richardson’s son, Christopher Simmons, and Stephen A. Hoover, one
of the Richardsons’ counsel. Ms. Cameron and Joseph C. Cattaneo, A&C’s
owner, also testified.
Ms. Richardson testified that, during the bankruptcy, the couple did
not open the billing statements right away because they had started putting
5 (...continued) pleadings. See O'Rourke v. Seaboard Sur. Co. (In re E.R. Fegert, Inc.), 887 F.2d 955, 957–58 (9th Cir. 1989); Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP 2003). 6 The Richardsons have not provided a copy of the transcript of the October 16, 2017 hearing, at which Mr. Cattaneo was to have concluded his testimony. We are entitled to assume that nothing in that transcript would be helpful to the Richardsons. See Gionis v. Wayne (In re Gionis), 170 B.R. 675, 680-81 (9th Cir. BAP 1994), aff'd, 92 F.3d 1192 (9th Cir. 1996) (table) (When an appellant fails to include the entire record, we are entitled to presume that he does not regard the missing items as helpful to his appeal).
5 all legal correspondence in a box, including correspondence from PRDO,
and they believed that if anything needed attention, their attorney would
contact them. She testified that she eventually did open the March 2015
statement and was upset by it because it contained abusive language.
When she notified her attorney, he told her not to worry about it for the
time being and to focus on getting the chapter 13 plan confirmed. Although
Ms. Richardson assumed that the abusive and racially derogatory language
had been added by Ms. Cameron, she was unaware that Ms. Cameron and
her family members were minorities. She was not as upset by the
November 2015 statement, which contained a threat to take the
Richardsons’ home, because her attorney had told her that PRDO could not
do so.
Ms. Collins testified that she helped manage the Richardsons’
business from March 2015 through July 2016. She testified that during that
time she received phone calls from someone named Jennifer demanding to
speak with Ms. Richardson. She also witnessed the opening of the
November 2015 billing statement and testified that the envelope was sealed
before being opened.
Other witnesses testified as to the opening of the billing statements.
Mr. Simmons witnessed the opening of one of the sealed billing statements
and testified that his mother was distraught when she read it. For his part,
Mr. Richardson had no recollection of receiving any collection calls or
6 being present when any of the envelopes were opened. Mr. Hoover
testified that he opened all but three of the billing statements. He was able
to trace the envelopes back to A&C’s mailing machine and testified that
there was no evidence of tampering. He also testified that he had met with
PRDO’s counsel to determine whether the envelopes could be sealed and
unsealed without damaging them. The envelopes they experimented with
could be reopened, but those envelopes were closed and then reopened
immediately. He noted that when he opened the August 2015 statement, he
could not do so without damaging the envelope.
Ms. Cameron testified that she has 25 years of experience in
commercial real estate, 13 of which were with A&C. She never met
Ms. Richardson but met Mr. Richardson three times. She testified that all
their interactions were cordial. She also testified that once a lease goes into
default, the file is handed over to counsel and she has no further
involvement in sending out billing statements or otherwise contacting the
tenants. When there was a bankruptcy, she would refer the matter to
Mr. Cattaneo. She testified that she had no contact with the Richardsons
after the final walk-through with Mr. Richardson of the leased premises in
the summer of 2014. Ms. Cameron also testified that she knew of no one at
A&C who had animosity toward the Richardsons.
As for the derogatory comments on the billing statements,
Ms. Cameron testified that not only did she have no involvement with
7 generating the billing statements, she would have had no reason to have
written the specific comments. For example, the March 2015 statement
contained the language, “YOU almost cost me my job!!!!” Ms. Cameron
testified that she was never in danger of losing her job as a result of the
lease default. The August 2015 statement contained racial slurs, referring to
illegal Mexican immigrants and African-Americans, but Ms. Cameron is
herself half Mexican-American, is married to a Mexican-American man,
and has African-American and Filipino relatives.
Finally, Mr. Cattaneo testified that no one at A&C added the
derogatory statements, that no one knew the Richardsons’ attorney was
African-American, and that no one at A&C had ever been accused of being
racist.
In January 2018, the bankruptcy court issued an oral ruling. The court
noted that, at trial, the Richardsons had clarified that they were not seeking
damages for the telephone calls. The court found that all of the witnesses
testified credibly, but the Richardsons had failed to meet their burden of
proof to show that Ms. Cameron had violated the stay in any regard.
Specifically, there was no evidence she was directly involved in generating
the billing statements or in adding the derogatory language to those
statements. The court also found that the Richardsons had not shown that
any other representative of PRDO or A&C was responsible for the
offending language. At the same time, the court could not find that the
8 language was added by Ms. Richardson. The bankruptcy court found,
however, that A&C had willfully violated the automatic stay by sending
billing statements to the Richardsons that were addressed in a manner that
made it appear the statements were directed to Mr. Richardson personally.7
Accordingly, the bankruptcy court found that the Richardsons were
entitled to the reasonable attorneys’ fees they incurred in enforcing the
automatic stay, including fees incurred in prosecuting the stay violation.
The court did not find evidence to support an award of either emotional
distress or punitive damages.
The court then continued the matter for the parties to meet and
confer and/or brief the appropriate amount of attorneys’ fees to be
awarded. The parties attempted mediation that was unsuccessful, and,
after a further hearing, submitted supplemental briefing. The Richardsons’
7 The lease provides that notices to the tenant are to be addressed as follows:
[Tenant] [Street Address] Escondido, California [Zip Code] Tele: (760) XXX-XXXX Attn: Jerry Richardson
The notices were addressed to:
Hut No. 8 at Plaza Rancho Del Oro Jerry Richardson [Street Address] Escondido, CA [Zip Code]
9 counsel submitted billing statements for fees incurred during the litigation.
In its “Order Regarding Fees” issued September 21, 2018, the bankruptcy
court disallowed or reduced several categories of fees and ultimately
awarded the Richardsons $20,983.13 in fees and costs to be paid by PRDO
and A&C. The bankruptcy court explicitly declined to award any fees
against Ms. Cameron because she “was not directly implicated other than
as a possible agent of the Landlord in the only area where Debtors were
successful[.]” The Richardsons timely appealed.
JURISDICTION
The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and
157(b)(2)(A). We have jurisdiction under 28 U.S.C. § 158.
ISSUES
Whether the bankruptcy court clearly erred in finding that the
Richardsons failed to meet their burden to show that the offensive
language on the billing statements was added by A&C personnel.
Whether the bankruptcy court abused its discretion in disallowing a
portion of the attorneys’ fees requested.
STANDARDS OF REVIEW
Whether a party has willfully violated the automatic stay is a
question of fact reviewed for clear error. Eskanos & Adler, P.C. v. Leetien, 309
F.3d 1210, 1213 (9th Cir. 2002). Factual findings are clearly erroneous if they
are illogical, implausible, or without support in the record. Retz v. Samson
10 (In re Retz), 606 F.3d 1189, 1196 (9th Cir. 2010). If two views of the evidence
are possible, the court’s choice between them cannot be clearly erroneous.
Anderson v. City of Bessemer City, 470 U.S. 564, 573-75 (1985). “When factual
findings are based on determinations regarding the credibility of witnesses,
we give great deference to the bankruptcy court’s findings, because the
bankruptcy court, as the trier of fact, had the opportunity to note
‘variations in demeanor and tone of voice that bear so heavily on the
listener’s understanding of and belief in what is said.’” In re Retz, 606 F.3d
at 1196 (quoting Anderson, 470 U.S. at 575).
The amount of sanctions imposed for a willful violation of the stay is
reviewed for an abuse of discretion. Eskanos & Adler, P.C. v. Roman (In re
Roman), 283 B.R. 1, 7 (9th Cir. BAP 2002). A bankruptcy court abuses its
discretion if it applies the wrong legal standard, misapplies the correct
legal standard, or makes factual findings that are illogical, implausible, or
without support in inferences that may be drawn from the facts in the
record. See TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 832 (9th Cir.
2011) (citing United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en
banc)).
DISCUSSION
Section 362(k) of the Bankruptcy Code permits an individual debtor
who has been injured by a willful violation of the automatic stay of § 362(a)
to recover “actual damages, including costs and attorneys’ fees, and, in
11 appropriate circumstances, . . . punitive damages.” A stay violation is
willful if a party knew of the automatic stay, and its actions in violation of
the stay were intentional. Eskanos & Adler, 309 F.3d at 1215 (citing Pinkstaff
v. United States (In re Pinkstaff), 974 F.2d 113, 115 (9th Cir. 1992)). That A&C
willfully violated the automatic stay in sending postpetition billing
statements to the Richardsons is not in dispute in this appeal. Nor do the
parties dispute that attorneys’ fees incurred in prosecuting an action for
damages under § 362(k) may be awarded as damages for a willful stay
violation. See America’s Serv. Co. v. Schwartz-Tallard (In re Schwartz-Tallard),
803 F.3d 1095, 1101 (9th Cir. 2015) (en banc).
The Richardsons, however, contend that the bankruptcy court erred
in finding that it could not determine who added the offensive language to
the March, August, and November 2015 billing statements. They also assert
that the bankruptcy court abused its discretion in disallowing or reducing
various categories of attorneys’ fees in calculating the appropriate
sanctions award.
A. The bankruptcy court did not err in finding that the Richardsons did not meet their burden to show that A&C personnel added the offensive language to the billing statements.
The Richardsons contend that the bankruptcy court erred when it did
not find that the comments on the billing statements were added by
someone working for A&C. They point out that the court found the billing
statements were sent by A&C and that there was no evidence that the
12 Richardsons added the offensive language. They argue that this leads to
the conclusion that, even if Ms. Cameron did not add the language, it had
to have been added by someone working for A&C. As such, they contend,
the court should have found PRDO and A&C culpable.
As noted by the bankruptcy court, the Richardsons had the burden to
show by a preponderance of the evidence that PRDO or A&C willfully
violated the stay by adding the offensive language. Johnson v. Smith (In re
Johnson), 501 F.3d 1163, 1169-70 (10th Cir. 2007); In re Paxton, 596 B.R. 686,
694 (Bankr. N.D. Cal. 2019), amended in part on other grounds, No. 12-33036
HLB, 2019 WL 2462797 (Bankr. N.D. Cal. June 12, 2019).8 Accordingly, the
Richardsons needed to show that it was more likely than not that someone
at A&C caused the language to be added. United States v. Arnold & Baker
Farms (In re Arnold and Baker Farms), 177 B.R. 648, 654 (9th Cir. BAP 1994),
aff’d, 85 F.3d 1415 (9th Cir. 1996) (“Proof by the preponderance of the
evidence means that it is sufficient to persuade the finder of fact that the
proposition is more likely true than not.”).
The bankruptcy court concluded, based on the evidence presented,
that the Richardsons had not met their burden to prove it more likely than
8 This burden is less stringent than that required to obtain a contempt finding for a willful stay violation when § 362(k) is not an available remedy. See Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 1190-91 (9th Cir. 2003) (moving party seeking to hold another in contempt has the burden of showing by clear and convincing evidence that the contemnors violated a specific and definite order of the court).
13 not that any agent of PRDO or A&C added the language:
Finding that it’s a 50/50 issue, that’s the reason the Debtor doesn’t prevail. It doesn’t mean that I’m finding Ms. Richardson did it. It’s just that I cannot conclude Ms. Cameron did, and I’m then left with I have no idea who did it. So the Debtor failed to . . . meet that burden, in that particular regard.
Hr’g Tr. (Jan. 12, 2018) at 25:16-22.
As to the deplorable language, I can’t find in favor of the movants. I’m emphasizing, again, I am not finding that the movants fabricated this language. I am not finding that the movants were responsible for this language. I simply cannot find under the theory advanced that A&C Properties did it. ....
So put bluntly, the court can’t tip the balance of probability beyond a 50/50 point. It’s a seesaw that’s entirely balanced with people of equal weight on both sides. You needed to get it to 51 percent, and I just can’t get there under the theories advanced.
Id. at 28:1-6 and 29:1-6.
The Richardsons argue that the bankruptcy court’s findings were
illogical because they ignore the fact that the offensive language was
specific to the situation between the parties, the Richardsons credibly
denied adding the language, and there was no evidence the envelopes had
been tampered with. While these facts suggest that someone at A&C could
have added the language, it falls just short of establishing culpability. And
14 the Richardsons point to no evidence that would tip the balance in their
favor to require a conclusion that someone at A&C added the offensive
language. The Richardsons presented no expert testimony as to whether
the envelopes had been tampered with and did not establish a chain of
custody. As the bankruptcy court noted, it would have had to engage in
“rank speculation” to determine who added the language. In short, the
bankruptcy court did not clearly err in finding that the Richardsons had
not met their burden to show that PRDO or A&C were responsible for
adding the offensive language to the billing statements.
B. The bankruptcy court did not abuse its discretion in disallowing a portion of the attorneys’ fees requested by the Richardsons as a sanction under § 362(k).
Section 362(k) authorizes an award of reasonable attorneys’ fees
incurred in both ending the stay violation and in prosecuting an action for
damages under the statute. In re Schwartz-Tallard, 803 F.3d at 1101. The
Richardsons submitted billing statements showing they incurred $81,820.89
in fees and $2,679.74 in costs for the period January 18, 2016 to January 26,
2018, and $25,937.50 in fees and $2.66 in costs for the period January 29 to
August 17, 2018. As noted, the bankruptcy court awarded fees significantly
less than what was requested, ultimately awarding $20,983.13 in fees and
costs.
The Richardsons object to three categories of reductions made by the
bankruptcy court: the reduction for fees incurred in attempting to prove up
15 the telephone calls, the reduction for fees incurred for communications
among their four co-counsel that were not explained, and the disallowance
of all fees incurred after the bankruptcy court delivered its oral ruling on
January 12, 2018. We will consider each of these categories in turn.
1. Reduction for Fees Incurred in Unsuccessfully Prosecuting Phone Calls as Stay Violations
The bankruptcy court reduced the fees requested by $18,287.25 on the
ground that the fees related to alleged postpetition collection calls, which
the Richardsons were unable to prove occurred. This reduction was made
after the bankruptcy court had disallowed other categories of fees, leaving
a balance of $36,587.25. The court determined that this amount represented
fees incurred related to both the telephone calls and the billing statements,
and thus found it appropriate to cut the remaining amount sought by
approximately one-half.9
The Richardsons contend that this reduction was inappropriate
because they did not pursue any damages related to the telephone calls.
They refer the Panel to their reply to Respondents’ opposition to the
motion for sanctions, which reads:
The phone calls were only placed by numbers suspected to be Respondents [sic] and were described mainly to show the animosity and lengths to which agents of Respondents were willing to go to collect the pre-petition debts.
9 The court rounded up $18,293.63 (one half of $36,587.25) to $18,300.
16 As such, the communications to which Debtors request damages are specifically referring to the Billing Statements, including those that had harassing and racially derogatory language, and generally to any further violative communications. Should additional telephone communications be later provable, such may be the subject of supplemental briefing to this motion, or in the alternative, a separate motion.
Even if the Richardsons were not seeking damages specifically
related to the phone calls, it is undisputed that fees were incurred in
attempting to prove stay violations based on those calls. For example, in
their opposition to Respondents’ motion for summary judgment, the
Richardsons asserted that they intended to call witnesses at trial to testify
regarding the phone calls. In the joint statement of stipulated and disputed
facts and issues of law submitted before trial, they listed as a disputed
issue: “Whether Respondents knowingly violated 11 U.S.C. § 362 in regard
to telephone communications to the Debtors.” And at trial, the Richardsons
called a third party witness (Ms. Collins) to support the claim that calls
were made. Even if the purpose of attempting to prove the calls was to
establish animosity that would provide a motive for the offensive language
on the billing statements, the Richardsons did not succeed in proving
PRDO or A&C culpable for that language. Accordingly, the bankruptcy
court did not abuse its discretion in disallowing the portion of the fees
related to assertions concerning the telephone calls.
17 2. $800 Reduction for Communications among Co-Counsel
The court noted that there were significant communications among
the four attorneys representing the Richardsons and that, typically, all four
attorneys billed both sides of the conversation, email, or text. The court
thus reduced by half the $1,600 in fees requested as compensation for
communications among the Richardsons’ attorneys where no explanation
was provided. Numerous time entries contained descriptions such as
“Attorney [Name] – Outbound email to [other attorney]” with nothing to
indicate the subject matter of the email.
The Richardsons argue that the billing entries lacked detail in order
to protect client confidentiality, and that the communications were
necessary for counsel to competently represent them. But they do not
explain why at least a general description could not have been provided
that would justify the multiple billing. They have not shown that the
bankruptcy court abused its discretion in making this reduction.
3. Fees Incurred After Oral Ruling
The Richardsons complain that the bankruptcy court abused its
discretion in disallowing fees and costs incurred after the court delivered
its oral ruling on January 12, 2018. The Richardsons argue that the fees
sought were not excessive and, in any event, resulted from PRDO’s counsel
being “obstinate” in his position that no fees or nominal fees should be
awarded. Further, they argue that these fees are appropriate under
18 Schwartz-Tallard as part of the award for seeking damages under § 362(k).
As an initial matter, the court included in its calculation a portion of
the fees incurred after January 12, 2018. The billing statements reflect that
$81,820.89 of fees were incurred through January 26, 2018, which included
$4,183.50 in fees incurred between January 19 and 26, 2018. In the Order
Regarding Fees, the court used $81,817.50 as its starting point for
calculating the fees to be awarded. Although it is not clear why there is a
de minimis $3.39 difference between the figure quoted in the court’s order
and the figure on the billing statement, the $81,817.50 must have included
the fees incurred between January 19 and 26, 2018.10
As for the $25,937.50 balance of the post-trial fees that were excluded
from the court’s starting figure, those fees were incurred from January 29
through August 17, 2018 and reflect time spent on communications among
the Richardsons’ co-counsel as well as with PRDO’s counsel and
Ms. Richardson, preparation of status reports for the bankruptcy court,
appearing at hearings, and mediating the amount of fees to be awarded.
In its Order Regarding Fees, the court did not explicitly state its
reason for not considering the fees incurred after January 26, 2018. In the
bankruptcy court’s tentative ruling issued August 8, 2018, it stated, “[t]he
10 The $4,183.50 was included in a billing statement that covered the period from May 12, 2016, to January 26, 2018. The fees incurred after January 12, 2018, consisted primarily of time spent preparing billable invoices (13.7 hours), with the balance for time receiving and sending emails (.4 hours).
19 potential damages are the attorney fees incurred by the Debtors in bringing
the Motion and proceeding through trial,” suggesting that it did not intend
to award any fees incurred thereafter. The court held a hearing the next
day, but no transcript of that hearing was included in the record (nor does
it appear on the bankruptcy court docket). At that hearing, the court may
have further explained its rationale for disallowing post-trial fees. If so, it
was the Richardsons’ burden to provide the transcript from that hearing so
that we could discern the basis for its ruling. See Sallie Mae Serv., LP v.
Williams (In re Williams), 287 B.R. 787, 791 (9th Cir. BAP 2002). Their failure
to do so is a ground for affirmance. See id. at 791-92. If the bankruptcy court
did not explain its rationale, we could remand.
But remand is not necessary “if a complete understanding of the
issues may be obtained from the record as a whole or if there can be no
genuine dispute about omitted findings.” Veal v. Am. Home Mortg. Serv.,
Inc. (In re Veal), 450 B.R. 897, 919–20 (9th Cir. BAP 2011) (citations omitted).
Such is the case here: the bankruptcy court’s comment in its August 8
tentative ruling (quoted above) suggests that the court found it
inappropriate to award fees incurred after its oral ruling either as a matter
of law or fact. Although the Richardsons argued in the bankruptcy court
that Schwartz-Tallard mandates that the court award post-trial fees, the
Ninth Circuit in that case made no such pronouncement, and we have
found no authority supporting the proposition that fees incurred in
20 determining fees (essentially, fees on fees) after liability has been
adjudicated under § 362(k) are required to be awarded.
Even if such fees were appropriately awarded as damages under
§ 362(k), the bankruptcy court has tremendous discretion to determine the
reasonableness of fees, and we afford considerable deference to those
determinations, given the court’s familiarity with the parties and the
litigation. Rodriguez v. Disner, 688 F.3d 645, 653 (9th Cir. 2012) (citing
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). Under the circumstances, the
Richardsons have not met their burden to show the bankruptcy court
abused its discretion in not awarding or including in its calculations the
fees incurred after January 26, 2018.
CONCLUSION
The bankruptcy court did not clearly err in finding that it could not
hold PRDO or A&C liable for adding the offensive language to the billing
statements. Nor have the Richardsons shown that the court abused its
discretion in setting the amount of damages. We therefore AFFIRM.