In re: Scott Charles Pomeroy

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: April 24, 2017
• Docket: EC-16-1196-TaBJu
• Status: Unpublished

Opinion

FILED APR 24 2017 1 NOT FOR PUBLICATION 2 SUSAN M. SPRAUL, CLERK U.S. BKCY.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. EC-16-1196-TaBJu ) 6 SCOTT CHARLES POMEROY, ) Bk. No. 15-26465 ) 7 Debtor. ) ______________________________) 8 ) JOHN R. ROBERTS, Chapter 7 ) 9 Trustee, ) ) 10 Appellant, ) ) 11 v. ) MEMORANDUM* ) 12 SCOTT CHARLES POMEROY, ) ) 13 Appellee. ) ______________________________) 14 Argued and Submitted on March 23, 2017 15 at Sacramento, California 16 Filed – April 24, 2017 17 Appeal from the United States Bankruptcy Court for the Eastern District of California 18 Honorable Robert S. Bardwil, Bankruptcy Judge, Presiding 19 20 Appearances: Gregory Joseph Hughes of Hughes Law Corporation argued for appellant; Lucas B. Garcia of The Law 21 Office of Luke Garcia argued for appellee. 22 Before: TAYLOR, BRAND, and JURY, Bankruptcy Judges. 23 24 25 26 * This disposition is not appropriate for publication. 27 Although it may be cited for whatever persuasive value it may have (see Fed. R. App. P. 32.1), it has no precedential value. 28 See 9th Cir. BAP Rule 8024-1(c)(2). 1 INTRODUCTION 2 Chapter 71 debtor Scott Pomeroy’s tax-exempt retirement 3 plan holds approximately $400,000 in assets, including a vacant 4 lot. After filing a chapter 7 petition, he claimed the entire 5 value in the plan as exempt. The chapter 7 trustee objected. 6 The bankruptcy court overruled the exemption objection and 7 concluded that Debtor could exempt the full amount of the Plan 8 under both federal and state law. On appeal, the Trustee argues 9 that the court erred in both respects. We find that the 10 bankruptcy court did not err in overruling the objection to the 11 state law exemption. 12 We AFFIRM the bankruptcy court. 13 FACTS 14 Debtor’s bankruptcy petition. Debtor filed a voluntary 15 chapter 7 petition in August 2015. On Schedule B, he listed the 16 “Pomeroy Retirement Trust” (the “Plan”) and disclosed that it 17 included: (1) property in Truckee, California valued at $185,000 18 (the “Property”); (2) a Wells Fargo deposit account with balance 19 of $170,780.74; and (3) a Scottrade account valued at 20 $53,602.27. He claimed the full amount as exempt on Schedule C 21 under California Code of Civil Procedure (“CCP”) 22 § 703.140(b)(10)(E). 23 On Schedule I, Debtor reported that he was a “Chip 24 Runner/Dealer” at a casino, where he made $2,130.44 per month in 25 gross income; he reported his take-home pay as $1,563.90. He 26 27 1 Unless otherwise indicated, all chapter and section 28 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532.

2 1 also reported an additional $1,800 per month in income from 2 “[c]ontributions from room mate”. His combined monthly income, 3 thus, was $3,363.90. Debtor’s Schedule J expenses totaled 4 $3,715 per month, resulting in a monthly net income of –$351.10. 5 He noted: “Girlfiend [sic] helps with living expenses on some 6 rare occations [sic] when she can but is not responsible for any 7 of the bills”. 8 The Trustee objects to Debtor’s exemption. In February 9 2016, the Trustee timely objected to Debtor’s exemption of the 10 Plan under CCP § 703.140(b)(10)(E). 11 In response, Debtor amended Schedule C. He now claimed the 12 Plan exempt under CCP § 703.140(b)(10)(E) for $409,383.01 of the 13 $409,383.01 value and § 522(b)(3)(C) for 100% of the value. 14 The Trustee then timely filed an amended objection to 15 include the § 522(b)(3)(C) exemption claim. The Trustee argued, 16 in part, that Debtor’s Schedule I was inaccurate: Debtor was 17 receiving “off the books” quarterly payments of more than 18 $2,000, directed towards repayment of a loan from Plan assets; 19 at the § 341(a) meeting, Debtor acknowledged the loan was made 20 with Plan assets, but admitted that the repayments went to his 21 personal bank account. 22 Debtor opposed. He provided supporting declarations from: 23 Ben Eastman, who advised Debtor about the Plan; David M. Kahn, 24 an attorney; and himself. 25 Debtor declared, among other things: First, he hired Ben 26 Eastman to create the Plan in 1994 and has used him for advice 27 and as the Plan administrator ever since. Second, due “to a 28 divorce in 2009,” he “had to make changes to [his] retirement

3 1 plan provisions.” Third, his “live in girl friend” contributed 2 $1,800 per month to help with the household expenses, “which are 3 all in [his] name.” Accordingly, he “cannot hold her to this 4 contribution and in fact she lost her job in February and I am 5 right now relying on her contribution of her unemployment claim 6 to keep the expenses going.” And if “she leaves, and we have 7 had our rough patches and neither of us foresees marriage, I 8 would be reduced to living in the cargo van trailer or 9 purchasing another Recreational Vehicle to continue my dwelling 10 needs.” Fourth, he is “56 years old with a future employment 11 duration of perhaps 10 years until retirement.” In particular, 12 he has “been treated for nervousness and anxiety disorders and 13 could have to take retirement early.” If he does, he 14 “calculated that [he] would receive $2200 per month maximum from 15 Social Security” and had no other retirement funds. 16 Debtor also sought to explain the $2,000 quarterly 17 payments. He said that, on Mr. Eastman’s advice, he decided to 18 treat the repayments as a hardship distribution and 19 correspondingly would amend three years of tax filings: “I was 20 informed about my alternative option to take it as a participant 21 loan and have determined that the hardship distribution will 22 better serve the retirement trust and myself in the long run.” 23 The Trustee replied. 24 The court heard the matter and entertained oral argument. 25 Hr’g Tr. (May 4, 2016).2 It then continued the matter to allow 26 2 27 The bankruptcy court had apparently issued a tentative ruling in advance of the hearing. See Hr’g Tr. (May 4, 2016) 28 (continued...)

4 1 Debtor to supplement the record. Debtor did so, and the Trustee 2 again replied. After another hearing, the bankruptcy court took 3 the matter under submission.3 4 The next week, the bankruptcy court issued its memorandum 5 decision, discussed in more depth below, overruling the 6 Trustee’s objection and allowing the exemption in its entirety 7 under CCP § 703.140(b)(10)(E) and § 522(b)(3)(C). Memorandum 8 Decision, June 21, 2016 (“Mem. Dec.”). That same day, the court 9 entered its order overruling the Trustee’s objection. 10 The Trustee timely appealed. 11 JURISDICTION 12 The bankruptcy court had jurisdiction under 28 U.S.C. 13 §§ 1334 and 157(b)(2)(B). We have jurisdiction under 28 U.S.C. 14 § 158. 15 ISSUE 16 Whether the bankruptcy court erred in overruling the 17 Trustee’s objection and upholding Debtor’s claimed exemption in 18 the Plan. 19 STANDARD OF REVIEW 20 We review de novo a debtor’s right to claim an exemption. 21 22 2 (...continued) 14:5-9 (“[W]hat I anticipate doing is giving the debtor an 23 opportunity to supplement the record, to address what I have 24 raised in the tentative, and I will continue it; and in all likelihood, I will also address the 703 issue.”). The parties 25 did not provide us with a copy. 26 3 Again, the bankruptcy court issued a tentative ruling in 27 advance of the hearing. See Hr’g Tr. (June 15, 2016) 3:13-14 (The Court: “The court has issued a lengthy tentative.”). 28 Again, the parties did not provide us with a copy.

5 1 Kelley v. Locke (In re Kelley), 300 B.R. 11, 16 (9th Cir. BAP 2 2003). We review the bankruptcy court’s factual findings for 3 clear error. Id.; Gonzalez v. Davis (In re Davis), 323 B.R. 4 732, 734 (9th Cir. BAP 2005) (“The court’s findings regarding 5 the necessity of retirement accounts for debtor’s support are 6 reviewed for clear error.”). A factual finding is clearly 7 erroneous if illogical, implausible, or without support in 8 inferences that may be drawn from the facts in the record. See 9 TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 832 10 (9th Cir. 2011) (citing United States v. Hinkson, 585 F.3d 1247, 11 1262 (9th Cir. 2009) (en banc)). 12 DISCUSSION 13 “When a debtor files a Chapter 7 bankruptcy petition, all 14 of the debtor’s assets become property of the bankruptcy estate, 15 see 11 U.S.C. § 541, subject to the debtor’s right to reclaim 16 certain property as ‘exempt,’ § 522(l).” Schwab v. Reilly, 17 560 U.S. 770, 774 (2010). Unless a party in interest objects, a 18 debtor’s claimed exemption “is exempt.” 11 U.S.C. § 522(l). 19 We start by clarifying the scope of the appeal: it 20 exclusively concerns the Property. Debtor claimed the entire 21 Plan, comprised of three assets (the Property and two accounts), 22 as exempt. The bankruptcy court concluded that the entire 23 retirement plan was exempt under § 522(b)(3)(C) and CCP 24 § 703.140(b)(10)(E). The Trustee does not dispute the Scottrade 25 or Wells Fargo exemptions. See Appellant’s Reply Br. at 1 26 (“Although Trustee sought in the bankruptcy court to disallow 27 all of Debtor’s Plan Assets . . ., Trustee is focusing his 28 appeal solely on the Truckee Lot.”). Accordingly, this appeal

6 1 turns on whether the Property may be exempted under either 2 statute: First, is the value the Property brings to the Plan 3 reasonably necessary for Debtor’s support under CCP 4 § 703.140(b)(3)? Second, is the term “retirement funds” in 5 § 522(b)(3)(C) broad enough to include real property?4 Because 6 we conclude that the bankruptcy court properly upheld the CCP 7 § 703.140(b)(10)(E) exemption, we decline to reach the 8 § 522(b)(3)(C) issue. 9 A. The bankruptcy court correctly determined that the Plan, and thus the Property, was exempt under CCP 10 § 703.140(b)(10)(E). 11 California’s bankruptcy exemption statute allows a debtor 12 to exempt the “debtor’s right to receive” “[a] payment under a 13 stock bonus, pension, profitsharing, annuity or similar plan or 14 contract on account of . . . age . . . to the extent reasonably 15 necessary for the support of the debtor . . . unless all of the 16 following” three conditions apply. The bankruptcy court 17 determined, and the Trustee does not challenge, that the Plan 18 was on account of Debtor’s age and that at least one of the 19 20 4 Debtor contends that the Trustee’s failure to challenge 21 the bankruptcy court’s determination that § 522(b)(4) applied is a separate basis for affirmance. We disagree. Section 22 522(b)(4) is not a separate exemption; it discusses further parameters for § 522(b)(3)(C) and (d)(12). 11 U.S.C. 23 § 522(b)(4) (“For purposes of paragraph (3)(C) and subsection 24 (d)(12), the following shall apply . . . .”). It allocates presumptions for determining if an account is tax-exempt, 25 § 522(b)(4)(A), (b)(4)(B), addresses transfers between tax-exempt accounts, § 522(b)(4)(C), and discusses distributions 26 that qualify as rollover distributions, § 522(b)(4)(D). The 27 Trustee does not argue the Plan’s tax-exempt status on appeal. Instead, the Trustee’s argument is that the Property does not 28 qualify as “retirement funds.”

7 1 three conditions was not present. 2 On appeal, the Trustee focuses on the “to the extent 3 reasonably necessary for the support of the debtor” prong; he 4 argues the bankruptcy court erred because it: (1) applied the 5 wrong legal standard; (2) misapplied the standard; and 6 (3) lacked sufficient evidence to make its factual findings. We 7 disagree and consider each in turn. 8 1. The bankruptcy court applied the correct legal standard. 9 10 In its decision, the bankruptcy court decided that it “will 11 consider whether the Plan is reasonably necessary for the 12 debtor’s support based on what his income and expenses are 13 likely to be in retirement and based on what changes are likely 14 to take place between now and then.” Mem. Dec. at 8. 15 On appeal, the Trustee argues that the bankruptcy court 16 applied the wrong legal standard: “The standard is whether the 17 asset is ‘reasonably necessary for support,’ not whether the 18 asset is ‘reasonably necessary for the debtor’s support when he 19 retires.’” Appellant’s Opening Br. at 16. He contends that the 20 factors listed in Moffat v. Habberbush (In re Moffat), 119 B.R. 21 201 (9th Cir. BAP 1990), aff’d 959 F.2d 740 (9th Cir. 1992), and 22 Hamo v. Wilson (In re Hamo), 233 B.R. 718 (6th Cir. BAP 1999), 23 all focus on a debtor’s present needs, not needs some twenty 24 years in the future. He asserts that none of the listed factors 25 include support during retirement. Also, had Congress or the 26 California legislature “wanted to connect assets in a retirement 27 plan with support during retirement,” they could have mentioned 28 “the word ‘retirement’ in connection with support needs . . . .”

8 1 Id. at 19. Next, he suggests that the bankruptcy court 2 improperly inserted “retirement needs” into the required 3 evaluation of what is “reasonably necessary for the support of 4 the debtor”; he contends that none of the other CCP § 703.140 5 exemptions involving “reasonably necessary for the support of 6 the debtor” language involve retirement plans or retirement 7 needs, so neither should CCP § 703.140(b)(10)(E). Id. at 20. 8 The Trustee misses the point. The statute exempts Debtor’s 9 right to receive payments to the extent those payments are 10 reasonably necessary for Debtor’s support. Here, the Trustee 11 concedes that Debtor will not receive penalty-free payments 12 until he retires.5 The relevant inquiry is, thus, whether those 13 payments (when Debtor retires) will be reasonably necessary for 14 Debtor’s support. When evaluating the “reasonably necessary” 15 part, courts look to a variety of factors: 16 the debtor’s present and anticipated living expenses and income; the age and health of the debtor and his 17 or her dependents; the debtor’s ability to work and earn a living; the debtor’s training, job skills and 18 education; the debtor’s other assets and their liquidity; the debtor’s ability to save for 19 retirement; and any special needs of the debtor and his or her dependents. 20 21 In re Moffat, 119 B.R. at 206. 22 The Trustee’s arguments are not persuasive. First, the 23 Moffat factors are discretionary and, what’s more, direct the 24 bankruptcy court to consider anticipated (i.e., future and 25 5 Of course, Debtor may elect to take hardship 26 distributions early, as he already has. The bankruptcy court 27 determined that “the debtor’s right to receive payments under the Plan without penalty, will, absent a hardship, arise at 28 retirement age.” Mem. Dec. at 8.

9 1 forward-looking) expenses and income. Second, neither Congress 2 nor the California legislature inserted “retirement” in 3 “reasonably necessary for the support the debtor” because CCP 4 § 703.140(b)(10)(E) also protects the right to receive payments 5 on account of more than just age; it also includes payments on 6 account of disability, death, or length of service. As the 7 bankruptcy court put it, the Trustee’s analysis ignores “the 8 nature of the asset exempted by the particular statute . . . .” 9 Mem. Dec. at 7. True, “the statute contains the same 10 ‘reasonably necessary’ language as those [statutes] exempting 11 alimony, payments in compensation of lost earnings, and so on,” 12 but the “statutes must be considered in light of the” statute’s 13 purpose “and the asset being exempted—here, the right to receive 14 retirement income.” Mem. Dec. at 8. 15 Accordingly, we conclude that the bankruptcy court did not 16 apply the wrong legal standard. 17 2. The bankruptcy court did not misapply the legal standard. 18 19 Next, the Trustee argues that the bankruptcy court abused 20 its discretion because it misapplied the proper legal standard: 21 it did not separately consider whether “each of the assets was 22 or was not necessary for support, in light of the treatment of 23 the other assets.” Appellant’s Opening Br. at 21-23. The 24 Trustee focuses on the “to the extent” part of the statute: 25 “where there are three plan assets . . ., the proper analysis 26 under [CCP] § 703.140(d)(10)(E) would have required the court to 27 analyze whether each of the assets was or was not necessary for 28 support, in light of the treatment of the other assets.” Id.

10 1 at 21. If the Wells Fargo and Scottrade Accounts are enough on 2 their own, he urges, then the Property cannot be exempted. 3 We disagree. First, the Trustee faces a logic problem. 4 The bankruptcy court concluded that the entirety of the plan was 5 reasonably necessary for Debtor’s support. By definition, then, 6 if one removes any part from the fund, it is no longer enough. 7 Second, considering the bankruptcy court’s entire decision, we 8 are not convinced it would find otherwise. Littered throughout 9 are indications that the bankruptcy court suspected that, even 10 with the whole plan exempt, Debtor may not have enough to 11 support himself in retirement. 12 Now, had the bankruptcy court determined that only part of 13 the Plan was reasonably necessary for Debtor’s support, then we 14 agree that the bankruptcy court would have needed to separately 15 parse the Plan’s assets. Likewise, if we determine that the 16 bankruptcy court clearly erred in finding that the entire Plan 17 was reasonably necessary for Debtor’s support because only some 18 lesser amount is reasonably necessary, then we would need to 19 consider the Plan assets individually. But the bankruptcy court 20 did not so determine; nor do we. 21 3. The bankruptcy court did not clearly err in finding that the Plan was reasonably necessary for Debtor’s 22 support. 23 The bankruptcy court framed the issue as: “Thus, assuming 24 the debtor does not need to take hardship distributions from the 25 Plan in the next nine years (and the evidence suggests he may 26 need to), the court will need to consider whether $409,383 in 27 assets is reasonably necessary for 18 years of retirement.” 28

11 1 Mem. Dec. at 8.6 After weighing the various factors and 2 considering Debtor’s petition and declarations, the bankruptcy 3 court concluded: 4 In short, given the debtor’s age, his likely life expectancy, his meager income at this time and likely 5 for the rest of his working life, the relatively modest amount he may expect from social security in 6 retirement, the very basic level of his living expenses, and the fact that he has little, if any, 7 assurance of being able to meet those expenses while he is still working, let alone after retirement, the 8 court readily concludes the Plan is reasonably necessary for the debtor’s support . . . . 9 10 Id. at 13. 11 On appeal, the Trustee contends that Debtor failed to meet 12 his burden of proof because he did not provide enough evidence 13 to show that the Plan was reasonably necessary for his support. 14 Accordingly he contends that the bankruptcy court clearly erred 15 because it lacked sufficient evidence. We disagree. Everyone 16 agrees that Debtor had the burden of proof. Diaz v. Kosmala 17 (In re Diaz), 547 B.R. 329, 336-37 (9th Cir. BAP 2016). And 18 Debtor submitted a declaration about his needs. The Trustee 19 submitted no counter-evidence of his own; instead, he relies on 20 the burden of proof and repeatedly argues that Debtor’s 21 declaration provided nothing but speculation, which he asserts 22 is not admissible evidence. But he appears to fundamentally 23 6 24 To reach the “18 years” number, the bankruptcy court took judicial notice of Social Security Administration 25 calculator. In his reply, the Trustee faults the court for “going outside the record to find an online document . . . .” 26 Appellant’s Reply Br. at 19. But, having failed to raise that 27 issue in his opening brief, the Trustee waived the point. Kaass Law v. Wells Fargo Bank, N.A., 799 F.3d 1290, 1293 (9th Cir. 28 2015).

12 1 misunderstand the nature of the proceedings below: the 2 bankruptcy court received evidence and found facts. The Trustee 3 could have put on evidence; he could have cross-examined Debtor. 4 But he did not do so. 5 The Trustee argues that because Debtor’s income is 6 sufficient to meet his current needs without drawing from the 7 Plan, the Plan is not reasonably necessary for his support. The 8 Trustee asserts that this analysis holds true even when Debtor 9 retires because Debtor’s anticipated social security income 10 ($2,200 per month) would substitute for his present income 11 ($2,130 per month). 12 But the Trustee’s argument suffers a major flaw. He 13 acknowledges that Debtor’s Schedule I income includes Debtor’s 14 girlfriend’s contributions ($1,800). The bankruptcy court, 15 however, did not include those contributions in its analysis: 16 “Although the debtor presently receives contributions from his 17 girlfriend, she is under no legal obligation to continue making 18 them. For purposes of this analysis, the court declines to 19 assume she or anyone else will be willing and able to contribute 20 to the debtor’s household income once he retires.” Mem. Dec. 21 at 12. The Trustee faults the bankruptcy court for this: “The 22 Debtor’s statements concerning his girlfriend’s contributions to 23 their mutual living expenses are nothing more than speculation 24 about what might happen in the future.” Appellant’s Opening Br. 25 at 27. He continues: “Based on the admissible evidence before 26 the court, it is as likely that the status quo will continue as 27 that it will change.” Id. But we review the bankruptcy court’s 28 factual finding for clear error, and “[w]here there are two

13 1 permissible views of the evidence, the factfinder’s choice 2 between them cannot be clearly erroneous.” Anderson v. City of 3 Bessemer City, 470 U.S. 564, 574 (1985). As a result, the 4 Trustee’s argument overestimates Debtor’s anticipated income by 5 $1,800 per month. 6 The Trustee, perhaps, misunderstands the standard of 7 review. In his reply brief, the Trustee asserts: “The 8 bankruptcy court made assumptions and inferences as to each of 9 these items [i.e., Debtor’s projected expenses in ten years, the 10 value of Debtor’s Plan’s assets in ten years, Debtor’s likely 11 medical expenses in ten years, or Debtor’s life expectancy] 12 (mostly extrapolating from Debtor’s present situation), but they 13 were not based on evidence presented by Debtor concerning his 14 anticipated income and expenses.” Appellant’s Reply Br. at 19 15 (emphasis added). A bankruptcy court does not clearly err when 16 it makes findings that are supported by inferences in the 17 record. See Hinkson, 585 F.3d at 1262. 18 The Trustee never separately argues that, even if the 19 bankruptcy court is correct about Debtor’s income and expenses, 20 its determination that $409,383 in assets is reasonably 21 necessary for 18 years of retirement was an error. But we 22 briefly consider the numbers. We take the $409,383 total, 23 divide it by 216 months of retirement, and reach about $1,895 24 per month. Given Debtor’s anticipated $2,200 per month in 25 social security income, Debtor’s anticipated monthly income when 26 he retires would then be $4,095; Debtor’s present monthly 27 expenses are $3,315; that results in $780 in positive monthly 28 income. Of course, the bankruptcy court also determined: first,

14 1 that the Plan’s value will not grow significantly in the next 2 10 years; second, that Debtor likely will need to use the assets 3 before he retires (depleting the amount); and third, that 4 Debtor’s expenses in retirement will likely increase. Given 5 these substantial uncertainties, we conclude that the bankruptcy 6 court did not clearly err in finding that $409,383 is reasonably 7 necessary for Debtor’s retirement. 8 The Trustee also asserts that the $315 monthly shortfall 9 between Debtor’s Schedule I and J is illusory because Debtor did 10 not include in Schedule I the $2,000 quarterly repayments on the 11 Plan’s loan, which Debtor was depositing into his personal 12 account and not returning to the Plan. The bankruptcy court, 13 however, concluded that Debtor’s interest in the quarterly 14 payments ($333 per month, after accounting for Debtor’s ex- 15 spouse’s interest) was “not sufficient to alter the court’s 16 conclusion as to the reasonably necessary test.” Mem. Dec. 17 at 9–10 n.4. This was not clear error. 18 Further, these circumstances undercut the Trustee’s general 19 point. He argues that the Plan is not reasonably necessary for 20 Debtor’s support because Debtor’s presents needs are met. But, 21 to meet his needs, Debtor decided to take hardship distributions 22 from the Plan and suffer the corresponding tax penalties. 23 Debtor is thus effectively already using the Plan; he may 24 continue to need it in the future. See Mem. Dec. at 8–9 (“Thus, 25 assuming the debtor does not need to take hardship distributions 26 from the Plan in the next nine years (and the evidence suggests 27 he may need to), the court will need to consider . . . .”); id. 28 at 13 (“Without [the $1,800 monthly contribution from his

15 1 girlfriend], the debtor would need to deplete the Plan assets 2 significantly even before he retires.”). 3 In short, the bankruptcy court looked at Debtor’s age, life 4 expectancy, present and anticipated income and expenses, assets, 5 future employment prospects, and other things; it relied on 6 Debtor’s testimony and Debtor’s schedules, which were submitted 7 under penalty of perjury. The Trustee believes that this was 8 clear error because Debtor’s testimony was inadmissible as 9 offering only speculation. We disagree. Having reviewed the 10 record, we are not left with the firm conviction that the 11 bankruptcy court made a mistake. See Hinkson, 585 F.3d at 1262. 12 B. We need not reach the § 522(b)(3)(C) exemption. 13 The bankruptcy court also determined that the Property was 14 properly exempt under § 522(b)(3)(C) because it fell within the 15 purview of the phrase “retirement funds.” On appeal, the 16 parties devote substantial briefing to this point. But, as the 17 Trustee acknowledges, to prevail in this appeal he has to show 18 that the bankruptcy court erred in relation to both exemptions. 19 Having concluded that the Property is exempt under CCP 20 § 703.140(b)(10)(E), we need not decide the § 522(b)(3)(C) 21 matter. 22 CONCLUSION 23 Based on the foregoing, we AFFIRM. 24 25 26 27 28