In re: Thelldien Linmoe Wegesend and Warren Robert Wegesend

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: February 20, 2015
• Docket: HI-14-1236-KuJuKi
• Status: Unpublished

Opinion

FILED FEB 20 2015 1 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL 2 OF THE NINTH CIRCUIT UNITED STATES BANKRUPTCY APPELLATE PANEL 3 OF THE NINTH CIRCUIT 4 5 In re: ) BAP No. HI-14-1236-KuJuKi ) 6 THELLDIEN LINMOE WEGESEND and ) Bk. No. 13-01686 WARREN ROBERT WEGESEND, ) 7 ) Adv. No. 13-90085 Debtors. ) 8 ______________________________) ) 9 THELLDIEN LINMOE WEGESEND; ) WARREN ROBERT WEGESEND, ) 10 ) Appellants, ) 11 ) v. ) MEMORANDUM* 12 ) ONEWEST BANK, FSB, ) 13 ) Appellee. ) 14 ______________________________) 15 Argued and Submitted on January 22, 2015 at Pasadena, California 16 Filed – February 20, 2015 17 Appeal from the United States Bankruptcy Court 18 for the District of Hawaii 19 Honorable Robert J. Faris, Chief Bankruptcy Judge, Presiding 20 Appearances: Robert L. Stone of Property Rights Law of Hawaii, 21 Inc. argued for appellants Thelldien Linmoe Wegesend and Warren Robert Wegesend; Jesse W. 22 Schiel of Kobayashi Sugita & Goda argued for appellee OneWest Bank, FSB. 23 24 Before: KURTZ, JURY and KIRSCHER, Bankruptcy Judges. 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. 1 INTRODUCTION 2 Chapter 131 debtors Thelldine Linmoe Wegesend and Warren 3 Robert Wegesend commenced an adversary proceeding against OneWest 4 Bank objecting to OneWest’s proof of claim. The Wegesends 5 alleged that OneWest had no interest in the $980,000 note and 6 mortgage that were the asserted grounds for the claim. 7 OneWest filed a motion to dismiss the Wegesends’ adversary 8 proceeding, and the bankruptcy court converted the dismissal 9 motion into a summary judgment motion for the limited purpose of 10 determining whether OneWest had possession of the original note. 11 The court ruled that there was no genuine issue of fact that 12 OneWest was in possession of the original note endorsed in blank. 13 Based on OneWest’s possession of the original note endorsed in 14 blank, the court dismissed the adversary proceeding with 15 prejudice, holding that OneWest was the holder of the note and 16 was entitled to enforce both the note and the mortgage. The 17 Wegesends appealed. 18 When the bankruptcy court converted OneWest’s dismissal 19 motion into a summary judgment motion, the bankruptcy court did 20 not give the Wegesends any opportunity to discover or present 21 evidence in support of their allegation that the original note 22 was not in OneWest’s possession. Because the Wegesends did not 23 have a full and fair opportunity to ventilate the issue regarding 24 OneWest’s possession of the original note, we must VACATE AND 25 26 1 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 REMAND for further proceedings. 2 FACTS 3 Unless otherwise indicated, the following facts are not in 4 dispute. In December 2007, the Wegesends financed the purchase 5 of their residence by borrowing $980,000 from IndyMac Bank, FSB. 6 In July 2008, the Office of Thrift Supervision terminated IndyMac 7 Bank’s operations, and most of IndyMac Bank’s assets were 8 transferred to a new entity known as IndyMac Federal Bank. That 9 same month, IndyMac Federal sent the Wegesends a letter advising 10 them that it had acquired their loan and that their loan payments 11 should be made to IndyMac Federal. 12 Several years later, after the Wegesends commenced their 13 bankruptcy case in October 2013, OneWest filed a proof of claim 14 for $1.4 million based on the Wegesends’ 2007 loan. According to 15 OneWest, it is the successor to IndyMac Federal’s rights with 16 respect to the Wegesends’ loan. 17 The Wegesends then commenced their adversary proceeding 18 objecting to OneWest’s claim and seeking a determination 19 regarding OneWest’s claimed lien against the Wegesends’ 20 residence. In their complaint, the Wegesends alleged that 21 IndyMac Bank must have sold its interest in the Wegesend loan to 22 a securitization trust because: (1) that is what IndyMac Bank 23 historically had done with most of the loans in its portfolio; 24 and (2) the copy of the note attached to OneWest’s proof of claim 25 reflected that the Wegesends’ note had been endorsed in blank by 26 IndyMac Bank thereby making the note payable to the bearer of the 27 original note. The Wegesends posited that there was no reason 28 for IndyMac Bank to have endorsed the note unless it had sold the

3 1 note to a securitization trust. As for OneWest’s claimed lien 2 against their residence, the Wegesends alleged that the lien was 3 unenforceable because OneWest had no rights in the underlying 4 note that the lien was supposed to secure.2 5 In response to the adversary complaint, OneWest filed a 6 Civil Rule 12(b)(6) motion to dismiss. The dismissal motion 7 relied on facts not alleged on the face of the complaint in 8 several respects. For instance, OneWest asserted in the 9 dismissal motion that the Office of Thrift Supervision closed 10 IndyMac Federal Bank in 2009 and, at that time, sold many of the 11 bank’s assets, including the Wegesend loan, to OneWest. The 12 motion also sets forth facts regarding the Wegesends’ default on 13 their loan obligations, OneWest’s commencement of foreclosure 14 proceedings and the Wegesends’ commencement of an action in 15 Hawaii’s land court seeking to prevent the completion of the 16 2 The copy of the note attached to the Wegesends’ complaint 17 included two allonges. The first allonge was signed by Sandra 18 Schneider as “attorney-in-fact” for the Federal Deposit Insurance Corporation as receiver for IndyMac Federal Bank, and the second 19 allonge was signed by Sandra Schneider as a vice president of OneWest. The first allonge is endorsed to OneWest, and the 20 second allonge is endorsed in blank. Both sides have claimed that the allonges support their various theories and legal 21 arguments. The Wegesends claim that both allonges are invalid 22 and that their existence somehow supports their claim that their loan must have been sold to a securitization trust. Meanwhile, 23 OneWest claims that the allonges support its claim that it is the holder of the note. Either way, the allonges do not appear to 24 improve the Wegesends’ chances on appeal. Even if we were to 25 assume that the allonges were invalid for any reason, the Wegesends admit that the note contains an endorsement in blank on 26 its face (rendering the note payable to whoever possesses the original) and thereby rendering the allonges superfluous. On the 27 other hand, if the allonges are valid, they arguably bolster OneWest’s assertion that it possesses the original note and is 28 entitled to enforce the note.

4 1 foreclosure proceedings. OneWest filed a request for judicial 2 notice in support of its dismissal motion indicating: (1) that it 3 filed in the land court a summary judgment motion accompanied by 4 proof that it held the original note, (2) that the Wegesends 5 never responded to OneWest’s summary judgment motion, and 6 (3) that the Wegesends commenced their bankruptcy case shortly 7 before the scheduled hearing on OneWest’s summary judgment 8 motion. 9 OneWest also pointed out that both parties agreed that the 10 note had been endorsed in blank, that the note therefore was 11 payable to the bearer, and hence that the party who was in 12 possession of the original note was entitled to enforce it. In 13 further support of its motion to dismiss, OneWest submitted the 14 declaration of one of its attorneys, a Ms. Thao T. Tran, in which 15 she declared that she had received possession of the original 16 note from OneWest, that she had made the original note available 17 for inspection by the Wegesends’ counsel Robert Stone in 18 September 2013 in conjunction with the land court action and that 19 he, in fact, had inspected it. 20 In their opposition to OneWest’s dismissal motion, the 21 Wegesends reiterated their theory that their loan must have been 22 sold to a securitization trust and that OneWest thus never 23 acquired the loan when the Office of Thrift Supervision sold 24 IndyMac Federal Bank’s assets to OneWest. The Wegesends further 25 argued that OneWest was improperly attempting to introduce facts 26 – which they disputed – regarding possession of the original 27 note. The Wegesends’ argument regarding OneWest’s asserted 28 possession of the original note was two-fold: (1) it was

5 1 inappropriate for the court to decide this disputed factual issue 2 in ruling on a Civil Rule 12(b)(6) motion to dismiss; and (2) it 3 was inappropriate for the court to decide this disputed factual 4 issue before the Wegesends were given an opportunity to conduct 5 discovery and present evidence in support of the position that 6 OneWest did not possess the original note. 7 In their reply brief in support of their dismissal motion, 8 OneWest argued that the bankruptcy court properly could consider 9 all of the materials OneWest had submitted in support of its 10 dismissal motion. According to OneWest, most of the essential 11 documents were attached to and referenced in the Wegesends’ 12 adversary complaint or were properly the subject of judicial 13 notice. As for its possession of the original note, OneWest 14 argued that the Wegesends’ failure to defend against their 15 summary judgment motion in the land court action and/or their 16 failure to dispute therein OneWest’s possession of the original 17 note constituted a judicial admission. In the alternative, 18 OneWest argued that, to the extent any of the materials it had 19 submitted in support of its dismissal motion could not properly 20 be considered in ruling on its dismissal motion, the bankruptcy 21 court should convert the motion to a summary judgment motion and 22 grant OneWest summary judgment. 23 At the hearing, OneWest’s counsel represented to the court 24 that he had brought the original note with him so that the court 25 and opposing counsel could inspect it if they so desired. On the 26 other hand, the Wegesends’ counsel represented that his co- 27 counsel, Robert Stone, previously had inspected the note and had 28 concluded that the note presented for inspection was not the

6 1 original but instead was a copy. 2 There is nothing in the record to indicate that the 3 bankruptcy court, before ruling, inspected the version of the 4 note OneWest offered to present at the hearing. Rather, the 5 court apparently based its ruling at the hearing on the materials 6 the parties submitted in advance of the hearing. These included 7 the parties’ legal briefs on the dismissal motion, the Wegesends’ 8 adversary complaint and OneWest’s request for judicial notice. 9 The bankruptcy court held that it was proper to convert the 10 dismissal motion to a summary judgment motion for the limited 11 purpose of deciding whether OneWest possessed the original note. 12 The bankruptcy court further held that there was no genuine issue 13 of fact that OneWest possessed the original note. According to 14 the bankruptcy court, how OneWest obtained possession of the 15 original note was irrelevant in light of Article 3 of the Uniform 16 Commercial Code, which generally provides that a party in 17 possession of the original note endorsed in blank is a holder of 18 the note and is entitled to enforce the note. As for OneWest’s 19 right to enforce the lien against the Wegesends’ residence, the 20 bankruptcy court explained that, under Hawaii law, the mortgage 21 automatically followed the note in terms of who could enforce the 22 mortgage. 23 The bankruptcy court entered an order dismissing the 24 Wegesends’ adversary proceeding with prejudice, and the Wegesends 25 timely filed a notice of appeal. 26 JURISDICTION 27 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 28 §§ 1334 and 157(b)(2)(B), (K) and (O). We have jurisdiction

7 1 under 28 U.S.C. § 158. 2 ISSUE 3 Did the bankruptcy court commit reversible error when it 4 converted OneWest’s dismissal motion into a summary judgment 5 motion for the purpose of determining whether OneWest held the 6 original promissory note? 7 STANDARDS OF REVIEW 8 We review de novo the bankruptcy court’s interpretation of 9 the Federal Rules of Civil Procedure. Legal Voice v. Stormans 10 Inc., 738 F.3d 1178, 1184 (9th Cir. 2013). We also review de 11 novo the bankruptcy court’s construction and application of state 12 statutes. Med. Protective Co. v. Pang, 740 F.3d 1279, 1282 (9th 13 Cir. 2013); United States v. Valerio, 441 F.3d 837, 839 (9th Cir. 14 2006). 15 DISCUSSION 16 In order to have standing to file a proof of claim based on 17 a negotiable promissory note governed by Article 3 of the Uniform 18 Commercial Code (“U.C.C.”), the claimant must be a “person 19 entitled to enforce the note” or must be an agent of such person. 20 Allen v. U.S. Bank, N.A. (In re Allen), 472 B.R. 559, 565 (9th 21 Cir. BAP 2012); Veal v. Am. Home Mortg. Serv., Inc. (In re Veal), 22 450 B.R. 897, 910, 919 (9th Cir. BAP 2011).3 One way to become a 23 24 3 The parties and the bankruptcy court all assumed that the 25 Wegesends’ promissory note was a negotiable instrument subject to the provisions of U.C.C. Article 3. Because the Wegesends have 26 not argued in the bankruptcy court or on appeal that their promissory note was governed by something other than U.C.C. 27 Article 3, we may consider this issue forfeited. See Golden v. 28 Chicago Title Ins. Co. (In re Choo), 273 B.R. 608, 613 (9th Cir. BAP 2002).

8 1 person entitled to enforce the note is to be a “holder” of the 2 note within the meaning of U.C.C. Article 3. See Haw.Rev.Stat. 3 § 490:3-301;4 In re Veal, 450 B.R. at 910-11. In turn, one way 4 to become a holder of the note is to have possession of the 5 original note endorsed in blank. See Haw.Rev.Stat. 6 §§ 490:1–201(b), 490:3-205(b); In re Allen, 472 B.R. at 567; 7 In re Veal, 450 B.R. at 911. 8 The bankruptcy court held that there was no genuine issue of 9 fact that OneWest possessed the original note endorsed in blank. 10 OneWest presented to the bankruptcy court declaration testimony 11 supporting its asserted possession of the original note, and 12 OneWest’s counsel represented in open court that he had brought 13 the original note to the hearing for inspection if the court or 14 the Wegesends desired to inspect it. Furthermore, the Wegesends 15 presented no contraverting evidence - evidence demonstrating that 16 OneWest was mistaken or lying regarding its possession of the 17 original note. A number of courts have held on similar evidence 18 that the creditor was entitled to summary judgment regarding its 19 asserted possession of the original note and that there is no 20 summary judgment prerequisite for the creditor to present the 21 original note when the obligor under the note has not presented 22 any controverting evidence. See, e.g., F.D.I.C. v. Cashion, 23 720 F.3d 169, 175 (4th Cir. 2013); Krakauer v. IndyMac Mortg. 24 4 The Wegesends’ bankruptcy court filings indicate that, at 25 all relevant times, they have been Hawaii residents and that they 26 signed the note and mortgage in favor of IndyMac Bank in Hawaii. Given these undisputed facts, and the fact that the forum state 27 is Hawaii, Haw.Rev.Stat. § 490:1-301(b) applies and provides that Hawaii’s version of the U.C.C. governs this matter. See 28 In re Veal, 450 B.R. at 920 n.41.

9 1 Servs., 2010 WL 5174380, *9 (D. Haw. 2010); Wells Fargo Bank v. 2 Stratton Jensen, LLC, 273 P.3d 383, (Utah App. 2012); Zarges v. 3 Bevan, 652 S.W.2d 368, 369 (Tex. 1983). 4 Moreover, these decisions are consistent with the general 5 principle that, on summary judgment, if the moving party has 6 presented certain facts as undisputed and has presented evidence 7 in support of those facts, the nonmoving party must specifically 8 challenge those facts as disputed and present contraverting 9 evidence demonstrating the dispute. Otherwise, the nonmoving 10 party may be deemed to have admitted those facts for summary 11 judgment purposes. Beard v. Banks, 548 U.S. 521, 572 (2006); see 12 also 10A Charles A. Wright, Arthur R. Miller, et al., Fed. Prac. 13 & Proc. Civ. § 2727 (3d ed. 2014) (“If the movant presents 14 credible evidence that, if not controverted at trial, would 15 entitle him to a Rule 50 judgment as a matter of law that 16 evidence must be accepted as true on a summary-judgment 17 motion.”). 18 Put another way, an issue of fact is not an impediment to 19 summary judgment unless it is genuine, and a factual issue is not 20 genuine if, on the evidence presented, the trier of fact only 21 could reasonably decide the issue one way. Far Out Prods., Inc. 22 v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001) (citing Anderson v. 23 Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986)). Here, on the 24 record available to the court at the time it heard and determined 25 OneWest’s motion, the Wegesends had not presented any evidence 26 that would have permitted the bankruptcy court to reasonably find 27 that OneWest did not possess the original note. 28 Even so, we do not need to decide here whether there was a

10 1 genuine issue of fact regarding OneWest’s possession of the 2 original note. The controlling issue in this appeal is whether 3 the bankruptcy court correctly converted OneWest’s dismissal 4 motion into a summary judgment motion for purposes of determining 5 whether OneWest held the original note. 6 Civil Rule 12(d), which is made applicable in adversary 7 proceedings by Rule 7012, provides that: 8 If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded 9 by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be 10 given a reasonable opportunity to present all the material that is pertinent to the motion. 11 12 Civil Rule 12(d) (emphasis added). 13 While Civil Rule 12(d) specifically requires the court to 14 give the nonmoving party a “reasonable opportunity” to present 15 evidence to counter the moving party’s entitlement to summary 16 judgment, formal notice generally is not required. San Pedro 17 Hotel Co., Inc. v. City of Los Angeles, 159 F.3d 470, 477 (9th 18 Cir. 1998). It will suffice if the nonmovant “is ‘fairly 19 apprised’ before the hearing that the court will look beyond the 20 pleadings.” Cunningham v. Rothery (In re Rothery), 143 F.3d 546, 21 549 (9th Cir. 1998) (citing Mayer v. Wedgewood Neighborhood 22 Coal., 707 F.2d 1020, 1021 (9th Cir. 1983)). In other words, 23 the court “need only apprise the parties that it will look beyond 24 the pleadings to extrinsic evidence and give them an opportunity 25 to supplement the record.” San Pedro Hotel, 159 F.3d 470, 477 26 (emphasis added). 27 Additionally, a bankruptcy court may grant summary judgment 28 without any advance notice “if the losing party has had a ‘full

11 1 and fair opportunity to ventilate the issues involved in the 2 motion.’” In re Rothery, 143 F.3d at 549 (citing Maitland v. 3 Mitchell (In re Harris Pine Mills), 44 F.3d 1431, 1439 (9th Cir. 4 1995)). A litigant is deemed to have had “a full and fair 5 opportunity to ventilate the issues” if that litigant submits to 6 the court matters outside the pleadings and invites their 7 consideration. In re Rothery, 143 F.3d at 549. 8 Here, the Wegesends were not fairly apprised that the court 9 might dispose of their adversary proceeding by summary judgment, 10 nor did they have a full and fair opportunity to ventilate the 11 controlling issue regarding OneWest’s possession of the original 12 note. In response to OneWest’s dismissal motion, the Wegesends 13 did not offer any materials beyond the scope of their complaint, 14 and they explicitly objected when OneWest attempted to do so. 15 Moreover, the record reflects that the Wegesends were not given 16 any chance to conduct discovery or present evidence supporting 17 their allegation that OneWest did not possess the original note. 18 We acknowledge that the Wegesends may have had some 19 opportunity in the land court action to challenge OneWest’s 20 asserted possession of the note. However, we know of no reason, 21 factual or legal, why that opportunity there should count against 22 the Wegesends in their adversary proceeding, when the only 23 actions taken by the parties in the adversary proceeding were the 24 Wegesends’ filing of their complaint and OneWest’s filing of its 25 motion to dismiss. 26 OneWest contends that the Wegesends’ failure to avail 27 themselves of various opportunities in the land court action 28 should count against them – that the Wegesends, in effect,

12 1 “judicially admitted” that OneWest possessed the original note by 2 not opposing its summary judgment motion in the land court action 3 and by not offering evidence in the land court action 4 specifically controverting OneWest’s evidence in support of its 5 possession of the original note. OneWest’s judicial admission 6 argument overreaches. It may be true that, in the land court 7 action, when the Wegesends did not challenge the facts OneWest 8 asserted in support of its summary judgment motion, the land 9 court may have been permitted to deem all such facts undisputed 10 for purposes of ruling on OneWest’s summary judgment motion. But 11 this does not mean that the Wegesends’ activity (or inactivity) 12 in the land court action properly has any bearing in the 13 subsequent proceedings taking place in the bankruptcy court. 14 At bottom, in presenting its judicial admission argument, 15 OneWest is seeking to confer issue preclusive effect on its 16 factual assertion – its possession of the original note – that 17 never was fully and finally resolved in the land court action. 18 The record reflects that the land court never ruled on OneWest’s 19 summary judgment motion and, in fact, that the parties stipulated 20 to the voluntary dismissal of the land court action. Under these 21 circumstances, Hawaii courts would not give any preclusive effect 22 to anything that transpired in the land court action, nor shall 23 we. See generally Exotics Hawaii-Kona, Inc. v. E.I. Dupont De 24 Nemours & Co., 90 P.3d 250, 257 (Haw. 2004) (stating that issue 25 preclusion elements require a final judgment on the merits and a 26 decision on the issue in question that was necessary to the 27 judgment). 28 Alternately, OneWest argues that we could uphold the

13 1 bankruptcy court’s dismissal of the Wegesends’ adversary 2 proceeding under Civil Rule 12(b)(6). According to OneWest, all 3 of the documents it submitted in support of its summary judgment 4 motion either were properly the subject of judicial notice or 5 were attached to and referenced in the Wegesends’ complaint. We 6 disagree. The evidence OneWest submitted in support of its 7 assertion that it holds the original note included the 8 declaration of its attorney, Ms. Thao T. Tran, as well as certain 9 documents filed in the land court action. While the bankruptcy 10 court could take judicial notice of the fact that certain 11 documents were filed in the land court action, that does not mean 12 that the bankruptcy court could assume the truth of the “facts” 13 asserted by OneWest in those documents. See Roth v. Jennings, 14 489 F.3d 499, 509 (2d Cir. 2007); Liberty Mut. Ins. Co. v. 15 Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992). 16 The bankruptcy court also could consider the existence and 17 content of documents attached to and referenced in the Wegesends’ 18 complaint as exhibits. Lee v. City of Los Angeles, 250 F.3d 668, 19 688 (9th Cir. 2001); Durning v. First Boston Corp., 815 F.2d 20 1265, 1267 (9th Cir. 1987). Even though the Wegesends attached 21 to their complaint a copy of the note, they never admitted that 22 OneWest possessed the original note, which is the the controlling 23 issue in this matter. Under these circumstances, OneWest’s 24 submission of evidence in support of its asserted possession of 25 the original note constituted “matters outside the pleadings” 26 thereby subjecting its dismissal motion to Civil Rule 12(d) and 27 requiring the bankruptcy court, once it chose to consider those 28 matters, to afford the Wegesends some opportunity to marshal and

14 1 present evidence regarding OneWest’s asserted possession of the 2 original note.5 3 CONCLUSION 4 For the reasons set forth above, we VACATE the bankruptcy 5 court’s summary judgment dismissing the Wegesends’ adversary 6 proceeding, and we REMAND for further proceedings. 7 8 9 10 11 12 13 14 15 5 16 We have received and considered OneWest’s motion to dismiss this appeal as moot, and the Wegesends’ opposition thereto. 17 OneWest claims that this appeal is moot because the principles of res judicata now dictate that the Wegesends cannot prevail in 18 their adversary proceeding. We hereby DENY OneWest’s motion. 19 The only question before this Panel is whether the bankruptcy court erred when it dismissed the Wegesends’ adversary 20 proceeding. We have answered that question in the affirmative, and we can afford the Wegesends complete relief by vacating the 21 dismissal order and remanding for further proceedings. On remand, OneWest is free to raise any preclusion doctrines it 22 desires to raise, but those preclusion doctrines do not establish 23 that the Wegesends cannot prevail unless and until it is judicially determined that one of the doctrines should be applied 24 against the Wegesends. Because this determination requires the examination of evidence not previously presented and the 25 application of that evidence to the governing legal standards, 26 this determination should be made, in the first instance, by the bankruptcy court and not by this Panel. See generally Scovis v. 27 Henrichsen (In re Scovis), 249 F.3d 975, 984 (9th Cir. 2001) (stating that court will not consider issue raised for the first 28 time on appeal absent exceptional circumstances).