Freddy Burton v. Infinity Capital Management

dissenting:

The majority refuses to extend quasi-judicial immunity to Salvatore Gugino, a private attorney, based on the majority’s conclusion that Gugino performed a non-discretionary act in drafting a show-cause order at Judge Israel’s request. In so concluding, I believe that the majority has not only misapplied the precedents on point, but has produced a very unfair result. I therefore respectfully dissent.

To begin with, the majority and I actually agree on a number of key points. We agree, for example, that immunity “is not reserved solely for judges, but extends to nonjudicial officers for all claims relating to the exercise of judicial functions.” In re Castillo, 297 F.3d 940 , 947 (9th Cir.2002) (extending immunity to a Chapter 13 bankruptcy trustee) (internal quotation marks omitted). And we agree that immunity depends on “the nature of the function performed and not [on] the identity of the actor performing it.” Id. at 948. Finally, we recognize that “absolute quasi-judicial immunity will be extended to nonjudicial officers only if they perform official duties that are functionally comparable to those of judges, i.e., duties that involve the exercise of discretion in…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FREDDY JOE BURTON; JAN PAUL No. 12-15618

KOCH,

Plaintiffs-Appellees, D.C. No. 2:11-cv-01129- v. RCJ-PAL

INFINITY CAPITAL MANAGEMENT;

ANNE PANTELAS; SALVATORE C. OPINION

GUGINO,

Defendants-Appellants,

and

RONALD J. ISRAEL,

Defendant.

Appeal from the United States District Court for the District of Nevada Robert Clive Jones, Chief District Judge, Presiding

Argued and Submitted November 7, 2013—San Francisco, California

Filed June 4, 2014 Before: Sidney R. Thomas, Ronald Lee Gilman*, and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Thomas; Dissent by Judge Gilman

SUMMARY**

Quasi-Judicial Immunity

Affirming the district court’s denial of summary judgment, the panel held that an attorney who prepared an order to show cause for a judge was not entitled to absolute quasi-judicial immunity on a claim of violation of the automatic stay provision of the Bankruptcy Code.

Dissenting, Judge Gilman wrote that the attorney was entitled to quasi-judicial immunity because he was in effect acting as the judge’s law…

This case requires us to decide whether an attorney who prepares an order to show cause for a judge is entitled to absolute quasi-judicial immunity. We hold that he is not and affirm the judgment of the district court.

I

Freddy Joe Burton (“Burton”) was injured in a bicycle-automobile collision. He incurred $271,101.87 in related medical expenses and loans and retained Jan Paul Koch (“Koch”) to file a lawsuit on his behalf. Burton granted certain creditors, including Valley Hospital Medical Center, liens on his personal injury claim. Valley Hospital then sold its account receivable to Infinity Capital Management (“Infinity”), the president of which is Anne Pantelas (“Pantelas”). Koch settled Burton’s personal injury claim for $185,000.

Koch placed the settlement funds in his client trust fund account and paid himself his attorney fee and costs. Koch then recommended that Burton declare bankruptcy and hire bankruptcy attorney David Crosby (“Crosby”). After paying a retainer fee to Crosby and receiving his personal injury settlement exemption, Burton had $104,088.10 left of his settlement in the trust fund account.

That same month, Nancy Allf (“Allf’), who represented…