NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 24 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: CLARK WARREN BAKER, No. 23-55068

Debtor. D.C. No. 2:22-cv-05174-MCS ______________________________

JAMES MURTAGH, M.D., MEMORANDUM*

Appellant,

v.

BARUCH C. COHEN; D. DAVID STEELE,

Appellees.

Appeal from the United States District Court for the Central District of California Mark C. Scarsi, District Judge, Presiding

Submitted January 10, 2024** Pasadena, California

Before: RAWLINSON, MELLOY,*** and H.A. THOMAS, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Michael J. Melloy, United States Circuit Judge for the U.S. Court of Appeals for the Eighth Circuit, sitting by designation. James Murtagh, M.D., appeals the district court’s affirmance of the

bankruptcy court’s application of laches to deny his motion for sanctions against

Attorney D. David Steele. “We independently review the bankruptcy court’s

decision without deference to the district court.” Cossu v. Jefferson Pilot Sec.

Corp. (In re Cossu), 410 F.3d 591, 595 (9th Cir. 2005). We review for an abuse of

discretion both the bankruptcy court’s exercise of its inherent sanctioning authority

and its application of laches. See Hale v. U.S. Trustee, 509 F.3d 1139, 1148–49

(9th Cir. 2007) (inherent authority); Beaty v. Selinger (In re Beaty), 306 F.3d 914,

921 (9th Cir. 2002) (laches). An abuse of discretion occurs when a court makes a

clearly erroneous factual determination, a material legal error, or otherwise reaches

an ultimate determination outside the wide boundaries established by the

governing law and material facts. See, e.g., Fellowship of Christian Athletes v. San

Jose Unified Sch. Dist. Bd. of Educ., 82 F.4th 664, 680 (9th Cir. 2023); United

States v. Washington, 98 F.3d 1159, 1163 (9th Cir. 1996) (“[A] reviewing court

may not reverse unless it has a ‘definite and firm conviction that the court below

committed a clear error of judgment in the conclusion it reached upon weighing of

the relevant factors.’” (quoting Kayes v. Pacific Lumber Co., 51 F.3d 1449, 1464

(9th Cir. 1995))).

Laches may apply where a party has actual or inquiry notice as to a potential

claim or right, unreasonably delays in asserting that right, and causes prejudice to

2 the opposing party through such delay. See Kling v. Hallmark Cards, Inc., 225

F.3d 1030, 1036 (9th Cir. 2000) (“[A]ny delay is to be measured from the time that

the plaintiff knew or should have known about the potential claim at issue.”). The

bankruptcy court determined Dr. Murtagh was on actual or inquiry notice of the

material facts behind his November 2021 motion for sanctions potentially as early

as 2015 and no later than 2018. This conclusion was based on several items,

including: an email Murtagh sent to Steele; a letter Murtagh’s attorney sent to

Steele’s client Robert Leppo; attorney Baruch C. Cohen’s withdrawal as counsel

after the disclosure of wrongdoing by Debtor Clark Baker; and Murtagh’s failure

to identify any materials supporting a later date for commencement of the laches

period despite having been granted ample discovery. The bankruptcy court also

found actual prejudice based on testimony describing a witness’s inability to

recollect aged facts or locate notes.

We find no clear error in the bankruptcy court’s well-supported findings, no

legal error in its analysis of the laches doctrine, and no abuse of its broad discretion

in applying laches to deny the motion for sanctions. We affirm.1

1 Murtagh asserts no arguments in his briefs regarding unclean hands as a bar to the application of laches. He also makes no argument as to appellee Baruch C. Cohen. As such, we treat arguments as to unclean hands or Cohen as waived. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal, arguments not raised by a party in its opening brief are deemed waived.”).

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