UNITED STATES BANKRUPTCY COURT

1

EASTERN DISTRICT OF CALIFORNIA

2 FRESNO DIVISION 3 4 In re ) Case No. 18-14689-B-7 ) 5 JAVIER GONZALEZ, ) ) 6 ) Debtor. ) DCN: FW-5 7 ) 8 ) ) ) 9 10

11 RULING ON TRUSTEE’S MOTION TO COMPEL ANNA GONZALEZ’S

RESPONSES TO DISCOVERY REQUESTS

12 13 The court issued a tentative ruling that Ms. Gonzalez’s 14 default on the motion would be entered but that no relief 15 requested by movant would be ordered because Ms. Gonzalez is not 16 a “party” to the Trustee’s turnover motion and Ms. Gonzalez is 17 not a defendant in an adversary proceeding brought against her 18 by the Trustee. Hearing on this motion was held October 9, 2019. 19 Appearances were noted in the record. The court took the matter 20 under advisement. 21 This motion was set for hearing on 28 days’ notice as 22 required by Local Rule of Practice (“LBR”) 9014-1(f)(1). The 23 failure of the creditors, the debtor, the U. S. Trustee, or any 24 other party in interest to file written opposition at least 14 25 days prior to the hearing as required by LBR 9014-1(f)(1)(B) may 26 be deemed a waiver of any opposition to the granting of the 27 motion. Cf. Ghazali v. Moran, 46 F. 3d 52, 53 (9th Cir. 1995). 28 (9th Cir. 2006). Therefore, the default of Ms. Gonzalez is 1 entered. Upon default, factual allegations will be taken as true 2 (except those relating to amount of damages). Televideo Systems, 3 Inc. v. Heidenthal, 826 F. 2d 915, 917 (9th Cir. 1987). 4 Constitutional due process requires that a movant make a prima 5 facie showing that they are entitled to a default which the 6 movant has done here. But the relief requested cannot be 7 granted as explained below. 8 The trustee has moved to compel the turnover of property, 9 which was opposed both by the debtor and Anna Gonazlez. 10 Trustee’s interrogatories and requests for production in 11 connection with the turnover motion directed to Ms. Gonzalez 12 have not been answered. Doc. #48. 13 Anna Gonzalez, through counsel, appeared at the first 14 hearing on the turnover motion and opposed the Trustee’s request 15 for relief. One ground of opposition was that an adversary 16 proceeding would be the appropriate forum for this dispute. Anna 17 Gonzalez is not a debtor. A request for turnover against a non- 18 debtor must be by adversary proceeding. Fed. R. Bankr. Proc. 19 7001(1). 20 The court is aware there is a dispute as to ownership of 21 the property subject to Trustee’s turnover motion. An adversary 22 proceeding has not been filed against Ms. Gonzalez. So, even 23 though Ms. Gonzalez has not opposed this discovery motion, it is 24 questionable whether she can be compelled to respond to 25 discovery demands that are only authorized against parties. The 26 docket does not reflect Ms. Gonzalez’s agreement to be bound by 27 a ruling on the turnover motion. At oral argument on this 28 motion, Trustee’s counsel conceded that but also urged that Ms. 1 Gonzalez’s counsel said at the first hearing on the turnover 2 motion that she would cooperate with discovery requests. 3 Agreeing to cooperate with discovery requests by a non- 4 party is not consenting to the application of party discovery 5 rules. Ms. Gonzalez is subject to subpoena under Fed. R. Civ. 6 Proc. 45 (applicable in bankruptcy cases by Fed. R. Bankr. Proc. 7 9016). On the record at the hearing on this motion, counsel for 8 Ms. Gonzalez stated that he would accept service of a subpoena 9 on behalf of Ms. Gonzalez and that subpoena can include document 10 requests. 11 Fed. R. Civ. Proc. 37(a)(3)(B)(iii) is made applicable to 12 this contested matter by operation of Federal Rule of Bankruptcy 13 Procedure 9014 and 7037 and permits the Trustee to move for an 14 order compelling answers to interrogatories propounded to a 15 party under Rule 33. 16 Fed. R. Civ. Proc. 37(a)(3)(B)(iv) is made applicable to 17 this contested matter by operation of Fed. R. Bankr. Proc. 9014 18 and 7037 and permits the Plaintiff to move for an order 19 compelling production if a party fails to produce documents or 20 failing to permit inspection of documents as requested under 21 Rule 34. 22 Ms. Gonzalez has not responded to any of the Trustee’s 23 communications regarding the production of documents and 24 interrogatories. Doc. #51. But she is not a “party” to the 25 motion and there is no record she has ever agreed to be a party. 26 At oral argument, Trustee’s counsel referred the court to 27 an unpublished Ninth Circuit Bankruptcy Appellate Panel 28 decision, Diatom, LLC v. Committee of Creditors Holding 1 Unsecured Claims, et al (In re Gentile Family Industries), BAP 2 CC-13-1563-KiTaD, 2014 WL 4091001 (BAP 9th Cir. August 19, 2014). 3 The court has reviewed the Memorandum Decision. It has no 4 precedential value. See 9th Cir. BAP Rule 8013-1. Notably that 5 court found that it was error (albeit “harmless error”) for the 6 bankruptcy court to rule on the validity of an unexpired lease 7 in a contested matter. Id. at *5-*6. But that court did not need 8 to reach that conclusion because in Gentile “for all practical 9 purposes an adversary proceeding was held in the case.” Id. Not 10 the case here based on the record before the court. 11 Gentile is also distinguishable. There, objection to the 12 forum was not fully presented to the bankruptcy court. Id. at 13 *6. The parties there had ample time to air their positions 14 which has not occurred here since the underlying issue—ownership 15 of property—has not been tried. Also, in Gentile, there were few 16 material facts and the issue was primarily one of law. Id. 17 Again, not the case here. This dispute is in the early discovery 18 stages. The court is not going to now rule that proceeding 19 against Anna Gonzalez in this contested matter will not affect 20 her substantial rights or be consistent with substantial 21 justice. 22 Default of Ms. Gonzalez will be entered. No relief will be 23 granted. The court will prepare a separate order. 24 25 26 27 28 Instructions to Clerk of Court 1 Service List - Not Part of Order/Judgment 2 3 The Clerk of Court is instructed to send the Order/Judgment or other court generated document transmitted herewith to the 4 parties below. The Clerk of Court will send the Order via the BNC or, if checked X , via the U. S. mail. 5

6 Javier Ramirez Gonzalez 7 8531 Road 234 Terra Bella CA 93270 8 9 James Edward Salven PO Box 25970 10 Fresno CA 93729

11 David C. Johnston 12 1600 G Street, Suite 102 Modesto CA 95354 13 Peter A. Sauer 14 7650 North Palm Avenue, Suite 101 15 Fresno CA 93711

16 Thomas O. Gillis 17 1006 H St #1 Modesto CA 95354 18 Office of the U. S. Trustee 19 United States Courthouse 20 2500 Tulare Street, Room 1401 Fresno CA 93721 21 22 23 24 25 26 27 28