Filed: Dec. 20, 2019
Latest Update: Dec. 20, 2019
Summary: ORDER AFTER HEARING ON MOTION BY THE DEFENDANT AND CHAPTER 7 TRUSTEE, WESLEY H. AVERY, FOR ORDER DISMISSING COMPLAINT PURSUANT TO FRCP 12(b)(1) AND 12(b)(6) WITHOUT LEAVE TO AMEND DUE TO LACK OF SUBJECT MATTER JURISDICTION, ISSUE PRECLUSION, AND CLAIM PRECLUSION (Adv. Dkt. 6) ROBERT KWAN , Bankruptcy Judge . The "Motion by the Defendant and Chapter 7 Trustee, Wesley H. Avery, for Order Dismissing Complaint Pursuant to FRCP 12(b)(1) and 12(b)(6) Without Leave to Amend Due to Lack of Subject
Summary: ORDER AFTER HEARING ON MOTION BY THE DEFENDANT AND CHAPTER 7 TRUSTEE, WESLEY H. AVERY, FOR ORDER DISMISSING COMPLAINT PURSUANT TO FRCP 12(b)(1) AND 12(b)(6) WITHOUT LEAVE TO AMEND DUE TO LACK OF SUBJECT MATTER JURISDICTION, ISSUE PRECLUSION, AND CLAIM PRECLUSION (Adv. Dkt. 6) ROBERT KWAN , Bankruptcy Judge . The "Motion by the Defendant and Chapter 7 Trustee, Wesley H. Avery, for Order Dismissing Complaint Pursuant to FRCP 12(b)(1) and 12(b)(6) Without Leave to Amend Due to Lack of Subject M..
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ORDER AFTER HEARING ON MOTION BY THE DEFENDANT AND CHAPTER 7 TRUSTEE, WESLEY H. AVERY, FOR ORDER DISMISSING COMPLAINT PURSUANT TO FRCP 12(b)(1) AND 12(b)(6) WITHOUT LEAVE TO AMEND DUE TO LACK OF SUBJECT MATTER JURISDICTION, ISSUE PRECLUSION, AND CLAIM PRECLUSION (Adv. Dkt. 6)
ROBERT KWAN, Bankruptcy Judge.
The "Motion by the Defendant and Chapter 7 Trustee, Wesley H. Avery, for Order Dismissing Complaint Pursuant to FRCP 12(b)(1) and 12(b)(6) Without Leave to Amend Due to Lack of Subject Matter Jurisdiction, Issue Preclusion, and Claim Preclusion (Docket No. 6)" ("Motion") came on for hearing on December 18, 2019 at 11:00 a.m. before the above-referenced bankruptcy court, the Honorable Robert N. Kwan, Bankruptcy Judge, presiding.
The Defendant, Wesley H. Avery ("Defendant"), as Chapter 7 Trustee for the Bankruptcy Estate of In re Arturo Gonzalez, appeared through his attorneys of record, Law Offices of Brett Curlee, through attorney, Brett B. Curlee, Esq. The Plaintiff and Debtor, Arturo Gonzalez, an individual, dba Long Beach Realty, Inc., dba South Bay Realty; dba Mindset, aka Art Gonzalez; aka Art Gonzalez, Jr. ("Plaintiff"), appeared in pro se. No other appearances were made or stated for the record.
The Court, having reviewed the Notice of Motion (Docket No. 8), the Motion (Docket No. 6), Defendant's Request of Judicial Notice in Support of the Motion (Docket No. 7), Plaintiff's Response to the Motion (Docket No. 10), and Defendant's Reply to the Opposition (Docket No. 11), and having heard the oral argument of Defendant's counsel and the Plaintiff at the hearing, and having determined that the Motion was timely and properly served, and the Court having adopted the tentative ruling which is attached hereto as Exhibit "1" as its ruling and having made such other further and additional findings of fact and conclusions of law on the record as was stated on the record at the time of the hearing on the Motion after oral argument, IT IS HEREBY ORDERED THAT:
1. The Motion is GRANTED FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED (BUT NOT FOR LACK OF SUBJECT MATTER JURISDICTION); and,
2. The Complaint and Adversary Proceeding are DISMISSED without leave to amend, with prejudice.
EXHIBIT "1"
United States Bankruptcy Court
Central District of California
Los Angeles
Judge Robert Kwan, Presiding
Courtroom 1675 Calendar
Wednesday, December 18, 2019 Hearing Room 1675
11:00 AM
2:15-25283 Arturo Gonzalez Chapter 7
Adv#: 2:19-01483 Gonzalez v. Wesley H. Avery, as the Chapter 7 trustee for the
#3.10 Cont'd hearing re: Motion by the defendant and chapter 7 trustee, Wesley H. Avery, for order dismissing complaint pursuant to FRCP 12(B)(1) AND 12(b)(6) without leave to amend due to lack of subject matter jurisdiction, issue preclusions; and claim preclusion fr. 12/17/19
Docket 6
Tentative Ruling:
Deny in part and grant in part defendant's motion to dismiss the complaint and adversary proceeding. Deny motion to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1) because the claims in the complaint do not seek to alter or amend the judgment on appeal. Grant motion to dismiss for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6) as follows: (1) issue preclusion bars plaintiff from bringing the first cause of action that trustee breached his fiduciary duty because the same issue of whether the trustee breached his fiduciary duty was decided in favor of trustee when the court decided that debtor was equitably estopped from claiming a homestead exemption; (2) issue preclusion bars plaintiff from bringing the second cause of action that trustee breached his fiduciary duty in selling the residence because the same issue of whether the trustee breached his fiduciary duty was decided in favor of trustee when the court decided that debtor was equitably estopped from claiming a homestead exemption; (3) plaintiff fails to state a claim upon which relief can be granted by alleging that trustee unnecessarily adjudicated plaintiff as a bankruptcy because there was no such adjudication since plaintiff became a debtor when he filed his voluntary petition for relief under Chapter 7 of the Bankruptcy Code, 11 U.S.C. 301; (4) claim preclusion bars plaintiff from bringing the third cause of action that trustee unnecessarily revoked plaintiffs because the same claim of whether plaintiffs discharge should be revoked was decided in favor of trustee when the court entered judgment revoking plaintiffs discharge. Pursuant to Federal Rule of Evidence
United States Bankruptcy Court
Central District of California
Los Angeles
Judge Robert Kwan, Presiding
Courtroom 1675 Calendar
Wednesday, December 18, 2019 Hearing Room 1675
11:00 AM
CONT... Arturo Gonzalez Chapter 7
201, the court takes judicial notice.of decisions in trustee's favor determining that he did not breach any fiduciary duty and that plaintiffs discharge should be revoked. Appearances are required on 12/18/19, but counsel and selfrepresented parties may appear by telephonein accordance with the court's telephone appearance procedures posted online on the court's website.
Party Information
Debtor(s):
Arturo Gonzalez Pro Se
Defendants(s):
Wesley H. Avery, as the Chapter 7 Represented By
Brett B Curlee
Plaintiff(s):
Arturo Gonzalez Pro Se
Trustee(s):
Wesley H Avery (TR) Represented By
Brett B Curlee
Dennis E McGoldrick
