American Contractors Indemnity Company v. Dorado

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Pagter and Miller
525 N Cabrillo Pk Dr
Suite 104
Santa Ana, CA
92701
(714) 541-6072
R. Gibson Pagter, Jr., CA SBN 116450
Misty Perry Isaacson, CA SBN 193204
PAGTER AND MILLER
525 N. Cabrillo Park Drive, Suite 104
Santa Ana, CA 92705
Telephone: (714) 541-6072
Facsimile; (714) 541-6897
Email: gibson@pagterandmiller.com
Email: misty@pagterandmiller.com
Attorneys for American Contractors Indemnity Company
IN THE UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA – LOS ANGELES DIVISION
In re:
MARIA DORADO,
Debtor.
AMERICAN CONTRACTORS
INDEMNITY COMPANY,
Plaintiff,
v.
MARIA DORADO,
Defendant.
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Case No. 2:12-bk-18764-TD
Adversary No. 2:12-ap-01777-TD
Chapter 7
STATEMENT OF UNCONTROVERTED
FACTS AND CONCLUSIONS OF LAW
IN SUPPORT OF PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT
AGAINST DEFENDANT MARIA
DORADO
Date: May 23, 2013
Time: 11:00 a.m.
Ctrm: 1345
American Contractors Indemnity Company (the “Plaintiff” or “ACIC”), acting
through its counsel of record in this matter, hereby submits its Statement of
Uncontroverted Facts and Conclusions of Law in Support of its Motion for Summary
FILED & ENTERED
SEP 18 2013
CLERK U.S. BANKRUPTCY COURT
Central District of California
BY DEPUTY CLERK	penning
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Pagter and Miller
525 N Cabrillo Pk Dr
Suite 104
Santa Ana, CA
92701
(714) 541-6072
Judgment pursuant to Local Bankruptcy Rules 9013-1 and 7056-1 . Any of the following
statements of fact, which are deemed to constitute conclusions of law are hereby
adopted as conclusions of law; any of the following conclusions of law, which are
deemed to constitute statements of fact are hereby adopted as statements of fact.
UNCONTROVERTED FACTS
UNCONTROVERTED FACTS SUPPORTING EVIDENCE
1. Dorado is an individual who
filed her voluntary Chapter 13 Petition on
March 12, 2012 (the “Petition Date”).
[See Declaration of Misty Perry
Isaacson (the “Isaacson
Declaration”) paragraph 2. ]
2. ACIC is a surety company
licensed to do business in California.
[See Declaration of Patty Lei
Chen (the “Chen Declaration”)
paragraph 3.]
3. Efren Dorado (“Efren”) married
Debtor on or about November 28, 1992.
Two children were born to Efren and Debtor
during their marriage. A Judgment of
Dissolution was entered on or about
January 17, 2007.
[See Chen Declaration
paragraph 4.]
4. Efren died intestate on or
about February 2, 2007. At the time of
Efren’s death he was unmarried. Efren and
Debtor’s children were the only surviving
issue of Efren and, therefore, the only heirs
of his estate.
[See Chen Declaration
paragraph 5.]
5. A probate estate proceeding
for Efren (“Probate Estate”) was filed on
March 13, 2007 in the Superior Court of
California, County of Los Angeles, Case No.
VP011458 (“LASC Probate Case”).
[See Chen Declaration
paragraph 6.]
6. On March 20, 2007, Debtor
was appointed Special Administrator of the
Probate Estate, conditioned on the posting
of a probate bond in the penal sum of
$150,000. On that same date ACIC issued
its probate bond (No. 437576) in the penal
sum of $150,000 (“Special Administrator
Bond”), for and on behalf of the Probate
Estate concerning Debtor’s conduct while
Administrator of the same
[See Exhibit 1; Chen
Declaration paragraph 7.]
7. A separate guardianship
estate proceeding was also filed concerning
[See Chen Declaration
paragraph 8.]
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Pagter and Miller
525 N Cabrillo Pk Dr
Suite 104
Santa Ana, CA
92701
(714) 541-6072
Debtor’s minor children (“Guardianship
Estates”) in the Superior Court of California,
County of Los Angeles, Case No.
VP011460 (“LASC Guardianship Case”).
8. On March 20, 2007,
Defendant was appointed temporary
guardian (“Temporary Guardian”) of the
Guardianship Estates of her minor children,
conditioned on the posting of a fiduciary
bond in the penal sum of $100,000. On that
same date ACIC issued its fiduciary bond
(No. 437577) in the penal sum of $100,000
(“Temporary Guardian Bond”), for and on
behalf of the Guardianship Estates
concerning Debtor’s conduct while
Temporary Guardian of the same.
[See Exhibit 2; Chen
Declaration paragraph 9.]
9. On May 22, 2007 Debtor was
subsequently appointed Administrator of the
Probate Estate with limited Independent
Administration of Estates Act (“IAEA”)
powers (“Administrator”), conditioned upon
the posting of a $250,000 probate bond. On
June 4, 2007. ACIC issued its probate bond
(No. 438743) in the penal sum of $250,000
(“Administrator Bond”), for and on behalf of
the Probate Estate concerning Debtor’s
conduct while Administrator of the same.
[See Exhibit 3; Chen
Declaration paragraph 10.]
10. On May 22, 2007, Defendant
was appointed the permanent guardian of
the Guardianship Estates of her minor
children (“Guardian”), conditioned on the
posting of a subsequent fiduciary bond in
the penal sum of $100,000. On June 4,
2007, ACIC issued its fiduciary bond (No.
438744) in the penal sum of $100,000
(“Guardian Bond”), for and on behalf of the
Guardianship Estate concerning Debtor’s
conduct while Guardian of the same.
[See Exhibit 4; Chen
Declaration paragraph 11.]
11. On or about August 19, 2008,
the LASC suspended Debtor’s duties as the
Administrator of the Probate Estate and
Guardian of the Guardianship Estates.
Contemporaneously with Debtor’s
suspension, Wendy Hatch (“Hatch”), a
[See Chen Declaration
paragraph 12.]
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Pagter and Miller
525 N Cabrillo Pk Dr
Suite 104
Santa Ana, CA
92701
(714) 541-6072
private professional fiduciary was appointed
Special Administrator of the Probate Estate
and Temporary Guardian of the
Guardianship Estate. Thereafter on
January 6, 2009, the LASC appointed Hatch
as the Successor Administrator of the
Probate Estate and the Successor Guardian
of the Guardianship Estate.
12. The LASC ordered Debtor to
file accountings as both Administrator and
Guardian. She did so. Both Hatch and
Guardian Ad Litem for the minor children,
Daniel Wilson (“Wilson”) filed objections to
same, asserting various breaches of
Debtor’s fiduciary duties.
[See Chen Declaration
paragraph 13.]
13. Months of contentious
litigation ensued concerning a litany of
alleged improper transactions by Debtor,
including but not limited to her withdrawals
plus dissipation of no less than $292,000
from the Guardianship Estate bank
accounts, without notice or prior court
approval.
[See Chen Declaration
paragraph14.]
14. In lieu of continued litigation
regarding the propriety of Debtor’s actions
as a fiduciary to the two estates, the parties
stipulated to resolve all claims between
them arising out of the actions and
omissions of the Debtor as both Guardian
and Administrator. On February 18, 2010, a
Stipulation for Good Faith Settlement and
Petition for Approval of Same (“Stipulation”)
was filed in the LASC Probate and LASC
Guardianship Cases.
[See Exhibit 5; Chen
Declaration paragraph 15.]
15. The Stipulation provided that
due to Debtor’s breach of her fiduciary
duties to the Guardianship Estate and the
Probate Estate, the LASC would surcharge
Defendant and enter bond judgments
against Debtor and ACIC, jointly and
severally in favor of Hatch, as follows
(“Bond Judgment”):
i. $25,000, as the Successor
Guardian, to the Guardianship Estate; and
ii. $20,000, as the Successor
[See Exhibit 6; Chen
Declaration paragraph 16.]
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Pagter and Miller
525 N Cabrillo Pk Dr
Suite 104
Santa Ana, CA
92701
(714) 541-6072
Administrator, to the Probate Estate.
16. On April 1, 2010, the LASC
Court entered its Order approving the
Stipulation.
[See Exhibit 6; Chen
Declaration paragraph 17.]
17. As further required by the
LASC’s order, ACIC promptly satisfied the
Bond Judgment and tendered payment to
Hatch for the same.
[See Exhibit 7; Chen
Declaration paragraph 18.]
18. After satisfying the Bond
Judgment, ACIC filed Motions for Judgment
against Debtor in both the LASC Probate
and Guardianship Cases (collectively
“Motions”). A hearing was held on ACIC’s
Motions and for good cause appearing
therefor, on July 8, 2010, the LASC entered
Judgments against the Debtor and in favor
of ACIC in the amounts of $50,572.10 and
$45,572.10 for Debtor’s breach of fiduciary
duties to the Guardianship Estates and
Probate Estate, respectively (“LASC
Judgment”).
[See Exhibit 8; Chen
Declaration paragraph 19.]
19. Because of Defendant’s
defalcations of her fiduciary duties as
determined by the LASC, ACIC has also
incurred necessary costs and expenses in
collection of the Judgment.
[See Exhibit 9; Isaacson
Declaration paragraph 3.]
CONCLUSIONS OF LAW
CONCLUSIONS OF LAW SUPPORTING EVIDENCE
1. This Court has jurisdiction over this
adversary proceeding.
28 U.S.C. §§ 151, 157, 1334.
2. Venue in this Court is proper. 28 U.S.C. § 1409
3. This adversary proceeding is a core
proceeding.
28 U.S.C. § 157(b)(2)(P).
4. ACIC filed its Complaint in this adversary
proceeding on June 11, 2012. The filing
of this Motion is more than 20 days later,
thereby satisfying the first prong of
Federal Rules of Bankruptcy Procedure
(“FRBP”) 7056(a).
FRBP 7056(a)
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Pagter and Miller
525 N Cabrillo Pk Dr
Suite 104
Santa Ana, CA
92701
(714) 541-6072
5. A preponderance of the evidence is the
standard of proof in actions to determine
dischargeability of debt pursuant to 11
U.S.C. '523(a).
Grogan v. Garner, 498 U.S.
279, 111 S.Ct. 654, 659, 112
L.Ed.2d 755 (1991) (hereinafter
“Grogan Case”).
6. The doctrine of collateral estoppel
applies to non-dischargeability matters.
Grogan Case.
7. Whether a relationship is a “>fiduciary”=
one within the meaning of section
523(a)(4) is a question of federal law.
In re Lewis, 97 F.3d 1182 (9th
Cir. 1996) (hereinafter “Lewis
Case”).
8. A fiduciary relationship imposed by
statute may cause a person to be
considered a fiduciary under 11 U.S.C.
§ 523(a)(4) if the statute: (1) defines the
trust res; (2) identifies the fiduciary’s fund
management duties; and (3) imposes
obligations on the fiduciary prior to the
alleged wrongdoing.
In re Starzer, 331 B.R. 444, 446
(Bankr. E.D. Cal 2005)
(hereinafter “Starzer Case”)
9. The property of the decedent, Efren
Dorado’s Probate Estate (“Probate
Estate”) was defined by and subject to
administration under the California
Probate Code.
California Probate Code 62 and
7601.
10. The Defendant’s duties as the
Administrator of the Probate and
Guardianship Estates were outlined in
the California Probate Code.
California Probate Code 9600
11. The provisions of the California Probate
Code were invoked by the Defendant’s
Appointment as the Probate Estate
Administrator on March 20, 2007, prior to
any wrongdoing that resulted in the
Stipulated Surcharge Judgments.
California Probate Code 9601
12. The Defendant was a fiduciary within the
meaning of 11 U.S.C. § 523(a)(4).
Lewis Case
Starzer Case
13. The Defendant’s breach of fiduciary
duties to the Probate and Guardianship
Estates, even if innocent, constitute a
defalcation.
Lewis Case
14. The Defendants defalcations fall well
within the broad definition of 11 U.S.C.
Grogan Case
Lewis Case
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Pagter and Miller
525 N Cabrillo Pk Dr
Suite 104
Santa Ana, CA
92701
(714) 541-6072
§ 523(a)(4) and are not dischargeable.
Starzer Case
Dated: April 3, 2013 PAGTER AND MILLER
/s/ Misty Perry Isaacson
_____________________________
Misty Perry Isaacson, Attorneys for
American Contractors Indemnity
Company
###
Date: September 18, 2013
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Pagter and Miller
525 N Cabrillo Pk Dr
Suite 104
Santa Ana, CA
92701
(714) 541-6072
NOTICE OF ENTERED ORDER AND SERVICE LIST
Notice is given by the court that a judgment or order entitled (specify): STATEMENT OF
UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT AGAINST DEFENDANT MARIA DORADO was entered on the date
indicated as AEntered@ on the first page of this judgment or order and will be served in the manner stated
below:
1. SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF) B Pursuant to controlling
General Orders and LBRs, the foregoing document was served on the following persons by the court via
NEF and hyperlink to the judgment or order. As of (date) 09/11/13, the following persons are currently on
the Electronic Mail Notice List for this bankruptcy case or adversary proceeding to receive NEF
transmission at the email addresses stated below.
Wesley H Avery (TR) wamiracle6@yahoo.com, jmoattrustee@gmail.com;C117@ecfcbis.com
R G Pagter gibson@pagterandmiller.com,
pandm@pagterandmiller.com;pagterandmiller@yahoo.com
Misty A Perry Isaacson misty@pagterandmiller.com
United States Trustee (LA) ustpregion16.la.ecf@usdoj.gov
Service information continued on attached
page
2. SERVED BY THE COURT VIA UNITED STATES MAIL: A copy of this notice and a true copy of this
judgment or order was sent by United States mail, first class, postage prepaid, to the following persons
and/or entities at the addresses indicated below:
Alan Ross
316 W 2nd St #1002
Los Angeles, CA 90012
Service information continued on attached
page
3. TO BE SERVED BY THE LODGING PARTY: Within 72 hours after receipt of a copy of this judgment
or order which bears an AEntered@ stamp, the party lodging the judgment or order will serve a complete
copy bearing an AEntered@ stamp by United States mail, overnight mail, facsimile transmission or email
and file a proof of service of the entered order on the following persons and/or entities at the addresses,
facsimile transmission numbers, and/or email addresses stated below:
Service information continued on
attached page
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