Russell James Piccirillo

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NOT FOR PUBLICATION
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
NORTHERN DIVISION
In re: ) Case No. 9:12-bk-14403-PC
)
RUSSELL JAMES PICCIRILLO, ) Chapter 7
)
) MEMORANDUM DECISION
Debtor. )
____________________________________)
On June 28, 2013, the court entered an Order Denying Debtor’s Motion for Sanctions
[Dkt. # 75] (“Order”). By ex parte application, Debtor, Russell James Piccirillo (“Piccirillo”)
objects to the form of the Order, and seeks entry of an alternate form of order or, alternatively, an
extension of time to file a notice of appeal. Tracy N. Gertzman, formerly Tracy N. Piccirillo
(“Gertzman”) and Robert A. Adelman (“Adelman”) oppose Piccirillo’s ex parte application.
The court will grant, in part, and deny, in part, the relief requested based on the following
findings of fact and conclusions of law pursuant to F.R.Civ.P. 52(a)(1),1 as incorporated into
FRBP 7052 and applied to contested matters in bankruptcy cases.
1 Unless otherwise indicated, all “Code,” “chapter” and “section” references are to the
Bankruptcy Code, 11 U.S.C. §§ 101-1330 after its amendment by the Bankruptcy Abuse
Prevention and Consumer Protection Act of 2005, Pub. L. 109-8, 119 Stat. 23 (2005). “Rule”
references are to the Federal Rules of Bankruptcy Procedure (“FRBP”), which make applicable
certain Federal Rules of Civil Procedure (“F.R.Civ.P.”). “LBR” references are to the Local
FILED & ENTERED
JUL 17 2013
CLERK U.S. BANKRUPTCY COURT
Central District of California
BY DEPUTY CLERK	zick
Case 9:12-bk-14403-PC Doc 105 Filed 07/17/13 Entered 07/17/13 17:13:56 Desc
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I. STATEMENT OF FACTS
On December 1, 2012, Piccirillo filed his voluntary petition under chapter 11 of the Code
in the above referenced case. Jeremy W. Faith was appointed as trustee. On April 1, 2013, the
court granted relief from the automatic stay to permit Gertzman to continue litigation of a
pending marital dissolution action in Case No. D344693, Piccirillo v. Piccirillo, in the Superior
Court of California, County of Ventura, to judgment. The order specifically provided that
“Movant may proceed in the non-bankruptcy forum to final judgment (including any appeals) in
accordance with applicable non-bankruptcy law,” but that “Movant is permitted to enforce its
final judgment only by [p]roceeding against the Debtor as to NON-estate property or earnings.”2
On May 31, 2013, Piccirillo filed a Notice of Motion and Motion for Sanctions of $5,000
and $25,000 for Violating the Automatic Stay (“Sanctions Motion”) seeking an award of $5,000
in attorneys fees and $25,000 in punitive damages for an alleged violation of the automatic stay
by Gertzman and her attorney, Adelman. On June 13, 2013, Gertzman and Adelman filed
written opposition to the Sanctions Motion. Piccirillo filed his reply on June 20, 2013. At a
hearing on June 27, 2013, the court denied the Sanctions Motion based on findings of fact and
conclusions of law stated on the record. The Order was entered on June 28, 2013.
On July 12, 2013, Piccirillo filed a document entitled Objection to Form of Order
Denying Motion for Sanctions [and] Notice of Motion and Motion for Order Entering
Alternative Form of Order [With or Without Hearing] in the Alternative Extending Time to File
Notice of Appeal (“Ex Parte Application”) objecting to the form of the Order entered on June 28,
2013, and seeking entry of an alternative form of order or, alternatively, an extension of the time
within which to file a notice of appeal under FRBP 8002. On July 14, 2013, Gertzman and
Adelman filed opposition to Piccirillo’s Ex Parte Application.
Bankruptcy Rules of the United States Bankruptcy Court for the Central District of California
(“LBR”).
2 Order Granting Motion for Relief from the Automatic Stay Under 11 U.S.C. § 362
(Action in Non-bankruptcy Forum) (Dkt. # 40).
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II. DISCUSSION
This court has jurisdiction over this contested matter pursuant to 28 U.S.C. §§ 157(b) and
1334(b). Piccirillo’s Ex Parte Application is a core proceeding under 28 U.S.C. § 157(b)(2)(A),
(G) and (O). Venue is appropriate in this court. 28 U.S.C. § 1409(a).
A. Debtor’s Objection to Form of Order Denying Motion for Sanctions
Debtor objects to the form of the Order because it “was not served on counsel as required
by Local Rule 9021-(b)(3)(A) [sic] and no opportunity to object was provided, nor was there any
notice of lodgment.”3 Debtor further objects on the grounds that “[t]he Court did not wait the 7
days required for a contested matter as required by Local Rule 9021-(b)(3)(C) [sic] and instead
entered an order within one day of the hearing.”4
On June 28, 2013, counsel for Gertzman and Adelman, as the prevailing party at the June
27th hearing, lodged a proposed order denying the Sanctions Motion. However, the court did not
sign Gertzman and Adelman’s proposed order. The court modified the order to delete
unnecessary factual findings and corrected it to properly reflect that Piccirillo’s motion was
denied based on findings of fact and conclusions of law stated on the record. The court has the
primary responsibility to make findings of fact and conclusions of law that represent the judge’s
own determination and to enter an accurate order thereon.5 This responsibility is not trumped by
the court’s local rules which simply contain a procedure for the prevailing party to lodge a
3 Ex Parte Application 2:8-10.
4 Id. 2:11-12.
5 The Ninth Circuit is critical of judges who shirk their responsibility to make and
preserve an accurate record and instead rely upon inaccurate findings and conclusions prepared
by one or more of the parties to a trial or contested matter. See Carpet Seaming Tape Licensing
Corp. v. Best Steam, Inc., 616 F.2d 1133, 1137 (9th Cir. 1980) (“[T]he trial judge relied in large
part upon findings of fact submitted by the parties which contain an abundance of superfluous
material and all to little of the facts needed to properly resolve the matters at issue. The
responsibility of the trial judge to make his or her own findings of fact has been emphasized
repeatedly.”)
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proposed order and the non-prevailing party to object to the form thereof, absent the court
ordering otherwise.6
With respect to the issue of notice of the Order, Piccirillo and his counsel had proper
notice of the entry of the Order. The court takes judicial notice of the BNC Certificate of Service
establishing that notice of the entered Order [Dkt. # 76] was sent by the court via United States
mail, first class mail, postage prepaid, to Piccirillo on June 30, 2013, and electronically by the
court to Piccirillo’s counsel on June 28, 2013.
Because the Order entered by the court correctly reflects that Piccirillo’s motion was
denied based on findings of fact and conclusions of law stated on the record, Piccirillo’s
objection to the form of the order is overruled and Piccirillo’s motion for order entering an
alternative order is denied.
B. Debtor’s Request for an Extension of Time to File Notice of Appeal.
Rule 8002(a) of the Federal Rules of Bankruptcy Procedure specifically provides that a
notice of appeal must be filed within 14 days from the date of entry of the judgment, order or
decree from which the appeal is to be taken. Rule 8002(c)(2) states, in pertinent part, that the
bankruptcy court may authorize an extension of time to file a notice of appeal provided the
request is “made by written motion filed before the time for filing a notice of appeal has
expired.” FRBP 8002(c)(2). Rule 8002's provisions are jurisdictional and are strictly construed.
See Delaney v. Alexander (In re Delaney), 29 F.3d 516, 518 (9th Cir. 1994); Slimick v. Silva (In
re Slimick), 928 F.2d 304, 306 (9th Cir. 1990); Greene v. United States (In re Souza), 795 F.2d
855, 857 (9th Cir. 1986). Therefore, the timely filing of a notice of appeal is mandatory.
Warrick v. Birdsell (In re Warrick), 278 B.R. 182, 185 (9th Cir. BAP 2002); Key Bar Invs., Inc.
v. Cahn (In re Cahn), 188 B.R. 627, 630 (9th Cir. BAP 1995).
In this case, the Order was entered on June 28, 2013 and the 14-day period for filing a
notice of appeal expired on July 12, 2013. Piccirillo’s Ex Parte Motion was filed on July 12,
2013, and is timely. Piccirillo’s request for an extension of time is not addressed substantively in
6 LBR 9021-1(b).
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the opposition filed by Gertzman and Adelman. Accordingly, the court grants Piccirillo’s
request and extends the deadline to file a notice of appeal to and including August 2, 2013.
III. CONCLUSION
For the reasons stated, Piccirillo’s objection to the form of the Order will be overruled,
Piccirillo’s motion seeking entry of an alternative order will be denied, and Piccirillo’s motion
seeking an extension of time to file a notice of appeal will be granted through and including
August 2, 2013.
A separate order will be entered consistent with this Memorandum Decision.
###
Date: July 17, 2013
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NOTICE OF ENTERED ORDER AND SERVICE LIST
Notice is given by the court that a judgment or order entitled (specify): Memorandum Decision was
entered on the date indicated as Entered 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) 07-17-2013 , 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.
Jeremy W. Faith (TR) jfaith@7trustee.net,
C118@ecfcbis.com;Helen@MarguliesFaithLaw.com;leedowding@gmail.com
Sharon C Hughes schug98@aol.com, shughes@hd-law.com
Sharon C Hughes schug98@aol.com, shughes@hd-law.com
Craig G Margulies craig@marguliesfaithlaw.com,
staci@marguliesfaithlaw.com;denisse@marguliesfaithlaw.com;fahim@marguliesfaithla
w.com
Shai S Oved ssoesq@aol.com
United States Trustee (ND) ustpregion16.nd.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:
Service information continued
on attached page
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