Banga v. Bhutani

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MEMORANDUM RE PLAINTIFF’S
MOTION TO AMEND JUDGMENT 	-1-
UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
In re
SHALINI POONAM BHUTANI,
Debtor.
PAL S. BANGA,
Plaintiff,
vs.
SHALINI POONAM BHUTANI,
Defendant.
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Case No: 	04-30875 TEC
Chapter 7
Adv. Proc. No. 	04-03161 TC
MEMORANDUM RE PLAINTIFF’S
MOTION TO AMEND JUDGMENT
The court held a trial in this action, in which it determined
that Defendant converted Plaintiff’s funds, and that Defendant has
a debt to Plaintiff in the amount of $25,579.24 that is non-
dischargeable under 11 U.S.C. § 523(a)(6). 	Plaintiff now moves to
amend that judgment to increase the damages awarded and to recover
attorneys fees. 	For the reasons set forth below, I determine that
the motion should be denied.
Signed and Filed: March 29, 2006
________________________________________
THOMAS E. CARLSON
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
March 30, 2006
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 04-03161 Doc# 38 Filed: 03/29/06 Entered: 03/30/06 08:28:48 Page 1 of 4

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MEMORANDUM RE PLAINTIFF’S
MOTION TO AMEND JUDGMENT 	-2-
At the outset, I note that the motion is not timely as a
motion to amend judgment under Rule 9023. 	The judgment was entered
on February 14, 2006, and the 10-day period for filing a motion
under Rule 9023 expired on Friday, February 24, 2006. 	The motion
was not filed until February 27, 2006. 	The motion must therefore
be evaluated under the standards governing a motion for relief from
judgment under Rule 9024.
Plaintiff first asserts that the court made a clerical error
in computing damages. 	Specifically, in determining the amount that
Defendant converted, the court should not have deducted both the
$14,980 design fee and the amounts Defendant forwarded to
suppliers. 	Plaintiff asserts that this was error because the
design contract required Defendant to pay suppliers from her
$14,980 fee. 	The court did not make a calculation error. 	Rather,
the count found that the relevant language in the design contract
required Defendant to select, but not pay for, materials. 	Thus,
Defendant was entitled to retain the design fee after paying the
suppliers from other funds Plaintiff advanced.
Plaintiff next asserts that the court should have included in
the damages awarded $2,750 in attorneys fees incurred prepetition
in removing a mechanics lien. 	If the court made any error, it was
not of the nature that is the basis for relief under Rule 60.
While Plaintiff introduced evidence regarding the expense in
question, neither his trial brief nor his closing statement
contained any calculation of damages identifying this expense as
within the damages proximately caused by Defendant’s conversion of
funds.
Plaintiff asserts finally that the court erred in determining
Case: 04-03161 Doc# 38 Filed: 03/29/06 Entered: 03/30/06 08:28:48 Page 2 of 4

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MEMORANDUM RE PLAINTIFF’S
MOTION TO AMEND JUDGMENT 	-3-
that Plaintiff is not entitled to recover attorneys fees incurred
in the present action. 	Plaintiff argues that he had no opportunity
to address the issue. 	He did not address the question at trial,
because fees are generally sought by post-trial motion. 	With
respect to the merits of the question, he argues that he is
entitled to recover fees for the present action under the fee
clause in the design contract. 	This argument is unpersuasive. 	The
controlling dispute in this action is not whether Defendant
breached the design contract, but whether Defendant converted
Plaintiff’s funds. 	Defendant would not have contested any
breach-of-contract claim Plaintiff filed in the chapter 7 case.
Plaintiff contested only the dischargeability of her debt to
Plaintiff. 	The contractual fee clause, which only covers an action
“to enforce this contract,” does not apply to the present action,
which is in substance a federal-law tort action, even though the
present action grows out of a contractual relationship between
Plaintiff and Defendant. 	Grove v. Fulwiler (In re Fulwiler), 624
F.2d 908, 910 (9th Cir.1980); Fobian v. Western Farm Credit Bank
(in re Fobian), 951 F.2d 1149, 1153 (9th Cir.1991); see also Stout
v. Turney, 22 Cal.3d 718, 730)(1978)(tort action for damages
arising out of a contract is not an action on a contract).
**END OF MEMORANDUM**
Case: 04-03161 Doc# 38 Filed: 03/29/06 Entered: 03/30/06 08:28:48 Page 3 of 4

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Court Service List
John M. Daley, Esq.
Law Offices of John M. Daley
28 East 3rd Avenue, Suite 200
San Mateo, CA 94401
Alexander J. Berline, Esq.
Hanson, Bridgett, Marcus,
Vlahos & Rudy
333 Market Street, Suite 2100
San Francisco, CA 94105-2173
Office of the U.S. Trustee
235 Pine Street
Suite 700
San Francisco, CA 94104
E. Lynn Schoenmann
800 Powell Street
San Francisco, CA 94108
Case: 04-03161 Doc# 38 Filed: 03/29/06 Entered: 03/30/06 08:28:48 Page 4 of 4