Benny Paul Valdez and Patricia Ann Valdez

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UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
In re
BENNY PAUL VALDEZ and
PATRICIA ANN VALDEZ,
Debtors.
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Case No: 	05-34490
Chapter 13
Date: November 13, 2006
Time: 9:30 a.m.
Crtm: 235 Pine St., 23rd Floor
San Francisco, CA 94104
MEMORANDUM RE MOTION TO COMPEL DISCOVERY AND FOR SANCTIONS
At the above date and time, the court held a hearing on
Debtors’ Motion to Compel Discovery and For Sanctions (the “Motion
to Compel”). 	Cathleen Cooper Moran appeared for Debtors. 	No one
appeared for the responding parties. 	I determine that the motion
should be granted as follows.
FACTS
On February 10, 2006, this court held a hearing on Debtors’
Motion for Damages for Violation of Automatic Stay. 	The court
determined that Jason Evans, Esq., the Law Offices of Jason Evans,
P.C. and Lucas Teter, a non-attorney working for Mr. Evans,
knowingly violated the automatic stay applicable in the above-
Signed and Filed: November 30, 2006
________________________________________
THOMAS E. CARLSON
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
December 01, 2006
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 05-34490 Doc# 60 Filed: 11/30/06 Entered: 12/01/06 13:35:58 Page 1 of 7

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1 The Sanctions Order uploaded by Debtors’ counsel and signed
by the court omits the “ P.C.” suffix.
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referenced bankruptcy case. 	On February 21, 2006, the court
entered an order awarding damages for the knowing-stay violation
(the “Sanctions Order”). 	The Sanctions Order imposes $5,000
damages on Mr. Teter, Mr. Evans, and the Law Offices of Jason
Evans, 1 for which the sanctioned parties are jointly and severally
liable. 	On February 23, 2006, the court served the Sanctions Order
on the sanctioned parties.
When none of the sanctioned parties paid the damages imposed
on them by the Sanctions Order, counsel for Debtors, Cathleen
Cooper Moran, properly served interrogatories (the
“Interrogatories”) on Mssrs. Teter and Evans. 	On June 17, 2006,
Ms. Moran wrote to Mr. Teter requesting a response to the
Interrogatories, and seeking to meet and confer regarding Mr.
Teter’s failure to respond. 	On July 10, 2006, Ms. Moran wrote to
Mr. Evans regarding his failure to respond to the Interrogatories,
and seeking to meet and confer regarding Mr. Evans’ failure to
respond. 	Ms. Moran thereafter received an undated letter from
someone named Daniel Mendez on the letterhead of the Law Offices of
Jason J. Evans, P.C., stating that Mr. Teter was no longer employed
by the Law Offices, and requesting that Ms. Moran direct further
correspondence regarding “this matter” to Ms. Anna Burkard or Mr.
Daniel Mendez. 	The letter does not provide a forwarding address
for Mr. Teter, does not reference the Interrogatories, does not
identify the relationship of Ms. Burkard or Mr. Mendez to the
Case: 05-34490 Doc# 60 Filed: 11/30/06 Entered: 12/01/06 13:35:58 Page 2 of 7

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2 As of November 27, 2006, the contact information for Jason
J. Evans provided on the New York State Bar Website is: Law Offices
of Jason J. Evans P.C., 5335 Main St., 2nd Floor, Williamsville, NY
14221-5389; (716) 630-0555.
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sanctioned parties, and does not indicate whether Ms. Burkard or
Mr. Mendez are attorneys.
On July 19, 2006, Ms. Moran wrote to Mr. Mendez requesting a
current address for Mr. Teter, and notifying Mr. Mendez that she
would be preparing a motion to compel discovery and for further
sanctions. 	Ms. Moran also verified on the New York State Bar
website Mr. Evans’ status as an attorney currently active with the
New York State Bar, whose bar registration number is 2891851, and
whose address as of that date 2 was 5350 Main St., Williamsville, NY
14421 (the “Williamsville Address”).
Ms. Moran never received a response to her letter to Mr.
Mendez.
On October 10, 2006, Ms. Moran filed and served on the
sanctioned parties at, inter alia, the Williamsville Address, the
Motion to Compel and related pleadings. 	The Motion to Compel is
supported by a declaration of Ms. Moran regarding her good-faith
attempts to confer with Mssrs. Teter and Evans, who apparently are
not represented by counsel, in an effort to obtain responses to the
Interrogatories without court action. 	The Motion to Compel and
related pleadings were not returned to Ms. Moran, which indicates
that they reached the intended destination.
As of the date of the hearing on the Motion, the sanctioned
parties had not paid the sanctions, nor had they responded to the
Interrogatories. 	The court has no knowledge that the sanctioned
Case: 05-34490 Doc# 60 Filed: 11/30/06 Entered: 12/01/06 13:35:58 Page 3 of 7

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parties have since paid the sanctions or responded to the
Interrogatories.
Pursuant to Bankruptcy Rule 7037, Debtors move the court for
an order compelling the sanctioned parties to provide answers to
the Interrogatories within 15 days of entry of its order on the
Motion to Compel, for an award of Debtors’ attorney fees for
bringing the Motion to Compel, and for additional sanctions in an
amount three times the fees for the sanctioned parties’ failure to
comply with the Sanctions Order.
On November 13, 2006, after the hearing on the Motion to
Compel, Ms. Moran filed a declaration and billing statements
detailing that Debtors have incurred $2,370.50 in their efforts to
enforce the Sanctions Order. 	Of this amount, approximately $1,980
relates to drafting, calendaring, and appearing at the hearing on
the Motion to Compel.
LAW
Federal Rule of Bankruptcy Procedure 7037(a)(4), applicable to
this contested matter via Bankruptcy Rule 9014(c), provides that if
the court grants a motion to compel discovery, the court
shall, after affording an opportunity to be heard,
require the party or deponent whose conduct necessitated
the motion or the party or attorney advising such conduct
or both of them to pay the moving party the reasonable
expenses incurred in making the motion, including
attorney’s fees. . . .
In order to defeat the presumption in favor of awarding
expenses to the prevailing party of a motion to compel, the court
must make a specific finding, such as that the failure to respond
was substantially justified or that other circumstances would make
an award of expenses unjust. 	Rule 7037(a)(4); Barton Bus. Park
Case: 05-34490 Doc# 60 Filed: 11/30/06 Entered: 12/01/06 13:35:58 Page 4 of 7

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3 The only authority cited by Debtors in support of their
request for sanctions for failure to comply with the Sanctions
Order is Bankruptcy Rule 7037, which applies to discovery disputes.
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Associates v. Alexander (In re Barton Bus. Park Associates), 118
B.R. 776, 780 (Bankr. E.D. Cal. 1990). 	The losing party bears the
burden of persuading the court that the court should not award the
prevailing party’s reasonable expenses. 	Barton Bus. Park
Associates, 118 B.R. at 780.
DISCUSSION
The sanctioned parties have not responded to the Motion to
Compel, and apparently do not contest that the Motion to Compel was
properly served. 	Accordingly, the court grants the Motion to
Compel, and determines that Lucas Teter and Jason Evans must pay
the $1,980 in attorneys fees reasonably incurred by Debtors in
prosecuting the Motion to Compel, which sum is in addition to the
$5,000 owed by the sanctioned parties pursuant to the Sanctions
Order.
Assuming that the court has inherent authority to impose
monetary penalties for the sanctioned parties’ failure to comply
with the Sanctions Order, 3 the court declines to do so at this time.
The court may do so in the future on properly noticed motion,
citing to appropriate authority, should the sanctioned parties
continue to ignore the Sanctions Order and the order compelling
discovery (the purpose of which is to assist Debtors in obtaining
compliance with the Sanctions Order).
Should the sanctioned parties, including attorney Jason Evans,
continue to ignore the Sanctions Order, counsel for Debtors may
wish to consider providing the disciplinary body of the New York
Case: 05-34490 Doc# 60 Filed: 11/30/06 Entered: 12/01/06 13:35:58 Page 5 of 7

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State Bar with copies of the orders issued by this court, which
impose liability on bar member Jason Evans.
**END OF MEMORANDUM**
Case: 05-34490 Doc# 60 Filed: 11/30/06 Entered: 12/01/06 13:35:58 Page 6 of 7

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Court Service List
Cathleen Cooper Moran, Esq.
Moran Law Group, Inc.
1674 North Shoreline Blvd., Ste. 140
Mountain View, CA 94043-1375
Jason J. Evans, Esq.
Law Offices of Jason J. Evans P.C.
5335 Main St., 2nd Floor
Williamsville, NY 14221-5389
Lucas Teter
c/o Law Offices of Jason J. Evans P.C.
5335 Main St., 2nd Floor
Williamsville, NY 14221-5389
Case: 05-34490 Doc# 60 Filed: 11/30/06 Entered: 12/01/06 13:35:58 Page 7 of 7