Isaac Kashama Kalonji

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UNITED STATES BANKRUPTCY COURT

NORTHERN DISTRICT OF CALIFORNIA

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1300 Clay Street (2d fl.)
Oakland, CA. 94612

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AUTHENTIC
U.S. GOVERN
INFORMATION

GPO

Entered on Docket
September 29, 2005

GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA

FILED
SEP 2 8 2005

BANKRUPTCY COURT
OAKLAND, CALIFORNIA

UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re No. 05-43200-EJd
Chapter 13
ISAAC KASHAMA KALONJI,

Debtor. /

MEMORANDUM RE VARIOUS PENDING MOTIONS

Isaac Kashama Kalonji, the above debtor (“Kalonji”), has moved
this court for an order imposing sanctions against 2122 Lakeshore
Apartments, LP (“Lakeshore”) pursuant to 28 U.S.C. § 1927 and the
court’s inherent powers. Lakeshore has moved the court for: (1) an
order imposing sanctions against Kalonji for filing that motion,

(2) an order barring Kalonji from seeking further sanctions against
Lakeshore absent leave of this court, and (3) an order lifting the
automatic stay to permit Lakeshore to take certain actions in the
California state courts. Kalonji does not oppose the motion for
relief from the automatic stay, and the court will enter its order
thereon. The court will: (a) deny Kalonji’s motion for sanctions,
(b) conditionally deny Lakeshore’s motion for sanctions, and

(c) decline to hear further any further motions for sanctions

Memorandum

IS 05-43200 Doc#85 Filed: 09/28/05 Entered: 09/29/05 09:34:26 Page 1 of 4

UNITED STATES BANKRUPTCY COURT

NORTHERN DISTRICT OF CALIFORNIA

1300 Clay Street (2d fl.)

Oakland, CA. 94612

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against Lakeshore absent prior leave of this court as more
particularly set forth in the order herewith.

A. Kalonji’s Motion for Sanctions

This is Kalonji’s second motion for sanctions against Lakeshore
based on what is essentially the same alleged misconduct. Kalonji
based his first motion on Bankruptcy Code § 362(h). | The court
denied that motion because, inter alia, Lakeshore had not engaged in
any conduct that violated the automatic stay, and because Kalonji
had not established any damages.

Kalonji’s new motion is not well grounded. First, it is barred

by res judicata. See, e.g., Scoggin v. Schrunk, 522 F.2d 436, 437

(9th Cir. 1975), cert. denied, 423 U.S. 1066 (1976) (holding that
res judicata bars assertion of every legal theory for recovery that

might have been raised in the earlier proceeding); Constantini v.

Trans World Airlines, 681 F.2d 1199 (9th Cir. 1982. Second, it is

doubtful whether this court may impose sanctions pursuant to 28

U.S.C. § 1927. See In re Sandoval, 186 B.R. 490, 495-96 (9th Cir.

1995) (bankruptcy court not court of U.S. for purposes of 28 U.S.C.

§ 1927); see also In re Perroton, 958 F.2d 889, 896 (9th Cir. 1992).

Third, if and to the extent Kalonji seeks relief under
Bankruptcy Code § 105(a) and the court’s inherent powers, rather

than 28 U.S.C. § 1927, relief is discretionary, In re Pace, 67 F.3d

187, 193 (9th Cir. 1995), and the court declines to order any
relief. Finally, to the extent Kalonji seeks sanctions based on
Lakeshore’s conduct in another court, any relief must be granted by

that other court.

Memorandum 2

dase: 05-43200 Doc#85 Filed: 09/28/05 Entered: 09/29/05 09:34:26 Page 2 of 4

1300 Clay Street (2d fl.)

UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA

Oakland, CA 94612

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The court will therefore deny Kalonji’s motion.

B. lLakeshore’s Motion for Sanctions

The court has no evidence before it that Lakeshore complied
with the “safe harbor” provision of Fed. R. Bankr. P. 9011(c) (1) (A).

Absent compliance, the court may not impose sanctions thereunder.

Barber v. Miller, 146 F.3d 707, 711 (9th Cir. 1999). The court will

therefore conditionally deny Lakeshore’s motion. If Lakeshore
wishes the court to reconsider on the ground that it, in fact,
complied with Fed. R. Bankr. P. 9011(c) (1) (A), Lakeshore may file a
request for reconsideration within 15 days.

C. Lakeshore’s Motion for Order Barring Additional Motions

Kalonji’s frivolous litigation activity, as described in
Lakeshore’s moving papers and as evidenced by this court's files,
justifies relief to protect Lakeshore. Therefore, this court will
decline to hear any further motions by Kalonji seeking sanctions
against Lakeshore, absent prior leave of this court, as more

particularly provided in the order filed herewith.

Dated: September 28, 2005

Memorandum 3

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United States Bankruptcy Court

Northern District of California

1 PROOF OF SERVICE

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3 I, the undersigned, a regularly appointed and qualified clerk in
4] the office of the United States Bankruptcy Court for the Northern
5} District of California at Oakland, hereby certify:

6 That I, in the performance of my duties as such clerk, served a
7 copy of the foregoing document entitled Memorandum re Various Pending
8 || Motions by depositing it in the regular United States mail at Oakland,
9} California, on the date shown below, in a sealed) envelope bearing

10]| sufficient postage, addressed as listed below.

11 |) Spencer P. Scheer, Esq.

Scheer & Imfeld, LLP

12]/ 100 Smith Ranch Road, Suite 306
San Rafael, CA 94903

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Isaac Kashama Kalonji
14]/1918 Lakeshore Avenue #80
Oakland, CA 94606

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Martha G. Bron:itsky, Esq.
16] Chapter 13 Trustee

P.O. Box 5004

17|| Hayward, CA 94540-5004

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19 I declare under penalty of perjury that the foregoing is true and

20 |} correct.

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22 || Dated: SEP 2 8 2005 RU low.

Raenna J. Abreu
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