Free Motion for Miscellaneous Relief - District Court of California - California

Case 3:08-cv-01109-VRW

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Law Offices of David N. Chandler, p.c. 1747 Fourth Street Santa Rosa, CA 95404 (707) 528-4331

David N. Chandler, Sr. SBN 60780 David N. Chandler, Jr. SBN 235427 DAVID N. CHANDLER, p.c. 1747 Fourth Street Santa Rosa, CA 95404 Telephone: (707) 528-4331 Attorney for Appellee Shannon Falk

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

IN RE: SHANNON M. FALK, Debtor. SHANNON FALK, Plaintiff/Appellee, v. MICHAEL FALK, Defendant/Appellant.

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No. CV 08-01109 VRW on appeal from U.S. Bankruptcy Court BK No. 07-10865 Chapter 11 A.P. No. 07-1080

MOTION TO AUGMENT RECORD ON APPEAL; DECLARATION OF DAVID N. CHANDLER; MEMORANDUM OF POINTS AND AUTHORITIES

Shannon Falk, Appellee, by and through counsel hereby moves the above entitled Court for an Order Augmenting the Record designated on appeal. Said Motion is made and based on the grounds that the Answer filed in the U.S. Bankruptcy Court by the Appellant was not

designated a part of the record on appeal as it was not relevant to the Motion for Summary Judgment or Opposition considered by the Bankruptcy Court or the issue designated by the Appellant. The

Appellant raises matters for the first time on appeal which were
MOTION TO AUGMENT RECORD ON APPEAL; DECLARATION OF DAVID N. CHANDLER; MEMORANDUM OF P&As

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Law Offices of David N. Chandler, p.c. 1747 Fourth Street Santa Rosa, CA 95404 (707) 528-4331

waived by the filing of said Answer.

The Answer is pertinent to the

matters raised for the first time before this Court. Said Motion is made and based on the within Motion, the appended Declaration of David N. Chandler, the Memorandum of Points and Authorities and the record designated and filed herein. Dated: 7/16/08 DAVID N. CHANDLER, p.c.

By: /s/ David N. Chandler DAVID N. CHANDLER, Attorney for Appellee DECLARATION OF DAVID N. CHANDLER I, David N. Chandler, declare and say: 1. That if called as a witness, I am competent to testify to

the within matters from my own knowledge. 2. I am the attorney for the Appellee in the Adversary

Proceeding in which the Judgment was entered from which Appellant appeals. 3. I have read the Appellant's Opening Brief. Appellant

raises for the first time on appeal that the Property Agreement was entered into as a result of undue influence, duress and/or breach of fiduciary duty. 4. The affirmative defenses were not plead in the Answer and

were not presented or argued in the opposition to the Motion for Summary Judgment or in the Counter Motion for Summary Judgment. 5. defenses. The Answer sets forth seven (7) separate affirmative

None plead are based upon undue influence, duress, fraud Appellee argues that such defenses are

or breach of fiduciary duty. waived by failure to plead. 6.

Appellee had no basis to designate the Answer as part of

MOTION TO AUGMENT RECORD ON APPEAL; DECLARATION OF DAVID N. CHANDLER; MEMORANDUM OF P&As

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Law Offices of David N. Chandler, p.c. 1747 Fourth Street Santa Rosa, CA 95404 (707) 528-4331

the record on appeal, but now requests leave to augment the record based upon the arguments contained for the first time in the Opening Brief. 7. A true and correct copy of the Answer filed in the case

below is attached hereto as Exhibit A. Executed under penalty of perjury this 16th day of July, 2008 at Santa Rosa, California. /s/David N. Chandler David N. Chandler MEMORANDUM OF POINTS AND AUTHORITIES Appellee submits the following Memorandum of Points and

Authorities in support of the within Motion: 1. appeal. 2. This Court may authorize augmentation of the record on FRAP Rule 10(e)(2). It is within the discretion of this Court to consider Appellate courts have

matters raised for the first time on appeal.

discretion to consider issues initially raised on appeal. In re Wind Power Systems, Inc., 841 F.2d 288, 290 n.1 (9th Cir. 1988). 3. Review of the Answer filed in the Bankruptcy Court is a

factor in the exercise of discretion to consider the issue for the first time on appeal or whether such an issue exists. Appellee

contends in the appeal that affirmative defenses are required to be pled and a failure to plead constitutes a waiver. The affirmative

defenses which the Appellant contends were not considered were not raised by the Answer or at any other time in the Bankruptcy Court. WHEREFORE, it is respectfully submitted that this Court

authorize augmentation of the record on appeal to include the Answer filed by the Appellant, and for such other and further relief as the
MOTION TO AUGMENT RECORD ON APPEAL; DECLARATION OF DAVID N. CHANDLER; MEMORANDUM OF P&As

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Law Offices of David N. Chandler, p.c. 1747 Fourth Street Santa Rosa, CA 95404 (707) 528-4331

Court deems just and proper. Dated: 7/16/08 DAVID N. CHANDLER, p.c.

By: /s/ David N. Chandler DAVID N. CHANDLER, Attorney for Appellee

MOTION TO AUGMENT RECORD ON APPEAL; DECLARATION OF DAVID N. CHANDLER; MEMORANDUM OF P&As

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5. Defendant admits the allegations contained in Paragraph five of said complaint. 6. Defendant admits the allegations contained in Paragraph six of said complaint. 7. Defendant denies each and every allegation contained in Paragraph seven of said complaint. 8. Defendant denies each and every allegation contained in Paragraph eight of said complaint.

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 17. The complaint fails to state a cause of action upon which relief can be granted. 22 23 24 25 26 27 28 19. The New York Partnership agreements require the performance of specific conditions to effect a transfer of the interests, which if not met, make any purported transfer void on its face. These conditions were not met pursuant to the terms of the partnership agreements. 20. Other than transfer the New York Partnership interests into the marital trust for estate planning 18. The complaint fails to satisfy the statutory requirements for transmutation under California Family Code Section 852 or any other subsection of Sections 850 through 853. AFFIRMATIVE DEFENSES 9. Defendant admits the allegations contained in Paragraph nine of said complaint. 10. As to Paragraph ten of said complaint, defendant admits that a portion of the distributions from the New York Limited Partnerships interest were used to pay community debts and obligations. Except as so expressly admitted, defendant denies the remaining allegations contained in said paragraph based on lack of information and/or belief. 11. Defendant denies the allegations contained in Paragraph 11 of said complaint insofar as the New York Partnership interests are the sole and separate property of defendant, and therefore no such determination to the contrary is required. 12. Defendant denies each and every allegation contained in Paragraph twelve of said complaint. 13. Defendant denies each and every allegation contained in Paragraph thirteen of said complaint. 14. Defendant denies each and every allegation contained in Paragraph fourteen of said complaint. 15. Defendant denies each and every allegation contained in Paragraph fifteen of said complaint. 16. Defendant denies each and every allegation contained in Paragraph sixteen of said complaint.

Case: 07-01080

Doc #: 4

Filed: 11/13/2007

ANSWER 4 Page 2 of TO COMPLAINT,

Page 2

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purposes, no further statement, act or writing was made to change the ownership of said asset. Said asset was always referred to in all writings, including but not limited to all income tax returns, K-1 Schedules, and all other documents reflecting ownership of said interests, both before and after June 2, 2004, as the sole and separate property of defendant. Even plaintiff's Exhibits A and B make express reference to the fact that any separate property transferred into the marital trust retain its character as such after its transfer or withdrawal, see plaintiff's Exhibit A, paragraph 3. Plaintiff's Exhibit B specifically states that "any property, or interest in property, owned by either [party] before [the] marriage or acquired by either [party] at any time by gift or inheritance and that is registered or otherwise held in either . . . name alone or that is designated as separate property under [the] Trust is the separate property of that spouse." 21. Plaintiff is barred by the doctrine of estoppel from the recovery she seeks in said complaint. 22. Plaintiff has waived her right to any recovery she seeks in said complaint. 23. Plaintiff's position in this complaint is not substantially justified, and the defendant is entitled to the costs of, and a reasonable attorney's fee for this proceeding. WHEREFORE, Defendant requests: 1. That said complaint be dismissed; 2. That plaintiff take nothing by complaint;

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ANSWER 4 Page 3 of TO COMPLAINT, Page 3

3. That Defendants be awarded reasonable attorney's fees and costs incurred herein; and 4. For such other and further relief as the Court deems just.

Dated: 11/13/07

/S/ Craig A. Burnett Craig A. Burnett, Esq., Attorney for Defendant Calif. State Bar No. 118907

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ANSWER 4 Page 4 of TO COMPLAINT, Page 4

PROOF OF SERVICE BY MAIL
I declare that: I am employed in the County of Sonoma. I am over the age of eighteen years and not a party to the within action; my business address is 537 Fourth Street, Suite A, Santa Rosa, California 95401. On November 13, 2007, I served the within: ANSWER TO COMPLAINT in said action by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States Mail at Santa Rosa, California, addressed as follows: David N. Chandler, Esq. 1747 Fourth Street Santa Rosa, CA 95404 U.S. Trustee 235 Pine Street, Suite 700 San Francisco, CA 94104

I declare under penalty of perjury that the foregoing is true and correct. Executed on November 13, 2007, at Santa Rosa, California.

/S/ Kateri T. Turner Kateri T. Turner