United States District Court, D. Nevada
before the court is appellant/defendant Coastal Band of the
Chumash Nation's (“CBCN”) appeal from
bankruptcy court regarding adversary no. 14-01131-abl. (ECF
No. 1). This court has jurisdiction pursuant to 28 U.S.C.
§ 158, and the notice of appeal was timely, per Federal
Rule of Bankruptcy Procedure 8002(a). Appellee/debtor Native
Energy Farms, LLC (“NEF”) filed an answering
brief (ECF No. 12), and CBCN filed a reply brief. (ECF No.
underlying adversary proceeding, the bankruptcy court quieted
title to a 78-acre parcel of vacant land in Goleta,
California. See (ECF No. 13-18).
initiated that proceeding in bankruptcy court on August 26,
2014. (ECF No. 11-1). On August 27, 2014, that court issued a
summons to CBCN with a September 26, 2014, deadline to file a
motion or answer to the complaint. (Id.). That
summons and other papers were sent to “the Coastal Band
of Chumash Nation, Inc., attention an officer, manager,
managing agent, or agent, 315 North Soledad Street, in Santa
Barbara, California 93103.” (Id. at 16). The
summons was also mailed to “Toni Cordero, care of
Coastal Band of the Chumash Nation, Inc., 4764 Ashdale
Street, Santa Barbara, California 93110.”
clerk submitted an entry of default against appellant on
September 30, 2014; an amended entry of default on October 1,
2014; and a second amended entry of default on November 24,
2014. (Id.). Although there was entry of default,
there was no default judgment. (Id.).
submitted a motion for summary judgment to quiet title on
December 2, 2014. (Id.). Appellee subsequently
submitted a supplement to the motion on March 30, 2015.
(Id.). The bankruptcy court approved that motion for
summary judgment on May 1, 2015. (Id.).
CBCN first appeared in this case on August 28, 2015, when it
submitted a motion to set aside the default and the order
granting summary judgment. (Id.). CBCN submitted an
amended motion for the same on September 1, 2015.
March 24, 2016, the bankruptcy court rendered an oral ruling
that was accompanied by a written order on March 28, 2016,
denying appellant's motion to set aside default judgment
and order on motion for summary judgment. (Id.).
Regarding service of process and notice of proceedings, the
bankruptcy court found as follows:
CBCN was actually aware of this adversary proceeding no later
than December 8, 2014, as confirmed by the testimony of both
Gino Altamirano, CBCN's current tribal chair and former
legal liaison and an enrolled CBCN member since 2001, and
Michael Cordero, who was CBCN's tribal chair in December
of 2014 . . . .
(Id. at 18).
the bankruptcy court noted that “[a]ccording to the
California Secretary of State's records, 315 North
Soledad Street, Santa Barbara, California 93103 was the
corporate address for CBCN when the certificate of service
was executed” and that the California Secretary of
State's documents indicated that “Toni Cordero was
the CBCN's registered agent, and her mailing address was
4764 Ashdale Street, Santa Barbara, California 93110, when
the certificate of service was executed.” (Id.
April 13, 2016, appellant filed a notice of
appeal. (ECF No. 1). CBCN appeals the bankruptcy
court's decision restricting the scope of discovery for
appellant's rule 60 motion to service of process,
questioning inter alia the ruling that
appellee's service of process satisfied due process and
contending that appellee committed fraud on the court. (ECF
No. 10 at 7).
bankruptcy court's factual findings are reviewed for
clear error and its interpretation of bankruptcy law is
reviewed de novo. See Blausey v. U.S. Tr., 552 F.3d
1124, 1132 (9th Cir. 2009).
trial court's decision regarding sufficiency of service
of process is reviewed for abuse of discretion, see Rio
Properties, Inc. v. Rio Int'l Interlink, 284 F.3d
1007, 1014 (9th Cir. 2002), as is “denial of a motion
under Rule 60(b).” In re M/V Peacock on Complaint
of Edwards, 809 F.2d 1403, 1404 (9th Cir. 1987).
bankruptcy court abuses its discretion if it applies the
wrong legal standard or its factual findings are illogical,
implausible or without support in the record.” In
re Tevis, No. BAP EC-13-1211, 2014 WL 345207, at *3
(B.A.P. 9th Cir. Jan. 30, 2014) (citing TrafficSchool.com
v. Edriver Inc., 653 F.3d 820, 832 (9th Cir. 2011)),
aff'd, No. 14-60009, 2016 WL 4474817 (9th Cir.
Aug. 25, 2016).
initial matter, this is an appeal from an adversary
proceeding, not the related bankruptcy case. See
(ECF No. 1, 10). As the bankruptcy court granted a motion for
summary judgment and then denied appellant's motion for
relief under rule 60, the adversary proceeding has concluded
and is subject to the present review. See Farraj v.
Cunningham, 659 F. ...