Yan v. Fu et al
Filing
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ORDER AFFIRMING BANKRUPTCY DECISION. Signed by Judge Richard Seeborg on 9/30/14. (cl, COURT STAFF) (Filed on 9/30/2014)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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DEMAS WAI YAN,
Case No. 14-cv-00085-RS
Appellant,
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v.
ORDER AFFIRMING BANKRUPTCY
DECISION
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TONY FU, et al.,
Appellees.
United States District Court
Northern District of California
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The Bankruptcy of Demas Wai Yan, and certain underlying disputes between Yan and
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appellee Tony Fu, have given rise to protracted litigation in the bankruptcy and state courts, and a
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series of appeals in this Court. The parties are familiar with the long history of the litigation and it
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will not be recounted here. In the present appeal, Yan challenges (1) an order of the bankruptcy
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court imposing a pre-filing review restriction on his ability to initiate further proceedings in that
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court involving certain parties, and (2) an order dismissing another of his complaints removed
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from state court, with leave to amend.
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In lieu of filing a responsive brief, pro se appellees Tony Fu and Crystal Lei move to
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dismiss the appeal, contending it is frivolous. Yan opposes, arguing, among other things, that the
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arguments made in the motion go to the merits of the appeal and should have been presented in an
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appellee’s brief. The motion to dismiss will be denied, and the appeal decided on the merits.
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The bankruptcy court’s conclusions of law are reviewed de novo. See In re Markovich, 207
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B.R. 909, 911 (B.A.P. 9th Cir. 1997). A factual finding is clearly erroneous if the appellate court,
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after reviewing the record, has a definite conviction that a mistake has been made. Beauchamp v.
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Hoose (In re Beauchamp), 236 B.R. 727, 729 (9th Cir. BAP 1999). Mixed questions of fact and
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law are reviewed de novo. Id. Pre-filing orders entered against a vexatious litigant are reviewed
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for abuse of discretion. Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1056-57 (9th Cir.
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2007). A court abuses its discretion when it enters such an order on an incorrect view of the law
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or a clearly erroneous finding of fact. Id.
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United States District Court
Northern District of California
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No factual or legal error, or abuse of discretion, appears in the record here. When
imposing a pre-filing review order a court is to consider four factors:
First, the litigant must be given notice and a chance to be heard
before the order is entered. . . . Second, the [] court must compile
“an adequate record for review”. . . . Third, the [] court must make
substantive findings about the frivolous or harassing nature of the
plaintiff's litigation. . . . Finally, the vexatious litigant order “must
be narrowly tailored to closely fit the specific vice encountered.”
Molski, 500 F.3d at 1057 (9th Cir. 2007).
Generally, pre-filing review orders are not subject to review prior to entry of final
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judgment. Molski, 500 F.3d at 1055. Assuming that at least in this bankruptcy context the order is
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appealable, however, the bankruptcy court’s supporting memorandum of decision reflects a
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careful and thorough evaluation of the four factors, with appropriate findings of fact. While Yan
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quibbles with various aspects of those findings, he has pointed to nothing rising to clear error that
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would justify setting the decision aside. Yan’s assertion that the order is not narrowly tailored is
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meritless, as it specifically applies only to actions filed in the bankruptcy court against five
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specific individuals related to this long-running dispute.
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Yan’s challenge to the order granting the motion to dismiss, with leave to amend, likewise
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is without merit. Yan insists that his claims as pleaded included matters not subject to dismissal as
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pre-petition claims, and he faults the bankruptcy court for dismissing claims he contends were not
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asserted. The court’s order, however, expressly gave Yan leave to present any post-petition claims
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not previously adjudicated. Although Yan’s argument is not entirely clear, he appears to contend
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the bankruptcy court would lack jurisdiction over such claims. If so, his remedy likely would be
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to seek remand to state court, if he in fact can successfully plead claims outside the jurisdiction of
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the bankruptcy proceeding. As in case 3:11-cv-01814-RS, in which the order of this court has
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been affirmed by the Ninth Circuit and the appeal found to be sanctionable, Yan’s election not to
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CASE NO.
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14-cv-00085-RS
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avail himself of the opportunity to amend forecloses his contention that he has been deprived of
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the opportunity to pursue viable claims. Accordingly, the decisions of the bankruptcy court are
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affirmed.
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IT IS SO ORDERED.
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Dated: 9/30/14
______________________________________
RICHARD SEEBORG
United States District Judge
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United States District Court
Northern District of California
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CASE NO.
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14-cv-00085-RS
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