ML023010246
| ML023010246 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 10/18/2002 |
| From: | Brumfield R Price & Brumfield, LLP |
| To: | Office of Nuclear Reactor Regulation, US Federal Judiciary, Bankruptcy Court, Northern District of California |
| References | |
| 01-30923 DM, 94-0742640 | |
| Download: ML023010246 (9) | |
Text
PRICE & BRUMFIELD, LLP Robert H. Brumfield, Ia Esq, SBN 114467 Kimberly A. Ungar, Esq, SBN 200963 Oreystone Plaza Building 841 Mohawk Strwet, Suite 200 Bakersfield, CA 93309 (6611) 323-3400 Attorneys for Creditor, Santos Gonzalez Henoera
<At IN THE UNITED STATES BANKRUPTCY COURT '
IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION Inore PACIFIC GAS AND ELECTIUC COMPANY, a California corporatIon, Debtor.
Federal LD No 94-0742640 6
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"17 is To Debtor, Pacific Gas and Electric Corspasy, and to its attorney o-frec-ord.
NOTICE IS HEREBY QIVEN.that, en November 27, 2002, at -90 3a-m, or as soon thereafter. as the matter may be heard, so Department 22 of the United States Bankruptcy Court for the Northemr Dustrict of California, located at 235 Pine Street, 19th Floor, San Francico, California, Claimant, Santos Gonzalez Herrers, will, and hereby does, move for reconsideration of the Order Disallowing Claim which the above-eanitled court entered on,one 28, 2002, and for revocation of that Order and allowing the claim, or alterantively, that the court aillow the late filing of Claimants claim. The motion is made on the ground that a cause exists under Federal BdllaruptcsljRul 3008 which allowvs a pty-e-mietest to seek reconsideraton of WUider of ; court wtChidisallows a ueueipsanueaieiwlsoneosinsmannaeoSa5aiiannaio.aamasaainaeesEx eonesnmain.saeeaesq.s.saa I
I PRICE & BRUMFIELD, LLP Robert H. Bramfield, Ill, Esq, SEN 114467 Kimberly A. Ungar, Esq, SBN 200963 Greystone Plaza Building 841 Mohawk Street Suite 200 Bakersfield, CA 93309 (611) 323-3400 Attorneys for Creditor, Santos Gonzalez Herrera 12N THE UNITED STATES BANKRUPTCY COURT nlre PACIFIC GAS) a Califorma corp Federal D No I AND FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FIUANCISCO DIVISION Bky No 01-30923 DM AWD ELECTRIC COMPANY, Chapter 11
- oration, MEMORANDUM OF POINTS AND Debtor AUTHORITIES IN SUPPORT OF MOTION FOR RECONSIDERATION OF ORDERDISALLOWING CLAIM 94-0742640 OR ALTERNATIVELY, TO EXTEND TIME TO FILE PROOF OF CLARA Date November 27,2002 Time:
9 30am.
Dept 22 INTRODUCT"ION Santos Gonzalez He*rera (Mr Herrees" herein) hereby refuests that the court reconsider its Order ;n-DDeýts bOnibus Objection to Late-Filed Claims ('Order' herem) entered on or about June 28, 2002, wherein the court disallowed Mr Herrera's claim for damages sustained as the result of personal injuries caused by the Debtor Pacific Gao and Electrc Company, a Cai~fromi corporation ('TG&E" herein)
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it (/tter Bky No 01-30923DM Chapter I I NOTICE OF MOTIONAND MOTION FORRECONSIDERATION OF ORDER DISALLOWING CLAIM OR ALTERNATrVELY, TO EXTEND TIME TO FILE PROOF OF CLAIM, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION Date November27,2002 Time 9 30 am.
Dept.
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-r CAUSE EXISTS FOR THE COURT TO EXERCISE ITS DISCRETIO1 TO RECONSIDER ITS ORDER DISALLOWING MRP* ERRER'S CLAIM Reconsideration of any order that disposes of a claim may be sought Bankrantcv Rule 3008 and 11 VLSC § 502G)
A court may reconsider the disallowance of a claim "for cause'.
Bankruptcv Rule 3008 What constitutes cause is not defined with precision, however, courts have consaderd such factors as new evidence, cause existing under the applicable standards for a reversal of the oder, or tlat a tanfest mjiii-ce hIs bee done Courts have also apphed the excusable neglect standard set forth mBanltvRuI.
9006 is determining whether to grant reconsideration of an order. 9 Collier on Banknsecv. 15 ed. revised, Chapter 3008, paragraph 3008 01[4]
The Ninth Circuit has looked to Btknkrutcv Rule 9024, which incoeporates Federal Rule of Civil Procedure 60, for a defintion of eause for reconsiderauoni Federal Rule of Civil Procedure 60 stales that relief from ;n order may-be panted due to: *(I) mistake, inadvertence, surprnse or excusable neglect; (2) newly discovered evidence, which by due diligence could not have been discovered m time to move for a new tral under Rule 59(b). (3) fraud or misrepresentation, or other misconduct by an adverse pasty; (4) the judgment is void, (5) the judgment has been satfied, released, or discharged, or a pnor judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application, or (6) any other reason justifyg relief from the operation of the judgment' There are'several rc.to hit thus Coort shuld -reconsider its,Order disalIowing Mr Herera's claum, all of which should more than suffice -nder any of the standards hsted above In opposition to PG&Hss Onibus Objection, Mr Herrera's attorney filed only a vaguely tiled declaranoni.
No Memorandum of Pains and Authorines was fled in support of Mr Horrors's "opposition" It is entirely possible that the court was not even aware of Mr Herrera's "opposition" S.,e U..,T.(In re Levey), 182 B
- 3.
227 (9' Csr BAP 1995), S.I Wilson Co-TIc. v Ctnnter induste,
=an..ine Cate crlaflsens, at) 1%t10
& 625,630 (9* C.
AP 1989)
'A tue ad ourrecs eopy ofwhich a asnohed berlso u Eluibu 'A'8. md judicul aosce oaf die mo n requested ustde Fdea.l liule of Evudese 201 7
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23 24 25 26 27 28 20 21 22 II claum "The motion is based on this Notice of Motion and the Memorandum of Points and Authorities served and fSil concomitantly herewith, on the records and fie herei, and on such evidence as may be presented at the hearing on the motion.
If you wish to oppose this Motion, you must file a written response with the Bankruptcy court and serve a copy of it upon the Claimants attorney at the address set forth above no less than fourteen (14) days preceding the noticed date of lharing If you fail to file a written response to this Motion within such time period, the court may treat such failure as a waiver of your right to oppose the Mostion and may p~ant thte requested relief Dated: October 18,2002 PRICE & BRUMFIELD, LLP By ROBERT H. BRUMFOIELD, EI, Attorneys for Creditor, Santos Gonzalez
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9 10 11 12 1 14 52 :5 16 175 18 21 22 23 24 25 26 27 28 EXCUSABLE NEGLECT WARRANTS RECONSIDERATION OF THE COURTS ORDER AND ALLOWING MR. RTERRA's CLAIM OR EXTENýDtNG THE TIME FOR HIM TO FILE HIS PROOF OF CLAIM Excusable neglect occurred on two levels The first incidence was th+/- Mr Herrra's attorney filed a late Proof of Claim m the PG&B bankruptcy. The second occurrence was the attomeys failure to present a suffiient opposmon to the Omnibus Objection. Mr. Ham bta a foemidable opposition to offer but it was not truly before the couo.
The failure of Mr. Henrra's aounsel to timely file a Proof of Claim constitutes "excusable neglect" within the meaning of Bankut*pc Rule 9006(bXl). The Umted States Supreme court has held that a lenient standard of "excusable neglecfl found in Rule 9006 naty be grounds for the extensndn of the time himt us considenng whether to allow a late-filed claim Pioneer Invesment Services Co. v. Brunswick Associates 507 US 380, 389, 113 S CL. 1489, 1495, 123 IEd. 2d 74 (1993) ("ptee)
Pursuant to Pi Rule 9006(bXl) "grants a reprieve to out-of-time filings that were delayed by 'neglecr" The cours mPonei also stated that Congress planly permitted a court to accept late filings caused by madieresice, nmstake, or carelessness Under Pioneer the court is to undertake an equitable nqmniry addressing, "The danger of prejudice to the debtor, the length of the delay and ial potential
. impact on judimal proceedings, the reason for the delay. including whether it was within the reasonable control of the movant and whether the movant acted us good 3
control of the movant, (4) whether the movant acted us good faith, (5) whether the chent should be penalized for the mistakes of their counsel and (6) whether the claimant has a mentorious claim.
PG&E would not be prejudiced if tins one contingent clm were allowed. It is highly doubtful that PG&E has altered its position or that the other creditors will be impacted if Mr Herreram claim is allowed.
The level of complexity of PG&E's banlriptcy admimstration renders Mr. Heam's claim inconsequential us the scheme of things, bht it is very significant and dire to Mr Herrera. Further, allowance of Mr Haerreas claim will have no impact on PG&Es ability to confirm a f-ible ChWpter I I Plai.-Also, PG&E was well aware of Mr. Hearme's claim as the superior court litigations had been pending for some time and was nearing tral when PG&E filedbankruptcy The delay us filing Mr Hearera's Proof of Claim was relatively brief Once Mr Herrra realized the problem existed regarding the late Proof of Claus, Mr. Herrera retained now counsel to handle the matter and a Proof of Claim was filed on his behalf on or about November 21, 2001, approximately two and a half months after the bar date. This delay should not have any impact on the inherently complex judicial proceedings already required of the bankruptcy court u the PG&E case. In Dm there was a two-year delay in filing a proof of claim and the court sull extended the bime to file the proof of claim because it would not impact efficient court administration. Dix v.
Johnson soon at 138 The reasons for the delay are simply neglect and mistake by Mr. Heiera's attorney These reasons were not within control of Mr Herr*ra who is likely of minima legal sophistication and who relied on his attomey to protect his interests us the superior court action against PG&E Even if Mr Harrera's choice of attorneys was within his contnol, this does not foreclose relief under this Motion according to any of the potentially applicable standards See In rePal 101 BR. 228, 231 (S.D Cal 1989). Mr Heeam acted u
good faath and had nothing to gain and much to losefrom fling a late Proof of Claim. He is simply attempting to move forward mi obtaining relief for his Mr Herra should not be penalized for the mistakes or neglect of his attorney Although RHeaury Pacre Gas & Etecc, Ias., led the Supenar Court for the County ofF Panso, Case No 640139-2.
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.20 21 22 23 24 25 26 27 28 the majonty m Pioneer held tha atromey nnstake as not enough to allow a late-filed claim, attorney mistake or neglect along with consideraton of the equitable inquiry militate squarely us favor of reconsidertion of Mr H=era's claim and with ultimate allowance oflhs claim. Congress and the United States Supreme Couo clearly provided that under ciucmstances as are before the court on fins Motion, warrant the court to grant Mr Herrra relief from its order disallowing M. Herrern's claim and not to permanently foreclose relic for Mr. Herrera's mjunes Lastly, Mr. Hearm'r has a mentonous claim against PG&E. Many of the facts involved an the superior court case were not us dispute. The undisputed facts show that a PG&E employee cedr in preparing and/or reading a map of gas pipelmns on property where Mr Heam was hired to work. - When PG&E personnel went to the mistaken location, they noted no underground gas ipelipne and reported such to the landowner Mr Herrera relied on PG&E's representations that there were no gas pipelines where Mr Hamrer intended to conduct his work. This representation toned out to be a grave error. When Mr Hmrer began trenching the soil us the first row an the property, his tractor struck and ruptured an unmarked 16" gas pipeline that was pressurized at 680 lbs per square inch. The resultng explosion lifted the 50-ton tractor three to'four fret off the ground and threw Mr Herrcrs. The explosion was heard for miles. As the result of the explosion, Ir Henam suffered severe chest anAd back pain, intal hearing and breathing trouble and conutiuing back, leg and ankle pain.Mr. Hrrera was ultimately diagnosed with severe and degenerative disc injury and underwent surgery to attempt to alleviate his pais. te hasi had exten*ive physical therapy and continued' care but is permanently disabled. I A psychological toll has accompamed Mr Heierai s permanent disability due to persitent pain, his mability to support his family ar1d his deeply impacted quality of life., At the very least, PG&E is responsible to some degree for Mr Harem's injunes and hence his claim is merituious.
PG&E is taking fall advantage of the laws under Chapter II of the Bankruptcy Code in inter to reorarniz'and sicy us buness.
Mr Hea should liewise be able to utilize ýhe pplicable;laws to obtain reliefan this matter Although lie Bankruptcyriles are generally deigned
- o provide relief to the debtor, Bankuptcy Rule 9006 and 3008 were drafted with the mtntain and aIear language grontin'rehef to a 6reditor in just such a susanon as is before the court n this
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because it was not made us proper and adequate form or with a clear tide indicatng the nature and purpose of the document Fuoher, no appearance for Mr Heamera was made at the hearing on the Omnibus Objection and no oral argument was presented on his behalf The circumstances suirounding the late filing of his claim and the actual nature of his claim, had they been presented properly to the court, and had counsel been present to address the court's concerns at the hearing, should have cusmed the court to deny PG&'s Ommbus Objection as to Mr Ham's claios Mr Hearem is entitled to reconsideration of the court's Order disallowing his claim on the grounds of mastae inadverence and excusable neglect and other reasons jusinf'ing relief from the Order I0 -
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A court has the broad power to allow a late-filed claim even upon carelessness of counsel to timely file a Proof of Claim U at 389 The Ninth Circuit court cooe; Dix v. Johnson. 95 B.I 134 (9' Cir.1988), stated that when disallowance of a late-filed claim forecloses a trial on the merits of that clasn, a liberal coestructon'of exncsable neglect should be applied.
In the context of Mr Het==rrs claim, he has been foreclosed of a trial onthe mets. Hence, the Court and the Court ofAppeals for the Ninth Circuit mandate the application ofa lenient definition of excusable neglect that allows a cerdiotos claim even if his attorney as at fault and the creditor is considered to have some faol for choosing that attorney Application of a strict excusable neglect standard would be an abuse ofdlscrenonin these cicurmstances.
Mr Harmr'as claim is for personal naury damages us a supenor court case that was nearing trial. PG&E was well aware of that case and defending the same when it filed banhkuptcy sh6rtly before the tial date which stayed the supenor court action. Mr Hen-era has been foreclosed from any compensation for his injuries alleged to be approximately $750,000 because his attomey filed the Proof of Claim farm after the bar date.
The excusable neglect analysis is available to Mr Herrern and should be seriously considered by the court This is especially true given the seventy of the penalty leveled upon by Mr. Herrea as a result of isallowance of his claim o a very large bankruptcy with a temeporarily insolvent, soon to be reorganized, debtor with a huge amount of assets.
THE EQUITIES OF THIS MArrER MILITATE IN FAVOR OF RECONSIDERATION OF THE COURTS ORDER AND ALLOWLNG MR.
"HERRERA'S CLAIM The United States Supreme Coonr could not have been clearer that attorney mistake and/or neglect could be a basis for allowing a late-filed cliann when other equitable factors weigh in favor of the credtor. When determining whether neglect is "excusable" under 60(bXl), courts generally consider (1) the danger of prejudice to the debtor, (2) the length of delay and its potential impact onjudcial proceed*igs (3) the masons for the delay, including whether it was within the reasonable 4-1 2
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Motion.
V CONCLUSION Based upon the foregoing, Mr Herrera's respectully requests that the court grant thio Motton for Reconsideraton of its Order Disallowing Claim, or, alternatiývly grant Mr rraan extension of tbme in which to fe his Proof of Claim. I& Herna alto !ei.itst such ot relef as the court, us its discreton, deemsjust and proper V.
Dated. October 18 2002 PRICE & BEUMFIELD, LLP By ROBERT H. BRUMFf D. III
- - a Attorneys for Crechtor, Santos Gonzalez
-Herresa 2
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9 11 133 12 16 17 20 21 22 23 2A 25 26 UNITED STATES BANKRUPTCY COURT NORTHERN DISRICT OF CALIFORNIA' SAN FRANCISCO DIVISION 7
I C-_ASENO 01-30923DM
.C Chapter Il Case re
,I
).DECLARATIONOFJOHNA.TELLO S--
IN RESPONSE TO OMNIBUS PACIFIC GAS & ELECTRIC COMPANY, )
OBJECTION AND OMNIBUS a California corporaonn, I
OBJECTION TO LATE-FILED I
.,1)
-CLAIMS ISANTOS GONZALEZ Federal LD No. 940742640
)
HERRERA]
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- I,,JOON A. TELLO, declare as follows I r.
S.
- ana o n*y bely aso tCo practce tas in alauotme courts-ofta e State af Caltforlai, and am a partner In the la w firm of CHIN, YOUNGER, COHN & STILES, the original aforloyKrplantoiff, SANTOS'.
GONZALEZ HERRERA In the lawsuit filed In the Superior Court of
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-R DEC.ARATNON OHJOHNtý.
TEt/iD/LNN RESP
&iINBSITA.A
?.-eitsSVFýq California, County of Fresno, Case No. 640139-2 designated Santos Gonzale.
Herrera vs Pacific Gas & Electrie, Inc. et al
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During the months ofJune, July and August and September, 2001, my office staffof four Individuals was reduced to one (1) medical secretary who herself wos a new employee In the departmeot. This was due to staff resignations and to the departure of my longtime paralegal, Mane Weston, who took Ill with cancer and never returned. Unfortunately, due to Inadvertence and mistake, the Proof of Claim to fl'iI In fi poie to the Notice of the
- ling Deadline for Filing Proofs of Clamn tore PACIFIC CfAS AND ELECTRIC COMPANY. a Calforna corporation debtor. Chapter 11 filing Case No. 01 30923 DM was not flied on September5,2001, as required. It was not ntil October, 2001 that my new paralegal discovered this error and brought It to ay attention. By this tine, I had been informed by Attorney Robert L Stater that PlamtiffHERERRA had signed aSubstitution of Attorney on i
October 5,2001, substituting me out of the underlying case and substituttag g Attorney Slater In as Attorney of Record. I then forwarded the Notice of Hearing In the bankruptcy petition of PG & E to Attorney Slater-on 2 November 15,2001. Itth my understandingAttorney Slater filed the clawm
-on or about November 21,2001.-
"- -3.
'It is respectfully requested that SANTOS GONZALEZ HERRERA be given leave to file the late claui which pecurrePs a result of the above mistake and madvertance by me us this matter ind that hoe be granted relef frim the Omnibus Objection to Late-Filed Claims filed against M HERRERA. 23 2A 25 2
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1 DECLARE THE ABOVE TO BE TRUE UNDER PENALTY OF PERJURY EXCEPT AS TO THOSE ITEMS ATTESTED TO UPON INFORMATION AND BELIEF.
DATED May 22,2002.
Respectfully Submitted, CHAIN, YOUNGER, COHN & STILES B;
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' DiECL.RAOTION OF JOH5TN A. TELLO IN RLSPONSL TO
.OONrBUSOflEcioNu EXHIBIT A,,
JOHN A. TELLO, ESQ.
STATE BAR NO. 86589
ý "CHAIN, YOUNGER, COHN & STILES 1430 Trox-tan Avenue Suite 100 Bakersfield, California 93301 (661) 323-4000 1
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~uis 13 20 21 22 23 24 25 26 DECLARATION OF JOHN A TELLO E4 RESPONSE To OBNtmRUSOaJECTION
.o-EXIBITA,:,.
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 RaBERT I.. SLATER, ESO A Law Corporation 16633 Ventura Boulevard Suite 1405 Encino, CA 91436 U.S.
BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISIOS(
235 Pine Street 224 Floor San Francisco, California 94111 iXI (By Mail)
I deposited such envelope in the mail at Bakersfield, California.
The envelope was mailed with postage thereon fully prepaid. ---
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[X)
As follors:
I am "readily familiar" with the firm's practice of collection and processing corresporidence for mailing.
Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Bakersfield, California, in the ordinary course of business.
[X] (STATE)
I declare, under penalty of perjury, under the laws of the State of Calornia, that the above is true and correct.
Executed on May 22, 2002, at Bakersfield, California.
_-SAL FELIX
-EXU11BTA c,-ý PROOF OF SERVICE BY MAIL-- (1013&,2015.5 C C.P (1) I am over the age of 18 years and not a party to the within action.
(2)
My business address is 1430 Truxtun Avenue, Suite 100, Bakersfield, California, 93301.
(3)
On May 22, 2002, I served a true copy of the following document entitled exactly DECLARATION OF JOHN A.
TELLO IN RESPONSE TO CONIBUS OBJECTION AIM OMNIBUS OBJECTIOSN TO LATE-FILED CLAIMS n
SANTOS GONZALEZ HERRERA] by placing it in an addressed sealed as follows:
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[Cone! fth Scrap.aend Sasthes Cobfi-sn Use coSntaye S-o V.i. Pteniler and Onle.! Cuaell PG&E PnCmorp afra 10 One Mst, Op-Tw-,
24Z6 San Feesnisosi Cabfseei 94105 Eres.WLeaeeam Kay~S.tN~a I,
Powell Spea+,, Lb.oey LI.P 1420 FiPt Avene, Sun 4100 SeosulWAt 8O1DI (Con s or Muld-Sa Coge. ColegnI ga. C&., Sas Oe Con Co. and Sma eCaty*yCogn.Ce.
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Sulley FA r u rt m
Fla -a nsidepAstboe lp agsurr IL* 0603 (Altttorne fo Bask of mAise Xdo Ages.]
Bryest Dent Soauther CWbteei. Ed.on 2244 Wale s.X 6
A1 Roloesd, CA 951770 23000 IoaPlas-Oto Suasorm~esCakfoamo 8sg Calzfemnlzadependeneopeeenop.
Pb0. Sm 636016 Folnsom CA 953040-017 C
PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF KERN I am employed in the County of Sem, State of Calioms. I am over tim age of 18 and not party to the within ction; my business address ts 841 Mohawk Street, State 200, Bakersield Caitforma 93309 On October 18.,2002, 1 served the foregoing document described NOTICE OF MOTIOO AND MOTION FOR RECONSIDERATION OF ORDER DISALLOWING CLAIM Of ALTERNATIVELY, TO EXTEND =
TO FILE PROOF OF CLAIM; MEMORANDUN OF POIONTS AND AUTHORITIES IN SUPPORT OF MOTION onto interested partes in thi acrisn byplacing a trut and camoct copy thermf sm sealed envelopes, addressed as folows 6' " -
SEEAATTACIEDLIST A'
X BYMA~tIL-+
I am 'readily famillar with the Sims practie regarding the collection and proemsing o
correspondence for maiing. Under that pr'actce, all comespodence is deposited in the United State maod with postage theron fully prepaid, at Bakers-eld, Califoria, on the sane day it is collected u the ordinary course ofbusmess.
"SI causd such envelope(s),
with postage thereon filly preptad. to be deposited so the Unitec States mad at Bakmsfield, Calsfionsa. I am aware that on moaton of the party
- served, s==vce v presained mivald if the postal cancellation date or the potage meter date is more than one (1) din after the date such envelopes were deposited in the United States mal.
Executed on dctob&r 18, 2002, at Bakerfield, Cablormna BY PERSONAL SERVICE:
I caused such envelope(s) to be personally delvered by hand to th-office(s) of the addrese(s)
Executed on October 108, 2002. at Bakemfiel d, California.
STATE. Ideclare under penally ofpeury under the laws ofth State ofCaliforma thattde forwgoing is rue and careon.'
X FEDERAL.
declare that I am employed in the office of a member ;f the bar of this Court at whose doueon the aobove-desarhed service wao made 1
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