In re: Leticia Joy Arciniega

FILED DEC 11 2017 1 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL 2 OF THE NINTH CIRCUIT 3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. CC-17-1154-SAKu ) 6 LETICIA JOY ARCINIEGA, ) Bk. No. 6:11-bk-15412-SY ) 7 Debtor. ) Adv. No. 6:11-ap-01735-SY ______________________________) 8 ) LETICIA JOY ARCINIEGA, ) 9 ) Appellant, ) 10 ) v. ) MEMORANDUM* 11 ) JAMES CLARK, ) 12 ) Appellee. ) 13 ______________________________) 14 Argued and Submitted on November 30, 2017 at Pasadena, California — 15 — Filed – December 11, 2017 — 16 — Appeal from the United States Bankruptcy Court 17 for the Central District of California 18 Honorable Scott Ho Yun, Bankruptcy Judge, Presiding 19 Appearances: Bruce Adelstein argued for appellant; David Edward Hays of Marshack Hays LLP argued for appellee. — 20 — 21 Before: SPRAKER, ALSTON** and KURTZ, Bankruptcy Judges. — 22 — — 23 — 24 * This disposition is not appropriate for publication. Although it may be cited for whatever persuasive value it may 25 have (see Fed. R. App. P. 32.1), it has no precedential value. 26 See 9th Cir. BAP Rule 8024-1. ** 27 Hon. Christopher M. Alston, United States Bankruptcy Judge for the Western District of Washington, sitting by 28 designation. 1 INTRODUCTION 2 This is the second appeal from this adversary proceeding. 3 In the prior appeal, we vacated the bankruptcy court’s 4 nondischargeability judgment against chapter 131 debtor Leticia 5 Joy Arciniega and remanded so that the bankruptcy court could 6 determine whether the $1,000-per-day liquidated damages clause in 7 the parties’ settlement agreement was reasonable within the 8 meaning of Cal Civ. Code § 1671(b). We also remanded so that the 9 bankruptcy court could apply the correct standard for awarding 10 Arciniega’s former husband James Clark his attorneys’ fees. 11 On remand, the bankruptcy court determined that there was no 12 evidence in the record supporting Arciniega’s claim that the 13 liquidated damages clause was unreasonable and hence Arciniega 14 had failed to meet her burden of proof on the reasonableness 15 issue. The bankruptcy court, in addition, identified the 16 prevailing party attorneys’ fees provision in the settlement 17 agreement and Cal. Civ. Code § 1717 as the basis for its fee 18 award. It then determined that most of the services Clark’s 19 counsel furnished in prosecuting the adversary proceeding were 20 inextricably intertwined rendering it impossible to realistically 21 or meaningfully separate the services related to contract issues 22 from those related to fraud and nondischargeability issues. 23 Based on these determinations, the bankruptcy court entered 24 an amended judgment again awarding Clark $281,000 in liquidated — 25 — 26 1 Unless specified otherwise, all chapter and section 27 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532 , and all "Rule" references are to the Federal Rules of Bankruptcy 28 Procedure, Rules 1001-9037;. — 2 — 1 damages, as well as $244,586.50 in attorneys’ fees. 2 Arciniega now appeals from the amended judgment after 3 remand. She contends that the bankruptcy court’s reasonableness 4 finding with respect to the liquidated damages clause was clearly 5 erroneous. We agree, and we will REVERSE that finding. In light 6 of the procedural history of this matter, however, Clark has 7 never been afforded a reasonable opportunity to prove up his 8 actual damages proximately caused by Arciniega’s fraud. 9 Therefore, we will again REMAND the matter to allow the 10 bankruptcy court to reopen the record on the proximate cause and 11 actual damages. 12 As for attorneys’ fees, we perceive no reversible error in 13 the bankruptcy court’s determination of the amount of the fee 14 award. The bankruptcy court’s finding that the fees were 15 inextricably intertwined was not clearly erroneous, and 16 Arciniega’s fact-based argument on appeal challenging that 17 finding was not raised below. That being said, the decision to 18 remand for determination of actual damages may call into question 19 the prevailing party determination. If on remand Clark cannot 20 prove actual damages, it may well be that he is not the 21 prevailing party and is not entitled to attorneys’ fees under the 22 settlement agreement and Cal. Civ. Code § 1717 . Accordingly, the 23 fee award must be VACATED because prevailing party attorneys’ 24 fees cannot be awarded under § 1717 until the final resolution of 25 the underlying claims. 26 For the reasons set forth below we will REVERSE IN PART, 27 VACATE IN PART AND REMAND the matter for a determination of 28 proximate cause, actual damages, and prevailing party. — 3 — 1 FACTS — 2 — A. The Couple’s Two Residences And Their Post-Dissolution 3 Dispute Over Ownership. 4 During the course of their marriage, Clark and Arciniega 5 purchased two residences. They purchased the first one, on 6 Arrowhead Avenue in San Bernardino, California, in 1979. They 7 purchased the second residence, on Verona Avenue in Hemet, 8 California, in 1991. To purchase the Verona property, the couple 9 utilized home financing available as part of Clark’s veterans’ 10 benefits. 11 Very shortly after their purchase of the Verona property, 12 the couple separated. After they separated, Clark resided at the 13 Arrowhead property, and Arciniega resided at the Verona property. 14 In 2000, their marital dissolution became final. Nonetheless, 15 both remained on the legal title for each property. In 2006, 16 Clark deeded to Arciniega his interest in the Verona property. 17 And in 2007, he sued Arciniega in the San Bernardino County 18 Superior Court to obtain sole legal title to the Arrowhead 19 property. Although Clark has testified that the principal 20 purpose of the lawsuit was to force Arciniega to relinquish her 21 interest in the Arrowhead property, we do not know much else 22 about the state court lawsuit because the only document from it 23 in the record is a copy of the settlement agreement resolving the 24 lawsuit. — 25 — B. Settlement of the Property Dispute, Partial Performance, and 26 Subsequent Bankruptcy Court Litigation. 27 The settlement agreement resolved the principal dispute in 28 the state court lawsuit (regarding title to the Arrowhead — 4 — 1 property) as follows: 2 A. Plaintiff [Clark] will pay Settling Defendant [Arciniega] the principal sum of Fifty Thousand 3 Dollars ($50,000). The settlement draft will be made payable to defendant and her counsel of 4 record. This payment is due on Wednesday May 13, 2009, so long as all parties have executed the 5 settlement agreement and defendant has provided plaintiff with a properly signed and notarized 6 quitclaim deed granting her entire interest in the [Arrowhead] Property to plaintiff. Plaintiff is 7 required to pay defendant $1,000 for each day that he is late in delivering the settlement funds to 8 defendant, so long as all the conditions set forth above are met. — 9 — 10 Agreement of Compromise, Settlement, and Mutual and General 11 Release (May 11, 2009) at Section II. A (“Subpart A”). 12 The settlement agreement contains a separate provision 13 dealing with the Verona property. This provision obliged 14 Arciniega to take the steps necessary to pay off the “VA loan” 15 encumbering the Verona property. Clark’s subsequent 16 nondischargeability claims arose from this obligation. The 17 provision states: 18 B. No later than May 13, 2010, defendant will take all necessary measures to payoff the existing VA 19 loan and removing plaintiff’s name from the loan on her property located at 890 Verona Avenue, 20 Hemet, California. Defendant will not attempt to assume the VA loan. Defendant agrees to pay 21 plaintiff liquidated damages at the rate of $1,000 per day for everyday that she is late complying 22 with this provision. Plaintiff will execute all necessary documents so as to enable defendant [to] 23 effectuate the removal of plaintiff’s name from the loan on her property on 890 Verona, Hemet, CA. — 24 — 25 Agreement of Compromise, Settlement, and Mutual and General 26 Release (May 11, 2009) at Section II. B (“Subpart B”). 27 The other critical provision of the settlement agreement is 28 its attorneys’ fees clause, which provides in relevant part as — 5 — 1 follows: 2 In the event of future actions including, but not limited to filing a motion to enforce settlement, 3 litigation or arbitration relating to the enforcement of this Agreement, the prevailing party shall be 4 entitled to his or her reasonable attorney’s fees, expenses and costs incurred therein pursuant to 5 California Civil Code section 1717. 6 Id. at Section II. 1. 7 Both parties duly performed their respective obligations 8 under Subpart A, resolving the principal dispute in the state 9 court lawsuit. But Arciniega failed to remove Clark from the VA 10 loan secured by the Verona property, as required by Subpart B. 11 In February 2011, she commenced her chapter 7 case. As of the 12 petition date, the balance on the VA loan was roughly $75,000. 13 In May 2011, Clark filed his adversary complaint seeking 14 relief against Arciniega under § 523(a)(2)(A) and (a)(6), and 15 under § 727(a)(2), (a)(4) and (a)(6).2 In relevant part, Clark 16 alleged that Arciniega’s contractual obligation to remove him 17 from the VA loan amounted to a false promise – that she never 18 intended to actually pay off the VA loan. Clark asserted that at 19 the time Arciniega entered into the settlement agreement she knew 20 it was impossible for her to payoff the VA loan – given her poor 21 financial condition. Moreover, Clark maintained that the stated 22 encumbrances against the Verona property significantly exceeded 23 its value – by at least $80,000. 24 Arciniega responded that the settlement agreement did not 25 require her to actually pay off the VA loan. Rather, she argued — 26 — — 27 — — 2 — The bankruptcy court’s judgment denied Clark any relief on 28 his § 727 claims. Clark did not appeal this denial. — 6 — 1 that it merely required her to exercise her best efforts to pay 2 off the VA loan. Alternately, she contended that she did indeed 3 intend to pay off the VA loan. According to Arciniega, the over4 encumbrance of the Verona property, combined with overall 5 economic conditions at the time, defeated her good faith intent 6 and best efforts to refinance the Verona property. 7 The bankruptcy court held a trial on March 17, 2015. Trial 8 consisted of the testimony and arguments of Arciniega and Clark 9 and lasted roughly one day. Up until the time of trial, 10 Arciniega was represented by counsel. However, at trial, 11 Arciniega represented herself. 12 After trial, the bankruptcy court decided the § 523 claims 13 in favor of Clark. The bankruptcy court determined that the 14 settlement agreement required Arciniega to actually pay off the 15 VA loan but that she never intended to honor this obligation. 16 The court relied upon a series of letters between Arciniega, her 17 lender and others. In particular, in one dated May 2, 2009 – 18 only nine days before she entered into the settlement agreement – 19 Arciniega lamented her poor financial condition. In it, she 20 effectively admitted her inability to refinance the Verona 21 property or otherwise pay off the VA loan. The bankruptcy court 22 inferred that Arciniega had knowledge of her inability to 23 refinance from her experience in the real estate and banking 24 industries. 25 As for damages, the bankruptcy court awarded Clark the 26 $50,000 he paid to Arciniega under the settlement agreement for 27 the conveyance of her interests in the Arrowhead property. The 28 court also awarded Clark $281,000 in liquidated damages. The — 7 — 1 $281,000 was based on the settlement agreement’s $1,000 per day 2 liquidated damages clause, measured from May 13, 2010, the day 3 Arciniega defaulted on her promise to pay off the VA loan, to 4 February 18, 2011, the day Arciniega filed her chapter 7 5 petition. Additionally, the bankruptcy court awarded Clark 6 $209,806.42 in attorney's fees and costs. 7 C. First Appeal from the Bankruptcy Court’s Judgment. 8 On appeal from the bankruptcy court’s judgment, we upheld 9 the bankruptcy court’s determination that Arciniega had committed 10 nondischargeable fraud under § 523(a)(2)(A). On the other hand, 11 we overturned the bankruptcy court’s award of $50,000 in actual 12 damages. We held that Clark’s $50,000 settlement payment was not 13 proximately caused by Arciniega’s false promise to pay off the VA 14 loan. In so holding, we reasoned that “[n]o tie exists between 15 the $50,000 payment Clark made to Arciniega and Arciniega's 16 obligation to pay off the VA loan.”3 17 We also overturned the bankruptcy court’s liquidated damages 18 award because the bankruptcy court did not consider whether the 19 liquidated damages clause was reasonable.4 As we explained, Cal. — 20 — 21 3 We based this reasoning primarily on the structure of the 22 settlement agreement. More specifically, the $50,000 payment was part of the parties’ rights and duties set forth in Subpart A, 23 governing the parties’ obligations with respect to the Arrowhead property, whereas the VA loan payoff was part of the parties’ 24 rights and duties set forth in Subpart B, governing Arciniega’s obligations with respect to the Verona property. The Subpart A 25 obligations were fully performed by both parties, whereas 26 Arciniega did not perform her Subpart B obligations. — 4 — 27 We acknowledged Clark’s argument that Arciniega did not adequately preserve the liquidated damages issue for appeal, but 28 (continued...) — 8 — 1 Civ. Code § 1671(b) invalidates liquidated damages provisions if 2 the damages provided for are “unreasonable under the 3 circumstances existing at the time the contract was made.” Id. 4 We vacated and remanded on the liquidated damages issue so that 5 “the bankruptcy court [could] evaluate whether the liquidated 6 damages were enforceable under California law.” We further 7 stated: 8 Given the standard set by the California Supreme Court [in Ridgley v. Topa Thrift & Loan Ass'n, 17 Cal. 4th 9 970, 977 (1998)], it seems unlikely that the $1,000/day provision was related to any anticipated actual loss 10 Clark would suffer by remaining on the VA loan. Accordingly, upon remand, the bankruptcy court will 11 need to review the subject provision under the given standard and determine the appropriate amount of 12 liquidated damages, if any. 13 Mem Dec. (Feb. 3, 2016) at 26:25-27:4. 14 As for the fee award, we vacated the bankruptcy court’s 15 award of attorneys’ fees because the apparent grounds for the 16 award, the attorneys’ fees clause in the settlement agreement and — 17 — Cal. Civ. Code § 1717 , only permitted recovery of fees for 18 actions on a contract. At trial, the bankruptcy court did not 19 attempt to apportion the requested fees into compensable services — 20 — 21 4 (...continued) we rejected this argument for two reasons. First, we posited — 22 — that Arciniega had preserved the issue by contending during her 23 pro se closing argument that she should not be subjected to liquidated damages. Second, even if the issue was not adequately 24 preserved, we explained that we still could consider it because the issue was purely a legal one and Clark would not be 25 prejudiced. According to the prior panel, there was no prejudice 26 to Clark in considering the issue because he addressed it in his responsive appeal brief and because the liquidated damages issue 27 was connected to Clark’s burden to establish his damages, as one of the elements for obtaining relief under § 523(a)(2)(A) and 28 (a)(6). — 9 — 1 rendered on contract issues and noncompensable services rendered 2 on fraud and nondischargeability issues. We also noted that the 3 bankruptcy court potentially could determine on remand that it 4 was impractical or impossible to apportion fees because the 5 subject claims arose from a common core of facts or implicated 6 issues that were inextricably intertwined. If this were the 7 case, we explained, apportionment was unnecessary and the court 8 could exercise its discretion to award all fees incurred. 9 D. Proceedings On Remand. 10 1. Resolution of Liquidated Damages Issue. 11 On remand, the bankruptcy court held an initial status 12 conference at which it ordered the parties to further brief the 13 issues remanded and to provide evidence on the reasonableness of 14 the liquidated damages clause. At that hearing, held in October 15 2016, Arciniega advocated that the Panel’s decision did not 16 contemplate, or even permit, the bankruptcy court to reopen the 17 record concerning the reasonableness of the liquidated damages 18 clause. The bankruptcy court initially rejected that notion and 19 directed the parties to submit declarations and exhibits on the 20 reasonableness issue. 21 After briefing and the submission of written evidence, the 22 bankruptcy court held a second post-remand status conference. At 23 the hearing, the bankruptcy court reversed itself on the need to 24 reopen the record to take additional evidence on the 25 reasonableness of the liquidated damages clause and declined to 26 reopen the record. The bankruptcy court then pointed out that 27 the burden was on Arciniega to establish the unreasonableness of 28 the liquidated damages clause. According to the bankruptcy — 10 — 1 court, there was little or no evidence in the record relevant to 2 the reasonableness of the liquidated damages clause.5 Therefore, 3 the court concluded, Arciniega failed to meet her burden to 4 establish the unreasonableness of the liquidated damages clause, 5 and the clause was valid and enforceable under California law. 6 Arciniega argued that the liquidated damages clause itself 7 (and the surrounding circumstances regarding the VA loan) 8 established that the clause was unreasonable. She contended that 9 $1,000 per day – with no termination date – was grossly 10 disproportionate with any potential damages the parties could 11 have conceived of, at the time the settlement agreement was 12 entered into, as potentially arising from breach of the VA loan 13 payoff obligation. The bankruptcy court gave two reasons for 14 rejecting Arciniega’s argument. First, according to the 15 bankruptcy court, the accumulation of liquidated damages at a 16 rate of $1,000 per day was not in danger of continuing in 17 perpetuity. The bankruptcy court explained that Clark had 18 limited his liquidated damages request in the adversary 19 proceeding to the first 281 days of Arciniega’s default, so the 20 liquidated damages were capped at $281,000. And second, the 21 bankruptcy court noted that Subpart A of the settlement agreement 22 imposed similar $1,000 per day liquidated damages on Clark if he 23 defaulted on his obligation to pay $50,000 to Arciniega. The 24 bankruptcy court found that these factors negated any argument 25 that the liquidated damages clause invoked against Arciniega was — 26 — — 5 — 27 The court observed that at trial Arciniega had only questioned Clark about the timing as to when the liquidated 28 damages had been inserted into the settlement agreement. — 11 — 1 unreasonable, and, therefore, the provision was enforceable under 2 California. 3 2. Resolution of Attorneys’ Fees Issue. 4 At the end of the second post-remand hearing, both parties 5 agreed to a process for the review and consideration of the fee 6 issue. Clark’s counsel agreed to provide its billing entries on 7 a spread sheet that would enable Arciniega and the court to 8 comment upon and potentially exclude from compensation individual 9 billing entries. 10 Clark duly submitted counsel’s billing entries in the form 11 contemplated. He also voluntarily reduced his fee request by 12 roughly $25,000 as a result of his review of the billing entries 13 and his ability to determine that roughly $25,000 of the services 14 provided did not pertain to contract-related issues. As for the 15 remaining services, Clark maintained that he could not apportion 16 them between contract related fees and fraud/nondischargeability 17 related fees because they all arose from a common core of facts 18 and also were inextricably intertwined. 19 Arciniega, on the other hand, did not conduct a line-item 20 review or comment regarding specific billing entries. Instead, 21 in her six-page opposition to the requested fees, she made two 22 summary arguments: (1) Clark had not presented any evidence 23 establishing that he was entitled to recover his attorneys’ fees 24 for any of his counsel’s services in the litigation; and (2) the 25 fees Clark sought to recover were grossly excessive and 26 unreasonable. 27 At the third and final hearing on remand, the bankruptcy 28 court deducted an additional $7,500 from Clark’s fee request — 12 — 1 based on its own review of the billing entries. The court 2 otherwise agreed with Clark’s position that the remaining fees 3 arose from a common core of facts and that the contract and 4 fraud/nondischargeability issues were inextricably intertwined. 5 Based upon this finding, it concluded that it was impractical or 6 impossible to further apportion the fees. The bankruptcy court 7 also rejected Arciniega’s argument that the amount of fees were 8 unreasonable. According to the court, the large amount of fees 9 both parties incurred were the result of the litigiousness of the 10 parties and not the result of unreasonable billings. Ultimately, 11 the bankruptcy court awarded Clark $244,586.50 in attorneys’ fees 12 and $11,032.02 in costs. 13 The bankruptcy court entered its amended judgment after 14 remand on May 9, 2017, and Arciniega timely appealed. 15 JURISDICTION 16 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 17 §§ 1334 and 157(b)(2)(I) and (J), and we have jurisdiction under — 18 — 28 U.S.C. § 158 . 19 ISSUES 20 1. Did the bankruptcy court commit reversible error when, on 21 remand, it awarded Clark $281,000 in liquidated damages? 22 2. Did the bankruptcy court commit reversible error when, on 23 remand, it awarded Clark $244,586.50 in attorneys’ fees? 24 STANDARDS OF REVIEW 25 We review the bankruptcy court's liquidated damages award 26 for an abuse of discretion. Traxler v. Multnomah Cty., 596 F.3d 27 1007, 1015 (9th Cir. 2010). We review the bankruptcy court’s 28 attorneys’ fees award under the same standard. Dinan v. Fry — 13 — 1 (In re Dinan), 448 B.R. 775, 783 (9th Cir. BAP 2011). 2 The bankruptcy court abused its discretion if it applied an 3 incorrect legal standard or its factual findings were illogical, 4 implausible or without support in the record. TrafficSchool.com, 5 Inc. v. Edriver Inc., 653 F.3d 820, 832 (9th Cir. 2011). 6 DISCUSSION 7 A. Validity of Liquidated Damages Clause. 8 In California, the validity of a liquidated damages clause 9 is governed by Cal Civ. Code § 1671(b), which provides: 10 Except as provided in subdivision (c), a provision in a contract liquidating the damages for the breach of the 11 contract is valid unless the party seeking to invalidate the provision establishes that the provision 12 was unreasonable under the circumstances existing at the time the contract was made. — 13 — — 14 — Cal. Civ. Code § 1671 (West). The current version of the statute 15 thus imposes on the adverse party the burden of proving that the 16 clause was unreasonable. Prior to 1978, Cal Civ. Code § 1671 was 17 silent on the burden of proof, but case law at the time squarely 18 placed the burden of proof on the party seeking to invoke the 19 liquidated damages clause. See Krechuniak v. Noorzoy, 11 Cal. 20 App. 5th 713, 721 (2017) (citing cases). In 1978, the California 21 legislature adopted the recommendation of California’s Law 22 Revision Commission and amended Cal Civ. Code § 1671 to 23 “liberalize” the availability of liquidated damages in non24 consumer contract cases. Ridgley v. Topa Thrift & Loan Ass'n, — 25 — 17 Cal. 4th 970, 977 (1998). The legislature accomplished this 26 liberalization, in part, by shifting the burden of proof 27 regarding reasonableness. Id. 28 In addition, under the amended statute, the amount of actual — 14 — 1 damages the plaintiff incurred no longer is relevant to the 2 reasonableness of the liquidated damages clause. This point is 3 made clear in the Law Revision Commission commentary accompanying 4 the amended statute: 5 § 1671(b) limits the circumstances that may be taken into account in the determination of reasonableness to 6 those in existence “at the time the contract was made.” The validity of the liquidated damages provision 7 depends upon its reasonableness at the time the contract was made and not as it appears in retrospect. 8 Accordingly, the amount of damages actually suffered has no bearing on the validity of the liquidated 9 damages provision. 10 Law Revision Commission Comments accompanying Cal. Civ. Code 11 § 1671 (West).6 12 The Law Revision Commission further explained what 13 circumstances typically are relevant to the reasonableness 14 consideration: 15 All the circumstances existing at the time of the making of the contract are considered, including the 16 relationship that the damages provided in the contract bear to the range of harm that reasonably could be 17 anticipated at the time of the making of the contract. Other relevant considerations in the determination of 18 whether the amount of liquidated damages is so high or so low as to be unreasonable include, but are not 19 limited to, such matters as the relative equality of the bargaining power of the parties, whether the 20 parties were represented by lawyers at the time the contract was made, the anticipation of the parties that 21 proof of actual damages would be costly or inconvenient, the difficulty of proving causation and 22 foreseeability, and whether the liquidated damages provision is included in a form contract. — 23 — — 24 — — 6 — “The Law Revision Commission has provided a detailed 25 explanation of the relevant changes in section 1671. Their 26 ‘comments are entitled to great weight in construing statutes proposed by the Commission and adopted without substantial 27 change.’” Krechuniak, 11 Cal. App. 5th at 721 (quoting Pac. Trust Co. TTEE v. Fidelity Fed. Sav. & Loan Ass’n, 184 Cal. App. 28 3d 817, 823 (1986)). — 15 — — 1 — Id. 2 However, in interpreting Cal Civ. Code § 1671, the 3 California Supreme court in Ridgley simplified the reasonableness 4 determination under certain circumstances: 5 A liquidated damages clause will generally be considered unreasonable, and hence unenforceable under 6 section 1671(b), if it bears no reasonable relationship to the range of actual damages that the parties could 7 have anticipated would flow from a breach. The amount set as liquidated damages must represent the result of 8 a reasonable endeavor by the parties to estimate a fair average compensation for any loss that may be 9 sustained. In the absence of such relationship, a contractual clause purporting to predetermine damages 10 must be construed as a penalty. . . . In short, [a]n amount disproportionate to the anticipated damages is 11 termed a penalty. A contractual provision imposing a penalty is ineffective, and the wronged party can 12 collect only the actual damages sustained. 13 Ridgley, 17 Cal. 4th at 977 (citations and internal quotation 14 marks omitted); see also Grand Prospect Partners, L.P. v. Ross 15 Dress for Less, Inc., 232 Cal. App. 4th 1332, 1358 , as modified 16 on denial of reh'g (Feb. 9, 2015) (“[T]he general rule for 17 whether a contractual condition is an unenforceable penalty 18 requires the comparison of (1) the value of the money or property 19 forfeited or transferred to the party protected by the condition 20 to (2) the range of harm or damages anticipated to be caused that 21 party by the failure of the condition. If the forfeiture or 22 transfer bears no reasonable relationship to the range of 23 anticipated harm, the condition will be deemed an unenforceable 24 penalty.”). 25 Accordingly, when the damages provided for in a liquidated 26 damages clause do not bear a rational and proportional 27 relationship to the range of harm the parties conceivably could 28 have anticipated arising from a breach at the time the parties — 16 — 1 entered into the contract, the liquidated damages clause is 2 unenforceable. See, e.g., Vitatech Int’l, Inc. v. Sporn, 2017 WL 3 4876175, at *6-8 (Cal. Ct. App. Sept. 29, 2017), as modified 4 (Oct. 30, 2017); Purcell v. Schweitzer, 224 Cal. App. 4th 969 , 5 975–76 (2014); Greentree Fin. Grp. Inc. v. Execute Sports, Inc., — 6 — 163 Cal. App. 4th 495, 498-500 (2008); Harbor Island Holdings v. 7 Kim, 107 Cal. App. 4th 790, 796 , 132 Cal. Rptr. 2d 406 , 409 8 (2003). 9 Here, Clark admitted that the underlying purpose of the VA 10 loan payoff provision was to restore his entitlement to obtain a 11 new VA loan, which he maintained only could occur if Arciniega 12 paid off the VA loan (or otherwise managed to remove his name 13 from the loan). Thus, the harm the parties could have 14 anticipated arising from Arciniega’s default necessarily had to 15 be tied to Clark’s inability to obtain a new VA loan. More to 16 the point, such damages would be the difference in costs and 17 interest between the presumably more favorable VA loan and a non18 VA loan. 19 The imposition of $1,000 per day in damages was neither 20 rational nor proportional to this anticipated harm. Regardless 21 of whether Arciniega’s default would have relegated Clark to 22 obtaining a non-VA loan, or no loan at all, it is inconceivable 23 that the parties could have or would have anticipated Clark 24 suffering $1,000 per day in damages as a result of Arciniega’s 25 default. Nor can the obligation to pay $1,000 per day in 26 liquidated damages be reconciled to the mortgage payments or 27 balance owed on the Verona property. The record indicates that 28 the monthly mortgage payment was only $1,025.48, and the balance — 17 — 1 of the loan as of the settlement was roughly $75,000. 2 The temporal aspect of this liquidated damages clause also 3 is problematic. An indefinite daily imposition of $1,000 in 4 damages is neither rational nor proportional. The liquidated 5 damages clause contains no termination date, and is not limited 6 to payment of the loan. Thus, the clause could impose $1,000 per 7 day in damages against Arciniega in perpetuity, leaving the 8 damages to grow endlessly – unless and until Arciniega cured the 9 default. This type of gross disconnect between the amount of 10 liquidated damages and the anticipated damages is sufficient by 11 itself to invalidate a liquidated damages clause. See Dollar 12 Tree Stores Inc. v. Toyama Partners LLC, 875 F. Supp. 2d 1058 , 13 1071-73 (N.D. Cal. 2012); see also Ridgley, 17 Cal. 4th at 977 ; 14 Smith v. Royal Mfg. Co., 185 Cal. App. 2d 315, 324 (1960) (“Where 15 a fixed sum is agreed upon as liquidated damages for one of 16 several breaches of varying degree, it is to be inferred that a 17 penalty was intended.”).7 — 18 — 19 7 We are aware that Royal Mfg. predates the major changes to 20 Cal Civ. Code § 1671(b) enacted in 1978. Nonetheless, its observation regarding the nature of liquidated damages clauses 21 that impose the same fixed damages for varying degrees of breach still makes perfect sense today, under Cal Civ. Code § 1671(b)’s — 22 — current standard. In addition, Royal Mfg. is particularly 23 salient to us, because the bankruptcy court reasoned that the liquidated damages clause at issue herein was reasonable, in 24 part, because the same $1,000 per day penalty was to be imposed against both Arciniega and Clark, depending on who defaulted on 25 their settlement agreement obligations. As suggested by Royal 26 Mfg., the application of the same liquidated damages clause to different types of potential breaches, with significantly 27 different types and amounts of potential damages, is evidence of the clause’s unreasonableness, rather than its reasonableness, as 28 the bankruptcy court figured. — 18 — 1 The bankruptcy court rejected the argument that the 2 liquidated damages were potentially limitless and, hence, 3 unreasonable. The bankruptcy court reasoned that, because Clark 4 only asked for 281 days of liquidated damages, up until 5 Arciniega’s bankruptcy filing, the liquidated damages clause was 6 both limited and reasonable. This determination was neither 7 logical nor supported by the record. That Clark voluntarily 8 limited its liquidated damages request does not alter the 9 undisputed fact that the liquidated damages clause itself did not 10 provide for any limit or ceiling on damages.8 Furthermore, by 11 focusing on Clark’s unilateral cap on his liquidated damages 12 request, the bankruptcy court misapplied the legal standard under — 13 — Cal. Civ. Code § 1631 because it relied on a circumstance that 14 did not exist “at the time the contract was made.” Id. 15 The bankruptcy court additionally opined that Arciniega 16 presented little or no evidence and, therefore, did not satisfy 17 her burden of proof to establish the unreasonableness of the 18 liquidated damages clause. This determination ignored the 19 factual and legal significance of the settlement agreement itself 20 as evidence and the undisputed fact that the existing VA loan 21 balance was roughly $75,000 at the time of the settlement. This — 22 — — 8 — 23 That Clark voluntarily and unilaterally capped the accrual of liquidated damages as of the date of Arciniega’s petition 24 filing suggests that he believed that the commencement of a bankruptcy case somehow terminates the accrual of 25 nondischargeable debt arising from fraud. We are not aware of 26 any such limit on nondischargeable fraud damages. In fact, such a limit would be inconsistent with the Supreme Court’s 27 pronouncement that “§ 523(a)(2)(A) bars the discharge of all liability arising from fraud.” Cohen v. de la Cruz, 523 U.S. 28 213, 222, (1998) (emphasis added). — 19 — 1 evidence reasonably supports only one conclusion: that the 2 liquidated damages clause bore no rational or proportionate 3 relationship to Clark’s conceivable damages at the time the 4 parties entered into the settlement agreement.9 5 We acknowledge that there is a debate amongst the California 6 appellate courts as to whether the validity/reasonableness of 7 liquidated damages clauses is a question of fact or question of 8 law and as to what standard of review applies. Compare Vitatech 9 Int'l, Inc., 2017 WL 4876175, at *6 , and Krechuniak, 11 Cal. App. 10 5th at 722–23 (question of fact), with Jade Fashion & Co. v. 11 Harkham Indus., Inc., 229 Cal. App. 4th 635, 646 (2014) (question 12 of law). Here, however, we do not need to predict how the 13 California Supreme Court will resolve this debate, because the 14 bankruptcy court’s determination cannot be upheld under any 15 potentially applicable standard of review – de novo, clearly 16 erroneous or abuse of discretion – for the reasons set forth 17 above. Consequently, we REVERSE the bankruptcy court’s 18 determination that the liquidated damages clause was valid, and — 19 — — 20 — — 9 — As set forth in the facts section, supra, the bankruptcy 21 court ultimately ruled on remand not to reopen the record on the reasonableness of the liquidated damages clause. Neither party — 22 — has challenged this ruling on appeal. Furthermore, we see no 23 basis to conclude that this ruling was an abuse of discretion. See generally Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 24 523, 551 (1983) (“On remand, the decision on whether to reopen the record should be left to the sound discretion of the trial 25 court”); Carter Jones Lumber Co. v. LTV Steel Co., 237 F.3d 745 , 26 751 (6th Cir. 2001) (same). Nor did our prior decision require a particular ruling either way on the reopening of evidence, as it 27 was silent on the issue. Id.; see also Hall v. City of L.A., 697 F.3d 1059, 1067 (9th Cir. 2012) (stating that trial court on 28 remand is free to decide anything not foreclosed by the mandate). — 20 — 1 we hold that the clause was unenforceable under California law. 2 Nonetheless, our decision does not preclude Clark from all 3 relief. Even though Clark is not entitled to liquidated damages, 4 he still might be entitled to recover his actual damages. See 5 Ridgley, 17 Cal. 4th 970, 977 . Ordinarily, we would have 6 expected Clark to have made his case for actual damages at the 7 original trial, as part of his case in chief, because proximate 8 cause and damages are elements of his nondischargeability claims. 9 See Cossu v. Jefferson Pilot Sec. Corp. (In re Cossu), 410 F.3d 10 591, 596 (9th Cir. 2005); Romesh Japra M.D., F.A.C.C., Inc. v. 11 Apte (In re Apte), 180 B.R. 223, 231 (9th Cir. BAP 1995), aff'd, — 12 — 96 F.3d 1319 (9th Cir. 1996), partially abrogated on other 13 grounds by, Kawaauhau v. Geiger, 523 U.S. 57, 61-64 (1998); see 14 also Arciniega v. Clark (In re Arciniega), 2016 WL 455428 , at *15 15 n.10 (Mem. Dec.) (9th Cir. BAP Feb. 3, 2016) (applying proximate 16 cause element to § 523(a)(6) claim). 17 Here, however, the record demonstrates why Clark did not do 18 so. Up until her closing argument after trial, Arciniega had 19 done nothing to put the validity of the liquidated damages clause 20 at issue. As a result, at no time before or during trial did 21 Clark have any reason to suspect that he might have to prove the 22 amount of his actual damages or that those damages were 23 proximately caused by Arciniega’s fraud. He understood his 24 assertion of liquidated damages was undisputed. 25 To deprive Clark of a reasonable opportunity to prove the 26 amount of his actual damages proximately caused by Arciniega’s 27 fraud would amount to a deprivation of his due process rights. 28 One of the most fundamental requirements of due process is the — 21 — 1 opportunity to be heard at a meaningful time and in a meaningful 2 manner. Armstrong v. Manzo, 380 U.S. 545, 552 , 85 S. Ct. 1187 , 3 1191, 14 L. Ed. 2d 62 (1965). That will not happen here unless 4 the record is reopened. Consequently, we must REMAND. On 5 remand, the bankruptcy court must reopen the record and give the 6 parties a reasonable opportunity to present evidence on proximate 7 cause and damages. 8 B. Disposition of Attorneys’ Fees Issue. 9 Our prior decision set forth the legal standards and rules 10 applicable to Clark’s request for attorneys’ fees. Those 11 standards and rules are law of the case. See Am. Express Travel 12 Related Servs. Co. v. Fraschilla (In re Fraschilla), 235 B.R. 13 449, 454 (9th Cir. BAP 1999), aff'd, 242 F.3d 381 (table) (9th 14 Cir. 2000). We directed the bankruptcy court, to the extent 15 practicable, to apportion the fees between compensable services 16 rendered on contract issues and non-compensable services rendered 17 on fraud and nondischargeability issues. We also noted that the 18 bankruptcy court was not obliged to apportion fees to the extent 19 it was impractical or impossible to do so because the subject 20 claims arose from a common core of facts or implicated issues 21 that were inextricably intertwined. Harmon v. City & Cty. of 22 S.F., 158 Cal. App. 4th 407, 417 (2007). 23 More specifically, when the facts, evidence and/or legal 24 work substantially overlap, the trial court typically does not 25 abuse its discretion in declining to apportion fees between 26 compensable and non-compensable units. See, e.g., Calvo Fisher & 27 Jacob LLP v. Lujan, 234 Cal. App. 4th 608, 626 (2015); Amtower v. 28 Photon Dynamics, Inc., 158 Cal. App. 4th 1582, 1605 (2008), as — 22 — 1 modified (Feb. 15, 2008); Thompson Pac. Const., Inc. v. City of 2 Sunnyvale, 155 Cal. App. 4th 525, 556 (2007); Mann v. Quality Old 3 Time Serv., Inc., 139 Cal. App. 4th 328, 342 (2006); Erickson v. 4 R.E.M. Concepts, Inc., 126 Cal. App. 4th 1073 , 1085–86 (2005), as 5 modified (Feb. 14, 2005). At bottom, the determination of 6 whether issues on compensable and noncompensable claims are 7 inextricably intertwined is a factual question. See Harman, 8 158 Cal. App. 4th at 424. 9 On remand, the record reflects that Clark duly submitted all 10 of its detailed time entries and that the bankruptcy court duly 11 reviewed these time entries and deducted fees that it determined 12 were either unreasonable or were attributable solely to non13 contract issues arising in Clark’s § 727 claims for relief. In 14 addition, Clark asserted that the contract and non-contract 15 issues arising in his § 523 claims arose from a common core of 16 facts and were inextricably intertwined. The bankruptcy court 17 agreed with Clark regarding this overlap. 18 Arciniega, who was represented by counsel on remand, was 19 given ample opportunity to review these same time entries and to 20 make objections to specific time entries as being unreasonable or 21 noncompensable or both. She only submitted a barebones objection 22 containing three pages of argument. In the objection, she 23 summarily asserted that Clark had not factually established that 24 any of his fees were for services rendered on compensable 25 contract issues. She also asserted that the amount Clark 26 expended on legal services in this litigation was unreasonable 27 and disproportionate with the amount at stake. 28 Notably, in the bankruptcy court, Arciniega did not oppose — 23 — 1 Clark’s contention that the fees could not be apportioned between 2 contract and non-contract issues. She never challenged the 3 notion that the contract and non-contract issues arose from a 4 common core of facts and were inextricably intertwined. On 5 appeal, she waits until page 58 of her 60-page brief to assert 6 for the first time that the bankruptcy court could have 7 practicably apportioned the fees by focusing on the discovery 8 questions propounded and on the evidence presented at trial. 9 One overarching theme of this litigation is Arciniega’s 10 failure to timely assert arguments, claims and defenses – even 11 when she has been represented by counsel. We have discretion to 12 decline to consider issues and arguments that Arciniega raised 13 for the first time on appeal. El Paso City of Tex. v. Am. W. 14 Airlines, Inc. (In re Am. W. Airlines), 217 F.3d 1161, 1165 (9th 15 Cir. 2000). There are certain exceptions that will permit us to 16 review an issue for the first time on appeal. See Mano-Y & M, 17 Ltd. v. Field (In re Mortg. Store, Inc.), 773 F.3d 990, 995 (9th 18 Cir. 2014) (to prevent a miscarriage of justice, to preserve the 19 integrity of the judicial process, to address a change in the 20 law, or to consider a purely legal issue when it does not depend 21 on the factual record or when the record already has been fully 22 developed). Arciniega has not asserted that any of these 23 exceptions apply here. Nor do we perceive adequate grounds to 24 apply any of them. 25 Even if we were to consider Arciniega’s new argument on 26 appeal, she has failed to develop such argument. Nonetheless, we 27 have reviewed the pleadings, exhibits and other documents 28 included in the record in this litigation. Arciniega argued — 24 — 1 vigorously at trial that: (1) the VA loan payoff provision only 2 required her to use her best efforts to pay off the loan; and 3 (2) her communications with various financial institutions and 4 other entities both before and after execution of the settlement 5 agreement demonstrated her full and complete performance of her 6 obligations under the loan payoff provision. These hotly 7 contested issues in this litigation concerned contract 8 interpretation and contract performance. But, these issues also 9 implicated Clark’s fraud claims, which required evidence that she 10 understood her contractual obligations and was aware that she 11 would not be able to remove Clark from the VA loan. In short, 12 there could not have been any actionable promissory fraud unless 13 and until Clark established what Arciniega promised and that she 14 did not honor that promise. 15 Moreover, virtually all of the discovery taken and evidence 16 submitted on the § 523 claims was relevant to both contract and 17 tort issues. Arciniega claims otherwise, but she only is able to 18 make this claim with the benefit of hindsight. Until the 19 bankruptcy court ruled, after trial, that the VA loan payoff 20 provision was unambiguous, the discovery and presentation of 21 extrinsic evidence regarding Arciniega’s financial condition and 22 regarding her communications with financial institutions and 23 other entities on the subject of her loans and finances were 24 potentially admissible contract interpretation evidence. See 25 Pacific Gas & E. Co. v. G.W. Thomas Drayage etc. Co., 69 Cal.2d 26 33, 37-40 (1968) (holding that credible extrinsic evidence is 27 admissible to determine whether a contract term is susceptible to 28 more than one meaning and, hence, ambiguous); London Mkt. — 25 — 1 Insurers v. Sup. Ct., 146 Cal. App. 4th 648, 656 (2007) (“In 2 determining if a provision is ambiguous, we consider not only the 3 face of the contract but also any extrinsic evidence that 4 supports a reasonable interpretation.”). 5 As for the discovery and evidence on the § 727 claims, the 6 bankruptcy court made deductions for non-compensable services 7 rendered on the § 727 claims. Arciniega has done virtually 8 nothing to establish that the bankruptcy court’s deductions were 9 insufficient. On this record, and given Arciniega’s limited 10 effort on the issue, we cannot say that the bankruptcy court’s 11 deductions for the § 727 claims were based on clearly erroneous 12 factual findings or an erroneous view of the law. We are not 13 obliged to search the entire record ourselves, unaided, for 14 error. Tevis v. Wilke, Fleury, Hoffelt, Gould & Birney, LLP 15 (In re Tevis), 347 B.R. 679, 686 (9th Cir. BAP 2006). 16 Nor can we reverse as clearly erroneous the bankruptcy 17 court’s determination that the amount of fees requested was 18 unreasonable. The court painstakingly considered the 19 reasonableness of all of Clark’s counsel’s billing entries and 20 made a number of deductions based on reasonableness. In 21 addition, the bankruptcy court took into account the overall 22 nature of the litigation and concluded that the large amount of 23 fees incurred was not the result of unreasonable billings but 24 rather was the result of the litigious nature of the parties. 25 The bankruptcy court, as the trial court, is in a far better 26 position than us to make this type of assessment, and Arciniega 27 has not offered us any legitimate grounds to disturb that 28 assessment. Ellis v. Toshiba America Information Systems, Inc., — 26 — — 1 — 218 Cal.App.4th 853, 889 (2013), as modified (Aug. 14, 2013), as 2 modified on denial of reh'g (Sept. 10, 2013). 3 Even so, a prevailing party attorney fee award should not be 4 granted under Cal. Civ. Code § 1717 to a plaintiff who obtains no 5 recovery on any of his claims. See Hsu v. Abbara, 9 Cal. 4th 6 863, 876 (1995) (“when a defendant defeats recovery by the 7 plaintiff on the only contract claim in the action, the defendant 8 is the party prevailing on the contract under section 1717 as a 9 matter of law.”). We have previously reversed the award of the 10 $50,000 settlement payment relating to the Arrowhead property, 11 and now hold that an award of liquidated damages is 12 unenforceable.10 Thus, there is presently no award of damages to 13 Clark. In the absence of a damages award in his favor, Clark is 14 not the prevailing party for attorneys’ fees purposes. See id.; 15 see also Cal Civ. Proc. Code § 1032(a)(4) (stating that a 16 “prevailing party” includes “a defendant as against those 17 plaintiffs who do not recover any relief against that 18 defendant.”). Put another way, the prevailing party 19 determination only can be made on final resolution of the 20 contract claims. Hsu, 9 Cal. 4th 863, 876 ; Brosio v. Deutsche 21 Bank Nat. Trust Co. (In re Brosio), 505 B.R. 903, 910 (9th Cir. 22 BAP 2014). 23 In light of our reversal of the bankruptcy court’s 24 liquidated damages award, and our remand to permit trial on — 25 — — 10 — 26 In light of our prior reversal of the $50,000 damages award, our remand for trial on proximate cause and damages is not 27 meant to reopen the record with respect to the $50,000 Clark paid in exchange for Arciniega’s transfer of title to the Arrowhead 28 property. — 27 — 1 proximate cause and damages, we must VACATE the current 2 attorneys’ fees award. If, on remand, the bankruptcy court 3 ultimately awards some actual damages to Clark, then the 4 bankruptcy court may determine whether Clark or Arciniega is the 5 prevailing party within the meaning of Cal. Civ. Code § 1717 . 6 See generally In re Tobacco Cases I, 216 Cal. App. 4th 570, 577, 7 (2013), as modified (May 8, 2013) (explaining how determination 8 is to be made). If Clark is the prevailing party, then the 9 bankruptcy court may reinstate or amend its last fee award. 10 CONCLUSION 11 For the reasons set forth above, we REVERSE IN PART AND 12 VACATE IN PART. Also, this matter is REMANDED for further 13 proceedings consistent with this decision. — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — — 28 —