Opinion
Case No. 11-37711-B-7 Adversary No. 16-2146 DC Nos. HSM-2
09-26-2017
In re: DELANO RETAIL PARTNERS, LLC, Debtor. SUSAN K. SMITH, Chapter 7 Trustee, Plaintiff, v. C&S WHOLESALE GROCERS, INC., a Vermont Corporation, Defendant. C&S WHOLESALE GROCERS, INC., a Vermont Corporation, Counterclaimant, v. SUSAN K. SMITH, Chapter 7 Trustee, Counterdefendant.
ORDER GRANTING PLAINTIFF'S MOTION TO AMEND MEMORANDUM DECISION
Introduction
Before the court is a Motion to Amend Memorandum Decision Granting Trustee's Motion for Summary Judgment and Denying C&S's Motion for Summary Judgment. The motion was filed on August 25, 2017, by plaintiff Susan K. Smith in her capacity as the chapter 7 trustee in In re Delano Retail Partners, LLC, No. 11-37711. Defendant C&S Wholesale Group, Inc., filed a non-opposition to the plaintiff's motion to amend on September 21, 2017.
Plaintiff asks the court to amend the Memorandum Decision Granting Trustee's Motion for Summary Judgment and Denying C&S's Motion for Summary Judgment ("Memorandum Decision") filed on August 14, 2017, and entered on August 15, 2017. See Dkts. 90, 91. Plaintiff moves pursuant to Federal Rule of Civil Procedure 59 (applicable by Federal Rule of Bankruptcy Procedure 9023). Filed within fourteen days of the date on which the Memorandum Decision was entered, plaintiff's motion is timely. See Fed. R. Bankr. P. 9023.
Plaintiff moves for a $10,000.00 increase in the amount of "Settlement Funds" (as defined in the Memorandum Decision) the estate is entitled to receive under the parties' May 2013 stipulation (as also defined in the Memorandum Decision) and which the defendant was ordered to turn over to the estate. Specifically, plaintiff maintains the amount stated in the Memorandum Decision is $429,505.00 whereas that amount should be $439,505.00.
Plaintiff also moves for a non-substantive amendment regarding the date on which the parties' cross-motions for summary judgment were heard. Whereas the Memorandum Decision references the hearing date as June 9, 2017, plaintiff correctly notes it should be June 6, 2017.
Background
The Memorandum Decision states that the amount of Settlement Funds due plaintiff under the parties' May 2013 stipulation is $429,505.00. Plaintiff contends that the actual amount is $439,505.00, and the $10,000.00 difference does not take into account $40,000.00 received under what the Memorandum Decision defines as the "Neri" settlement agreement. Plaintiff noted the $10,000.00 difference in the Settlement Funds amount in footnote 3 of dkt. 57 and footnote 2 of dkt. 64. Plaintiff also correctly notes that the court considered both the Neri settlement agreement and the "Delano/2040 FF" settlement agreement (defined in the Memorandum Decision) in reference to the $429,505.00 amount stated in the Memorandum Decision.
The court used the $429,505.00 figure in the Memorandum Decision as the amount of the Settlement Funds because that is what plaintiff and defendant stipulated to. For purposes of their respective cross-motions for summary judgment, the parties filed a Stipulation Regarding Material Facts. See Dkt. 38, Ex. A (plaintiff's exhibit); Dkt. 45, Ex. A (defendant's exhibit). In that stipulation, the parties "stipulate[d] to the truth of the following facts . . . as evidence in support of or opposition to any motion for summary judgment." Dkt. 38, Ex. A, at 2:3-6; Dkt. 45, Ex. A, at 2:3-6. One of the "following facts" that the parties stipulated to is found in ¶ 38 which states as follows: "Based upon the terms of the Delano/2040 FF Settlement Agreement and the Neri Settlement Agreement, the total amount the Trustee is entitled to receive pursuant to the terms of the [May 2013] Stipulation is $429 ,505. " Id. at 6:22-24 (emphasis added).
Discussion
Stipulations are binding on the parties. See Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988); Gallagher v. Holt, 2012 WL 3205175, *16 (E.D. Cal. 2012) ("Under federal law, stipulations . . . are generally binding on the parties and the Court."). And in the Ninth Circuit, "[s]tipulations are treated as judicial admissions." Matter of Christian & Porter Aluminum Co., 584 F.2d 326, 334 (9th Cir. 1978); accord Frank v. Wilbur-Ellis Co. Salaried Employees LTD Plan, 2008 WL 4370095, *5 (E.D. Cal. 2008) ("Judicial admissions are formal concessions in . . . stipulations by a party or its counsel[.]"); In re Applin, 108 B.R. 253, 258 (Bankr. E.D. Cal. 1989) ("Judicial admissions commonly arise by way of stipulations[.]").
Here, the parties stipulated for purposes of their respective summary judgment motions that the amount at issue as the Settlement funds was $429,505.00. As a judicial admission, the court could treat that stipulated amount as the conclusively established amount of the Settlement Funds. In re Rolland, 317 B.R. 402, 421-22 (Bankr. C.D. Cal. 2004) (citations omitted). That said, there is authority that a court has discretion to accept or reject a judicial admission. Applin, 108 B.R. at 258. And since defendant has filed a non-opposition to the motion and the proposed amendment to the amount of the Settlement Funds owed, the court will exercise its discretion to reject the $429,505.00 figure as a judicial admission. The court construes plaintiff's motion to amend and defendant's non-opposition to the motion as a mutual amendment to the parties' summary judgment stipulation and the amount of the Settlement Funds at issue stated therein.
Conclusion
Therefore, for the foregoing reasons,
IT IS ORDERED that plaintiff's motion to amend the Memorandum Decision is GRANTED.
IT IS FURTHER ORDERED that references to "$429,505.00" at pages 2:20, 5:15, 7:19, 15:7, 15:19, 34:22, 34:27, and 35:13 of the Memorandum Decision are deleted and are replaced with "$439,505.00".
IT IS FURTHER ORDERED that references to "June 9, 2017," at pages 3:26 and 12:27 of the Memorandum Decision are deleted and replaced with "June 6, 2017".
Dated: September 26, 2017.
/s/_________
UNITED STATES BANKRUPTCY JUDGE
INSTRUCTIONS TO CLERK OF COURT
SERVICE LIST
The Clerk of Court is instructed to send the attached document, via the BNC, to the following parties: Howard S. Nevins
2150 River Plaza Dr #450
Sacramento CA 95833-3883 Michael J. Stortz
50 Fremont St 20th Fl
San Francisco CA 94105 Paul J. Pascuzzi
400 Capitol Mall #1750
Sacramento CA 95814