CARMACK v. REYNOLDS (FREALY)

United States Court of Appeals Ninth Circuit’s Request to Answer Question of State Law

Cal.March 11, 2015

be5& Eii& f9204985 FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Topp A. FREALY,Attomey, Chapter 7 Trustee of Estate of Rick Reynolds, Appellant, Vv. RICK H. REYNOLDS; JOHN M. CARMACK, Co-Trusteeofthe Reynolds Family Trust and Co- Trustee of The Reynolds Family Trust - Survivor’s Trust, as amended; JOHN MorRIs, Co- Trustee of the Reynolds Family Trust and Co-Trustee of The Reynolds Family Trust- Survivor’s Trust, as amended, Appellees. No. 12-60068 BAP No. 11-1433 ORDER CERTIFYING A QUESTION TO THE CALIFORNIA SUPREME COURT SUPREME COURT FILED MAR 11 2015 Frank A. McGuire Clerk Deputy Filed March 9, 2015 Before: Alex Kozinski and Susan P. Graber , Circuit Judges, and Charles R. Breyer, Senior Distr ict Judge.” Per Curiam Order * The Honorable Charles R. Breyer, Senior Dis trict Judge for the U.S. District Court for the Northern District of California, sitting by designation. 2 FREALY V. REYNOLDS SUMMARY™ Bankruptcy The panelcertified to the California Supreme Court the following question: Does section 15306.5 of the California Probate Code impose an absolute cap of 25 percent on a bankruptcy estate’s access to a beneficiary’s interest in a spendthrift trust that consists entirely of payments from principal, or maythe bankruptcy estate reach more than 25 percent underother sections ofthe Probate Code? COUNSEL Jesse S. Finlayson (argued), Finlayson Toffer Roosevelt & Lilly LLP,Irvine, California, for Appellant. David W. Meadows (argued), Law Offices of David W. Meadows,Los Angeles, California, for Appellees. “ This summary constitutes no part of the opinion ofthe court. It has been prepared by court staff for the convenience ofthe reader. FREALY V. REYNOLDS 3 ORDER PER CURIAM: This appeal requires us to determine the extent to which a bankruptcy estate may reach a beneficiary’s interest in a spendthrift trust under the California Probate Code. The beneficiary claims that California Probate Code section 15306.5 caps the bankruptcy estate’s access at 25 percent of his trust interest, which consists entirely of payments from principal. The bankruptcytrustee, on the other hand,seeks to reach morethan 25 percent ofthe beneficiary’s interest under Probate Codesections 15301(b) and 15307, which it reads as not subjectto the section 15306.5 cap. Wefind no controlling precedent in the decisions of the California Supreme Court or Courts of Appeal. See Cal. R. Ct. 8.548(a)(2) (permitting certification where there is “no controlling precedent” from the state court); Sullivan v. Oracle Corp., 557 F.3d 979, 983 (9th Cir. 2009) (order) (looking to decisions ofCalifornia appellate courts). Nor has our court considered the interplay between section 15306.5 and other Probate Code sections governing creditors’ access to spendthrift trusts. We held in Neuton v. Danning (In re Neuton), 922 F.2d 1379, 1383 (9th Cir. 1990), that section 15306.5 allows a bankruptcy estate to reach 25 percent of a spendthrift trust. But, unlike in the present case, the beneficiary in Neuton had arguedthat ail ofhis interest in the spendthrift trust was protected from the bankruptcyestate, while the bankruptcy estate claimed only 25 percent under section 15306.5. Jd. We therefore had no occasion to examine whether a bankruptcy estate could access more than 25 percent under other Probate Code sections. 4 FREALY V. REYNOLDS A substantial sum of money hangsin the balance, as the beneficiary stands to lose—and the bankruptcy estate stands to gain—the entirety ofhis trust interest. Their fate, and the fates of future beneficiaries and their creditors, hinges on the interpretation of opaque sections of the Probate Code. Because the resolution of this appeal could transform the terrain ofCalifornia trust law, we respectfully requestthat the California Supreme Court exerciseits discretion to accept and decidethe certified question below. I. Question Certified Pursuant to Rule 8.548 of the California Rules of Court, we request that the California Supreme Court answer the following question: Does section. 15306.5 of the California Probate Code impose an absolute cap of 25 percent on a bankruptcy estate’s access to a beneficiary’s interest in a spendthrift trust that consists entirely of payments from principal, or may the bankruptcy estate reach more than 25 percent underothersections ofthe Probate Code? Weunderstand that the Court may reformulate our question, and we agree to accept and follow the Court’s decision. Ii. Background A. Applicable California Statutes The California Probate Code recognizes the validity of spendthrift provisionsthat restrict transfer of a beneficiary’s p e e FREALY V. REYNOLDS 5 interest in incomeandprincipal, so long as that interest hasn’t yet been paid to the beneficiary. See Cal. Prob. Code §§ 15300, 15301(a). Section 15301(a) permits the restraint against transfer of trust principal, subject to certain exceptionsset forth in sections 15301(b) and 15304—07: Except as provided in subdivision (b) and in Sections 15304 to 15307, inclusive,ifthe trust instrument provides that a beneficiary’s interest in principalis not subject to voluntary or involuntary transfer, the beneficiary’s interest in principal may not be transferred andis not subject to enforcement of a money judgmentuntil paid to the beneficiary. Cal. Prob. Code § 15301(a). One of these exceptions, section 15306.5(a), allows general creditorsto satisfy moneyjudgments out ofpayments to which the beneficiary is entitled. The section provides: Notwithstandinga restraint on transferof the beneficiary’s interest in the trust under Section 15300 or 15301, and subject to the limitations of this section, upon a judgment creditor’s petition under Section 709.010 of the Code of Civil Procedure, the court may make an order directing the trustee to satisfy all or part ofthejudgmentout ofthe payments to which the beneficiary is entitled under the trust instrument or that the trustee, in the exercise of the trustee’s discretion, has determined or determines in the future to pay to the beneficiary. 6 FREALY V. REYNOLDS Cal. Prob. Code § 15306.5(a). Creditors, upon petition to the court, may thus reach payments to which the beneficiary is entitled subject to “the limitations of this section.” Jd. Oneof the limitations states as follows: An order under this section may not require that the trustee pay in satisfaction of the judgment an amount exceeding 25 percent of the paymentthat otherwise would be madeto, or for the benefit of, the beneficiary. Cal. Prob. Code § 15306.5(b). Along the samelines, section 15306.5(f) specifies that “the aggregate of all orders for satisfaction of money judgments against the beneficiary’s interest in the trust may not exceed 25 percentofthe payment that otherwise would be made to, or for the benefit of, the beneficiary.” Cal. Prob. Code § 15306.5(). Section 15306.5(c) furtherrestricts creditors’ access, stating that “[a]n order underthis section may not require that the trustee pay in satisfaction of the judgment any amount that the court determinesis necessary for the support of the beneficiary and all the persons the beneficiary is required to support.” Cal. Prob. Code § 15306.5(c). Section 15301(b) contains another exception to the general rule against transfer of a spendthrift trust beneficiary’s interest in principal: After an amountofprincipal has become due and payable to the beneficiary under the trust instrument, upon petition to the court under Section 709.010 of the Code of Civil Procedure by a judgmentcreditor, the court FREALY V. REYNOLDS 7 may make an order directing the trustee to satisfy the money judgment out of that principal amount. Cal. Prob. Code § 15301(b). Andsection 15307, titled “Income in excess of amount for education and support; application to creditors’ claim,” states: Notwithstanding a restraint on transfer of a beneficiary’s interest in the trust under Section 15300 or 15301, any amountto which the beneficiary is entitled under the trust instrumentor that thetrustee, in the exercise ofthe trustee’s discretion, has determined to pay to the beneficiary in excess ofthe amount that is or will be necessary for the education and support ofthe beneficiary may be applied to the satisfaction of a money judgment against the beneficiary. Upon the judgment creditor’s petition under Section 709.010 of the Code of Civil Procedure, the court may makean order directing the trustee to satisfy all or part of the judgment out of the beneficiary’s interest in the trust. Cal. Prob. Code § 15307. Unlike sections 15306.5, 15301(b) and 15307, which apply to generalcreditors, the remaining exceptionspertain to either preferred creditors or the unique situation in which the settlor of the trust is also a beneficiary. See Cal. Prob. Code § 15304 (invalidating the restraint against transfer 8 FREALY V. REYNOLDS wherethe beneficiary is also the settlor); id. § 15305 (court mayorderthe trust to satisfy a money judgment for support ofthe beneficiary’s spouse, former spouse or minorchild);id. § 15305.5 (same, where there is a judgment against the beneficiary awardingrestitution for the commission of a felony); id. § 15306 (same, wherethe beneficiary is liable for reimbursementto the state of California for public support furnished to him or his spouse or minorchild). B. Facts Of Our Case Appellee Rick Reynoldsis a beneficiary of the Reynolds Family Trust, which contains the following spendthrift provision: “Nointerest in the incomeor principalofanytrust created under this instrument shall be voluntarily or involuntarily anticipated, assigned, encumbered,or subjected to [a] creditor’s claim or legal process before actual receipt by the beneficiary.” The trust is composed of three sub- trusts—the Bypass Trust, the Marital Trust and the Survivor’s Trust. Thirty daysafter his father’s death in 2009, Reynolds becameentitled to $250,000 from the Bypass Trust, $100,000 a year for ten years from the Survivor’s Trust and one-third of the residue of the Survivor’s Trust thereafter. All, or substantially all, ofthese distributions will be made from trust principal, as the trust assets are not expected to generate income. The dayafter his father died, Reynoldsfiled a voluntary Chapter 7 bankruptcypetition. Thetrusttrustee subsequently filed an adversary proceeding asking the bankruptcycourt to determine what interest, if any, the bankruptcy estate has. Reynolds filed a motion for partial summary judgment, arguing that section 15306.5 limits the bankruptcy estate to 25 percent of his interest in the spendthrift trust. The FREALY V. REYNOLDS 9 bankruptcy trustee counteredthattheestateis entitled to more than 25 percent because section 15301(b) gives creditors unrestricted access to distributions of principal “due and payable,” and all of Reynolds’s distributions from the trust were expected to be madefrom principal. Alternatively, the bankruptcy trustee argued that section 15307 allows the bankruptcy estate to reach any amount of Reynolds’s trust interest not deemednecessary for his education and support. The bankruptcy trustee viewed sections 15306.5, 15301(b) and 15307 as independent routes that a creditor could use in gaining access to a beneficiary’s trust interest. The bankruptcycourt ruled in favor ofReynolds and held that section 15306.5 establishes an “absolute maximum cap on whatis recoverable by ajudgmentcreditor at 25 percent.” Although it acknowledged that “[t]here may be an exception to [the 25 percent cap] under 15301(b),” the court “cho[]se notto follow thatinterpretation.” The bankruptcy court also rejected the argumentthatits reading rendered section 15307 superfluous, explainingthat, under section 15307, “[a creditor doesn’t] even necessarily get all of [the 25 percent] if [the trust trustee] can show that [that amount] is necessary for — support.” A divided Ninth Circuit Bankruptcy Appellate Panel affirmed the bankruptcy court, though the majority took a different approach. The BAP read section 15301(b) as merely setting forth the procedurethat a creditor must follow to satisfy a claim from the principal of'a spendthrift trust once such principal is payable but not yet distributed to the beneficiary. It refused to read section 15301(b) as allowing a creditor to reach the entirety of principal due and payable, reasoning that doing so would “effectively eviscerate[] the spendthrift protection recognized by 15301(a).” It also 10 FREALY V. REYNOLDS pointed to the exceptions contained in sections 1 5304—07as reflecting a “policy recognition that certain credi tors should have greater rights to a beneficiary’s interest in order to satisfy their claims,” and noted that it would run c ounter to this policy to read section 15301(b) as allowing a ny creditor to similarly satisfy claims from trust principal. In considering section 15307, the BAPreasone dthat, if sections 15307 and 15306.5 were separate av enues for collection, “15306.5 would make nosense: Why would a judgment creditor ever choose to satisfy its cl aim under 15306.5, which is limited not just by the 25% c ap on the beneficiary’s interest but by the needs of the deb tor andhis or her dependents, when 15307is only limited by th e debtor’s own educational and support needs?” The BAP concluded that section 15307 doesn’t apply to this case becau se the more plausible reading, and the one most aligned with the legislative intent, is that it only limits a creditor’s access to income, and notprincipal. The dissent, by contrast, “d[id] not believe th e California legislature intended that a debtor, without exc eption, should have accessto potentially large distributions of ca sh from a trust not neededfor his support or education in pr eference to the legitimate claimsof his creditors.” It viewe d sections 15301(b) and 15307 as playing a “critical role i n protecting creditors’ rights” by allowing “creditors, in som e cases,to reach some, or perhaps even all, ... distributi ons” for which beneficiaries have “no legitimate need.” Ill, Explanation of Certification The bankruptcy judge in this case was cor rect in observingthat“[t]he Probate Code ofthe state o f California FREALY V. REYNOLDS 11 is anything otherthan crystal clear.” It’s no surprise that both the bankruptcy court and the BAP struggled to makesense of the statutory scheme, with little to rely on but their own conceptions of the proper balance between the rights of a spendthrift trust beneficiary and thoseofhis creditors. As reflected in the assorted theories advanced by the debtor, the bankruptcytrustee, the bankruptcy court and the BAP majority and dissent, there is no obvious way to harmonize section 15306.5 with sections 15301(b) and 15307. Below,weidentify aspects ofthese sections that have proved challenging for us to decipher, and for which we seek authoritative guidance. 1. Recall that section 15301(a) permits the restraint against transfer of trust principal, subject to exceptions “provided in subdivision(b) andin Sections 15304 to 15307.” Cal. Prob. Code § 15301(b). Section 15306.5 is one ofthese exceptions, but it’s not clear from its text whether the 25 percent cap on a creditor’s access to “payment[s] that otherwise would be made to, or for the benefit of, the beneficiary”also applies to orders under other sectionsofthe Probate Code. Cal. Prob. Code § 15306.5(b). Section 15306.5(b) suggests, for example, that the 25 percentcapis limited to orders issued undersection 15306.5, as it states that “[a]n order under this section may not require that the trustee payin satisfaction of the judgment an amount exceeding 25 percentofthe paymentthat otherwise would be madeto, or for the benefit of, the beneficiary.” Cal. Prob. Code § 15306.5(b) (emphasis added). But the “under this section” phrasing is missing from subsection (f), which provides that “the aggregate of all orders for satisfaction of money judgments against the beneficiary’s interest in the "12 FREALY V. REYNOLDS trust may not exceed 25 percent ofthe paymentthat otherwise would be madeto,or for the benefit of, the beneficiary.” Cal. Prob. Code § 15306.5(f). Nor do the Law Revision Commission’s comments elaborate when explaining that “Tsjubdivision (f) limits the aggregate amount of the beneficiary’s interest in one trust that is subject to enforcement where several creditors have obtained orders.” Cal. Prob. Code § 15306.5 Law Revision Commission comments. 2. A broader ambiguity exists withrespect to section 15301(b). Its plain wording does not specify a limit on the amountof principal “due and payable” that a creditor may reach. It simply states that, “[a]fter an amount ofprincipal has become due and payable to the beneficiary . . . , the court may make an orderdirectingthetrustee to satisfy the money judgment out of that principal amount.” Cal. Prob. Code § 15301(b) (emphasis added). Reading section 15301(b) literally, without any limitations on creditors’ access, raises a hostof difficult questions. At the outset, section 15301(b) specifies that creditors may accessthose principal amounts held within the trust only after they become“due and payable”to the beneficiary. Cal. Prob. Code § 15301(b). But nowhere in the Probate Codeis there a definition of “due and payable.” One interpretation of“due and payable”is that it encompassesall disbursements of principal owedto the beneficiary, regardless of the timing of disbursement. Section 15301(b) would therefore give ’ creditors immediate access to all of a beneficiary’s trust principal. Another theory is that an amount becomes “due and payable” at the time the beneficiary is owed a disbursement—that is, when the only remainingstepis for the trust to write a check or otherwise effect the transfer of funds j o a | FREALY V. REYNOLDS 13 to the beneficiary. So construed, in Reynolds’s case, where he is entitled to annual paymentsofprincipal continuing over the next decade, a creditor would be unable to use section 15301(b)to reach thetotality ofhis trust interest at one time; instead, the creditor would have to wait until certain amounts were ready for disbursementto petition the court for access. Under any definition of “due and payable,” a literal reading of section 15301(b) could give a judgmentcreditor accessto all trust principal, notwithstanding the limitations set forth in section 15306.5 or section 15307. And perhaps that makes sense—afterall, it is, in essence, what already happens: a spendthrift provision protects the beneficiary’s incomeandprincipal interests only so “long as the income or principal is properly held”in the trust. Chatard v. Oveross, 101 Cal. Rptr. 3d 883, 889 (Ct. App. 2009). After the amount is paid to the beneficiary, creditors may reach it. Kelly v. Kelly, 79 P.2d 1059, 1063 (Cal. 1938); see also Cal. Prob. Code §§ 15300, 15301 (a). That reading, when viewed in light of the absence of a similar provision in section 15300, also renders the Probate Code’s treatmentofprincipal different from that of income: distributions of income are protected by the spendthrift provision until they reach the beneficiary, while distributions of principal become fair game as soon as they are “due and payable.” And that distinction also may make sense— distributions of principal, for example, are morelikely to be associated with the winding-down of a trust, as the beneficiary transitions to self-sufficiency. Distributions of income, by contrast, are intended to keep the beneficiary going from year to year and therefore may be designed to ensure that the beneficiary’s most immediate needs are met. 14 FREALY V. REYNOLDS When considered in context, however, reading section 15301(b) as an independent meansofaccessing all principal as it becomes due and payable creates some puzzling consequences. For example, what purpose would section 15306.5 serve? On one hand, section 15306.5 usesthe all- encompassing word “payments,” so it could also be read as applying to principal due and payable. See Cal. Prob. Code § 15306.5(a), (b), (f). Why, then, would the California legislature craft a 25 percent cap and emphasizethatit applies in the aggregate, if creditors could bypass this protection by using section 15301(b) to accessthe entirety ofprincipal due and payable? It’s also unclear, under that reading, why the legislature would specify that creditors may not access amounts “necessary for the support of the beneficiary andall the persons the beneficiary is required to support,” see Cal. Prob. Code § 15306.5(c), if creditors could turn to section 15301(b) to potentially drain the entirety of a beneficiary’s trust interest, when that interest consists of principal due and payable. On the other hand, section 15306.5 refers to all payments, current andfuture, ofprincipal and income. Thus, perhaps section 15306.5 exists not as a cap on payments of principal otherwise accessible through section 15301(b), but instead as a limit on a creditor’s ability to obtain a standing, general percentage share ofthe beneficiary’s trust payments, current and future. Similarly, ifsection 15301(b) permits generalcreditors to access all principal due and payable, what becomesof the exceptions in sections 15304—07 giving access to preferred creditors? Could the bankruptcy trustee or any unsecured creditor deplete the entirety of the trust interest when it consists of principal due and payable, leaving none for the preferred creditors contemplated in sections 15305, 15305.5 and 15306? Section 15301(b) states that “fa/fter an amount FREALY V. REYNOLDS 15 of principal has becomedueand payable . . . , upon petition to the court... , the court may makean orderdirecting the trustee to satisfy the money judgment out of that principal amount.” Cal. Prob. Code § 15301(b) (emphasis added). By contrast, sections 15305, 15305.5 and 15306 don’t contain any language requiring preferred creditors to wait until a certain time to petition the court for an order. Thus, if the sequence in which a court order is issued determines the timing of payments—an assumption lacking clear support from the Probate Code—preferred creditors may retain priority over a section 15301(b) creditor in accessing principal due and payable. 3. The final ambiguity arises under section 15307, which can beread as applying either to both incomeandprincipal, or only to income.Its title, “Income in excess of amountfor education and support; application to creditors’ claim,” suggests the latter. The legislative history also supports this interpretation. See, eg., Cal. Prob. Code § 15307 Law Revision Commission comments (explaining that “[s]ection 15307 permits an ordinary creditor to reach income under limited circumstances”and furtherdiscussing “the creditor’s attempt to reach the excess income underthis section’). In addition, California Civil Code section 859, which was repealed and replaced by California Probate Code section 15307, exclusively governed income. See United Cal. Bank v. Lawrence (In re Estate ofLawrence), 72 Cal. Rptr. 851, 854-55 (Ct. App. 1968). However,thetext of section 15307 does not mention incomeandinsteadrefers generally to “any amountto which the beneficiary is entitled.” Cal. Prob. Code § 15307. Also, the first sentence begins, “Notwithstanding a restraint on transfer of a beneficiary’s interest in the trust under Section 15300 [governing income] or 15301 16 FREALY V. REYNOLDS [governing principal],” which supports applying section 15307 to both incomeandprincipal. Jd. If section 15307 pertains only to income, then it has no application in this case. But if it extends to principal, many ofthe same questionsraised abovearise. Section 15307,like section 15301(b), does not explicitly refer to section 15306.5 or any of the other exceptions listed in section 15301(a), and it could be read literally to give a creditor access to the entirety of a beneficiary’s trust interest so long as noneofit is deemed necessary for his education and support. What purpose, then, would sections 15301(b) and 15306.5 serve? Section 15307 would be duplicative of a creditor’s right to petition for distributionsofprincipal undersection 15301(b). And, depending on the meaningof section 15306.5 (which remains unclear), section 15307 could directly conflict with—-and create an end-run around—the 25 percent cap set forth in section 15306.5. Is the Probate Code meant to function as a menu from which creditors may select the sections they wantto invokein order to reach the maximum amountofa beneficiary’s interest in a spendthrift trust? And, if so, what would remain of the protections afforded to the beneficiary? The answers to these questions have significant ramifications, not just for the immediate parties, but for the administration of all spendthrift trusts in California. Asit currently stands, the Probate Code is subject to two vastly different readings: one giving creditors unfettered access to a beneficiary’s interest in the trust, and anotherrestricting creditors’ access to 25 percent. Weare reluctant to decide which reading prevails without the authoritative guidance of the California Supreme Court. Wetherefore ask the Court to e e e e e FREALY V. REYNOLDS 17 exercise its discretion and decide the appropriate degree to which creditors may access spendthrift trusts. IV. Administrative Information The namesand addresses of counsel for the parties are as follows: Counselfor Appellant Todd A. Frealy: Jesse Sequoia Finlayson MatthewE.Lilly Finlayson Toffer Roosevelt & Lilly LLP 15615 Alton Parkway Irvine, CA 92618 Counsel for Appellees Rick H. Reynolds, John M. Carmack and John Morris: David Meadows, Attorney Law Offices of David W. Meadows 1801 Century Park East Los Angeles, CA 90067 Joseph A. Eisenberg Thomas M. Geher ~ Jeffer Mangels Butler & Marmaro LLP 1900 Avenueofthe Stars Los Angeles, CA 90067 Frealy should be deemed the petitioner if the California Supreme Court accepts this request. Cal. R. Ct. 8.548(b)(1). 18 . FREALY V. REYNOLDS The Clerk ofthis court shall submit copies ofall relevant briefs and an original and ten copies of this Order to the California Supreme Court with a certificate of service on the parties. See Cal. R. Ct. 8.548(c), (d). All further proceedings before us are stayed pending receipt of the California Supreme Court’s decision. The parties shall notify the Clerk of this court within one week after the California Supreme Court accepts or declines this request, and again within one weekafter it rendersits decision. IT IS SO ORDERED. w e