Filed 2/17/17 Siu v.

Martinez CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

ANDY SIU,
Plaintiff and Respondent,
A145139
v.
OSCAR MARTINEZ et al., (City and County of San Francisco)
Super. Ct. No. CGC-02-405942
Defendants and Appellants.

Plaintiff Andy Siu obtained a judgment against defendant M&M Construction

(M&M) at a time when defendant Oscar Martinez, a general partner of M&M, was a
debtor in bankruptcy. After Martinez emerged from bankruptcy, Siu filed a motion for
summary judgment, arguing that Martinez should be joined as a party to the judgment
because he was jointly liable as a general partner of M&M. The trial court granted the
motion and entered judgment against Martinez. We affirm.
BACKGROUND
In November 2003, Siu obtained a judgment against M&M, a partnership of which
Martinez was a general partner.1 At the time the judgment was entered, Martinez was a

1
Our discussion of the background of this action is based largely on facts admitted by
Martinez in his response to a separate statement of undisputed facts and evidence
submitted by Martinez in opposition to Siu’s motion for summary judgment. Siu
submitted a substantial quantity of evidence in support of his motion, but Martinez chose
not to include this evidence in the appellate record. Although we arguably could affirm
the judgment on the basis of Martinez’s failure to provide an adequate appellate record
(Jade Fashion & Co., Inc. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th 635, 643–

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debtor in bankruptcy. Although the “automatic stay” provision of the Bankruptcy Code,
11 U.S.C. § 362, had been asserted to suspend litigation against Martinez for the duration
of his bankruptcy proceedings, the action against M&M was allowed to proceed. (See
Siu v. M&M Construction (April 26, 2007, No. A114000) [nonpub. opn.], at p. 4 (Siu I).)
In 2005, M&M moved to set aside the judgment. While the trial court declined to
set aside the judgment entirely, it did reduce the principal amount of the judgment. In Siu
I, issued in April 2007, this court affirmed that decision, but we remanded for a
recalculation of the amount of prejudgment interest and the entry of a modified judgment.
(Siu I, supra, No. A114000 at p. 90.) As we explained, recalculation was required
because the trial court did not reduce the amount of prejudgment interest when it reduced
the principal amount of the judgment. The interest award was therefore based on the
original damages award of $55,531, rather than the reduced award of $50,000. (Siu I,
supra, A114000 at p. 7.) Remittitur issued in July 2007, but the modified judgment was
not entered.
In 2014, Siu moved for summary judgment, contending that Martinez, as a general
partner of M&M, was liable for the M&M judgment. According to Siu’s motion,
Martinez was denied discharge of his debt under the M&M judgment by the bankruptcy
court in late 2013 “because the Bankruptcy Court found that defendant Martinez had
intentionally concealed the transfers of assets to his family members with the actual
intent to hinder and delay creditors.” Martinez does not dispute that this claim was not
discharged in the bankruptcy proceedings.
The trial court granted Siu’s motion in an order entered in January 2015, but the
order questioned whether the existing judgment was correct in amount, in light of Siu’s
failure to obtain a modified judgment after issuance of Siu I. Siu thereafter filed a request

644), we refrain from doing so because his arguments on appeal are not dependent upon
Siu’s evidence. In setting out the background for the appeal, however, we assume that
the facts stated in Siu’s memorandum of law in support of his summary judgment motion
were supported by the omitted evidence. Further, we grant Siu’s motion to augment the
appellate record, which seeks to add specific exhibits from the summary judgment record.

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with the trial court for entry of a modified judgment consistent with Siu I, and in
February 2015 that judgment was entered against M&M and Martinez.
DISCUSSION
Martinez and M&M (appellants) contend that the trial court erred in entering the
modified judgment because (1) entry of judgment against Martinez was barred by Code
of Civil Procedure section 583.320, subdivision (a)(3), which requires a new trial
following an appeal to occur within three years of remittitur, (2) the judgment against
M&M was “non-existent,” and (3) the judgment against M&M is void because it was
rendered during Martinez’s bankruptcy proceedings, in violation of the automatic stay
provisions of the Bankruptcy Code.
Code of Civil Procedure section 583.320 governs the time within which a matter
must be brought to trial “[i]f a new trial is granted.” (Id., subd. (a).) Under subdivision
(a)(3), “[i]f on appeal an order granting a new trial is affirmed or a judgment is reversed
and the action remanded for a new trial,” the new trial must occur within three years after
remittitur. Under Code of Civil Procedure section 583.360, an action not brought to trial
in a timely manner must be dismissed. (Id., subd. (a).) Appellants argue that Siu’s
failure to obtain entry of a modified judgment within three years after remittitur
following Siu I required dismissal of this action under sections 583.320 and 583.360.
The argument fails because the prerequisites for the application of section 583.320
are not present. Subdivision (a)(3) applies if the appellate court’s decision either (1)
affirmed a trial court order granting a new trial or (2) reversed a judgment and remanded
for a new trial. Siu I did neither of these. The trial court had not granted a new trial, and
our decision did not reverse a judgment. On the contrary, we affirmed the judgment,
despite requiring its modification. There is no basis for applying section 583.320.
Appellants argue that Siu I’s direction to recalculate prejudgment interest required
a “new trial” with respect to the amount of interest. The argument disregards the
additional statutory requirement that the judgment be reversed, as noted above. Yet even
putting that element aside, we find no merit in appellants’ argument because the
recalculation of prejudgment interest did not require a new trial. For purposes of section

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583.320, “ ‘ “[a] trial is generally considered an adversary proceeding for the
determination of a contested issue arising out of pleadings in which a fact or conclusion
of law is maintained by one party and controverted by the other.” ’ ” (Misic v. Segars
(1995) 37 Cal.App.4th 1149, 1152.) The recalculation under Siu I merely required
application of the legal prejudgment interest rate to an award of $50,000. This did not
require the resolution of contested issues of either fact or law because the rate of interest
is set by statute and the principal amount was established by the appeal. Appellants do
not demonstrate a dispute as to those or any other issue.
Appellants’ argument that the judgment against M&M was “non-existent” is
premised on the theory that the trial court’s failure to enter a modified judgment within
three years voided the judgment. Because we reject that argument for the reasons
discussed above, there is no merit to the claim that the judgment was non-existent.
Appellants finally contend that a judgment against a general partnership cannot be
used as a basis for imposing personal liability upon a general partner if, at the time of the
judgment, the general partner was in bankruptcy. Their argument is premised on the
automatic stay provision, which declares that the filing of a bankruptcy proceeding
“operates as a stay” of all actions “against the debtor” or against property of the debtor’s
estate. (11 U.S.C. § 362(a).) Because the action against M&M should have been subject
to the automatic stay, appellants contend, the judgment against M&M is void. (In re
Wardrobe (2009) 559 F.3d 932, 934 [“actions, including judicial proceedings, ‘taken in
violation of the automatic stay are void’ ”].)
We find no merit in the argument because the automatic stay applies only to
proceedings against the debtor. (Securities Investor Protection Corp. v. Bernard L.
Madoff Investment Securities LLC (Bankr. S.D.N.Y. 2013) 490 B.R. 59, 65 [“It is well
established that the automatic stay generally ‘ “protects only the debtor, property of the
debtor or property of the estate. It does not protect non-debtor parties or their
property” ’ ”].) Although Martinez was a partner of M&M, the action against M&M was
not covered by the automatic stay because M&M is a separate legal entity. (See, e.g., In
re Palumbo (Bankr. S.D.Fla. 1992) 154 B.R. 357, 358-359 [foreclosure against the assets

4
of a partnership did not constitute a violation of the automatic stay, even though the
debtor partner owned 97% of the partnership].)
Citing Chugach Timber Corp. v. Northern Stevedoring & Handling Corp. (9th Cir.
1994) 23 F.3d 241 (Chugach), appellants argue for invocation of the “ ‘unusual
circumstances’ ” rule, which permits an extension of the automatic stay to a non-debtor
entity when “there is such identity between the debtor and the third-party defendant that
the debtor may be said to be the real party defendant and that a judgment against the
third-party defendant will in effect be a judgment or finding against the debtor.” (Id. at
pp. 246-247.) As Chugach itself recognizes, however, the unusual circumstances
doctrine is not triggered merely because the debtor will be liable for the debts of a non-
debtor. (Id. at p. 246 [“ ‘section 362(a) does not stay actions against guarantors, sureties,
corporate affiliates, or other non-debtor parties liable on the debts of the debtor’ ”].)
Accordingly, to invoke the unusual circumstances rule, appellants were required to do
more than simply demonstrate that Martinez was a general partner of M&M. They were
required to submit evidence to the trial court demonstrating that Martinez and M&M
were so closely aligned “that a judgment against [M&M] will in effect be a judgment or
finding against [Martinez].” (Chugach, supra, 23 F.3d at pp. 246-247.) There is no such
evidence in the record. Other than the fact of Martinez’s general partnership, there is no
evidence in the record regarding the relationship between Martinez and M&M. As a
result, there is no factual basis for concluding that the unusual circumstances rule
required application of the automatic stay to the action against M&M.
DISPOSITION
The judgment of the trial court is affirmed. Siu may recover his costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(1), (2).)

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 _________________________
REARDON, ACTING P. J.

We concur:

_________________________
RIVERA, J.

_________________________
STREETER, J.