Vogt v Eberhardt (2018 NY Slip Op 05431)

Vogt v Eberhardt

2018 NY Slip Op 05431

Decided on July 25, 2018

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 25, 2018
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, TROUTMAN, AND WINSLOW, JJ.

827 CA 17-00065

[*1]RICHARD G. VOGT, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF LINDA VOGT, DECEASED, PLAINTIFF-APPELLANT,
vWILLIAM B. EBERHARDT, JR., AND JULIA A. BERGAN, DEFENDANTS-RESPONDENTS.

MICHAEL A. ROSENHOUSE, ROCHESTER, FOR PLAINTIFF-APPELLANT.
GOLDBERG SEGALLA LLP, ROCHESTER (RAUL E. MARTINEZ OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

	Appeal from an order of the Supreme Court, Monroe County (Renee Forgensi Minarik, A.J.), entered October 6, 2016. The order, inter alia, granted the motion of defendants to vacate a default judgment and vacated the default judgment.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff and Linda Vogt, now deceased, commenced this action seeking damages for injuries sustained by Vogt when she fell after she caught the heel of her shoe in the track of a sliding glass door at the Sherwood Inn (Inn) in September 2012. The Inn is owned and operated by defendant William B. Eberhardt, Jr., and defendant Julia A. Bergan is an employee of the Inn.
In August 2014, plaintiff and Vogt commenced an action (first action) against Dining Associates, Inc., doing business as Sherwood Inn (Dining Associates), alleging that Vogt's injuries resulted from the negligence of Dining Associates. Eberhardt, who is also the owner of Dining Associates, forwarded the summons and complaint to the insurance carrier for the Inn, Nationwide Insurance Company (Nationwide), and Nationwide assigned counsel to defend Dining Associates in the first action. In September 2015, after plaintiff and Vogt learned that the Inn was not owned by Dining Associates, they commenced the instant action against defendants. Defendants forwarded the summons and complaint to Nationwide, just as Eberhardt had done in the first action. Nationwide received the documents and did not deny coverage to defendants, but Nationwide failed to assign counsel to represent defendants. Defendants subsequently defaulted in the instant action, and Supreme Court granted the motion of plaintiff and Vogt for a default judgment on the issue of liability. Plaintiff now appeals from an order that granted defendants' motion to vacate the default judgment. We affirm.
"A party seeking to vacate an order or judgment on the ground of excusable default must offer a reasonable excuse for its default and a meritorious defense to the action" (Wells Fargo Bank, N.A. v Dysinger, 149 AD3d 1551, 1552 [4th Dept 2017]; see Calaci v Allied Interstate, Inc. [appeal No. 2], 108 AD3d 1127, 1128 [4th Dept 2013]). The determination whether the moving party's excuse is reasonable lies within the sound discretion of the court (see Abbott v Crown Mill Restoration Dev., LLC, 109 AD3d 1097, 1099 [4th Dept 2013]).
We reject plaintiff's contention that defendants failed to proffer a reasonable excuse for their default. Defendants submitted an affidavit of the claims specialist for Nationwide who was responsible for managing their defense, which established that the claims specialist had received copies of the summons and complaint in the instant action and determined that defendants were [*2]entitled to a defense and indemnification. Although she communicated that information to the law firm that was defending Dining Associates in the first action, the claims specialist inadvertently neglected to assign counsel to represent defendants in the instant action. We conclude that Nationwide's inadvertent failure to assign counsel to defendants is a reasonable excuse for their default (see Cary v Cimino, 128 AD3d 1460, 1461 [4th Dept 2015]; Accetta v Simmons, 108 AD3d 1096, 1097 [4th Dept 2013]; Hayes v Maher & Son, 303 AD2d 1018, 1018 [4th Dept 2003]). We note that defendants "evidenc[ed] a good faith intent to defend the proceeding on the merits" (Reilly v City of Rome, 114 AD3d 1255, 1256 [4th Dept 2014] [internal quotation marks omitted]), and plaintiff, who caused a lengthy delay in the first action by failing to comply with discovery demands, was not prejudiced by the delay in this action (see Accetta, 108 AD3d at 1097).
Contrary to plaintiff's further contention, we conclude that defendants proffered a meritorious defense to the action by submitting evidence establishing a prima facie case of trivial defect (see generally Wells Fargo Bank, N.A., 149 AD3d at 1552; Calaci, 108 AD3d at 1129). Defendants submitted evidence establishing that the track of the sliding glass door was approximately half an inch wide, and similar terrain differentials have been held to be trivial as a matter of law (see Leverton v Peters Groceries, 267 AD2d 1014, 1015 [4th Dept 1999]; see also Palladino v City of New York, 127 AD3d 708, 710 [2d Dept 2015]; Boynton v Haru Sake Bar, 107 AD3d 445, 445 [1st Dept 2013]).
Entered: July 25, 2018
Mark W. Bennett
Clerk of the Court


Filed 7/2/14 Those Interested Underwriters at Lloyd's etc. v. Transguard Ins. CA2/2
Attached are first modification order (6/23/14) and unmodified version of opinion (6/5/14)
                  NOT TO BE PUBLISHED IN THE 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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO

THOSE INTERESTED                                                     B240843
UNDERWRITERS AT LLOYD'S
LONDON SUBSCRIBING TO POLICY                                         (Los Angeles County
NO. WA901130E,                                                       Super. Ct. No. BC398976)

         Plaintiff and Respondent,                                   ORDER MODIFYING OPINION
                                                                     [NO CHANGE IN JUDGMENT]
         v.

TRANSGUARD INSURANCE
COMPANY OF AMERICA; LA
PACKING, CRATING AND
TRANSPORT,

         Defendants and Appellants.

THE COURT:*

         It is ordered that the opinion filed herein on June 5, 2014, be modified as follows:
         On page one, replace the counsel listing as follows:

*
         BOREN, P. J ., CHAVEZ, J., FERNS, J.†

†     Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
      Nemecek & Cole, Gregg S. Garfinkel and Susan S. Baker for Defendant and
Appellant, Transguard Insurance Company.
      Sheppard Mullin Richter & Hampton, LLP and Andre J. Cronthall for Defendant
and Appellant, LA Packing Crating and Transport.
      Smith & Hall, LLP and Eric B. Strongin for Plaintiff and Respondent.

      This modification does not change the judgment.
      Respondent’s additional request for a substitution of counsel listing is denied.
Filed 6/23/14 Those Interested Underwriters at Lloyd’s etc. v. Transguard Ins. CA2/2
                  NOT TO BE PUBLISHED IN THE 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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO

THOSE INTERESTED                                                     B240843
UNDERWRITERS AT LLOYD'S
LONDON SUBSCRIBING TO POLICY                                         (Los Angeles County
NO. WA901130E,                                                       Super. Ct. No. BC398976)

         Plaintiff and Respondent,                                   ORDER MODIFYING OPINION
                                                                     [NO CHANGE IN JUDGMENT]
         v.

TRANSGUARD INSURANCE
COMPANY OF AMERICA; LA
PACKING, CRATING AND
TRANSPORT,

         Defendants and Appellants.

THE COURT:*

         It is ordered that the opinion filed herein on June 5, 2014, be modified as follows:
         On page one, replace the counsel listing as follows:

*
         BOREN, P. J ., CHAVEZ, J., FERNS, J.†

†     Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
      Nemecek & Cole, Gregg S. Garfinkel and Susan S. Baker for Defendant and
Appellant, Transguard Insurance Company.
      Sheppard Mullin Richter & Hampton, LLP and Andre J. Cronthall for Defendant
and Appellant, LA Packing Crating and Transport.
      Selman Breitman LLP and Eric B. Strongin for Plaintiff and Respondent.

      This modification does not change the judgment.
      Respondent’s additional request for a substitution of counsel listing is denied.

                                            2
Filed 6/5/14 Those Interested Underwriters at Lloyd’s etc. v. Transguard Ins. CA2/2 (unmodified version)
                  NOT TO BE PUBLISHED IN THE 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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO

THOSE INTERESTED                                                     B240843
UNDERWRITERS AT LLOYD'S
LONDON SUBSCRIBING TO POLICY                                         (Los Angeles County
NO. WA901130E,                                                       Super. Ct. No. BC398976)

         Plaintiff and Respondent,

         v.

TRANSGUARD INSURANCE
COMPANY OF AMERICA; LA
PACKING, CRATING AND
TRANSPORT,

         Defendant and Appellant.

         APPEAL from a judgment of the Superior Court of Los Angeles County. Mary H.
Strobel, Judge. Affirmed.

         Nemecek & Cole, Gregg S. Garfinkel and Susan S. Baker, for Defendant and
Appellant.

         Sheppard Mullin Richter & Hampton, LLP, Andre J. Cronthall, Selman Breitman
LLP and Eric B. Strongin for Plaintiff and Respondent.
                                                       ******
       Plaintiff and respondent Those Interested Underwriters at Lloyd’s London
Subscribing to Policy No. WA901130E (Underwriters) brought a declaratory relief action
against defendant and appellant Transguard Insurance Company of America (appellant)
and defendant and respondent L.A. Packing, Crating and Transport (LAP). Both
Underwriters and appellant provided insurance policies to LAP, and Underwriters sought
a determination of the duty to defend an action brought against LAP after it was hired to
install several paintings and one of its employees erroneously removed the painted frames
from three paintings. Following a bench trial, the trial court ruled Underwriters did not
owe a duty to defend and appellant owed a duty to defend.
       We affirm. The trial court properly construed the policy issued by Underwriters as
limited to damage involving goods in the due course of transit, and substantial evidence
established that the alleged damage did not involve goods in transit. The trial court
likewise properly construed the policy issued by appellant to provide coverage for the
damage alleged, and substantial evidence supported the trial court’s determination that
appellant failed to meet its burden to show any policy exclusions applied.
                 FACTUAL AND PROCEDURAL BACKGROUND
       The Hollanders’ Art Purchase and Installation.
       LAP is a fine art handling company that packs, crates, ships, stores, delivers and
installs fine art. In October 2004, art collectors Stanley and Gail Hollander (the
Hollanders) purchased three paintings by Martin Kippenberger (Kippenberger paintings)
from a London gallery. In April 2005, they hired LAP to pick up and store several works
of art, including the Kippenberger paintings. On May 9, 2005, the Hollanders requested
that LAP deliver the Kippenberger paintings to their temporary home in Santa Monica.
LAP delivered, unwrapped and installed the Kippenberger paintings on May 13, 2005,
and the Hollanders’ housekeeper signed a bill of lading accepting the delivery—an act
the Hollanders had authorized.
       Several months later, the Hollanders themselves removed the Kippenberger
paintings from the walls, wrapped them, packed them in their car, drove them to their
home in Mandeville Canyon and placed them inside the home. In December 2005, the

                                             2
Hollanders hired LAP to hang approximately 40 works of art, including the Kippenberger
paintings.1 The Hollanders marked the area where they wanted the Kippenberger
paintings hung and informed an LAP supervisor of the desired location; they did not give
LAP any further instructions regarding those works. During the installation and while the
Hollanders were away from their home at lunch, LAP employee Bryce Bowman
accidentally tore off the Kippenberger paintings’ cardboard frames that were a part of the
artwork, mistaking them for protective covering. Bowman was not working with anyone
else when the damage occurred.
        LAP’s Insurance and Tender of the Hollander Action.
        In January 2007, the Hollanders filed a complaint against LAP for negligence and
against their own homeowners’ insurer for breach of contract and breach of the implied
covenant of good faith and fair dealing (Hollander action). LAP, in turn, notified its
insurers of the Hollander action in March and April 2007.
        At the time of the incident giving rise to the Hollander action, LAP was insured by
appellant under a commercial liability package (appellant’s policy) that included three
components—a marine movers policy, an automobile policy and a commercial general
liability policy. Each policy contained its own exclusions, and only the marine movers,
or cargo, policy expressly excluded coverage for fine art. The general liability portion of
appellant’s policy provided that appellant would “pay those sums that the insured
becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property
damage’ to which this insurance applies. We will have the right and duty to defend the
insured against any ‘suit’ seeking those damages. However, we will have no duty to
defend the insured against any suit seeking damages for ‘bodily injury’ or ‘property
damage’ to which this insurance does not apply.” Among other exclusions, appellant’s
policy excluded “‘property damage’ to: . . . [¶¶] [p]ersonal property in the care, custody
or control of the insured,” and to “[t]hat particular part of any property that must be
restored, repaired or replaced because ‘your work’ was incorrectly performed on it.”

1
        The Hollanders’ other pieces were in storage, and LAP delivered and installed them over a several-day
period. Only the Kippenberger paintings were already in the home before LAP commenced their installation.

                                                        3
       LAP was also insured by Underwriters under a fine art packers and shippers policy
(the Underwriters policy), which covered LAP’s liability for “all risks of physical loss of
or damage to lawful goods and merchandise, including legal defense costs, the property
of others, shipped &/or stored under bills of lading, shipping receipts, or delivery receipts
issued by [LAP], not exceeding the amount detailed in the Certificate attached hereto
while such goods and merchandise are in the custody of [LAP], or in the custody of
connecting carriers, whilst in due course of transit within the territorial scope as detailed
in the Certificate attached hereto.” In connection with LAP’s 2008 renewal of the
Underwriters policy, the coverage was expanded to include installation exposure for an
increased premium.
       Appellant initially assumed LAP’s defense of the Hollander action, subject to a
reservation of rights. Shortly thereafter, Underwriters also agreed to defend LAP subject
to a full reservation of rights. In May 2007, however, appellant issued a denial of
coverage and informed LAP that it would be withdrawing its defense of the Hollander
action. It reasoned that the allegations in the Hollander action fell within the exclusions
for “care, custody and control of the insured” and for “your work.”
       Pleadings and Motions.
       In September 2008, Underwriters filed a complaint for declaratory relief, equitable
contribution and subrogation against appellant and LAP. It sought a declaration that it
owed no duty to defend the Hollander action, that appellant owed a duty to defend and
that appellant owed it all or a portion of any amounts it had incurred in defending.
Appellant answered, generally denying the allegations and asserting multiple affirmative
defenses.
       In August 2009, Underwriters moved for summary judgment and alternatively for
summary adjudication. Appellant opposed the motion, though LAP did not. In a January
2010 order, the trial court denied the motion, finding that Underwriters failed to meet its
burden to show, as a matter of law, either that its policy did not provide coverage for
LAP’s actions or that appellant’s policy’s exclusions did not apply.
       Trial and Judgment.

                                              4
       The trial court bifurcated the trial so that the first two causes of action for
declaratory relief were tried first, and the latter two causes of action for equitable
contribution and subrogation were tried second. The first phase of the bench trial
commenced in September 2010. The parties stipulated to a number of facts. In addition,
Underwriters called as witnesses its policy underwriter, appellant’s Los Angeles office
managing vice-president and one of appellant’s senior claims adjusters, while appellant
called LAP’s owner and Stanley Hollander.
       Following closing arguments, the trial court announced its ruling in favor of
Underwriters on the declaratory relief causes of action and subsequently entered an order
in November 2010 outlining its reasoning. In connection with the first cause of action,
the trial court ruled that the Underwriters policy did not cover the Hollander action
because the activity in question involved installation that was not incidental to the
shipping or storage of the Kippenberger paintings. On the second cause of action, the
trial ruled that appellant owed LAP a duty to defend the Hollander action. It rejected
appellant’s argument that its policy excluded the claimed loss, finding the evidence
showed that LAP did not have exclusive care, custody or control of the Kippenberger
paintings at the time of installation. The trial court further found that the “your work”
exclusion did not apply, noting that appellant presented neither evidence nor argument
regarding the applicability of the exclusion. It expressly noted that any conclusions that
differed from its order denying summary judgment were based on further legal analysis
as well as consideration of the evidence offered at trial.
       The second phase of the trial on the equitable contribution and subrogation causes
of action also took place in September 2011. The trial court again ruled in favor of
Underwriters and ordered appellant to pay a principal sum of $907,004.74, plus
$83,834.05 in prejudgment interest and $39,059.99 in costs, for a total amount of
$1,029.889.78.
       Judgment was entered in January 2012. The trial court thereafter denied
appellant’s motions for a new trial and judgment notwithstanding the verdict. Appellant
appealed from the judgment.

                                               5
                                       DISCUSSION
       Appellant’s challenges on appeal are limited to the first phase of the trial. It
argues there was no substantial evidence to support the trial court’s determination that the
Underwriters policy did not provide coverage and that its own policy did not exclude the
loss. We find no merit to its position.
I.     Insurance Policy Interpretation and Standard of Review.
       In general, interpretation of an insurance policy is a question of law that we review
de novo under settled rules of contract interpretation. (Ameron Internat. Corp. v.
Insurance Co. of State of Pennsylvania (2010) 50 Cal.4th 1370, 1377; Bank of the West v.
Superior Court (1992) 2 Cal.4th 1254, 1264.) The Court in Palmer v. Truck Ins.
Exchange (1999) 21 Cal.4th 1109, 1115, summarized those rules: “‘While insurance
contracts have special features, they are still contracts to which the ordinary rules of
contractual interpretation apply.’ [Citation.] Thus, ‘the mutual intention of the parties at
the time the contract is formed governs interpretation.’ [Citation.] If possible, we infer
this intent solely from the written provisions of the insurance policy. [Citation.] If the
policy language ‘is clear and explicit, it governs.’ [Citation.] [¶] When interpreting a
policy provision, we must give its terms their ‘“ordinary and popular sense,” unless “used
by the parties in a technical sense or a special meaning is given to them by usage.”’
[Citation.] We must also interpret these terms ‘in context’ [citation], and give effect ‘to
every part’ of the policy with ‘each clause helping to interpret the other.’ [Citations.]”
       “On the other hand, ‘[i]f the terms of a promise are in any respect ambiguous or
uncertain, it must be interpreted in the sense in which the promisor believed, at the time
of making it, that the promisee understood it.’ [Citations.] This rule, as applied to a
promise of coverage in an insurance policy, protects not the subjective beliefs of the
insurer but, rather, ‘the objectively reasonable expectations of the insured.’ [Citation.]
Only if this rule does not resolve the ambiguity do we then resolve it against the insurer.
[Citation.]” (Bank of the West v. Superior Court, supra, 2 Cal.4th at pp. 1264-1265.) “In
determining whether an ambiguity exists, the words of the policy must be interpreted
according to the plain meaning that a layperson would ordinarily attach to them.

                                              6
(Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 807.) Policy language is
ambiguous when it reasonably may be interpreted in two or more ways. (Waller v. Truck
Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18.) ‘Courts will not adopt a strained or absurd
interpretation in order to create an ambiguity where none exists.’ (Reserve Insurance Co.
v. Pisciotta, [supra,] at p. 807.) Moreover, the language must be interpreted in the
context of the policy as a whole, and in light of the circumstances of the case. It cannot
be deemed to be ambiguous in the abstract. (Bank of the West v. Superior Court, supra, 2
Cal.4th at p. 1265.)” (Mercury Ins. Co. v. Pearson (2008) 169 Cal.App.4th 1064, 1070,
italics omitted.)
       “Contract interpretation, including the resolution of any ambiguity, is solely a
judicial function, unless the interpretation turns on the credibility of extrinsic evidence.
[Citation.]” (Legacy Vulcan Corp. v. Superior Court (2010) 185 Cal.App.4th 677, 688.)
“When the trial court has resolved a disputed factual issue, [we] review the ruling
according to the substantial evidence rule. If the trial court’s resolution of the factual
issue is supported by substantial evidence, it must be affirmed.” (Winograd v. American
Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) Correspondingly, when the
dispositive issue is the application of an insurance policy, rather than its interpretation,
and different inferences may reasonably be drawn from the evidence, the trial court’s
findings remain subject to substantial evidence review. (Id. at pp. 632-634; accord,
Alpine Ins. Co. v. Planchon (1999) 72 Cal.App.4th 1316, 1324.)
II.    The Trial Court Properly Determined the Underwriters Policy Did Not
Provide Coverage.
       In connection with the first cause of action, the trial court ruled that Underwriters
owed no duty to defend or indemnify because the policy did not cover the liability
alleged in the Hollander action. It relied on the stipulated facts, testimony and exhibits
showing that LAP picked up and stored the Kippenberger paintings in April 2005 and
delivered them to the Hollanders pursuant to a bill of lading in May 2005; several months
later the Hollanders wrapped and moved the paintings themselves to another home; and
LAP damaged the paintings during the process of installation at the new home. The trial

                                               7
court reasoned that such damage was outside the scope of the Underwriters policy, which
provided coverage for damage to goods “shipped &/or stored under bills of lading,
shipping receipts, or delivery receipts issued by [LAP], . . . while such goods and
merchandise are in the custody of [LAP], or in the custody of connecting carriers, whilst
in due course of transit . . . .” According to the trial court, “[o]n the face of the policy,
the paintings were not being shipped or stored at the time of the damage.”
       Beyond evaluating the face of the policy, the trial court considered extrinsic
evidence to the extent the policy could be considered ambiguous as to when shipping or
transit ends. It expressly considered the testimony of Underwriters’ representative
Graham Hawkins, who explained that covered shipping or transit ends when goods are
delivered pursuant and accepted pursuant to a receipt, and the testimony of LAP owner
Jim Isenson, who stated that his interpretation of “transit” was the same and confirmed
that LAP did not deliver or otherwise transport the Kippenberger paintings to the home
where they were installed. On the basis of that evidence, the trial court ruled: “[T]he
L.A. Packing activity on the date in question with respect to the Kippenbergers was
strictly installation of the Kippenbergers, as the Hollanders themselves had wrapped and
transported them to their own home. The court finds the Kippenberger paintings were
not damaged while being stored or being shipped or in the course of transit at the time of
the damage. [¶] Shipping of the Kippenberger paintings was complete when the
Hollanders accepted delivery at their Santa Monica home and the housekeeper signed the
receipt. [¶] The Underwriters policy does not cover installation which is not incidental to
shipping or storage.”
       We find no basis to disturb the trial court’s conclusion. The Underwriters policy
unambiguously provided coverage for damage to goods shipped or stored pursuant to a
receipt and while in the due course of transit. (See generally Reserve Insurance Co. v.
Pisciotta, supra, 30 Cal.3d at p. 807 [“Words used in an insurance policy are to be
interpreted according to the plain meaning which a layman would ordinarily attach to
them,” and we must “not adopt a strained or absurd interpretation” of the policy
language].) While the term “transit” does not necessarily mean continuous movement,

                                               8
the word does contemplate some type of transportation. (See Aetna Casualty and Surety
Co. v. Burbank Generators, Inc. (1981) 121 Cal.App.3d 813, 816.) There, the court
construed similar language to extend coverage when the goods, “even though temporarily
at rest, were still on their way and whe[n] the stop, where the loss occurred, was merely
incidental to the main purpose of delivery.” (Ibid.)
       The court in Cargo Master, Inc. v. Ace USA Ins. Co. (Tenn.Ct.App. 2007) 2007
WL 121429 engaged in a comprehensive analysis of the phrase “in due course of transit”
for the purposes of insurance coverage. It took into account Black’s Law Dictionary’s
definition of “transit” as “‘on the way or passage; while passing from one person or place
to another; in the course of transportation,’” and its more specific definition providing
that “‘[w]ithin [a] policy covering goods in transit, [the] term has significance of activity
and of motion and direction; literally it means in [the course] of passing from point to
point, and ordinarily goods in transit would imply that goods will lawfully be picked up
at given place and hauled to place designated by owner or one with authority to so
designate.’” [Citations.]” (Id., 2007 WL 121429 at *5, fn. 5.) In addition, the court
surveyed multiple jurisdictions and synthesized the interpretation to be gleaned from
those cases, finding “that the common and ordinary meaning of the terms ‘in transit’ or
‘in due course of transit,’ while limited to cargo that is actually en route from one place to
the next, contemplates temporary stops which are incidental to the course of
transportation. Whether an interruption in the actual movement of the cargo is incidental
to the course of transportation depends upon the purpose and extent of the stop.” (Id.,
2007 WL 121429 at *7.) Consistent with this authority, the trial court properly construed
the Underwriters policy as limited to activity that was incidental to shipping or storage.
       Substantial evidence supported the trial court’s determination that LAP’s
installation of the Kippenberger paintings was not incidental to transportation of the
works. According to the stipulated facts, LAP transported the Kippenberger paintings to
the Hollanders’ home in Santa Monica in May 2005, and the Hollanders, through their
housekeeper, signed a bill of lading accepting their delivery. Underwriters offered no
evidence to suggest that the Santa Monica home was a temporary stop during the course

                                              9
of transit, or to show that LAP contemplated any further transportation of the
Kippenberger paintings. Instead, the evidence showed that the Hollanders themselves
wrapped the Kippenberger paintings and transported them to another home in Mandeville
Canyon. The Hollanders retained LAP to hang or install the Kippenbergers paintings,
and their claims against LAP stemmed only from the damage that occurred during
installation. Because there was no evidence to show the damage occurred while the
Kippenberger paintings were in the due course of transit, the Underwriters policy did not
afford coverage.
       In challenging this conclusion, appellant essentially ignores the Underwriters
policy language and proceeds directly to assert that a finding of coverage should be
premised on LAP’s reasonable expectations. Preliminarily, we observe that the insured’s
reasonable expectations come into play when it is necessary to resolve an ambiguous
policy term. (E.g., Kazi v. State Farm Fire and Casualty Co. (2001) 24 Cal.4th 871, 879;
Buss v. Superior Court (1997) 16 Cal.4th 35, 45.) Because the policy language limiting
coverage to damage to goods “in due course of transit” was unambiguous, we need not
examine LAP’s reasonable expectations of coverage.
       But even if we were to find some ambiguity, we would find insufficient evidence
to show a reasonable expectation of coverage. Though appellant cites to testimony from
LAP’s owner Isenson that he believed the Underwriters policy would cover LAP’s fine
arts’ handling and initially tendered the Hollander action to Underwriters, it ignores
Isenson’s testimony that he understood the Underwriters policy covered liability for
shipping and storage, he was aware that LAP completed its task of transportation once
the artwork had been delivered and a bill of lading was signed, and he had no
expectations beyond the language of the Underwriters policy itself, as well as his
testimony that he had previously relied on appellant’s policy to cover a claim involving
damage that occurred during installation Appellant likewise ignores deposition
testimony from insurance broker David Genser that he never recalled discussing with
Isenson whether LAP would be covered for damage to artwork that LAP had neither
transported nor stored. Nor does it cite testimony from policy underwriter Graham

                                            10
Hawkins, who stated that Isenson inquired about coverage for installation for the first
time in 2008, well after the Hollander action had been filed. “An appellant who fails to
cite and discuss the evidence supporting the judgment cannot demonstrate that such
evidence is insufficient.” (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1408.) We find
no basis to disturb the trial court’s ruling on the first cause of action for declaratory relief.
III.   The Trial Court Properly Determined that Appellant Owed a Duty to Defend.
       On the second cause of action, the trial court ruled appellant owed LAP a duty to
defend in the Hollander action. It determined that appellant’s general liability policy
covered the damage alleged in the Hollander action unless appellant could establish a
policy exclusion or exception applied. It further determined that the evidence did not
support the application of either the “care, custody and control” exclusion or the “your
work” exclusion. Again, we find no basis to disturb this conclusion.
       A.     The Care, Custody and Control Exclusion.
       Appellant’s policy obligated appellant to defend and indemnify LAP for claims of
“property damage,” defined as “[p]hysical injury to tangible property, including all
resulting loss of use of that property.” While appellant does not challenge the finding
that the damage claimed in the Hollander action constituted property damage, it asserts
substantial evidence did not support the trial court’s conclusion that such damage fell
outside the policy’s exclusion for property damage to”[p]ersonal property in the care,
custody or control of the insured.” (See MRI Healthcare Center of Glendale, Inc. v. State
Farm General Ins. Co. (2010) 187 Cal.App.4th 766, 777 [once it is shown a claimed loss
falls within the coverage provided by a policy’s insuring clause, “the burden is on the
insurer to prove the claim is specifically excluded”].)
       The care, custody and control exclusion is intended “to except from policy
coverage liability on account of damage to property held under bailment.” (Karpe v.
Great American Indem. Co. (1961) 190 Cal.App.2d 226, 230; see Croskey, Heeseman &
Johnson, Cal. Practice Guide: Insurance Litigation (The Rutter Group 2013), ¶ 7:2370, p.
7J-27 [the care, custody or control exclusion “precludes coverage for property held by the
insured under bailment”]; see also Meyer Koulish Co. v. Cannon (1963) 213 Cal.App.2d

                                               11
419, 427 [describing a bailment as “‘a delivery of personalty for some particular purpose,
or on mere deposit, upon a contract, express or implied, that after the purpose has been
fulfilled it shall be redelivered to the person who delivered it, or otherwise dealt with
according to his directions, or kept until he reclaims it”].)
       Though we would typically first determine whether the exclusion is unambiguous,
the court in Home Indem. Co. v. Leo L. Davis, Inc. (1978) 79 Cal.App.3d 863, 871-872
(Home Indem.), explained the application of the exclusion is necessarily a fact-driven
inquiry, stating: “[I]n varying factual situations the precise exclusion has been held both
ambiguous and unambiguous. The only consistency in the cases is the need for
painstaking evaluation of the specific facts of each case, especially those that bear on the
nature and extent of the insured’s control. [Citation.] While it is true that the weight of
authority favors applying the exclusion [citation], the courts are not averse to holding it
inapplicable where the control exercised by the insured—possessory or physical—is not
exclusive and complete at the critical moment in question.” (See Cal. Practice Guide:
Insurance Litigation, supra, ¶ 7:2371, p. 7J-27 [“The [care, custody and control]
exclusion does not apply where the insured’s control is not exclusive or complete at the
time of the occurrence giving rise to the injury or damage”].)
       For example, in Home Indem., supra, 79 Cal.App.3d 863, the court held the care,
custody and control exclusion did not apply to preclude coverage to a crane operator who
had rented a crane and operator to construction companies for the purpose of dissembling
a batch plant, and the plant sustained damage when the lifting of a pugmill caused a crane
cable to break. (Id. at pp. 866-867, 872.) The court reasoned that at the time of the
incident, the crane operator did not exclusively control the pugmill; at best, it had only
momentary access in order to serve the contractors’ purposes. (Id. at p. 872.) In a further
example involving circumstances analogous to those here, the court in Haerens v.
Commercial Casualty Ins. Co. (1955) 130 Cal.App.2d.Supp. 892, 893-894, held the care,
custody and control exclusion did not apply where the insured was hired to paint a house
and one of his employees negligently scratched a number of windows while sanding the

                                              12
metal strips separating the windowpanes. The court determined windowpanes were never
in the insured’s care, custody or control. (Ibid.)
       Substantial evidence supported the same conclusion here, as LAP’s control of the
Kippenberger paintings was neither exclusive nor complete. In finding that the
Kippenberger paintings were not in LAP’s care, custody or control, the trial court relied
on evidence showing the artwork was in the Hollanders’ home and intended to be
installed in that home; the Hollanders were present in the home on the day of installation;
and the Hollanders gave LAP instructions regarding their desired placement of the
Kippenberger paintings. Under these circumstances, the trial court found the
requirements of the exclusion were not satisfied: “[I]t is clear that it was not exclusive
care, custody or control by L.A. Packing. The court looks to the question of care,
custody or control at the time of the damages; however, this cannot be so narrowly
construed as to mean in whose hands the paintings were at the exact time the frames were
erroneously torn off. [¶] Rather, the court looks at where the paintings were located in
the Hollanders’ home, not in L.A. Packing storage or L.A. Packing arranged transit, and
the fact that the installation was being done, at least to some measure, per the instruction
of Mr. or Mrs. Hollander.”
       Appellant contends the evidence was insufficient to avoid the exclusion and
maintains the trial court should have been guided by a comment in Home Indem., supra,
79 Cal.App.3d at page 871 that “[a]lmost invariably where coverage is denied, physical
control by the insured has been exclusive, even if such exclusivity was only momentary,
so long as the damage occurred in that moment.” Asserting that LAP had exclusive—
albeit momentary—control over the Kippenberger paintings at the time they were
damaged, appellant relies on Bowman’s deposition testimony that he did not seek advice
from the Hollanders before removing the frames, he did not know the Hollanders’
whereabouts when he began to remove the frames and no one else was in the room when
he removed the frames. It also relies on Stanley Hollander’s testimony that he was not
present in the home at the moment the frames were removed. Appellant argues that this
evidence mandated the application of the care, custody or control exclusion.

                                             13
       Appellant’s argument that momentary exclusivity is key is premised on a
misinterpretation of both the law and the facts. The comment in Home Indem., supra, 79
Cal.App.3d at page 871 regarding momentary exclusive physical control appears as part
of a discussion about the factors on which other courts have relied to find the exclusion
inapplicable. (Id. at pp. 869-872.) In the context of that discussion—primarily involving
other crane cases—the court contrasted such exclusivity with several factors indicative of
the absence of care, custody or control, including where “control was effectively retained
in some fashion by the owner of the damaged property,” “where physical control was
shared by another with the insured” and where the damaged goods “were not in the
insured’s control, but instead he had merely been given temporary access thereto.” (Id. at
pp. 869, 871.) The trial court here determined that the evidence presented “a shared
control situation.” This was the same conclusion reached in Home Indem., supra, 79
Cal.App.3d at page 872, where the court affirmed the finding that the care, custody and
control exclusion was inapplicable on the basis of evidence which showed the insured
crane owner’s “control of the pugmill was not exclusive at the time of the accident. The
crane and its operator are best described as mere instrumentalities of [the construction
company], with momentary access to the pugmill and the other parts of the batch plant in
order to serve [the construction company’s] purposes, at [the construction company’s]
direction, and under [the construction company’s] control. The most that can be said
with respect to the pugmill is that [the construction companies] temporarily shared with
[the insured] their control of the pugmill insofar as necessary to lift that part.”
       Here, similarly, the evidence showed that LAP had access to the Kippenberger
paintings in order to serve the Hollanders’ purposes, it received instructions from the
Hollanders regarding their placement and the paintings at all relevant times remained in
the Hollanders’ home. In light of this evidence, appellant’s reliance on Bowman’s
testimony is misplaced. As aptly stated in Howard v. Owens Corning (1999) 72
Cal.App.4th 621, 631: “We emphasize that the test is not the presence or absence of a
substantial conflict in the evidence. Rather, it is simply whether there is substantial
evidence in favor of the respondent. If this ‘substantial’ evidence is present, no matter

                                              14
how slight it may appear in comparison with the contradictory evidence, the judgment
must be upheld. As a general rule, therefore, we will look only at the evidence and
reasonable inferences supporting the successful party, and disregard the contrary
showing.” Substantial evidence supported the trial court’s conclusion that the
Kippenberger paintings were never in LAP’s exclusive care, custody or control.
(Haerens v. Commercial Cas. Ins. Co., supra, 130 Cal.App.2d.Supp. at pp. 893-894.)
       B.     The “Your Work” Exclusion.
       Appellant further maintains substantial evidence did not support the trial court’s
determination that another exclusion, the “your work” exclusion, did not apply. The
exclusion applied to property damage to “[t]hat particular part of any property that must
be restored, repaired or replaced because ‘your work’ was incorrectly performed on it.”
Appellant’s policy defined “your work” to mean “(1) Work or operations performed by
you or on your behalf; and [¶] (2) Materials, parts or equipment furnished in connection
with such work or operations.” The exclusion did not apply to property damage included
within the “products completed operation hazard,” which expressly excepted “[w]ork that
has not yet been completed or abandoned.”
       The trial court ruled that appellant “presented no evidence or argument at trial
concerning the applicability of the your-work exclusion, and the court considers this
argument to have been withdrawn. In any event, the court finds the exclusion
inequitable.” Appellant bore the burden of establishing the exclusion was applicable.
(Aydin Corp. v. First State Ins. Co. (1998) 18 Cal.4th 1183, 1188.) In asserting it
satisfied its burden, appellant points to one page in its trial brief and generally refers to
the testimony at trial. But appellant never once mentioned the exclusion during closing
argument, nor did it endeavor to show how any trial testimony supported its application.
“An insurer may rely on an exclusion to deny coverage only if it provides conclusive
evidence demonstrating that the exclusion applies. [Citations.] Thus, an insurer that
wishes to rely on an exclusion has the burden of proving, through conclusive evidence,
that the exclusion applies in all possible worlds.” (Atlantic Mutual Ins. Co. v. J. Lamb,
Inc. (2002) 100 Cal.App.4th 1017, 1039-1040 [claims adjuster’s testimony did not rise to

                                              15
the level of conclusive evidence].) Though appellant argues it offered testimony
regarding the general scope of LAP’s work as evidence supporting application of the
exclusion, it offered no evidence—let alone conclusive evidence—to show that frame
removal was a part of that work. Under these circumstances, substantial evidence
supported the trial court’s withdrawal finding.
       In any event, even if we were to find that appellant had preserved the issue, we
would find no basis to apply the exclusion. The rationale underlying the your work
exclusion is that “a liability insurance policy is not designed to serve as a performance
bond [citation] or warranty of a contractor’s product. [Citations.]” (F & H Construction
v. ITT Hartford Ins. Co. of Midwest (2004) 118 Cal.App.4th 364, 373; see Cal. Practice
Guide: Insurance Litigation, supra, ¶ 7:2351, p. 7J-21 [“The exclusion applies both to
defective components in the insured’s product and to nondefective components damaged
by the defective components”].) The court in Maryland Casualty Co. Reeder (1990) 221
Cal.App.3d 961, 967 explained that general liability policies containing such exclusions
“are not designed to provide contractors and developers with coverage against claims
their work is inferior or defective. [Citation.] The risk of replacing and repairing
defective materials or poor workmanship has generally been considered a commercial
risk which is not passed on to the liability insurer. [Citations.] Rather liability coverage
comes into play when the insured’s defective materials or work cause injury to property
other than the insured’s own work or products.” Here, LAP’s actions that resulted in
damage to the Kippenberger paintings was not the type of defective work intended to be
encompassed by the exclusion, and instead resulted in the type of injury that liability
insurance is designed to cover. Indeed, construing “your work” to include LAP’s alleged
conduct would essentially eviscerate any coverage under appellant’s policy.

                                             16
                                                    DISPOSITION
         The judgment is affirmed. Underwriters is entitled to its costs on appeal.
         NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

                                                        _____________________, J. *
                                                                  FERNS
We concur:

____________________________, P. J.
         BOREN

____________________________, J.
         CHAVEZ

*
         Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

                                                         17


                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD

     LAUREL A. PETTRESS,                             DOCKET NUMBER
                   Appellant,                        CH-0845-15-0420-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: April 12, 2016
       MANAGEMENT,
                   Agency.

             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Laurel A. Pettress, Detroit, Michigan, pro se.

           Kristine Prentice, Washington, D.C., for the agency.

                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member

                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the reconsideration decision of the Office of Personnel Management
     (OPM) finding that she was overpaid $20,889.40 in annuity benefits under the
     Federal Employees’ Retirement System (FERS), but modified the OPM

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                               2

     repayment schedule. Generally, we grant petitions such as this one only when:
     the initial decision contains erroneous findings of material fact; the initial
     decision is based on an erroneous interpretation of statute or regulation or the
     erroneous application of the law to the facts of the case; the administrative
     judge’s rulings during either the course of the appeal or the initial decision were
     not consistent with required procedures or involved an abuse of discretion, and
     the resulting error affected the outcome of the case; or new and material evidence
     or legal argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, we conclude that the petitioner has not established any basis under
     section 1201.115 for granting the petition for review. Therefore, we DENY the
     petition for review and AFFIRM the initial decision, which is now the Board’s
     final decision. 5 C.F.R. § 1201.113(b).
¶2        The appellant filed an appeal of OPM’s reconsideration decision, which
     found that she was overpaid $20,889.40 in annuity benefits under FERS and that
     she was not entitled to a waiver of the overpayment. Initial Appeal File (IAF),
     Tab 1. It is undisputed that the appellant was separated for disability retirement
     on November 22, 2010, by her employing agency, the U.S. Postal Service. IAF,
     Tab 5.   While the appellant’s pay ceased on that date, she received disability
     benefits from the Office of Workers’ Compensation Programs (OWCP) from
     November 22 to December 2, 2010.          IAF, Tab 5 at 6.      In a letter dated
     November 16, 2010, OPM granted the appellant’s application for disability
     retirement and advised her that she was required to apply for social security
     benefits. Id. at 78-139. OPM’s letter also explicitly notified the appellant that
     her social security checks should be set aside until the FERS annuity had been
     properly reduced and that those checks would be needed to pay OPM for the
     reduction that should have been made in the FERS annuity. Id. at 79. In a letter
     dated September 10, 2012, OPM notified the appellant that it had received
                                                                               3

     information that she became entitled to social security benefits effective
     December 3, 2010. Id. at 61-62. OPM advised the appellant that her annuity had
     been adjusted because of her social security benefits and that, as a result, she had
     been overpaid $20,889.40, and it notified her that her repayment schedule would
     consist of 80 monthly payments of $257.97 with a final payment of $251.80. Id.
¶3           The appellant requested reconsideration of OPM’s decision, and she
     requested a waiver of the overpayment. Id. at 59-60. The appellant submitted
     two Financial Resources Questionnaires (FRQ), dated October 13, 2012, and
     March 17, 2015, respectively, both forms showing that her average monthly
     expenses exceeded her average monthly income. 2 Id. at 10-12, 16-20. OPM’s
     reconsideration decision affirmed the overpayment and found that the appellant
     was not entitled to a waiver of the overpayment.       Id. at 6-9.   However, OPM
     adjusted the repayment schedule to 139 monthly payments of $150.00 and one
     final payment of $39.40. Id. at 9.
¶4           On appeal, the appellant asked the Board to waive recovery of the
     overpayment because of financial hardship.       IAF, Tab 1.   While the appellant
     initially requested a hearing, she withdrew that request, and the administrative
     judge decided the case on the written record. IAF, Tab 12, Initial Decision (ID)
     at 1; IAF, Tab 10.     The administrative judge found that OPM established the
     existence and amount of the overpayment, $20,889.40, and that the appellant
     was not entitled to waiver of collection of the overpayment under the set-aside
     rule.    ID at 4-7.   However, the administrative judge found that, because the
     overall record indicates that the appellant’s average monthly expenses exceeded

     2
       There was a substantial difference between the appellant’s FRQ forms. The 2012 FRQ
     lists her average monthly income as $1,813.00 and her average monthly expenses as
     $1,720.00, while the 2015 FRQ lists her average monthly income as $2,372.00 and her
     average monthly expenses as $3,363.00. On the 2015 FRQ her average monthly taxes
     are identified as $1,500.00, while there were no taxes included on the 2012 FRQ. IAF,
     Tab 5 at 10-12, 16-20.      The appellant did not provide any explanation for the
     differences between the 2012 and 2015 FRQs.
                                                                               4

     her average monthly income, further reduction in the monthly repayment schedule
     was reasonable.    ID at 9.     The administrative judge adjusted the repayment
     schedule to 278 payments of $75.00 per month with a final payment of $39.40.
     ID at 9. Thus, she affirmed OPM’s reconsideration decision as modified.
¶5        On review, the appellant appears to challenge the existence and the amount
     of the FERS overpayment. Petition for Review File, Tab 1. In this connection,
     the appellant asserts for the first time on review that, because of her injury, her
     attendance at work was sporadic from June 2008 until her retirement and that,
     while she was on OWCP’s rolls for some of that period, she was not being
     compensated by OWCP.          As a result, she contends that some of the payroll
     information may have been incorrect and she does not think that she was
     overpaid. Id.
¶6        However, because the appellant failed to raise this argument below and she
     has made no showing that it is based on new and material evidence not previously
     available despite her due diligence, we need not address it for a first time on
     review. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).
     Moreover, the applicable law and the record evidence support the administrative
     judge’s findings that OPM established the existence and amount of the
     overpayment with the “Paid and Due Calculation” provided to the appellant with
     the overpayment notice, as well as the Explanation of Disability Annuity
     Computation. ID at 4. Therefore, we discern no reason to disturb these explained
     findings.   See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997)
     (finding no reason to disturb the administrative judge’s findings where she
     considered the evidence as a whole, drew appropriate inferences, and made
     reasoned    conclusions);   Broughton v.   Department    of   Health   &   Human
     Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶7        Finally, although the appellant does not challenge the adjusted repayment
     schedule, we have reviewed the administrative judge’s determination to adjust
     OPM’s repayment schedule from 139 monthly payments of $150.00 and 1 final
                                                                               5

payment of $39.40 to 278 payments of $75.00 per month with a final payment of
$39.40, and we agree with the administrative judge that, based on the appellant’s
average monthly income and expenses, the reduction in the repayment schedule is
warranted. Thus, we have found no basis upon which to disturb the adjusted
repayment schedule.

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012).     You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional        information      is      available       at      the      court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.
                                                                               6

      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono      for     information   regarding   pro   bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.   The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.

FOR THE BOARD:                              ______________________________
                                            William D. Spencer
                                            Clerk of the Board
Washington, D.C.


486 F.2d 284
Levon BROWN, Appellant,v.UNITED STATES of America et al., Appellees.
No. 72-1328.
United States Court of Appeals,Eighth Circuit.
Submitted Dec. 8, 1972.Decided Oct. 29, 1973.

John T. Lavey, Little Rock, Ark., for appellant.
John A. Forster, Little Rock, Ark., for appellees Love and Allen.
Fletcher Jackson, Asst. U. S. Atty., Little Rock, Ark., for appellee United States.
Before MEHAFFY, Chief Judge, and BRIGHT and STEPHENSON, Circuit Judges.
MEHAFFY, Chief Judge.

1
This is an action for compensatory and punitive damages by a federal prisoner against the sheriff and head jailer of Pulaski County, Arkansas and against the federal government for injuries plaintiff received in two separate assaults by fellow inmates during plaintiff's pretrial detention in the Pulaski County Jail.1  Recovery is sought against the sheriff and head jailer under 42 U.S.C. Sec. 1983 and under a diversity tort claim.  Recovery is sought against the United States under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671, et seq. The district court denied recovery on all of plaintiff's claims, primarily on the ground that plaintiff had failed to prove by a preponderance of the evidence that any of the defendants knew or reasonably should have known that there was any particular danger of inmate assaults upon plaintiff.  Brown v. United States, 342 F.Supp. 987 (E.D.Ark.1972).  Plaintiff appealed the judgment of the district court and the case was submitted for our decision in December 1972.  Shortly thereafter the Supreme Court granted certiorari in a case involving similar issues, Logue v. United States, 334 F.Supp. 322 (S.D.Tex.1971), rev'd, 459 F.2d 408 (5th Cir. 1972), cert. granted, 409 U.S. 1106, 93 S.Ct. 908, 34 L.Ed.2d 685 (1973).  To avoid unnecessary conflict we stayed our decision in this case pending the outcome of Logue in the Supreme Court.  The Supreme Court's opinion in Logue has now been filed. 412 U.S. 521, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973).  After reviewing the Court's opinion in Logue as well as the record in this controversy, we conclude that the judgment of the district court must be affirmed except insofar as it denies recovery against the federal government for its own negligence.

2
The factual background of this dispute is set out in detail in the opinion of the district court and will be summarized only briefly here.  In January 1969 plaintiff was committed by federal marshals to the custody of the Pulaski County Jail to await trial on federal criminal charges in the Eastern District of Arkansas.  This pretrial detention of a federal prisoner in a local facility was pursuant to a contract between the Federal Bureau of Prisons and Pulaski County under the authority of 18 U.S.C. Sec. 4002 and Ark.Stat.Ann. Sec. 46-409.  During his pretrial incarceration plaintiff was assaulted twice by fellow prisoners.  Plaintiff claims that these assaults gave rise to four separate causes of action:

3
1) a diversity claim under Arkansas tort law against the sheriff and head jailer for negligence;

4
2) a civil rights claim under 42 U.S.C. Sec. 1983 against the sheriff and head jailer by analogy to the tort claim;

5
3) a Federal Tort Claims Act action against the federal government on the theory that the United States is vicariously liable for the acts or omissions of the sheriff and head jailer; and

6
4) a Federal Tort Claims Act claim against the United States for its own negligence in entering into the contract and/or placing plaintiff in an inadequate facility.

7
Two of these causes of action can be dispensed with summarily.  First, the district court held that the diversity claim against the sheriff and head jailer was barred by the applicable Arkansas statute of limitations, Ark. Stat.Ann. Sec. 37-203.  We agree, and we affirm this holding on the basis of the district court's opinion.2  Second, plaintiff's claim under the Federal Tort Claims Act on the basis of vicarious liability is clearly foreclosed by the Supreme Court's holding in Logue v. United States, supra, that the United States is not liable under the FTCA for the negligence of its independent contractors.  Plaintiff's remaining causes of action require somewhat closer scrutiny.

1983

8
Section 1983 provides a civil remedy for any person who is deprived of a federally secured right by an individual acting under color of state law. Although the statute was enacted during Reconstruction its widespread use is an occurrence of relatively recent vintage.  A major factor in the modern development of Sec. 1983 was the Supreme Court's holding in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), that "[s]ection [1983] should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions."   Id. at 187, 81 S.Ct. at 484.  In the case before us today plaintiff would have us read Sec. 1983 against the background of tort liability that makes a jailer liable for his negligent failure to protect a prisoner from assaults by other prisoners.

9
We recognize, of course, that most jurisdictions do impose tort liability upon jailers who negligently fail to protect their prisoners adequately.  E. g., Annot. 41 A.L.R.3d 1021 (1972); Restatement (Second) Torts, Sec. 320.  This duty to exercise reasonable care stems not only from the fact that a prisoner is deprived of most of his means of self-defense but also from the fact that he is involuntarily exposed to association with individuals who may be peculiarly prone to physically assaultive conduct.  We are not at all certain, however, that Sec. 1983 incorporates en toto this particular theory of tort liability.  Even if we assume that freedom from reasonably preventible inmate assaults is a federally secured right, we are extremely hesitant to hold that mere simple negligence can be the basis of personal liability under Sec. 1983.  See Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).

10
Having stated our misgivings about plaintiff's theory under Sec. 1983, we find it unnecessary to decide his claim on this point.  Even if we assume that mere simple negligence on the part of the sheriff and head jailer is actionable under Sec. 1983, we must agree with the district court that plaintiff failed to prove the essential elements of his case.

11
The gist of plaintiff's proof in the district court was that the Pulaski County Jail was woefully understaffed and overcrowded.  Certainly the conditions of that institution are no stranger to this court, see Hamilton v. Love, 328 F.Supp. 1182 (E.D.Ark.1971), and it would be facile to suggest that those inadequacies had no causal connection with the inmate assaults plaintiff suffered.3  The inadequacies of the Pulaski County Jail shown by the plaintiff, however, were not attributable to any personal act or omission of the sheriff or head jailer.  Both men were under a statutory as well as a contractual duty to accept all prisoners offered for custody.  Given the limited means and facility they had at their disposal it appears that both the sheriff and the head jailer exercised all care one could reasonably expect of them in providing for the protection of their prisoners.4  As has already been noted elsewhere, the exercise of reasonable care in the administration of an admittedly inadequate facility is no defense to a Sec. 1983 action for injunctive relief against the appropriate officials in their official capacities.  Hamilton v. Love, supra, at 1194.  But to render these officials personally liable in damages we feel some personal fault on the part of the individuals must be demonstrated.  Plaintiff presented no substantial evidence to show that the individual defendants failed to exercise reasonable care in their personal capacities in providing for plaintiff's safekeeping.  In the absence of such a showing there can be no recovery, even under plaintiff's theory of negligence, against the sheriff and head jailer personally.

The Federal Tort Claims Act

12
Plaintiff's cause of action against the United States for its own negligence presents a more difficult question than that presented by his Sec. 1983 claim.  Two key factors distinguish the position of the federal government from the position of the sheriff and head jailer.  First, unlike Sec. 1983, it is clear that the Federal Tort Claims Act does render the United States answerable in damages for the simple negligence of its employees in failing to protect federal prisoners.  United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963).  Secondly, unlike the sheriff and head jailer, the United States was under no obligation to place the plaintiff in the Pulaski County Jail during his pretrial detention.

13
The gist of plaintiff's claim against the United States is that the government negligently breached its duty to exercise reasonable care in providing for plaintiff's safety by placing him in a facility that it knew or reasonably should have known was so inadequate that he could not be adequately protected from the foreseeable risk of assaults by fellow prisoners.  The district court accepted plaintiff's theory of liability but denied recovery on the ground that plaintiff had failed to prove that the federal government knew or reasonably should have known of the conditions in the Pulaski County Jail.  We disagree with this finding of fact and reverse it as clearly erroneous.

14
The record clearly reflects that the inadequacies of the jail were not a sudden development.  The record also reflects that the inadequacies of the institution, especially the understaffing and overcrowding had been a long-standing source of criticism from the Pulaski County grand juries.  The record also reflects that inspectors from the Federal Bureau of Prisons regularly inspected the facilities.  Defendant Allen, the head jailer, personally testified that he complained about the understaffing and overcrowding not only to the federal inspectors but also to the United States marshals and "to everybody we know about . . ., and so has the sheriff."  Transcript at 43-4, 47.  Furthermore, a member of the United States marshal's staff in the Eastern District of Arkansas grudgingly conceded that he knew of the local grand jury criticism and of the basis of that criticism:

15
"A.  [Marshal Powell] The facilities at that jail are bad.

16
"Q. [by plaintiff's counsel] And you knew that?

17
"A. I knew that.

18
"Q. And also, didn't you know it was overpopulated?

19
"A. I knew that."Q. You knew that it was understaffed?

20
"A. I knew that."

21
Transcript at 162.

22
In the face of this record it is impossible to escape the conclusion that the federal government knew or reasonably should have known of the inadequate conditions in the Pulaski County Jail.  We must therefore reverse the judgment of the district court insofar as it denied recovery for the federal government's own negligence.

23
On remand it will be necessary for the district court to consider and decide one or more of three separate questions.  First, as the district court properly noted, plaintiff's cause of action under the Federal Tort Claims Act is confronted by a very serious obstacle in the form of the discretionary function exception, 28 U.S.C. Sec. 2680(a).  See 342 F.Supp. at 996.  Secondly, there is at least some doubt about whether or not the negligence of the federal government was so remote from the incidents in which plaintiff was injured as to destroy any proximately causal connection.  Third, assuming the district court decides in plaintiff's favor on the above two issues, the court will have to compute what damages, nominal or actual,5 plaintiff is entitled to receive.  Our comments outlining the questions on remand, of course, are merely suggestive and should not be construed as indicating any attitude on the part of this court regarding the proper resolution of the issues.

24
The judgment of the district court is affirmed insofar as it denies recovery against the sheriff and the head jailer, either individually or in their official capacities.  The judgment of the district court is also affirmed insofar as it denies recovery against the United States on the theory of imputed negligence.  The judgment of the district court is reversed insofar as it denies recovery against the United States for its own negligence, and the cause is remanded for further proceedings consistent with this opinion.

1
 Plaintiff also seeks recovery for the injuries he allegedly received when he was exposed to tear gas.  The district court found that the use of tear gas was reasonable and justified.  We summarily affirm the judgment below regarding this point on the basis of the district court's opinion

2
 The individual defendants have also raised a statute of limitations defense with respect to the Sec. 1983 claim against them.  The district court expressly avoided this issue. 342 F.Supp. at 995.  In light of the apparent confusion in our recent decisions regarding the statute of limitations defense in Sec. 1983 actions, compare Glasscoe v. Howell, 431 F.2d 863 (8th Cir. 1970) with Johnson v. Dailey, 479 F.2d 86 (8th Cir. 1973), we follow the district court's lead.  Our brief discussion of the state statute of limitations issue is not intended in any way to express any opinion on our part regarding the limitations defense to Sec. 1983

3
 The district court's findings of fact made it clear that the overcrowding and understaffing had made it virtually impossible to protect detainees from inmate assaults:
"To put the matter bluntly, the prisoners on the second floor [where plaintiff was housed] were simply left to their own devices, and there were no effective means of communication between the second and first floors [where the so-called freeworld staff was stationed] whereby assistance could readily be summoned above." 342 F.Supp. at 996.

4
 To the extent that the sheriff and jailer may have had a duty to do something more than administer an inadequate facility as best they could, we find that they discharged that duty.  The record reflects that both the sheriff and head jailer complained repeatedly about the inadequacies and made good faith affirmative efforts to secure the means necessary to relieve the crowded and understaffed conditions

5
 Punitive damages are not available under the FTCA. 28 U.S.C. Sec. 2674; Hatahley v. United States, 351 U.S. 173, 182, 76 S.Ct. 745, 100 L.Ed. 1065 (1956)


565 F.2d 867
2 Fed. R. Evid. Serv. 821
UNITED STATES of America, Appellee,v.Paul Maurice TIBBETTS, Appellant.
No. 76-2438.
United States Court of Appeals,Fourth Circuit.
Argued Oct. 3, 1977.Decided Nov. 21, 1977.

Brent E. Beveridge, Fairmont, W. Va., for appellant.
Stephen G. Jory, U. S. Atty., Elkins, W. Va.  (William A. Kolibash, Asst. U. S. Atty., Wheeling, W. Va., on brief), for appellee.
Before BRYAN, Senior Circuit Judge, and RUSSELL and HALL, Circuit Judges.
PER CURIAM:

1
Convicted of making a false bomb threat on May 3, 1976 to the Federal No. 2 Mine, Eastern Associated Coal Corporation, Fairview, West Virginia, in violation of 18 U.S.C. § 844(e), Paul Maurice Tibbetts appeals.  His major assignment of error is the trial court's admission into evidence of a tape recording of a prior telephone bomb threat in his voice made almost six months earlier December 10, 1975 to the No. 2 Mine.  We affirm.

2
Three supervisors at the Mine, familiar with defendant's voice, recognized it in the December 10, 1975 call.  While never charged with this offense, he was put under surveillance on April 26, 1976.  For this purpose private investigators were employed by Eastern Associated Coal Corporation and they co-ordinated their efforts with the State Police, the C. & P. Telephone Company and the FBI.

3
The night of May 3, 1976 at about 10:30 p.m. two of the investigators observed defendant in a pay telephone booth making a call.  The bomb threat of that date, now indicted, was monitored at the very same time as this call by a Telephone Company employee.

4
In defendant's trial, evidence was received of the prior tape of December 10, 1975.  He complains that the testimony of that wrongdoing, although unprosecuted, prejudiced him at trial as well as denied him due process of law.  The contention is without merit.

5
This proof came in to account for the surveillance and as explanation of how the Government discovered suspects of this type of crime.  The procedure, we hold, did not infringe the defendant's right of fair trial or Constitutional privilege.  Of course, establishment of past criminal conduct by a defendant is not allowed when its only object or effect is to show an accused's propensity toward crime.  Federal Rules of Evidence 404(b).  However, such evidence is admissible for other purposes.  United States v. DiZenzo,500 F.2d 263 (4 Cir. 1974).  Upon the particular facts of this case identification of Tibbetts as the caller in the December 1975 bomb threat was proper as falling within the scope of Rule 404(b).

6
Even assuming that the District Court erred in this ruling, it was harmless error.  We assess it on the standard laid down in Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946), "If . . .  error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand . . .."  No evidence was put on by the defendant, and the Government's case, even without the testimony now challenged, was so overwhelming that no imposition upon the defendant could have resulted from its reception.  United States v. Archambault, 441 F.2d 281 (10 Cir. 1971), cert. denied, 404 U.S. 843, 92 S.Ct. 140, 30 L.Ed.2d 78 (1971).  Furthermore, "(t)he trial judge must have wide discretion to determine whether the probative value of evidence is outweighed by its prejudicial character."  United States v. Montalvo, 271 F.2d 922, 927 (2 Cir. 1959), cert. denied, 361 U.S. 961, 80 S.Ct. 589, 4 L.Ed.2d 543 (1960).  ". . .  (H)is exercise of discretion will not be disturbed on appeal save for grave abuse."  United States v. Wright, 160 U.S.App.D.C. 57, 62, 489 F.2d 1181, 1186 (D.C.Cir.1973) (conviction reversed).

7
Consideration has been given to appellant's other assignments of error, but we see them as unsubstantiated.  The judgment of the District Court must be upheld.

8
Affirmed.


986 F.2d 1412
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.In Re:  Marie ASSA'AD-FALTAS, M.D., M.P.H., Petitioner.
No. 93-8001.
United States Court of Appeals,Fourth Circuit.
Submitted:  February 1, 1993Decided:  February 26, 1993

On Petition for Writ of Mandamus.
Marie Assa'ad-Faltas, Petitioner Pro Se.
PETITION DENIED.
Before HALL and PHILLIPS, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:

1
Marie Assa'ad-Faltas sued a number of university and hospital defendants for damages arising from an employment contract dispute.  She seeks a writ of mandamus to compel the district judge to revoke an order in which he determined to re-examine her claims prior to trial.  The district court expressed concern that the possibility of a meaningful pre-trial conference and reasonably orderly trial were remote.

2
A writ of mandamus is issued only when the petitioner has no other means to obtain relief and when she has shown a clear right to relief.   Allied Chem.  Corp. v. Daiflon, Inc., 449 U.S. 33 (1980);   In re First Fed.  Sav. & Loan Ass'n, 860 F.2d 135, 138 (4th Cir. 1988);   In re Beard, 811 F.2d 818, 826-27 (4th Cir. 1987).  The writ is not a substitute for appeal.   In re United Steelworkers of America, 595 F.2d 958, 960 (4th Cir. 1979).

3
We decline to issue the writ.  Petitioner has not shown that she has a clear right to relief or that there are no other means to obtain relief.  She has failed to show that the district court abused its discretion in issuing its pre-trial order.  Even if the district court had abused its discretion by denying her relief, that decision would be an interlocutory order not ripe for appellate review.  28 U.S.C.A.s 1291 (West Supp. 1992).  A writ of mandamus to compel interlocutory review of a nonfinal order by a district court is generally not available because those orders can be reviewed after a final judgment.   Allied Chem.  Corp. v. Daiflon, Inc., 449 U.S. 33, 35-36 (1980).

4
Although we deny the petition, we grant leave to proceed in forma pauperis.  We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

PETITION DENIED


192 B.R. 751 (1995)
Florentino MACALMA and Norma Macalma, Plaintiffs,
v.
BANK UNITED OF TEXAS, Defendant.
No. C-95-2091 DLJ.
United States District Court, N.D. California.
December 15, 1995.
*752 Marc Voisenato, Oakland, California, for plaintiffs.
Patrick E. Herman, with the Law Office of Gerald R. Moss, El Cajon, California, for defendant.

ORDER
JENSEN, District Judge.
On December 13, 1995, the Court heard arguments on the parties' cross motions for summary judgment. Having considered the arguments of counsel and the papers submitted, the Court hereby GRANTS defendant's motion for summary judgment and DENIES plaintiff's motion for summary judgment.

I. BACKGROUND
A. Factual Background and Procedural History
Plaintiffs in this action are Florentino and Norma Macalma, debtors in a total of three separate bankruptcy proceedings. The defendant is Bank United of Texas, which held a deed encumbering the plaintiffs jointly owned home located at 4449 Norocco Circle in Fremont, California.
On August 19, 1992, plaintiff Norma Macalma filed a Chapter 11 bankruptcy petition ("First Petition"). On or about August 1, 1993, plaintiffs Norma and Florentino Macalma defaulted on the loan held by defendant Bank United of Texas. Plaintiff Norma Macalma's Chapter 11 reorganization plan was approved by the court on or about August 11, 1993. On April 6, 1994, defendant initiated foreclosure proceedings on the loan by causing a Notice of Default to be recorded.
On July 15, 1994, defendant recorded a Notice of Trustee's Sale and published the notice three times in The Argus, a local newspaper. The sale was scheduled for 12:00 noon on August 9, 1994. On August 8, 1994, at approximately 4:00 p.m., plaintiffs Norma and Florentino Macalma filed a joint Chapter 13 bankruptcy petition ("Second Petition"), triggering an automatic stay under 11 U.S.C. § 362. The scheduled foreclosure sale was postponed from time to time and the postponements were announced by the auctioneer at the time of the scheduled sales.
On January 23, 1995, the Second Petition was converted into a Chapter 11 reorganization. On February 3, 1995, the Bankruptcy Court granted defendant's Motion for Relief from the Automatic Stay, allowing defendant to proceed with the foreclosure sale. The order specified that "the relief granted be effective . . . in any bankruptcy petition filed by or against the instant Debtor . . . for a period of six (6) months from the date of entry of the order for relief."
On February 28, 1995, defendant held the Trustee's Sale. The Notice of Sale was not republished prior to the sale. Defendant was the highest bidder at the sale.
On April 25, 1995, as a condition precedent to dismissing the plaintiffs' Second Petition (Chapter 11), plaintiff Florentino Macalma filed another bankruptcy petition ("Third Petition") under Chapter 13.
On May 11, 1995, defendant commenced an unlawful detainer action in the Fremont-Newark-Union City Municipal Court. Defendant obtained a default judgment against the plaintiffs on or about June 21, 1995.
On June 23, 1995, plaintiffs filed suit in the United States District Court to set aside the foreclosure sale. Now before this court are the party's cross-motions for summary judgment on that complaint.
B. Legal Standard for Cross-Motions for Summary Judgment
The Federal Rules of Civil Procedure provide for summary adjudication when "the *753 pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
On cross motions for summary judgment, the burdens faced by the opposing parties vary with the burden of proof they will face at trial. When the moving party will have the burden of proof at trial, "his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party." William W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 487-488 (1984).
In contrast, a moving party who will not have the burden of proof at trial need only point to the insufficiency of the other side's evidence, thereby shifting to the non-moving party the burden of raising genuine issues of fact by substantial evidence. T.W. Electric v. Pacific Electrical Contractors Association, 809 F.2d 626, 630 (9th Cir.1987) citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Kaiser Cement v. Fischbach and Moore, Inc., 793 F.2d 1100, 1103-04 (9th Cir.1986).

II. ARGUMENTS
A. Validity of the Foreclosure Sale
Plaintiffs contend that the foreclosure sale initiated by the defendant was invalid because defendant "did not republish a Notice of Trustee Sale" after obtaining relief from the automatic stay triggered by the filing of the Second Petition. Defendants respond that California Civil Code § 2924g governs the publication procedures required for a postponed deed of trust sale and does not require republication of the notice of sale. Plaintiffs claim that federal law has carved out an exception to the California state law procedures of Cal. Civ. Code § 2924g by requiring, in bankruptcy cases only, that a secured creditor republish its notice of trustee sale.
No Ninth Circuit opinion speaks directly to the issue of whether state or federal law governs this question. The Bankruptcy statute and rules also contain no express requirement regarding republication of a notice of sale after a creditor is granted relief from an automatic stay imposed pursuant to a bankruptcy filing. See In re Tome, 113 B.R. 626, 632 (Bkrtcy.C.D.Cal.1990). Given this silence, bankruptcy courts have split on the issue of whether a debtor must be given notice of a continued sale date following postponements caused by a bankruptcy filing. See In re Tome, 113 B.R. 626 (Bkrtcy. C.D.Cal.1990) (republication required); Houghton v. First American Capital Bank, 123 B.R. 869, 874 n. 6 (Bkrtcy.C.D.Cal.1991) (disagreeing with Tome's conclusion and finding that in the absence of Federal law on point, applicable state law must be applied); In re Ellis, 60 B.R. 432, 436 (9th Cir. BAP 1985) (concluding in dictum that republication would be required). This Court is not, of course, bound by the decision of any bankruptcy court or bankruptcy appellate court panel.
In the absence of settled law in this circuit, the only authority binding on this Court on this issue is provided by the Supreme Court. According to the Supreme Court, in the absence of some federal interest requiring a different result, the interests of a mortgagee should be governed by state law even when an interested party is involved in a bankruptcy proceeding. Butner v. United States, 440 U.S. 48, 54-56, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979). Plaintiffs argue that the default rule from Butner should not apply because (1) Butner predated the Bankruptcy Reform Act of 1994; and (2) strong federal interests require a different result.
1. Bankruptcy Reform Act
According to plaintiff, the Bankruptcy Reform Act clarified the Congressional intent to modify state laws regarding foreclosure sales. Section 1322 was amended to add a new subsection (c) providing that a Chapter 13 debtor can cure defaults on its principal residence mortgage until the "residence is sold at a foreclosure sale." Plaintiffs contend that implicit in the right to reinstate up *754 to the time of the foreclosure sale is the right to have notice of the date, time and place of the foreclosure sale and that the defendant's failure to republish the Notice of Sale violated plaintiffs' due process rights.
Plaintiffs are correct in noting that notice of a foreclosure sale is necessary to secure a debtor's right of reinstatement. Accordingly, this court would agree that some type of notice is implicitly required when a foreclosure sale is postponed pursuant to the imposition of an automatic bankruptcy stay.
This court does not agree, however, that an implied requirement of notice is in any way inconsistent with the California statutory scheme. California law requires that notice be given of any postponement of a foreclosure sale under a deed of trust. See Cal.Civ.Code § 2924g(d). Section 2924g(d) of the California Civil Code specifies the type of notice required:
The notice of each postponement and the reason therefor shall be given by public declaration by the trustee at the time and place last appointed for sale. Such a public declaration of postponement shall also set forth the new date, time and place of sale and the place of sale shall be the same place as originally fixed by the trustee for the sale. No other notice of postponement need be given.
This notice provision adequately serves to inform both the debtor and other potential creditors of the new date, time and place of the foreclosure sale. Although California's notice provision does not require the type of notice (republication of the Notice of Sale) now demanded by plaintiffs, it meets the minimum constitutional requirements of due process and provides the attentive debtor with information sufficient to enable reinstatement. As such, this court cannot find that the California statutory scheme is violative of either the interests sought to be protected by the Bankruptcy Reform Act or the requirements of constitutional due process.
2. Strong Policy Interests
Plaintiffs contend that there is a strong policy argument in favor of requiring a creditor to republish a notice of sale after obtaining relief from the automatic stay imposed by a bankruptcy. Mirroring the reasoning applied in Tome, plaintiffs argue that because a trustee sale may be postponed numerous times while a debtor is in bankruptcy, written notice or republication should be required to prevent the debtor from losing track of the sale dates, and consequently, being unable to exercise their redemption rights.
Although recognizing that written notice would provide a more efficient method of tracking the date, time and place of a foreclosure sale repeatedly postponed during the pendency of a bankruptcy, without explicit authority to the contrary, this court is unwilling to say that either written notice or republication is required under federal law. Defendant correctly points out that debtors who wish to receive written notice of the date, time and place of the foreclosure sale may request the bankruptcy court to order this notice as part of any order granting relief from an automatic stay.
Because the court is unwilling to impose the additional burden of republication upon creditors without explicit authority requiring that result, the plaintiffs' motion for summary judgment as to this issue is DENIED and defendant's motion for summary judgment is GRANTED.
B. Rule 11 Sanctions
Defendants request Rule Eleven sanctions against plaintiffs. Because plaintiffs have clearly raised a colorable legal claim, Rule 11 sanctions are inappropriate.

III. CONCLUSION
For the reasons discussed above, plaintiffs' motion for summary judgment is DENIED and defendant's motion for summary judgment is GRANTED.
IT IS SO ORDERED.


                          Fourth Court of Appeals
                                 San Antonio, Texas
                                      JUDGMENT
                                    No. 04-18-00136-CV

                              IN THE INTEREST OF R.L.M.

                 From the 438th Judicial District Court, Bexar County, Texas
                              Trial Court No. 2016-PA-02182
                    Honorable Richard Garcia, Associate Judge Presiding

     BEFORE JUSTICE ANGELINI, JUSTICE MARTINEZ, AND JUSTICE ALVAREZ

       In accordance with this court’s opinion of this date, the order terminating appellant’s
parental rights is AFFIRMED. No costs of appeal are taxed against appellant.

       SIGNED June 13, 2018.

                                               _____________________________
                                               Karen Angelini, Justice