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*

This disposition is not appropriate for publication.

Although it may be cited for whatever persuasive value it may

have (see Fed. R. App. P. 32.1), it has no precedential value.

See 9th Cir. BAP Rule 8013-1.

1

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. SC-11-1472-MkHKi

)

STEVEN D. STEIN, ) Bk. No. 10-03458-LA11

)

Debtor. ) Adv. No. 10-90305-LA )

)

STEVEN D. STEIN, )

)

Appellant, )

v. ) MEMORANDUM*

)

EL DORADO CUSTOM POOLS, )

)

Appellee. ) )

Argued and Submitted on

February 24, 2012, at Pasadena, California

Filed - March 13, 2012

Appeal from the United States Bankruptcy Court

for the Southern District of California

Honorable Louise DeCarl Adler Bankruptcy Judge, Presiding 

Appearances: Jeffrey Lewis of Broedlow Lewis LLP appeared for

Appellant Steven D. Stein. Molly T. Shields

appeared for Appellee El Dorado Custom Pools. 

Before: MARKELL, HOLLOWELL, and KIRSCHER, Bankruptcy Judges.

FILED

MAR 13 2012

SUSAN M SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
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1Unless specified otherwise, all “Chapter” and “Section”

references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, all

“Rule” references are to the Federal Rules of Bankruptcy

Procedure, Rules 1001-9037, all “Civil Rule” references are to

the Federal Rules of Civil Procedure, 1-86, and all “Evidence

Rule” references are to the Federal Rules of Evidence, Rules 101-

1103.

2

The factual background of the state court litigation has

been compiled from the allegations in the parties’ complaints.

3

Corl was a co-owner of the Property at the time of

construction.

2

INTRODUCTION

Debtor Steven D. Stein (“Stein”) appeals the bankruptcy

court’s order denying relief from its order dismissing an

adversary proceeding related to his Chapter 111

 bankruptcy case. 

We REVERSE and REMAND.

FACTS2

On January 12, 2008, Stein and Susan Corl3 contracted with

El Dorado Custom Pools (“El Dorado”) to construct a swimming pool

at their residence in El Dorado, California (the “Property”). 

El Dorado is the fictitious business name under which Erik and

Jackie Heasley (the “Heasleys”) operate a pool construction

business.

Stein arranged financing for the project through Bank of

America, N.A. (“BofA”). The borrowed funds were placed on

deposit with First American Title (“First American”). First

American was to disburse the funds upon submission of approved

invoices.

The project did not go as planned. On July 11, 2008,

El Dorado filed a complaint in California Superior Court for the
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4Stein’s Chapter 13 case was converted to one under

Chapter 11 on October 4, 2010.

5

According to El Dorado’s counsel in the state court

proceedings, the state court had already set the matter for a

jury trial when Stein removed the case to bankruptcy court.

3

County of El Dorado. In the complaint, El Dorado sought recovery

based on breach of contract, negligence, and quantum meruit;

El Dorado also sought to foreclose on a mechanic’s lien it had

recorded against the Property and to recover payments of amounts

allegedly due and owing on Stein and Corl’s open book account.

Stein and Corl cross-claimed, bringing causes of action for

fraud in the inducement, slander of title, breach of contract,

negligence, and breach of warranty against El Dorado. They also

sued BofA for breach of contract and breach of the covenant of

good faith and fair dealing.

On March 3, 2010, Stein filed a Chapter 13 petition4 in the

United States Bankruptcy Court for the Southern District of

California. Stein then removed the California state court

litigation to the United States Bankruptcy Court for the Eastern

District of California.5 He thereafter moved to transfer the

lawsuit to the United States Bankruptcy Court for the Southern

District of California, where his main bankruptcy case was

pending. That motion was granted on June 23, 2010.

Once transferred, nothing happened in the adversary

proceeding for almost a year. On April 6, 2011, the bankruptcy

court issued a “Notice of Intent to Dismiss Adversary Proceeding

for Want of Prosecution.” In the notice, the bankruptcy court

warned that it would dismiss the adversary proceeding unless
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6The accompanying certificate of notice shows that Matthew

Clark Bures (“Bures”) and Richard Seegman (“Seegman”) received

notice by first class mail. At the time of service, Seegman was

counsel of record for Stein in the adversary proceeding. Burres

was counsel of record for El Dorado but purported to represent

El Dorado as a cross-defendant only. We remain perplexed as to

how an attorney can only represent a party on a cross-claim

(counterclaim in federal parlance) when that cross-claim appears

to arise out of the same nucleus of operative facts. Our

confusion, however, does not affect the disposition of this

appeal.

4

“Plaintiff takes action during the twenty-one day period either

by filing the appropriate order or judgment or by noticing the

matter for hearing.”6

 Dkt. No. 5. In the removed action, the

only entity denominated a “Plaintiff” was El Dorado.

At the time the bankruptcy court issued its April 6, 2011

notice, only four entries appeared on the adversary docket. The

first item was the order transferring the adversary proceeding to

the bankruptcy court, filed on June 29, 2010. The second was a

“Notice of Filing Proceeding on Transfer from Another District,”

filed on June 29, 2010. The third was an “Association of

Counsel,” filed on July 30, 2010. The fourth and final item was

a “Notice of Appearance and Demand for Notices and Papers,” filed

on August 4, 2010. Bures submitted these last two filings on

behalf of El Dorado.

No responses were filed to the court’s notice. The

bankruptcy court thus dismissed the adversary proceeding and all

related cross and counterclaims without prejudice for want of

prosecution on June 6, 2011. At the time the bankruptcy court

granted its motion, the only filing submitted by Stein in the

adversary proceeding was a “Substitution of Attorney,” filed on
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7

As noted in text, attorney Jeffrey Lewis (“Lewis”) did not

substitute in as Stein’s counsel in the adversary proceeding

until April 27, 2011.

8

In his declaration in support of the motion for relief,

Lewis declared as follows:

6. Upon learning that the Court was considering

dismissing the merits, I took the following steps:

(continued...)

5

April 27, 2011.

On June 23, 2011, Stein’s new counsel moved for relief from

the order of dismissal under Rule 9024, which incorporates Civil

Rule 60(b)(1). In his brief in support of the motion, Stein

argued that “the dismissal was a result of inadvertence,

surprise, and excusable neglect.” Stein’s Mem. of Points and

Authorities at 4. Specifically, Stein asserted that because he

was “not the named plaintiff in the case, . . . counsel[7

]

mistakenly assumed that the named plaintiff, El Dorado, would

follow the appropriate Bankruptcy procedures and file the

requisite certificate of compliance with th[e] Court as required

by local rules.” Id. According to Stein, “it came as a complete

surprise . . . that El Dorado took no action in response to the

Court’s notice of its intent to dismiss this matter.” Id. Stein

further contended that if El Dorado had informed Stein of its

intent to abandon the litigation, he “would have taken further

steps to prevent the Court’s . . . order.” Id. at 7. In

addition, Stein maintained that “counsel acted with reasonable

diligence, including contacting th[e] Court to reserve a June 30,

2011 hearing date to conduct a status conference” and contacting

“all counsel for all parties in th[e] matter.”8 Id. at 4. Stein
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8(...continued)

a) I contacted the clerk and reserved a pretrial conference for June 30, 2011. She informed me that

the parties would have to file a joint pre-trial

certificate of compliance in advance of the June 30, 2011

hearing.

b) On April 28, 2011, I contacted the other

parties to this litigation to attempt to meet and

confer . . . . I reminded plaintiff El Dorado Custom

Pools’ counsel, Jennifer Wiener, of the plaintiffs’

obligation to set up a pre-trial conference . . . in

advance of the June 30, 2011 hearing . . . . I have not

been able to locate a substitution of attorney filed by

Ms. Weiner nor have I been able to find a reference to one

on the Court’s docket for this matter.

c) On April 28, 2011, I received an email from

plaintiff El Dorado Custom Pools’ counsel, Jennifer Wiener.

Ms. Wiener advised me that she was no longer counsel for

plaintiff El Dorado Custom Pools. I informed Ms. Wiener

that I had no record of the filing of a substitution of

attorney and that the plaintiff’s rights may be impaired if

she or her client d[id] not take action.

Lewis’ Decl. in Support of Mot. for Relief at 2-3.

9This email read:

Counsel,

As you may recall, I represent Mr. Stein with respect to

litigation involving El Dorado Custom Pools, Bank of

America, and First American Title. You are receiving this

email because you were counsel of record at the time

Mr. Stein removed [these cases to federal court] . . . .

Please be advised that counsel has set a status conference

(continued...)

6

also contended that no party would be prejudiced if the

bankruptcy court granted the motion. The record reflects that

Stein’s counsel emailed information regarding a possible status

conference to interested parties, but it appears that he never

followed through on his promise that a “[f]ormal notice will

follow this email.”9
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9(...continued)

in this matter for June 30, 2011, 2:00 p.m. Formal notice

will follow this email. In advance of that conference we

are required to meet and confer regarding our readiness for

trial . . . . 

By this email, I am requesting that plaintiffs’ counsel

arrange and set up the conference. If you are no longer

counsel of record, please send me a copy of the

substitution of attorney filed with the United States

Bankruptcy Court so that I may remove you from this list.

Email from Lewis (April 28, 2011). The email was not addressed

to Bures, who represented El Dorado as cross-defendants in the

adversary proceeding as of July 30, 2010.

10This varied slightly from the argument offered in the

brief in support of the motion, which Stein based on

“inadvertence, surprise, and excusable neglect.”

7

El Dorado opposed Stein’s motion for relief, requesting that

the bankruptcy court deny the relief sought because: (1) the

bankruptcy court did not have authority to enter final judgment

on Stein’s cross-claims in light of the United States Supreme

Court’s decision in Stern v. Marshall, U.S. , 131 S. Ct.

2594, 180 L. Ed. 2d 574 (2011); (2) Stein had the option to

pursue his claims in state court; and (3) the bankruptcy court

could not hold a jury trial absent the parties’ consent, which,

El Dorado argued, had not been given.

In his reply, Stein first reiterated his argument that the

order of dismissal resulted from mistake, inadvertence, surprise,

or excusable neglect.10 He also asserted that his entitlement to

relief was uncontested, as El Dorado’s opposition contained no

evidence or argument that Stein was not entitled to relief under

any of the grounds set forth in Civil Rule 60(b)(1) and did not

contain any argument or evidence demonstrating prejudice to any
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11Stein did not cite to Pioneer Inv. Servs. Co. v. Brunswick

Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993), or Briones v.

Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1996) (per

curiam), in the papers he submitted in support of the motion for

relief. He similarly did not identify those cases during the

hearing on the motion.

8

party in the event the bankruptcy court granted Stein’s motion.

In addition, Stein argued that the Stern decision did not

preclude the bankruptcy court from granting relief under Civil

Rule 60(b)(1) because even if the bankruptcy court lacked the

authority to enter final judgment, it could still submit proposed

findings of fact and conclusions of law to the district court. 

Alternatively, Stein maintained that Stern was inapplicable. As

to El Dorado’s argument that it did not consent to a jury trial

in bankruptcy court, Stein contended that El Dorado had

previously waived its jury trial right.11

The hearing on the motion was scheduled for July 28, 2011. 

Prior to the hearing, the bankruptcy court issued its tentative

ruling:

First, movant fails to satisfy [the] standard of ‘mistake,

inadvertence or surprise’. The failure of debtor/movant or

plaintiff to do anything for 12 months is hardly a

surprise; it is certainly not excusable or inadvertent.

The failure of plaintiff to respond to debtor’s request to

meet and confer does not excuse debtor’s failure to notice

a pretrial status conference for its cross-complaint and

file a certificate of compliance re: early meeting of

counsel as required by LBR 7016-2(a)-(c) and 7016-3.

Second, if the action is still pending in state court,

[the] Court agrees with opposition [sic] that this court

lacks Constitutional authority to enter a final judgment on

the counterclaims since the recent USSC decision in Stern

v. Marshall [2011 WL 247292 (June 23, 2011)] squarely

applies to these counterclaims. We cannot conduct a jury

trial without consent which the plaintiff refuses to give

and since the state court can conduct a jury trial and, at

least when this case was initially filed, was on the eve of

doing so, judicial economy would be better served by that
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9

court adjudicating this action.

Dkt. No. 15.

At the hearing, Stein argued that if the bankruptcy court

remanded the case to state court, there could be a delay in

getting the case ready for trial. According to Stein, such delay

could be anticipated in light of the “pleadings battle” that was

raging at the time the case was removed to federal court and the

fact that it appeared as though El Dorado and the Heasleys had

obtained replacement counsel. Tr. of July 28, 2001 Hr’g at 3-4.

Stein also argued that he had acted in good faith, pursuing

negotiations and possible resolution with BofA, up until, as

Stein represented, BofA “all of a sudden withdrew its consent to

participate in the mediation . . . .” Id. at 4. These dealings

with BofA, according to Stein, were also another reason for his

“delay in getting to the El Dorado argument.” Id. at 5.

In response, El Dorado maintained that none of Stein’s

arguments “address[ed] the standard of inadvertent excusable

neglect” and that nothing Stein presented “would give him the

right for this Court to reverse its order dismissing th[e] case.” 

Id.

Stein’s reply to these arguments was as follows:

With respect to the Stern case that affects this

Court’s ability to render a jury trial and enter judgment,

I believe the rules still allow, notwithstanding that

decision, this Court to refer this matter to the district

court, either here in the southern district or up in the

central district, for a jury trial.

On the issue of inadvertence and the standard, I

believe the Court has to find that one or more of the

parties would be prejudiced and that we acted in bad faith

and that the delay in prosecuting the case would slow down

the proceedings of this bankruptcy, and I don’t believe any

of those findings can be sustained.
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12As to the Stern issue, the bankruptcy court determined

that “it would be far better to leave [the litigation] in the

state court and let it complete there.” Tr. of July 28, 2011

Hr’g at 7.

10

Id. at 6.

Without addressing the factors Stein mentioned, the

bankruptcy court adopted its tentative ruling at the conclusion

of the hearing. Id. It reasoned:

[T]o get relief from a dismissal, you have to satisfy

the standard of mistake, inadvertence, or surprise; and as

the Court’s tentative observed, the failure of anything to

come to the attention of the Court for 12 months is hardly

a surprise, and it certainly does not appear to be

excusable or inadvertent.

The plaintiff had to respond to the request to meet

and confer, but the debtor could have noticed a pretrial

conference on its cross-complaint and had the burden of

doing so, and doing that which was required under LBR 1716-

2(a) through (c) and 1716-3.

Id. at 6-7.12

The bankruptcy court entered the order denying relief

from its order dismissing the adversary proceeding on

September 6, 2011. Stein timely appealed.

JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C.

§§ 1334 and 157(c)(1). The Panel has jurisdiction under

28 U.S.C. § 158.

ISSUE

Did the bankruptcy court abuse its discretion when it denied

Stein’s motion for relief from the order of dismissal?

STANDARD OF REVIEW

We review a bankruptcy court’s decision to deny a motion
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11

under Civil Rule 60(b) for abuse of discretion. Lemoge v. United

States, 587 F.3d 1188, 1191-92 (9th Cir. 2009); Alonso v.

Summerville (In re Summerville), 361 B.R. 133, 139 (9th Cir. BAP

2007) (citing Hammer v. Drago (In re Hammer), 112 B.R. 341, 345

(9th Cir. BAP 1990), aff’d, 940 F.2d 524 (9th Cir. 1991)).

The abuse of discretion standard has two prongs: “first,

whether the court applied the correct legal standard; and second,

whether the factual findings supporting the legal analysis were

clearly erroneous.” Veal v. Am. Home Mortg. Servicing (In re

Veal), 450 B.R. 897, 915 (9th Cir. BAP 2011) (citing United

States v. Hinkson, 585 F.3d 1247, 1261-63 (9th Cir. 2009) (en

banc)). Where a bankruptcy court has failed to apply the correct

legal standard, “it has ‘necessarily abuse[d] its discretion.’” 

Id. (quoting Hinkson, 585 F.3d at 1261-63) (modifications in

original). We review this prong of the analysis de novo. Id.

Where a bankruptcy court has applied the correct legal standard,

“the inquiry then moves to whether the factual findings made were

clearly erroneous.” Id. (citing Hinkson, 585 F.3d at 1262). See

also Rule 8013. A bankruptcy court’s findings of fact are

clearly erroneous if they are “‘illogical, implausible, or

without support in inferences that may be drawn from the

record.’” Id. (quoting Hinkson, 585 F.3d at 1263).

DISCUSSION

I. The bankruptcy court did not apply the correct legal

standard.

A. Civil Rule 60(b) and the Pioneer-Briones test.

Civil Rule 60(b) applies to bankruptcy proceedings. Rule

9024 (“Rule 60 F.R.Civ.P applies in cases under the
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13After its decision in Briones, 116 F.3d at 381 (holding

that the equitable test set out in Pioneer applies to Civil

Rule 60(b)), the Ninth Circuit refers to this framework as the

Pioneer-Briones test. See, e.g., Lemoge, 587 F.3d 1188; Bateman

v. U.S. Postal Service, 231 F.3d 1220 (9th Cir. 2000). We use

that same appellation here.

12

Code . . . .”). Under Civil Rule 60(b)(1), the bankruptcy court

may grant relief from a final judgment, order, or proceeding for

“mistake, inadvertence, surprise, or excusable neglect.” Civil

Rule 60(b)(1)(emphasis supplied).

To determine whether a party’s neglect is excusable, the

court must consider: “[(1)] the danger of prejudice to the

[opposing party], [(2)] the length of the delay and its potential

impact on judicial proceedings, [(3)] the reason for the delay,

including whether it was within the reasonable control of the

movant, and [(4)] whether the movant acted in good faith.” 

Pioneer, 507 U.S. at 395.

These four factors, however, are “not an exclusive list.” 

Lemoge, 587 F.3d at 1195 (citing Briones, 116 F.3d at 381).13

“The determination as to what sorts of neglect will be considered

‘excusable’ is at bottom an equitable one.” Pioneer, 507 U.S. at

395. See also Bateman, 231 F.3d at 1224 (“We would not

ordinarily reverse a court simply for failing to articulate the

Pioneer and Briones test, as long as it actually engagedin [sic]

the equitable analysis those cases mandate.”). In making that

determination, the court must also consider “all relevant

circumstances.” Id.; Lemoge, 587 F.3d at 1195. Where “prejudice

to the movant . . . is one of the relevant circumstances[,] that

should be considered when evaluating excusable neglect.” Lemoge,
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13

587 F.3d at 1195.

Moreover, the Ninth Circuit has expressly noted that a

party’s failure to either (a) cite Pioneer or Briones or (b) to

discuss any of the factors under the equitable test “d[oes] not

relieve the court of the duty to apply the correct legal

standard.” Bateman, 231 F.3d at 1224 (citation omitted).

B. The bankruptcy court erred when it did not consider all

of the Pioneer-Briones factors, including the risk of

any prejudice to Stein.

On appeal, Stein argues, among other things, that the

bankruptcy court abused its discretion because it did not weigh

all of the Pioneer factors. We agree.

First, the bankruptcy court’s tentative ruling fails to

mention excusable neglect as a separate grounds for granting

relief. The tentative ruling seems to address whether any

alleged “mistake, inadvertence, or surprise” was excusable, but

it contains no language to suggest that term “excusable” was used

in reference to any alleged neglect. Second, the order from

which this appeal arises provides no additional clarification. 

It merely documents the bankruptcy court’s adoption of its

tentative ruling. 

Even if we were, however, to assume that the bankruptcy

court’s tentative ruling and its subsequent order properly

referred to excusable neglect, the remainder of the record shows

that the bankruptcy court did not consider whether its order of

dismissal, though without prejudice as a procedural matter, would
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14From the record, it appears the bankruptcy court did not

consider this factor, as well as the remainder of the PioneerBriones factors.

14

present a risk of any actual prejudice to Stein.14 In

particular, the record reflects that the bankruptcy court did not

consider the effect its order would have on Stein’s ability to

litigate his claims in state court.

We acknowledge that Stein did not specifically refer to

Pioneer or to Briones in the papers he submitted in support of

the motion for relief; nor did he mention the cases during the

hearing on the motion. In this case, however, Stein’s failure to

cite the relevant authorities did not relieve the bankruptcy

court of its duty to apply the correct legal standard. See

Bateman, 231 F.3d at 1224.

Moreover, at the hearing, Stein did mention a number of the

factors courts are to consider when deciding a motion under Civil

Rule 60(b)(1):

On the issue of inadvertence and the standard, I believe

the Court has to find that one or more of the parties would

be prejudiced and that we acted in bad faith and that the

delay in prosecuting the case would slow down the

proceedings of this bankruptcy, and I don’t believe any of

those findings can be sustained.

Tr. of July 28, 2011 Hr’g at 6.

Without addressing these factors, however, the bankruptcy

court adopted its tentative ruling at the conclusion of the

hearing, adding only that:

I think [El Dorado] is correct that, to get to relief

from a dismissal, you have to satisfy the standard of

mistake, inadvertence or surprise; and as the Court’s

tentative observed, the failure of anything to come to the

attention of the Court for 12 months is hardly a surprise,

and it certainly does not appear to be excusable or
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inadvertent . . . .

[T]he debtor could have noticed a pretrial conference

on its cross-complaint and had the burden of doing so, and

doing that which was required under LBR 1716-2(a) through

(c) and 1716-3.

Id. at 6-7.

As set forth above, when deciding whether relief is

appropriate under Civil Rule 60(b)(1) on the grounds of excusable

neglect, the Pioneer-Briones test requires that the bankruptcy

court consider all four factors. See Bateman, 231 F.3d at 1224

(“The court would have been within its discretion if it spelled

out the equitable test and then concluded that [the moving party]

had failed to present any evidence relevant to [those]

factors.”). Under the circumstances of this case, the PioneerBriones test also requires that the bankruptcy court consider any

prejudice to the movant. See Lemoge, 587 F.3d at 1195.

While Stein’s counsel may have been negligent or careless,

“[t]hat . . . represents the beginning of [the] inquiry as to

whether the negligence is excusable, not the end of it.” See

Pincay v. Andrews, 389 F.3d 853, 858-59 (9th Cir. 2004) (en banc)

(district court did not abuse its discretion by granting, on the

grounds of excusable neglect, an extension to file a notice of

appeal where counsel had delegated the task to a paralegal who

had misread Fed. R. App. P. 4(a)). See also Pioneer, 507 U.S. at

394 (“Thus, at least for the purposes of [Civil] Rule 60(b),

‘excusable neglect’ is understood to encompass situations in

which the failure to comply with a filing deadline is

attributable to negligence.”); Bateman, 231 F.3d at 1225

(reversing and remanding to the district court with instructions
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to grant relief under Civil Rule 60(b)(1) even though counsel,

who was aware of an upcoming summary judgment motion, left the

country without filing a response or seeking an extension of the

filing deadline).

Here, the procedural posture of the adversary proceeding

makes the inquiry as to the risk of prejudice to the movant,

which the bankruptcy court did not conduct, all the more crucial. 

Based on the record, it appears that the bankruptcy court’s

ruling was premised on the availability of the state court as an

alternate and more appropriate forum for the litigation. Absent

from the record, however, are any indicia that the bankruptcy

court considered whether the removal of the state court

litigation to bankruptcy court had effectively undermined that

premise. Simply put, nothing in the record suggests that the

bankruptcy court assessed whether Stein could litigate his claims

in state court without an order of remand from the bankruptcy

court. See Rule 9027(c) (“Promptly after filing the notice of

removal, the party filing the notice shall file a copy of it with

the clerk of the court from which the claim or cause of action is

removed. . . . The parties shall proceed no further in that

court unless and until the claim or cause of action is

remanded.”).

Accordingly, we conclude that the bankruptcy court did not

conduct the equitable analysis Pioneer and Briones require. We

therefore agree with Stein insofar as he challenges whether the

bankruptcy court applied the correct legal standard.

CONCLUSION

For the reasons set forth above, we REVERSE the bankruptcy
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15Because we reverse with respect to the bankruptcy court’s

application of the Pioneer-Briones test, we need not address the

portion of its order that suggests Stern renders Stein’s claims

ineligible for final adjudication by the bankruptcy court.

To the extent the parties dispute the issue of costs on

appeal, costs shall be allowed as provided for in Rule 8014.

17

court’s order denying relief from its order dismissing the

adversary proceeding and REMAND this matter to the bankruptcy

court.15 On remand from this panel, the bankruptcy court may

consider whether remand to the California Superior Court is

appropriate under the circumstances.