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1 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.

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UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. NC-12-1160-PaMkH

)

KENNETH BRUCE TISHGART and LORI ) Bankr. No. 09-13400

ANNE TISHGART, )

) Adv. Proc. 10-1087

Debtors. )

___________________________________)

)

KENNETH BRUCE TISHGART; )

LORI ANNE TISHGART, )

)

Appellants, )

)

v. ) M E M O R A N D U M1

)

TIMOTHY W. HOFFMAN, Trustee, )

)

Appellee. )

___________________________________)

Argued and Submitted on October 18, 2012,

at San Francisco, California

Filed - November 13, 2012

Appeal from the United States Bankruptcy Court

for the Northern District of California

Honorable Alan Jaroslovsky, Chief Bankruptcy Judge, Presiding 

Appearances: Appellant Kenneth Bruce Tishgart argued pro se; 

Katherine D. Ray of Goldberg, Stinnett, Davis &

Linchey argued for appellee Timothy W. Hoffman,

Trustee. 

Before: PAPPAS, MARKELL and HOLLOWELL, Bankruptcy Judges.

FILED

NOV 13 2012

SUSAN M SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
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2

 Unless otherwise indicated, all chapter, section and rule

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

to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037. 

The Federal Rules of Civil Procedure are referred to as Civil

Rules.

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Appellants Kenneth Bruce Tishgart (“Tishgart”) and Lori Anne

Tishgart (together, “Debtors”) appeal the bankruptcy court’s

judgment awarding appellee, chapter 72 trustee Timothy W. Hoffman

(“Trustee”), $69,837.90, representing the bankruptcy estate’s

interest in certain contingent fees received by Tishgart from his

legal practice. We AFFIRM.

FACTS

Debtors filed a chapter 7 petition on October 15, 2009. At

the time, Tishgart was an attorney with a solo practice

specializing in personal injury claims. Tishgart’s practice

consisted primarily of representing plaintiffs in personal injury

cases, and he ordinarily entered into contingent fee agreements

with his clients. At the time of filing the bankruptcy petition,

Tishgart was representing over sixty clients for whom he had

provided legal services and for which Tishgart had not been paid

in full. Debtors did not list Tishgart’s interest in these fees

in their bankruptcy schedules.

Trustee commenced an adversary proceeding against Debtors on

July 27, 2010. In his complaint, Trustee sought a declaratory

judgment determining the extent of the bankruptcy estate’s

interest under § 541(a) in the contingent fees collected by

Tishgart after the bankruptcy filing for those cases undertaken by

Tishgart prepetition. He also sought turnover of the estate’s

interest in those fees under § 542(a).
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3 On May 13, 2011, in connection with an earlier discovery

dispute wherein Trustee alleged that Debtors were not fully

cooperating, the bankruptcy court approved the withdrawal of

Debtors’ counsel, and awarded sanctions against Debtors of $1,875

under Civil Rule 37(a)(5)(A), applicable in adversary proceedings

via Rule 7037.

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On October 7, 2011, Trustee propounded 101 Requests for

Admission (“RFA”) to Debtors.3 The RFAs identified fifteen

personal injury cases in which fees were allegedly paid to

Tishgart within ninety days after the petition date (the “Fifteen

Cases”). These RFAs sought Debtors’ admission that Tishgart had

“provided little or no legal services” in the Fifteen Cases after

the petition date. Debtors’ responses to the RFAs were due on

November 9, 2011. Debtors did not respond to the RFAs by the

deadline, nor did they seek an extension of time to do so and, as

a result, under Civil Rule 36(a)(3)/Rule 7036, the RFAs were

deemed admitted.

On November 18, 2011, Trustee filed a motion for summary

judgment based on the deemed admissions, requesting that all fees

paid to Tishgart related to the Fifteen Cases be turned over to

Trustee. A hearing on the summary judgment motion occurred on

December 23, 2011. The bankruptcy court granted the motion, but

only in part, awarding $3,600 paid to Tishgart in one case

involving Pedrou Ferrer (“Ferrer”) to Trustee. The court’s order

noted that the motion had been granted based on the deemed

admissions, and for the reasons stated on the record. There is no

transcript of this hearing in the excerpts of record or in the

bankruptcy court’s docket.

Debtors then filed two Motions for Relief from Late Response

to Discovery. In a December 12, 2011 motion, Debtors sought
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relief because their failure to timely deny the RFAs was the

result of mistake, inadvertence, or excusable neglect. This

motion was not accompanied by a notice of hearing and, because of

this, the bankruptcy court denied it by docket entry as an

inappropriate ex parte motion.

Debtors refiled the motion on December 30, 2011, accompanied

by a notice setting the motion for a hearing on January 27, 2012. 

However, that date fell after the January 13, 2012, discovery

cutoff date, and only about two weeks before the scheduled trial

date set by the court. In this motion, Debtors argued that

withdrawal of the deemed admissions would allow the parties to

address the merits of the action, and that Trustee would not be

prejudiced because discovery remained open. Trustee filed a

response noting that, contrary to Debtors’ argument, the discovery

cutoff date had passed, and that he would be prejudiced because

the trial was set to begin shortly and his preparation for trial

assumed that he could rely upon the deemed admissions. A

transcript of the January 27, 2012 hearing on Debtors’ motion is

not included in the excerpts of record or the bankruptcy court’s

docket. On February 10, 2012, the bankruptcy court denied

Debtors’ request “for the reasons stated by the court at the

hearing.”

The trial took place on February 14, 2012. Trustee was

represented by counsel; Tishgart appeared pro se. Tishgart was

the only witness. Trustee presented documentary evidence

concerning eleven of the Fifteen Cases, and Tishgart was examined

about each of them. Tishgart presented no documentary evidence to

support his testimony. After closing arguments, the bankruptcy
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4

 The bankruptcy court awarded the entire $14,800 of fees

Tishgart received in the Brown case to Trustee. However, before

entry of judgment, Trustee withdrew his request for turnover of

these fees that had been paid to Tishgart over a year after the

petition was filed.

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court took the issues under submission.

In a March 6, 2012 Memorandum Decision, the bankruptcy court

observed that the dispositive legal issue in the contest concerned

the amount of the fees from Tishgart’s cases which were property

of the bankruptcy estate. In determining the amount Tishgart

should be able to retain from the fees he received after the

filing of his petition, the court analogized the facts of the case

to a situation where Tishgart’s employment had been terminated by

the client on the petition date. The court then analyzed the

issues under both Federal and California state law. The court

concluded, in part, that:

In this case, Tishgart is deemed to have admitted that

he provided little or no services in the cases at issue

after bankruptcy. He has given the court scant basis

for differentiating between his prepetition and

postpetition work on the cases, which is the only

possible basis for avoiding the preclusive effect of

[In re Jess, 169 F.3d 1204 (9th Cir. 1999), the

principal federal case]. The court would be justified

in awarding almost all the fees in question to Hoffman. 

However, in the spirit of fairness the court will not be

quite so harsh.

Memorandum of Decision at 3, March 6, 2012. The court noted that

it had already awarded to Trustee all $3,600 of the fees Tishgart

received post-petition in the Ferrer case in the partial summary

judgment. Of the $130,475.80 received by Tishgart in question for

the rest of the Fifteen Cases, the court awarded half of that

amount to Trustee, and half to Debtors.4

A judgment against Debtors and in favor of Trustee for
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$69,837.90 plus interest was entered on March 15, 2012. Debtors 

timely appealed.

JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334

and 157(b)(2)(A) and (E). We have jurisdiction under 28 U.S.C.

§ 158.

ISSUE

Whether the bankruptcy court abused its discretion in denying

Debtors’ request to withdraw the deemed admissions.

Whether the bankruptcy court erred in ordering turnover of

$69,837.90 of the fees Tishgart received after the petition date

to Trustee as property of the estate.

STANDARDS OF REVIEW

The denial of a motion to withdraw a deemed admission is

reviewed for abuse of discretion. Jules Jordan Video v. 144942

Canada, Inc., 617 F.3d 1146, 1158 (9th Cir. 2012). In determining

whether a bankruptcy court abused its discretion, we review

whether the bankruptcy court applied the correct rule of law. 

United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009)

(en banc). We then determine whether the court’s application of

that rule was illogical, implausible, or without support in

inferences that may be drawn from the facts in the record. Id.

(quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564,

577 (1985)).

Whether property is included in a bankruptcy estate, and the

propriety of the procedures employed for recovering estate

property, are questions of law that we review de novo. White v.

Brown (In re White), 389 B.R. 693, 698 (9th Cir. BAP 2008).
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DISCUSSION

I. The bankruptcy court did not abuse its discretion in denying

Debtors’ request to withdraw the deemed admissions.

Civil Rule 36 governs the use of requests for admission in

civil actions. It is applicable in bankruptcy adversary

proceedings. Rule 7036. Civil Rule 36 provides in relevant part:

Rule 36. Requests for Admission 

(a) Scope and Procedure.

(1) Scope. A party may serve on any other

party a written request to admit, for purposes

of the pending action only, the truth of any

matters within the scope of Rule 26(b)(1)

relating to: (A) facts, the application of

law to fact, or opinions about either; and

(B) the genuineness of any described

documents. . . . 

(3) Time to Respond; Effect of Not Responding.

A matter is admitted unless, within 30 days

after being served, the party to whom the

request is directed serves on the requesting

party a written answer or objection addressed

to the matter and signed by the party or its

attorney. . . .

(4) Answer. If a matter is not admitted, the

answer must specifically deny it or state in

detail why the answering party cannot

truthfully admit or deny it. A denial must

fairly respond to the substance of the

matter[.]

(b) Effect of an Admission; Withdrawing or Amending It.

A matter admitted under this rule is conclusively

established unless the court, on motion, permits the

admission to be withdrawn or amended. Subject to

Rule 16(e), the court may permit withdrawal or amendment

if it would promote the presentation of the merits of

the action and if the court is not persuaded that it

would prejudice the requesting party in maintaining or

defending the action on the merits.

Absent a motion for an extension of time, a party’s failure

to timely respond to a request for admission within the thirty-day

limit established by Civil Rule 36(a)(3) results in the admission
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being conclusively deemed admitted. Conlon v. United States,

474 F.3d 616, 621 (9th Cir. 2007). In this appeal, it is not

disputed that Trustee properly served the RFAs on Debtors,

including requests specifically addressed to the Fifteen Cases. 

These RFAs requested that Tishgart admit that he "provided little

or no legal services" in each of the Fifteen Cases after the

petition date. Debtors admit that they did not timely respond to

any of the Trustee’s 101 RFAs within the thirty-day period allowed

by the rules. Thus, under both the rules and case law, that

Tishgart provided little or no services post-petition on the

Fifteen Cases was deemed conclusively admitted in the adversary

proceeding.

Although treating a request for admission that is not timely

disputed or contested as a conclusively deemed admission is

mandatory, and does not require court action, in the exercise of

its discretion, a trial court may allow an admission to be

withdrawn, but only under statutorily prescribed rules. Asea,

Inc. v. S. Pac. Transp. Co., 669 F.2d 1242, 1248 (9th Cir. 1981). 

Civil Rule 36(b) vests the bankruptcy court with discretion to

grant relief from an admission made under Rule 36(a) only when

"the presentation of the merits of the action will be subserved,"

and "the party who obtained the admission fails to satisfy the

court that withdrawal or amendment will prejudice that party in

maintaining the action or defense on the merits." Civil

Rule 36(b); Conlon 474 F.3d at 621; Hadley v. United States,

45 F.3d 1345, 1348 (9th Cir. 1995). Other circuits agree with the

Ninth Circuit that withdrawal of an admission may only be made

where both of the conditions of Civil Rule 36(b) are satisfied.
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See Carney v. IRS (In re Carney), 258 F.3d 415, 419 (5th Cir.

2001) ("[A] deemed admission can only be withdrawn or amended by

motion in accordance with Rule 36(b)."); Donovan v. Carls Drug

Co., 703 F.2d 650, 652 (2d Cir. 1983) (same).

Here, the bankruptcy court considered Debtors’ request to

withdraw the deemed admissions at the hearing on January 27, 2012,

and, following that hearing, denied the request “for the reasons

stated by the Court at the hearing.” Debtors did not provide the

Panel a transcript of the hearing, nor is it available in the

docket of the adversary proceeding. We have carefully examined

the record, both before and after the January 27, 2012, hearing,

and no where does the bankruptcy court explain its reasons for

denying Debtors’ request to withdraw the deemed admissions other

than in the order issued as a result of the January 27, 2012

hearing.

If a bankruptcy court’s findings of fact and conclusions of

law are made orally on the record, a transcript of those findings

is mandatory for the Panel’s appellate review. In re McCarthy,

230 B.R. 414, 416 (9th Cir. BAP 1999). Moreover, where the

inadequacy of the record provided to the Panel affords no basis to

review the decision of the bankruptcy court, we may summarily

affirm the bankruptcy court’s ruling. Ehrenberg v. Cal. State

Univ., Fullerton Found. (In re Beachport Entm't), 396 F.3d 1083,

1087-88 (9th Cir. 2005); Morrissey v. Stuteville (In re

Morrissey), 349 F.3d 1187, 1189 (9th Cir. 2003)(failure to provide

a critical transcript may result in summary affirmance). 

Rule 8009(b)(5) provides that the appellant’s excerpts must

include “[t]he opinion, findings of fact, or conclusions of law
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filed or delivered orally by the [bankruptcy] court . . . .” 

Rule 8009(b)(9) requires that the excerpts include “[t]he

transcript or portion thereof, if so required by a rule of the

bankruptcy appellate panel.” Our rules state that “the excerpts

of record shall include the transcripts necessary for adequate

review in light of the standard of review to be applied to the

issues before the Panel.” Ninth Circuit BAP R. 8006-1. The

advisory note to this BAP rule explains, “If findings of fact and

conclusions of law were made orally on the record, a transcript of

those findings is mandatory.”

Debtors’ failure to provide an adequate record of the reasons

for the bankruptcy court’s ruling denying their request to allow

them to withdraw the deemed admissions would likely allow us to

summarily affirm that ruling. However, we are mindful of the

instructions of the Ninth Circuit in Beachport Entm’t that we

should not summarily rule without first determining if there are

other grounds in the record for affirming a bankruptcy court’s

actions. 

In this case, Tishgart submitted a sworn declaration in

support of his request to withdraw the deemed admissions. In that

declaration, Tishgart asserts that he moved his office on

November 2, 2011, and “misplaced” the RFAs. Tishgart fails to

note in that declaration, however, that he sent a letter to

Trustee’s counsel on October 26, 2011, that acknowledged receipt

of the RFAs, and indicated that he would “endeavor to respond to

the remaining discovery as soon as practicable.” Ray [attorney

for Trustee] Dec. at ¶ 2, January 13, 2012. While Tishgart has

thus admitted to having the RFAs two weeks before the thirty-day
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5 Tishgart apparently confuses the Civil Rule 36(b) grounds

for withdrawal of admissions with those applicable under Civil

Rule 60(b)(1) for relief from a judgment or order. There was no

order entered by which the admissions were deemed admitted; Civil

Rule 36(a) is self-effectuating and a court order is not required. 

Thomas v. Bonilla, 2011 WL 4527399 at *1 (E.D. Cal. 2011). Civil

Rule 60(b)(1) is not applicable.

-11-

response deadline, he claims to have misplaced them a week before

the deadline. Tishgart explains that his failure to timely

respond to the requests for admission was the result of

“inadvertence, mistake, or excusable neglect.”5

 In his

declaration, Tishgart argues that he was proceeding pro se, did

not practice in federal court, and was unable to hire a bankruptcy

specialist. Tishgart Dec. at ¶¶ 4-5.

Tishgart’s explanation in his declaration for Debtors’

failure to timely respond to the RFAs lacks merit. Tishgart is an

attorney who has been involved in a litigation practice. While

this issue arises in the context of a bankruptcy adversary

proceeding applying the federal discovery rules, the Panel is

skeptical that Tishgart was unfamiliar with the consequences of

failure to timely respond to a request for admission under federal

discovery rules. Even if so, Tishgart undoubtedly had the ability

to obtain knowledge of the rules, and to comply with the

procedural and substantive law outside his professional

specialization. Godlove v. Bamberger, Foreman, Oswald, & Hahn,

903 F.2d 1145, 1148 (7th Cir. 1991)("a pro se lawyer is entitled

to no special consideration"); see also Leeds v. Meltz,

898 F.Supp. 146, 149 (E.D.N.Y. 1995), aff'd, 85 F.3d 51 (2d Cir.

1996) (pro se attorney not entitled to the liberality normally

afforded pro se litigants). Therefore, there was considerable
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room for the bankruptcy court to doubt Debtors’ allegation that

their failure to timely respond to the RFAs was either inadvertent

or excusable. 

Debtors submitted a Memorandum of Law to the bankruptcy court

to support their request for relief from the deemed admissions in

which they more directly address the two grounds for granting a

request to withdraw an admission under Civil Rule 36(b): 

[A]llowing such withdrawal will allow the presentation

of the merits in this matter rather than them being

extinguished by responses to requests for

admission. . . . Granting this motion will in no way

prejudice the requesting party in maintaining its

action. It simply must respond to the merits of the

case and all available rights and discovery remain open

to it.

Trustee’s Opposition to Defendants’ Motion for Relief also

addressed the criteria under Civil Rule 36(b). Trustee noted that

Tishgart had a history of resistance to his discovery requests,

and had already been sanctioned by the court for his

intransigence. Trustee argued that Debtors did not fail to

respond due to inadvertence, mistake or excusable neglect —

Debtors admitted negligence, and it was not excusable. Tishgart

acknowledged that he had the RFAs in his possession and simply

misplaced them. Trustee argued that because Tishgart is an

attorney, he is presumably knowledgable about the consequences of

a failure to meet discovery deadlines, or to properly safeguard

documents. Trustee pointed out that Debtors apparently let the

response deadline pass before asking for another copy of the RFAs;

another three weeks passed before they submitted responses; and

Debtors did not request relief from the deemed admissions until

some six weeks after the response deadline.
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6 Again, we must assume what occurred because we do not have

the transcript of the summary judgment hearing. However, Trustee

argued in his summary judgment motion that Civil Rule 36 applied,

and that Debtors’ failure to answer the RFAs resulted in the

deemed admissions. Debtors did not respond to the Civil Rule 36

issue in their opposition to summary judgment.

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Trustee also credibly asserted that withdrawal of the deemed

admissions would hinder, not promote, presentation of the merits

of the case. The bankruptcy court had already entered partial

summary judgment in the Ferrer case, based on the deemed

admissions, something that Debtors apparently did not challenge at

the summary judgment hearing.6 Withdrawal of the admissions could

potentially lead to relitigation of the partial summary judgment

decision, unnecessarily delaying the trial. 

Further, as the bankruptcy court would later find in the

Memorandum, the deemed admissions did not comprehensively settle

the merits of the contest. Although they conclusively established

that Tishgart provided little or no services on the relevant cases

post-petition, the bankruptcy court was still required to

determine the value of whatever prepetition and post-petition

services Tishgart provided, and whether those few post-petition

services might be valued higher than the prepetition services.

As to the prejudice to Trustee, he argued that he had already

prevailed in the partial summary judgment order, which was based

in part on the deemed admissions, and he would be prejudiced by

the possibility of relitigating that order. Further, the period

for discovery had ended and Trustee relied on the admissions to

eliminate the need for further investigation.

While we do not know the precise reasons for its ruling,

given these circumstances, we can comfortably conclude that the
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7

 Evaluating the second half of the test is more problematic

in this case. The bankruptcy court could have considered the

additional burden placed on Trustee by having to relitigate the

partial summary judgment, and that additional discovery may not be

available. However, Trustee’s concern that discovery was no

longer available is less persuasive. The Ninth Circuit has ruled

that closed discovery does not constitute prejudice, because

discovery can always be reopened by the court. Conlin, 474 F.3d

at 624. Based on review of the record before us, we cannot

determine if the second half of the Civil Rule 36(b) test was

satisfied.

Nevertheless, both parts of the test must be satisfied. By

(continued...)

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bankruptcy court did not abuse its discretion in denying Debtors’

request to withdraw the deemed admissions. Civil Rule 36(b)

provides that the trial court may permit withdrawal only if both

the criteria expressed therein are satisfied, that is, that

withdrawal would promote the presentation of the merits of the

action, and that the court was not persuaded that withdrawal would

prejudice the requesting party in maintaining or defending the

action on the merits. Conlon, 474 F.3d at 624. 

The Ninth Circuit has provided clear directions on the first

prong. “The first half of the test in Rule 36(b) is satisfied

when upholding the admissions would practically eliminate any

presentation of the merits of the case.” Hadley, 45 F.3d at 1348. 

Trustee argued, and the bankruptcy court apparently agreed, that

the deemed admissions implicated only the first element in

considering the merits of the case. The court still had to take

evidence on the specifics of the services and value of the

particular prepetition vs. post-petition services. Thus,

upholding the deemed admissions would not “practically eliminate”

any presentation on the merits. The first half of the Civil

Rule 36(b) test is not satisfied.7
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7(...continued)

its own later determination that the deemed admissions were only

one part of the merits analysis, we infer that the bankruptcy

court was aware that upholding the admissions would not

"practically eliminate" any presentation on the merits and, thus,

the first part of the Civil Rule 36(b) test was not met. 

Consequently, we conclude that the court did not abuse its

discretion in denying the request to withdraw the admissions.

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The bankruptcy court did not abuse its discretion in denying

Debtors’ request for relief from the deemed admissions.

II. The bankruptcy court did not err in ordering turnover of

$69,837.90 of Tishgart's fees to Trustee as property of the

estate.

 Debtors’ bankruptcy estate came into existence when they

filed their chapter 7 petition. §§ 301, 302. Notwithstanding

certain specified exceptions, the bankruptcy estate includes all

legal and equitable interests in property held by Debtors at the

time of filing. § 541(a). Section 541(a) also specifies that the

bankruptcy estate encompasses all "proceeds, product, offspring,

rents, or profits of or from property of the estate, except such

as are earnings from services performed by an individual debtor

after the commencement of the case." § 541(a)(6).

Most if not all of the contingent fees received by Tishgart

in the Fifteen Cases were received after the filing of the

petition. At least on its surface, then, § 541(a)(6) would seem

to exclude from property of the estate contingent fees received

post-petition. However, it has long been established that

payments for pre-petition services are not excludable from the

estate solely because they were received post-petition and

additional services were required to receive payment. Rau v.

Ryerson (In re Ryerson), 739 F.2d 1423, 1425-26 (9th Cir. 1984);
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In re Wu, 173 B.R. at 414-15. The estate is entitled to recover

the portion of post-petition payments attributable to pre-petition

services. Jess v. Carey (In re Jess), 169 F.3d 1204, 1208 (9th

Cir. 1999). 

Debtors argue that the value of Tishgart’s prepetition

services on the relevant cases or, in other words, the amount to

be turned over to Trustee, should be measured solely by the total

hours he testified that he worked prepetition on those cases

multiplied by an hourly rate of $102.50. Debtors seem to argue

that hours spent are fungible assets, where an hour spent

prepetition has the same value as an hour spent later in the case. 

This use of an exclusively lodestar approach to valuing Tishgart’s

services overlooks an important distinction in bankruptcy law

regarding property of the estate. Federal law, specifically 

§ 541(a), holds that a debtor’s bankruptcy estate includes all

legal and equitable interests in property held by the debtor at

the time of filing. Those interests include contingent fee

payments to a lawyer in bankruptcy and owed on the petition date.

In re Jess, 169 F.3d at 1208. The Ninth Circuit has held that the

contingent fee is payable to the bankruptcy estate, less the value

of post-petition services necessary to obtaining the payments:

[A] court must first determine whether any postpetition

services are necessary to obtaining the payments at

issue. If not, the payments are entirely "rooted in the

pre-bankruptcy past," and the payments will be included

in the estate. If some postpetition services are

necessary, then courts must determine the extent to

which the payments are attributable to the postpetition

services and the extent to which the payments are

attributable to prepetition services. That portion of

the payments allocable to postpetition services will not

be property of the estate.

Id. at 1208.
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In the Jess case, the Ninth Circuit determined that

78 percent of the debtor-attorney’s work, based on recorded hours,

was performed prepetition, and thus the fees for those services

were property of the bankruptcy estate. Id. at 1206. The Jess

court, however, cautioned that counting the number of hours

expended by the debtor prepetition and post-petition was not

necessarily the correct procedure for determining the relative

value of pre- and post-petition services:

We should note that Jess made no attempt in the

bankruptcy court to place a greater value on his

post-petition hours than on his pre-petition hours.

Thus, all of Jess's hours were valued equally. We

recognize that in a different context it might be

possible to establish that hours worked at different

stages of a case may have different values. 

Id. at 1208 n.4.

This led the bankruptcy court to the other side of the

property of the estate coin. While Federal law determines what

interests or assets of the debtor at the time of filing a

bankruptcy petition become property of the estate, it does not

settle questions of the existence and scope of the debtor’s

interest in a given asset. We resolve those questions by

reference to state law. Butner v. United States, 440 U.S. 48, 55

(1979) (“Property interests are created and defined by state law.

Unless some federal interest requires a different result, there is

no reason why such interests should be analyzed differently simply

because an interested party is involved in a bankruptcy

proceeding.”).

The bankruptcy court properly consulted California state law

to determine the value of attorney services on a contingent basis

where the attorney was terminated before payment was received. A
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recent decision of the California Court of Appeals, not cited by

the bankruptcy court, provides insight into quantum meruit

determinations in contingent fee cases under California law.

[A] contingency fee lawyer discharged prior to

settlement may recover in quantum meruit for the

reasonable value of services rendered up to the time of

discharge. . . . The most useful starting point for

determining the amount of a reasonable fee is the number

of hours reasonably expended on the litigation

multiplied by a reasonable hourly rate. This

calculation provides an objective basis on which to make

an initial estimate of the value of a lawyer's services.

. . . However, providing evidence as to the number of

hours worked and rates claimed is not the end of the

analysis in such a quantum meruit action. The party

seeking fees must also show the total fees incurred were

reasonable. Factors relevant to that determination

include "[t]he nature of the litigation, its difficulty,

the amount involved, the skill required in its handling,

the skill employed, the attention given, the success or

failure of the attorney's efforts, the attorney's skill

and learning, including his [or her] age and experience

in the particular type of work demanded.”

Mardirossian & Associates, Inc. v. Ersoff, 153 Cal. App. 4th 257,

273 (Cal. Ct. App. 2007). (Emphasis added, internal citations

omitted). 

Thus, under the prevailing guidelines in California case law,

the quantum meruit value of the services performed by an attorney

who is terminated before recovery on a contingent fee case does

not end with a lodestar analysis. Instead, trial courts must look

beyond the hours worked to consider other factors, including the

results achieved. As the bankruptcy court observed, the dispute

in this case is comparable to a hypothetical case in which an

attorney worked ten hours on a case, was terminated, another

attorney worked ten hours and achieved a $100,000 settlement. 

Should the attorneys split the fees 50/50, as Tishgart would

suggest, or should the court conduct an inquiry into whether the
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first attorney had greater or lesser responsibility for achieving

the results? 

The requirement that a trial court look beyond the hours

worked by the attorney to consider other factors, including the

results achieved, appears in other California cases. In a case

cited by Debtors, Fricasse v. Brent, 6 Cal.3d 784, 791 (1972), the

California Supreme Court considered a situation where an attorney

devoted considerable efforts to a case, was discharged, and the

client achieved a settlement. The court awarded fees based on its

findings of whether the attorney’s work was principally

responsible for the recovery. 

In addition, in Padilla v. McClellan, 93 Cal. App.4th 1100,

1103 (Cal. Ct. App. 2001), the court considered a case dealing

with a probate settlement, where an attorney worked on the case

for a year, was discharged, and succeeded by another attorney who

achieved the settlement. The court awarded fees to the attorneys

based not only on respective hours spent on the case by the

attorneys, but also based on the court’s view of what the court

perceived to be the results each attorney achieved.

Indeed, the California courts have explicitly rejected

Debtors’ argument that the quantum meruit standard is based

strictly on hours worked:

Because the hourly fee is the prevailing price structure

in the legal profession, it is sometimes assumed that

the quantum meruit standard applied to legal services

includes nothing more than a reasonable hourly rate

multiplied by the amount of time spent on the

case. . . . However, this is an overly narrow view of

the quantum meruit standard applied in the area of

contingent fee agreement which, through no fault of

either party, could not be performed.

Cazares v, Saenz, 208 Cal. App.3d 279, 286-87 (Cal. Ct. App.
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1989).

In short, California case law does not support Debtors’

argument that the value of Tishgart’s services on the Fifteen

Cases to be turned over to Trustee must be determined solely by

reference to the number of hours Tishgart actually spent

prepetition on the cases. Instead, state law requires a court to

look beyond the hours spent and consider other factors, including

the results Tishgart achieved.

The bankruptcy court found that Tishgart had provided little

information on his post-petition activities in the relevant cases. 

“He has given the court scant basis for differentiating between

his prepetition and postpetition work on the cases.” Memorandum

at 3. 

The evidentiary record supports the bankruptcy court’s

observations. Through the various interrogatories and answers

admitted into evidence, the court had information about each of

the Fifteen Cases, including clients, dates, and amounts paid. 

Trustee’s exhibits on eleven of the Fifteen Cases, with additional

documentation obtained from Tishgart’s files, were also admitted

into evidence. Debtors provided no exhibits or documentary

support for Tishgart’s testimony. 

Tishgart was examined under oath regarding the cases. He

admitted that he kept no time records and any testimony he offered

on the time he spent on each case was an estimate. Trial

Tr. 15:12-19, February 14, 2012. His testimony was at times

inconsistent. Regarding the Faust case, for example, in which the

client received a $100,000 settlement, Tishgart originally denied

that it had settled before the petition date. Trial Tr. 20:23. 
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When presented with documentary evidence from his stipulations in

an earlier state court proceeding in the Faust case, he admitted

that the settlement agreement had been reached and a motion to

approve the settlement was submitted prepetition. Trial

Tr. 22:2-17. The bankruptcy court could be justifiably skeptical

of Tishgart’s testimony that he only spent two hours prepetition

on this case.

Regarding the San Miguel case, for which Tishgart received

one of his largest fees of $47,500, Tishgart only claimed one hour

of prepetition services. Yet Tishgart’s own files, obtained by

Trustee and admitted into evidence, showed that Tishgart had

interviewed his client, and drafted the complaint initiating the

lawsuit on behalf of San Miguel over a year before the petition.

There had been at least one case management conference, Tishgart

had submitted discovery responses, been involved in discovery

disputes, and had selected mediators, all before the petition

date. Trial Tr. 35:ER at 130-59. As to post-petition actions,

Tishgart testified:

RAY (attorney for Trustee): So what did you do after the

petition date to earn that $47,500 in fees, specifically

services you performed?

TISHGART: Well, you asked me two questions. The fees

are earned as a result of a contingency. I can’t answer

the question what I did after the petition date to work

on the case.

Trial Tr. 36:13-17.

Tishgart answered questions about the other cases in a

similar vein, discussing prepetition services with frequent

inconsistencies, and post-petition services in general terms

without specific reference to actual time spent. The bankruptcy
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court did not err in its conclusion that: "[Tishgart] has given

the court scant basis for differentiating between his prepetition

and postpetition work on the cases." Memorandum at 3. 

What is certain, as observed by the bankruptcy court, was

that Tishgart had been deemed to admit that he performed little or

no services post-petition on the Fifteen Cases. Thus, the court

could reasonably infer that whatever services Tishgart performed

prepetition were critical to the results achieved, and to the 

contingent fee payments made, and that the prepetition services

were of more value than the “little or no services” performed

after the bankruptcy filing. 

In sum, absent more evidentiary support for Debtors’

position, the bankruptcy court would not have erred if it had

concluded that it was justified in “awarding almost all of the

fees in question to [Trustee].” Memorandum at 3. As a result,

Tishgart is not prejudiced because the court awarded less than

that amount to Trustee. 

But the court was also fully justified in awarding half the

fees to Tishgart. The court noted in its memorandum that it had

reviewed the evidence and documentation on the cases and was not

relying simply on the deemed admissions.

In cases commenced well before the bankruptcy, most of

the work was prepetition. In cases commenced nearer to

the bankruptcy, most of the work was postpetition,

notwithstanding Tishgart’s deemed admission to the

contrary. They pretty much offset each other, so a 50-

50 split seems fair. The court notes that Tishgart did

not keep time records, thereby making it difficult to

divine a fair split more precisely.

Memorandum at 4 n.2.

The bankruptcy court did not err in deciding that Tishgart
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8 Debtors also complain that the bankruptcy court failed to

enter adequate findings of fact pursuant to Civil Rule 52/

Rule 7052. But Civil Rule 52(a)(1) provides that the trial

court’s findings “may appear in an opinion or a memorandum of

decision filed by the court ,” and the bankruptcy court’s findings

were specifically presented in the Memorandum.

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must turn over $69,837.90 of the fees paid to him post-petition to

Trustee.8

CONCLUSION

We AFFIRM the judgment of the bankruptcy court.