                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                           FOR THE NINTH CIRCUIT                              APR 22 2014

                                                                          MOLLY C. DWYER, CLERK
In the Matter of: EZRI NAMVAR,                  No. 12-56767               U.S. COURT OF APPEALS



              Debtor,                           D.C. No. 2:12-cv-01827-GAF

MOUSA NAMVAR,
                                                MEMORANDUM*
              Appellant,
  v.

R. TODD NEILSON, Trustee for the
Chapter 11 Bankruptcy Estate of Ezri
Namvar,

              Appellee.

In the Matter of: MISSION REAL                  No. 12-56768
ASSOCIATES, LLC,
                                                D.C. No. 2:12-cv-01830-GAF
              Debtor,

MOUSA NAMVAR, an individual,

              Appellant,
  v.

MISSION REAL ASSOCIATES, LLC,

              Appellee.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                   Appeal from the United States District Court
                      for the Central District of California
                    Gary A. Feess, District Judge, Presiding

                       Argued and Submitted April 11, 2014
                              Pasadena, California

Before: FARRIS and HURWITZ, Circuit Judges, and FRIEDMAN, Senior District
Judge.**

      Mousa Namvar (“Mousa”) submitted a claim in the bankruptcy proceedings

of Mission Real Associates, LLC (“Mission Real”), seeking eighteen percent of the

proceeds from a court-ordered sale of commercial property (“the Improvements”).

Mission Real, as debtor in possession, sought a declaratory judgment that Mousa

was not entitled to the claimed proceeds from the sale. The trustee in the

bankruptcy proceedings for Ezri Namvar (“Ezri”), Mousa’s brother, also objected

to the claim and requested a declaratory judgment that Mousa could not diminish

Ezri’s ownership interest in the Improvements.

      The bankruptcy court issued summary judgments in favor of Mission Real

and the trustee, and the district court affirmed. We have jurisdiction under 28

U.S.C. §§ 158(d) and 1291. We affirm.




       **
             The Honorable Paul L. Friedman, Senior District Judge for the U.S.
District Court for the District of Columbia, sitting by designation.

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      1. Mousa did not raise a genuine issue of material fact. The deed for the

Improvements does not identify Mousa as an owner, and the “Amendment to

Operating Agreement of Mission Real Associates LLC” and the “Assignment and

Assumption of Interest in Mission Real Associates, LLC” (collectively “Mission

Real Amendments”) do not list Mousa as a member of Mission Real. Although the

Mission Real Operating Agreement may have been ambiguous in some aspects, the

bankruptcy court properly excluded parol evidence as to ownership interests in the

LLC, because the Mission Real Amendments clearly identify the members of

Mission Real and their relative interests. See JCC Dev. Corp. v. Levy, 146 Cal.

Rptr. 3d 635, 642 (Ct. App. 2012). Even if Mousa was a beneficiary of an alleged

resulting trust, that trust was avoided in bankruptcy. 11 U.S.C. § 544(a)(3). And,

no admissible evidence in the record supports the claim that Ezri assigned Mousa

some or all of his interest in the Improvements.

      2. The bankruptcy judge’s evidentiary rulings do not mandate reversal.

Ezri’s deposition would not be admissible at trial, because Mousa admits that Ezri

would not be available to testify, and neither Mission Real nor the Erzi trustee was

represented at the deposition. Fed. R. Evid. 804(b)(1)(B); Hoover v. Switlik

Parachute Co., 663 F.2d 964, 967 n.3 (9th Cir. 1981).




                                         3
       The 2008 letter from Ezri to Mousa was not an admission by the bankruptcy

trustee, and any statements in the letter therefore did not bind the trustee under

Federal Rule of Evidence 801(d)(2). Calhoun v. Baylor, 646 F.2d 1158, 1162–63

(6th Cir. 1981). Nor was any statement by Ezri in the letter “so decidedly against

the declarant’s interest” to require admission under Rule 804(b)(3). Donovan v.

Crisostomo, 689 F.2d 869, 877 (9th Cir. 1982).

       Mousa’s argument that the 2008 letter was a verbal act, see Fed. R. Evid.

801(c) advisory committee note (“If the significance of an offered statement lies

solely in the fact that it was made . . . the statement is not hearsay. . . .”), was not

raised below, and therefore is waived. Rather, Mousa offered the letter in the

bankruptcy court as evidence of a prior oral agreement, making it hearsay. Fed. R.

Evid. 801(c)(2). Moreover, the letter does not purport to establish or affect an

interest in property. See Fed. R. Evid. 803(15). The letter discusses a proposed

division of proceeds from a sale of the Improvements that never occurred.

       Finally if, as Mousa argues, the 2003 e-mail was submitted to show Ezri’s

then-existing state of mind under Rule 803(3), any error in excluding it was

harmless, as Ezri’s state of mind was not at issue in the bankruptcy proceedings.

       AFFIRMED.




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