                                                                            FILED
                                 NOT FOR PUBLICATION
                                                                            OCT 27 2016
                       UNITED STATES COURT OF APPEALS                    MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                                 FOR THE NINTH CIRCUIT

In re: KONSTANTIN KUPFER;                        No. 14-16697
MARGARITA KUPFER,
                                                 D.C. No. 3:14-cv-00668-WHO
               Debtors.

------------------------------                   MEMORANDUM*

KONSTANTIN KUPFER; MARGARITA
KUPFER,

               Debtors-Appellants,

 v.

KARIM SALMA; ROBERT SALMA, as
Trustees of the Salma Family Trust;
LINDSEY S. BRUEL; RIYAD R.
SALMA; LAITH K. SALMA,

               Creditors-Appellees.


                    Appeal from the United States District Court
                        for the Northern District of California
                 William Horsley Orrick III, District Judge, Presiding

                        Argued and Submitted October 17, 2016
                              San Francisco, California



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: GRABER and MURGUIA, Circuit Judges, and BENNETT,** District
Judge.

      Debtors Konstantin and Margarita Kupfer appeal an order of the district

court, which in turn affirmed an order of the bankruptcy court. The underlying

order allowed Creditors’ entire claim for attorney fees and costs, arising from a

pre-petition arbitration. Reviewing the district court’s decision de novo, AMB

Prop., L.P. v. Official Creditors for Estate of AB Liquidating Corp. (In re AB

Liquidating Corp.), 416 F.3d 961, 963 (9th Cir. 2005), we vacate and remand for

further proceedings.

      Creditors contend that their pre-petition award of fees and costs is not

subject to the cap set forth in 11 U.S.C. § 502(b)(6), so it should be allowed in full.

Debtors argue that the entire arbitration award should be capped. The applicable

bankruptcy statute, 11 U.S.C. § 502(b)(6), applies a cap to "claim[s] of a lessor for

damages resulting from the termination of a lease of real property." Emphasizing

the causal inquiry necessary to determining what damages fall under the cap, we

have asked: "[a]ssuming all other conditions remain constant, would the landlord

have the same claim against the tenant if the tenant were to assume the lease rather

than rejecting it?" Saddleback Valley Cmty. Church v. El Toro Materials Co. (In


      **
            The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa, sitting by designation.
                                           2
re El Toro Materials Co.), 504 F.3d 978, 981 (9th Cir. 2007). Another court has

adapted our test to a pre-petition lease termination: "[a]ssuming all other

conditions remain constant, would the landlord have the same claim against the

tenant if the lease had not been terminated?" Lariat Cos. v. Wigley (In re Wigley),

533 B.R. 267, 270–71 (B.A.P. 8th Cir. 2015).

      Here, the arbitration giving rise to the disputed fees and costs concerned two

leases. The prevailing Creditors demanded both past-due rent and future rent.

Debtors brought a variety of counterclaims, alleging breaches of contract and torts

committed by Creditors. Even though Debtors did not prevail on those claims,

they were litigated, and the attorney fees and costs reflect that litigation. The

obligation to reimburse Creditors for fees and costs arose from covenants in the

leases, but § 502(b)(6) does not cap damages resulting from every breach of

contract—only those claims for "damages resulting from the termination of a

lease." 11 U.S.C. § 502(b)(6) (emphasis added).

      Fees attributable to litigating Creditors’ claims for future rent are capped,

because such claims would not arise were the leases not terminated. But, the

arbitration award also included damages for past rent, which Creditors could claim

independent of termination; the fees attributable to that portion of the litigation are

not capped. The parties also litigated Debtors’ numerous counterclaims. To the


                                           3
extent that the counterclaims concerned ordinary alleged breaches, independent of

a termination, the associated fees and costs are not capped, either.

      On remand, the court first must categorize all claims as either directly

resulting from termination of the leases, or not. The former are capped; the latter

are not. The court then must apportion the associated fees and costs accordingly.

The district court may decide whether to apportion the fees itself or to remand the

case to the bankruptcy court for apportionment. We also leave to the district

court’s or the bankruptcy court’s discretion whether to take additional evidence or

conduct further hearings in aid of the apportionment.

      VACATED and REMANDED. The parties shall bear their own costs on

appeal.




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