                                                                            FILED
                                 NOT FOR PUBLICATION
                                                                             FEB 23 2017
                       UNITED STATES COURT OF APPEALS                    MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                                 FOR THE NINTH CIRCUIT


In re: ALEXANDRA M. SPIEGEL,                       No. 15-15239

               Debtor,                             D.C. No. 2:14-cv-00576-GEB

------------------------------
                                                   MEMORANDUM*
 BLAIR WALLACE,

               Plaintiff-Appellant,

 v.

WRIGHT GRANDCHILDREN, L.P.;
MICHAEL WRIGHT,

               Defendants-Appellees,

 and

STEPHEN HUNG,

               Defendant.


                     Appeal from the United States District Court
                         for the Eastern District of California
                    Garland E. Burrell, Jr., District Judge, Presiding



       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                      Argued and Submitted February 13, 2017
                             San Francisco, California

Before: BERZON and CLIFTON, Circuit Judges, and LASNIK,** District Judge.

      Plaintiff Blair Wallace, successor in interest to Chapter 7 debtor Alexandra

Spiegel, appeals the district court’s order affirming the judgment by the bankruptcy

court in favor of Defendants Wright Grandchildren L.P. and Michael Wright

(collectively, “the Wrights”) as to their claims for judicial foreclosure and

declaratory relief and against Wallace as to his counterclaims. We have

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 158(d)(1). We affirm.

      This appeal hinges on whether Wallace could have made a valid tender of

$150,000 to the Wrights that, pursuant to a release clause in a loan agreement

between Spiegel and the Wright Grandchildren L.P., would have required the

Wrights to release their security interest in a parcel of land then owned by Spiegel.

Under California law, which controls here, “A valid tender of performance must be

of the full debt, in good faith, unconditional, and with the ability to perform.”

Intengan v. BAC Home Loans Servicing LP, 154 Cal. Rptr. 3d 727, 731 (Cal. Ct.

App. 2013) (emphasis added) (citing Cal. Civ. Code, §§ 1486, 1493-95). Despite

Wallace’s contentions to the contrary, none of the California state court cases or


      **
            The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
                                           2
civil code provisions cited by him excuse his need to show that he had the ability

to perform by being able to pay the $150,000. See, e.g., Ersa Grae Corp. v. Fluor

Corp., 2 Cal. Rptr. 2d 288 (Cal. Ct. App. 1991); Backus v. Sessions, 10 P.2d 51, 56

(Cal. 1941). See also Cal. Civ. Code § 1495 (“An offer of performance is of no

effect if the person making it is not able and willing to perform according to the

offer.”).

       The bankruptcy court did not clearly err in finding that Wallace had failed to

demonstrate his ability to pay the Wrights $150,000 during the relevant time

period. See Blausey v. United States Trustee, 552 F.3d 1124, 1132 (9th Cir. 2009).

The bankruptcy court did not credit Wallace’s testimony that he had the money

available to satisfy the release clause, and Wallace provided no documentary

evidence to otherwise show that he had or could get the money, even though such

evidence should have been relatively easy to obtain. Although Wallace argues that

the trial court clearly erred by ignoring evidence of his ability to perform, none of

the evidence identified by Wallace on appeal demonstrates clear error.

       AFFIRMED.




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