                                                        FILED
                                                         JUN 05 2013
 1
                                                     SUSAN M SPRAUL, CLERK
                                                       U.S. BKCY. APP. PANEL
 2                                                     OF THE NINTH CIRCUIT


 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL

 4                            OF THE NINTH CIRCUIT

 5   In re:                        )       BAP No. CC-12-1559-ClDKi
                                   )
 6   NAHED ABDELBASSIR ELEIWA,     )       Bk. No. 6:12-bk-22839 MJ
                                   )
 7                  Debtor.        )
     ______________________________)
 8                                 )
     NAHED ABDELBASSIR ELEIWA,     )
 9                                 )
                    Appellant,     )
10                                 )
     v.                            )       M E M O R A N D U M1
11                                 )
     ROBERT S. WHITMORE, Chapter 7 )
12   Trustee,                      )
                                   )
13                  Appellee.      )
     ______________________________)
14
                      Argued and Submitted on May 16, 2013
15                           at Pasadena, California

16                            Filed - June 5, 2013

17            Appeal from the United States Bankruptcy Court
                  for the Central District of California
18
          Honorable Meredith A. Jury, Bankruptcy Judge, Presiding
19                           _________________

20   Appearances:     Zulu Ali of the Law Offices of Zulu Ali argued for
                      Appellant Nahed AbdElbassir Eleiwa; Scott H.
21                    Talkov of Reid & Hellyer, APC argued for Appellee
                      Robert S. Whitmore, Chapter 7 Trustee.
22                             _________________

23

24
          1
            This disposition is not appropriate for publication.
25   Although it may be cited for whatever persuasive value it may
     have (see Fed. R. App. P. 32.1), it has no precedential value.
26   See 9th Cir. BAP Rule 8013-1.

                                       1
 1   Before: CLEMENT,2 DUNN, and KIRSCHER, Bankruptcy Judges.

 2                                INTRODUCTION

 3        The debtor filed a chapter 73 bankruptcy in which she

 4   claimed homestead exemptions in two real properties that she

 5   neither owned, nor lived in, on the date of the petition and

 6   “tools of the trade” exemptions in two vehicles. The chapter 7

 7   trustee objected to these exemptions, which the bankruptcy court

 8   sustained. An appeal followed, and we now AFFIRM in part and

 9   VACATE and REMAND in part.

10                                   FACTS

11        Nahed Eleiwa filed a chapter 7 petition, and Robert Whitmore

12   was appointed as the trustee over her estate. On the petition,

13   Eleiwa described her street address as 1040 South Mt. Vernon

14   Avenue, #G-105, Colton, California and her county of residence as

15   San Bernardino. Colton is a city in San Bernardino County. In the

16   Statement of Financial Affairs, she denied residing at any other

17   address within the past three years.

18        On Schedule A, Eleiwa listed two real properties: one

19   located in Mission Viejo, California and another in Irvine,

20   California. But she did not indicate the nature of her interest

21   in these properties (i.e., fee simple, community property, etc.).

22   Mission Viejo and Irvine are each located in Orange County. On

23
          2
            Hon. Fredrick E. Clement, United States Bankruptcy Judge
24   for the Eastern District of California, sitting by designation.
          3
25          Unless otherwise indicated, all chapter, section, and rule
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
26   to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037.

                                       2
 1   Schedule B, Eleiwa listed two vehicles: a 2003 Toyota Camry and a

 2   2011 Toyota Sienna.4 However, she indicated that they were the

 3   property of her spouse Alaa Touni.

 4        Although Eleiwa scheduled the Mission Viejo and Irvine

 5   properties, grant deeds recorded in Orange County showed that

 6   each property was transferred, without consideration,

 7   approximately fourteen months prior to the petition date. The

 8   transferor, as stated in the grant deeds, was the Keant Trust, of

 9   which Eleiwa and her spouse are the co-trustees. The transferee

10   was Amro Elawa. The record is silent as to the identities of the

11   settlor and beneficiary and the terms of the Keant Trust,

12   including whether the trust is revocable.

13        Believing the grant deeds to be fraudulent transfers,

14   Whitmore commenced an adversary proceeding against Elawa to

15   recover the real properties. When Elawa failed to respond to the

16   complaint, Whitmore obtained a default judgment, which voided the

17   grant deeds and reverted title back to the Keant Trust.

18        Before the entry of the default judgment, Eleiwa amended

19   Schedule C to change how she exempted the two real properties and

20   two vehicles.5 She now claimed homestead exemptions in the

21
          4
            We have taken judicial notice of the bankruptcy court
22   docket and various documents filed through the electronic
     docketing system. See O’Rourke v. Seaboard Sur. Co. (In re E.R.
23   Fegert, Inc.), 887 F.2d 955, 957-58 (9th Cir. 1988); Atwood v.
     Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9
24   (9th Cir. BAP 2003).
          5
25          In the original Schedule C, Eleiwa utilized the exemption
     scheme found at California Code of Civil Procedure § 703.140(b).
26                                                      (continued...)

                                     3
 1   Mission Viejo and Irvine properties in the amounts of $150,000

 2   and $25,000, respectively, pursuant to California Code of Civil

 3   Procedure § 704.730(a)(3)(B). She also claimed a $7,279 exemption

 4   in the Camry and a $2,000 exemption in the Sienna as “tools of

 5   the trade” under California Code of Civil Procedure § 704.060.

 6        Whitmore timely filed an objection to the amended

 7   exemptions, and the bankruptcy court sustained the objection,

 8   disallowing each of the four exemptions.

 9                             JURISDICTION

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

11   §§ 1334 and 157(b)(2)(B). An order disallowing a debtor’s claim

12   of exemption constitutes a final, appealable order. See Preblich

13   v. Battley, 181 F.3d 1048, 1056 (9th Cir. 1999). We therefore

14   have jurisdiction pursuant to 28 U.S.C. § 158(a)(1) and (b).

15                                ISSUES

16        This appeal presents but two issues: did the bankruptcy

17   court err in disallowing Eleiwa’s (1) homestead exemptions in the

18   Mission Viejo property and the Irvine property, and (2) tools of

19   the trade exemptions in the Camry and the Sienna?

20                          STANDARDS OF REVIEW

21        We review legal issues de novo and the bankruptcy court’s

22

23
          5
            (...continued)
24   Specifically, she claimed a $14,849 homestead exemption in the
     Irvine property, a $0 wildcard exemption in the Mission Viejo
25   property, and a $2,011 wildcard exemption in the Sienna. For the
     Camry, she combined a $3,525 vehicle exemption and a $3,754
26   wildcard exemption.

                                     4
 1   factual findings under a clearly erroneous standard. Kelley v.

 2   Locke (In re Kelley), 300 B.R. 11, 16 (9th Cir. BAP 2003). A

 3   factual finding is clearly erroneous if the record is devoid of

 4   evidence to support it or if the reviewing court is “left with

 5   the definite and firm conviction that a mistake” has been made in

 6   the finding. Greene v. Savage (In re Greene), 583 F.3d 614, 618

 7   (9th Cir. 2009). If the bankruptcy court’s view of the evidence

 8   is plausible, viewed from the prism of the entire record, the

 9   court’s factual findings cannot be clearly erroneous. See

10   Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574

11   (1985).

12                                 DISCUSSION

13   I.   The Law of Exemptions.

14        When a debtor files a chapter 7 petition, all of her assets

15   become property of the estate and may be used to pay creditors,

16   subject to the debtor’s ability to reclaim specified property as

17   exempt. Schwab v. Reilly, 130 S. Ct. 2652, 2657 (2010).

18        A debtor may exempt property either as permitted by the

19   federal exemption scheme found at § 522(d) or, if the applicable

20   state has opted out of that scheme, as allowed under relevant

21   state law. See 11 U.S.C. § 522(b). California has elected not to

22   utilize the federal exemptions and, instead, offers a debtor the

23   choice between two different exemption schemes. See Cal. Civ.

24   Proc. Code §§ 703.130, 703.140(a). Here, Eleiwa has chosen the

25   set of exemptions provided in California Code of Civil Procedure

26   §§ 703.010-704.995 (except for those exemptions provided in

                                       5
 1   § 703.140(b)). See id. § 703.140(a).

 2         Once a debtor claims an exemption, it is presumptively

 3   valid, and the objecting party shoulders the burden of proving

 4   that the exemption is not properly claimed. See Rule 4003(c);

 5   Carter v. Anderson (In re Carter), 182 F.3d 1027, 1029 n.3 (9th

 6   Cir. 1999).

 7   II.   Homestead Exemptions.

 8         Eleiwa claimed homestead exemptions under California Code of

 9   Civil Procedure § 704.730(a)(3)(B) based on her alleged status as

10   a disabled person6 and attempted to split the allowed $175,000

11
           6
12             This exemption statute provides, in relevant part,

13         (a) The amount of the homestead exemption is one of the
           following:
14
                  . . .
15
                  (3) One hundred seventy-five thousand dollars
16                ($175,000) if the judgment debtor or spouse of the
                  judgment debtor who resides in the homestead is at
17                the time of the attempted sale of the homestead
                  any one of the following:
18
                          . . .
19
                          (B) A person physically or mentally disabled
20                        who as a result of that disability is unable
                          to engage in substantial gainful employment.
21                        There is a rebuttable presumption affecting
                          the burden of proof that a person receiving
22                        disability insurance benefit payments under
                          Title II or supplemental security income
23                        payments under Title XVI of the federal
                          Social Security Act satisfies the
24                        requirements of this paragraph as to his or
                          her inability to engage in substantial
25                        gainful employment.

26                                                            (continued...)

                                           6
 1   exemption amount between the Mission Viejo and Irvine

 2   properties.7 The bankruptcy court sustained Whitmore’s objection

 3   to the two homestead exemptions on multiple, alternative grounds:

 4   (1) that the two real properties were not property of the estate;

 5   and (2) that Eleiwa did not reside in either of the properties.8

 6   On appeal, Eleiwa has challenged both of these grounds.

 7        A.   Property of the Estate.

 8        First, we review the bankruptcy court’s findings that the

 9   Mission Viejo and Irvine properties were not property of the

10   estate both on the petition date and after Whitmore’s avoidance

11   of the fraudulent transfers.

12        It is a “well settled rule that property cannot be exempted

13   unless it is first property of the estate.” Heintz v. Carey

14   (In re Heintz), 198 B.R. 581, 586 (9th Cir. BAP 1996); accord

15   Owen v. Owen, 500 U.S. 305, 308 (1991). As the Ninth Circuit has

16   stated,

17        Whether [a] [d]ebtor’s [property is] excluded from the

18
          6
            (...continued)
19   Cal. Civ. Proc. Code § 704.730(a)(3)(B).
          7
20          However, a debtor is entitled to only one such exemption.
     See Cal. Civ. Proc. Code § 704.710(c) (defining “homestead” as
21   debtor’s “principal dwelling”); see also id. § 704.720(c)
     (permitting only one homestead exemption where debtor and spouse
22   each reside in separate homesteads); cf. Rowe v. Jackman
     (In re Rowe), 236 B.R. 11, 14 (9th Cir. BAP 1999) (holding that
23   married couple was entitled to one homestead exemption under
     Nevada law).
24
          8
            The bankruptcy court also sustained the objection on the
25   ground that § 522(g) precludes Eleiwa from claiming exemptions in
     the two fraudulently transferred properties. However, since we
26   affirm on the other two grounds, we do not reach this issue.

                                     7
 1        estate is a question that should be addressed by the
          bankruptcy court in the first instance. The exemption
 2        question arises only if the [property is] first
          determined to be property of the estate. In fact, if
 3        the [property is] not property of the estate, the
          bankruptcy court should not make a decision on the
 4        exemption question.

 5   Ehrenberg v. S. Cal. Permanente Med. Grp. (In re Moses), 167 F.3d

 6   470, 474 (9th Cir. 1999) (quoting Spirtos v. Moreno

 7   (In re Spirtos), 992 F.2d 1004, 1007 (9th Cir. 1993)).

 8        Since property of the estate includes “all legal or

 9   equitable interests of the debtor in property as of the

10   commencement of the case,” 11 U.S.C. § 541(a)(1), a debtor can

11   exempt property that she owned as of the petition date. See

12   Robertson v. Alsberg (In re Alsberg), 161 B.R. 680, 683 (9th Cir.

13   BAP 1993), aff’d, 68 F.3d 312 (9th Cir. 1995). However, in this

14   instance, the bankruptcy court correctly found that Eleiwa did

15   not have an interest in the two real properties on the petition

16   date. The evidence shows, on that date, Amro Elawa, a third

17   party, held title to the Mission Viejo and Irvine properties.

18        Alternatively, “[a]ny interest in property that the trustee

19   recovers under [§ 550]” also becomes property of the estate.

20   11 U.S.C. § 541(a)(3). Yet, in this case, once the bankruptcy

21   court entered the default judgment in favor of Whitmore, voiding

22   the grant deeds, title reverted back to the Keant Trust, the

23   transferor, rather than to Eleiwa. The Keant Trust held title to

24   the two properties, and Eleiwa was only a co-trustee of that

25   trust. Under California law, the Keant Trust is presumed to be

26   the owner of that property. See Cal. Evid. Code § 662. And

                                     8
 1   without any evidence showing that Eleiwa was the trustor and that

 2   the trust was revocable, the bankruptcy court appropriately found

 3   that Eleiwa did not own the properties upon Whitmore’s recovery.

 4   The fact that Eleiwa was the co-trustee of the Keant Trust did

 5   not mean that the trust’s property became her bankruptcy estate’s

 6   property. See 11 U.S.C. § 541(b)(1), (d); Foothill Capital Corp.

 7   v. Clare’s Food Mkt., Inc. (In re Coupon Clearing Serv., Inc.),

 8   113 F.3d 1091, 1099 (9th Cir. 1997).

 9        B.   Residency.

10        More problematic to Eleiwa’s homestead exemption claims are

11   the bankruptcy court’s findings that she did not reside in either

12   the Mission Viejo or Irvine property on the petition date. The

13   California homestead exemption “applies when a [debtor] has

14   continuously resided in a dwelling from the time that a

15   creditor’s lien attaches until a court’s determination that the

16   exemption applies.” Kelley, 300 B.R. at 17 (citing Cal. Civ.

17   Proc. Code § 704.710(c)).

18        On appeal, Eleiwa argues that the evidence presented below

19   unequivocally established her residency in the two real

20   properties. However, we reject that argument and conclude that

21   the bankruptcy court’s findings that Eleiwa did not reside at

22   either property were not clearly erroneous.

23        Eleiwa first takes issue with the bankruptcy court’s

24   conclusion that she is “kind of stuck with what [she] told the

25   Court under penalty of perjury” in her petition. Hr’g Tr. 5:8-9,

26   Oct. 23, 2012. Specifically, the petition shows that Eleiwa

                                     9
 1   claimed the Colton address as her street address, rather than the

 2   Mission Viejo or Irvine property. Further, on the petition, she

 3   indicated her county of residence as being San Bernardino (where

 4   Colton is located), rather than Orange (where the two real

 5   properties are located).

 6        Any representation made in a debtor’s petition, signed under

 7   penalty of perjury, is an admission that may be offered against

 8   that debtor. See Am. Express Travel Related Servs. Co. v. Vee

 9   Vinhnee (In re Vee Vinhnee), 336 B.R. 437, 449 (9th Cir. BAP

10   2005); Campbell v. Verizon Wireless S-CA (In re Campbell),

11   336 B.R. 430, 436 (9th Cir. BAP 2005). Thus, notwithstanding

12   Eleiwa’s contention that she withdrew the admissions,9 it was

13   appropriate for the bankruptcy court to consider Eleiwa’s

14   admissions made in the petition about her street address and her

15   county of residence as evidence in ruling on the homestead

16   exemptions.

17        Second, Eleiwa argues that the bankruptcy court erred by

18   looking only at the mailing address on the utility bills while

19   failing to give any weight to the service address listed on those

20   bills (which had the Mission Viejo property as the service

21   address).10 However, this argument also falls short because that

22
          9
            Eleiwa argues that by amending the schedules, she withdrew
23   any admissions she may have made in the original schedules.
     However, Eleiwa never amended the petition, which contained the
24   subject admissions considered by the bankruptcy court.
          10
25          In her opposition to Whitmore’s objection to the
     exemptions, Eleiwa attached several utility bills addressed to
26                                                      (continued...)

                                    10
 1   portion of the bills is equivocal at best on the issue of where

 2   Eleiwa resided on the petition date.

 3        Evidence that a utility service is provided to a particular

 4   address under a specific customer’s name gives rise to two

 5   possible inferences: one that the customer resided at that

 6   address and another that the customer did not reside at that

 7   address but was only paying for the service provided there. Here,

 8   the bankruptcy court adopted the latter version of the facts,

 9   possibly in light of the fact that the bills were mailed to

10   Eleiwa at an address different than the service address. Where

11   there are two plausible versions of the facts to be drawn from

12   the evidence, the court’s findings cannot be clearly erroneous.

13   Vill. Nurseries v. Gould (In re Baldwin Builders), 232 B.R. 406,

14   410 (9th Cir. BAP 1999). Thus, the bankruptcy court did not err

15   in finding that the utility bills failed to establish that Eleiwa

16

17

18
          10
19          (...continued)
     either her or her spouse. Each bill listed a service address
20   (i.e., where the utility service was provided) and a mailing
     address (i.e., where the bill was mailed to). All of the utility
21   bills showed the Mission Viejo property as the service address.
     While the earlier bills listed that property also as the mailing
22   address, the more recent bills (i.e., for those months
     immediately before and after the petition date) were mailed to a
23   post office box. When reviewing the bills, the bankruptcy court
     noted that “if you look at where those bills were mailed, they
24   were mailed to a post office box of the husband.” Hr’g Tr.
     5:15-17, Oct. 23, 2012. The court then concluded, “If they did
25   live in the Mission Viejo address, they would get their mail
     there, and they are not getting their mail there.” Id. at
26   5:18-20.

                                    11
 1   resided at the Mission Viejo or Irvine property.11

 2        For these reasons, we affirm the bankruptcy court’s

 3   disallowance of the two homestead exemptions.

 4   III. Tools of the Trade Exemptions.

 5        Eleiwa also appeals the bankruptcy court’s disallowance of

 6   her claimed exemptions in the Camry and the Sienna as tools of

 7   the trade of her spouse. The court’s ruling was based on (1) the

 8   lack of evidence showing that Eleiwa’s spouse used the vehicles

 9   in his business and (2) the aggregate exempted value of the

10   vehicles exceeding the statutory exemption amount.

11        California Code of Civil Procedure § 704.060 authorizes a

12   debtor to exempt tools of the trade up to an aggregate equity

13   value of $6,075 if such tools are “reasonably necessary” to and

14   “actually used” by the debtor or the debtor’s spouse in the

15   exercise of his or her trade, business, or profession.12

16
          11
            Eleiwa did not actually present any evidence to show that
17   she resided at the Irvine property. As previously noted, the
     utility bills were only for the Mission Viejo property.
18
          12
               The relevant portions of this statute provide,
19
          (a) Tools, implements, instruments, materials,
20        uniforms, furnishings, books, equipment, one commercial
          motor vehicle, one vessel, and other personal property
21        are exempt to the extent that the aggregate equity
          therein does not exceed:
22
                (1) Six thousand seventy-five dollars ($6,075), if
23              reasonably necessary to and actually used by the
                judgment debtor in the exercise of the trade,
24              business, or profession by which the judgment
                debtor earns a livelihood.
25
                (2) Six thousand seventy-five dollars ($6,075), if
26                                                       (continued...)

                                      12
 1        Here, Eleiwa claimed a $7,279 exemption in the Camry and a

 2   $2,000 exemption in the Sienna. On appeal, she appears to argue

 3   that the bankruptcy court’s factual findings were clearly

 4   erroneous, but Eleiwa’s argument is premised on new evidence not

 5   presented below.

 6        A.      Burden of Proof.

 7        Because the party objecting to an exemption has the burden

 8   of proof, Rule 4003(c), that party has the initial burden of

 9   producing evidence to rebut the presumptively valid exemption.

10   Carter, 182 F.3d at 1029 n.3. Here, Whitmore did produce some

11   evidence, in the form of Eleiwa’s Schedule I and Statement of

12   Financial Affairs, showing that Eleiwa was currently unemployed

13
          12
14             (...continued)
                  reasonably necessary to and actually used by the
15                spouse of the judgment debtor in the exercise of
                  the trade, business, or profession by which the
16                spouse earns a livelihood.

17        . . .

18        (c) Notwithstanding subdivision (a), a motor vehicle is
          not exempt under subdivision (a) if there is a motor
19        vehicle exempt under Section 704.010 which is
          reasonably adequate for use in the trade, business, or
20        profession for which the exemption is claimed under
          this section.
21
          (d) Notwithstanding subdivisions (a) and (b):
22
                  (1) The amount of the exemption for a commercial
23                motor vehicle under paragraph (1) or (2) of
                  subdivision (a) is limited to four thousand eight
24                hundred fifty dollars ($4,850).

25                . . . .

26   Cal. Civ. Proc. Code § 704.060.

                                       13
 1   and had not operated a business in years. This evidence was

 2   sufficient to meet Whitmore’s initial burden to establish that

 3   Eleiwa could not exempt the two vehicles as her own tools of the

 4   trade under California Code of Civil Procedure § 704.060(a)(1).

 5   However, Whitmore did not come forward with any evidence to rebut

 6   Eleiwa’s presumptively valid exemptions as her non-debtor

 7   spouse’s tools of the trade under § 704.060(a)(2).

 8        Nevertheless, the bankruptcy court concluded that Eleiwa did

 9   not meet her burden of producing evidence to demonstrate that the

10   vehicles qualified as her spouse’s tools of the trade. Yet, the

11   burden of production does not shift to a debtor until the

12   objecting party has initially produced evidence to rebut the

13   exemption. See id. Because no evidence was presented by Whitmore

14   on this issue, the bankruptcy court erred in finding that Eleiwa

15   failed to produce any unequivocal evidence when that burden had

16   not yet shifted to her.

17        But even if the tools of the trade exemptions in the

18   vehicles are presumptively valid under California Code of Civil

19   Procedure § 704.060(a)(2), we must address other preliminary

20   issues affecting whether Eleiwa can claim these exemptions.

21        B.   Exemption Limit.

22        First, a debtor cannot claim an exemption in an amount

23   greater than what the applicable statute will allow. For tools of

24   the trade, the statute provides that the aggregate equity of such

25   tools claimed exempt cannot exceed $6,075. See Cal. Civ. Proc.

26   Code § 704.060(a)(1), (2). Here, Eleiwa claimed a $7,279

                                    14
 1   exemption in the Camry and a $2,000 exemption in the Sienna. She

 2   valued the two vehicles at $7,279 and $19,017, respectively, on

 3   Schedule B, and she did not include any debts securing them on

 4   Schedule D. Thus, the aggregate equity of the vehicles claimed

 5   exempt was $9,279, clearly above the $6,075 limit.

 6        However, we need not choose which of the two exemptions in

 7   the vehicles must be disallowed because the $7,279 exemption in

 8   the Camry, by itself, exceeds the statutory limit. Thus, the

 9   bankruptcy court properly disallowed the exemption in that

10   vehicle as a tool of the trade.

11        C.   Property of the Estate.

12        Second, as previously discussed, the bankruptcy court must

13   find that the property belongs to the estate before deciding

14   whether that property has been properly exempted. See Moses,

15   167 F.3d at 474. Here, the bankruptcy court did not make adequate

16   findings as to whether the vehicles were property of the estate.

17   The court noted, “The Debtor is now claiming the cars are owned

18   by the non-filing husband. I don’t know whether the estate has a

19   community property interest in the cars. It may well have. I

20   don’t know why it wouldn’t.” Hr’g Tr. 7:22-8:1, Oct. 23, 2012. As

21   a result, this matter must be remanded to the bankruptcy court on

22   the property of the estate issue. However, since the exemption in

23   the Camry must be disallowed for exceeding the statutory limit,

24   the proceeding on remand will only encompass determining whether

25   the Sienna is property of the estate.

26

                                       15
 1        D.   Commercial Motor Vehicle.

 2        Lastly, we address the “commercial motor vehicle” argument

 3   raised by Whitmore. While California Code of Civil Procedure

 4   § 704.060 places no limitation on the number of “tools,”

 5   “implements,” or ”other personal property” that a debtor can

 6   exempt, the statute strictly permits the debtor to exempt only

 7   “one commercial motor vehicle” and “one vessel.” Cal. Civ. Proc.

 8   Code § 704.060(a). Whitmore contends that Eleiwa cannot exempt

 9   both vehicles but that she is limited to choosing one due to the

10   statute’s “one commercial motor vehicle” language.13

11        However, we need not reach that issue at this point since we

12   affirm the bankruptcy court’s disallowance of the claimed

13   exemption in one of the two vehicles. Additionally, the

14   bankruptcy court made no finding that either of the vehicles was

15   a commercial motor vehicle. Rather, the record shows that the

16   court disallowed the exemptions in the vehicles generally as

17   tools of the trade.

18                              CONCLUSION

19        For the reasons set forth above, we AFFIRM the bankruptcy

20   court’s order disallowing Eleiwa’s exemptions in the Mission

21   Viejo property, the Irvine property, and the Camry. We VACATE

22   that part of the order disallowing the exemption in the Sienna

23   and REMAND for a determination of whether Eleiwa has an interest

24
          13
            It is unclear whether Whitmore is arguing that a debtor
25   can only exempt a motor vehicle under § 704.060 as a “commercial
     motor vehicle” and that she can never exempt it as a “tool” or
26   “other personal property.”

                                    16
 1   in the Sienna that would constitute property of the estate.

 2        On remand, if the bankruptcy court finds that the Sienna is

 3   property of the estate, the court must then determine whether

 4   Eleiwa can claim the Sienna as her spouse’s tool of the trade,

 5   applying the appropriate burden of proof. In contrast, if the

 6   court finds that the estate has no interest in the Sienna, the

 7   exemption will be disallowed.

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