                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                            MAR 27 2018
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
In re: PACIFIC THOMAS                            No.   16-16047
CORPORATION, DBA Pacific Thomas
Capital, DBA Safe Storage,                       D.C. No. 3:14-cv-03465-MMC

          Debtor,
______________________________                   MEMORANDUM*

KYLE EVERETT, Chapter 11 Trustee,

              Plaintiff-Appellee,

 v.

RANDALL C.M. WHITNEY; et al.,

              Defendants-Appellants.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Maxine M. Chesney, District Judge, Presiding

                       Argued and Submitted March 15, 2018
                            San Francisco, California




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

      Randall Whitney, Jill Worsley, and Pacific Trading Ventures, LLC (PTV),

appeal the district court’s order affirming the bankruptcy court judgment. The

bankruptcy court judgment ordered the turnover of money to the estate from PTV.

The bankruptcy court based its turnover order on the court’s conclusion that a 2005

lease agreement between PTV and the debtor, Pacific Thomas Corporation (PTC),

was invalid. We have jurisdiction under 28 U.S.C. § 158(d)(1).

      Although the bankruptcy court held that the 2005 lease agreement was void

because PTC and PTV did not operate under the lease agreement, the bankruptcy

court did not cite any California contract law or state court decision supporting its

conclusion that a contract is void if the parties to the contract fail to implement it.

Nor did the trustee propose a legal theory at trial that would support such a

conclusion.

      On appeal, the trustee identifies two legal theories to support the bankruptcy

court’s order: (1) the lease agreement was a sham contract, and thus void from the

beginning, or (2) PTC and PTV mutually rescinded the lease. The bankruptcy

court did not make the factual findings necessary to support either theory. First,



      **
             The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
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the bankruptcy court did not find that PTC and PTV entered into the lease

agreement with an intent to deceive a third party, as required to invalidate a

contract as a sham. See FPI Dev., Inc. v. Nakashima, 231 Cal. App. 3d 367, 401

n.18 (1991). Second, the bankruptcy court did not find that PTC and PTV’s acts

and conduct established they had a mutual and unequivocal intent to rescind, as

required under California’s law of contract rescission. See Pennel v. Pond Union

Sch. Dist., 29 Cal. App. 3d 832, 837 (1973). Therefore, we vacate the district

court’s order affirming the bankruptcy court and remand to the district court with

instructions to vacate the bankruptcy court’s order and remand to the bankruptcy

court to determine whether the parties’ various lease agreements (the 2005 lease,

the 2008 lease, the 2010 extension, and the 2012 amendment) are void under

principles of California contract law.

      Because the bankruptcy court will need to engage in a new inquiry into the

validity of the lease agreements, we take this opportunity to provide additional

guidance concerning the issues to be addressed on remand. If the bankruptcy court

holds that some or all of the lease agreements were valid, but later terminated by

the trustee, the court must determine PTV’s entitlement to postpetition rents paid

before the date of termination. Alternatively, if the bankruptcy court determines

that the lease agreements were invalid from their inception, it must correct its error


                                           3
in calculating the extent to which PTV’s right to reimbursement under the

management agreement affects any turnover award. Because the “trustee has the

burden of proving the estate is entitled to a turnover,” In re Jacobson, 676 F.3d

1193, 1200–01 (9th Cir. 2012), the bankruptcy court erred by holding that PTV

provided insufficient evidence of operating expenses, which effectively placed the

burden of proving entitlement to operating expenses on PTV.1

      VACATED and REMANDED2




      1
        Appellants also argue that the bankruptcy court erred in denying their
motion to dismiss the trustee’s complaint. We do not review the denial of a motion
to dismiss when the case ultimately proceeds to trial. See Affordable Hous. Dev.
Corp. v. City of Fresno, 433 F.3d 1182, 1193 (9th Cir. 2006).
      2
          Each party will bear its own costs on appeal.
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