                                                                 FILED
                                                                  DEC 19 2012
 1
                                                             SUSAN M SPRAUL, CLERK
                                                                U.S. BKCY. APP. PANEL
 2                         ORDERED PUBLISHED                    O F TH E N IN TH C IR C U IT


 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5   In re:                        )      BAP No.    NC-11-1506-JuKiJo
                                   )
 6   HERBERT M. ZUKERKORN; JENNIFER)      Bk. No.    10-13626
     ZUKERKORN,                    )
 7                                 )
                    Debtors.       )
 8                                 )
     ______________________________)
 9   LINDA S. GREEN, Chapter 7     )
     Trustee,                      )
10                                 )
                    Appellant,     )
11   v.                            )      O P I N I O N
                                   )
12   HERBERT M. ZUKERKORN; JENNIFER)
     ZUKERKORN,                    )
13                                 )
                    Appellees.     )
14   ______________________________)
15                    Argued and Submitted on May 17, 2012
                          at San Francisco, California
16
                           Filed - December 19, 2012
17
               Appeal from the United States Bankruptcy Court
18                 for the Northern District of California
19        Honorable Alan Jaroslovsky, Bankruptcy Judge, Presiding
                    _____________________________________
20
21   Appearances:     John H. MacConaghy, Esq., MacConaghy & Barnier,
                      PLC, argued for appellant Linda S. Green, Chapter
22                    7 Trustee; Daniel Sturm, Esq. argued for
                      appellees Herbert M. Zukerkorn and Jennifer K.
23                    Zukerkorn.
                      ____________________________________
24
25   Before:   JURY, KIRSCHER, and JOHNSON*, Bankruptcy Judges.
26   Opinion by Judge Jury
     Dissent by Judge Johnson
27
28
          *
             Hon. Wayne E. Johnson, Bankruptcy Judge for the Central
     District of California, sitting by designation.
 1   JURY, Bankruptcy Judge:

 2
 3           Chapter 71 trustee, Linda S. Green (the “Trustee”), moved

 4   to compel turnover of all or some of the income distributed to

 5   debtor, Herbert M. Zukerkorn (“Herbert”), under a spendthrift

 6   trust.     The Trustee’s motion and amended motion raised issues

 7   regarding (1) the enforceability of the trust’s choice of law

 8   clause which designated Hawaii as the governing law; (2) the

 9   validity of the trust’s spendthrift clause; and (3) whether the

10   postpetition income distributions to Herbert became property of

11   the estate under § 541(a)(5)(A).       The bankruptcy court denied

12   the Trustee’s motion in its entirety, the Trustee appealed, and

13   we AFFIRM.

14                                  I. FACTS

15           The facts established by the record in this case are

16   undisputed.     In 1978, Herbert’s mother, Sally Zukerkorn

17   (“Sally”), established the Revocable Trust of Sally Zukerkorn

18   (hereinafter, the “Sally Zukerkorn Trust”) after Herbert’s

19   father passed away.     Sally was the settlor (“grantor”),

20   individual trustee, and beneficiary of this trust during her

21   lifetime.     American Trust Co. of Hawaii, Inc. was named as the

22   corporate trustee.     The trust was fully revocable and provided

23   that Sally could use all income and whatever portion of the

24   principal she deemed fit for whatever purposes she believed

25   “. . . to be for Grantor’s best interest.”

26
         1
           Unless otherwise indicated, all chapter and section
27
   references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
28 “Rule” references are to the Federal Rules of Bankruptcy
   Procedure.

                                      -2-
 1        The trust contained the following spendthrift clause:
 2        No interest under this instrument shall be
          transferable or assignable by any beneficiary, or be
 3        subject during said beneficiary’s life to the claims
          of said beneficiary’s creditors. This paragraph shall
 4        not restrict the exercise of any power of appointment.
 5        The trust also contained a choice of law clause:
 6        This instrument and the dispositions under it shall be
          construed and regulated and their validity and effect
 7        shall be determined by the law of Hawaii.
 8        On October 15, 1982, Sally amended the trust.       The amended
 9   trust provided that on her death the corpus was split into two
10   separate trusts for her sons Herbert and Jack.       Herbert was
11   named as the successor trustee and lifetime beneficiary for his
12   trust.   Herbert’s children, Jon and Sara, were granted a
13   contingent remainder interest in Herbert’s trust.       Herbert’s
14   brother Jack was named as the successor trustee and lifetime
15   beneficiary of the second trust.       Herbert was named as the
16   successor trustee of this trust upon Jack’s death.       Herbert’s
17   children, Jon and Sara, were likewise named the contingent
18   beneficiaries of Jack’s trust.
19        Sally died in 1984.    Jack died in 1986.     Herbert became the
20   trustee of both trusts.    In 2003, Herbert, acting as trustee,
21   sold Sally’s real property for $5.8 million.       He netted $4
22   million and placed half into Jack’s trust and half into his own
23   trust.   Jack’s trust terminated when Herbert’s children reached
24   the age of 45.   Herbert remains the trustee and the life
25   beneficiary of the Sally Zukerkorn Trust up through the present
26   time.
27                              The Bankruptcy
28        On September 20, 2010, Herbert and Jennifer Zukerkorn


                                      -3-
 1   (collectively, “Debtors”) filed their chapter 7 petition.       Green
 2   was appointed the Trustee.
 3           Debtors’ Schedule B identified Herbert’s life income
 4   interest only in the trust and noted that the trust had a
 5   spendthrift provision valid under Hawaii law, which governed the
 6   instrument.     Debtors valued Herbert’s interest at “0.00” and did
 7   not claim this interest as exempt.     Debtors’ Schedule I showed
 8   income of $12,224 per month, $7,160 of which was from the trust
 9   and related income.2    Debtors’ Schedule F showed that they owed
10   $162,062 in unsecured debt, consisting mostly of credit card
11   debt.
12           On December 3, 2010, the Trustee filed a motion to compel
13   turnover of twenty-five percent of the distributions paid to
14   Herbert pursuant to the trust, contending that portion was
15   property of the estate under Cal. Prob. Code § 15306.5.3       The
16
         2
17         Herbert paid himself a $986 monthly fee for his duties as
   spendthrift trustee for himself. Herbert also received $4,841
18 per month in beneficiary income distributions.
19       3
              Cal. Prob. Code § 15306.5 provides in relevant part:
20
         (a) Notwithstanding a restraint on transfer of the
21       beneficiary’s interest in the trust under Section 15300
         or 15301, and subject to the limitations of this
22       section, upon a judgment creditor’s petition under
         Section 709.010 of the Code of Civil Procedure, the
23       court may make an order directing the trustee to
24       satisfy all or part of the judgment out of the payments
         to which the beneficiary is entitled under the trust
25       instrument or that the trustee, in the exercise of the
         trustee’s discretion, has determined or determines in
26       the future to pay to the beneficiary.
27
         (b) An order under this section may not require that
28       the trustee pay in satisfaction of the judgment an
                                                       (continued...)

                                      -4-
 1   Trustee argued that California law, rather than Hawaii law,
 2   should apply to the Sally Zukerkorn Trust because (1) California
 3   had the more substantial relation to the dispute and (2)
 4   enforcing the spendthrift provision under Hawaii law would
 5   violate the fundamental policies of California.
 6           On April 29, 2011, the Trustee filed an amended motion,
 7   seeking turnover of the entire principal and all income from the
 8   trust, arguing that the spendthrift clause was unenforceable
 9   because Herbert was both the trustee and beneficiary of the
10   trust.       Alternatively, the Trustee sought Herbert’s postpetition
11   income distributions from the trust, contending they were
12   property of the estate under § 541(a)(5)(A).4
13           The bankruptcy court considered the Trustee’s motion and
14   amended motion in two phases.       First, it concluded on cross
15   motions for summary judgment that the trust was governed by
16   Sally’s choice of Hawaii law.       Second, after an evidentiary
17   hearing held on August 11, 2011, the bankruptcy court concluded
18   that none of the principal or interest paid or payable to
19   Herbert under the trust was property of the estate since the
20
             3
21        (...continued)
         amount exceeding 25 percent of the payment that
22       otherwise would be made to, or for the benefit of, the
         beneficiary. . . .
23
         4
24               Section 541(a)(5)(A) provides that the estate includes:

25       Any interest in property that would have been property
         of the estate if such interest had been an interest of
26       the debtor on the date of the filing of the petition,
         and that the debtor acquires or becomes entitled to
27
         acquire within 180 days after such date —
28
         (A) by bequest, devise, or inheritance; . . . .

                                        -5-
 1   spendthrift provisions were fully enforceable under Hawaii law.5
 2   The court further found that § 541(a)(5)(A) was inapplicable to
 3   the Sally Zukerkorn Trust because it was an inter vivos trust as
 4   opposed to a testamentary trust.           Thus, Herbert’s postpetition
 5   income distributions were not property of the estate.          On
 6   September 2, 2011, the bankruptcy court entered its order
 7   denying the Trustee’s motion to compel turnover of property of
 8   the estate.      The Trustee timely appealed.
 9                              II.   JURISDICTION
10            The bankruptcy court had jurisdiction over this proceeding
11   under 28 U.S.C. §§ 1334 and 157(b)(2)(E).          We have jurisdiction
12   under 28 U.S.C. § 158.
13                                 III.    ISSUES
14            A.   Did the bankruptcy court err by deciding that Hawaii
15   law rather than California law should govern the Sally Zukerkorn
16   Trust?
17            B.   Did the bankruptcy court err in concluding that the
18   postpetition income distributions from the Sally Zukerkorn Trust
19
20
          5
21           At issue in the evidentiary hearing was whether the
     spendthrift trust was enforceable under Hawaii law when Herbert
22   was both the beneficiary and dominant spendthrift trustee. The
     issue which generated the evidentiary hearing has not been
23   briefed by the Trustee in this appeal and therefore has been
24   waived. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). In
     the Memorandum on Motion for Turnover, the bankruptcy court
25   upheld the spendthrift provision finding that Herbert did not
     have full control over the trust assets and that the whole
26   purpose of the trust was to keep Herbert from exercising
     unfettered control equivalent to ownership. The court further
27
     found that under Hawaii law, Herbert’s interest was protected
28   from the claims of creditors incurred for the necessities of life
     and taxes.

                                          -6-
 1   to Herbert were excluded from property of the estate?6
 2                           IV.     STANDARD OF REVIEW
 3            We review de novo the bankruptcy court’s decisions on
 4   summary judgment, choice of law questions, statutory
 5   interpretation and whether property is property of the estate.
 6   Ghomeshi v. Sabban (In re Sabban), 600 F.3d 1219, 1221-22 (9th
 7   Cir. 2010) (summary judgment); Mazza v. Am. Honda Mtr. Co., 666
 8   F.3d 581, 589 (9th Cir. 2012) (choice of law); Simpson v.
 9   Burkart (In re Simpson), 557 F.3d 1010, 1014 (9th Cir. 2009)
10   (statutory interpretation); White v. Brown (In re White), 389
11   B.R. 693, 698 (9th Cir. BAP 2008) (property of the estate).
12                              V.     DISCUSSION
13            The trustee is charged with the duty of collecting and
14   reducing to money the property of the estate.        § 704(a).
15   Property of the bankruptcy estate is property in which the
16   debtor has a “legal or equitable interest as of the commencement
17   of the case.”      § 541(a)(1).    Section 541(c)(2) excludes from the
18   property of the estate any property that is held in trust and
19   subject to a restriction on transfer under applicable
20   nonbankruptcy law.      An anti-alienation provision in a valid
21
22        6
             The Trustee listed two additional issues on appeal in her
     Designation of Record and Statement of Issues on Appeal: (1) Did
23   the Bankruptcy Court err in concluding that the Debtor’s entire
24   interest in the principal and income of a spendthrift trust was
     not property of the estate where the Debtor exercised
25   discretionary control over the Trust as both trustee and
     beneficiary? and (2) Did the Bankruptcy Court err in concluding
26   that the Debtor’s entire interest in the principal and income of
     a spendthrift trust was not property of the estate where the
27
     Debtor owed substantial claims to creditors for the necessities
28   of life? These issues were not discussed on appeal and therefore
     have been waived. Smith, 194 F.3d at 1052.

                                          -7-
 1   spendthrift trust created under state law is an enforceable
 2   restriction on the transfer of a beneficial interest of the
 3   debtor.     Patterson v. Shumate, 504 U.S. 753, 758 (1992).
 4           The bankruptcy court found that the Sally Zukerkorn Trust
 5   was a valid spendthrift trust and that ruling has not been
 6   appealed.     The Trustee’s main complaint on appeal is that the
 7   bankruptcy court erred in upholding Sally’s choice of Hawaii law
 8   when Herbert was domiciled in California and filed bankruptcy
 9   there.     Based on these facts, the trustee argues that California
10   law should apply.
11           Hawaii recognizes spendthrift trusts, see Welsh v.
12   Campbell, 41 Haw. 106 (Haw. 1955) and Haw. Rev. Stat. § 554G-
13   5(d),7 as does California, see Canfield v. Sec. First Nat. Bank,
14   87 P.2d 830 (Cal. 1939) and Cal. Prob. Code, §§ 15300, 15301.
15   However, California limits the scope of the spendthrift
16   protection under Cal. Prob. Code § 15306.5.     That statute
17   provides that a judgment creditor may obtain an “order directing
18   the trustee to satisfy all or part of the judgment out of the
19   payment to which the beneficiary is entitled under the
20   [spendthrift] trust instrument, . . .” as long as the payment
21   does not exceed twenty-five percent of the funds otherwise
22   available to the beneficiary.8    Because a bankruptcy trustee
23
         7
24         In addition, Hawaii law provides that a restriction on
   transfers in a Hawaii trust instrument is a restriction “that is
25 enforceable under applicable nonbankruptcy law within the meaning
   of § 541(c)(2) of the Bankruptcy Code.” Haw. Rev. Stat. § 554G-
26 5(d).
27       8
           Even then, this rule is subject to further qualification.
28 California law imposes a significant limitation on a creditor’s
                                                      (continued...)

                                      -8-
 1   enjoys the powers of a hypothetical judgment creditor under
 2   § 544(a)(1), the Ninth Circuit has held that the trustee can
 3   seek an order under Cal. Prob. Code § 15306.5 to obtain twenty-
 4   five percent of a valid spendthrift trust.    Neuton v. Danning
 5   (In re Neuton), 922 F.2d 1379 (9th Cir. 1990).    Due to the
 6   differences in Hawaii and California law, the parties do not
 7   dispute that there is a genuine conflict in the laws of the two
 8   states.    We thus look to choice of law rules for guidance.
 9        Federal courts in the Ninth Circuit and California state
10   courts both look to the Restatement (Second) of Conflicts of Law
11   (1971) (the “Restatement”) for the choice of law rules.    See
12   Liberty Tool & Mfg. v. Vortex Fishing Sys., Inc. (In re Vortex
13   Fishing Sys., Inc.), 277 F.3d 1057, 1069 (9th Cir. 2002);
14   Mandalay Resort Grp. v. Miller (In re Miller), 292 B.R. 409, 413
15   (9th Cir. BAP 2003); see also Nedlloyd Lines B.V. v. Super. Ct.,
16   834 P.2d 1148, 1151 (Cal. 1992)(California courts apply the
17   principles set forth in the Restatement Second of Conflict of
18   Laws).    Although § 6 of the Restatement sets forth general
19   factors for consideration in a choice of law analysis,9 the
20
          8
21        (...continued)
   right to reach payments made to a beneficiary of a spendthrift
22 trust. Cal. Prob. Code § 15306.5(c) exempts from payments to
23 which a creditor would be entitled under Cal. Prob. Code
   § 15306.5 “any amount that the court determines is necessary for
24 the support of the beneficiary and all the persons the
   beneficiary is required to support.”
25
        9
           The general factors relevant to a choice of law analysis
26 are: (a) the needs of the interstate and international systems;
   (b) the relevant policies of the forum; (c) the relevant policies
27
   of other interested states and the relative interests of those
28 states in the determination of the particular issue; (d) the
                                                      (continued...)

                                     -9-
 1   Restatement also points to specific factors related to the issue
 2   at hand.    Here, the validity and enforceability of the choice of
 3   law clause in Sally’s trust implicates both contract choice of
 4   law rules and those applicable to trusts.10
 5         Section 187 of the Restatement relates to contracts and
 6   provides:
 7         (1) The law of the state chosen by the parties to
           govern their contractual rights and duties will be
 8         applied if the particular issue is one which the
           parties could have resolved by an explicit provision
 9         in their agreement directed to that issue.
10         (2) The law of the state chosen by the parties to
           govern their contractual rights and duties will be
11         applied, even if the particular issue is one which the
           parties could not have resolved by an explicit
12         provision in their agreement directed to that issue,
           unless either
13
           (a) the chosen state has no substantial relationship
14         to the parties or the transaction and there is no
           other reasonable basis for the parties’ choice, or
15
16
           9
17         (...continued)
     protection of justified expectations; (e) the basic policies
18   underlying the particular field of law; (f) certainty,
     predictability and uniformity of result; and (g) ease in the
19
     determination and application of the law to be applied. These
20   factors are not exclusive and “[v]arying weight will be given to
     a particular factor, or to a group of factors, in different areas
21   of choice of law.” Restatement § 6 cmt. c.
22        10
             It has been said that trust law lies between, but also
     overlaps, with contract law and property law. See Thomas P.
23   Gallanis, The New Direction of Am. Trust Law, 97 Iowa L.Rev. 215,
24   234 (2011). Those who view trust law as closer to contract law
     see a trust as a contract between the settlor and the trustee,
25   with the trust’s beneficiaries being “akin to contractual
     third-party beneficiaries.” Id. at 235. Those who view trust
26   law as closer to property law, view a trust as “a property
     arrangement arising from a conveyance or devise, not a contract.”
27
     Id. Under either view, the choice of law rules for contracts and
28   trusts set forth in the Restatement contain factors that are
     substantially similar for purposes of our analysis.

                                     -10-
 1        (b) application of the law of the chosen state would
          be contrary to a fundamental policy of a state which
 2        has a materially greater interest than the chosen
          state in the determination of the particular issue and
 3        which, under the rule of § 188, would be the state of
          the applicable law in the absence of an effective
 4        choice of law by the parties.
 5
          Comment g of §6 states:
 6
          Protection of justified expectations. This is an
 7        important value in all fields of the law, including
          choice of law. Generally speaking, it would be unfair
 8        and improper to hold a person liable under the local
          law of one state when he had justifiably molded his
 9        conduct to conform to the requirements of another
          state. Also, it is in part because of this factor
10        that the parties are free within broad limits to
          choose the law to govern the validity of their
11        contract (see § 187) and that the courts seek to apply
          a law that will sustain the validity of a trust of
12        movables (see §§ 269-270).
13        In applying § 187 of the Restatement, the California
14   Supreme Court in Nedlloyd Lines, 834 P.2d at 1158, explained:
15        [T]he proper approach under Restatement section 187,
          subdivision (2) is for the court first to determine
16        either: (1) whether the chosen state has a
          substantial relationship to the parties or their
17        transaction, or (2) whether there is any other
          reasonable basis for the parties’ choice of law. If
18        neither of these tests is met, that is the end of the
          inquiry, and the court need not enforce the parties’
19        choice of law. If, however, either test is met, the
          court must next determine whether the chosen state’s
20        law is contrary to a fundamental policy of California.
          If there is no such conflict, the court shall enforce
21        the parties’ choice of law. If, however, there is a
          fundamental conflict with California law, the court
22        must then determine whether California has a
          ‘materially greater interest than the chosen state in
23        the determination of the particular issue. . . .’ If
          California has a materially greater interest than the
24        chosen state, the choice of law shall not be enforced,
          for the obvious reason that in such circumstance we
25        will decline to enforce a law contrary to this state’s
          fundamental policy.
26
27        Choice of law rules pertaining to trusts also inform our
28   analysis.   Similar to the contractual area, choice of law


                                    -11-
 1   principles generally respect a designation in a trust which
 2   provides that certain law be applied to interpret it.   In its
 3   introductory note, Chapter 10 of the Restatement pertaining to
 4   trusts states:
 5        The creation of a trust is a method by which the owner
          of property makes a disposition of it. The chief
 6        purpose in making decisions as to the applicable law
          is to carry out the intention of the creator of the
 7        trust in the disposal of the trust property. It is
          important that his intention, to the extent to which
 8        it can be ascertained, should not be defeated, unless
          this is required by the policy of a state which has
 9        such an interest in defeating his intention, as to the
          particular issue involved, that its local law should
10        be applied. . .
11        Section 268(1) of the Restatement provides: “A will or
12   other instrument creating a trust of interests in movables is
13   construed in accordance with the rules of construction of the
14   state designated for this purpose in the instrument.”   Comment
15   (b) of this section states:
16        When law designated by the settlor or testator to
          govern construction[,] [t]he courts will give effect
17        to a provision in a trust instrument . . . that it
          should be construed in accordance with the rules of
18        construction of a particular state. It is not
          necessary that this state have any connection with the
19        trust. This is because construction is a process for
          giving meaning to an instrument in areas where the
20        intentions of the party, or parties, would have been
          followed if they had been made clear. (emphasis added)
21
22        Finally, as to the trust’s validity, § 270(a) of the
23   Restatement states that an inter vivos trust is valid if valid
24        [U]nder the local law of the state designated by the
          settlor to govern the validity of the trust, provided
25        that this state has a substantial relation to the
          trust and that the application of its law does not
26        violate a strong public policy of the state with
          which, as to the matter at issue, the trust has its
27        most significant relationship . . . .
28        Comment (b) to § 270 of the Restatement states:


                                   -12-
 1        Law designated by the settlor to govern validity of
          the trust. Effect will be given to a provision in the
 2        trust instrument that the validity of the trust shall
          be governed by the local law of a particular state,
 3        provided that this state has a substantial relation to
          the trust and that the application of its local law
 4        does not violate a strong public policy of the state
          with which as to the matter at issue the trust has its
 5        most significant relationship.
 6        A state has a substantial relation to a trust when it
          is the state, if any, which the settlor designated as
 7        that in which the trust is to be administered, or that
          of the place of business or domicile of the trustee at
 8        the time of the creation of the trust, or that of the
          location of the trust assets at that time, or that of
 9        the domicile of the settlor, at that time, or that of
          the domicile of the beneficiaries. There may be other
10        contacts or groupings of contacts which will likewise
          suffice.
11
12                               Analysis
13        On appeal, the Trustee does not contend there was a genuine
14   issue of material fact that prevented entry of summary judgment
15   for Herbert on the choice of law question.   Instead, the Trustee
16   argues that on the undisputed facts before us, the bankruptcy
17   court erred as a matter of law in concluding that Hawaii law
18   applied.
19        First, the Trustee maintains that the strong public policy
20   of California embodied in Cal. Prob. Code § 15306.5 demonstrates
21   that California had a materially greater interest in the
22   spendthrift trust than Hawaii.    According to the Trustee, Cal.
23   Prob. Code § 15306.5 reflects the California legislature’s
24   intent that “trust-fund babies” should get no better treatment
25   than wage earners when it comes to judgment creditors.11   Thus,
26   the Trustee argues, the legislature enacted Cal. Prob. Code
27
         11
28           We could locate no reference to trust-fund babies in
     connection with the statute.

                                      -13-
 1   § 15306.5 to correspond to the wage garnishment statute which
 2   subjects wage earners to a levy on twenty-five percent of their
 3   monthly income.
 4        Second, the Trustee contends that the court erred by giving
 5   some factors under the Restatement little weight.     In this
 6   regard, the Trustee contends that California is not only the
 7   forum of the dispute, but also the forum that Debtors themselves
 8   chose.   The Trustee further asserts that California has the most
 9   substantial relation to the trust, because Herbert - both as
10   trustee and as one of the trust’s primary beneficiaries - is and
11   has been a California resident and seeks to retain his exempt
12   assets pursuant to California’s exemption scheme.     We address
13   each of the Trustee’s arguments in turn.
14        As can be seen by the rules stated above, choice of law
15   questions involve a multi-step analysis in which a variety of
16   factors are considered.   We start from the premise that the
17   Restatement reflects a strong policy favoring enforcement of
18   choice of law provisions.   In the contract area this policy
19   protects the justified expectations of the parties and in the
20   trust area this policy carries out the intention of the creator
21   of the trust which is given great import.     In addition, choice
22   of law provisions are usually respected by California courts in
23   the area of both contracts and trusts.     See Nedlloyd Lines, 834
24   P.2d at 1151; Cal. Prob. Code § 21103.12     We thus examine whether
25
26       12
              Cal. Prob. Code § 21103 provides:
27
         The meaning and legal effect of a disposition in an
28       instrument is determined by the local law of a
                                                        (continued...)

                                    -14-
 1   any exception to the general rule of upholding a party’s choice
 2   of law is warranted under these circumstances.13
 3         Under the Restatement, Sally’s choice of Hawaii law should
 4   be upheld if Hawaii has a substantial relation to her trust.
 5   Restatement § 187(2)(a); § 270(a).    Comment b of § 270 of the
 6   Restatement provides that a state has a substantial relation to
 7   a trust if at the time the trust is created:    (1) the trustee or
 8   settlor is domiciled in the state; (2) the assets are located in
 9   the state; and (3) the beneficiaries are domiciled in the state.
10   These contacts with the state are not exclusive.
11         Applying these contacts, there is little question that the
12   State of Hawaii has a substantial relation to the Sally
13   Zukerkorn Trust.   At the time Sally created the trust in 1978,
14   approximately 34 years ago, the trustee and settlor (Sally) was
15   domiciled in Hawaii, her assets were located in Hawaii, and
16   Herbert, one of the beneficiaries, was domiciled in Hawaii and
17   remained a citizen of Hawaii for over 70 years.    Furthermore,
18   the trust is administered by a Hawaii corporate trustee.    These
19
           12
20          (...continued)
          particular state selected by the transferor in the
21        instrument unless the application of that law is
          contrary to the rights of the surviving spouse to
22        community and quasi-community property, to any other
          public policy of this state applicable to the
23
          disposition . . . .
24        13
             The dissent departs from our analysis in one sharp
25   respect which leads to its different conclusion: rather than
     give weight to the expectations of Sally as creator of the trust
26   when she chose Hawaiian law to govern the execution of her
     wishes, the dissent ignores Sally altogether and focuses instead
27
     on Herbert and his creditors as the only relevant parties. We
28   believe this vision ignores the principles of the Restatement and
     leads to the incorrect result.

                                    -15-
 1   same contacts — and there is nothing in the record to the
 2   contrary — demonstrate that Sally had a reasonable basis for her
 3   choice of Hawaii law to govern her trust.    Because Hawaii has a
 4   substantial relationship to the parties and a reasonable basis
 5   otherwise exists for the choice of law, Sally’s choice will be
 6   enforced unless the Trustee can establish (1) that the chosen
 7   law is contrary to a fundamental policy of California and (2)
 8   that California has a materially greater interest in the
 9   determination of the particular issue.    Wash. Mut. Bank FA v.
10   Sup. Ct., 15 P.3d 1071, 1079 (Cal. 2001).
11        There is no bright-line definition of a “fundamental
12   policy.”   Restatement § 187 comment g.   A fundamental policy
13   must be “substantial,” and “may be embodied in a statute which
14   makes one or more kinds of contracts illegal or which is
15   designed to protect a person against the oppressive use of
16   superior bargaining power.” Id.   “California’s narrow, public
17   policy exception to the resolution of conflicts through a
18   neutral comparison of government interests . . . applies only
19   when foreign law is so offensive to [California] public policy
20   as to be ‘prejudicial to . . . recognized standards of morality
21   and to the general interest of the citizens. . . .’”    McGhee v.
22   Arabian Am. Oil Co., 871 F.2d 1412, 1423 n. 8 (9th Cir. 1989)
23   (quoting Wong v. Tenneco, Inc., 702 P.2d 570, 576 (1985)).
24   Under these standards, we understand the public policy exception
25   in choice of law analysis to require something more than the law
26   of the other state be different from the law of California.
27        Here, the Trustee simply points to Cal. Prob. Code
28   § 15306.5 as if it were a statutory declaration that California


                                    -16-
 1   public policy would be offended by enforcing the choice of law
 2   clause in Sally’s trust.   The Trustee has not identified any
 3   recognized standard of morality in California that is impacted
 4   by the application of Hawaii law in this case nor does she
 5   explain how upholding a Hawaii choice of law clause in an
 6   otherwise valid spendthrift trust adversely affects the “general
 7   interests of Californians.”   Although self-settled trusts are
 8   void and against public policy in California, as found by the
 9   bankruptcy court here and not challenged on appeal, the Sally
10   Zukerkorn Trust is not a self-settled trust.14   Without more,
11   there is inadequate authority for us to find that Cal. Prob.
12   Code § 15306.5, standing alone, is a fundamental policy of
13   California.
14        Even if we were to find that California has such a
15   fundamental policy, pursuant to the Restatement (Second) of
16   Conflict of Laws § 187(2)(b), the Trustee still has to show that
17   California has a materially greater interest than Hawaii in the
18   determination of the particular issue.   The relative weight of
19   material interest in the determination of an issue requires the
20
21
         14
           California law voids self-settled trusts to prevent
22 individuals from placing their property beyond the reach of their
   creditors. Nelson v. Cal. Trust Co., 202 P.2d 1021 (Cal.1949).
23 The Nelson court explained the rationale for the rule:
24
        It is against public policy to permit a man to tie up
25      his property in such a way that he can enjoy it but
        prevent his creditors from reaching it, and where the
26      settlor makes himself a beneficiary of a trust any
        restraints in the instrument on the involuntary
27
        alienation of his interest are invalid and ineffective.
28
   Id. at 1021.

                                    -17-
 1   court to weigh a number of factors, including where the contract
 2   was made, the state where a party to the contract is domiciled,
 3   where the events that are the subject of the case transpired,
 4   the origin of the laws that plaintiffs seek to invoke, the
 5   public policy expressed by those laws, the number of contacts a
 6   state has with the subject matter of a case, and the nature of
 7   the state’s interest in the case.      Klussman v. Cross Country
 8   Bank, 134 Cal.App.4th 1283, 1299 (Cal. Ct. App. 2005).
 9        The Trustee argues that California has a materially greater
10   interest than Hawaii because (1) Herbert is now domiciled in
11   California;15 (2) the chapter 7 petition was filed in California;
12   and (3) some of Debtors’ scheduled unsecured creditors are
13   located in California.
14        At first blush, the Trustee’s argument has appeal.      Upon
15   the filing of their bankruptcy, debtors obtained the benefit of
16   California exemption laws based on the fact that California was
17   their domicile.   These laws allow Debtors to shield certain
18   assets from execution by their creditors.      Therefore, it could
19   be said that California has some interest in the choice of law
20   determination at issue in this case because Debtors have taken
21   advantage of its laws that regulate debtor-creditor
22   relationships.    However, as noted above, a number of essential
23   elements demonstrate that Hawaii had the more substantial
24   relation to the trust and that the State of California had no
25   relationship with the Sally Zukerkorn Trust other than the fact
26
         15
           Herbert Zukerkorn’s children who are the remainder
27
   beneficiaries of the Zukerkorn Trust are not residents of
28 California. The Trustee has not pointed to any authority that
   eliminates from consideration secondary beneficiaries.

                                     -18-
 1   that Herbert, one of the beneficiaries, lived in California.
 2   Therefore, on balance, we cannot say that under these
 3   circumstances California has a “materially greater” interest
 4   than Hawaii in the determination of the choice of law issue.
 5        Finally, we are not persuaded by case law the Trustee cites
 6   in support of her position.   In Marine Midland Bank v. Portnoy
 7   (In re Portnoy), 201 B.R. 685 (Bankr. S.D.N.Y. 1996), Larry
 8   Portnoy transferred all of his personal property to an offshore
 9   trust at a time he knew that his guarantee to a New York bank of
10   the debts of his New York company would soon be called.    Portnoy
11   was both the settlor and beneficiary of the offshore trust.
12   After he filed his chapter 7 petition, the creditor that held
13   his guaranty sought to deny his discharge alleging, among other
14   things, that Portnoy had transferred his assets to an offshore
15   trust in Jersey, but remained de facto owner by continuing to
16   maintain unlimited control over the assets and conceal the
17   trust.
18        In deciding whether debtor had control over the assets of
19   the trust, the court first had to decide whether the law of New
20   York or Jersey law, which was the trust’s choice of law,
21   supplied the substantive rules.   The court found:
22        That Portnoy settled the trust in Jersey, designated
          the trust to be administered in Jersey, and appointed
23        a Jersey resident as trustee, gives Jersey an
          undeniable relationship to the trust. On the other
24        hand, Portnoy, who is both the settlor and primary
          beneficiary, Portnoy’s creditors, and the other
25        beneficiaries are all United States domiciliaries.
          Portnoy’s creditors have no contacts with Jersey, and
26        Portnoy had the greatest contact with the United
          States at the time he settled the trust and reasonably
27        could have believed that United States law would be
          applicable . . . . On balance, I conclude that New
28        York has the weightier concern in determining whether


                                    -19-
 1          or not whatever rights Portnoy retained after he
            formed the trust could be considered to constitute a
 2          property interest such that that interest should have
            been disclosed in his bankruptcy schedules. The
 3          trust, the beneficiaries, and the ramifications of
            Portnoy’s assets being transferred into trust have
 4          their most significant impact in the United States. In
            addition, I believe that application of Jersey’s
 5          substantive law would offend strong New York and
            federal bankruptcy policies if it were applied . . . .
 6
 7   Id. at 698.
 8          In discussing New York’s policies, the court observed that
 9   under New York law, “‘when a person creates for his own benefit
10   a discretionary trust, his creditors can reach the maximum
11   amount which the trustee under the terms of the trust could pay
12   to him or apply for his benefit, even though the trustee in the
13   exercise of his discretion wished to pay nothing to the
14   beneficiary or to his creditors, and even though the beneficiary
15   could not compel the trustee to pay him anything . . . . ’”        Id.
16   In contrast to New York’s policies, the bankruptcy court found
17   that Jersey’s interest in the trust was perhaps to only “augment
18   business.”    Id.   at 700.   In the end, the court stated:   “I
19   think it probably goes without saying that it would offend our
20   policies to permit a debtor to shield from creditors all of his
21   assets because ownership is technically held in a self-settled
22   trust, where the settlor/beneficiary nonetheless retains control
23   over the assets and may effectively direct disposition of those
24   assets.”    Id.   Based on New York’s “deeply rooted” policies, the
25   court found that New York law applied.
26          The court also found a second basis for applying New York
27   law.    According to the court, a choice of law “will not be
28   regarded where it would operate to the detriment of strangers to


                                       -20-
 1   the agreement, such as creditors or lienholders.”     Id. at 701
 2   (quoting Hong Kong and Shanghai Banking Corp., Ltd. v. HFH USA
 3   Corp., 805 F.Supp. 133, 140 (W.D.N.Y.1992) ) and citing Carlson
 4   v. Tandy Computer Leasing, 803 F.2d 391 (8th Cir.1986); Ferrari
 5   v. Barclays Bus. Credit (In re Morse Tool, Inc.), 108 B.R. 384,
 6   386 (Bankr. D. Mass. 1989).   In that regard, the court found
 7   that the only person that was a party to this choice of law
 8   provision was Portnoy himself.    “Portnoy may not unilaterally
 9   remove the characterization of property as his simply by
10   incorporating a favorable choice of law provision into a
11   self-settled trust of which he is the primary beneficiary.”       Id.
12        Portnoy is distinguishable from the facts here.     First,
13   unlike Portnoy, we concluded, as did the bankruptcy court, that
14   Sally and her trust had a substantial relation to Hawaii at the
15   time it was created.   Moreover, once the Portnoy court found
16   insufficient contacts, its rationale for finding a “deeply
17   rooted” New York policy was based on New York law applicable to
18   self-settled trusts.   The policy that a debtor should not be
19   able to escape claims of his creditors by himself setting up a
20   spendthrift trust and naming himself as beneficiary is not
21   unique to New York, but also relevant in California.     See
22   Nelson, 202 P.2d 1021.   However, because Herbert did not
23   establish a self-settled trust to escape the claims of his
24   creditors, the public policy behind self-settled trusts in
25   California is not applicable here.      As stated above, we found no
26   California public policy on spendthrift trusts that warranted
27   application of the public policy exception under the facts of
28   this case.


                                      -21-
 1        The Portnoy court’s second reason for applying New York law
 2   is also not relevant to this case.     The Eighth Circuit’s
 3   decision in Carlson v. Tandy Computer Leasing, 803 F.2d 391,
 4   393-94 (8th Cir. 1986) discussed choice of law rules with
 5   respect to the Missouri Uniform Commercial Code (“U.C.C.”).
 6   There, the parties to a contract involving computer equipment
 7   were Brock, the lessee, and Tandy, the lessor.     Following the
 8   execution of the contract, Brock filed a petition in bankruptcy.
 9   The bankruptcy trustee attempted to claim the computer equipment
10   for the bankruptcy estate on the basis that Tandy’s interest in
11   the property was an unperfected security interest.     Whether the
12   contract was deemed a lease or an installment sales contract
13   would determine whether Tandy could repossess the equipment or
14   whether the trustee had priority over Tandy with respect to the
15   equipment.   Id. at 393.
16        Brock and Tandy had agreed in the lease agreement that
17   Texas law would apply, even though the equipment was located in
18   Missouri.    Citing § 1-105 of the Missouri UCC, the court noted
19   that parties were generally free to choose which state’s law
20   shall govern, unless the dispute fell within an exception.
21   Under § 1-105 of the Missouri UCC, there are five exceptions,
22   all involving third party rights, where a choice of law clause
23   in the contract would not prevail.     One such limitation was
24   found in § 9-102 of the Missouri U.C.C., which provided that
25   Article 9 of the Missouri U.C.C. shall apply to any transaction
26   intended to create a security interest in personal property
27   located in Missouri.   A “lease intended as security” is one type
28   of security interest included in section 9-102.


                                     -22-
 1        The court further explained:
 2        The policy behind section 1-105(2), especially as it
          relates to the scope of Article 9 of the Missouri
 3        U.C.C., is to prohibit choice of law agreements when
          the rights of third parties are at stake. . . . If we
 4        applied Texas law to determine whether a security
          interest existed here, this would violate a
 5        fundamental purpose of Article 9: to create commercial
          certainty and predictability by allowing third party
 6        creditors to rely on the specific perfection and
          priority rules that govern collateral within the scope
 7        of Article 9. In order to prevent the constant
          unilateral expansion and contraction of the scope of
 8        Missouri’s Article 9, a Missouri court would apply
          Missouri law to determine the scope of Article 9 of
 9        the Missouri U.C.C.
10   Id. at 394.   Ultimately, the Eighth Circuit found that the
11   Missouri U.C.C. did not apply, but nonetheless upheld the
12   district’s court application of Missouri law and holding that
13   the agreement between the parties was a lease.
14        The Portnoy court adopted the reasoning behind the U.C.C.
15   choice of law rules for purposes of the self-settled trust
16   involved.   However, that reasoning does not apply under the
17   facts of this case.   We decline to import the rule in Portnoy
18   simply because the Trustee enjoys the rights of a judgment
19   creditor under § 544(a)(1).   Further, importing such a rule
20   under these circumstances would completely ignore Sally’s intent
21   when she created her trust.   The choice of law rules in the
22   Restatement state that only in the absence of a substantial
23   relationship, or if public policy dictates, should courts deny a
24   party’s choice of law.
25        Last, in In re Morse Tool, Inc., 108 B.R. 384 (Bankr. D.
26   Mass. 1989), the bankruptcy court disregarded a choice of law
27   provision when ruling in an adversary action that was a
28   fraudulent conveyance matter.   The court found that the parties


                                     -23-
 1   to a contractual conveyance cannot in their contract make a
 2   choice of law that binds creditors who allege that they were
 3   defrauded by the conveyance.    Id. at 386.   The rule in this case
 4   has no bearing on the outcome of this appeal.
 5        For all these reasons, we agree with the bankruptcy court
 6   that Sally’s choice of Hawaii law should be applied to her
 7   trust.   Accordingly, the bankruptcy court properly granted
 8   summary judgment in favor of Herbert on the choice of law issue.
 9        Although § 541(c)(2) excludes the corpus of the trust from
10   property of the estate, the postpetition distributions of income
11   from a spendthrift trust may become property of the estate under
12   § 541(a)(5)(A) if the trust is testamentary in nature.    Relying
13   on § 541(a)(5)(A), the Trustee maintained that she was entitled
14   to $42,000 in income distributions that Herbert received for the
15   180 days after the filing of his bankruptcy.
16        The bankruptcy court rejected this position because
17   § 541(a)(5)(A) does not apply to inter vivos trusts.    In re
18   Neuton, 922 F.2d at 1384 n.6.    The Trustee concedes in her
19   appeal brief that § 541(a)(5)(A) was inapplicable because the
20   Sally Zukerkorn Trust was an inter vivos trust.    Nonetheless,
21   relying on In re Neuton, the Trustee asserts for the first time
22   on appeal that the 180-day limitation under § 541(a)(5)(A) was
23   immaterial and that once Herbert was actually paid distributions
24   from the trust, the distributions became property of the estate
25   under §§ 541(a)(6) and (7).    These arguments do not appear in
26   the record and the bankruptcy court’s decision following the
27   evidentiary hearing does not address either of these statutes.
28   We decline to consider these issues which are raised for the


                                     -24-
 1   first time on appeal.   Cold Mountain v. Garber, 375 F.3d 884,
 2   891 (9th Cir. 2004).
 3                            VI.   CONCLUSION
 4        For the reasons stated, we AFFIRM.
 5
 6
 7
 8
 9
10                     Dissent begins on next page.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28


                                    -25-
 1   JOHNSON, Bankruptcy Judge, dissenting:
 2
 3        The issue on appeal is whether a bankruptcy court should
 4   apply the trust laws of the forum state where the bankruptcy
 5   court sits and where the debtor elected to file his bankruptcy
 6   case (California) or, instead, the laws of another state
 7   (Hawaii) selected in a trust document by the benefactor of the
 8   debtor.   In one sense, this issue is novel.      Neither the
 9   appellant nor the appellee has cited any case directly on point
10   and we could not find one either.       No known case (federal, state
11   or otherwise) addresses whether a court sitting in California
12   should enforce Probate Code section 15306.5 against assets in a
13   trust created by an instrument that invokes the trust law of
14   another state or jurisdiction.
15        However, published cases throughout the country have
16   considered the broader question of whether a court should apply
17   the trust law of a forum state or the trust law of another state
18   designated in a trust instrument.       A review of those cases
19   reveals a pattern in which the courts have generally declined to
20   apply the trust law of a foreign jurisdiction selected by the
21   settlor of a trust if doing so would harm creditors or other
22   third parties.   In other words, while some courts have applied
23   the trust law of a foreign jurisdiction, they usually do not do
24   so to the detriment of creditors or other third parties.        When
25   enforcing a judgment against assets of a trust, courts typically
26   apply the judgment remedies of the forum state when those laws
27   protect creditors more than the law of the other jurisdiction.
28        To avoid this result, the Debtor urges us to adopt a view


                                      -26-
 1   of the Restatement (Second) of Conflict of Laws (“Restatement”)
 2   which applies to parties who consent to bilateral agreements.
 3   But that reasoning does not apply here.    This is not a situation
 4   in which one party to a contract seeks to hold another party to
 5   the contract to a choice of law provision to which both parties
 6   agreed in the contract.    To the contrary, the Debtor (who is not
 7   a party to the Zukerkorn trust agreement) seeks to enforce its
 8   terms against other parties (the trustee and creditors) who are
 9   also not parties to the agreement.     Because the Restatement does
10   not provide for this result, and should not be so interpreted, I
11   respectfully dissent.
12                 I. Cases When Courts Disregard Choice of
13                   Law Provisions in Trust Instruments
14        In general, courts typically refrain from applying the
15   trust law of a foreign jurisdiction selected by the settlor of a
16   trust if doing so would harm creditors or other third parties.
17   In most instances, the judgment remedies of the forum state
18   apply.    For example, in Marine Midland Bank v. Portnoy (In re
19   Portnoy), 201 B.R. 685 (Bankr. S.D.N.Y. 1996), the debtor
20   created a self-settled trust in the Jersey Channel Islands and
21   transferred his assets into that trust.    The debtor included in
22   the trust instrument a provision that stated his creditors could
23   not reach his assets.    When the debtor filed a personal
24   bankruptcy case in New York, one of his creditors asserted that
25   the assets of the trust constituted assets of the bankruptcy
26   estate.    The debtor argued that (1) the trust instrument
27   provided for the application of the law of Jersey Channel
28   Islands (not New York) and (2) under the law of Jersey Channel


                                     -27-
 1   Islands, creditors could not reach the trust assets.    The
 2   bankruptcy court disagreed for two reasons.
 3        First, the bankruptcy court (like many other courts)
 4   declined to allow a debtor to shield assets from creditors by
 5   creating a self-settled trust.    Second, the bankruptcy court
 6   applied New York law for an additional reason: “In addition
 7   there is a second basis upon which to apply New York law--a
 8   choice of law provision ‘will not be regarded where it would
 9   operate to the detriment of strangers to the agreement, such as
10   creditors or lienholders.’” Id. at 701 (citing cases).    The
11   court declined to enforce the choice of law provision in the
12   trust agreement because doing so would harm “strangers to the
13   agreement, such as creditors or lienholders.” Id.
14        Other courts have followed the reasoning in Portnoy and not
15   allowed a debtor to shield assets from a creditor by relying
16   upon a trust instrument that invokes a foreign jurisdiction.
17   Instead, when application of local law would protect creditors
18   more than a foreign jurisdiction, the courts have applied the
19   local law of the forum state when interpreting a trust agreement
20   and not the foreign law selected in the trust instrument.
21   Goldberg v. Lawrence (In re Lawrence), 227 B.R. 907 (Bankr.
22   S.D.Fla. 1998) (Florida bankruptcy court followed Portnoy by
23   applying Florida trust law and not the laws of a foreign
24   jurisdiction selected in the trust instrument); Sattin v. Brooks
25   (In re Brooks), 217 B.R. 98, 103 (Bankr.D.Conn. 1998)
26   (Connecticut bankruptcy court applied Connecticut trust law, not
27   the law of a foreign jurisdiction designated in a trust
28   agreement, because application of the foreign laws would harm


                                      -28-
 1   creditors).
 2        On appeal, the Debtor attempts to distinguish Portnoy and
 3   similar cases on the basis that these cases often involve fraud
 4   by the settlors in establishing the trusts.   But the cases do
 5   not turn on this factual premise.    To the contrary, the courts
 6   have been careful to state that the choice of law decision does
 7   not depend on whether or not fraud by the settlor exists.
 8   Indeed, they often declare that it is “irrelevant” whether the
 9   settlor of the trust intended to defraud creditors or whether
10   the settlor was solvent at the time. Portnoy, 201 B.R. at 685,
11   698 (Bankr. S.D.N.Y. 1996) (stating that it is “irrelevant”
12   whether or not the settlor of the trust intended to defraud
13   anyone); Goldberg v. Lawrence (In re Lawrence), 227 B.R. 907,
14   917 (Bankr. S.D.Fla. 1998) (noting that it is “irrelevant”
15   whether or not the settlor of a trust intended to defraud
16   anyone); In re Brooks, 217 B.R. 98, 103 (quoting the Restatement
17   (Second of Trusts) and stating that is “not relevant” whether or
18   not the settlor has any intention to defraud his creditors).
19   Likewise, the Restatement states that the intent of the settlor
20   of a trust is not relevant when evaluating whether a self-
21   settled trust can defeat the claims of creditors.   See
22   1 Restatement (Second) of Trusts § 156, Comment a. (“It is
23   immaterial that the settlor-beneficiary had no intention to
24   defraud his creditors.”).
25        Regardless of the intent of the settlor, choice of law
26   provisions in trust agreements are not enforced if the law of
27   the forum state prohibits self-settled trusts.   If a trust
28   instrument states that the trust is governed by the law of a


                                   -29-
 1   foreign jurisdiction, that choice of law is not honored if the
 2   beneficiary files a bankruptcy case in a different jurisdiction
 3   that prohibits self-settled trusts.   As a matter of public
 4   policy, the laws of the forum state override the choice of law
 5   decision by the settlor.   It is against public policy to enforce
 6   a trust provision from a foreign jurisdiction that would impose
 7   this kind of harm upon creditors.
 8            II. Cases When Courts Disregard Choice of Law
 9            Provisions in Other Contracts
10        On appeal, Herbert contends that his mother’s trust is not
11   a self-settled trust and, of course, he is correct.   But
12   Portnoy, Lawrence, Brooks, Cameron and similar cases establish
13   precedent against enforcing a choice of law provision in a trust
14   instrument if doing so would harm creditors.   A settlor of a
15   trust cannot invoke the laws of a foreign jurisdiction to the
16   detriment of creditors or other third parties who are not
17   parties to the trust instrument.
18        The idea that a choice of law provision in an agreement is
19   not enforced to the detriment of third parties appears in other
20   areas of the law.   For example, in Carlson v. Tandy Computer
21   Leasing, 803 F.2d 391, 393-94 (8th Cir. 1986), the debtor
22   entered into a “lease” of certain computer equipment from Tandy
23   pre-petition.   After the debtor filed a bankruptcy case, the
24   bankruptcy trustee sued Tandy arguing that the “lease” was
25   actually a disguised installment sales contract and that Tandy
26   should be treated as a seller of goods that retained an
27   unperfected and avoidable security interest.   Whether the
28   contract was deemed a lease or an installment sales contract


                                    -30-
 1   would determine whether Tandy could repossess the equipment or
 2   whether the bankruptcy trustee had priority over Tandy with
 3   respect to the equipment.
 4        Tandy and the debtor agreed in the “lease” agreement that
 5   Texas law would apply but the debtor filed the bankruptcy case
 6   in Missouri.   Acting pursuant to his strong-arm powers as a
 7   hypothetical lienholder under section 544, the trustee contended
 8   that neither the trustee nor the creditors whose interests the
 9   trustee protected were bound by the choice of law provision in
10   the “lease” agreement.   The trustee argued for the application
11   of Missouri law.
12        The bankruptcy court ruled in favor of the trustee.     The
13   Missouri bankruptcy court held that Missouri law applied and
14   that under Missouri law, the “lease” should be treated as an
15   installment sales contract.   The district court reversed and
16   held that the trustee was bound by the law selected by Tandy and
17   the debtor in the “lease” agreement (Texas law) and that under
18   Texas law, the agreement must be construed as a true lease.      The
19   Court of Appeals affirmed the decision of the district court but
20   not its reasoning.
21        Instead, the Court of Appeals held that Missouri law
22   applied.   The Court of Appeals stated “[w]e conclude that
23   because the dispute in question implicates the rights of third
24   party creditors, Missouri law should be applied.” Tandy, 803
25   F.2d at 393.   The Court of Appeals was not willing to enforce
26   the choice of law provision in the agreement against a trustee
27   or other parties who were not parties to the agreement.    The
28   Court stated that the “present case is unlike those situations


                                    -31-
 1   where only the rights of parties privy to the initial choice of
 2   law agreement are implicated . . . .      In those situations, no
 3   policy is furthered by refusing to allow the parties to select
 4   the law governing their rights alone.” Id. at 394.      When the
 5   rights of third parties are implicated, however, the Court did
 6   not enforce the choice of law provision in an agreement against
 7   non-parties.
 8        Likewise, a similar result occurred in In re Eagle
 9   Enterprises Inc., 223 B.R. 290 (E.D. Pa. 1998), affirmed, 237
10   B.R. 269 (E.D. Pa. 1999).     In Eagle, a German “lessor” purported
11   to “lease” certain equipment to an American debtor.    When the
12   debtor filed a bankruptcy case in Pennsylvania, the chapter 7
13   trustee asserted that the “lease” was really a disguised security
14   interest under the UCC and not a true lease and, because the German
15   company had not perfected its security interest, it had no interest
16   of any kind in the equipment.    The German company responded by
17   arguing that the debtor agreed in the lease agreement that German
18   law would govern and, under German law, the agreement was a true
19   lease.
20        The trustee prevailed.     The Court declined to follow German
21   law and, instead, applied the Uniform Commercial Code and held the
22   agreement was not a true lease.    In declining to enforce the choice
23   of law provision selected by the parties, the Court noted that many
24   courts have held that a choice of law provision in a contract is
25   not valid if it negatively affects the rights of third parties.       It
26   may govern the rights between the parties but if the rights of a
27   third party are also affected, the choice of law provision is not
28   binding.


                                       -32-
 1
          Under normal circumstances, contracting parties are free
 2        to stipulate what state’s or nation’s law will govern
          their contractual rights and duties, provided that the
 3        state or nation has a reasonable relationship with the
          transaction, and the law chosen does not violate a
 4        fundamental public policy of the forum state....
          Nonetheless, the parties’ stipulation will not be
 5        regarded where it would operate to the detriment of
          strangers to the agreement, such as creditors or
 6        lienholders . . . .
 7   See In re Eagle Enterprises, 223 B.R. at 295 (emphasis added)
 8   (quoting Hong Kong and Shanghai Banking Corp. v. HFH USA Corp., 805
 9   F.Supp. 133, 139-40 (W.D.N.Y. 1992)).    A similar holding occurred
10   in Ferrari v. Barclay’s Bus. Credit, Inc. (In re Morse Tool, Inc.),
11   108 B.R. 384 (Bankr. D. Mass. 1989).     In Ferrari, a bankruptcy
12   trustee filed an action to avoid a security agreement as a
13   fraudulent transfer.   The parties to the agreement included a
14   provision stating that Connecticut law would govern the agreement.
15   The trustee attacked the agreement as a fraudulent transfer and the
16   Massachusetts bankruptcy court decided whether it would apply
17   Massachusetts law or Connecticut law.    Following section 6 of the
18   Restatement, the Court applied the law of the forum state
19   (Massachusetts).
20        The Court refused to apply the choice of law provision in the
21   agreement because the trustee (and the creditors of the debtor) was
22   not a party to the agreement and the law selected would be
23   disadvantageous to them.   The Court stated as follows:
24
         And one of the parties to this suit -- the Trustee, who stands
25       in the shoes of the creditors -- was not a party to the
         contract. The parties to a contractual conveyance cannot in
26       their contract make a choice-of-law that binds creditors who
         allege that they were defrauded by the conveyance. The
27       choice-of-law binds only parties to the contract, not the
         Trustee or the creditors.
28


                                       -33-
 1         Ferrari, 108 B.R. at 386.
 2   The Court rejected the argument that, pursuant to section 187 of
 3   the Restatement, the choice of law provision selected by the
 4   parties to the agreement should control.
 5
 6         Section 187 of the Restatement states that, under
           certain circumstances, ‘the law of the state chosen by
 7         the parties to govern their contractual rights and
           duties will be applied.’ Restatement (Second), § 187(1)
 8         and (2) (emphasis added). This section, on which
           Barclays relies, plainly applies only to suits between
 9         parties to a contract regarding their rights and duties
           under the contract. And it applies only where the
10         parties to the suit have chosen which state’s law will
           govern. Neither of these circumstances applies here.
11
12   Id.    Because the parties to the lawsuit were not parties to the
13   contract, it would be inappropriate to enforce the choice of law
14   provision.
15         . . . . the contract is not between the parties to the
           suit, but between two parties whom the plaintiff (a
16         creditor or a bankruptcy trustee) alleges executed the
           contract for the very purpose of defrauding creditors.
17         In view of this, it makes no sense to follow the choice-
           of-law clause in the agreement between Barclays and the
18         Debtor. That would be tantamount to giving the
           defendant unilateral control over the choice-of-law,
19         which clearly would violate the requirements of due
           process.
20
21   Id. at 387.     Thus, cases such as Tandy, Eagle and Ferrari, decline
22   to enforce a choice of law provision against individuals who are
23   not parties to the agreement.     That is true in this case.   Herbert
24   is not a party to the trust.      Neither are his creditors nor the
25   trustee.     And Sally’s creditors are not parties to the trust
26   instrument either.
27          Indeed, no one agreed to anything with Sally.    She simply
28   selected a choice of law that she preferred and now Herbert wants


                                       -34-
 1   to use Sally’s choice as a sword (or shield) against Herbert’s
 2   creditors and the trustee.    The California legislature will let
 3   her do so but only up to 75%.    In that sense, this case presents a
 4   conflict between Sally and the California legislature.      The latter
 5   should prevail.
 6                       III. Similar New York Statutes
 7        As discussed above, courts have declined to enforce choice of
 8   law provisions in trust instruments or other agreements if doing
 9   so would harm creditors or other individuals who are not parties
10   to the agreement.    Instead, they apply the law of the forum state
11   in order to protect creditors.    Therefore, in California,
12   bankruptcy courts should enforce section 15306.5 of the California
13   Probate Code which permits creditors to reach up to 25% of the
14   assets of a spendthrift trust even if the trust instrument asserts
15   California law should not govern.       Although there is no specific
16   case directly on point reaching this conclusion, other courts have
17   done so under similar facts.
18        For example, the laws of the state of New York governing
19   spendthrift trusts are similar to California law.      In New York,
20   spendthrift trusts are not fully protected.      Section 5205 of the
21   New York Civil Practice Code governs enforcement of judgments
22   against assets held in a trust in New York and the provisions of
23   Section 5205 are similar to California law.       Section 5205(c)
24   provides a general exemption for assets held in a trust (like
25   section 15301(a) of the California Probate Code) and section
26   5205(d) creates an exception to this protection (like section
27   15306.5 of the California Probate Code) that permits a creditor to
28   attach between 10% to 100% of the income from a spendthrift trust.


                                      -35-
 1    So, as in California, creditors may reach a portion of the income
 2    of a spendthrift trust (between 10% to 100%).     Although the
 3    percentages are different,1 both states allow creditors to invade
 4    spendthrift trusts to some extent.
 5            Given this statutory regime, New York courts have
 6    occasionally been called upon to address the issue that has arisen
 7    in the Zukerkorn case.    Specifically, if a creditor in New York
 8    seeks to enforce a judgment against a New York debtor who is the
 9    beneficiary of a trust agreement, can the creditor seek to be paid
10    from trust assets under section 5205 even if the trust agreement
11    states it is governed by Connecticut law or any law other than New
12    York.    At least two New York cases have held that New York law
13    applies.
14            For example, this issue was directly addressed in In the
15    Matter of Wheat, 246 N.Y.S.2d 536 (1963).    In that case, John
16    Wheat failed to pay spousal support to his former wife.     Mr. Wheat
17    was the beneficiary of two trusts established by his deceased
18    parents.    His ex-wife sought to attach the income from the trusts
19    in New York.    The New York bank that acted as the trustee for the
20    trusts opposed the enforcement of the judgment against the trust
21    assets.    The New York court overruled that opposition and allowed
22    the creditor to attach 10% of the income of the trust.
23        1
             California Probate Code section 15306.5 permits creditors
24   to reach up to 25% of the assets of a trust. The statute
     establishes a range of between 0% to 25%. There is no minimum
25   amount that creditors receive and a maximum of 25% exists.
          In New York, creditors are entitled to a minimum of 10% of
26   the income of a spendthrift trust and the court has the power to
     increase this 10% amount (theoretically) up to 100% to the extent
27
     (if any) that the trust assets are not necessary for the
28   “reasonable requirements of the judgment debtor and his
     dependents . . . .” See NY CPLR § 5205(d).

                                       -36-
 1        The New York court noted it was “undisputed” that Mr. Wheat’s
 2   mother “was at the time of her death domiciled in Connecticut and
 3   that her will was admitted to probate in that State.”   Id. at 538.
 4   The Court also noted that the trust instrument was “executed and
 5   delivered in the State of Connecticut” and specifically stated
 6   that “it shall be governed and construed in all respects according
 7   to the laws of the State of Connecticut”.   Id.   Although the New
 8   York court stated that generally “the laws of the State where the
 9   trust is established is ruled to be applicable”, the New York
10   court declined to follow Connecticut law for attachment purposes.
11   The Court cited section 5205 which would allow the creditor to
12   recover 10% and stated as follows:
13        “The narrow question to be decided is whether the income
          from these two trusts is subject to attachment and, if
14        so, to what extent. Though the trusts may in many
          respects be controlled by the law of Connecticut, so far
15        as the right to attachment is concerned we are required
          to apply the law of New York. Attachment is a matter of
16        remedy, and questions affecting it must therefore be
          ruled by the law of the forum . . . .”
17
18   Wheat, 246 N.Y.S.2d at 539 (emphasis added).   So while the Court
19   indicated that Connecticut law would apply when construing the
20   trust generally, it would not supplant New York law for attachment
21   purposes.   In other words, the choice of law provision by the
22   settlor would not defeat the rights of creditors under section
23   5205 against a New York debtor in a New York court.
24        The United States District Court for the Southern District of
25   New York reached a similar conclusion in a tax case entitled
26   United States v. Pearson, 67-1 U.S. Tax Cas. (CCH) P9460; 1967
27   U.S. Dist. LEXIS 10762 (S.D.N.Y. 1967).   The Pearson case involved
28   a complicated inter-creditor dispute in a case in which a debtor


                                    -37-
 1   was a beneficiary of a spendthrift trust established in
 2   Connecticut.   The debtor had voluntarily assigned his interest in
 3   the trust to a creditor to secure a $50,000 loan and the New York
 4   District Court enforced that assignment based on Connecticut law.
 5          Specifically, the District Court held that Connecticut law
 6   should apply when considering the voluntary transfer of the
 7   interest in the trust because the settlor and his wife resided in
 8   Connecticut at the time of their death.    Since Connecticut law (at
 9   the time) allowed the beneficiary of a spendthrift trust to
10   anticipate and assign an interest in a trust (which is typically
11   not permitted in modern times) the creditor was able to enforce
12   the assignment under Connecticut law even though New York law did
13   not permit such assignments.    In effect, the Court enforced the
14   terms of the contract between the lender and ruled that, under
15   Connecticut law, the assignment of an interest in a trust to
16   secure a loan is enforceable.
17          However, another creditor (Annabelle Pearson) sought to levy
18   on the assets of the trust in order to satisfy an unpaid debt.
19   Ms. Pearson did not have a voluntary assignment from the debtor of
20   any interest in the trust.     Therefore, Ms. Pearson needed to rely
21   upon New York attachment law.    The New York District Court applied
22   New York attachment law as to Ms. Pearson.
23          The Court held that under New York law, a provision in a
24   spendthrift trust that prohibits creditors from reaching such
25   assets is enforceable against the levying creditor.2    However,
26      2
          Pearson, 1967 U.S. Dist. LEXIS 10762 at *13 (“When New
   York law is applicable, by reason of Section 15 of the Personal
27
   Property Law as it existed during the prior proceedings herein
28 and as it now exists, the right of Pearson to receive income
                                                      (continued...)

                                      -38-
 1   pursuant to section 5205, the levying creditor could reach 10% of
 2   the income of the trust.      The Court cited section 5205 as the
 3   available remedy and then quoted extensively from the decision in
 4   Wheat.3   As to the levying creditor (Ms. Pearson), the Court fully
 5   applied New York law against a testamentary trust which the Court
 6   considered otherwise governable by Connecticut law.     The Court
 7   held that the rights of the nonconsensual levying creditors should
 8   be governed by the attachment law of the forum state (New York).
 9   The Court stated:
10        “Although, as heretofore determined, the validity of the
          voluntary assignment by Pearson must be controlled by
11        the law of Connecticut as a substantive matter, the
          attempt of Rathkopf and Annabelle Webb Pearson to reach
12        Pearson’s income by judgment, attachment or suit, unlike
          that of Penn, must be determined as a procedural matter
13        by the law of the State of New York.”
14   Pearson, 1967 U.S. Dist. LEXIS 10762 at *14.     So, in both Wheat
15   and Pearson, judgment creditors were able to invoke New York
16   attachment law (section 5205) to invade spendthrift trusts
17   otherwise governed by Connecticut law.4
18                           IV.    The Restatement
19        On appeal, Herbert wants the Court to apply section 187 of
20   the Restatement to resolve this dispute.     Section 187 provides
21
    (...continued)
22 under the testamentary trust cannot be transferred by assignment
   or otherwise.”).
23      3
          Pearson, 1967 U.S. Dist. LEXIS 10762 at *14-*17.
24
        4
          The Pearson decision was clearly not what Annabelle
   Pearson hoped for. She apparently wanted the trust interpreted
25 according to Connecticut law because New York law enforces anti-
   alienation clauses in trust agreements. In that regard, applying
26 New York law harmed Ms. Pearson, the levying creditor, because
   her claim was not paid in full. But the Court still permitted
27
   her to invoke section 5205 and reach the assets of the trust
28 “subject to whatever statutory limitations may be imposed under
   the laws of the State of New York.” Pearson, 1967 U.S. Dist.
   LEXIS 10762 at *23.

                                       -39-
 1   that a forum state should apply the law chosen by the parties
 2   unless a “fundamental policy” of the forum state provides
 3   otherwise.    The “fundamental policy” test is a high standard and
 4   it makes sense for the Restatement to impose this high standard
 5   when the parties before a court have voluntarily selected a
 6   particular choice of law in their agreement.     Parties to contacts
 7   should be held to their agreements.
 8           But those facts do not apply to this case.   Section 187(1)
 9   states that the “law of the state chosen by the parties to govern
10   their contractual rights and duties will be applied . . .” and
11   section 187(2) states that the “law of the state chosen by the
12   parties to govern their contractual rights and duties will be
13   applied . . . .” (emphasis added).      None of the parties to the
14   present appeal (not even Herbert) selected the law of Hawaii.
15   That was the choice of Sally, not Herbert, the trustee or
16   Herbert’s creditors.    Therefore, section 187 simply does not apply
17   on its face and, likewise, the “fundamental policy” test does not
18   apply either.
19           Instead, the introductory note to chapter 10 of the
20   Restatement pertains to trusts and it states:
21           The creation of a trust is a method by which the owner
             of property makes a disposition of it. The chief
22           purpose in making decisions as to the applicable law is
             to carry out the intention of the creator of the trust
23           in the disposal of the trust property. It is important
             that his intention, to the extent to which it can be
24           ascertained, should not be defeated, unless this is
             required by the policy of a state which has such an
25           interest in defeating his intention, as to the
             particular issue involved, that its local law should be
26           applied. . . .
27   Section 270(a) of the Restatement states that a trust is valid if
28   valid



                                      -40-
 1        . . . under the local law of the state designated by the
          settlor to govern the validity of the trust, provided
 2        that this state has a substantial relation to the trust
          and that the application of its law does not violate a
 3        strong public policy of the state with which, as to the
          matter at issue, the trust has its most significant
 4        relationship . . . .
 5        Comment (b) to § 270 of the Restatement states:
 6        Law designated by the settlor to govern validity of the
          trust. Effect will be given to a provision in the trust
 7        instrument that the validity of the trust shall be
          governed by the local law of a particular state,
 8        provided that this state has a substantial relation to
          the trust and that the application of its local law does
 9        not violate a strong public policy of the state with
          which as to the matter at issue the trust has its most
10        significant relationship.
11        Section 270(a) of the Restatement has two prongs: “the
12   substantial relation” prong and the “strong public policy” prong.
13   Therefore, under section 270(a), Hawaii law would apply if Hawaii
14   “has a substantial relation to the trust and that the application
15   of its law does not violate a strong public policy of
16   [California].”
17          A. The Trust Does Not Currently Have A Substantial
18                    Relationship To The State of Hawaii.
19        With respect to the former, Herbert argues that Hawaii has a
20   “substantial relation to the trust”.    This was certainly true when
21   Sally, Herbert and Jack were all alive and lived in Hawaii.
22   However, as with many things in life, events changed.
23        Herbert has outlived Sally and Jack.     Both died nearly three
24   decades ago.     The record indicates that Herbert is the only
25   remaining primary beneficiary as Jack has died and Herbert’s
26   children have received his portion of the inheritance from Sally.
27   Real property assets in Hawaii were sold and converted to cash a
28   decade ago.    Herbert controls millions of dollars in trust assets

                                      -41-
 1   as trustee and is the beneficiary of the assets of the trust.      The
 2   interests of the trust and Herbert are closely aligned.    This is
 3   Herbert’s trust (at least in practical terms).
 4        Therefore, when Herbert elected to move to California, the
 5   relationship between the trust and the state of Hawaii diminished.
 6   It no longer makes sense to state that Hawaii currently has a
 7   “substantial” relationship with the trust.   A relationship may
 8   still exist between the trust and Hawaii but it is no longer
 9   substantial.
10          B. California Probate Code Section 15306.5 Reflects
11             A Strong Public Policy Under California Law.
12        But even if the Court accepted Herbert’s argument that the
13   trust he now controls in California still has a “substantial”
14   relationship with Hawaii, the second prong of section 270(a)
15   provides the most significant problem for Herbert.   Applying
16   Hawaii law would run afoul of a strong public policy embodied in
17   California Probate Code section 15306.5.
18        As discussed above, choice of law provisions in trust
19   instruments are not enforced in certain circumstances (i.e. with
20   respect to self-settled trusts).    The Courts agree that a “strong
21   public policy” exists against self-settled trusts.   On appeal, the
22   Trustee argues that California has other important policies that
23   support the application of California law instead of Hawaii law.
24        Specifically, the Trustee argues on appeal that
25   section 15306.5 promotes equality between debtors in California.
26   Under California law, individuals who work for a living and
27   generate wages are subject to wage garnishment.    Creditors may
28   attach up to 25% of earned wages.

                                   -42-
 1        But the system of wage garnishment does not affect
 2   individuals who enjoy so much wealth that they need not work
 3   because they are the beneficiaries of spendthrift trusts
 4   established by wealthy parents or other benefactors.   The
 5   garnishment procedure does not apply to income from trusts.
 6   Instead, the California legislature enacted Section 15306.5 to
 7   promote equality.   Section 15306.5 (in concert with the wage
 8   garnishment laws) insures that debtors who receive income from a
 9   wealthy trust do not receive more protection from their creditors
10   than people who must work and rely upon wages for income.      This
11   equal treatment seems reasonable and rational and reflects a
12   sensible strong policy judgment by the California legislature.
13        Applying section 15306.5 is also consistent with those cases
14   that do not enforce self-settled trusts.   For example, Herbert
15   does not dispute that Sally could not have shielded any of her
16   assets from her own creditors.    Neither Hawaii nor California law
17   allowed her to do that.   Instead, Sally wanted to provide a multi-
18   million dollar gift to her sons (and grandchildren) and prevent
19   their creditors from reaching those assets.   The California
20   legislature allows this type of transfer but not 100%.     Creditors
21   can reach up to 25% of those funds just like they can reach 25% of
22   earned wages.   There does not appear to be any reason to treat the
23   multi-million dollar gift from Sally to Herbert any differently
24   than the wages earned from an employer.
25        This issue is magnified when thinking about ordinary
26   Californians who live from paycheck to paycheck.   Most of those
27   paychecks are subject to wage garnishment of up to 25%.
28   Therefore, section 15306.5 promotes equality among debtors whether

                                      -43-
 1    they are rich or poor debtors.     Treating similarly situated
 2    individuals equally constitutes a “strong” public policy which
 3    satisfies the requirements of section 270(a) of the Restatement.
 4            The attachment laws in New York also support this view.   As
 5    in California, New York treats wage garnishment and trusts the
 6    same.     Under section 5205 of the New York Civil Practice Code, a
 7    creditor can reach wages and trust income to the same extent.
 8    Section 5205 treats these sources of income in the same manner and
 9    section 5205 is enforced even if a trust instrument seeks
10    application of the laws of another jurisdiction.    Section 15306.5
11    of the California Probate Code should be applied in the same
12    manner.    Section 15306.5 is entitled to the same respect as
13    section 5205.
14            Also, a failure to apply Section 15306.5 would result in the
15    inconsistent application of the law.    Indeed, it would give
16    Herbert the protection of the laws of two states in a manner that
17    neither state contemplated.    In effect, Herbert would enjoy the
18    benefits of a new enhanced hybrid legal system.
19            Hawaii law protects assets in trusts more extensively than
20    California law.    On the other hand, California law contains very
21    generous exemptions that are considerably better than Hawaiian
22    exemptions.5    Each state has created a combination of laws that
23    protects the assets of debtors according to different criteria.
24        5
             For example, the maximum homestead exemption in Hawaii is
25   only $30,000 but the maximum in California is $175,000. Compare
     Hawaii Revised Statutes section 651-92(a)(1) and California Code
26   of Civil Procedure section 704.730(a)(3). Likewise, the personal
     property exemptions in California appear to be considerably more
27   generous than in Hawaii. Compare Hawaii Revised Statutes section
     651-121 with California Code of Civil Procedure sections 704.010-
28
     704.210.

                                       -44-
 1   The legislatures of each state have reached different conclusions
 2   regarding which kind of assets should be protected and to what
 3   degree.
 4        Herbert wants the best of both worlds.      Herbert wants the
 5   benefit of Hawaii’s more generous trust laws and California’s more
 6   generous exemption laws.   But doing so would not be consistent
 7   with the system of laws enacted in either state.
 8        California allows more generous exemptions but is more
 9   restrictive in its trust laws.    Hawaii has less generous
10   exemptions but has more protective trust laws.     Each legislature
11   is best suited to look at the larger picture (in each state) and
12   make appropriate adjustments unique to the needs of both states.
13   A decision in favor of Herbert would give him the best of both
14   worlds simply because he moved from Hawaii to California.        Herbert
15   would not have this advantage had he remained in Hawaii.
16        In that sense, Herbert seeks the benefits of his decision to
17   move to California but not its burdens.      Herbert wants the
18   benefits of moving to California (enhanced exemption law) but not
19   its burdens (reduced protection for trusts).     But that would
20   elevate Herbert to a status above most citizens of California (who
21   do not benefit from Hawaii trust law) and most citizens of Hawaii
22   (who cannot invoke California exemption laws).     When contemplating
23   a choice of law question, the better decision is to apply the law
24   in such a manner that treats people equally to the greatest extent
25   possible.   This result not only promotes equality but also
26   personal responsibility.
27                              V.   CONCLUSION
28        Accordingly, for the reasons stated, I respectfully dissent.


                                      -45-
 1   Pursuant to section 270(a) of the Restatement, California law
 2   should apply, not Hawaii law.
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                                     -46-
