FILED
NOT FOR PUBLICATION AUG 17 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
In the Matter of: PALOMBA No. 11-55218
WEINGARTEN,
D.C. No. 2:10-cv-05648-ABC
Debtor,
MEMORANDUM *
ILENE SUZANNE WEINGARTEN;
MARC GORDON WEINGARTEN,
Appellants,
v.
DAVID A. GILL,
Appellee.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, Chief District Judge, Presiding
Argued and Submitted August 10, 2012
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: SILVERMAN and WARDLAW, Circuit Judges, and FOGEL, District
Judge.**
Marc and Ilene Weingarten appeal the district court’s order affirming the
bankruptcy court’s denial of their motion to intervene in a bankruptcy proceeding
in which their parents and two qualified personal residence trusts are the named
defendants. We have jurisdiction pursuant to 28 U.S.C. § 158(d)(1), and we
affirm.
Under Federal Rule of Civil Procedure 24(a)(2),1 a proposed intervenor must
demonstrate that it has a “significant protectable interest relating to the property or
transaction that is the subject of the action.” United States v. Alisal Water Corp.,
370 F.3d 915, 919 (9th Cir. 2004) (internal quotation marks omitted). The
Weingartens have a contingent future interest in the property currently held in their
mother’s qualified personal residence trust (the “QPRT”). A contingent future
interest is a recognized estate under California law. See In re Zuber's Estate, 304
P. 2d 247, 251-52 (Cal. 1956). However, because the Weingartens’ interest in the
QPRT property is revocable if their mother dies before the year 2027, it is not
**
The Honorable Jeremy D. Fogel, United States District Judge for the
Northern District of California, sitting by designation.
1
Rule 7024 of the Federal Rules of Bankruptcy Procedure makes Rule 24
applicable to bankruptcy adversary proceedings.
2
sufficiently “direct, non-contingent, [and] substantial” to justify intervention.
Dilks v. Aloha Airlines, 642 F.2d 1155, 1156-57 (9th Cir. 1981) (per curiam). See
also Alisal, 370 F.3d at 920 n.3 (noting that a “mere interest in property that may
be impacted by litigation” is insufficient to support intervention).
Moreover, even assuming that the Weingartens have a significant
protectable interest in the QPRT property, the bankruptcy court properly denied
their motion to intervene because they failed to demonstrate that “the existing
parties may not adequately represent [the Weingartens’] interest.” Id. at 919
(internal quotation marks omitted). A presumption of adequate representation
arises when a current party to the litigation has the same “ultimate objective” as the
proposed intervenor. Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003).
The Weingartens and their parents share the same ultimate objective of defeating
the Trustee’s attempt to recover the QPRT property. Moreover, the Weingartens
are represented by the same counsel as their father, indicating that he is “capable
and willing to make” the same arguments that the Weingartens would make if they
were permitted to intervene. United States v. City of Los Angeles, 288 F.3d 391,
398 (9th Cir. 2002).
The Weingartens have failed to demonstrate either a significant protectable
interest in the QPRT property or a danger that their interests will not be adequately
3
represented if they do not intervene. Therefore, the bankruptcy court properly
denied their motion to intervene.
AFFIRMED.2
2
The Trustee’s February 8, 2012 Motion to Supplement Record is granted.
4