PECKHAM, District Judge.
This case is before the Court on a petition to review a turnover order of the Referee in Bankruptcy. Petitioner is an attorney who had instituted, on behalf of the bankrupt, a personal injury action in the state courts. This state court suit was begun prior to the adjudication of petitioner's client as bankrupt. The Trustee sought to have the petitioner appointed as special counsel for the Trustee in prosecuting the civil action on the theory that title to the cause of action had vested in the Trustee. Petitioner resisted, claiming that the Trustee had no rights in the personal injury action and had no powers with regard to the attorney-client relationship between petitioner and bankrupt. The Trustee then filed an application for a turnover order, and, following hearing, the Referee ordered that petitioner turn over to the Trustee all legal files relating to the personal injury action. Petitioner has refused to comply since he takes the position that the summary jurisdiction of the bankruptcy court does not extend to this situation. Petitioner then filed this petition for review.
Two questions must be decided:
Discussion of question No. 1. Section 70 of the Bankruptcy Act (11 U.S.C. § 110) provides in pertinent part that:
Thus, we look to the law of California to determine whether the personal injury action herein is subject, under that law, to "attachment, execution, garnishment, sequestration, or other judicial process." If it is, then the title to it is vested in the Trustee.
This precise question has been decided by the Ninth Circuit Court of Appeals in Carmona v. Robinson, 336 F.2d 518 (1964). The Court there concluded that under section 688.1 of the California Code of Civil Procedure,
Petitioner's position is incompatible with the holding of Carmona and of this court that a personal injury cause of action is "property" within section 70(a) (5) of the Bankruptcy Act, title to which therefore vests in the Trustee.
Discussion of question No. 2. Given the fact that by virtue of section 70(a) (5) and the Carmona decision the Trustee holds title to the cause of action, the next question is what are his rights vis-a-vis the attorney previously retained by the bankrupt and the legal files in that attorney's possession.
The petitioner herein was retained by the bankrupt pursuant to a contingent fee contract. This contract
With regard to the legal files pertaining to the personal injury action, section 70(a) (1) of the Bankruptcy Act — giving the Trustee title to documents relating to the bankrupt's property— compels the conclusion that legal title to the files now resides in the Trustee. The word "documents" in section 70(a) (1) is defined in section 1(16) as including "any book, deed, record, paper, or instrument in writing."
Finally, insofar as petitioner argues that the Referee does not have summary jurisdiction over this legal file, he is incorrect. A Bankruptcy Court possesses summary jurisdiction as to all property in its possession, either actual or constructive possession.
Accordingly, the Referee's Order Directing Turnover of Property to Trustee is hereby affirmed. The Trustee is entitled to the immediate possession of the items enumerated therein.
§ 688.1 Judgment creditor of plaintiff; order granting lien; notice; intervention; extent of lien; endorsement upon judgment and abstract
Upon motion of a judgment creditor of any party in an action or special proceeding made in the court in which the action or proceeding is pending upon written notice to all parties, the court or judge thereof may, in his discretion, order that the judgment creditor be granted a lien upon the cause of action, or the right to relief, if the party or parties against whom the lien is sought are appearing in a capacity other than plaintiff and upon any judgment subsequently procured in such action or proceeding, and, during the pendency of such action, may permit said judgment creditor to intervene therein. Such judgment creditor shall have a lien to the extent of his judgment upon all moneys recovered by his judgment debtor in such action or proceeding and no compromise, settlement or satisfaction shall be entered into by or on behalf of said debtor without the consent of said judgment creditor, unless his lien is sooner satisfied or discharged. * * * (As amended by Stats.1968).
The 1968 amendments did not change § 688.1 in such a way as to undermine the Carmona interpretation. The section was again amended (Stats.1970), but the effect of these amendments, if any, need not be considered since their effective date was November 23, 1970, that is, after the adjudication of bankruptcy herein.
The issues raised herein do not, therefore, usually arise. But having arisen, their correct disposition is clear.