An v. Il Yoon Kwon (In Re An) , 710 F. App'x 771 ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 8 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: ALBERT S. AN and LAURI I. AN, No. 16-60071
Debtors. BAP No. 16-1001
______________________________
ALBERT S. AN and LAURI I. AN, MEMORANDUM*
Appellants,
v.
IL YOON KWON and COASTAL ASSET
MANAGEMENT, LLC,
Appellees.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Kirscher, Kurtz, and Faris, Bankruptcy Judges, Presiding
Submitted February 6, 2018**
Pasadena, California
Before: GRABER and HURWITZ, Circuit Judges, and MARBLEY,*** District
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
Judge.
Albert S. and Lauri I. An, husband and wife, appeal a Bankruptcy Appellate
Panel (“BAP”) decision affirming in part the bankruptcy court’s holding that a state-
court judgment was not dischargeable under 11 U.S.C. § 523(a)(6) as to Albert, but
reversing that determination as to Lauri. We have jurisdiction under 28 U.S.C.
§ 158(d) and affirm.
1. The Ans argue that 11 U.S.C. § 523(a)(6) does not apply, because the
judgment was the result of a landlord-tenant dispute that “sounded in contract.” But
the ejectment action that gave rise to the judgment arose “out of alleged unlawful
possession by the defendant[s], and sounds in tort.” Zettle v. Gillmeister, 222 P. 645,
646 (Cal. Dist. Ct. App. 1923); see also Petralia v. Jercich (In re Jercich), 238 F.3d
1202, 1205 (9th Cir. 2001) (holding that § 523(a)(6) excepts from discharge debts
arising from “tortious conduct” (quoting Snoke v. Riso (In re Riso), 978 F.2d 1151,
1154 (9th Cir. 1992))).
2. The BAP did not err in concluding that the judgment was not dischargeable
against Albert. The bankruptcy court reasonably determined that the injury to Kwon
was “willful and malicious.” See 11 U.S.C. § 523(a)(6). Substantial evidence
supported the court’s determination that the injury was willful because Albert “did
not believe that there was an oral agreement to own an interest in the property,” and
“his intention . . . was . . . to continue riding the gravy train for as long as possible
2
at Mr. Kwon’s expense.” See In re Jercich, 238 F.3d at 1208 (holding that “the
willful injury requirement . . . is met when it is shown either that the debtor had a
subjective motive to inflict the injury or that the debtor believed that injury was
substantially certain to occur”). The Ans do not “specifically and distinctly” contest
on appeal that the injury was malicious, so we deem that issue waived. Miller v.
Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986).1
AFFIRMED.
1
The Ans also argue that the bankruptcy court erred in finding the judgment
non-dischargeable as to Lauri. But the BAP reversed that portion of the bankruptcy
court’s order, and there is no cross-appeal.
3