In re: Richard Jay Blaskey

FILED
1 NOT FOR PUBLICATION
AUG 08 2016
2
SUSAN M. SPRAUL, CLERK
U.S. BKCY. APP. PANEL
3 UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT
4 OF THE NINTH CIRCUIT
5
6 In re: ) BAP No. CC-15-1348-FDKu
)
7 RICHARD JAY BLASKEY, ) Bk. No. 8:11-bk-21187-ES
)
8 Debtor. ) Adv. Pro. 8:11-ap-01462-ES
_____________________________ )
9 )
BARTON PROPERTIES, INC.; )
10 STEPHEN SELINGER, )
)
11 Appellants, )
)
12 v. ) MEMORANDUM*
)
13 RICHARD JAY BLASKEY, )
)
14 Appellee. )
______________________________)
15
Argued and Submitted on July 28, 2016
16 at Pasadena, California
17 Filed – August 8, 2016
18 Appeal from the United States Bankruptcy Court
for the Central District of California
19
Honorable Erithe A. Smith, Bankruptcy Judge, Presiding
20
21 Appearances: Anthony A. Patel argued for Appellants Barton
Properties, Inc. and Stephen Selinger; Chad V.
22 Haes of Marshack Hays LLP argued for Appellee
Richard Jay Blaskey.
23
24 Before: FARIS, DUNN, and KURTZ, Bankruptcy Judges.
25
26 *
This disposition is not appropriate for publication.
27 Although it may be cited for whatever persuasive value it may
have, see Fed. R. App. P. 32.1, it has no precedential value, see
28 9th Cir. BAP Rule 8024-1.
1 INTRODUCTION
2 This appeal arises out of a $1,000,320 state court judgment
3 against appellee/chapter 71 debtor Richard Jay Blaskey in favor
4 of appellants Barton Properties, Inc. and Stephen Selinger. In
5 summary, the bankruptcy court determined that the state court
6 judgment was not nondischargeable debt under §§ 523(a)(2)(A),
7 (a)(4), or (a)(6). On appeal, we affirmed as to § 523(a)(4), but
8 vacated and remanded the bankruptcy court’s judgment as to
9 §§ 523(a)(2)(A) and (a)(6) for the court to apply the correct
10 standard of proof. On remand, the court articulated the ordinary
11 preponderance of the evidence standard and reaffirmed its prior
12 determination that Appellants failed to establish that
13 Mr. Blaskey’s debt was nondischargeable under §§ 523(a)(2)(A) and
14 (a)(6). We find no error in the court’s conclusion.
15 Accordingly, we AFFIRM.
16 FACTUAL BACKGROUND2
17 A. Proceedings before the bankruptcy court3
18 Appellants retained Mr. Blaskey, an attorney, in 2004 to
19 represent them in various state court cases. Among other legal
20 matters, the parties agreed that Mr. Blaskey would represent
21 Appellants in three unrelated lawsuits.
22
1
23 Unless specified otherwise, all chapter and section
references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532.
24
2
We have exercised our discretion to review the bankruptcy
25 court’s docket, as appropriate. See Woods & Erickson, LLP v.
26 Leonard (In re AVI, Inc.), 389 B.R. 721, 725 n.2 (9th Cir. BAP
2008).
27
3
The following facts are taken from our decision in the
28 previous appeal, BAP No. CC-14-1340-KuDKi, with some alterations.
2
1 In 2007, Appellants discovered that Mr. Blaskey had been
2 derelict in representing them in the underlying actions to such
3 an extent that the state court presiding over the underlying
4 actions had entered adverse orders and judgments against Barton
5 Properties. As a result, in 2008, Barton Properties sued
6 Mr. Blaskey in state court for legal malpractice, breach of
7 contract, fraud, and breach of fiduciary duty. The state court
8 entered a default judgment against Mr. Blaskey in 2010.
9 Mr. Blaskey commenced his bankruptcy case in August 2011,
10 and Appellants filed their nondischargeability adversary
11 proceeding shortly thereafter. Appellants alleged three distinct
12 claims for relief under §§ 523(a)(2)(A), (a)(4), and (a)(6).
13 The court held the trial on Appellants’ claims in March
14 2014. Appellants offered into evidence a handful of exhibits and
15 presented the testimony of Mr. Selinger, who at all relevant
16 times was the president of Barton Properties. Mr. Selinger
17 testified that, in 2006, Mr. Blaskey told him that he was taking
18 care of all of the litigation and settlement tasks in the
19 underlying actions. If Mr. Selinger had known the truth – that
20 Mr. Blaskey was derelict in his duties – Barton Properties would
21 not have paid Mr. Blaskey’s 2006 invoices for legal fees to the
22 tune of roughly $50,000. Mr. Selinger also testified that, if
23 Mr. Blaskey had not lied to him about the performance of his
24 duties, he would have hired new counsel, who might have had
25 opportunities to prevent or have set aside some or all of the
26 adverse orders and judgments entered in the underlying actions.
27 Notably, Mr. Selinger’s testimony contained virtually no
28 specifics about what Mr. Blaskey reported to him about the status
3
1 of the underlying actions, when Mr. Blaskey made particular
2 reports, when Barton Properties made payments to Mr. Blaskey, and
3 how much was paid in each instance. Furthermore, Mr. Selinger
4 offered no specifics regarding the remedial opportunities
5 available at the time but later lost because Barton Properties
6 was relying on Mr. Blaskey’s misstatements.
7 Appellants offered two distinct types of evidence to
8 demonstrate the amount of damages they suffered. First, there
9 was Mr. Selinger’s testimony. Mr. Selinger gave a generalized
10 account of damages, broken down by underlying action. According
11 to Mr. Selinger, as a result of Mr. Blaskey’s conduct, Barton
12 Properties suffered damages of roughly $470,000, $60,000, and
13 $450,000, respectively, in the three underlying actions. For the
14 most part, Mr. Selinger did not offer specific details concretely
15 demonstrating how Mr. Blaskey’s nondischargeable conduct caused
16 Barton Properties’ damages in the underlying actions.
17 Second, Appellants produced documentary evidence. They
18 offered as exhibits the complaint filed and the $1 million
19 default judgment entered in their state court action against
20 Mr. Blaskey. Appellants in essence asserted that issue
21 preclusion applied and that these two documents established their
22 damages of $1 million. But Appellants’ issue preclusion argument
23 went further. According to Appellants, the state court judgment
24 not only conclusively established Mr. Blaskey’s liability for
25 $1 million but also conclusively established that the judgment
26 debt was nondischargeable – that Mr. Blaskey was precluded from
27 arguing in the adversary proceeding that the $1 million in
28 damages resulted from anything other than nondischargeable
4
1 conduct.
2 Mr. Blaskey was not present at trial, so the court struck
3 his written testimony. Mr. Blaskey’s counsel did not offer any
4 further evidence.
5 After the conclusion of the trial, the bankruptcy court
6 announced its findings of fact and conclusions of law. The
7 bankruptcy court rejected Appellants’ assertion that they were
8 entitled to issue preclusion based on the state court judgment.
9 The bankruptcy court pointed out that issue preclusion was not
10 available unless the issues in question were the subject of
11 explicit findings by the state court or, alternately, implicit
12 findings on those issues were essential to support the state
13 court’s judgment. The bankruptcy court pointed out that the
14 state court judgment was not supported by any explicit findings
15 and that it was impossible to tell on which causes of action
16 Appellants had prevailed. Consequently, the bankruptcy court
17 held that it could not apply issue preclusion to determine the
18 dischargeability of Mr. Blaskey’s $1 million judgment debt
19 because Appellants had not satisfied the “necessarily decided”
20 element for issue preclusion.
21 The court next addressed the trial record and whether
22 Appellants had made a sufficient showing that the $1 million
23 judgment debt, or any portion thereof, should be declared
24 nondischargeable under § 523(a)(2)(A). The court found that
25 Appellants had not established by a preponderance of the evidence
26 that their damages resulted from fraudulent conduct. According
27 to the court, there was either no evidence or insufficient
28 evidence connecting any particular misrepresentation Mr. Blaskey
5
1 made either to the $50,000 in legal fees Appellants paid
2 Mr. Blaskey or to the roughly $1 million in damages Appellants
3 apparently suffered in the underlying actions.
4 The court further explained that Appellants’ evidentiary
5 deficiencies were exacerbated by the lack of any documentation to
6 support the amounts Mr. Blaskey billed them or the amounts they
7 actually paid. The court also pointed out that Appellants’ lack
8 of specificity regarding the alleged representations worked
9 against them proving their nondischargeability claims by a
10 preponderance of the evidence.
11 As for Appellants’ § 523(a)(4) claim, the bankruptcy court
12 found that there was no evidence of any express or technical
13 trust as to any of the monies Appellants paid to Mr. Blaskey and
14 there was insufficient evidence of a defalcation within the
15 meaning of the statute. And as for Appellants’ § 523(a)(6)
16 claim, the bankruptcy court found there was insufficient evidence
17 that Mr. Blaskey subjectively intended to injure Appellants.
18 During its ruling, the bankruptcy court stated multiple
19 times that Appellants bore the burden of proof to establish all
20 of the nondischargeability elements by a preponderance of the
21 evidence. However, the bankruptcy court also made a couple of
22 statements indicating that the preponderance of the evidence
23 standard has a special meaning or gloss in nondischargeability
24 litigation. For instance, the bankruptcy court stated that it
25 was “required to view the evidence strictly against the creditor
26 and liberally in favor of the debtor” and “in the light most
27 favorably to the defendant and strictly against the plaintiff.”
28 On June 20, 2014, the bankruptcy court entered judgment in
6
1 favor of Mr. Blaskey and against Appellants.
2 B. Appellate review by the BAP
3 Appellants appealed the bankruptcy court’s decision to the
4 BAP, BAP No. CC-14-1340-KuDKi (“First Appeal”).
5 The Panel held that the bankruptcy court correctly
6 determined that issue preclusion did not apply to the state
7 court’s default judgment. The Panel also affirmed the bankruptcy
8 court’s decision in favor of Mr. Blaskey on the § 523(a)(4)
9 claim.
10 The Panel held, however, that the court misapplied the
11 standard of proof on the §§ 523(a)(2)(A) and (a)(6) claims.
12 While the court correctly identified the standard as a
13 preponderance of the evidence, it conflated the strict
14 construction of the statutory language of § 523(a) with the
15 standard of proof, which only requires that a fact is more likely
16 than not.
17 Accordingly, the Panel remanded the case to the bankruptcy
18 court for consideration of the §§ 523(a)(2)(A) and (a)(6) claims
19 under a non-heightened standard of proof. The Panel did not
20 direct any particular procedure or result on remand, but only
21 required that the bankruptcy court apply the ordinary
22 preponderance of the evidence standard.
23 C. The bankruptcy court’s decision on remand
24 Without holding any further hearings or receiving additional
25 materials from the parties, the bankruptcy court issued its order
26 in response to the Panel’s decision in the First Appeal (“Order
27 on Remand”). The court summarized the procedural history of the
28 case and stated that it had reviewed the entire trial record
7
1 under the preponderance of the evidence standard. It concluded
2 that “1) no further court proceedings or briefing is necessary
3 and 2) judgment should be entered in favor of Defendant as to the
4 § 523(a)(2)(A) and (6) claims based upon the findings and
5 conclusions set forth in the Oral Ruling, which is incorporated
6 by reference herein.” In other words, the court reaffirmed its
7 previous ruling in its entirety.
8 Appellants timely filed their notice of appeal from the
9 Order on Remand.
10 JURISDICTION
11 The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
12 §§ 1334 and 157(b)(2)(I). We have jurisdiction under 28 U.S.C.
13 § 158.
14 ISSUES
15 (1) Whether the bankruptcy court erred in its application of
16 the preponderance of the evidence standard.
17 (2) Whether the bankruptcy court erred when it determined
18 that Appellants did not establish their §§ 523(a)(2)(A) and
19 (a)(6) claims.
20 (3) Whether the bankruptcy court erred in its consideration
21 of the parties’ evidence and objections.
22 (4) Whether the bankruptcy court violated public policy and
23 equitable principles in ruling in favor of Mr. Blaskey.
24 (5) Whether the bankruptcy court correctly followed the
25 BAP’s decision in the First Appeal.
26 STANDARDS OF REVIEW
27 In bankruptcy discharge appeals, we review the bankruptcy
28 court’s findings of fact for clear error and conclusions of law
8
1 de novo. We apply de novo review to mixed questions of law and
2 fact that require consideration of legal concepts and the
3 exercise of judgment about the values that animate the legal
4 principles. Wolkowitz v. Beverly (In re Beverly), 374 B.R. 221,
5 230 (9th Cir. BAP 2007), aff’d in part & dismissed in part,
6 551 F.3d 1092 (9th Cir. 2008); see also Honkanen v. Hopper
7 (In re Honkanen), 446 B.R. 373, 382 (9th Cir. BAP 2011) (the
8 ultimate question of whether a particular debt is dischargeable
9 is a mixed question of fact and law reviewed de novo).
10 “Whether a requisite element of a § 523(a)(2)(A) claim is
11 present is a factual determination reviewed for clear error.”
12 Tallant v. Kaufman (In re Tallant), 218 B.R. 58, 63 (9th Cir. BAP
13 1998). Similarly, “[w]hether a debtor’s conduct is willful and
14 malicious under § 523(a)(6) is a question of fact reviewed for
15 clear error.” Banks v. Gill Distrib. Ctrs., Inc. (In re Banks),
16 263 F.3d 862, 869 (9th Cir. 2001).
17 Factual findings are clearly erroneous if they are
18 illogical, implausible, or without support in the record. Retz
19 v. Samson (In re Retz), 606 F.3d 1189, 1196 (9th Cir. 2010). If
20 two views of the evidence are possible, the trial judge’s choice
21 between them cannot be clearly erroneous. Anderson v. City of
22 Bessemer City, N.C., 470 U.S. 564, 574 (1985).
23 We review a bankruptcy court’s evidentiary rulings for abuse
24 of discretion, and then only reverse if any error would have been
25 prejudicial to the appellant. Mbunda v. Van Zandt
26 (In re Mbunda), 484 B.R. 344, 351 (9th Cir. BAP 2012), aff’d,
27 604 F. App’x 552 (9th Cir. 2015). To determine whether the
28 bankruptcy court has abused its discretion, we conduct a two-step
9
1 inquiry: (1) we review de novo whether the bankruptcy court
2 “identified the correct legal rule to apply to the relief
3 requested” and (2) if it did, we consider whether the bankruptcy
4 court's application of the legal standard was illogical,
5 implausible, or “without support in inferences that may be drawn
6 from the facts in the record.” United States v. Hinkson,
7 585 F.3d 1247, 1262–63 & n.21 (9th Cir. 2009) (en banc).
8 “We afford broad discretion to a district court’s
9 evidentiary rulings. To reverse such a ruling, we must find that
10 the district court abused its discretion and that the error was
11 prejudicial. A reviewing court should find prejudice only if it
12 concludes that, more probably than not, the lower court’s error
13 tainted the verdict.” In re Mbunda, 484 B.R. at 352 (quoting
14 Harper v. City of L.A., 533 F.3d 1010, 1030 (9th Cir. 2008)).
15 We review de novo the bankruptcy court’s compliance with the
16 mandate of an appellate court. See United States v. Kellington,
17 217 F.3d 1084, 1092 (9th Cir. 2000).
18 DISCUSSION
19 A. The bankruptcy court correctly applied the preponderance of
the evidence standard on remand as to Appellants’
20 §§ 523(a)(2)(A) and (a)(6) claims.
21 1. The bankruptcy court correctly followed the BAP’s
instruction on remand.
22
23 Appellants argue that the bankruptcy court did not adhere to
24 the BAP’s instruction on remand from the First Appeal, because
25 the court did not hold further proceedings, request additional
26 briefing, explain how it applied the preponderance of the
27 evidence standard, or identify findings of facts and conclusions
28 of law. We disagree.
10
1 Under the rule of mandate, “[o]n remand, a trial court may
2 not deviate from the mandate of an appellate court.” Commercial
3 Paper Holders v. Hine (In re Beverly Hills Bancorp), 752 F.2d
4 1334, 1337 (9th Cir. 1984). “‘The rule of mandate is similar to,
5 but broader than, the law of the case doctrine.’ A district
6 court that has received the mandate of an appellate court cannot
7 vary or examine that mandate for any purpose other than executing
8 it.” Hall v. City of L.A., 697 F.3d 1059, 1067 (9th Cir. 2012)
9 (quoting United States v. Cote, 51 F.3d 178, 181 (9th Cir.
10 1995)); see AT&T Universal Card Servs. v. Black (In re Black),
11 222 B.R. 896, 900 (9th Cir. BAP 1998) (“When a case has been
12 decided by an appellate court and remanded, the trial court ‘must
13 proceed in accordance with the mandate and such law of the case
14 as was established by the appellate court.’” (citation omitted)).
15 However, “the rule of mandate allows a lower court to decide
16 anything not foreclosed by the mandate.” Hall, 697 F.3d at 1067.
17 The Panel only ordered that the bankruptcy court apply the
18 proper standard of proof on remand. It did not require the
19 bankruptcy court to hold further proceedings, and it specifically
20 stated that it did not require “the bankruptcy court [to] make
21 different findings.” Rather, it said that, “before we can review
22 the bankruptcy court’s findings, we need to ensure that the
23 bankruptcy court applied the ordinary preponderance of the
24 evidence standard.”
25 The bankruptcy court stated in its Order on Remand that it
26 reviewed the entire trial record under the ordinary preponderance
27 of the evidence standard and that, under the normal preponderance
28 standard, it would reach the same result. This is exactly
11
1 consistent with our mandate.
2 2. The court did not err in ruling in favor of Mr. Blaskey
on Appellants’ § 523(a)(2)(A) claim.
3
4 Section 523(a)(2)(A) prohibits the discharge of any
5 obligation for money, property, services, or credit, to the
6 extent that the money, property, services, or credit were
7 obtained by fraud, false pretenses, or false representations.
8 § 523(a)(2)(A). The Ninth Circuit has consistently held that a
9 claim of non-dischargeability under § 523(a)(2)(A) requires the
10 creditor to demonstrate five elements:
11 (1) the debtor made . . . representations;
12 (2) that at the time he knew they were false;
13 (3) that he made them with the intention and purpose
of deceiving the creditor;
14
(4) that the creditor relied on such representations;
15 [and]
16 (5) that the creditor sustained the alleged loss and
damage as the proximate result of the
17 misrepresentations having been made.
18 Ghomeshi v. Sabban (In re Sabban), 600 F.3d 1219, 1222 (9th Cir.
19 2010) (quoting Am. Express Travel Related Servs. Co. v. Hashemi
20 (In re Hashemi), 104 F.3d 1122, 1125 (9th Cir. 1996)).
21 In the present case, the court determined that Appellants
22 failed to establish that the state court judgment was
23 nondischargeable. Although the court noted that it is
24 “undisputed . . . that Mr. Blaskey did not perform all services,”
25 it held that the evidence did not establish the nature and
26 substance of the alleged misrepresentations, the causal
27 connection between those misrepresentations and any damages, and
28 the amount of any resulting damages.
12
1 The bankruptcy court did not clearly err when it found that
2 Appellants’ evidence - which all parties and the court agreed was
3 “thin” - was not sufficient to carry their burden of proof. The
4 Appellants failed to establish that Mr. Blaskey made false
5 statements that he knew to be false with the expectation that
6 Appellants would rely on those statements. They also failed to
7 establish damages attributable to the alleged
8 misrepresentations.4 The court did not commit clear error when
9 it held that Appellants failed to prove their case by a
10 preponderance of the evidence.
11 3. The court did not err by ruling in favor of Mr. Blaskey
on Appellants’ § 523(a)(6) claim.
12
13 Similarly, the court did not err when it determined that
14 Appellants did not meet their burden of proof regarding their
15 § 523(a)(6) claim.
16 Section 523(a)(6) provides an exception to discharge for
17 debts “for willful and malicious injury by the debtor to another
18 entity or to the property of another entity.” “A determination
19 whether a particular debt is for ‘willful and malicious injury by
20 the debtor to another’ under section 523(a)(6) requires
21 application of a two-pronged test to apply to the conduct giving
22
23
4
Appellants argue that the superior court judgment
24 established the amount of damages, such that the bankruptcy court
must afford it issue preclusive effect. We rejected this
25 argument in the First Appeal and will not revisit it here.
26
In any event, the bankruptcy court properly determined that
27 Appellants failed to prove a causal relation between the alleged
misrepresentations and their alleged damages, so we need not
28 examine the calculation of damages here.
13
1 rise to the injury. The creditor must prove that the debtor’s
2 conduct in causing the injuries was both willful and malicious.”
3 Suarez v. Barrett (In re Suarez), 400 B.R. 732, 736 (9th Cir. BAP
4 2009), aff’d, 529 F. App’x 832 (9th Cir. 2013). First,
5 “[w]illfulness requires proof that the debtor deliberately or
6 intentionally injured the creditor, and that in doing so, the
7 debtor intended the consequences of his act, not just the act
8 itself.” Id. at 736-37. Second, “[f]or conduct to be malicious,
9 the creditor must prove that the debtor: (1) committed a wrongful
10 act; (2) done intentionally; (3) which necessarily causes injury;
11 and (4) was done without just cause or excuse.” Id. at 737.
12 The bankruptcy court held that Appellants failed to
13 establish the elements of § 523(a)(6). It said that the
14 conclusory statements in the complaint were insufficient to
15 establish willful and malicious injury. It also said that
16 Appellants did not focus on § 523(a)(6) at trial and could not
17 simply rely on their arguments concerning § 523(a)(2)(A). We
18 discern no error.
19 Appellants’ evidence fails to establish either the “willful”
20 or “malicious” prong required by § 523(a)(6). As noted by the
21 bankruptcy court, Mr. Selinger’s testimony did not prove
22 Mr. Blaskey’s intent to injure Appellants. Even on appeal,
23 Appellants fail to point to any evidence establishing
24 Mr. Blaskey’s willful and malicious conduct. Accordingly, the
25 court did not err in rejecting Appellants’ § 523(a)(6) claim.
26 4. Appellants’ other evidentiary arguments are misplaced.
27 Appellants also argue that the bankruptcy court
28 misunderstood the nature of the case or otherwise erred in
14
1 discounting their evidence. We reject these arguments.
2 Appellants contend that the court misconstrued the facts to
3 reflect mere negligence, rather than “lies, deceit and cover-up.”
4 They imply that the court was reluctant to reach the latter
5 conclusion, because of “what it may say about our legal
6 system[,]” and the court “was loathe to go down that path.”
7 We find no merit in Appellants’ position. The bankruptcy
8 court properly found that Mr. Selinger’s testimony simply did not
9 establish, by a preponderance of the evidence, each of the
10 elements of their claims. See Hussain v. Malik (In re Hussain),
11 508 B.R. 417, 425 (9th Cir. BAP 2014) (“the bankruptcy court was
12 in the best position to evaluate the documentary and testimonial
13 evidence”). Nothing in the record suggests that the court was
14 biased by a desire to protect the reputation of lawyers or the
15 legal system.
16 They also contend that the court must accept Mr. Selinger’s
17 testimony, because Mr. Blaskey did not offer any testimony to
18 refute it. But they ignore the fact that they had the ultimate
19 burden of proving their claims by a preponderance of the
20 evidence. See generally Brown v. Electrolux Home Prods., Inc.,
21 817 F.3d 1225, 1233 (11th Cir. 2016) (“And the entire point of a
22 burden of proof is that, if doubts remain about whether the
23 standard is satisfied, ‘the party with the burden of proof
24 loses.’”); United States v. 15 Bosworth St., 236 F.3d 50, 55 (1st
25 Cir. 2001) (“when there is insufficient evidence on a particular
26 issue, that issue must be resolved against the party who bears
27 the burden of proof” (emphasis in original)). The bankruptcy
28 court determined that Mr. Selinger’s testimony and evidence were
15
1 insufficient to establish Appellants’ claims. The bankruptcy
2 court was not required to accept Mr. Selinger’s testimony. The
3 fact that Mr. Blaskey did not testify does not relieve Appellants
4 of their burden of proof.
5 Appellants further argue that the court erred in requiring
6 them to produce documentary evidence to support their claims,
7 because Mr. Selinger offered written and oral testimony. We
8 again find no error in the court’s determination. The court
9 stated that Mr. Selinger’s testimony alone was insufficient to
10 establish the various elements discussed above, and Appellants
11 failed to offer documentary evidence to fill in gaps in his
12 testimony.
13 B. The court did not err in considering Mr. Blaskey’s closing
statement.
14
15 Appellants argue that the court erred in considering
16 Mr. Blaskey’s evidentiary objections and challenges raised in his
17 closing statement. However, they fail to provide us with
18 sufficient information to review this issue. An appellate court
19 “won’t consider matters on appeal that are not specifically and
20 distinctly argued in appellant’s opening brief. Applying this
21 standard, we’ve refused to address claims that were only argue[d]
22 in passing, or that were bare assertion[s] . . . with no
23 supporting argument.” Christian Legal Soc. Chapter of Univ. of
24 Cal. v. Wu, 626 F.3d 483, 487 (9th Cir. 2010) (internal citations
25 and quotation marks omitted).
26 Appellants do not identify any particular error. They
27 complain about two of Mr. Blaskey’s supposed objections:
28 (1) objections to testimony regarding Mr. Blaskey’s “doctoring”
16
1 of documents; and (2) objections to “certain evidence” including
2 the $400,000 lost settlement. However, Mr. Blaskey did not
3 object to the inclusion of such evidence; rather, he merely
4 argued against the weight or relevance of the evidence, as he is
5 entitled to do during closing statements.
6 In any event, there is no indication that the court
7 sustained either of these “objections” or excluded any of
8 Appellants’ evidence. We find no error.
9 C. The court did not abuse its discretion in excluding
Exhibits 5 and 6.
10
11 Appellants argue that the court should have admitted their
12 Exhibits 5 and 6 at trial. We hold that the bankruptcy court
13 correctly excluded both exhibits.
14 Exhibit 5 was Mr. Selinger’s declaration in superior court.
15 The court did not admit Exhibit 5 because the information therein
16 could have been offered by Mr. Selinger in written or rebuttal
17 testimony. Appellants offer no legal authority supporting the
18 admissibility of Exhibit 5. We will not consider unsupported
19 arguments. See Christian Legal Soc. Chapter of Univ. of Cal.,
20 626 F.3d at 487. Moreover, Appellants’ counsel agreed with the
21 objection and did not preserve this error on appeal: “Okay.
22 We’ll - we will agree with the objection and not, you know - not
23 try to present it then . . . on the direct.” Finally, Appellants
24 do not provide us with a copy of Exhibit 5, so we are unable to
25 review it and determine whether it should have been admitted.
26 Exhibit 6 is a declaration of Appellants’ counsel.
27 Appellants claim that the document establishes Mr. Blaskey’s non-
28 cooperation and that his “behavior and habits are admissible to
17
1 show how he acted in the past,” but they do not cite any relevant
2 legal authority supporting this proposition. Appellants have not
3 even provided the Panel with a copy of the document so that we
4 may evaluate its admissibility. Further, the declaration is
5 inadmissable hearsay, as it was an out-of-court statement by
6 counsel, who was not a witness at trial. Fed. R. Evid. 801.
7 Accordingly, the bankruptcy court properly excluded
8 Exhibits 5 and 6.
9 D. The bankruptcy court’s judgment does not violate public
policy or equitable principles.
10
11 Appellants also state that the bankruptcy court’s ruling
12 contravened public policy and ignored the bankruptcy court’s role
13 as an equitable tribunal. These arguments are unsupported.
14 Appellants’ assertion that Mr. Blaskey “should not be
15 allowed to just walk away from his obligations” ignores the fact
16 that they were unable to establish the requisite elements of
17 §§ 523(a)(2)(A) and (a)(6). While it is true that public policy
18 dictates that bankruptcy protection is reserved for the “honest
19 but unfortunate debtor,” that maxim cannot save Appellants’
20 failure to meet a statutory requirement.
21 In fact, congressionally enacted public policy favors
22 discharge. See Snoke v. Riso (In re Riso), 978 F.2d 1151, 1154
23 (9th Cir. 1992) (“One of the fundamental policies of the
24 Bankruptcy Code is the fresh start afforded debtors through the
25 discharge of their debts. In order to effectuate the fresh start
26 policy, exceptions to discharge should be strictly construed
27 against an objecting creditor and in favor of the debtor.”).
28 Sections 523(a)(2)(A) and (a)(6) represent Congress’ view of the
18
1 correct public policy. We will not substitute our view of public
2 policy for the congressional view.
3 Similarly, while it is true that a bankruptcy court is a
4 court of equity, it cannot and should not ignore a statute merely
5 because a party complains that it is not “receiv[ing] a fair
6 result.” Appellants provide no authority for their novel
7 proposition to the contrary. See San Rafael Baking Co. v.
8 N. Cal. Bakery Drivers Sec. Fund (In re San Rafael Baking Co.),
9 219 B.R. 860, 866 (9th Cir. BAP 1998) (“Bankruptcy courts are
10 courts of equity but must follow the law and cannot ignore
11 express statutory commands.”); cf. Law v. Siegel, 134 S. Ct.
12 1188, 1197 (2014) (holding that there is “no authority for
13 bankruptcy courts to deny an exemption on a ground not specified
14 in the Code”).
15 CONCLUSION
16 For the reasons set forth above, we AFFIRM.
17
18
19
20
21
22
23
24
25
26
27
28
19