Kevin Healy v. M. Cynthia Rose

FILED
NOT FOR PUBLICATION
APR 21 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: KEVIN M. HEALY, No. 15-60044
Debtor, BAP No. 13-1200
______________________________
KEVIN M. HEALY, MEMORANDUM*
Appellant,
v.
M. CYNTHIA ROSE,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Pappas, Kurtz, and Jury, Bankruptcy Judges, Presiding
Submitted April 18, 2017**
San Francisco, California
*
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).
Before: D.W. NELSON and IKUTA, Circuit Judges, and BURGESS,*** Chief
District Judge.
Chapter 7 debtor Kevin M. Healy (“Healy”) appeals the Bankruptcy
Appellate Panel’s (“BAP”) decision affirming the bankruptcy court’s judgment
that Healy’s debt to M. Cynthia Rose (“Rose”) is excepted from discharge under
11 U.S.C. § 523(a)(6). We have jurisdiction under 28 U.S.C. § 158(d), and we
affirm. Because the parties are familiar with the facts, we do not recount them
here.
The BAP correctly held that the bankruptcy court did not err in excepting
Rose’s state court fee awards from discharge under 11 U.S.C. § 523(a)(6). The
bankruptcy court properly determined that there was no legal basis for Healy’s
state court complaint against Rose and that Healy’s challenges to the state court fee
awards lacked merit. See Moore v. Conliffe, 871 P.2d 204, 209 n.5 (Cal. 1994)
(“The [California Supreme Court] in Silberg explicitly recognized that a
‘fraudulent communication’ or ‘perjured testimony’ made in the course of a
judicial proceeding is absolutely privileged and does not provide a basis for
avoiding the finality of the decision made in the litigation process itself.” (quoting
Silberg v. Anderson, 786 P.2d 365, 373 (Cal. 1990))); id. at 219 (“[S]tatements
***
The Honorable Timothy M. Burgess, United States Chief District
Judge for the District of Alaska, sitting by designation.
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made in the course of a private contractual arbitration proceeding are protected by
the litigation privilege embodied in [California Civil Code] section 47(b)(2).”).
Further, the bankruptcy court’s findings of fact were not clearly erroneous.
See In re Straightline Invs., Inc., 525 F.3d 870, 876 (9th Cir. 2008) (“[W]e accept
findings of fact made by the bankruptcy court unless these findings leave the
definite and firm conviction that a mistake has been committed . . . .”) (citation and
internal quotation marks omitted). Ample evidence supports the bankruptcy
court’s finding that when Healy, an attorney with significant litigation experience,
filed the state court action accusing Rose of perjury, he did so knowing it lacked
legal merit and in order to harass Rose.
The bankruptcy court did not err in concluding that 11 U.S.C. § 523(a)(6)
was satisfied. Section 523(a)(6) “provides that an individual debtor may not
discharge a debt ‘for willful and malicious injury by the debtor to another entity or
the property of another entity.’” In re Barboza, 545 F.3d 702, 706 (9th Cir. 2008)
(quoting 11 U.S.C. § 523(a)(6)). With respect to the willful injury prong, the
bankruptcy court properly concluded that in filing and prosecuting a lawsuit to
annoy and harass Rose, with the knowledge that the suit was meritless, Healy acted
deliberately, intentionally, and for the purpose of injuring Rose. See id. (“A willful
injury is a deliberate or intentional injury, not merely a deliberate or intentional act
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that leads to injury.”) (citation and internal quotation marks omitted). The
bankruptcy court also appropriately found that the malicious injury prong was
satisfied. See id. (“A malicious injury involves (1) a wrongful act, (2) done
intentionally, (3) which necessarily causes injury, and (4) is done without just
cause or excuse.”) (citation and internal quotation marks omitted). The bankruptcy
court did not err in concluding that Healy’s state court lawsuit against Rose
constituted a wrongful act because his claims were barred by the California
litigation privilege. Further, as the bankruptcy court determined, Healy
intentionally prosecuted the action against Rose, his conduct necessarily caused
financial injury to Rose, and there was no just cause or excuse for such conduct,
particularly given that Healy was an attorney.
The BAP also properly rejected Healy’s arguments concerning the state
court judge and the propriety of the state court judgment. See United States v.
Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not presented to the
district court are not part of the record on appeal.”); Smith v. Marsh, 194 F.3d
1045, 1052 (9th Cir. 1999) (“[O]n appeal, arguments not raised by a party in its
opening brief are deemed waived.”). Moreover, even if those arguments were
properly before us, the Rooker-Feldman doctrine would bar them. See Henrichs v.
Valley View Dev., 474 F.3d 609, 614 (9th Cir. 2007) (asking a federal court to
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declare a state court judgment void “is squarely barred by Rooker-Feldman; a
request to declare the state court judgment void seeks redress from an injury
caused by the state court itself”); Fieger v. Ferry, 471 F.3d 637, 644 (6th Cir.
2006) (holding that to the extent that plaintiff sought a declaration regarding the
past actions of the state court justices, including their refusal to recuse themselves
in past cases, the Rooker-Feldman doctrine precluded the federal courts from
reviewing those past decisions).
We have considered and reject as without merit Healy’s remaining
arguments.
AFFIRMED.
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