DocketNumber: Case No.: 6:13-bk-16964-MH; Adversary No.: 6:13-01171-MH
Citation Numbers: 597 B.R. 902
Judges: Houle
Filed Date: 3/15/2019
Status: Precedential
Modified Date: 11/22/2022
The following is a recitation of the facts of this adversary proceeding as summarized by the Ninth Circuit BAP ("BAP") in In re Sangha , No. ADV. 13-01171-MH,
On October 13, 2009, Charles Schrader ("Schrader") filed a complaint against Narinder Sangha ("Sangha") for defamation (slander per se) in San Francisco Superior Court ("State Court"), alleging that Sangha had made false statements about Schrader in the course of an employment background investigation. On November 17, 2009, Sangha filed an answer and general denial. The state court granted Schrader leave to file a second amended complaint on February 14, 2011. In the second amended complaint (the "SAC"), all fourteen causes of action alleged that Sangha made the defamatory statements with *906malice; the prayer sought an award of exemplary damages.
On March 4, 2011, Schrader filed a motion for terminating sanctions against Sangha for engaging in discovery abuses. The state court granted Schrader's sanctions motion and struck Sangha's answer to the second amended complaint, commenting: "The Court finds that Defendant's failure to respond to the Court's orders compelling a response to interrogatory is willful." Sangha then dismissed his attorney Christopher Leuterio and filed a substitution of attorney showing Christopher N. Mandarano was to be his counsel. On April 8, 2011, Sangha terminated Mandarano, and substituted Robert D. Finkle as his attorney.
On April 18, 2011, the State Court entered a default against Sangha. It conducted a prove-up hearing on Schrader's motion for entry of default judgment on June 2, 2011 and entered a judgment the same day (the "State Court Judgment") awarding Schrader $ 1,369,633.40, comprised of $ 1,000,000 for general damages, $ 368,535.40 for "Special/Punitive Damages," and $ 1,098.00 for costs.
On November 14, 2011, the State Court denied Sangha's motion to vacate the State Court Judgment. Sangha did not appeal the State Court Judgment.
Sangha filed a chapter 7 bankruptcy petition on April 18, 2013. In his schedules, he listed a disputed debt owed to Schrader of $ 1,369,634.00 for the State Court Judgment.
On April 23, 2013, Schrader filed an adversary complaint against Sangha seeking an exception to discharge under § 523(a)(6) for the debt evidenced by the State Court Judgment. Sangha filed an answer on August 21, 2013, generally denying the complaint's allegations and stating three affirmative defenses: that the purported false statements were privileged; that Schrader had engaged in fraud by concealment of material facts from the state court; and that Schrader had unclean hands.
Schrader filed a motion for summary judgment on April 25, 2014, arguing that there were no disputed material facts and that the State Court Judgment was preclusive as to all the elements required for an exception to discharge under § 523(a)(6).
Responding to the summary judgment motion on June 4, 2014, Sangha asserted that triable issues of fact remained concerning Schrader's unclean hands, fraud, the damage award, and Sangha's intent. Sangha also argued that he was entitled to conduct discovery. Schrader filed a reply on June 12, 2014, which included various documents in opposition to Sangha's allegations.
Before the motion hearing on July 8, 2014, the bankruptcy court posted a detailed tentative decision. Among the conclusions in the tentative decision of the bankruptcy court were that:
-There was no genuine dispute that the State Court Judgment included $ 6,000 in punitive damages.
-All elements of issue preclusion were satisfied.
-None of Sangha's arguments supported the extrinsic fraud exception to issue preclusion.
-The evidence reflected that all damages awarded were attributable to Sangha's malicious conduct.
-Sangha was seeking discovery to relitigate the State Court Judgment findings. The information he sought would *907not prevent summary judgment.
After hearing from the parties at the hearing, the bankruptcy court decided to grant summary judgment, and adopted its tentative decision, which it incorporated in a judgment (the "Bankruptcy Judgment") entered on August 7, 2014, that declared the State Court Judgment in the amount of $ 1,369,633.40 was excepted from discharge under § 523(a)(6).
II. THE APPEALS AND SUBSEQUENT PROCEEDINGS
Sangha filed his appeal of the Bankruptcy Judgment on August 18, 2014. On June 11, 2015, the BAP entered its decision vacating the Bankruptcy Judgment and remanding the matter for further proceedings by this Court. On August 4, 2015, Sangha docketed an acknowledgment from the Ninth Circuit Clerk of Court of his own appeal of the BAP's ruling to the Ninth Circuit Court of Appeals. On March 10, 2017, the Ninth Circuit issued its Judgment affirming the BAP and directing this Court to re-evaluate the availability of issue preclusion in light of In re Plyam ,
... the bankruptcy court must consider whether the state court default judgment and the allegations in Schrader's second amended complaint preclude relitigation of § 523(a)(6)'s "willful" intent requirement. If the bankruptcy court determines that the allegations in the second amended complaint together with the punitive damage award preclude relitigation of § 523(a)(6)'s "willful and malicious" intent requirements, then the California state trial court default judgment in favor of Schrader is not dischargeable.
In re Sangha ,
The mandate of the Ninth Circuit to this Court issued on March 20, 2017. On April 5, 2017, the Court held a status conference to discuss with the parties the need for briefing to address the Ninth Circuit's determination that application of issue preclusion must be evaluated in light of Plyam . At the status conference, the Court directed the parties to file supplemental briefs. The Court has authorized the filing of the following supplemental briefs to address Plyam
• Schrader filed a Motion for Summary Judgment, which the Court construes as Schrader's Supplemental Brief Re: Remand.2
• Sangha Brief Re: Remand (Docket No. 211) (re-filed and amended with correct hearing date (Docket No. 215).
• Sangha Second Supplemental Memorandum (Docket No. 234).
• Schrader Reply to Second Supplemental Memorandum (Docket No. 235) and related Compendium of Exhibits (Docket No. 236).
• Second Supplemental Memorandum of Schrader (Docket No. 252)
*908• Request for Judicial Notice (Docket No. 254)
• Reply to Second Supplemental Memorandum of Schrader (Docket No. 260).
III. JURISDICTION
The Court has jurisdiction over this adversary proceeding under
IV. STANDARDS FOR SUMMARY JUDGMENT & COLLATERAL ESTOPPEL
Summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c) (made applicable to adversary proceedings by Fed. R. Bankr. P. 7056 ).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett ,
Issue preclusion may provide a proper basis for granting summary judgment. San Remo Hotel, L.P. v. San Francisco City and Cnty .,
Issue preclusion may apply in bankruptcy discharge proceedings. Grogan v. Garner ,
*909Under California law, the party asserting issue preclusion has the burden of establishing the following threshold requirements:
(1) The issue sought to be precluded from relitigation must be the identical issue to that decided in a former proceeding;
(2) This issue must have been actually litigated in the former proceeding;
(3) It must have been necessarily decided in the former proceeding;
(4) The decision in the former proceeding must be final and on the merits ; and
(5) The party against whom preclusion is sought must be the same party as, or in privity with, the party to the former proceeding.
Harmon v. Kobrin (In re Harmon ),
On remand from the Ninth Circuit, the first issue considered by this Court is, whether the State Court Judgment, and specifically the punitive damages award, together with the record of the State Court proceedings preclude relitigation of § 523(a)(6)'s "willful" intent requirement in light of Plyam . The second issue, in response to the BAP's ruling, is whether the "malicious injury" prong under § 523(a)(6) is satisfied by the State Court Judgment.
V. DISCUSSION
Section 523(a)(6) provides that: "(a) A discharge under 727 ... of this title does not discharge an individual debtor from any debt-... (6) for willful and malicious injury by the debtor to another entity or to the property of another entity." Whether a particular debt is for willful and malicious injury by the debtor to another or the property of another under § 523(a)(6) requires application of a two-pronged test to the conduct giving rise to the injury. In other words, the creditor must prove that the debtor's conduct in causing the injuries was both willful and malicious. Barboza v. New Form, Inc . (In re Barboza ),
1. PRECLUSIVE EFFECT OF DEFAULT JUDGMENTS IN CALIFORNIA
In In re Harmon , the Ninth Circuit discussed the narrow permissible application of collateral estoppel to judgments obtained by default under California law. Harmon ,
As to the instant case, the BAP found specifically in Sangha that where the State Court Judgment's award of punitive damages could be based on several possible states of mind, each of which could have independently resulted in the punitive damages award, the court could not assume Sangha's acts were committed with the specific state of mind required under § 523(a)(6), i.e. , with intent to injure. Sangha ,
2. WILLFUL INJURY
To show that a debtor's conduct is willful requires proof that the debtor deliberately or intentionally injured the creditor, and that in doing so, the debtor intended the consequences of his act, not just the act itself. Kawaauhau v. Geiger ,
In the instant case, the BAP did not disturb this Court's finding that punitive *911damages were awarded to Schrader in the State Court Judgment. Civil Code section 3294, subdivision (a) states, in full: "In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant." Cal.Civ.Code § 3294. Thus, to award punitive damages to Schrader, the State Court must have found that in addition to committing slander under California Civil Code § 46, that Sangha was also guilty of oppression, fraud, and/or malice.
In In re Plyam , the Ninth Circuit BAP discussed the application of California's punitive damages statute,
1. "Fraud" refers to an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.
2. "Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.
3. "Despicable Malice" is defined as despicable conduct done willfully and in conscious disregard of the rights or safety of another.
4. "Intentional Malice" is conduct that the defendant intends to cause injury to the plaintiff.
Of these four bases for an award of punitive damages (intentional malice, despicable malice, oppression, and fraud), only two - fraud and intentional malice - require an intent to cause injury.
The critical difference between intentional and reckless misconduct is the necessary state of mind; for conduct to *912be reckless, the person must intend the reckless act but need not intend to cause the resulting harm. To establish recklessness, it is sufficient that the person realizes (or should realize) the "strong probability that harm may result, even though he hopes or even expects that his conduct will prove harmless." But, a strong probability is not equivalent to substantial certainty. ("[A] strong probability is a different thing from the substantial certainty without which he cannot be said to intend the harm in which his act results.") ...Thus, "[a]s the probability that [injurious] consequences will follow decreases, and becomes less than substantial certainty, the [person's] conduct loses the character of intent, and becomes mere recklessness."
Plyam, at 467 (internal citations omitted).
First, in rendering default judgment in Schrader's favor, the State Court necessarily found that Sangha published false and unprivileged statements about Schrader because the sole claims asserted by Schrader in the second amended complaint were for Slander Per Se pursuant to California Civil Code § 46. Gottlieb v. Kest ,
Critically, to parse Sangha's degree of intentionality when he uttered the inflammatory falsehoods about Schrader, the record would have to indicate that the State Court considered not just the alleged injury (the withdrawal of Schrader's employment offer), but also Sangha's level of certainty that the statements he was made *913to the contracted investigator were substantially certain to adversely impact Schrader's hiring prospects. As discussed, supra , under California law, knowledge that an action has the strong probability of resulting in a specific consequence is insufficient to find that the actor intended the consequence; there must instead be a substantial certainty that the consequence will result from one's actions. See Plyam, at 467. Here, the Court has reviewed the record of the State Court proceedings and finds no conclusive support in the record for a finding that the State Court necessarily awarded punitive damages to Schrader on the basis that Sangha acted with the subjective intent to injure him. To the contrary, at the hearing on the default judgment prove-up, the State Court Judge made no remarks or references to Sangha's state of mind. The questioning was limited to calculation of damages. Although, Mr. Schrader was asked to state the bases for his request for damages, the State Court further made no remarks indicating that the degree of Sangha's subjective intent was being weighed. Moreover, Schrader has pointed to no other support from which this Court could infer Sangha's intent to injure from a finding that he committed malice in fact when supported by other facts in the record (e.g. the State Court made no comments and issued no rulings prior to the hearing on the default judgment motion in which it addressed or determined Sangha's subjective intent). Sangha ,
In addition to the foregoing, the State Court made no findings regarding Sangha's specific knowledge of the San Jose Fire Department's hiring practices, and the State Court was not required to make any such finding to award punitive damages because even a reckless utterance of falsehoods was enough to award punitive damages under either a theory of oppression or despicable malice. For example, while this Court can interpret the circumstantial facts surrounding the falsehoods made by Sangha as being made with the subjective intent to injure Schrader, the record before the State Court leaves open an interpretation that Sangha intended only to impact Schrader's reputation in a general sense, perhaps merely to delay an employment offer, without the substantial certainty that Schrader would not get an employment offer, and by extension, without the requisite intent to injure Schrader. Thus, against the backdrop of California's narrow rule restricting the legal effect of default judgments to those matters necessarily decided or expressly adjudicated, and finding that the State Court's punitive damages award is limited to a finding that Sangha uttered falsehoods which caused injury to Schrader with an unspecified degree of malice, the Court finds the State Court Judgment insufficient to permit application of collateral estoppel as to the willfulness prong of § 523(a)(6).
3. MALICIOUS INJURY
For conduct to be malicious, the creditor must prove that the debtor: (1) committed a wrongful act; (2) done intentionally; (3) which necessarily causes injury; and (4) was done without just cause or excuse. In re Su ,
"Words which fall within the purview of Civil Code § 46 are deemed to constitute slander per se," Albertini v. Schaefer ,
*914See Allard v. Church of Scientology of California ,
For purposes of the law of slander, "publication" does not require dissemination to a substantial number of individuals. Rather, it is sufficient that the slander "is communicated to a single individual other than the one defamed." Lundquist v. Reusser ,
Here, the SAC specifically stated causes of action under California law pursuant to § 46, which allegations are repeated and incorporated by reference in the Complaint pending before this Court. Having entered judgment in favor of Schrader, the State Court necessarily found that Sangha uttered a false and unprivileged publication (which constitutes a wrongful act), which wrongful act was intentional (Sangha's intentional utterance of the alleged statements is inferred based on the allegations that the facts were false when made, that Sangha knew them to be false, and that they were nevertheless published to a third party by Sangha). Further, the injury to the Plaintiff's reputation would have been presumed by the State Court from the falsity of the statements (the Court notes that the general injury to the Plaintiff's reputation is distinguished from the specific injury at issue in the SAC - namely, the withdrawal of the conditional offer of employment). See Allard, at 439,
Courts to consider the issue have determined that just cause or excuse is in the nature of an affirmative defense, Petralia v. Jercich (In re Jercich ),
VI. CONCLUSION
Based upon the foregoing, Schrader is not entitled to summary judgment as to 'willfulness' but partial summary judgment shall be entered as to a finding that the State Court Judgment and record support a finding that Sangha's conduct as adjudicated by the State Court was 'malicious' under § 523(a)(6). The Court shall reset the status conference and the parties are required to file a joint status report in advance of said status conference to provide the Court with information regarding the need for additional discovery and proposed timelines to move the case forward to a trial on the remaining issue of 'willfullness.'
Subsequent to the April 5, 2017, status conference, Sangha filed a substitution of attorney.
The Court's consideration of all supplemental pleadings was limited to considering authorities and arguments addressing the BAP's Plyam decision specifically. The Court, for purposes of this opinion, has not considered any other arguments or evidence submitted by the parties.
This Court's prior decision analyzed State Court Judgment punitive damages award under California's common law definition of malice in fact (i.e. , a "willingness to annoy, vex or injure"). However, as explained by the Supreme Court of California in Coll. Hosp. Inc. v. Superior Court ,
The BAP analyzed the definitions of reckless misconduct and conscious disregard under California law and found them to be substantively similar. Plyam, at 469.
The Court finds, in the alternative, that the Rooker-Feldman doctrine, which bars district courts, and by extension bankruptcy courts, from hearing cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments applies to bar relitigation of any defenses that Sangha could have raised to the defamation claim. The practical effect of permitting Sangha to assert defenses to the defamation claim of Schrader now would be to permit reconsideration of the State Court's order granting terminating sanctions against him. Exxon Mobil Corp. v. Saudi Basic Indus. Corp. ,
See e.g. , In re Marciano ,