FILED
JAN 31 2019
NOT FOR PUBLICATION
SUSAN M. SPRAUL, CLERK
U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT
In re: BAP No. CC-18-1021-TaFKu
LAURA KAY JAMES and JAKE GUILLERMO Bk. No. 1:16-bk-11150-VK
JAMES,
Adv. No. 1:16-ap-01097-VK
Debtors.
Laura Kay James ; JAKE GUILLERMO JAMES,
Appellants,
v. MEMORANDUM*
VIKTORIA KIRAKOSIAN,
Appellee.
Submitted Without Oral Argument on January 24, 2019.
Filed – January 31, 2019
Appeal from the United States Bankruptcy Court
for the Central District of California
*
This disposition is not appropriate for publication. 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 9th Cir. BAP Rule 8024-1.
Honorable Victoria S. Kaufman, Bankruptcy Judge, Presiding
Appearances: Appellants Laura Kay James and Jake Guillermo James,
pro se, on brief.
Before: TAYLOR, FARIS, and KURTZ, Bankruptcy Judges.
INTRODUCTION
Chapter 71 debtors Laura Kay James and Jake Guillermo James
appeal from a judgment rendering a $16,509.53 debt nondischargeable
under § 523(a)(2)(A) and § 523(a)(6). The bankruptcy court entered that
judgment after a trial—a trial at which Debtors elected to not testify, not
call witnesses in their favor, and not introduce evidence. Creditor Viktoria
Kirakosian, to the contrary, testified on her own behalf and provided
documentary evidence. The bankruptcy court found Ms. Kirakosian
credible and believed her version of the facts.
On appeal, Debtors primarily disagree with the bankruptcy court’s
factual findings. But these findings are not clearly erroneous. As a result,
we AFFIRM.
1
Unless specified otherwise, all chapter and section references are to the
Bankruptcy Code,
11 U.S.C. §§ 101–1532.
2
FACTS2
Ms. Kirakosian owns a multi-unit rental property. In December 2014,
Debtors applied for rental of a newly-renovated unit. Ms. James completed
a rental application and in doing so represented generally that Debtors
paid their rent timely; more specifically, she represented that Debtors had
never been defendants in an unlawful detainer action. Ms. Kirakosian
discussed the application with Debtors, and they both verbally confirmed
the representations in the application.
Later, Ms. Kirakosian and Debtors walked through the unit; Debtors
did not raise any issues regarding its condition.
Debtors signed a lease agreement for a one-year term and provided a
security deposit and prorated rent for December. They then moved in and
paid rent for the next three months without complaint.
But thereafter, the situation changed; Debtors’ next two rent
payments were returned for non-sufficient funds. Ms. Kirakosian contacted
Debtors each time. And each time Debtors said their payment issues
stemmed from problems with the Internal Revenue Service.
As the rental defaults continued, Debtors took another approach. In
2
We exercise our discretion to take judicial notice of documents electronically
filed in the adversary proceeding. See Atwood v. Chase Manhattan Mortg. Co. (In re
Atwood),
293 B.R. 227, 233 n.9 (9th Cir. BAP 2003). For instance, Debtors did not provide
us with a copy of the bankruptcy court’s findings of fact and conclusions of law. See AP
Dkt. No. 41 (“Mem. Dec.”).
3
response to demands for payment, Mr. James told Ms. Kirakosian that
Debtors would withhold rent until she repaired alleged damage to the unit.
Debtors never paid rent again.
Instead, Debtors filed a complaint with the Los Angeles housing
department. Upon receiving it, Ms. Kirakosian tried to access the unit. But
Debtors had changed the locks, in contravention of the lease agreement.
They twice denied Ms. Kirakosian access to the unit.
Eventually, Ms. Kirakosian filed a bounced check report with the
Los Angeles police department. She also visited a local courthouse and
discovered that Debtors were defendants in two unlawful detainer actions,
one filed a year before they filled out the rental application and another
filed only two months before they filled out the rental application.
Debtors did not abandon the unit until January 2016, more than nine
months after they stopped paying rent. They left the unit dirty and
damaged; Debtors left garbage, items of furniture, and paintings behind
and the toilet, garbage disposal, laminate flooring, heating unit, smoke
detectors, bathtub, and a doorknob were damaged.
After they changed the locks, Debtors were the only individuals with
access to the unit during their tenancy. Ms. Kirakosian commenced two
small claims actions against Debtors seeking back rent and recovery for the
damages. Debtors then filed a Chapter 7 petition. Ms. Kirakosian
responded with a complaint requesting nondischargeability of Debtors’
4
debt to her under § 523(a)(2)(A), (a)(2)(B), and (a)(6).
The bankruptcy court held a trial in the adversary proceeding, and
Ms. Kirakosian testified on her own behalf. After she completed her case,
the following exchange occurred:
THE COURT: Okay. So I guess what we’ll do then, is after
lunch we’ll put on your case, if you’re --
MR. JAMES: We can save some time, Your Honor.
THE COURT: What?
MR. JAMES: We’re not going to -- I’m not going to call any
witnesses. We’re not making --
THE COURT: You’re not --
MR. JAMES: -- a case.
THE COURT: You’re not doing --
MR. JAMES: No.
THE COURT: -- do it?
MR. JAMES: No, ma’am.
THE COURT: Okay. So then we’re done --
MR. OLSEN: Okay.
THE COURT: -- right --
MR. OLSEN: Yeah.
THE COURT: -- except for closing --
MR. OLSEN: Correct.
Hr’g Tr. (Nov. 1, 2017) 104:8–25.
The bankruptcy court later awarded Ms. Kirakosian a
nondischargeable judgment of $16,509.53 for unpaid rent and damage to
the unit under § 523(a)(2)(A) and a separate nondischargeable judgment of
$2,559.53 under § 523(a)(6) based only on damage to the unit. Debtors
timely appealed.
5
JURISDICTION
The bankruptcy court had jurisdiction under
28 U.S.C. §§ 1334 and
157(b)(2)(I). We have jurisdiction under
28 U.S.C. § 158.
ISSUE
Did the bankruptcy court err in entering judgment under
§ 523(a)(2)(A) and § 523(a)(6)?
STANDARD OF REVIEW
Whether a claim is excepted from discharge under § 523(a) presents
mixed issues of law and fact. Carrillo v. Su (In re Su),
290 F.3d 1140, 1142
(9th Cir. 2002). Mixed questions of law and fact are usually reviewed de
novo.
Id. But in the context of a dischargeability analysis, the bankruptcy
court’s factual findings are reviewed under the clearly erroneous standard.
Candland v. Ins. Co. of N. Am. (In re Candland),
90 F.3d 1466, 1469 (9th Cir.
1996); see In re Su,
290 F.3d at 1142.
As a result, whether a creditor proved an essential element of
§ 523(a)(2)(A) is a factual determination reviewed for clear error. In re
Candland,
90 F.3d at 1469; Anastas v. Am. Sav. Bank (In re Anastas),
94 F.3d
1280, 1283 (9th Cir. 1996) (“A finding of whether a requisite element of
section a [sic] 523(a)(2)(A) claim is present is a factual determination
reviewed for clear error.”); see also Eugene Parks Law Corp. Defined Benefit
Plan v. Kirsh (In re Kirsh),
973 F.2d 1454, 1456 (9th Cir. 1992) (“The
determination of justifiable reliance [under § 523(a)(2)(A)] is a question of
6
fact subject to the clearly erroneous standard of review.”).
“Clearly erroneous review is significantly deferential, requiring that
the appellate court accept the [trial] court’s findings absent a definite and
firm conviction that a mistake has been made.” United States v. Syrax,
235
F.3d 422, 427 (9th Cir. 2000) (internal quotation marks omitted). The
bankruptcy court’s choice among multiple plausible views of the evidence
cannot be clear error. United States v. Elliott,
322 F.3d 710, 714 (9th Cir.
2003). A factual finding is clearly erroneous, however, if, after examining
the evidence, the reviewing court “is left with the definite and firm
conviction that a mistake has been committed.” Anderson v. City of Bessemer
City,
470 U.S. 564, 573 (1985). Put differently, a factual finding is clearly
erroneous if it is illogical, implausible, or without support in inferences that
may be drawn from the facts in the record. See TrafficSchool.com, Inc. v.
Edriver Inc.,
653 F.3d 820, 832 (9th Cir. 2011).
DISCUSSION
Because they are pro se, we liberally construe Debtors’ appellate
briefs. See Cruz v. Stein Strauss Trust # 1361 (In re Cruz),
516 B.R. 594, 604
(9th Cir. BAP 2014). Their appellate arguments broadly fall into three
categories: first, the bankruptcy court’s handling of the trial and its general
factual findings; second, the bankruptcy court’s § 523(a)(2)(A)
determination; and third, the bankruptcy court’s § 523(a)(6) determination.
7
A. The bankruptcy court properly conducted the trial and its
factual findings are not clearly erroneous.
The bankruptcy court’s findings of fact followed a trial where there
was only one testifying witness, Ms. Kirakosian. And only Ms. Kirakosian
moved exhibits into evidence. The bankruptcy court found her testimony
credible.
Debtors, on the other hand, neither called any witnesses nor testified
themselves nor introduced any exhibits into evidence. They first argue on
appeal that they were not allowed to present exhibits and were instead
limited to “oral denials and objections to the Appellees exhibits and
testimony . . . .” Opening Br. at 10. But they fail to substantiate this by
reference to the record. And, after a thorough review of the excerpts of
record they submitted to us3 and the trial transcripts, we find no instance
where the bankruptcy court prohibited Debtors from introducing evidence.
Instead, as the exchange quoted above made clear, Debtors made a
calculated decision to present no evidence. As such, we deem Debtors’
argument that the court erred by not letting them introduce evidence both
lacking in merit and waived.
Next, Debtors attack Ms. Kirakosian’s documentary evidence and
3
We note that most of the documentary evidence that Debtors submitted as their
excerpts of records were not presented to the bankruptcy court at trial. As a result, we
do not consider any of it. Oyama v. Sheehan (In re Sheehan),
253 F.3d 507, 512 n.5 (9th Cir.
2001) (“Evidence that was not before the lower court will not generally be considered
on appeal.”).
8
argue that the bankruptcy court erred in considering what they
characterize as unauthenticated and hearsay evidence concerning their
status as defendants in unlawful detainer actions. This argument also fails.
Debtors never provided a copy of the relevant documentary exhibits
on appeal, but, based on trial testimony, we identify the relevant exhibit as
Exhibit I, a collection of documents including printouts from the state
court’s records showing two unlawful detainer actions filed against
Debtors. This evidence was adequately authenticated; Ms. Kirakosian
testified that she went to a local courthouse, searched its records, and then
printed out these documents. This was sufficient under the Federal Rules of
Evidence as public records may be authenticated based on evidence that “a
document was recorded or filed in a public office as authorized by
law . . . .” Fed. R. Evid. 901(b)(7). And this evidence, as relevant on appeal,
was not hearsay. The bankruptcy court found that Debtors fraudulently
represented that they were never defendants in an unlawful detainer
action; the printouts were not inadmissible hearsay because the truth of the
matters asserted therein was not necessarily considered. They were
admissible to show that Debtors were named as defendants in two
unlawful detainer actions filed shortly before they rented the unit. Indeed,
because the printouts were public records, the bankruptcy court was
entitled to take judicial notice of the undisputed fact that Debtors were
unlawful detainer action defendants. See Lee v. City of L.A.,
250 F.3d 668, 690
9
(9th Cir. 2001).
And, in any event, at trial Debtors never objected to Exhibit I on
hearsay or authentication grounds. As a result, they waived any issue
regarding the admissibility of these documents and related testimony by
failing to obtain a ruling from the trial court on their objections. Marbled
Murrelet v. Babbitt,
83 F.3d 1060, 1066 (9th Cir. 1996), as amended on denial of
reh’g (June 26, 1996) (“By failing to object to evidence at trial and request a
ruling on such an objection, a party waives the right to raise admissibility
issues on appeal.”).4
Finally, Debtors argue that Ms. Kirakosian never testified that she
saw Debtors damage the property, merely relied on other peoples’ reports,
and provided no evidence that the damage was not pre-existing or that it
actually occurred. Their position is not persuasive—they appear to assume
that the bankruptcy court erred unless Ms. Kirakosian provided eye-
witness testimony regarding their acts of vandalism. Their assumption is
false. The bankruptcy court’s finding that Debtors damaged the unit was
adequately supported by inferences reasonably drawn from the record:
Plaintiff demonstrated that only Defendants had access to the
Property, especially in light of the fact that Defendants changed
4
Assuming there was an erroneous evidentiary ruling, we would only reverse if
the error was prejudicial. Freeman v. Allstate Life Ins. Co.,
253 F.3d 533, 536 (9th Cir.
2001). Debtors never argue that the error was prejudicial. And, as noted, Ms. Kirakosian
testified about how she discovered the previous unlawful detainer actions. Debtors
never objected to this testimony. The bankruptcy court found her credible.
10
the locks at the time they had possession of the Property.
Plaintiff also established that Defendants were intentionally
damag[ing] the Property to stall eviction or to punish Plaintiff
for attempting to evict Defendants. For example, despite
Defendants’ assertion that the Property did not have screen
doors, Plaintiff found screen doors hidden in the closet on the
Property after Defendants abandoned the Property. Moreover,
the damage done to the garbage disposal unit, the toilet and the
laminate floors could have only been done intentionally. The
fact that Plaintiff found coins in the garbage disposal, a large
quantity of paper towels stuffed into the toilet and man-made
carvings into the laminate flooring indicates that Defendants
purposefully damaged the Property rather than accidentally
causing such damage.
Mem. Dec. at 14. The bankruptcy court also explicitly addressed
Defendants’ position:
Defendants’ sole defense to this claim is that Plaintiff did not
personally witness Defendants damaging the Property, and
cannot prove that it was Defendants who caused the damage.
However, Plaintiff testified that only Defendants had access to
the Property. In fact, Defendants changed the locks after
moving in so that not even Plaintiff or her property managers
could access the Property.
Id. at 15.
The bankruptcy court, thus, did not clearly err in finding that
Defendants damaged the Property.
B. The bankruptcy court did not err in entering judgment under
§ 523(a)(2)(A).
Section 523(a)(2)(A) excepts from discharge a debt resulting from
11
“false pretenses, a false representation, or actual fraud, other than a
statement respecting the debtor’s or an insider’s financial condition . . . .”
11 U.S.C. § 523(a)(2)(A). The creditor bears the burden of proving
§ 523(a)(2)(A)’s applicability by a preponderance of the evidence. Ghomeshi
v. Sabban (In re Sabban),
600 F.3d 1219, 1222 (9th Cir. 2010). In the Ninth
Circuit, the five elements for a § 523(a)(2)(A) nondischargeability claim are:
(1) misrepresentation, fraudulent omission or deceptive
conduct by the debtor; (2) knowledge of the falsity or
deceptiveness of [the debtor’s] statement or conduct; (3) an
intent to deceive; (4) justifiable reliance by the creditor on the
debtor’s statement or conduct; and (5) damage to the creditor
proximately caused by its reliance on the debtor’s statement or
conduct.
Turtle Rock Meadows Homeowners Ass’n v. Slyman (In re Slyman),
234 F.3d
1081, 1085 (9th Cir. 2000).
Debtors discuss only some of the elements on appeal.
Misrepresentations/proximate cause. The bankruptcy court found
that Debtors “made several misrepresentations to [Ms. Kirakosian] prior to
[Ms. Kirakosian] renting the Property to Defendants.” Mem. Dec. at 12.
Many of those misrepresentations concern information Debtors put on the
rental application.
To start, as noted above, the bankruptcy court found that Debtors
represented orally and in writing that they had never been defendants in
an unlawful detainer action. This finding has support in the record, as does
12
the bankruptcy court’s corollary finding, based on admissible documentary
evidence, that the statement was false.5
On appeal, Debtors first argue that the relevant question in
determining whether a tenant committed fraud in connection with renting
a property is whether, during the negotiations, the tenant induced the
owner by making materially false representations, such as that they had
never been late making rent payments or that their income was
sufficient—neither of these, they contend, occurred in the present case. But
the bankruptcy court found that Debtors represented that they were never
unlawful detainer defendants (and subsequently evicted), that this
representation was false, and that Debtors knew it was false. Debtors do
not show that these findings were clearly erroneous. And we see no error
in the bankruptcy court’s implicit determination that this was not an
immaterial misstatement as it goes to the heart of the landlord–tenant
relationship. Even under Debtors’ proposed “materiality” standard, this
untruth satisfies the misrepresentation element of a § 523(a)(2)(A) claim.
Next and so far as we can tell, Debtors argue that their
5
We acknowledge that the bankruptcy court identified other false statements.
We also acknowledge that in some cases the determination of falsity may rely in some
part on hearsay evidence. But this is of no moment as Debtors failed to object at trial
and waived any objection. Thus, solely in the interest of streamlining the analysis, we
focus only on the glaring misrepresentation regarding their defendant status in an
unlawful detainer action and the resulting eviction where, as we explained, a hearsay
objection would never be successful.
13
representations on the rental application, which is not a binding contract,
cannot support a fraud cause of action resulting from their actual rental of
the unit, which was governed by a separate contract. It is unclear just
which element Debtors dispute, but we assume it is proximate cause. In
any event, we disagree for two reasons.
First, they have not shown that they raised this point with the
bankruptcy court. As a result, we need not consider it. Orr v. Plumb,
884
F.3d 923, 932 (9th Cir. 2018) (“The usual rule is that arguments raised for
the first time on appeal or omitted from the opening brief are deemed
forfeited.”); Mano-Y&M, Ltd. v. Field (In re Mortg. Store, Inc.),
773 F.3d 990,
998 (9th Cir. 2014) (“A litigant may waive an issue by failing to raise it in a
bankruptcy court.”); United States v. Patrin,
575 F.2d 708, 712 (9th Cir. 1978)
(“As a general rule, a federal appellate court does not consider an issue not
passed upon below.” (internal quotation marks omitted)).
Second, the bankruptcy court found that the representations Debtors
made in the rental application were a proximate cause of the damage:
“[T]he damages incurred by Plaintiff were proximately caused by
Plaintiff’s reliance on Defendants’ statements. Plaintiff testified that she
would not have rented the Property to Defendants had she known about
the prior evictions.” Mem. Dec. at 13. These evictions were the result of the
unlawful detainer actions. Debtors do not show that this finding was
clearly erroneous. As a result, it is immaterial whether the rental
14
application was a binding contract because Debtors’ misrepresentations in
it caused Ms. Kirakosian to rent the unit to them.
Intent to deceive. The bankruptcy court found that Debtors intended
to deceive Ms. Kirakosian:
Defendants also had an intent to deceive Plaintiff. Based on
Defendants’ rental history, it appears Defendants had a habit of
entering into lease agreements knowing they would be unable
to pay rent and then staying on the premises rent-free while
landlords filed and prosecuted unlawful detainer actions.
Defendants intentionally made false statements in the
Application and verbally to Plaintiff to induce Plaintiff to rent
the Property to Defendants.
Id.
On appeal, Debtors argue that they did not intend to deceive
Ms. Kirakosian because they paid a security deposit and just over three
months rent before they stopped paying. But this overlooks that the lease
agreement called for twelve months of rental payments. Taken to its logical
conclusion, Debtors argue that any party who partially performs on a
contract cannot be liable for fraud in the inducement. But § 523(a)(2)(A)
and fraud are not so narrow. And the acknowledged and undisputed fact
that Debtors made some rental payments is insufficient to overcome the
bankruptcy court’s finding that Debtors, even in spite of those payments,
intended to deceive Ms. Kirakosian from the initiation of the landlord-
tenant relationship. It found, based on inferences it drew from facts in the
15
record, that Debtors had a habit of this type of fraud. As a result, the
bankruptcy court’s intent finding is not clearly erroneous.
Justifiable reliance. The bankruptcy court found that Ms. Kirakosian
justifiably relied on Debtors’ representations and did not need to
investigate. Debtors contend that she was an experienced landlord and that
they provided her with their credit report, previous rental history, and
personal references. This, they urge, should have been enough: “It doesn’t
seem reasonable that a landlord - especially one who has rented property
to previous tenants - wouldn’t make such a phone call, thus a failure to do
so negates the ‘reasonable reliance’ clause of Section 523(a)(2)(A).”
Opening Br. at 7. In short, they contend that Ms. Kirakosian was negligent
or unreasonable in not taking steps to verify the information that they
provided on the rental application.
But that is not the right legal standard. “[A] creditor’s reliance on a
debtor’s misrepresentation need be only justifiable, not reasonable,” for
§ 523(a)(2)(A) purposes. Citibank (South Dakota), N.A. v. Eashai (In re Eashai),
87 F.3d 1082, 1090 (9th Cir. 1996). As a result, even if Debtors are correct
that Ms. Kirakosian’s reliance was unreasonable, they have not shown that
the bankruptcy court erred when it found that Ms. Kirakosian, who it also
found was not under a duty to investigate, justifiably relied on their
representations. And, in addition, having failed to provide any evidence at
trial, they failed to establish that investigation would have established the
16
falsity of their statements.
C. The bankruptcy court did not err in entering judgment
against Debtors under § 523(a)(6).
Section 523(a)(6) excepts from discharge debts arising from a debtor’s
“willful and malicious” injury to another person or to the property of
another. Barboza v. New Form, Inc. (In re Barboza),
545 F.3d 702, 706 (9th Cir.
2008). “Willful” and “malicious” are conjunctive requirements subject to
separate analysis. Id.; In re Su,
290 F.3d at 1146–47.
In its memorandum decision, the bankruptcy court recited the correct
§ 523(a)(6) legal standard. And it made the requisite findings, which have
support in the record, as to Debtors’ state of mind. Although the
bankruptcy court did not explicitly identify the underlying California tort
that would support § 523(a)(6) liability, we need not look far to be
convinced that their conduct was sufficiently tortious: among other things,
Debtors put coins in a garbage disposal, stuffed paper towels into toilets,
and made carvings in the floor. This is intentional injury to property,
whether real or personal. Cf. Kawaauhau v. Geiger,
523 U.S. 57, 61–62 (1998);
Petralia v. Jercich (In re Jercich),
238 F.3d 1202, 1205 (9th Cir. 2001).
Debtors do not, in the main, separately dispute the § 523(a)(6)
analysis. They do reference Ward v. West (In re West),
446 B.R. 813 (Bankr.
N.D. Ohio 2010), but they do not distinctly argue how or why the case is
relevant to their appeal. In any event, In re West concerns ostensibly similar
17
factual and legal circumstances: there, a landlord discovered damage to a
property after the debtor moved out, obtained a $3,000 judgment in small
claims court against the debtor, and then sought a determination that the
judgment was nondischargeable under § 523(a)(6). Id. at 814–15. The
similarity ends there. The bankruptcy court concluded that the judgment
was dischargeable because a significant portion of the damage was caused
by mere neglect, which did not rise to the level of a wilful injury. Id. at
816–17. There was, however, damage that the court could not “ascribe[] to
just neglect.” Id. at 817. The bankruptcy court then discussed that damage
and specifically found the debtor’s explanations for the damage credible.
Id. at 817–19 (finding that damage to the toilet and wall was accidental and
that removal of trim was done to improve the property).
In re West, thus, does not support Debtors’ appeal. Crucially, it does
not stand for the proposition that a debtor’s liability for damage to a rental
property will always be dischargeable. Instead, the conclusion in In re West
resulted from the bankruptcy court’s finding of facts.6 Here, the bankruptcy
court found that Debtors willfully and maliciously damaged
Ms. Kirakosian’s property. That finding was not clearly erroneous.
6
After briefing was complete, Debtors submitted, as supplemental authorities,
two additional decisions. See BAP Dkt. No. 32. As with In re West, each of the decisions
turns on their individual facts and are dissimilar to the present case.
18
CONCLUSION
Based on the foregoing, we AFFIRM the bankruptcy court’s
judgment.
19
