In re: Christopher J. Boyce

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: October 25, 2016
• Docket: CC-15-1220-TaKuKi
• Status: Unpublished

Opinion

FILED OCT 25 2016 1 NOT FOR PUBLICATION 2 SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT 3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. CC-15-1220-TaKuKi ) 6 CHRISTOPHER J. BOYCE, ) Bk. No. 8:14-bk-11571-CB ) 7 Debtor. ) Adv. No. 8:14-ap-01134-CB ______________________________) 8 ) CHRISTOPHER J. BOYCE, ) 9 ) Appellant, ) 10 ) v. ) MEMORANDUM* 11 ) LISA HAMILTON, ) 12 ) Appellee. ) 13 ______________________________) 14 Argued and Submitted on September 22, 2016 at Pasadena, California 15 Filed – October 25, 2016 16 Appeal from the United States Bankruptcy Court 17 for the Central District of California 18 Honorable Catherine E. Bauer, Bankruptcy Judge, Presiding 19 Appearances: Fritz J. Firman argued for appellant; 20 Jonathan Alvanos argued for appellee. 21 Before: TAYLOR, KURTZ, and KIRSCHER, Bankruptcy Judges. 22 23 24 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. 28 See 9th Cir. BAP Rule 8024-1(c)(2). 1 INTRODUCTION 2 Chapter 71 debtor Christopher J. Boyce appeals from an 3 order granting summary judgment in favor of Lisa Hamilton and 4 determining that a stipulated state court judgment against him 5 was nondischargeable under § 523(a)(2)(A). We conclude the 6 bankruptcy court erred when it relied on a subsequent, stay 7 violative, state court order in applying issue preclusion to the 8 stipulated judgment. As a result, we REVERSE and REMAND to the 9 bankruptcy court for further proceedings consistent with this 10 decision. 11 FACTS 12 The Debtor and Hamilton were married for 14 years. During 13 their marriage, they entered into a joint venture agreement for 14 the express purpose of trading currencies. By the terms of 15 their agreement, Hamilton agreed to invest $3,125,000 into a 16 corporation owned and controlled by the Debtor. Of that amount, 17 some was eventually returned to Hamilton, and some was properly 18 invested. The Debtor, however, made the unilateral decision to 19 invest $727,538.69 in another one of his companies, BIN 20 International, without Hamilton’s knowledge or consent. This 21 investment is the source of the underlying litigation that led 22 to this appeal. The currencies trading venture involved 23 participation in a Ponzi scheme. 24 Hamilton sued the Debtor in California state court; the 25 1 Unless otherwise indicated, all chapter and section 26 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532. 27 All “Rule” references are to the Federal Rules of Bankruptcy Procedure and all “Civil Rule” references are to the Federal 28 Rules of Civil Procedure.

2 1 complaint alleged breach of contract, common counts, and fraud. 2 The Debtor did not answer the complaint. 3 The parties eventually stipulated to entry of a judgment 4 against the Debtor and his corporations, jointly and severally, 5 in the amount of $730,038.69. The parties now dispute the 6 circumstances culminating in the judgment. 7 After the Debtor filed for bankruptcy, Hamilton initiated 8 an adversary proceeding against the Debtor, seeking to except 9 the stipulated judgment from discharge under § 523(a)(2)(a), 10 (a)(4), and (a)(6) and objecting to discharge under 11 § 727(a)(4)(A). Hamilton subsequently moved for summary 12 judgment on the § 523(a) claims based on the issue preclusive 13 effect of the stipulated judgment. 14 The Debtor opposed. He argued that, because the judgment 15 was a consensual judgment entered prior to trial, Hamilton’s 16 claims were not actually tried or necessarily decided by the 17 state court as required for issue preclusion. He also argued 18 that the stipulated judgment was subject to rescission and was 19 not the result of voluntary consent based on Hamilton’s 20 “coercion, menace, and misrepresentation” in obtaining the 21 judgment. 22 The Debtor alleged that Hamilton threatened him, both 23 verbally and in writing, by stating that she would pursue the 24 matter in criminal court and that he would go to jail if he did 25 not cooperate in consenting to the judgment. He asserted that 26 he was fearful of Hamilton’s threats, given that the currency 27 trading venture turned out to be a scam in which the principal 28 was criminally convicted and sent to prison. He also claimed

3 1 that Hamilton’s threats extended to custody and visitation 2 rights related to their teenage daughter. According to the 3 Debtor, Hamilton and her state court counsel misrepresented to 4 him that the attorney also was representing him in that 5 proceeding. Hamilton, however, contended that the Debtor 6 initiated the discussion and was an active and willing 7 participant in the process, even submitting extensive revisions 8 to the proposed judgment. 9 Prior to Hamilton’s filing of the motion for summary 10 judgment, the Debtor went on the offensive and moved in the 11 state court to rescind the stipulated judgment entered nearly 12 two and half years before. He sought stay relief from the 13 bankruptcy court to allow pursuit of his state court motion. 14 The bankruptcy court determined that the stay relief motion 15 was unnecessary; it believed that, because the Debtor’s motion 16 was not tantamount to a collection action, stay relief was not 17 required. The bankruptcy court indicated that to the extent 18 there was any concern, it was willing to call the state court 19 judge and advise that there was no issue with the stay. It then 20 denied the Debtor’s stay relief motion. Hamilton’s counsel 21 lodged an order denying the Debtor’s motion for stay relief; the 22 bankruptcy court, however, never entered the order. 23 The state court thereafter denied the Debtor’s rescission 24 motion. It found that the Debtor failed to explain why he did 25 not seek to rescind or otherwise set aside the stipulated 26 judgment for over two years and determined that he did so only 27 upon discovery that he could not discharge the judgment in 28 bankruptcy. The state court also determined that the legal

4 1 grounds for the Debtor’s motion were faulty. Among other 2 things, it found that Debtor's arguments regarding coercion 3 lacked merit and that the Debtor’s declaratory evidence failed 4 to establish that he had a meritorious defense to Hamilton’s 5 allegations in the complaint. 6 Having deferred its decision on Hamilton’s motion for 7 summary judgment until the state court ruled, the bankruptcy 8 court thereafter determined that the stipulated judgment was 9 entitled to issue preclusive effect. It pointed out that the 10 state court judgment was based on fraud and observed that the 11 state court had rejected the Debtor’s allegations of coercion 12 and fraud in connection with the stipulated judgment. 13 Following the bankruptcy court’s entry of an order granting 14 summary judgment on the § 523(a) claims, the Debtor timely 15 appealed.2 16 JURISDICTION 17 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 18 §§ 1334 and 157(b)(2)(I). We have jurisdiction under 28 U.S.C. 19 § 158. 20 ISSUE 21 Whether the bankruptcy court erred in granting summary 22 judgment to Hamilton based on the issue preclusive effect of the 23 24 2 Initially there was an issue relating to finality, given 25 that Hamilton’s adversary complaint also asserted a claim under § 727(a)(4)(A). Following an inquiry by the BAP Clerk of Court, 26 the bankruptcy court issued an order containing a Civil 27 Rule 54(b) certification. In response, the BAP issued an order resolving the question of finality for the purposes of this 28 appeal.

5 1 stipulated judgment. 2 STANDARDS OF REVIEW 3 We review de novo the bankruptcy court’s decisions to grant 4 summary judgment and to except a debt from discharge under 5 § 523(a). See Ghomeshi v. Sabban (In re Sabban), 600 F.3d 1219, 6 1221-22 (9th Cir. 2010); Oney v. Weinberg (In re Weinberg), 7 410 B.R. 19, 28 (9th Cir. BAP 2009); see also Carrillo v. Su 8 (In re Su), 290 F.3d 1140, 1142 (9th Cir. 2002) 9 (nondischargeability presents mixed issues of law and fact and 10 is reviewed de novo). 11 We also review de novo the bankruptcy court’s determination 12 that issue preclusion was available. Black v. Bonnie Springs 13 Family Ltd. P’Ship (In re Black), 487 B.R. 202, 210 (9th Cir. 14 BAP 2013). If issue preclusion was available, we then review 15 the bankruptcy court’s application of issue preclusion for an 16 abuse of discretion. Id. A bankruptcy court abuses its 17 discretion if it applies the wrong legal standard, misapplies 18 the correct legal standard, or if its factual findings are 19 illogical, implausible, or without support in inferences that 20 may be drawn from the facts in the record. See 21 TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 832 22 (9th Cir. 2011) (citing United States v. Hinkson, 585 F.3d 1247, 23 1262 (9th Cir. 2009) (en banc)). 24 /// 25 /// 26 /// 27 /// 28 ///

6 1 DISCUSSION3 2 Summary judgment. Summary judgment is appropriate where 3 the movant shows that there is no genuine dispute of material 4 fact and the movant is entitled to judgment as a matter of law. 5 Fed. R. Civ. P. 56(a) (applicable in adversary proceedings under 6 Rule 7056). The bankruptcy court must view the evidence in the 7 light most favorable to the non-moving party when determining 8 whether genuine disputes of material fact exist and whether the 9 movant is entitled to judgment as a matter of law. See Fresno 10 Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 11 (9th Cir. 2014). And, it must draw all justifiable inferences 12 in favor of the non-moving party. See id. (citing Anderson v. 13 Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). 14 Issue preclusion in a nondischargeability proceeding. The 15 bankruptcy court may give issue preclusive effect to a state 16 court judgment as the basis for excepting a debt from discharge. 17 Harmon v. Kobrin (In re Harmon), 250 F.3d 1240, 1245 (9th Cir. 18 2001). We apply the forum state’s law of issue preclusion when 19 determining if issue preclusion is appropriate. Id. 20 The party asserting preclusion bears the burden of 21 establishing the threshold requirements. In re Harmon, 250 F.3d 22 at 1245. This means providing “a record sufficient to reveal 23 the controlling facts and pinpoint the exact issues litigated in 24 the prior action.” Kelly v. Okoye (In re Kelly), 182 B.R. 255, 25 3 While this appeal was pending, Hamilton moved in the 26 bankruptcy court to augment the record on appeal pursuant to 27 Rule 8009(e)(1). The bankruptcy court granted the motion. Based on our review, we do not disagree with the bankruptcy 28 court’s assessment and, thus, do not disturb its decision.

7 1 258 (9th Cir. BAP 1995), aff’d, 100 F.3d 110 (9th Cir. 1996). 2 Ultimately, “[a]ny reasonable doubt as to what was decided by a 3 prior judgment should be resolved against allowing the [issue 4 preclusive] effect.” Id. 5 California issue preclusion. California permits 6 application of issue preclusion to an existing judgment: 7 (1) after final adjudication; (2) of an identical issue; 8 (3) actually litigated in the former proceeding; (4) necessarily 9 decided in the former proceeding; and (5) asserted against a 10 party in the former proceeding or in privity with that party. 11 See DKN Holdings LLC v. Faerber, 61 Cal. 4th 813, 825 (2015). 12 In addition, the court must determine that issue preclusion 13 “furthers the public policies underlying the doctrine.” 14 In re Harmon, 250 F.3d at 1245 (citing Lucido v. Super. Ct., 15 51 Cal. 3d 335, 342-42 (1990)); see also Khaligh v. Hadaegh 16 (In re Khaligh), 338 B.R. 817, 824–25 (9th Cir. BAP 2006). 17 On appeal, the Debtor addresses only the third element, 18 specifically and distinctly, and implicitly addresses the public 19 policy element. Thus, we review only those two elements here. 20 A California stipulated judgment may be subject to issue 21 preclusive effect. In California, a stipulated judgment is not 22 excluded from an application of issue preclusion, “at least when 23 the parties manifest an intent to be collaterally bound by its 24 terms.” Cal. State Auto. Ass’n Inter-Ins. Bureau v. Super. Ct., 25 50 Cal. 3d 658, 664 (1990). This is because, under appropriate 26 circumstances, the stipulated judgment is considered akin to a 27 judgment entered after a trial on the merits of the proceeding. 28 See Needelman v. DeWolf Realty Co., 239 Cal. App. 4th 750, 759

8 1 (2015) (a stipulated judgment “is usually as conclusive a merger 2 or bar as a judgment rendered after trial.”); Avery v. Avery, 3 10 Cal. App. 3d 525, 529 (1970) (“The judgment of a court of 4 competent jurisdiction entered upon a stipulation of the parties 5 has the same effect as if the action had been tried on the 6 merits.”); see also Villacres v. ABM Indus. Inc., 189 Cal. App. 7 4th 562, 596 (2010). 8 The parties need only “manifest an intent to be 9 collaterally bound by” the terms of the stipulated judgment.4 10 Cal. State Auto. Ass’n Inter-Ins. Bureau, 50 Cal. 3d at 664. To 11 the extent that a party admits liability in a stipulated 12 judgment, that party “can be collaterally estopped from 13 relitigating liability” in a subsequent action. Id. By 14 specifically stipulating on an issue of liability, the parties 15 intend that “the ensuing judgment [will] collaterally estop 16 further litigation on that issue. Were their intent otherwise, 17 the parties easily could have expressly restricted the scope of 18 the agreement.” Id. at n.2. 19 For purposes of issue preclusion, the California Supreme 20 Court has observed that there is a difference between stipulated 21 judgments entered under California Code of Civil Procedure 22 (“CCP”) § 664.6 and compromise settlements entered under 23 CCP § 998. See Cal. State Auto. Ass’n Inter-Ins. Bureau, 24 50 Cal. 3d at 664 & n.3. Entry of the former type of judgment 25 4 Contrary to the Debtor’s assertion, Berr v. Fed. Deposit 26 Ins. Corp. (In re Berr), 172 B.R. 299 (9th Cir. BAP 1994) has no 27 bearing here. Berr involved federal preclusion law, not California’s. As we apply California issue preclusion law, 28 federal preclusion law bears no application in this matter.

9 1 is subject to the discretion of the trial court, and, thus, such 2 a judgment is properly subject to issue preclusion. Id. at n.3. 3 The trial court, however, “has no discretion to refuse to enter 4 judgment in a properly accepted statutory offer to settle 5 pursuant to section 998.” Id. Therefore, applying issue 6 preclusion to a CCP § 998 compromise is improper. See id. 7 In this case, the stipulated judgment expressly provided 8 that it was enforceable pursuant to CCP § 664.6. As a result, 9 the stipulated judgment was an appropriate basis for a potential 10 application of issue preclusion; it satisfied the “actually 11 litigated” requirement. 12 The bankruptcy court’s stay relief ruling is problematic. 13 The Debtor argues that the state court’s denial of his motion to 14 rescind the stipulated judgment violated the stay and, thus, 15 that the state court’s ruling against him was void. The record 16 reflects that he moved for stay relief to litigate that motion 17 in the state court,5 which the bankruptcy court denied as 18 unnecessary. Although that decision is not directly before us 19 on appeal, there is no question that the bankruptcy court abused 20 its discretion in denying the request for stay relief. 21 Section 362(a)(1) prohibits “the continuation . . . of a[n] 22 action or proceeding against the debtor that was or could have 23 been commenced before the commencement of the case . . . .” It 24 5 25 While this appeal was pending, Hamilton also sought stay relief to pursue collection against the Debtor. The Debtor 26 opposed the motion based on his pending appeal. The bankruptcy 27 court denied Hamilton’s motion on the record, but the basis for its decision is unknown because a transcript of the hearing is 28 unavailable.

10 1 is well established that actions taken in violation of the stay 2 are void. Schwartz v. United States (In re Schwartz), 954 F.2d 3 569, 571 (9th Cir. 1992). 4 Here, it was the Debtor who sought to rescind the 5 stipulated judgment in state court during the pendency of the 6 bankruptcy case. But, the underlying proceeding - Hamilton’s 7 state court action - was an action against the Debtor. As a 8 result, for the purposes of § 362(a), the Debtor’s motion was a 9 continuation of Hamilton’s action against him. See Parker v. 10 Bain, 68 F.3d 1131, 1135-36 (9th Cir. 1991) (holding that, a 11 debtor’s appeal from a summary judgment entered against him and 12 in favor of the plaintiff was stayed by § 362(a) because the 13 underlying proceeding was originally brought against the 14 debtor). Thus, stay relief was required to prosecute the motion 15 to rescind in state court. 16 Even more problematic for the purposes of our review on 17 appeal, the bankruptcy court never entered an order denying the 18 motion for stay relief. Hamilton’s counsel lodged the order 19 following the hearing on motion; but, for whatever reason, the 20 bankruptcy court never entered the order. This calls into 21 question the finality of the bankruptcy court’s ruling on stay 22 relief, both at the time that the state court rendered its 23 decision on the motion to rescind and for the purposes of this 24 appeal. 25 Pursuant to Civil Rule 58,6 it appears that the bankruptcy 26 6 27 Civil Rule 58 is incorporated into bankruptcy proceedings by Rule 9021. See Advisory Committee Notes to 1987 28 (continued...)

11 1 court’s ruling denying stay relief may be final. See Fed. R. 2 Civ. P. 58(c)(2)(B) (final judgment is deemed entered 150 days 3 after the trial court issues or renders its decision); see also 4 Noli v. C.I.R., 860 F.2d 1521, 1525 (9th Cir. 1988) (bankruptcy 5 court’s oral order granting stay relief was deemed a final 6 judgment). Here, the bankruptcy court denied the Debtor’s stay 7 relief motion on the record at the March 17, 2015 hearing. 8 Thus, its decision likely became final on August 14, 2015. 9 That said, to the extent the bankruptcy court’s stay relief 10 ruling became final, finality came too late. The record shows 11 that the state court issued its ruling on the Debtor’s motion to 12 rescind on May 15, 2015 - prior to the time that the stay relief 13 ruling likely became final under Civil Rule 58. Had the stay 14 15 6 (...continued) 16 Amendment to Rule 9021; see also Noli v. C.I.R., 860 F.2d 1521, 1525 (9th Cir. 1988). 17 We acknowledge, however, that the Advisory Committee on 18 Bankruptcy Rules has recently proposed a change to Rule 8002, “to have a provision similar to FRAP 4(a)(7), which addresses 19 when a judgment or order is entered for purposes of [Civil] Rule 4(a).” See Excerpt from the May 10, 2016 Report of the 20 Advisory Committee on Bankruptcy Rules, Action Item 7, at p. 63. 21 In its report, the Committee noted that Civil Rule 58 and its separate document requirement only applies to adversary 22 proceedings and that Rule 9021 “applies to contested matters and does not require a separate document.” See id. The proposed 23 rule, thus, seeks to “clarify that the time for filing a notice 24 of appeal under [Rule 8002](a) begins to run upon docket entry in contested matters and adversary proceedings for which [Civil] 25 Rule 58 does not require a separate document”; conversely, “[i]n adversary proceedings for which [Civil] Rule 58 does require a 26 separate document, the time commences when the judgment, order, 27 or decree is entered in the civil docket and (1) it is set forth on a separate document, or (2) 150 days have run from the entry 28 in the civil docket, whichever occurs first.” Id. at pp. 63-64.

12 1 relief ruling been final at the time of the state court’s order, 2 the bankruptcy court’s ruling would likely constitute law of the 3 case, and the parties would be bound by the decision. But that 4 is not the case here; thus, that finality likely occurred at a 5 later point in time is of no moment. As a result, the state 6 court’s order violated the stay and was void pursuant to 7 Schwartz. 8 This becomes relevant to our review in this appeal because 9 the bankruptcy court relied extensively on the state court’s 10 findings in the stay violative order when applying issue 11 preclusion to the stipulated judgment - in particular, it relied 12 on the stay violative order when assessing the Debtor’s 13 contentions that he was coerced into execution of the stipulated 14 judgment. These allegations could have impact on the “actually 15 litigated” element of issue preclusion as the Debtor most 16 directly argues.7 But as noted here they most directly relate 17 to the public policy element of California issue preclusion. 18 To the extent a California consent judgment was obtained by 19 inappropriate coercion, a court applying issue preclusion must 20 determine whether reliance on such a judgment appropriately 21 furthers the public policy underlying the issue preclusion 22 23 24 7 25 As stated, in California, a stipulated judgment may form a proper basis for application of issue preclusion. See Cal. 26 State Auto. Ass’n Inter-Ins. Bureau, 50 Cal. 3d at 664. Thus, 27 that the state court judgment was obtained on the parties’ stipulation did not mean automatically that the matter was not 28 “actually litigated” for the purposes of issue preclusion.

13 1 doctrine.8 The bankruptcy court did not do this analysis. It, 2 instead, relied on the findings related to the stay violative 3 rescission motion to find there was no coercion. This was 4 error. 5 Because the bankruptcy court improperly relied on a stay 6 violative order in applying issue preclusion to the stipulated 7 judgment, we reverse the bankruptcy court’s grant of summary 8 judgment in Hamilton’s favor and remand for further proceedings 9 consistent with this decision. Perhaps these particular 10 circumstances warrant a retroactive annulment of the stay; we 11 cannot and do not say. Instead, we leave it to the bankruptcy 12 court to make appropriate determinations in light of our 13 analysis. 14 CONCLUSION 15 Based on the foregoing, we REVERSE and REMAND. 16 17 18 19 20 21 22 23 24 25 26 27 8 This is also an appropriate consideration in our de novo 28 review of whether issue preclusion is available in this case.