In re: Hai Lecong

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: May 6, 2015
• Docket: CC-14-1286-KiKuD
• Status: Unpublished

Opinion

FILED MAY 06 2015 1 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT 2 3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. CC-14-1286-KiKuD ) 6 HAI LECONG, ) Bk. No. 2:09-40568-ER ) 7 Debtor. ) Adv. No. 10-01161 ) 8 ) HAI LECONG, ) 9 ) Appellant, ) 10 ) v. ) M E M O R A N D U M1 11 ) ASHLEY TRAN, ) 12 ) Appellee. ) 13 ______________________________) 14 Argued and Submitted on February 19, 2015, at Los Angeles, California 15 Filed - May 6, 2015 16 Appeal from the United States Bankruptcy Court 17 for the Central District of California 18 Honorable Ernest M. Robles, Bankruptcy Judge, Presiding 19 Appearances: Lewis R. Landau argued for appellant, Hai Lecong; 20 Gregory M. Salvato argued for appellee, Ashley Tran. 21 22 Before: KIRSCHER, KURTZ and DUNN, Bankruptcy Judges. 23 24 25 26 1 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 9th 28 Cir. BAP Rule 8024-1. 1 Chapter 72 debtor Hai Lecong ("Debtor") appeals an order 2 granting summary judgment to appellee, Ashley Tran ("Tran"), 3 wherein the bankruptcy court determined that a state court 4 judgment in favor of Tran was excepted from Debtor's discharge 5 under § 523(a)(2)(A) on the basis of issue preclusion. We AFFIRM. 6 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 7 A. Events leading to the state court litigation 8 Tran is a dentist. Her sister, Lauren Tran ("Lauren"), is an 9 attorney and general contractor. Debtor is a licensed California 10 real estate agent and mortgage broker. Lauren and Debtor, as 11 business associates, engaged in various enterprises in the 12 building supply and construction business. 13 Debtor and Lauren met sometime before 1996, when Lauren 14 performed legal services for a company owned by Debtor and his 15 former business associate, which manufactured and sold cultured 16 marble and synthetic kitchen and bath materials. Lauren 17 eventually expressed an interest in becoming a shareholder in the 18 business. 19 In about 1998, Debtor, his former associate and Lauren formed 20 a new entity, Excelstone International, Inc. ("Excelstone"), which 21 manufactured and sold Corian countertops. To purchase her 22 one-third share of the business, Lauren borrowed $60,000 from 23 Tran, which Lauren orally agreed to pay back within two years at 24 10% interest ("First Loan"). Eventually, Lauren and Debtor bought 25 out the former associate's interest in Excelstone, and in 1999, 26 27 2 Unless specified otherwise, all chapter, code and rule references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and 28 the Federal Rules of Bankruptcy Procedure, Rules 1001-9037.

-2- 1 Lauren and Debtor formed a new entity called Lexcel Solid 2 Surfacing, Inc. ("Lexcel"). Excelstone was dissolved in 1998. 3 Shortly after the First Loan, Lauren asked Tran for an 4 additional $65,000 to invest in Excelstone/Lexcel, which Lauren 5 again orally promised to pay back in two years at 10% interest 6 ("Second Loan"). Tran provided the $65,000 for the Second Loan. 7 Lauren claimed Tran made the Second Loan to Excelstone/Lexcel; 8 Tran claimed she made the Second Loan to Lauren and Debtor. In 9 any event, Tran conceded that at the time of the First Loan and 10 Second Loan she did not speak with Debtor, only Lauren. However, 11 Tran understood that Debtor was responsible for both loans along 12 with Lauren because they involved the duo’s business. Tran also 13 provided a loan of $30,000 to Lauren and Debtor for the purchase 14 of two company cars. 15 At some point, the oral loan agreements were modified to 16 provide that the proceeds from the First Loan and Second Loan 17 would be used by Lauren and Debtor to build a single family 18 residence in Whittier, California, which would be either 19 transferred to Tran or sold and the sale proceeds used to repay 20 her. Ultimately, Lauren and Debtor used the funds from Tran to 21 construct a residence for Debtor and his wife, who apparently 22 still occupy the Whittier property. Debtor’s wife holds title to 23 the Whittier property. 24 From 1999 to 2004, Tran made several requests for repayment 25 of the First Loan and Second Loan, but no payments were made. 26 In or around 2004, Lauren decided to open a showroom to boost 27 company sales. In late 2004, Lauren formed an entity called 28 Goldenwest Kitchen & Bath, Inc. to operate the showroom. To pay

-3- 1 for this venture, Lauren forged a series of checks on a HELOC 2 account owned by Tran totaling $70,000. When Tran confronted 3 Lauren about the forgeries, Lauren orally agreed to pay back the 4 funds on the same terms as the First Loan and Second Loan, within 5 two years at 10% interest (the "HELOC Loan"). 6 At some point, Lauren and Debtor told Tran they did not have 7 the monies to repay any of the loans, although they made oral 8 assurances to her that they would repay them. On or about 9 September 19, 2007, Lauren and Debtor signed a promissory note in 10 favor of Tran providing that each owed Tran one-half of a $135,000 11 debt ("Note"). The Note accounted for the $65,000 Second Loan and 12 the $70,000 HELOC Loan. The Note required full repayment by 13 September 12, 2008, and superseded any other prior notes. Debtor 14 conceded that he and Lauren were obligated on the Note. 15 In November 2007, Tran filed suit against Lauren, Debtor, 16 their related business entities and Debtor's wife for a variety of 17 claims, including breach of contract, fraud and conversion. In 18 her later-filed first amended complaint ("FAC"), Tran alleged with 19 respect to the fraud claim: 20 At the times Defendants made the promises [to repay the loans], as well as the time that Defendants reaffirmed 21 and ratified said promises to Plaintiff as alleged above, they expressly and impliedly represented to her that 22 there existed in their then present state of mind an intention to keep the said promises. 23 The said representations were false, and each time 24 Defendants made them, they knew they were false. 25 At the time Defendants made the promises, as well as the time of the said representations, and at the times of the 26 reliance by Plaintiff, as herein alleged, Plaintiff believed that the said representations were true. 27 At all times herein mentioned, Defendants intended to 28 defraud and deceive Plaintiff by causing her to act to

-4- 1 her detriment in reliance upon her belief in the truth of Defendants' said representations. 2 In reasonable reliance upon Plaintiff's belief in the 3 truth of Defendant's [sic] said representations, she acted as above-described and lent the Defendants the sum 4 of Two Hundred Twenty-Five Thousand Dollars ($225,000). 5 Were it not for Plaintiff's trust and confidence in Defendants as her fiduciaries, and her said reliance upon 6 and belief in the trust of his [sic] said representations, Plaintiff would not have acted as 7 hereinabove alleged. 8 By reason of the said fraud and deceit, Plaintiff has suffered damages measured by the dollar amount of the 9 loss of the benefit of her bargain — either repayment of the loan plus interest or transfer of title to real 10 property . . . . 11 Tran also alleged claims for emotional distress and punitive 12 damages, totaling $50,000. 13 The case was tried before a jury on three causes of action — 14 breach of contract and fraud against Lauren and Debtor, and 15 conversion against Lauren. As to Debtor, the jury found in favor 16 of Tran and assessed $230,335 in damages for fraud and breach of 17 contract. The jury also awarded Tran $50,000 in noneconomic 18 damages for emotional distress and $50,000 in punitive damages. 19 The jury found Lauren liable for fraud and breach of contract in 20 the amount of $407,993, as well as conversion and other damages. 21 The jury also found against Lexcel, Goldenwest and two other 22 entities involving Lauren and Debtor. Lauren and Debtor were 23 jointly and severally liable for the $230,335 breach of contract 24 and fraud award to Tran. 25 The jury's special verdict ("Judgment") made the following 26 findings with respect to the fraud claim against Debtor: 27 19. That Debtor made a false promise that was important to the transaction to Tran; 28

-5- 1 20. That Debtor knew the promise to Tran was false when made, or that he made the promise recklessly and without 2 regard for the truth; 3 21. That Debtor intended for Tran to rely on the promise; 4 22. That Tran reasonably relied on Debtor's promise; 5 23. That Tran suffered harm in reliance on Debtor's 6 promise; and 7 24. That Tran's reliance on Debtor's promise was a substantial factor in causing harm to Tran. 8 9 The parties appealed the Judgment to the California Court of 10 Appeal. Specifically, Debtor contended that insufficient evidence 11 existed of his fraud to support the jury verdict. 12 B. Postpetition events 13 While the appeal of the Judgment was pending, Debtor filed a 14 chapter 7 bankruptcy case on November 3, 2009. 15 1. Tran's nondischargeability complaint 16 Tran alleged that the Judgment was excepted from Debtor’s 17 discharge under § 523(a)(2)(A) and (a)(4). The bankruptcy court 18 stayed Tran’s nondischargeability action while the parties pursued 19 the appeal of the Judgment. 20 2. The Court of Appeal decision 21 The California Court of Appeal reversed the awards of 22 noneconomic and punitive damages against Debtor and a portion of 23 the breach of contract award, but upheld the fraud award of 24 $230,335. It rejected Debtor's contention that no evidence 25 existed in the record that he made any false promises to Tran. 26 The appellate court first noted that the jury found Debtor 27 knowingly or recklessly, without regard for the truth, made false 28 promises to Tran, with the intention that she rely on them. The

-6- 1 jury further found that she relied on the promises, causing her 2 damage. The appellate court also observed that Debtor had taken 3 responsibility for at least some of the unpaid loans by signing 4 the Note, and that the money went into companies in which he was a 5 principal. Debtor had further promised Tran that the HELOC Loan 6 would be paid back with the proceeds from the sale of the Whittier 7 property, which never transpired. 8 Ultimately, the appellate court concluded: 9 "[t]here was substantial evidence that [Debtor] was at least complicit with Lauren in connection with promises 10 regarding repayment of the loans, including interest. The evidence that [Debtor] defrauded [Tran] is based 11 upon the promise that Lauren borrowed money with a promise to pay back the money; Lauren's promise to pay 12 the money back was false because she never had any intention to pay back the money; [Debtor] was involved 13 in these promises because the monies went to the companies in which he was a principal; and [Debtor] 14 continued to participate in promising [Tran] she would be repaid, including out of the sale of real property 15 that was not sold. . . . The evidence of his conduct after the loans suggests his involvement with the false 16 promises. There is evidence [Tran] forbeared in pursuing collection of monies owed her based on the 17 promises." 18 The state court later entered a Second Amended Judgment to 19 reflect the appellate court's decision. It reaffirmed that Debtor 20 was liable to Tran for fraud damages of $230,335. 21 3. Tran's motion for summary judgment 22 Subsequently, Tran moved for summary judgment on her 23 § 523(a)(2)(A) claim ("MSJ"). In essence, Tran contended that 24 because the jury's fraud findings in the Judgment established the 25 elements for a fraud claim under § 523(a)(2)(A), and given the 26 finality of the Judgment, she was entitled to summary judgment on 27 the basis of issue preclusion. In support, Tran attached the FAC, 28 the Judgment, the California Court of Appeal decision and the

-7- 1 Second Amended Judgment reflecting the appellate court's decision. 2 Debtor opposed the MSJ, disputing that the elements for issue 3 preclusion and § 523(a)(2)(A) were met. With respect to issue 4 preclusion, Debtor conceded the Judgment was final, on the merits, 5 and involved the same parties. However, he contended Tran had 6 failed to show that the issues were identical; she did not offer 7 the jury instructions or court order establishing that fraud for 8 purposes of § 523(a)(2)(A) was the same type of fraud that was 9 litigated in the prior action. Debtor contended that Tran had 10 also failed to establish with any pleadings or evidence that the 11 fraud issue was actually litigated in the prior action. For 12 example, argued Debtor, the issue of whether Lauren's acts could 13 be imputed to him under agency principles was never litigated 14 before the state court. Debtor contended these same grounds 15 supported his argument for why the fraud issue was also not 16 necessarily decided. 17 As for the elements of Tran's § 523(a)(2)(A) claim, Debtor 18 contended: he made no misrepresentations to Tran; no evidence 19 supported his alleged knowledge of any falsity or his intent to 20 deceive Tran; she did not justifiably rely on his misstatements or 21 conduct; and Tran did not suffer damages as a proximate result of 22 any misrepresentation. 23 Much of Debtor's opposing argument was based on his erroneous 24 assertion the bankruptcy court could not consider the Judgment or 25 the appellate court decision because they were "inadmissible 26 hearsay," which the court properly rejected. Notwithstanding, 27 Debtor contended he made no representations to Tran before she 28 loaned the money to Lauren, and the Judgment failed to identify

-8- 1 what he allegedly said or when. While Debtor conceded the 2 appellate court's finding that his statement about the companies 3 making good on some of the loans was "circumstantial evidence" of 4 a fraudulent promise to repay, Debtor argued this was not enough 5 to satisfy the first element of § 523(a)(2)(A). Debtor further 6 contended the appellate court's determination that he was involved 7 with the false promises because the monies went to his companies 8 showed, at best, only constructive fraud. 9 Debtor also claimed there was no evidence to show that he 10 intended to deceive Tran when the alleged representations were 11 made and his reassurances of repayment were not enough to show 12 intent to deceive under § 523(a)(2)(A). In addition, Debtor 13 disputed Tran's justifiable reliance, contending he had nothing to 14 do with procuring the loans. Tran admitted at trial that she 15 never discussed the terms of any of the loans with Debtor until 16 October 2007 — years after they were given. Finally, Debtor 17 argued that proximate cause and damages were not established 18 because he did not cause Tran to make the loans and therefore 19 suffer damages for failure to repay them. 20 In reply, Tran argued that Debtor was seeking to relitigate 21 the factual findings and legal conclusions already resolved by the 22 Judgment and affirmed by the California Court of Appeal. Tran 23 contended the bankruptcy court's only concern was whether the 24 findings made in the Judgment were sufficient for her debt to be 25 excepted from discharge under § 523(a)(2)(A) or whether further 26 factual issues remained; it was not to "look behind" the Judgment 27 to determine whether it was properly entered. Tran argued that 28 the elements for common law fraud in California mirrored those

-9- 1 under § 523(a)(2)(A) and that the jury's specific and detailed 2 findings made it clear that a claim for "actual fraud" was 3 actually litigated and necessarily decided in the prior action. 4 4. The bankruptcy court's ruling on the MSJ 5 Prior to the scheduled hearing on the MSJ, the bankruptcy 6 court issued a tentative ruling, which it ultimately adopted and 7 incorporated into its Memorandum Decision, granting the MSJ on the 8 basis of issue preclusion. The court determined that the jury had 9 made findings for a fraud cause of action sufficient for 10 § 523(a)(2)(A) based on the claim alleged in the FAC. As for 11 Debtor's requisite intent when he made representations to Tran, 12 the court reasoned that "the jury must have so found by reference 13 to the [FAC] which alleges that the defendants, including Debtor, 14 knew the representations were false each time they were made, and 15 intended to defraud and deceive [Tran]." The court further 16 concluded that the jury’s finding of Tran’s “reasonable” reliance 17 on Debtor’s false promise met the lower standard of “justifiable” 18 reliance required for § 523(a)(2)(A). Finally, the jury had found 19 that Tran was damaged as a result of Debtor's fraud in the amount 20 of $230,335. 21 The parties made their arguments at the MSJ hearing. In 22 response to Debtor's argument that the bankruptcy court was 23 relying on the FAC as evidence, the court stated it was not taking 24 the allegations of the FAC as any sort of proof, but only 25 determining whether the jury's findings were consistent with the 26 FAC. Debtor then proceeded to argue that one could not tell from 27 the Judgment what sort of fraud was litigated in the prior 28 proceeding, actual or some other kind, and the following colloquy

-10- 1 ensued: 2 THE COURT: What you want to do is to have this Court not only occupy the State Court's position, but also the 3 jury's position. And they said yes when asked, did Hai Lecong make a false promise. It's fairly clear. 4 MR. COHON: Wait a minute. Where -- where is the 5 evidence of the false promise? Because here is the issue. 6 THE COURT: I'm not dealing with the evidence. I'm just 7 dealing with the response to Number 19. 8 Hr’g Tr. (Jan. 8, 2013) 14:7-14. After hearing further argument 9 from the parties, the court took the matter under advisement to 10 review cases cited by Debtor's counsel. 11 The bankruptcy court issued its Memorandum Decision and 12 entered a judgment excepting the Judgment debt of $230,335 from 13 discharge under § 523(a)(2)(A). Recapping Debtor's position at 14 the MSJ hearing, Debtor had argued that the debt to Tran was not 15 excepted from discharge under § 523(a)(2)(A) because he was not 16 involved in the discussions between Tran and Lauren, and did not 17 actively participate in Lauren's fraud. Debtor had also argued 18 that the jury found he made a false promise to Tran only because 19 they imputed Lauren's statements to him based on their business 20 relationship. Debtor argued that while misrepresentations could 21 be imputed for purposes of finding fraud under state law, 22 imputation was not a proper basis for nondischargeability under 23 § 523(a)(2)(A). 24 Relying on an unpublished Panel decision, Babian v. Tamamian 25 (In re Babian), 2013 WL 646386, at *5 (9th Cir. BAP Jan. 4, 2013), 26 which cited Tsurukawa v. Nikon Precision, Inc. (In re Tsurukawa), 27 287 B.R. 515, 525 (9th Cir. BAP 2002), the bankruptcy court 28 concluded that Debtor was incorrect; actual fraud could be imputed

-11- 1 to a debtor under partnership/agency principles. Thus, based on 2 the appellate court's decision (and Debtor's counsel's concession) 3 that Lauren and Debtor were business partners, the bankruptcy 4 court found that Lauren's fraud could be imputed to Debtor for 5 purposes of Tran's claim under § 523(a)(2)(A).3 6 II. JURISDICTION 7 The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 8 and 157(b)(2)(I). We have jurisdiction under 28 U.S.C. § 158. 9 III. ISSUE 10 Did the bankruptcy court err when it granted Tran summary 11 judgment on her claim under § 523(a)(2)(A) by applying issue 12 preclusion to the Judgment? 13 IV. STANDARDS OF REVIEW 14 The bankruptcy court's order granting summary judgment is 15 reviewed de novo. Shahrestani v. Alazzeh (In re Alazzeh), 16 509 B.R. 689, 692-93 (9th Cir. BAP 2014). "Viewing the evidence 17 in the light most favorable to the non-moving party, we must 18 determine 'whether there are any genuine issues of material fact 19 and whether the trial court correctly applied relevant substantive 20 law.'" New Falls Corp. v. Boyajian (In re Boyajian), 367 B.R. 21 138, 141 (9th Cir. BAP 2007)(quoting Tobin v. San Souci Ltd. 22 P'ship (In re Tobin), 258 B.R. 199, 202 (9th Cir. BAP 2001)). 23 We also review de novo the preclusive effect of a judgment; 24 whether issue preclusion is available is a mixed question of law 25 26 3 Debtor's initial appeal of the nondischargeability judgment was dismissed as interlocutory because the bankruptcy court had 27 not yet determined Tran's claim under § 523(a)(4). Once the court entered an order dismissing that claim, Debtor timely appealed the 28 nondischargeability judgment.

-12- 1 and fact. Stephens v. Bigelow (In re Bigelow), 271 B.R. 178, 183 2 (9th Cir. BAP 2001). If issue preclusion is available, the 3 bankruptcy court's decision to apply it is reviewed for abuse of 4 discretion. Lopez v. Emergency Serv. Restoration, Inc. 5 (In re Lopez), 367 B.R. 99, 104 (9th Cir. BAP 2007). Under that 6 standard, we reverse where the bankruptcy court applied an 7 incorrect legal rule or where its application of the law to the 8 facts was illogical, implausible or without support in inferences 9 that may be drawn from the record. Ahanchian v. Xenon Pictures, 10 Inc., 624 F.3d 1253, 1258 (9th Cir. 2010)(citing United States v. 11 Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009)(en banc)). 12 We can affirm on any ground supported by the record, 13 regardless of whether the bankruptcy court relied upon, rejected, 14 or even considered that ground. Fresno Motors, LLC v. Mercedes 15 Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014). 16 V. DISCUSSION 17 A. Summary judgment standards 18 Summary judgment is appropriate where the movant shows that 19 no genuine dispute of material fact exists and the movant is 20 entitled to judgment as a matter of law. Civil Rule 56(a) 21 (applicable in adversary proceedings under Rule 7056). The 22 bankruptcy court views the evidence in the light most favorable to 23 the nonmoving party in determining whether any genuine disputes of 24 material fact exist and whether the movant is entitled to judgment 25 as a matter of law. Fresno Motors, LLC, 771 F.3d at 1125. 26 B. Issue preclusion standards 27 The doctrine of issue preclusion applies to dischargeability 28 proceedings under § 523(a). Grogan v. Garner, 498 U.S. 279, 284

-13- 1 n.11 (1991). In determining the effect of a state court judgment, 2 we must apply, as a matter of full faith and credit, the state's 3 law of issue preclusion. Gayden v. Nourbakhsh (In re Nourbakhsh), 4 67 F.3d 798, 800 (9th Cir. 1995); Jung Sup Lee v. Tcast Commc'ns, 5 Inc. (In re Jung Sup Lee), 335 B.R. 130, 136 (9th Cir. BAP 2005). 6 Under California law, a prior judgment is entitled to issue 7 preclusive effect if all five of the following requirements are 8 met: 9 (1) The issue sought to be precluded must be identical to that decided in the former proceeding; 10 (2) The issue must have been actually litigated in the 11 former proceeding; 12 (3) The issue must have been necessarily decided in the former proceeding; 13 (4) The decision in the former proceeding must be final 14 and on the merits; 15 (5) The party against whom issue preclusion is sought must be the same as, or in privity with, the party to the 16 former proceeding. 17 Harmon v. Kobrin (In re Harmon), 250 F.3d 1240, 1245 (9th Cir. 18 2001); Lucido v. Super. Ct., 51 Cal.3d 335, 341 (1990). Even if 19 all five requirements are satisfied, however, California places an 20 additional limitation on issue preclusion: courts may give 21 preclusive effect to a judgment "only if application of preclusion 22 furthers the public policies underlying the doctrine." 23 In re Harmon, 250 F.3d at 1245 (citing Lucido, 51 Cal.3d at 342). 24 The party asserting preclusion bears the burden of 25 establishing these threshold requirements. Id. This burden means 26 providing "a record sufficient to reveal the controlling facts and 27 pinpoint the exact issues litigated in the prior action." Kelly 28 v. Okoye (In re Kelly), 182 B.R. 255, 258 (9th Cir. BAP 1995),

-14- 1 aff'd, 100 F.3d 110 (9th Cir. 1996). Any reasonable doubt as to 2 what was decided by a prior judgment should be resolved against 3 allowing the [issue preclusive] effect." Id. 4 The bankruptcy court initially ruled that based on the jury's 5 express findings of actual fraud and the cause of action alleged 6 in the FAC, the jury had found Debtor liable for actual fraud, and 7 therefore he was precluded from relitigating that issue. 8 Accordingly, Tran's fraud damages were excepted from discharge 9 under § 523(a)(2)(A). The bankruptcy court also determined, as a 10 separate and sufficient basis, the Judgment supported a finding 11 that Debtor was imputedly liable for Lauren's fraud. 12 C. The bankruptcy court did not err in applying issue preclusion to the Judgment. 13 14 Debtor spends a great deal of time disputing the bankruptcy 15 court's finding of imputed fraud, contending that Lauren's fraud 16 could not be imputed to him because nothing in the record 17 establishes that he knew or should have known of Lauren's fraud. 18 Debtor, however, glosses over the bankruptcy court's initial 19 ruling that Tran's debt was nondischargeable based on his actual 20 fraud found by the jury, the basis on which we affirm. Debtor 21 does not dispute that the Judgment was final and on the merits, 22 and that the parties are the same. Therefore, we only address the 23 first three elements of issue preclusion. 24 1. Identity of issues 25 Section 523(a)(2)(A) excepts from discharge any debt for 26 money, property, services or an extension, renewal, or refinancing 27 of credit, to the extent obtained by false pretenses, a false 28 representation or actual fraud. The creditor bears the burden of

-15- 1 demonstrating, by a preponderance of the evidence, each of the 2 following five elements: (1) misrepresentation, fraudulent 3 omission or deceptive conduct by the debtor; (2) knowledge of the 4 falsity or deceptiveness of the representation or omission; (3) an 5 intent to deceive; (4) the creditor's justifiable reliance on the 6 representation or conduct; and (5) damage to the creditor 7 proximately caused by reliance on the debtor's representations or 8 conduct. Ghomeshi v. Sabban (In re Sabban), 600 F.3d 1219, 1222 9 (9th Cir. 2010). 10 The "identical issue" requirement addresses whether 11 "identical factual allegations" are at stake in the two 12 proceedings. Lucido, 51 Cal.3d at 342. "The elements of 13 § 523(a)(2)(A) 'mirror the elements of common law fraud' and match 14 those for actual fraud under California law, which requires the 15 plaintiff to show: (1) misrepresentation; (2) knowledge of the 16 falsity of the representation; (3) intent to induce reliance; 17 (4) justifiable reliance; and (5) damages." In re Tobin, 258 B.R. 18 at 203 (citing Younie v. Gonya (In re Younie), 211 B.R. 367, 19 373-74 (9th Cir. BAP 1997), aff'd, 163 F.3d 609 (9th Cir. 1998) 20 (table decision)). 21 The FAC alleged what appears to be a cause of action for 22 actual and/or promissory fraud. The elements of a fraud claim 23 based on a false promise are (1) a promise by the defendant 24 (2) made without an intent to perform and (3) made with the intent 25 to induce reliance by the plaintiff, followed by (4) reasonable 26 reliance by the plaintiff that results in (5) injury to the 27 plaintiff. CAL. CIV. CODE §§ 1572, 1710; Lazar v. Super. Ct., 28 12 Cal.4th 631, 638 (1996). "'Promissory fraud' is a subspecies

-16- 1 of the action for fraud and deceit. A promise to do something 2 necessarily implies the intention to perform; hence, where a 3 promise is made without such intention, there is an implied 4 misrepresentation of fact that may be actionable fraud." Lazar, 5 12 Cal.4th at 638. See also Rubin v. West (In re Rubin), 875 F.2d 6 755, 759 (9th Cir. 1989)(a promise made with a positive intent not 7 to perform or without a present intent to perform satisfies 8 § 523(a)(2)(A)). 9 The FAC alleged the required elements for either cause of 10 action, including that Debtor had made promises or representations 11 to Tran that he never intended to keep and/or knew were false at 12 the time he made them, that he intended for Tran to rely on the 13 false promises or representations, and that Tran reasonably relied 14 on the false promises or representations and suffered damages as a 15 result. In the special verdict supporting the Judgment, the jury 16 expressly found that Debtor made a knowing false promise he 17 intended Tran to rely on, that Tran reasonably relied on the false 18 promise and that she suffered harm as a result. Although the jury 19 found "reasonable" reliance as opposed to the "justifiable" 20 reliance required under § 523(a)(2)(A), a finding of reasonable 21 reliance meets the lower standard of justifiable. Tallant v. 22 Kaufman (In re Tallant), 218 B.R. 58, 69 (9th Cir. BAP 1998). The 23 Judgment, therefore, was an adjudication of a fraud claim 24 identical to that required to find the debt nondischargeable under 25 § 523(a)(2)(A). 26 2. Actually litigated and necessarily decided 27 Debtor argues "the record contains no factual determinations 28 that could support a fraud claim under § 523(a)(2)(A)." Debtor

-17- 1 contends that if his fraud could not be established as a matter of 2 vicarious liability based on Lauren's actions, the bankruptcy 3 court was required to find that he made fraudulent representations 4 to Tran, that he knew were false, with intent to deceive, upon 5 which Tran justifiably relied and which proximately caused her 6 damage. Debtor contends the bankruptcy court failed to identify 7 what "allegedly false representation" he made to Tran and that we 8 are unable to determine whether the allegedly false representation 9 arose out of operation of imputed fraud or is based on some 10 representation by Debtor. 11 What Debtor fails to recognize is that when faced with a 12 prior judgment where a jury has made express findings of actual 13 fraud that satisfy the elements of a claim under § 523(a)(2)(A), 14 the bankruptcy court is not required to "look behind" that 15 judgment to determine whether the factual record supported it, or 16 whether or not any representation was made. That was the role of 17 the California Court of Appeal, which affirmed the actual fraud 18 judgment against Debtor. 19 Given the jury's findings in the special verdict, it is clear 20 that the issue of actual fraud was actually litigated and 21 necessarily decided in the prior state court proceedings. The FAC 22 specifically alleged that Debtor made false promises and 23 representations to Tran, that he made them knowingly with the 24 intent to defraud and deceive her and that Tran reasonably relied 25 on them to her detriment. The jury's express findings that Debtor 26 was liable for each element of actual/promissory fraud necessarily 27 included a determination of all of the facts required for such a 28 claim under California law, which mirrors the elements of

-18- 1 § 523(a)(2)(A). The jury awarded Tran damages of $230,335 based 2 on Debtor's fraud, which the appellate court affirmed. 3 Accordingly, the bankruptcy court properly applied issue 4 preclusion to the jury's findings of actual/promissory fraud in 5 the Judgment. See Mading v. Shepherd (In re Mading), 1994 WL 6 718767, at *1 (9th Cir. Dec. 27, 1994)(where jury makes specific 7 finding of "yes" to actual fraud against debtor the judgment is 8 conclusive on that specific jury finding and supports the damages 9 awarded as a result of the fraud; issue preclusion properly 10 applied); Cobe v. Smith (In re Cobe), 229 B.R. 15, 17 (9th Cir. 11 BAP 1998)(bankruptcy court properly applied issue preclusion when 12 it granted summary judgment based on jury's affirmative findings 13 on all elements to support claim under § 523(a)(2)(A)); 14 In re Davis, 486 B.R. 182, 190-92 (Bankr. N.D. Cal. 2013)(applying 15 issue preclusion and granting summary judgment for § 523(a)(2)(A) 16 claim based on jury's express findings of actual fraud). 17 Even if the bankruptcy court could have looked behind the 18 Judgment to determine what misrepresentation(s) Debtor made, if 19 any, to support the jury's finding of actual/promissory fraud, we 20 reject Debtor's argument that Tran's debt could not be excepted 21 from discharge because he was not involved in obtaining any of the 22 loans from Tran. 23 Section 523(a)(2)(A) also applies to a debtor who obtains an 24 "extension, renewal or refinancing of credit." An "extension of 25 credit" is "an indulgence by a creditor giving his debtor further 26 time to pay an existing debt." John Deere Co. v. Gerlach 27 (In re Gerlach), 897 F.2d 1048, 1050 (10th Cir. 1990) (internal 28 quotation marks omitted). Section 523(a)(2) protects a creditor

-19- 1 deceived into forbearing collection efforts. Ojeda v. Goldberg, 2 599 F.3d 712, 718-19 (7th Cir. 2010); Lardner v. Biondo 3 (In re Biondo), 180 F.3d 126, 131-32 (4th Cir. 1999) (extension of 4 credit under § 523(a)(2)(A) is properly viewed as merely an agreed 5 enlargement of time allowed for payment); In re Gerlach, 897 F.2d 6 at 1050. The record, particularly the conclusion reached by the 7 California Court of Appeal, reflects that: Debtor made false oral 8 promises of repayment to Tran; Tran extended the time for 9 repayment of the loans based on Debtor's false promises to repay; 10 and she was deceived into forbearing her collection efforts as a 11 result and suffered damages. 12 Thus, even if the jury's findings were based on Debtor's 13 false promises to repay rather than representations made in 14 connection with obtaining the loans initially, this is sufficient 15 to establish fraud within the meaning of § 523(a)(2)(A).4 16 VI. CONCLUSION 17 Because the bankruptcy court did not err in concluding that 18 the issue of whether Debtor committed fraud within the meaning of 19 § 523(a)(2)(A) was precluded by the Judgment and could not be 20 relitigated in the bankruptcy court, and because no genuine issues 21 of material fact were in dispute, summary judgment was properly 22 granted to Tran. We AFFIRM. 23 24 25 4 The bankruptcy court did not determine whether public 26 policy favored applying issue preclusion in this case. However, because Debtor has not raised this issue on appeal, it has been 27 waived. Golden v. Chi. Title Ins. Co. (In re Choo), 273 B.R. 608, 613 (9th Cir. BAP 2002)(arguments not raised in appellant's 28 opening brief are deemed waived).

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