In Re: Lisa Garcia v. Sameh Fawzy

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 24, 2023
• Docket: 22-60002
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 24 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: LISA M. GARCIA, No. 22-60002

Debtor, BAP No. 21-1041

------------------------------ MEMORANDUM* LISA M. GARCIA,

Appellant,

v.

SAMEH FAWZY,

Appellee.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel Gan, Taylor, and Faris, Bankruptcy Judges, Presiding

Submitted April 14, 2023** Pasadena, California

Before: W. FLETCHER, BERZON, and LEE, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Lisa M. Garcia appeals from an affirmance by the Bankruptcy Appellate

Panel for the Ninth Circuit (the “BAP”) of the bankruptcy court’s finding of

nondischargeability. In 2007, Sameh Fawzy, Garcia’s ex-fiancé, filed suit in

Arizona state court, alleging that Garcia unlawfully obtained money from their

joint bank accounts and transferred title to Fawzy’s vehicle to herself. The Arizona

jury found in favor of Fawzy and awarded him $174,321.98 in damages. In 2018,

Garcia subsequently filed for Chapter 7 bankruptcy in the Central District of

California. Fawzy filed an adversarial complaint alleging that Garcia could not

discharge the debt from the Arizona judgment. He argued that the debt was

nondischargeable under 11 U.S.C. § 523(a)(6) because Garcia willfully and

maliciously injured him. After an initial remand from the BAP, the bankruptcy

court found that the judgment was nondischargeable under § 523(a)(6). The BAP

affirmed.

We have jurisdiction under 28 U.S.C. § 158(d)(1). “Whether an actor

behaved wilfully and maliciously is ultimately a question of fact reserved for the

trier of fact.” Banks v. Gill Distrib. Ctrs., Inc. (In re Banks), 263 F.3d 862, 869

(9th Cir. 2001). A bankruptcy court’s factual findings are reviewed for clear error.

Carrillo v. Su (In re Su), 290 F.3d 1140, 1142 (9th Cir. 2002). Decisions to admit

2 or exclude evidence are reviewed for an abuse of discretion. Calmat Co. v. U.S.

Dep’t of Lab., 364 F.3d 1117, 1122 (9th Cir. 2004).

Our review of a court’s evidentiary rulings consist of two steps. First, we

determine whether the court abused its discretion in admitting the evidence.

Second, we determine whether any error was prejudicial. See id. An evidentiary

error is prejudicial if “more probably than not, the lower court’s error tainted the

verdict.” Harper v. City of Los Angeles, 533 F.3d 1010, 1030 (9th Cir. 2008)

(internal quotation marks omitted) (quoting Tennison v. Circus Circus Enters.,

Inc., 244 F.3d 684, 688 (9th Cir. 2001)). Assuming without deciding that the

bankruptcy court abused its discretion in considering the Arizona jury instructions

and verdict, Garcia fails to demonstrate prejudice. A willful act under § 523(a)(6)

is an act that deliberately or intentionally causes an injury, “not merely a deliberate

or intentional act that leads to injury.” Kawaauhau v. Geiger, 523 U.S. 57, 61

(1998). A malicious act is: (1) a wrongful act; (2) done intentionally; (3) which

necessarily causes injury; and (4) is done without just cause or excuse. Petralia v.

Jercich (In re Jercich), 238 F.3d 1202, 1209 (9th Cir. 2001).

Even without relying on the jury instructions and the verdict, there was

ample evidence to support the bankruptcy court’s finding that Garcia acted

willfully and maliciously. The record, including payment and business records,

3 strongly supports Fawzy’s version of events. Moreover, the bankruptcy court did

not clearly err in finding Garcia’s explanation for removing money from the joint

bank accounts not credible. See Anderson v. City of Bessemer, 470 U.S. 564, 574

(1985). Garcia contradicted her own explanation at multiple points during the

litigation, impugning her credibility. In short, we cannot say that the admission of

the jury verdict and instructions more probably than not tainted the verdict. See

Harper, 533 F.3d at 1030.