Carroll v. Bohrer (In re Bohrer), Bankruptcy Case No. 20-04322-CL7

• Citation: 628 B.R. 676
• Decision Date: 27 April 2021
• Docket Number: Bankruptcy Case No. 20-04322-CL7,Adversary Proceeding No. 20-90118-CL
• Court: United States Bankruptcy Courts. Ninth Circuit. U.S. Bankruptcy Court — Southern District of California
• Parties: IN RE: Philip Edward BOHRER, Debtor, Lisa M. Carroll, Plaintiff, v. Philip Edward Bohrer, Defendant.

628 B.R. 676

IN RE: Philip Edward BOHRER, Debtor,Lisa M. Carroll, Plaintiff,

v.Philip Edward Bohrer, Defendant.

Bankruptcy Case No. 20-04322-CL7

Adversary Proceeding No. 20-90118-CL

United States Bankruptcy Court, S.D. California.

Signed April 27, 2021

Michael G. Doan, Doan Law Firm, Joshua Birdsill, Oceanside, CA, for Debtor.

Paul J. Leeds, Higgs Fletcher, Mack LLP, San Diego, CA, for Plaintiff.

Robert W. Tiangco, Law Office of Robert W. Tiangco, San Diego, CA, for Defendant.

MEMORANDUM DECISION AND ORDER OF NONDISCHARGEABILITY

CHRISTOPHER B. LATHAM, United States Bankruptcy JUDGE

Before the court are Plaintiff Lisa M. Carroll's and Defendant Phillip E. Bohrer's cross-motions for judgment on the pleadings under Federal Rule of Civil Procedure 12(c).¹ Plaintiff and Defendant were formerly married and had one child. In 2007, they filed for divorce. From 2007 through 2018, those proceedings entailed numerous appearances in the family court to modify the parties' child custody and visitation rights. During the ongoing litigation, Defendant brought a separate civil action predicated on alleged negative or untrue statements Plaintiff made about his fitness to be a parent to the family court, their child, law enforcement, and other third parties. Ultimately, that action was dismissed and Plaintiff was awarded her fees and costs incurred to defend the suit – the debt at issue here.

In August 2020, Defendant filed a voluntary Chapter 7 petition. Shortly after, Plaintiff brought this adversary proceeding seeking a nondischargeability determination under § 523(a)(6) or (a)(15) and declaratory relief. Defendant answered and now moves for judgment on the pleadings as to all causes. Plaintiff opposes and cross-moves for judgment on the pleadings as to her § 523(a)(15) action. Defendant opposes that. Based on the following, the court will grant Plaintiff's motion. It will likewise deny Defendant's motion as to the § 523(a)(15) cause and grant it as to the § 523(a)(6) cause and prayer for declaratory relief.

I. JURISDICTION AND VENUE

The court has jurisdiction over this adversary proceeding under 28 U.S.C. §§ 1334(b) and 157(b)(2)(A) and (I). Venue is proper under 28 U.S.C. § 1409(a).

II. BACKGROUND²

A. Parties' History and State Court Litigation

The record before the court is sparse as to the parties' history, although it is apparently lengthy and litigious. Plaintiff and Defendant were once married. Their union produced one child and ended in 2007. That year, a judgment of dissolution was entered in the family division of the San Diego Superior Court establishing the parties' custody and visitation rights with the minor child. From 2008 through 2018, those rights were continuously modified by court order and stipulation. See Case No. DN 143198 (the "Family Law Proceedings").

In 2016 – amidst the ongoing Family Law Proceedings – Defendant brought a parallel civil action against Plaintiff in the civil division of the Superior Court. There, he alleged that she made negative and untrue statements about his fitness to be a parent to the family court, their child, law enforcement, and other third parties. Based on those statements, he sued her for; (1) intentional and negligent infliction of emotional distress; (2) tortious interference with custodial relationship; (3) intentional interference with custodial relationship; and (4) violation of the fundamental right to parent under the state and federal constitutions. See Case No. 37-2016-00006783-CU-PO-NC (the "Defamation Action").

In response, Plaintiff filed a demurrer, motions for sanctions, and a special motion to strike the complaint under California's Anti-Strategic Lawsuit Against Public Participation ("anti-SLAPP") statute.³ In each, she asserted that Defendant's lawsuit amounted to an unsubstantiated attempt to retaliate against her for – and to gain advantage in – the ever-ongoing custody and visitation battle in the Family Law Proceedings. The Superior Court denied each motion. Plaintiff then appealed the denial of her anti-SLAPP motion. The California Court of Appeal reversed and remanded, directing the Superior Court to enter an order granting the motion and awarding Plaintiff her costs on appeal. See Case No. D070767 (the "Appeal").

On remand, the Superior Court granted Plaintiff's anti-SLAPP motion, struck and dismissed Defendant's complaint, and awarded Plaintiff $44,189.26 in attorney's fees and costs.⁴ For reasons unclear, some nine months later Plaintiff was awarded an additional $5,000 in attorney's fees in the Family Law Proceedings. In total, she is owed $49,189.26.

B. Defendant's Bankruptcy and Adversary Proceeding

On August 28, 2020, Defendant filed a voluntary Chapter 7 petition (Bankr. ECF No. 1). Shortly after, Plaintiff brought the present adversary seeking a nondischargeability determination as to the two fee awards under 11 U.S.C. § 523(a)(6) and (15) and declaratory relief (ECF No. 1). Defendant answered (ECF No. 5) and now moves for judgment on the pleadings as to all causes under Rule 12(c) (ECF No. 7). Plaintiff opposes and cross-moves for judgment on the pleadings as to the § 523(a)(15) cause only (ECF No. 13). Defendant opposes that (ECF No. 17).

III. LEGAL STANDARDS

Under Rule 12(c), made applicable here through Federal Rule of Bankruptcy Procedure 7012, "[a]fter the pleadings are closed—but not early enough to delay trial—a party may move for judgment on the pleadings." FED. R. CIV. P. 12(c).

On a plaintiff's motion, "[j]udgment on the pleadings is proper when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law." Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1990). It is the moving party's burden to demonstrate that both of these requirements are met. See Doleman v. Meiji Mut. Life Ins. Co., 727 F.2d 1480, 1482 (9th Cir. 1984). And a plaintiff is not entitled to judgment on the pleadings if the answer raises issues of fact or an affirmative defense, which, if proved, would defeat recovery. See Gen. Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir. 1989) (citing 5 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1368 (1969) ). However, "judgment on the pleadings may nonetheless be granted when a defendant's affirmative defenses do not contain sufficient factual matter to state a defense that is plausible on its face." Travelers Commercial Ins. Co. v. Ancona, No. 14-cv-04379-RS, 2015 WL 13376709, at *3 (N.D. Cal. Apr. 6, 2015) (quotation omitted).

A defendant's motion under Rule 12(c) is " ‘functionally identical’ to Rule 12(b)(6)." Cafasso v. Gen. Dynamics C4 Sys ., Inc., 637 F.3d 1047, 1055 n.4 (9th Cir. 2011) (quoting Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989) ). "As under a Rule 12(b)(6) motion, a Rule 12(c) motion for judgment on the pleadings is properly granted only when, ‘taking all the allegations in the pleadings as true, the moving party is entitled to judgment as a matter of law.’ " Herrera v. Zumiez, Inc., 953 F.3d 1063, 1068 (9th Cir. 2020) (quoting Heliotrope Gen., Inc. v. Ford Motor Co., 189 F.3d 971, 979 (9th Cir. 1999) ). To survive, the complaint must "contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (establishing the standard under Rule 12(b)(6) )); see also Cafasso, 637 F.3d at 1055 n.4 (the standards for Rule 12(b)(6) and 12(c) are functionally identical).

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Id. (citing Twombly, 550 U.S. at 556-57, 127 S.Ct. 1955 ).

In reviewing a Rule 12(c) motion, the court may consider the parties' pleadings, any documents attached to those pleadings or incorporated by reference, and any documents properly subject to judicial notice. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) ; see also Harris v. Cty. of Orange , 682 F.3d 1126, 1132 (9th Cir. 2012) ; Heliotrope Gen., Inc. , 189 F.3d at 981 n.18.

For purposes of a motion for judgment on the pleadings, all allegations of fact of the opposing party are accepted as true. The allegations of the moving party which have been denied are taken as false. Only if it appears that, on the facts so admitted, the moving party is clearly entitled to prevail can the motion be granted.

Austad v. United States , 386 F. 2d 147, 149 (9th Cir. 1967).

IV. LEGAL ANALYSIS AND DISCUSSION

A. Requests for Judicial Notice

Both parties ask for judicial notice of certain documents in considering the present cross-motions (ECF Nos. 8 & 13). A court may take judicial notice of a fact that: "(1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." FED. R. EVID. 201(b). Judicial notice is appropriate in "matters of public record" not disputed by the opposing party. Khoja , 899 F.3d at 999. Relevant here, the court may take notice of orders and filings in other proceedings. See United States v. Black , 482 F.3d 1035, 1041 (9th Cir. 2007) ("[A court] ‘may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a...