Perske v. Larsen (In re Larsen)
| Decision Date | 23 September 2019 |
| Docket Number | Adv. No. 2:16-ap-01446-RK,No. 2:16-bk-18600-RK,2:16-bk-18600-RK |
| Court | United States Bankruptcy Courts. Ninth Circuit. U.S. Bankruptcy Court — Central District of California |
| Parties | In re: JENS F. LARSEN, Debtor. JACQUELYNN PERSKE, Plaintiff, v. JENS F. LARSEN, Defendant. |
NOT FOR PUBLICATION
This adversary proceeding came on for trial before the undersigned United States Bankruptcy Judge on October 26, 2017, November 9, 2017, January 22, 2018, January 26, 2018, February 16, 2018 and March 7, 2018 on the Complaint of Plaintiff Jacquelynn Perske ("Perske") for (1) non-dischargeability of debts allegedly incurred through false pretenses, false representation, or actual fraud pursuant to 11 U.S.C. § 523(a)(2)(A), through fraud or defalcation while acting in a fiduciary capacity pursuant to 11 U.S.C. § 523(a)(4), and for willful and malicious injury by the debtor to another entity pursuant to 11 U.S.C. § 523(a)(6), and (2) denial of discharge for alleged failure to maintain and disclose required documents and false testimony in a bankruptcy proceeding pursuant to 11 U.S.C. § 727(a)(2), § 727(a)(3), § 727(a)(4), and § 727(a)(5), Electronic Case Filing Number ("ECF") 1, filed on October 3, 2016. Damion D. D. Robinson, of the law firm Affeld Grivakes, LLP, appeared for Perske. Joseph W. Kellener ("Kellener"), of the law firm Kellener & Kellener appeared for Debtor and Defendant Jens F. Larsen ("Larsen").
Before the trial began, on July 18, 2017, the parties filed their joint pretrial stipulation, which the court approved and adopted as its final pretrial order on September 5, 2017. Pre-Trial Stipulation, ECF 62, filed on July 18, 2017; Order Approving Pretrial Stipulation and Exhibit Lists; Advancing Hearing on Motion to Strike; and Continuing Trial, ECF 105, filed and entered on September 5, 2017. In the Pre-Trial Stipulation, the parties stipulated that certain facts were admitted and required no proof. Stipulation of Facts, ¶¶ 1-14, Pre-Trial Stipulation, ECF 62.
On August 2 and 3, 2017, Perske filed trial declarations for herself and the witnesses whom she called to testify, Marnye Langer, Steve McAllister and Damion Robinson. ECF 78, 79. On August 16, 2017, Larsen filed his trial declaration, ECF 90, and on August 22, 2017, he filed an amended trial declaration, ECF 93.
On August 29, 2017, Perske filed her trial brief. Plaintiff's Trial Brief, ECF 100. On September 5, 2017, the court filed and entered its Order Denying Plaintiff's Motion for Partial Summary Judgment and Granting Motion in Part Deeming Certain Facts Established, ECF 106. In granting Plaintiff's motion in part, the court's order provided that pursuant to Federal Rule of Bankruptcy Procedure 7056, making Federal Rule of Civil Procedure 56(g) applicableto this adversary proceeding, certain facts were deemed established for purposes of this case and that the parties need not submit evidence thereon. Established Facts, ¶¶ 1-17, Order Denying Plaintiff's Motion for Partial Summary Judgment and Granting Motion in Part Deeming Certain Facts Established, ECF 106. On September 28, 2017, Perske filed her Motion in Limine No. 1 and Motion in Limine No. 2. ECF 114, 115.
On September 29, 2017, Perske filed an Amended Motion in Limine No. 1. ECF 118. These Motions in Limine were granted in part and denied in part at trial on October 26, 2017. Audio Recording of Trial, October 26, 2017 at 4:00-4:16 p.m.1 Perske filed a notice of lodgment of Deposition Transcripts on October 19, 2017, ECF 129. Larsen filed a notice of lodging of Deposition Designations of (1) Jacquelynn Perske; and Plaintiff's Objections Thereto. ECF 130.
On the last day of trial on March 7, 2018, the court orally ordered the parties to prepare and lodge proposed findings of fact and conclusions of law pursuant to Local Bankruptcy Rule 7052-1 based on the following schedule: (1) Perske to lodge her proposed findings of fact and conclusions of law on or before April 20, 2018; (2) Larsen to lodge his proposed findings of fact and conclusions of law and to file any objections to Perske's proposed fi ndings of fact and conclusions of law; and (3) Perske to file any objections to Larsen's proposed findings of fact and conclusions of law. Audio Recording of Trial, March 7, 2018 at 1:40-1:47 p.m.
On April 20, 2018, Perske filed a notice of lodgment with her Proposed Findings of Fact and Conclusions of Law after Trial. ECF 147.
On May 8, 2018, Kellener filed a motion to be relieved as counsel for Larsen and an application for a hearing on the motion on shortened notice. ECF 151, 152. On May 9, 2018, the court granted Kellener's application to hear his motion to be relieved as counsel on shortened notice, and the hearing was held on May 15, 2018. The court granted Kellener's motion to withdraw as Larsen's counsel at the hearing on May 15, 2018. On May 21, 2018, to allow Larsen sufficient time to retain replacement counsel and file his proposed findings of fact and conclusions of law, the court entered its Order Extending Deadlines for Filing Oppositionand Reply to Proposed Findings of Fact and Conclusions of Law. ECF 161. The court set the deadline of September 7, 2018 for Larsen to submit these documents. Id. However, Larsen did not file any opposition or reply to Perske's proposed findings of fact and conclusions of law before the extended deadline of September 7, 2018.
On September 17, 2018, Larsen filed a declaration on his own behalf requesting an additional 60 days to retain replacement counsel and a sanction of $3,000 against his former counsel Kellener. ECF 164. On October 5, 2018, Perske filed a Response to Declaration of Jens Larsen, suggesting a reasonable extension for Larsen to file his opposition and reply to her proposed findings of fact and conclusions of law of no more than 60 days from the original September 7, 2018 deadline. ECF 163. By order entered on October 11, 2018, the court granted Larsen's request for an extension of time to lodge his proposed findings of fact and conclusions of law, extending his time to lodge them to November 7, 2018, and denied his request for sanctions against his former attorney Kellener without prejudice. ECF 165.
Because Larsen had not filed any opposition or reply to Perske's proposed findings of fact and conclusions of law or lodged any alternative proposed findings of fact and conclusions of law as of February 1, 2019, on February 5, 2019, the court entered an Order deeming the matter submitted after trial. ECF 167.
Subsequently, on April 9, 2019, Larsen filed a Statement on his own behalf requesting that the court issue its ruling on his case, meaning the adversary proceeding, and requesting permission from the court to file a lawsuit against Perske and Perske's counsel, requesting sanctions against Perske and her counsel, Robinson, for allegedly lying under oath in state court.2 ECF 68. Larsen requested that the court consider the Statement in lieu of the proposed findings of fact and conclusions of law under Federal Rule of Civil Procedure 52. Id.3 Perske filed her Response to Statement of Defendant Jens Larsen addressing Larsen'sallegations on April 16, 2019, pointing out that Larsen failed to cite to the record as ordered by the court. ECF 171.
Having considered the testimony of witnesses, the documentary evidence received at trial, the oral and written arguments of the parties, the proposed findings of fact and conclusions of law and objections submitted by the parties, and the other matters of record before the court, the court hereby makes the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure, made applicable here by Rule 7052 of the Federal Rules of Bankruptcy Procedure.
In the summer of 2015, Perske was working as a legal secretary and had worked as a legal secretary for about fifteen years. Trial Declaration of Jacquelynn Perske ("Perske Trial Declaration"), ¶¶ 2-3, ECF 78, filed on August 2, 2017. She had no prior business or investment experience. Id. At that time, Larsen's occupations were his involvement in his mother's horse breeding business and being a caregiver for his father. Transcript of Deposition of Jens Larsen ("Larsen Deposition Transcript"), Vol. I, March 31, 2017, at page: line(s) 12:18-13:25, 14:1-6 and 14:18-23; Amended Trial Declaration of Jens Larsen ("Larsen Amended Trial Declaration"), ¶¶ 3, 5, ECF 93, filed on August 22, 2017. Larsen was struggling financially and was receiving support from his father. Larsen Deposition Transcript, Vol. I at 119:6-15 and Vol. II, April 4, 2017, at 477:7-23. Larsen had no other employment or other sources of income at the time. Larsen Deposition Transcript, Vol. I at 14:1-13 and 24:7-14; Larsen Testimony, Audio Recording of Trial on October 26, 2017 at 10:30-10:31 a.m.
After Larsen's mother had a stroke in 2009, he tried to keep his mother's horse breeding business running. Larsen Amended Trial Declaration, ¶ 3. After Larsen's mother died in 2012, however, he decided to try to wind down the horse business. Larsen Amended Trial Declaration, ¶ 5; Larsen Testimony, Audio Recording of Trial, October 26, 2017 at 10:55-10:56a.m.; Larsen Deposition Transcript, March 31, 2017, Vol. I at 106:1-25 and 107:1-6. Larsen did not complete high school and has no formal education in accounting or bookkeeping, nor does he have any degree in finance. Larsen Amended Trial Declaration, ¶ 1. In 2015, Larsen was not trying to start a new business related to horses, and specifically, he was not starting a business to buy and rescue horses that were retiring, commenting, "That would be the worst thing to do with your money." Larsen Deposition...
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