Plys v. Ang (In re Ang)

• Decision Date: 16 August 2018
• Docket Number: Adversary Proceeding No. 17-90114-CL,Bankruptcy Case No. 16-07775-CL13
• Citation: 589 B.R. 165
• Court: U.S. Bankruptcy Court — Southern District of California
• Parties: IN RE: Danilo Geronimo ANG, Jr. & Svea Fujiko Komori, Debtors, Joel Plys, Plaintiff, v. Danilo Geronimo Ang, Jr., Defendant.

589 B.R. 165

IN RE: Danilo Geronimo ANG, Jr. & Svea Fujiko Komori, Debtors,Joel Plys, Plaintiff,

v.Danilo Geronimo Ang, Jr., Defendant.

Bankruptcy Case No. 16-07775-CL13

Adversary Proceeding No. 17-90114-CL

United States Bankruptcy Court, S.D. California.

Signed August 16, 2018

Joel Plys, San Diego, CA, pro se.

Danilo Geronimo Ang, Jr., Escondido, CA, pro se.

Svea Fujiko Komori, Escondido, CA, pro se.

MEMORANDUM DECISION AND ORDER OF NONDISCHARGEABILITY

CHRISTOPHER B. LATHAM, JUDGE

This dispute arises from harassing and provocative text messages sent during a span of four-and-a-half months in 2015. Between March and July 2015, plaintiff Joel Plys and his friends received over 20 disparaging text messages from more than 12 different cellphone numbers. They were almost exclusively about Plaintiff's daughter's paternity.¹ Through personal investigation and manipulation of his social media access settings, Plaintiff came to understand that debtor-defendant Danilo Geronimo Ang, Jr. was responsible. He reported this to the La Mesa Police Department. A police detective questioned Defendant, who confessed to sending the texts. The harassing messages then abruptly stopped.

Plaintiff and his wife, Jackie Plys, sued Defendant in small claims court. That court awarded them $10,150. Defendant appealed. Following a trial de novo, the San Diego Superior Court affirmed the judgment and tacked on $1,354 in additional costs and attorney's fees. Within a week, Defendant and Svea Fujiko Komori (collectively, "Debtors") filed for Chapter 13 bankruptcy.

Plaintiff initially sought a nondischargeability finding of the state court judgment under §§ 523(a)(2), (a)(4), and (a)(6).² But he brought his complaint nearly two months after Rule 4007's deadline for asserting such claims. So the court dismissed them. It, however, allowed Plaintiff to pursue a nondischargeability judgment under § 1328(a)(4), which was not time-barred. It also dismissed Ms. Komori as a defendant. The court now holds the entire state court judgment nondischargeable under § 1328(a)(4).

I. JURISDICTION AND VENUE

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

II. OVERVIEW AND HISTORY

A. The State Court Litigation

The Plyses sued Defendant in small claims in December 2015. Case No. 37-2015-00326756-SC-SC-CTL.³ Initially, that court awarded them $10,000 in damages and $150 in costs, but it vacated the judgment. Id. After a new trial, the small claims court entered a judgment identical to the earlier one. See id. Defendant appealed to the San Diego Superior Court, which found the appeal lacked substantial merit and was not filed in good faith. Id. ; see also Plaintiff's Trial Ex. E. It therefore affirmed the small claims judgment and augmented it as follows: (1) $5,000 to both Plaintiff and Ms. Plys ($10,000 total); (2) $466.23 in pre-judgment costs; and (3) $1,000 in attorney's fees. Plaintiff's Trial Ex. E (the "State Court Judgment").

B. Defendant's Bankruptcy Case

Debtors filed a voluntary Chapter 13 petition seven days after the State Court Judgment was entered (Bankr. ECF No. 1). They disclosed the Plyses' $10,000 unsecured claim on their Schedule E, characterizing it as disputed (Bankr. ECF No. 11, p. 19). And their Statement of Financial Affairs listed the state court action as pending. (id. , p. 30). The court sent a notice of the bankruptcy filing to the Plyses the following day (Bankr. ECF No. 10). It informed them that the deadline to file a complaint challenging the dischargeability of debts under §§ 523(a)(2) and (a)(4) was April 4, 2017.⁴

C. The Adversary Proceeding

Plaintiff brought his initial adversary complaint on May 24, 2017 (ECF No. 1) seeking to hold the State Court Judgment nondischargeable under §§ 523(a)(2), (a)(4), and (a)(6) (id. ). And he requested that a trustee investigate whether grounds exist to deny Debtors' discharge under § 727(c)(2) (id. ). Debtors moved to dismiss the complaint as untimely under Rule 4007 (ECF No. 5). The court agreed and dismissed Plaintiff's claims (ECF No. 8).⁵ But it did so without prejudice as it appeared the complaint might be cured by amendment (id. ). Specifically, the court explained that § 1328(a)(4) has language very similar to § 523(a)(6)'s, but the former was not subject to the April 4 filing deadline (id. ). See also FED. R. BANKR. P. 4007(b) ("A complaint other than under § 523(c) may be filed at any time.").⁶

Plaintiff accordingly amended his complaint to seek a nondischargeability finding under § 1328(a)(4) (ECF No. 10). Debtors' answer asserted that Ms. Komori was wrongly named as a defendant (ECF No. 15).⁷ They explained she was not a party to any of the state court proceedings. At the November 15, 2017 pre-trial status conference, the court heard oral argument on her potential dismissal (ECF No. 28). It concluded that res judicata precluded Plaintiff from suing her here. See, e.g. , Palomar Mobilehome Park Ass'n v. City of San Marcos, 989 F.2d 362, 364 (9th Cir. 1993) ("California, as most states, recognizes that the doctrine of res judicata will bar not only those claims actually litigated in a prior proceeding, but also claims that could have been litigated."). Plaintiff agreed, without objection, to her dismissal (ECF No. 29).

The court then tried the matter. Plaintiff and Defendant were the only witnesses called.

D. Plaintiff's Post-Trial Application to Enter Documents into Evidence

After the trial, Plaintiff realized that three exhibits he had filed as attachments to his first amended complaint were not received in evidence (see ECF No. 12). They include: (1) a letter from Marissa Pyle; (2) a declaration from Marguerite Lehman; and (3) a declaration from Erica Birkholz (id. ). See also Plaintiff's Trial Ex. I, J, and K. So Plaintiff filed a post-trial application to enter these documents into evidence (ECF No. 37). All three describe Defendant's employing harassment methods similar to those in this case. Defendant did not respond to this application.

The court understands that Defendant is not an attorney. It thus recognizes that his failure to object to Plaintiff's application might stem from a lack of understanding.

Nevertheless, "[i]t is a fundamental rule of evidence that an objection not timely made is waived." United States v. Jamerson , 549 F.2d 1263, 1266-67 (9th Cir. 1977). Indeed, "if no objection is made at the time the evidence is offered and received, its admissibility generally cannot be challenged on appeal." United States v. Wilson , 690 F.2d 1267, 1273-74 (9th Cir. 1982) (first citing Vitello v. United States , 425 F.2d 416, 423 (9th Cir. 1970) ; then citing FED. R. EVID. 103(a)(1) ).

An exception applies, however, when a "plain error" affects a substantial right. See FED. R. EVID. 103(d). But the court concludes that admitting the proposed exhibits into evidence would not constitute plain error. First, Defendant's constitutional rights will not be affected. The only conceivably relevant provision is the Sixth Amendment's Confrontation Clause. See U.S. CONST. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.]"). That protection is not implicated here because it applies solely to criminal and quasi-criminal matters. In re Denh Nhiet Chu , BAP No. NV-07-1243-McMoPa, 2008 WL 8444805, at *10-11, 2008 Bankr. LEXIS 4736, at *28-29 (9th Cir. BAP Mar. 18, 2008) ; see also Hannah v. Larche , 363 U.S. 420, 440 n.16, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960) (the Sixth Amendment is "specifically limited" to criminal prosecutions). An adversary proceeding is not tantamount to a criminal proceeding, and a nondischargeability judgment is not a criminal penalty. In re Denh Nhiet Chu , 2008 WL 8444805, at *11, 2008 Bankr. LEXIS 4736, at *29.

Turning to the documents, they tend to prove two things: (1) Defendant's propensity to send harassing text messages; and (2) the texter's identity in this case. See Plaintiff's Trial Ex. I, J, and K. Although the former purpose is prohibited character evidence, the latter is admissible because Defendant disputes that he sent the subject text messages. See FED. R. EVID. 404(a)(1), (b) ; see also Hirst v. Gertzen , 676 F.2d 1252, 1262 (9th Cir. 1982) (evidence of prior acts is admissible to prove identity when that is disputed). Moreover, the court considers these documents to be cumulative evidence on the identity issue, which means their admission does not affect a substantial right. See United States v. Soulard , 730 F.2d 1292, 1303 (9th Cir. 1984) (when evidence is cumulative, the error in admitting it, if any, is not prejudicial); see also Fortier v. Dona Anna Plaza Partners , 747 F.2d 1324, 1332 (10th Cir. 1984) (admission of evidence that is cumulative of other admitted evidence does not affect a substantial right). Consequently, because no plain error will arise from doing so, the court admits Plaintiff's Trial Exhibits I, J, and K into evidence for the limited purpose of proving the texter's identity.

III. FACTUAL BACKGROUND AND FINDINGS

Having carefully considered the testimony and other evidence, the court makes the following factual findings.

A. The Text Messages and Underlying Judgment

The parties are swing dancers. Plaintiff has been an instructor since 1999. Defendant started dancing around the same time. And he eventually began hosting informal practices and planning dance events. Animosity arose between the parties because they considered one another competitors. Their relationship deteriorated as a result.

Defendant testified that Plaintiff sought to exclude him from local dance groups. He says Plaintiff gossiped about him and tried to persuade other dancers not to associate with him. Defendant also accuses Plaintiff of attempting to extort money from him. And when that failed, Plaintiff allegedly organized a dance event that conflicted with one Defendant had been planning. It is clear...