United States v. 2005-04-11 | 03-15610 | JETT VSICROFF | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 In re: SETH E. SICROFF,
Debtor,
STEPHEN C. JETT, No. 03-15610
Plaintiff-Appellant, D.C. No.
v. CV-02-00975-LKK

SETH E. SICROFF, ORDER AND
Defendant-Appellee, AMENDED
OPINIONand
OFFICE OF THE UNITED STATES
TRUSTEE,
Trustee. 
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior Judge, Presiding
Argued and Submitted
May 12, 2004—San Francisco, California
Submission Withdrawn May 27, 2004
Resubmitted February 9, 2005
Filed March 23, 2005
Amended April 11, 2005
Before: Diarmuid F. O’Scannlain, Eugene E. Siler,* and
Michael Daly Hawkins, Circuit Judges.
*The Honorable Eugene E. Siler, Senior United States Circuit Judge for
the Sixth Circuit, sitting by designation.
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Opinion by Judge O’Scannlain
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COUNSEL
Randall L. Wiens, Law Offices of Randall L. Wiens, Sacra-
mento, California, for the petitioner.
Daniel P. Whaley, Law Office of Daniel P. Whaley, Sacra-
mento, California, for the respondent.
ORDER
The court’s opinion, filed March 23, 2005, is hereby
amended as follows: On slip op. 3535, after the sentence in
Section II.B.1. that reads “However, because Sicroff explic-
itly conceded that his behavior was ‘willful and intentional’
for purposes of the dischargeability hearing, there is no reason
to dwell on the ‘willful’ prong,” the following footnote is to
be inserted:
Because of Sicroff’s concession, we do not need to
apply the analysis set out in Kawaauhau v. Geiger,
523 U.S. 57 (1998), in which the Supreme Court
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addressed the question of when an injury is “will-
ful.”
This order shall not extend the time for filing petitions for
rehearing beyond the original deadline.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether a debt was nondischargeable
under the Bankruptcy Act as one for willful and malicious
injury when it arose out of a published defamatory letter from
a graduate student to the Chancellor of the University of Cali-
fornia at Davis.
I
Stephen C. Jett and Seth E. Sicroff were, respectively, a
tenured professor and a graduate student in the Geography
Department of the University of California at Davis. When
the university proposed closing the department, Sicroff sent a
letter, dated April 17, 1993, to the Chancellor and Deans of
the university, with copies to the California Aggie, Sacra-
mento Bee and Davis Enterprise newspapers, in which he pur-
ported to reveal the “real motivation” for closing the
department. Sicroff’s letter stated, in part, that:
Despite the substantial improvements that may be
credited to Prof. Ives [and his new hires], the old
guard of the geography department has plagued you
with a continuous barrage of specious complaints
about Prof. Ives. In particular, Prof. Stephen Jett and
Prof. Conrad Bahre have been relentless in their
accusations against the new chairperson, even while
they themselves have been the subject of numerous
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and well-substantiated charges of unprofessional
conduct.
Too weak to fire or even discipline tenured faculty,
no matter how serious their misbehavior, you have
taken this opportunity to rid yourself of a burr under
your saddle. Shame on you, and shame on us all if
we put up with it!
Based largely on the accusations against them contained in
this letter, Professors Jett and Bahre filed two suits, which
were later consolidated, against Sicroff and several other
defendants alleging, among other injuries, slander, libel and
intentional infliction of emotional distress. Before trial, the
other defendants settled their claims with Jett and Bahre. Sic-
roff, however, refused to participate in the settlement and
threatened to sue Jett and Bahre with malicious prosecution if
they dismissed their claims against him.1
After the partial settlement, the Sacramento County Supe-
rior Court referred the remaining claims to binding arbitration
before retired Sacramento Superior Court Judge Benjamin A.
Diaz, who found that Sicroff had made defamatory statements
against Jett and Bahre. On April 23, 1996, the court entered
awards for Bahre of $34,500 (including $4,500 of punitive
damages) and for Jett of $23,000 (including $3,000 of puni-
tive damages). Sicroff appealed this finding and the awards to
the Third District Court of Appeal, which reversed the judg-
ment against him, ruling that the trial court had improperly
denied him his right to a jury trial by ordering the matter to
binding arbitration over his objection. On remand, the trial
court refused to confirm the arbitration-based judgment and
its decision was upheld on a second appeal, which the appel-
late court determined to be frivolous.
1Despite this threat, Bahre has since dismissed his claim against Sicroff,
leaving only Jett’s claims against Sicroff to be resolved.
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While this litigation was ongoing, Sicroff filed for bank-
ruptcy. Jett and Bahre timely filed adversary complaints to
determine dischargeability based upon their then-existing
judgments against Sicroff and the bankruptcy court lifted its
automatic stay to allow the completion of the state court liti-
gation between the parties. Following a second remand to the
state trial court, a settlement conference was conducted, at
which Sicroff failed to appear.2 After the collapse of the set-
tlement conference, the state court trial proceedings were
stayed pending resolution of the bankruptcy proceeding that
gives rise to this appeal.
On February 28, 2002, the bankruptcy court held a hearing
limited to the issue of the dischargeability of Sicroff’s debt3
to Jett. At the hearing, Sicroff conceded that his conduct was
“willful and intentional” but denied that it was “malicious.”
In a memorandum order, the bankruptcy court found Sic-
roff’s debt to Jett to be dischargeable. In pertinent part, it rea-
soned that:
First of all, it is clear from . . . the April 17, 1993 let-
ter, that the primary purpose of Debtor’s actions was
2At an early point in the course of this litigation—although exactly
when is not clear from the record—Sicroff appears to have moved to
Nepal, from whence he is unwilling to travel for the purpose of actively
participating in his defense.
3Although there is not yet a state court judgment against Sicroff arising
out of the alleged defamation, we have recognized that the filing of a
claim, without reducing it to a judgment, is sufficient to establish a debt
for the purpose of a dischargeability determination. Banks v. Gill Distrib.
Ctrs., Inc. (In re Banks), 263 F.3d 862, 868 (9th Cir. 2001) (“The Bank-
ruptcy Code defines the term ‘debt’ to mean ‘liability on a claim,’ and
‘claim’ is defined as a ‘right to payment, whether or not such right is
reduced to judgment . . . .’ ”) (internal citations omitted); see also Ameri-
can Law Ctr. PC v. Stanley (In re Jastrem), 253 F.3d 438, 442 (9th Cir.
2001) (“[T]he definition of ‘claim’ in bankruptcy is exceedingly broad. A
‘claim’ is ‘a right to payment, whether or not such right is reduced to judg-
ment . . . .’ ”).
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to protest the closing of the Geography Department
at the University of Davis. While there can be no
doubt that Debtor intentionally and repeatedly pub-
lished his untrue statements about Plaintiff, the evi-
dence tends to show that he believed those
statements were true and, in his opinion, explained
the real cause for the proposal to close the Geogra-
phy Department.
. . . .
Secondly, objecting to the closing of the Geogra-
phy Department and pointing out the perceived mis-
conduct of University officials may be the “just
cause and excuse” that would exonerate Debtor’s
actions. . . . Debtor did not make his statements to
spite the Plaintiff, but to support the larger cause, at
least in his mind, of unmasking the real reasons the
University officials intended to eliminate the Geog-
raphy Department. In that sense, at least, Debtor’s
actions were not malicious.
Jett filed a timely notice of appeal to the District Court, which
affirmed. Jett timely appeals to this court.
II
“[A] central purpose of the [Bankruptcy] Code is to provide
a procedure by which certain insolvent debtors can reorder
their affairs, make peace with their creditors, and enjoy ‘a
new opportunity in life and a clear field for future effort,
unhampered by the pressure and discouragement of preexist-
ing debt.’ ” Grogan v. Garner, 498 U.S. 279, 286 (1991)
(quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934)).
It is only the “honest but unfortunate” debtor, however, who
is entitled to an entirely unencumbered fresh start. Id. at 287.
Accordingly, the Bankruptcy Code exempts certain debts
from discharge. Such exceptions to discharge “should be con-
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fined to those plainly expressed,” Kawaauhau v. Geiger, 523
U.S. 57, 62 (1998) (quoting Gleason v. Thaw, 236 U.S. 558,
562 (1915)), and should “be strictly construed in order to
serve the Bankruptcy Act’s purpose of giving debtors a fresh
start.” Industrie Aeronautiche v. Kasler (Matter of Kasler),
611 F.2d 308, 310 (9th Cir. 1979).
[1] Section 523(a)(6) of the Bankruptcy Code provides one
such express limitation: “(a) A discharge under section 727,
1141, 1228(a), 1228(b), or 1328(b) of this title does not dis-
charge an individual debtor from any debt — . . . (6) for will-
ful and malicious injury by the debtor to another entity or to
the property of another entity.” 11 U.S.C. § 523(a)(6). Jett
alleges that Sicroff’s defamatory statements constituted a
“willful and malicious injury” and that, therefore, the debt to
which they give rise should not be discharged.
We turn first to the question of whether any of Sicroff’s
statements were defamatory and then to the question of
whether the injury that they caused was “willful and mali-
cious.”
A
The injury alleged in this case is Sicroff’s defamation of
Jett. The bankruptcy court found simply that Sicroff had pub-
lished untrue statements about Jett. On appeal, the district
court noted that the bankruptcy court had failed to distinguish
adequately between false assertions of provable fact and state-
ments of opinion and conducted a more thorough review of
many of the allegedly defamatory statements. The district
court concluded that many of the statements fell outside the
realm of potentially defamatory statements but, because it
found that Jett was unable to carry his burden of proving that
the defamation both willfully injured him and was malicious,
the court did not scrutinize the remaining statements and
assumed arguendo that they were defamatory. We must,
therefore, conduct that more probing review ourselves.
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[2] In California, libel is defined by statute simply as “a
false and unprivileged publication by writing [or other
means], which exposes any person to hatred, contempt, ridi-
cule, or obloquy, or which causes him to be shunned or
avoided, or which has a tendency to injure him in his occupa-
tion.” Cal. Civ. Code § 45.
We agree with the district court that certain statements
were either simple name-calling or not provable factually. See
Flowers v. Carville, 310 F.3d 1118, 1127 (9th Cir. 2002)
(“The law provides no redress for harsh name-calling.”).
However, this leaves at least some statements that were not
evaluated by either the bankruptcy court or the district court
for their libelous nature. These statements include Sicroff’s
allegations, contained in his April 17, 1993 letter, that Profes-
sors Jett and Bahre had been “the subject of numerous . . .
charges of unprofessional conduct,” should have been disci-
plined for “serious misbehavior,” and had brought a “continu-
ous barrage of specious complaints” against the department
chair.
Under California law, “it is a question of law for the court
whether a challenged statement is reasonably susceptible of
an interpretation which implies a provably false assertion of
actual fact.” Kahn v. Bower, 284 Cal. Rptr. 244, 250 (Cal. Ct.
App. 1991). The California courts have explained:
[I]n ascertaining whether the statement in question is
sufficiently communicative of provable falsity or
actual fact to subject the defendant to liability, courts
will continue to consider the totality of the circum-
stances . . . . First, the language of the statement is
examined. For words to be defamatory, they must be
understood in a defamatory sense . . . . Next, the con-
text in which the statement was made must be con-
sidered . . . . This contextual analysis demands that
the courts look at the nature and full content of the
communication and to the knowledge and under-
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standing of the audience to whom the publication
was directed.
Id. at 249 (internal quotations and citations omitted).
[3] The bankruptcy court determined that statements in the
April 17, 1993 letter regarding “numerous and well-
substantiated charges of professional misconduct” were false
and Sicroff’s counsel did not disagree. The record also shows
that Jett had not been disciplined for “serious misbehavior”
and that he had not brought a “continuous barrage of specious
complaints” against the department chair. Sicroff offered no
defense of “privilege” for his statements. Finally, by alleging
“professional misconduct,” “serious misbehavior” and other
unprofessional activity, Sicroff’s statements had a tendency to
injure Jett in his occupation. For these reasons, we must con-
clude that Sicroff’s statements satisfied the requirements of
libel under California law.
B
[4] We analyze the willful and malicious prongs of the dis-
chargeability test separately. See Carillo v. Su (In re Su), 290
F.3d 1140, 1146 (9th Cir. 2002) (noting with approval that “in
In re Jercich, we treated the ‘malicious’ injury requirement of
§ 523(a)(6) as separate from the ‘willful’ requirement”); see
also Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1207-
09 (9th Cir. 2001). Under the test, a creditor must demonstrate
nondischargeability by a preponderance of the evidence. Gro-
gan, 498 U.S. at 291. When applying this standard, “[i]n addi-
tion to what a debtor may admit to knowing, the bankruptcy
court may consider circumstantial evidence that tends to
establish what the debtor must have actually known when tak-
ing the injury-producing action.” In re Su, 290 F.3d at 1146
n.6.
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1
[5] The bankruptcy court concluded that the facts fell short
of proving that Sicroff’s acts were either willful or malicious.
However, because Sicroff explicitly conceded that his behav-
ior was “willful and intentional” for purposes of the dischar-
geability hearing, there is no reason to dwell on the “willful”
prong.4 Sicroff offered no evidence that could counterbalance
the weight of his concession and the bankruptcy court’s con-
trary determination was clearly erroneous.
2
[6] An injury is “malicious,” as that term is used in Section
523(a)(6), when it is: “(1) a wrongful act, (2) done intention-
ally, (3) which necessarily causes injury, and (4) is done with-
out just cause or excuse.” In re Jercich, 238 F.3d at 1209.
Within the plain meaning of this definition, it is the wrongful
act that must be committed intentionally rather than the injury
itself. See Murray v. Bammer (In re Bammer), 131 F.3d 788,
791 (9th Cir. 1997) (“This four-part definition does not
require a showing of . . . . an intent to injure, but rather it
requires only an intentional act which causes injury.”).
[7] Because we are persuaded that at least some of Sicroff’s
statements were libelous, we also conclude that the first two
criteria of “malicious injury” are met. A libelous act, by its
nature, is self-evidently wrongful and is committed by an
intentional act of publication—in this case, by Sicroff’s dis-
semination of his letter. The third criterion—that the action
necessarily cause injury—is also met because Sicroff’s state-
ments were directed at Jett’s professional reputation and,
therefore, will necessarily harm him in his occupation. Having
satisfied the first three elements of “malicious injury,” to pre-
4Because of Sicroff’s concession, we do not need to apply the analysis
set out in Kawaauhau v. Geiger, 523 U.S. 57 (1998), in which the
Supreme Court addressed the question of when an injury is “willful.”
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vail, Jett must demonstrate by a preponderance of the evi-
dence that Sicroff published his statements “without just
cause and excuse.” It was this final criterion that the bank-
ruptcy court found lacking.
a
The “just cause and excuse” element of “malicious injury”
presents a mixed question of law and fact, which we review
de novo. Id. at 791-92.
[8] The bankruptcy court found that Sicroff had “just cause
and excuse” to defame plaintiff despite acknowledging that it
could find “no cases . . . that defined that phrase.” We have,
however, interpreted that phrase in at least one prior case. In
In re Bammer, an en banc panel of this court reversed a Bank-
ruptcy Appellate Panel decision that intentional fraud could
be undertaken with “just cause and excuse” when the debtor
acted “out of compassion for his mother” and no benefit
inured to himself. Id. at 791. Explaining our reversal, we
declared that “[w]e can think of no reason consistent with sec-
tion 523 . . . to permit a standardless, unmeasurable, emo-
tional, and nonlegal concept such as compassion to negate an
identifiably and legally wrongful act.” Id. at 793 (emphasis in
original).
[9] In the case before us, we similarly must conclude that
Sicroff’s goal of protesting the Geography Department’s clo-
sure did not provide just cause or excuse to calumniate Jett’s
professional reputation.5 Not only were his libelous statements
legally wrongful, but Sicroff went well beyond the scope of
5In doing so, however, we affirm that the “just cause and excuse” ele-
ment has survived Geiger in the Ninth Circuit. See In re Jercich, 238 F.3d
at 1209. While at least one other circuit has read Geiger to eliminate the
element, see Miller v. J.D. Abrams Inc. (Matter of Miller), 156 F.3d 598,
606 (5th Cir. 1998), we disagree with that interpretation, which was based
on reasoning that conflates the elements of willfulness and malice in con-
travention of our clear precedents. Although it may be rare to find a just
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his legitimate goal to attack Jett by name. When the Califor-
nia Aggie first printed his letter on April 22, 1993, it pru-
dently excised the personalized attacks against Jett and Bahre.
In response to this edit, Sicroff sent a second letter, which the
newspaper reprinted on April 26, 1993, complaining that
“[t]he edited version of my letter that you printed April 22
about the geography department . . . did not at all represent
the main point of the letter” and inviting “readers [who]
would like the full text of the letter [to] please drop me a note
at the geography department.” This action demonstrates a spe-
cific intent to injure Jett over and above otherwise legitimate
protest. For these reasons, the bankruptcy court erred in its
interpretation of the phrase “just cause and excuse” and in its
conclusion that Sicroff’s defamation was not malicious by vir-
tue of its connection to a larger, legitimate purpose. We hold
instead that Sicroff’s libelous statements were not made with
just cause and excuse and that, as a result, they were mali-
cious.
III
[10] Because we must conclude that Sicroff’s libelous
statements constituted a willful and malicious injury, his debt
to Jett is not dischargeable. The judgment of the district court
is
REVERSED.
cause and excuse for defamation, the phrase is hardly without use in other
contexts. An assault, for example, may cause a “willful injury” and meet
the first three criteria of “malicious,” yet be justly excused by self-defense.
However, while excuses that are otherwise valid defenses to criminal
offenses may well function with similar force under the “malicious” prong
of the dischargeability test, such an excuse is not offered here.
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