In re: LISA M. GARCIA v. Sameh Fawzy

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: LISA M. GARCIA,
Debtor,
------------------------------
LISA M. GARCIA,
Appellant,
v.
SAMEH FAWZY,
Appellee.
No. 22-60002
BAP No. 21-1041
MEMORANDUM*
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.
FILED
APR 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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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
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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,
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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.
AFFIRMED.
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