Clement v. Davis-Rice

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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re 	No. 05-40818 TK
Chapter 7
ASTARTE DAVIS-RICE,
Debtor.
___________________________/
KATHLEEN MARIE CLEMENTS, 	A.P. No. 06-4113 AT
Plaintiff,
vs.
ASTARTE DAVIS-RICE,
Defendant.
___________________________/
MEMORANDUM OF DECISION
In this adversary proceeding, plaintiff Kathleen Marie Clements
(the “Plaintiff”) seeks a nondischargeable judgment against defendant
Astarte 	Davis-Rice 	(the 	“Debtor”), 	the 	above-captioned 	chapter 	7
debtor. 	Both Plaintiff and the Debtor have filed motions for summary
judgment in their favor. 	The motions were heard on August 23, 2007
and 	were 	taken 	under 	submission. 	Having 	considered 	the 	undisputed
evidence and the applicable law, the Court concludes that Plaintiff
Signed: August 31, 2007
________________________________________
LESLIE TCHAIKOVSKY
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
August 31, 2007
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
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1The Debtor asserts that she and Rice were married in Reno,
Nevada in 1970.
2The Debtor was accused and pleaded guilty to conspiring with
members of her family to obtain Rice’s property.
2
is 	entitled 	to 	summary 	judgment 	in 	her 	favor 	and 	that 	Defendant 	is
not. 	The reasons for the Court’s decision are set forth below.
SUMMARY OF UNDISPUTED FACTS
Plaintiff 	is 	the 	conservator 	of 	the 	estate 	of 	James 	M. 	Rice
(“Rice”), 	her 	father. 	The 	complaint 	in 	this 	adversary 	proceeding
(the 	“Complaint”) 	alleges 	that, 	in 	or 	about 	1983, 	the 	Debtor 	began
a 	romantic 	relationship 	with 	Rice. 	However, 	they 	never 	married. 1
They did move to the Virgin Islands where they lived together for a
time. 	In 	1986, 	Rice 	disappeared. 	He 	was 	declared 	legally 	dead 	in
1992, 	and 	the 	Plaintiff, 	Rice’s 	daughter, 	was 	declared 	conservator
of his estate.
In a criminal action filed in the United States District Court
for the Virgin Islands, the Debtor was charged with unlawfully taking
Rice’s 	property. 	In 	1992, 	a 	criminal 	judgment 	was 	entered 	against
her, 	based 	on 	her 	guilty 	plea, 	for 	conspiracy, 	fraud, 	and 	forgery
(the “Criminal Judgment”). 2
In 1993, a civil judgment was entered against the Debtor in the
Contra Costa County Superior Court in the amount of $2,538,630 (the
“Debt”) based on causes of action for conspiracy, fraud, and forgery
(the 	“Civil 	Judgment”). 	The 	Debtor’s 	liability 	was 	established 	by
default 	when 	the 	Debtor’s 	answer 	was 	stricken 	for 	failure 	to
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cooperate 	in 	discovery. 	A 	jury 	trial 	was 	held 	on 	the 	issue 	of
damages.
The Debtor filed a petition seeking relief under chapter 11 of
the Bankruptcy Code on February 24, 2005. 	The case was converted to
chapter 7 on January 10, 2006. 	The Debtor has received her discharge
from 	debts 	that 	are 	dischargeable. 	Whether 	the 	Debt 	is 	one 	of 	the
debts 	that 	have 	been 	discharged 	is 	the 	subject 	of 	this 	adversary
proceeding.
DISCUSSION
The 	Complaint 	seeks 	a 	judgment 	declaring 	that 	the 	Debt 	is
nondischargeable 	based 	on 	11 	U.S.C. 	§ 	523(a)(2)(A), 	(4), 	and 	(6).
In her motion for summary judgment, the Plaintiff contends that she
is 	entitled 	to 	summary 	judgment 	under 	each 	of 	these 	subsections 	as
a 	matter 	of 	collateral 	estoppel. 	The 	Debtor, 	who 	is 	pro 	se, 	makes
a variety of arguments, both legal and factual, as to why she, rather
than the Plaintiff, is entitled to summary judgment. 	These arguments
are 	repeated 	in 	her 	opposition 	to 	the 	Plaintiff’s 	summary 	judgment
motion. 	For 	that 	reason, 	the 	Court 	will 	address 	the 	merits 	of 	the
Debtor’s motion for summary judgment at the same time as the merits
of her opposition to the Plaintiff’s motion.
Plaintiff’s Motion
The 	Plaintiff’s 	motion 	for 	summary 	judgment 	(the 	“Plaintiff’s
Motion”) is supported by a Memorandum of Points and Authorities (the
“Plaintiff’s Points and Authorities”) and by two declarations: i.e.,
a 	declaration 	by 	the 	Plaintiff 	(the 	“Plaintiff’s 	Declaration”) 	and
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a 	declaration 	by 	J. 	Kenneth 	Gorman 	(the 	“Gorman 	Declaration), 	the
Plaintiff’s attorney.
In 	the 	Plaintiff’s 	Declaration, 	the 	Plaintiff 	states 	that 	she
is Rice’s daughter and has been declared his sole heir. 	She states
that Rice moved to the Virgin Islands with the Debtor and her three
sons 	in 	1985 	after 	his 	retirement. 	The 	Plaintiff 	became 	concerned
about 	her 	father’s 	well 	being 	when 	he 	failed 	to 	arrive 	for 	a
scheduled visit to California in July 1986. 	When she was unable to
contact him in the Virgin Islands, she communicated her concerns to
the FBI and hired a local attorney and an attorney and investigator
in 	the 	Virgin 	Islands. 	Through 	these 	efforts, 	she 	discovered 	that
her father had disappeared. 	She also discovered that the Debtor had
returned to California after having taken possession of and/or sold
all 	of 	Rice’s 	possessions, 	using 	forged 	or 	altered 	documents. 	She
learned that the Plaintiff had obtained assistance in converting her
father’s assets from various family members.
The 	Plaintiff 	states 	that, 	after 	her 	father 	was 	identified 	as
missing, 	a 	conservatorship 	was 	established 	for 	his 	estate, 	and 	she
was appointed conservator. 	As such, she was able to prevent some of
her father’s assets from being dissipated. 	Her father was declared
deceased in 1989. 	At that point, she was named administratrix of his
decedent estate.
The 	Plaintiff 	states 	that 	she 	was 	intimately 	involved 	in 	the
criminal investigations and prosecutions against the Debtor that led
to the Criminal Judgment. 	As conservator of her father’s estate, she
also commenced and prosecuted the civil action that led to the Civil
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Judgment. 	She notes that, although the Debtor has been incarcerated
since being sentenced, during that incarceration, she has filed suits
against the Plaintiff, the Plaintiff’s attorney, and members of the
government, 	including 	a 	suit 	in 	the 	Virgin 	Islands 	alleging 	a
conspiracy 	against 	her. 	According 	to 	the 	Plaintiff, 	the 	Debtor
asserts that she obtained a default judgment in that action. 	On that
theory, 	the 	Debtor 	contends 	that 	the 	Criminal 	and 	Civil 	Judgments
against her are void. 	The Plaintiff denies ever having been served
with a complaint in any such action.
In 	his 	declaration, 	Gorman 	identifies 	himself 	as 	a 	California
attorney 	who 	has 	been 	representing 	the 	Plaintiff 	since 	Rice’s
disappearance in 1986. 	He states that he assisted the Plaintiff in
providing information to the government authorities in the criminal
proceeding 	against 	the 	Debtor. 	He 	was 	also 	the 	attorney 	of 	record
in 	the 	civil 	action 	brought 	by 	the 	Plaintiff 	against 	the 	Debtor 	in
Contra Costa Superior Court. 	Gorman states that, in that action, the
Debtor 	was 	found 	liable 	for 	fraud, 	conspiracy, 	and 	forgery 	as 	a
result 	of 	her 	failure 	to 	respond 	to 	discovery. 	The 	case 	proceeded
to trial on the issue of damages. 	The court entered judgment against
the 	Debtor 	for 	compensatory 	damages 	of 	$1,500,000 	and 	punitive
damages of $1 million.
Attached to Gorman’s Declaration are a series of Exhibits which
he identifies in his declaration as follows:
Exhibit 	A--Complaint, 	Statement 	of 	Decision, 	and 	Judgment 	in
1989 Contra Costa Superior Court Action
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Exhibit 	B–-Denial 	of 	Debtor’s 	Appeal 	from 	Judgment 	in 	1989
Contra Costa Superior Court Action
Exhibit 	C–-Order 	of 	Final 	Distribution 	from 	Rice’s 	Decedent
Estate in Probate Case
Exhibit 	D–-Notice 	of 	Debtor’s 	Appeal 	from 	Judgment 	in 	1989
Contra Costa Superior Court Action
Exhibit 	E–-Debtor’s 	Signed 	Plea 	Agreement, 	Orders 	of 	Judgment
and Commitment, and Information in Virgin Island Criminal Proceeding
Exhibit 	F–-Decision 	Memorandum 	in 	Virgin 	Island 	Criminal
Proceeding
Exhibit G–-Debtor’s Habeas Corpus Motion
Exhibit H–-District Court Decision Denying Habeas Corpus Motion
Exhibit I–-Third Circuit’s Decision Denying Debtor’s Appeal From
Judgment in Virgin Island Criminal Proceeding
Exhibit 	J–-Debtor’s 	Complaint 	Against 	Plaintiff, 	Her 	Counsel,
and Various Others filed in U.S. District Court in San Francisco
Exhibit K–-Order Granting Defendants Summary Judgment Motion in
U.S. District Court Action
Exhibit 	L--Dismissal 	of 	Debtor’s 	Appeal 	From 	Judgment 	in 	U.S.
District Court Action
Exhibit 	M-—Complaint 	C94-03675, 	Filed 	By 	Debtor 	Against
Plaintiff 	and 	Her 	Counsel 	in 	Contra 	Costa 	Superior 	Court, 	Order
Granting Demurrer Without Leave To Amend, and Notice of Dismissal of
Debtor’s Appeal
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Exhibit 	N-–Complaint 	C94-05079, 	filed 	By 	Debtor 	Against
Plaintiff 	and 	Her 	Counsel 	in 	Contra 	Costa 	Superior 	Court 	and 	Order
Granting Demurrer Without Leave To Amend
Exhibit O–-Order Dismissing With Prejudice Debtor’s Bankruptcy
Filed in Virgin Islands in 1995.
These exhibits provide further substantiation for the facts set
forth in the Plaintiff’s and Gorman’s Declaration.
In 	Plaintiff’s 	Points 	and 	Authorities, 	the 	Plaintiff 	argues
that, 	based 	on 	the 	evidence 	presented 	above, 	she 	is 	entitled 	to
summary 	judgment, 	declaring 	the 	Debtor 	nondischargeable 	under 	11
U.S.C. 	§ 	523(a)(2)(A), 	(4), 	and 	(6). 	Section 	523(a)(2)(A) 	makes
nondischargeable a debt for money or property obtained through fraud
or 	false 	pretenses. 	11 	U.S.C. 	§ 	523(a)(2)(A). 	Section 	523(a)(4)
makes 	nondischargeable 	a 	debtor 	for 	embezzlement 	or 	larceny. 	11
U.S.C. § 523(a)(4). 	Section 523(a)(6) makes nondischargeable a debt
for willful and malicious injury to another entity or to the property
of another entity. 	11 U.S.C. § 523(a)(6).
The 	Plaintiff 	contends 	that 	the 	record 	of 	the 	criminal
proceeding 	in 	the 	Virgin 	Islands, 	as 	memorialized 	in 	Exhibit 	E,
compels the Court to grant summary judgment on all three claims. 	In
that 	proceeding, 	the 	Debtor 	confessed 	to 	stealing 	Rice’s 	property
through 	the 	use 	of 	forged 	and 	altered 	documents. 	The 	Plaintiff
contends 	that 	this 	constitutes 	both 	fraud, 	giving 	her 	a 	right 	to 	a
nondischargeable 	judgment 	under 	11 	U.S.C. 	§ 	523(a)(2)(A), 	and
larceny, 	giving 	her 	the 	right 	to 	a 	nondischargeable 	judgment 	under
11 U.S.C. § 523(a)(4). 	She also contends that the evidence presented
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above establishes as a matter of law that the Debtor’s actions were
willful and malicious in accordance with the standards set forth in
Kawaauhau v. Geiger, 523 U.S. 57 (1998) and In re Jercich, 238 F.3d
1202 	(9 th 	Cir. 	2001). 	Thus, 	the 	Plaintiff 	argues, 	the 	undisputed
facts give her the right to summary judgment on all three claims as
a matter of collateral estoppel.
She is correct. 	See Grogan v. Garner, 498 U.S. 279 (1991). 	As
the 	Plaintiff 	notes, 	there 	are 	five 	requirements 	for 	collateral
estoppel: (1) an identity of issues, (2) an identity of parties, (3)
a final judgment on the merits, (4) the issue must have been actually
decided 	in 	the 	prior 	action, 	and 	(5) 	the 	issue 	must 	have 	been
necessarily 	decided 	in 	the 	prior 	action. 	The 	evidence 	presented
above satisfies each of these requirements.
Debtor’s Motion and Opposition to Plaintiff’s Motion
The Debtor filed an opposition to the Plaintiff’s motion which
she 	executed 	under 	penalty 	of 	perjury 	(the 	“Debtor’s 	Opposition
Declaration”). 	In it, as noted above, the Debtor claims that she was
married 	to 	Rice 	in 	Reno, 	Nevada 	in 	1970, 	was 	an 	equal 	owner 	of 	the
property 	in 	question, 	and 	therefore 	could 	not 	have 	stolen 	the
property 	because 	it 	already 	belonged 	to 	her. 	She 	states 	that 	Rice
did not disappear; he left the Virgin Islands of his own free will.
The Debtor also asserts that Rice did not want the Plaintiff to be
his heir. 	She notes that she was 	never 	allowed 	to 	be 	heard 	in 	the
probate proceeding.
The 	Debtor 	contends 	that 	the 	Plaintiff 	acted 	maliciously 	in
bringing the criminal proceeding against her in the Virgin Islands.
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She 	states 	that 	the 	proceeding 	was 	unlawful 	and 	that 	the 	Criminal
Judgment 	is 	therefore 	moot. 	She 	denies 	ever 	having 	forged 	Rice’s
signature.
The Debtor also asserts that the Plaintiff acted maliciously in
bringing the civil action against her in Contra Costa Superior Court,
in which action the Debt was established, and that the Civil Judgment
obtained 	by 	the 	Plaintiff 	is 	unconscionable 	and 	evil. 	She 	states
that she was not allowed to be heard in that action in violation of
her rights. 	She contends that the Plaintiff and Gorman, while acting
as fiduciaries, colluded in obtaining the Civil Judgment. 	She notes
that 	civil 	judgments 	may 	be 	set 	aside 	where, 	as 	here, 	they 	were
obtained by collusion.
Finally, 	the 	Debtor 	contends 	that 	the 	Plaintiff 	has 	presented
no competent evidence in support of her motion. 	She asserts that the
evidence presented by the Plaintiff is too old to be considered. 	She
also claims that she was not properly served.
The 	Debtor 	contends 	that 	collateral 	estoppel 	should 	not 	be
applied 	here 	because, 	after 	entry 	of 	the 	Civil 	and 	Criminal
Judgments, subsequent events have occurred which alter the parties’
legal 	rights. 	In 	this 	case, 	the 	subsequent 	event 	is 	a 	2005 	Virgin
Island 	nihil 	dicit 	judgment. 	In 	support 	of 	this 	contention, 	she
refers the Court to her Request for Judicial Notice.
There 	are 	eight 	exhibits 	attached 	to 	the 	Debtor’s 	Request 	for
Judicial Notice as follows:
Exhibit A–-Motion To Vacate Void Judgments Filed in the Criminal
Proceeding in the Virgin Islands
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Exhibit B–-Ex Parte Petition for Writ of Mandamus Filed in third
circuit Court of Appeals
Exhibit 	C–-Petition 	for 	Writ 	of 	Certiorari 	Filed 	in 	United
States Supreme Court
Exhibit D-–Letter From Supreme Court to the Debtor Acknowledging
Receipt of the Writ of Certiorari
Exhibit E–-Government’s Waiver of Right to Respond to Debtor’s
Petition for Writ of Certiorari
Exhibit 	F–-Letter 	From 	Department 	of 	Justice 	to 	the 	Debtor
Acknowledging Receipt of Administrative Tort Claim
Exhibit 	G-–Letter 	From 	Department 	of 	Justice 	to 	the 	Debtor
Providing Contact Information Regarding Claims Adjuster to Whom Claim
Was Assigned
Exhibit H–-Defendant’s Request for Judicial Notice Filed in this
Adversary Proceeding
All 	of 	the 	Debtor’s 	Exhibits 	are 	simply 	pleadings 	prepared 	by 	the
Debtor 	herself 	or 	letters 	written 	to 	her 	acknowledging 	receipt 	of
claims made by her. 	There is nothing attached that is identifiable
as 	a 	2005 	Virgin 	island 	nihil 	dicit 	judgment. 	Similarly, 	there 	is
no evidence of a default judgment against the Plaintiff.
DECISION
Motions 	for 	summary 	judgment 	are 	governed 	by 	Rule 	56 	of 	the
Federal Rules of Civil Procedure, made applicable to this adversary
proceeding by Rule 7056 of the Federal Rules of Bankruptcy Procedure.
Rule 56(c) provides that the Court should grant summary judgment if
the evidence presented by the moving party is sufficient to establish
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that there is no genuine issue as to any material fact and that the
moving 	party 	is 	entitled 	to 	judgment 	as 	a 	matter 	of 	law. 	Celotex
Corp. v. Catrett, 477 U.S. 317 (1986).
The 	facts 	set 	forth 	in 	the 	two 	declarations 	and 	the 	exhibits
attached 	to 	those 	declarations 	satisfy 	the 	Plaintiff’s 	initial
burden. 	The Criminal and Civil Judgments support the conclusion the
Plaintiff 	is 	entitled 	to 	a 	judgment 	declaring 	that 	the 	Debt 	is
nondischargeable 	under 	11 	U.S.C. 	§ 	523(a)(2)(A), 	(4), 	and 	(6) 	as 	a
matter 	of 	law 	based 	on 	the 	doctrine 	of 	collateral 	estoppel. 	See
Grogan v. Garner, 498 U.S. 279, 284-86, 290 (1991).
To successfully oppose such a motion, the nonmoving party must
present 	sufficient 	evidence 	to 	establish 	that 	there 	is 	a 	genuine
issue of material fact. 	Matsushita Elec. v. Zenith Radio Corp., 475
U.S. 	574 	(1986). 	The 	Debtor’s 	declaration 	sets 	forth 	factual
disputes: 	e.g., 	whether 	or 	not 	the 	Debtor 	was 	married 	to 	Rice.
However, given the Criminal and Civil Judgments, these disputed facts
are 	not 	material. 	The 	Debtor 	plead 	guilty 	to 	the 	crimes 	of 	fraud,
forgery, 	and 	conspiracy 	based 	upon 	which 	the 	Criminal 	Judgment 	was
granted. 	The 	Civil 	Judgment, 	which 	created 	the 	Debt 	is 	a 	final
judgment. 	These 	judgments 	give 	rise 	to 	a 	right 	to 	judgment 	of
nondischargeability under 11 U.S.C. § 523(a)(2)(A), (4), and (6) with
respect to the Debt as a matter of law. 	The Court cannot look behind
the 	judgments 	to 	determine 	factual 	disputes 	that 	might 	previously
have been relevant.
The 	Debtor 	contends 	that 	the 	Criminal 	and 	Civil 	Judgments 	are
void. 	However, she has failed to present any competent evidence to
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support that contention. 	If she wishes to set aside the judgments,
she must apply to the courts that issued them to do so. 	Since she
has failed to do so to date, or at least has not presented competent
evidence 	that 	she 	has 	accomplished 	this, 	the 	Court 	must 	honor 	the
judgments by giving them collateral estoppel effect.
The Debtor also contends that she was improperly served in this
adversary proceeding. 	Whether or not this is true, she has appeared
and has therefore waived any service defect. 	Similarly, she contends
that 	she 	has 	not 	been 	permitted 	to 	appear 	by 	telephone 	at 	various
hearings in this proceeding. 	Given the Debtor’s incarceration, there
may 	have 	been 	some 	confusion 	in 	arranging 	for 	such 	an 	appearance
earlier in the case. 	However, nothing occurred at any such hearing,
at 	which 	she 	did 	not 	appear, 	that 	affected 	her 	rights. 	She 	did
appear by telephone at the hearing on these motions and was heard.
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3The Plaintiff also seeks sanctions under Rule 56(g) of the
Federal Rules of Civil Procedure, on the ground that the Debtor’s
Declaration was filed in bad faith. 	The Court declines to grant
this request. 	First, it was not identified in the title of the
pleading. 	Second, issues of good or bad faith generally require an
evidentiary hearing. 	Such a hearing would be difficult to arrange
in this proceeding given the Debtor’s incarceration. 	Imposing
sanctions under Rule 56(g) is only mandatory if the Court is
satisfied that the affiant has filed her affidavit in bad faith.
Without an evidentiary hearing, the Court would not be satisifed as
to the Debtor’s state of mind. 	Moreover, the Court questions the
punitive or deterrent power of any such sanctions given the amount
of the Civil Judgment.
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CONCLUSION
For the reasons stated above, the Plaintiff’s motion for summary
judgment 	will 	be 	granted, 	and 	the 	Debtor’s 	motion 	for 	summary
judgment 	will 	be 	denied. 3 	The 	Plaintiff’s 	counsel 	is 	directed 	to
submit a proposed form of judgment in accordance with this decision.
END OF DOCUMENT
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COURT SERVICE LIST
Astarte Davis-Rice
01137-094 Unit A
Federal Correctional Institution
5701 8 th St. - Camp Parks
Dublin, CA 94568
Paul W. Moncrief
Law Offices of Lombardo and Gilles
318 Cayuga St.
P.O. Box 2119
Salinas, CA 93902
Case: 06-04113 Doc# 73 Filed: 08/31/07 Entered: 08/31/07 17:43:04 Page 14 of
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