Renee Ellison; Louis A. Breuer v. Johanna E. Hawthorne

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RENEE ELLISON; LOUIS A. BREUER,
Plaintiffs - Appellants,
v.
JOHANNA E. HAWTHORNE,
Defendant - Appellee.
No. 12-35948
D.C. No. 3:12-cv-00072-SLG
MEMORANDUM*
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Submitted August 15, 2013**
Anchorage, Alaska
Before: KOZINSKI, Chief Judge, and BERZON and IKUTA, Circuit Judges.
Renee Ellison appeals the district court’s dismissal of her claims in an
adversary action filed against Johanna Hawthorne’s estate in bankruptcy.
FILED
NOV 26 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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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The district court did not err in denying Ellison’s motion to file a second
amended complaint adding claims for abuse of process and malicious prosecution,
because her proposed amendments would have been futile. See Steckman v. Hart
Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998). Ellison’s proposed abuse of
process claim failed to allege that Hawthorne took any “overt act done in addition
to the initiating of the suit,” which is a necessary element of an abuse of process
action in Alaska. Amos v. Allstate Ins. Co., 184 P.3d 28, 38 (Alaska 2008)
(quoting Caudle v. Mendel, 994 P.2d 372, 376 (Alaska 1999)). Her proposed
claim for malicious prosecution also necessarily failed, as she was not victorious in
the prosecution at issue. See Koollodge v. State, 757 P.2d 1024, 1026 (Alaska
1988).
The district court did not err in granting summary judgment with respect to
Count 2 (breach of the covenant of good faith) based on alleged misrepresentations
made by Hawthorne. Because Ellison has not pointed to any legal or factual
misrepresentation, there is no genuine issue of material fact relevant to this count.
See Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1024 (9th Cir. 2012).
The district court did not err in granting summary judgment with respect to
Count 4 (unfair and deceptive trade practices in violation of A.S. § 45.50.471),
because the Alaska Supreme Court has ruled that this statute is inapplicable to
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residential leases like the one at issue here. Roberson v. Southwood Manor Assoc.,
L.L.C., 249 P.3d 1059, 1059 (Alaska 2011).
Nor did the district court err in granting summary judgment on Counts 8 and
9 (non-dischargeability of claims, and non-dischargeability of attorneys’ fees,
respectively, under 11 U.S.C. § 523(a)(6)). Viewed in the light most favorable to
Ellison, there is no genuine issue of material fact relevant to Hawthorne’s
willfulness and malicious intent with respect to Counts 2, 3, 4, and 6. See Evon,
688 F.3d at 1024; see also 11 U.S.C. § 523(a)(6).
The district court erred, however, in holding that it was barred by the
Rooker-Feldman doctrine from entertaining Count 1 (breach of covenant of quiet
enjoyment) and Count 5 (retaliatory eviction) of Ellison’s First Amended
Complaint. Because neither claim “asserts as a legal wrong an allegedly erroneous
decision by a state court, and seeks relief from a state court judgment based on that
decision,” Carmona v. Carmona, 603 F.3d 1041, 1050 (9th Cir. 2008), Rooker-
Feldman is inapplicable to this situation. Nor is Ellison’s case collaterally
estopped by the state court judgment in Hawthorne’s possession action, because
under Alaska law, such possession actions do not collaterally estop counterclaims
like Ellison’s. Chilton-Wren v. Olds, 1 P.3d 693, 698 (Alaska 2000). We reject
Hawthorne’s argument that Ellison’s complaint fails to state a claim for retaliatory
3

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eviction, because the complaint alleges that Ellison complained to Hawthorne
about defects in the premises before Hawthorne attempted to terminate her tenancy
in November 2009, and Hawthorne has not explained why this factual allegation is
insufficient.
The district court also erred in granting summary judgment with respect to
Count 3 (unfitness of premises) and Count 6 (breach of contract). Although the
district court determined there was no genuine issue of material fact relevant to
whether Hawthorne had acted willfully or maliciously, these are not elements of an
unfitness of premises or breach of contract claim. See Newton v. Magill, 872 P.2d
1213, 1217 (Alaska 1994) (requiring “reasonable care” for actions under A.S.
§ 34.03.100); Great W. Sav. Bank v. George W. Easley Co. J.V., 778 P.2d 569,
577–78 (Alaska 1989) (breach of contract action). For purposes of adjudicating
Ellison’s claim, it is irrelevant that Ellison would need to establish these elements
to ensure that any damage award would be nondischargeable in bankruptcy.
Creditors holding discharged debts are entitled to receive their “pro-rata share of
the distribution of the property of the bankruptcy estate.” In re Ybarra, 424 F.3d
1018, 1022 (9th Cir. 2005). Contrary to Hawthorne’s argument in her
supplemental brief, Ellison’s failure to provide a written notice to Hawthorne
before the state court forcible entry and detainer proceeding did not preclude her
4

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from bringing a claim for unfitness of premises. Neither the plain language of A.S.
§ 34.03.160(b) nor any state court opinion identified by Hawthorne imposes such a
requirement on a tenant in Ellison’s position.
We therefore reverse the district court’s grant of summary judgment with
respect to Counts 3 and 6, and its dismissal of Counts 1 and 5, and remand for
proceedings consistent with this disposition. Because we reverse in part the district
court’s decision on the merits, we reverse and remand its grant of summary
judgment with respect to Count 7 (seeking attorneys’ fees) and Counts 10, 11, and
12 (seeking equitable liens).
Each party shall bear its own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, REMANDED.
5

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Ellison v. Hawthorne, No. 12-35948
Chief Judge KOZINSKI, dissenting in part:
Because continued litigation of Ellison’s baseless claims wastes the court’s
and parties’ time and money, I must dissent from the majority’s remand.
The tempestuous relationship between month-to-month tenant Ellison and
landlord Hawthorne should have ended in 2009, but as many dysfunctional
relationships do, it’s dragged on for years. In November 2009, Hawthorne sent
Ellison a letter terminating her tenancy. Rather than pack her bags and move out,
Ellison remained in the apartment, forcing Hawthorne to commence Forcible Entry
and Detainer (FED) proceedings. In the meantime, knowing full well that her
tenancy was over and she had thirty days to leave, Ellison had the local fire
department make a report of missing smoke alarms. She attached the report in
support of her answer in the FED action.
Ellison’s pleadings are essentially poorly worded recitations of the elements
of the claims for which she seeks recovery. And, as evidence to support these
claims, she relies only on her verified state-court answer from the FED action,
which includes no proof of damages. This dooms her breach of contract claim:
Plaintiffs “need not prove the amount of damages with exact detail, but the
evidence must provide a reasonable basis” to compute an award. Ben Lomond,
FILED
NOV 26 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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page 2
Inc. v. Schwartz, 915 P.2d 632, 636 (Alaska 1996) (internal quotation marks and
citations omitted); see also 17B C.J.S. Contracts § 824 (2013).
Ellison also provides zero proof of retaliatory or wrongful eviction. She
alleges that Hawthorne evicted her because of her complaints about the premises.
Ellison’s state-court answer referenced a report documenting missing smoke
alarms completed by the Matsu Fire Department. But this report can’t serve as
evidence for retaliatory or wrongful eviction, as Hawthorne sent Ellison a letter
terminating her tenancy on November 10, 2009, a month before the report was
completed. Causation does not run backwards in time. Nor does Ellison present
any other evidence of retaliation.
Ellison also shows no damages from the lack of smoke alarms or any other
alleged issue with the apartment so as to raise a genuine issue of material fact as to
the unfitness of the premises. We don’t empanel juries to decide theoretical
injuries.
Ellison’s breach of covenant of quiet enjoyment claim fails because she
can’t support a finding that Hawthorne interfered with her use of the apartment in a
substantial way. See DeNardo v. Corneloup, 163 P.3d 956, 960 (Alaska 2007); see
also Berrey v. Jeffcoat, 785 P.2d 20, 23 (Alaska 1990). In DeNardo, the tenant
claimed that his quiet enjoyment had been breached because a neighbor was

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page 3
smoking and the landlord failed to do anything after he complained. DeNardo, 163
P.3d at 960. But “[b]ecause DeNardo did not offer facts sufficient to prove that his
landlord substantially disturbed his use of the land,” the Alaska Supreme Court
held that the claim was properly dismissed. Id. Ellison doesn’t offer evidence
proving that Hawthorne interfered with Ellison’s use of the apartment in any
way—let alone “in a substantial manner.”
The summary judgment ruling was made by a district judge who served as
an Alaska Superior Court Judge for ten years before being appointed to the district
court. In fact, she was the judge whose grant of summary judgment was upheld by
the Alaska Supreme Court in DeNardo. 163 P.3d at 956. No doubt, she is familiar
with Alaska law and, as the Alaska Supreme Court has confirmed, properly applies
it. Remanding will not change the ultimate outcome. It will only increase the
landlord’s costs, making leases more expensive in Anchorage. I would affirm.

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