Jensen v. Wettstein

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NOT FOR PUBLICATION
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
NORTHERN DIVISION
In re: ) Case No. 9:11-bk-15294-PC
)
)
JEFFREY SCOTT WETTSTEIN and ) Chapter 7
NATORAE MARIE WETTSTEIN, )
)
Debtor. ) Adversary No. 9:12-ap-01055-PC
)
)
SHELLY JENSEN, )
) MEMORANDUM DECISION
Plaintiff, )
)
v. )
)
JEFFREY SCOTT WETTSTEIN and ) Date: February 6, 2015
NATORAE MARIE WETTSTEIN, ) Time: 9:00 a.m.
) Place: United States Bankruptcy Court
) Courtroom # 201
Defendants. ) 1415 State Street
) Santa Barbara, CA 93101
Shelly Jensen (“Jensen”) seeks a judgment against Jeffrey Scott Wettstein (“Wettstein”)
in the amount of $607,225, plus attorneys’ fees and costs of court, and a determination that the
debt is nondischargeable under 11 U.S.C. §§ 523(a)(2)(A), (a)(4) and (a)(6).1 Trial of this
1 Unless otherwise indicated, all “Code,” “chapter” and “section” references are to the
Bankruptcy Code, 11 U.S.C. §§ 101-1330 after its amendment by the Bankruptcy Abuse
Prevention and Consumer Protection Act of 2005, Pub. L. 109-8, 119 Stat. 23 (2005). “Rule”
references are to the Federal Rules of Bankruptcy Procedure (“FRBP”), which make applicable
FILED & ENTERED
MAR 13 2015
CLERK U.S. BANKRUPTCY COURT
Central District of California
BY DEPUTY CLERK	zick
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adversary proceeding was commenced and concluded on February 6, 2015. Having considered
the parties’ Amended Joint Pre-Trial Stipulation (“Trial Stip.”), the evidentiary record and
arguments of counsel, the court will enter a judgment in favor of Jensen based upon the
following findings of fact and conclusions of law made pursuant to F.R.Civ.P. 52(a), as
incorporated into FRBP 7052.
I. STATEMENT OF FACTS
In early 2010, Wettstein was seeking to raise capital for a new business venture -- Stone
Ventura Capital, LLC (“Stone Ventura”), a company that was to be formed for the purpose of
buying distressed real properties, improving them, and selling them at a profit. Wettstein met
with Bambi Holzer, who owned a financial planning firm known as Bambi Holzer Financial
Group (“BHFG”). Holzer told Wettstein that she was in a position to raise capital for private
placements, such as Stone Ventura, from her clients, and that she could raise $10 million for
Stone Ventura if Wettstein and/or his investors purchased a 20% interest in BHFG for $300,000.2
To raise the $300,000, Wettstein contacted Jensen with whom he had been involved in a
prior real estate investment.3 Based on his discussions with Wettstein, Jensen agreed to invest
$225,000 of his own funds and obtained the agreement of his girlfriend, Jane E. Milmore, to
invest an additional $75,000. To fund his portion of the investment, Jensen borrowed the
$225,000 from his 401K plan.
certain Federal Rules of Civil Procedure (“F.R.Civ.P.”). “LBR” references are to the Local
Bankruptcy Rules of the United States Bankruptcy Court for the Central District of California
(“LBR”).
2 In his brief, Jensen asserts that Wettstein needed to purchase an interest in BHFG “in order for
Holzer to solicit her clients without running afoul to [sic] the Financial Industry Regulatory
Authority’s (“FINRA”) stringent rules against soliciting clients.” Plaintiff Shelley Jensen’s Trial
Brief, 2:15-17.
3 Wettstein met Jensen in 2005 or 2006 through Joey Cappuccino (“Cappuccino”), who had been
an employee of Wettstein’s Preferred Mortgage Group. At the time, Cappuccino was dating
Jensen’s daughter.
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Because Jensen “did not want to directly own” BHFG stock nor did he “want to directly
invest in Stone Ventura’s real estate investments,”4 Jensen, Cappuccino, Milmore and Wettstein
created JWCM Management, LLC (“JWCM”)5 on or about April 2, 2010, to serve as the
managing member of Stone Ventura, which was later formed by Wettstein, Cappuccino and
Jensen.6 Jensen, Wettstein, Cappuccino and Milmore were shareholders of JWCM. Jensen was
the majority shareholder.
On or about April 7, 2010, Wettstein and Cappuccino executed a Non-Negotiable
Promissory Note (“Note”) in the original principal sum of $225,000, payable to Jensen, dated
April 2, 2010.7 The Note required Wettstein and Cappuccino to repay the $225,000, with
interest, as follows:
Principal shall be paid as follows:
(a) Two Hundred Twenty five Thousand Dollars ($225,000) shall be paid
as “Preferred Debt” of JWCM MANAGEMENT, LLC. “Preferred Debt” is
defined as a “Senior Expense” and is paid 100% from all revenues generated from
firm until “Preferred Debt” is paid in full. No other company expense incurred by
JWCM MANAGEMENT, LLC will be paid by JWCM MANAGEMENT, LLC
until the “Preferred Debt” is paid in full.
(b) After 60 days of the execution of this note, interest on the remaining
unpaid principal balance of this Note shall be paid 12% annual interest rate (1%
per month) on remaining principle [sic] balance until debt is paid in full. Interest
payments to be paid monthly to Shelley Jensen, Holder, by the 3rd of each month
starting in July of 2010. Interest expense payments are paid by Jeff Wettstein and
4 Defendant Jeffrey Scott Wettstein Trial Brief, 2:5-6.
5 JWCM is “an acronyn for Jensen, Wettstein, Cappuccino and Milmore.” Plaintiff Shelley
Jensen’s Trial Brief, 2: n.2.
6 The parties understood that Wettstein and Cappuccino would be responsible for attracting
investors in Stone Ventura, as well as the acquisition, rehabilitation, and resale of properties by
Stone Ventura. Jensen’s role in Stone Ventura was limited to his status as an investor.
7 A similar note was executed by Wettstein and Cappuccino to Milmore in the amount of
$75,000.
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Joey Cappuccino and are not paid by or in anyway an expense of JWCM
MANAGEMENT, LLC or Shelley Jensen, an individual.8
The Note further provided that Wettstein would “immediately assign/transfer, upon demand by
the ‘Holder’ Shelley Jensen, all percentage ownership rights of Bambi Holzer Financial Group
until all debt is paid in full to include all remaining principle [sic], interest, and late fees.”9
Pursuant to the notes, Wettstein received funds from Jensen and Milmore totaling $300,000.
On or about April 8, 2010, Holzer and Wettstein executed a Stock Purchase and Sale
Agreement (“SPSA”) “dated effective as of close of the business day on March 31, 2010,” in
which Holzer agreed to sell 20% of the common stock in BHFG to Wettstein for the sum of
$300,000.10 Page 1 item 2 of the SPSA, which Wettstein identified at trial as the SPSA executed
by Holzer and himself, states:
“Purchase Price. The purchase price for the Shares is Three Hundred Thousand
Dollars ($300,000.00) (the ‘Purchase Price’).”
Pursuant to the agreement, Wettstein paid the sum of $300,000 to Holzer and in consideration
therefor, received BHFG’s Stock Certificate No. 3 dated April 1, 2010, certifying that Wettstein
was the owner and holder of 20 shares of common stock in the corporation.11
Wettstein admits that he did not have an agreement with Holzer when he started his
discussions with Jensen regarding the formation of JWCM and Stone Ventura, but he reached an
agreement with Holzer on April 7, 2010. Wettstein testified that he reached the agreement with
Holzer after receiving the funds from Jensen but before executing the Stock Purchase and Sale
Agreement with Holzer. Wettstein’s agreement with Holzer was memorialized in a letter from
Holzer dated April 7, 2010, which bore the letterhead of “Wedbush Morgan Securities” and
stated:
8 Plaintiff’s Exh. # 1.
9 Id.
10 Id. at Exh. # 3.
11 Id. at Exh. # 6.
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Dear Jeff,
This letter memorializes my intent to raise capital to fund your Private
Placements. If Wedbush decides to sign a selling agreement, then it would be
done with them as the clearing firm. If not, I would refer my friends and contacts
to you directly. Either way I look forward to working with you and developing a
productive partnership for both of us.
Fondly,
Bambi Holzer12
In an email to Wettstein dated May 10, 2010, Jensen asked Wettstein to send him “copies of the
personal guarantees from Bambi to [Wettstein] and from [Wettstein] to [Jensen] for the 300K.”
Jensen testified that, in response to his May 10, 2010 email, he received an email from Wettstein
dated June 7, 2010 which stated, in pertinent part:
Attached is the agreement/memo that notes Bambi’s acknowledgement of not
only the purchase of 20% of her company but also the intent and guarantee to
raise capital (refer to page 1 item # 2).13
The SPSA attached to the email transmitted to Jensen on June 7, 2010, bore the signatures of
Wettstein and Holzer. Page 1 item # 2 of the SPSA stated:
Purchase Price: The purchase price for the Shares is Three Hundred Thousand
($300,000) (the ‘Purchase Price’). Bambi Holzer acknowledges, the $300,000
received to purchase 20% of Bambi Holzer Financial Group includes her intent
and guarantee to raise capital up to an amount of $10,000,000 for the distressed
real estate private placement offering of which Jeffrey S. Wettstein is the General
Manager/Managing Member. If in fact, for any reason, Wed Bush Securities
decides not to endorse or sign a selling agreement, Bambi Holzer will still be
responsible and guarantee the raising of the above noted capital. The capital will
then be attained through a direct referral of clients from Bambi Holzer to Jeffrey
S. Wettstein.14
12 Id. at Exh. # 7.
13 Id at Exh. # 5.
14 Id.
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Despite her representation to Wettstein, Holtzer did not raise the $10 million for Stone Ventura.
Without sufficient capital, Stone Ventura was unable to acquire any properties and ultimately
failed.
Interest payments due to Jensen were made in accordance with the Note for the months of
July, August, September, October, November, and December 2010 and the months of January
and February 2011. When Jensen did not receive interest payments after February 2011, Jensen
notified Wettstein and Cappuccino of their default and declared the Note immediately due and
payable.
On July 29, 2011, Jensen sued Wettstein and Cappuccino for damages for alleged breach
of contract, fraud and unjust enrichment in Case No. 56-2011-00401326-CU-BC-VTA, Jensen v.
Cappuccino, et al., in the Superior Court of California, County of Ventura. During the litigation,
Wettstein transferred the 20 shares of common stock in BHFG to Jensen and Millmore. The
shares were delivered on October 10, 2011.
On November 16, 2011, Wettstein and his spouse filed a voluntary petition under chapter
7 of the Code, and Sandra McBeth was appointed as trustee. In their schedules, the Wettsteins
listed Jensen in Schedule F as the holder of an unsecured nonpriority claim in the amount of
$225,000 based on the Note. The Wettsteins also listed Millmore in Schedule F as the holder of
an unsecured nonpriority claim in the amount of $75,000 attributable to a personal loan. The
Wettsteins received a discharge on October 22, 2012. On November 5, 2012, Jensen filed a
Proof of Claim # 7-2, asserting a claim for the balance of $384,220.72 in principal, accrued
interest and other charges allegedly due under the Note. No objection has been filed to Jensen’s
Proof of Claim # 7-2.
On March 5, 2012, Jensen timely filed his complaint against Wettstein and his spouse,
Natorae Marie Wettstein, in the above referenced adversary proceeding seeking a judgment for
not less than $225,000, together with accrued interest, attorneys’ fees and costs, and a
determination that the debt is nondischargeable under 11 U.S.C. §§ 523(a)(2)(A), (a)(4), and
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(a)(6).15 Wettstein filed his answer to Jensen’ complaint on April 5, 2012. After a trial on
February 6, 2015, the matter was taken under submission.
II. DISCUSSION
This court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. §§
157(b) and 1334(b). This matter is a core proceeding under 28 U.S.C. § 157(b)(2)(A), (I) and
(O).16 Venue is appropriate in this court. 28 U.S.C. § 1409(a). Objections to the
dischargeability of a debt are literally and strictly construed against the objector and liberally
construed in favor of the debtor. See Quarre v. Saylor (In re Saylor), 108 F.3d 219, 221 (9th
Cir. 1997).
A. Wettstein’s Debt To Jensen Is Nondischargeable Under 11 U.S.C. § 523(a)(2)(A).
Section 523(a)(2)(A) excepts from discharge in bankruptcy “any debt for money,
property, services, or an extension, renewal, or refinancing of credit to the extent obtained by
false pretenses, a false representation, or actual fraud.” 11 U.S.C. § 523(a)(2)(A). To establish
that a debt is nondischargeable under § 523(a)(2)(A), the plaintiff must show by a preponderance
of the evidence that (a) debtor made a representation; (b) at the time, debtor knew the
representation was false; (c) debtor made the representation with the intention and purpose of
deceiving the creditor; (d) the creditor justifiably relied on the debtor’s representation, and (e)
15 On April 4, 2012, Jensen agreed to a dismissal of all claims against Natorae Marie Wettstein
without prejudice. See Stipulation for: (1) Withdrawal of Claims Against Natorie Marie
Wettstein Without Prejudice; (2) Extension of Time to File Complaint Objection [sic] to
Discharge of Certain Debts; (3) Extension of Time for Jeffrey Scott Wettstein to Respond to
Adversary Complaint [Dkt. # 5] filed on April 4, 2012.
16 Although it does not appear that any of the claims made the basis of Jensen’s complaint
constitute “Stern claims,” the parties at trial nevertheless expressly consented to the entry of a
final judgment by the bankruptcy court. “Stern claims,” so named after the Supreme Court’s
decision in Stern v. Marshall, ___ U.S., ___, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011), “are
claims ‘designated for final adjudication in the bankruptcy court as a statutory matter, but
prohibited from proceeding in that way as a constitutional matter.’” Mastro v. Rigby, 764 F.3d
1090, 1093 (9th Cir. 2014) (citation omitted).
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the creditor sustained the alleged loss and damage as the proximate result of such representation.
Ghomeshi v. Sabban (In re Sabban), 600 F.3d 1219, 1222 (9th Cir. 2010); Diamond v. Kolcum
(In re Diamond), 285 F.3d 822, 827 (9th Cir. 2002). “The burden of showing something by a
‘preponderance of the evidence,’. . . ‘simply requires the trier of fact to believe that the existence
of a fact is more probable than its nonexistence before [he] may find in favor of the party who
has the burden to persuade the [judge] of the fact’s existence.’” Concrete Pipe & Prods. of Cal.,
Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622 (1933) (citation omitted).
Because direct evidence of intent to deceive is rarely available, “the intent to deceive can
be inferred from the totality of circumstances, including reckless disregard for the truth.”
Gertsch v. Johnson & Johnson Fin. Corp. (In re Gertsch), 237 B.R. 160, 167-68 (9th Cir. BAP
1999); see Nahman v. Jacks (In re Jacks), 266 B.R. 728, 742 (9th Cir. BAP 2001) (“Because
fraud lurks in the shadows, it must usually be brought to light by consideration of circumstantial
evidence.” (internal quotation marks and citation omitted)).
1. Wettstein’s Alleged Misrepresentations
Jensen’s fraud claim against Wettstein is based upon one or more of the following
representations allegedly made by Wettstein to induce Jensen into investing $225,000 in Stone
Ventura:
1. That the sum of $300,000 paid by Jensen and Milmore to Wettstein was to be
used to fund Stone Ventura when, in fact, Wettstein intended that the proceeds be
used to obtain a 20% interest in BHFG.
2. That Wettstein (a) would honor the note when, in fact, he had no intention of
complying with the Note; (b) would make payments timely when, in fact, he had
no intention of making the monthly payments on the Note; and (c) would pay the
Note upon default when, in fact, he had no intention of paying the Note upon
default.
3. That Holzer guaranteed that she would raise $10 million in capital in the form
of a SPSA between Wettstein and Holzer.
4. That Holzer guaranteed Jensen’s $225,000 investment in Stone Ventura.
5. That Wettstein had obtained Holzer’s promise to use Wedbush Securities to
raise $10 million in capital.
6. That Wettstein, at the time the Note was made and the loan proceeds were
delivered, had an ownership of 20% in BHFG.
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First, there is no evidence to support a finding that Wettstein falsely represented to Jensen
that the $300,000 Note proceeds were to be used to fund Stone Ventura instead of purchasing a
20% interest in BHFG. Nor is there evidence to support a finding that Wettstein falsely
represented that he owned 20% of BHFG at the time the loan proceeds were delivered pursuant
to the executed Note. According to the evidence adduced at trial, Wettstein, Jensen, Milmore
and Cappuccio all understood that Holzer offered to provide the necessary capital for Stone
Ventura through BHFG, but that it would be necessary for them to purchase a 20% interest in
BHFG for $300,000 to permit the solicitation of capital investments from her clients. Jensen
testified on direct that he understood Wettstein was going to purchase 20% of Holzer’s business,
and in return, “of her estimated $200 million worth of clients that she was going to put $10
million into the company that [they] were forming.” Jensen’s testimony is consistent with
Wettstein’s, who testified on direct that Holzer agreed “for $300,000 . . . for us to purchase 20%
of her company.” Wettstein further testified that Holzer “told me she was going to raise $10
million. In fact, the word she used to me was I could raise up to $200 million.” The whole
purpose of the SPSA was to facilitate Wettstein’s purchase of 20% of the common stock in
BHFG for $300,000 so Jensen, Wettstein and Cappuccino could eventually capitalize Stone
Ventura.
Second, the record does not support a finding that Wettstein falsely represented at or
before signing the Note that he (a) would honor the Note when, in fact, he had no intention of
complying with the Note; (b) would make payments timely on the Note when, in fact, he had no
intention of making the monthly payments on the Note; or (c) would pay the Note upon default
when, in fact, he had no intention of paying the Note upon default. “A promise of future conduct
is actionable as fraud only if made without a present intention to perform.” Southern Union, 180
F.Supp.2d at 1031 (quoting Magpali v. Farmers Group, Inc., 47 Cal.App.4th 1024 (1966); see
Tenzer v. Superscope, Inc., 39 Cal.3d 18, 30-31 (1985) (“[S]omething more than
nonperformance is required to prove the defendant’s intent not to perform his promise.” (citation
omitted)). In other words, “if, at the time he makes a promise, the maker honestly intends to
keep it but later changes his mind or fails or refuses to carry his expressed intention into effect,
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there has been no misrepresentation.” Palmacci v. Umpierrez, 121 F.3d 781, 787 (1st Cir.
1997).17 “[F]raud may be inferred from an immediate failure to perform a promise,” but “initial
performance in accordance with [a] promise negates any possible inference of fraud.” Kaylor v.
Crown Zellerbach, Inc., 643 F.2d 1362, 1368 (9th Cir. 1981) (emphasis added). “[I]f [a] plaintiff
adduces no further evidence of fraudulent intent than proof of nonperformance of an oral
promise, he will never reach a jury.” Southern Group, Inc., 47 Cal.App.4th at 1031 (quoting
Tenzer v. Superscope, Inc., 39 Cal.3d 18, 31 (1985).
It is undisputed that Wettstein used the funds advanced by Jensen under the Note for the
intended purpose – to purchase a 20% interest in BHFG. It is also undisputed that Wettstein
made interest payments due to Jensen in accordance with the terms of the Note for the months of
July, August, September, October, November, and December 2010 and the months of January
and February 2011. The Note was current for 10 months. During that time, Wettstein worked to
obtain the $10 million capital infusion to Stone Ventura promised by Holzer and to recruit other
investors. Wettstein also transferred the 20 shares of common stock in BHFG to Jensen and
Millmore pursuant to the Note. Wettstein testified on direct that he worked with Holzer to raise
capital for Stone Ventura, and also had numerous investment meetings and presentations
throughout L.A. and Ventura County where people were invited to learn “what Stone Ventura
was doing and the opportunity to buy distressed real estate in a fund as opposed to individually
buying it.” He further testified that two individuals invested in Stone Ventura, but when it
became apparent that Holzer was not going to raise the $10 million, Wettstein refunded the
money received from the two investors and began trying to sell the 20% interest in BHFG to
generate funds to pay the Note to Jensen. Indeed, when asked about his use of the term “fraud”
17 “The test may be stated as follows. If, at the time he made his promise, the debtor did not
intend to perform, then he has made a false representation (false as to his intent) and the debt that
arose as a result thereof is not dischargeable (if the other elements of § 523(a)(2)(A) are met). If
he did so intend at the time he made his promise, but subsequently decided that he could not or
would not perform, then his initial representation was not false when made.” Id. (emphasis in
original).
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in his email to Wettstein dated November 8, 2010,18 Jensen admitted on cross-examination that
he did not believe Wettstein never intended to pay the Note:
Q Okay. So did you believe that Mr. Wettstein never intended to perform on the
promissory note that he signed to you?
A Do I believe that he never, ever –
Q Yes. Do you believe that he intended to perform at the time he signed –
MR. DAVIS: Objection –
Q -- the note?
MR. DAVIS: -- Your Honor, to relevance.
THE COURT: Overruled.
A No, I don’t . I might want to rephrase this. I don’t think he intended to
initially defraud, but I think that’s ultimately what happened, and I think that I
was made a promise that was not adhered to at all. (emphasis added)
Third, there is no evidence that Wettstein falsely represented to Jensen that he had
obtained Holzer’s promise to use Wedbush Securities to raise $10 million in capital. Wettstein
testified on direct that he met Holzer in late 2009 or early 2010, and that she told him, “because
of her book of business,” “she could definitely find candidates to invest in Stone Ventura.”
Wettstein received written confirmation from Holzer in the form of her handwritten letter
bearing the letterhead of Wedbush Morgan Securities dated April 7, 2010, which memorialized
her “intent to raise capital to fund [Wettstein’s] Private Placements.”19 After making the
agreement with Wettstein, Holzer presented Stone Ventura to Wedbush Morgan Securities and
then learned that Wedbush was no longer permitting its employees or subsidiary companies to do
private placement memorandums. There was no credible testimony from Jensen or any other
witness that Wettstein falsely represented to Jensen prior his investment that he had an oral or
written agreement with Holzer to use Wedbush Securities to raise $10 million in capital.
18 Plaintiff’s Exh. # 14.
19 Id. at Exh. # 7.
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At the heart of the dispute is whether Wettstein, to induce Jensen to invest $225,000 in
Stone Ventura, knowingly and falsely, represented: (1) that Holzer guaranteed that she would
raise $10 million in capital for Stone Ventura and (2) that Holzer personally guaranteed Jensen’s
investment or otherwise agreed to personally refund Jensen’s investment if she failed to raise $10
million in capital for Stone Ventura. The court heard the testimony of Jensen, Wettstein,
Cappuccino and Milmore.
Jensen’s Testimony
Jensen testified on direct that he understood Wettstein was going to purchase 20% of
Holtzer’s business in return for a guaranty of funding $10 million into Stone Ventura. Jensen
testified that he understood Holtzer was guaranteeing “that of her estimated $200 million worth
of clients that she was going to put $10 million into the company that they were forming, and she
was guaranteeing that.” Jensen further testified on direct that he understood Holtzer would
personally repay his investment if the company failed. When asked how he came to that
understanding, Jensen responded on direct that Wettstein said so on “numerous occasions,” in
about a “dozen” conversations, and also “in writing in one email.” However, Jensen did not
testify as the date, time or place of any of these conversations or occasions nor the substance of
Wettstein’s statements in each of these conversations or on each of these occasions, other than to
say that the conversations preceded the transfer of money. Nor do any of the emails admitted
into evidence which were exchanged prior to Jensen’s payment of $225,000 to Wettstein support
his contention.
Jensen testified on direct that he met with Wettstein personally 3-4 times about the
investment, but was only able to recall one specific meeting – a dinner with Wettstein,
Cappuccion and Milmore which Jensen testified occurred in late March 2010.
Jensen testified on direct that, at the dinner, Wettstein said that “Bambi was personally
guaranteeing it and that her company, whether the securities company would allow her to and it
didn’t matter whether they did nor not, that she was still going to be responsible and guarantee
the investment.” However, Jensen testified on cross examination that he did not recall whether
the dinner occurred before or after he had given the $225,000 to Wettstein. He then testified on
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redirect that he really didn’t know how many times Wettstein ever discussed Holzer’s guarantee
in connection with the transaction prior to the dinner.
Jensen testified on direct that he made his decision to transfer the funds after Wettstein
told him about the guaranty. Jensen testified that he asked Wettstein for “copies of the personal
guarantees from [Holzer to Wettstein] and from [Wettstein to Jensen] for the $300,000” in his
May 20, 2010 email; and that in response thereto, he received from Wettstein the SPSA attached
to Wettstein’s email dated June 7, 2010, which contained a guaranty by Holzer to raise capital up
to $10 million. Jensen testified that, after reviewing the June 7, 2010 email and attachment, he
felt “safe in the fact that Ms. Holzer was guaranteeing the return of the investment.” However,
Jensen also admitted that he understood the provision in the SPSA to be Holzer’s guaranty to
fund the company, not Holzer’s personal guaranty of his investment.
On cross-examination, Jensen testified that he believed there was supposed to be a
guaranty from Holzer guaranteeing payment of the $300,000 and that she was going to pay the
$300,000 within 60 days. When asked what personal guarantees he was referring to in his email
to November 8, 2010,20 Jensen replied that he was referring to the guaranty contained in the
SPSA -- “the guaranty that Holzer was going to fund the company, and the company, then,
would repay the $300,000.” On redirect, Jensen reiterated that it was his belief that “Holzer was
going to put $10 million into the company, and therefore, the company would refund [his]
investment.” And “if the company failed that Holzer would personally repay [his] money.”
When recalled as a witness by Wettstein, Jensen admitted that he was personally involved
in drafting the Note and never requested inclusion of Holzer’s personal guaranty in or in
conjunction with the Note. Jensen also admitted that he never demanded that Wettstein obtain a
written guaranty from Holzer before he made his investment. Jensen testified that he “never had
any contact with her.”
20 Id. at Exh. # 14.
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Wettstein’s Testimony
Wettstein denies that he ever told Jensen that Holzer either personally guaranteed to raise
$10 million in capital for Stone Ventura or to reimburse Jensen for his investment if she failed to
do so. Wettstein testified on direct that the actual SPSA negotiated and signed with Holzer was
Exhibit 3, not Exhibit 2. Wettstein testified that the first time he saw Exhibit 2 was during his
Rule 2004 examination on January 17, 2012. Wettstein testified on direct that he did not believe
Exhibit 2 was genuine, calling it a fabrication on cross examination. Wettstein also denies
sending the June 7, 2010 email admitted as Exhibit 5, although Wettstein admits that Exhibit 5
bears his correct email address. Wettstein testified that he saw Exhibit 5 for the first time at his
Rule 2004 examination as well. However, Wettstein admitted during his Rule 2004 examination
that he did, in fact, send an SPSA to Jensen at some point by email.
Wettstein testified on direct that the dinner with Jensen, Cappuccino, and Milmore was
after Jensen’s investment. “It was a celebratory dinner,” according to Wettstein. Wettstein
testified on direct that he did not recall if he obtained any financial information from Holzer
before he obtained the investment from Jensen. Wettstein testified that Jensen never asked him
for Holzer’s financial statements nor did Jensen tell him that he would not have made the
investment but for Holzer’s the guaranty. However, Wettstein also admitted there were no
financial documents from Holzer prior to Jensen making his investment.
Cappuccino’s Testimony
Cappuccino testified on direct that he was present and witnessed conversations between
Jensen and Wettstein regarding Stone Ventura, but that he could not recall those conversations
specifically or whether they occurred in April of 2010. Cappuccino could only recall that they
had dinner together, but could not confirm whether the dinner occurred before or after Jensen’s
investment. Cappuccino testified on direct that “the breakdown of the deal was that Shelley was
giving $300,000 to Jeff to give to Bambi for a purchase portion of her investment book,21 and in
21 Wettstein later testified that “Twenty percent of the company that we bought in financial
terms is called a book of business.”
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return, she was going to raise $10,000 million and of which Shelley’s $300,000 would be
personally guaranteed by Bambi.”
Milmore’s Testimony
Milmore testified only that she was present during a discussion between Jensen and
Wettmore regarding Stone Ventura at a restaurant, but did not identify any facts regarding the
date, time or place of the conversation. Milmore testified that Wettstein stated “a woman” was
going to guarantee the investment, but Milmore did not identify the woman. When asked
whether this discussion was prior to transferring the money to Wettstein, Milmore responded that
“it was all around the same time. I mean, we were – yeah. Some of it was prior, I assume –
yeah.”
The court as the trier of fact must judge the credibility of witnesses and weigh the
evidence accordingly. See, e.g., Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485,
512 (1984) (“When the testimony of a witness is not believed, the trier of fact may simply
disregard it.”); Moore v. Chesapeake & O. Ry. Co., 340 U.S. 573, 576 (“[I]t is the jury’s function
to credit or discredit all or part of the testimony.”). The court gives little weight to the testimony
of Cappuccino and Milmore. Because neither could testify from personal knowledge whether
any of the alleged representations were made prior to Jensen’s investment, their testimony was of
little assistance to the court. Moreover, Cappuccino and Milmore are friends of Jensen and, as
pointed out at trial, Jensen has taken little action to enforce his rights against Cappuccino.
Having parsed through the conflicting testimony and documentary evidence, the court
finds that Jensen has established by a preponderance of the evidence that Wettstein represented
to him that Holzer guaranteed that she would raise $10 million in capital for Stone Ventura to
induce him to invest $225,000 in Stone Ventura, and that Wettstein’s representation was false
because Wettstein had no basis in fact to make such a representation at the time it was made.
Wettstein did not have an agreement with Holzer to raise $10 million in capital for Stone
Ventura at the time the representation was made nor had he obtained any financial information
from Holzer to determine her net worth or ability to raise such capital. Indeed, there is nothing
in Holzer’s letter dated April 7, 2010, that confirms any intent by Holzer to secure $10 million in
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capital for Stone Ventura. While he may have intended to pay the Note once he secured funds
from Jensen, Wettstein’s reckless disregard for the truth regarding Holzer’s commitment to raise
$10 million in capital for Stone Ventura to induce Jensen to part with his funds amounts to a
false representation within the scope of § 523(a)(2)(A).
On the other hand, Jensen has not established by a preponderance of the evidence that
Wettstein falsely represented that Holzer, in fact, personally guaranteed his investment or that
Holzer would refund his investment in 60 days. Not only is there no evidence of a personal
guaranty by Holzer, the payment terms of the Note drafted by Jensen belies the notion that
Jensen expected to receive repayment of the $225,000 loaned to Wettstein in 60 days. At best,
Jensen could only reasonably have understood that Holzer’s guaranty of a $10 million capital
infusion into Stone Ventura made his investment a safe bet.
2. Jensen Has Established Justifiable Reliance
“Justifiable reliance is an essential element of a claim for fraudulent misrepresentation[.]”
Guido v. Koopman, 1 Cal.App.4th 837, 843 (1991). “Reliance exists when the misrepresentation
or nondisclosure was an immediate cause of the plaintiff’s conduct which altered his or her legal
relations, and when without such misrepresentation or nondisclosure he or she would not, in all
reasonable probability, have entered into the contract or transaction.” Southern Union Co. v.
Southwest Gas Corp., 180 F. Supp.2d 1021, 1033 (D. Ariz. 2002). In other words, a party must
be ‘thoroughly induced’ by a fraudulent misrepresentation that, ‘judging from the ordinary
experience of mankind, in the absence of it he would not, in all reasonable probability, have
entered into the contract or other transaction.’” Id. (citation omitted). “[A] person is justified in
relying on a factual representation without conducting an investigation, so long as the falsity of
the representation would not be patent upon cursory examination.” Field v. Mans, 516 U.S. 59,
60 (1995). “In determining whether one can reasonably or justifiably rely on an alleged
misrepresentation, the knowledge, education and experience of the person claiming reliance must
be considered.” Guido, 1 Cal.App.4th at 843.
Jensen is a college graduate and successful television film director. His career in the
television film industry expands 25 years, and the television programs directed include
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“Friends,” “Fresh Prince of Belair,” and “One Big Family.” This wasn’t Jensen’s first business
investment. Jensen had previously purchased a house with Wettstein in the Rincon area. The
investment was profitable. Jensen had also invested with Cappuccino in a health club, a movie
theater, and one or more investments related to properties in Florida. All proved unsuccessful.
Jensen testified that he lost “a couple of million.” Despite his losses, Jensen testified that his
relationship with Cappuccino, coupled with the success of his prior investment with Wettstein,
was influential in his decision to enter into a business transaction with Wettstein.
Jensen decided to invest after Wettstein told him about Holzer’s guaranty. He testified
that the guaranty was important to him with respect to his decision to invest in Stone Ventura
because he believed it “made a safe investment.” Jensen worked with Wettstein to write the
Note. Wettstein testified on direct that Jensen exhibited attention to detail. “He read every
document, whether it was a real estate transaction or loan documents.” Since Holzer was not a
party to the Note, it is understandable that Jensen expected Holzer’s purported guaranty to be
contained in either the SPSA or a separate document to be executed by Holzer after Wettstein
paid the funds to her in consideration for ownership of a 20% interest in BHFG. Shortly after
execution of the Note, Jensen asked Wettstein to produce those documents in his email dated
May 20, 2010. After receiving and reviewing the SPSA attached to Wettstein’s responding
email dated June 7, 2010, Jensen testified that he felt “safe in the fact that Ms. Holzer was
guaranteeing the return of the investment.” Notwithstanding Jensen’s testimony on cross-
examination that he never met Holzer and did not do any investigation into Holzer’s financial
background before investing with Wettstein in Stone Ventura, the court finds that Jensen
justifiably relied on Wettstein’s representation that Wettstein had obtained Holzer’s guaranty that
she would raise $10 million in capital for Stone Ventura.
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B. Wettstein Is Entitled To Judgment Dismissing Jensen’s Second Claim For Relief Under 11
U.S.C. §523(a)(4).
Jensen contends that Wettstein “had a fiduciary duty to [him],” that Wettstein “breached
his fiduciary duty,” and that Jensen “is entitled to damages . . . and a declaration of
nondischargeability under 11 U.S.C. § 523(a)(4).”22
Section 523(a)(4) excepts from discharge debts incurred by “fraud or defalcation while
[the debtor was] acting in a fiduciary capacity, embezzlement or larceny.” 11 U.S.C. §
523(a)(4). A defalcation is the “misappropriation of trust funds or money held in a fiduciary
capacity; failure to properly account for such funds.” Lewis v. Scott (In re Lewis), 97 F.3d 1182,
1186 (9th Cir. 1996). For his debt to be nondischargeable under § 523(a)(4), Jensen had to
establish that a fiduciary relationship existed between Wettstein and himself at the time of the
alleged fraud. The Ninth Circuit has adopted a narrow definition of “fiduciary” for purposes of §
523(a)(4):
“[T]he fiduciary relationship must be one arising from an express or technical
trust that was imposed before and without reference to the wrongdoing that
caused the debt.”
Cal-Micro, Inc. v. Cantrell (In re Cantrell), 329 F.3d 1119, 1125 (9th Cir. 2003). To satisfy this
standard there must exist either an express or statutory trust prior to any wrongful acts. “The
essential elements of an express trust are (1) sufficient words to create a trust; (2) a definite
subject; and (3) a certain and ascertained object or res.” Banks v. Gill Distrib. Ctrs., Inc. (In re
Banks), 263 F.3d 862, 871 (9th Cir. 2001). “The intent to create a trust relationship rather than a
contractual relationship is the key element in determining the existence of an express trust.”
Runnion v. Pedrazzini (In re Pedrazzini), 644 F.2d 756, 758 n.2 (9th Cir. 1981).
The Ninth Circuit has held that, under California law, partners are trustees over the
partnership assets and thus are fiduciaries within the meaning of § 523(a)(4), but corporate
officers, while possessing the fiduciary duties of an agent, are not trustees with respect to
corporate assets, and therefore are not fiduciaries under § 523(a)(4). Cantrell, 329 F.3d at 1127.
22 Joint Pretrial Stipulation, 6:13-16.
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There is no evidence in the record upon which to find an express trust or that a fiduciary
relationship existed between Jensen and Wettstein within the meaning of § 523(a)(4) at the time
of the alleged fraud. Nor is there evidence to support a finding of embezzlement. Embezzlement
is defined as “the fraudulent appropriation of property by a person to whom such property has
been entrusted or into whose hands it has lawfully come.” First Del. Life Ins. Co. v. Wada (In re
Wada), 210 B.R. 572, 576 (9th Cir. BAP 1997) (quoting Moore v. United States, 160 U.S. 268,
269 (1895). In the context of § 523(a)(4), embezzlement requires (1) property rightfully in the
possession of the non-owner; (2) a non-owner’s appropriation of the property to a use other than
which it was entrusted; and (3) circumstances indicating fraud. Transam. Commercial Fin. Corp.
v. Littleton (In re Littleton), 942 F.2d 551, 555 (9th Cir. 1991). Here, Wettstein received the
$225,000 pursuant to the Note and used the funds as intended by the parties – to purchase 20%
of the common stock in BHFG to capitalize Stone Ventura.
Because there is no evidence that Wettstein committed a fraud or embezzlement while
acting in a fiduciary capacity, Wettstein is entitled to a judgment dismissing Jensen’s claim
under § 523(a)(4) with prejudice.
C. Wettstein’s Debt To Jensen Is Nondischargeable Under 11 U.S.C. § 523(a)(6).
Finally, Jensen claims that Wettstein’s acts were “willful, wanton, malicious and
oppressive,” that Wettstein “willfully and maliciously injured [him],” and that “[he] is entitled to
damages . . . and a declaration of non-dischargeability pursuant to 11 U.S.C. § 523(a)(6).”23
Section 523(a)(6) bars discharge in bankruptcy of any debt “for willful and malicious
injury by the debtor . . . .” 11 U.S.C. § 523(a)(6). Section 523(a)(6) requires separate findings
on the issues of “willful” and “malicious.” Carrillo v. Su (In re Su), 290 F.3d 1140, 1146 (9th
Cir. 2002). The “willful” injury requirement of § 523(a)(6) is met “when it is shown either that
the debtor had a subjective motive to inflict injury or that the debtor believed that injury was
substantially certain to occur as a result of his conduct.” Id., at 1144 (quoting Petralia v. Jercich
(In re Jercich), 238 F.3d 1202, 1208 (9th Cir.), cert. denied, 533 U.S. 930 (2001)). A “malicious
23 Id., at 5:9; 6:17-19.
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injury” involves “(1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury,
and (4) is done without just cause or excuse.” Id. at 1146-47 (quoting Jercich, 238 F.3d at 1209).
Jensen’s case in chief and final argument focused exclusively on his claim under §
523(a)(2)(A). Jensen did not address the elements of his claim under § 523(a)(6) in either his
trial brief nor in final argument. Nevertheless, the court notes that fraud is an intentional tort
under California law. See Moncada v. West Coast Quartz Corp., 221 Cal.App.4th 768, 781
(2014); City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, 68 Cal.App.4th 445, 482
(1999). Fraud is self-evidently wrongful and is committed by an intentional act. Wettstein had
the requisite intent to injure when he induced Jensen to loan him $225,000 based on a false
representation. His act was wrongful, done intentionally, and necessarily caused injury. Due to
the intentional and willful nature of the false representation, the court can imply malice. Thiara
v. Spycher Bros (In re Thiara), 285 B.R. 420, 434 (9th Cir. BAP 2002). And because Wettstein’s
action served no legitimate goal, it was done without just cause or excuse. Therefore, the court
finds that Wettstein’s debt to Jensen is also nondischargeable under § 523(a)(6).
D. Damages Proximately Caused By The False Representation.
Section 523(a)(2)(A) excepts from discharge a debt “to the extent it was obtained by”
fraud.” 11 U.S.C. § 523(a)(2)(A) (emphasis added). There must be some causal nexus between
the fraud and the debt. See Id. Wettstein obtained by fraud Jensen’s $225,000 investment
evidenced by the Note. The court takes judicial notice of Jensen’s Proof of Claim # 7-2 filed on
November 5, 2012. Based on the itemization set forth in his proof of claim, the court finds that
Jensen sustained damages of $384,220.72 as a proximate result of Wettstein’s false
representation, which includes the following: (1) the principal sum of $225,000; (2) accrued
unpaid prepetition interest of $22,809.49; (3) $77,625.00 in penalties incurred by Jensen
attributable to an early withdrawal of funds from his pension plan; and (4) attorneys’ fees of
$58,786.23 incurred before the petition date to enforce his rights under the Note.24
24 Jensen also seeks as damages an amount upwards of $130,000 based on his promise to
Milmore that he would “stand behind” her $75,000 investment. Based on the evidentiary record,
the court cannot find a sufficiently direct causal nexus between the amount sought as damages
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E. Attorneys’ Fees.
“[T]he determinative question in cases under § 523(a)(2) is whether a successful plaintiff
could recover attorney’s fees in a non-bankruptcy court.” AT&T Universal Card Servs., Corp. v.
Pham (In re Hung Tan Pham), 250 B.R. 93, 999 (9th Cir. BAP 2000). In Santisas v. Goodlin, 17
Cal.4th 599, 608 (1998), the California Supreme Court held that, “[i]f a contractual attorney fee
provision is phrased broadly enough, . . . it may support an award of attorney fees as to the
prevailing party in an action alleging both contract and tort claims.”
In this case, the issue of whether Jensen, as the prevailing party, is entitled to an award of
attorneys’ fees for prosecution of this adversary proceeding turns on the language of the
attorneys’ fee provision contained in the Note, which states:
13. COLLECTION COSTS. Maker agrees to pay Holder’s actual fees and
costs, including, but not limited to, fees and costs of attorneys and other agents
(including without limitation paralegals, clerks and consultants), whether or not
such attorney or agent is an employee of Holder, which are incurred by Holder in
collecting any amount due or enforcing any right or remedy under this Note,
whether or not suit is brought, including, but not limited to, all fees and costs
incurred on appeal, in bankruptcy and for post-judgment collection actions.
On its face, the attorneys’ fee provision is broad enough to embrace all claims, both contract and
tort claims. Therefore, the court finds that Jensen is entitled reasonable attorneys’ fees incurred
in this adversary proceeding which may be sought by motion pursuant to LBR 7054-1(g).
CONCLUSION
For the reasons stated, the court will enter a judgment in favor of Jensen against
Wettstein in the amount of $384,220.72 and declaring such debt is nondischargeable under 11
U.S.C. §§ 523(a)(2)(A) and (a)(6). Jensen’s claim that the debt is nondischargeable under 11
U.S.C. § 523(a)(4) will be dismissed with prejudice. Jensen is entitled to an award of reasonable
attorneys’ fees, which must be established by separate order after a motion filed pursuant to LBR
7054-1(g).
and Jensen’s reliance on Wettstein’s false representation for purposes of nondischargeability
under §§ 523(a)(2)(A) and (a)(6).
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A separate judgment will be entered consistent with this memorandum.
###
Date: March 13, 2015
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