FILED
NOT FOR PUBLICATION
NOV 14 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: AZIZOLAH JAVAHERY, No. 17-60031
Debtor, BAP No. 16-1195
------------------------------
MEMORANDUM*
AZIZOLAH JAVAHERY,
Appellant,
v.
SORAYA JAVAHERI-LEITNER; SIMIN
JAVAHERY-KHOJASTEGAN,
Appellees.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Taylor, Faris, and Clement, Bankruptcy Judges, Presiding
Submitted November 5, 2018**
Pasadena, California
*
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).
Before: RAWLINSON and HURWITZ, Circuit Judges, and BOUGH,*** District
Judge.
Debtor-Appellant Azizolah Javahery (Javahery) appeals the bankruptcy
court’s determination on summary judgment that the debt arising from the fraud
and conversion judgment obtained by Appellees Soraya Javaheri-Leitner and
Simin Javahery-Khojastegan (together, Appellees) against Javahery is
nondischargable.
We have jurisdiction under 28 U.S.C. § 158(d)(1). We review the
bankruptcy court’s grant of summary judgment de novo. See Khan v. Barton (In re
Khan), 846 F.3d 1058, 1062-63 (9th Cir. 2017). We review de novo the
determination that issue preclusion is available, and for abuse of discretion the
decision to apply issue preclusion. See Dias v. Elique, 436 F.3d 1125, 1128 (9th
Cir. 2006).
Debts are nondischargeable if they arise from a debtor’s fraudulent conduct,
see 11 U.S.C. § 523(a)(2), or from a debtor’s “willful and malicious injury” to the
property of another. 11 U.S.C. § 523(a)(6). Relying on the determination of the
California Superior Court that Javahery 1) “acted with malice, oppression and
fraud,” 2) launched “a systemic campaign of fraud” against Appellees, 3) willfully
***
The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
2
converted Appellees’ assets, and 4) merited the award of punitive damages, the
bankruptcy court held that Javahery’s debts to Appellees were not dischargeable.
The bankruptcy court properly relied on the state court’s judgment and
statement of decision for the purpose of issue preclusion. See Harmon v. Kobrin
(In re Harmon), 250 F.3d 1240, 1245-46 (9th Cir. 2001). Contrary to Javahery’s
assertion that the state court decision lacked an adequate finding of fraud,1 the
record reflects that the issues of fraud and malice, as required by 11 U.S.C. §§
523(a)(2) and (a)(6), were “identical to [those] decided in [the state court]
proceeding,” were “actually litigated,” and were “necessarily decided” against
Javahery. See id. Only the issue of the judgment’s finality remains. See id. at
1245.
Javahery asserts that his objection to the statement of decision rendered the
state court judgment not final under California Code of Civil Procedure § 634.2
1
Javahery’s other attacks on the underlying judgment are unavailing. He
maintains that “[t]here is no independent cause of action for punitive damages,”
but the state court judgment awarded punitive damages for fraud, not as a separate
cause of action. Similarly, while res judicata is not available when “a plaintiff
attempts to divide a primary right and enforce it in two suits,” Appellees filed only
one action. Crowley v. Katleman, 881 P.2d 1083, 1090 (Cal. 1994).
2
California Code of Civil Procedure § 634 provides:
When a statement of decision does not resolve a controverted issue, or if the
statement is ambiguous and the record shows that the omission or ambiguity
(continued...)
3
However, correction of a clerical error is not a substantial modification affecting
the finality of the judgment. See Ellis v. Ellis, 235 Cal. App. 4th 837, 842-43
(2015). As Javahery argued to the state court, the requested modification would
correct a “clerical error” that was“essentially [a] cut and paste error in the language
of the judgment.”
AFFIRMED.
2
(...continued)
was brought to the attention of the trial court either prior to entry of
judgment or in conjunction with a motion under Section 657 or 663, it shall
not be inferred on appeal or upon a motion under Section 657 or 663 that the
trial court decided in favor of the prevailing party as to those facts or on that
issue.
4