                                                               FILED
                                                               JUN 08 2016
 1                          NOT FOR PUBLICATION
 2                                                         SUSAN M. SPRAUL, CLERK
                                                             U.S. BKCY. APP. PANEL
                                                             OF THE NINTH CIRCUIT
 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5   In re:                        )       BAP No.    CC-15-1379-TaLKi
                                   )
 6   LORNA J. RILEY,               )       Bk. No.    2:13-bk-36193-RN
                                   )
 7                   Debtor.       )       Adv. No.   2:14-ap-01422-RN
     ______________________________)
 8                                 )
     CALIFORNIA CAPITAL INSURANCE )
 9   COMPANY,                      )
                                   )
10                   Appellant,    )
                                   )
11   v.                            )       MEMORANDUM*
                                   )
12   LORNA J. RILEY,               )
                                   )
13                   Appellee.**   )
     ______________________________)
14
                Submitted Without Oral Argument*** on May 19, 2016
15
                              Filed – June 8, 2016
16
                 Appeal from the United States Bankruptcy Court
17                   for the Central District of California
18       Honorable Richard M. Neiter, Bankruptcy Judge, Presiding
19   Appearance:       Bruce N. Graham of Graham & Associates on brief
                       for appellant.
20
21
          *
             This disposition is not appropriate for publication.
22
     Although it may be cited for whatever persuasive value it may
23   have (see Fed. R. App. P. 32.1), it has no precedential value.
     See 9th Cir. BAP Rule 8024-1(c)(2).
24
          **
             Appellee did not file a brief; pursuant to the BAP Clerk
25   of Court’s conditional order of waiver, she waived the right to
26   appear in this appeal.
          ***
27            The Panel unanimously determined that the appeal was
     suitable for submission on the briefs and record pursuant to
28   Bankruptcy Rule 8019(b)(3).
 1   Before:     TAYLOR, LANDIS,**** and KIRSCHER, Bankruptcy Judges.
 2                               INTRODUCTION
 3        California Capital Insurance Company appeals from the
 4   bankruptcy court’s judgment in favor of Debtor Lorna Riley in an
 5   adversary proceeding objecting to discharge of its claim under
 6   § 523(a)(6).1
 7        We AFFIRM.
 8                                  FACTS2
 9        Prepetition, Appellant commenced an action against the
10   Debtor and her family in California state court.     The Debtor and
11
          ****
12            The Honorable August B. Landis, United States
     Bankruptcy Judge for the District of Nevada, sitting by
13   designation.
14        1
             Unless otherwise indicated, all chapter and section
15   references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532.
     All “Rule” references are to the Federal Rules of Bankruptcy
16   Procedure. All “Civil Rule” references are to the Federal Rules
     of Civil Procedure.
17
          2
18           Appellant requests that the Panel take judicial notice
     of four state court records. It, however, neither filed these
19   documents with the bankruptcy court nor submitted them as
     evidentiary exhibits at trial. We normally do not consider
20   documents that were not presented to the bankruptcy court. See
21   United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).
          That said, the trial transcript shows that the bankruptcy
22   court reviewed the state court complaint. There is no
     indication on this record that there was an amended state court
23   complaint. Thus, we grant the request in part and take judicial
24   notice of the state court complaint.
          We also take judicial notice of the state court judgment
25   pursuant to Federal Rule of Evidence 201. We recognize that,
     with few exceptions, parties may not supplement the record on
26   appeal. See Lowry v. Barnhart, 329 F.3d 1019, 1024-25 (9th Cir.
27   2003). Nonetheless, the Debtor has not appeared in this appeal
     and one of the issues on appeal is the preclusive effect of the
28   state court judgment.

                                       2
 1   her husband rented a house (the “Property”) from Appellant’s
 2   insured; they were later evicted for failure to pay rent.    The
 3   complaint asserted three cause of actions: (1) breach of
 4   contract; (2) the intentional torts of willful misconduct and
 5   private nuisance; and (3) general negligence.    As to each cause
 6   of action, the complaint alleged the same facts: that the Debtor
 7   (and her family)
 8        [C]aus[ed] or fail[ed] to prevent the vandalizing of
          the [Property], by cutting the carpet and carpet pad,
 9        spilling paint on the carpet and bathroom floor of the
          [Property], painting profanities on the walls of the
10        [Property], leaving trash throughout the [Property],
          smashing the masterbath sink with such force that the
11        sink cracked, and otherwise damaging the [Property].
12   R., Ex. J at 88-92.
13        The state court subsequently struck the Debtor’s answer to
14   the complaint and entered default against her.   Appellant
15   eventually obtained a default judgment against the Debtor and
16   her husband and an award of compensatory damages in the
17   principal amount of $20,824.95, plus fees and costs.   The Debtor
18   later filed for bankruptcy.
19        As relevant to this appeal,3 the adversary complaint sought
20   a determination that the debt owed to Appellant was excepted
21   from discharge pursuant to § 523(a)(6) based on the issue
22   preclusive effect of the state court judgment.
23        In the course of discovery, Appellant served requests for
24   admission (“RFAs”) on the Debtor.   The Debtor never responded.
25   Indeed, she did little in the adversary proceeding until the eve
26
          3
27           The adversary complaint also asserted a § 523(a)(4)
     claim, which the bankruptcy court also denied. Appellant
28   expressly abandons the § 523(a)(4) claim for relief on appeal.

                                    3
 1   of trial when she requested a continuance.
 2         Although both Appellant and the Debtor appeared at trial,
 3   the bankruptcy court did not take any testimony.4    It first
 4   explained the effects of the Debtor’s nonparticipation in the
 5   state court proceeding, including entry of the default judgment.
 6   Turning to Appellant, the bankruptcy court, however, concluded
 7   that the state court default judgment did not establish
 8   § 523(a)(6) nondischargeability.     It also concluded that the
 9   RFAs constituted improper conclusions of law under Civil
10   Rule 36(a) and, thus, that they did not provide an independent
11   basis for Appellant’s § 523(a)(6) claim.     As there was no
12   additional evidence introduced at trial, the bankruptcy court
13   entered judgment for the Debtor.
14         Appellant subsequently appealed.5
15                               JURISDICTION
16         The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
17   §§ 1334 and 157(b)(2)(I).   We have jurisdiction under 28 U.S.C.
18   § 158.
19                                  ISSUE
20         Whether the bankruptcy court erred in determining that the
21   state court judgment was not excepted from discharge under
22   § 523(a)(6).
23   ///
24
25         4
             At a pretrial conference, Appellant had advised the
     bankruptcy court that it would submit on its papers and the
26
     RFAs.
27         5
             The bankruptcy court granted Appellant’s timely request
28   to extend the time to appeal pursuant to Rule 8002(d).

                                      4
 1                            STANDARDS OF REVIEW
 2        We review de novo the bankruptcy court’s determination of
 3   whether a particular debt is excepted from discharge under
 4   § 523(a)(6).   Plyam v. Precision Dev., LLC (In re Plyam),
 5   530 B.R. 456, 461 (9th Cir. BAP 2015); see also Carrillo v. Su
 6   (In re Su), 290 F.3d 1140, 1142 (9th Cir. 2002)
 7   (nondischargeability presents mixed issues of law and fact and
 8   is reviewed de novo).
 9        We also review de novo the bankruptcy court’s decision as
10   to the availability of issue preclusion.       In re Plyam, 530 B.R.
11   at 461.   If issue preclusion was available, we then review the
12   bankruptcy court’s application of issue preclusion for an abuse
13   of discretion.    Id.   A bankruptcy court abuses its discretion if
14   it applies the wrong legal standard, misapplies the correct
15   legal standard, or if its factual findings are illogical,
16   implausible, or without support in inferences that may be drawn
17   from the facts in the record.    See TrafficSchool.com, Inc. v.
18   Edriver Inc., 653 F.3d 820, 832 (9th Cir. 2011) (citing United
19   States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009)
20   (en banc)).
21        Finally, we review de novo the bankruptcy court’s
22   interpretation and application of the procedural rules.      See
23   Jackson v. United States (In re Jackson), 541 B.R. 887, 890 (9th
24   Cir. BAP 2015).
25                                 DISCUSSION
26        Appellant contends that the bankruptcy court erred in
27   determining that the state court judgment was not excepted from
28   discharge under § 523(a)(6) for three reasons: first, by

                                       5
 1   declining to give issue preclusive effect to the judgment;
 2   second, by determining that the state court’s terminating
 3   sanction against the Debtor did not constitute a willful and
 4   malicious injury; and, third, by determining that the RFAs did
 5   not conclusively establish the existence of a willful and
 6   malicious injury.   We conclude that there was no error in the
 7   bankruptcy court’s determinations.
 8        Section 523(a)(6) excepts from discharge debts arising from
 9   a debtor’s “willful and malicious” injury to another person or
10   to the property of another.   Barboza v. New Form, Inc.
11   (In re Barboza), 545 F.3d 702, 706 (9th Cir. 2008).    The
12   “willful” and “malicious” injury requirements are conjunctive
13   and subject to separate analysis.    Id.; In re Su, 290 F.3d at
14   1146–47.
15        An exacting requirement, the willful injury requirement is
16   satisfied when a debtor harbors “either a subjective intent to
17   harm, or a subjective belief that harm is substantially
18   certain.”   In re Su, 290 F.3d at 1144; see also Petralia v.
19   Jercich (In re Jercich), 238 F.3d 1202, 1208 (9th Cir. 2001).
20   “A willful injury is a deliberate or intentional injury, not
21   merely a deliberate or intentional act that leads to injury.”
22   In re Barboza, 545 F.3d at 706 (quoting Kawaauhau v. Geiger,
23   523 U.S. 57, 61 (1998)) (internal quotation marks omitted).    As
24   a result, “debts arising from recklessly or negligently
25   inflicted injuries do not fall within the compass of
26   § 523(a)(6).”   Geiger, 523 U.S. at 64.   Thus, as this Panel has
27   stated, “the Supreme Court in Geiger effectively adopted a
28   narrow construction and the most blameworthy state of mind” as

                                     6
 1   that required for § 523(a)(6) nondischargeability.    In re Plyam,
 2   530 B.R. at 464.
 3        The malicious injury requirement is established where there
 4   is: “(1) a wrongful act, (2) done intentionally, (3) which
 5   necessarily causes injury, and (4) is done without just cause or
 6   excuse.”    In re Jercich, 238 F.3d at 1209.
 7        Save for certain situations not applicable here,6
 8   § 523(a)(6) is predicated on the existence of an intentional
 9   tort.    See Geiger, 523 U.S. at 61, 64 (observing that “the
10   [§ 523](a)(6) formulation triggers in the lawyer’s mind the
11   category ‘intentional torts,’ as distinguished from negligent or
12   reckless torts.”) (citation omitted).    Whether there exists an
13   intentional tort is typically informed by state law.     See
14   generally Lockerby v. Sierra, 535 F.3d 1038, 1041 (9th Cir.
15   2008).
16   A.   The state court’s terminating sanction did not support
17        § 523(a)(6) nondischargeability.
18        Appellant argues that the state court’s terminating
19   sanction against the Debtor (that is, striking the Debtor’s
20   answer to the state court complaint) supplied an alternative
21   basis for nondischargeability.    We disagree.
22        The bankruptcy court did not make any specific findings in
23   relation to the terminating sanction, and we cannot determine
24   the basis for the sanction on this record.     At trial, the Debtor
25   asserted that her form of answer was procedurally defective.
26
27        6
             E.g., a criminal violation or a tort-like statutory
28   violation may also suffice for § 523(a)(6) nondischargeability.

                                      7
 1   Appellant, on the other hand, alleged that the sanction followed
 2   violation of multiple state court orders. Thus, the sanction
 3   arose either from the Debtor’s ineptitude or from more serious
 4   failures to properly engage in the state court litigation.
 5        We need not remand for resolution of this question,
 6   however, because whatever the basis for the terminating sanction
 7   it was not an act that gave rise to the injury to the Property.
 8   And only the claim for injury to the Property formed the basis
 9   for the complaint’s § 523(a)(6) nondischargeability claim.
10   There was no attempt before the bankruptcy court or on appeal to
11   monetize the alleged injury relating to the terminating
12   sanction, to explain the alleged injury, or to discuss why any
13   such injury was willful and malicious.
14   B.   The state court judgment failed to establish all elements
15        of Appellant’s § 523(a)(6) claim.
16        The bankruptcy court may give issue preclusive effect to a
17   state court judgment as the basis for excepting a debt from
18   discharge.    Harmon v. Kobrin (In re Harmon), 250 F.3d 1240, 1245
19   (9th Cir. 2001).    We apply the forum state’s law of issue
20   preclusion.   Id.
21        California permits application of issue preclusion to an
22   existing judgment: (1) after final adjudication; (2) of an
23   identical issue; (3) actually litigated in the former
24   proceeding; (4) necessarily decided in the former proceeding;
25   and (5) asserted against a party in the former proceeding or in
26   privity with that party.    See DKN Holdings LLC v. Faerber,
27   61 Cal. 4th 813, 825 (2015).    In addition, the court must
28   determine that issue preclusion “furthers the public policies

                                      8
 1   underlying the doctrine.”     In re Harmon, 250 F.3d at 1245
 2   (citing Lucido v. Super. Ct., 51 Cal. 3d 335, 342-42 (1990));
 3   see also Khaligh v. Hadaegh (In re Khaligh), 338 B.R. 817,
 4   824–25 (9th Cir. BAP 2006).
 5        A default judgment is not excluded from an application of
 6   issue preclusion; but “the issue must have been ‘necessarily
 7   litigated’ in the action resulting in the default judgment.”
 8   In re Harmon, 250 F.3d at 1246 n.5 (citation omitted).     This
 9   requirement, in turn, “imposes two separate conditions: the
10   issue must have been ‘actually litigated’ and it must have been
11   ‘necessarily decided’ by the default judgment.”     Id. (citation
12   omitted).    Preclusive application to such a judgment, however,
13   is limited to the allegations and causes of action as set forth
14   in the complaint.    See Cal. Civ. Proc. Code § 580;
15   In re Williams’ Estate, 36 Cal. 2d 289, 293 (1950) (“Of course,
16   a court in a default action may not grant relief beyond that
17   which is demanded in the complaint. . . .”).
18        The party asserting preclusion bears the burden of
19   establishing the threshold requirements.     In re Harmon, 250 F.3d
20   at 1245.    This means providing “a record sufficient to reveal
21   the controlling facts and pinpoint the exact issues litigated in
22   the prior action.”    Kelly v. Okoye (In re Kelly), 182 B.R. 255,
23   258 (9th Cir. BAP 1995), aff’d, 100 F.3d 110 (9th Cir. 1996).
24   Ultimately, “[a]ny reasonable doubt as to what was decided by a
25   prior judgment should be resolved against allowing the [issue
26   preclusive] effect.”    Id.
27        On appeal, Appellant does not address with particularity
28   any of the elements of issue preclusion.     But, on de novo

                                       9
 1   review, we conclude that issue preclusion was unavailable.     The
 2   bankruptcy court, thus, correctly declined to give preclusive
 3   effect to the state court judgment.
 4        1.   The allegations as pled in the state court complaint
 5             did not include the § 523(a)(6) willful injury
 6             requirement.
 7        Each of the three causes of action in the state court
 8   complaint asserted the same exact allegation: that the Debtor
 9   either caused or failed to prevent the “vandalizing” of the
10   Property, followed by a descriptive paragraph of the damage.
11   This allegation, however, does not plainly equate to an
12   allegation that the Debtor subjectively intended to damage the
13   landlord or the Property or that she was substantially certain
14   that damage would occur.
15        Appellant maintains that, based on the default judgment,
16   the Debtor admitted that she was liable for the damages because
17   she “caus[ed] . . . the vandalizing of the [Property] . . . .”
18   Apl’t Op. Br. at 11.   This is an overstatement.   Appellant
19   disingenuously omits from the complaint’s quoted language the
20   phrase “or fail[ed] to prevent.”     Emphasis added.   This
21   disjunctive allegation bars the application of issue preclusion
22   here.
23        An alleged failure to do an act may be merely negligent.
24   See Restatement (Second) of Torts § 282 (1965) cmt. a
25   (“Negligent conduct may consist either of an act . . . or an
26   omission to act when there is a duty to do so. . . .”) (emphasis
27   added); id. § 284(b) (defining negligent conduct as “a failure
28   to do an act which is necessary for the protection or assistance

                                     10
 1   of another and which the actor is under a duty to do.”);
 2   CACI 401 (Negligence - Basic Standard of Care), Judicial Council
 3   of Cal. Civ. Jury Instrs. (2011) (“A person can be negligent by
 4   acting or by failing to act.       A person is negligent if he or she
 5   . . . fails to do something that a reasonably careful person
 6   would do in the same situation.”) (emphasis added).
 7        Here, the default judgment determined that the Debtor
 8   either damaged the Property or failed to prevent others from
 9   doing so.    Thus, the default judgment did not necessarily decide
10   that an intentional tort and injury occurred and left open the
11   possibility that the Debtor acted with mere negligence.      Again,
12   a negligently inflicted injury cannot support § 523(a)(6)
13   nondischargeability.7
14        2.     The state court judgment’s ambiguity bars application
15               of issue preclusion.
16        The state court judgment contains no factual findings or
17   conclusions of law; it simply grants judgment in Appellant’s
18   favor against the Debtor and her husband and awards damages in
19   the amount sought in the state court complaint.      We cannot tell
20   whether the state court judgment was based equally on each cause
21
          7
22           Appellant’s argument that the breach of contract cause
     of action was nondischargeable under § 523(a)(6) based on state
23   public policy also fails. In California, tortious breach of
24   contract involves “[c]onduct...[that] becomes tortious only when
     it also violates an independent duty arising from principles of
25   tort law.” In re Jercich, 238 F.3d at 1206 (internal quotation
     marks and citation omitted). Appellant did not adequately plead
26   this theory of recovery in the state court complaint. But even
27   if we assume that the contract claim was tortious, the Debtor’s
     failure to act did not require a conclusion that the breach
28   resulted from more than negligence.

                                         11
 1   of action in the state court complaint or rested on only one
 2   theory of recovery.    In the absence of an express determination
 3   to the contrary, we must infer that the state court granted the
 4   judgment in the disjunctive.    Thus, we cannot rule out the
 5   possibility that the basis of recovery was the cause of action
 6   asserting general negligence.    Again, a negligently inflicted
 7   injury can never support a determination of § 523(a)(6)
 8   nondischargeability.   Geiger, 523 U.S. at 64.    This reasonable
 9   doubt enjoins the Appellant’s reliance on issue preclusion and
10   the state court judgment.    See In re Kelly, 182 B.R. at 258.
11         3.   Neither of the intentional torts asserted in the state
12              court complaint satisfy the § 523(a)(6) willful injury
13              requirement.
14         Private nuisance.    In California, every nuisance that is
15   not public is considered a private nuisance.     Cal. Civ. Code
16   § 3481.    A nuisance is defined as “[a]nything which is . . . an
17   obstruction to the free use of property, so as to interfere with
18   the comfortable enjoyment of life or property . . . .”     Id.
19   § 3479.
20           Here, the private nuisance cause of action alleged, in
21   the alternative, that the Debtor failed to prevent the damage.
22   Where a defendant’s failure to abate the nuisance gives rise to
23   liability, “then negligence is said to be involved.”     City of
24   Pasadena v. Super. Ct., 228 Cal. App. 4th 1228, 1236 (2014)
25   (quoting Lussier v. San Lorenzo Valley Water Dist., 206 Cal.
26   App. 3d 92, 105 (1988)).    Once again, negligence is insufficient
27   to establish the § 523(a)(6) state of mind.
28   ///

                                       12
 1         Willful Misconduct.8   In the civil context, “[w]illful
 2   misconduct is an aggravated form of negligence.”     Carlsen v.
 3   Koivumaki, 227 Cal. App. 4th 879, 895 (2014).     The elements
 4   necessary “to raise a negligent act to the level of wil[l]ful
 5   misconduct [are]: (1) actual or constructive knowledge of the
 6   peril to be apprehended, (2) actual or constructive knowledge
 7   that injury is a probable, as opposed to a possible, result of
 8   the danger, and (3) conscious failure to act to avoid the
 9   peril.”   Id.   Importantly, however, willful misconduct does not
10   require a subjective intent to injure - “[i]t is sufficient that
11   a reasonable person under the same or similar circumstances
12   would be aware of the highly dangerous character of his or her
13   conduct.”   Calvillo-Silva v. Home Grocery, 19 Cal. 4th 714, 730
14   (1998), disapproved on other grounds, Aguilar v. Atl. Richfield
15   Co., 25 Cal. 4th 826 (2001).    In other words, willful misconduct
16   may be based on reckless conduct.     Once again, a recklessly
17   inflicted injury does not satisfy the § 523(a)(6) willful injury
18   requirement.
19         We finally note that it is inconsequential that the state
20   court complaint – in the form’s boilerplate text – stated that
21   the Debtor “intentionally caused the damage to plaintiff” in
22   connection with the intentional tort causes of action.     The
23   torts as asserted did not require an intent to injure.
24   ///
25
26         8
             The California Supreme Court has declined to determine
27   whether willful misconduct constitutes an independent cause of
     action. Nalwa v. Cedar Fair, L.P., 55 Cal. 4th 1148, 1164 n.8
28   (2012).

                                      13
 1   C.   The majority of the RFAs did not call for improper legal
 2        conclusions; any error, however, was harmless because the
 3        RFAs failed to establish all elements required for
 4        § 523(a)(6) nondischargeability.
 5        Appellant finally argues that the bankruptcy court erred in
 6   determining that the RFAs constituted improper legal conclusions
 7   under Civil Rule 36.     While largely true, we conclude that any
 8   resultant error was harmless.
 9        Civil Rule 36(a)(1) (made applicable in adversary
10   proceedings by Rule 7036) authorizes a party to request
11   admission of any matter within the scope of Civil Rule 26(b)(1),
12   relating to “facts, the application of law to fact, or opinions
13   about either.”     Requests for pure admissions of law, however,
14   are inappropriate.     7 James Wm. Moore et al., Moore’s Federal
15   Practice - Civil § 36.03 (3d ed.); 8B Charles Alan Wright et
16   al., Federal Practice and Procedure § 2255 & n.7 (3d ed.).
17   Litigants are discouraged from using Civil Rule 36 with “the
18   hope that a party’s adversary will simply concede essential
19   elements.”    Conlon v. United States, 474 F.3d 616, 622 (9th Cir.
20   2007).   “Rather, the rule seeks to serve two important goals:
21   truth-seeking in litigation and efficiency in dispensing
22   justice.”    Id.
23        Where a party fails to timely respond in writing to
24   requests for admissions, the matters are deemed admitted and
25   conclusively established in the case; such admissions are self-
26   executing and require no further action by the proponent or the
27   court.   Fed. R. Civ. P. 36(a)(3), (b).    Admittedly, “[Civil]
28   Rule 36 is harsh in its consequences to the dilatory litigant.

                                       14
 1   Failure to respond within the thirty-day time frame
 2   automatically results in a material fact being deemed
 3   admitted. . . .”    Warren v. Cybulski, --- B.R. ----, 2016 WL
 4   1176398, at *5 (N.D. Cal. Mar. 28, 2016).
 5        The record establishes that the Debtor neither responded to
 6   the RFAs nor moved to amend or withdraw them pursuant to Civil
 7   Rule 36(b).    Thus, the RFAs were deemed admitted to the extent
 8   that the requests fell within the scope of Civil Rule 36(a)(1).
 9   The bankruptcy court, however, broadly determined that the RFAs
10   did not provide sufficient support for Appellant’s
11   nondischargeability claim; it stated that they all called for
12   conclusions of law.    This was error.   The record reflects that
13   many RFAs related to factual matters.9    Those RFAs, however, did
14   not independently or collectively establish that § 523(a)(6)
15   nondischargeability was appropriate; thus, the error as to those
16   RFAs was harmless.    The remainder of the RFAs were either
17   irrelevant to the § 523(a)(6) claim,10 failed to establish an
18   injury for the purposes of § 523(a)(6),11 were fatally
19   ambiguous12 or, as more generally noted by the bankruptcy court,
20
21
          9
               RFA Nos. 1-4, 8-9, and 11 (in part) relate to background
22   facts.
23        10
             RFA No. 7 predominately pertains to the § 523(a)(4)
24   claim that Appellant has abandoned on appeal. The factual
     portion of the RFA is duplicative of the factual portion of
25   RFA No. 6, which we discuss hereafter.
26        11
             RFA Nos. 10 and 11 (in part) relate to the argument that
27   we rejected in section A, supra, of this decision.

28        12
               See discussion regarding RFA Nos. 5 and 6 below.

                                      15
 1   improperly called for conclusions of law.13
 2        1.     The RFAs utilized over-broad definitions that
 3               eliminated their utility in material respects.
 4        The draconian consequence of failure to respond to a
 5   request for admission is limited by the requirement that the
 6   request be clear.    Ambiguity must be construed against the
 7   drafter.    Here, as with the state court complaint, Appellant
 8   utilized over-broad definitions that make the RFAs imprecise and
 9   limit their utility in establishing all elements of its
10   § 523(a)(6) claim.
11        As is common practice, the RFAs were prefaced with global
12   terms and definitions.    This included that “‘Defendant’, shall
13   be deemed to mean Lorna J. Riley, as well as her agents,
14   attorneys, representatives or any other person acting on her
15   behalf and direction.”    Emphasis added.   RFA Nos. 5 and 6 also
16   reference the Debtor’s family.    Appellant’s inclusion of these
17   other entities in the global definition of defendant creates
18   ambiguity as to what the Debtor did; as a result, RFA Nos. 5 and
19   6 fail to establish that the Debtor herself vandalized the
20   Property willfully and maliciously.    Thus, RFA Nos. 5 and 6 fail
21   to conclusively establish that the Debtor personally committed
22   all or any of the damaging acts.
23        Section 523(a)(6) clearly requires a “willful and malicious
24   injury by the debtor. . . .”    RFA Nos. 5 and 6, however, meet
25   this standard only if one imputes to the Debtor the knowledge
26   and intent of unknown agents, representatives, or other person
27
28        13
                See discussion regarding RFA Nos. 6 and 12 below.

                                       16
 1   acting on her behalf or at her unspecified direction.   Such an
 2   application involves inappropriate speculation and calls for an
 3   extremely attenuated conclusion of law with respect to agency.
 4         We, like the bankruptcy court, are unable to determine that
 5   the Debtor acted with willfulness and malice based on the
 6   admissions made by the RFAs when they leave open the possibility
 7   that the damage to the Property was done by others.   And we,
 8   like the bankruptcy court, reach this conclusion notwithstanding
 9   that the Debtor may have had an unspecified agency relationship
10   with these third parties and may have directed them in an
11   unspecified manner.14
12   ///
13   ///
14
           14
15           The Ninth Circuit has imputed the knowledge and intent
     of a business partner to a debtor for the purposes of
16   § 523(a)(6). See Impulsora Del Territorio Sur, S.A. v. Cecchini
     (In re Cecchini), 780 F.2d 1440 (9th Cir. 1986). This case,
17   however, provides no assistance to Appellant for several
18   reasons. First, the Cecchini decision predates Geiger and did
     not require an intent to injure. See id. at 1442–43. As the
19   Panel stated in Sachan v. Huh (In re Huh), 506 B.R. 257, 268
     (9th Cir. BAP 2014) (en banc), “the lack of a specific intent to
20   injure holding in Cecchini was effectively overruled by the
21   Supreme Court in its Geiger decision. Consequently, the
     continued efficacy of Cecchini as precedent on related questions
22   is compromised.” See also Peklar v. Ikerd (In re Peklar),
     260 F.3d 1035, 1038 (9th Cir. 2001) (recognizing the limitation
23   of Cecchini following Geiger). Second, to the extent Cecchini
24   has continued viability, it can be factually distinguished.
     There is no evidence of a business partnership here; we cannot
25   utilize the principles of partnership law to impute liability as
     the Cecchini court did. See id. at 1444. This conservative
26   treatment of § 523 is consistent with more recent Supreme Court
27   decisions in this area. See Bullock v. BankChampaign, N.A.,
     133 S. Ct. 1754 (2013). But cf. Husky Int’l Elecs., Inc. v.
28   Ritz, 136 S.Ct. 1581 (2016).

                                     17
 1        2.    RFA Nos. 6 and 12 improperly requested conclusions of
 2              law.
 3        “The distinction between the application of law to fact and
 4   a legal conclusion is ‘not always easy to draw.’”   Watterson v.
 5   Garfield Beach CVS LLC, 2015 WL 2156857, at *4 (N.D. Cal. May 7,
 6   2015) (quoting Apple, Inc. v. Samsung Elec. Co., Ltd., 2012 WL
 7   952254, at *3 (N.D. Cal. Mar. 20, 2012)).   An application of law
 8   to fact relates to “matters involving ‘mixed law and fact’” and
 9   is intended to narrow the range of issues for trial.   Fed. R.
10   Civ. P. 36 advisory committee’s note to 1970 amendment,
11   subdivision (a); see also Asea, Inc. v. S. Pac. Transp. Co.,
12   669 F.2d 1242, 1245 (9th Cir. 1981).
13        A mixed question of law and fact, in turn, pertains to
14   “questions in which the historical facts are admitted or
15   established, the rule of law is undisputed, and the issue is
16   whether the facts satisfy the statutory standard, or to put it
17   another way, whether the rule of law as applied to the
18   established facts is or is not violated.”   Pullman-Standard v.
19   Swint, 456 U.S. 273, 289 n.19 (1982).15   Courts generally agree
20   that a request for admission is an application of law to fact
21   “as long as the legal conclusions relate to the facts of the
22   case.”    Ransom v. United States, 8 Cl. Ct. 646, 648 (1985); see
23   also Fed. R. Civ. P. 36 advisory committee’s note to 1970
24
          15
25           In the context of issue preclusion, the application of
     law to fact has also been described as an “ultimate fact.” See
26   Restatement (Second) of Judgments § 27 (1982) cmts. c, j; see
27   also United States v. Hernandez, 572 F.2d 218, 221 n.3 (9th Cir.
     1978) (recognizing the Restatement’s definition of an ultimate
28   fact).

                                      18
 1   amendment, subdivision (a) (Civil Rule 36 “does not authorize
 2   requests for admissions of law unrelated to the facts of the
 3   case.”).16
 4        RFA No. 6 called for the Debtor to admit or deny that:
 5   “[t]he damage to the premises was done by the [Debtor] and her
 6   family willfully and maliciously as those terms are used in
 7   . . . [§] 523(a)(6).”   Contrary to Appellant’s assertion, this
 8   was not an application of law to fact.
 9        This RFA was an improper request for a legal conclusion:
10   that the injury - damage to the Property - was willful and
11   malicious.   The phrase mirrors the terms of the statutory
12   language, terms that have particularized meanings in bankruptcy.
13   Rather than frame questions in relation to the particular facts
14
          16
15           Other courts have deemed the following requests for
     admission a legal conclusion:
16   C    Defendant’s apartments did not have and were not built with
          an accessible route in compliance with the Federal Fair
17        Housing Act Regulations, 24 CFR 100.205, Stein v. Creekside
18        Seniors, L.P., 2016 WL 912176, at *2 & n.4 (D. Idaho
          Mar. 4, 2016).
19   C    Defendant’s products were defective under Oregon state law,
          Benson Tower Condo. Owners Ass’n v. Victaulic Co., 105 F.
20        Supp. 3d 1184, 1196 (D. Or. 2015).
21   C    An attack on plaintiff’s computer network and communication
          infrastructure referred to in the complaint constituted an
22        illegal act, Music Grp. Macao Commercial Offshore Ltd. v.
          Foote, 2015 WL 579688, at *2 (N.D. Cal. Feb. 11, 2015).
23   C    Perjury is a felony, peace officers should not commit
24        perjury, committing perjury as a peace officer can lead to
          criminal charges, and defendant owed a duty to disclose to
25        plaintiff all exculpatory evidence in any criminal case.
          Hupp v. San Diego Cty., 2014 WL 1404510, at *15 (S.D. Cal.
26        Apr. 10, 2014).
27   C    The defendant was a public figure as defined by case
          authority. Playboy Enters., Inc. v. Welles, 60 F. Supp. 2d
28        1050, 1057 (S.D. Cal. 1999).

                                     19
 1   of the case, Appellant simply skipped to the conclusion
 2   necessary to except the debt from discharge: that the damage was
 3   willful and malicious.    Admission of this RFA would leave the
 4   bankruptcy court with nothing to do but rubber stamp a judgment
 5   in Appellant’s favor.17   This result would also run afoul of the
 6   caution advised by the Ninth Circuit, to refrain from using
 7   Civil Rule 36 as a mechanism to obtain concessions from the
 8   adverse party on essential elements.    See Conlon, 474 F.3d at
 9   622.18
10        Similarly, RFA No. 12 improperly requested an admission of
11   ultimate liability.   And, contrary to Appellant’s argument,
12   RFA No. 12 clearly requests a legal conclusion as it requests
13   admission that: “[Debtor’s] liability to [Appellant] in the
14   judgment in the suit is non-dischargeable.”    Nondischargeability
15
16        17
             Our conclusion is bolstered by other bankruptcy cases
     involving requests for admissions in a nondischargeability
17   proceeding. See, e.g., Warren v. Cybulski, --- B.R. ---,
18   2016 WL 1176398, at *5-6; Loucas v. Cunningham
     (In re Cunningham), 526 B.R. 578, 588 (Bankr. E.D. Pa. 2015);
19   Heritage Pac. Fin., LLC v. Trejo (In re Trejo), 2011 WL 5557423,
     at *3 (Bankr. N.D. Cal. Nov. 3, 2011), aff’d, 2012 WL 6622617
20
     (9th Cir. BAP Dec. 20, 2012).
21        18
             See also Veasley ex rel. Veasley v. United States,
22   2015 WL 1013699, at *4 (S.D. Cal. Mar. 9, 2015) (plaintiffs’
     requests for admission sought improper legal conclusions where
23   they “essentially ask[ed] that Defendant accede to at least one
24   element of the cause of action for which Plaintiffs, not
     Defendant, bear the burden of persuasion and of proof in this
25   proceeding, specifically either the causation or injury prongs
     of any and all negligence causes of action.”); Rios v. Tilton,
26   2010 WL 3784703, at *7 (E.D. Cal. Sept. 24, 2010) (in a civil
27   rights action, plaintiff’s requests for admission “improperly
     and repeatedly sought defendant’s acquiescence to the entirety
28   of plaintiff’s complaint.”).

                                      20
 1   is a question of law.
 2                              CONCLUSION
 3        Based on the foregoing, we AFFIRM the bankruptcy court.
 4
 5
 6
 7
 8
 9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

                                    21
