                                                           FILED
                                                            DEC 10 2013
 1                                                      SUSAN M. SPRAUL, CLERK
                                                          U.S. BKCY. APP. PANEL
                                                          OF THE NINTH CIRCUIT
 2
                    UNITED STATES BANKRUPTCY APPELLATE PANEL
 3
                              OF THE NINTH CIRCUIT
 4
 5   In re:                             )
                                        )    BAP Nos. CC-13-1028-PaTaD
 6   MENELAOS SARIDAKIS and             )             CC-13-1029-PaTaD
     LISA SARIDAKIS,                    )             (Consolidated)
 7                                      )
                     Debtors.           )    Bk. No. 10-24580-BR
 8   ___________________________________)
                                        )    Adv. No. 11-01499-BR
 9   JAN JANURA; CAROL ANDERSON;        )
     JAN JANURA as trustees of the      )
10   Janura-Anderson Revocable Trust;   )
     CAROL ANDERSON as trustee of the, )
11   Janura-Anderson Revocable Trust,   )
                                        )
12                   Appellants,        )
                                        )
13   v.                                 )    M E M O R A N D U M1
                                        )
14   MENELAOS SARIDAKIS;                )
     LISA SARIDAKIS,                    )
15                                      )
                     Appellees.         )
16                                      )
     ___________________________________)
17
                    Argued and Submitted on November 22, 2013
18                           at Pasadena, California
19                          Filed - December 10, 2013
20              Appeal from the United States Bankruptcy Court
                    for the Central District of California
21
              Honorable Barry Russell, Bankruptcy Judge, Presiding
22
23   Appearances:     Michael David Franco, Esq. argued for appellants;
                      Stephen B. Goldberg, Esq. of Spierer Woodward
24                    Cobalis & Goldberg APC argued for appellees.
25
     Before: PAPPAS, TAYLOR and DUNN, Bankruptcy Judges.
26
          1
            This disposition is not appropriate for publication.
27   Although it may be cited for whatever persuasive value it may have
     (see Fed. R. App. P. 32.1), it has no precedential value. See 9th
28   Cir. BAP Rule 8013-1.

                                       -1-
 1        Appellants Jan Janura and Carol Anderson, as individuals and
 2   as trustees of the Janura-Anderson Revocable Trust (“Appellants”),
 3   appeal the bankruptcy court’s judgment denying an exception to
 4   discharge as to the debt owed them by Lisa and Menelaos Saridakis
 5   (“Debtors”) under § 523(a)(2)(A), (a)(4) and (a)(6), and the order
 6   denying Appellants’ motion for a new trial based on newly
 7   discovered evidence.   We AFFIRM.
 8                                   FACTS
 9        Appellants entered into a contract to purchase a condominium
10   unit in Redondo Beach, California (the “Property”) from Debtors,
11   who were both the builders and sellers of the Property.   After the
12   September 2008 closing, and upon taking possession, Appellants
13   discovered numerous building defects, only some of which were
14   repaired or resolved by Debtors.    Appellants sued Debtors and
15   their construction company, Saridakis Construction, Inc., in state
16   court.2   The action was stayed when, on April 15, 2010, Debtors
17   filed a chapter 7 bankruptcy petition.
18        Appellants sought relief from the automatic stay in the
19   bankruptcy case to proceed with the state court action, which
20   relief was granted by the bankruptcy court on August 19, 2011.
21   The state court action progressed to the point where Appellants
22   sought entry of a default judgment against both Debtors
23   individually and their company on February 2, 2012.   Appellants
24   submitted a proposed default judgment to the state court on
25   July 27, 2012, as to Debtors individually, and on August 14, 2012,
26   as to their corporation.   After a lengthy delay, during which it
27
          2
             Esplande Redondo, LLC fka Jan Janura and Carol Anderson v.
28   Williams Campbell, et al., Cal. Superior Ct. Case No. YC065041.

                                      -2-
 1   appears the proposed judgments were lost, Appellants resubmitted
 2   the proposed default judgments and, on November 7, 2012, the
 3   default judgment was entered against the corporation.   Unbeknownst
 4   to the parties, a default judgment also apparently was entered
 5   against Debtors individually on November 7, 2012.   The default
 6   judgment against Debtors specifically found that Debtors engaged
 7   in fraud, and awarded damages to Appellants totaling $272,905.10.3
 8        On February 10, 2011, Appellants commenced an adversary
 9   proceeding in the bankruptcy court against Debtors seeking a
10   determination that the judgment debt was excepted from discharge
11   under § 523(a)(2)(A), (a)(4) and (a)(6).   A trial occurred on
12        3
             While Appellants contend there was a default judgment
     against Debtors in place at the time the bankruptcy court
13   conducted the trial, we have concerns about the accuracy of that
     representation. The record on appeal includes a copy of the
14   default judgment against Debtors, dated November 7, 2012, as well
     as a copy of the state court’s docket. Curiously, the judgment
15   does not appear in the docket. The docket instead indicates that
     only one default judgment was entered, against the corporation,
16   dated November 7, 2012, and provides: “Default Judgment (FOR
     PLAINTIFFS VS. SARIDAKIS CONSTRUCTION, INC. FOR A TOTAL MONETARY
17   JUDGMENT OF $272,905.10 – JUDGMENT SIGNED BY JUDGE GRAY).” At
     trial in the bankruptcy court, Appellants’ counsel acknowledged
18   that this judgment was against the corporation only.
          To add to the confusion, the Panel questions the continuing
19   validity of the default judgment against the corporation on the
     date the bankruptcy court trial was conducted. Fed. R. Evid.
20   201(b)(2) authorizes a bankruptcy court to take judicial notice of
     facts which may be accurately and readily determined from sources
21   whose accuracy may not reasonably be questioned. Pursuant to this
     authority, we have independently checked the state court’s docket,
22   which shows, as to the default judgment against the corporation,
     that “**JUDGMENT VACATED PURSUANT TO COURT’S 11/15/12 ORDER **.”
23   However, no order dated November 15, 2012 appears on the docket to
     explain this addendum.
24        The import of all this is perplexing. It is possible that
     the state court entered a default judgment against Debtors on
25   November 7, 2012, as it appears in the record on appeal, but for
     some reason, this judgment was not entered in the state court’s
26   docket. There are other possible scenarios about which we will
     not speculate. However, because the record contains a copy of a
27   default judgment against Debtors dated November 7, 2012, for
     purposes of this appeal, the Panel assumes it was validly entered
28   on that date.

                                    -3-
 1   November 14, 2012, at which the bankruptcy court determined that
 2   the state court had entered a default judgment against the
 3   corporation only.   After hearing the parties’ evidence, the
 4   bankruptcy court ruled that Appellants had not shown that Debtors
 5   knew of the defects and concealed them.   In light of this
 6   determination, during the oral ruling following the trial, the
 7   bankruptcy court vacated its prior stay relief order, indicating
 8   that it did not want a second judgment to be entered by the state
 9   court.   The bankruptcy court’s oral ruling was followed up with a
10   written order, filed November 16, 2012, vacating the prior stay
11   relief order.
12        On January 9, 2013, Appellants filed an Application/Motion
13   for New Trial on the Basis of Newly Discovered Evidence.     In the
14   motion, Appellants argued that the default judgment that had been
15   entered against Debtors in state court on November 7, 2012, was
16   new evidence which could not have been discovered prior to trial
17   by due diligence.   To prove this allegation, Appellants pointed to
18   the Declaration of Robert Duzey, their counsel in the state court
19   proceedings, filed on November 14, 2012, the same date as the
20   trial in bankruptcy court.   In that Declaration, Mr. Duzey
21   declared that, while a state court default judgment against the
22   Debtors should be forthcoming, it had not yet been entered.
23   Attached to the declaration was a copy of the state court docket
24   printed the day before, November 13, 2012.   Appellants asserted to
25   the bankruptcy court that had the default judgment been entered,
26   its fraud findings would be entitled to preclusive effect, likely
27   resulting in a judgment in their favor in the adversary
28   proceeding, making this newly discovered evidence highly relevant.

                                     -4-
 1        The bankruptcy court denied Appellants’ motion the following
 2   day, January 10, 2013, in an order entered without a hearing.      On
 3   January 14, 2013, the bankruptcy court entered a judgment in
 4   Debtors’ favor, in which it concluded that Appellants failed to
 5   prove the elements for an exception to discharge under
 6   § 523(a)(2), (a)(4), and (a)(6).
 7        On January 24, 2013, Debtors filed timely appeals of the
 8   Order Denying Motion for New Trial on the Basis of Newly
 9   Discovered Evidence, and the Judgment.     The Panel ordered the
10   appeals consolidated on March 29, 2013.
11                               JURISDICTION
12        The bankruptcy court had jurisdiction over the adversary
13   proceeding under 28 U.S.C. §§ 1334 and 157(b)(2)(I).    We have
14   jurisdiction under 28 U.S.C. § 158.
15                             ISSUE ON APPEAL
16        Whether the bankruptcy court erred in denying Appellants’
17   Motion for New Trial and granting a judgment in Debtors’ favor.
18                            STANDARD OF REVIEW
19        “We review a [bankruptcy] court’s order denying a motion for
20   a new trial made on the ground of newly discovered evidence for
21   abuse of discretion.”   United States v. Hinkson, 585 F.3d 1247,
22   1259 (9th Cir. 2009) (en banc) (quoting United States v. Reyes-
23   Alvarado, 963 F.2d 1184, 1188 (9th Cir. 1992)).
24        A bankruptcy court abuses its discretion if its decision is
25   based on an incorrect legal rule, or if its findings of fact were
26   illogical, implausible, or without support in the record. Hinkson,
27   585 F.3d at 1262.
28

                                     -5-
 1                                DISCUSSION
 2        A trial court may grant a motion to alter or amend a judgment
 3   under Civil Rule 59(e) where the moving party has established
 4   “(1) manifest error of fact, (2) manifest error of law, or
 5   (3) newly discovered evidence.”    Hale v. U.S. Trustee
 6   (In re Basham), 208 B.R. 926, 934 (9th Cir. BAP 1997), aff’d,
 7   152 F.3d 924 (9th Cir. 1998).   In this appeal, Appellants assert
 8   the presence of newly discovered evidence, and contend that the
 9   evidence is of such magnitude that it warrants a new trial.     To
10   establish that the bankruptcy court abused its discretion in
11   denying the motion for a new trial based upon newly discovered
12   evidence, Appellants must demonstrate: “(1) the evidence was
13   discovered after trial, (2) the exercise of due diligence would
14   not have resulted in the evidence being discovered at an earlier
15   stage, and (3) the newly discovered evidence is of such magnitude
16   that production of it earlier would likely have changed the
17   outcome of the case.”   Defenders of Wildlife v. Bernal, 204 F.3d
18   920, 929 (9th Cir. 2000).
19        As to the first Bernal factor, the record supports a finding
20   that Appellants discovered the new evidence, the default judgment
21   against Debtors, after the trial.       The day before trial,
22   Appellants’ counsel had examined the docket of the state court
23   action and determined that no judgment against Debtors had yet
24   been entered.   Moreover, it seems clear from the comments of
25   counsel for the parties at trial that they were both unaware that
26   the default judgment had been entered against Debtors
27   individually.   There is no evidence in our record to show when,
28   exactly, the parties actually received notice of the default

                                       -6-
 1   judgment entered against Debtors individually, but it clearly did
 2   not occur prior to trial.
 3        The second factor is also met.     Counsel for Appellants had
 4   not received a copy of the signed default judgment in the mail,
 5   nor did it appear on the state court’s docket; indeed, it still
 6   does not appear on that docket.    Thus, there was no reason to
 7   believe the judgment had been entered against Debtors.
 8        Application of the third factor is more complex.    That factor
 9   instructs us to consider whether the newly discovered evidence was
10   of such magnitude that, had it been discovered earlier, the
11   outcome of the case would likely have been different.    If the
12   bankruptcy court would have been compelled to give preclusive
13   effect to the default judgment concerning Debtors’ alleged fraud,
14   this element would very likely be met.    But we conclude that the
15   bankruptcy court was not required to give the default judgment
16   preclusive effect.
17        The doctrine of collateral estoppel4 applies in
18   dischargeability proceedings to preclude the relitigation of state
19   court findings relevant to exceptions to discharge.    Harmon v.
20   Kobrin (In re Harmon), 250 F.3d 1240, 1245 (9th Cir. 2001); T & D
21   Moravits & Co. v. Munton (In re Munton), 352 B.R. 707, 712 (9th
22   Cir. BAP 2006).   Under the Full Faith and Credit Act,5 we apply
23
          4
             We recognize that the preferred term is “issue
24   preclusion,” rather than collateral estoppel. However, since the
     parties and the other courts cited here employ the latter term, we
25   will also do so.
          5
26           The Full Faith and Credit Act requires federal courts to
     give state judicial proceedings “the same full faith and credit
27   . . . as they have by law or usage in the courts of [the] State
     . . . from which they are taken.” 28 U.S.C. § 1738. In practical
28                                                        (continued...)

                                       -7-
     the preclusion law of the state in which the judgment originates.
 1
     In re Harmon, 250 F.3d at 1245; In re Munton, 352 B.R. at 712.
 2
     Under California law, five threshold requirements must be met in
 3
     order for issue preclusion to apply:
 4
          First, the issue sought to be precluded from
 5        relitigation must be identical to that decided in a
          former proceeding. Second, this issue must have been
 6        actually litigated in the former proceeding. Third, it
          must have been necessarily decided in the former
 7        proceeding. Fourth, the decision in the former
          proceeding must be final and on the merits. Finally,
 8        the party against whom preclusion is sought must be the
          same as, or in privity with, the party to the former
 9        proceeding.
10   In re Harmon, 250 F.3d at 1245 (citing Lucido v. Super. Ct.,
11   51 Cal.3d 335, 337 (1990)).   The party asserting collateral
12   estoppel bears the burden of proof on each of these requirements.
13   In re Harmon, 250 F.3d at 1245.
14        In the state court complaint, Appellants alleged that Debtors
15   committed actual fraud.   Thus, for purposes of § 523(a)(2)(A), the
16   first criterion is met.   This is not the case for § 523(a)(4) and
17   (a)(6), as there were no allegations in the state court complaint
18   that Debtors were fiduciaries, nor that they willfully and
19   maliciously injured Appellants.
20        With regard to the second requirement, it is settled under
21   California law that a default judgment fulfills the criterion
22   requiring that the issues be actually litigated in the earlier
23   proceeding:
24        [A default judgment is] conclusive to the issues
          tendered by the complaint as if it had been rendered
25
26        5
           (...continued)
     terms, this act requires federal courts to apply the res judicata
27   rules of a particular state to judgments issued by courts of that
     state. Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518,
28   519 (1986).

                                       -8-
          after answer filed and trial had on the allegations
 1        denied by the answer. . . . Such a judgment is res
          judicata as to all issues aptly pleaded in the complaint
 2        and defendant is estopped from denying in a subsequent
          action any allegations contained in the former
 3        complaint.
 4   Younie v. Gonya (In re Younie), 211 B.R. 367, 375 (9th Cir. BAP
 5   1997) (citing In re Moore, 186 B.R. 962, 971 (Bankr. N.D.Cal.
 6   1995) (quoting Fitzgerald v. Herzer, 78 Cal.App. 2d 127, 129
 7   (1947))).6   Thus, in California, a default judgment satisfies the
 8   “actually litigated” requirement for the application of collateral
 9   estoppel.    In re Younie, 211 B.R. at 375 (citing Lake v. Capps
10   (In re Lake), 202 B.R. 751, 757 & n.6 (9th Cir. BAP 1996); Green
11   v. Kennedy (In re Green), 198 B.R. 564, 566 (9th Cir. BAP 1996)).
12   The third criterion is also met, as the issue of actual fraud was
13   necessarily decided according to the allegations of the complaint.
14        As to the fourth requirement, a default judgment is “final”
15   at the conclusion of the sixty-day appeal period.   McKee v. Nat’l
16   Union Fire Ins. Co., 15 Cal. App.4th 282, 289 (1993) (“A judgment
17   is not ‘final’ for res judicata purposes until the appeal is
18   concluded or the time within which to appeal has passed”); Cal.
19   Rules of Ct., Rule 8.104.   Thus, the default judgment became
20   final at the earliest on January 6, 2013, three days before
21   Appellants filed their motion for new trial, although it was not
22   final when the bankruptcy court conducted its trial.
23        The parties in the state court and the bankruptcy court are
24   the same for purposes of the fifth requirement.
25        It would appear, then, aside from the question of the
26        6
             We observe in passing, however, that California is in the
27   minority, and most states do not afford preclusive effect to
     default judgments. See Murray v. Alaska Airlines, Inc., 522 F.3d
28   920, 924 (9th Cir. 2008)(citing Restatement (Second) of Judgments
     § 27, cmt. e).

                                      -9-
     finality of the judgment against Debtors, that the default
 1
     judgment could have been afforded preclusive effect in the
 2
     dischargeability proceeding.    The bankruptcy court seemed to
 3
     acknowledge this at the trial, in a colloquy with counsel:
 4
          GOLDBERG (Debtors’ counsel): What I would expect is if
 5        there is a fraud judgment, which might even be used as
          collateral estoppel in this Court —
 6
          THE COURT: Oh, it would be if – I’ve read their papers
 7        here — if the judge signs that, there would be a pretty
          good chance of it.
 8
 9   Trial Tr. 9:20-25, November 14, 2012.
10        However, even if collateral estoppel otherwise would be
11   available to a bankruptcy court, under both federal bankruptcy law
12   and California law, the bankruptcy court retains discretion
13   whether to apply it, because “issue preclusion is not applied
14   automatically or rigidly, and courts are permitted to decline to
15   give issue preclusive effect to prior judgments in deference of
16   countervailing considerations of fairness.”     In re Lopez, 367 B.R.
17   99, 108 (9th Cir. BAP 2007).    Put another way, even if all five
18   requirements are met, California courts will give preclusive
19   effect to a judgment “only if application of preclusion furthers
20   the public policies underlying the doctrine.”     In re Harmon,
21   250 F.3d at 1245.   When asked to give a judgment preclusive
22   effect, the trial court should balance “the need to limit
23   litigation against the right of a fair adversary proceeding in
24   which a party may fully present the facts.”     Id. (quoting 1 Ann
25   Taylor Schwing, CAL. AFFIRMATIVE DEFENSES 2d § 15:8 (2006)); see also
26   Direct Shopping Network, LLC, 206 Cal. App. 4th 1551, 1562 (2012)
27   (quoting Smith v. ExxonMobil Oil Corp. 153 Cal. App. 4th 1407,
28   1414 (2007)) (“[E]ven where the technical requirements are all

                                      -10-
 1   met, the [collateral estoppel] doctrine is to be applied ‘only
 2   where such application comports with fairness and sound public
 3   policy.’”).   As this Panel has noted, “the preferable approach
 4   . . . in the federal courts is not to preclude the use of
 5   offensive collateral estoppel, but to grant trial courts broad
 6   discretion to determine when it should be applied.”   In re Lopez,
 7   367 B.R. at 107-08 (quoting Parklane Hosiery Co. v. Shore,
 8   439 U.S. 322, 331 & nn.14-16 (1979)).
 9        Here, while the bankruptcy court acknowledged that the
10   default judgment could potentially be given preclusive effect, it
11   instead exercised its discretion and declined to do so in favor of
12   conducting a live trial.   The court repeatedly expressed a dislike
13   for default judgments, stating “this is a very good example of why
14   I personally do not like default judgments.    Because you only see
15   one side, and it’s fairly easy to get them.”   Trial Tr. 121:18-20.
16   The court reiterated this theme in the order denying Appellants’
17   motion for a new trial:
18        It is true that at the time of trial, this Court and the
          parties were unaware of the November 7, 2012 default
19        judgment of the superior court, but it would be an
          incredible injustice to grant the motion for a new
20        trial. Although the circumstances are unusual, this is
          a court of equity and, as stated above, it would be an
21        incredible injustice to give preclusive effect to the
          state court judgment. Default judgments are disfavored
22        for many reasons, including that such a judgment is a
          one-sided story without an opportunity for defendants to
23        tell their side of the story. Before us is a classic
          example that given a full and fair trial, the truth will
24        prevail.
25        The bankruptcy court’s decision not to give preclusive effect
26   to the state court judgment under the circumstances of this case
27   is consistent with longstanding Ninth Circuit policy that default
28   judgments are disfavored because “cases should be decided upon

                                     -11-
 1   their merits whenever reasonably possible.”   Westchester Fire Ins.
 2   Co. v. Mendez, 585 F.3d 1183, 1189 (9th Cir. 2009).   In commenting
 3   on application of California collateral estoppel, the Ninth
 4   Circuit recognized that whether the parties had the opportunity to
 5   fully litigate a dispute could be considered by the bankruptcy
 6   court in the decision to apply collateral estoppel:
 7        Under California law, the presence or absence of a full
          and fair opportunity to litigate usually is relevant not
 8        to the threshold inquiry, but rather to the public
          policy inquiry[.]
 9
10   In re Harmon, 250 F.3d at 1247 n.6 (internal citations omitted).
11        The bankruptcy court concluded that it would be unjust to
12   give preclusive effect to the newly discovered state court default
13   judgment under the circumstances.   The bankruptcy court previously
14   conducted a trial on the merits which included evidence and
15   testimony, and after which it issued oral findings and
16   conclusions.   Indeed, in its oral findings of fact and conclusions
17   of law, the bankruptcy court repeatedly stated there was no
18   evidence “whatsoever” of fraud, and found that Appellants “[had]
19   not even come close to meeting” the burden of proof required.
20   Trial Tr. 122:8-9, 14; 123:7-9, 16-18; 124:11-13.   Given these
21   facts, the bankruptcy court did not abuse its discretion when it
22   declined to give preclusive effect to a default judgment
23   discovered only post-trial.
24        Accordingly, we conclude that the existence of a state court
25   default judgment against Debtors would not constitute evidence of
26   such magnitude that it would change the outcome of the case.
27   Appellants’ request for an exception to discharge was rejected
28   after a trial on the merits.   Moreover, even if the bankruptcy

                                     -12-
 1   court had given preclusive effect to the default judgment, such
 2   would not guarantee a victory for Appellants.   Rather, the
 3   bankruptcy court would have had to consider whether all of the
 4   required elements of § 523(a) had been met through the default
 5   judgment.   In other words, even if given preclusive effect, the
 6   default judgment may have limited the issues for trial, but it
 7   would not necessarily have dictated the outcome.
 8        In short, because dischargeability is unique to the
 9   bankruptcy arena, and because in California application of the
10   preclusion doctrine must comport with overall fairness, the
11   bankruptcy court had the discretion to deny preclusive effect to
12   the state court default judgment under these facts.   Since
13   Appellants failed to establish the preclusive effect of the state
14   court judgment, they failed in their burden of proof to establish
15   an exception to discharge under § 523(a)(2)(A).
16                                CONCLUSION
17        We AFFIRM the bankruptcy court’s order denying Appellants’
18   motion for a new trial and the judgment.
19
20
21
22
23
24
25
26
27
28

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