                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 30 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


In re: JAMES LARRY SACCHERI;                     No. 12-60082
JUDITH ANN SACCHERI,
                                                 B.A.P. No. 12-1269-JuKiD
         Debtors,
________________________
                                                 MEMORANDUM*
JAMES LARRY SACCHER,

            Appellant,

v.


ST. LAWRENCE VALLEY DAIRY;
JUDITH ANN SACCHERI,

            Appellees.



                   Appeal from the Bankruptcy Appellate Panel
                               for the Ninth Circuit
             Jury, Kirscher, and Dunn, Bankruptcy Judges, Presiding

                     Argued and Submitted February 10, 2015
                            San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: PAEZ and BERZON, Circuit Judges, and EZRA, District Judge.**

      James Saccheri appeals from the Bankruptcy Appellate Panel’s (“BAP”)

judgment affirming the bankruptcy court’s order finding that Saccheri owed the

St. Lawrence Valley Dairy (“Dairy”) a nondischargeable debt in the amount of

$492,006.57. We have jurisdiction under 28 U.S.C. §§ 1291 and 1295. We

conduct “an independent review of the bankruptcy court’s decision without

deferring to the BAP,” In re Sabban, 600 F.3d 1219, 1221 (9th Cir. 2010) (internal

quotation marks omitted), applying the same standard of review that the BAP

applied to the bankruptcy court’s ruling. In re Boyajian, 564 F.3d 1088, 1090

(9th Cir. 2009). We affirm.

      Saccheri first contends that the bankruptcy court clearly erred in finding that

the Dairy justifiably relied on Saccheri’s representations concerning the funds he

pocketed. Whether the Dairy justifiably relied on Saccheri’s representations is a

question of fact reviewed for clear error. In re Deitz, 760 F.3d 1038, 1051 (9th Cir.

2014). In making its determination, the bankruptcy court relied heavily on the live

testimony of Saccheri and the Dairy’s other board members. Where the

bankruptcy court’s findings are based on the relative credibility of witnesses, they



       **
             The Honorable David A. Ezra, District Judge for the U.S. District
Court for the District of Hawaii, sitting by designation.

                                          2
are entitled to deference. Id. The bankruptcy court did not clearly err in finding

that the Dairy justifiably relied on Saccheri’s representations.

        Saccheri next contends that the BAP erred in determining that the applicable

statute of limitations did not bar recovery of any debt Saccheri owed to the Dairy.

Under California law, the Dairy had three years to bring its fraud action, and the

cause of action did not accrue until 2007. See Cal. Civ. Proc. Code § 338(d).

Based on the witnesses’ testimony, the bankruptcy court found that the Dairy’s

other board members did not discover Saccheri’s financial misconduct until 2007.

Again, the bankruptcy court’s findings are entitled to deference. Therefore, the

statute of limitations had not yet run when the Dairy filed suit against Saccheri in

2009.

        Finally, Saccheri contends that the bankruptcy court clearly erred in finding

that Saccheri caused $492,006.57 in damages to the Dairy. Reversal of a

bankruptcy court’s damages award “is only warranted if ‘the reviewing court on

the entire evidence is left with the definite and firm conviction that a mistake has

been committed.’” Anderson v. Bessmer City, 470 U.S. 564, 573 (1985).

Reviewing the record, we conclude that the bankruptcy court’s damages finding

did not constitute clear error.

        AFFIRMED.


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