                                                               FILED
                                                                APR 27 2017
 1                         NOT FOR PUBLICATION
                                                          SUSAN M. SPRAUL, CLERK
 2                                                            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-16-1281-KuFL
                                   )
 6   RONALD DAVID TRUPPA, JR.,     )      Bk. No.     1:15-bk-11029-MT
                                   )
 7                   Debtor.       )      Adv. No.    1:15-ap-01103-MT
     ______________________________)
 8                                 )
     TIFANIE JOUDEH,               )
 9                                 )
                     Appellant,    )
10                                 )
     v.                            )      MEMORANDUM*
11                                 )
     RONALD DAVID TRUPPA, JR.,     )
12                                 )
                     Appellee.     )
13   ______________________________)
14                   Argued and Submitted on March 23, 2017
                             at Pasadena, California
15
                             Filed – April 27, 2017
16
              Appeal from the United States Bankruptcy Court
17                for the Central District of California
18        Honorable Maureen A. Tighe, Bankruptcy Judge, Presiding
19   Appearances:     Michael Ross Lewis of Lewis & Ham, LLP argued for
                      appellant; John W. Sullivan argued for appellee.
20
21   Before: KURTZ, FARIS and LAFFERTY, Bankruptcy Judges.
22
23
24
25
26        *
           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.
28   See 9th Cir. BAP Rule 8024-1.
 1                              INTRODUCTION
 2        Tifanie Joudeh appeals from a summary judgment in favor of
 3   chapter 71 Debtor Ronald David Truppa, Jr. disposing of her
 4   nondischargeability and objection to discharge claims.
 5        Joudeh’s two-page declaration filed with her summary
 6   judgment opposition was the only “evidence” she submitted in
 7   support of her claims under §§ 523(a)(2)(A) and 523(a)(6), and
 8   the story she told in her declaration was entirely discredited by
 9   her own emails, which she did nothing to challenge when Truppa
10   submitted them in support of his summary judgment motion.
11        As for her objection to discharge claim under
12   § 727(a)(4)(A), unlike the bankruptcy court, we are persuaded
13   that the facts in the summary judgment record, when viewed in the
14   light most favorable to Joudeh, were sufficient to permit a
15   reasonable trier of fact to find in her favor on all of the
16   elements necessary for a § 727(a)(4)(A) claim.   This does not
17   mean that Joudeh is likely to win at trial on this claim.     It
18   only means that, given the facts in the summary judgment record,
19   Joudeh’s § 727(a)(4)(A) claim should have survived Truppa’s
20   summary judgment motion.
21        Accordingly, we AFFIRM the portion of the bankruptcy court’s
22   summary judgment disposing of Joudeh’s §§ 523(a)(2)(A) and
23   523(a)(6) claims, and we REVERSE and REMAND for further
24   proceedings on Joudeh’s § 727(a)(4)(A) claim.
25
          1
26         Unless specified otherwise, all chapter and section
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
27   all "Rule" references are to the Federal Rules of Bankruptcy
     Procedure, Rules 1001-9037. All "Civil Rule" references are to
28   the Federal Rules of Civil Procedure.

                                     2
 1                                  FACTS
 2        We rely on the uncontroverted facts in the record.    Truppa
 3   is one of the founders, officers and directors of the Santa
 4   Catalina Film Festival, a non-profit public benefit corporation
 5   formed in 2011.   The Festival holds an annual film festival on
 6   Catalina Island, off the coast of Southern California.    The
 7   Festival’s activities have always included, among other things,
 8   seminars regarding film production and marketing, and pitch
 9   sessions during which attendees could submit creative ideas and
10   receive immediate feedback from film industry representatives.
11   The seminar and pitch session aspects of the Festival changed
12   names from time to time.   For the 2013 Festival, they were known
13   as the Catalina Film & TV Market and for the 2014 Festival they
14   were known as the Catalina Film & TV Summit.
15        For the 2011 Festival, Joudeh and her law firm provided pro
16   bono legal services to the Festival and also co-sponsored a
17   gathering known as the Mimosa Mixer.    In return for those
18   contributions, Joudeh’s law firm received advertising and
19   acknowledgments in Festival publications.
20        Joudeh’s role in the Festival was much the same in 2012, but
21   in 2013 her role began to change.    At a meeting in June 2013,
22   Joudeh and Truppa met with Gena Vazquez – a volunteer who served
23   as director of the Festival’s seminars in 2012 and every year
24   thereafter.   At the June 2013 meeting, the parties apparently
25   discussed Joudeh helping Vazquez recruit panelists for the
26   September 2013 Festival’s Catalina Film & TV Market.
27        According to Truppa, at the June 2013 meeting and in follow
28   up email correspondence, Joudeh never proposed any sort of

                                      3
 1   personal compensation or any sort of personal benefits in
 2   exchange for her help in recruiting industry executives to
 3   participate in the Festival’s September 2013 seminars and pitch
 4   sessions.    Instead, she asked the Festival to cover the cost of
 5   her firm’s co-sponsored party and to make sure there were plenty
 6   of perquisites for the participating industry executives she
 7   recruited.   The emails corroborate Truppa’s account:
 8        [Joudeh:] So, I’m jumping on this ASAP. The only thing
          I ask for is that if I spend this much time putting
 9        this together, that I (or Steff) don't have to come out
          of pocket for the Soiree. I will still pay for the
10        invite to be designed and printed and will try to get
          the same champagne sponsor again though.
11
          [Truppa:] We will cover the Soiree - Just to clarify
12        (Rental property/space, decorations/bar setups, alcohol
          sponsors)? Anything else I'm missing?
13
          [Joudeh:] **MUSIC!! Also, I told X that food is a
14        necessity (light apps like cheese/crackers, chips/dips
          (NICE dips), fruit, cold meats ... especially if we are
15        going to take the late eve slot.
16        [Joudeh:] The main item, which I know you know, is that
          we cover everything for the execs while they are on the
17        island. Dinners/Lunches/Transportation/Liaison
          contacts, etc.
18
          [Truppa:] So are you including this in Soiree Cost? We
19        would do this with/for any of our panel guests as well,
          which now their presence will be part of a festival
20        component (Market), not just the Soiree. Is that what
          you’re saying/asking?
21
          [Joudeh:]**No, I was asking you to verify that once my
22        guys hit the port in LA, everything is going to be
          taken care of for them. Food, transportation on the
23        island, housing, liaison services, “fun time”
          (discussed below) etc.
24
25   Truppa Decl. (June 28, 2016) at Ex. 2 (emphasis added).
26        Joudeh has told a much different story.    According to her,
27   in August 2013, she and Truppa entered into an oral agreement
28   pursuant to which they would be partners in a new business known

                                       4
 1   as the Catalina Film & TV Summit.    Joudeh claimed that, in
 2   accordance with this agreement, the first Summit was held on
 3   September 18 and 19, 2013, and she used her contacts and
 4   proprietary email database of 16,000 people to promote the Summit
 5   and recruit industry executives to serve as Summit panelists.
 6   She also claimed that she coordinated schedules and
 7   transportation for the participating industry executives,
 8   prepared panel schedules, topics and panelists, and herself
 9   participated in Summit panels, pitches and other events.    She
10   further claimed that she introduced Truppa to her industry
11   contacts.
12        In exchange for these services, Joudeh maintains, Truppa
13   promised her 15% of Summit net profits, co-management of the
14   Summit, the title and position of Summit Director, a percentage
15   commission of any Summit sponsorship funds, a salary to replace
16   the percentage commission as soon as the Summit had sufficient
17   funds to pay her a salary, and 20% ownership of the company
18   owning Summit.
19        Joudeh’s story of an August 2013 agreement is contradicted
20   by emails the parties exchanged after the September 2013 summit,
21   in early November 2013.   In them, Joudeh refers to her “deal with
22   the fest” and makes it clear – in her own words – that this deal
23   was just being proposed by her and had not been agreed to or
24   promised by Truppa.   Also, there is no mention of any prior
25   proposals, negotiations, agreements or promises concerning
26   Joudeh’s proposed deal.
27        Another series of emails – from the spring of 2014 –
28   clearly reflect that the parties still had not struck a deal and

                                      5
 1   that they still were discussing proposed deal terms.   Indeed,
 2   Joudeh’s emails express frustration over the lack of progress on
 3   specific terms: the fact that she initially thought the parties
 4   had reached an “understanding on” some of the individual deal
 5   terms only to find out later that Truppa had taken those terms
 6   “off the table.”   This is the language of negotiation and not the
 7   language of a promise or an agreement.
 8        Shortly thereafter, in or around April 2014, Truppa rejected
 9   Joudeh’s “final and best offer” and the parties terminated their
10   negotiations.   In August 2014, Joudeh filed a lawsuit in the Los
11   Angeles County Superior Court against the Festival and Truppa,
12   and in March 2015, Truppa commenced his chapter 7 bankruptcy
13   case.2   In Truppa’s bankruptcy case, Joudeh initiated an
14   adversary proceeding seeking to except from discharge her
15   disputed claim against him and objecting to his receipt of a
16   discharge from any of his debts.
17        The operative version of Joudeh’s complaint – her second
18   amended complaint – states claims for relief under
19   §§ 523(a)(2)(A), 523(a)(6) and 727(a)(4)(A).   Joudeh’s
20   §§ 523(a)(2)(A) and 523(a)(6) claims were based on her
21   allegations that Truppa, during the summer of 2013, fraudulently
22   entered into a binding agreement with her without any intention
23
          2
24         The parties’ excerpts of record only include a fraction of
     the materials in the bankruptcy court’s summary judgment record.
25   Notwithstanding their omissions, we have exercised our discretion
26   to review the full record, which is available to us via the
     bankruptcy court’s electronic docket and the document images
27   attached thereto. See Franklin High Yield Tax–Free Income Fund
     v. City of Stockton, Cal. (In re City of Stockton, Cal.),
28   542 B.R. 261, 265 n.2 (9th Cir. BAP 2015).

                                        6
 1   to ever perform his part of the agreement.   Joudeh’s
 2   § 727(a)(4)(A) claim was based on her allegations that Truppa
 3   fraudulently omitted certain assets, liabilities and income from
 4   his bankruptcy schedules.
 5        Truppa filed a summary judgment motion, which the bankruptcy
 6   court granted.   The bankruptcy court pointed out that the only
 7   evidence Joudeh submitted in support of her § 523 claims was her
 8   own two-page declaration, which the court described as
 9   conclusory.   The bankruptcy court further explained that Joudeh
10   had done nothing to counter Truppa’s email evidence that the
11   parties were discussing terms for a proposed agreement in
12   November of 2013 – months after Joudeh alleged the agreement had
13   been entered into.   The bankruptcy court additionally observed
14   that the spring 2014 emails (again, which Joudeh did nothing to
15   counter) further contradicted Joudeh’s claim that the parties had
16   reached a final, binding agreement in the summer of 2013.
17   Indeed, the court noted, Joudeh’s own statements in the emails
18   acknowledge that no deal had been reached between the parties.
19        In ruling on Joudeh’s § 727(a)(4)(A) claim, the bankruptcy
20   court determined that there was no proof that Truppa actually
21   owned the assets he allegedly omitted.   Nor was there any proof
22   that he received any undisclosed income.   As for omitted
23   liabilities, the only omitted liability Joudeh complained of was
24   Joudeh’s own disputed claim.   The bankruptcy court noted that,
25   while Joudeh’s claim was not listed on Truppa’s initial Schedule
26   F, Joudeh’s lawsuit was listed in Truppa’s initial statement of
27   financial affairs.   The court further noted that Joudeh’s claim
28   was added to Truppa’s amended Schedule F within two days of his

                                      7
 1   § 341(a) meeting of creditors.
 2        In addition to the general lack of evidence of omitted
 3   assets and liabilities, the bankruptcy court alternately held
 4   that any such omitted assets and liabilities were immaterial and
 5   were not knowingly or fraudulently concealed.
 6        The bankruptcy court entered summary judgment in favor of
 7   Truppa on August 23, 2016, and Joudeh timely appealed.
 8                                JURISDICTION
 9        The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
10   §§ 1334 and 157(b)(2)(I) and (J), and we have jurisdiction under
11   28 U.S.C. § 158.
12                                    ISSUE
13        Did the bankruptcy court commit reversible error when it
14   granted summary judgment in favor of Truppa?
15                           STANDARD OF REVIEW
16        We review de novo the bankruptcy court’s summary judgment
17   ruling.   Salven v. Galli (In re Pass), 553 B.R. 749, 756 (9th
18   Cir. BAP 2016).
19        When we review a matter de novo, we give no deference to the
20   bankruptcy court’s ruling.    Ulrich v. Schian Walker, P.L.C.
21   (In re Boates), 551 B.R. 428, 433 (9th Cir. BAP 2016); Barnes v.
22   Belice (In re Belice), 461 B.R. 564, 572 (9th Cir. BAP 2011).
23                                 DISCUSSION
24   1.   Summary Judgment Standards
25        Summary judgment should be granted when there are no genuine
26   issues of material fact and when the movant is entitled to
27   prevail as a matter of law.    Civil Rule 56 (made applicable in
28   adversary proceedings by Rule 7056); Celotex Corp. v. Catrett,

                                        8
 1   477 U.S. 317, 322–23 (1986).       Material facts are those that may
 2   affect the outcome of the case under applicable substantive law.
 3   Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).      And
 4   issues are genuine only if the trier of fact reasonably could
 5   find in favor of the nonmoving party on the evidence presented.
 6   Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 1997).
 7        In fact, Civil Rule 56 “mandates” entry of summary judgment
 8   when, after adequate time for discovery, the nonmoving party
 9   fails to present evidence in response to the summary judgment
10   motion sufficient to establish an essential element of that
11   party’s case, on which that party will bear the burden of proof
12   at trial.   Celotex, 477 U.S. at 322-23.     As the Supreme Court in
13   Celotex explained, “In such a situation, there can be ‘no genuine
14   issue as to any material fact,’ since a complete failure of proof
15   concerning an essential element of the nonmoving party’s case
16   necessarily renders all other facts immaterial.”      Id.
17        Thus, while the movant has the initial burden of identifying
18   the portions of the record demonstrating the absence of a genuine
19   issue of material fact, id. at 323, once the movant has come
20   forward with uncontroverted facts entitling it to relief, the
21   burden then shifts to the nonmovant to demonstrate that there are
22   specific and genuine issues of material fact necessitating a
23   trial.   Id. at 324.    The nonmovant must go beyond the pleadings
24   and introduce or point to specific evidence in the record
25   supporting its position.     Id.
26        When considering summary judgment, we must view all facts
27   genuinely in dispute “in the light most favorable to the
28   non-moving party.”     Scott v. Harris, 550 U.S. 372, 380 (2007).

                                          9
 1   And we must draw all reasonable inferences in the nonmoving
 2   party’s favor.   Id. at 378.   Nonetheless, “[e]ven in cases where
 3   elusive concepts such as motive or intent are at issue, summary
 4   judgment may be appropriate if the nonmoving party rests merely
 5   upon conclusory allegations, improbable inferences, and
 6   unsupported speculation.”   Gertsch v. Johnson & Johnson Fin.
 7   Corp. (In re Gertsch), 237 B.R. 160, 165 (9th Cir. BAP 1999)
 8   (quoting Medina–Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8
 9   (1st Cir. 1990)).
10   2.   The Bankruptcy Court’s § 523(a)(2)(A) Ruling
11        Section 523(a)(2)(A) excepts from discharge debts “for
12   money, property, services . . . to the extent obtained by . . .
13   false pretenses, a false representation, or actual fraud . . . .”
14   As set forth in her second amended complaint, Joudeh based her
15   § 523(a)(2)(A) claim on a theory of promissory fraud, which
16   generally requires:
17        (1) a promise made regarding a material fact without
          any intention of performing it; (2) the existence of
18        the intent not to perform at the time the promise was
          made; (3) intent to deceive or induce the promisee to
19        enter into a transaction; (4) reasonable reliance by
          the promisee; (5) nonperformance by the party making
20        the promise; and (6) resulting damage to the promisee.
21   Behnke v. State Farm Gen. Ins. Co., 127 Cal. Rptr. 3d 372, 380
22   (Cal. App. 2011).3
23
          3
24         On the one hand, California law generally controls whether
     Truppa has any liability to Joudeh. See Hassanally v. Republic
25   Bank (In re Hassanally), 208 B.R. 46, 49 (9th Cir. BAP 1997)
26   (citing Butner v. United States, 440 U.S. 48, 54–55 (1979)). On
     the other hand, the Restatement (Second) of Torts typically
27   informs us as to what constitutes nondischargeable fraud. See
     Field v. Mans, 516 U.S. 59, 68–70 (1995); Apte v. Romesh Japra,
28                                                      (continued...)

                                      10
 1        It is axiomatic that there can be no claim for promissory
 2   fraud without evidence of a promise made.   See generally
 3   Restatement (Second) of Torts § 530(1), cmt. c (1976) (“Since a
 4   promise necessarily carries with it the implied assertion of an
 5   intention to perform it follows that a promise made without such
 6   an intention is fraudulent and actionable in deceit.”); Lazar v.
 7   Superior Court, 49 Cal. Rptr. 2d 377, 381 (Cal. 1996) (“A promise
 8   to do something necessarily implies the intention to perform;
 9   hence, where a promise is made without such intention, there is
10   an implied misrepresentation of fact that may be actionable
11   fraud.”).
12        The bankruptcy court, here, correctly noted that Joudeh’s
13   statements in her own emails flatly contradicted her assertions
14   that Truppa promised her certain entitlements in exchange for her
15   services.   In this respect, this appeal reminds us of Scott v.
16   Harris, supra.   The Scott court held:
17        When opposing parties tell two different stories, one
          of which is blatantly contradicted by the record, so
18        that no reasonable jury could believe it, a court
          should not adopt that version of the facts for purposes
19        of ruling on a motion for summary judgment.
20   Scott, 550 U.S. at 380.   In Scott, the Supreme Court was
21   presented with a video depicting a car chase that was
22   fundamentally at odds with the plaintiff’s version of events.
23   Id. at 379.   The plaintiff in Scott contended that Officer
24   Scott’s actions in intentionally bumping his car near the end of
25
          3
26         (...continued)
     M.D., F.A.C.C., Inc. (In re Apte), 96 F.3d 1319, 1324 (9th Cir.
27   1996). Thus, we look to both California law and the Restatement
     for guidance in resolving the parties’ dispute regarding Truppa’s
28   alleged debt to Joudeh and its potential nondischargeability.

                                     11
 1   the car chase forced him from the road, caused him grievous
 2   bodily injury and constituted an excessive use of force.     Id. at
 3   375.    On review to the Eleventh Circuit Court of Appeals, the
 4   Eleventh Circuit affirmed the district court’s denial of Officer
 5   Scott’s motion for summary judgment, opining that, on summary
 6   judgment, the court was obliged to accept the plaintiff’s
 7   conflicting account of the car chase, notwithstanding what the
 8   car chase video showed.    Id. at 375, 378-79, 380-81.
 9          The Supreme Court reversed, explaining that the video “quite
10   clearly” contradicted plaintiff’s version of the car chase and
11   that the plaintiff had not challenged the video as being altered
12   in any way.    Nor did plaintiff argue “that what it depicts
13   differs from what actually happened.”     Id. at 378.   The Supreme
14   Court, more than once, acknowledged the court’s duty to view the
15   facts and make reasonable inferences in the light most favorable
16   to the nonmoving party, id. at 377, 78, but still held that
17   Officer Scott was entitled to summary judgment because the
18   plaintiff’s “version of events is so utterly discredited by the
19   record that no reasonable jury could have believed him.     The
20   Court of Appeals should not have relied on such visible fiction;
21   it should have viewed the facts in the light depicted by the
22   videotape.”    Id. at 380-81.
23          Here, the role of Scott’s videotape is played by Joudeh’s
24   own emails.    Joudeh made no attempt in the bankruptcy court to
25   challenge the authenticity of the emails or to argue that they do
26   not accurately depict the true nature and status of the parties’
27   discussions regarding Joudeh’s role in the Festival and
28   its seminars and pitch sessions.      Nor has she done so on appeal.

                                      12
 1   She simply has told a different story that is at odds with her
 2   own emails – a story which she told in a conclusory, two-page
 3   declaration.
 4        Thus, in keeping with Scott, we hold that Joudeh’s assertion
 5   that Truppa promised her certain entitlements in exchange for her
 6   services was so utterly discredited by her own emails that no
 7   reasonable jury could have believed her.   As a result, Joudeh
 8   failed her summary judgment burden of pointing to evidence in the
 9   record demonstrating an essential element of her promissory fraud
10   claim: the existence of a promise Truppa made with no intent to
11   perform.
12        Perhaps realizing that her promissory fraud claim suffered
13   from a fatal deficiency, Joudeh’s summary judgment opposition,
14   and her appeal brief, also alluded to a different subspecies of
15   fraud – namely fraudulent concealment.   However, Joudeh did not
16   allege fraudulent concealment in her second amended complaint.
17   Moreover, her two-page declaration in opposition to Truppa’s
18   summary judgment motion only made a passing reference to Truppa’s
19   alleged nondisclosure.   According to Joudeh, Truppa never told
20   her that the seminar and pitch session aspects of the Festival
21   were part of a nonprofit organization and that there could be no
22   profits or ownership for her to share in as she had proposed.
23   Joudeh further complains that “[Truppa] continued discussions
24   with me as if there was to be a for-profit business.”
25        Assuming without deciding that Joudeh somehow preserved for
26   appeal her fraudulent concealment claim (even though she never
27   alleged fraudulent concealment in her complaint), this claim
28   suffers from a defect similar to her promissory fraud claim.

                                     13
 1   More specifically, Joudeh did not meet her summary judgment
 2   burden of pointing to facts in the record from which a reasonable
 3   trier of fact could find all of the elements of a fraudulent
 4   concealment claim.
 5        Among other things, a fraudulent concealment claim requires
 6   proof that the defendant had a duty to disclose the information
 7   allegedly concealed.    Restatement (Second) of Torts § 551 (1977);
 8   LiMandri v. Judkins, 60 Cal. Rptr. 2d 539, 543-44 (Cal. 1997);
 9   Hoffman v. 162 North Wolfe LLC, 175 Cal. Rptr. 3d 820, 826-27
10   (Cal. App. 2014).    In the absence of a fiduciary relationship, a
11   duty to disclose typically does not arise unless there exists
12   between the parties a relationship from some sort of business
13   transaction – like that “between seller and buyer, employer and
14   prospective employee, doctor and patient, or parties entering
15   into any kind of contractual agreement.”    Hoffman, 175 Cal. Rptr.
16   3d at 827 (citing LiMandri, 60 Cal. Rptr. 2d at 543).
17        The problem with Joudeh’s fraudulent concealment claim is
18   that the so-called business transaction between Joudeh and Truppa
19   did not advance to a point where Truppa became subject to any
20   duty to disclose.    As pointed out above, Joudeh’s own emails
21   establish that the parties never reached    agreement on Joudeh’s
22   future involvement in the Festival.    Furthermore, Joudeh has not
23   cited any authority establishing that parties involved in
24   contract negotiations that do not result in the parties entering
25   into a contract owe any disclosure duty to one another.    Nor are
26   we aware of any such authority.    Furthermore, Joudeh did not
27   demonstrate (or even allege) any other basis under which a duty
28   to disclose might have arisen.

                                       14
 1        In short, summary judgment was correctly granted against
 2   Joudeh’s § 523(a)(2)(A) claim because there was no evidence in
 3   the record to support essential elements of her two fraud
 4   theories.4
 5   3.   The Bankruptcy Court’s § 727(a)(4)(A) Ruling
 6        Under § 727(a)(4)(A), the court may deny a debtor a
 7   discharge if the debtor “knowingly and fraudulently, in or in
 8   connection with the case . . .     made a false oath or account
 9   . . . .”     The creditor must prove that: “(1) the debtor made a
10   false oath in connection with the case; (2) the oath related to a
11   material fact; (3) the oath was made knowingly; and (4) the oath
12   was made fraudulently.”    Retz v. Samson (In re Retz), 606 F.3d
13   1189, 1197 (9th Cir. 2010).     The principal purpose of
14   § 727(a)(4)(A) is to insure that the trustee and creditors have
15   accurate and complete information to work with without having to
16   conduct costly and time-consuming investigations.     Fogal Legware
17   of Switz., Inc. v. Wills (In re Wills), 243 B.R. 58, 63 (9th Cir.
18   BAP 1999) (citing Aubrey v. Thomas (In re Aubrey), 111 B.R. 268,
19   274 (9th Cir. BAP 1990)).     Thus, omissions in the debtor’s
20   schedules can constitute false oaths for purposes of
21   § 727(a)(4)(A).     Searles v. Riley (In re Searles ), 317 B.R. 368,
22   377 (9th Cir. BAP 2004); In re Wills, 243 B.R. at 62.
23        a.      Omissions
24        Joudeh initially complained of three different types of
25
          4
26         Because Joudeh’s opening appeal brief contains no argument
     pertaining to her § 523(a)(6) claim, we decline to address it.
27   See Christian Legal Soc'y v. Wu, 626 F.3d 483, 485 (9th Cir.
     2010); Brownfield v. City of Yakima, 612 F.3d 1140, 1149 n.4 (9th
28   Cir. 2010).

                                       15
 1   alleged omissions: (1) Truppa did not list her as a creditor in
 2   his initial Schedule F; (2) Truppa did not list as income expense
 3   reimbursements he received from the Festival; and (3) Truppa did
 4   not list as assets certain films he allegedly owned.    On appeal,
 5   Joudeh has focused exclusively on the allegedly omitted films,
 6   and she confirmed at oral argument before this Panel that her
 7   appeal of the bankruptcy court’s § 727(a)(4)(A) ruling was
 8   limited to the issue of the omitted films.    Accordingly, we will
 9   limit our review of the § 727(a)(4)(A) ruling to this issue.
10        To support her allegation that Truppa or his unincorporated
11   sole proprietorship – Truppa Entertainment – owned certain films,
12   Joudeh relied on Truppa’s discovery responses.    In those
13   responses, Truppa made the following rather ambiguous statement
14   in response to Joudeh’s request for admission that he did not
15   list in his bankruptcy schedules any “interest” he had in any
16   films: “Admit with explanation.    I do not have any interest in
17   films with any value.”   In responding to a similar question
18   regarding Truppa not listing any interest Truppa Entertainment
19   might have in any films, Truppa similarly stated: “Admit with
20   explanation.   Truppa Entertainment does not have any interest in
21   films with any value.”   Of course, the phrasing of these two
22   responses suggests, by negative implication, that Truppa and/or
23   his sole proprietorship Truppa Entertainment might have had an
24   ownership interest in some films Truppa considers valueless.
25        In his declaration accompanying his reply brief, Truppa
26   attempted to “clarify” his statement regarding his interest in
27   films: “With respect to what I did and did not list as assets as
28   far as films go, I do not own any interest in any films, and my

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 1   services and [those of] my company Truppa Entertainment have
 2   always been work-for-hire or work-for credit.”
 3        The bankruptcy court determined on the summary judgment
 4   record that there was no evidence from which a reasonable trier
 5   of fact could conclude that either Truppa or his sole
 6   proprietorship Truppa Entertainment owned any films.      While
 7   Truppa’s reply declaration statement is unequivocal and
 8   straightforward by itself, Truppa’s prior discovery responses
 9   clouded the issue.     We recognize that Truppa cannot (and did not
10   need to) prove the negative – his nonownership of any films – and
11   that his ambiguous discovery responses were slim evidence of
12   actionable omissions.      Even so, we are persuaded that a
13   reasonable trier of fact could disbelieve Truppa’s attempts to
14   clarify his prior discovery responses and could infer from those
15   discovery responses some sort of undisclosed film ownership
16   interests.     Even a single omission from the debtor’s schedules
17   may be sufficient to state a claim under the plain language of
18   § 727(a)(4)(A).     See U.S. Tr. v. Stokes (In re Stokes), 451 B.R.
19   44, 85–86 (Bankr. D. Mont. 2011).
20        b.      Materiality
21        Additionally, the bankruptcy court concluded that all of the
22   alleged omissions were immaterial.      In reaching this conclusion,
23   the bankruptcy court seemingly looked at all of the surrounding
24   circumstances and apparently determined that the alleged
25   omissions were insignificant when viewed in the context of the
26   case.     We disagree with the bankruptcy court’s methodology.    The
27   § 727(a)(4)(A) materiality standard is very broad and includes
28   just about any information that has any bearing on the debtor’s

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 1   finances.    As stated by the Ninth Circuit, “A fact is material if
 2   it bears a relationship to the debtor's business transactions or
 3   estate, or concerns the discovery of assets, business dealings,
 4   or the existence and disposition of the debtor's property.”
 5   In re Retz, 606 F.3d at 1196 (internal quotation marks omitted)
 6   (quoting Khalil v. Developers Sur. & Indem. Co. (In re Khalil),
 7   379 B.R. 163, 173 (9th Cir. BAP 2007), aff’d & adopted, 578 F.3d
 8   1167, 1168 (9th Cir. 2009)); see also Garcia v. Coombs
 9   (In re Coombs), 193 B.R. 557, 566 (Bankr. S.D. Cal. 1996)
10   (considering materiality at length and concluding that “there is
11   little that will prove to be immaterial for purposes of required
12   disclosure if it aids in understanding the debtor's financial
13   affairs and transactions”).    Under the prevailing legal standard,
14   we simply cannot say that the allegedly omitted films were
15   immaterial under    § 727(a)(4)(A).
16        c.     Knowingly and Fraudulently
17        In the § 727(a)(4)(A) context, the debtor’s conduct was
18   knowing if he or she acted deliberately or consciously and the
19   debtor’s conduct was fraudulent if (1) the debtor made the false
20   statements or omissions in his or her bankruptcy schedules,
21   (2) knowing that the misstatements or omissions were inaccurate
22   at the time he or she made them, and (3) with the intention and
23   purpose of deceiving his or her creditors.   See In re Khalil,
24   379 B.R. at 173 (citing Roberts v. Erhard (In re Roberts), 331
25   B.R. 876, 884 (9th Cir. BAP 2005), aff’d, 241 F. App’x 420 (9th
26   Cir. 2007)).
27        The debtor's fraudulent intent may be demonstrated by
28   circumstantial evidence and inference, and the court may infer

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 1   fraudulent intent based on a “pattern of falsity.”    In re Wills,
 2   243 B.R. at 62.    “Reckless indifference or disregard for the
 3   truth . . . is not sufficient, alone, to constitute fraudulent
 4   intent.”   In re Retz, 606 F.3d at 1199 (citing In re Khalil,
 5   379 B.R. at 173-75).
 6        Nothing in the record or in Truppa’s alleged nondisclosures
 7   comes anywhere close to rising to the level of a pattern of
 8   falsity or a reckless indifference or disregard for the truth.
 9   Thus, the viability of Joudeh’s § 727(a)(4)(A) claim hinges on
10   whether no reasonable trier of fact could have inferred Truppa’s
11   culpable state of mind from his failure to disclose the allegedly
12   omitted films.
13        This is a difficult standard for the summary judgment movant
14   to meet.   Indeed, “[s]ummary judgment is ordinarily not
15   appropriate in a § 727 action where there is an issue of intent.”
16   In re Wills, 243 B.R. at 65; see also In re Gertsch, 237 B.R. at
17   165 (“Where intent is at issue, summary judgment is seldom
18   granted.”).   On the other hand, “Even in cases where elusive
19   concepts such as motive or intent are at issue, summary judgment
20   may be appropriate if the non-moving party rests merely upon
21   conclusory allegations, improbable inferences, and unsupported
22   speculation.”    In re Gertsch, 237 B.R. at 165 (quoting
23   Medina–Munoz, 896 F.2d at 8).
24        Notwithstanding the inherent difficulty of granting summary
25   judgment where intent is at issue, some bankruptcy courts in our
26   circuit have granted summary judgment on § 727(a)(4)(A) claims,
27   and we have reviewed and upheld some of those judgments.    See,
28   e.g., Sfadia v. Dongkuk Int’l, Inc. (In re Sfadia), 2007 WL

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 1   7540987, at *13 (Mem. Dec.) (9th Cir. BAP Sept. 5, 2007);
 2   In re Aubrey, 111 B.R. at 274; U.S. Tr. v. Totten (In re Totten),
 3   2014 WL 690616, at *5-6 (Mem. Dec.) (Bankr. D. Haw. Feb. 20,
 4   2014); see also Wicklund v. Robert D. Johnson Trust
 5   (In re Wicklund), 2016 WL 5339412, at *10 (W.D. Wash. Mar. 28,
 6   2016);
 7        The bankruptcy court made no specific intent assessment with
 8   respect to Truppa’s nondisclosure of the allegedly omitted films.
 9   Nor can we independently conceive how the bankruptcy court could
10   have conclusively determined on summary judgment that Truppa did
11   not harbor a fraudulent intent in not disclosing the films.    At
12   bottom, in the summary judgment context, we are obliged to make
13   our own independent determination as to whether no reasonable
14   trier of fact could have found for Joudeh on the intent and
15   knowledge issues.   On this record, we are persuaded that a trier
16   of fact reasonably could have inferred from the presented facts –
17   when taken in the light most favorable to Joudeh – that Truppa
18   knowingly and fraudulently omitted from his schedules his
19   interest in certain undisclosed films.
20        In sum, the bankruptcy court erred when it granted summary
21   judgment in favor of Truppa on Joudeh’s § 727(a)(4)(A) claim.
22                               CONCLUSION
23        For the reasons set forth above, the bankruptcy court’s
24   summary judgment is AFFIRMED IN PART and REVERSED IN PART, and
25   this matter is REMANDED for further proceedings consistent with
26   this decision.
27
28

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