                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             NOV 08 2013

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

In re: ARNOLD BELLOW; GAYLE                      No. 11-60049
BELLOW,
                                                 BAP No. 10-1327
              Debtors,

                                                 MEMORANDUM*
NORTHERN CALIFORNIA SMALL
BUSINESS FINANCIAL
DEVELOPMENT CORPORATION,

              Appellant,

  v.

ARNOLD BELLOW; GAYLE BELLOW,

              Appellees.


                           Appeal from the Ninth Circuit
                            Bankruptcy Appellate Panel
             Hollowell, Pappas, and Jury, Bankruptcy Judges, Presiding

                           Submitted November 6, 2013**
                             San Francisco, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: KLEINFELD, THOMAS, and RAWLINSON, Circuit Judges.

      Northern California Small Business Financial Development Corporation

(“Nor-Cal”) appeals from the Bankruptcy Appellate Panel’s (“BAP”) affirmance of

the bankruptcy court’s entry of judgment against it following a bench trial on an

adversary proceeding filed by Nor-Cal against chapter 7 debtors Arnold and Gayle

Bellow (“the Bellows”). We have jurisdiction under 28 U.S.C. § 158(d). We

review de novo BAP decisions, and apply the same standard of review that the

BAP applied to the bankruptcy court’s ruling. Boyajian v. New Falls Corp. (In re

Boyajian), 564 F.3d 1088, 1090 (9th Cir. 2009). We affirm. Because the parties

are familiar with the history of this case, we need not recount it here.

                                            I

      Under our deferential standard of review, we conclude that the bankruptcy

court did not abuse its discretion in denying the joint motion for a continuance of

the trial. Motions for continuance are generally evaluated according to the factors

articulated in United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir. 1985).1 Those

factors are: (1) the extent of appellant’s diligence in his efforts to ready his case

prior to the date set for hearing; (2) how likely it is that the need for a continuance


      1
        Nor-Cal argues that the analysis of the motion should have been conducted
under Bankruptcy Rule 9006(b). We need not decide whether this is so, because, even if
we applied Rule 9006(b), it would not alter our analysis.

                                           -2-
could have been met if the continuance had been granted; (3) the extent to which

granting the continuance would have inconvenienced the court and the opposing

party, including its witnesses; and (4) the extent to which the appellant might have

suffered harm as a result of the district court’s denial. Id. at 1359.

      The record supports the bankruptcy court’s conclusion that Nor-Cal had not

been diligent; that the potential usefulness of the continuance was questionable

given the history of delay; and that the continuance would have greatly

inconvenienced the court. Thus, the BAP properly determined that the first three

Flynt factors weighed in favor of the bankruptcy court’s decision to deny the

continuance. The final factor is the harm resulting from the court’s denial.

Certainly Nor-Cal suffered some prejudice because, as the bankruptcy court

observed, it had done nothing to prepare for trial. However, given our very

deferential standard of review, we agree with the BAP that the bankruptcy court

did not abuse its discretion in analyzing the Flynt factors and denying the

continuance sought on the eve of trial.

      Nor did the bankruptcy court abuse its discretion in denying the mid-trial

motion for a continuance to secure testimony. As the BAP pointed out, Nor-Cal

did not show that it could have secured the testimony and, in fact, Nor-Cal had

admitted that the witness had refused to testify. The record also supports the


                                          -3-
bankruptcy court’s conclusion that Nor-Cal had not exercised due diligence in its

efforts to obtain the testimony. These facts sufficiently justify the bankruptcy

court’s denial of the motion for a recess. See United States v. Fowlie, 24 F.3d

1059, 1070 (9th Cir. 1994).

       For these reasons, we join the BAP in concluding that the bankruptcy court

did not abuse its discretion in denying the motions to vacate the trial date and

recess the trial.

                                          II

       The bankruptcy court did not err in granting the Bellows’ motion for a

judgment on partial findings. The bankruptcy court properly determined that Nor-

Cal had failed to carry its burden of proof on any of its claims. There was little, if

any, relevant documentary evidence provided at trial, and only speculative witness

testimony.

       Section 523(a)(2) of the Bankruptcy Code excepts from discharge any debt

obtained according to a fraudulent act or false representation. Nor-Cal did not

present evidence of any false representation. Section 523(a)(4) excepts from

discharge any debt “for fraud or defalcation while acting in a fiduciary capacity,

embezzlement, or larceny,” but Nor-Cal was not able to establish a fiduciary

relationship between Nor-Cal and the entity at issue. Nor was Nor-Cal able to


                                          -4-
prove any misappropriation of funds from Nor-Cal. Section 523(a)(6) excepts

from discharge any debt incurred “for willful and malicious injury by the debtor to

another entity or to the property of another entity.” Nor-Cal was unable to

establish that an intentional, wrongful act occurred that necessarily caused injury

without just cause or excuse. See In re Su, 290 F.3d 1140, 1146-47 (9th Cir. 2002)

(describing elements).

      In sum, a careful review of the record supports the bankruptcy court’s

conclusion that Nor-Cal was unable to sustain its burden of proof at trial.



      AFFIRMED.




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