                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 14 2014

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

KIRK HENRY and AMY HENRY,                        No. 12-16207

              Plaintiffs - Appellees,            D.C. No. 2:08-cv-00635-PMP-
                                                 GWF
  v.

FREDERICK RIZZOLO, AKA Rick                      MEMORANDUM*
Rizzolo; et al.,

              Defendants,

  And

KIMTRAN RIZZOLO,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Nevada
                  Philip M. Pro, Senior District Judge, Presiding

                             Submitted May 12, 2014**
                              San Francisco, California

Before: D.W. NELSON, McKEOWN, and M. SMITH, Circuit Judges.

        *
             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).
      Kimtran Rizzolo appeals the district court’s grant of summary judgment to

Kirk and Amy Henry, finding certain transfers of assets made from Rick Rizzolo to

Bart Rizzolo—Kimtran’s husband and Rick’s father—fraudulent. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Kimtran argues (1) that Rick Rizzolo was not personally liable to the

Henrys; and (2) that even if Rick Rizzolo were personally liable, the payments

were not fraudulent because they were made in repayment of an antecedent debt.

Neither argument is availing.

      As an initial matter, we take judicial notice of the Judgments of Conviction

entered against both Rick Rizzolo and his closely held corporation, The Power

Company, in United States v. Frederick Rizzolo, No. 2:06-cr-186-PMP-PAL, and

United States v. The Power Company, Inc., No. 2:06-cr-186-PMP-PAL,

respectively. These decisions “have a direct relation to matters at issue,” United

States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244,

248 (9th Cir. 1992) (internal quotation marks omitted); indeed, they are

dispositive. Rick Rizzolo’s Judgment of Conviction provides that “[t]he restitution

amount is payment jointly and severally with the co-defendant, Power Co. Inc.”

United States v. Rizzolo, No. 2:06-cr-186, Dkt. 42 at 6. The Power Company has a



                                          2
reciprocal obligation. United States v. The Power Company, Inc., No. 2:06-cr-186-

PMP-PAL, Dkt. 43 at 5 (“The restitution amount is payable jointly and severally

with the co-defendant, Frederick John Rizzolo.”). Accordingly, we find that the

district court did not err in concluding that Rick Rizzolo was personally liable for

the restitution owed to the Henrys.

      We also find that the district court properly concluded that the transfer at

issue here was fraudulent. The district court relied on Nev. Rev. Stat. § 112.180,

which provides that a court, in determining whether a transfer was made with

fraudulent intent, may consider “whether: (a) The transfer or obligation was to an

insider . . . ; (c) The transfer or obligation was disclosed or concealed; (d) Before

the transfer was made or obligation was incurred, the debtor had been sued or

threatened with suit . . . ; (g) The debtor removed or concealed assets; (h) The

value of the consideration received by the debtor was reasonably equivalent to the

value of the asset transferred or the amount of the obligation incurred; (i) The

debtor was insolvent or became insolvent shortly after the transfer was made or the

obligation was incurred . . . .” The district court properly found no issue of

material fact on several of the “badges of fraud,” as well as evidence of actual

fraudulent intent.




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      There is no issue of fact as to whether the transfer was made to an “insider,”

which is defined under Nevada law to include “[a] relative of the debtor.” Nev.

Rev. Stat. § 112.150(7)(a)(1). Rick Rizzolo transferred both the cash and the right

to deferred payments to Bart Rizzolo, his father. Subsequently, the rights passed to

Kimtran Rizzolo, his mother-in-law.

      Nor is there any issue of fact with respect to whether Rick Rizzolo was

involved in or threatened with litigation given that the transfers occurred after he

had been ordered to personally pay restitution to the Henrys in the amount of $10

million. There is also no genuine issue of material fact with respect to whether or

not Rick Rizzolo concealed the transfers. Despite conditions of release that

required him to report financial transactions, Rick Rizzolo failed to report any of

the transfers discussed above. The district court also concluded, and Kimtran does

not appear to challenge, that Rick Rizzolo was deceptive during discovery.

      Finally, the district court properly concluded that the Henrys had presented

evidence of actual fraudulent intent, namely Rick Rizzolo’s deposition testimony,

in which he stated that he sought to transfer the assets to avoid his other creditors

from attaching the assets. Although Kimtran argues that Rick Rizzolo’s testimony

shows that he sought to pay an antecedent debt, rather than to defraud the Henrys,

she presents no evidence to support the existence of such a debt beyond a “list of


                                           4
loans” sent by one of Rick Rizzolo’s lawyers to another of his lawyers and presenst

no evidence proving the amount of any such debts. Kimtran’s bald assertion that

the debts existed and that the transferred assets were reasonably equivalent to the

amount of those debts does not raise an issue of triable fact. See, e.g., FTC v.

Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009) (“In order to avoid summary

judgment, a non-movant must show a genuine issue of material fact by presenting

affirmative evidence from which a jury could find in his favor.”).

      AFFIRMED.




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