FILED JAN 31 2019 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT

UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT

In re: BAP Nos. CC-18-1158-FKuTa CC-18-1163-FKuTa DARIN DAVIS, (Related appeals)

Debtor. Bk. No. 1:10-bk-17214-VK

ASPHALT PROFESSIONALS, INC., Adv. Pro. 1:10-ap-01354-VK

Appellant,

v. MEMORANDUM*

DARIN DAVIS,

Appellee.

Argued and Submitted on January 24, 2019 at Pasadena, California

Filed – January 31, 2019

Appeal from the United States Bankruptcy Court for the Central District of California

* This disposition is not appropriate for publication. 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 Cir. BAP Rule 8024-1. Honorable Victoria S. Kaufman, Bankruptcy Judge, Presiding

Appearances: Ray B. Bowen, Jr. argued on behalf of appellant Asphalt Professionals, Inc.; Alan Wayne Forsley of Fredman Lieberman Pearl LLP argued on behalf of appellee Darin Davis.

Before: FARIS, KURTZ, and TAYLOR, Bankruptcy Judges.

INTRODUCTION

Chapter 71 debtor Darin Davis and creditor Asphalt Professionals,

Inc. (“API”) have been entangled in litigation in state court since 2005.

After two trials in state court and two trials in the bankruptcy court, the

bankruptcy court adjudicated API’s §§ 727(a) and 523(a) claims in favor of

Mr. Davis. API argues on appeal that the bankruptcy court deprived it of

due process, improperly relitigated issues already decided by the state

court, and made erroneous factual findings.

We discern no error and AFFIRM.

1 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code,

.

2 FACTUAL BACKGROUND2

A. Mr. Davis’ entities and development projects

1. The Whitman Project

Mr. Davis was a developer of small real estate projects through

various limited liability companies that he formed with other investors. He

personally held a general builder contractor’s license, but his LLCs did not

possess any such license. (The state license board was not authorized to

issue contractor’s licenses to LLCs during the relevant time periods.)

Instead, his LLCs developed projects as “owner-builders,” and he

associated his personal contractor’s license with each project.

Mr. Davis and a partner formed T.O. IX, LLC (“T.O.”) to develop the

“Whitman Project,” which consisted of nine homes in Thousand Oaks,

California. Mr. Davis obtained building permits for the Whitman Project

using his personal contractor’s license number.

API is a general engineering contractor that builds roads, streets, and

sidewalks. T.O. and API entered into a construction subcontract agreement

(“Subcontract”) for work on the Whitman Project. The Subcontract

identified T.O. as the “owner/builder” of the Whitman Project but did not

disclose a contractor’s license number for either T.O. or Mr. Davis. Later, a

2 We borrow from the bankruptcy court’s detailed rulings. We also exercise our discretion to review the bankruptcy court’s docket, as appropriate. See Woods & Erickson, LLP v. Leonard (In re AVI, Inc.),

, 725 n.2 (9th Cir. BAP 2008).

3 project manager for D&S Homes, Inc. (“D&S Homes”),3 provided API with

Mr. Davis’ contractor’s license number. API did not verify whether T.O.

held a valid contractor’s license.

API was responsible for altering a median on a public roadway. It

was forced to stop work when it discovered a problem with the site plans

that would have resulted in a safety hazard. API then realized that the

original site plan was based on a thirty-three-year-old as-built survey. API

refused to continue work until D&S Homes updated the site plan or paid

API to do so.

In April 2005, D&S Homes told API that it had violated the terms of

the Subcontract and terminated the agreement. T.O. back-charged API

$80,000 for the cost of another subcontractor to complete the street.

2. Licensing violations

In April 2004, the California State License Board (“CSLB”) cited

another of Mr. Davis’ LLCs for work on another development project.

Mr. Davis then learned that the “owner/builder” exception only applied to

projects with four homes or fewer and that a licensed contractor was

required for larger projects.

The Whitman Project included nine homes, and T.O. was an LLC

which, at the time, could not hold a contractor’s license. Mr. Davis

3 D&S Homes owned sixty percent of T.O. It appears that D&S Homes was the primary point of contact on the Whitman Project.

4 attempted to remedy the licensing issue by forming another company,

Fairland Construction, Inc., to act as T.O.’s management company and

obtain a contractor’s license.

Mr. Davis believed that he had solved the licensing problem; but in

July 2007, CSLB issued citations to T.O. for its lack of a contractor’s license.

B. The state court litigation

In September 2005, API sued T.O., Mr. Davis, and others in state

court (the “State Court Action”) for breach of contract, foreclosure on a

mechanic’s lien, fraud, conspiracy, and quantum meruit.

C. Mr. Davis’ bankruptcy case

In June 2010, before API’s claims went to trial in the State Court

Action, Mr. Davis filed a chapter 7 petition. API filed a timely adversary

complaint seeking a denial of Mr. Davis’ discharge under §§ 727(a)(2)(A),

(a)(2)(B), and (a)(4), and a determination that the debt arising from the

Subcontract was nondischargeable under § 523(a)(2)(A).

With regard to § 727, API alleged that Mr. Davis made false and

misleading statements concerning his assets in his bankruptcy schedules

and statement of financial affairs, including the value and ownership of

real property and his involvement and investment in various corporate

entities.

With regard to § 523, API asserted that Mr. Davis made false and

misleading representations and omissions to deceive and induce API to

5 enter into the Subcontract. It claimed that, had it known that T.O. was not a

licensed contractor or that the site plan was inaccurate, it would not have

entered into the Subcontract.

In September 2010, the bankruptcy court granted API relief from the

automatic stay to allow it to litigate its claims in the State Court Action and

potentially establish a basis for issue preclusion.

D. The state court trials and appeals

The state court trifurcated the State Court Action into Phase One

(breach of contract, foreclosure on a mechanic’s lien, and quantum meruit),

Phase Two (alter ego), and Phase Three (fraud and punitive damages). The

state court held a bench trial as to Phase One and entered a judgment

(“Phase One Judgment”) in favor of API in October 2010. It held that:

(a) plaintiff did everything it was supposed to do under the contract; (b) plaintiff did nothing wrong in their [sic] dealings with the defendants . . . [and] (h) the withholding of payments due the plaintiff under the contract by defendants was not done in good faith[.]

It awarded API $318,000 in damages and $1.65 million in attorneys’ fees.

T.O. appealed the award of fees. The Court of Appeal affirmed.

The state court next tried the alter ego issues in Phase Two. In

December 2011, the state court ruled that T.O. failed to disclose to API the

entities involved in the Subcontract and that T.O. failed to disclose that it

was not a licensed contractor. It also found that T.O., D&S Homes, and

6 others were alter egos of Mr. Davis and were jointly and severally liable to

API.

The state court entered judgment in favor of API (“Phase Two

Judgment”). Mr. Davis and T.O. appealed the Phase Two Judgment, but

the Court of Appeal affirmed in all relevant respects.

In 2013, API filed an acknowledgment that Mr. Davis and others had

paid in full the Phase One Judgment and associated attorneys’ fees.

E. API’s proof of claim

In January 2011, API filed a proof of claim totaling $3 million. The

bankruptcy court disallowed the $1.9 million that had been paid on the

Phase One Judgment but allowed the remaining $1.1 million pending the

outcome of Phase Three in the State Court Action.

F. The § 727(a) trial

In September 2014, the bankruptcy court bifurcated the § 727 claims

from the § 523 claims. The next month, it stayed litigation of the § 523

claims pending the outcome of Phase Three in the State Court Action.

In December 2014, the court held a trial on API’s § 727(a) claims

(“§ 727 Trial”). Several aspects of the trial are contested in this appeal.

During Mr. Davis’ cross-examination testimony, his counsel referred

to Exhibit G, which was apparently D&S Homes’ balance sheet for 2007.

API’s counsel objected, but Mr. Davis’ counsel argued that Exhibit G could

be used to refresh Mr. Davis’ recollection. The court allowed the

7 questioning, and counsel never tried to move Exhibit G into evidence.

API argued that § 727(a)(2) applied to the prepetition issuance of

999,000 shares of stock in D&S Homes (valued at $1 per share) to the Leon

Family Trust (“Leon Trust”) to satisfy (in part) an outstanding debt. As a

result, the equity interests of Mr. Davis and other existing shareholders

were diluted; Mr. Davis’ interest in D&S Homes decreased from twenty-

eight percent to 0.03 percent. API produced D&S Homes minutes showing

that the board approved the issuance of the shares at a meeting on

September 10, 2009. However, Mr. Davis testified that the board had

intended that the issuance occur in January 2008. (The date is important

because § 727(a)(2)(A) only applies to transactions in the year preceding the

bankruptcy filing.)

Another issue concerned the disposition of real property located on

Valerio Street in Canoga Park, California (the “Valerio Street Property”).

The property was purchased by Canoga Commercial, LLC (“Canoga”) in

2008. Mr. Davis was the sole member of Canoga. Shortly before Mr. Davis

filed his petition, Canoga borrowed approximately $70,000 from Mr. Davis’

mother, secured by a deed of trust on the Valerio Street Property.

Postpetition, Canoga borrowed an additional $600,000 from other lenders,

also secured by the Valerio Street Property; it later sold the property for

$775,000 and used the sale proceeds to pay some of its debts.

The parties also argued about Mr. Davis’ representations and

8 omissions as to his interests in his various companies and their assets. API

attempted to establish that Mr. Davis misrepresented the value of his

business interests (as “$0.00” in his initial schedules and “unknown” in his

amended schedules) and failed to disclose the sale of the Valerio Street

Property.

Additionally, Mr. Davis did not disclose his prepetition sale of real

property in Arizona (the “Arizona Property”). He only amended his

statement of financial affairs to disclose the sale after API questioned him

about the sale at his deposition.

G. The § 727 decision and judgment

On December 5, 2014, the bankruptcy court issued its decision in

Mr. Davis’ favor on all § 727(a) claims.

1. Prepetition transfers

As to prepetition transfers under § 727(a)(2)(A), the bankruptcy court

held that API failed to show that Mr. Davis transferred, removed, or

destroyed property of the debtor when D&S Homes issued stock to the

Leon Trust. The court also rejected API’s argument that the dilution was

intended to hinder, delay, or defraud creditors, instead finding that

Mr. Davis had guaranteed the loan from the Leon Trust and that reducing

D&S Homes’ debt reduced Mr. Davis’ exposure on his guaranty.

The court was unconvinced that the transfer of the Valerio Street

Property was relevant to § 727(a)(2)(A), because the property belonged to

9 Canoga, not Mr. Davis. The court also found that Mr. Davis did not have

an intent to hinder, delay, or defraud creditors, because the proceeds of the

loan were used to pay off a prior loan to Canoga.

2. Postpetition transfers

As to postpetition transfers under § 727(a)(2)(B), the bankruptcy

court held that the postpetition deeds of trust and the 2014 sale of Canoga’s

Valerio Street Property did not implicate estate property. Even though

Mr. Davis held a 100 percent interest in Canoga, the court held that “in

light of all of the circumstances,” Mr. Davis did not intend to hinder, delay

or defraud his creditors.

3. False oath

Regarding API’s claim of false oath under § 727(a)(4), the bankruptcy

court ruled that Mr. Davis did not make false statements; and even if he

did, they were not made knowingly and fraudulently.

The court found that Mr. Davis did not misrepresent the value of his

interest in his business entities. The court held that API did not present any

evidence that his valuations were false or prove that Mr. Davis had a

fraudulent intent.

The court also found that API failed to prove a false oath arising from

Mr. Davis’ nondisclosure of the prepetition dilution of his equity interest in

D&S Homes. It said that Mr. Davis thought that the stock issuance was

intended to have taken place in 2008: “As a result, Debtor believed he did

10 not have to disclose the dilution.” The court found that API failed to

demonstrate “that the omission was intentional, as opposed to a mistake.”

The bankruptcy court found that Mr. Davis did not conceal the sale of

the Arizona Property. Although he initially did not disclose the sale or the

proceeds, he disclosed the sale two months prior to the final meeting of

creditors. The court also found that Mr. Davis lacked the requisite intent.

In conclusion, the court ruled that API established inconsistencies

and omissions, but “such mistakes and omissions, without additional facts

that would specifically show the required intent, do[ ] not warrant a denial

of Debtor’s discharge under § 727.” The bankruptcy court entered

judgment in favor of Mr. Davis (the “§ 727 Judgment”).4

H. The § 523(a) trial

Seven years after the petition date, Phase Three of the State Court

Action had still not gone to trial. In 2017, the bankruptcy court informed

the parties that it would no longer stay the adversary proceeding. It held a

trial on API’s § 523(a) claims (“§ 523 Trial”) in April 2018.

The court heard testimony from Mr. Davis, as well as Jeffrey Ludlow,

(API’s president and CEO), Matthew Ludlow (API’s vice-president of

operations), and Michael Poles (API’s expert witness on construction and

4 API immediately appealed the § 727 Judgment. However, the BAP motions panel determined that the judgment was interlocutory because it did not dispose of the entire adversary proceeding and dismissed the appeal.

11 contracting). In general, Mr. Davis maintained that he did not misrepresent

the Whitman Project or his entities and did not know about any problems

with the survey. Conversely, the Ludlows testified that API would not

have entered into the Subcontract had they known that T.O. was operating

as an unlicensed contractor or that the site plans were incorrect.

Mr. Poles testified that it was his opinion that Mr. Davis had acted

fraudulently and had a fraudulent intent. The court allowed his testimony

over objection but said that it would consider what weight to give that

testimony.

Mr. Poles further opined that it was normal and customary for API to

not question T.O.’s license status. He stated that a subcontractor that

questioned the general contractor’s license would not get the job.

I. The § 523 decision and judgment

The bankruptcy court ruled in Mr. Davis’ favor, concluding that API

had failed to establish any element of the § 523(a)(2)(A) claim.

1. False representation, omission, or deceptive conduct

The bankruptcy court ruled that API did not present sufficient

evidence that Mr. Davis’ omission regarding T.O.’s license status was

fraudulent. It found that: Mr. Davis never communicated directly with API

regarding the status of T.O.’s license; the parties agreed at trial that, under

California law at the time of the Subcontract, an LLC could not hold a

contractor’s license in California; Mr. Davis believed that T.O. could

12 lawfully operate as an owner-builder; API had an opportunity to verify

T.O.’s license status independently but chose not to; and the Ludlows’

testimony that API would not have entered into the Subcontract had they

known T.O. was unlicensed was not credible.

The court additionally ruled that Mr. Davis’ omissions regarding the

site plan were not fraudulent. It found credible his testimony that he did

not know the age of the survey or understand its importance. It noted that

API could have discussed the age of the as-built survey with T.O.’s

architect but did not do so.

The bankruptcy court also found that API did not prove that

Mr. Davis engaged in deceptive conduct because he did not act in any way

to give API the impression that T.O. had a contractor’s license.

2. Knowledge of falsity or intent to deceive

The bankruptcy court found that API did not establish that Mr. Davis

knew that nondisclosure of T.O.’s license status was wrongful. The court

credited Mr. Davis’ testimony that he believed it was unnecessary for T.O.

to have a contractor’s license because the Whitman Project was being built

by an “owner/builder,” and his personal contractor’s license would suffice.

Moreover, the court found that API did not prove that Mr. Davis’

omission of T.O.’s status was motivated by an intent to deceive API. The

court rejected API’s use of expert testimony to establish Mr. Davis’ intent.

The court held that API also did not establish that Mr. Davis knew

13 that his nondisclosure of the age of the as-built survey was wrongful.

3. Justifiable reliance

Finally, the bankruptcy court held that API’s reliance regarding

T.O.’s license was not justifiable because it ignored numerous red flags and

its witnesses’ testimony was not credible. It held that the Ludlows were

sophisticated, experienced construction professionals who reviewed the

Subcontract at length and accepted the Subcontract even though it did not

identify a contractor’s license for either T.O. or Mr. Davis.

The bankruptcy court again found Mr. Poles’ testimony not credible,

where he testified that a subcontractor would risk losing its bid if it

questioned the license status of its general contractor. Mr. Poles and

Matthew Ludlow admitted that anyone could inquire with CSLB to verify

the status of a contractor’s license without alerting the general contractor.

The bankruptcy court entered a judgment in favor of Mr. Davis

(“§ 523 Judgment”). API timely appealed from the § 523 Judgment and the

§ 727 Judgment.

JURISDICTION

The bankruptcy court had jurisdiction pursuant to

and 157(b)(2)(I) and (J). We have jurisdiction under

.

ISSUES

(1) Whether the bankruptcy court erred in holding that API did not

carry its burden of proof under §§ 727(a)(2)(A), (a)(2)(B), and (a)(4) to deny

14 Mr. Davis his discharge.

(2) Whether the bankruptcy court erred in holding that API did not

carry its burden of proof under § 523(a)(2) to deny discharge of its claim.

STANDARDS OF REVIEW

In an action for denial of discharge under § 727, we review: (1) the

bankruptcy court’s legal conclusions de novo, (2) factual findings for clear

error, and (3) mixed questions of law and fact de novo. Searles v. Riley (In re

Searles),

(9th Cir. BAP 2004), aff’d,

(9th

Cir. 2006) (citing Murray v. Bammer (In re Bammer),

(9th

Cir. 1997) (en banc)).

When reviewing a bankruptcy court’s determination of an exception

to discharge claim under § 523, we review its findings of fact for clear error

and its conclusions of law de novo. See Oney v. Weinberg (In re Weinberg),

(9th Cir. BAP 2009). ”Whether a requisite element of a

§ 523(a)(2)(A) claim is present is a factual determination reviewed for clear

error.” Tallant v. Kaufman (In re Tallant),

(9th Cir. BAP 1998)

(citing Anastas v. Am. Sav. Bank (In re Anastas),

(9th Cir.

1996)).

“De novo review requires that we consider a matter anew, as if no

decision had been made previously.” Francis v. Wallace (In re Francis),

(9th Cir. BAP 2014) (citations omitted).

The bankruptcy court’s determinations concerning the debtor’s intent

15 are factual matters reviewed for clear error. Beauchamp v. Hoose (In re

Beauchamp),

(9th Cir. BAP 1999). We give especially great

deference to the bankruptcy court’s determinations of witnesses’

credibility. Anderson v. City of Bessemer City,

(1985) (stating

that only the trial court “can be aware of variations in demeanor and tone

of voice that bear so heavily on the listener’s understanding of and belief in

what is said”).

Factual findings are clearly erroneous if they are illogical,

implausible, or without support in the record. Retz v. Samson (In re Retz),

(9th Cir. 2010). “To be clearly erroneous, a decision

must strike us as more than just maybe or probably wrong; it must . . .

strike us as wrong with the force of a five-week-old, unrefrigerated dead

fish.” Sepulveda v. Adams (In re Sepulveda), BAP No. CC-16-1226-FLKu,

, at *4 (9th Cir. BAP Apr. 26, 2017) (quoting Papio Keno Club,

Inc. v. City of Papillion (In re Papio Keno Club, Inc.),

(8th Cir.

2001)). If two views of the evidence are possible, the trial judge’s choice

between them cannot be clearly erroneous. Anderson,

.

DISCUSSION

A. The bankruptcy court did not err in holding that API failed to establish the mental state required by §§ 727(a)(2)(A), (a)(2)(B), (a)(4), and 523(a)(2).

We find no clear error in the bankruptcy court’s determination that

16 Mr. Davis lacked the requisite intent under §§ 727(a)(2), (a)(4), or 523(a)(2).

Therefore, all of API’s other non-procedural arguments are

inconsequential.

Mental state is an element of all three of the statutes API relies upon.

Section 727(a)(2) provides that the debtor is entitled to a discharge unless:

(2) the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed –

(A) property of the debtor, within one year before the date of the filing of the petition; or

(B) property of the estate, after the date of the filing of the petition[.]

§ 727(a)(2) (emphasis added). “A party seeking denial of discharge under

§ 727(a)(2) must prove two things: ‘(1) a disposition of property, such as

transfer or concealment, and (2) a subjective intent on the debtor’s part to

hinder, delay or defraud a creditor through the act [of] disposing of the

property.’” In re Retz,

(emphasis added) (quoting Hughes v.

Lawson (In re Lawson),

(9th Cir. 1997)).

Section 727(a)(4)(A) provides for denial of discharge if “the debtor

knowingly and fraudulently, in or in connection with the case . . . made a

false oath or account[.]” § 727(a)(4)(A) (emphasis added). “To prevail on [a

17 § 727(a)(4)(A)] claim, a plaintiff must show, by a preponderance of the

evidence, that: ‘(1) the debtor made a false oath in connection with the case;

(2) the oath related to a material fact; (3) the oath was made knowingly;

and (4) the oath was made fraudulently.’” In re Retz,

(emphases added) (quoting Roberts v. Erhard (In re Roberts),

(9th Cir. BAP 2005)).

Section 523(a)(2)(A) excepts from discharge debts resulting from

“false pretenses, a false representation, or actual fraud, other than a

statement respecting the debtor’s or an insider’s financial condition.” A

creditor seeking to except a debt from discharge based on fraud bears the

burden of establishing each of five elements: (1) misrepresentation,

fraudulent omission or deceptive conduct; (2) knowledge of the falsity or

deceptiveness of such representation(s) or omission(s); (3) an intent to

deceive; (4) justifiable reliance by the creditor on the representations or

conduct; and (5) damage to the creditor proximately caused by its reliance

on such representation(s) or conduct. See Ghomeshi v. Sabban (In re Sabban),

(9th Cir. 2010); In re Weinberg,

.

API has failed to demonstrate that any of the court’s findings about

Mr. Davis’ mental state were clearly erroneous.

API says that Mr. Davis fraudulently transferred or concealed

property under § 727(a)(2), including D&S Homes’ shares and the Valerio

Street Property. As to § 727(a)(4), API contends that Mr. Davis had

18 fraudulent intent when he made false oaths concerning his possession of

financial documents, his valuation of his assets in his bankruptcy

documents, the dilution of D&S Homes’ shares, and various other

properties and entities. The bankruptcy court properly rejected each of

these arguments.

In the first place, the bankruptcy court correctly found that API did

not even prove that all of these statements were false. For example, API

says that Mr. Davis uttered a false oath when he stated, in a discovery

response, that he had no financial statements for D&S Homes, but he

produced Exhibit G at trial. But Mr. Davis’ attorney represented that he

had received Exhibit G only recently, and API offered no contrary

evidence. Similarly, API argues that Mr. Davis lied when he valued his

interest in his business entities at zero or unknown, but API offered no

evidence that any of these entities had any value.

More importantly, the bankruptcy court did not commit clear error

when it found that Mr. Davis lacked the required intention and knowledge

under § 727. The court weighed Mr. Davis’ denials against the

circumstantial evidence offered by API and found Mr. Davis’ testimony

more persuasive.

Similarly, the bankruptcy court did not clearly err when it found that

Mr. Davis lacked knowledge of falsity and intent to deceive under

§ 523(a)(2). The bankruptcy court considered the testimony of Mr. Davis,

19 the Ludlows, and Mr. Poles and found that Mr. Davis did not know that

the nondisclosure of T.O.’s license status was wrongful, did not have an

intent to deceive API, and did not have reason to believe that the as-built

survey was unreliable. We again find no clear error in the bankruptcy

court’s factual determinations as to Mr. Davis’ knowledge and intent.

Accordingly, because API failed to establish the requisite elements of

knowledge and intent, the bankruptcy court did not err in rejecting API’s

§§ 727(a)(2), (a)(4), and 523(a)(2) claims.

B. The bankruptcy court correctly followed the law of issue preclusion.

API correctly points out that issue preclusion (formerly known as

collateral estoppel) applies in proceedings under §§ 727 and 523. It argues

that the bankruptcy court improperly ignored the state court’s findings and

that these findings were binding on the bankruptcy court. API’s reliance on

the state court findings is misplaced.

Issue preclusion prevents relitigation of all “issues of fact or law that

were actually litigated and necessarily decided” in a prior proceeding,

regardless of the claim to which they relate. Segal v. Am. Tel. & Tel. Co.,

(9th Cir. 1979). California law governs the preclusive effect of

the state court’s judgment. See Harmon v. Kobrin (In re Harmon),

(9th Cir. 2001); see also

(federal courts must give

“full faith and credit” to state court judgments).

20 In California, application of issue preclusion requires that: (1) the

issue sought to be precluded from relitigation is identical to that decided in

a former proceeding; (2) the issue was actually litigated in the former

proceeding; (3) the issue was necessarily decided in the former proceeding;

(4) the decision in the former proceeding is final and on the merits; and

(5) the party against whom preclusion is sought was the same as, or in

privity with, the party to the former proceeding. Lucido v. Super. Ct.,

(1990). Additionally, California courts may give preclusive

effect to a judgment “only if application of preclusion furthers the public

policies underlying the doctrine.” In re Harmon,

(citing

Lucido,

).

California law recognizes that courts always have discretion to deny

preclusive effect to any judgment: “In California, issue preclusion is not

applied automatically or rigidly, and courts are permitted to decline to give

issue preclusive effect to prior judgments in deference of countervailing

considerations of fairness.” Lopez v. Emergency Serv. Restoration, Inc. (In re

Lopez),

(9th Cir. BAP 2007) (citations omitted). Therefore,

API’s repetitive claim that the bankruptcy court was “bound” by the state

court’s findings is false.

Further, API merely assumes that issue preclusion applies and

neglects to address the individual elements. It fails to establish that the

issues in the State Court Action were identical to the issues before the

21 bankruptcy court. It is clear that none of the state court’s findings as to

breach of contract or alter ego cover the fraudulent intent required by

§§ 727 or 523; indeed, the fraud claims were scheduled to be tried in Phase

Three. Although the state court was harshly critical of Mr. Davis’ conduct,

it made no finding sufficiently precise to preclude litigation of the intent

and knowledge issues under §§ 727 and 523.

Similarly, API fails to show that the state court necessarily decided

the issues to be precluded. It contends that the state court found fraud for

the purposes of determining Mr. Davis’ alter ego status. But alter ego is a

remedy, not a substantive claim. Leek v. Cooper,

, 418-

19 (2011) (“A claim based upon an alter ego theory is not itself a claim for

substantive relief. It is a procedural device by which courts will disregard

the corporate entity in order to hold the alter ego individual liable on the

obligations of the corporation.”). As such, the alter ego determination

under California law involves a weighing of factors. See GEC US 1 LLC v.

Frontier Renewables, LLC, No. 16-CV-1276 YGR,

, at *5 (N.D.

Cal. Feb. 15, 2017) (listing eighteen nonexclusive factors); Greenspan v.

LADT, LLC,

(2010) (“No single factor is

determinative, and instead a court must examine all the circumstances to

determine whether to apply the doctrine.”). An alter ego holding does not

require fraud: “In the state of California fraud is not required in order to

invoke the alter ego theory.” Sequoia Prop. & Equip. Ltd. P’ship v. United

22 States, No. CV-F 97-5044 OWW SMS,

, at *3 (E.D. Cal. May

13, 1998) (citing U.S. Fire Ins. Co. v. Nat’l Union Fire Ins. Co. of Pitt.,

(1980)). Stated simply, the state court did not necessarily

have to decide fraud issues in either Phase One or Phase Two.

Instead, API appears to argue that the bankruptcy court was

prohibited from making any adverse findings against API, because the

state court found during Phase One that API “did everything it was

supposed to do under the contract” and “did nothing wrong in their

dealings with the defendants.” These general Phase One findings pertain to

breach of contract, foreclosure on mechanic’s lien, and quantum meruit,

but not fraud. A blanket statement that API performed under the

Subcontract and did “nothing wrong” in the context of breach of contract

does not relate to the elements of fraud under § 523(a)(2)(A).

C. The bankruptcy court did not err in allowing Mr. Davis to refresh his recollection with Exhibit G.

API argues that the bankruptcy court erred in allowing Mr. Davis to

refresh his recollection with Exhibit G during the § 727 Trial.

“Under Federal Rule of Evidence 612, a witness may use a writing to

refresh his or her recollection only if (1) the witness requires refreshment,

and (2) the writing actually refreshes the witness’s memory.” United States

v. Carey,

(5th Cir. 2009). “[T]he admissibility of testimony

accompanied by a Rule 612 refreshment does not depend upon the source

23 of the writing, the identity of the writing’s author, or the truth of the

writing’s contents, for ‘[i]t is hornbook law that any writing may be used to

refresh the recollection of a witness.’”

(citation omitted). The

Ninth Circuit agrees that “[t]he federal rule recognizes few if any

limitations upon the kind of material that may be used to refresh

recollection . . . .” Johnston v. Earle,

(9th Cir. 1962).

API argues that Mr. Davis could not use Exhibit G to refresh his

memory because it must have been a fabricated document, there was

handwriting on the document, and there was no foundation as to the

handwriting. But “even inadmissible evidence may be used to refresh a

witness’s recollection.” Fraser v. Goodale,

(9th Cir. 2003)

(citations omitted). Even assuming the document was fabricated (and API

did not prove that it was), the bankruptcy court did not admit its contents

or the handwritten notes; it only allowed Mr. Davis to use the document to

refresh his recollection as to how he valued his business entities.

API further complains that it was “unable to properly prepare” and

was “surprised” when the bankruptcy court permitted Mr. Davis to utilize

Exhibit G. It contends that Mr. Davis did not produce Exhibit G during

discovery and testified that he had no financial documents. At trial,

Mr. Davis’ counsel explained that he had just recently received the

document from a third party. Further, API’s claim of “surprise” is

disingenuous: Mr. Davis had included Exhibit G in his list of trial exhibits,

24 and the parties stipulated before trial that they had exchanged copies of all

exhibits.5 As the bankruptcy court pointed out, if API had any concern

about Exhibit G, it should have sought to exclude Exhibit G through a

pretrial motion in limine. It failed to do so. The bankruptcy court did not

deny API due process.6

D. The bankruptcy court did not err in proceeding with the § 523 Trial before the state court adjudicated Phase Three.

API argues that the bankruptcy court’s decision to terminate the stay

of the adversary proceeding and try the § 523 claims without waiting for

the state court was erroneous and violated its constitutional rights.

But API did not object to, and in fact acquiesced in, the court’s

decision to proceed. Shortly before the court lifted the stay in April 2017,

API filed a status report indicating that it would be ready for trial “[e]ither

at the conclusion of pending State Court Fraud litigation or earlier at the

5 At oral argument, API’s counsel insisted that he had never seen Exhibit G before trial and was not given a chance to examine it. The record shows otherwise. The parties’ Second Amended Joint Pretrial Stipulation and Order filed on November 7, 2014 (drafted by API) provides, “Attached is a list of exhibits intended to be offered at the trial by the Plaintiff and the Defendant . . . . The parties have exchanged copies of all exhibits.” Under “Defendant’s Exhibits,” the seventh exhibit listed “The D&S Homes balance sheet dated December 31, 2007.” This exhibit corresponds with the Exhibit G used at the § 727 Trial. 6 We reject Mr. Davis’ argument that API waived its challenge to Exhibit G when it failed to object before the trial court. Although API initially objected only on the bases of hearsay and lack of foundation, it later renewed its objection, eventually arguing that it was improper to use Exhibit G to refresh Mr. Davis’ recollection.

25 direction of the Bankruptcy Court.” (Emphasis added.) It summarized the

delays in the State Court Action and concluded, “[API] respectfully

requests that the trial of the instant adversary proceeding immediately

follow trial in Phase III of the State Court Action referenced above, or that

the Court in its discretion schedule trial of this matter at an earlier date.”

(Emphasis added.) API waived any objection to the bankruptcy court

proceeding with the § 523 Trial.

API additionally misunderstands the law. It argues that the

bankruptcy court infringed its Seventh Amendment right to a jury trial,

because the state court would have held a jury trial but the bankruptcy

court did not.

API is patently mistaken. In Hashemi v. American Express Travel Related

Services Co. (In re Hashemi),

(9th Cir. 1996), as amended (Jan. 24,

1997), the Ninth Circuit held in a § 523(a)(2)(A) case that “[a]ctions to

determine the nondischargeability of debts . . . are equitable in nature. . . .

Bankruptcy litigants therefore have no Seventh Amendment right to a jury

trial in dischargeability proceedings.” Id. at 1124 (citations omitted). “[A]

bankruptcy litigant waives his right to a jury trial in proceedings ‘vital to

the bankruptcy process of allowance and disallowance of . . . claims.’” Id. at

1125 (quoting Benedor Corp. v. Conejo Enters., Inc. (In re Conejo Enters., Inc.),

, 354 n. 6 (9th Cir. 1996)). Accordingly, the § 523 claims were not

subject to the Seventh Amendment or state law guaranteeing a jury trial.

26 This argument also rests on an unstated premise that is false. The

implicit premise is that if there are overlapping proceedings in the state

court and the bankruptcy court, and a party has a right to a jury trial in the

state court but not in the bankruptcy court, the Seventh Amendment

requires the bankruptcy court to stay its hand until the state court

proceeding is complete. API cites no authority for this proposition, and we

are aware of none.

Additionally, API complains that the court violated its due process

rights when it sua sponte reversed its decision to stay the adversary

proceeding. But the bankruptcy court always retains the power to control

its own docket. See Mediterranean Enters., Inc. v. Ssangyong Corp.,

, 1465 (9th Cir. 1983) (“The trial court possesses the inherent power to

control its own docket and calendar.”). It may “find it is efficient for its

own docket and the fairest course for the parties to enter a stay of an action

before it[.]” Id. (quoting Leyva v. Certified Grocers of Cal., Ltd.,

(9th Cir. 1979)). Conversely, a stay is not warranted if its imposition is

inefficient or unfair to a party.

In this case, by the time the bankruptcy court decided to proceed

with the § 523 Trial, seven years had passed since the petition date in 2010,

and over two years had passed since the bankruptcy court issued the § 727

27 Judgment in 2014.7 The bankruptcy court was within its discretion to avoid

any further delay in the adjudication of the remaining claims.

E. The bankruptcy court did not err in finding Mr. Davis credible and finding API’s witnesses not credible.

API argues that the bankruptcy court erred in determining the

credibility of the witnesses. It contends that Mr. Davis cannot be credible

because he lied by failing to disclose assets, and the court threatened to

sanction him for failing to comply with court orders. Conversely, it argues

that the Ludlows and Mr. Poles were completely believable.

We afford the bankruptcy court great deference in its determinations

of witness credibility. As the United States Supreme Court explained, when

evaluating factual findings, “we give singular deference to a trial court’s

judgments about the credibility of witnesses. That is proper, we have

explained, because the various cues that ‘bear so heavily on the listener’s

understanding of and belief in what is said’ are lost on an appellate court

later sifting through a paper record.” Cooper v. Harris,

(2017) (citations omitted). It has further instructed that an attack on

credibility determinations rarely succeeds, because “when a trial judge’s

finding is based on his decision to credit the testimony of one of two or

more witnesses, each of whom has told a coherent and facially plausible

story that is not contradicted by extrinsic evidence, that finding, if not

7 Mr. Davis represents that Phase Three is still pending in the State Court Action.

28 internally inconsistent, can virtually never be clear error.” Anderson,

; see Fed. R. Civ. P. 52(a)(6) (incorporated by Fed. R. Bankr. P.

7052).

In the present case, the bankruptcy court was presented with

conflicting testimony by Mr. Davis and API’s witnesses. The bankruptcy

court judged Mr. Davis’ testimony to be credible, but did not believe API’s

witnesses. We cannot disturb these credibility findings.

F. The bankruptcy court did not err in rejecting API’s expert witness’ testimony.

Finally, API contends that the bankruptcy court impermissibly

discounted Mr. Poles’ expert testimony. It argues that the bankruptcy court

violated API’s due process rights and improperly acted as an expert

witness to counter Mr. Poles.

API’s argument is nonsensical. The court properly performed its duty

as the gatekeeper of the record and the finder of fact. It correctly rejected

Mr. Poles’ expert opinion regarding Mr. Davis’ intent and mental state.

Nothing in the record suggests that Mr. Poles had any “scientific, technical,

or other specialized knowledge [that would] help the trier of fact” peer into

Mr. Davis’ mind and ascertain his subjective intentions. See Fed. R. Evid.

702.

Additionally, a court is not obligated to blindly accept expert

testimony, even if uncontroverted. The Ninth Circuit has acknowledged

29 that “[e]xpert testimony . . . is not conclusive upon the trier of fact, even

though unimpeached and uncontradicted, since the trier may apply his

own experience or knowledge in determining how far to follow the

expressed opinion.” Sec.-First Nat’l Bank of L.A. v. Lutz,

(9th Cir. 1963) (emphasis added); see Wilbur-Ellis Co. v. M/V Captayannis

“S”,

(9th Cir. 1971) (following Supreme Court dictate that

“the court is not bound to accept uncontroverted testimony at face value if

it is improbable, unreasonable or otherwise questionable”).

In short, the bankruptcy court did not err when it did not credit

Mr. Poles’ expert opinions.

CONCLUSION

The bankruptcy court did not err. We AFFIRM.

30