FILED AUG 12 2021 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY.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 No. WW-21-1042-TLB HAYLEY MARIE ROBINSON, Debtor. Bk. No. 19-bk-11724-MLB

HAYLEY MARIE ROBINSON, Adv. No. 19-ap-01105-MLB Appellant, v. MEMORANDUM∗ OSCAR LEE OLIVE, IV, Appellee.

Appeal from the United States Bankruptcy Court for the Western District of Washington Marc L. Barreca, Chief Bankruptcy Judge, Presiding

Before: TAYLOR, LAFFERTY, and BRAND, Bankruptcy Judges.

INTRODUCTION

Model Hayley Robinson1 posted a Facebook video wherein she

accused appellee Oscar Lee Olive, IV, 2 a photographer, of sexually

∗ 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. 1 The principal actors involved in the incidents giving rise to this appeal use

professional aliases that are sometimes referred to in the trial transcripts and elsewhere. Ms. Robinson uses the alias “Ireland Rose.” assaulting another model. Mr. Olive sued her in federal court for

defamation and intentional infliction of emotional distress. Ms. Robinson

then filed a chapter 7 3 bankruptcy case, and Mr. Olive responded with an

adversary proceeding seeking to have his claims adjudicated and the

resulting judgment declared nondischargeable.

After a trial, the bankruptcy court found that Mr. Olive had

established the elements of a defamation claim under Washington law and

the elements for excepting the resulting debt from discharge under

§ 523(a)(6). The bankruptcy court’s key findings were based on its

credibility determinations and are adequately supported by the record.

Accordingly, we AFFIRM.

FACTS4

Mr. Olive owned Shutter Fun, a business primarily involving erotic

photography. He made substantial income from his photography business,

and his photos had been published by entities such as Penthouse. In

addition to running his photography business, Mr. Olive was a

United States Marine.

2 Mr. Olive goes by his middle name, Lee, and he also uses the alias “Lee Richardson.” 3 Unless specified otherwise, all chapter and section references are to the

Bankruptcy Code, 11 U.S.C. §§ 101–1532, all “Rule” references are to the Federal Rules of Bankruptcy Procedure, and all “Civil Rule” references are to the Federal Rules of Civil Procedure. 4 Most of the relevant background facts are undisputed and are taken from the

bankruptcy court’s oral ruling. 2 In June 2016, Ms. Robinson and her boyfriend at the time, Justus

Keppel, flew to Washington, D.C., at Mr. Olive’s invitation, so that

Ms. Robinson could participate in photo shoots. From June 28, 2016,

through July 11, 2016, Ms. Robinson, Mr. Keppel, and another model,

Kiersten Alexandra Klag,5 stayed at Mr. Olive’s house in Maryland.

During this period, Mr. Olive and Ms. Robinson had disagreements,

including disputes arising from Ms. Robinson’s failure to attend modeling

sessions arranged by Mr. Olive, her refusal to sign a “house rules” contract,

and a disagreement about the rate Mr. Olive charged other photographers

for Ms. Robinson's modeling services. 6

On July 3, 2016, an incident occurred in an upstairs bedroom of

Mr. Olive’s house. Present were Ms. Robinson, Mr. Keppel, Mr. Olive, and

Ms. Klag. There was an interaction between Ms. Klag and Mr. Olive that

was witnessed by Ms. Robinson (the “July 3 Incident”).

Following the July 3 Incident, Ms. Robinson resided at Mr. Olive’s

house until July 11, 2016, when Ms. Robinson advised that she would no

longer work with Shutter Fun. Later that night, Ms. Robinson told

Mr. Olive that she, Mr. Keppel, and some other models would be leaving

Mr. Olive’s home to stay elsewhere. Mr. Olive became upset, and, at some

5 Ms. Klag uses the alias “Lacey Kyle.” 6 Mr. Olive arranged photo shoots with other photographers and would quote a rate that the photographer would pay directly to the model. 3 point, Ms. Robinson called the police, who facilitated her exit from

Mr. Olive’s home.

That same evening, Ms. Robinson posted on Facebook a video in

which she stated that Mr. Olive sexually assaulted Ms. Klag during the

July 3 Incident. As a result, Mr. Olive allegedly lost income from his

photography business. Further, many models saw the video, and

numerous models posted comments on Facebook in reaction to the video

indicating that they would no longer work with Mr. Olive.

The next day, July 12, 2016, Mr. Keppel, Ms. Robinson, and others

accompanied Ms. Klag to a local police station to assist Ms. Klag in

reporting the July 3 Incident as a sexual assault. Eventually, a Naval

Criminal Investigation Service (“NCIS”) investigation was initiated which

culminated in an administrative separation hearing. Mr. Olive was initially

discharged from the military under other than honorable conditions, but he

later applied to have his discharge reviewed, which resulted in his

discharge status being upgraded to “General Under Honorable

Conditions.”

On July 13, 2016, Ms. Robinson uploaded another video to Facebook,

this time to Mr. Keppel’s Facebook account, discussing the July 3 Incident.

In that video, she gloated that NCIS went to Mr. Olive’s house and that he

was “done” as a photographer.

Several months later, on November 1, 2016, Mr. Olive received a text

message from Ms. Robinson in which she apologized for accusing him of 4 sexual assault and for previously believing Ms. Klag’s assertion that a

sexual assault occurred. The next day, Ms. Robinson posted on Facebook a

statement referencing her earlier video posts and explaining that the sexual

assault allegation was false. Ms. Robinson also had a telephone

conversation with Mr. Olive, during which she apologized and stated that

she wished she had all the information “before jumping on the huge witch

hunt.”

In 2018, Mr. Olive sued Ms. Robinson in the United States District

Court for the Western District of Washington seeking $2 million in

damages based on Ms. Robinson’s false allegations. The district court

litigation was pending when Ms. Robinson filed her chapter 7 bankruptcy

petition in May 2019. Mr. Olive timely filed an adversary proceeding

seeking to have Debtor’s debt to him declared nondischargeable under

§ 523(a)(6) based on his state law claims for defamation and intentional

infliction of emotional distress.

The bankruptcy court held a two-day trial, at which it heard the

testimony of Mr. Olive, Ms. Robinson, Eric Franklin, a photographer who

had previously served in the Marines, and Caitriona Hogan, a model and

video producer. Ms. Klag did not testify.

After trial, the bankruptcy court orally ruled that Mr. Olive had

established the elements of a defamation claim under Washington law and

for a declaration of nondischargeability of the resulting damages under

5 § 523(a)(6).7 The bankruptcy court also granted relief from stay for the

parties to return to the district court for a determination of damages. 8

Ms. Robinson timely appealed.

Immediately before oral argument in the appeal, the District Court

issued a judgment that assessed general damages against Ms. Robinson in

the amount of $15,000. Mr. Olive sought actual damages of $63,203 based

on an alleged loss of income. Ms. Robinson did not oppose this request, but

the District Court, nonetheless, found that Mr. Olive’s evidence failed to

establish damages as he requested. Instead, it awarded damages of $15,000

7 The bankruptcy court found that Mr. Olive had failed to establish his claim for intentional infliction of emotional distress. Mr. Olive did not cross-appeal that ruling. 8 The bankruptcy court’s order includes the language, “this is a final order on the

issues of nondischargeability of Plaintiff’s claims herein.” Although the order does not contain an express finding that “there is no just reason for delay” as required by Civil Rule 54(b), applicable via Rule 7054, it is clear from the bankruptcy court’s comments during the oral ruling that it intended the order to be final for purposes of appeal. See Hr’g Tr. (Jan. 7, 2021) at 22:4-9 (“[I]f you’re going upstairs [to district court] . . . for the damages portion, then the judgment I would be entering now would be a final judgment for purposes . . . of any appeal by Mr. Hathaway’s client [Ms. Richardson].” We, thus, determine that this judgment is final for purposes of this appeal. We also note that the District Court finally decided the damages issue on July 9th, 2021. Its determination is now final. We finally acknowledge that the law regarding whether defamation is a “personal injury tort” that ”shall be tried in the district court” pursuant to

(b)(5) is unclear. But the Supreme Court determined in Stern v. Marshall,

(2011), that this statute is not jurisdictional. And Rule 7012-1(c) of the Local Rules of the Bankruptcy Court for the Western District of Washington provides that silence, in the face of a requirement that the parties file a document regarding consent to adjudication by the bankruptcy court, constitutes deemed consent. Here, the bankruptcy court had jurisdiction to liquidate the defamation claim and to determine if it was nondischargeable. 6 because Ms. Robinson’s initial Facebook post constituted defamation per

se. “The imputation of a criminal offense involving moral turpitude [is]

clearly libelous per se.” Caruso v. Local Union No. 690 of Int’l Brotherhood of

Teamsters,

(Wash. 1983) (citation omitted). The District

Court concluded that defamation per se is actionable without proof of

special damages as damage can be presumed. It awarded $15,000 based on

the presumed negative impact on Mr. Olive’s business, the mental anguish

associated with a false accusation of criminal conduct, and the ameliorative

fact that Ms. Robinson only posted the accusation once and later published

a retraction. This determination is now final.

JURISDICTION

The bankruptcy court had jurisdiction under

and

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

.

ISSUES

Did the bankruptcy court err in finding Ms. Robinson liable for

defamation?

Did the bankruptcy court err in finding the resulting debt

nondischargeable under § 523(a)(6)?

STANDARDS OF REVIEW

We review the bankruptcy court’s conclusions of law de novo and its

factual findings for clear error. Carillo v. Su (In re Su),

(9th Cir. 2002).

7 “Whether a claim is nondischargeable presents mixed issues of law

and fact and is reviewed de novo.”

(citing Murray v. Bammer (In re

Bammer),

, 791–92 (9th Cir. 1997) (en banc)). “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).

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). If two views of the evidence are

possible, the trial court’s choice between them cannot be clearly erroneous.

Anderson v. City of Bessemer City,

(1985). We give particular

deference to findings of fact based upon credibility.

. This is

because a reviewing court must give due regard to the opportunity of the

trial court to judge the credibility of witnesses. See Arab Monetary Fund v.

Hashim (In re Hashim),

, 924–25 (9th Cir. BAP 2007) (citing Civil

Rule 52(a), incorporated by Rule 7052; Rule 8013). Deference is also given

to the inferences drawn by the trial court.

.

DISCUSSION

A. Appellee’s request for judicial notice is denied.

Mr. Olive requests the Panel take judicial notice of: (1) the first

amended complaint filed in the district court; (2) a page from Marine Corps

Order 1900.16 showing that a military or civil conviction is not required for

discharge; and (3) the district court’s order setting deadlines regarding a 8 motion for damages. Ms. Robinson opposes this request. Mr. Olive

contends that these documents are relevant to the issues on appeal. We

disagree. Moreover, the documents were not presented at trial nor were

they otherwise before the bankruptcy court when it was making its

decision. Accordingly, the request is DENIED.

B. The bankruptcy court did not err in finding Ms. Robinson liable for defamation. To establish defamation under Washington law, the plaintiff must

prove the following elements by a preponderance of the evidence: (1) a

false statement, (2) publication, (3) fault, and (4) damages. Duc Tan v. Le,

(Wash. 2013) (en banc). The court’s finding that the

publication element was met--by the statement being posted on Facebook

where it was seen by many individuals—is not in dispute.

In assessing the falsity of a statement, courts examine whether the

statement at issue is one of fact rather than opinion, as the latter is

protected by the First Amendment. Camer v. Seattle Post-Intelligencer,

(Wash. App. 1986). In determining whether a statement

is non-actionable opinion, Washington courts consider the totality of the

circumstances, specifically: “(1) the medium and context in which the

statement was published, (2) the audience to whom it was published, and

(3) whether the statement implies undisclosed facts.” Dunlap v. Wayne,

(Wash. 1986) (en banc).

9 The bankruptcy court found that these factors weighed against

finding Ms. Robinson’s initial Facebook post to be non-actionable opinion.

First, Ms. Robinson testified that she posted the video on Facebook to

spread awareness about the sexual assault to protect other models, and in

fact many of her Facebook followers despised Mr. Olive as a result of the

allegation. The court also found that viewers of the video would not likely

assume that a statement accusing someone of sexual assault was an

expression of opinion rather than a statement of fact.

The second factor, the audience to which the statement was

published, requires the court to determine “whether the audience expected

the speaker to use exaggeration, rhetoric, or hyperbole.”

The

bankruptcy court found that there was no evidence the intended audience

of other models would have any reason to expect Ms. Robinson to

exaggerate or mischaracterize the sexual assault.

The third factor, whether the statement implies undisclosed facts, is

the most crucial.

The bankruptcy court found this element weighed

against finding the statement to be non-actionable opinion because the

video included no underlying facts forming the basis for the allegation.

Based on the foregoing, the bankruptcy court determined that

Mr. Olive had established that Ms. Robinson made a false statement.

With respect to fault, a private individual need only show that the

defendant negligently published defamatory matter. Eubanks v. N. Cascades

Broad.,

, 372 (Wash. App. 2003). The court found that this 10 standard was met (indeed, exceeded) because Ms. Robinson intentionally

made and posted the video, in her words, “to spread awareness to the

modeling industry.” Trial Tr. (Nov. 30, 2020) at 66:17-23.

As for damages, although the bankruptcy court did not quantify

them, based on the evidence it found that Mr. Olive’s photography

business was harmed as a result of the false allegation in the Facebook

video.9

On appeal, Ms. Robinson does not address publication, fault, or

damages. She focuses her argument on the false statement element,

arguing that: (1) she had reasonable grounds for belief in the truth of the

content of her statements regarding sexual assault; or (2) her statements

regarding the sexual assault were nonactionable opinion. And at oral

argument, she doubled down — asserting that a sexual assault occurred.

As for the first contention, she lists several items of evidence from

trial, including her own testimony that she did not believe the sexual

interaction between Mr. Olive and Mr. Klag was consensual. 10 But the

9 The bankruptcy court found that Mr. Olive had not presented any evidence supporting a finding that his discharge from the military was caused by statements made by Ms. Robinson in the Facebook post. 10 Other evidence cited included evidence that she and Ms. Klag reported the

July 3 Incident to Ms. Kim; that after the July 3 Incident Ms. Robinson was presented with house rules contracts; Ms. Klag reported the incident to the local police; the police referred the allegation to NCIS; Mr. Olive was accused of attempting to persuade a potential witness to change her statement to NCIS; a Marine Corps Discharge Board found that Mr. Olive committed orders violations and sexual assault; and Mr. Olive’s original and revised DD-214s stated that he committed sexual assault. She also points 11 bankruptcy court did not believe Ms. Robinson’s testimony on this point,

finding that she “knew from the beginning that the sexual assault

allegation was false.” Hr’g Tr. (Jan. 7, 2021) at 8:3-5. As noted, we afford

considerable deference to a bankruptcy court’s findings and inferences that

are based on credibility determinations. And Mr. Olive testified to the

contrary; the trial court's choice between two plausible views of the

evidence cannot be clearly erroneous. Anderson,

.

As for her contention that her statement was nonactionable opinion,

she does not refute any of the bankruptcy court’s findings supporting its

contrary conclusion. She erroneously relies on an unpublished decision,

Pardee v. Evergreen Shores Beach Club, No. 53126-7-II,

, at *7

(Wash. App. Jun. 23, 2020), for the proposition that “audiences of

statements posted on a social media page expect the speaker to use

exaggeration, rhetoric, or hyperbole.” In fact, the court in Pardee was

referring to a specific social media page, not to social media postings in

general.

In short, while there may have been some evidence (i.e.,

Ms. Robinson’s testimony) to support a finding that Ms. Robinson did not

know the allegation was false when she made it, the bankruptcy court

found otherwise based on its credibility determination. Accordingly, we

out that there was no evidence that Ms. Klag ever recanted, and she opines that Mr. Olive was evasive and provided contradictory testimony at trial.

12 find no clear error or mistake of law in its conclusion that Ms. Robinson

was liable for defamation under Washington law.

C. The bankruptcy court did not err in finding the resulting debt nondischargeable under § 523(a)(6). Section 523(a)(6) excepts from discharge debts resulting from “willful

and malicious injury by the debtor to another entity or to the property of

another entity.” Ormsby v. First Am. Title Co. of Nev. (In re Ormsby),

(9th Cir. 2010) (quoting § 523(a)(6)). A plaintiff seeking to except

a debt from discharge under this section must prove that the actor intended

the consequences of the act, not simply the act itself. Id. Both willfulness

and maliciousness must be proven to block discharge under § 523(a)(6). Id.

The “willful injury requirement is met only when the debtor has a

subjective motive to inflict injury or when the debtor believes that injury is

substantially certain to result from his own conduct.” Id. (quoting In re Su,

). The debtor is charged with the knowledge of the natural

consequences of his actions.

“A malicious injury involves (1) a wrongful act, (2) done

intentionally, (3) which necessarily causes injury, and (4) is done without

just cause or excuse.”

at 1207 (quoting Petralia v. Jercich (In re Jercich),

(9th Cir. 2001)). Malice may be inferred based on the

nature of the wrongful act.

The bankruptcy court found that all the requisite elements had been

met. It found that the evidence supported a finding that Ms. Robinson

13 acted willfully, i.e., with a subjective motive to inflict injury, when she

posted the first Facebook video, as demonstrated by her “glee” in the

second Facebook video in having caused Mr. Olive harm. The court also

found the evidence supported an inference that Ms. Robinson made the

false allegation as a result of the disputes that had arisen between her and

Mr. Olive during her stay at his home.

As for maliciousness, the bankruptcy court found that

Ms. Robinson’s posting of the first Facebook video knowing that the sexual

assault allegation was false constituted a wrongful act and that intent to

injure was demonstrated by: (1) her admission that she posted the video to

inform other models; and (2) her gloating in the second Facebook video

that Mr. Olive’s business was ruined. The bankruptcy court also found that

the conduct necessarily caused injury to Mr. Olive’s business and that such

injury was readily foreseeable as a result of the false allegation, and that

Ms. Robinson had not established just cause or excuse for her conduct. The

evidence supports these findings.

On appeal, Ms. Robinson’s entire argument regarding the

nondischargeability claim is the conclusory statement, “Appellant’s

statements were not willful or malicious. They were not reckless or

negligent. They were not provably false. The Appellant had reasonable

grounds for belief in the truth of the content of her statements regarding

sexual assault or that her statements regarding sexual assault were

nonactionable opinion.” But, as stated above, the bankruptcy court did not 14 believe Ms. Robinson’s testimony that she thought the allegation was true

at the time she posted the first Facebook video. Ms. Robinson has failed to

show that the bankruptcy court erred in concluding that all of the elements

of a § 523(a)(6) claim were met.

CONCLUSION

For these reasons, the bankruptcy court did not err in finding

Ms. Robinson liable for defamation under Washington law or in finding the

resulting debt nondischargeable.

We therefore AFFIRM.

15