in bankruptcy court what we're trying to do in this case is to hold other respondent christie to lobby accountable for the wrongful destruction and taking of property owned by my client  natural point for a discussion about this case is that which is not disputed between the parties this is a voice up ok certainly specifically the underlying conduct which gave rise to this action at the summary judgment stage in bankruptcy court the respondent did not dispute the nature or the extent of the damage that she inflicted upon the property during a time when she admits that she had no interest in the or the bankruptcy court or for that matter the bankruptcy appellate panel that ms to lobby wrongfully inflicted extensive damage to this property removed fixtures during that time she knew she had no entitlement to the property and when i say fixtures it's important to understand that this is not just talking about you know removing a barbecue or removing a refrigerator something that reasonable minds could disagree about whether is part of the realty or an item of personal walls she ripped out the fireplace mantle and the water heaters and the garbage disposals and so forth in so doing again this is undisputed these actions by by the responded in so doing she inflicted collateral stoppel in the bankruptcy court action to not allow just charge of the death precisely your honor and a long line of california cases and ninth circuit cases says that that is the rule it's important to note that this is not you know up your play default situation where the defendant could not be located and you know she didn't cooperate with the in her briefing before this court the importance of the procedural history in this case really cannot be understated i think it's easy a lot of times required certainly for a litigators to kind of breeze over the procedural posture but in this case the genesis of this dispute was an adversary proceeding initiated under section five twenty three eighty six the state court complaint came after the adversary proceeding was initiated in bankruptcy court  state court complaint and all material respects was virtually identical to the adversary complaint filed in bankruptcy court for purposes of attending a fed judgment in superior court on conversion and waste her mental but there she maliciously intended to injure the property is not a necessary element in order for you to prevail on those your judgment and then she says here prepare the judgment and then what you do if you just basically take everything from the complaint and put it into the judgment and then she signs of your honor what is that first off may be inferred from the nature of the act themselves so we didn't need missed a law to stand and take the stand and testify that i had a malicious intent in order to find malice the state court properly adjudicated  what it believed to be her intent to ask for peanut damages in the program now and i don't believe that it was necessary to do so why was it necessary for the district for this for that superior court judge to say anything about nouns when your claims were for conversion waste again while it is not absolutely necessary for a state court to make a finding of malice in order to sustain a common law cause of action for waste in conversion nothing in the law of collateral estoppel prevents it from doing so and nothing in the law of collateral estoppel provides that a subsequent court as a matter of law must is prohibited from considering those facts you know then this notion of the necessarily decided element of collateral estoppel was misapplied by the batf in this case what that element mean that element is an alternative to the expressed findings requirement and in the interest of time you know which is silent as to a particular fact may nevertheless be entitled to collateral estoppel effect in a subsequent proceeding if the finding in question was necessary to sustain that judgment it does not mean the flipside which is what th held here which is that anything that is absolutely anything that is not absolutely necessary to sustain the judgment must as a matter of all be disregarded that's not the one no case state or federal law has made such a finding good morning your honor sir michael burger from the losses of michael j berger on behalf of the defendant and absolutely christie twenty it seems to me that the court understand issues and gets it and that the battle exactly understood the issues and ruled correctly points he's busy looking over there for the for that this particular language in the judgment from this superior judge rightly yes i've got that figured out ok so why if you go to paragraph seven on page six of the judgment i've got to get why isn't the finding in taking answer well first thing they told me was that it's a different wilful and malicious that the words are the same but they don't mean the same thing that in order to make a finding under five twenty six it's something different from in state court  and they don't have the money it's not willful malicious injury to not worry trees this is one of the problems with the state court judgement that i argued to judge riblet it's a mix some things my client did i think were just clearly wrong what well it means different things in different contexts in the state court it seems you just mean intentional that it was an accident that you meant to do it but in bankruptcy court it's like you ran over someone who was sleepwalking  did so willful malicious injuries an interesting area since you mention that you know i am a certified specialist in bankruptcy law and i have a litigator a lot of these cases and it used to be that it was really clear that the example i would give is that your grandson want to over you put your car in reverse and you ran him over again hey there's no question your ram over the second time that's too much but i had never seen a case that said not watering trees i written not by the judge but by plaintiff's counsel plaintiff's counsel copies the complaint and puts in all the allegations but there was no finding no testimony no hearing they got whatever they wanted they said it's three hundred thousand court finds that defendants acted deliberately willfully and intended to cause injury to the plane of security right and i isn't that the same inquiry and that last part about intent to cause injury to the property was the same as injury to the property  means conduct means negligence that's not the law of the state of california and that is not what occurred in this case counsel's effectively testifying to what i want or are you argu know nothing in the record to support comments of what the water bill was going to be these sorts of arguments if she had she had an opportunity to  response of the substance of the allegations against her in the state court she forfeited that opportunity by disobeying court orders numerous independent court orders to compel her appearance sure she flat out refused to participate