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NOTFOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. EC-15-1033-JuDTa

)

GLENN FRED HAGELE, JR., ) Bk. No. 14-23470

)

Debtor. ) Adv. No. 14-02200

______________________________)

)

GLENN FRED HAGELE, JR., )

)

Appellant, )

)

v. ) M E M O R A N D U M1

)

LAURANELL BURCH, )

)

Appellee. )

______________________________)

Argued and Submitted on June 23, 2016

at Sacramento, California

Filed - July 18, 2016

Appeal from the United States Bankruptcy Court for the

Eastern District of California

Honorable Christopher M. Klein, Bankruptcy Judge, Presiding

________________________

Appearances: Emry J. Allen appeared for appellant Glenn Fred

Hagele, Jr.; Appellee Lauranell Burch appeared

pro se. 

___________________________ 

Before: JURY, DUNN, and TAYLOR, Bankruptcy Judges.

Memorandum by Judge Jury

Concurrence by Judge Dunn

FILED

JUL 18 2016

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

1 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.

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Appellant Glenn Hagele (Debtor) appeals from the bankruptcy

court’s judgment holding that his debt to Appellee Lauranell

Burch (Burch) is nondischargeable under § 523(a)(6).2 The

bankruptcy court held that the state court prepetition judgment

entered in favor of Burch and against Debtor for defamation and

unfair trade practices established “willful and malicious

injury” under § 523(a)(6). For the reasons stated below, we

AFFIRM.

I. FACTS

The instant dispute arises out of a prepetition state court

action in which Debtor was found to have published defamatory

statements against Burch. Burch is a medical research

scientist, employed at the National Institute of Environmental

Health Scientists in North Carolina, who holds a PhD in

molecular biology and genetics. In 2004, Burch’s eyes were

seriously damaged after she underwent Lasik surgery and, as a

result of this incident, she suffers from permanent eye damage. 

As such, since the surgery, Burch has applied her science

background to the study of medical literature relating to the

complications that can arise from refractive eye surgeries.3

Burch has been on numerous television programs devoted to the

risks associated with Lasik surgery and generally cautions about

2 Unless otherwise indicated, 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 “Civil Rule” references are to the Federal Rules of

Civil Procedure.

3 “Refractive surgery” is a term used to describe surgical

procedures that correct common vision problems.

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the dangers involved. Debtor founded and directs the Council

for Refractive Surgery Quality Assurance (CRSQA), which is a

patient advocacy group. This organization monitors all internet

bulletin boards, newsgroups, and other public forums that

pertain to refractive eye surgery, such as Lasik. The principal

function of CRSQA is to provide a “balanced response” if an

anti-refractive surgery advocate makes inflammatory statements.

On December 10, 2007, Debtor filed a defamation complaint

against Burch in the Superior Court of Wake County, North

Carolina, alleging that Burch was publishing documents

containing Debtor’s personal information in violation of N.C.

Gen. Stat. § 75-66 (State Court Action). On that same day,

Debtor obtained an ex parte temporary retraining order. At the

preliminary injunction hearing, on December 21, 2007, the

superior court denied Debtor’s motion for a further injunction

and dissolved the temporary restraining order. On April 28,

2008, Burch filed her first amended answer denying all

liability, and asserted two counterclaims against Debtor for

defamation and unfair trade practices in violation of N.C. Gen.

Stat. § 75-1.1 (collectively, the Defamation Claims). On

July 13, 2010, Debtor voluntarily dismissed all of his claims

against Burch; however, Burch’s Defamation Claims remained. 

On August 16, 2012, Burch filed a motion for partial

summary judgment asking the court to determine liability on the

Defamation Claims, leaving the issue of damages to a jury

determination at a later time. 

On December 2, 2012, the superior court issued an order

granting partial summary judgment in favor of Burch (Summary

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Judgment Order), finding: 

1. The evidence in the record establishes that there is no

genuine issue of material fact that Hagele made a number of

statements about Burch after May 3, 2007 to Burch’s

employer, in press releases, and over the Internet that

were false, including statements that falsely accused her

of publishing personal information on the Internet. 

2. The evidence in the record establishes that there is no

genuine issue of material fact these statements were of and

concerning Burch, published to others, and were defamatory

per se because they impeached her in her trade or

profession and tended to subject her to ridicule, contempt,

or disgrace. Accordingly, these statements constitute

actionable defamation as a matter of law. . . .

3. Further, the case law of North Carolina establishes that

defamation ‘impeaching a party in its business activities’

amounts to a violation of N.C. Gen. § 75-1.1.

On February 26, 2013, a jury unanimously determined that

Burch was entitled to compensatory damages in the amount of

$150,000.00 and punitive damages in the amount of $200,000.00

(collectively, the Jury Award). On August 9, 2013, the court

(1) entered judgment confirming the findings of the Summary

Judgment Order and the Jury Award; (2) determined that Burch was

entitled to post-judgment interest at the legal rate of 8%; and

(3) allowed Burch to recover attorneys’ fees incurred in

defending against Debtor’s claims. 

Due to the malicious nature of Debtor’s conduct, on

August 15, 2013, the court issued a permanent injunction

requiring Debtor to cease publishing defamatory statements and

to remove any statements which had been published (Permanent

Injunction Order). The court based the Permanent Injunction

Order’s findings and conclusions on the same evidence that was

found in the Summary Judgment Order and Jury Award. The

Permanent Injunction Order contained findings that: 

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1. The evidence at trial in this matter established that

Hagele’s conduct toward [Burch] was malicious. In

particular, his defamation of [Burch] was substantial and

included a large number of false statements made over an

extended period of time directly to [Burch]’s employer and

on numerous forums and websites on the Internet. The

evidence at trial further established that Mr. Hagele’s

defamation of [Dr. Burch] has caused, and is causing, 

[Burch] to suffer substantial harm. Finally, the evidence

at trial established that Mr. Hagele intended [Burch] to be

harmed by his conduct.

2. Given the widespread nature of Mr. Hagele’s defamation

of [Burch] on the Internet, [Burch] is substantially likely

to suffer additional harm in the future absent injunctive

relief directing Mr. Hagele to remove such defamation. The

Court finds and concludes based on the evidence introduced

at trial that such additional harm would be substantial and

irreparable absent injunctive relief requiring the removal

of Mr. Hagele’s defamation of her on the Internet.

3. The evidence adduced at trial also established that

Mr. Hagele continues to threaten to contact the employers

of certain critics of the Lasik procedure, and he continues

to threaten to disseminate information about [Burch]. The

Court finds and concludes based on the evidence introduced

at trial that [Burch] faces a substantial risk of

additional harm, and that such additional harm would be

substantial and irreparable, absent injunctive relief

enjoining Mr. Hagele from further contact with her current

employer.

4. The record also evidences further inequitable conduct on

Mr. Hagele’s part, including his engagement of a purported

private investigator who informed Mr. Hagele that he had

‘complete access’ to the home of a critic of the Lasik

procedure who passed along to Mr. Hagele emails that he

indicated he had ‘intercepted,’ including emails both to

and from [Burch]. This inequitable conduct, in addition to

intentional and malicious nature of Hagele’s conduct in

engaging in the defamation at issue in this case, further

warrants entry of injunctive relief.

On April 3, 2014, Debtor filed a chapter 7 bankruptcy case.

Thereafter, Burch filed a timely adversary proceeding seeking to

except the Defamation Claims from discharge under § 523(a)(6).

On December 5, 2015, Burch filed a summary judgment motion,

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arguing that collateral estoppel4 precluded relitigation of the

issues decided by the superior court in the Summary Judgment

Order, Jury Award, and Permanent Injunction Order (collectively,

the Superior Court Judgments). Burch contended that the

Superior Court Judgments determined that Debtor caused “willful

and malicious injury” to her under § 523(a)(6). 

On January 15, 2016, the bankruptcy court granted Burch’s

motion for summary judgment, finding the debt to be

nondischargeable under § 523(a)(6). In doing so, the court

relied heavily on Jett v. Sicroff (In re Sicroff), 401 F.3d 1101

(9th Cir. 2005), for the notion that, in a defamation suit,

there can be no “just cause or excuse” for an intentional lie. 

Debtor timely appeals to this court. 

II. JURISDICTION

The bankruptcy court had jurisdiction over this proceeding

under 28 U.S.C. §§ 1334 and 157(b)(2)(I). We have jurisdiction

under 28 U.S.C. § 158. 

III. ISSUE

Whether the bankruptcy court erred in granting summary

judgment for Burch on the basis of issue preclusion.

IV. STANDARDS OF REVIEW

We review summary judgment motions de novo. Gertsch v.

Johnson & Johnson (In re Gertsch), 237 B.R. 160, 165 (9th Cir.

BAP 1999). De novo review requires the Panel to independently

4 Although Burch premised her arguments on the application

of “collateral estoppel” this Panel, following the trend of most

federal courts, uses the more precise term “issue preclusion”

when considering the preclusive effect of a prior court judgment.

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review an issue, without giving deference to the bankruptcy

court’s conclusions. First Ave. W. Bldg., LLC v. James

(In re Onecast Media, Inc.), 439 F.3d 558, 561 (9th Cir. 2006).

“We review rulings regarding rules of res judicata,

including claim and issue preclusion, de novo as mixed questions

of law and fact in which legal questions predominate.” Khaligh

v. Hadaegh (In Khaligh), 338 B.R. 817, 823 (9th Cir. BAP 2006),

aff’d, 506 F.3d 956 (9th Cir. 2007) (citing Robi v. Five

Platters, Inc., 838 F.2d 318, 321 (9th Cir. 1988)). “Once it is

determined that preclusion doctrines are available to be

applied, the actual decision to apply them is left to the trial

court’s discretion.” Id. Such discretion is exercised in

accordance with state law, when state preclusion law controls.

Gayden v. Nourbakhsh (In re Nourbakhsh), 67 F.3d 798, 800 (9th

Cir. 1995).

Under the abuse of discretion standard of review, we first

“determine de novo whether the [bankruptcy] court identified the

correct legal rule to apply to the relief requested.” United

States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009)(en banc).

If the bankruptcy court identified the correct legal rule, we

then determine under the clearly erroneous standard whether its

factual findings and its application of the facts to the

relevant law were: “(1) illogical, (2) implausible, or

(3) without support in inferences that may be drawn from the

facts in the record.” Id. (internal quotation marks omitted).

V. DISCUSSION

A. Summary Judgment Standards

A trial court will appropriately grant summary judgment “if

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the pleadings, the discovery and disclosure materials on file,

and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a

matter of law.” Civil Rule 56(c)(2), as incorporated by

Rule 7056. The trial court does not weigh evidence but merely

determines whether material facts remain in dispute. Covey v.

Hollydale Mobilehome Estates, 116 F.3d 830, 834 (9th Cir. 1997).

A dispute is genuine if there is sufficient evidence for a

reasonable fact finder to hold in favor of the non-moving party,

and a fact is “material” if it might affect the outcome of the

case. Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th

Cir. 1997). 

The plaintiff carries the initial burden of production and

the ultimate burden of persuasion that there is “no genuine

issue as to any material fact.” Civil Rule 56(c). To meet this

burden, the plaintiff must provide conclusive evidence of “a

showing sufficient for the court to hold that no reasonable

trier of fact could find other than for the moving party.”

S. Cal. Gas Co. v. City of Santa Ana, 336 F. 3d 885, 888 (9th

Cir. 2003). The burden can shift to the non-moving party, who

must “go beyond the pleadings” and by his or her own affidavits,

depositions, answers to interrogatories, or admissions on file,

designate specific facts to demonstrate that there is a genuine

issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986).

B. Willful and Malicious Injury: § 523(a)(6)

Section 523(a)(6) provides in relevant part: “(a) A

discharge under section 727 . . . of this title does not

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discharge an individual debtor from any debt — . . . (6) for

willful and malicious injury by the debtor to another entity or

to the property of another entity[.]” 

In the Ninth Circuit, willfulness and malice are analyzed

separately and are not to be conflated. See Carrillo v. Su

(In re Su), 290 F.3d 1140, 1146 (9th Cir. 2002). Willful injury

requires an inquiry into the subjective state of mind of the

debtor. In re Su, 290 F.3d at 1145. The standard is met when

it is shown that the debtor either had a subjective motive to

inflict injury or the debtor believed that injury was

substantially certain to occur. Id. However, it is not enough

to merely prove that the debtor acted intentionally and caused

an injury. Kawaauhau v. Geiger, 523 U.S. 57, 61 (1998). 

Malicious injury requires: (1) a wrongful act, (2) done

intentionally, (3) which necessarily causes injury, and (4) is

done without just cause or excuse. Petralia v. Jercich

(In re Jercich), 238 F.3d 1202, 1208 (9th Cir. 2001).

It is well established that issue preclusion may be applied

in exception to discharge proceedings. Grogan v. Garner,

498 U.S. 279, 284 (1991). “Issue preclusion ‘bars successive

litigation of an issue of fact or law actually litigated and

resolved in a valid court determination essential to the prior

judgment, even if the issue recurs in the context of a different

claim.’” New Hampshire v. Maine, 532 U.S. 742, 748 (2001)

(quoting Hasnain v. Chadd (In re Hasnain), 2012 WL 5471453, at

*7 (9th Cir. BAP Nov. 9, 2012). 

C. Preclusion law of North Carolina 

Federal Courts must refer to the preclusion law of the

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state in which the judgment was rendered in order to determine

the preclusive effect of a state court judgment. Marrese v. Am.

Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985); Diruzza

v. Cty. of Tehama, 323 F.3d 1147, 1152 (9th Cir. 2003).

Therefore, North Carolina law on issue preclusion applies. The

elements for issue preclusion under North Carolina law are: 

(a) a prior suit resulting in a final judgment on the

merits; (b) identical issues involved; (c) the issue

was actually litigated in the prior suit and necessary

to the judgment; and (d) the issue was actually

determined.

Royster v. McNamara, 218 N.C.App. 520, 525-26 (2012); McDonald

v. Skeen, 152 N.C.App. 228, 230 (2002). 

1. Prior suit resulting in a final judgment on the merits

The first prong of issue preclusion requires a final

judgment on the merits. Under North Carolina law, a final

judgment is one that determines the entire controversy between

the parties, leaving nothing to be decided in the trial court.

Ratchford v. C.C. Mangum, Inc., 150 N.C.App. 197, 199 (2002).

The parties in the present case do not dispute that a final

judgment on the merits was entered in the state court. Thus,

the first element is satisfied.

2. Identical issues involved

The next and most critical prong requires comparison of the

issue presented in the prior state court action that resulted in

the defamation judgment with the issues presented in the current

case, whether Debtor acted willfully and maliciously. Under

North Carolina law, the term defamation applies to the two

distinct torts of libel and slander. A claim of libel per se

that defames a party in its business activities may be the basis

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of a claim for unfair and deceptive trade practices under N.C.

G.S. 75-1.1. See Ellis v. N. Star Co., 326 N.C. 219, 225-26

(1990). Therefore, the proof required for each claim is

identical. Libel per se is a publication which, when considered

alone without explanatory circumstances, tends to impeach a

person in that person's trade or profession, or otherwise tends

to subject one to ridicule, contempt or disgrace. Renwick v.

News and Observer Pub. Co., 310 N.C. 312 (1984).

In the Summary Judgment Order the North Carolina court

found that statements made by Debtor about Burch were defamatory

per se because the “statements published by [Debtor] impeached

Burch in her trade or profession and tended to subject her to

ridicule, contempt, or disgrace.” To give this conclusion

preclusive effect, however, we must find that the state court

specifically made a finding that Debtor acted both willfully and

maliciously under federal law when publishing the defamatory

statements for a determination that the debt is nondischargeable

under § 523(a)(6).

3. The willful element

As laid out above, the “willful” prong requires an inquiry

into the subjective state of mind of the debtor; the standard is

met when the debtor either had a subjective motive to inflict

injury or believed that injury was substantially certain to

occur. In re Su, 290 F.3d at 1145. Considering together the

Summary Judgment Order, Permanent Injunction Order, and Jury

Award, we find the “willful” requirement satisfied. 

The Summary Judgment Order included findings that Debtor

made a number of statements about Burch to Burch’s employer in

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press releases and over the Internet that were false, including

statements that falsely accused her of publishing his personal

information on the Internet. Moreover, the Permanent Injunction

Order found that: (a) Debtor’s conduct toward Burch was

malicious; (b) Debtor’s defamation was substantial and included

a large number of false statements made over an extended period

of time directly to Burch’s employer and on numerous forums and

websites on the Internet; (c) Debtor threatened to contact the

employers of certain critics of the Lasik procedure, and

threatened to disseminate information about Burch; (d) Debtor

has caused, and is causing, Burch to suffer substantial harm and

that Debtor intended Burch to be harmed by his conduct; and,

most significantly, (e) “. . . the evidence at trial established

that [Debtor] intended [Burch] to be harmed by his conduct.”

These findings show that Debtor intended to harm Burch as

required by the willful prong in In re Su. Therefore, because

Debtor knowingly published defamatory statements against Burch

with the actual intent to cause injury to her, Debtor’s conduct

was “willful” as that term is contemplated by § 523(a)(6). 

4. The malicious element

As defined above, malicious injury requires (a) a wrongful

act, (b) done intentionally, (c) which necessarily causes

injury, and (d) done without just cause or excuse. 

In re Jercich, 238 F.3d 1208. Because the Summary Judgment

Order found Debtor committed defamation, the first two prongs

are satisfied as a matter of law. See Jeff v. Sicroff

(In re Sicroff), 401 F.3d 1101, 1106 (9th Cir. 2005) (“A

libelous act, by its nature, is self-evidently wrongful and is

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committed by an intentional act of publication.”). The third

prong is likewise satisfied because Debtor’s statements were

directed at Burch’s professional reputation, which would

substantially harm her in her occupation. Indeed, the Permanent

Injunction Order was issued based on the harm caused by the

statements being “substantial and irreparable.” Therefore, the

first three elements of malice are directly provided by the

libel determination. The fourth element, “without just cause or

excuse,” is less straightforward since by its nature the lack of

good cause or excuse is not proved by the plaintiff with

affirmative evidence; just cause or excuse is a defense for the

debtor. 

In opposing the summary judgment, Debtor asserted that

there exists a triable issue of material fact on whether the

state court necessarily decided the “just cause or excuse”

element. Debtor first claimed that the burden of proof was on

Burch to show just cause or excuse.5 Next, Debtor asserted

Burch failed to prove that there was neither a just cause nor an

excuse for Debtor’s conduct. In ruling on the motion, the

bankruptcy court relied on In re Sicroff for the conclusion that

all defamation would be without just cause or excuse because

there can be no just cause or excuse for an intentional lie;

thus, the bankruptcy court held that Burch was entitled to

judgment as a matter of law. 

We do not read In re Sicroff so broadly, nor do we need to

5 This argument is nonsensical since Burch could never have

the burden to prove Debtor’s defense.

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rely on it to reach a decision in this case. In In re Sicroff,

the Ninth Circuit was presented with the issue of whether to

give the state court libel judgment preclusive effect under

§ 523(a)(6). The court found the first three elements of

“maliciousness” easily satisfied where a university professor

was defamed by an intentional act of publication that was

directed at the professor’s professional reputation. Id. at

1106. Based on an analysis of the record of that case the

circuit court ruled there could be no just cause or excuse

because the actions were taken to injure the professor’s

reputation. Id. at 1107. The bankruptcy court here took this

conclusion as a per se rule that there could never be just cause

or excuse for defamation. On our record, we need not rely on a

per se rule. 

Although in general a plaintiff has the burden to prove by

a preponderance of the evidence that the debt arose from willful

and malicious conduct, In re Jercich, 238 F.3d at 1208, just

cause or excuse is in the nature of an affirmative defense. 

Jercich by implication supports the position that a debtor must

first put forth the just cause or excuse. In In re Jercich, the

Ninth Circuit was presented with the issue of giving a prepetition state court judgment for unpaid wages preclusive effect

under § 523(a)(6). Id. at 1209. After the court concluded that

the debtor’s conduct was “malicious,” the court stated that the

debtor “pointed to” no just cause or excuse. Id. This

statement implies that a debtor carries the burden of going

forward on the final element of malice which may be satisfied by

the debtor affirmatively asserting “cause or excuse.” Debtor

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here did not meet this burden. 

In his responding papers, Debtor argued that he had just

cause to file the state court complaint against Burch because he

believed his allegations to be true. Therefore, he asserts a

material disputed fact as to that issue to defeat summary

judgment. This argument misses the mark. The defamation

judgment was not premised on his state court complaint, but

rather the independent defamatory statements alleged by Burch in

her cross-complaint. Nowhere in his opposition does Debtor

assert a just cause or excuse for those defamatory statements.

This failure by Debtor to put forth the necessary evidence of

just cause or excuse makes determination of the summary judgment

motion against him proper. With this final prong in place, the

malicious element is met.

5. The issue was actually litigated in the prior suit and

necessary to the judgment.

The third prong requires the matter to be “actually

litigated,” or stated another way, the parties must have

litigated whether Debtor engaged in willful and malicious

conduct against Burch. Matters are typically “actually

litigated” in North Carolina when the parties must have “enjoyed

a full and fair opportunity to litigate that issue in the

earlier proceeding.” Hillsboro Partners, LLC v. City of

Fayetteville, 738 S.E.2d 819 (2013). 

There is no doubt that this issue has been actually

litigated and the parties had a full and fair hearing. The

issues before the bankruptcy court were the central issues that

were litigated and evaluated by the state court jury and judge

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in order to determine whether Hagele was liable for the

Defamation Claims and whether Burch should be entitled to

punitive damages. Thus, this requirements is established.

6. The issue was actually determined.

As to the last prong, the Summary Judgment Order,

Injunction Order, and Jury Award all establish that the court

made detailed findings on the issues at hand. Thus, this

requirement is established.

In sum, the bankruptcy court did not err in applying issue

preclusion to the Superior Court judgment with regard to all the

elements of willful and to a finding of malice except for the

just cause or excuse defense of malicious. Because Debtor

failed to raise a material issue of disputed fact on this last

element, summary judgment for Burch ruling that the Superior

Court Judgment was nondischargeable under § 523(a)(6) was

proper. 

D. Attorneys’ fees as a measure of nondischargeable damage

Debtor asserts that because the attorneys’ fees awarded

were based on the unfair competition claim, they are not

nondischargeable as based on willful and malicious conduct. 

We disagree. Under North Carolina law, a claim of libel

per se that defames a party in its business activities may be

the basis of a claim for unfair and deceptive trade practices. 

See Ellis v. N. Star Co., 326 N.C. at 225-26. The record shows

that the basis for the unfair and deceptive trade practices

violation was the very same libel per se that we concluded was

willful and malicious. Section 75-16 of the North Carolina

deceptive trade practices statute provides for an award of

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attorney fees to a plaintiff who prevails on an unfair trade

practice claim, as did Burch here. Under the holding of Cohen

v. de la Cruz, 523 U.S. 213 (1998), fees are nondischargeable if

they are recoverable as an element of damages in a nonbankruptcy court for the claim which is found to be

nondischargeable. Therefore, because North Carolina law allows

the fees, they are properly included in the nondischargeable

judgment. 

VI. CONCLUSION

For the reasons stated above, we AFFIRM.

Concurrence begins on next page.

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DUNN, Bankruptcy Judge, Concurring:

I join in the disposition of this appeal by the Panel but

write separately to point out my limited disagreement with where

the majority goes in Part C.4. of the Discussion concerning the

burden of proof to establish the fourth element of “malice,”

i.e., “without just cause or excuse” for purposes of

§ 523(a)(6).

This Panel has held that a creditor seeking to except a

debt from a debtor’s discharge bears the burden of proof by a

preponderance of the evidence to establish “each element of the

exception to dischargeability.” See, e.g., First Del. Life Ins.

Co. v. Wada (In re Wada), 210 B.R. 572, 575 (9th Cir. BAP 1997),

citing Grogan v. Garner, 498 U.S. 279 (1991). In Jett v.

Sicroff (In re Sicroff), 401 F.3d 1101 (9th Cir. 2005), the

Ninth Circuit reversed the bankruptcy court’s judgment, affirmed

on appeal by the district court, determining that a creditor’s

libel judgment against the debtor was dischargeable. In

analyzing the record with respect to malice, the circuit

concluded that, “Having satisfied the first three elements of

‘malicious injury’ [for § 523(a)(6) purposes], to prevail, Jett

[the creditor claimant] must demonstrate by a preponderance of

the evidence that Sicroff [the debtor] published his statements

‘without just cause or excuse.’” Id. at 1106 (emphasis added). 

It concluded that Jett had met that burden. Id. at 1106-07. 

I recognize the force of the majority’s argument that by

its nature, “just cause or excuse” should not be the plaintiff

creditor’s burden to bear, as it is in the nature of an

affirmative defense to be raised by the debtor defendant. 

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However, in this appeal I don’t think that we need to reach that

legal conclusion. In the Summary Judgment Order, the North

Carolina superior court held that there was no genuine issue of

material fact in the record before it that Debtor made a number

of false statements “to Burch’s employer, in press releases, and

over the Internet” that falsely accused Burch of publishing his

personal information on the Internet. At oral argument, counsel

for the Debtor admitted that the Debtor did not submit any

evidence of a “just cause or excuse” for his behavior during the

course of the North Carolina legal proceedings. On the record

before us, I conclude that Burch satisfied any burden of proof

she had to meet to establish that Debtor’s conduct that resulted

in her claim against him was not absolved by any “just cause or

excuse,” and I join my colleagues in affirming the bankruptcy

court’s decision.

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