NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

In re: RICHARD YIN

- CHING HOUNG, AKA Richard Houng,

Debtor,

______________________________ RICHARD YIN

- CHING HOUNG,

Appellant,

v. TATUNG COMPANY, LTD, a Taiwan limited company,

Appellee. No. 13

- 56656
D.C. No. 8:12

- cv - 01341

- MMM

MEMORANDUM *

Appeal from the United States District Court for the Central District of California Margaret M. Morrow, District Judge, Presiding Argued and Submitted November 3, 2015

Pasadena, California Before: SCHROEDER, PREGERSON, and FRIEDLAND, Circuit Judges. Richard Houng appeals the district court’s affirmance of the bankruptcy

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36

- 3. 

# FILED

JAN 11 2016 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

court’s holding that his debt to Tatung Company, Ltd. (“Tatung”) is
nondi schargeable under 11 U.S.C. § 523(a)(4). Specifically, Houng argues that the fiduciary duty that arises from California’s common law trust fund doctrine

— which the bankruptcy court, pursuant to preclusive findings 1 made by an arbitrator in a separate proce eding, found Houng had violated

— does not establish a “fiduciary” relationship within the meaning of § 523(a)(4) and thus is insufficient to trigger nondischargeability. We disagree with Houng and affirm. 2
Section 523(a)(4) “provides that debts that arise from ‘fraud or defalcation while [the debtor was] acting in a fiduciary capacity, embezzlement or larceny,’ are nondischargeable. ” Ragsdale v. Haller , 780 F.2d 794, 795

- 96 (9th Cir. 1986) (alteration in original) (quoting 11 U.S.C. § 523(a)(4)). 3 Whether someone is a

1 Houng argues that the bankruptcy court erred in giving preclusive effect to the arbitrator’s findings regarding breach of fiduciary duty. At oral argument, Houn g’s counsel acknowledged that Houng’s briefing was “deficient” for failing to adequately cite to the record and abandoned Houng’s challenge to the preclusion ruling because of that deficiency. Counsel later in oral argument suggested a desire to withdraw the abandonment, but never offered to supplement the excerpts of record or briefing. We conclude that, whether abandoned or not, Houng’s inadequately supported issue preclusion arguments fail. See First Card v. Hunt (In re Hunt ), 238 F.3d 1098, 1105 (9th Cir. 2001).
2 Because we affirm on § 523(a)(4) grounds, we need not address Tatung’s alternative bases for affirmance.
3 “Defalcation” is defined as the “misappropriation of trust funds or money held in any fiduciary capacity; [or] [the] failure to properly account for such funds.” Lewis v. Scott (In re Lewis) , 97 F.3d 1182, 1186 (9th Cir. 1996) ( second alteration3

“fiduciary” for purposes of § 523(a)(4) is a question of federal law

. Id. at 796. We have “adopted a narrow definition of ‘fiduciary’ for purposes of § 523(a)(4)”

as a type of relationship “aris ing from an express or technical trust that was imposed before and without reference to the wrongdoing that caused the debt.”
Cal

- Micro, Inc. v. Cantrell ( In re Cantrell

) , 329 F.3d 1119, 1125 (9th Cir. 2003) (quoting Lewis v. Scott (In re Lewis) , 97 F.3d 118 2, 1185 (9th Cir. 1996) )

. Although the definition of “ fiduciary ” is a matter of federal law, “ state law is to be consulted to determine when a trust in this strict sense exists.” Ragsdale , 780 F.2d at 796. If state law does not “clearly and expressly im pose trust

- like obligations on a party,” courts “will not assume that such duties exist and will not find that there was a fiduciary relationship.” 4 Collier on Bankruptcy, ¶ 523.10 (Alan N. Resnick & Henry J. Sommer eds., 16th ed.)

. California courts adh ere to the “trust fund doctrine , ” pursuant to which “all of the assets of a corporation, immediately upon becoming insolvent, become a
trust fund for the benefit of all [ of the corporation’s] creditors []. ” 4 Berg & Berg Enter., LLC v. Boyle , 100 Cal. Rptr

. 3d 875 , 893 (Cal. Ct. App. 2009). In Berg ,

in original) (quoting Black’s Law Dictionary 417 (6th ed. 1990)). Houng does not dispute that the arbitrator’s factual findings satisfy the defalcation element.
4 Consistent with the choice of law clause in their Product Supply Agreement, the parties agree that California law is to be consulted to determine whether a trust was created when Westinghouse became insolvent.4

the court held that the duties directors owe to creditors upon insolvency are generally limited to “ avoidance of actions that divert, dissipate, or unduly risk corporate assets that might otherwise be used to p ay creditors [ ’] claims , ” by “divert[ing] assets of the corporation for the benefit of insiders or preferred creditors.” Id. at 893

- 9 4

. 5 We agree with Tatung that the duties created by the trust fund doctrine satisfy the criteria for a “fiduciary” rel ationship for purposes of nondischargeability under § 523(a)(4)

. The trust fund doctrine “clearly and expressly impose[s] trust

- like obligations” on the controllers of an insolvent entity. 4 Collier on Bankruptcy, ¶ 523.10 . Because the duties arise at i nsolvency, s ee Berg , 100 Cal. Rptr. 3d at 893, and require the avoidance of “divert[ing], dissipat [ing], or unduly risk[ing] corporate assets,” id. at 894, the fiduciary relationship exists “prior to any wrongdoing” and “without reference to [the wrong],” as required by § 523(a)(4). Ragsdale , 780 F.2d at 796. This is in
contrast to a trust “ ex maleficio , ” i.e. , a trust that arises “ by opera tion of law upon

5 The district court considered but rejected the possibility that the trust fund doctrine has been preempted by the California Corporations Code . S ee In re Houng , 499 B.R. 751, 767 n.50 (C.D. Cal. 2013) (citing Pac

. Scene v. Penasquitos, Inc. , 758 P.2 d 1182 ( Cal. 1988) (In Bank) and concluding that, at least for purposes of the dischargeability inquiry, the doctrine has not been preempted). Houng has waived any argument that the district court erred in this determination by not raising the issue on appe al.5

a wrongful act, ” that we have held is outside of § 523(a)(4)’s purview. Blyler v. Hemmeter (In re Hemmeter) , 242 F.3d 1186, 1189

- 90 (9th Cir. 2001)

. With regard to whether the trust doctrine creates an “express or technical” trust, “[m]ost courts . . . recognize that the ‘technical’ or ‘express’ trust requirement [for nondischargeability] is not limited to trusts that arise by virtue of a formal trust agreement, but includes relationships in which trust

- type obligations are imposed pursuant to statute or common law.” LSP Inv. P’ship v. Bennett (In re Bennett) , 989 F.2d 779, 784

- 85 (5th Cir. 1993); see also, e.g. , Lovell v. Stanifer (In re Stanifer) , 236 B.R. 709, 714 (BAP 9th Cir. 1999). Indeed, decades ago our court recognized that qualifying as a “fiduciary” for nondischargeability purposes does not require formalistically satisfying the technical requirements of specific categories of trusts. Runnion v. Pedrazzini (In re Pedrazzini ), 644 F.2d 756, 758 n.2 (9th Cir. 1981). Instead, in analyzing whether certain California statutory law could satisfy the precursor to § 523(a)(4), we held that “[t]he precise manner in which a trust is created . . . is of little importance. Rather, the focus should be on whether true fiduciary responsibilities have been imposed.” Id. We held that th e “core requirements” for determining whether the requisite “trust

- like obligations” are imposed, “are that the relationship exhibit characteristics of the traditional trust relationship, and that the fiduciary duties be created before the act of wrongdoin g and not as a result of the act of wrongdoing.” Id. at 758

- 59. We have continued6

to apply these same standards to determine whether a trust is sufficient to create a “fiduciary” relationship within the meaning of § 523(a)(4). See In re Hemmeter , 242 F. 3d at 1189

- 90 ; Ragsale , 780 F.2d at 796. Accordingly, in more recent cases, we have looked to state common law in applying the trust requirement of § 523(a)(4), without strict regard to whether the trust created by common law was “express” or “technical

. ” See Ragsdale , 780 F.2d at 797; In re Lewis , 97 F.3d at 1186; Lewis v. Short (In re Short) , 818 F.2d 693, 695 (9th Cir. 1987). Here, because California’s common law trust fund doctrine imposes “true fiduciary responsibilities” prior to “the act of wrongdo ing and not as a result of the act of wrongdoing,” In re Pedrazzini , 644 F.2d at 758, 758 n.2, the “express or technical” trust requirement for nondischargeability is
satisfied.
Our recent decision in Double Bogey, L.P. v. Enea , 794 F.3d 1047 (9th Cir. 2015), is not to the contrary. Although we suggested in dicta in Double Bogey that “[c] ommon - law doctrines . . . rarely impose the trust

- like obligations sufficient to create a fiduciary relationship under Section 523(a)(4),” id. at 1051 , we did not foreclose the possibility of common law doctrines from ever satisfying § 523(a)(4).
To the extent that Double Bogey could be read to indicate that common law doctrines must heighten preexisting statutory duties in order to satisfy § 5 23(a)(4),
see id. , we do not interpret our discussion there as creating such a general7

requirement. Although the cases cited in Double Bogey

— Ragsdale , In re Lewis , and In re Short

— all referenced state statutes, each of those cases located the necessary tr

ust relationship in case law, not in statutory law. Those cases all arrived at their holdings that a § 523(a)(4) trust obligation existed in spite of the lack of statutory law creating the necessary fiduciary relationship

— basing their
determinations inste ad on the state common law of partnership. See, e.g. , Ragsdale , 780 F.2d at 796 (rejecting the argument that California statutes created a trust sufficient for § 523(a)(4), but then finding § 523(a)(4) satisfied because “California courts . . . have raise d the duties of partners beyond those required by the literal wording of [the statute]”). 6 These cases give no reason, and Double Bogey suggests none, for tethering the meaning of “fiduciary” under § 523(a)(4) to state statutory law that itself cannot sat isfy that provision’s requirements. We therefore read the language from Double Bogey as saying nothing more than cases
like In re Pedrazzini , Ragsdale , and In re Hemmeter have long held

— that for a fiduciary relationship to satisfy § 523(a)(4), it must exh ibit characteristics of a

6 Although In re Short stated that “ the Washington statute and case law make clear that Short was a fiduciary within the meaning of section 523(a)(4),” 818 F.2d at 695, the Washington statute was “identical” to the California statute at issue in Ragsda le

—

which we found to be a trust ex maleficio and thus outside of § 523(a)(4)’s purview. Ragsdale , 780 F.2d at 796. As in Ragsdale , it was only state common law that gave rise to the requisite fiduciary relationship in In re Short

. See 818 F.2 d at 695. Thus, whatever statutory duties existed under Washington law were insufficient to support our ultimate holding.8

traditional trust relationship and must arise prior to the wrongdoing at issue. See
In re Pedrazzini , 644 F.2d at 758

- 59, 758 n.2; Ragsdale , 780 F.2d at 796; In re
Hemmeter , 242 F.3d at 1189

- 90. Our conclusion in this regard is consistent with the vast majority of prior bankruptcy court decisions, which have held that duties created by the trust fund doctrine create a fiduciary relationship sufficient to trigger nondischargeability under to § 523( a)(4). See, e.g. , Oney v. Weinberg (In re Weinberg) , 410 B.R. 19,
28

- 29 (BAP 9th Cir. 2009) ; Nahman v. Jacks (In re Jacks) , 266 B.R. 728, 737 (BAP 9th Cir. 2001); Flegel v. Burt & Assocs. , P.C. (In re Kallmeyer) , 242 B.R. 492, 496 (BAP 9th Cir. 1999) (add ressing Oregon’s parallel trust fund doctrine)

. We have reviewed Houng’s arguments to the contrary and find them unpersuasive.
AFFIRMED.