### NOT FOR PU BLICA TION

U NIT E D ST A T E S BA NK RU PT CYA PPE L L A T E PA N E L

OF T HE NINT H CIRCU IT In re: JA SO N C LA U D E A DK IN S,

Deb to r. MIC HA EL W EN TZ ; BRIA N W EN TZ ; BMW S PO RTSC A RDS IN C ., DBABMW SPO RTSC A RDS, A p pellants,

v. JA SO N C LA U D E A DK IN S, Appellee. BA P N o . N V-18-1204-KuTaB Bk. N o . 2:17-b k-11974-BTB A dv. N o . 2:17-ap-01223-BTB

M E M O RA ND U M *

A rgued and Sub m itted o n Feb ruary 21, 2019

at Las Vegas, N evada Filed – March 5, 2019 A ppeal fro m the U nited States Bankruptcy C o urt

fo r the Distric t o f N evada 

# FIL ED
MAR 5 2019 SUSAN M . SPRAUL, CLERK U. S. BKCY

. APP. P ANEL O F T H E NI NT H CI RCUI T

* Thi s di sposi ti on i s not appr opr i ate for publi cati on. Although i t may be ci ted for whatev er per suasiv e v alue i t may hav e, see Fed. R. App. P. 32.1, i t has no pr ecedenti al v alue, see 9th Ci r . BAP Rule 8024-1.Ho no r ab le Bruc e T. Beesley, Chief Bankruptc y Judge, Presiding

A ppearanc es: A ndrea M. Gandara o f Ho lley Driggs W alch Fine W ray

Puzey &Tho m pso n argued fo r appellants Michael W entz, Brian W entz, and BMWSpo rtsc ard Inc .; Michael J. Harker argued fo r appellee, Jaso n C laude A dkins.

Befo r e: KU RT Z , TAY LO R , and BRA N D, Bankruptcy Judges. A ppellants, Michael W entz (Mic hael), Brian W entz (Brian), and BMW Spo rtsc ard Inc . db a BMWSpo rtsc ards (BMW ) (c o llec tively, A ppellants),
ob tained a state c o urt judgm ent fo r o ver $1 m illio n against chapter 7 1 deb to r, Jaso n C laude A dkins, b ased o n c auses o f ac tio n fo r defam atio n and b usiness disparagem ent. A fter Mr. A dkins filed his b ankruptc y petitio n, A ppellants filed an adversary c o m plaint seeking to exc ept the state c o urt judgm ent deb t fro m discharge under § 523(a)(6). They then filed a m o tio n fo r sum m ary judgm ent (MSJ) b ased o n issue prec lusio n, arguing that the state c o urt findings satisfied the willful and m alic io us elem ents o f § 523(a)(6). The b ankruptc y c o urt granted partial sum m ary judgm ent and the m atter went to trial o n the issue o f Mr. A dkins' sub jec tive intent under the willful elem ent. A fter hearing testim o ny fro mMr. A dkins, the b ankruptc y c o urt fo und that Mr. A dkins ac ted "stupidly," b ut lac ked the

1 Unless speci fi ed other wi se, all chapterand secti on r efer ences ar e to the Bankr uptcy Code, 11 U.S
. C. §§ 101-1532, and “Rule” r efer ences ar e to the Feder al Rules of Bankr uptcy Pr ocedur e. 2subjec tive intent to harmthe A ppellants. This appeal fo llo wed. Fo r the

reaso ns set fo rth b elo w, we A FFIRM. FA CT S A . Prepetition E v e nts Brian and Michael W entz each o wn 50% o f BMW, a W isc o nsin
c o r po ratio n, which b uys and sells vintage spo r ts c ards and spo rts
m em o rab ilia. Mr. A dkins was fam iliar with the A ppellants sinc e he frequented internet b lo gs ab o ut spo rtsc ards, b ut he had never m et Michael
o r Brian perso nally no r had he do ne b u siness with themo rtheir sto re. O n Septemb er 17, 2011, Mr. A dkins po sted the fo llo wing statem ent
o n the internet fo rumkno wn as Blo wo ut C ards 2 regarding A ppellants: I kno w the W entz b ro thers o f BMWSpo rtsc ards were c a ught redhanded with altering c ertain graded c ards a few years b a c k o n the A rea 51 b o ards o r whatever. . . . There was a guy that flat-o u t o ffered c ard resto ratio n advertising in the Bec kett Vintage m agazine and was the fo rem o s t expert in c ard resto ratio n. When the W entz's [sic ] and o thers started wo rking with himand getting c ards slabb ed 2 to 3 grades higher than they sho uld have b een, it c reated quite a rauc o u s. 3

2 Blowout Car ds i s a spor ts car d di str ibutor that hosts an onli ne for um wher e spor ts car d collector s fr om all ov er the wor ld can access the foru m for fr ee and talk to each other about spor ts car ds thr ough post publi s hed comments that other s can r ead and r espond to i n a di a logue.

3 Gr ading of spor ts car ds i s done on a r ati ng scale fr om 1 thr ough 10, wi th car ds in the wor st gr ading condi ti on r ecei ving a 1 and car ds in the most i mmaculate condi ti on r ecei v ing a 10, and accor dingly the hi ghest v a lue. The pr i mar y spor ts car d gr ading (continued...) 3O n Septemb er 12, 2012, Mr. A dkins po sted a sec o nd statem ent o n the

Blo wo ut C ards fo rumregarding Brian and BMW : If yo u think a guy is inc apab le o f shilling his b est c ard at auc tio n b ec a u se he's b een o n this b o ard fo r a while and has a few tho u sand po sts, I do n't see what yo u r lo gicis. Afew years b ac k Brian W entz o f BMWSpo rtsc ards c laim ed he was no t arrested at the 2003 N atio nal fo r b eating up ano ther guy, yet so m eo ne else po sted his arrest c itatio n (which is pub licrec o r d). W entz had 1000's o f po sts and was one o f the b iggest dealers in the natio n, b ut he lied o n the m essage b o ards ab o ut it. . . . 1. T he State Court Com plaint Ab o ut a year later, A ppellants filed a state c o u rt c o m plaint against Mr. A d kins and his b u siness, AStripside C o m ic s and Spo rtc ards. A ppellants alleged three c auses o f ac tio n b ased o n Mr. A d kins' po sts: (1) defam a tio n 4 with respec t to the W entz b ro thers and fitness fo r their b usiness; (2) defam atio n b ased o n Mr. A dkins' po s t regarding Brian's

3 (...continued) company i s Pr ofessi onal S por ts Authenti cator (PS A).

4 Under Nev ada law, an acti on for d efamati on r equi r es the plain ti ff to pr ov e four elements: "(1) a false and defamatory statement ...; (2) an unpr i v i leged publi cati on to a thi r d per son; (3) fault, amounting to at least negli gence; and (4) actual orpr esumed damages." Clark Cty. School Dist. v. Vitual Educ. Software, Inc. , 213 P.3d 496, 504 (Nev
. 2009). If the defamator y communi cati on i mputes a "per son's lack of fi tness for tr ade, business, orpr ofessi on," or tends to i nj ur e the plai nti ff in hi s or her business, i t i s deemed defamati on per se and damages ar e pr esumed. Id. 4arrest; and (3) b usiness disparagem ent. 5 A c c o rding to A ppellants,

Mr. A d kins' po st stating that they were "c aught redhanded with altering graded c ards" was false and disparaging and Brian was never arrested. W ith respec t to all three c auses o f ac tio n, A ppellants alleged that the statem ents were false, defam ato ry, and were m ade negligently, intentio nally, and/o r m alic io usly to ward A ppellants with the go al o f dam aging and injuring their b usiness and pecuniary interests. A fter the filing, A ppellants depo sed Mr. A dkins. Mr. A dkins testified that in the 2011 po st ab o ut an altered c a rd, he was referring to an 1887 O ld Judge Mike K ing K elly c a r d that was transferred fro m a PSA 6 ho lder to a PSA9 ho lder, which signific antly inc reased the value o f the c ard. Mr. A d kins testified that the c ard was resto red b y Dic k To wle so that it
c o u ld b e graded three levels higher. Mr. A dkins also adm itted that Brian
was no t arrested, b ut he explained that he m eant Michael, no t Brian. Finally, Mr. A dkins testified that he had spo ken to Greg Sc hwartz

5 Under Nev ada law, the elements r equi r ed to pr ov e a cause of acti on for business di spar agement di fferfr om the elements r equi r ed to pr ov e classi c defamati on and defamati on per se. Clark Cty. School Dist. , 213 P.3d 504-05. To succeed i n a clai m for business di spar agement, the plai nti ff must pr ov e: (1) a false and di spar agi ng statement, (2) the unpr i v i leged publi cati on by the defendant, (3) mali ce, and (4) speci al damages. Id. The pr inci pal di ffer ences between defamati on per s e and business di spar agement concer n the elements of intent and damages. Busin ess di spar agement r equi r es mali ce. Mali ce i s pr ov en when the plainti ff can show either that the defendant publi shed the di spar agi ng statement wi th the i ntent to cause har m to the plai nti ff’s pecuni ar y inter ests, or the defendant publi shed a di spar a gi ng r emar k knowi n g i ts falsi ty or wi th r eckless di sr egar d for i ts tr uth. Id. 5regarding Mic hael W entz to verify the info rm atio n o n his po s ts. 6

A ppellants filed a MSJ, which was uno ppo sed. A ppellants sub m itted the depo sitio n testim o ny o f Mr. A dkins, testim o ny fro m Mr. To wel who dec lared that he never altered o r handled the O ld Judge Mike K ing K elly b aseb a ll c ard o nc e o wned b y BMW, and testim o ny fro mMr. Schwartz who dec lared that he spo ke to Mr. A dkins o nc e and to ld himhe had no evidenc e to suppo rt the assertio ns against BMWo r Michael W entz. In A ugust 2015, the state c o urt entered an o rder granting A ppellants' MSJ. The c o urt fo und that Mr. A dkins had adm itted to m aking the po sts and that A ppellants estab lished with undisputed evidenc e that b o th po sts were false. The c o urt further fo und that all the elem ents fo r defam atio n were m et. "The undisputed evidenc e sho wed that Mr. A dkins m ade the po sts and each was c o m pletely false and defam ato r y, no t privileged, intentio nally m ade and at m inim umnegligent, and thus the dam a ges were presum ed as the c o m m u nic atio n im p uted that the W entz b ro thers and BMW lac ked fitness fo r their trade, b u siness o r pro fessio n." Under N evada law, pro o f o f defam atio n under these c irc um stanc es was per se pro o f o f dam ages. The c o urt granted sum m ary judgm ent o n all c auses o f ac tio n and

6 Ini ti ally Mr . Adki n s was r epr esented by counsel in the state cour t lawsui t but could not affor d to pay hi m. Accor dingly, he appear ed pr o se. 6scheduled a pro ve up hearing regarding the dam ages. 7

In Septemb er 2015, the state c o u rt entered judgm ent in favo ro f A ppellants and against Mr. A dkins fo r o ver $1 m illio n, inc luding atto rneys fees and c o sts. A ppellants b egan to exec ute o n their judgm ent, whic h inc luded an executio n writ pertaining to pro perty at Mr. A d kins' b usiness. Mr. A d kins tried to prevent exec utio n b y b reaking into his sto re and taking the m o st valuab le pro perty fro mit. Mr. A dkins was held in c o ntem pt fo r his ac tio ns and jailed fo r 25 days. During this sam e tim e perio d , Mr. A dkins filed a chapter 7 b ankruptc y petitio n in 2015. That c ase was dismissed. Six m o nths later, he filed a sec o nd b ankruptc y petitio n. That c ase was alsodism issed. B. Bankruptc y E v ents Ab o ut fo ur m o nths later, he filed the instant c ase in A pril 2017. 1. T he A dv ers ary Com plaint A ppellants filed a c o m plaint objec t ing to Mr. A dkins' discharge under § 523(a)(6), alleging in curso ry fashio n that the deb t o wed to them
was no n-dischargeab le as it was fo r a deb t fo r willful and m alic io us injury
c aused b y Mr. A dkins. They also alleged Mr. A dkins' c o nduc t in rem o ving
c o m icb o o ks fro mhis sto re whic h were subjec t to their exec utio n writ fell within the sc o pe o f § 523(a)(6).

7Mr
. Adki ns had fi led a counter clai m for abuse of pr ocess. The state cour t also gr anted Appellants' MS J on the counter clai m. 72. T he M otion For Sum m ary Judgm ent

A ppellants filed a MSJ, arguing that issue prec lusio n applied to their state c o urt judgm ent. A ppellants asserted that the elem ents fo rb usiness disparagem ent were equivalent to the requirem ents fo r a willful and
m alic io us injury under the Bankruptcy C o de as a sho w ing o f m a lic e was a required elem ent under N evada law. Bec ause the state c o urt granted
sum m ary judgm ent o n all three c auses o f ac tio n, A ppellants o pined that the c o urt m ust have nec essarily fo und m alic e with respec t to their defam a tio n and b usiness disparagem ent c laim s. A ppellants further
m aintained that the state c o urt fo und that Mr. A dkins had intentio nally
m ade the false statem ents and therefo re dam ages were presum ed. W ith respec t to Mr. A d kins' subjec tive intent, A ppellants po inted o ut that Mr. A dkins knew he was po sting the two defam ato ry statem ents to the largest industry-spec ificfo rumfo r o ther peo ple o n the fo rumand all Internet users to see. A c c o rding to A ppellants, the state c o urt fo und that, b y pub lishing the false and extrem ely negative statem ents ab o u t A ppellants' b usiness prac tic es and asso c iating them with a vio lent c rim e o n such a widely used and industry-spec ific internet platfo rm, Mr. A dkins was aware that he wo u ld c ause injuries toA ppellants and sho uld b e charged with the natural c o nsequenc es o f his ac t io n. Finally, A ppellants alleged that the m alic io us elem ent was satisfied b ec ause under N evada law, defam atio n is a wro ngful to rtio us ac tio n, do ne
8intentio nally, whic h nec essarily c auses injury, and is done witho ut just

c ause o r exc use. In the end, A ppellants argued that was nogenuine issue o f m aterial fac tb ec ause the issues determ ined b y the state c o urt relating to Mr. A d kins' wro ngful c o nduc t were equivalent to tho s e nec essary to estab lish a willful and m alic io us injury under 523(a)(6). They also
m aintained the judgm ent was o n the m erits and a final o rder, the parties were the sam e, and the issues regarding Mr. A dkins' defam atio n and b usiness disparagem ent o f A ppellants were ac tually and nec essarily litigated. In o ppo sitio n, Mr. A dkins argued that the state c o urt's findings did
no t sho w his sub

jec tive intent to harmA p pellants o r that he subjec tively knew that injury was sub stantially c ertain to o c cu r as a result o f his
c o nduc t. He further m aintained that the state c o urt's findings did no t set fo rth the elem ents fo r m alic io usness and, therefo re, sum m ary judgm ent sho uld b e denied. The b ankruptc y c o urt heard the m o t io n o n Feb r uary 13, 2018, and plac ed its findings o n the rec o r d: ...So, C o unsel, here's what we're do ing to do . I'mgo ing to grant in part the sum m ary judgm ent with – o n b o th issues with respec t to po rtio ns o f § 523(a)(6) with the exc eptio n o f the m alic e requirem ent. Bec ause I think they were pro perly tried o n sum m ary judgm ent in the state c o urt. They are no t o ppo sed b y o ppo sing c o unsel. The o nly issue that rem ains to b e tried is 9were [sic ] this individual's – o r were the defendant's ac ts

m alic io u s, which I think we have – I do understand that I c an lo o k into c irc um s t antial evidenc e ab o u t it. But the o nly info rm a tio n I have is that he adm its he pub lished these and adm itted the ac ts that were undertaken. I think he gets a chanc e to say why he did that o r why that wasn't m alic io us. I have - I c an't think o ff the to p o f m y head why he m ight find – he m ight b e ab le to c o nvinc e m e o f that, b ut I think he has to have a chanc e to do that. A ltho ugh the b ankruptc y c o u rt granted A ppellants' partial sum m ary judgm ent, no o rder to that effec t was ever entered. 3. T he M otion In L im ine A ppellants filed a m o tio n in lim ine to exc lude Mr. A d kins fro m presenting evidenc e o r argum ent o utside the sc o pe o f subjec tive intent fo r "willful injury" under § 523(a)(6). A c c o rding to A ppellants, the narro w issue fo r trial was whether Mr. A dkins had the requisite "willful" m ental state fo r purpo ses o f § 523(a)(6) at the tim e he m ade defam ato ry and disparaging statem ents regarding A ppellants. The m o t io n was uno ppo sed and the b ankruptc y c o urt granted the m o tio n. 4. T he T rial A t the b eginning o f the trial, the c o urt anno unc ed: THE C O U RT : O nly thing we're hearing – o nly thing I'm determ ining to day is whether there was m alic e with respec t to c ertain po stings that were m ade. A nd I'mrelying – and I – please c o rrec t m e if I'mwro ng, b ut I'mrelying o n 238 F.3d . . . Jerich v. Jerich . A nd what the N inth C irc uit said is m alic io us 10injury within the m eaning o f dischargeab ility exc eptio n is o ne

whic h invo lves a wro ngful ac t do ne intentio nally whic h nec essarily c auses injury and is done witho ut just c ause o r exc use. Is everyb o dy o n b o ard with that b eing the standard? MS. GA N DA RA(c o unsel fo r A ppellants): Y o ur Ho no r, yes. O ur po s itio n is that that's c o rrec t fo r m alic e. My understanding was that willfulness was the elem ent at issue, which is an ac t do ne intentio nally with the subj ec tive intent to injury the c redito ro r with sub stantial c ertainty as to the result – the injurying result to the plaintiffs. THE C O U RT : A nd that is alsothe – that's the definitio n o f willfulness – also in the Jerich c a se. MS. GA N DA RA : Right. THE C O U RT : So if I'mhearing b o th o f tho se, that's fine. They're very sim ilar. They o verlap c ertainly.
Ms. Gandara went o n in her o pening argum ent to say the so le issue fo r the trial was the willful injury requirem ent. Mr. Harker agreed that this was the o nly issue fo r trial - the subjec tive intent to c ause the injury and whether Mr. A dkins subjec tively b elieved that the injury was sub stantially
c ertain to o c c ur as a result o f his ac tio ns. 8 A t the trial, Mr. A dkins testified ab o ut b lo gs fo r spo rtsc ards. Mr. A d kins explained ho w he ob t ained info rm atio n fro mthese b lo gs and

8 Indeed, thi s was the only i ssue addr essed by the par ti es in the tr i a l. 11passed o n that info rm atio n in his po sts. The b a nkruptc y c o urt likened this

to "go ssip" sinc e the info r m atio n po sted was no t verifiab le. Mr. A dkins adm itted he never saw anything first hand regarding the info rm atio n he po sted ab o ut A ppellants; i.e., he had no t seen the alleged altered c ard b ut had heard ab o u tit thro ugh the b lo gs. He had alsoseen altered c ards po sted b y o thers and felt he c o u ld po st ab o ut it. He further testified that he did no t intend to c ause injury to A ppellants, had never m et them, and never did b usiness in their sto re. Mr. A dkins testified that he did no t intend to destro y their b usiness. A c c o r ding to Mr. A dkins, there were hundreds, if
no t tho u sands o f po sts o ut there ab o ut altering spo rtsc ards. A fter hearing c lo sing argum ents, the b a nkruptc y c o u rt issued its ruling: So as c o unsel has indic ated, 523(a)(6) is – it's disjunctive. It's if the deb to r has a sub s tantive o r sub stantive m o tio n [sic ] to inflic t injury o r if the deb to r b elieves that the injury is sub stantially c ertain to o c c ur as a result o f his o r her c o nduc t. A nd I – the c o nduc tthat has o c c urred in this c ase kind o f fro m the b eginning to the m o st rec ent effo rts indic ates to m e at a m inim u mthat the deb to r b ehaved fo o lishly at least and perhaps stupidly. I think it was a very fo o lish thing to pub lish slandero us m aterial against the plaintiffs in this m atter. I think it was an inc redib ly stupid m o ve to take pro perty o ut o f the sto re o nc e there was a judgm ent against himand in o r der that he no ttake the pro perty o ut o f the sto re. I think it was a stupid

12m o ve that go t himjailed fo r 25 days. 9

A nd I think his attitude to wards is [sic ] c urrently is no t very go o d. It's everyb o d y else's fault b ut his, which I think is an inappro priate po sitio n to b e in if yo u're in this c a se. N o o ne m ade himpo st the defam ato ry po sts. N o o ne m ade himdec ide it was a go o d idea to try and hide the assets that he did have. Tho s e were all his cho ic es. A nd he's m ad ab o ut this. He's still very angry and . . . thinks he has b een wro nged in this c ase. And he is dead flat wro ng that he is b een wro nged in this c ase. He has no t b een wro nged. He has b ehaved po o rly. He has no t taken respo nsib ility fo rwhat he did. He's no t ac kno wledged that what he has do ne was im pro p er. O n the o ther hand, I do n't think I c an find that he had a subjec tive m o tive to inflic tinjury. N o r do I b elieve I c an find that the injury was sub stantially c ertain to o c c ur in this c ase. W ith respec t to the sec o nd, no t likely to sub stantially – it's – that it's – I don't b elieve that the deb to r b elieved that the injury was sub stantially c ertain to o c c ur in the c ase. The reaso n I say that is his testim o ny was that there were m any b lo gs sim ilar to this, that he was unaware that anyb o dy had b een c aused issues b y this. That I think he lo o ked at this in a rather im m ature m a nner, b ut I do n't think that m eans that he b elieved that the injury was sub stantially likely to o c c ur. A nd I do n't think his m o t ive was toc a use injury to the W entzes in this c ase.

9 Ther e was li ttle, i f any, emphasi s on whether Mr . Adki ns' contemptuous conduct sati sfi ed the wi llful and mali ci ous r equi r ements for § 523(a)(6). 13A nd, c o unsel, yo u've b een [sic ] o n a go o d argum ent. I think

yo u've tried very hard in this c a se. But I think that what we have here is a m a tter o f stupidity as o ppo s ed to a real effo rt to injure yo u rc lients. I just do n't think he intended to injure yo ur c lients and I do n't think that if he had tho u ght this thro ugh, whic h I do n't think he did, he wo uld have tho ught he was go ing to injure yo ur c lients. So that's my ruling. It's kinda ro ugh, b u t that's my ruling. I'm go ing to allo w this deb t to b e discharged.
The b ankruptc y c o urt entered an o rder o n July 18, 2018, finding that the deb t was discharged. The o rder pro vided: . . . the C o urt previo usly having granted Sum m a ry Judgm ent in favo r o f the Plaintiffs and the so le issue as it relates tothis evidentiary hearing was whether the Deb to rhad sub jec t ive intent to injure the Plaintiff with the ac ts alleged b y the Plaintiff herein suc h that Deb t o r ac ted with m alic e, as desc r ib ed in Petra liav. Jercich (In re Jerich), 238 F.3d 1202, 1209 (9th Cir. 2001). That the C o urt finds that Deb to r did no t have a subjec tive m o tive to inflic t injury o n the Plaintiffs. The C o u r t futher finds that the Deb to r did no t b elieve that injury was sub stantially c ertain to o c c ur to the Plaintiffs. IT IS THERE FO R E O RDER ED A DJU DGED A N D DEC R EED that the deb t o wed b y the Deb to rto the plaintiffs is hereb y fo und to b e dischargeab le and the C lerk o f the C o urt shall enter a discharge in this c ase. . . .
14A ppellants filed a tim ely appeal fro mthis ruling. JU RISD ICT ION The b ankruptc y c o urt had jurisdic tio n pursuant to 28 U .S.C . §§ 1334 and 157(b )(2)(I). W e have jurisdic tio n under 28 U .S.C . § 158. ISSU E Did the b ankruptc y c o urt err in finding that A ppellants failed to pro ve that the willful injury elem ent under § 523(a)(6) was m et? ST A ND A RD S OF RE V IE W "Bec ause the b ankruptc y c o urt entered its judgm ent after trial, we review the b ankruptc y c o urt's findings o f fac t fo r c lear erro r, and its
c o nc lusio ns o f law de no vo ." Thia ra v. S pycher Bro thers (In re Thia ra ) , 285 B.R . 420, 426 (9th C ir. BA P 2002) (c iting Ca rrillo v. S u (In re S u) , 290 F.3d 1140, 1142 (9th C ir. 2002)). Determ inatio n o f parties' intent fo r purpo ses o f § 523(a)(6) is a questio n o f fac t . Fac tual findings are c learly erro neo us if illo gic al, im plausib le o r witho ut suppo rt in the rec o rd. R etz v. S a m so n (In re R etz ) , 606 F.3d 1189, 1196 (9th C ir. 2010). The c learly erro neo us "standard plainly do es no t entitle a reviewing
c o u rt to reverse the finding o f the trier o f fac tsim ply b ec ause it is
c o nvinc ed that it wo uld have dec ided the c ase differently.” Anderso n v. C ity
o f Bessem er C ity, N .C
. , 470 U .S. 564, 573 (1985). "If the [b ankruptc y c o urt's]
ac c o u nt o f the evidenc e is plausib le in light o f the rec o rd viewed in its
15entirety, the c o urt o f appeals m a y no t reverse it even tho u gh c o nvinc ed

that had it b een sitting as the trier o f fac t , it wo uld have weighed the evidenc e differently." Id. at 573–74. That is, “[w]here there are two perm issib le views o f the evidenc e, the fac tfinder's cho ic e b etween them
c anno t b e c learly erro neo us.” Id. at 574. D ISCU SSION A . L eg al Standards : Sec tion 523(a)(6) Sec tio n 523(a)(6) exc epts fro mdischarge any deb t "fo r willful and
m alic io us injury b y the deb to r to ano ther entity o r to the pro perty o f
ano ther entity." The willful and m alic io us requirem ents are analyzed separately, and b o th elem ents m ust b e m et. In re S u , 290 F.3d at 1146–47; O rm sby v. F irst Am . Title Co . o f N ev. (In re O r m sby) , 591 F.3d 1199, 1206 (9th C ir. 2010). A ppellants had to pro ve that the injury to themwas b o th willful and m alic io us, no t just o ne o r the o ther. The o nly issue at trial and o n appeal is whether the willful elem ent
was m et. 1 0 A ppellants b o re the b urden o f pro o f b y a prepo nderanc e o f the evidenc e in o rder to render Mr. A dkins' deb tno ndischargeab le. Grog a n v. Ga rner , 498 U .S. 279, 291(1991). “The burden o f sho wing so m ething b y a ‘prepo nderanc e o f the evidenc e,’ ... ‘sim ply requires the trier o f fac t to b elieve that the existenc e o f a fac t is m o re prob ab le than its no nexistenc e

1 0 S ince no i s sues hav e been r ai sed wi th r espect to the mali ci ous r equi r ement, those ar guments ar e wai v ed. Smith v. Marsh , 194 F.3d 1045, 1052 (9th Ci r. 1999). 16b efo r e [he] m ay find in favo r o f the party who has the b u rden to persuade

the [judge] o f the fac t's existenc e.’“ Co ncrete Pipe & Pro d s. o f Ca l., Inc. v. Co nstr. La b o rers Pensio n Trust fo r S . Ca l
. , 508 U .S. 602, 622 (1993). Whether a deb to r ac ted willfully is a sub jec tive inquiry: the "willful injury requirem ent is m et o nly when the deb to rhas a sub jec tive m o tive to inflic t injury o r when the deb to r b elieves that injury is sub stantially c ertain to result fro mhis o wn c o nduc t." In re O rm sby, 591 F.3d at 1206. Further, when determ ining the deb to r's intent under § 523(a)(6), there is a presum ptio n that the deb to rkno ws the natural c o nsequenc es o f his ac tio ns. Id
. Subjec tive intent m ay b e gleaned fro mobj ec tive fac to rs and
c irc u m stantial evidenc e whic h tends to estab lish what the deb to r m ust have ac tually kno wn when taking the injury-pro duc ing ac tio n. S u , 290 F.3d at 1146 n. 6. Rec kless disregard is insuffic ient to estab lish willfulness under § 523(a)(6). Geiger

, 523 U .S. at 61, 118 S.C t. 974, 140 L.Ed.2d 90; S u , 290 F.3d at 1145–46. The N inth C irc uit wro te in S u : That the Bankruptcy C o de's legislative histo ry m akes it c lear that C o ngress did no t intend § 523(a)(6)'s willful injury requirem ent to b e applied so as to render no ndischargeab le any deb t inc urred b y rec kless b ehavio r, reinfo rc es applic atio n o f the subjec tive standard. The sub jec tive standard c o rrec tly fo c u ses o n the deb to r's state o f m ind and prec ludes applic atio n o f § 523(a)(6)'s no ndischargeab ility pro visio n sho rt o f the deb t o r's ac tual kno wledge that harmto the c redito r was sub stantially c ertain. 290 F.3d at 1145–46.
17B. A nalys is

A ppellants argue that the b ankruptc y c o urt erred in its findings that Mr. A d kins did no t have subjec tive m o tive to inflic t injury o r b elieve that injury to A p pellants was sub stantially c ertain to o c c ur. A ppellants po int to Mr. A d kins' testim o ny during trial whic h, in A p pellants' view, am o unted to adm issio ns ab o ut his sub j ec tive kno wledge o f injury to the A ppellants: QDo yo u see where it says that– discusses c ard alteratio n as a dirty little sec ret AO h, yes, I see it. QO kay. When yo u're using that language yo u are im plying that there is a negative c o nno t atio n to c ard alteratio n? AY es. QO kay. A nd so b y asso c iating the plaintiffs b eing c aught redhanded altering c ards, yo ur im p uting o n them this b ad c o nduc t. Is that right? AY es. QO kay. I'mgo ing to have yo u lo o k at the sec o nd to last and last sentenc e o f that po st where it says. "There was a guy that flat-o ut o ffered c ard resto r atio n advertising in the Bec kett vintage m agazine and was the fo rem o s t expert in c ard resto ratio n. When the W entzes and o thers started wo r king with himgetting c ard slabb ed 2 to 3 grades higher than they sho uld have b een, it c reated quite a 18ruc kus."

Is this c o ntent, are yo u suggesting that the W entzes were im pro p erly im p r o ving the grades o f their c ard b y alteratio n? AY es. QO kay. A nd yo ur last part o f that sentenc e says, "And m y nam e is m y ID and I live in Vegas. Feel free to chec k m y arrest rec o rd. They never c aught m e b reaking the law, exc ept fo r that speeding tic ket in 2010." Doyo u see that? AY es. QIn that sentenc e, are yo u trying to disasso c iate yo urself o r m ake yo urself appear like a go o d guy in relatio n to these peo ple who have c o m m itted c rim es? AY es. QO kay. So yo u knew that the statem ent wo u ld harmthe plaintiff's b usiness and pub licreputatio n, c o rrec t? AY es. QY o u didn't think that it wo uld help their b usiness, right? AY es. QIt wo uld hurt them ? AY es.

19Ho wever, later in the trial, in respo nse to his atto r ney's questio ns,

Mr. A d kins testified: AI wasn't trying to do any harmto them
. I just– I guess if you want to c all it passing go ssip b ec a use it's no t verified, then again, yo u kno w, what news is these days. But, yeah, if you want to c all it go ssip b o ards. Mo st o f the tim e peo ple say, hey, I– lo o k at this c ard, I fo und it a garage sale. And they po st a pic ture o f it. Y o u generally b elieve them if they're a lo ngtim e m emb er, so – QRight. AI guess that's still go ssip that they have it. I do n't – QA ll right. But – THE C O U RT : So if yo u weren't trying to harmthemo r– I m ean, ho w c o uld yo u send o ut so m ething that says these peo ple are m isb ehaving and no t think that wo uld c ause harm ? THE W ITN ESS: I'd just seen it som any – fro mso m any o ther peo ple. I didn't – like I said, I wasn't trying to harmthem . I guess I was just passing along info rm atio n that was o ut there. Later, Mr. A dkins' atto rney, Mr. Harker, resum ed his questio ning: QW ell, let m e ask this then. Y o u didn't b elieve this wo uld harmtheir b usiness. Is that a fair statement? AThat's fair. QWhy did yo u no t b elieve it wo uld no t – it wo uld harmwo uld 20no t harmtheir b usiness?

AIt's just peo ple talking spo rts c ards and there's plenty o f statem ents like this ab o ut them . So I c ertainly wo uld never start rum o rs o r lie, trying to hurt anyb o dy ever. QHo w m any statem ents wo uld b e po s ted to day in general like this o n this web site? AProb ab ly 10,000 po sts a day. QO kay. A nd when yo u put–po sted this, altho ugh yo u've adm itted to the c o urt that yo u've never seen it [the altered c ard] in perso n b ut yo u had seen stuff o n the internet, it was just a po st that yo u are passing o n. Is that a fair statem ent? AY eah. It was just, oh, b y the way. A nd like I said, I was under the im pressio n it was c o m m o n kno wledge thro ugho u t the industry. QY o u didn't kno w these individuals. Is that c o rrec t? AThat's c o rrec t. QA ll right. Y o u didn't have a vendetta against them, did yo u? AN o . The b ankruptc y c o urt was entitled to c o nsider b o th direc t evidenc e o f Mr. A d kins' subjec tive state o f m ind and evidenc e o f the surro unding
c irc u m stanc es, and then to m ake appro p riate inferenc es as towhether he

21harb o red the requisite intent fo r purpo ses o f dec iding whether his ac ts

were willful under § 523(a)(6). A ppellants understandab ly em phasize Mr. A d kins' testim o ny o n c ro ss-exam inatio n during which he c o nc eded that the statem ents he m ade in his po sts wo uld harmthe A p pellants. A ppellants charac terize Mr. A dkins' testim o ny as an adm issio n and thus
c o nc lusive evidenc e that he knew dam age to A p pellants was sub stantially
c ertain to o c c ur due to his po sts. Ho wever, Mr. A dkins' later testim o ny was c o nflic ting. He stated
m any tim es that he did no t intend to harmthe W entzes o r their b usiness. Mr. A d kins also futher explained the surro unding c irc um stanc es; i.e., what he was do ing o n the b lo g, ho w he ob tained info rm atio n ab o ut the W entzes and BMW, and ho w he used the b lo g to pass o n info rm atio n that he had "heard" ab o ut the W entzes and BMW . He also did no t kno wthe W entzes, had never do ne b usiness with them, and testified that he had no vendetta against them
. It was up tothe b ankruptc y c o u rt to determ ine the weight and
c redib ility to give to Mr. A dkins' c o nflic ting testim o ny. O nc e the c o u rt understo o d the surro unding c irc um stanc es, o ther inferenc es c o u ld b e drawn ab o ut whether Mr. A dkins had the subjec tive intent to inflic t the injury o r whether he b elieved that injury was sub stantially c ertain to o c c ur as a result o f his c o nduc t. Viewing the rec o rd in its entirety, Mr. A d kins' later testim o ny
22suppo rts the b a nkruptc y c o urt's c o nc lusio n – he ac ted stupidly and

fo o lishly. He never tho u ght ab o ut ho w inac c urate the info rm atio n was o n the b lo g that he "passed o n" to o thers. He had no vendetta against the W entz b ro thers o r BMW and had never m et themo r do ne b usiness with them
. This testim o ny c o upled with Mr. A d kins' testim o ny ab o ut po s ting o n spo r tsc a rds b lo gs in general suppo rts the inferenc e that Mr. A d kins had no subjec tive m o tive to inflic t injury o n the A ppellants no r did he b elieve that injury was sub stantially c ertain to result fro mhis o wn c o nduc t. In sum, altho u gh Mr. A dkins' testim o ny was c o ntradic to ry at tim es, "[i]f the [b ankruptc y c o urt's] ac c o unt o f the evidenc e is plausib le in light o f the rec o r d viewed in its entirety, the c o urt o f appeals m ay no t reverse it even tho ugh c o nvinc ed that had it b een sitting as the trier o f fac t, it wo uld have weighed the evidenc e differently." A nderso n, 470 U .S. at 573–74. That is, the b ankruptc y c o urt's cho ic e am o ng m ultiple plausib le views o f the evidenc e c anno t b e c learly erro neo us. Id. Based o n the fac ts and evidenc e in the rec o r d, and all reaso nab le inferenc es fro mtho se fac ts, the b ankruptc y c o u rt c o uld pro perly c o nc lude that Mr. A dkins did no t ac t willfully within the m eaning o f § 523(a)(6). A c c o rdingly, we disc ern no c lear erro r. CONCL U SION Fo r the reaso ns stated, we A FFIRM.

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