FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: SETH E. SICROFF, 

Debtor,

STEPHEN C. JETT, No. 03-15610

Plaintiff-Appellant, D.C. No.

v. CV-02-00975-LKK 

SETH E. SICROFF, ORDER AND

Defendant-Appellee, AMENDED

OPINION and

OFFICE OF THE UNITED STATES

TRUSTEE,

Trustee. 

Appeal from the United States District Court

for the Eastern District of California

Lawrence K. Karlton, Senior Judge, Presiding

Argued and Submitted

May 12, 2004—San Francisco, California

Submission Withdrawn May 27, 2004

Resubmitted February 9, 2005

Filed March 23, 2005

Amended April 11, 2005

Before: Diarmuid F. O’Scannlain, Eugene E. Siler,* and

Michael Daly Hawkins, Circuit Judges.

*The Honorable Eugene E. Siler, Senior United States Circuit Judge for

the Sixth Circuit, sitting by designation. 

4107
Opinion by Judge O’Scannlain

4108 IN RE: SICROFF
COUNSEL

Randall L. Wiens, Law Offices of Randall L. Wiens, Sacramento, California, for the petitioner. 

Daniel P. Whaley, Law Office of Daniel P. Whaley, Sacramento, California, for the respondent. 

ORDER

The court’s opinion, filed March 23, 2005, is hereby

amended as follows: On slip op. 3535, after the sentence in

Section II.B.1. that reads “However, because Sicroff explicitly conceded that his behavior was ‘willful and intentional’

for purposes of the dischargeability hearing, there is no reason

to dwell on the ‘willful’ prong,” the following footnote is to

be inserted: 

Because of Sicroff’s concession, we do not need to

apply the analysis set out in Kawaauhau v. Geiger,

523 U.S. 57 (1998), in which the Supreme Court

4110 IN RE: SICROFF
addressed the question of when an injury is “willful.” 

This order shall not extend the time for filing petitions for

rehearing beyond the original deadline. 

OPINION

O’SCANNLAIN, Circuit Judge: 

We must decide whether a debt was nondischargeable

under the Bankruptcy Act as one for willful and malicious

injury when it arose out of a published defamatory letter from

a graduate student to the Chancellor of the University of California at Davis. 

I

Stephen C. Jett and Seth E. Sicroff were, respectively, a

tenured professor and a graduate student in the Geography

Department of the University of California at Davis. When

the university proposed closing the department, Sicroff sent a

letter, dated April 17, 1993, to the Chancellor and Deans of

the university, with copies to the California Aggie, Sacramento Bee and Davis Enterprise newspapers, in which he purported to reveal the “real motivation” for closing the

department. Sicroff’s letter stated, in part, that: 

Despite the substantial improvements that may be

credited to Prof. Ives [and his new hires], the old

guard of the geography department has plagued you

with a continuous barrage of specious complaints

about Prof. Ives. In particular, Prof. Stephen Jett and

Prof. Conrad Bahre have been relentless in their

accusations against the new chairperson, even while

they themselves have been the subject of numerous

IN RE: SICROFF 4111
and well-substantiated charges of unprofessional

conduct. 

Too weak to fire or even discipline tenured faculty,

no matter how serious their misbehavior, you have

taken this opportunity to rid yourself of a burr under

your saddle. Shame on you, and shame on us all if

we put up with it!

Based largely on the accusations against them contained in

this letter, Professors Jett and Bahre filed two suits, which

were later consolidated, against Sicroff and several other

defendants alleging, among other injuries, slander, libel and

intentional infliction of emotional distress. Before trial, the

other defendants settled their claims with Jett and Bahre. Sicroff, however, refused to participate in the settlement and

threatened to sue Jett and Bahre with malicious prosecution if

they dismissed their claims against him.1

After the partial settlement, the Sacramento County Superior Court referred the remaining claims to binding arbitration

before retired Sacramento Superior Court Judge Benjamin A.

Diaz, who found that Sicroff had made defamatory statements

against Jett and Bahre. On April 23, 1996, the court entered

awards for Bahre of $34,500 (including $4,500 of punitive

damages) and for Jett of $23,000 (including $3,000 of punitive damages). Sicroff appealed this finding and the awards to

the Third District Court of Appeal, which reversed the judgment against him, ruling that the trial court had improperly

denied him his right to a jury trial by ordering the matter to

binding arbitration over his objection. On remand, the trial

court refused to confirm the arbitration-based judgment and

its decision was upheld on a second appeal, which the appellate court determined to be frivolous. 

1Despite this threat, Bahre has since dismissed his claim against Sicroff,

leaving only Jett’s claims against Sicroff to be resolved. 

4112 IN RE: SICROFF
While this litigation was ongoing, Sicroff filed for bankruptcy. Jett and Bahre timely filed adversary complaints to

determine dischargeability based upon their then-existing

judgments against Sicroff and the bankruptcy court lifted its

automatic stay to allow the completion of the state court litigation between the parties. Following a second remand to the

state trial court, a settlement conference was conducted, at

which Sicroff failed to appear.2 After the collapse of the settlement conference, the state court trial proceedings were

stayed pending resolution of the bankruptcy proceeding that

gives rise to this appeal. 

On February 28, 2002, the bankruptcy court held a hearing

limited to the issue of the dischargeability of Sicroff’s debt3

to Jett. At the hearing, Sicroff conceded that his conduct was

“willful and intentional” but denied that it was “malicious.”

In a memorandum order, the bankruptcy court found Sicroff’s debt to Jett to be dischargeable. In pertinent part, it reasoned that: 

First of all, it is clear from . . . the April 17, 1993 letter, that the primary purpose of Debtor’s actions was

2At an early point in the course of this litigation—although exactly

when is not clear from the record—Sicroff appears to have moved to

Nepal, from whence he is unwilling to travel for the purpose of actively

participating in his defense. 

3Although there is not yet a state court judgment against Sicroff arising

out of the alleged defamation, we have recognized that the filing of a

claim, without reducing it to a judgment, is sufficient to establish a debt

for the purpose of a dischargeability determination. Banks v. Gill Distrib.

Ctrs., Inc. (In re Banks), 263 F.3d 862, 868 (9th Cir. 2001) (“The Bankruptcy Code defines the term ‘debt’ to mean ‘liability on a claim,’ and

‘claim’ is defined as a ‘right to payment, whether or not such right is

reduced to judgment . . . .’ ”) (internal citations omitted); see also American Law Ctr. PC v. Stanley (In re Jastrem), 253 F.3d 438, 442 (9th Cir.

2001) (“[T]he definition of ‘claim’ in bankruptcy is exceedingly broad. A

‘claim’ is ‘a right to payment, whether or not such right is reduced to judgment . . . .’ ”). 

IN RE: SICROFF 4113
to protest the closing of the Geography Department

at the University of Davis. While there can be no

doubt that Debtor intentionally and repeatedly published his untrue statements about Plaintiff, the evidence tends to show that he believed those

statements were true and, in his opinion, explained

the real cause for the proposal to close the Geography Department. 

. . . . 

Secondly, objecting to the closing of the Geography Department and pointing out the perceived misconduct of University officials may be the “just

cause and excuse” that would exonerate Debtor’s

actions. . . . Debtor did not make his statements to

spite the Plaintiff, but to support the larger cause, at

least in his mind, of unmasking the real reasons the

University officials intended to eliminate the Geography Department. In that sense, at least, Debtor’s

actions were not malicious. 

Jett filed a timely notice of appeal to the District Court, which

affirmed. Jett timely appeals to this court. 

II

“[A] central purpose of the [Bankruptcy] Code is to provide

a procedure by which certain insolvent debtors can reorder

their affairs, make peace with their creditors, and enjoy ‘a

new opportunity in life and a clear field for future effort,

unhampered by the pressure and discouragement of preexisting debt.’ ” Grogan v. Garner, 498 U.S. 279, 286 (1991)

(quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934)).

It is only the “honest but unfortunate” debtor, however, who

is entitled to an entirely unencumbered fresh start. Id. at 287.

Accordingly, the Bankruptcy Code exempts certain debts

from discharge. Such exceptions to discharge “should be con4114 IN RE: SICROFF
fined to those plainly expressed,” Kawaauhau v. Geiger, 523

U.S. 57, 62 (1998) (quoting Gleason v. Thaw, 236 U.S. 558,

562 (1915)), and should “be strictly construed in order to

serve the Bankruptcy Act’s purpose of giving debtors a fresh

start.” Industrie Aeronautiche v. Kasler (Matter of Kasler),

611 F.2d 308, 310 (9th Cir. 1979). 

[1] Section 523(a)(6) of the Bankruptcy Code provides one

such express limitation: “(a) A discharge under section 727,

1141, 1228(a), 1228(b), or 1328(b) of this title does not 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.” 11 U.S.C. § 523(a)(6). Jett

alleges that Sicroff’s defamatory statements constituted a

“willful and malicious injury” and that, therefore, the debt to

which they give rise should not be discharged. 

We turn first to the question of whether any of Sicroff’s

statements were defamatory and then to the question of

whether the injury that they caused was “willful and malicious.”

A

The injury alleged in this case is Sicroff’s defamation of

Jett. The bankruptcy court found simply that Sicroff had published untrue statements about Jett. On appeal, the district

court noted that the bankruptcy court had failed to distinguish

adequately between false assertions of provable fact and statements of opinion and conducted a more thorough review of

many of the allegedly defamatory statements. The district

court concluded that many of the statements fell outside the

realm of potentially defamatory statements but, because it

found that Jett was unable to carry his burden of proving that

the defamation both willfully injured him and was malicious,

the court did not scrutinize the remaining statements and

assumed arguendo that they were defamatory. We must,

therefore, conduct that more probing review ourselves. 

IN RE: SICROFF 4115
[2] In California, libel is defined by statute simply as “a

false and unprivileged publication by writing [or other

means], which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or

avoided, or which has a tendency to injure him in his occupation.” Cal. Civ. Code § 45. 

We agree with the district court that certain statements

were either simple name-calling or not provable factually. See

Flowers v. Carville, 310 F.3d 1118, 1127 (9th Cir. 2002)

(“The law provides no redress for harsh name-calling.”).

However, this leaves at least some statements that were not

evaluated by either the bankruptcy court or the district court

for their libelous nature. These statements include Sicroff’s

allegations, contained in his April 17, 1993 letter, that Professors Jett and Bahre had been “the subject of numerous . . .

charges of unprofessional conduct,” should have been disciplined for “serious misbehavior,” and had brought a “continuous barrage of specious complaints” against the department

chair. 

Under California law, “it is a question of law for the court

whether a challenged statement is reasonably susceptible of

an interpretation which implies a provably false assertion of

actual fact.” Kahn v. Bower, 284 Cal. Rptr. 244, 250 (Cal. Ct.

App. 1991). The California courts have explained:

[I]n ascertaining whether the statement in question is

sufficiently communicative of provable falsity or

actual fact to subject the defendant to liability, courts

will continue to consider the totality of the circumstances . . . . First, the language of the statement is

examined. For words to be defamatory, they must be

understood in a defamatory sense . . . . Next, the context in which the statement was made must be considered . . . . This contextual analysis demands that

the courts look at the nature and full content of the

communication and to the knowledge and under4116 IN RE: SICROFF
standing of the audience to whom the publication

was directed. 

Id. at 249 (internal quotations and citations omitted). 

[3] The bankruptcy court determined that statements in the

April 17, 1993 letter regarding “numerous and wellsubstantiated charges of professional misconduct” were false

and Sicroff’s counsel did not disagree. The record also shows

that Jett had not been disciplined for “serious misbehavior”

and that he had not brought a “continuous barrage of specious

complaints” against the department chair. Sicroff offered no

defense of “privilege” for his statements. Finally, by alleging

“professional misconduct,” “serious misbehavior” and other

unprofessional activity, Sicroff’s statements had a tendency to

injure Jett in his occupation. For these reasons, we must conclude that Sicroff’s statements satisfied the requirements of

libel under California law. 

B

[4] We analyze the willful and malicious prongs of the dischargeability test separately. See Carillo v. Su (In re Su), 290

F.3d 1140, 1146 (9th Cir. 2002) (noting with approval that “in

In re Jercich, we treated the ‘malicious’ injury requirement of

§ 523(a)(6) as separate from the ‘willful’ requirement”); see

also Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1207-

09 (9th Cir. 2001). Under the test, a creditor must demonstrate

nondischargeability by a preponderance of the evidence. Grogan, 498 U.S. at 291. When applying this standard, “[i]n addition to what a debtor may admit to knowing, the bankruptcy

court may consider circumstantial evidence that tends to

establish what the debtor must have actually known when taking the injury-producing action.” In re Su, 290 F.3d at 1146

n.6.

IN RE: SICROFF 4117
1

[5] The bankruptcy court concluded that the facts fell short

of proving that Sicroff’s acts were either willful or malicious.

However, because Sicroff explicitly conceded that his behavior was “willful and intentional” for purposes of the dischargeability hearing, there is no reason to dwell on the “willful”

prong.4 Sicroff offered no evidence that could counterbalance

the weight of his concession and the bankruptcy court’s contrary determination was clearly erroneous.

2

[6] An injury is “malicious,” as that term is used in Section

523(a)(6), when it is: “(1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse.” In re Jercich, 238 F.3d at 1209.

Within the plain meaning of this definition, it is the wrongful

act that must be committed intentionally rather than the injury

itself. See Murray v. Bammer (In re Bammer), 131 F.3d 788,

791 (9th Cir. 1997) (“This four-part definition does not

require a showing of . . . . an intent to injure, but rather it

requires only an intentional act which causes injury.”). 

[7] Because we are persuaded that at least some of Sicroff’s

statements were libelous, we also conclude that the first two

criteria of “malicious injury” are met. A libelous act, by its

nature, is self-evidently wrongful and is committed by an

intentional act of publication—in this case, by Sicroff’s dissemination of his letter. The third criterion—that the action

necessarily cause injury—is also met because Sicroff’s statements were directed at Jett’s professional reputation and,

therefore, will necessarily harm him in his occupation. Having

satisfied the first three elements of “malicious injury,” to pre4Because of Sicroff’s concession, we do not need to apply the analysis

set out in Kawaauhau v. Geiger, 523 U.S. 57 (1998), in which the

Supreme Court addressed the question of when an injury is “willful.” 

4118 IN RE: SICROFF
vail, Jett must demonstrate by a preponderance of the evidence that Sicroff published his statements “without just

cause and excuse.” It was this final criterion that the bankruptcy court found lacking. 

a

The “just cause and excuse” element of “malicious injury”

presents a mixed question of law and fact, which we review

de novo. Id. at 791-92. 

[8] The bankruptcy court found that Sicroff had “just cause

and excuse” to defame plaintiff despite acknowledging that it

could find “no cases . . . that defined that phrase.” We have,

however, interpreted that phrase in at least one prior case. In

In re Bammer, an en banc panel of this court reversed a Bankruptcy Appellate Panel decision that intentional fraud could

be undertaken with “just cause and excuse” when the debtor

acted “out of compassion for his mother” and no benefit

inured to himself. Id. at 791. Explaining our reversal, we

declared that “[w]e can think of no reason consistent with section 523 . . . to permit a standardless, unmeasurable, emotional, and nonlegal concept such as compassion to negate an

identifiably and legally wrongful act.” Id. at 793 (emphasis in

original). 

[9] In the case before us, we similarly must conclude that

Sicroff’s goal of protesting the Geography Department’s closure did not provide just cause or excuse to calumniate Jett’s

professional reputation.5 Not only were his libelous statements

legally wrongful, but Sicroff went well beyond the scope of

5

In doing so, however, we affirm that the “just cause and excuse” element has survived Geiger in the Ninth Circuit. See In re Jercich, 238 F.3d

at 1209. While at least one other circuit has read Geiger to eliminate the

element, see Miller v. J.D. Abrams Inc. (Matter of Miller), 156 F.3d 598,

606 (5th Cir. 1998), we disagree with that interpretation, which was based

on reasoning that conflates the elements of willfulness and malice in contravention of our clear precedents. Although it may be rare to find a just

IN RE: SICROFF 4119
his legitimate goal to attack Jett by name. When the California Aggie first printed his letter on April 22, 1993, it prudently excised the personalized attacks against Jett and Bahre.

In response to this edit, Sicroff sent a second letter, which the

newspaper reprinted on April 26, 1993, complaining that

“[t]he edited version of my letter that you printed April 22

about the geography department . . . did not at all represent

the main point of the letter” and inviting “readers [who]

would like the full text of the letter [to] please drop me a note

at the geography department.” This action demonstrates a specific intent to injure Jett over and above otherwise legitimate

protest. For these reasons, the bankruptcy court erred in its

interpretation of the phrase “just cause and excuse” and in its

conclusion that Sicroff’s defamation was not malicious by virtue of its connection to a larger, legitimate purpose. We hold

instead that Sicroff’s libelous statements were not made with

just cause and excuse and that, as a result, they were malicious.

III

[10] Because we must conclude that Sicroff’s libelous

statements constituted a willful and malicious injury, his debt

to Jett is not dischargeable. The judgment of the district court

is 

REVERSED. 

cause and excuse for defamation, the phrase is hardly without use in other

contexts. An assault, for example, may cause a “willful injury” and meet

the first three criteria of “malicious,” yet be justly excused by self-defense.

However, while excuses that are otherwise valid defenses to criminal

offenses may well function with similar force under the “malicious” prong

of the dischargeability test, such an excuse is not offered here. 

4120 IN RE: SICROFF