FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In the Matter of: ANTONIO 

BARBOZA; LUCIA ALBARRAN,

Debtors.

No. 06-56319

ANTONIO BARBOZA; LUCIA BAP No.  ALBARRAN, C-05-01398-MaSPa

Appellants, OPINION

v.

NEW FORM, INC.,

Appellee. 

Appeal from the Ninth Circuit

Bankruptcy Appellate Panel

Pappas, Marlar, and Smith, Bankruptcy Judges, Presiding

Argued and Submitted

April 11, 2008—Pasadena, California

Filed September 23, 2008

Before: William C. Canby, Jr. and Jay S. Bybee,

Circuit Judges, and Roger Hunt,* Chief District Judge.

Opinion by Judge Hunt

*The Honorable Roger Hunt, Chief United States District Judge for the

District of Nevada, sitting by designation. 

13411
COUNSEL

Colin W. Wied, C.W. Wied Professional Corporation, San

Diego, California, for the appellants. 

Richard L. Weiner and Paul J. Laurin, Weiner & Laurin, LLP,

Encino, California, for the appellee. 

OPINION

HUNT, District Judge: 

I. OVERVIEW

Lucia Munguia Albarran (“Albarran”) and her husband,

Antonio Barboza (“Barboza”) (collectively “Appellants”),

were found liable after a jury trial in District Court for willful

infringement of New Form, Inc.’s (“Appellee”) copyright for

certain Spanish language films. The District Court instructed

the jury that “willful infringement” required a showing by a

preponderance of the evidence that Appellants “knew that

they were infringing the [Appellee’s] copyrights or that they

13414 IN THE MATTER OF BARBOZA
acted with reckless disregard as to whether they were doing

so.” After judgment was entered, Appellants filed for bankruptcy and sought to discharge the judgment award. The

Bankruptcy Judge held on summary judgment that the judgment award was nondischargeable under 11 U.S.C.

§ 523(a)(6) as a “willful and malicious injury” based upon the

jury’s finding of willful infringement and uncontroverted evidence of Appellants’ knowledge of Appellee’s copyright

interest. 

The BAP affirmed and held that a statutory award of damages for willful copyright infringement is a debt for a “categorically harmful activity,” which is nondischargeable under

§ 523(a)(6) “if the Bankruptcy Court determines that the

infringer had the requisite subjective intent to injure another’s

property interest.” The BAP held that the uncontroverted evidence of knowledge of the creditor’s copyright interest at the

time of infringement was proof of their “substantial certainty”

of resultant harm. 

We now REVERSE and REMAND for further consideration because: (1) there is a genuine issue of material fact as

to whether the infringement was a “willful” injury within the

meaning of § 523(a)(6) of the Bankruptcy Code; and (2) the

“malicious” requirement was not addressed separately from

the “willfulness” requirement as required by our precedent. 

II. FACTS AND PROCEEDINGS BELOW

Appellants operated a business for the duplication, distribution, and sale of Spanish language films. This case concerns

ten films known as the India Maria Pictures. On May 15,

1999, Appellee acquired the exclusive rights to manufacture,

sell, and distribute the India Maria Pictures. Before Appellee

acquired its exclusive rights, Appellants purchased a large

amount of inventory of India Maria Pictures from Million

Dollar Video Corp. (“Million Dollar Video”). 

IN THE MATTER OF BARBOZA 13415
In late summer 1999, Appellee learned that Appellants

were selling the India Maria Pictures. Appellee sent Appellants a letter, dated September 3, 1999, advising them of

Appellee’s exclusive right to duplicate and sell the India

Maria Pictures. After receiving this letter, Appellants allegedly ordered 500 VHS tape copies of the India Maria Pictures

be made by Reel Picture Productions, LLC (“Reel Picture”)

on or about September 9, 1999. 

Albarran responded to Appellee by letter, on September 17,

1999, stating that Appellants: (1) did not know about Appellee’s exclusive rights prior to receiving the September 3 letter;

(2) were selling inventory of India Maria Pictures legally purchased from Million Dollar Video; and (3) were willing to

commence business negotiations with Appellee. 

Appellee sent a final warning letter on December 9, 1999.

Appellants continued to sell the India Maria Pictures until

March 20, 2002, when Appellee filed a lawsuit against Appellants in the U.S. District Court for the Central District of California for willful copyright infringement (the “District Court

Action”). The complaint in the District Court Action alleged

that Appellants willfully infringed Appellee’s copyright in the

India Maria Pictures beginning on or after May 15, 1999, and

ending in 2002. However, the evidence presented at the trial

concerned only the September 9, 1999, duplication immediately following the Appellee’s first warning letter to Appellants. 

A jury trial was held in April 2004, on the infringement by

duplication issue.1 The jury was instructed on “willful”

infringement as follows: 

1

Infringement by duplication was the only issue resolved in the District

Court Action. In regards to the sale and distribution infringement claim,

the District Court found that summary judgment was “not appropriate”

because Appellee had not rebutted Appellants’ evidence that they lawfully

sold and distributed the India Maria Pictures obtained from Million Dollar

Video, under the “first sale doctrine.” Although the distribution issue was

also reserved for trial, it was not resolved. 

13416 IN THE MATTER OF BARBOZA
To prove willful infringement, the Plaintiff must

prove by a preponderance of the evidence that the

Defendants knew that they were infringing the Plaintiff’s copyrights or that they acted with reckless disregard as to whether they were doing so. If you

conclude that the Defendants reasonably and in good

faith believed that they were not infringing the Plaintiff’s copyrights, then you may not find that they

willfully infringed those copyrights. 

The jury returned special verdicts finding that both Albarran

and Barboza had willfully infringed Appellee’s copyright in

each of the India Maria Pictures, and that Appellee should be

awarded statutory damages of $75,000 per video. Judgment

was entered on May 10, 2004, for $750,000, plus costs and

attorney’s fees; the final judgment amount was fixed at

$893,077.11. 

Appellants filed a bankruptcy petition on May 28, 2004.

Appellee timely filed a complaint seeking to have the entire

judgment debt declared nondischargeable as a debt resultant

from a “willful and malicious” injury under 11 U.S.C.

§ 523(a)(6). Appellee promptly moved for summary judgment, and requested that the Bankruptcy Court take judicial

notice of the record and judgment in the District Court

Action. In resolving the motion, the Bankruptcy Court held

that the District Court’s findings would be binding in the

Bankruptcy Action. The Bankruptcy Court stated that Albarran was bound by the fact that she ordered the duplication of

the India Maria Pictures. However, because the jury instruction defined “willful” infringement as either “knowing” or

“reckless” conduct, it was irreconcilably ambiguous as to

whether the award fell within § 523(a)(6)’s meaning of “willfulness.” Therefore, the Bankruptcy Court reserved for trial

the issue of whether Appellants had the “subjective intent to

injure [Appellee] or its property, or subjective knowledge that

injury [was] substantially certain to result.” 

IN THE MATTER OF BARBOZA 13417
Appellee subsequently moved for partial summary judgment on the issue of subjective intent without presenting any

new evidence to the Bankruptcy Court. Appellants filed an

opposition, supported by affidavits, stating that someone else

ordered the duplication of the India Maria Pictures, and that

someone else received and diverted the finished product.

Appellants did not dispute the date of duplication or their

knowledge of Appellee’s copyright on or after September 3,

1999. Alternatively, they argued that the copyright violation

was merely “technical” because there was no evidence that

they sold the unlawfully duplicated copies rather than the

inventory they had legally purchased from Million Dollar

Video. 

At the August 22, 2005, hearing on the motion for partial

summary judgment, the Bankruptcy Court concluded that

there was uncontroverted evidence that Appellants knew of

Appellee’s copyright, and in combination with the jury finding of willful infringement, that the infringement constituted

a willful injury within the meaning of § 523(a)(6). A judgment of nondischargeability was therefore entered in the sum

of $893,077.11. Appellants timely appealed the order and

judgment to the BAP. 

The BAP affirmed the Bankruptcy Court. The BAP implied

“maliciousness” from the Bankruptcy Court’s finding of willfulness. The BAP reasoned that “an award of statutory damages based on willful copyright infringement is a debt for an

injury to the owner’s property interest.” Accordingly, the

BAP reasoned that “[t]he only remaining proof required was

that Debtors were aware of Appellee’s copyright at the time

they infringed it.” The BAP also found that the September 3,

1999, letter gave Appellants actual knowledge that their

infringement was “substantially certain” to cause harm to

Appellee. 

III. ANALYSIS

We review decisions of the BAP de novo, applying the

same standard of review that the BAP applied to the bank13418 IN THE MATTER OF BARBOZA
ruptcy court’s ruling. Wood v. Stratos Prod. Dev. (In re Ahaza

Sys., Inc.), 482 F.3d 1118, 1123 (9th Cir. 2007). Whether a

claim is nondischargeable presents mixed issues of law and

fact and is also reviewed de novo. Murray v. Bammer (In re

Bammer), 131 F.3d 788, 791-92 (9th Cir. 1997) (en banc). 

1. Willful and Malicious Injury Under 11 U.S.C.

§ 523(a)(6)

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

an individual debtor may not discharge a debt “for willful and

malicious injury by the debtor to another entity or to the property of another entity.” (emphasis added). The malicious

injury requirement is separate from the willful injury requirement. Carrillo v. Su (In re Su), 290 F.3d 1140, 1146-47 (9th

Cir. 2002) (conflating the two requirements is grounds for

reversal); see also Jett v. Sicroff (In re Sicroff), 401 F.3d

1101, 1105 (9th Cir. 2005) (“We analyze the willful and malicious prongs of the dischargeability test separately.”). A

“willful” injury is a “deliberate or intentional injury, not

merely a deliberate or intentional act that leads to injury.”

Kawaauhau v. Geiger, 523 U.S. 57, 61 (1998) (emphasis in

original). “A ‘malicious’ injury involves ‘(1) a wrongful act,

(2) done intentionally, (3) which necessarily causes injury,

and (4) is done without just cause or excuse.’ ” In re Su, 290

F.3d at 1146-47 (quoting Petralia v. Jercich (In re Jercich),

238 F.3d 1202, 1209 (9th Cir. 2001)). 

A. Willfulness

This case comes on appeal as a result of a summary judgment entered by the Bankruptcy Court. We review a grant of

summary judgment de novo. Margolis v. Ryan, 140 F.3d 850,

852 (9th Cir. 1998). 

i. Summary Judgment Standard

In adversary proceedings before the bankruptcy court, the

familiar summary judgment standard established in Federal

IN THE MATTER OF BARBOZA 13419
Rule of Civil Procedure 56 applies. See Fed. R. Bankr. P.

7056; North Slope Borough v. Rogstad (In re Rogstad), 126

F.3d 1224, 1227 (9th Cir. 1997). Summary judgment is proper

when “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.” Fed. R. Civ. P. 56(c). An issue is

“genuine” only if there is a sufficient evidentiary basis on

which a reasonable fact finder could find for the nonmoving

party, and a dispute is “material” only if it could affect the

outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving

for summary judgment has the burden of showing the absence

of a genuine issue of material fact. Id. at 256-57. The court

must view all the evidence in the light most favorable to the

nonmoving party. County of Tuolumne v. Sonora Cmty.

Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001). 

In response to a properly submitted summary judgment

motion, the burden shifts to the opposing party to set forth

specific facts showing that there is a genuine issue for trial.

Henderson v. City of Simi Valley, 305 F.3d 1052, 1055-56

(9th Cir. 2002). The nonmoving party “may not rely on denials in the pleadings but must produce specific evidence,

through affidavits or admissible discovery material, to show

that the dispute exists.” Bhan v. NME Hosps., Inc., 929 F.2d

1404, 1409 (9th Cir. 1991). 

A court “generally cannot grant summary judgment based

on its assessment of the credibility of the evidence presented.”

Agosto v. INS, 436 U.S. 748, 756 (1978). “[A]t the summary

judgment stage the judge’s function is not himself to weigh

the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. 

We find that in viewing all facts and drawing all inferences

in the light most favorable to the Appellants, there is a genu13420 IN THE MATTER OF BARBOZA
ine issue of material fact as to whether Appellants acted willfully within the meaning of 11 U.S.C. § 523(a)(6), and thus

summary judgment was improper. Therefore, we reverse and

remand to the Bankruptcy Court to properly determine

whether there was a willful injury within the meaning of

§ 523(a)(6). 

ii. Analysis

[2] The term “willful” as used in copyright infringement

cases is not equivalent to “willful” as used in determining

whether a debt is nondischargeable under the bankruptcy

code. The jury in the District Court Action found that the

Appellants willfully infringed Appellee’s copyright. As our

sister circuits have clearly recognized, a finding of “willfulness” in this context can be based on either “intentional”

behavior, or merely “reckless” behavior. See In re Seagate

Tech., LLC, 497 F.3d 1360, 1370 (Fed. Cir. 2007) (en banc);

Island Software & Computer Serv., Inc., v. Microsoft Corp.,

413 F.3d 257, 263 (2d Cir. 2005); Superior Form Builders,

Inc., v. Dan Chase Taxidermy Supply Co., 74 F.3d 488, 496

(4th Cir. 1996); Wildlife Express Corp., v. Carol Wright

Sales, Inc., 18 F.3d 502, 511 (7th Cir. 1994); RCA/Ariola

Int’l, Inc. v. Thomas & Grayston Co., 845 F.2d 773, 779 (8th

Cir. 1988). Accordingly, in the District Court Action, the jury

was instructed that the infringement was willful if Appellants

“knew that they were infringing the [Appellee’s] copyrights

or that they acted with reckless disregard as to whether they

were doing so.” The jury found that Appellants willfully

infringed Appellee’s copyright by making unlawful copies of

ten India Maria Pictures. However, the Bankruptcy Court had

no way to determine whether the jury found the willful

infringement based on a reckless disregard or a knowing violation of Appellee’s copyright. 

[3] Even though recklessness is sufficient for a finding of

willful copyright infringement, the Supreme Court has clearly

held that injuries resulting from recklessness are not sufficient

IN THE MATTER OF BARBOZA 13421
to be considered willful injuries under § 523(a)(6) of the

Bankruptcy Code and are therefore insufficient to merit an

exemption to dischargeability. Geiger, 523 U.S. at 60-61. In

Geiger, the Supreme Court specifically limited “willful” injuries under § 523(a)(6) to “deliberate or intentional” injuries.

Id. at 61. Therefore, if a finding of “willful” copyright

infringement is based merely on reckless behavior, the resulting statutory award would not fit within the § 523(a)(6)

exemption. 

a. Summary Judgment in Bankruptcy Court

Appellee filed its first motion for summary judgment in the

Bankruptcy Court (“First Summary Judgment Motion”) on

February 11, 2005, to determine whether the statutory award

for “willful” copyright infringement, from the District Court

Action, was nondischargeable. At the hearing on the First

Summary Judgment Motion, the Bankruptcy Judge recognized the potential question of fact that the jury verdict in the

District Court Action presented, and therefore discussed with

counsel how to prepare just “the intent issue, for trial.” In discussing why the issue of intent would be set for trial, rather

than determined on the First Summary Judgment Motion,

counsel for the Appellee asked: “The fact that through even

her [Albarran’s] testimony that she received this [September

3] letter, and thereafter on September 17th, provided that

response; that, just for clarification, doesn’t provide you what

is necessary with respect to her intent?” The court responded

clearly and correctly: “Not in the current context, no.” 

The September 3, 1999, letter referenced by Appellee’s

counsel informed Appellants that Appellee was asserting an

exclusive right to duplicate and sell the films in question.

Appellants’ response letter dated September 17, 1999,

acknowledged Appellee’s assertion of exclusive rights to

duplicate and sell the videos in question. However, the Bankruptcy Judge wisely found at the hearing on the First Summary Judgment Motion that, given the facially ambiguous

13422 IN THE MATTER OF BARBOZA
jury finding, a finding of the requisite intent could not be

determined based on the knowledge of the letter alone. 

Thereafter, Appellee filed a subsequent motion for partial

summary judgment (“Second Summary Judgment Motion”),

which focused on the intent issue. At the hearing on that

motion, the Bankruptcy Judge admitted the difficulty of coming to a decision concerning the matter: “Well, I have wrestled with this and gone back and forth.” As to whether the

willfulness found by the jury was based on reckless disregard

or intentional conduct the Bankruptcy Judge stated: 

The Jury verdict doesn’t tell me which one they’re

looking at [reckless disregard or intentional], but the

evidence is uncontroverted that [Appellants] knew,

the April 19th letter. [sic] And I have to take the jury

finding that the copying occurred and combine that

with the uncontroverted evidence of the knowledge.

Now whether, as Mr. Quinton says, they [Appellants] ultimately never received them, the copies

were diverted from [R]eel [P]ictures. Whether it was

Miguel who really did it, I don’t know the answer to

that. 

But based upon all of this and my review, and

although I think it’s got some interesting questions

in it, I believe that summary judgment should be

granted for the [Appellee] . . . and I’ll sign an order

to that effect.2

2We note that there is no “April 19th letter.” However, the Bankruptcy

Judge was most likely referring to the first warning letter sent to Appellants dated September 3, 1999. This was the same letter that the Bankruptcy Judge correctly held in the hearing on the First Motion for

Summary Judgment would be insufficient to help him determine the “willfulness” of Appellants’ infringement due to the blatant ambiguity in the

jury findings. 

IN THE MATTER OF BARBOZA 13423
b. Question of Fact Remains as to Willfulness

[4] The Bankruptcy Judge clearly erred by inferring from

the jury’s finding of willful infringement that Appellants had

actually ordered the copying themselves. As principals in the

company, Appellants could be held liable for infringement

simply for failing to prevent copyright infringement. See Atl.

Recording Corp. v. Chin-Liang Chan (In re Chin-Liang

Chan), 325 B.R. 432, 448 (Bankr. N.D. Cal. 2005). For that

reason, the jury was instructed in the District Court Action

that: “A person is liable for copyright infringement by another

if the person has a financial interest and the right and ability

to supervise the infringing activity whether or not the person

knew of the infringement.” 

[5] Appellants asserted in the District Court Action that

they did not order the copies but that the infringing videos

were ordered by Albarran’s brother, Miguel, who made it

appear that the videos were ordered by the Appellants. As

such, the jury in the District Court Action could have found

that the Appellants were liable for copyright infringement

because they failed in their supervisory role, that their failure

to supervise was reckless, and therefore that the infringement

was willful. Such a scenario would dictate that the injury was

not a “willful injury” under § 523(a)(6), even though it was

“willful” for purposes of the copyright violation. Given the

possibility that the jury found Appellants liable for willful

copyright infringement based on recklessness, there was no

basis in the record for the Bankruptcy Court to conclude that

the jury verdict in the District Court Action established that

the Appellants willfully violated the Appellee’s copyright for

purposes of § 523(a)(6). Because there was evidence that

could have led the jury in the District Court Action to determine that the infringement was reckless, the judgment in that

Action cannot sustain a summary judgment that the infringement was willful within the meaning of the Bankruptcy Code.

Moreover, the Appellants presented evidence to the Bankruptcy Court that directly spoke to the issue of willfulness for

13424 IN THE MATTER OF BARBOZA
purposes of dischargeability. Albarran submitted a declaration

describing the business dispute that she had with her brother,

Miguel, how Miguel submitted the orders for the disputed

videos under the name of the Appellants’ business, and how

the Appellants did not order the disputed videos or receive

them. The Appellants also submitted a declaration from their

nephew, Francisco Albarran, which stated that Miguel made

the orders for the videos, that Francisco signed for the videos

when they were delivered to the Appellants’ residence in such

a way to indicate that they were received by the Appellants’

business, and that Francisco then delivered the disputed videos to Miguel. Francisco also declared that Miguel gave him

a box of tapes to give to Reel Pictures for duplication and that

those tapes were picked up from the Appellants’ residence. 

[6] This explanation for what happened has some obvious

room for factual development, and the bankruptcy court

should not have weighed the evidence at the summary judgment stage. See, e.g., Anderson, 477 U.S. at 249; Lippi v. City

Bank, 955 F.2d 599, 613 (9th Cir. 1992) (“[T]he district court

appears to have weighed the evidence before it; this role is

inappropriate at the summary judgment stage.”). The evidence

adduced by the Appellants demonstrates that there is a genuine issue of material fact concerning whether the debt arising

from the copyright violation was willful under § 523(a)(6),

which precludes summary judgment on the issue of nondischargeability. 

Appellee cites In re Chin-Liang Chan wherein the bankruptcy judge found on summary judgment that Chan, the CEO

of Media Group, Inc. (“Media Group”), committed a willful

injury within the meaning of § 523(a)(6) because he did not

install certain measures to prevent the unauthorized copying

of copyrighted material. 325 B.R. at 448-49 (Bankr. N.D. Cal.

2005). However, In re Chin-Liang Chan is easily distinguished from the case before us. The In re Chin-Liang Chan

court made its decision only after a thorough and exhaustive

analysis of the evidence, and after showing that substantial

IN THE MATTER OF BARBOZA 13425
evidence was uncontroverted, such as: (1) as CEO of Media

Group, Chan was well aware of the infringement that was

occurring, and he was not doing anything to prevent it; (2)

Media Group admitted that it had reproduced copyrighted

material; (3) the Recording Industry Association of America

(“RIAA”) provided evidence to Media Group of its past

infringements as a result of a failure to implement basic safeguards; (4) the RIAA provided Media Group a toll free number to call if there was any question concerning a customer’s

right to order copies of certain products; (5) Media Group had

been trained on three separate occasions by the RIAA on how

to avoid future infringements; and (6) despite all this, Media

Group made no change in its production procedures. Id. at

444-49. Given that the abundant evidence in the In re ChinLiang Chan case was uncontroverted, the bankruptcy court

found that there were no genuine issues of material fact, and

that Chan’s infringement was done intentionally or with substantial certainty that harm would occur. Id. at 448. In the

instant action, in contrast, the Appellants have disputed who

ordered the copies and who caused them to be ordered, and

the jury verdict in the District Court Action could have been

based on a finding that Appellants were merely reckless. In re

Chin-Liang Chan thus provides no support for Appellee’s

contention that the District Court Action conclusively established that the copyright violation was done willfully for purposes of § 523(a)(6). 

[7] The Appellants presented evidence in the District Court

Action which supported the theory that Miguel was actually

the person who ordered the videos. The jury’s finding of liability for the copyright violation in the District Court Action

thus may have been based on the jury’s conclusion that the

Appellants’ conduct was merely reckless. The Appellants

proffered that same evidence to the Bankruptcy Court, and the

Bankruptcy Court should have considered it when ruling on

the summary judgment motion. Because the evidence concerning whether Miguel was the person who actually ordered

the tapes establishes a genuine issue of material fact as to the

13426 IN THE MATTER OF BARBOZA
element of willfulness for purposes of § 523(a)(6), we reverse

the grant of summary judgment and remand to the Bankruptcy

Court for further proceedings. 

B. Was the Conduct Malicious?

In re Su established that the malicious injury requirement

of § 523(a)(6) must be determined separately from the willful

injury requirement. In re Su, 290 F.3d at 1146-47. In re Su

emphasized the necessity of completing a separate analysis on

the “malicious” prong of § 523(a)(6) by declining to make a

“malicious” finding and remanding to the bankruptcy court

for further analysis, even though the four “malicious” factors

might have been ascertained by examining the record. Id. at

1147; see also In re Sicroff, 401 F.3d at 1105 (“We analyze

the willful and malicious prongs of the dischargeability test

separately.”).

i. Reversible Error by the Bankruptcy Court

[8] The Bankruptcy Court in this case made no rulings as

to the “malicious” prong of § 523(a)(6). Appellee briefed the

malicious prong in its First Summary Judgment Motion in the

Bankruptcy Action. At the hearing on the First Summary

Judgment Motion the Bankruptcy Judge stated “I could not

grant summary judgment as to [intent]. I think you’ve got virtually everything else lined up.” However, there is no discussion on the record of what “everything else” refers to. The

Bankruptcy Court apparently considered the issue of whether

Albarran actually copied the tapes resolved by the District

Court Action. However, we do not know whether that issue

was all the Bankruptcy Court was referring to when it stated

“everything else [was] lined up.” A proposed order on the

First Summary Judgment Motion was submitted to the Bankruptcy Judge that would have found “that all the elements of

§ 523(a)(6) have been established for the purposes of the Trial

of this matter except for the single element of ‘Intent.’ ” However, this proposed order was specifically rejected by the

IN THE MATTER OF BARBOZA 13427
Bankruptcy Court, and an alternative order was adopted

which only held in relevant part that: “The findings of the jury

and the judgment in the Federal Court action . . . bind this

Court and the parties, and shall not be re-litigated in this

adversary proceeding.” Because the District Court Action did

not address the “malicious” prong of § 523(a)(6), and the jury

made no findings in this regard, we cannot discover any separate findings of uncontroverted fact of maliciousness by the

Bankruptcy Court. 

ii. Reversible Error by the BAP

[9] Relying on Thiara v. Spycher Bros. (In re Thiara), 285

B.R. 420, 434 (9th Cir.BAP 2002), the BAP, perhaps in an

attempt to remedy the Bankruptcy Court’s lack of discussion

and findings concerning the “malicious” prong, found that

malice could be implied from willfulness. Although there may

be some overlap between the test for “willfulness” and the test

for “malice,” see Transamerica Commercial Finance Corp. v.

Littleton (In re Littleton), 942 F.2d 551, 554 (9th Cir. 1991)

(per curiam) (“[M]alice may be inferred from the nature of the

wrongful act.”), the overlap does not mean that the Bankruptcy Court can ignore entirely the malice inquiry. We

require a separate analysis for each of the “willful” and “malicious” prongs. See In re Sicroff, 401 F.3d at 1105 (“We analyze the willful and malicious prongs of the dischargeability

test separately.”); In re Su, 290 F.3d at 1146-47 (9th Cir.

2002) (rejecting an attempt to conflate the two prongs and

requiring a separate analysis as to each); In re Jercich, 238

F.3d at 1207-09 (treating the willful and malicious prongs

with separate analyses); In re Littleton, 942 F.2d at 554 (analyzing willfulness and maliciousness separately). The BAP’s

conclusion that the Appellants’ actions were malicious under

§ 523(a)(6) rested entirely on its conclusion that the Appellants’ actions were willful under § 523(a)(6). Because we

have concluded that there is a genuine issue of material fact

as to willfulness, we similarly reverse the Bankruptcy Court’s

judgment with respect to maliciousness. On remand, the

13428 IN THE MATTER OF BARBOZA
Bankruptcy Court should conduct a separate inquiry concerning malice. See In re Sicroff, 401 F.3d at 1105 In re Su, 290

F.3d at 1146-47; In re Jercich, 238 F.3d at 1207-09; In re Littleton, 942 F.2d at 554. 

IV. CONCLUSION

We conclude that there is a question of material fact as to

whether the infringement was willful within the meaning of

11 U.S.C. § 523(a)(6). Furthermore, the Bankruptcy Court did

not separately analyze whether the infringement was malicious within the meaning of 11 U.S.C. § 523(a)(6). Therefore,

we REVERSE the Bankruptcy Court’s determination on summary judgment and REMAND for a proper determination of

whether the infringement was willful and malicious within the

meaning of 11 U.S.C. § 523(a)(6). 

IN THE MATTER OF BARBOZA 13429