[00:00:00] Speaker 00:
first case.

[00:00:02] Speaker 00:
In Ray Charles, Yvonne Banner, Bruce Dyson House Council for Appellant, Brandon L. Phillips, Council for Appellate.

[00:00:15] Speaker 03:
Okay.

[00:00:15] Speaker 03:
Appellant first place.

[00:00:17] Speaker 03:
Come on up.

[00:00:20] Speaker 03:
I forgot to mention that I'll ask the appellant if you want to reserve some time for rebuttal part of your 15 minutes, you will reserve some time for that purpose.

[00:00:29] Speaker 04:
I do, Your Honor.

[00:00:31] Speaker 04:
Five minutes.

[00:00:31] Speaker 03:
Five minutes.

[00:00:32] Speaker 03:
OK.

[00:00:33] Speaker 03:
Please go ahead.

[00:00:35] Speaker 04:
Given the Court's comments just a few minutes ago, other than what is stated in my file brief, my supplemental brief, my post-trial brief, and the two briefs I've filed in this Court,

[00:00:55] Speaker 04:
I have focused on the exact same issues.

[00:00:58] Speaker 04:
This is a single issue case that relates to willfulness.

[00:01:05] Speaker 04:
I believe I cited the relevant Ninth Circuit cases with respect to how a bankruptcy court views the element of willfulness.

[00:01:18] Speaker 04:
When I read Judge Spraker's ruling, I was beside myself.

[00:01:26] Speaker 04:
because it appeared to me, based on his analysis, that he ignored the 2014 lawsuit filed by Mr. Charles and focused entirely on the 2011 lawsuit.

[00:01:44] Speaker 04:
The 2011 lawsuit has relevance only in one context, and that context is to form the predicate

[00:01:54] Speaker 04:
for the 2014 lawsuit.

[00:01:57] Speaker 04:
The 2011 lawsuit was filed and was summarily dismissed on demur, and even Mr. Charles acknowledged, although at times he didn't, that he was advised that the matter had to be dealt with in probate court.

[00:02:18] Speaker 04:
Subsequent to the dismissal of that lawsuit, probate action ensued.

[00:02:24] Speaker 04:
and the public guardian of Riverside County was appointed to control the estate of Jeffrey Charles's mother.

[00:02:35] Speaker 04:
Once the public guardian was appointed, there was not a single thing that Yvonne Boehner could do as an attorney to impact

[00:02:45] Speaker 04:
Jeffrey Charles's recovery from his mother's estate because all of the conservatees financial affairs.

[00:02:54] Speaker 03:
Tell me more about what you mean by the 2011 case being the predicate for the 2014 case.

[00:03:00] Speaker 03:
That sounds pretty important to me, like it's a pretty important element of your case today.

[00:03:06] Speaker 04:
It was, but you analyzed the willfulness aspect of the case.

[00:03:14] Speaker 04:
by looking at the 2014 lawsuit.

[00:03:18] Speaker 04:
Yes, the 2011 decision, the dismissal, is important because it forms the basis of a prior dismissed action that was found to have no merit on the merits.

[00:03:36] Speaker 04:
The 2014 lawsuit

[00:03:38] Speaker 04:
was allegedly, according to Mr. Charles, filed so that he could rescind documents.

[00:03:46] Speaker 04:
Yet when you look at the 2014 lawsuit, there is not a claim to rescind a single document.

[00:03:55] Speaker 03:
So you don't think you can glean anything from his intention in 2014 from what he did in 2011?

[00:04:00] Speaker 04:
No, no, no.

[00:04:02] Speaker 04:
That's not what I'm saying.

[00:04:03] Speaker 04:
You gleaned that intention from what he did in 2011 because between 2011, before probate had ensued, there was a potential for Mr. Boehner to fiscally impact Mr. Charles's recovery.

[00:04:21] Speaker 04:
But once the public guardian was appointed at the end of 2012, that was no longer a possibility.

[00:04:29] Speaker 04:
And yet, for no apparent reason, in 2014, he files a virtually identical lawsuit to the 2011 lawsuit.

[00:04:39] Speaker 04:
As I understand how Silas versus Arden defines willfulness, and we cited a slew of cases going in the same direction,

[00:04:50] Speaker 04:
You have to know when you sue someone that it's going to cause that person harm because they're going to be forced to defend themselves, which is precisely what happened.

[00:05:02] Speaker 03:
Well, since you're talking about knowledge, I want to hear some more about your view of the standard review.

[00:05:10] Speaker 03:
I think your argument is basically de novo review.

[00:05:13] Speaker 03:
Is that right?

[00:05:14] Speaker 04:
Yes, it is.

[00:05:15] Speaker 04:
This is a mixed question of fact and law.

[00:05:17] Speaker 03:
But isn't the person's intention, a person's motivation, isn't that sort of quintessentially a question of fact?

[00:05:25] Speaker 04:
I don't believe so, Your Honor.

[00:05:27] Speaker 04:
And if it was a question of fact, you would have to analyze it not from the context of the 2011's lawsuit, but from the 2014 lawsuit.

[00:05:39] Speaker 04:
The 2011 lawsuit only assists the court in trying to ascertain what was Jeffrey Charles thinking in 2014 when he filed a virtually identical lawsuit that he knew Miss Boehner would have to defend.

[00:05:57] Speaker 04:
And that segues into the defamation claim, because there were two claims that Judge Spraker found was dischargeable.

[00:06:09] Speaker 04:
not just the malicious prosecution, but the defamation claim.

[00:06:13] Speaker 04:
In the defamation claim, Judge Spraker's analysis essentially posited a negligent defamation.

[00:06:26] Speaker 04:
One, I'm not sure that's possible legally, but more importantly,

[00:06:33] Speaker 03:
is intent to injure an element of a defamation claim under non-bankruptcy law?

[00:06:43] Speaker 04:
Given the allegations and given what was written in that particular note, no, because I think it's defamation per se.

[00:06:51] Speaker 04:
You're asserting an ethical or hurting misconduct where damages are presumed to flow.

[00:07:02] Speaker 03:
Does that presumption support a 523A6 determination of willfulness and malice?

[00:07:07] Speaker 04:
I believe so, especially when the jury in this case not only awarded compensatory damages, but awarded punitive damages.

[00:07:19] Speaker 04:
In order to award punitive damages, there is no possibility under California law that the conduct was done negligently.

[00:07:29] Speaker 04:
It has to be.

[00:07:30] Speaker 03:
There's a difference between negligence and intent to injure or subjective knowledge injures substantially certain to flow.

[00:07:39] Speaker 03:
There's a different intention involved there, right?

[00:07:42] Speaker 03:
Do you have to have intent to injure or this subjective knowledge in order to have punitive damages under California law?

[00:07:50] Speaker 03:
Yes.

[00:07:51] Speaker 03:
Even though California law allows punitive damages based on, I think the word is oppression.

[00:07:57] Speaker 03:
True.

[00:07:59] Speaker 04:
But it also, and fraud would not be it, but oppression is essentially unconscionable conduct.

[00:08:10] Speaker 04:
And what more

[00:08:15] Speaker 04:
Unconscionable conduct is it to send a lawyer a letter accusing that lawyer of misconduct.

[00:08:23] Speaker 04:
A letter that in this particular case was read by someone who was a staff member of the attorney.

[00:08:31] Speaker 04:
Was it wide publication?

[00:08:33] Speaker 04:
No.

[00:08:34] Speaker 04:
Did he know this was going to necessarily happen?

[00:08:38] Speaker 04:
No.

[00:08:39] Speaker 04:
But he sent it with a purpose.

[00:08:41] Speaker 04:
and the purpose demonstrates what his intent was.

[00:08:45] Speaker 04:
He's now threatening a lawyer, every time you do something to help my sister, I'm going to sue you.

[00:08:53] Speaker 04:
For a woman who's in her seventies, it's offensive.

[00:08:58] Speaker 04:
And I think there's no doubt in my mind that he intended to harm.

[00:09:04] Speaker 02:
So let me, let me ask.

[00:09:05] Speaker 02:
So it seems like

[00:09:07] Speaker 02:
What you're saying is Judge Breaker should never have had the trial and taken testimony.

[00:09:11] Speaker 02:
He should have just ruled in your client's favor on summary judgment because the whole basis of your argument here today is that it was all decided in the state court.

[00:09:20] Speaker 02:
Is that correct?

[00:09:21] Speaker 04:
No, it's not.

[00:09:25] Speaker 04:
I thought the trial was intended to deal with

[00:09:29] Speaker 04:
the 2014 lawsuit that Jeffrey Charles filed and that he lost every claim on using the 2011 lawsuit as the background to show that he'd had that he'd already lost one.

[00:09:44] Speaker 04:
And then three years later, with no apparent reason to do so, files a virtually identical lawsuit.

[00:09:51] Speaker 02:
But can't you look at it the reverse way, which is what I think Judge Breaker did, which is said, yeah, we had this dismissed lawsuit.

[00:09:59] Speaker 02:
It was dismissed at the pleading stage by agreement of the parties, basically.

[00:10:03] Speaker 02:
Mr. Charles didn't object.

[00:10:05] Speaker 02:
And then we had a new lawsuit which survived the pleading stage and actually went to trial.

[00:10:10] Speaker 02:
Doesn't that mean that there's possibly some merit there?

[00:10:13] Speaker 04:
No, because at the time the 2014 lawsuit was filed, Ms.

[00:10:19] Speaker 04:
Boehner's ability to impact

[00:10:23] Speaker 04:
or cause fiscal harm to Jeffrey Charles had ended because she no longer had assets, access to the assets of his mother's estate.

[00:10:35] Speaker 04:
Those were controlled by Riverside County's public guardian.

[00:10:42] Speaker 03:
You have about five minutes left, so yes, okay.

[00:10:44] Speaker 03:
I'll reserve the remainder.

[00:10:45] Speaker 03:
Okay, thank you.

[00:10:46] Speaker 00:
Thank you.

[00:10:48] Speaker 03:
Mr. Phillips.

[00:10:53] Speaker 01:
First and foremost, thank you for allowing me to argue on behalf of Mr. Charles.

[00:10:58] Speaker 01:
I do not take that privilege lightly.

[00:11:00] Speaker 01:
You have received the briefings and have seen my numerous references to the length of the lower court's decision.

[00:11:07] Speaker 01:
I do recognize that just because the court's memorandum of trial was over 30 pages and kept me in high anticipation until the final page, it doesn't necessarily mean that the lower decision was correct.

[00:11:22] Speaker 01:
However, what the 30 page decision does prove is that lower court reviewed all of the evidence that was presented at the time of trial and after.

[00:11:36] Speaker 01:
I remind this court of the breadth that the lower court went to to be sure that it had all of the facts.

[00:11:42] Speaker 01:
I mean, there was a motion for summary judgment in the lower court case, an opposition in a hearing.

[00:11:48] Speaker 01:
There was a motion to reconsider that when it was denied.

[00:11:51] Speaker 01:
There was an opposition and a hearing.

[00:11:53] Speaker 01:
There was a trial.

[00:11:54] Speaker 01:
Appellants submitted primarily all of the records and transcripts and pleadings from the lower court, or I'm sorry, from the California court's decision.

[00:12:04] Speaker 01:
There was also testimony of Mr. Charles, which survived cross-examination, which was difficult and argumentative at times.

[00:12:14] Speaker 01:
There was testimony from an attorney that Mr. Charles consulted.

[00:12:18] Speaker 01:
before and during the litigation that was ongoing in 2011 and 2014.

[00:12:22] Speaker 01:
There was also post-trial briefing that was allowed by the lower court.

[00:12:29] Speaker 01:
And even after a hearing on that post-trial briefing, the court not being satisfied with how the facts had been laid out and whether or not the court had full knowledge of all those facts and how they intertwined and how the 2011 case interacted with the 2014 case.

[00:12:48] Speaker 01:
He asked for additional briefing.

[00:12:50] Speaker 01:
So I would say in this circumstance, the parties have been afforded more opportunity than ever before to lay out the facts and to make sure that the judge was aware of the facts before he made his decision.

[00:13:08] Speaker 01:
I haven't been given that opportunity with such supplemental briefing and argument on those issues ever in my career.

[00:13:15] Speaker 01:
And while it's been short,

[00:13:17] Speaker 01:
I don't think that that's normal, where we get to do such briefing on those issues.

[00:13:22] Speaker 03:
I think the appellant's point is largely, I'll put it in my own words, how could Mr. Charles not have known, subjectively known, that what he was doing was going to hurt Ms., is it Boehner or Banner?

[00:13:36] Speaker 03:
I'm sorry, Boehner?

[00:13:37] Speaker 03:
Okay.

[00:13:37] Speaker 03:
How could he not have known subjectively this is substantially certain to hurt her?

[00:13:42] Speaker 03:
sending the letter, filing the lawsuit that partly duplicated the 2011 suit.

[00:13:49] Speaker 03:
How could that not have hurt Ms.

[00:13:51] Speaker 03:
Boehner?

[00:13:53] Speaker 01:
Well, again, we have to go back to the lower court's decision.

[00:13:56] Speaker 01:
And it's not de novo review as they want.

[00:14:00] Speaker 01:
The lower court decided that issue.

[00:14:03] Speaker 01:
And without a clearly definitive and firm conviction that the lower court messed that up,

[00:14:10] Speaker 01:
clearly erroneous decision, it cannot be overturned.

[00:14:14] Speaker 01:
The lower court made that decision that he didn't have that knowledge.

[00:14:18] Speaker 01:
They heard his testimony.

[00:14:20] Speaker 01:
He consulted with attorneys before he filed it.

[00:14:23] Speaker 01:
He had an attorney at the time that he filed it, I'm sorry, during the trial.

[00:14:27] Speaker 01:
It didn't, as Judge Brand pointed out, it survived summary judgment motions and pleadings pre-trial.

[00:14:36] Speaker 01:
So at the time on the pleadings,

[00:14:40] Speaker 01:
The court found that there was a basis for Mr. Charles' belief in what he was pursuing in that litigation.

[00:14:49] Speaker 01:
Now, ultimately he lost, but the idea that you send an attorney a letter, if we get into some of the facts, you send an attorney a letter, which isn't threatening.

[00:15:00] Speaker 01:
I mean, he didn't say, hey, I'm going to cause you physical harm.

[00:15:04] Speaker 01:
He said, I'm going to go to court if you continue to do this.

[00:15:07] Speaker 01:
I'm going to resolve this the way that we want individuals to resolve this, which is by pursuing any dispute in court.

[00:15:15] Speaker 01:
Not any dispute, but the majority of those disputes.

[00:15:19] Speaker 01:
Simply telling an attorney that I believe you're committing malpractice or I believe you're doing something that violates the rules of ethics.

[00:15:26] Speaker 01:
I mean, that happens every day in some facet to some attorney in the country.

[00:15:30] Speaker 01:
I mean, if that's the standard, then I don't think anybody's gonna be sending

[00:15:34] Speaker 01:
their attorneys or other attorneys, letters of, hey, your committee malpractice, stop doing it, or I'm going to sue you.

[00:15:42] Speaker 01:
That happens.

[00:15:43] Speaker 01:
And while it's not nice to have and not convenient to receive, I wouldn't necessarily say that Mr. Charles sent it thinking, I'm going to tell her, I'm going to sue her if she doesn't stop doing this.

[00:15:56] Speaker 01:
And then this is going to cause her harm and injury as required under 523A6.

[00:16:03] Speaker 01:
He's thinking she's going to stop doing this and stop being involved.

[00:16:07] Speaker 01:
I think there was a belief by Mr. Charles, and he pointed this out during his testimony, there was a belief that he had a legal, that they were interfering legally with his mother's estate, and he was trying to prevent that.

[00:16:21] Speaker 01:
If the court goes back and review the record, I mean, his sister, who was involved in this matter, he got a judgment or a settlement from her to pay back

[00:16:32] Speaker 01:
certain amounts to him.

[00:16:35] Speaker 01:
So this idea that she's working with Ms.

[00:16:40] Speaker 01:
Banner, there's some belief there, because she ends up paying him back for some of the actions that she did.

[00:16:46] Speaker 01:
So the thing- The sister paid back, right?

[00:16:48] Speaker 01:
Yeah, the sister, not Ms.

[00:16:49] Speaker 01:
Banner.

[00:16:49] Speaker 01:
I don't want to confuse that.

[00:16:52] Speaker 02:
Right.

[00:16:53] Speaker 02:
So- Let me ask, what about this notion that after the probate case was filed, all issued, there was nothing basically left for Ms.

[00:17:03] Speaker 02:
Boehner to do that would impact the estate.

[00:17:06] Speaker 02:
And so therefore, you know, I think this is what the argument is, is that filing the next lawsuit was malicious as to her.

[00:17:18] Speaker 01:
I understand that that is their position and will and equals willful.

[00:17:23] Speaker 01:
Right.

[00:17:23] Speaker 01:
But there there was a finding, as the judge pointed out, there was a finding of malice, but not of willfulness.

[00:17:30] Speaker 01:
And the court made that specific finding in the decision of the lower court.

[00:17:35] Speaker 01:
They analyzed that issue, and that's a factual determination that cannot be overturned unless the court found it clearly erroneous.

[00:17:43] Speaker 01:
And again, the court heard testimony on why he filed it.

[00:17:48] Speaker 01:
That was all set forth in the lower court's decision.

[00:17:51] Speaker 01:
And the court made a decision that, look, he believed he had a reason to file it.

[00:17:56] Speaker 01:
and he consulted with attorneys.

[00:17:58] Speaker 01:
Even if that decision is ultimately wrong and he gets a judgment, it doesn't mean that he went that next step, which was the intent to injure or harm.

[00:18:07] Speaker 01:
He filed a lawsuit.

[00:18:08] Speaker 01:
And that's where they want to believe that because she had to go through this lawsuit, he knew that he was going to lose.

[00:18:14] Speaker 01:
Well, he didn't know that he was going to lose.

[00:18:16] Speaker 01:
He had attorneys telling him he wasn't going to lose.

[00:18:19] Speaker 01:
He had a valid case.

[00:18:20] Speaker 01:
He survived motions for summary judgment, as we've talked about.

[00:18:24] Speaker 01:
So all of this,

[00:18:26] Speaker 01:
And if you look at the evidence, ultimately, it did not get presented, I believe, at the time of the California case.

[00:18:33] Speaker 01:
But he also had an expert that he hired about handwriting that occurred.

[00:18:37] Speaker 01:
And they've tried to present that evidence, but it was excluded.

[00:18:42] Speaker 01:
So he had experts who said, hey, look, there's something going on here with documents and pleadings that are being signed by Ms.

[00:18:49] Speaker 01:
Banner that do not match her signatures.

[00:18:52] Speaker 01:
While that didn't get into the testimony,

[00:18:54] Speaker 01:
the underlying fact is he did work outside of the case to validate his claims.

[00:19:02] Speaker 01:
And therefore that factual determination was what the court relied on is what did he do to pursue the lawsuit?

[00:19:10] Speaker 01:
Did he have grounds?

[00:19:11] Speaker 01:
Did he consult with people?

[00:19:13] Speaker 01:
Did he get expert witnesses?

[00:19:15] Speaker 01:
He did all that.

[00:19:16] Speaker 01:
So it wasn't a frivolous lawsuit in the in per se by, you know, he just filed a blanket random claims

[00:19:24] Speaker 01:
that wouldn't have survived.

[00:19:25] Speaker 01:
They survived, and they went to trial.

[00:19:27] Speaker 01:
So I think under that standard that we have to go by, you cannot reach to the wilfulness, which is what the lower court found.

[00:19:35] Speaker 01:
And I would just remind the court that it is a factual determination.

[00:19:42] Speaker 01:
And without finding that the lower court clearly, erroneously didn't reach that conclusion,

[00:19:51] Speaker 01:
or reach the conclusion that it did by an erroneous nature, they didn't.

[00:19:55] Speaker 01:
I mean, the 30 pages of briefing outlines how he got there and what facts he analyzed.

[00:20:02] Speaker 01:
And I think what is also left out is this willfulness issue was raised by the court and told them when they filed the motion for summary judgment, look, you have to focus on this willfulness issue.

[00:20:18] Speaker 01:
That's where this trial is going to be about.

[00:20:21] Speaker 01:
you need to show me evidence by testimony or by the California court decision where that willfulness is.

[00:20:28] Speaker 01:
And after hearing that and reviewing all the pleadings, the court determined that they did not satisfy their burden.

[00:20:34] Speaker 01:
And so we would ask that this court confirm the lower court's decision because I do not believe that you can find in the record and based on the evidence that the lower court extensively examined that there was a clearly erroneous decision here.

[00:20:49] Speaker 01:
Any more questions for Mr. Phillips?

[00:20:52] Speaker 03:
No.

[00:20:52] Speaker 03:
No.

[00:20:52] Speaker 03:
All right.

[00:20:52] Speaker 03:
Thank you.

[00:20:52] Speaker 03:
Thank you, Your Honor.

[00:20:55] Speaker 03:
Okay.

[00:20:55] Speaker 03:
Okay.

[00:20:55] Speaker 03:
Mr. Giesenhaus, you have five minutes.

[00:20:58] Speaker 04:
Thank you, Your Honor.

[00:21:01] Speaker 04:
Mr. Phillips just referenced the testimony of David Corey, who is a Las Vegas attorney.

[00:21:10] Speaker 04:
And Mr. Corey's testimony was relatively brief, but if you look

[00:21:16] Speaker 04:
in Judge Breaker's opinion, there's not a single reference to Corey's testimony.

[00:21:23] Speaker 04:
So either he concluded that it was irrelevant to his analysis, which I believe he did, because he wasn't analyzing the 2014 lawsuit.

[00:21:33] Speaker 04:
He was analyzing the 2011 lawsuit.

[00:21:37] Speaker 04:
And also, as the court knows,

[00:21:41] Speaker 04:
Advice of counsel was an instruction as a defense to the malicious prosecution at the trial.

[00:21:48] Speaker 04:
It was not an issue on appeal.

[00:21:54] Speaker 04:
The malicious prosecution judgment were not attacked on appeal.

[00:21:59] Speaker 04:
There were other issues that were, but not the malicious prosecution component of the judgment.

[00:22:10] Speaker 04:
The fact that Judge Breaker ignored Corey's testimony.

[00:22:15] Speaker 03:
Well, he did reference it once, at least, that we found in the decision.

[00:22:18] Speaker 03:
Right.

[00:22:19] Speaker 04:
But there's no analysis of it as to whether or not he found advice of counsel was a defense.

[00:22:25] Speaker 04:
And of course, in California, advice of counsel is a complete defense to a malicious prosecution claim.

[00:22:35] Speaker 04:
Mr. Phillips made multiple references to the fact of testimony.

[00:22:40] Speaker 04:
But I think when you look at how you gauge willfulness under the code, the court can imply from all of the circumstances what his intent and his motivation and his purpose was for the 2014 lawsuit.

[00:23:00] Speaker 03:
I think that's true.

[00:23:01] Speaker 03:
The court certainly can imply that.

[00:23:04] Speaker 03:
But it sounds like you're arguing that the court must imply that, at least in the circumstance of this case.

[00:23:09] Speaker 03:
Is that true?

[00:23:10] Speaker 04:
No, I'm not saying the court must, but in circumstances like this, when the 2014 lawsuit brings up no new issues and its alleged purpose to rescind certain documents is not a claim,

[00:23:25] Speaker 04:
I don't know how else you can interpret what Mr. Charles's willful intent was in filing that lawsuit.

[00:23:35] Speaker 04:
He talked about reason to file, and the court, Judge Spraker, at length discussed the reason to file the 2011 lawsuit, never discussed

[00:23:51] Speaker 04:
in any significant way, the reason to file the 2014 lawsuit.

[00:23:57] Speaker 04:
And yes, we don't have advice of counsel as an issue for the 2011 lawsuit, but already knowing what Mr. Charles knew in 2011, he goes down the exact same path.

[00:24:10] Speaker 04:
And if that's not willfulness, I honestly don't know what is.

[00:24:15] Speaker 04:
Thank you, Your Honor.

[00:24:16] Speaker 03:
Thank you.

[00:24:16] Speaker 04:
Thank you.

[00:24:17] Speaker 03:
If the matter is submitted, you'll get a written decision in due course.

[00:24:21] Speaker 03:
Thank you very much.

[00:24:22] Speaker 04:
Thank you.

[00:24:22] Speaker 04:
Thank you, Your Honor.

[00:24:23] Speaker 04:
Thank you.