538 B.R. 34
Bankr. E.D. Cal.2015Background
- Plaintiff and debtor lived together; plaintiff consented to a private sex video made for personal use.
- After their relationship ended, debtor uploaded the video to a pornography website, labeling it with plaintiff’s maiden and married names and “ex-girlfriend.”
- The video was viewed thousands of times before removal; plaintiff sued in California state court for invasion of privacy (public disclosure of private facts) and intentional infliction of emotional distress (IIED).
- Debtor filed Chapter 13; plaintiff sought nondischargeability of the resulting $25,000 judgment under 11 U.S.C. §1328(a)(4). State court judgment resulted from a California §998 offer of judgment.
- Bankruptcy court considered a Rule 12(b)(6) motion to dismiss the adversary complaint alleging the conduct was “willful or malicious” and caused “personal injury” within §1328(a)(4).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the alleged conduct meets §1328(a)(4)’s "willful" standard | Uploading an identifiable private sex tape was intentional and aimed to cause harm; therefore willful | Conduct was not intended to cause the kind of personal injury required; dismissal warranted | Court: Allegations support a willful injury theory (intent or substantial-certainty of injury) |
| Whether the alleged conduct meets §1328(a)(4)’s "malicious" standard | Labeling as "ex-girlfriend" and publishing private sexual content shows animus and intentional, inexcusable wrongdoing | Publication was not malicious for purposes of §1328(a)(4) | Court: Allegations support factual and legal malice (wrongful, intentional, without justification) |
| Whether "personal injury" in §1328(a)(4) includes nonphysical harms (e.g., emotional distress, privacy invasion) | "Personal injury" is not limited to bodily harm; IIED and public disclosure of private facts are personal injuries | "Personal injury" should be read to require physical harm | Court: "Personal injury" includes nonphysical torts such as IIED and invasion of privacy under §1328(a)(4) |
| Preclusive effect of §998 offer-of-judgment judgment on nondischargeability issues | Plaintiff treats the $25,000 as fixed but must prove elements for nondischargeability; §998 judgment only fixes amount | Debtor argues state judgment precludes relitigation | Court: §998 judgment is a compromise settlement and does not have issue preclusive effect except to fix amount; plaintiff must prove elements at trial |
Key Cases Cited
- Kawaauhau v. Geiger, 523 U.S. 57 (willful means deliberate injury, not mere intentional act)
- Carillo v. Su (In re Su), 290 F.3d 1140 (9th Cir.) (intent may be inferred; legal definition of willful and malicious)
- Petralia v. Jercich (In re Jercich), 238 F.3d 1202 (9th Cir.) (legal sense of malice as proxy for factual malice)
- Jett v. Sicroff (In re Sicroff), 401 F.3d 1101 (9th Cir.) (self-evident wrongful acts support malice inference)
- Grogan v. Garner, 498 U.S. 279 (bankruptcy claim/discharge governed by federal law; claim validity by nonbankruptcy law)
- United States v. Burke, 504 U.S. 229 (construing "personal injury" to include nonphysical harms in federal statute)
- Christensen v. Superior Court, 54 Cal.3d 868 (California standard for IIED: extreme/outrageous conduct causing severe distress)
- Shulman v. Group W Prods., Inc., 18 Cal.4th 200 (California formulation of public disclosure of private facts tort)
- Adams v. Adams (In re Adams), 478 B.R. 476 (Bankr. N.D. Ga.) ("personal injury" in §1328(a)(4) includes nonphysical injuries)