HAVE you ever been bitten by a dog? I have. I was bitten by a German shepherd on my right arm 30 years ago while I was jogging. It would not let go of my arm until the owner pulled the dog away. By that time, there were 2 holes in my arm. So now I carry an aluminum bat with me when I jog. Plaintiff purchased a judgment against the chapter 7 debtor. The judgment was based on a dog bite injury and entered under the state law’s dog bite statute. Under that state’s dog bite statute, plaintiffs need only to establish that they were bitten by the defendant’s dog and were not trespassing or teasing the dog at the time of the bite. Although the state court complaint alleged ‘severe personal injuries and losses’ caused by the debtor’s pit bull, the complaint did not allege nor did the judgment find that the injury was the result of debtor’s willful and malicious action. In other words, it was probably through the negligence of debtor that his pit bull bit plaintiff. Perhaps plaintiff was a guest in debtor’s house which had a pit bull in the kitchen. Debtor placed a low wooden fence to keep the pit bull inside the kitchen. When plaintiff passed by the kitchen, the pit bull jumped over the fence and bit plaintiff’s leg causing severe personal injuries resulting in medical expenses of $25,000. Plaintiff argued the mere violation of the dog bite statute was tantamount to establishing that the judgment was excepted from discharge by Section 523(a)(6).
Section 523(a)(6) provides that a bankruptcy discharge under 727, 1141, 1228 (a) and (b) or 1328 (b) does not discharge an individual debtor from any debt arising from ‘willful and malicious injury by the debtor to another entity or to the property of another entity.’ The plaintiff conceded that the sole issue raised in the state court action was whether the debtor was liable under the dog bite statute, which makes no reference to willfulness or maliciousness as elements to be proven in establishing strict liability. The dog bite statute only required 2 elements, that plaintiff was bitten by defendant’s dog, and that plaintiff was not trespassing or teasing the dog at the time of the bite. But Section 523(a)(6) requires "willful and malicious injury" caused by the debtor. In the example above, plaintiff’s dog jumped over the low wooden fence that was designed to keep the dog inside the kitchen. That is clearly negligence on the part of debtor. It is not willful or malicious.
However, if debtor intentionally removed the wooden barrier from the kitchen, thereby allowing the pit bull to have free access to plaintiff because debtor hated plaintiff, that would have been willful and malicious on the part of debtor, satisfying the only element required by Section 523(a)(6). Thus, the court said that the argument of plaintiff was futile. Because neither willfulness nor maliciousness factored into the judgment, it could not establish the non-dischargeability of the debt under Section 523(a)(6). Hence, the court ruled in Re Persechino that the debt arising from the dog bite claim is discharged.
Similarly, I went to trial on behalf of client recently where plaintiff objected to discharge of a promissory note secured by restaurant equipment. Plaintiff’s argument was that client owed her nearly $200,000 for breaching the purchase agreement and that client should be held liable under Section 523(a)(6) for willful and malicious injury based on the strict liability tort of conversion because client intentionally transferred restaurant equipment that were subject of the collateral agreement. At trial, Client admitted that he transferred restaurant equipment for the purpose of paying down debts owed by the restaurant, that he did not know that the security agreement prohibited him from transferring the restaurant equipment used to secure the promissory note, and that he could not pay the promissory note because the restaurant that plaintiff sold to him never turned a profit for the 18 months that he operated the restaurant. Judgment is pending.
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Lawrence Bautista Yang specializes in bankruptcy, business, real estate and civil litigation and has successfully represented more than five thousand clients in California. Please call Angie, Barbara or Jess at (626) 284-1142 for an appointment at 1000 S. Fremont Ave., Bldg. A-1 Suite 1125 Unit 58, Alhambra, CA 91803.
( Published June 19, 2010 in Asian Journal Los Angeles p. C5 )
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