Minutes
JOHN M PACHECO, JUDGE
CLERK: SUZANNE M SERRANO
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COURT RULES AS FOLLOWS ON SUBMITTED MATTER:
GARY WUCHENICH, GARY WUCHENICH REVOCABLE TRUST’S MOTION FOR JUDICIAL NOTICE IS GRANTED.
GARY WUCHENICH, GARY WUCHENICH REVOCABLE TRUST’S MOTION FOR SUMMARY JUDGMENT IS GRANTED.
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DISCUSSION: IN THE PRESENT CASE, PLAINTIFF HAS FILED A PETITION IN FEDERAL BANKRUPTCY COURT
SEEKING TO DISCHARGE DEBTS AND LISTING CERTAIN ASSETS. THAT COURT SUBSEQUENTLY DISCHARGED
THOSE DEBTS; HOWEVER, CERTAIN PARTIES TO THE CIVIL ADA ACTIONS FILED MOTIONS TO DISMISS BASED
UPON JUDICIAL ESTOPPEL. PLAINTIFF THEN PROCEEDED TO REOPEN HIS BANKRUPTCY CASE AND IDENTIFY “ALL”
MATTERS THEN PENDING. WHILE PLAINTIFF DID IDENTITY SOME, HE DID NOT DISCLOSE THE INSTANT
ACTION.
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JUDICIAL ESTOPPEL WOULD NOT APPLY IN THE PRESENT CASE IF PLAINTIFFS FAILURE TO DISCLOSE HIS
CLAIM AGAINST DEFENDANT IN HIS BANKRUPTCY PETITION WAS INADVERTENT. UNDER CALIFORNIA LAW,
THE FIRST POSITION, I.E. NO POTENTIAL CLAIM EXISTED AGAINST DEFENDANT PRIOR TO THE FILING OF
THE AMENDED BANKRUPTCY PETITION, MUST NOT BEEN DUE TO IGNORANCE, FRAUD OR MISTAKE. (SEE STATE
WATER, SUPRA AT 827) INADVERTENT UNDER FEDERAL LAW MEANS GENERALLY THAT THE DEBTOR EITHER
LACKED KNOWLEDGE OF THE UNDISCLOSED CLAIM OR HAD NO MOTIVE FOR ITS CONCEALMENT. (SEE IN RE
SUPERIOR CREWBOATS, SUPRA AT 335)
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AS SET FORTH IN THE UNDISPUTED FACTS (FACTS 6, 7, 9, 11-15), IT IS CLEARLY SHOWN THAT PLAINTIFF
KNEW THAT HE HAD A POTENTIAL ADA CLAIM AGAINST DEFENDANT PRIOR TO FILING HIS AMENDED PETITION.
AS SUCH, THERE IS NO INADVERTENCE SHOWN.
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UNDER THE CIRCUMSTANCES WHERE A DEBTOR HAS KNOWLEDGE OF CLAIM OR CAUSE OF ACTION, HE MUST
DISCLOSE SUCH WITHIN HIS PETITION PRIOR TO ITS DISCHARGE. IF NOT, AND THE BANKRUPTCY ESTATE IS
DISCHARGED, THEN THE DEBTOR MAY BE JUDICIALLY ESTOPPED FROM PURSUING HIS CLAIMS IN A
SUBSEQUENT PROCEEDING. (HAMILTON, SUPRA 784) THIS ESTOPPEL PROVISION APPLIES EVEN IF THE
DISCHARGE IS LATER VACATED. (ID.)
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FEDERAL COURTS HAVE ALSO NOTED THAT THE FAILURE TO DISCLOSE INITIALLY OR BEFORE DISCHARGE A
POTENTIAL CLAIM MAY GIVE RISE TO JUDICIAL ESTOPPEL EVEN IF THE DEBTOR ATTEMPTS OR DOES
RE-OPEN THE BANKRUPTCY PETITION AFTER DISCHARGE TO AMEND THE PETITION TO STATE THE PRIOR
UNDISCLOSED CONTINGENT OR UNLIQUIDATED CLAIM. (BURNES V. PEMCO AEROPLEX, INC. (11TH CIR. 2002)
291 F. 3D 1282 AT 1288 [THE COURT NOTED ALLOWING SUCH WOULD “ONLY DIMINISH THE NECESSARY
INCENTIVE TO PROVIDE THE BANKRUPTCY COURT WITH A TRUTHFUL DISCLOSURE OF THE DEBTORS ASSETS”];
EASTMAN V. UNION PAC. R.R. (10TH CIR. 2007) 493 F. 3D 1151 AT 1160)
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IN CONSIDERING THE FACTORS REQUIRED FOR IMPOSITION OF JUDICIAL ESTOPPEL: 1) PLAINTIFF
HAS TAKEN TWO POSITIONS, ONE IN BANKRUPTCY COURT AND ONE IN STATE CIVIL COURT; 2) THE POSITIONS
WERE TAKEN IN JUDICIAL OR QUASI-JUDICIAL ADMINISTRATIVE PROCEEDINGS; 3) THE PARTY WAS
SUCCESSFUL IN ASSERTING THE FIRST POSITION (I.E., THE BANKRUPTCY COURT ADOPTED DEFENDANTS
POSITION AND ACCEPTED IT AS TRUE); 4) THE TWO POSITIONS ARE TOTALLY INCONSISTENT, IN
BANKRUPTCY COURT – NO CLAIM EXISTED AND IN STATE CIVIL COURT – A CLAIM EXISTS; AND (5) THE FIRST
POSITION WAS NOT TAKEN AS A RESULT OF IGNORANCE, FRAUD, OR MISTAKE.” (SEE MW ERECTORS, INC., SUPRA
AT 422)
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DEFENDANT IN HIS MOTION HAS CITED THE REQUIREMENTS SET FORTH IN THE U.S. SUPREME COURT
CASE OF NEW HAMPSHIRE V. MAINE, 532 U.S. 742, 750-751 (U.S. 2001), WHEREIN THE SUPREME COURT
SET FORTH ITS THREE FACTORS TO BE CONSIDERED FOR THE IMPOSITION OF JUDICIAL ESTOPPEL. THOSE
FACTORS ARE: 1) “A PARTYS LATER POSITION MUST BE “CLEARLY INCONSISTENT” WITH ITS EARLIER
POSITION”; 2) “COURTS REGULARLY INQUIRE WHETHER THE PARTY HAS SUCCEEDED IN PERSUADING A COURT TO
ACCEPT THAT PARTYS EARLIER POSITION, SO THAT JUDICIAL ACCEPTANCE OF AN INCONSISTENT POSITION
IN A LATER PROCEEDING WOULD CREATE “THE PERCEPTION THAT EITHER THE FIRST OR THE SECOND
COURT WAS MISLED,””; AND 3) “WHETHER THE PARTY SEEKING TO ASSERT AN INCONSISTENT POSITION WOULD
DERIVE AN UNFAIR ADVANTAGE OR IMPOSE AN UNFAIR DETRIMENT ON THE OPPOSING PARTY IF NOT ESTOPPED”.
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THE SUPREME COURT ALSO NOTED AT 1815, THAT “(I)N ENUMERATING THESE FACTORS, WE DO NOT ESTABLISH
INFLEXIBLE PREREQUISITES OR AN EXHAUSTIVE FORMULA FOR DETERMINING THE APPLICABILITY OF
JUDICIAL ESTOPPEL
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ADDITIONAL CONSIDERATIONS MAY INFORM THE DOCTRINES APPLICATION IN SPECIFIC FACTUAL
CONTEXTS. IN THIS CASE, WE SIMPLY OBSERVE THAT THE FACTORS ABOVE FIRMLY TIP THE BALANCE OF
EQUITIES IN FAVOR OF BARRING NEW HAMPSHIRES PRESENT COMPLAINT”.
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IN REVIEWING THE SUPREME COURTS FACTORS, THE UNDISPUTED FACTS SHOW THAT THERE HAS BEEN AN
INCONSISTENT POSITIONS, THE BANKRUPTCY HAS ACCEPTED PLAINTIFFS AMENDED PLEADING AND
SCHEDULE OF ASSETS, AND FINALLY, IF PLAINTIFF WERE TO BE SUCCESSFUL IN THE PRESENT ACTION HE
WOULD “DERIVE AN UNFAIR ADVANTAGE OR IMPOSE AN UNFAIR DETRIMENT” UPON THE BANKRUPTCY CREDITORS.
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AS SUCH, IT IS CLEAR THAT DEFENDANT HAS SUBMITTED UNDISPUTED MATERIAL FACTS SUFFICIENT TO COMPLY
WITH THE REQUIREMENTS AS SET FORTH IN BOTH THE CALIFORNIA AND FEDERAL DECISIONS FOR IMPOSITION
OF JUDICIAL ESTOPPEL.
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THEREFORE, HAVING REVIEWED DEFENDANTS DOCUMENTARY EVIDENCE SUBMITTED IN SUPPORT OF HIS MOTION, HE
HAS MET HIS BURDEN UNDER CCP ?437C (P) (2) OF SHOWING THAT THERE IS A COMPLETE DEFENSE TO
PLAINTIFFS COMPLAINT. AS SUCH, THE BURDEN THEN SHIFTED TO PLAINTIFF TO PRODUCE ADMISSIBLE
EVIDENCE SHOWING A TRIABLE ISSUE OF MATERIAL FACT EXISTS.
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AS PLAINTIFF HAS FAILED TO SUBMIT ANY ADMISSIBLE EVIDENCE, DEFENDANT IS ENTITLED TO JUDGMENT AS A
MATTER OF LAW. THE DOCTRINE OF JUDICIAL ESTOPPEL WILL APPLY TO THE FACTS OF THIS CASE.
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NOTICE GIVEN BY JUDICIAL ASSISTANT
CORRESPONDENCE COVERSHEET GENERATED TO MAIL MINUTE ORDER TO COUNSEL OF RECORD.
ACTION – COMPLETE
=== MINUTE ORDER END ===
COMPLAINT STAGE AT DISPOSITION: ENTRY OF SUMMARY JUDGMENT BEFORE TRIAL (CIV)
DISPOSITION: ENTRY OF SUMMARY JUDGMENT BEFORE TRIAL (CIV)