IN RE RODRIGUEZ

GEORGE NIELSEN, Chief Judge, Bankruptcy

The adversary complaint of Dr. Sabrina Carter, M.D. ("Plaintiff"), seeking a declaration of non dischargeability of her bankruptcy claim of $250,000 for false and defamatory communication was tried to this court as a bench trial on November 8, 2004 and January 14, 2005. Post trial briefing was completed on February 11, 2005. An interim order was entered on March 29, 2005 announcing the court's decision.

The court has considered sworn witness testimony, admitted exhibits, adversary pleadings and the facts and circumstances of this case. The following findings and conclusions are now entered:

FINDINGS OF FACT

1. Ms. Margaret Rodriguez ("Debtor" or "Defendant") was hired as a patient coordinator and laser technician by Advanced Laser Clinics of Scottsdale, L.L.C. ("Advanced") in its Scottsdale, Arizona office on December 4, 2000. Ms. Christine Egner also worked at Advanced as a technician. Across the hallway was an anti-aging clinic operated by James Maxfield. Plaintiff was the medical director for Maxfield's clinic as well as his girl friend. In October or November of 2001 discussions began concerning debtor and Ms. Egner transferring their employment to a laser skin care business Maxfield was going to open.

Debtor has provided sworn testimony in state court that Maxfield and plaintiff requested that debtor and Ms. Egner obtain Advanced's patient charts for use in his new clinic. Her sworn testimony is that at Maxfield's direction, while still employed at Advanced, she and Christine typed and mailed letters to Advanced's clients, soliciting their business at the new clinic, signing the letters "Margaret Christine." The competing clinic, Ultimate Skin Laser Institute ("Ultimate"), was scheduled to open in Scottsdale on March 4, 2002. Debtor's sworn testimony is that with plaintiff's knowledge and consent, she and Christine Egner copied Advanced's appointment book before terminating their employment on March 5, 2002. Subsequently, allegedly with knowledge and consent of plaintiff and Maxfield, they called Advanced's clients and solicited their business. Additionally, debtor gave sworn testimony that Ms. Egner informed her that she and Maxfield took medical and office supplies, sufficient to open Ultimate, from Advanced over a weekend. Finally debtor's sworn testimony is that shortly before she left Advanced, allegedly at the request of Maxfield and plaintiff, debtor processed unauthorized refunds from Advanced's customers for their use in treatments at Ultimate. Debtor then left her employment at Advanced, giving the company one day's notice.

Plaintiff, Maxfield and Ms. Egner deny these allegations. Admitted exhibit ("Ex.") 1, testimony ("Test.") of Margaret Rodriguez, Dr. Sabrina Carter, James Maxfield and Christine Egner.

2. Besides her work at Ultimate, debtor was personally employed by plaintiff to transport her daughters to ballet class twice a week and for other child care. Relations at the new business quickly deteriorated, either between debtor and plaintiff (test. of Dr. Carter) or between debtor and Maxfield. Test. of Ms. Rodriguez. Following a confrontation with Maxfield, debtor left her employment at Ultimate in early April of 2002. She called for her last paycheck on a Friday. Dr. Carter spoke with debtor by telephone at 5:00 P.M., thereby learning that debtor was terminating her employment. Plaintiff and Maxfield were in a vehicle leaving the city. Debtor was told to return on Monday. She did so, but felt her last paycheck was six hundred dollars short, lacking compensation for her child care work for plaintiff. Debtor left a telephone message for Maxfield that she ". . . didn't want to get ugly, but things would get ugly . . ." if she did not get paid. This they certainly did, for everyone involved. Rodriguez and Carter test.

Debtor's bankruptcy testimony is that she only meant she would complain to labor regulators. Mr. Maxfield's and plaintiff's recollection is that debtor also said in a recorded message that "He would be more sorry than she was" if she was not paid. Debtor's testimony is she meant he would be sorry that she would never again work for him. (It's not clear Mr. Maxfield is sorry about that.)

3. After leaving Ultimate, Ms. Rodriguez appeared at the premises of Advanced. Whether it was her former workplace or a corporate headquarters is not established. Ms Rodriguez told Advanced's Mark Skarloff in person and Patrick Par by phone "everything" contained in an affidavit she subsequently signed on April 9, 2002 at the office of Advanced attorney Douglas Tobler. She was extremely angry at the time she spoke to Advanced's personnel. She states she approached Advanced because they had withheld her final pay check. Test. Id. She states she was threatened with prosecution for her admitted conduct in copying Advanced's files and customer lists and soliciting Advanced's clients. The affidavit was drafted by attorney Tobler. Neither Skarloff, Par nor Tobler was called by plaintiff as witnesses. The court has no direct evidence concerning the precise conversations debtor had with these individuals. While she was not a named party to the litigation, there was no contrary evidence presented that debtor was not threatened with litigation if she was not cooperative with Advanced. Rodriguez test., Ex. 1.

From materials attached to defendant's pro se answer, it appears Par is the Chief Operating Officer of Advanced Laser Clinics, Inc., managing member of Advanced Laser Clinics of Scottsdale, L.L.C. See Maricopa County Superior Court Complaint CV 2002-006723 at verification, adversary docket ("Dkt.") item 3 at exhibit. The court will judicially notice these documents in its own files. Plaintiff never established Mr. Skarloff's identity or relationship with Advanced.

4. On April 17, 2002, Advanced, through attorney Tobler, filed a verified complaint and application for injunctive relief against plaintiff, Maxfield, Ultimate and Ms. Egner, alleging breach of fiduciary duty, breach of contract, misappropriation of trade secrets, conversion, unfair competition and intentional interference with contractual relations. A temporary restraining order was issued on an unknown date, restraining defendants from calling or contacting Advanced's clients or utilizing Advanced's client files or client appointment book. The Court declined however, to restrain Ultimate's competition with Advanced in laser hair removal or skin abrasion services. Plaintiff has not provided a complete record of this litigation. At an April 29, 2002 Superior Court evidentiary hearing, Ms. Rodriguez was called to testify on behalf of Advanced. Dr. Carter, Maxfield and others testified on behalf of themselves and the other defendants.

Following an April 30, 2002 continued hearing, Superior Court Judge Colleen McNally issued a May 6, 2002-preliminary injunction that continued to restrain defendants from contacting plaintiff's clients or using its files or client appointment book, without prohibiting defendants from competing directly with Advanced. Although defendants raised issues to impeach Ms. Rodriguez's credibility, that court found ". . . her version of the events to be much more plausible and believable than that testified to by defendants".

The Superior Court docket reflects a May 23, 2003 notice of settlement and stipulated dismissal of the case on September 16, 2003. Dr. Carter complains debtor instigated the litigation by furnishing her April affidavit to Advanced and provided perjured, slanderous testimony to Superior Court. However, instead of further litigating debtor's allegations in that venue, Dr. Carter, represented by counsel, settled the entire state court litigation, paying Advanced $125,000 to $150,000 of her own funds. Dr. Carter did so, although she was a part time medical consultant and not the owner of Ultimate. Her testimony is that she did so because (1) she felt the Superior Court would believe debtor instead of her and the other defendants, (2) the state court had enjoined Ultimate from operating its business and (3) she was concerned about her professional reputation. Although Ultimate is Mr. Maxfield's company, Dr. Carter personally signed medical equipment leases as a favor to Maxfield. It is her testimony that Ultimate had no cash flow and she had to settle "with a gun to her head." Aspects of plaintiff's testimony are hard for this fact finder to credit. The state court's May 6, 2002 ruling, rendered a year prior to the notice of settlement, indicates the state court had already determined debtor to be more credible than Dr. Carter. The same order made clear the court refused to enjoin Ultimate's competition with Advanced. The only proscription was that Ultimate could not serve Advanced's customers or use Advanced's files and customer lists. Dkt. 3 at answer exhibits, minute entry for April 29, 2002 and ruling of May 6, 2002; Ex. 1, Ex. 3, Test. of Dr. Carter id.

5. Plaintiff Carter complains debtor's April affidavit and debtor's testimony again appeared in litigation. Plaintiff's divorce had been pending since January of 1997. A decree was not entered until September 16, 2004. Plaintiff blames a child custody dispute and repeated continuances granted her former husband for much of the delay. Debtor's April affidavit was filed in the divorce case. Debtor testified in February of 2003 before a special master, as part of an effort by the former husband to prove plaintiff was an unfit mother. Plaintiff characterizes debtor's testimony and affidavit as outrageous lies. Although plaintiff's divorce counsel did not ask that the transcript be sealed, no further evidence of this testimony or the result of the litigation was introduced by plaintiff. Accordingly the fact finder has no information on precisely what debtor said or whether her testimony was found credible by that court. Test. Id.

6. Finally, plaintiff complains that debtor made slanderous statements to private investigator Guy White. Debtor advises she was telephoned by White, who stated he wanted to discuss what she had personally observed concerning plaintiff's children, instances of abuse of plaintiff by Maxfield and Maxfield's temper. Debtor's testimony is that she believed she was helping the children by communicating her belief that plaintiff was an abused woman. She was unaware White recorded some of their four or five telephone conversations. She subsequently learned White was not an impartial investigator, trying to protect the children, but instead was employed by plaintiff's former husband in divorce litigation. Her belief that plaintiff was an abuse victim was based on personal observations of Maxfield raging and swearing. She never saw him strike anyone, however. Debtor also assumed abuse from plaintiff's bandaged nose. She denies knowing plaintiff had an elective rhinoplasty. She claims she was told by plaintiff on a Utah trip of her domestic abuse. Plaintiff allegedly did not answer when Ms. Rodriguez directly inquired if Maxfield was her abuser.

Her unverified adversary complaint identified a single instance of slanderous statements to White on June 12, 2002. Complaint ¶ 4(c) at p. 2, dkt. 1. No trial evidence of dates or specifics of the statements was introduced into evidence.

Debtor also informed White that she repeatedly observed plaintiff drinking to excess and acting morose at social situations. This would include being a "sloppy drunk" at a party held for Mr. Maxfield. Debtor concedes she also drank too much on this occasion and had to be retrieved by her boyfriend. White was not called as a witness. It is unclear precisely which statements given to White were also presented to the divorce court through either White, a recording or debtor's own testimony. Rodriguez test.

7. Plaintiff denies being abused, drinking to excess or acting improperly at a social celebration of Maxfield's birthday at the Marco Polo restaurant on an unspecified date. She is confident that debtor was aware of her elective surgery. James Maxfield, who was served with a subpoena in plaintiff's divorce by White, denies that plaintiff acted strangely at his party or that she has a drinking problem. Steven Lee Gage, a social friend of plaintiff and Maxfield, testified he didn't observe plaintiff crying or drunk at the party. As a former police officer, he is not aware that plaintiff is abused or has a drinking problem. Robert Mekoski, a social friend of plaintiff and Maxfield, attended the party and saw no evidence of drunken or "crazy" behavior or abuse. Christine Egner, a three-year employee with Ultimate, testified she was a named defendant in the Advanced litigation, denied participating in efforts to steal Advanced property, files or customer lists. While clients of Advanced became Ultimate clients, she did not sign a non compete clause for Advanced. She denies observing "crazy" or drunken behavior by plaintiff. Michael D. DeMaria, a close friend of plaintiff and Maxfield, saw no questionable party behavior. Test. of Carter, Maxfield, Gage, Mekoski, Egner and DeMaria.

8. Debtor filed a voluntary Chapter 7 bankruptcy case in the Phoenix division of the District of Arizona on February 2, 2004. She is a single mother, living paycheck to paycheck. This court finds her to be an excitable witness, whose credibility is occasionally suspect, who concedes she has difficulty with dates. She denies any motive to injure plaintiff. Her asserted reasons for frequent appearances in litigation involving plaintiff is her desire to be paid, threats of prosecution if she failed to cooperate with Advanced and concern for plaintiff's children. Plaintiff can offer no better motive for debtor's alleged lies or malice toward her than to speculate debtor simply became unhappy with her situation at Ultimate or had unrequited feelings for Maxfield.

Her adversary complaint stated the reasons for defendant's alleged campaign of fraud and deceit were unknown to plaintiff. Complaint id. ¶ 4(a) at p. 2.

Debtor's statements to Advanced, regarding copying and theft of Advanced's property are not just prejudicial to plaintiff, but include admissions of culpable conduct on her own part. Her statements were previously found credible by the Superior Court, who entered a temporary restraining order ". . . primarily on the strength of the affidavit of Margaret Rodriguez . . ." and after an evidentiary hearing found ". . . her version of events to be much more plausible and believable than that testified to by Defendants." Test. of Rodriguez and Carter, Preliminary injunction ruling of May 6, 2002, id.

9. On May 11 of 2004, plaintiff filed a pro se bankruptcy adversary complaint alleging debtor commenced a campaign of fraud and deceit on April 2, 2002 to discredit, defame and humiliate plaintiff, including statements that Dr. Carter was pursuing criminal activity and conduct suborning theft. Dr. Carter also alleged a June 12, 2002-statement to Guy White that ". . . Dr. Carter was mentally unstable and a drunk." The complaint sought $250,000 in non dischargeable damages as a willful and malicious injury. See generally, Complaint at pgs. 2-4, id. Although plaintiff subsequently retained counsel, the complaint was not amended.

Dr. Sabrina Carter testified she is a licensed physician with seven years of professional experience. Her medical field is child neurology. Although unemployed at the time of her testimony, she reports prior employment as an independent contractor at a state child rehabilitative facility, as well as part time work at the laser skin care clinic. She appears to be a calm, thoughtful, responsible professional. It is difficult to picture her publicly behaving in an intoxicated, emotional, erratic or thieving manner as plaintiff alleges. However, her testimony justifying her six-figure settlement of a case allegedly based on complete fabrication, following an evidentiary hearing where her counsel presented her side of the story to a judicial officer is difficult to accept. Apparently Ultimate's customer list was sufficiently similar to Advanced's to support debtor's allegations, in the eyes of the superior court. Further, attached to debtor's affidavit is a February 20, 2002 written solicitation to (presumably) Advanced's clients announcing ". . . Margaret Christine(`s) . . ." availability for services at Ultimate, consistent with debtor's testimony.

Contrary to plaintiff's testimony, Ultimate was not enjoined from operating or soliciting business. Clearly the state court merely enjoined the use of Advanced's files and appointment book and prohibited solicitation of Advanced's customers. She insists there was no such wrongful conduct. It is difficult to appreciate why she had to pay such a large settlement ". . . to allow the business (which she did not own) to reopen." Test., Preliminary injunction ruling id., Ex. 1 at attachment.

10. During trial of this adversary, it finally occurred to the undersigned that plaintiff's bankruptcy litigation was actually a remarkable collateral attack on one, if not two, state court proceedings. Accordingly, the court sua sponte required plaintiff to show cause why her complaint should not be dismissed due to immunity and collateral estoppel principles on November 8, 2004. Minutes of November 8, 2004, dkt. 9. Plaintiff responded in writing and at a hearing that she was seeking redress for statements voluntarily made to Advanced's agents Par and Skarloff ". . . before any litigation was filed or even contemplated." Response of December 8, 2004 at pgs. 1-2 and 4, dkt. 10; Minutes of December 10, 2004, dkt. 11. Plaintiff also argued that state law did not grant a privilege to private investigator White. Response id. at pgs. 3-4. Given the privileges possibly applicable, this court required that plaintiff's proof of the alleged defamatory statements be very specific as to what was said and the context in which the statements were made, given debtor's imprecise recollection of dates and her sworn testimony that the statements were provided under threat of litigation from Advanced. The court advised (and reiterated) that in its judgment the testimony of Par, Skarloff and White would be very important to the court's ability to find specific statements were malicious and made independently of the litigation process. Plaintiff's counsel responded that all these individuals were on plaintiff's witness list, consideration was being given to calling one or several and at least one was a Maricopa county resident. Counsel was given 30 days to decide whether to call these witnesses. December 10 audio transcript.

This court is under no obligation to serve as the pro se defendant's advocate or treat her more favorably than the represented plaintiff. In re Stober, 193 B.R. 5, 9 (Bankr.D. Az. 1996) , citing Jacobson v. Filler, 790 F.2d 1362 (9^th Cir. 1986). Defendant's answer and testimony inartfully raised the issue of immunity by reference to her participation in prior litigation. See, e.g. dkt. 3 and exhibits. A pro se pleading that raises an immunity defense goes to the heart of plaintiff's cause of action for a wrongful act done without just cause or excuse. Conclusion of law 5, infra. Plaintiff's burden of proof required her to deal with the answer's allegations, including immunity. The court acted to frame this important, but imprecisely raised issue.

At the continued trial plaintiff called neither Par, Skarloff nor White. Accordingly, the fact finder has little ability to determine the circumstances, instances and contents of debtor's statements and no evidence impeaching her claim that her statements were not malicious, made within the context of threatened litigation (which commenced shortly thereafter) or to a private investigator under the belief she was assisting plaintiff's children. Minutes of January 14, 2005, dkt. 12.

11. To the extent any of the following conclusions of law should be considered findings of fact, they are hereby incorporated by reference.

CONCLUSIONS OF LAW

1. To the extent any of the above findings of fact should be considered conclusions of law, they are hereby incorporated by reference.

2. Jurisdiction of defendant's bankruptcy case is vested in the United States District Court for the District of Arizona. 28 U.S.C. § 1334(a)(1994). That court has referred all cases under Title 11 of the United States Code and all adversary proceedings and contested matters arising under Title 11 or related to a bankruptcy case to the United States Bankruptcy Court for the District of Arizona. 28 U.S.C. § 157(a)(1994), Amended District Court General Order 01-15. The adversary proceeding having been appropriately referred, this court has core bankruptcy jurisdiction to enter a final order determining the dischargeability of plaintiff's claim. 28 U.S.C. § 157(b)(2)(I). Neither of the litigants has argued to the contrary.

3. This court's conclusions of law are reviewed de novo and its factual findings are reviewed for clear error. Rule 8013, F.R.Br.P., Hanf v. Summers (In re Summers), 332 F. 3d 1240, 1242 (9^th Cir. 2003). The appellate court accepts the bankruptcy court's findings, unless upon review, it is left with the definite and firm conviction that a mistake has been committed. Ganis Credit Corp. v. Anderson (In re Jan Weilert RV, Inc.), 315 F. 3d 1192, 1196 (9^th Cir.) amended by 326 F. 3d 1028 (9^th Cir. 2003).

4. The standard of proof required of a plaintiff in dischargeability litigation is the preponderance of the evidence. This standard applies to all dischargeability proceedings without exceptions. Branam v. Crowder (In re Branam), 226 B.R. 45, 52 (Bankr. 9^th Cir. 1998) aff'd 205 F.3d 1350 (9^th Cir. 1999). Plaintiff's complaint does not specify the precise subsection of 11 U.S.C. § 523 (a) she invokes. However, the complaint and plaintiff's closing brief both argue that debtor intended a willful and malicious injury. Dkt. 1 at pgs. 2-3, dkt. 16 at pgs. 6-7.

5. A Chapter 7 bankruptcy will not discharge an individual`s liability for willful and malicious injury to another or another's property. 11 U.S.C. § 523(a)(6) (2002). Properly proven, a slanderous statement can constitute a non dischargeable § 523(a)(6) claim. Jett v. Sicroff (In re Sicroff), ___ F.3d ___ 2005 WL 665251 (9^th Cir. 2005). The word "willful" in the statute modifies the word "injury," indicating that non dischargeability requires a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury. Debts arising from reckless or negligent injury do not fall within § 523(a)(6). The statute triggers the category of intentional torts, as distinguished from negligent or reckless torts. Intentional torts generally require that the actor intend the consequences of an act, not merely the act itself. Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 977 (1998) (Medical malpractice judgment of $355,000 for physician's substandard medical care, resulting in amputation of plaintiff's leg, held dischargeable).

It must be shown not only that debtor acted willfully and maliciously, but also that debtor inflicted the injury willfully and maliciously, rather than recklessly or negligently. The willful injury requirement is met when plaintiff demonstrates either that debtor had a subjective motive to inflict the injury or debtor believed injury was substantially certain to occur as a result of her conduct. Petralia v. Jercich (In re Jercich), 238 F. 3d 1202, 1207-08 (9th Cir. 2001).

The "willful" and "malicious" prongs of the statutory requirements are not to be conflated. The bankruptcy court is required to make findings on each. 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. Carrillo v. Su (In re Su), 290 F. 3d 1140, 1146-47 (9^th Cir. 2002).

Here, plaintiff is only able to speculate what debtor's motives would be for the alleged campaign of lies. Finding of fact 8, id. No evidence was presented establishing that debtor believed her statements were false, much less that she believed they would injure plaintiff. Debtor insists she was truthful. At least one judicial officer has found her testimony to be credible. Id. Plaintiff's proof is insufficient to establish a wrongful act, much less an intentional wrongful act by the requisite standard. Maliciousness has not been established.

As to willfulness, evidence of motive and of a defendant's subjective intent to injure is always a difficult proof. Nonetheless, a logical way to begin would be to establish the surrounding circumstances of the alleged statements, including debtor's demeanor and actions. A simple way to establish this would be to call the three known witnesses to the statements, as well as the attorney or paralegal who prepared the affidavit plaintiff considers false and slanderous. This plaintiff did not do. She has failed to establish, by a preponderance of the evidence, liability under § 523(a)(6).

In addition to what a debtor may admit to knowing, the bankruptcy court may consider circumstantial evidence that tends to establish what the debtor must actually have known when taking the injury-producing action. In re Sicroff, id. at p. 4.

6. Conclusion of law 5, id., eliminates plaintiff's complaint and cause of action. There are additional deficiencies in plaintiff's factual and legal case, however. Witnesses in judicial proceedings have absolute immunity from civil suits arising from their testimony during depositions and trials. Darragh v. Superior Court County of Maricopa, 900 P.2d 1215, 1217-18 (Ariz.App. 1995). For purposes of applying the judicial witness immunity rule, a judicial proceeding includes the period before an action is filed, if during that period, litigation is seriously contemplated. Darragh, id. at 1218. (Applying absolute immunity to contents of an initial and an updated appraisal, both prepared prior to the filing of an eminent domain proceeding). The defamatory content of the communication need not be strictly relevant to the judicial proceeding, but need only have some reference to the subject matter of the proposed litigation. Green Acres Trust v. London, 141 Ariz. 609, 613, 688 P.2d 617, 621 (Ariz. 1984). There must be some connection between the recipient of the communication and the proposed litigation. Thus, a private meeting in a law office between lawyers and an invited reporter, resulting in a published story defaming plaintiff is not privileged:

Since no Advanced officer was called as a witness, it is unknown if debtor's visit was the initiating factor for the litigation (although it appears she was the star of the show) or if Advanced was already considering litigation. Advanced would independently know its technicians left on short notice, that some clients were not returning and if debtor's testimony is accurate, that office and medical supplies were missing.

The reporter played no role in the actual litigation other than that of a concerned observer. Since the reporter lacked a sufficient connection to the proposed proceedings, public policy would be ill served if we immunized the communications made to the reporter by the lawyer defendants. The press conference simply did not enhance the judicial function and no privileged occasion arose. Accordingly, the lawyer Defendants were not absolutely privileged to publish the oral and written communications to the newspaper reporter.

Green Acres Trust, id. at 623.

Shortly before litigation was filed against plaintiff, debtor had a conversation with two of Advanced's officers, one of whom signed a verified complaint against plaintiff eight days later. Debtor then appeared at the office of Advanced's attorneys and signed an affidavit subsequently used in the litigation. Did the conversation(s) and the recipients have reference or connection to the proposed litigation? Evidently. Is there a possibility, however slight, that the conversation and its recipients had no connection to the proposed litigation, yet plaintiff was nonetheless slandered maliciously and willfully? We'll never know. Plaintiff was clearly informed the court was concerned her litigation implicated debtor's absolute immunity as a judicial witness. Plaintiff was warned at the December 10 hearing to produce definitive evidence of the contents and circumstances of debtor's publication, including the recipients of the statements. She did not do so. Every indication to this fact finder is that the statements were given in connection with an existing or seriously considered litigation and made to recipients connected to the legal action.

Subsequently the affidavit appeared in plaintiff's divorce litigation, probably to her detriment. Debtor was again a witness. It's unlikely she was a friendly witness. We do not know the particulars. On unknown dates, presumably before the domestic relations trial, debtor had conversations with a private investigator working for plaintiff's adversary. Debtor's testimony is that at first she believed White was simply a friend, concerned as debtor says she was, with the children's welfare. Plaintiff presented no contrary evidence. Apparently at some point during these telephone conversations, Ms. Rodriguez learned White's actual role as the former husband's agent. She apparently kept talking. We don't know what was said. Lacking definitive evidence concerning the substance, sequence and circumstances of these conversations, the court cannot make a definitive finding that the statements were completely independent of the judicial proceeding and do not implicate the pro se defendant's absolute immunity. Again, the fact finder sees every indication of a connection with a pending case and a recipient connected to that case.

Possibly part of debtor's domestic relations testimony was that plaintiff behaved strangely at Maxfield's surprise party and was battered or abused by Maxfield. It's unclear that claiming another is a victim of domestic abuse is slanderous. Regardless, plaintiff called five personal friends or employees to rebut this contention, as well as the party behavior allegations in bankruptcy court.

7. In summary, the court concludes plaintiff failed to establish her cause of action for a willful and malicious injury by a preponderance of the evidence. It is difficult to believe that plaintiff, a well educated medical professional, could have engaged in all the conduct ascribed to her by debtor. It is difficult to believe debtor, a single mother of modest means, had the motive or inclination to engage in the extended campaign of perjury and slander plaintiff contends. Doubtless counsel tried the case professionally, given the available resources of his client. We should all move on.

ORDER

Plaintiff's complaint and cause of action are dismissed with prejudice. Each party will bear their own costs and fees. A judgment will subsequently issue and the clerk will then close this case.