IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA In re JOHN and RENEE LEDUC,                                       No. 1-86-01743      Debtors. _____________________/ MARK WHYBREW,      Plaintiff,    v.                                                                              A.P. No. 1-87-0018 JOHN and RENEE LEDUC,      Defendants. ______________________/ Memorandum of Decision      In December of 1984, defendants John and Rene LeDuc were managers of an apartment house. They were then in their mid-sixties, and Mr. LeDuc was not in good health. Mrs. Le Duc is a small woman.      During the day on December 29, both LeDucs had words with one of the female tenants over a roommate who had moved in without permission. The tenant's boyfriend, plaintiff Mark Wybrew, was present both times (but the dispute was not about him) and exchanged words with the LeDucs. Whybrew was then 29 years old, five feet nine, and 175 pounds. He was physically normal except he had no sight in one eye. He had studied martial arts.      Around 11:30 P.M. on the 29th, Mrs. LeDuc received a phone call from a tenant complaining about noise. Clad in her night clothes, she went out to investigate and found Whybrew, who had just had an argument with his girlfriend. Whybrew claims Mrs. LeDuc lunged at him and he pushed her back; Mrs. LeDuc denies this and says Whybrew punched her in the face.      Mrs. LeDuc went back to her apartment, told her husband what had happened, and asked him to call the police. Mrs. LeDuc then went back out to open the security gate for the police, carrying a baseball bat. Mr. LeDuc was told by the police dispatcher that the police had already been called and would arrive shortly. He then followed his wife outside. What happened next is the subject of more dispute.      Whybrew claims that he was confronted by Mrs. LeDuc wielding the bat, tried to get around her, and Mr. LeDuc came up from behind and hit him over the head with a metal pipe. Then both LeDucs repeatedly beat him on the head with the pipe and bat.      The LeDucs say that Whybrew lunged at Mrs. LeDuc, kicking her in the chest and groin. Mr. LeDuc, seeing this, picked up a stick and confronted Whybrew, who turned around and grabbed at the stick. While they were struggling over the stick, Whybrew kicked Mr. LeDuc in the legs and groin area and forced him down. Mrs. LeDuc then picked up the bat and hit Whybrew over the head from behind. When Whybrew turned around to confront her, Mr. LeDuc hit him with the stick.      Whybrew was arrested by the police for being drunk and interfering with their investigation. Whybrew had consumed, by his own estimation, about half a pint of Southern Comfort that evening. He told the police that he could tell them something about the LeDucs if he wasn't so drunk.      The LeDucs made out a citizen's arrest for assault and battery against Whybrew; he was subsequently acquitted after a three-day jury trial. In this adversary proceeding, Whybrew seeks damages for both his injuries and for malicious prosecution, alleging that the conduct of the LeDucs excepts his claims from discharge pursuant to section 523(a)(6) of the Bankruptcy Code.      While the Court will never be certain of what happened that night, it has no trouble resolving this case against Whybrew. His drinking, admitted belligerence and his martial arts training, as well as his youth and the age, health and size of the LeDucs make it more likely than not that the LeDucs' version of the facts is the more accurate.      Both parties in this case have proceeded as if this were a simple tort action under state law; it is nothing of the sort. This is a federal cause of action under section 523(a)(6) of the Bankruptcy Code, which excepts from discharge debts incurred by willful and malicious injury. Common law assault and battery can certainly be found to be a type of willful and malicious injury. In re Pitner (6th Cir.1982) 696 F.2d 447. However, the action itself is a federal cause of action, and subject to federal law.      The principal difference between state and federal law in this situation is that in order to prevail under section 523(a)(6), because of the strong policy in favor of giving debtors a fresh start, the plaintiff must prove his case by clear and convincing evidence. Love v. Menick (9th Cir. 1965) 341 F.2d 680; In re Ozai (9th Cir.B.A.P.1983) 34 B.R. 764, 766; In re Irvin (Bkrtcy.D.Colo. 1983) 31 B.R. 251, 257; In re Egan (Bkrtcy.D.Minn.1985) 52 B.R. 501, 506. Whybrew has not come anywhere close to this standard of proof.      The Court finds that the LeDucs struck Whybrew out of fear for their own lives and the lives of each other, and that their fears were reasonable under the circumstances. Their use of the bat and stick cannot be found to be excessive in the face of a drunk young man schooled in martial arts, especially considering the small stature of Mrs. LeDuc and the poor health of Mr. LeDuc. While this finding would coincidentally constitute a defense to a tort action at common law and under California law, it more importantly negates the element of maliciousness necessary to establish a nondischargeable debt pursuant to section 523(a)(6).      In view of the findings above, there can be no showing that the LeDucs are liable for pressing charges against Whybrew. That a jury could not resolve the disputed facts against Whybrew beyond a reasonable doubt does not mean that the jury believed Whybrew's story; it merely means that the jury found a possibility that it might be true. While this was enough to give Whybrew his liberty, it is not enough to establish the LeDucs' liability, let alone that the liability be nondischargeable.      For the foregoing reasons, plaintiff shall take nothing by his complaint and this action shall be dismissed. The LeDucs shall recover their costs of suit.      Counsel for the LeDucs shall submit a form of judgment in accordance with this decision, which constitutes findings and conclusions pursuant to FRCP 52(a) and Bankruptcy Rule 7052.
Dated: January 30, 1988                                                                              __________________________                                                                                                                      ALAN JAROSLOVSKY                                                                                                                      U.S. BANKRUPTCY