IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
JOHN and RENEE LEDUC, No. 1-86-01743
v. A.P. No. 1-87-0018
JOHN and RENEE LEDUC,
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
(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
(Bkrtcy.D.Minn.1985) 52 B.R. 501, 506. Whybrew has not come anywhere close to this standard
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 __________________________