NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT NOV 26 2013

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

RENEE ELLISON; LOUIS A. BREUER, No. 12-35948

Plaintiffs - Appellants, D.C. No. 3:12-cv-00072-SLG

v.

MEMORANDUM*

JOHANNA E. HAWTHORNE,

Defendant - Appellee.

Appeal from the United States District Court for the District of Alaska Sharon L. Gleason, District Judge, Presiding

Submitted August 15, 2013** Anchorage, Alaska

Before: KOZINSKI, Chief Judge, and BERZON and IKUTA, Circuit Judges.

Renee Ellison appeals the district court’s dismissal of her claims in an

adversary action filed against Johanna Hawthorne’s estate in bankruptcy.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). The district court did not err in denying Ellison’s motion to file a second

amended complaint adding claims for abuse of process and malicious prosecution,

because her proposed amendments would have been futile. See Steckman v. Hart

Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998). Ellison’s proposed abuse of

process claim failed to allege that Hawthorne took any “overt act done in addition

to the initiating of the suit,” which is a necessary element of an abuse of process

action in Alaska. Amos v. Allstate Ins. Co., 184 P.3d 28, 38 (Alaska 2008)

(quoting Caudle v. Mendel, 994 P.2d 372, 376 (Alaska 1999)). Her proposed

claim for malicious prosecution also necessarily failed, as she was not victorious in

the prosecution at issue. See Koollodge v. State, 757 P.2d 1024, 1026 (Alaska

1988).

The district court did not err in granting summary judgment with respect to

Count 2 (breach of the covenant of good faith) based on alleged misrepresentations

made by Hawthorne. Because Ellison has not pointed to any legal or factual

misrepresentation, there is no genuine issue of material fact relevant to this count.

See Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1024 (9th Cir. 2012).

The district court did not err in granting summary judgment with respect to

Count 4 (unfair and deceptive trade practices in violation of A.S. § 45.50.471),

because the Alaska Supreme Court has ruled that this statute is inapplicable to

2 residential leases like the one at issue here. Roberson v. Southwood Manor Assoc.,

L.L.C., 249 P.3d 1059, 1059 (Alaska 2011).

Nor did the district court err in granting summary judgment on Counts 8 and

9 (non-dischargeability of claims, and non-dischargeability of attorneys’ fees,

respectively, under 11 U.S.C. § 523(a)(6)). Viewed in the light most favorable to

Ellison, there is no genuine issue of material fact relevant to Hawthorne’s

willfulness and malicious intent with respect to Counts 2, 3, 4, and 6. See Evon,

688 F.3d at 1024; see also 11 U.S.C. § 523(a)(6).

The district court erred, however, in holding that it was barred by the

Rooker-Feldman doctrine from entertaining Count 1 (breach of covenant of quiet

enjoyment) and Count 5 (retaliatory eviction) of Ellison’s First Amended

Complaint. Because neither claim “asserts as a legal wrong an allegedly erroneous

decision by a state court, and seeks relief from a state court judgment based on that

decision,” Carmona v. Carmona, 603 F.3d 1041, 1050 (9th Cir. 2008), Rooker-

Feldman is inapplicable to this situation. Nor is Ellison’s case collaterally

estopped by the state court judgment in Hawthorne’s possession action, because

under Alaska law, such possession actions do not collaterally estop counterclaims

like Ellison’s. Chilton-Wren v. Olds, 1 P.3d 693, 698 (Alaska 2000). We reject

Hawthorne’s argument that Ellison’s complaint fails to state a claim for retaliatory

3 eviction, because the complaint alleges that Ellison complained to Hawthorne

about defects in the premises before Hawthorne attempted to terminate her tenancy

in November 2009, and Hawthorne has not explained why this factual allegation is

insufficient.

The district court also erred in granting summary judgment with respect to

Count 3 (unfitness of premises) and Count 6 (breach of contract). Although the

district court determined there was no genuine issue of material fact relevant to

whether Hawthorne had acted willfully or maliciously, these are not elements of an

unfitness of premises or breach of contract claim. See Newton v. Magill, 872 P.2d

1213, 1217 (Alaska 1994) (requiring “reasonable care” for actions under A.S.

§ 34.03.100); Great W. Sav. Bank v. George W. Easley Co. J.V., 778 P.2d 569,

577–78 (Alaska 1989) (breach of contract action). For purposes of adjudicating

Ellison’s claim, it is irrelevant that Ellison would need to establish these elements

to ensure that any damage award would be nondischargeable in bankruptcy.

Creditors holding discharged debts are entitled to receive their “pro-rata share of

the distribution of the property of the bankruptcy estate.” In re Ybarra, 424 F.3d

1018, 1022 (9th Cir. 2005). Contrary to Hawthorne’s argument in her

supplemental brief, Ellison’s failure to provide a written notice to Hawthorne

before the state court forcible entry and detainer proceeding did not preclude her

4 from bringing a claim for unfitness of premises. Neither the plain language of A.S.

§ 34.03.160(b) nor any state court opinion identified by Hawthorne imposes such a

requirement on a tenant in Ellison’s position.

We therefore reverse the district court’s grant of summary judgment with

respect to Counts 3 and 6, and its dismissal of Counts 1 and 5, and remand for

proceedings consistent with this disposition. Because we reverse in part the district

court’s decision on the merits, we reverse and remand its grant of summary

judgment with respect to Count 7 (seeking attorneys’ fees) and Counts 10, 11, and

12 (seeking equitable liens).

Each party shall bear its own costs on appeal.

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

5

FILED

NOV 26 2013

MOLLY C. DWYER, CLERK

Ellison v. Hawthorne, No. 12-35948 U.S. COURT OF APPEALS

Chief Judge KOZINSKI, dissenting in part:

Because continued litigation of Ellison’s baseless claims wastes the court’s

and parties’ time and money, I must dissent from the majority’s remand.

The tempestuous relationship between month-to-month tenant Ellison and

landlord Hawthorne should have ended in 2009, but as many dysfunctional

relationships do, it’s dragged on for years. In November 2009, Hawthorne sent

Ellison a letter terminating her tenancy. Rather than pack her bags and move out,

Ellison remained in the apartment, forcing Hawthorne to commence Forcible Entry

and Detainer (FED) proceedings. In the meantime, knowing full well that her

tenancy was over and she had thirty days to leave, Ellison had the local fire

department make a report of missing smoke alarms. She attached the report in

support of her answer in the FED action.

Ellison’s pleadings are essentially poorly worded recitations of the elements

of the claims for which she seeks recovery. And, as evidence to support these

claims, she relies only on her verified state-court answer from the FED action,

which includes no proof of damages. This dooms her breach of contract claim:

Plaintiffs “need not prove the amount of damages with exact detail, but the

evidence must provide a reasonable basis” to compute an award. Ben Lomond, page 2 Inc. v. Schwartz, 915 P.2d 632, 636 (Alaska 1996) (internal quotation marks and

citations omitted); see also 17B C.J.S. Contracts § 824 (2013).

Ellison also provides zero proof of retaliatory or wrongful eviction. She

alleges that Hawthorne evicted her because of her complaints about the premises.

Ellison’s state-court answer referenced a report documenting missing smoke

alarms completed by the Matsu Fire Department. But this report can’t serve as

evidence for retaliatory or wrongful eviction, as Hawthorne sent Ellison a letter

terminating her tenancy on November 10, 2009, a month before the report was

completed. Causation does not run backwards in time. Nor does Ellison present

any other evidence of retaliation.

Ellison also shows no damages from the lack of smoke alarms or any other

alleged issue with the apartment so as to raise a genuine issue of material fact as to

the unfitness of the premises. We don’t empanel juries to decide theoretical

injuries.

Ellison’s breach of covenant of quiet enjoyment claim fails because she

can’t support a finding that Hawthorne interfered with her use of the apartment in a

substantial way. See DeNardo v. Corneloup, 163 P.3d 956, 960 (Alaska 2007); see

also Berrey v. Jeffcoat, 785 P.2d 20, 23 (Alaska 1990). In DeNardo, the tenant

claimed that his quiet enjoyment had been breached because a neighbor was page 3 smoking and the landlord failed to do anything after he complained. DeNardo, 163

P.3d at 960. But “[b]ecause DeNardo did not offer facts sufficient to prove that his

landlord substantially disturbed his use of the land,” the Alaska Supreme Court

held that the claim was properly dismissed. Id. Ellison doesn’t offer evidence

proving that Hawthorne interfered with Ellison’s use of the apartment in any

way—let alone “in a substantial manner.”

The summary judgment ruling was made by a district judge who served as

an Alaska Superior Court Judge for ten years before being appointed to the district

court. In fact, she was the judge whose grant of summary judgment was upheld by

the Alaska Supreme Court in DeNardo. 163 P.3d at 956. No doubt, she is familiar

with Alaska law and, as the Alaska Supreme Court has confirmed, properly applies

it. Remanding will not change the ultimate outcome. It will only increase the

landlord’s costs, making leases more expensive in Anchorage. I would affirm.