Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. GIC877214 Luis R. Vargas, Judge.
AARON, J.
I.
INTRODUCTION
Steven B. Gold filed this action against Michelle Oster and her employer, Psychiatric Centers at San Diego Incorporated (PCSD). The trial court sustained Oster's demurrer without leave to amend on the ground that the discharge of Oster's debts in bankruptcy precluded Gold from maintaining this lawsuit. The trial court entered a judgment of dismissal in Oster's favor.
PCSD is not a party to this appeal.
On appeal, Gold claims that the trial court erred in denying his request to continue the hearing on the demurrer, granting Oster's request for judicial notice of certain documents from the bankruptcy proceeding, and sustaining Oster's demurrer without leave to amend. We affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2007, Gold filed a second amended complaint against Oster and PCSD alleging six causes of action. Gold alleged claims including breach of contract, breach of fiduciary duty, violation of statutes governing the confidentiality of medical information, invasion of privacy, constructive fraud, and unfair business practices. Gold's claims arose from Oster's provision of psychological therapy to Gold's children in connection with his divorce. Gold alleged that Oster had revealed confidential information pertaining to the therapy to certain third parties, without his permission. In his prayer for relief, Gold sought money damages, among other forms of relief.
In August 2007, Oster filed a petition for bankruptcy in the United States Bankruptcy Court. In October 2007, Gold filed an adversary action in Oster's bankruptcy proceeding, in which he claimed that Oster's debt to him was not dischargeable.
As explained in detail in part III.C.2., post, a debtor who files for bankruptcy pursuant to Chapter 7 of the federal bankruptcy code (11 U.S.C. § 701 et seq.) is generally entitled to a discharge injunction that prohibits creditors from continuing a lawsuit against the debtor to collect a debt (11 U.S.C. § 524(a)(2)). However, the bankruptcy court may exempt from the scope of the discharge injunction debts of money that the debtor obtained by way of fraud (11 U.S.C. § 523(a)(2)(A)). A proceeding in bankruptcy court to determine the dischargeability of a debt is commonly referred to as an adversary action. (See, e.g., Boyajian v. Ordoubadi (2010) 184 Cal.App.4th 1020, 1025.)
In December 2007, the bankruptcy court entered a discharge injunction in favor of Oster. The order states, "It appearing that the debtor is entitled to a discharge, IT IS ORDERED: The debtor is granted a discharge under § 727 of title 11, United States Code, (the Bankruptcy Code)." The bankruptcy court's order contains an "Explanation of Bankruptcy Discharge in a Chapter 7 Case." The order explains that certain debts were not discharged, including those "[d]ebts that the bankruptcy court specifically has decided or will decide in this bankruptcy case are not discharged...." Because Gold's adversary action was still pending at the time the discharge order was entered, his claim was not discharged at that time. However, in November 2008, the bankruptcy court dismissed Gold's adversary action with prejudice.
On May 8, 2009, the state trial court held a status conference in the present case. On June 18, Oster filed a demurrer to Gold's second amended complaint. In a supporting brief, Oster maintained that Gold was enjoined by federal law from continuing this action, in light of the bankruptcy court's discharge and the dismissal of Gold's adversary action. Oster also argued that each of Gold's causes of action in the second amended complaint failed to state a claim. Oster requested that the trial court take judicial notice of various documents that were filed in her bankruptcy proceeding.
On June 19, Gold's attorney filed a declaration objecting to Oster's filing of the demurrer. In her declaration, Gold's attorney claimed that at the May 8 status conference, she informed the court and opposing counsel that she would be on vacation from June 19 through July 6. Gold's attorney also claimed that at the May 8 status conference, the trial court had ordered Oster and PCSD to file all motions by May 15.
Oster filed a reply to Gold's attorney's declaration. In her reply, Oster maintained that the trial court had not ordered Oster to file her demurrer by May 15. Oster also noted that Gold had not filed an opposition to the demurrer.
On July 10, the trial court held a hearing on the demurrer. At the outset of the hearing, Gold's counsel requested a continuance. The trial court denied the request, granted Oster's request for judicial notice, and sustained Oster's demurrer without leave to amend. In its order, the trial court reasoned in relevant part:
"Oster's debts, including the instant lawsuit, have been discharged in bankruptcy.... [¶]... [¶] The [second amended complaint] alleges causes of action against Oster for breach of contract, breach of fiduciary duty, breach of statutory duty, invasion of privacy, constructive fraud and unfair business practices. Of the 19 exceptions to discharge listed in [11 United States Code] section 523(a), the only ones that apply to [Gold's] claims in this case involve debts relating to fraud and willful conduct by the debtor.... Since the bankruptcy court never determined these debts to be nondischargeable, they are not excepted from discharge. Thus, since Oster's debts, including this lawsuit, were discharged in bankruptcy, [Gold] is enjoined from continuing this action against Defendant Oster."
On July 17, the trial court entered a judgment of dismissal. Gold appeals from the judgment.
III.
DISCUSSION
A. The trial court did not abuse its discretion in denying Gold's request for
a continuance of the hearing on Oster's demurrer
Gold claims that the trial court erred in denying his request for a continuance of the hearing on Oster's demurrer.
1. Factual and procedural background
On May 8, 2009, the trial court held a case status conference. The minute order from the status conference states:
"Defense counsel requests a date for a demurrer and a motion to strike[, ] which the court sets for [July 10, 2009].... [¶] The court confirms the stay is lifted. [¶] The court orders the parties to meet and confer by [May 15, 2009]. [¶] The court states that if defense counsel files a demurrer he is to include a declaration regarding the meet and confer ordered by the court."
On June 18, Oster filed a demurrer. The pleadings indicated that the hearing on the demurrer would be held on July 10.
On June 19, Gold's counsel filed a declaration in which she stated that on May 8, she had informed the court and opposing counsel that she would be out of the office on vacation from June 19 through July 6. Gold's counsel also stated that during the May 8 status conference, the trial court ordered defendants to file all motions by May 15. Gold's counsel claimed that Oster had failed to comply with the court's May 15 deadline by filing the demurrer on June 18.
On July 1, Oster filed a reply to Gold's counsel's declaration. In her reply, Oster maintained that the trial court had not ordered the defendants to file their motions by May 15. Oster's counsel filed a declaration that stated in relevant part, "At no time did the Court order Dr. Oster to file and serve her demurrer... by May 15, 2009."
On July 9, the trial court issued a tentative ruling sustaining Oster's demurrer without leave to amend.
At the July 10 hearing on the demurrer, Gold's counsel requested a continuance of the hearing to allow her time to file an opposition to the demurrer. Gold's counsel reiterated her claim that the trial court had ordered the defendants to file all motions by May 15. The trial court rejected counsel's argument, stating, "If I had ordered a date of filing, the minute order would reflect a date of filing." The trial court inquired of Oster's counsel and PCSD's counsel regarding whether they had been aware that Gold's counsel would be unavailable. Both attorneys responded that they recalled Gold's counsel stating in court that she would not be available for a specific hearing date. However, neither counsel recalled having been made aware that Gold's counsel would be unavailable from June 19 through July 6. The trial court stated that it intended to confirm its tentative ruling sustaining the demurrer without leave to amend, thereby implicitly denying Gold's request for a continuance.
2. Governing law and standard of review
A trial court may grant a continuance of a hearing on a demurrer upon a showing of good cause. (Cotton v. StarCare Medical Group, Inc. (2010) 183 Cal.App.4th 437, 444.) We review the trial court's order denying a request for a continuance for an abuse of discretion. (In re V.V. (2010) 188 Cal.App.4th 392, 399.)
3. Application
Gold bases his contention that the trial court erred in denying his request for a continuance on the assertion that on May 8, his counsel informed the court and opposing counsel that she would be unavailable from June 19 through July 6. However, apart from Gold's counsel's own declaration, there is no evidence in the record to support this assertion. Neither the trial court nor opposing counsel recalled Gold's counsel informing them of the dates that she would be unavailable. In any event, even assuming that Gold's counsel did provide opposing counsel with notice of her unavailability, the trial court was not required to continue the hearing on this basis. (See Carl v. Superior Court (2007) 157 Cal.App.4th 73, 75 ["To the extent this practice [of filing a notice of unavailability] attempts to put control of the court's calendar in the hands of counsel-as opposed to the judiciary-it is an impermissible infringement of the court's inherent powers"]; accord In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 824-825 ["Kathey offers no authority to support the assertion implicit in her argument, which is that the filing requirements of the Code of Civil Procedure are modified when a party decides to take a vacation"].) We also note that Gold's counsel provided no explanation for why she waited until the hearing to seek a continuance, and that the trial court rejected Gold counsel's claim that the court had set a May 15 deadline for the filing of the demurrer.
Under these circumstances, we conclude that the trial court did not abuse its discretion in denying Gold's request for a continuance.
B. The trial court did not err in granting Oster's request for judicial notice
Gold contends that the trial court erred in granting Oster's request that the trial court take judicial notice of various documents that were filed in Oster's bankruptcy case. We review a trial court's ruling granting a request for judicial notice pursuant to the abuse of discretion standard of review. (In re Social Services Payment Cases (2008) 166 Cal.App.4th 1249, 1271.)
Oster also requested that the trial court take judicial notice of various documents that have been filed in this case. Gold does not appear to raise any argument on appeal that the trial court erred in taking judicial notice of these documents.
1. Factual and procedural background
Oster supported her demurrer with a request that the trial court take judicial notice of the following documents that were filed in her bankruptcy proceeding: Oster's petition for bankruptcy; a schedule of creditors listing Gold as a creditor; Gold's October 29, 2007 complaint in his adversary action; the December 31, 2007 order of discharge; and the November 13, 2008 dismissal of Gold's adversary action. In the order sustaining the demurrer, the trial court referred to the documents from the bankruptcy proceedings as follows:
"Oster... filed bankruptcy under Chapter 7 in August 2007.... Oster's bankruptcy listed [Gold] and this lawsuit as scheduled creditors.... [Gold] filed an adversary proceeding in bankruptcy court alleging his debt was not dischargeable.... The bankruptcy court granted a discharge to Oster on December 31, 2007.... [Gold] subsequently dismissed the adversary action, with prejudice, in November 2008."
The trial court's order also stated, "Defendant Oster's Request for Judicial Notice is Granted."
2. Governing law
In ruling on a demurrer, a court " 'will... consider judicially noticeable facts, even if such facts are not set forth in the complaint.' " (Litwin v. Estate of Formela (2010) 186 Cal.App.4th 607, 613, citation omitted.) Code of Civil Procedure section 430.30, subdivision (a) provides: "When any ground for objection to a complaint... appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading."
A court may take judicial notice of the acts and records of a federal court. (Evid. Code, § 452, subds. (c), (d).) Evidence Code section 453 provides that a trial court must take judicial notice of any matter specified in Evidence Code section 452, upon a party's proper request. In People v. Harbolt (1997) 61 Cal.App.4th 123, 126 -127, the court discussed the purposes for which a court may take judicial notice of a court record:
Evidence Code section 453 provides: "The trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and:
"Evidence Code sections 452 and 453 permit the trial court to 'take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached-in the documents such as orders, statements of decision, and judgments-but cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.' [Citations.] Thus, in People v. Padilla (1995) 11 Cal.4th 891, 961, footnote 6, our Supreme Court took judicial notice of an unpublished opinion of this very court, People v. Prado (Feb. 1, 1994) F016385, to show that a codefendant had been convicted of murder, conspiracy to commit murder and solicitation to commit murder."
3. Application
Gold contends, "Although the existence of most of the documents submitted by [Oster] may have been judicially noticeable, the [trial court] erred in relying on the truth of statements contained in the documents." Gold's argument fails because there is nothing in the trial court's order that indicates that the court relied on the truth of any statements in the documents from the bankruptcy proceedings. Rather, the court's order indicates that the trial court took judicial notice of the existence of the documents in the bankruptcy proceedings, and "the truth of the results" in those proceedings. (People v. Harbolt, supra, 61 Cal.App.4th at p. 127.)
Gold also maintains that the "Court should have allowed [him] reasonable time to file a proper response before sustaining [Oster's] Demurrer without leave to amend, " because the court was "well aware" that Gold disputed that Oster's debt had in fact been discharged in the bankruptcy court. This argument fails in light of our conclusion in part III.A., ante, that the trial court did not abuse its discretion in denying Gold's request for a continuance of the hearing on the demurrer.
C. The trial court did not err in sustaining Oster's demurrer without leave to amend
Gold claims that the trial court erred in sustaining Oster's demurrer without leave to amend. Gold contends that the discharge of Oster's debts in bankruptcy does not bar his claims for money damages against Oster because the parties allegedly entered into a stipulation in the bankruptcy court that provided that Oster's debt to Gold was nondischargeable. Gold also maintains that he could have amended his complaint to properly state a claim for injunctive relief, and that a claim for injunctive relief is not barred by the discharge of a defendant's debts in bankruptcy.
1. The law governing demurrers
This court applies the following well-established law in reviewing a trial court's order sustaining a demurrer without leave to amend:
" 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
" 'Where the complaint's allegations or judicially noticeable facts reveal the existence of an affirmative defense, the "plaintiff must 'plead around' the defense, by alleging specific facts that would avoid the apparent defense. Absent such allegations, the complaint is subject to demurrer for failure to state a cause of action...." [Citation.]' [Citation.]" (Doe II v. MySpace Inc. (2009) 175 Cal.App.4th 561, 566.)
2. Relevant bankruptcy law
A debtor's filing of a bankruptcy petition results in an automatic stay of pending lawsuits against the debtor. (11 U.S.C. § 362.) A debtor who files a bankruptcy petition pursuant to Chapter 7 of the federal bankruptcy code (11 U.S.C. § 701 et seq.) is generally entitled to a discharge of his debts. (In re Shaw (D. Nev. Sept. 20, 2010, No. 2:09-CV-01999-KJD-RJJ) ___ F.Supp. ___ [2010 WL 3738028, *2] ["As a general rule, those who file for bankruptcy under Chapter 7 receive a discharge of all their debts"]; see 11 U.S.C. § 727(a).) "A discharge is a 'special type of permanent injunction' which replaces the automatic stay after discharge is entered. [Citation.]" (In re Watson (9th Cir. BAP 1996) 192 B.R. 739, 746.) The injunction prohibits a creditor from continuing an action against a debtor to collect a debt. (11 U.S.C. § 524(a)(2).)
Certain debts may be exempted from discharge, including money that the debtor obtained by way of fraud. (11 U.S.C. § 523(a)(2)(A).) "Whether a particular debt is included in the scope of the discharge or excepted from discharge by section 523(a) may be ascertained, before or after the discharge, by the filing of a complaint to determine dischargeability...." (In re Crull (Bkrtcy. W.D.Ark. 1989) 101 B.R. 60, 61.) Debts of money obtained through fraud will be subject to discharge, "unless, on request of the creditor to whom such debt is owed, and after notice and a hearing, the court determines such debt to be excepted from discharge...." (11 U.S.C. § 523(c)(1).) The parties to an action to determine dischargeability may enter into a stipulated judgment that declares a debt to be nondischargeable. (In re Cole (9th Cir. BAP 1998) 226 B.R. 647, 652; In re Martinelli (9th Cir. BAP 1988) 96 B.R. 1011, 1012.)
A creditor need not seek such a determination if the debtor failed to properly list the debt pursuant to 11 United States Code section 521. (11 U.S.C. § 523(c)(1).) Gold does not contend that this exception is relevant to this case.
A debtor may also reaffirm a prepetition obligation, thereby waiving the ability to discharge the debt at a later time. (See 11 U.S.C. § 524(c).) However, Gold does not contend that this provision applies in this case.
In addition to proceedings under 11 United States Code section 523 to determine the dischargeability of a specific debt, "[11 United States Code] Section 727(a)(10) permits a debtor to waive the discharge of all debts simply by executing a postbankruptcy written agreement that is approved by the bankruptcy court." (In re Cole, supra, 226 B.R. at p. 652.) Further, there is limited authority that 11 United States Code section 727(a)(10) permits a debtor to waive the dischargeability of a specific debt. (See In re Mapother (Bkrtcy. W.D.Ky. 1985) 53 B.R. 433, 436 [approving " 'Stipulation of Nondischargeability'... as a written waiver of discharge of this debt pursuant to [11 U.S.C.] Section 727(a)(10)"].) Other courts have held that a debtor may not waive a specific debt pursuant to section 11 United States Code section 727(a)(10), and that 11 United States Code section 727(a)(10) permits a debtor to waive only the discharge of all debts. (See, e.g., In re Kleinmann (Bkrtcy. D.N.J. Apr. 21, 2010, No. 05-55211) 2010 WL 1641085, *4; In re Minor (D.Colo. 2010) 115 B.R. 690, 694 [both disagreeing with In re Mapother].)
11 United States Code section 727(a) provides in relevant part, "[T]he court shall grant the debtor a discharge, unless-[¶]... [¶] (10) the court approves a written waiver of discharge executed by the debtor after the order for relief under this chapter...." With exceptions not relevant in this case, an "order for relief" is the debtor's initial bankruptcy petition. (See 11 U.S.C. § 301.)
3. The trial court did not err in sustaining Oster's demurrer
As noted in part III.B., ante, the trial court properly took judicial notice of various documents from Oster's bankruptcy action, including the December 31, 2007 order of discharge and the November 13, 2008 dismissal of Gold's adversary action. The order dismissing Gold's adversary action states in relevant part: "ORDER [¶] For good cause shown, IT IS HERBY ORDERED that the above entitled adversary action is dismissed." Upon the termination of Gold's adversary action without a judicial determination by the bankruptcy court that the "debt [is] to be excepted from discharge" (11 U.S.C. § 523(c)(1)), Gold became subject to an injunction that precludes him from maintaining this action as a matter of federal bankruptcy law. (11 U.S.C. § 524(b).) The trial court properly sustained Oster's demurrer to Gold's complaint on the ground that all of Oster's claims for money damages are barred by the discharge injunction.
Gold raises several related arguments in support of his contention that he may maintain this action against Oster. All of Gold's arguments are premised on the November 13, 2008 document entitled "Stipulation of Dismissal" that was entered in the adversary action in Oster's bankruptcy proceeding. That document states:
"IT IS HEREBY STIPULATED by and between the parties to this adversary action through their designated counsel that the above-captioned action, which was brought pursuant to [11 United States Code section] 523(a)(2), be and hereby is dismissed with prejudice pursuant to [Federal Rules of Civil Procedure, rule] 41(a)(1) and [Federal Rules of Bankruptcy Procedure, r]ule 7041.
"It is further Stipulated by and between the parties that each party is responsible for their own fees and costs in this action.
"The dismissal of this case shall not be construed as a dismissal of the underlying State Court action Gold v. Oster and Psychiatric Centers at San Diego et al., GIC 877214, or be construed that Steven Gold is waiving any other legal or discovery rights against Michele Y. Oster as permitted by law. By signing this Stipulation, neither party is waiving any rights as pursuant to State or Federal law in the State Court action, except for those stated above."
Gold's attorney and Oster's attorney each signed the stipulation.
Following the attorneys' signatures is the following order, quoted in the previous paragraph, dismissing Gold's action:
"ORDER [¶] For good cause shown, IT IS HERBY ORDERED that the above entitled adversary action is dismissed."
The order is signed by a bankruptcy court judge.
Gold appears to contend that this document constitutes a stipulated judgment declaring the debt at issue in his adversary action to be nondischargeable. In his brief, Gold cites several cases, including In re Martinelli, supra, 96 B.R. 1011 and In re Laing (10th Cir. 1994) 31 F.3d 1050, in which courts have declared a debt nondischargeable pursuant to a stipulation entered into between the parties. All of the cases that Gold cites are distinguishable because, in this case, the bankruptcy court did not declare Oster's debt to Gold nondischargeable. Rather, the bankruptcy court dismissed Gold's adversary action, and the dismissal order contains no language stating that the debt is nondischargeable. (Compare with In re Martinelli, supra, at p. 1012 ["The Martinellis, on advice of counsel, stipulated to a judgment whereby the debt together with interest and attorneys' fees was determined to be nondischargeable"]; In re Laing, supra, at p. 1051 ["The parties... agreed that the debt was nondischargeable, and the court so ordered"].) Absent an order declaring the debt to be nondischargeable, Gold is enjoined from maintaining this action by federal bankruptcy law. (See 11 U.S.C. § 524(b).)
Citing In re Kilian (Bkrtcy. S.D. Ohio 1992) 138 B.R. 192, Gold argues, "Once an order has been entered in the Adversary Action in favor of [the] creditor, the discharge order is of no effect as to this debt." (Italics added; see id. at p. 193 [I]f the debt owed to the Plaintiff is subsequently determined by the Court to be nondischargeable under § 523 , the discharge order, by its terms, is of no effect as to that particular debt, " italics added.) This claim fails because, as stated above, the bankruptcy court never entered an order in the adversary action in favor of Gold, and the bankruptcy court made no determination that Oster's debt to Gold is nondischargeable. Gold's related argument that the trial court failed to give full faith and credit to the bankruptcy court's order fails for the same reason.
Gold also appears to contend that the bankruptcy court's order dismissinghis adversary action constitutes a determination of the adversary action in his favor, in light of the parties' stipulation that the dismissal of the adversary action should not be construed as a dismissal of the state court action and should not be construed as a waiver by Gold of various rights in the state court action. Gold argues, "The Stipulation was reviewed, approved and signed by [a bankruptcy judge] and made an Order of the [United States] Bankruptcy Court on November 13, 2008." This argument fails because the bankruptcy court did not sign the stipulation. Rather, it signed an order dismissing the case. Further, even assuming that the parties' intent in entering into the stipulation is ambiguous, the bankruptcy court's order cannot reasonably be interpreted as a judgment declaring the debt to be nondischargeable.
We therefore need not consider Oster's argument that "a reasonable interpretation of the stipulation is that Gold wanted to emphasize that he was not dismissing his claims against PCSD...."
In any event, the trial court lacked authority to modify the plain terms of the bankruptcy court's order. (See In re McGhan (9th Cir. 2002) 288 F.3d 1172, 1179─1180.) In In re McGhan, a California state court had "held that [a creditor] was bound by neither the discharge order nor the discharge injunction, documents that on their face plainly barred [creditor's] [state court] action." (Id. at p. 1180.) The In re McGhan court held that the state court had "effectively modified both orders, and in so doing impermissibly infringed upon the bankruptcy court's jurisdiction to enforce its orders." (Ibid.) The In re McGhan court reasoned:
"It plainly was in the power of the state court to take judicial notice of [debtor's bankruptcy] proceedings. In this case, those documents showed that [the creditor] was a listed creditor, that [the creditor's] claim was discharged and that [the creditor] was enjoined from taking any action to collect on the debt. The state court should have given effect to the bankruptcy court's orders. By going further, the state court exceeded its jurisdiction, even if the state court believed that [the creditor] had valid grounds to object to the orders." (Ibid.)
Similarly, in this case, the documents from Oster's bankruptcy proceedings demonstrate that Gold was a listed creditor, that Gold's claim against Oster was discharged, and that Gold was enjoined by federal law from taking any action to collect on the debt. If Gold believed that his claim against Oster was not subject to the discharge order, he was required to seek relief in the bankruptcy court, rather than continue to prosecute an action that the state court did not have the authority to permit to proceed. (In re McGhan, supra, 288 F.3d at p. 1181 [creditor seeking relief from discharge injunction must seek relief in bankruptcy court].)
Finally, Gold also appears to argue that Oster waived her right to a discharge of her debt to Gold pursuant to 11 United States Code section 727(a)(10). Assuming for purposes of this opinion that a debtor may waive the dischargeability of a specific debt pursuant to this provision (but see, e.g., In re Kleinmann, supra, 2010 WL 1641085, *4), 11 United States Code section 727(a)(10) requires that "the court approve[] a written waiver of discharge executed by the debtor...." (Italics added.) For the reasons stated in the previous paragraphs, the bankruptcy court's order dismissing the adversary action does not constitute court approval of a written waiver of the dischargeability of Oster's debt.
4. Gold has not demonstrated a reasonable possibility that he
could amend his complaint to state a cause of action
Gold contends that he should be allowed to amend his complaint to seek the following injunctive relief against Oster:
"a. Not to provide, for a certain number of years, any counseling services to anyone regarding OR going through a dissolution of marriage that involves child custody issues;
"b. To disclose to all employers and patients (for a minimum of 5 years) that [Oster] was personally involved in her parent's [sic] high conflict dissolution of marriage, as an adult child of that dissolution, and that she concurrently took the side of one parent and surreptitiously obtained information from the other parent, for the benefit of the favored parent; submitted declarations to the Court on behalf of the favored parent and against the other parent in her capacity as a licensed psychologist; and has since disowned her own father for divorcing her mother;
"c. To undergo one year of counseling for her unethical conduct and statutory violations regarding the choices, decisions, fraud and actions in the Gold dissolution case;
"d. To study the ethical rules and guidelines of [Oster's] profession, including but not limited to rules [Oster] was alleged to have violated in the Complaint in the civil case, and retake and pass a test administered by [Oster's] licensing agency regarding [Oster's] ethical responsibilities and obligations."
Injunctive relief may be granted only where a plaintiff has prevailed on a cause of action and it is proper for a trial court to order appropriate equitable relief. (See DVD Copy Control Assn., Inc. v. Kaleidescape, Inc. (2009) 176 Cal.App.4th 697, 721 [" 'A permanent injunction is a determination on the merits that a plaintiff has prevailed on a cause of action... against a defendant and that equitable relief is appropriate.' [Citation.]"].) In this case, in his second amended complaint, Gold's prayer for relief seeks "injunctive relief as authorized by California Business and Professions Code section 17200...." However, in his brief, Gold fails to put forth any argument that his Business and Professions Code section 17200 claim would properly support the injunctive terms quoted above. In the absence of such argument, Gold has failed to demonstrate that he has adequately stated a cause of action that would support the granting of such injunctive relief. Gold has thus failed to demonstrate a reasonable possibility that he could amend his complaint to state a claim. (See Gilman v. Dalby (2009) 176 Cal.App.4th 606, 613 ["The burden of proving that such a reasonable possibility exists is squarely on the plaintiff, who must demonstrate that he could amend the complaint and how the amendment would change the legal effect of his pleading"].)
Accordingly, we conclude the trial court did not abuse its discretion in sustaining Oster's demurrer without leave to amend.
IV.
DISPOSITION
The judgment is affirmed. Gold is to bear costs on appeal.
WE CONCUR: McCONNELL, P. J.NARES, J.
"(a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and
"(b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter."