KIRK HENRY and AMY HENRY v. FREDERICK RIZZOLO, AKA Rick Rizzolo;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIRK HENRY and AMY HENRY,
Plaintiffs - Appellees,
v.
FREDERICK RIZZOLO, AKA Rick
Rizzolo; et al.,
Defendants,
And
KIMTRAN RIZZOLO,
Defendant - Appellant.
No. 12-16207
D.C. No. 2:08-cv-00635-PMP-
GWF
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, Senior District Judge, Presiding
Submitted May 12, 2014 **
San Francisco, California
Before: D.W. NELSON, McKEOWN, and M. SMITH, Circuit Judges.
FILED
MAY 14 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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Kimtran Rizzolo appeals the district court’s grant of summary judgment to
Kirk and Amy Henry, finding certain transfers of assets made from Rick Rizzolo to
Bart Rizzolo—Kimtran’s husband and Rick’s father—fraudulent. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Kimtran argues (1) that Rick Rizzolo was not personally liable to the
Henrys; and (2) that even if Rick Rizzolo were personally liable, the payments
were not fraudulent because they were made in repayment of an antecedent debt.
Neither argument is availing.
As an initial matter, we take judicial notice of the Judgments of Conviction
entered against both Rick Rizzolo and his closely held corporation, The Power
Company, in United States v. Frederick Rizzolo, No. 2:06-cr-186-PMP-PAL, and
United States v. The Power Company, Inc., No. 2:06-cr-186-PMP-PAL,
respectively. These decisions “have a direct relation to matters at issue,” United
States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244,
248 (9th Cir. 1992) (internal quotation marks omitted); indeed, they are
dispositive. Rick Rizzolo’s Judgment of Conviction provides that “[t]he restitution
amount is payment jointly and severally with the co-defendant, Power Co. Inc.”
United States v. Rizzolo, No. 2:06-cr-186, Dkt. 42 at 6. The Power Company has a
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reciprocal obligation. United States v. The Power Company, Inc., No. 2:06-cr-186-
PMP-PAL, Dkt. 43 at 5 (“The restitution amount is payable jointly and severally
with the co-defendant, Frederick John Rizzolo.”). Accordingly, we find that the
district court did not err in concluding that Rick Rizzolo was personally liable for
the restitution owed to the Henrys.
We also find that the district court properly concluded that the transfer at
issue here was fraudulent. The district court relied on Nev. Rev. Stat. § 112.180,
which provides that a court, in determining whether a transfer was made with
fraudulent intent, may consider “whether: (a) The transfer or obligation was to an
insider . . . ; (c) The transfer or obligation was disclosed or concealed; (d) Before
the transfer was made or obligation was incurred, the debtor had been sued or
threatened with suit . . . ; (g) The debtor removed or concealed assets; (h) The
value of the consideration received by the debtor was reasonably equivalent to the
value of the asset transferred or the amount of the obligation incurred; (i) The
debtor was insolvent or became insolvent shortly after the transfer was made or the
obligation was incurred . . . .” The district court properly found no issue of
material fact on several of the “badges of fraud,” as well as evidence of actual
fraudulent intent.
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There is no issue of fact as to whether the transfer was made to an “insider,”
which is defined under Nevada law to include “[a] relative of the debtor.” Nev.
Rev. Stat. § 112.150(7)(a)(1). Rick Rizzolo transferred both the cash and the right
to deferred payments to Bart Rizzolo, his father. Subsequently, the rights passed to
Kimtran Rizzolo, his mother-in-law.
Nor is there any issue of fact with respect to whether Rick Rizzolo was
involved in or threatened with litigation given that the transfers occurred after he
had been ordered to personally pay restitution to the Henrys in the amount of $10
million. There is also no genuine issue of material fact with respect to whether or
not Rick Rizzolo concealed the transfers. Despite conditions of release that
required him to report financial transactions, Rick Rizzolo failed to report any of
the transfers discussed above. The district court also concluded, and Kimtran does
not appear to challenge, that Rick Rizzolo was deceptive during discovery.
Finally, the district court properly concluded that the Henrys had presented
evidence of actual fraudulent intent, namely Rick Rizzolo’s deposition testimony,
in which he stated that he sought to transfer the assets to avoid his other creditors
from attaching the assets. Although Kimtran argues that Rick Rizzolo’s testimony
shows that he sought to pay an antecedent debt, rather than to defraud the Henrys,
she presents no evidence to support the existence of such a debt beyond a “list of
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loans” sent by one of Rick Rizzolo’s lawyers to another of his lawyers and presenst
no evidence proving the amount of any such debts. Kimtran’s bald assertion that
the debts existed and that the transferred assets were reasonably equivalent to the
amount of those debts does not raise an issue of triable fact. See, e.g., FTC v.
Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009) (“In order to avoid summary
judgment, a non-movant must show a genuine issue of material fact by presenting
affirmative evidence from which a jury could find in his favor.”).
AFFIRMED.
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