Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV026140
CANTIL-SAKAUYE, J.
James R. Meyers filed this action against his employer Burlington Northern Santa Fe Railway Company (BNSF) under the Federal Employers’ Liability Act (FELA) (45 U.S.C. § 51 et seq.) for a work-related injury. After BNSF learned Meyers had a prior bankruptcy proceeding in which Meyers had failed to list his cause of action against BNSF, BNSF brought a motion for summary judgment on the basis of judicial estoppel. The trial court granted summary judgment on that basis and subsequently denied Meyers’s motion for new trial.
During the pendency of this appeal, Meyers, joined by the bankruptcy court trustee for his reopened Chapter 7 bankruptcy estate, moved this court for an order allowing the trustee to be substituted in as the appellant and real party in interest in this case. We granted the motion. For convenience, we will continue to refer to only Meyers in this opinion, unless the trustee is being specifically discussed.
Meyers appeals, contending judicial estoppel is not appropriate in this type of case, the trial court applied the wrong law in granting BNSF’s motion, and Meyers’s evidence established the omission of his claim in his bankruptcy schedules was unintentional. We reverse the summary judgment because we conclude Meyers established a triable issue of material fact regarding his intent when he omitted the FELA employment claim from his bankruptcy schedules.
FACTUAL AND PROCEDURAL BACKGROUND
Meyers’s complaint alleges he was employed by BNSF as a conductor/brakeman working in and around BNSF’s rail yard and on May 1, 2003, he fell and sustained serious injuries. He alleges BNSF’s negligence and failure to comply with a railroad safety regulation of the California Public Utilities Commission caused his accident.
According to Meyers’s declaration filed in opposition to BNSF’s motion for summary judgment, Meyers and his wife had a pending Chapter 13 bankruptcy proceeding at the time of his injury. When he subsequently could not work, they could not make their required monthly payments to the bankruptcy trustee. Meyers contacted his bankruptcy attorneys and informed them of his work-related injury, his inability to work, and his inability to make the required payments. The attorneys advised Meyers to convert his Chapter 13 filing to a Chapter 7 filing. Meyers and his wife filed a Chapter 7 bankruptcy petition on August 13, 2003.
Meyers told his bankruptcy attorneys that he “had started receiving advances (subsistence loans) from BNSF but that the money would have to be paid back from [his] lost earnings, and that [he] planned on going back to work when [his] injuries resolved.” The attorneys advised Meyers it was not necessary to list his work-related accident in the bankruptcy, as he was not in a lawsuit. In the bankruptcy schedule for listing personal property, in the category of “other contingent and unliquidated claims of every nature, including tax refunds, counterclaims of the debtor, and rights to setoff claims,” Meyers checked the box for “none.” In September 2003, when the bankruptcy judge asked whether they had any lawsuits pending, Meyers responded “no” because they had not sued BNSF and were not planning to sue. Meyers received a discharge of his debts and his bankruptcy case was closed in November 2003.
In February 2004, Meyers contacted attorney Frederick Nelson about a claim against BNSF for his May 1, 2003 injuries. When Meyers later informed Nelson about his bankruptcy, Nelson asked if he had listed the FELA claim in his petition. Meyers said he had not. He was unaware he had to do so. Nelson told Meyers they would have to notify the bankruptcy trustee about the FELA claim, which should have been listed, and request the bankruptcy be reopened.
Meyers filed his FELA complaint against BNSF in April 2005. He was deposed in September 2005. In November 2005, BNSF filed its motion for summary judgment based on judicial estoppel.
In December 2005, Meyers’s Chapter 7 bankruptcy proceeding was reopened upon the motion of the bankruptcy trustee. In January 2006, the bankruptcy court authorized the employment of Nelson as special counsel for the trustee “to prosecute” the FELA action effective September 23, 2005.
We find implicit in such authorization relief from the bankruptcy automatic stay (11 U.S.C. § 362, subd. (a)) for the litigation to proceed. We assume clarification may be sought from the bankruptcy court if any party feels it necessary.
BNSF’s motion for summary judgment was heard and granted in February 2006. Judgment was entered in favor of BNSF in April 2006. Meyers filed a motion for new trial on essentially the same grounds as his opposition to the summary judgment. He also contended BNSF had failed to establish every element of judicial estoppel by undisputed evidence. The trial court denied the motion for new trial. This appeal followed.
DISCUSSION
I.
The Applicable Standard of Review For Summary Judgment Based On Judicial Estoppel
“‘“‘Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. [Citations.] . . .’” [Citation.]’” (MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422 (MW Erectors); see Koo v. Rubio’s Restaurants, Inc. (2003) 109 Cal.App.4th 719, 735.) The doctrine’s goals are to maintain the integrity of the judicial system and to protect parties from opponents’ unfair strategies. (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986 (Aguilar).)
Judicial estoppel may be invoked when a number of factual predicates are met (MW Erectors, supra, 36 Cal.4th at p. 422; Aguilar, supra, 32 Cal.4th at pp. 986-987; see In re Marriage of Dekker (1993) 17 Cal.App.4th 842, 850 [“trial court’s determination on the issue of estoppel is a factual finding”]; Haley v. Dow Lewis Motors, Inc. (1999) 72 Cal.App.4th 497, 510 [if determination of facts is necessary to rule on judicial estoppel, claim should be decided on summary judgment or at trial] (Haley)), but even when all necessary elements are present, its application, as an equitable doctrine, is discretionary. (MW Erectors, supra, at p. 422.)
“[W]e review de novo the trial court’s decision to apply judicial estoppel in granting a summary judgment motion, and we apply the same standards of law as the trial court in determining whether the defendant has met its burden of establishing that there are no triable issues on the application of judicial estoppel.” (Kelsey v. Waste Management of Alameda County (1999) 76 Cal.App.4th 590, 597-598 (Kelsey), fn. omitted.) That is, a motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) If summary judgment is granted and appealed, we independently examine the record to determine whether triable issues of material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) “In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [plaintiff’s] evidentiary submission while strictly scrutinizing defendants’ own showing, and resolving any evidentiary doubts or ambiguities in plaintiff’s favor. [Citations.]” (Id. at p. 768.)
Assuming there is no triable issue as to any material fact necessary to establish the elements of judicial estoppel, we review for abuse of discretion the trial court’s ultimate decision whether to apply the doctrine. (See, e.g., Hartford Casualty Ins. Co. v. Travelers Indemnity Co. (2003) 110 Cal.App.4th 710, 724 [“‘Summary judgment motions usually raise matters of law, but not when the trial court grants or denies such a motion on the basis of equitable determinations. [Citation.] The matter then becomes one of discretion, which this court reviews under the abuse of discretion standard’”].)
II.
The Trial Court Erred In Granting BNSF’s Motion For Summary Judgment
A. The Evidence Submitted On The Motion For Summary Judgment
Judicial estoppel applies most appropriately “‘when: “(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.”’” (MW Erectors, supra, 36 Cal.4th at p. 422, quoting Aguilar, supra, 32 Cal.4th 974, 986-987; Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.) It is an extraordinary remedy to be applied with caution. (Haley, supra, 72 Cal.App.4th at p. 511.)
The first four elements are not in dispute. The evidence submitted by BNSF in its motion for summary judgment based on judicial estoppel showed Meyers took two positions in judicial proceedings. Meyers filed a bankruptcy schedule in which he denied having any contingent or unliquidated claims of any kind and subsequently filed this lawsuit against BNSF based on a prepetition FELA claim. BNSF submitted to the trial court a copy of the bankruptcy trustee’s report to the bankruptcy court that Meyers’s Chapter 7 case was a “no asset” case. Thereafter, the bankruptcy court granted Meyers a discharge of debts. In granting the discharge, the bankruptcy court impliedly accepted and relied on the representation of Meyers’s assets, including the lack of any potential, recoverable claims. The two positions were totally inconsistent with respect to Meyers’s claim under the FELA for his permanent injuries. BNSF clearly showed evidence establishing the first four elements of judicial estoppel.
With respect to the fifth element, that the first position was not taken as a result of ignorance, fraud, or mistake, BNSF submitted the following evidence. Meyers filled out a BNSF Employee Personal Injury/Occupational Illness Report on the day of his injury, May 1, 2003. In such report, Meyers stated he received injuries to his lower back, neck and upper left arm when he fell because of loose rocks that were left piled in a toe path by a yard cleaner. In June 2003, after almost two months off work, Meyers gave a recorded statement to a BNSF claims representative detailing what had occurred on May 1. The portions of Meyers’s deposition submitted by BNSF on this point indicate Meyers initially called the claims representative because he had been directed to contact her regarding a light duty work assignment. Meyers understood her position to be the claims person. He later gave her a recorded statement regarding the accident. He understood that she was taking the recorded statement “as part of [his] claim” for the injury he suffered on May 1. The claims representative explained to Meyers that BNSF had a program whereby injured workers “as part of their claim” could get monetary advances. Meyers gave the recorded statement as part of his claim in order to receive advances. He received $1,800 as his first advance when he finished his statement. He understood he would be entitled, as part of his claim, to earnings for the time he was off work as a result of his injury.
In opposition to the motion for summary judgment, Meyers submitted a declaration in which he stated he suffered back and neck injuries at work when he fell on May 1, 2003. He was diagnosed with bulging discs at C5-6, C6-7, and L4-5. He was eventually permanently disabled from his work as a railroad conductor/brakeman, but he was not aware of the true extent and nature of his injuries at the time of his accident or when he filed for Chapter 7 bankruptcy. He explained, as described earlier, his difficulties meeting his Chapter 13 bankruptcy payments after his accident, his meeting with his bankruptcy attorneys, his disclosure to them of his receipt of subsistence loans from BNSF, his attorneys’ advice, and the filing of his Chapter 7 petition. At the time he filled out the petition, he understood it to be complete and accurate. Meyers stated he had limited experience with financial matters and had no legal training or experience. Although he reviewed the bankruptcy papers when he signed them, he primarily relied on his attorneys with regard to the completeness and accuracy of the petition. At that time, he did not think his work-related injury “claim” was a lawsuit or that it belonged in the category of other contingent or unliquidated claims. He had not filed suit against BNSF at that time, nor was he planning to do so.
On the bankruptcy schedule for current income, Meyers listed his receipt of $3,600 monthly income from “RR Benefits.”
According to Meyers’s declaration, all on-the-job injuries must be reported to BNSF within 24 or 48 hours of their occurrence or the employee will be disciplined. Meyers made the required report. Approximately two weeks after his accident, Meyers contacted the BNSF claims representative about returning to light duty work. He was offered a light duty job in Stockton, an 80-mile round trip from his home. He worked in Stockton one day, but due to the long drive and the pain it caused him, his doctor took him off light duty. Meyers also stated that when an employee is injured on the railroad, the employee “must put in a ‘claim’ to get reimbursed for his lost time or hours during which he is disabled from working.” When Meyers was asked at his deposition about his “claim” for his injury, Meyers “was thinking about the claim for lost time that [he] had made after the accident.”
Thereafter, the claims representative told Meyers BNSF could give him “advances” based on his take home pay. Meyers needed the money to pay his household bills since he had been off work for almost two months. Meyers knew he had to repay BNSF for its advances when his injuries resolved and he could return to work. He knew BNSF would deduct the advances from his lost earnings. To get the advances, he had to give a recorded statement about the accident. Meyers did so.
The claims representative told Meyers “We’ll take care of it[,]” which Meyers thought meant BNSF would give him time to recover and return to work. He believed he would return to work. Meyers declared it did not occur to him to sue BNSF. He only knew BNSF was giving him financial assistance while he was recovering. Had he known his work-related injury “claim” was a contingent and unliquidated claim which he had to list in his bankruptcy, he would have done so.
Meyers contacted attorney Nelson about a claim for injuries only when he realized he was permanently disabled from his job on the railroad. He later told Nelson about his bankruptcy. When asked, Meyers told Nelson he had not listed the FELA claim in his petition and was not aware he had to do so. Nelson told Meyers the bankruptcy trustee would have to be notified and the bankruptcy reopened. His bankruptcy case was subsequently reopened.
Nelson filed a declaration stating Meyers contacted him in February 2004 when it appeared his injuries from the accident would permanently disable him. “At some point,” Meyers told Nelson about his bankruptcy and Nelson told him he was required to list all actual and potential legal claims he had at the time the bankruptcy was filed, which included the FELA claim.
In reply, BNSF argued Meyers had the requisite knowledge of his claim, pointing to evidence that Meyers admitted a number of times at his deposition he knew he had a “claim.” Meyers’s knowledge of a claim was further evidenced by the fact Meyers admitted taking photographs of the accident scene even before he went home on the day of the accident. BNSF also argued Meyershad knowledge of his claim at least by the time he retained Nelson as his attorney in February 2004. Citing the declaration of Nelson, BNSF claimed Nelson told Meyers “[a]t that time” to disclose the claim to the bankruptcy trustee and reopen the bankruptcy case. BNSF inferred from the fact the bankruptcy was not reopened until December 2005 that Meyers never contacted the bankruptcy trustee; rather his attorney did so after BNSF’s motion for summary judgment was filed. BNSF claimed Meyers was still trying to deceive the court.
Meyers said he took the pictures because he had “heard horror stories about people being blamed, so [he] wanted to be able to show those that be that [he] didn’t do anything wrong.”
Neither the declaration of Meyers nor the declaration of Nelson specify the date when Meyers told Nelson of his bankruptcy. Meyers’s declaration only states he contacted Nelson in February 2004. He “later” informed Nelson of his bankruptcy. Nelson’s declaration states Meyers informed him of the bankruptcy “at some point[.]” Nelson advised Meyers that “we” had to notify the bankruptcy trustee of Meyers’s FELA claim and request reopening of the bankruptcy. Thus, BNSF’s argument did not accurately represent the evidence on which it relied.
To rebut the claim that the bankruptcy trustee was not notified about Meyers’s FELA claim until after BNSF’s motion for summary judgment was filed in November 2005, Meyers has filed a motion for judicial notice on appeal requesting judicial notice of the bankruptcy trustee’s motion to reopen his case and the declaration of counsel for the trustee filed in support of such motion that indicates such counsel was informed of the FELA claim in September 2005. In response to Meyers’s request for judicial notice, BNSF has filed its own motion for judicial notice of 10 additional pleadings and dockets from Meyers’s Chapter 13 bankruptcy and his subsequent Chapter 7 bankruptcy. We decline to take judicial notice under Evidence Code section 459 of any of these documents as they were not part of the record before the trial court on summary judgment and obviously the trial court could not have considered them. Both motions for judicial notice are denied.
B. The Trial Court Applied The Correct Law On The Issue Of Intent
The trial court’s ruling on BNSF’s motion found the evidence was undisputed that Meyers has taken an inconsistent position in two judicial proceedings and that the bankruptcy court had accepted the previous position by discharging Meyers’s debts. With respect to the issue of intent, the trial court stated: “Case law has established it is not necessary for a party to offer literal proof of intentional non-disclosure, but rather evidence of knowledge of the facts of the claim or that there is some motive for concealing the facts is sufficient (Burnes v. Pemco Aeroplex [(11th Cir. 2002)]291 F.3d 1282. Further, the standard for ‘knowledge’ has been determined to require only knowledge of enough facts to know that a potential cause of action exists (Hamilton v. State Farm Fire & Casualty Co. []270 F.3d 778 (9th Cir. 2001) and the debtor need not know all of the facts (In re Costal [sic] Plains [(5th Cir. 1999) 179 F.3d 197])[)].” The trial court went on to find BNSF had established “a prima facie showing of undisputed evidence” as to all the elements of judicial estoppel and that Meyers had failed to raise a triable issue of fact “that his lack of knowledge of his potential claim against BNSF was reasonable and his failure to disclose the claim was inadvertent.” “Based on the foregoing,” the trial court found “undisputed evidence that [Meyers] had sufficient knowledge of the facts of his claim against Defendant BNSF so as to require the disclosure in the bankruptcy case. Having failed to do so, the doctrine of judicial estoppel is invoked to protect the integrity of the judicial process, as a matter of law, and [Meyers] will be precluded from pursuing such claim in this matter.”
On appeal, Meyers claims the trial court erred in finding judicial estoppel using federal law, instead of California law. Meyers claims California law requires proof that his omission was not the result of “‘“ignorance, fraud, or mistake”’” (MW Erectors, supra, 36 Cal.4th at p. 422); that is, he “intentionally” or deliberately omitted his claim. (Kelsey, supra, 76 Cal.App.4th at p. 597; Haley, supra, 72 Cal.App.4th at pp. 510-511; Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1019 (Cloud).)
We are not persuaded from our review of the case law that there is a material difference between federal and California law on the issue of the intent necessary for judicial estoppel. The mere fact that there has been a nondisclosure in bankruptcy proceedings is not enough in either jurisdiction to impose judicial estoppel. (Ryan Operations G.P. v. Santiam-Midwest Lumber Co. (1996)81 F.3d 355, 364 (Ryan); Stallings v. Hussmann Corp. (8th Cir. 2006) 447 F.3d 1041, 1049; Cloud, supra, 67 Cal.App.4th at p. 1019, citing Ryan, supra, at p. 362.) Both jurisdictions require intentional contradictory positions before judicial estoppel will apply. (See, e.g., Burnes v. Pemco Aeroplex, Inc., supra, 291 F.3d at p. 1286 (Burnes); Browning Manufacturing v. Mims (In re Coastal Plains, Inc.) (5th Cir. 1999) 179 F.3d 197, 206 [judicial estoppel prohibits parties “‘from deliberately changing positions according to the exigencies of the moment’” and is “generally applied where ‘intentional self-contradiction is being used an a means of obtaining unfair advantage’” (italics added)] (Coastal Plains); Havird Oil Co., Inc. v. Marathon Oil Co., Inc. (4th Cir. 1998) 149 F.3d 283, 292 [intentional action necessary]; American National Bank v. Federal Deposit Ins. Corp. (11th Cir. 1983) 710 F.2d 1528, 1536 [judicial estoppel applies “to the calculated assertion of divergent sworn positions” (italics added)]; Kelsey, supra, 76 Cal.App.4th at pp. 597, 599 [summary judgment improper where defendant failed to show intentional omission of claim].) Moreover, particularly where judicial estoppel is invoked in the context of bankruptcy proceedings, California decisions have relied on principles articulated by federal courts. (Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 138.)
C. Judicial Estoppel and Federal Decisions Intrepreting Intentional Contradiction
A number of federal courts have defined intentional contradiction by its opposite, that is, judicial estoppel will not be applied when the inconsistent positions were the result of inadvertence or mistake. (Stallings v. Hussmann Corp., supra, 447 F.3d 1041, 1049; Burnes, supra, 291 F.3d at p. 1286; Johnson v. Oregon (9th Cir. 1998) 141 F.3d 1361, 1369.) After reviewing the relevant jurisprudence, the Fifth Circuit concluded that for purposes of judicial estoppel in bankruptcy cases, “the debtor’s failure to satisfy its statutory disclosure duty is ‘inadvertent’ only when, in general, the debtor either lacks knowledge of the undisclosed claims or has no motive for their concealment.” (Coastal Plains, supra, 179 F.3d 197, 210.) In considering whether a debtor’s knowledge was sufficient to infer the omission of a claim was intentional, the Ninth Circuit has found it appropriate to impose judicial estoppel “when the debtor has knowledge of enough facts to know that a potential cause of action exists during the pendency of the bankruptcy, but fails to amend his schedules.” (Hamilton v. State Farm Fire & Casualty Co. (9th Cir. 2001) 270 F.3d 778, 784.) The debtor need not have knowledge of all relevant facts. (Id. at pp. 784-785, citing Hay v. First Interstate Bank N.A. (9th Cir. 1992) 978 F.2d 555, 557 and Coastal Plains, supra, at p. 208.)
BNSF argued to the trial court and reasserts in this court, that this definition requires only knowledge “or” a motive to conceal for the omission to be deemed intentional. BNSF misreads the language. Under the Coastal Plains definition, either lack of knowledge “or” lack of a motive will make the omission inadvertent, that is, to be intentional there must be knowledge “and” motive to conceal. (See Calafiore v. Werner Enterprises (D. Md. 2006) 418 F.Supp.2d 795, 798.) Of course, a debtor in bankruptcy will usually be deemed to have had a motive to conceal a claim if it would have added assets to the bankruptcy estate. (Ibid.)
D. Judicial Estoppel and California Decisions Intrepreting Intentional Contradiction
Similarly in California intentional contradiction is defined by its opposite, that is, judicial estoppel will not be applied when the inconsistent positions were the “‘“result of ignorance, fraud, or mistake.”’” (MW Erectors, supra, 36 Cal.4th at p. 422.) Thus, just as in the federal courts, the question of what a party to be estopped knew at the time that party took the first position (here omission of claim from bankruptcy schedule) is a critical inquiry under California law. Full knowledge of a claim that should be listed in the debtor’s bankruptcy papers is not required.
For example, in Conrad v. Bank of America (1996) 45 Cal.App.4th 133, 151, the plaintiffs argued the record did not establish they knew they had a claim against the bank when they filed their bankruptcy schedules. This court noted similar assertions had been rejected in federal decisions, where all facts were not known, but sufficient facts were known to require notification of the existence of the claim in the bankruptcy case. (Id. at pp. 151-152, citing, among others, Hay v. First Interstate Bank N.A., supra, 978 F.2d at p. 557.) We concluded the record in Conrad established that the plaintiffs were fully aware of the operative facts surrounding their claims and, though they may not have been aware of the legal significance of those facts that was no excuse for failing to identify the claim earlier. (Conrad, supra, at pp. 151-152.)
As another example, in International Engine Parts, Inc. v. Feddersen & Co. (1998) 64 Cal.App.4th 345, the court upheld the granting of a motion for summary judgment on the grounds of judicial estoppel. The debtor plaintiff had an accounting malpractice claim against its accountant, but failed to disclose this claim in multiple disclosure statements filed with the bankruptcy court, even after it was well aware of the claim. The lawsuit against the accountants was filed the same day as an amended modification of plaintiff’s plan of reorganization, which made no mention of the claim against the accountants. The court found judicial estoppel was appropriate because plaintiffs “were fully aware of their claim and did not act under ignorance, fraud, or mistake.” (Id. at p. 353.)
Meyers contends, however, that California law requires more than a bare failure to list a known claim before the omission can be found intentional. Meyers cites Kelsey, supra, 76 Cal.App.4th 590, Haley, supra, 72 Cal.App.4th 497, and Cloud, supra, 67 Cal.App.4th 995. These cases illustrate that the sufficiency of the party’s knowledge for application of judicial estoppel can be disputed. In Kelsey, there was a question of whether the plaintiff knew his claim had any value when he filed his bankruptcy, it could be reasonably inferred under the circumstances that he did not know he was required to disclose and plaintiff submitted a declaration stating his ignorance, which established a triable issue of fact precluding summary judgment. (76 Cal.App.4th at pp. 599-600.) In Haley, plaintiffs stated they failed to disclose their claims against defendant in their bankruptcy because they did not think they had claims since they were told by their bankruptcy attorney not to list the claims as assets as they were not worth pursuing when plaintiffs did not have any supporting documentation and the assertion of the claims might get one of the plaintiffs fired. (72 Cal.App.4th at pp. 502, 510-511.) In Cloud, the court concluded defendant’s effort to invoke judicial estoppel raised factual issues that could not be resolved on a motion for judgment on the pleadings when only nondisclosure and nothing more could be established from the pleadings. (67 Cal.App.4th at pp. 1018-1019.) The court stated that “consideration of whether a debtor has engaged in a deliberate scheme to mislead and gain unfair advantage, as opposed to having made a mistake born of misunderstanding, ignorance of legal procedures, lack of adequate legal advice, or some other innocent cause, requires consideration of the evidence.” (Id. at p. 1020.)
We do not view these cases as establishing a different standard from federal law. They simply illustrate that the plaintiff’s mens rea is paramount and a case by case analysis of the plaintiff’s knowledge is necessary to determine the facts and the reasonable inferences of intent that may be drawn from such knowledge.
In summary, we disagree that federal and California case law, while phrased somewhat differently, establish materially different standards on this element of judicial estoppel. The trial court did not err in the law it applied to the issue of intent.
E. Meyers Established A Triable Issue Of Fact Under The Governing Law
Meyers next claims his undisputed evidence established the omission of his claim against BNSF from his bankruptcy schedules was unintentional. While we disagree that Meyers conclusively proved his omission was unintentional, we do conclude his evidence established a triable issue of material fact regarding whether his omission was intentional.
The evidence submitted by BNSF demonstrated that Meyers knew he was injured on the day of the accident. He immediately reported his injuries. He took photos of the accident scene. He later talked to a person who he knew was a “claims” representative about receiving money from BNSF as part of his “claim.” He received money from BNSF. He did not list any claim against BNSF in his Chapter 7 bankruptcy schedules, received a discharge of debts, and then filed this action against BNSF. Although his FELA counsel told him his bankruptcy proceedings would have to be reopened to list his claim against BNSF, the bankruptcy case was not reopened for almost two years after Meyers’s first contact with his FELA counsel.
However, Meyers submitted evidence that he knew he was injured at the time of the accident, but thought it was only a temporary disability. He did not know the true extent and nature of his injuries. He reported the accident because he was required to do so to maintain his job. He took photos of the accident scene, not to document a claim against BNSF, but to prevent being blamed for the accident. He contacted the claims representative because he was instructed to do so in order to get his light duty work assignment. He also put in a claim to get reimbursed for his lost time while he was temporarily off work. He gave the recorded statement to the claims representative to get an advance or subsistence loan on such lost time earnings, but believed he would have to pay such temporary assistance money back when he returned to work. He expected to be able to return to work. It did not occur to him at that time to sue BNSF.
When Meyers lost his income and could not make his Chapter 13 bankruptcy payments, he contacted bankruptcy counsel and it was such counsel who recommended he convert to a Chapter 7 proceeding. He disclosed the advances or loans he was receiving from BNSF to his bankruptcy counsel. Counsel told him it was not necessary to list his work-related accident in the bankruptcy, as he was not in a lawsuit. Meyers stated he had limited experience with financial matters and had no legal training or experience. Although he reviewed the bankruptcy papers when he signed them, he primarily relied on his attorneys’ advice for their accuracy and completeness. Had he known his work-related injury “claim” was a contingent and unliquidated claim which he had to list in his bankruptcy, he would have done so. He contacted attorney Nelson only when he realized he was permanently disabled from his job on the railroad. At some undesignated point in time, Meyers told Nelson about his bankruptcy, Nelson told Meyers his bankruptcy would have to be reopened and it has been reopened.
Viewing Meyers’s evidence in a light favorable to him, liberally construing it and resolving any evidentiary doubts or ambiguities in his favor (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 767), it appears at the time of his bankruptcy Meyers only knew he was temporarily disabled, that he was receiving “advances” or subsistence “loans” from BNSF, which would have to be repaid out of any lost earnings he was entitled to, and that he considered these advances or loans in the nature of temporary assistance from BNSF while he was recovering. That is, the “claim” Meyers knew about when he filed his Chapter 7 bankruptcy related to his request for lost earnings and this temporary assistance. Meyers understood it as being something distinct and different from his eventual FELA cause of action. Meyers is not financially or legally sophisticated, but relied on advice from his legal counsel regarding the requirements for his bankruptcy paperwork. He had no intent to sue BNSF until he became aware he was permanently disabled, which was several months after his bankruptcy discharge. He would have listed the claim in his bankruptcy schedules if he had known he was supposed to do so. Meyers did subsequently tell Nelson about his prior bankruptcy. Nelson correctly concluded the trustee would have to be notified of Meyers’s FELA claim and the bankruptcy reopened. The evidence before the trial court is ambiguous as to whether there was a delay between the time Nelson told Meyers his claim would have to be reported to the bankruptcy trustee and when the trustee was actually notified. If there was a delay, the evidence does not establish the length of any such delay or any of the possible reasons for such delay. Meyers’s bankruptcy has been reopened.
The evidence before the trial court establishes a triable issue of material fact regarding whether Meyers’s nondisclosure of his FELA claim in his Chapter 7 proceedings was intentional. We are particularly convinced triable issues exist regarding the sufficiency of Meyers’s knowledge of operative facts underlying his FELA claim against BNSF during the pendency of his Chapter 7 proceedings and what he understood was required to be reported in his bankruptcy schedules. The trial court, therefore, erred in granting BNSF summary judgment against Meyers on the basis of judicial estoppel. We shall reverse the judgment and remand for further proceedings.
III.
Policy Grounds Do Not Preclude Judicial Estoppel In This Case
In the event BNSF on remand again raises the issue of judicial estoppel, this time against the trustee who is now, as a result of the substitution we have granted, the plaintiff in this case, we briefly consider, for the benefit of the parties and the trial court, Meyers’s claims that judicial estoppel is absolutely precluded in this case on policy grounds.
A. Judicial Estoppel May Be Applied To The Omission Of A Claim From Chapter 7 Bankruptcy Schedules
Pointing to language in Haley, supra, 72 Cal.App.4th at p. 511, that “judicial estoppel is rarely appropriate in a chapter 7 context in a case in which the debtor has failed to schedule a claim[,]” Meyers contends “[n]either here, nor in any similar case, does barring the plaintiff’s action serve the interests or achieve the goals of judicial estoppel.” Meyers argues this is so because (1) the bankruptcy court can reopen its proceedings at any time and utilize a range of remedies to protect its own processes; (2) the second (trial) court is not the court in which the untruth has been told and so does not need to protect its own processes; (3) applying judicial estoppel destroys a valuable asset that should be available to creditors; (4) the only party who benefits from application of judicial estoppel is the defendant who escapes judicial scrutiny of its alleged wrongful actions; (5) the real party in interest in the action is the bankruptcy trustee who did not make the alleged misrepresentation, and (6) any need to sanction the plaintiff can be achieved more effectively with a variety of less extreme options.
However, the disclosure obligations of debtors are at the very heart of the bankruptcy system and the proper operation of the system critically depends on honest reporting. (Payne v. Wood (7th Cir. 1985) 775 F.2d 202, 205.) “‘The duty of disclosure in a bankruptcy proceeding is a continuing one, and a debtor is required to disclose all potential causes of action[.]’ [Citation.]” (Coastal Plains, supra, 179 F.3d at p. 208.) “‘[A] long-standing tenet of bankruptcy law requires one seeking benefits under its terms to satisfy a companion duty to schedule, for the benefit of creditors, all his interests and property rights.’” (Conrad v. Bank of America, supra, 45 Cal.App.4th at p. 146, quoting Oneida Motor Freight, Inc. v. United Jersey Bank (3d Cir. 1988) 848 F.2d 414, 416; see also, 11 U.S.C. § 521.)
Based largely on this policy, courts have applied the doctrine of judicial estoppel in Chapter 7 bankruptcy cases. (De Leon v. Comcar Industries (11th Cir. 2003) 321 F.3d 1289, 1291; Burnes, supra, 291 F.3d at p. 1283; Hamilton, supra, 270 F.3d 778; Billmeyer v. Plaza Bank of Commerce (1995)42 Cal.App.4th 1086 (Billmeyer).)
In light of this authority, while we have agreed that judicial estoppel is “rarely appropriate” in Chapter 7 cases (Haley, supra, 72 Cal.App.4th at p. 511; Cloud, supra, 67 Cal.App.4th at pp. 1020-1021), we will not go so far as to say it can never be appropriate. Courts, including this one, have specifically rejected Meyers’s arguments that judicial estoppel is inappropriate simply because the bankruptcy can be reopened as a “cure” for the omission of the claim or because the pursuit of the claim would benefit creditors of the bankruptcy estate. (Conrad, supra, 45 Cal.App.4th at p. 151; Billmeyer, supra, 42 Cal.App.4th at pp. 1093-1094, 1096; but see Cheng v. K&S Diversified Investments, Inc. (In re Cheng) (9th Cir. B.A.P. 2004) 308 B.R. 448, 460; Jogani v. Jogani (2006) 141 Cal.App.4th 158, 183-184.) The fact that the defendant may escape liability by application of the doctrine has not prevented courts from imposing judicial estoppel, when necessary, in order to protect the integrity of the judicial process. (Payless Wholesale Distribs., Inc. v. Alberto Culver, Inc. (1st Cir. 1993) 989 F.2d 570, 571.)
B. Judicial Estoppel Is Not Per Se Precluded Because This Action Is Brought Pursuant To The FELA
Meyers contends, among other things that application of judicial estoppel to his action “is inconsistent with the spirit and fundamental policies” of the FELA. According to Meyers, “the doctrine of judicial estoppel cannot be applied to bar a plaintiff’s F.E.L.A. claim for failure to disclose it on bankruptcy schedules.”
Meyers cites, as authority for his argument that judicial estoppel is not a cognizable defense in a FELA action, cases generally stating the purposes of FELA (e.g., Atchison, Topeka & Santa Fe Railway Co. v. Buell (1987) 480 U.S. 557 [94 L.Ed.2d 563]; Kernan v. American Dredging Co. (1958) 355 U.S. 426 [2 L.Ed.2d 382]), cases interpreting FELA in light of those purposes (e.g., Sinkler v. Missouri Pacific Railroad Co. (1958) 356 U.S. 326 [2 L.Ed.2d 799]), and cases holding that in FELA actions federal law rather than state law applies. (E.g., Rogers v. Missouri Pacific Railroad Co. (1957) 352 U.S. 500 [1 L.Ed.2d 493]; Dice v. Akron, Canton & Youngstown Railroad Co. (1952) 342 U.S. 359 [96 L.Ed. 398]; Morse v. So. Pacific Transportation Co. (1976) 63 Cal.App.3d 128, 136.) Meyers cites several cases that resolved issues based on the congressional intent in enacting the FELA. (E.g., Consolidated Rail Corp. v. Gottshall (1994) 512 U.S. 532 [129 L.Ed.2d 427] [adopts zone of danger test for negligent infliction of emotional distress as consistent with the FELA’s remedial goals and focus on physical perils]; Burnett v. New York Central Railroad Co. (1965) 380 U.S. 424 [13 L.Ed.2d 941] [tolling of statute of limitations where plaintiff did not sleep on his rights, but brought action in state court which did not have venue, effectuates congressional purpose].) However, Meyers cites no authority that suggests equitable defenses may never, in any situation, be applied to FELA complaints. In fact, as BNSF points out, judicial estoppel has been applied in a FELA action in one unpublished decision of a federal district court. (Biesek v. Soo Line Railroad Co. (W.D. Wisc. Sept. 7, 2005, No. 04-C-223-S.) 2005 U.S. Dist. LEXIS 19380), affirmed on a different ground Biesek v. Soo Line Railroad Co. (7th Cir. 2006) 440 F.3d 410.)
Meyers discusses Coleman v. So. Pacific Co. (1956) 141 Cal.App.2d 121, in connection with his argument that a court must consider the specific provisions of the FELA and the policies promoted by the statute in administering the doctrine of judicial estoppel. We disagree with any suggestion that this case is authority for an absolute preclusion of the defense.
BNSF filed a copy of this opinion with the trial court, who took judicial notice of it. A copy of the opinion is in respondent’s appendix on appeal. We may consider even unpublished federal opinions when construing federal statutes. (Harris v. Investor’s Business Daily, Inc. (2006) 138 Cal.App.4th 28, 34; City of Hawthorne ex. Rel. Wohlner v. H&C Disposal Co. (2003) 109 Cal.App.4th 1668, 1678, fn. 5.)
The remedial purposes of the FELA and the history of liberal construction of the statute do not require an interpretation favoring the railroad employee in every situation. (Norfolk So. Railway Co. v. Sorrell (2007) ___ U.S. ___ [166 L.Ed.2d 638, 650] [Supreme Court refused to impose a more exacting standard for determining an employee’s contributory negligence than for the railroad’s negligence despite remedial purposes of FELA citing Rodriguez v. United States (1987) 480 U.S. 522, 526 [94 L.Ed.2d 533, 538] “It frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law”].) We decline to adopt a rule that precludes the application of judicial estoppel in any FELA action regardless of the factual situation.
C. We Cannot Say As A Matter Of Law That Judicial Estoppel Is Never Appropriate Against A Bankruptcy Trustee
The trustee asserts judicial estoppel is an inappropriate remedy now that Meyers’s bankruptcy has been reopened and he has been substituted into the action. We have reviewed the authorities provided. (Eastman v. Union Pacific Railroad Co. (10th Cir. 2007) 493 F.3d 1151, 1155, fn. 3; Parker v. Wendy’s International, Inc. (11th Cir. 2004) 365 F.3d 1268, 1271-1272; Jenkins v. Home Depot USA, Inc. (E.D. Tex., May 30, 2007, No. 4:06cv161) 2007 U.S. Dist. LEXIS 39075; Webster v. Western Express, Inc. (M.D. Ga., July 19, 2007, No. 5:05-CV-350) 2007 U.S. Dist. LEXIS 52199; Bert v. AK Steel Corp. (S.D. Ohio, Oct. 12, 2007, No. 1:02-cv-467) 2007 U.S. Dist. LEXIS 76058.) These authorities indicate judicial estoppel may not ordinarily be invoked against a bankruptcy trustee pursuing an action for the benefit of creditors, at least perhaps to the extent recovery does not exceed the amount necessary to satisfy all creditors. (Accord, In re Cheng, supra, 308 B.R. 448, 457, fn. 4; Wood v. Household Finance Corp. (D.Wa. 2006) 341 B.R. 770, 773-774.) However, we do not read the federal authorities to establish as a matter of law that judicial estoppel may never be invoked against a bankruptcy trustee regardless of the facts. Since the issue and the facts relevant to the issue were not before the trial court in this case, we will only urge the trial court to exercise extreme caution in considering application of judicial estoppel in this case against the trustee if it is urged on remand.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion. Costs on appeal are awarded to appellant. (Cal. Rules of Court, rule 8.276(a).)
We concur: SCOTLAND, P.J., BUTZ, J.