FILED MAY 30 2014 1 NO FO PUBL A IO T R IC T N SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL 2 OF THE NINTH CIRCUIT
3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. CC-13-1298-KiLaPa ) 6 MARIA ELENA DANE, ) Bk. No. 2:12-45992-ER ) 7 Debtor. ) Adv. No. 2:13-01073-ER ) 8 ) BMD MANAGEMENT, LLC, ) 9 ) Appellant, ) 10 ) v. ) M E M O R A N D U M1 11 ) MARIA ELENA DANE, ) 12 ) Appellee. ) 13 ______________________________) 14 Argued and Submitted on May 15, 2014, at Pasadena, California 15 Filed - May 30, 2014 16 Appeal from the United States Bankruptcy Court 17 for the Central District of California 18 Honorable Ernest M. Robles, Bankruptcy Judge, Presiding 19 Appearances: S. Michael Kernan, Esq. argued for appellant, BMD 20 Management, LLC; Stella A. Havkin, Esq. of Havkin & Shrago argued for appellee, Maria Elena Dane. 21 22 Before: KIRSCHER, LATHAM2 and PAPPAS, Bankruptcy Judges. 23 24 1 25 This disposition is not appropriate for publication. Although it may be cited for whatever persuasive value it may have 26 (see Fed. R. App. P. 32.1), it has no precedential value. See 9th Cir. BAP Rule 8013-1. 27 2 Hon. Christopher Latham, Bankruptcy Judge for the Southern 28 District of California, sitting by designation. 1 Appellant BMD Management, LLC ("BMD") appeals an order 2 granting the motion of chapter 73 debtor, Maria Elena Dane a/k/a 3 Mylene Dane ("Maria") to dismiss with prejudice BMD's complaint 4 under Civil Rule 12(b)(6). We AFFIRM.4 5 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 6 A. Prepetition events 7 BMD is a California limited liability company that was owned 8 50/50 by Maria and her former husband, Barry Dane ("Barry"). 9 Maria was BMD's Vice President. BMD was formed in 2003 to own a 10 gym facility known as Train West Hollywood ("Train"). The Danes 11 paid $425,000 for Train. Train was not the usual type of gym with 12 customers paying on a monthly basis; rather, it rented time to 13 personal trainers who brought in their clients to work out. 14 Train's assets included the name of the gym, the goodwill and 15 customers of Train, the gym equipment, the lease of the premises, 16 a checking account and receivables (the "Assets"). 17 18 3 Unless specified otherwise, all chapter, code and rule references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and 19 the Federal Rules of Bankruptcy Procedure, Rules 1001-9037. The Federal Rules of Civil Procedure are referred to as “Civil Rules.” 20 4 Maria has moved to strike certain portions of BMD's 21 excerpts of the record, namely documents involving the bankruptcy case of Maria's corporate entity. ER Tabs 23-33. Conversely, BMD 22 has asked us to take judicial notice of these same documents. We generally cannot consider items that were not presented to the 23 bankruptcy court when making its decision. See Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988). In any event, 24 these documents are not relevant to our decision here. Therefore, we GRANT Maria's motion to strike. 25 In addition, BMD asks that we take judicial notice of a document from the California Secretary of State showing that 26 Maria's LLC has been cancelled and a summary judgment from the state court in BMD's action against Maria's LLC. Because both of 27 these documents post-date the order on appeal and have no bearing on our decision, we will not consider them. Id. As such, BMD's 28 request for judicial notice is DENIED.
-2- 1 The Danes divorced in 2006. Rather than sell Train, the 2 Danes amended BMD's Operating Agreement and continued operating 3 Train through BMD. Maria was to be Train's primary manager, while 4 Barry was in charge of negotiations and daily transactions with 5 the landlord of Train's leased premises. 6 After discussions for Maria to buy out Barry's share of BMD 7 broke down in the spring/summer of 2008, in December 2008, Maria 8 transferred the Assets of BMD to her newly-formed entity, Maria 9 Elena Dane, LLC ("Dane LLC"), without prior notice to Barry and 10 without paying Barry reasonably equivalent value for his 50% 11 interest. On December 31, 2008, Maria's attorney informed Barry 12 that Maria had created Dane LLC and that her business relationship 13 with Barry "was closed." Specifically, her attorney sent Barry an 14 email stating that Maria had "established a new entity that has 15 exclusive right to possession and has no connection to [Barry] 16 whatsoever." An arbitrator later found that Maria's acts violated 17 BMD's amended Operating Agreement as an improper attempt to 18 dissolve BMD. Around this same time, the landlord terminated 19 Train's lease and served BMD with a thirty-day notice to quit. 20 The landlord later testified that he was not willing to renew 21 Train's lease to BMD or Barry. However, he did negotiate a new 22 lease with Maria who continued to operate Train without 23 interruption, using the Assets and the same customer list. 24 On January 1, 2009, Maria sent an email to Train customers 25 informing them that she had "dissolved" her "previous business 26 relationship" with Barry and that she was now the "solo owner and 27 manager of the gym." Thereafter, the customers began making 28 payments to Dane LLC.
-3- 1 Several lawsuits between the parties ensued. Barry first 2 commenced a binding arbitration action against Maria, 3 individually, in January 2009 ("Arbitration Action"). Barry 4 alleged claims for Breach of Contract, Fraud, Negligent 5 Misrepresentation, Common Counts, Conversion and Accounting. 6 Barry alleged that "in or around the summer of 2008," Maria froze 7 him out of BMD and converted BMD's profits and Assets to Dane LLC 8 for her own use, in violation of the amended Operating Agreement. 9 Barry alleged that Maria's act of obtaining a new lease for Train 10 without his knowledge was also a violation. Barry requested 11 damages of $236,000 plus attorney's fees and costs. At some point 12 prior to the arbitration hearing, and for reasons not clear on the 13 record, Barry dismissed his tort and negligence claims against 14 Maria and proceeded only on the Breach of Contract claim. The 15 arbitrator found in favor of Barry. However, since the gym was 16 losing money and Barry was entitled only to profits as an LLC 17 member, he could not establish any damages and was awarded 18 nothing. Maria was ordered to distribute any remaining assets of 19 BMD, including the gym equipment, which the arbitrator found had 20 "little if any real value." 21 The second lawsuit, filed in May 2009, involved BMD's claims 22 against Dane LLC over the BMD business (the "LLC Action")(BMD, LLC 23 v. Maria Elena Dane, LLC, Case No. BC414409 (Cal. Super. Ct., Cnty 24 of L.A.)). According to the Third Amended Complaint ("TAC") filed 25 in the LLC Action on June 16, 2011, BMD alleged claims against 26 Dane LLC for Violations of the CAL. BUS. & PROF. CODE § 17200 et 27 seq., Conversion, Trespass to Chattels, Misappropriation of Trade 28 Secrets, Trademark Infringement and Declaratory Relief. Maria was
-4- 1 not named as a defendant to that action. However, paragraph three 2 of the TAC states: 3 Plaintiff is informed and believes, and based thereon alleges, that Maria Elena Dane who is an Officer of 4 Plaintiff BMD Management, LLC, created the company Maria Elena Dane, LLC to hold assets that she illegally and/or 5 improperly transferred to Maria Elena Dane, LLC, which may be the alter ego of Maria Elena Dane(emphasis added). 6 7 A third lawsuit was filed by BMD against Maria on September 8 12, 2012, alleging a single claim for declaratory relief 9 ("Declaratory Relief Action")(BMD Mgmt. LLC v. Dane, Case No. 10 BC492311 (Cal. Super. Ct., Cnty of L.A.)). In that action, BMD 11 sought to have Maria removed as an officer of BMD. 12 B. Postpetition events 13 Maria filed an individual chapter 7 bankruptcy case on 14 October 26, 2012. Her case was reassigned to Judge Robles on 15 January 18, 2013, because Dane LLC had filed a bankruptcy case 16 which was pending before him. 17 On February 15, 2013, the bankruptcy court granted BMD's 18 motion for relief from stay to continue the Declaratory Relief 19 Action against Maria in state court. It also granted BMD relief 20 to continue the LLC Action. 21 1. BMD's first amended complaint 22 On March 18, 2013, BMD filed its first amended complaint 23 against Maria ("FAC"), seeking to except its debt from discharge 24 under § 523(a)(2),5 (a)(4) and (a)(6). BMD also alleged claims 25 5 26 Although not specifically referenced in the FAC, BMD claims that, in addition to a claim under § 523(a)(2)(A), it pled a claim 27 under § 523(a)(2)(B) because Maria's fraud was "committed both orally and in writing." The bankruptcy court did not address 28 continue...
-5- 1 for fraudulent conveyance under § 548, for turnover under § 542, 2 declaratory relief, conversion and fraud.6 The claims were based 3 on the same factual allegation that Maria misappropriated the 4 Assets of BMD and transferred them to Dane LLC. BMD requested 5 damages of no less than $1 million. Attached to the FAC were 6 copies of the December 31 email from Maria's attorney to Barry and 7 the arbitrator's findings in the Arbitration Action. 8 2. Maria's motion to dismiss and BMD's opposition 9 Maria moved to dismiss the FAC under Civil Rule 12(b)(6). 10 She argued that at no time prior to January 23, 2013 (when BMD had 11 filed its original complaint) had BMD ever sued her for the claims 12 alleged in the FAC, namely fraud, breach of fiduciary duty and 13 conversion, and these claims were now either barred by the statute 14 of limitations or belonged to the chapter 7 trustee. Maria argued 15 that the First, Second, Third and Eighth claims for relief (the 16 § 523(a)(2), (a)(4) and (a)(6) claims, and the stand-alone "fraud" 17 claim) had to be filed by either the summer of 2011 or 2012, based 18 on Barry's undisputed assertion that he discovered the facts 19 constituting the fraud, breach of fiduciary duty and/or conversion 20 in the summer of 2008. The Fourth and Fifth claims for relief 21 (fraudulent conveyance under § 548 and turnover under § 542) 22 23 5 ...continue 24 this. We conclude that the FAC failed to plead sufficient facts for a plausible claim under § 523(a)(2)(B). Even if it had, 25 however, this claim would still be subject to the same statute of limitations, which has already expired, as explained below. 26 6 BMD later voluntarily dismissed its Seventh claim for 27 conversion on April 23, 2013, so it could pursue it in state court. Therefore, it was not subject to the dismissal order at 28 issue in this appeal.
-6- 1 arguably belonged solely to the chapter 7 trustee, so Barry lacked 2 standing to assert them. As for the Sixth claim (declaratory 3 relief), Maria argued that BMD had already sued her for this in 4 the Declaratory Relief Action, and the bankruptcy court had 5 terminated the stay so BMD could pursue that claim in state court. 6 BMD opposed the Motion to Dismiss, contending that Maria's 7 statute of limitations arguments failed for four reasons. First, 8 the LLC Action was filed within months of discovering Maria's 9 conduct, and BMD had alleged that Maria was the alter ego of 10 Dane LLC and faced potential liability. Thus, argued BMD, without 11 citing to any authority, the alter ego allegation rendered the 12 § 523(a) claims against her timely. Alternatively, BMD argued 13 that it could get leave to amend the TAC in the LLC Action to add 14 Maria as a defendant, which would relate back to the original 15 filing date and defeat any statute of limitations attack. Second, 16 claims against fiduciaries for their inequitable conduct could be 17 equitably tolled and not subject to a statute of limitations 18 defense. Third, even if BMD was aware of a fraud-based claim, the 19 statute of limitations did not accrue until Maria had completed 20 the "last overt act," which BMD claimed occurred within the 21 limitations period. Lastly, many of Maria's "individual actions" 22 took place in 2012, some of which had occurred after she filed for 23 bankruptcy.7 24 7 25 We are not certain what BMD was arguing here, and the bankruptcy court never addressed it in its tentative or final 26 ruling. BMD appears to be claiming that it was also seeking to except from discharge damages caused by Maria's bad acts that 27 occurred in 2012, some of which perhaps occurred after she filed bankruptcy. If so, this is problematic for two reasons. First, 28 continue...
-7- 1 In addition, BMD argued that it had stated a plausible claim 2 under § 523(a)(2)(A) because Maria obtained BMD's property through 3 her alter ego, Dane LLC, by using false pretenses, which she was 4 able to do solely through her fiduciary role as the officer and 5 manager for BMD running its gym. The FAC had also pled facts for 6 fraudulent concealment, alleging that Maria had concealed from 7 Barry that she was secretly taking the Assets, and a claim for 8 fraudulent business practices, alleging that Maria's practices 9 resulted in injury to BMD. BMD believed it had also alleged a 10 claim under § 523(a)(2)(B), contending that Maria had obtained 11 property through a written statement that was false — i.e., the 12 email to the Train customers. As for BMD's claims under 13 § 523(a)(4) or (a)(6), Maria's argument that BMD and Barry are one 14 and the same had already been rejected by the bankruptcy court in 15 its ruling on the motion for relief from stay and by the state 16 court. Further, BMD and Barry had completely different rights and 17 remedies. Even though Barry could not prove damages in the 18 Arbitration Action, this had no impact on BMD's claims, which 19 could be made for the Assets themselves. Finally, BMD disagreed 20 that only the chapter 7 trustee had standing to bring the Fourth 21 and Fifth claims for fraudulent conveyance and turnover. Attached 22 to BMD's opposition was a request for judicial notice that 23 24 7 ...continue 25 the FAC is based entirely on Maria's bad acts in 2008 and January 2009, when she misappropriated and transferred the Assets to Dane 26 LLC and obtained a new lease for Train; it is not based on anything that purportedly happened in 2012. Second, any bad acts 27 Maria committed after filing bankruptcy would not be subject to discharge or barred by the automatic stay, so BMD may pursue those 28 claims in state court.
-8- 1 included copies of the TAC filed in the LLC Action and Maria's 2 answer. 3 In reply, Maria countered that equitable tolling of the 4 statute of limitations does not apply when the plaintiff has 5 actual notice of the defendant's conduct giving rise to the claim. 6 Here, it was undisputed that Maria gave notice to Barry, BMD's 7 only other member, of her intent to freeze him out of the business 8 on December 31, 2008. Further, argued Maria, Barry had already 9 sued her for this conduct, alleging claims for fraud, breach of 10 fiduciary duty and conversion, yet he dismissed them prior to the 11 binding arbitration. Maria also disputed BMD's "last overt act" 12 argument to toll the applicable deadlines, contending that in the 13 cases cited by BMD, the court only applied the doctrine where the 14 defendant concealed the wrongdoing. Here, Maria concealed 15 nothing. Finally, Maria argued that BMD's allegation in the LLC 16 Action that it may have an alter ego claim against her was 17 insufficient to overcome the statute of limitations problem. 18 3. The bankruptcy court's ruling on the Motion to Dismiss 19 A hearing on Maria's Motion to Dismiss was held on May 7, 20 2013. After announcing its tentative ruling and hearing argument 21 from BMD, the bankruptcy court decided to take the matter under 22 advisement so that it could review and consider two unbriefed 23 cases BMD's counsel raised regarding alter ego claims in 24 California. 25 In the bankruptcy court's tentative ruling, which it 26 ultimately incorporated into its final ruling, it dismissed the 27 First through Fifth claims and the Eighth claim, but denied 28
-9- 1 dismissal of the Sixth claim for declaratory relief.8 The court 2 dismissed with prejudice the First, Second, Third and Eighth 3 claims for relief as barred by the statute of limitations. It 4 reasoned that the debt underlying these § 523 claims was based on 5 the same factual allegation that Maria had misappropriated BMD's 6 Assets and transferred them to Dane LLC. Because Barry, BMD's 7 only other member, admitted that he was aware of Maria's acts to 8 freeze him out of the business in the summer of 2008, his fraud or 9 conversion claims should have been filed within three years, by 10 2011; his breach of fiduciary duty claim should have been filed 11 within four years, by 2012. The court further determined that the 12 TAC in the LLC Action had not asserted a proper alter ego claim 13 against Maria, and thus did not defeat her statute of limitations 14 defense. Moreover, the statutes of limitations were not equitably 15 tolled, as that doctrine applied only where the claimant has 16 actively pursued his judicial remedies by filing a defective 17 pleading during the statutory period, or where the claimant was 18 tricked by the defendant into allowing the filing deadline to 19 pass. Here, while BMD had pursued its claims against Dane LLC, it 20 had not initiated any proceeding against Maria prior to the 21 expiration of the statutes of limitations. Further, nothing in 22 the record indicated that this failure was due to any misconduct 23 by Maria. Finally, the bankruptcy court rejected BMD's contention 24 that its breach of fiduciary duty claim did not accrue during the 25 time the fiduciary duty continued to exist, noting that California 26 courts have recognized a postponement of the accrual only "until 27 8 BMD had already dismissed the Seventh claim for conversion 28 by the time of the hearing on May 7, 2013.
-10- 1 the beneficiary has knowledge or notice of the act constituting a 2 breach of fidelity," citing U.S. Liab. Ins. Co. v. Haidinger- 3 Hayes, Inc., 1 Cal.3d 586, 595 (1970). Here, Barry had knowledge 4 of Maria's acts in 2008, but BMD did not file an action against 5 her until 2013. The bankruptcy court also dismissed with 6 prejudice BMD's Fourth and Fifth claims for fraudulent conveyance 7 and turnover, as such claims belonged exclusively to the chapter 7 8 trustee.9 9 On May 20, 2013, BMD voluntarily dismissed its Sixth claim 10 for declaratory relief so that it could pursue that claim in state 11 court. 12 On June 3, 2013, the bankruptcy court entered its Amended 13 Memorandum Decision and Order granting the Motion to Dismiss in 14 part and denying it in part ("Dismissal Order").10 Finding the 15 authority raised by BMD regarding statute of limitations issues in 16 cases presenting alter ego claims "inapposite," the bankruptcy 17 court determined that BMD's fraud, breach of fiduciary duty and/or 18 conversion claims were not "saved" by the alleged alter ego claim 19 in the LLC Action. The court again found that no alter ego claim 20 was pending against Maria in that action. Alternatively, even if 21 Dane LLC and Maria were viewed as one and the same under an alter 22 ego theory, the court reasoned that the filing of the LLC Action 23 24 9 Both parties filed post-hearing briefing. In its later- issued memorandum decision, the bankruptcy court stated that it 25 had rejected the parties' briefs because no post-hearing briefing was ordered or authorized. Although BMD has included these 26 documents in the record, we did not consider them. 27 10 When the court denied the Motion to Dismiss in part, it apparently was not aware of BMD's voluntary dismissal of the Sixth 28 claim for declaratory relief filed a few weeks earlier.
-11- 1 did not stop the statute of limitations from running against Maria 2 with respect to any fraud, breach of fiduciary duty and/or 3 conversion claims — claims which were not pled in the LLC Action. 4 The bankruptcy court entered an order dismissing BMD's 5 adversary proceeding with prejudice on June 7, 2013. The order 6 stated that only the Fourth and Fifth claims for relief were 7 dismissed with prejudice, despite the bankruptcy court's prior 8 Dismissal Order (in the tentative ruling portion attached) which 9 stated that the First, Second, Third and Eighth claims for relief 10 were also dismissed with prejudice. The adversary proceeding was 11 closed on June 25, 2013. 12 4. Post-ruling events 13 Apparently confused by the court's multiple orders and docket 14 entry closing the adversary proceeding, BMD filed an untimely 15 appeal of the Dismissal Order on June 26, 2013. On June 27, 2013, 16 BMD moved to extend the appeal time or, in the alternative, to 17 amend the FAC based on excusable neglect. On September 5, 2013, 18 the bankruptcy court entered a memorandum decision and order 19 denying BMD's request for leave to amend the FAC, but granting its 20 motion to extend retroactively the time to file a notice of appeal 21 pursuant to Rule 8002(c) and to reopen the adversary proceeding 22 due to the pending appeal. 23 II. JURISDICTION 24 The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 25 and 157(b)(2)(I). We have jurisdiction under 28 U.S.C. § 158. 26 III. ISSUES 27 1. Did the bankruptcy court err in dismissing the FAC under 28 Civil Rule 12(b)(6)?
-12- 1 2. Did the bankruptcy court abuse its discretion in dismissing 2 the FAC without leave to amend? 3 IV. STANDARDS OF REVIEW 4 The bankruptcy court's dismissal of an adversary proceeding 5 for failure to state a claim under Civil Rule 12(b)(6) is reviewed 6 de novo. Barnes v. Belice (In re Belice), 461 B.R. 564, 572 (9th 7 Cir. BAP 2011). A dismissal without leave to amend is reviewed 8 for abuse of discretion. Ditto v. McCurdy, 510 F.3d 1070, 1079 9 (9th Cir. 2007). A bankruptcy court abuses its discretion if it 10 applies an incorrect legal standard or its factual findings are 11 illogical, implausible or without support from evidence in the 12 record. TrafficSchool.com v. Edriver Inc., 653 F.3d 820, 832 (9th 13 Cir. 2011). "Dismissal without leave to amend is improper unless 14 it is clear, upon de novo review, that the complaint could not be 15 saved by any amendment." Thinket Ink Info. Res., Inc. v. Sun 16 Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004)(citation 17 omitted). However, it is not error for the trial court to deny 18 leave to amend where the amendment would be futile. Id. (citing 19 Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991)). 20 V. DISCUSSION 21 A. Civil Rule 12(b)(6) standards 22 Under Civil Rule 12(b)(6), made applicable in adversary 23 proceedings through Rule 7012, a bankruptcy court may dismiss a 24 complaint if it fails to "state a claim upon which relief can be 25 granted." In reviewing a Civil Rule 12(b)(6) motion, the trial 26 court must accept as true all facts alleged in the complaint and 27 draw all reasonable inferences in favor of the plaintiff. Newcal 28 Indus., Inc. v. Ikon Office Solutions, 513 F.3d 1038, 1043 n.2
-13- 1 (9th Cir. 2008). However, the trial court need not accept as 2 true conclusory allegations or legal characterizations cast in the 3 form of factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 4 544, 555-56 (2007); Hartman v. Gilead Scis., Inc. (In re Gilead 5 Scis. Sec. Litig.), 536 F.3d 1049, 1055 (9th Cir. 2008)(court is 6 not required to accept as true "allegations that are merely 7 conclusory, unwarranted deductions of fact, or unreasonable 8 inferences."). Moreover, we do not ignore affirmative defenses to 9 a claim; if the allegations show that relief is barred as a matter 10 of law, the complaint is subject to dismissal. Jones v. Bock, 11 549 U.S. 199, 215 (2007)(dismissal is appropriate under Civil 12 Rule 12(b)(6) if the allegations show that relief is barred by the 13 applicable statute of limitations). 14 To avoid dismissal under Civil Rule 12(b)(6), a plaintiff 15 must aver in the complaint "sufficient factual matter, accepted as 16 true, to 'state a claim to relief that is plausible on its face.'" 17 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Twombly, 18 550 U.S. at 570). It is axiomatic that a claim cannot be 19 plausible when it has no legal basis. A dismissal under Civil 20 Rule 12(b)(6) may be based on either the lack of a cognizable 21 legal theory, or on the absence of sufficient facts alleged under 22 a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 23 LP, 534 F.3d 1116, 1121 (9th Cir. 2008). 24 B. The bankruptcy court did not err in dismissing the FAC. 25 BMD raises a variety of arguments to demonstrate why the 26 Dismissal Order should be reversed. For the most part, BMD simply 27 reasserts the same arguments it raised before the bankruptcy court 28 as opposed to articulating how the court erred. Notably, BMD does
-14- 1 not dispute the bankruptcy court's ruling that the Fourth and 2 Fifth claims for relief were dismissed due to BMD's lack of 3 standing. Therefore, we AFFIRM the Dismissal Order with respect 4 to those claims. See Wake v. Sedona Inst. (In re Sedona Inst.), 5 220 B.R. 74, 76 (9th Cir. 1998)(an issue not briefed is deemed 6 waived). As for the remaining First, Second, Third and Eighth 7 claims for relief, we address each of BMD's arguments in turn. 8 Two distinct issues exist concerning the statute of 9 limitations in a nondischargeability proceeding. First, the 10 establishment of the debt is governed by the applicable state 11 statute of limitations law, which, in this case, is California. 12 Banks v. Gill Distrib. Ctrs., Inc., 263 F.3d 862, 868 (9th Cir. 13 2001)(citation omitted). If the suit is not brought within the 14 time period allotted under state law, the debt cannot be 15 established. Second, the question of dischargeability of the debt 16 is a distinct issue governed solely by the limitations periods 17 established by bankruptcy law, in particular, Rule 4007. Id. 18 Only the first prong is at issue here. 19 BMD's First and Eighth claims for relief assert 20 nondischargeability of a debt due to Maria's alleged fraud. Under 21 CAL. CODE CIV. PROC. § 338(d), fraud actions must be brought within 22 three years and "[t]he cause of action in that case is not to be 23 deemed to have accrued until the discovery, by the aggrieved 24 party, of the facts constituting the fraud or mistake." Thus, the 25 "discovery" rule applies to fraud actions. BMD's Second claim for 26 relief asserts a claim for Maria's alleged breach of fiduciary 27 duty under § 523(a)(4). Breach of fiduciary duty claims are 28 governed by CAL. CODE CIV. PROC. § 343 and are subject to a
-15- 1 four-year statute of limitations. See David Welch Co. v. Erskine 2 & Tulley, 203 Cal.App.3d 884, 893 (1988). Finally, BMD's Third 3 claim for relief asserts a claim under § 523(a)(6) for "fraudulent 4 conveyance - actual intent." However, the facts alleged suggest a 5 conversion claim. A claim for conversion is governed by CAL. CODE 6 CIV. PROC. § 338 and is subject to a three-year statute of 7 limitations. See Minsky v. City of L.A., 11 Cal.3d 113, 120 n.6 8 (1974). Notably, BMD dismissed its conversion claim — its Seventh 9 claim for relief — prior to the bankruptcy court's ruling on the 10 Motion to Dismiss. However, even if the Third claim were a claim 11 for actual fraudulent transfer, in this case the statute of 12 limitations is four years.11 13 BMD first contends the bankruptcy court misapplied the rule 14 that all factual allegations in the complaint are to be accepted 15 as true for purposes of reviewing a motion to dismiss under Civil 16 Rule 12(b)(6). Specifically, BMD contends that it had alleged in 17 the TAC in the LLC Action that Dane LLC is the alter ego of Maria. 18 Therefore, the bankruptcy court had to accept this fact as true. 19 The only reference within the TAC as to any alter ego claim 20 against Maria is in paragraph three, which states that "Maria 21 Elena Dane, LLC may be the alter ego of Maria Elena Dane." This 22 statement is not a "fact" but rather a legal characterization cast 23 in the form of a factual allegation. Twombly, 550 U.S. at 555-56. 24 25 11 CAL. CIV. CODE § 3439.09 provides that no action may be brought for fraudulent transfer more than seven (7) years after 26 the transfer was made notwithstanding any other provision of law. Where actual intent to defraud can be shown under § 3439.04(a)(1), 27 an action must be brought within four years after the transfer was made, or, if later, within one year of when the transfer was or 28 could reasonably have been discovered by the claimant.
-16- 1 As such, the bankruptcy court did not have to accept it as true. 2 BMD next contends the bankruptcy court erred in determining 3 that its alter ego allegation in the LLC Action was insufficient 4 to save its claims from Maria's statute of limitations defense. 5 In short, BMD argues that because it filed the LLC Action within 6 months after Maria transferred BMD's Assets to Dane LLC, and 7 because BMD alleged an alter ego claim in that action, the claims 8 in the nondischargeability action were not barred by the statute 9 of limitations. 10 Under California law, "there is no such thing as a 11 substantive alter ego claim . . . ." Ahcom, Ltd. v. Smeding, 12 623 F.3d 1248, 1251 (9th Cir. 2010). A claim against a defendant, 13 based on the alter ego theory, is not itself a claim for 14 substantive relief, e.g., breach of contract or to set aside a 15 fraudulent conveyance. Hennessey's Tavern, Inc. v. Am. Air Filter 16 Co., 204 Cal.App.3d 1351, 1359 (1988). Rather, it is a procedural 17 device by which courts will disregard the corporate entity in 18 order to hold the alter ego individual liable on the obligations 19 of the corporation. Id. Before the doctrine may be invoked, two 20 elements must be alleged: (1) there is such unity of interest and 21 ownership that the separate personalities of the individual and 22 the corporation no longer exist; and (2) that, if the acts in 23 question are treated as those of the corporation alone, an 24 inequitable result will follow. Neilson v. Union Bank of Cal., 25 N.A., 290 F.Supp.2d 1101, 1115 (C.D. Cal. 2003); Sonora Diamond 26 Corp. v. Super. Ct., 83 Cal.App.4th 523, 538 (2000). "Conclusory 27 allegations of 'alter ego' status are insufficient to state a 28 claim. Rather, a plaintiff must allege specifically both of the
-17- 1 elements of alter ego liability, as well as facts supporting 2 each." Neilson, 290 F.Supp.2d at 1116 (citations omitted); Hokama 3 v. E.F. Hutton & Co., Inc., 566 F.Supp. 636, 647 (C.D. Cal. 1983) 4 ("Defendants further argue that plaintiffs cannot circumvent the 5 requirements for secondary liability by blandly alleging that 6 Madgett, Consolidated, and Frane are 'alter egos' of other 7 defendants accused of committing primary violations. This point 8 is well taken . . . . If plaintiffs wish to pursue such a theory 9 of liability, they must allege the elements of the doctrine. 10 Conclusory allegations of alter ego status such as those made in 11 the present complaint are not sufficient.”). See also Leek v. 12 Cooper, 194 Cal.App.4th 399, 414-15 (2011)(recognizing split in 13 California authority as to whether alter ego doctrine must be 14 pleaded in the complaint, but holding that when the court is asked 15 to take some action upon an alter ego theory at the pleadings 16 stage, plaintiff must allege facts to show a unity of interest and 17 ownership and an unjust result if the corporation is treated as 18 the sole actor)(citations omitted). 19 The TAC filed in the LLC Action contains only one conclusory 20 allegation that Maria may be the alter ego of Dane LLC. It fails 21 to allege any facts establishing either one of the two elements 22 necessary to invoke the doctrine. While the TAC asserts facts 23 that establish Maria as the sole owner of Dane LLC and of her 24 participation in transferring BMD's Assets to Dane LLC, it does 25 not assert any allegation as to how, when or why the separateness 26 between Maria and Dane LLC ceased to exist, or why the corporate 27 entity should be disregarded. More importantly, the TAC does not 28 allege that fraud or injustice will result if Maria is not a party
-18- 1 to the LLC Action. "The allegation that a corporation is the 2 alter ego of the individual stockholders is insufficient to 3 justify the court in disregarding the corporate entity in the 4 absence of allegations of facts from which it appears that justice 5 cannot otherwise be accomplished." Meadows v. Emett & Chandler, 6 99 Cal.App.2d 496, 498-99 (1950)(quoting Norins Realty Co. v. 7 Consol. Abstract & Title Guar. Co., 80 Cal.App.2d 879, 883 8 (1947)). In order to rely on the theory of alter ego "it must be 9 alleged and proved that the stockholders and the corporate entity 10 are the business conduits and alter ego of one another, and that 11 to recognize their separate entities would aid the consummation of 12 a wrong." Id. at 499 (“The rule is firmly settled that no 13 reliance can be had on this [alter ego] theory in the absence of 14 pleading that recognition of the corporate entity would sanction a 15 fraud or promote injustice.”)(emphasis in original). We conclude 16 that the elements of alter ego were not sufficiently pled in the 17 TAC, and so we agree with the bankruptcy court that no alter ego 18 claim is pending against Maria in the LLC Action. 19 Because the TAC did not establish an alter ego claim against 20 Maria, it would have to be amended a fourth time to add her as a 21 new defendant. "When a defendant is first named in an amended 22 complaint, and is alleged to be the alter ego of a defendant named 23 in the original complaint, he is brought into the action as a new 24 defendant and the action is commenced as to him at the time the 25 amended complaint naming him is filed." Hennessey's Tavern, Inc., 26 204 Cal.App.3d at 1359. As a general rule, "an amended complaint 27 that adds a new defendant does not relate back to the date of 28 filing the original complaint and the statute of limitations is
-19- 1 applied as of the date the amended complaint is filed, not the 2 date the original complaint is filed." Woo v. Super. Ct., 3 75 Cal.App.4th 169, 176 (1999)(string citations omitted). 4 Further, an "amendment after the statute of limitations has run 5 will not be permitted when the result is the addition of a party 6 who, up to the time of the proposed amendment, was neither a named 7 nor a fictitiously designated party to the proceeding." Ingram v. 8 Super. Ct., 98 Cal.App.3d 483, 492 (1979)(citing Stephens v. 9 Berry, 249 Cal.App.2d 474, 478 (1967)). Presuming BMD could even 10 amend the TAC at this point to add Maria, the result is the same — 11 the statutes of limitations for claims of fraud, breach of 12 fiduciary duty, conversion or actual fraudulent transfer have run. 13 While California law allows a plaintiff to bring an action 14 against an alter ego defendant after the statute of limitations 15 has expired in certain circumstances, such as after a judgment has 16 been entered, that situation is not applicable here. See CAL. CODE 17 CIV. PROC. § 187 (judgment creditor may be able to amend the 18 judgment to add non-party alter ego defendant as a judgment debtor 19 and enforce the judgment against that debtor); Most Worshipful 20 Sons of Light Grand Lodge Ancient Free and Accepted Masons v. Sons 21 of Light Lodge No. 9, 160 Cal.App.2d 560, 546-67, 569 (1958). 22 First, no judgment has been entered in the LLC Action. Second, 23 BMD could never add Maria as an alter ego defendant after judgment 24 because it was aware of Maria's existence before trial. Jines v. 25 Abarbanel, 77 Cal.App.3d 702, 717 (1978)(holding that trial court 26 erred by amending judgment against a doctor to add his corporation 27 as a judgment debtor because plaintiff was aware of corporation's 28 existence before trial). Thus, BMD did not preserve any
-20- 1 post-judgment right under CAL. CODE CIV. PROC. § 187 to add her as an 2 alter ego defendant. 3 We disagree with BMD that it could amend the TAC in the 4 LLC Action to add Maria as a "Doe" defendant to overcome the 5 statute of limitations problem. Under CAL. CODE CIV. PROC. § 474, 6 "an amended complaint substituting a new defendant for a 7 fictitious Doe defendant filed after the statute of limitations 8 has expired is deemed filed as of the date the original complaint 9 was filed." Woo, 75 Cal.App.4th at 176 (citing Austin v. Mass. 10 Bonding & Ins. Co., 56 Cal.2d 596, 599 (1961)). However, this 11 exception to the general rule has a caveat — the plaintiff must 12 have been genuinely ignorant of the Doe defendant's identity at 13 the time it filed its original complaint. Id. at 177 (citations 14 omitted). BMD was well aware of its potential claims against 15 Maria when it filed its original complaint in the LLC Action in 16 2009, yet it chose not to pursue them. As such, CAL. CODE CIV. 17 PROC. § 474 would not apply. 18 BMD alternatively argues that the statutes of limitations 19 should be equitably tolled because of Maria's alleged self-dealing 20 as a corporate fiduciary. It further argues that Maria's 21 "continuous wrongs" or "last overt act," some of which BMD 22 contends occurred within the statute of limitations, prevents her 23 from raising any statute of limitations defense. In actions where 24 the federal court borrows the state statute of limitation, the 25 court also borrows all applicable provisions for tolling the 26 limitations period found under state law. Cervantes v. City of 27 San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993). 28 Without question, Maria owed a fiduciary duty to Barry as a
-21- 1 co-member of BMD. BMD cites to U.S. Liab. Ins. Co. v. Haidinger- 2 Hayes, Inc., 1 Cal.3d 586 (1970), for the proposition that no 3 claim accrues during the time the fiduciary relationship continues 4 to exist. BMD contends that Maria breached and continues to 5 breach her fiduciary duty to BMD because she has usurped corporate 6 opportunities and taken corporate assets as her own. BMD has 7 several problems here. First, as recognized by the bankruptcy 8 court, the California Supreme Court in Haidinger-Hayes, Inc. noted 9 that accrual of a cause of action involving a fiduciary is only 10 postponed "until the beneficiary has knowledge or notice of the 11 act constituting a breach of fidelity." Id. at 596 (string citing 12 cases). Here, Barry was on actual notice of Maria's subject 13 actions in 2008 and January 2009. In addition, the facts alleged 14 in the FAC speak only of Maria's acts of misappropriating BMD's 15 Assets and transferring them to Dane LLC in December 2008, her 16 obtaining a lease from the landlord around that same time, and her 17 email to the trainers on January 1, 2009. Although BMD alleged in 18 its opposition to the Motion to Dismiss that Maria had engaged in 19 "multiple diversions of money," no facts about these alleged 20 diversions were specifically pled in the FAC. A plaintiff's 21 memorandum in opposition to a Civil Rule 12(b)(6) motion cannot 22 serve to supplement or amend the complaint. See Gomez v. Ill. 23 State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987). Finally, 24 equitable tolling would not apply here because BMD did not 25 actively pursue the claims at issue against Maria within the 26 statutory period, and nothing in the record shows that BMD's delay 27 in suing her was due to her misconduct. See O'Donnell v. Vencor 28 Inc., 465 F.3d 1063, 1068 (9th Cir. 2006).
-22- 1 Accordingly, because the FAC failed to establish plausible 2 claims for relief under § 523(a), the bankruptcy court did not err 3 in granting the Motion to Dismiss. 4 C. The bankruptcy court did not abuse its discretion in dismissing the FAC without leave to amend. 5 6 Under Civil Rule 15(a)(2), applicable here by Rule 7015, BMD 7 could amend its FAC only with Maria's consent, or with the 8 bankruptcy court's leave. BMD contends that leave should have 9 been given in this case, particularly since BMD voluntarily 10 dismissed two causes of action, which the bankruptcy court 11 intimated would have "saved" the FAC. We assume BMD means its 12 Sixth and Seventh claims for declaratory relief and conversion, 13 but BMD does not show where the bankruptcy court "intimated" that 14 these claims would have saved the FAC. Actually, the Seventh 15 claim was dismissed before the bankruptcy court could even rule on 16 it and, for whatever reason, BMD chose to dismiss the Sixth claim 17 after the bankruptcy court issued its tentative ruling. BMD 18 contends that it should have, at minimum, been permitted to 19 reinstate its Sixth claim, which it argues the bankruptcy court 20 found had merit. 21 BMD did not ask for an opportunity to amend the FAC until 22 after the adversary proceeding had been dismissed with prejudice 23 and the appeal of the Dismissal Order had been filed. The 24 bankruptcy court denied that request for two reasons, as explained 25 in its August 20 tentative ruling, which it incorporated into its 26 final memorandum and order entered on September 5, 2013. First, 27 BMD had already amended its complaint once, and it failed to 28 demonstrate entitlement for leave to file a second amendment.
-23- 1 Although the court did not articulate why BMD had failed to show 2 that leave was warranted under Civil Rule 15, we infer from the 3 record that its decision was based on BMD's inability to remedy 4 the statute of limitations problem. The trial court does not err 5 in denying leave to amend where the amendment would be futile. 6 Thinket Ink Info. Res., Inc., 368 F.3d at 1061. Second, the court 7 found that it made little sense to consider a request to amend 8 when BMD had already filed its notice of appeal (albeit, untimely, 9 but not yet dismissed) of the Dismissal Order. We discern no 10 abuse of discretion in that ruling. In addition, we find BMD's 11 argument that the bankruptcy court abused its discretion by not 12 allowing BMD to reinstate its Sixth claim without merit, when BMD 13 consciously chose to dismiss that claim to pursue it in state 14 court. 15 VI. CONCLUSION 16 For the foregoing reasons, we AFFIRM. 17 18 19 20 21 22 23 24 25 26 27 28
-24-