                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUL 21 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

GARY KREMEN,                                    No. 13-16101

              Plaintiff - Appellant,            D.C. No. 11-CV-05411-LHK

  v.
                                                MEMORANDUM*
MICHAEL JOSEPH COHEN, an
individual, and FNBPAY
CORPORATION, an Arizona
corporation,

              Defendants - Appellees,


                   Appeal from the United States District Court
                     for the Northern District of California
                     Lucy H. Koh, District Judge, Presiding

                        Argued and Submitted July 8, 2015
                            San Francisco, California

Before: TALLMAN, M. SMITH, and MURGUIA, Circuit Judges.

       Plaintiff-Appellant Gary Kremen filed suit against Defendants-Appellees

Michael Cohen (M. Cohen) and FNBPay Corporation (FNBPay), alleging four

causes of action for fraud. Kremen claims that Stephen Cohen (S. Cohen)


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
transferred money to M. Cohen in violation of the California Fraudulent Transfer

Act (CUFTA), Cal. Civil Code § 3439.04, and California common law. The

district court granted summary judgment to M. Cohen, and we affirm the decision

of the district court.

       1. Kremen’s notice of appeal was timely. After granting defendants’

motion for summary judgment, the court did not enter a separate judgment, as

required by Federal Rule of Civil Procedure 58. For that reason, the judgment

became final 150 days after the district court issued its summary judgment order.

See Fed. R. Civ. P. 58(c)(2)(B); Fed R. App. P. 4(a)(7)(A)(ii); Stephanie-Cardona

LLC v. Smith’s Food & Drug Ctrs., Inc., 476 F.3d 701, 703-04 (9th Cir. 2007).

Kremen’s notice of appeal, which he filed 149 days after entry of the summary

judgment order, was timely.

       2. The district court properly granted summary judgment to M. Cohen on

Kremen’s CUFTA claims because the fraudulent acts alleged by Kremen either do

not constitute a “transfer” under CUFTA, or do not carry the requisite fraudulent

intent. See Filip v. Bucurenciu, 28 Cal. Rptr. 3d 884, 887 (Cal. Ct. App. 2005) (“A

fraudulent conveyance under the [C]UFTA involves a transfer by the debtor of

property to a third person undertaken with the intent to prevent a creditor from

reaching that interest to satisfy its claim.” (internal quotation marks omitted)).


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      First, Kremen does not provide evidence that a $22.55 transfer from S.

Cohen’s credit card to a PayPal account owned by M. Cohen was made with the

“intent to hinder, delay, or defraud” Kremen in collecting a judgment totaling more

than $65 million. See Cal. Civil Code § 3439.04(a)(1).

      Second, Kremen does not sufficiently establish that transfers from Baja

Datacenter and Medicina Mexico—two Mexican companies—to M. Cohen’s

PayPal account were in fact transfers from S. Cohen to M. Cohen. The evidence

offered by Kremen only supports the inference that S. Cohen had some connection

to Baja Datacenter and Medicina Mexico. Kremen does not show that S. Cohen

operated the companies as his alter egos. See S.E.C. v. Hickey, 322 F.3d 1123,

1130 (9th Cir. 2003) (“[A]n individual must own at least a portion of a corporation

before an alter ego relationship is deemed to exist under California law.”).

      Third, Kremen’s evidence does not show that small transfers to M. Cohen

from Daniel Cohen, S. Cohen’s son, and Mario Saucedo, S. Cohen’s business

associate, were in fact transfers from S. Cohen to M. Cohen. Again, absent

evidence of such a transfer, Kremen’s CUFTA claim fails. See Renda v. Nevarez,

167 Cal. Rptr. 3d 874, 876 (Cal. Ct. App. 2014) (discussing CUFTA’s transfer

requirement).

      3. Finally, Kremen’s allegation that M. Cohen and S. Cohen conspired to


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violate CUFTA does not save Kremen’s claim. Under California law, “[a] civil

conspiracy however atrocious, does not per se give rise to a cause of action unless

a civil wrong has been committed resulting in damage.” Doctors’ Co. v. Superior

Court, 775 P.2d 508, 510 (Cal. 1989). Kremen has not alleged facts sufficient to

establish an underlying CUFTA violation, so there is no liability for conspiracy.

      4. Because the elements for a fraudulent transfer under California common

law are the same as under CUFTA, see Cortez v. Vogt, 60 Cal. Rptr. 2d 841, 847-

48 (Cal. App. Ct. 1997), Kremen’s common law claim also fails.

AFFIRMED.




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