                                                           FILED
                                                             JUN 26 2017
 1                         NOT FOR PUBLICATION
                                                        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-16-1380-KuFTa
                                   )
 6   MARDIROS HAIG MIHRANIAN,      )      Bk. No.    2:13-bk-39026-BR
                                   )
 7                  Debtor.        )      Adv. No.   2:15-ap-01667-BR
     ______________________________)
 8                                 )
     SAM S. LESLIE, Chapter 7      )
 9   Trustee,                      )
                                   )
10                  Appellant,     )
                                   )
11   v.                            )      MEMORANDUM*
                                   )
12   SUSAN CHOBANIAN,              )
                                   )
13                  Appellee.      )
     ______________________________)
14
                      Argued and Submitted on May 18, 2017
15                           at Pasadena, California
16                           Filed – June 26, 2017
17               Appeal from the United States Bankruptcy Court
                     for the Central District of California
18
              Honorable Barry Russell, Bankruptcy Judge, Presiding
19
     Appearances:     Robert Michael Aronson, on brief, for appellant;
20                    David B. Golubchik of Levene, Neale, Bender, Yoo &
                      Brill LLP argued for appellee.
21
22   Before: KURTZ, FARIS and TAYLOR, Bankruptcy Judges.
23
24
25
26        *
           This disposition is not appropriate for publication.
27   Although it may be cited for whatever persuasive value it may
     have (see Fed. R. App. P. 32.1), it has no precedential value.
28   See 9th Cir. BAP Rule 8024-1.
 1                                INTRODUCTION
 2            Chapter 71 trustee Sam S. Leslie appeals from an order
 3   dismissing with prejudice his third amended fraudulent transfer
 4   complaint against Susan Chobanian - debtor's former wife and a
 5   medical doctor with whom the debtor shared a medical practice.
 6        The central issue in this appeal is whether Leslie
 7   adequately alleged that the debtor Mardiros Haig Mihranian had an
 8   interest in the funds allegedly transferred to Susan.     Unless
 9   Leslie alleged sufficient facts that, when taken as true,
10   plausibly demonstrated Mihranian’s interest in the transferred
11   funds, Leslie failed to state a claim for relief under either
12   § 544 or § 548.
13        We agree with the bankruptcy court that Leslie did not
14   allege sufficient facts regarding Mihranian’s interest in those
15   funds.     The general “story” in Leslie’s complaint informs us that
16   Mihranian (and his now ex-wife Susan) diverted funds from
17   Mihranian’s wholly-owned incorporated medical practice to the
18   defendants.     Leslie has never posited – in the bankruptcy court
19   or on appeal – any viable legal theory why funds diverted from
20   Mihranian’s incorporated medical practice plausibly could be
21   identified as belonging to him as opposed to his corporation.
22        We also agree with the bankruptcy court’s decision to
23   dismiss the third amended complaint with prejudice.     In total,
24   Leslie availed himself of four attempts – four opportunities – to
25
          1
26         Unless specified otherwise, all chapter and section
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
27   all "Rule" references are to the Federal Rules of Bankruptcy
     Procedure, Rules 1001-9037. All "Civil Rule" references are to
28   the Federal Rules of Civil Procedure.

                                        2
 1   state adequate fraudulent transfer claims.    In addition, Leslie
 2   has admitted that he conducted extensive pre-adversary-proceeding
 3   discovery under Rule 2004, which discovery included both
 4   depositions and document requests, and has not disputed that he
 5   hired professionals who (among other things) were assigned the
 6   task of identifying the source of transferred funds.    Yet, in all
 7   of the versions of his complaint, Leslie never stated a coherent
 8   set of facts plausibly identifying Mihranian’s pre-transfer
 9   interest in the alleged fraudulently transferred funds.    Under
10   these circumstances, the bankruptcy court did not err in
11   concluding that Leslie could not or would not plausibly identify
12   Mihranian’s pre-transfer interest in the subject funds, and thus
13   the court did not abuse its discretion in dismissing the third
14   amended complaint without leave to amend.
15        Accordingly, we AFFIRM.
16                                   FACTS
17        Leslie’s adversary proceeding sought to avoid and recover
18   alleged fraudulent transfers under federal and California law
19   based on §§ 544 and 548 and Cal. Civ. Code §§ 3439.04 and
20   3439.05.    This is one of four similarly-pled adversary
21   proceedings.    The bankruptcy court dismissed all four with
22   prejudice, and all four are on appeal on identical grounds.     Each
23   complaint names a different individual defendant who allegedly
24   received a different series of fraudulently-transferred funds.
25        The history of complaints and responses informs our
26   analysis.    Leslie filed his first amended complaint against
27   Susan, without any prompting from the bankruptcy court, within
28   several weeks of the commencement of the adversary proceeding.

                                       3
 1   Susan responded to the first amended complaint by filing a Civil
 2   Rule 12(b)(6) motion to dismiss.       Susan pointed out that Leslie’s
 3   fraudulent transfer allegations did little more than state in
 4   conclusory fashion the elements for fraudulent transfer claims
 5   and did nothing to advise Susan of the specific transactions
 6   Leslie claimed constituted fraudulent transfers.
 7        The bankruptcy court in large part granted the motion to
 8   dismiss.    The bankruptcy court dismissed without prejudice
 9   Leslie’s fourth claim for relief seeking an accounting and fifth
10   claim for relief seeking disallowance of any proof of claim filed
11   by Susan.    The bankruptcy court also dismissed without prejudice
12   Leslie’s first and second claims for relief to the extent they
13   alleged actual fraudulent transfers.      To the extent the first and
14   second claims for relief alleged constructive fraudulent
15   transfers, the bankruptcy court’s order on the motion to dismiss
16   merely required more specificity, as follows:
17        On the first and second causes of action in the
          Complaint for constructive fraud, the claims shall be
18        amended to be pled with more specificity, including,
          without limitation, the source of the alleged
19        transfer(s), the identity of the alleged transferor(s),
          the date(s) of the alleged transfer(s), and the amount
20        of the respective transfer(s) . . . .
21   Order re Motion to Dismiss (Apr. 14, 2016) at p. 2.      We do not
22   know the reasons the bankruptcy court offered for its ruling
23   because neither party provided us with the transcript of the
24   March 29, 2016 hearing on the motion to dismiss.2
25
          2
26         Susan’s motion did not address Leslie’s third claim for
     relief seeking to recover the alleged fraudulent transfers for
27   the benefit of the estate under §§ 550 and 551. Nor did the
     bankruptcy court’s April 14, 2016 order. On its face, this claim
28                                                      (continued...)

                                        4
 1        Leslie’s second amended complaint contained more detail.    It
 2   alleged that Mihranian and his spouse Susan3 engaged in a scheme
 3   to divert earnings from their shared medical practice to the
 4   various third-party defendants – including Susan – for the
 5   purpose of keeping their earnings away from their judgment
 6   creditors, two of whom are specifically identified in the
 7   complaint.
 8        On one hand, the second amended complaint alleged that
 9   Mihranian and Susan practiced medicine through a California
10   professional medical corporation known as Medical Clinic &
11   Surgical Specialties of Glendale, Inc. (“MCSSG”).    On the other
12   hand, the complaint perhaps suggested that Mihranian and Susan
13   sometimes provided medical services on their own account and not
14   through MCSSG.   The second amended complaint did not specify
15   which funds transferred originally were payments for services
16   provided through MCSSG and which (if any) were payments for
17   services provided by the two doctors individually.
18
19
          2
           (...continued)
20   for recovery of avoided transfers has no independent effect in
     the absence of a viable claim to avoid the transfers.
21
          3
           Susan asserts that she and Mihranian separated in 1998,
22
     divorced in 2015, and did not accrue any community property after
23   the 1998 separation date pursuant to Cal. Fam. Code § 771(a).
     Leslie alleged that Mihranian and Susan did not really separate
24   in 1998, that the couple continued to work together and live
     together after 1998, and that the couple only feigned separation
25   for the purpose of furthering their scheme to keep Mihranian’s
26   assets away from his creditors. The bankruptcy court ultimately
     ruled that Leslie had alleged sufficient facts challenging the
27   purported separation, and Susan did not cross-appeal this ruling.
     We further discuss the issue concerning the couple’s marital
28   status near the end of this decision.

                                      5
 1        The second amended complaint then sets forth several
 2   paragraphs of allegations stating that some $2 million in
 3   payments for the two doctors’ medical services were shuttled back
 4   and forth between Susan and Haig Leo Mihranian – one of her sons.
 5   However, none of these allegations clarify who held the medical
 6   service payments before Susan began shuttling them back and
 7   forth, nor do they clarify who “owned” the right to the payments
 8   at the time the medical services were paid for.
 9        The second amended complaint then, in conclusory fashion,
10   identifies the $2 million as money “debtor” allegedly transferred
11   to Susan.   But it is impossible to tell from the complaint what
12   portion of this amount originally was payment for services
13   provided through MCSSG and what portion of this amount (if any)
14   originally was payment for services provided by the two doctors
15   individually – or who held these funds before they allegedly were
16   transferred to Susan.
17        After she received the second amended complaint, Susan
18   contacted Leslie and urged Leslie to provide more specificity
19   regarding the alleged fraudulent transfers.   Susan pointed out
20   that the second amended complaint did not specify “the source of
21   the alleged transfer(s), the identity of the alleged
22   transferor(s), the date(s) of the alleged transfer(s), and the
23   amount of the respective transfer(s)” as directed in the
24   bankruptcy court’s April 14, 2016 order.   In response, Leslie
25   filed his third amended complaint.
26        There were only two significant differences between the
27   second amended complaint and the third amended complaint.    Most
28   notably, the third amended complaint added two exhibits providing

                                      6
 1   some detailed information regarding each of the alleged
 2   fraudulent transfers.   Exhibit A was entitled “Detail Of 544
 3   Transfers” and itemized in two columns the “Date” of each alleged
 4   transfer and the “Deposit” amount of each alleged transfer.
 5   Exhibit A did not identify the source of each alleged transfer or
 6   the identity of the alleged transferor.   Nor is there any way to
 7   tell who provided the services generating these funds.
 8   Furthermore, Leslie’s third amended complaint never explained the
 9   relationship or connection (if any) between the $319,981.58 in
10   transfers identified in Exhibit A and the $2 million in funds
11   allegedly shuttled back and forth between Susan and her son Haig.
12        Exhibit B was entitled “Detail Of 548 Transfers” and set
13   forth specific information regarding dates and deposit amounts in
14   the same format as Exhibit A.4
15        The other significant change between the second amended
16   complaint and the third amended complaint concerned the aggregate
17   amount of fraudulent transfers alleged.   Whereas the second
18   amended complaint alleged an aggregrate amount of roughly
19   $2 million in alleged fraudulent transfers to Susan, the third
20   amended complaint only alleged an aggregrate amount of
21   $319,981.58 in such transfers.
22        Susan moved to dismiss the third amended complaint.    Susan
23   asserted that the third amended complaint did not satisfy the
24   specificity requirement of the bankruptcy court’s April 14, 2016
25
          4
26         Susan argued that Exhibits A and B incorrectly identified
     the “deposit” dates instead of the transfer dates, but this
27   argument reads the Exhibits in an overly narrow manner. In any
     event, the bankruptcy court did not adopt this argument when it
28   dismissed Leslie’s third amended complaint.

                                      7
 1   order and also did not satisfy the requirements for pleading
 2   claims for relief under Civil Rules 8(a) and 9(b), Ashcroft v.
 3   Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly,
 4   550 U.S. 544 (2007).
 5        At the hearing on the motion to dismiss the third amended
 6   complaint, the bankruptcy court primarily focused on one issue.
 7   According to the court, it directed Leslie both at the March 29,
 8   2016 dismissal motion hearing and in its April 14, 2016 order to
 9   specifically identify the transferor of each transfer.   The court
10   explained that it made a big difference whether the source of the
11   fraudulently transferred funds was Mihranian, his former wife
12   Susan, MCSSG, or some other person or entity.   The following
13   statement is representative of the court’s comments:
14        I was very specific last time we were here. I wanted
          you to be specific. Now who actually physically made
15        the transfer at that moment? Was it the Debtor, was it
          the ex-wife? And that was -- was that -- did you not
16        understand that that was the whole purpose of my order?
17   Hr’g Tr. (Sept. 27, 2016) 10:24-11:3.
18        Similarly, the court later on made it clear that it was
19   dismissing the third amended complaint because Leslie did not
20   provide the specific information regarding who was the
21   transferor:
22        THE COURT: But the difference is I have ordered you
          twice, I think,5 to be more specific as to the Debtor,
23        the ex-wife, now ex-wife, the business. I ordered you,
          and you didn't do it. I can't figure out why, but you
24        didn't do it.
25        MR. ARONSON: Your Honor, I thought that I complied with
26
          5
27         The record reflects that the court only issued one order
     requiring Leslie to provide more specific information regarding
28   the alleged fraudulent transfers – the April 14, 2016 order.

                                     8
 1        the Court's order.
 2        THE COURT: You're a bright guy. Good lord. I can't
          imagine that you actually -- if you did, it's tunnel
 3        vision, and you really should have asked somebody else.
 4        I am going to grant the motion. This is, you know, you
          -- I made it absolutely clear. You didn't do it. And
 5        I am going to dismiss it.
 6   Hr’g Tr. (Sept. 27, 2016) 30:24-31:11.
 7        On October 14, 2016, the bankruptcy court entered its order
 8   dismissing with prejudice Leslie’s third amended complaint, and
 9   Leslie timely appealed.
10                                JURISDICTION
11        The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
12   §§ 1334 and 157, and we have jurisdiction under 28 U.S.C. § 158.
13                                    ISSUE
14        Did the bankruptcy court commit reversible error when it
15   dismissed Leslie’s third amended complaint without leave to
16   amend?
17                             STANDARDS OF REVIEW
18        We review de novo orders dismissing complaints for failure
19   to state a claim.   See Levitt v. Yelp! Inc., 765 F.3d 1123, 1126
20   (9th Cir. 2014).
21        Denial of leave to amend is reviewed for an abuse of
22   discretion.   See Gonzalez v. Planned Parenthood of L.A., 759 F.3d
23   1112, 1114 (9th Cir. 2014).
24        The bankruptcy court abuses its discretion if it applies an
25   incorrect legal standard or its findings of fact are clearly
26   erroneous.    Fear v. U.S. Tr. (In re Ruiz), 541 B.R. 892, 896 (9th
27   Cir. BAP 2015).
28

                                        9
 1                               DISCUSSION
 2        Leslie contends that the bankruptcy court erred in several
 3   different ways when it dismissed his third amended complaint with
 4   prejudice.   Leslie asserts that the bankruptcy court erroneously
 5   determined that the third amended complaint did not satisfy the
 6   requirements of Civil Rules 8(a) and 9(b).   Leslie further
 7   maintains that the bankruptcy court erroneously required greater
 8   specificity regarding each of the alleged fraudulent transfers
 9   than either of those Civil Rules require.    Leslie also contends
10   that the bankruptcy court erroneously denied him leave to amend.
11   We will address each of these asserted errors in turn.6
12        As a threshold matter, it is important to note Leslie based
13   all of his fraudulent transfer claims on the theory that
14   Mihranian and his then-wife Susan improperly diverted funds from
15   the couple’s shared medical practice. (3rd Am. Compl. at ¶¶ 7,
16   14, 18.)   That is what Leslie said in his third amended
17   complaint, and that is what Leslie repeatedly said in his opening
18   appellate brief.   (Aplt. Opn. Br. at pp. 10-11, 26-28.)   Leslie
19   has not advanced on appeal any alternate theories or arguments
20   underlying his fraudulent transfer claims, and we decline to look
21   beyond what Leslie actually has argued.   See Christian Legal
22   Soc'y v. Wu, 626 F.3d 483, 487–88 (9th Cir. 2010) (declining to
23   address matters not specifically and distinctly discussed in the
24
          6
           In his opening appellate brief, Leslie purported to
25   identify an additional argument challenging the bankruptcy
26   court’s decision: that the bankruptcy erred in determining that
     his third amended complaint did not satisfy the bankruptcy
27   court’s heightened specificity requirements. Our discussion of
     the first two arguments set forth above addresses and disposes of
28   this additional argument.

                                     10
 1   appellant’s opening brief); Brownfield v. City of Yakima,
 2   612 F.3d 1140, 1149 n.4 (9th Cir. 2010) (same).    With this
 3   limitation on our review in mind, we will turn our attention to
 4   the so-called errors Leslie has attributed to the bankruptcy
 5   court’s decision.
 6   A.   Civil Rule 8(a) and Civil Rule 9(b) Pleading Requirements
 7        Civil Rule 8(a) requires pleadings to set forth “a short and
 8   plain statement of the claim showing that the pleader is entitled
 9   to relief.”    A claim is the “aggregate of operative facts which
10   give rise to a right enforceable in the courts.”    Bautista v. Los
11   Angeles Cty., 216 F.3d 837, 840 (9th Cir. 2000) (citing Original
12   Ballet Russe, Ltd. v. Ballet Theatre, Inc., 133 F.2d 187, 189 (2d
13   Cir. 1943)).
14        As the Supreme Court has explained:
15        a complaint must contain sufficient factual matter,
          accepted as true, to state a claim to relief that is
16        plausible on its face. . . . A claim has facial
          plausibility when the plaintiff pleads factual content
17        that allows the court to draw the reasonable inference
          that the defendant is liable for the misconduct
18        alleged. . . . Threadbare recitals of the elements of
          a cause of action, supported by mere conclusory
19        statements, do not suffice.
20   Iqbal, 556 U.S. at 678 (citations and internal quotation marks
21   omitted).   The Ninth Circuit Court of Appeals has observed that
22   the Supreme Court has not always applied this plausibility
23   standard consistently.   Starr v. Baca, 652 F.3d 1202, 1215–16
24   (9th Cir. 2011).    In light of this perceived inconsistency, the
25   Ninth Circuit has refined the standard for determining when a
26   complaint meets the minimum requirements of Civil Rule 8(a),
27   stating as follows:
28        First, to be entitled to the presumption of truth,

                                      11
 1        allegations in a complaint or counterclaim may not
          simply recite the elements of a cause of action, but
 2        must contain sufficient allegations of underlying facts
          to give fair notice and to enable the opposing party to
 3        defend itself effectively. Second, the factual
          allegations that are taken as true must plausibly
 4        suggest an entitlement to relief, such that it is not
          unfair to require the opposing party to be subjected to
 5        the expense of discovery and continued litigation.
 6   Id. at 1216 (emphasis added).   Accord, Merritt v. Countrywide
 7   Fin. Corp., 759 F.3d 1023, 1032–33 (9th Cir. 2014).   At bottom,
 8   the plausibility analysis is context specific and requires the
 9   court to draw upon its experience and common sense.   Levitt,
10   765 F.3d at 1135.
11        One of the fraudulent transfer elements Leslie needed to
12   allege was that property of the debtor was transferred to the
13   defendants.   A transfer of the debtor’s property that otherwise
14   would have been property of the estate is a prerequisite for a
15   fraudulent transfer action under either § 544 or § 548.   See
16   Geltzer v. Barish (In re Starr), 502 B.R. 760, 767–68 (Bankr.
17   S.D.N.Y. 2013) (holding that trustee sufficiently alleged
18   debtor’s property interest); Serra v. Salven, 2011 WL 4627576, at
19   *12 (E.D. Cal. Oct. 3, 2011) (holding that trustee failed to
20   prove for summary judgment purposes that debtor had an interest
21   in the property transferred); see also Gaughan v. Edward Dittlof
22   Revocable Tr. (In re Costas), 555 F.3d 790, 792–93 (9th Cir.
23   2009) (generally stating property interest requirement); Wyle v.
24   Rider (In re United Energy Corp.), 944 F.2d 589, 593-94 (9th Cir.
25   1991) (same); Greenspan v. Orrick, Herrington & Sutcliffe LLP (In
26   re Brobeck, Phleger & Harrison LLP), 408 B.R. 318, 337 (Bankr.
27   N.D. Cal. 2009) (“both the ‘property’ and ‘transfer’ elements
28   apply whether the claim is one for actual or constructive

                                     12
 1   fraudulent transfer”).
 2        Leslie alleged that Mihranian and his then-wife Susan
 3   diverted to third parties payments for medical services they
 4   provided.   If the allegedly diverted medical service fees were
 5   owed either to Mihranian or his alleged wife, then Mihranian
 6   transferred his interest in those payments by diverting them.
 7   See In re Brobeck, Phleger & Harrison LLP, 408 B.R. at 338
 8   (holding that debtor law firm’s waiver of potential profits from
 9   unfinished legal work constituted a transfer of the law firm’s
10   property within meaning of fraudulent transfer statutes).
11        However, Leslie also alleged that Mihranian and Susan
12   operated through a shared medical practice – an incorporated
13   medical practice – MCSSG.   There are no facts alleged in the
14   complaint from which it would be plausible to infer that the fees
15   for services earned by the medical practice would belong to
16   either Mihranian or Susan individually; rather, they would be
17   property of MCSSG.   To hold otherwise would ignore the legal
18   separateness of MCSSG.   See generally Sonora Diamond Corp. v.
19   Superior Court, 83 Cal. App. 4th 523, 538 (2000) (“a corporation
20   is regarded as a legal entity, separate and distinct from its
21   stockholders, officers and directors, with separate and distinct
22   liabilities and obligations.”).
23        Leslie argues on appeal that any fees for services owed to
24   MCSSG actually were owed to Mihranian – MCSSG’s sole owner – and
25   that he alleged sufficient facts in his third amended complaint
26   to justify piercing the corporate veil.   The bankruptcy court
27   disagreed with Leslie’s alter ego argument, and this alter ego
28   argument is the only ground Leslie has advanced in the bankruptcy

                                       13
 1   court or on appeal to explain why MCSSG’s funds should be treated
 2   as if they were Mihranian’s property.
 3        Generally, to pierce the corporate veil, a plaintiff must
 4   allege and prove: (1) “such unity of interest and ownership that
 5   the separate personalities of the corporation and the individual
 6   no longer exist”; and (2) “if the acts are treated as those of
 7   the corporation alone, an inequitable result will follow.”
 8   Mesler v. Bragg Mgmt. Co., 39 Cal. 3d 290, 300 (1985).    There is
 9   no single set of underlying facts that always must be alleged to
10   plausibly demonstrate these two criteria; instead, a variety of
11   case-specific facts must be considered to establish the
12   principal’s domination and control over the corporation and to
13   show that immunizing the principal from the corporation’s
14   liability would work an injustice.   Id.; see also Lebastchi v.
15   Superior Court, 33 Cal. App. 4th 1465, 1470 (1995).
16        Alter ego has been described as “an extreme remedy,
17   sparingly used,” Sonora Diamond Corp., 83 Cal. App. 4th at 539,
18   and it is to be imposed “cautiously” and “reluctantly.” Highland
19   Springs Conference & Training Ctr. v. City of Banning, 244 Cal.
20   App. 4th 267, 281 (2016).   More importantly, when imposed, the
21   separateness of the corporate entity is not disregarded for all
22   purposes but only for the purpose and under the circumstances of
23   the case in which it is asserted.    Lebastchi, 33 Cal. App. 4th at
24   1470; see also Mesler, 39 Cal. 3d at 301 (“under certain
25   circumstances a hole will be drilled in the wall of limited
26   liability erected by the corporate form; for all purposes other
27   than that for which the hole was drilled, the wall still
28   stands”).

                                     14
 1        Ordinarily, the alter ego doctrine only is invoked to enable
 2   a plaintiff to impose corporate liability upon the corporation’s
 3   principal(s).    See Sonora Diamond Corp., 83 Cal. App. 4th at 538.
 4   In fact, at least one California Court of Appeal has held that
 5   California law does not permit “outside reverse piercing of the
 6   corporate veil” – piercing in order to make the corporation’s
 7   assets liable for the debts of the individual shareholder(s).
 8   Postal Instant Press, Inc. v. Kaswa Corp. 162 Cal. App. 4th 1510,
 9   1522 (2008).    That is precisely what Leslie is attempting to do
10   here: claim the assets of MCSSG as if they belonged to Mihranian
11   individually and his bankruptcy estate.
12        Postal Instant Press is carefully reasoned and persuasive.
13   Moreover, we must follow the law of California’s intermediate
14   appellate courts on this point unless we are convinced that the
15   California Supreme Court would decide the issue differently.
16   Goodrich v. Briones (In re Schwarzkopf), 626 F.3d 1032, 1038 (9th
17   Cir. 2010).    We are not persuaded that the California Supreme
18   Court would decide this issue differently.    Thus, allegations of
19   alter ego do not aid Leslie; he cannot establish plausibility
20   through such allegations.    Consistent with this fact, Leslie did
21   not adequately plead alter ego.
22        As mentioned above, alter ego is the only legal ground
23   Leslie has advanced to explain why fees for medical services
24   belonging to MCSSG should have been considered Mihranian’s
25   property for fraudulent transfer purposes.    To the extent Leslie
26   could have advanced other grounds to support this contention,
27   Leslie abandoned them by not raising them in the bankruptcy court
28   or on appeal.    See, e.g., United Student Aid Funds, Inc. v.

                                       15
 1   Espinosa, 559 U.S. 260, 270 n.9 (2010) (“We need not settle that
 2   question, however, because the parties did not raise it in the
 3   courts below”);   Mayor v. Wolkowitz (In re Cinevision Int'l,
 4   Inc.), 2016 WL 638729, *7-8 (Mem. Dec.) (9th Cir. BAP Feb. 16,
 5   2016) (declining to consider issue that appellants raised for the
 6   first time in their reply brief on appeal).
 7        In short, fees for medical services owed to MCSSG did not
 8   belong to Mihranian – and were not his property – for fraudulent
 9   transfer purposes.
10        Leslie’s third amended complaint arguably suggested that, at
11   least some of the time, Mihranian and Susan accrued earnings on
12   their own account.   But no factual allegations in the third
13   amended complaint tie these accrued earnings (if any) to the
14   specific alleged fraudulent transfers identified in the
15   complaint.   The bankruptcy court attempted to explain to Leslie
16   that the complaint should have identified the alleged source of
17   all fraudulent transfers.   Given the other facts Leslie alleged
18   regarding the corporate status of Mihranian’s and Susan’s medical
19   practice, we agree with the bankruptcy court and hold that Leslie
20   did not state plausible fraudulent transfer claims in the absence
21   of alleged facts plausibly demonstrating that either Mihranian or
22   Susan had a property interest in the specific funds allegedly
23   transferred.
24        In sum, under Civil Rule 8(a), Leslie needed to allege facts
25   which, if accepted as true, plausibly could have lead to the
26   following inferences: (1) that the funds transferred to Susan
27   were funds in which Mihranian personally had a property interest
28   before they were transferred to Susan; and (2) that Mihranian

                                     16
 1   relinquished to Susan his property interest in those funds by way
 2   of those transfers.   Leslie did not allege facts that plausibly
 3   could support these inferences.    Accordingly, the third amended
 4   complaint failed to state any viable fraudulent transfer claims.
 5        Meanwhile, Civil Rule 9(b) requires fraud to be pled with
 6   particularity.   Under Civil Rule 9(b), the plaintiff’s
 7   allegations must include “‘the who, what, when, where, and how of
 8   the misconduct charged.’”   United States v. United Healthcare
 9   Ins. Co., 848 F.3d 1161, 1180 (9th Cir. 2016) (quoting Ebeid ex
10   rel. United States v. Lungwitz, 616 F.3d 993, 998 (9th Cir.
11   2010)).
12        A number of bankruptcy courts have acknowledged that Civil
13   Rule 9(b) does not apply to constructive fraudulent transfers.
14   See, e.g., Seror v. Stone (In re Automated Fin. Corp.), 2011 WL
15   10502417, at *4-5 (Bankr. C.D. Cal. Jan. 25, 2011); Angell v. Day
16   (In re Caremerica, Inc.), 415 B.R. 200, 208 (Bankr. E.D.N.C.
17   2009); Official Comm. of Unsecured Creditors. v. Am. Tower Corp.
18   (In re Verestar, Inc.), 343 B.R. 444, 459-60 (Bankr. S.D.N.Y.
19   2006)); see also Sunnyside Dev. Co. LLC v. Cambridge Display
20   Tech. Ltd., 2008 WL 4450328, at *8-9 (N.D. Cal. Sept. 29,
21   2008)(district court ruling holding same).   These same decisions
22   hold, however, that Civil Rule 9(b) applies to actual fraudulent
23   transfers because such claims sound in fraud.   We question
24   whether all actual fraudulent transfer claims sound in fraud,
25   because the controlling fraudulent transfer statutes state in the
26   disjunctive that an actual fraudulent transfer occurs when the
27   debtor makes a transfer with the actual intent to hinder, delay
28   or defraud.   See § 548(a)(1)(A); Cal. Civ. Code § 3439.04; see

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 1   also Wolkowitz v. Beverly (In re Beverly), 374 B.R. 221, 232 (9th
 2   Cir. BAP 2007), aff'd in part and adopted, 551 F.3d 1092 (9th
 3   Cir. 2008).   We do not see why harboring an intent to hinder or
 4   delay your creditors would sound in fraud.
 5        That being said, it is unnecessary for us to resolve the
 6   issue of when, if ever, Civil Rule 9(b) should be applied to
 7   actual fraudulent transfer claims.   As a practical matter, under
 8   the circumstances of this particular case, what Civil Rule 8(a)
 9   requires and what Civil Rule 9(b) would require largely overlap.
10   Put another way, in this instance, the Civil Rule 8(a) standard
11   articulated in Merritt, 759 F.3d at 1033, and the Civil Rule 9(b)
12   standard articulated in United Healthcare Insurance Co., 848 F.3d
13   at 1180, lead to similar pleading requirements.
14        In any event, we already have held that none of the
15   fraudulent transfer claims satisfy the Civil Rule 8(a) standard.
16   Thus, it is unnecessary to determine here whether Civil Rule 9(b)
17   also applies and has been satisfied.
18   B.   The Bankruptcy Court’s Requirement That Leslie Plead His
19        Fraudulent Transfer Claims With Greater Specificity
20        Leslie’s next contention concerns the bankruptcy court’s
21   April 14, 2016 order and its direction that Leslie must re-plead
22   his constructive fraudulent transfer claims with more
23   specificity, “including, without limitation, the source of the
24   alleged transfer(s), the identity of the alleged transferor(s),
25   the date(s) of the alleged transfer(s), and the amount of the
26   respective transfer(s).”
27        The April 14, 2016 order only stated this requirement as to
28   the constructive fraudulent transfer claims.   Even so, when the

                                     18
 1   order is read in conjunction with the court’s comments at the
 2   final hearing, it becomes reasonably clear that, when the court’s
 3   April 14, 2016 order dismissed without prejudice Leslie’s actual
 4   fraudulent transfer claims, the court expected any re-pleading of
 5   the actual fraudulent transfer claims to include at least the
 6   same level of specificity as the constructive fraudulent transfer
 7   claims.    Neither party has suggested any other interpretation of
 8   the court’s April 14, 2016 order, nor has Leslie argued that he
 9   did not realize that the bankruptcy court’s specificity
10   requirement applied to both the actual fraudulent transfer claims
11   and the constructive fraudulent transfer claims.
12        As we have already explained, the third amended complaint
13   did not allege sufficient facts to support a plausible inference
14   that Mihranian transferred any of his own property interests to
15   Susan.    The bankruptcy court’s required statement of transfers
16   identifying (among other things) the source of each transfer
17   reasonably was aimed at rectifying this deficiency.    Typically,
18   identifying the source of the transfer(s) and the identity of the
19   transferor(s) would provide facts from which a court plausibly
20   could infer whether the debtor held a property interest in funds
21   before their transfer.    See, e.g., In re Geltzer, 502 B.R. at
22   767–68; In re Caremerica, Inc., 415 B.R. at 208.
23        We acknowledge that Leslie might have employed other methods
24   besides the bankruptcy court’s specificity requirement to satisfy
25   the pleading requirements of Civil Rule 8(a) for purposes of
26   alleging Mihranian’s interest in the alleged fraudulently
27   transferred funds.    Even so, Leslie did not in fact plausibly
28   allege Mihranian’s interest in the transferred funds in any way,

                                      19
 1   and the bankruptcy court’s specificity requirement reasonably was
 2   aimed at rectifying this deficiency in Leslie’s pleading.
 3   Therefore, we conclude that the bankruptcy court did not commit
 4   reversible err when it imposed the specificity requirement on
 5   Leslie in the April 14, 2016 order.
 6   C.    Dismissal Without Leave To Amend
 7         Leslie also contends on appeal that the bankruptcy court
 8   should have granted him leave to amend his complaint.    Generally
 9   speaking, courts should not deny leave to amend unless the court
10   determines that amendment would be futile.   See Ebner v. Fresh,
11   Inc., 838 F.3d 958, 963 (9th Cir. 2016); Lacey v. Maricopa Cty.,
12   693 F.3d 896, 926 (9th Cir. 2012) (en banc).7
13        That being said, the trial court has broad discretion in
14   deciding whether to grant leave to amend, especially when (as
15   here) the plaintiff already has been given multiple opportunities
16   to amend its complaint.   See Gonzalez, 759 F.3d at 1116 (citing
17   Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir.
18   2004)).   Gonzalez is instructive.   There, the Ninth Circuit Court
19   of Appeals affirmed the district court’s dismissal of Gonzalez’s
20   third amended complaint without leave to amend.   Id.   In the
21   process of holding that the district court did not abuse its
22
23
           7
           To be clear, different standards (other than futility)
24   apply when the bankruptcy court dismisses with prejudice an
     adversary proceeding as a sanction based on plaintiff’s
25   noncompliant or dilatory conduct. See generally Lee v.
26   Roessler–Lobert (In re Roessler-Lobert), 567 B.R. 560, 568-73
     (9th Cir. BAP 2017) (describing other standards). Here, however,
27   Susan did not request dismissal of Leslie’s complaint as a
     sanction, nor did the bankruptcy court consider sanctions as a
28   ground for dismissal without leave to amend.

                                     20
 1   discretion in denying leave to amend, the Court of Appeals relied
 2   on two things: (1) Gonzalez’s failed multiple attempts to state
 3   viable claims for relief; and (2) the fact that certain
 4   attachments to Gonzalez’s complaint “defeated the plausibility of
 5   his allegations.”    Id.
 6        Similarly, here, Leslie’s focus in his complaint on the
 7   alleged diversion of funds from an incorporated medical practice
 8   undermined the plausibility of his allegations that Mihranian had
 9   a property interest in the alleged fraudulently transferred
10   funds.
11        Furthermore, Leslie, like Gonzalez, had a history of
12   multiple failed attempts to state viable claims for relief.
13   Leslie’s third amended complaint was his fourth attempt to state
14   his fraudulent transfer claims.    Leslie has not disputed that he
15   filed his first amended complaint and his third amended complaint
16   after discussions with the defendants regarding the insufficiency
17   of his fraudulent transfer allegations.   Additionally, the
18   bankruptcy court reviewed two of Leslie’s four complaints, and
19   the court correctly determined that neither stated plausible
20   fraudulent transfer claims.   After the first of the bankruptcy
21   court’s two reviews, the court ordered Leslie to allege more
22   specific facts regarding the subject transfers, which order
23   reasonably was aimed at identifying whether Mihranian plausibly
24   had an interest in the alleged fraudulently transferred funds.
25   Nonetheless, Leslie did not comply with the court’s order, nor
26   did Leslie otherwise adequately address the court’s concern
27   regarding identification of Mihranian’s interest in the
28   transferred funds.

                                       21
 1        Leslie’s failure to do so is particularly inexplicable here
 2   because he admitted to conducting extensive pre-litigation
 3   discovery in the form of Rule 2004 examinations – consisting of
 4   both depositions and voluminous document production requests –
 5   focusing on the transfers in question.   Nor has Leslie disputed
 6   Susan’s assertion that Leslie hired professionals who (among
 7   other things) were assigned the task of identifying the source of
 8   the transferred funds.   Simply put, this is not a situation where
 9   the plaintiff lacked an opportunity to obtain sufficient
10   information to plead his claims with more specificity.
11        Under these circumstances, the bankruptcy court did not err
12   when it determined that Leslie either could not or would not
13   plausibly allege Mihranian’s interest in the transferred funds.
14   Accordingly, dismissal without leave to amend was not an abuse of
15   discretion.
16   D.   Other Issues: Community Property, Statute of Limitations
17        and Request to Supplement The Record
18        There are a few additional issues we should address.    First,
19   Susan claims that Leslie did not sufficiently allege
20   Mihranian’s community interest in any funds Susan received on
21   account of medical services Susan provided on her own account.
22   To the extent Mihranian had a community interest in funds in
23   which Susan held a right to payment, the transfer of those funds
24   could have constituted a transfer of the debtor’s interest in
25   property for fraudulent transfer purposes.   See In re Beverly,
26   374 B.R. at 233.
27        Ultimately, the bankruptcy court seemed to decide this issue
28   in favor of Leslie, and Susan did not cross-appeal from this

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 1   ruling.   Regardless, under California law, whether Mihranian and
 2   Susan actually were separated in and after 1998 as Susan claims
 3   was a question of fact necessary to determine whether and when
 4   they ceased to accrue community property under Cal. Fam. Code
 5   § 771(a).   See In re Marriage of Manfer, 144 Cal. App. 4th 925,
 6   930 (2006).   Leslie effectively alleged that Mihranian and Susan
 7   continued to work together, that they continued to live together
 8   in the same residence, and that neither intended a permanent and
 9   final cessation of their marriage; rather, according to Leslie,
10   the couple feigned separation in 1998 as part of a scheme to keep
11   Mihranian’s assets away from his creditors.   These facts were
12   sufficient to allege that Mihranian and Susan were not, in fact,
13   separated and continued to accrue community property in and after
14   1998.   See generally id.
15        Even so, under the circumstances of this appeal, the issue
16   of whether the fees for services were Susan’s property or
17   Mihranian’s property largely is a red herring.   The more
18   important questions – questions that Leslie never answered –
19   were: (1) why funds allegedly diverted from the couple’s shared
20   medical practice were property of the debtor as opposed to
21   property of MCSSG; and (2) how the so-called sham separation
22   advanced Mihranian’s and Susan’s diversion scheme when Leslie’s
23   complaint indicated that both Mihranian and Susan were judgment
24   debtors to one or more of the judgment creditors named in
25   Leslie’s complaint.
26        Another issue we should address concerns the statute of
27   limitations applicable to actual fraudulent transfers under
28   California law.   The applicable statute provides in relevant

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 1   part:
 2        (a) Under paragraph (1) of subdivision (a) of
          Section 3439.04, not later than four years after the
 3        transfer was made or the obligation was incurred or, if
          later, not later than one year after the transfer or
 4        obligation was or could reasonably have been discovered
          by the claimant.
 5
 6   Cal. Civ. Code § 3439.09(a) (emphasis added).
 7        The bankruptcy court opined that, to the extent Leslie
 8   sought to avail himself of § 3439.09(a)’s “discovery rule,”
 9   Leslie should have alleged that the fraudulent nature of the
10   transfers reasonably could not have been discovered earlier.
11        Leslie’s opening appeal brief does not mention let alone
12   address the statute of limitations issue.   On this basis alone,
13   we could decline to address this issue.   Christian Legal Soc'y,
14   626 F.3d at 487–88; Brownfield, 612 F.3d at 1149 n.4.
15        In any event, for purposes of this appeal, suffice it to say
16   that Leslie could not have properly invoked this discovery rule
17   unless he alleged facts plausibly tending to demonstrate that the
18   fraudulent nature of the transfers was not discovered earlier and
19   reasonably could not have been discovered earlier.   See Denholm
20   v. Houghton Mifflin Co., 912 F.2d 357, 362 (9th Cir. 1990); Sun
21   'n Sand, Inc. v. United Cal. Bank, 21 Cal. 3d 671, 701-02 (1978);
22   see also Ezra v. Seror (In re Ezra), 537 B.R. 924, 933 (9th Cir.
23   BAP 2015) (“the one-year period under Cal. Civ. Code
24   § 3439.09(a)’s discovery rule does not commence until the
25   plaintiff has reason to discover the fraudulent nature of the
26   transfer.”)
27        The final issue we should address concerns Susan’s request
28   to supplement the record on appeal.   In this request, Susan asked

                                    24
 1   us to consider on appeal documents that were not part of this
 2   adversary proceeding but rather were part of Leslie’s
 3   contemporaneous motion to substantively consolidate Mihranian’s
 4   bankruptcy estate with MCSSG and the four fraudulent transfer
 5   defendants.   Even if we were to assume that these materials were
 6   sufficiently “before” the bankruptcy court to be considered part
 7   of the adversary proceeding record (which they were not),
 8   consideration of their contents as evidence for purposes of
 9   resolving Susan’s Civil Rule 12(b)(6) dismissal motion likely
10   would have converted the defendants’ dismissal motion into a
11   summary judgment motion.     See Civil Rule 12(d).   We decline on
12   appeal to consider materials that would have converted this
13   matter into a summary judgment proceeding when the bankruptcy
14   court did not do so.
15        Therefore, Susan’s motion seeking to supplement the record
16   with the materials from the substantive consolidation proceeding
17   is hereby ORDERED DENIED.8
18                                 CONCLUSION
19        For the reasons set forth above, the bankruptcy court’s
20   order dismissing with prejudice Leslie’s third amended complaint
21
          8
           On the day of oral argument, this Panel delayed the start
22
     of oral argument in this appeal by roughly 30 minutes because, at
23   the time this appeal first was called for hearing, counsel for
     Leslie was not present. After the 30-minute delay, the Panel
24   proceeded with oral argument. Only counsel for Susan appeared;
     no one appeared for Leslie. The Panel effectively submitted
25   Leslie’s position on his appellate briefs and on the record on
26   appeal. Shortly after the completion of oral argument, the Panel
     received from Leslie’s counsel an informal telephonic request to
27   continue oral argument. That request is hereby ORDERED DENIED.
     The request was untimely and was not presented in a procedurally
28   proper format. See Rule 8013(a).

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