                                                          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
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