Gary Kremen v. Michael Cohen , 609 F. App'x 945 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 21 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
GARY KREMEN, No. 13-16101
Plaintiff - Appellant, D.C. No. 11-CV-05411-LHK
v.
MEMORANDUM*
MICHAEL JOSEPH COHEN, an
individual, and FNBPAY
CORPORATION, an Arizona
corporation,
Defendants - Appellees,
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Argued and Submitted July 8, 2015
San Francisco, California
Before: TALLMAN, M. SMITH, and MURGUIA, Circuit Judges.
Plaintiff-Appellant Gary Kremen filed suit against Defendants-Appellees
Michael Cohen (M. Cohen) and FNBPay Corporation (FNBPay), alleging four
causes of action for fraud. Kremen claims that Stephen Cohen (S. Cohen)
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
transferred money to M. Cohen in violation of the California Fraudulent Transfer
Act (CUFTA), Cal. Civil Code § 3439.04, and California common law. The
district court granted summary judgment to M. Cohen, and we affirm the decision
of the district court.
1. Kremen’s notice of appeal was timely. After granting defendants’
motion for summary judgment, the court did not enter a separate judgment, as
required by Federal Rule of Civil Procedure 58. For that reason, the judgment
became final 150 days after the district court issued its summary judgment order.
See Fed. R. Civ. P. 58(c)(2)(B); Fed R. App. P. 4(a)(7)(A)(ii); Stephanie-Cardona
LLC v. Smith’s Food & Drug Ctrs., Inc., 476 F.3d 701, 703-04 (9th Cir. 2007).
Kremen’s notice of appeal, which he filed 149 days after entry of the summary
judgment order, was timely.
2. The district court properly granted summary judgment to M. Cohen on
Kremen’s CUFTA claims because the fraudulent acts alleged by Kremen either do
not constitute a “transfer” under CUFTA, or do not carry the requisite fraudulent
intent. See Filip v. Bucurenciu, 28 Cal. Rptr. 3d 884, 887 (Cal. Ct. App. 2005) (“A
fraudulent conveyance under the [C]UFTA involves a transfer by the debtor of
property to a third person undertaken with the intent to prevent a creditor from
reaching that interest to satisfy its claim.” (internal quotation marks omitted)).
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First, Kremen does not provide evidence that a $22.55 transfer from S.
Cohen’s credit card to a PayPal account owned by M. Cohen was made with the
“intent to hinder, delay, or defraud” Kremen in collecting a judgment totaling more
than $65 million. See Cal. Civil Code § 3439.04(a)(1).
Second, Kremen does not sufficiently establish that transfers from Baja
Datacenter and Medicina Mexico—two Mexican companies—to M. Cohen’s
PayPal account were in fact transfers from S. Cohen to M. Cohen. The evidence
offered by Kremen only supports the inference that S. Cohen had some connection
to Baja Datacenter and Medicina Mexico. Kremen does not show that S. Cohen
operated the companies as his alter egos. See S.E.C. v. Hickey, 322 F.3d 1123,
1130 (9th Cir. 2003) (“[A]n individual must own at least a portion of a corporation
before an alter ego relationship is deemed to exist under California law.”).
Third, Kremen’s evidence does not show that small transfers to M. Cohen
from Daniel Cohen, S. Cohen’s son, and Mario Saucedo, S. Cohen’s business
associate, were in fact transfers from S. Cohen to M. Cohen. Again, absent
evidence of such a transfer, Kremen’s CUFTA claim fails. See Renda v. Nevarez,
167 Cal. Rptr. 3d 874, 876 (Cal. Ct. App. 2014) (discussing CUFTA’s transfer
requirement).
3. Finally, Kremen’s allegation that M. Cohen and S. Cohen conspired to
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violate CUFTA does not save Kremen’s claim. Under California law, “[a] civil
conspiracy however atrocious, does not per se give rise to a cause of action unless
a civil wrong has been committed resulting in damage.” Doctors’ Co. v. Superior
Court, 775 P.2d 508, 510 (Cal. 1989). Kremen has not alleged facts sufficient to
establish an underlying CUFTA violation, so there is no liability for conspiracy.
4. Because the elements for a fraudulent transfer under California common
law are the same as under CUFTA, see Cortez v. Vogt, 60 Cal. Rptr. 2d 841, 847-
48 (Cal. App. Ct. 1997), Kremen’s common law claim also fails.
AFFIRMED.
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