Stillwater Liquidating v. Chernyakova CA2/3 ( 2022 )

Filed 2/24/22 Stillwater Liquidating v. Chernyakova CA2/3
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8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
STILLWATER LIQUIDATING, B309432
LLC,
Los Angeles County
Plaintiff and Appellant, Super. Ct. No.
BC702295
v.
YEVGENIYA CHERNYAKOVA,
as Administrator, etc., et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Carolyn B. Kuhl, Judge. Affirmed in part,
reversed in part with directions.
Foley & Lardner, Tony Tootell, Jessica N. Walker, and
David B. Goroff for Plaintiff and Appellant.
Mintz Levin Cohn Ferris Glovsky & Popeo, Joseph R.
Dunn, Abigail V. O’Brient, and Evan S. Nadel for Defendants and
Respondents.
_______________________________________
INTRODUCTION
Plaintiff Stillwater Liquidating, LLC (Stillwater) is a
fiduciary that was formed to pursue claims on behalf of a
financial company and a group of investment funds. Stillwater
sued Yevgeniya Chernyakova, who is the administrator of the
estate of Mark Buntzman, and several entities that Buntzman
owned and controlled during his life. Stillwater alleged
Buntzman and his entities received, through fraudulent
transfers, title to several parcels of real property and the
proceeds from the sale of one parcel of real property, all of which
once belonged to the financial company’s and the investment
funds’ debtors.
The trial court sustained the defendants’ demurrer to the
operative first amended complaint, finding, among other things,
that several of Stillwater’s fraudulent transfer claims were time-
barred and that, in any event, Stillwater failed to allege any of
the subject properties were transferred by one of the investment
funds’ or the financial company’s debtors to one of the defendants
in this case. The court granted Stillwater leave to amend some of
its claims. After Stillwater elected not to file an amended
complaint, the court entered judgment dismissing the lawsuit.
This appeal followed.
This is a complicated case involving several parcels of
property and numerous transfers of those parcels. Even more
numerous is the number of individuals and entities purportedly
involved in making those transfers. Adding to that complexity,
Stillwater’s operative first amended complaint is more than 60
pages long, asserts 18 separate causes of action, and is
accompanied by nearly 1,000 pages of exhibits. The pleading,
2
however, does anything but paint an intelligible picture of the
numerous transfers underlying Stillwater’s claims.
Nor does Stillwater’s opening brief on appeal provide much
help untangling the first amended complaint’s allegations. For
the most part, the opening brief lacks cogent analysis explaining
how Stillwater pled or can plead its claims, and it includes
numerous factual assertions that are not supported by citations
to the more-than 4,000-page appellate record.1
While we conclude Stillwater has shown it can amend its
complaint to plead additional facts establishing one of its actual
fraudulent transfer claims and several common law claims
arising out of the same transferred property, it has not met its
burden to demonstrate error as to the remaining claims asserted
in the first amended complaint. We therefore reverse the
judgment in part and remand the matter for further proceedings
consistent with this opinion.
FACTUAL BACKGROUND
Stillwater is a fiduciary acting on behalf of a group of 12
investment funds (Funds) and Gerova Financial Group (Gerova).
1 The difficulty presented by Stillwater’s failure to cite
to page numbers in the record is heightened in this case where the
appellant’s appendix spans 11 volumes with more than 3,000 pages,
the respondents’ appendix is more than 1,000 pages, and the reporter’s
transcript is more than 100 pages. (See Myers v. Trendwest Resorts,
Inc. (2009) 178 Cal.App.4th 735, 745 [“ ‘We are a busy court which
“cannot be expected to search through a voluminous record to discover
evidence on a point raised by [a party] when his brief makes no
reference to the pages where the evidence on the point can be found in
the record.” ’ ”].)
3
The Funds had owned interests in hundreds of parcels of real
property worth more than $540 million.
In December 2009, one of the funds (Offshore Fund) and
Gerova entered into an asset purchase agreement, through which
the Offshore Fund agreed to transfer its property interests to one
of Gerova’s subsidiaries. Several days later, another one of the
funds (Onshore Fund) merged with a different subsidiary of
Gerova.
In May 2010, Gerova and Planet Five Development Group
LLC (Planet Five), a Florida real estate development company
owned by Paul Rohan, agreed to form a joint venture called “Net
Five Holdings, LLC” (Net Five Holdings or joint venture). Net
Five Holdings’ owners included, among others, Gerova and
Planet Five. Rohan served as Net Five Holdings’ manager.
Under Net Five Holdings’ operating agreement (Operating
Agreement), Gerova was supposed to receive a 49 percent interest
in the joint venture in exchange for $4,900 plus the appraised net
asset value of Gerova’s real estate portfolio. Planet Five agreed to
contribute $3,900 plus 10 real estate properties in exchange for a
39 percent interest in Net Five Holdings.2 As we discuss below,
2According to the Operating Agreement, Planet Five agreed to
contribute the following properties to Net Five Holdings: (1) Sabal
Retail, 510 Hwy 466, Lady Lake, Florida 32159; (2) Sabal Storage, 520
Hwy 466, Lady Lake, Florida 32159; (3) Santa FE Medical, 8564 E Cr
466, The Villages, Florida 32162; (4) Santa Fe Crossing, 8600 CR 466,
The Villages, Florida 32162; (5) Dana, 11950 CR 101, The Villages,
Florida 32162; (6) Palm Ridge, 11962 CR 101, The Villages, Florida
32162; (7) Lauren, 11974, CR 101, The Villages, Florida 32162; (8)
Savannah Oaks, 439 CR 466A, Fruitland Park, Florida 34731; (9)
Village Park Center (Steinmetz), 11725 NE 63rd Drive, The Villages,
4
several of the properties pledged by Planet Five form the basis for
this lawsuit.
Section 2.3(c) of the Operating Agreement provided that
“Title to assets, whether real, personal or mixed, tangible or
intangible, shall be deemed to be owned by [Net Five Holdings],
and no Member, individually or collectively, shall have any
ownership interest in such assets or any portion thereof. Title to
any or all of the assets shall be recorded as property of the
Company on the books and records of the Company, irrespective
of the name in which legal title to such assets is held.” According
to judicially noticed title records, title to only one of the
properties Planet Five pledged to commit was ever formally
transferred to Net Five Holdings.
In early 2011, news outlets reported that Gerova was
operating a fraudulent investment scheme. Later that year, some
of the Funds’ investors filed class action lawsuits against Gerova,
Net Five Holdings, Rohan, and other defendants in federal court
in New York, alleging violations of securities laws and breaches
of fiduciary duties. Two of Gerova’s representatives were later
convicted of operating a stock manipulation scheme.
In October 2011, Gerova initiated wind-up proceedings in
Bermuda. In July 2012, a federal court in New York enjoined “
‘Net Five and its subsidiaries’ ” from selling, transferring, or
pledging, without first notifying the class action plaintiffs, “ ‘any
assets they own or control’ ” valued at $50,000 or higher to any
related persons, including officers and directors of Net Five
Holdings, Planet Five, and any entity controlled by either of
Florida 32162; and (10) The Port Authority, 39.98 (acres) Hecksher
Drive, Jacksonville, Florida, 32226.
5
those companies. In October 2012, an involuntary bankruptcy
action was initiated against the Offshore Fund.
In early 2014, Stillwater was formed as part of a settlement
agreement resolving the class action lawsuits and other disputes.
Stillwater was assigned all claims belonging to the Funds,
including claims belonging to Gerova concerning assets formerly
owned by the Funds.
In October 2014, Stillwater initiated an adversary
proceeding in bankruptcy court in New York against Rohan, Net
Five Holdings, Planet Five, and numerous other entities and
individuals, asserting 16 causes of action, including claims for
conversion, conspiracy to defraud, and breach of contract
(Adversary Proceeding). Several months later, the bankruptcy
court issued a preliminary injunction prohibiting the defendants
in the Adversary Proceeding from “selling, transferring, pledging
or hypothecating any assets formerly belonging to or which can
be traced to assets formerly belonging to, the [Funds] … .”
In September 2016, the bankruptcy court in the Adversary
Proceeding dismissed Stillwater’s claims against most of the
defendants, leaving only Stillwater’s claims against Net Five
Holdings, Planet Five, Rohan, and several separate purpose
entities owned by Net Five Holdings. In its ruling, the
bankruptcy court admonished Stillwater for its pleading
practices: “These claims sound straightforward, but they are not.
The original Complaint was eighty-one pages long. The Court
directed that clarifying amendments be made, which led to the
filing of a thirty-four page Supplement with 949 pages of exhibits.
An Amended Complaint made further changes and is 124 pages
long, with 112 pages of its own exhibits. The hope was that the
amendments would provide clarity, particularly as to the alleged
6
fraudulent transfers. Instead, Stillwater Liquidating has
stubbornly mischaracterized transactions, conflated parties and
events, and tried to gloss over important details about the assets
that were transferred and the nature of the Stillwater Funds’
property interests. As a result[,] the lengthy pleadings are packed
with plain errors, contradictions and poorly perceived claims.”
PROCEDURAL BACKGROUND
1. The Original Complaint
In May 2018, several weeks after the federal district court
affirmed the bankruptcy court’s dismissal ruling in the Adversary
Proceeding, Stillwater filed this lawsuit against Buntzman3 and
the following entities controlled and owned by him: Degma
Investing, LLC (Degma), G.M.A. Industrial Corp. (GMA), The
Parking Mall, LLC (Parking Mall), LTAP1, LLC (LTAP), and
SDC Remainder LLC (SDC Remainder).4 The original complaint
asserted seven causes of action: unjust enrichment, conversion,
civil conspiracy, conspiracy to defraud, aiding and abetting
conspiracy, constructive trust, and subsequent fraudulent
transfer under the Uniform Voidable Transfers Act (Act) (Civ.
Code,5 § 3439 et seq.).
Stillwater claimed that Rohan and Buntzman were long-
time business partners who concocted a fraudulent scheme to
3 Buntzman died after this lawsuit was filed. In January 2019, the
parties filed a stipulation to substitute Chernyakova, as administrator
of Buntzman’s estate, as a defendant.
4We collectively refer to the defendants in this case as the “Buntzman
Defendants.”
5 All undesignated statutory references are to the Civil Code.
7
strip Net Five Holdings of its assets. Rohan then began
transferring some of the assets that Planet Five had pledged to
contribute to Net Five Holdings into single purpose entities he
had created. Once the Funds and Gerova entered bankruptcy,
Rohan used the single purpose entities to transfer to Buntzman
and his entities assets that Stillwater claimed belonged to Net
Five Holdings, including several of the properties Planet Five
pledged to contribute to the joint venture.
Stillwater also claimed the Offshore and Onshore Funds’
transfers of assets to Gerova were fraudulent. According to
Stillwater, Net Five Holdings was formed so that Gerova and
Planet Five could funnel their assets, including those obtained
from the Funds, to a company outside the reach of Gerova’s and
the Funds’ creditors.
The Buntzman Defendants demurred to the original
complaint.
In its opposition, Stillwater abandoned its theory that the
funds’ transfer of assets to Gerova was fraudulent. Instead,
Stillwater asked the court to interpret its claim for subsequent
fraudulent transfer as a claim for initial fraudulent transfer
under a theory that Rohan transferred assets out of Net Five
Holdings and to the Buntzman Defendants. Specifically,
Stillwater asserted that the gravamen of its lawsuit arose out of
“the post-bankruptcy conduct by Defendants in assisting Rohan
stripping Net Five [Holdings] assets to render it judgment proof
while Defendants received a windfall from the improperly
diverted assets.” In another part of its opposition, Stillwater
reiterated that its claims arose out of the Buntzman Defendants’
“actions in concert with Rohan in stripping the assets to render
Net Five [Holdings] judgment proof during litigation and while
8
insolvent. It is incontrovertible that [Stillwater] is the [p]laintiff
in [the] pending [Adversary Proceeding], which was pending at
the time of the transfers to” the Buntzman Defendants.
The court sustained the demurrer to the original complaint
with leave to amend as to all of Stillwater’s claims, except for the
claim for conversion, which the court sustained without leave to
amend. Relying on the representations Stillwater made in
opposing the demurrer, the court concluded Stillwater had
standing to pursue a fraudulent transfer claim under a theory
that the Buntzman Defendants “knowingly assisted Rohan in
rendering Net Five [Holdings] judgment proof while [Stillwater]
pursued actionable claims against Net Five [Holdings] in
bankruptcy court.” Nevertheless, the court found Stillwater’s
fraudulent transfer claim was “fatally uncertain” as pleaded in
the original complaint.
As the court explained, Stillwater failed to identify with
sufficient particularity any of the properties that Rohan and the
entities related to Net Five Holdings allegedly transferred to the
Buntzman Defendants. Instead, Stillwater used only “
‘shorthand’ ” names for the properties. And, as to some of the
properties, Stillwater failed to allege that they were ever
transferred by Rohan or one of the Adversary Proceeding
defendants related to Net Five Holdings to one of the Buntzman
Defendants.
The court granted Stillwater leave to amend its fraudulent
transfer claim with directions to plead “each element of the
fraudulent transfer allegations” with “specificity as to each
property and as to each Defendant’s alleged involvement in the
transfer.” The court also directed Stillwater to clearly identify the
properties at issue and to clarify that it pursues fraudulent
9
transfer claims based solely on transfers of property interests
from Rohan, Net Five Holdings, or one of the related entities
named as a defendant in the Adversary Proceeding to one of the
Buntzman Defendants, with the intent to render the transferors
judgment-proof in light of litigation brought by Stillwater against
them in federal court.
As for Stillwater’s remaining causes of action for unjust
enrichment, civil conspiracy, aiding and abetting conspiracy, and
constructive trust, the court found they were all dependent on
Stillwater’s fraudulent transfer claim.
2. The First Amended Complaint
In September 2019, Stillwater filed the operative first
amended complaint. The amended pleading asserts 18 causes of
action, is 62 pages long, and is accompanied by nearly 1,000
pages of exhibits. Stillwater restyled its fraudulent transfer claim
as 12 separate causes of action for violations of the Act.
Specifically, Stillwater asserted a claim for actual fraudulent
transfer (§ 3439.04, subd. (a)(1)) and a claim for constructive
fraudulent transfer (§§ 3439.04, subd. (a)(2), 3439.05) as to each
of the six properties or sets of properties Stillwater claims the
Buntzman Defendants obtained, through fraud, from Rohan, Net
Five Holdings, or one of the entities related to Net Five Holdings
and Rohan (Counts 1 through 12). Stillwater also asserted claims
for unjust enrichment (Count 13), civil conspiracy (Count 14),
conspiracy to defraud (Count 15), aiding and abetting conspiracy
(Count 16), aiding and abetting breach of fiduciary duty (Count
17), and constructive trust (Count 18). We summarize the
allegations concerning the first 12 causes of action by reference to
the properties they are based on.
10
2.1. Savannah Oaks Property
Counts 1 and 2 arise out of allegedly fraudulent transfers of
what Stillwater calls the “Savannah Oaks” property. The first
amended complaint doesn’t provide a clear description of the
property, but it apparently consists of two sets of parcels located
in Lake County, Florida. The Savannah Oaks property was one of
the 10 properties that Planet Five pledged to contribute to Net
Five Holdings. Stillwater alleged that, by virtue of Section 2.3(c)
of the Operating Agreement, Net Five Holdings became the
owner of the entire Savannah Oaks property in May 2010, when
the joint venture was formed.
Nevertheless, in October 2013, Net Five at Savannah Oaks,
LLC, an entity separately owned by Rohan and which was not
named as a defendant in the Adversary Proceeding, transferred
the first set of Savannah Oaks parcels to GMA, one of the
Buntzman Defendants. Net Five at Savannah Oaks received
$1,250,000 in exchange for the property, none of which went to
Net Five Holdings. After the transfer, Degma, another of the
Buntzman Defendants, held itself out as one of the owners of the
property.
As for the second set of Savannah Oaks parcels, Stillwater
alleged that in early December 2013, a company called “PMJ
Capital Corp.” (PMJ) transferred the property to Development
Property Holdings, a company controlled by Rohan but which was
not named as a defendant in the Adversary Proceeding. In June
2015, Development Property Holdings transferred the property to
GMA. Net Five Holdings received no consideration for the sale of
the second set of Savannah Oaks parcels.
11
2.2. Sabal Storage Property
Counts 3 and 4 pertain to a “Sabal Storage” property,
located in Lady Lake, Florida, which Planet Five pledged to
commit to Net Five Holdings. Stillwater claimed Net Five
Holdings became the owner of the Sabal Storage property once
the joint venture was formed in May 2010, via the terms of the
Operating Agreement.
In November 2013, Sabal Palm Ventures, LLC, an entity
owned by Rohan but that was not named as a defendant in the
Adversary Proceeding, transferred the Sabal Storage property to
Buntzman Defendants GMA and SDC, with each entity receiving
a 50 percent interest in the property. In February 2015, SDC and
GMA transferred the Sabal Storage property to Lady L Storage
18 (FL), LLC for over $6 million. Net Five Holdings received none
of the proceeds from either transfer.
2.3. Calhoun Proceeds
Counts 5 and 6 concern proceeds from the sale of a set of
parcels called the Calhoun Property, located in Georgia. Like the
properties discussed above, Stillwater claimed Net Five Holdings
became the owner of the Calhoun Property in May 2010 because
it was one of the properties Planet Five pledged to contribute to
the joint venture when it was formed.
In December 2011, Rohan “caused” Net Five Holdings to
give Degma, a Buntzman Defendant, a deed to secure debt
against one of the six parcels comprising the Calhoun Property.
In exchange, Rohan received a $125,000 personal loan. In
December 2013, Rohan “caused” Net Five Holdings to sell the
parcel securing the loan issued by Degma and Buntzman. Rohan
used the proceeds from the sale to repay his personal loan.
12
Stillwater claims Rohan transferred the proceeds to Degma and
Buntzman to render Net Five Holdings judgment-proof.
2.4. Village Park Tract F
Counts 7 and 8 concern a parcel of property called Village
Park Tract F (Tract F), located in The Villages, Florida. Tract F is
connected to another set of properties that forms the basis for
Counts 11 and 12. Stillwater claimed Net Five Holdings became
the owner of Tract F via the Operating Agreement because
Planet Five pledged to contribute the property to the joint
venture when it was formed.
Buntzman held GMA out as Tract F’s owner and attempted
to negotiate various sales of the property on GMA’s behalf.
However, Stillwater did not allege when or through which
transfer GMA obtained the property, stating “[h]ow the property
went from [Net Five Holdings] to GMA is unclear but the fact
that it did appears clear.” Indeed, Stillwater acknowledged that
title records don’t show GMA, Buntzman, or any of his other
entities ever owned the property. Instead, the pleading identifies
L&N Land Investments, LLC (L&N), a company that is not
related to Rohan, Rohan’s entities, Buntzman, or Buntzman’s
entities, as the owner of the Tract F property.
2.5. The Port Property
Counts 9 and 10 concern two parcels of property,
collectively known as the Port Property, located at 3372 and 3379
Zoo Parkway in Jacksonville, Florida. Like the other properties
at issue in this lawsuit, Stillwater claimed Planet Five
transferred the Port Property to Net Five Holdings via the
Operating Agreement.
13
In one part of the first amended complaint, Stillwater
acknowledged it was unclear whether the Port Property was ever
transferred. Instead, Stillwater asserted only that Buntzman and
the Parking Mall held themselves out as the owners of the
property while discussing potential development plans with
several individuals, including Rohan. Indeed, Stillwater
acknowledged that as of Spring 2017, Jaxport Holdings LLC, a
company not owned by Rohan or Buntzman, owned one of the
Port Property parcels.
2.6. The Steinmetz Property
Counts 11 and 12 arise out of the Steinmetz Property,
which consists of several parcels connected to Tract F. According
to Stillwater, Planet Five transferred the property to Net Five
Holdings in May 2010, by virtue of the Operating Agreement.
Stillwater claimed that “[t]itle records do not reflect
commercial realities” because neither Planet Five nor Net Five
Holdings appears in the property’s chain of title. Instead, at the
time Net Five Holdings was formed, title records showed the
property was owned by Eagle FL 1 SPE LLC (Eagle), which had
acquired the property from Lady Lake Hospitality and an
individual named Nancy Steinmetz through judicial foreclosure
in April 2010. In December 2010, Eagle transferred the property
to Lady Lake Hotel, LLC, which still appears as the current
owner.
Despite what title records show, Stillwater claimed other
records (which it does not identify) show the property was owned
by L&N as of 2014 or 2015, which later sold the property to an
unidentified joint venture between Rohan and Buntzman. But,
only a few paragraphs later in the first amended complaint,
Stillwater claimed L&N sold the property in August 2014 to
14
another individual for use in a joint venture he intended to
create. In November 2014, one of Rohan’s entities entered into a
“development agreement” with that individual to develop the
Steinmetz property. Rohan and Buntzman then tried to negotiate
various development plans for the property, but Stillwater never
claims those plans were finalized.
3. The Demurrer to the First Amended Complaint
The Buntzman Defendants demurred to the first amended
complaint. They argued Stillwater couldn’t state claims for actual
or constructive fraudulent transfer in Counts 1 through 12
because the assets giving rise to Stillwater’s lawsuit were either
never transferred by one of the defendants named in the
Adversary Proceeding or were never transferred to one of the
defendants named in this lawsuit. Alternatively, the Buntzman
Defendants argued all of Stillwater’s fraudulent transfer claims
were barred by the statute of limitations for fraudulent transfer
claims brought under the Act (§ 3439.09).
As for Stillwater’s claims for unjust enrichment (Count 13),
civil conspiracy (Count 14), and conspiracy to defraud (Count 15),
the Buntzman Defendants argued they all failed because those
claims were entirely dependent on Stillwater’s fraudulent
transfer claims. The Buntzman Defendants also asserted
Stillwater couldn’t state a claim for aiding and abetting a
conspiracy (Count 16) because no such cause of action exists in
California and that Stillwater was prohibited from adding a new
claim for aiding and abetting breach of fiduciary duty (Count 17)
because it exceeded the scope of the court’s ruling on the original
demurrer. Finally, the Buntzman Defendants argued Stillwater
failed to state a claim for constructive trust (Count 18) because
15
Stillwater never had a right to possess any of the property giving
rise to the fraudulent transfer claims.
In support of their demurrer, the Buntzman Defendants
filed two unopposed requests for judicial notice of, among other
things, numerous title records and grant deeds concerning the
properties at issue in Stillwater’s first amended complaint and
various records from the Adversary Proceeding and the class
action lawsuits against Gerova and Net Five Holdings. The title
records showed that, aside from the Calhoun property, Net Five
Holdings never received title to any of the properties and that
none of the properties were ever transferred by a defendant
named in the Adversary Proceeding.
Stillwater opposed the demurrer to the first amended
complaint. In support of its opposition, Stillwater filed a request
for judicial notice of numerous documents, including title records
pertaining to several of the properties at issue in the first
amended complaint.
The court issued a 23-page written ruling. The court
granted the Buntzman Defendants’ requests for judicial notice in
their entirety, and it granted Stillwater’s request in part, taking
judicial notice of, among other things, the included title records.
As a preliminary matter, the court found Counts 1 through
6 (fraudulent transfers of the Savannah Oaks, Sabal Storage, and
Calhoun Proceeds, respectively) appeared to be time barred
under section 3439.09, concluding all the transfers to the various
Buntzman Defendants were alleged to have been made more
than four years before Stillwater filed this lawsuit. The court,
however, overruled the demurrer as to Counts 1 and 3 on statute
of limitations grounds because Stillwater could show at trial that
it did not discover the fraudulent nature of the underlying
16
transfers until less than a year before it filed this lawsuit (§
3439.09, subd. (a)). As for Count 5, the court sustained the
demurrer but granted Stillwater leave to amend to plead facts
showing it did not discover the fraudulent nature of the
underlying transfers until less than a year before it filed this
lawsuit (§ 3439.09, subd. (a)). The court denied Stillwater leave to
amend its constructive fraudulent transfer claims asserted in
Counts 2, 4, and 6.
But the court sustained the demurrer without leave to
amend as to all of Stillwater’s fraudulent transfer claims, except
Count 5, on alternative grounds. In this part of its ruling, the
court rejected Stillwater’s assertions that Net Five Holdings
owned all of the property at issue in Counts 1 through 12 by
virtue of Section 2.3(c) of the joint venture’s Operating
Agreement, which purported to vest Net Five Holdings with
ownership of all the property its founding members pledged to
contribute to the joint venture.
For Counts 1 and 2 (the Savannah Oaks Property) and
Counts 3 and 4 (the Sabal Storage Property), the court found
Stillwater could not state claims for actual or constructive
fraudulent transfer because Stillwater never alleged the
properties were transferred by Net Five Holdings or one of the
other defendants named in the Adversary Proceeding.
The court sustained the demurrer with leave to amend as
to Count 5—i.e., actual fraudulent transfer of the Calhoun
Proceeds. The court directed Stillwater to “more accurately plead”
that the transfer of the proceeds from the sale of the Calhoun
Property from Net Five Holdings to Buntzman or Degma “was
meant to render [Net Five Holdings] judgment proof in light of
the ongoing or threatened litigation by [Stillwater].”
17
As for Counts 7 and 8 (Tract F), the court found Stillwater’s
allegations were “so uncertain” and contradictory that it was
“impossible to determine the identities of the transferor and
transferee, … the date of the transfer[,]” or the identity of the
“property itself.” In other words, the court found Stillwater failed
to allege how the property was transferred by Net Five Holdings
or one of the defendants in the Adversary Proceeding to one of the
Buntzman Defendants.
Likewise, with respect to Counts 9 and 10 (the Port
Property), the court found the claims were fatally uncertain
because Stillwater failed to “actually plead when the transfer of
the Port Property took place or the identities of the transferor
and transferee.” The court explained that while Stillwater
acknowledged in its pleading that it was uncertain when, if ever,
the Port Property was transferred, the judicially noticed title
records filed in support of the Buntzman Defendants’ demurrer
showed the property was never transferred to one of the
Buntzman Defendants.
For Counts 11 and 12 (the Steinmetz Property), the court
found Stillwater failed to state claims for actual and constructive
fraudulent transfer because it alleged only that the property was
transferred by an entity that was not a defendant in the
Adversary Proceeding (Lady Lake Hotel, LLC) to an
“unidentified” partner in a joint venture in which Rohan and
Buntzman were involved. In other words, Stillwater failed to
allege the property was transferred by one of the defendants in
the Adversary Proceeding to one of the defendants named in this
case.
As to Counts 13 (unjust enrichment), 14 (civil conspiracy),
15 (conspiracy to defraud), and 16 (aiding and abetting
18
conspiracy), the court granted Stillwater leave to amend those
claims insofar as they arise out of the allegations that defendants
obtained the Calhoun proceeds through fraudulent transfers. The
court denied Stillwater leave to amend Count 17 (aiding and
abetting breach of fiduciary duty) because it was not asserted in
the original complaint and did not fall within the scope of the
court’s ruling allowing Stillwater to amend its original complaint.
And the court denied Stillwater leave to amend Count 18
(constructive trust) because it could not allege it was ever
entitled to possess any of the property or proceeds at issue in its
lawsuit.
In November 2020, after Stillwater elected not to file a
second amended complaint, the court entered judgment
dismissing all of Stillwater’s claims against the Buntzman
Defendants. Stillwater appeals.
DISCUSSION6
1. General Principles of Appellate Review
We independently review an order sustaining a demurrer
to determine whether the operative complaint alleges facts
sufficient to state a cause of action, liberally construing the
complaint’s allegations and assuming the truth of all properly
pled facts and matters that are judicially noticeable. (Ivanoff v.
Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725; Quelimane
Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 43, fn. 7.)
6 We deny Stillwater’s request for judicial notice of the reporter’s
transcript from an October 2018 hearing in a pending bankruptcy
court case entitled, Stillwater Liquidating, LLC v. Degma Investing,
LLC, et al., case No. 2:18-ap-01220-BB.
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That doesn’t mean, however, that we must tackle issues or
arguments that have not been meaningfully developed by the
appealing party. Rather, our review of an order sustaining a
demurrer “ ‘ “is limited to issues which have been adequately
raised and supported in [appellant’s opening] brief.” [Citations.]’ ”
(Foxen v. Carpenter (2016) 6 Cal.App.5th 284, 290, fn. 2 (Foxen).)
Accordingly, we will not consider arguments that, while only
perfunctorily raised in an opening brief, are more fully developed
in the appellant’s reply brief unless the appellant demonstrates
good cause for not developing the argument in its opening brief.
(Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325,
335, fn. 8 (Neighbours).)
These rules are derived from a cornerstone of appellate
review: a judgment is presumed correct and will not be disturbed
unless the appellant affirmatively shows the trial court
committed reversible error. (Cal. Const., art. VI, § 13; Dietz v.
Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 799.) The
appellant, therefore, “must present meaningful legal analysis
supported by citations to authority and citations to facts in the
record that support the claim of error.” (In re S.C. (2006) 138
Cal.App.4th 396, 408.)
To that end, the appellant’s opening brief must: (1) state
each point raised under a separate heading; (2) support every
factual assertion, including those in the brief’s argument section,
with accurate citations to the appellate record; and (3) support
each point with cogent legal argument and, where possible,
citation to pertinent legal authority. (Cal. Rules of Court, rule
8.204(a)(1).) If the appellant doesn’t comply with these
requirements, the reviewing court may disregard the appellant’s
claims of error as perfunctory. (See Landry v. Berryessa Union
20
School Dist. (1995) 39 Cal.App.4th 691, 699–700 (Landry) [“When
an issue is unsupported by pertinent or cognizable legal
argument it may be deemed abandoned and discussion by the
reviewing court is unnecessary.”]; see also Princess Cruise Lines,
Ltd. v. Superior Court (2009) 179 Cal.App.4th 36, 45 (Princess
Cruise Lines) [assertions in appellate brief not supported by
references to the record may be disregarded].)
2. Relevant Provisions of the Act
The Act protects creditors against fraudulent transfers of
property made by their debtors. (Mejia v. Reed (2003) 31 Cal.4th
657, 664 (Mejia).) “ ‘A fraudulent conveyance is 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.’ ” (Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 648.)
Through the Act, a creditor may “reach property in the hands of a
transferee,” unless the transferee obtained the property in good
faith and for a reasonably equivalent value. (Mejia, at p. 663;
§ 3439.08.)
Under the Act, a transfer may involve actual or
constructive fraud. (Mejia, supra, 31 Cal.4th at p. 664.) A transfer
involves actual fraud if it was made “with actual intent to hinder,
delay, or defraud any creditor of the debtor.” (§ 3439.04, subd.
(a)(1).) A transfer involves constructive fraud if it was made
without the debtor “receiving a reasonably equivalent value in
exchange for the transfer or obligation” and: (1) “the debtor was
insolvent at that time or the debtor became insolvent as a result
of the transfer or obligation” (§ 3439.05, subd. (a)); or (2) the
debtor either “(A) [w]as engaged or was about to engage in a
business or a transaction for which the remaining assets of the
debtor were unreasonably small in relation to the business
21
transaction” or “(B) [i]ntended to incur, or believed or reasonably
should have believed that the debtor would incur, debts beyond
the debtor’s ability to pay as they became due” (§ 3439.04, subd.
(a)(2)).
Thus, to state a claim for actual or constructive fraudulent
transfer against a transferee, a plaintiff must plead, at a
minimum, that there was (1) a transfer of property from one of
the plaintiff’s debtors; (2) to the transferee, whether directly from
the debtor or from an intermediate transferee of the debtor. (See
3439.08, subd. (b)(1); Filip v. Bucurenciu (2005) 129 Cal.App.4th
825, 829 (Filip).)
3. The court should have granted Stillwater leave to
amend Count 3.
Before addressing the numerous defects in Stillwater’s
opening brief, we address the single fraudulent transfer claim it
has shown the court should have allowed it to amend—i.e., Count
3 for actual fraudulent transfer of the Sabal Storage property.
3.1. Relevant Background
As we noted above, when it granted leave to amend the
original complaint, the court directed Stillwater to plead facts
showing the transferor of each property was either Rohan, Net
Five Holdings, or another entity related to Net Five Holdings
that was named as a defendant in the Adversary Proceeding.
In the first amended complaint, Stillwater alleged that in
November 2013, only a few months before it filed the Adversary
Proceeding, an entity named “Sabal Palm Ventures, L.L.C.”
transferred the Sabal Storage property to GMA and SDC. While
GMA and SDC are defendants named in this case, Sabal Palm
Ventures, L.L.C. was not a defendant named in the Adversary
22
Proceeding. Because Stillwater did not otherwise allege Rohan,
Net Five Holdings, or any other defendant named in the
Adversary Proceeding transferred the Sabal Storage property, or
that the transferor of the property was threatened with litigation
when the transfer was made, the court sustained the demurrer
without leave to amend as to Count 3 (actual fraudulent transfer)
and Count 4 (constructive fraudulent transfer).
But the court granted Stillwater’s request for judicial notice
of various title records, including those pertaining to the Sabal
Storage property. While the Sabal Storage property records that
Stillwater submitted largely overlapped with the records
provided by the Buntzman Defendants, they included some deeds
and affidavits that were not included in the Buntzman
Defendants’ request for judicial notice.
Most importantly, as Stillwater points out in its opening
brief, Stillwater’s records included a sworn affidavit signed and
executed by Rohan on November 19, 2013, the same day the
Sabal Storage property was transferred from Sabal Palm
Ventures, L.L.C. to GMA and SDC. In the affidavit, which was
later recorded in Florida, Rohan stated that a prior deed he
signed in November 2008 purporting to transfer the Sabal
Storage property to a “Sabal Ventures, L.L.C.” was a nullity
because such entity has never existed and the property was never
conveyed to any entity by that name.
Stillwater’s judicially noticed records also included a
special warranty deed executed on November 19, 2013, in which
Rohan “individually and d/b/a Sabal Ventures, L.L.C.,” granted
the Sabal Storage property to Sabal Palm Ventures, L.L.C. That
same day, Sabal Palm Ventures, L.L.C. executed a deed
transferring the Sabal Storage property to GMA and SDC. In
23
other words, the judicially noticed title records provided by
Stillwater suggest that Rohan transferred the Sabal Storage
property to another entity, Sabal Palm Ventures, L.L.C.,
immediately before the property was transferred to GMA and
SDC, defendants named in this case. Although Stillwater relied
on these records in opposing the demurrer to the first amended
complaint, the court did not discuss them in its ruling on the
demurrer.
3.2. Analysis
When ruling on a demurrer, the court is limited to
considering the properly pleaded facts that appear on the face of
the complaint, except it may consider those facts that are
judicially noticeable. (Howard Jarvis Taxpayers Assn. v. City of
La Habra (2001) 25 Cal.4th 809, 814.) Generally, that means the
court may take judicial notice of the existence of a document,
such as a contract, but not the truth of matters asserted in that
contract. (Ragland v. U.S. Bank National Assn. (2012) 209
Cal.App.4th 182, 193.) An exception exists, however, for the
contents of title records of real property, such as the fact that the
property was transferred and the identities of the parties to the
underlying transaction, because a “recorded deed is an official act
of the executive branch.” (Id. at p. 194.)
To be sure, Stillwater did not allege in the first amended
complaint that a defendant named in the Adversary Proceeding
was one of the transferors of the Sabal Storage property before it
was transferred to one of the defendants named in this case.
Nevertheless, when it ruled on the demurrer to that pleading, the
court had before it judicially noticed documents showing that
Stillwater could allege facts showing Rohan, a defendant named
in the Adversary Proceeding, personally transferred the Sabal
24
Storage property to a third party immediately before it was
transferred to GMA and SDC, defendants named in this case.
Such a theory is consistent with the court’s order granting
Stillwater leave to amend the original complaint. (See § 3439.08,
subd. (b)(1) [a creditor may pursue a claim under the Act against
a subsequent transferee of the debtor’s property].)
Because Stillwater could allege the Sabal Storage property
was transferred with the intent to render Rohan, Net Five
Holdings, and the other defendants named in the Adversary
Proceeding judgment-proof (§ 3439.04, subd. (a)(1)), the court
should have granted Stillwater leave to amend Count 3 for actual
fraudulent transfer of the Sabal Storage property to state facts
consistent with those contained in Stillwater’s judicially noticed
title records for that property.7
4. Stillwater has not met its burden on appeal to show
how the court erred in sustaining the demurrer to the
fraudulent transfer claims asserted in Counts 1
through 2 and 4 through 12 of the first amended
complaint.
Stillwater’s opening brief does not fare as well with respect
to the other fraudulent transfer claims asserted in the first
amended complaint. As we explain, the 87-page brief is riddled
with defects. The brief lacks cogent argument explaining how
7 As we noted above, the court sustained the demurrer without leave to
amend as to Count 4—i.e., constructive fraudulent transfer of the
Sabal Storage property—finding it was time barred under section
3439.04, subdivision (b). We explain below why Stillwater hasn’t met
its burden on appeal to show the court erred in its application of the
statute of limitations to Stillwater’s constructive fraudulent transfer
claims.
25
Stillwater pled, or could plead, facts sufficient to state any of its
other fraudulent transfer claims or how Stillwater was prejudiced
by many of the challenged rulings. While Stillwater more fully
develops some of its arguments in its reply brief, we do not
consider those arguments since Stillwater has not shown good
cause why it couldn’t develop them in its opening brief.
(Neighbours, supra, 217 Cal.App.3d at p. 335, fn. 8; see also
People v. Baniqued (2000) 85 Cal.App.4th 13, 29 [withholding a
point or waiting to develop it until the reply brief is improper
because it deprives the respondent of a meaningful opportunity to
respond to it].)
4.1. The Court’s Interpretation of Stillwater’s Theory
of the Case
As a preliminary matter, Stillwater asserts the court
“misunderstood” its theory of the case when it limited Stillwater
to pursuing claims arising out of transfers made when Rohan,
Net Five Holdings, and the entities related to Net Five Holdings
were subject to, or threatened with, litigation by Stillwater.
According to Stillwater, the court’s interpretation conflicts with
the language of the Act, which identifies as a badge of actual
fraud a transfer that was made after “the debtor had been sued
or threatened with suit.” (§ 3439.04, subd. (b)(4).) Stillwater
claims the language “sued or threatened with suit” as used in
section 3439.04, subdivision (b)(4) means a transfer may be
fraudulent as to a plaintiff creditor if it is made during litigation
that is brought, or while litigation is threatened, by anyone, even
if those bringing or threatening suit when the transfer was made
are not related to the plaintiff creditor. This argument is
misguided.
26
When it opposed the original demurrer, Stillwater asserted
its lawsuit was based on a theory that the Buntzman Defendants
“took coordinated actions with [Buntzman’s] long-time business
partner—[Rohan]—to strip assets from entities Rohan
controlled—the Net Five Entities—to render them judgment
proof while they and Rohan were defendants in a suit brought by
Plaintiff.” (Italics added and fn. omitted.) Stillwater made a
similar representation later in its opposition, claiming, “It is
incontrovertible that [Stillwater] is the [p]laintiff in [the] pending
[Adversary Proceeding], which was pending at the time of the
transfers to” the Buntzman Defendants. (Italics added.) When it
sustained the original demurrer and granted Stillwater leave to
file an amended complaint, the court relied on these
representations, ordering Stillwater to replead its fraudulent
transfer claims according to its “stated theory.”
When a party, through its own representations, induces the
court to take a particular course of action, that party may not
later complain that the court erred in taking such action.
(Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403 (Norgart)
[“ ‘Where a party by his conduct induces the commission of error,
he is estopped from asserting it as a ground for reversal’ on
appeal.”].) Further, if the court sustains a demurrer with leave to
amend, “ ‘the plaintiff may amend [its] complaint only as
authorized by the court’s order.’ ” (Zakk v. Diesel (2019) 33
Cal.App.5th 431, 456.) In other words, “the scope of the grant of
leave is ordinarily a limited one. It gives the pleader an
opportunity to cure the defects in the particular causes of action
to which the demurrer was sustained, but that is all.”
(Community Water Coalition v. Santa Cruz County Local Agency
Formation Com. (2011) 200 Cal.App.4th 1317, 1329.)
27
In light of the representations Stillwater made to induce
the court to grant it leave to amend the original complaint and
the scope of the court’s order granting Stillwater that leave,
Stillwater was limited to pleading its case under a theory “that
the debtor who transferred the property to [the Buntzman]
Defendants had been sued or threatened with suit by [Stillwater]
at the time the transfer occurred.” Stillwater cannot complain
that the court erred in ordering it to plead its case in a manner
consistent with Stillwater’s own representations. (Norgart, supra,
21 Cal.4th at p. 403.)
In any event, Stillwater hasn’t shown how it was prejudiced
by the court’s interpretation of the theory of its case. We will not
reverse a judgment unless the appellant first shows how the
purported error resulted in a miscarriage of justice. (Cal. Const.,
art. VI, § 13; Century Surety Co. v. Polisso (2006) 139 Cal.App.4th
922, 963 (Century) [“we cannot presume prejudice and will not
reverse the judgment in the absence of an affirmative showing
there was a miscarriage of justice”].) It is not sufficient for the
appellant to assert an error was prejudicial without meaningful
analysis. Rather, the appellant must spell “out in [its] brief
exactly how the error caused a miscarriage of justice.” (Paterno v.
State of California (1999) 74 Cal.App.4th 68, 106 (Paterno).)
Stillwater offers only a conclusory statement that it was
prejudiced because the court’s framing of the theory of its case
“short-circuited” its ability to avoid and recover the “the three
2013 transfers.” But Stillwater doesn’t explain exactly how any of
its claims were affected by the court’s finding, let alone identify
which causes of action involve the “three 2013 transfers.” For
instance, Stillwater doesn’t claim that but for the court’s framing
of the theory of its case, Stillwater adequately pled, or could have
28
pled, any of its fraudulent transfer claims. Stillwater, therefore,
hasn’t shown how it was prejudiced by the court’s framing of the
theory of the case. (Paterno, supra, 74 Cal.App.4th at p. 106.)
4.2. Sufficiency of the Fraudulent Transfer
Allegations
In the main argument section of its opening brief,
Stillwater includes the following heading: “The Court Erred In
Finding [Stillwater] Failed to State Claims For Actual And
Constructive Fraudulent Transfer.” The argument that
accompanies this heading is about five pages long, in which
Stillwater asserts, in a generalized manner, that the court erred
in sustaining the demurrer to the first amended complaint
because Stillwater pled sufficient facts to state each of its
fraudulent transfer claims. Here is a summary of Stillwater’s
argument, with some excerpts to illustrate its deficiencies.
After briefly summarizing section 3439.04 of the Act,
Stillwater asserts that “[o]verwhelming facts support [its] actual
fraudulent transfer claims. Rohan/[Net Five Holdings], knowing
that they were either in or facing litigation, in 2013 transferred
the First Savannah Oaks, Sabal Storage Properties and the
Calhoun Proceeds to Buntzman/Entities (including one in which
Rohan maintained an interest) in the hopes of rendering
themselves judgment proof and evading creditors. After the
‘transfers,’ Rohan and Buntzman together developed Savannah
Oaks. In 2015, while parties in the Class Action and NY AP,
Rohan/[Net Five Holdings] transferred four additional
[p]roperties to Defendants. In response, Buntzman kicked back
approximately $1,100,000 in cash to Rohan and staked Rohan in
business deals worth $13,000,000. These transfers intentionally
hindered and defrauded [Stillwater] and those for whom it acts,
29
in violation of §3439.04(a)(1).” Stillwater then includes a 19-line
sentence listing the various “badges” of fraud it pled in the first
amended complaint that show the transfers giving rise to this
lawsuit were actually fraudulent.
Wrapping up this portion of its argument, Stillwater lists
the alleged values for the various properties at issue in this
lawsuit (without explaining when the properties were valued at
such amounts), and states in conclusory fashion, “Because [Net
Five Holdings] did not receive fair value for these transfers, they
were also constructively fraudulent under [the Act].”
This argument is insufficient for a couple of reasons. First,
Stillwater fails to engage in a meaningful analysis of any of its
fraudulent transfer claims.
As we explained above, a plaintiff seeking to invalidate a
transfer of property as fraudulent under the Act must plead, at a
minimum, which property was transferred, which debtor made
the transfer, and to which defendant the property was
transferred. (See § 3439.08; Filip, supra, 129 Cal.App.4th at p.
829 [discussing the basic elements of a fraudulent transfer claim
under the Act].) In its 23-page written ruling sustaining the
demurrer to the first amended complaint, the court explained in
detail how Stillwater failed to plead all of these elements as to
each of its fraudulent transfer claims. Stillwater, however, fails
to engage in such an analysis. It doesn’t identify, as to each
claim, which property forms the basis for the fraudulent transfer,
which of its debtors allegedly transferred the property, and which
defendant named in this case was the transferee of the property.
Indeed, Stillwater references by name only three of the
properties at issue in this lawsuit, and it doesn’t identify any of
the individual defendants named in this case, aside from
30
Buntzman, even though none of its fraudulent transfer claims are
based on a theory that Buntzman alone, or every Buntzman
Defendant, was involved in the underlying transfer. In short,
Stillwater’s argument is woefully underdeveloped and conclusory.
As such, we disregard it. (Landry, supra, 39 Cal.App.4th at pp.
699–700; see also People v. Freeman (1994) 8 Cal.4th 450, 482, fn.
2 [appellant abandoned claims of error that he only
“perfunctorily” asserted “without development and … without a
clear indication that they [were] intended to be discrete
contentions”].)
The second defect is Stillwater’s failure to cite to the record
to support many of its factual assertions. Although Stillwater
supports its 19-line list of the badges of fraud with a block of
citations to the parts of the first amended complaint where those
allegations appear, it does not provide any record citations to
support its conclusory assertions that Rohan or Net Five
Holdings transferred the underlying properties to the defendants
in this case. That is, Stillwater doesn’t point to where in the first
amended complaint it pled which of Stillwater’s debtors
transferred each property at issue in this case to which of the six
named defendants. Nor does Stillwater point to any of the
exhibits or judicially noticed records where the facts supporting
any of its fraudulent transfer claims appear. For that reason,
Stillwater has forfeited this argument (Princess Cruise Lines,
supra, 179 Cal.App.4th at p. 45 [assertions in appellate brief not
supported by references to the record may be deemed forfeited].)
4.3. The Alter Ego Doctrine
Stillwater next contends the court erred when it didn’t find
several of the alleged transferors named in the first amended
complaint who were not defendants in the Adversary Proceeding
31
were “sham” or “shell” companies of Rohan and Net Five
Holdings and, as such, should have been treated as their alter
egos. This argument is not sufficiently developed.
To establish that a company is a defendant’s alter ego, a
plaintiff must allege facts showing: (1) there is “such a unity of
interest and ownership between the corporation and its equitable
owner that the separate personalities of the corporation and the
shareholder do not in reality exist”; and (2) there would be “an
inequitable result if the acts in question are treated as those of
the corporation alone.” (Sonora Diamond Corp. v. Superior Court
(2000) 83 Cal.App.4th 523, 538 (Sonora).) “ ‘Among the factors to
be considered in applying the [alter ego] doctrine are
commingling of funds and other assets of the two entities, the
holding out by one entity that it is liable for the debts of the
other, identical equitable ownership in the two entities, use of the
same offices and employees, and use of one as a mere shell or
conduit for the affairs of the other.’ [Citations.] Other factors
which have been described in the case law include inadequate
capitalization, disregard of corporate formalities, lack of
segregation of corporate records, and identical directors and
officers. [Citations.] No one characteristic governs, but the courts
must look at all the circumstances to determine whether the
doctrine should be applied. [Citation.] Alter ego is an extreme
remedy, sparingly used.” (Id. at pp. 538–539.)
Stillwater cites to only one paragraph in its first amended
complaint to support its argument that it pled facts sufficient to
warrant application of the alter ego doctrine to its fraudulent
transfer claims. That paragraph states: “Once [Net Five
Holdings] was formed, Rohan became its mastermind and created
numerous Net Five Special Purpose Entities (‘SPEs’) (together
32
with [Net Five Holdings], the ‘Net Five Entities’) to which he
then transferred assets contributed to [Net Five Holdings] as a
means of capturing the financial benefit of these assets for
himself and his co-conspirators. All [Net Five Holdings] assets,
however, should have existed for the financial benefit of [Net Five
Holdings’] members as a whole, including Gerova Financial.”
This allegation does not establish the conditions for
applying the alter ego doctrine. For instance, it doesn’t identify
any specific entity that was supposedly an alter ego of Rohan or
Net Five Holdings. Nor does it address any of the factors used to
determine whether an entity should be treated as an alter ego,
such as which specific assets were comingled between any alleged
alter egos and Net Five Holdings or Rohan. (Sonora, supra, 83
Cal.App.4th at pp. 538–539; see also Leek v. Cooper (2011) 194
Cal.App.4th 399, 415 [“An allegation that a person owns all of the
corporate stock and makes all of the management decisions is
insufficient to cause the court to disregard the corporate
entity.”].) It also doesn’t allege as to each claim Stillwater
contends the doctrine should apply which alter ego entity was
involved in the underlying transfer or series of transfers.
In other parts of its argument, Stillwater makes only
unsupported factual assertions that Rohan or Net Five Holdings
used alter ego entities to transfer some of the properties. For
example, Stillwater claims, “For the First Savannah Oaks
Property, Rohan used a shell—[Net Five at Savannah Oaks],
which, until the day of the transfer, was a defunct entity owned
by [Net Five Holdings], which Rohan controlled. Rohan revived
[Net Five at Savannah Oaks] only to facilitate that transfer to
GMA (in which he has an interest). For the Second Savannah
Oaks Property, Rohan used his shell—[Development Property
33
Holdings]—which he wholly-owned through yet another shell—
DPHI. The Court wrote ‘neither Net Five at Savannah Oaks, nor
[Development Property Holdings] (the transferors of the
Savannah Oaks Property) were named as defendants in the
[Adversary Proceeding].’ ”
Stillwater doesn’t support this argument with citations to
where in the first amended complaint it alleged that Net Five at
Savannah Oaks and Development Properties Holdings were alter
egos of Rohan or Net Five Holdings. Nor does Stillwater cite to
any of the exhibits attached to the first amended complaint or
judicially noticed documents that would support these assertions.
Instead, Stillwater cites to only a single page of the court’s ruling
on the demurrer to the first amended complaint, in which the
court found that neither Net Five at Savannah Oaks nor
Development Property Holdings was one of Stillwater’s debtors.
Needless to say, the court’s ruling is not an allegation in a
pleading or evidence establishing the facts of the claim that the
court’s ruling addresses.
It is not our responsibility to scour the more-than 4,000-
page record, without Stillwater’s assistance, to find facts and
allegations that support Stillwater’s claims of error. We therefore
disregard Stillwater’s contention that Net Five at Savannah
Oaks and Development Property Holdings were alter egos of
Rohan or Net Five Holdings. (Princess Cruise Lines, supra, 179
Cal.App.4th at p. 45 [assertions in appellate brief not supported
by references to the record may be disregarded].)
In short, Stillwater hasn’t developed any meaningful
analysis demonstrating the court erred when it did not apply the
alter ego doctrine in ruling on the demurrer to the first amended
complaint. (Landry, supra, 39 Cal.App.4th at pp. 699–700.)
34
4.4. Title Records
Stillwater also contends the court erred when it relied on
facts included in the Buntzman Defendants’ judicially noticed
title records that contradicted allegations in the first amended
complaint. Aside from pointing out the discrepancies apparent in
the title records for the Sabal Storage property that we discussed
above, Stillwater hasn’t developed this issue or shown how it was
otherwise prejudiced by the court’s reliance on any of the
Buntzman Defendants’ title records.
First, Stillwater argues the court erred when it relied on
title records pertaining to the two sets of Savannah Oaks parcels.
Stillwater asserts the title records don’t reflect true ownership
because Net Five Holdings never shows up in the properties’
chain of title. This argument is forfeited because Stillwater
doesn’t support it with citations to the parts of the record where
any of the title records it claims are inaccurate are located.
(Princess Cruise Lines, supra, 179 Cal.App.4th at p. 45.)
In any event, as we explain in more detail later in this
opinion, whether the court credited Stillwater’s allegations that
the Savannah Oaks parcels were once owned by Net Five
Holdings is immaterial. Stillwater never alleged, nor does it
assert it can allege, that Net Five Holdings, Rohan, or one of the
defendants named in the Adversary Proceeding ever transferred
the Savannah Oaks parcels. And, as we just explained above, to
the extent Stillwater asserts the transferors of the Savannah
Oaks parcels were Rohan’s alter egos, Stillwater hasn’t shown
how it can plead facts supporting application of the alter ego
doctrine to any of its causes of action. Thus, Stillwater hasn’t
established it can state a claim against the Buntzman
Defendants for actual or constructive fraudulent transfer of the
35
Savannah Oaks parcels. (See § 3439.04, subd. (a) [to void a
transfer, the plaintiff must establish it was made by one of its
debtors].)
Second, Stillwater faults the court for assuming the title
records for the Port, Tract F, and Steinmetz properties were
accurate. This argument is also forfeited because Stillwater
doesn’t support it with citations to the numerous title records it
claims are inaccurate. (Princess Cruise Lines, supra, 179
Cal.App.4th at p. 45.)
In any event, Stillwater can’t show how it was harmed by
the court’s reliance on these title records. As to each property,
Stillwater admitted in the first amended complaint that the
property either was never transferred to one of the Buntzman
Defendants or that it was unclear whether any of the underlying
transfers were finalized. In other words, Stillwater never alleged
that any of the defendants named in this case were the
transferees of the Port, Tract F, or Steinmetz property. Nor has it
shown it can allege such facts. In other words, Stillwater hasn’t
shown it can state claims against the Buntzman Defendants for
actual or constructive fraudulent transfer of the Port, Tract F,
and Steinmetz properties. (See § 3439.08 [a defendant must have
been a transferee of property once owned by the plaintiff’s
debtor].)
4.5. Statute of Limitations for Constructive
Fraudulent Transfer Claims
Stillwater contends the court misapplied the statute of
limitations governing constructive fraudulent transfer claims.
As an initial matter, Stillwater’s argument addresses only
one of its constructive fraudulent claims that the court dismissed
as time-barred—i.e., Count 2 for constructive fraudulent transfer
36
of one set of the Savannah Oaks parcels. We need not address
Stillwater’s statute of limitations argument as it relates to Count
2 because, as we’ve already explained, Stillwater hasn’t otherwise
shown it can plead the elements necessary to state a claim for
constructive fraudulent transfer of any of the Savannah Oaks
parcels. To the extent Stillwater purports to challenge the court’s
findings that the constructive fraudulent transfer claims asserted
in Counts 4 and 6 of the first amended complaint were also time-
barred, Stillwater hasn’t developed any meaningful legal
argument challenging those findings.
In any event, Stillwater’s challenge to the court’s
interpretation of the statute of limitations for constructive
fraudulent transfer claims is not well taken. Stillwater asserts
the court “should have applied the discovery rule to toll the
limitations period, as it did with actual fraudulent transfer
claims.”
Section 3439.09 establishes the limitations periods within
which a plaintiff must bring actual and constructive fraudulent
transfer claims under the Act. (PGA West Residential Assn., Inc.
v. Hulven Internat., Inc. (2017) 14 Cal.App.5th 156, 179.) A claim
for actual fraudulent transfer under section 3439.04, subdivision
(a)(1) must be brought “not later than four years after the
transfer was made or the obligation was incurred or, if later, not
later than one year after the transfer or obligation was or could
reasonably have been discovered by the claimant.” (§ 3439.09,
subd. (a).) A claim for constructive fraudulent transfer under
section 3439.04, subdivision (a)(2) or section 3439.05 must be
brought “not later than four years after the transfer was made or
the obligation was incurred.” (§ 3439.09, subd. (b).)
37
In finding some of Stillwater’s constructive fraudulent
transfer claims were time barred, the court analyzed the
language of section 3439.09. Applying the expressio unis est
exclusio alterius canon of statutory construction, the court found
that the extended limitations period for delayed discovery of
actual fraudulent transfer claims set forth in section 3439.09,
subdivision (a) does not apply to constructive fraudulent transfer
claims. Specifically, the court concluded that because section
3439.09 expressly extends the limitations period for delayed
discovery of actual fraudulent transfer claims, while omitting
such language from section 3439.09, subdivision (b), which
establishes the limitations period for constructive fraudulent
transfer claims, the Legislature clearly intended for the extended
limitations period to apply only to actual fraudulent transfer
claims brought under section 3439.04, subdivision (a)(1). (See
People v. Palacios (2007) 41 Cal.4th 720, 732 (Palacios)[where
exemptions are identified in one part of a statute, we may not
apply them to other parts of the statute that do not provide for
such exemptions “unless there is a clear legislative intent to the
contrary”].)
As the court’s ruling makes clear, whether an extended
limitations period applies to a constructive fraudulent transfer
claim is an issue of statutory interpretation. That is, to determine
whether the extended limitations period for delayed discovery of
a transfer applies to constructive fraudulent transfer claims, we
must analyze the language and structure of section 3439.09. (See
Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733
[analysis of statutory interpretation issues begins with the
language of the statute].) But Stillwater never cites to section
3439.09 or discusses the language or structure of the statute to
38
support its argument that the court “should have applied the
discovery rule to toll the limitations period, as it did with actual
fraudulent transfer claims.” Because it has not developed any
meaningful legal analysis of section 3439.09’s language,
Stillwater has forfeited any challenge to the court’s interpretation
of that statute. (See Foxen, supra, 6 Cal.App.5th at p. 296
[plaintiff’s failure to cite to the statute establishing the
limitations period for one of her claims forfeited her challenge to
the court’s determination that the claim was barred by that
limitations period].)
Regardless, Stillwater’s argument fails on the merits. The
language of section 3439.09 is clear. Unlike subdivision (a), which
expressly applies to actual fraudulent transfer claims,
subdivision (b) does not include any language extending the
limitations period for a constructive fraudulent transfer claim to
account for a plaintiff’s delayed discovery of the underlying
transfer. Aside from that difference, the two provisions each use
identical language to establish a four-year limitations period for
their respective class of claims. We may not imply, without clear
legislative intent to the contrary, an exception to one part of
statute, where that exception appears in another part of the
statute (i.e., §3439.09, subdivision (a)) but not in the provision at
issue (i.e., §3439.09, subdivision (b)). (Palacios, supra, 41 Cal.4th
at p. 732.) Because Stillwater does not address the language of
section 3439.09, let alone the Legislature’s intent in enacting that
statute, Stillwater has not shown why we should imply the
extended limitations period identified in section 3439.09,
subdivision (a) also applies to section 3439.09, subdivision (b).
Stillwater relies on Cortez v. Vogt (1997) 52 Cal.App.4th
917 (Cortez) to contend an extended limitations period also
39
applies to constructive fraudulent transfer claims. This reliance
is misplaced.
In Cortez, the court held that in cases “where there is an
alleged fraudulent transfer made during a pending lawsuit that
will establish whether in fact, and the extent to which, a debtor-
creditor relationship exists, … the limitation period [under
section 3439.09] does not commence to run until the judgment in
the underlying action becomes final.” (Cortez, supra, 52
Cal.App.4th at p. 937.) That is not the issue here. Stillwater does
not contend that the limitations period never began to run in this
case or that the necessary creditor-debtor relationships for each
of its constructive fraudulent transfer claims didn’t exist until
after the underlying transfers were made. Rather, it claims only
that the extended limitations period for delayed discovery of an
actual fraudulent transfer should also apply to constructive
fraudulent transfers.
Undercutting Stillwater’s argument even further, the court
in Cortez explained that it was “unnecessary to discuss the one-
year [extension] provision” set forth in section 3439.09, while
noting that that provision only applies to claims governed by
section 3439.09, subdivision (a)—i.e., claims for actual fraudulent
transfer under section 3439.04, subdivision (a)(1). (Cortez, supra,
52 Cal.App.4th at p. 937; see also § 3439.09, subd. (a).) Stillwater
doesn’t address this part of the opinion in Cortez.
4.6. The Bankruptcy Court’s Injunction
Next, Stillwater claims the court erred when it failed to
consider a preliminary injunction issued by the bankruptcy court
in the Adversary Proceeding.
Stillwater attached as an exhibit to its first amended
complaint a copy of an injunction issued by the bankruptcy court
40
in the Adversary Proceeding in January 2015. The injunction
precluded the Adversary Proceeding defendants from “selling,
transferring, pledging or hypothecating any assets formerly
belonging to or which can be traced to assets formerly belonging
to, the Stillwater Funds, including, without limitation, the
specific assets defined in the Motion as the Brandermill Escrow,
the Winn Dixie Escrow, the Calhoun Track 2, the Life Policy and
the Port Property, and the Kesef Properties.” While its argument
is convoluted and difficult to follow, Stillwater appears to claim
the court in this case erred by failing to consider the injunction
when it found Stillwater failed to state its claims for actual and
constructive fraudulent transfers of the Port Property asserted in
Counts 9 and 10 of the first amended complaint.
At the threshold, Stillwater has not shown the “Port
Property” referenced in the bankruptcy court’s injunction is the
same property at issue in Counts 9 and 10 of the first amended
complaint. Indeed, the record suggests the two properties are not
the same. The injunction includes no information about where
the “Port Property” is located, but it does state that the property
was formerly owned by the Funds or could be traced to assets
formerly owned by the Funds. In the first amended complaint,
however, Stillwater repeatedly alleged that the Port Property
giving rise to Counts 9 and 10 was first owned by Planet Five
until Rohan pledged to contribute it to Net Five Holdings. The
Port Property also appears in the first amended complaint’s list
of properties formerly owned by Planet Five. Stillwater does not
point to anywhere in the first amended complaint where it ever
alleged the Port Property at issue in Counts 9 and 10 was once
owned by the Funds, nor does it point to anything else in the
record to that effect.
41
In any event, regardless of whether the bankruptcy court’s
injunction encompassed the Port Property at issue in this case,
the injunction’s existence is not relevant as to why the court
sustained the demurrer to Counts 9 and 10. The court sustained
the demurrer to Counts 9 and 10 because Stillwater never alleged
the Port Property was transferred to a defendant named in this
case. Instead, Stillwater claimed only that beginning around
April 2015, Rohan, Buntzman, and some of the other defendants
named in this case participated in negotiations with other
individuals and entities for the potential development of the Port
Property. But Stillwater admitted in the first amended complaint
that it was unclear whether any of the proposed transactions
concerning the property ever went through. Because Stillwater
hasn’t demonstrated it can allege that one of the Buntzman
Defendants was a transferee of the Port Property, the bankruptcy
court’s injunction is irrelevant to the claims asserted in this case.
(See Filip, supra, 129 Cal.App.4th at p. 829 [to state a claim for
fraudulent transfer under the Act, a plaintiff must allege the
defendant was a transferee of property owned by the plaintiff’s
debtor].) Consequently, Stillwater hasn’t shown the court erred
by not considering the injunction when it ruled on the demurrer
to the first amended complaint.
4.7. The Operating Agreement
Stillwater contends the court erred when it disregarded
allegations in the first amended complaint that the Operating
Agreement, by its terms alone, transferred ownership of the
underlying properties to Net Five Holdings. This argument lacks
merit.
It is immaterial whether the Operating Agreement
purported to vest title to the underlying properties in Net Five
42
Holdings’ name. As we discussed in the procedural background,
Stillwater never alleged Net Five Holdings transferred any of the
properties at issue, aside from the Calhoun property,8 nor does it
claim it can allege such facts. And, with the exception of the
Sabal Storage property, Stillwater hasn’t shown in its opening
brief that it can allege that any of the defendants named in the
Adversary Proceeding transferred the underlying properties—
directly, indirectly, or through an alter ego—to one of the
defendants named in this case. Thus, Stillwater cannot show
what prejudice it suffered from the court disregarding the
language in the Operating Agreement purporting to transfer
ownership of the underlying properties to Net Five Holdings.
(Century, supra, 139 Cal.App.4th at p. 963.)
4.8. Allegations Concerning Buntzman’s Conspiracy
with Rohan
Stillwater also asserts the court erred when it disregarded
allegations in the first amended complaint and various exhibits
showing Rohan and Buntzman had “conspired together and that
Buntzman was intimately aware of Rohan’s scheme.” Stillwater
makes no effort, however, to explain how these facts are relevant
to any of the claims it asserted in the first amended complaint or
how it was otherwise prejudiced by the court’s apparent
disregard of these facts. Because Stillwater has not developed
this argument, we disregard it. (See Landry, supra, 39
Cal.App.4th at pp. 699–700 [court may disregard conclusory or
8Stillwater has not offered any arguments explaining why the court
erred in sustaining the demurrer as to its fraudulent transfer claims
concerning the Calhoun property—i.e., Counts 5 and 6 for actual and
constructive fraudulent transfer of the Calhoun Proceeds.
43
perfunctory arguments included in the appellant’s opening brief];
Paterno, supra, 74 Cal.App.4th at p. 106 [the appellant must
show exactly how it was prejudiced by the court’s purported
error].)
5. The Common Law Claims
In its opening brief, Stillwater doesn’t address whether the
court erred in sustaining the demurrer without leave to amend
its claim for aiding and abetting breach of fiduciary duty asserted
in Count 17 of the first amended complaint. Likewise, Stillwater
doesn’t address the court’s decision to sustain without leave to
amend the demurrer to the constructive trust claim asserted in
Count 18 on the grounds that Stillwater cannot assert it ever had
a right to possess any of the properties at issue in this lawsuit. It
has, therefore, waived any claims of error with respect to Counts
17 and 18. (See Foxen, supra, 6 Cal.App.5th at p. 290, fn. 2
[appellate court’s review of an order sustaining a demurrer is
limited to issues that have been raised and developed in the
appellant’s opening brief].)
As for Stillwater’s other common law claims (Counts 13
through 16), the court found they rose and fell with Stillwater’s
fraudulent transfer claims because they were “premised” on the
same theories. The court did not offer any independent grounds
for sustaining the demurrer to these claims. To the extent Counts
13 through 16 arise out of facts common to Stillwater’s claim for
actual fraudulent transfer of the Sabal Storage property asserted
in Count 3, the court should have granted Stillwater leave to
amend those claims.
44
6. Stillwater has waived any right to amend its claims
concerning the Calhoun Proceeds.
Finally, as we noted above in the procedural background,
the court granted Stillwater leave to amend Count 5—i.e.,
constructive fraudulent transfer of the Calhoun Proceeds—and
Counts 13, 14, 15, and 16 to the extent they arose out of the same
facts as Count 5. Stillwater then filed a notice of election not to
amend its first amended complaint, opting to stand on that
pleading and asking the court to enter a final judgment of
dismissal as to all its claims.
“ ‘ “It is the rule that when a plaintiff is given the
opportunity to amend [its] complaint and elects not to do so, strict
construction of the complaint is required and it must be
presumed that the plaintiff has stated as strong a case as [it]
can.” ’ ” (Foxen, supra, 6 Cal.App.5th at p. 296; Le Mere v. Los
Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 244
[when an appellant declines the opportunity to amend its
pleading, “[w]e must presume the FAC as pled is the strongest
case appellant can make”].)
Stillwater offers no discernible arguments addressing why
the court erred in sustaining the demurrer as to Count 5. Thus,
by opting not to amend Counts 5, 13, 14, 15, and 16, Stillwater
has conceded it cannot state facts to cure the defects in those
claims as to the Calhoun Proceeds. (See Las Lomas Land Co.,
LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 861 [by
declining opportunity in the trial court to amend its complaint,
plaintiff forfeited any right to request on appeal leave to file an
amended complaint].) In other words, Stillwater has waived any
right to amend Count 5, as well as Counts 13, 14, 15, and 16 to
the extent they arise out of facts common to Count 5.
45
DISPOSITION
The judgment of dismissal is affirmed in part, reversed in
part, and the cause is remanded to the trial court with directions
to vacate its order sustaining the demurrer to the first amended
complaint. The court shall enter a new order sustaining the
demurrer with leave to amend Count 3, and Counts 13, 14, 15,
and 16 to the extent those claims arise out of the allegedly
fraudulent transfer of the Sabal Storage property, and sustaining
the demurrer without leave to amend as to the remaining counts.
The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
LIPNER, J.*
*Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
46