CACI 4207 Affirmative Defense—Good Faith (Civ. Code, § 3439.08(a), (f)(1))

California Civil Jury Instructions CACI

4207 Affirmative Defense—Good Faith (Civ. Code, § 3439.08(a), (f)(1))

[Name of defendant] is not liable to [name of plaintiff] [on the claim for actual fraud] if [name of defendant] proves both of the following:

[Use one of the following two sets of elements:]

[1.That [name of defendant] took the property from [name of debtor] in good faith; and

2.That [he/she/nonbinary pronoun/it] took the property for a reasonably equivalent value.]


[1.That [name of defendant] received the property from [name of third party], who had taken the property from [name of debtor] in good faith; and

2.That [name of third party] had taken the property for a reasonably equivalent value.]

“Good faith” means that [name of defendant/third party] acted without actual fraudulent intent and that [he/she/nonbinary pronoun/it] did not collude with [name of debtor] or otherwise actively participate in any fraudulent scheme. If you decide that [name of defendant/third party] knew facts showing that [name of debtor] had a fraudulent intent, then [name of defendant/third party] cannot have taken the property in good faith.

Directions for Use

This instruction presents a defense that is available to a good-faith transferee for value in cases involving allegations of actual fraud under the Uniform Voidable Transactions Act (formerly the Uniform Fraudulent Transfer Act). (See Civ. Code, § 3439.08(a), (f)(1).) Include the bracketed language in the first sentence if the plaintiff is bringing claims for both actual fraud and constructive fraud.

The Legislative Committee Comments—Assembly to Civil Code section 3439.08(a) provides that the transferee’s knowledge of the transferor’s fraudulent intent may, in combination with other facts, be relevant on the issue of the transferee’s good faith. (See Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1299 [123 Cal.Rptr.2d 924], emphasis added.) However, another sentence of the same comment provides “knowledge of facts rendering the transfer voidable would be inconsistent with the good faith that is required of a protected transferee.” This language indicates that if the transferee knew facts showing that the transferor had a fraudulent intent, there cannot be a finding of good faith regardless of any combination of facts; and one court has so held. (See Nautilus, Inc. v. Yang (2017) 11 Cal.App.5th 33, 46 [217 Cal.Rptr.3d 458].) The committee believes that Nautilus presents the better rule.

Sources and Authority

Transaction Not Voidable as to Good-Faith Transferee for Reasonable Value. Civil Code section 3439.08(a).

Transferee’s Burden of Proving Good Faith and Reasonable Value. Civil Code section 3439.08(f)(1).

When Value is Given. Civil Code section 3439.03.

“If a transferee or obligee took in good faith and for a reasonably equivalent value, however, the transfer or obligation is not voidable. Whether a transfer is made with fraudulent intent and whether a transferee acted in good faith and gave reasonably equivalent value within the meaning of section 3439.08, subdivision (a), are questions of fact.” (Nautilus Inc., supra, 11 Cal.App.5th at p. 40, internal citation and footnote omitted.)

“The Legislative Committee comment to Civil Code section 3439.08, subdivision (a), provides that ‘good faith,’ within the meaning of the provision, ‘means that the transferee acted without actual fraudulent intent and that he or she did not collude with the debtor or otherwise actively participate in the fraudulent scheme of the debtor. The transferee’s knowledge of the transferor’s fraudulent intent may, in combination with other facts, be relevant on the issue of the transferee’s good faith … .’ ” (Annod Corp., supra, 100 Cal.App.4th at p. 1299, internal citations omitted.)

“ ‘Fraudulent intent,’ ‘collusion,’ ‘active participation,’ ‘fraudulent scheme’—this is the language of deliberate wrongful conduct. It belies any notion that one can become a fraudulent transferee by accident, or even negligently. It certainly belies the notion that guilty knowledge can be created by the fiction of constructive notice.” (Lewis v. Superior Court (1994) 30 Cal.App.4th 1850, 1859 [37 Cal.Rptr.2d 63], original italics.)

“We read Brincko [v. Rio Props. (D.Nev., Jan. 14, 2013, No. 2:10-CV-00930-PMP-PAL) 2013 U.S.Dist. Lexis 5986, pp. *51–*52] as requiring actual knowledge by the transferee of a fraudulent intent on the part of the transferor—not merely constructive knowledge or inquiry notice. To that extent, we agree with Brincko’s construction of the proper test for application of the good faith defense. However, our formulation of the test (1) does not use the words ‘suggest to a reasonable person’ because that phrase might imply inquiry notice—a concept rejected in Lewis and Brincko—and (2) avoids use of the words ‘voidable’ and ‘fraudulent transfer’ because those concepts are inconsistent with the Legislative Committee comment to section 3439.08. Accordingly, we hold that a transferee does not take in good faith if the transferee had actual knowledge of facts showing the transferor had fraudulent intent.” (Nautilus, Inc., supra, 11 Cal.App.5th at p. 46, original italics.)

“[T]he trial court erred in placing the burden of proof on [plaintiff] to prove the good faith defense did not apply.” (Nautilus, Inc., supra, 11 Cal.App.5th at p. 41.)

“[U]nder section 3439.08, subdivision (b)(1)(A), judgment for a fraudulent transfer may be entered against ‘[t]he first transferee of the asset or the person for whose benefit the transfer was made.’ ” (Lo v. Lee (2018) 24 Cal.App.5th 1065, 1072 [234 Cal.Rptr.3d 824], original italics.)

“Contrary to plaintiff’s suggestion, the fact that a person received any kind of ‘benefit,’ no matter how intangible or indirect, from a fraudulent transaction does not necessarily subject that person to liability. There are limits to the legal assessment of the type of ‘benefit’ that will subject a beneficiary to liability for the debtor’s alleged fraudulent transfer. The benefit received must be ‘direct, ascertainable and quantifiable’ and must bear a ‘ “necessary correspondence to the value of the property transferred.” ’ ‘ “[T]ransfer beneficiary status depends on three aspects of the ‘benefit’: (1) it must actually have been received by the beneficiary; (2) it must be quantifiable; and (3) it must be accessible to the beneficiary.” ’ ” (Losupra, 24 Cal.App.5th at p. 1073.)

Secondary Sources

Ahart, California Practice Guide: Enforcing Judgments & Debts, Ch. 3-C, Prelawsuit Considerations, ¶ 3:324 (The Rutter Group)
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial—Claims & Defenses, Ch. 5(III)-C, Particular Defenses, ¶ 5:580 et seq. (The Rutter Group)
23 California Forms of Pleading and Practice, Ch. 270, Fraudulent Conveyances, §§ 270.35[2], 270.44[1], 270.47[2], [3] (Matthew Bender)