CACI 4208 Affirmative Defense—Statute of Limitations—Actual and Constructive Fraud (Civ. Code, § 3439.09(a), (b))
California Civil Jury Instructions CACI
4208 Affirmative Defense—Statute of Limitations—Actual and Constructive Fraud (Civ. Code, § 3439.09(a), (b))
[Name of defendant] contends that [name of plaintiff]’s lawsuit was not filed within the time set by law.
[[With respect to [name of plaintiff]’s claim of actual intent to hinder, delay, or defraud,] [To/to] succeed on this defense, [name of defendant] must prove that [name of plaintiff] filed [his/her/nonbinary pronoun/its] lawsuit later than four years after the [transfer was made/obligation was incurred] [or, if later than four years, no later than one year after the [transfer/obligation] was or could reasonably have been discovered by [name of plaintiff]].
[[With respect to [name of plaintiff]’s claim of constructive fraud,] [To/to] succeed on this defense, [name of defendant] must prove that [name of plaintiff] filed [his/her/nonbinary pronoun/its] lawsuit later than four years after the [transfer was made/obligation was incurred].]
New June 2006; Revised December 2007, June 2016, May 2018
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Directions for Use
This instruction provides an affirmative defense for failure to file within the statute of limitations. (See Civ. Code, § 3439.09(a), (b).) Read the first bracketed paragraph regarding delayed discovery in cases involving actual intent to hinder, delay, or defraud. (See Civ. Code, § 3439.04(a)(1); CACI No. 4200.) Read the second in cases involving constructive fraud. (See Civ. Code, §§ 3439.04(a)(2), 3439.05; CACI Nos. 4202, 4203.) Read the first bracketed phrases in those paragraphs if the plaintiff has brought both actual and constructive fraud claims.
This instruction may not be modified to assert the seven-year period under Civil Code section 3439.09(c). (See PGA West Residential Assn., Inc. v. Hulven Internat., Inc. (2017) 14 Cal.App.5th 156, 178–185 [221 Cal.Rptr.3d 353] [Civil Code section 3439.09(c) is a statute of repose, not a statute of limitations].)
Sources and Authority
•Statute of Limitations. Civil Code section 3439.09(a), (b).
•Statute of Repose. Civil Code section 3439.09(c).
•“[T]he UFTA is not the exclusive remedy by which fraudulent conveyances and transfers may be attacked. They may also be attacked by, as it were, a common law action. If and as such an action is brought, the applicable statute of limitations is section 338 (d) and, more importantly, the cause of action accrues not when the fraudulent transfer occurs but when the judgment against the debtor is secured (or maybe even later, depending upon the belated discovery issue).” (Macedo v. Bosio (2001) 86 Cal.App.4th 1044, 1051 [104 Cal.Rptr.2d 1].)
•“In the context of the scheme of law of which section 3934.09 is a part, where an alleged fraudulent transfer occurs while an action seeking to establish the underlying liability is pending, and where a judgment establishing the liability later becomes final, we construe the four-year limitation period, i.e., the language, ‘four years after the transfer was made or the obligation was incurred,’ to accommodate a tolling until the underlying liability becomes fixed by a final judgment.” (Cortez v. Vogt (1997) 52 Cal.App.4th 917, 920 [60 Cal.Rptr.2d 841].)
•“ ‘Cal. Civ. Code § 3439.09(a) and (b) are statutes of limitation requiring a plaintiff to file a fraudulent transfer action within four years of the transfer or, for an intentional fraud, within one year after the transfer was or could reasonably have been discovered.’ [Citation]” (PGA West Residential Assn., Inc., supra, 14 Cal.App.5th at p. 179.)
•“However, ‘even if belated discovery can be pleaded and proven’ with respect to the statute of limitations applicable to common law remedies for fraudulent transfers, ‘in any event the maximum elapsed time for a suit under either the UFTA or otherwise is seven years after the transfer. [Citation.]’ This conclusion logically follows from the language of section 3439.09(c). ‘[B]y its use of the term “[n]otwithstanding any other provision of law,” the Legislature clearly meant to provide an overarching, all-embracing maximum time period to attack a fraudulent transfer, no matter whether brought under the UFTA or otherwise.’ ” (PGA West Residential Assn., Inc., supra, 14 Cal.App.5th at pp. 170–171, original italics, internal citation omitted.)