California Civil Jury Instructions (CACI) (2017)

4208. Affirmative Defense—Statute of Limitations—Actual and Constructive Fraud (Civ. Code, § 3439.09)

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4208.Affirmative Defense—Statute of Limitations—Actual and
Constructive Fraud (Civ. Code, § 3439.09)
[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/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]]. But in any event, the lawsuit must have been filed
within seven years after the [transfer was made/obligation was
incurred].]
[[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/its] lawsuit later than four years after the
[transfer was made/obligation was incurred].]
New June 2006; Revised December 2007, June 2016
Directions for Use
This instruction provides an affirmative defense for failure to file within the statute
of limitations. (See Civ. Code, § 3439.09.) 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.
Sources and Authority
• Statute of Limitations. Civil Code section 3439.09.
“[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
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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].)
Secondary Sources
Ahart, California Practice Guide: Enforcing Judgments & Debts, Ch. 3-C,
Prejudgment Collection—Prelawsuit Considerations, ¶ 3:351 et seq. (The Rutter
Group)
23 California Forms of Pleading and Practice, Ch. 270, Fraudulent Conveyances,
§§ 270.49, 270.50 (Matthew Bender)
4209–4299. Reserved for Future Use
CACI No. 4208 UNIFORM FRAUDULENT TRANSACTIONS ACT
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