Filed 1/10/01; pub. order 1/31/01 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

This is an action, originally filed in Humboldt County and then transferred to San Francisco, to set aside certain Stanislaus County real property conveyances as fraudulent. The superior court sustained a demurrer to appellant’s amended complaint without leave to amend. The basis of its ruling was that the suit was barred by the applicable statute of limitations. We reverse.

In September 1986, both appellant Macedo (hereafter appellant) and respondent Richard J. Bosio (hereafter Bosio) were named as defendants in a Humboldt County breach of contract action; that action (Humboldt County Superior Court No. 78250) claimed that both were indebted to the several plaintiffs in an amount in excess of $500,000. In June 1992, judgment was entered in that action in favor of two of the plaintiffs and against appellant and Bosio in an amount in excess of $173,000, plus

prejudgment interest from 1985. The judgment also required Bosio to pay in excess of $19,000 to certain other plaintiffs.

The judgment remained unsatisfied through December 1998; however, between the time of the entry of the judgment in 1992 and January 1999, appellant paid in excess of $578,000 towards its satisfaction.

In January 1999, appellant filed a motion in action No. 78250 seeking contribution from respondent Bosio. In July 1999, an order was entered granting that motion. Pursuant to it, as of that month Bosio owed appellant in excess of $268,000 plus interest on payments made by appellant in excess of her proportionate share of the overall judgment.

In September and December 1993, Bosio and his wife, respondent Angie Bosio, transferred all their right, title and interest in certain Stanislaus County real properties to yet another defendant and respondent in this action, Bosio Revocable Trust. In July 1999, indeed on the same day the contribution order was entered in action No. 78250, appellant filed her complaint in this action in Humboldt County Superior Court. By stipulation, the action was transferred to San Francisco Superior Court. The complaint contains two causes of action, the first seeking to "avoid fraudulent conveyances" and the second for conspiracy. The named defendants were the two Bosios, both individually and in their capacity as trustees of the Bosio Revocable Trust, and the trust itself.

Respondents jointly demurred to the original complaint in December 1999, contending that the action was barred by the statute of limitations and that the complaint failed to plead "with particularity the requisite elements of a fraudulent conveyance." Appellant voluntarily amended her complaint the following month, and a demurrer to this amended complaint was filed by respondents promptly thereafter. This demurrer did not attack the specificity of either cause of action, but was based exclusively on the contention that the action was time-barred.

Appellant opposed the demurrer and respondents replied to that opposition. The matter was argued before the lower court on February 7, 2000. The argument concentrated entirely on the issue of the statute of limitations. The court took the matter under submission and, the following day, signed the order submitted by respondents sustaining the demurrer without leave to amend.

Judgment was entered in favor of respondents on February 23, 2000, and appellant filed a timely notice of appeal.

A. The Denial of Leave to Amend*

Appellant’s first contention is that the trial court abused its discretion in denying her leave to amend her complaint. We agree.

As noted above, the demurrer at issue was to an amended complaint. Appellant’s original complaint was also the subject of a demurrer; it was based on three grounds: (1) the bar of the statute of limitations as to both causes of action, (2) the contention that the second, conspiracy, cause of action fails because "there is no such independent cause of action," and (3) the contention that the fraudulent transfer cause of action was "not pleaded with sufficient particularity." Although stated third, this last ground was actually given the most space and, seemingly, attention, in respondents’ papers. Thus, the "Conclusion" section of respondents’ supporting memorandum of points and authorities starts off: "This poorly drafted complaint should be dismissed because it is time barred and fails to meet the minimal pleading requirements."

Two weeks after this demurrer and supporting papers were filed, appellant filed her amended complaint. Although it, too, provoked a demurrer, that demurrer omitted any attack upon the particularity of the pleading of either cause of action, concentrating entirely on the statute of limitations issue. One may presume from this that the amended pleading had addressed, and satisfactory so from respondents’ standpoint, the "uncertainty" basis of their original demurrer.

In any event, appellant concluded her opposition memorandum regarding the statute of limitations issue with a paragraph headed "If, For Any Reason The Court Sustains Any Aspect Of The Demurrer, Leave To Amend Should Be Granted." The ensuing paragraph read: "The principal thrust of the demurrer is as to a statute of limitations. Here, plaintiff challenges this defense on the legal grounds that the statute of limitations on its face has been complied with. However, there are also numerous doctrines such as estoppel, discovery, etc., of a factual nature which can render the statute of limitations inapplicable. Plaintiff should be granted leave to amend her complaint to allege such factual circumstances if the court finds that the statute of limitations defense is meritorious without such further factual allegations."

Notwithstanding this, the trial court signed the order prepared by respondents’ counsel sustaining the demurrer as to both causes of action without leave to amend.

Before us, respondents defend this aspect of the court’s ruling on the basis, inter alia, that appellant had plenty of other opportunities to plead what she now contends she wants to plead, i.e., belated discovery. Those prior opportunities were, respondents contend (1) when appellant amended her complaint in response to the first demurrer, (2) in the course of her opposition memorandum, i.e., instead of the more generalized phraseology quoted above, and (3) at oral argument. In connection with this latter alleged "missed opportunity," respondents point out that, in the course of a very brief interchange with the court on the belated discovery issue, appellant’s counsel stated: "I don’t believe we have to [allege belated discovery]."

Appellant could have and perhaps should have bit this particular bullet faster and better than she did, but the facts remain that (1) she specifically asked the lower court to allow her to amend in the event it did not agree with her on the basic legal issue of whether one, or more than one, statute of limitations applies (see post, part B) and (2) the law is overwhelmingly to the effect that it is an abuse of discretion to refuse to grant leave to amend when there exists a "reasonable possibility" that an amendment can cure the failing. (See, generally, 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, §§ 943, 944.)

A decision illustrative of this oft-repeated rule is Postley v. Harvey (1984) 153 Cal.App.3d 280. There, the court said: "The allegations in the complaint are to be liberally construed with a view to substantive justice between the parties. [Citation.] ‘Liberality in permitting amendment is the rule, not only where a complaint is defective as to form but also where it is deficient in substance, if a fair opportunity to correct the substantive defect has not been given.’ [Citation.] Unless the complaint shows on its face that it is incapable of amendment, denial of leave will constitute an abuse of discretion. [Citation.] [¶]  ‘[I]t will be held an abuse of discretion to sustain without leave to amend a demurrer where the complaint is not fundamentally deficient in alleging facts showing a right to some relief which can properly be given, but is only defective with respect to the manner or form in which the facts warranting relief have been pleaded.’ [Citation.] On appeal the court is not concerned with a party’s possible difficulty or inability in proving the allegations of the complaint [citation], but only that the party may be entitled to some relief. [Citation.]" (Id. at p. 287; see also, to the same effect, Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 168, and, indeed, many other cases cited by Witkin in the sections cited ante.)

But this is not what happened here. Although, as noted, appellant could have and perhaps should have pled an alternate theory of belated discovery in her amended complaint, her principal argument in opposition to respondents’ second demurrer was (as it is here) that the limitations provision in the Uniform Fraudulent Transfer Act (UFTA; Civ. Code., § 3439.09, subds. (a) and (b), hereafter, e.g., section 3439.09 (a)), the provision cited and relied upon by respondents both here and below, is not the only applicable statute of limitations. And she specifically noted a desire to amend to plead belated discovery if the trial court agreed with respondents that only the cited UFTA sections applied. Under these circumstances, the trial court should have allowed her to amend to so plead.

B. The Issue of the Applicable Statutes of Limitation

Appellant’s other principal contention, and the one which occupied the bulk of the lower court’s attention at oral argument, is that, no matter what the impact of the UFTA statute of limitations, it is only one of two such statutes possibly applicable to an action of this sort. The other, says appellant, is Code of Civil Procedure section 338, subdivision (d) (section 338 (d)).

To put this issue in context, it should be noted that, in their demurrers to both appellant’s original and amended complaints, respondents cited, as the statute of limitations which they contended barred the action, sections 3439.09 (a) and (b). Section 3439.09 (a) (the subdivision effectively at issue) reads: "A cause of action with respect to a fraudulent transfer . . . under this chapter is extinguished unless action is brought . . . [¶]  (a) Under subdivision (a) of Section 3439.04, within four years after the transfer was made or the obligation was incurred or, if later, within one year after the transfer or obligation was or could reasonably have been discovered by the claimant." Respondents then went on to point out that the challenged transfers in this case occurred in 1993, whereas the present action was not filed until 1999.

In opposition to the demurrer, appellant’s counsel argued that section 3439.09 was not the only statute of limitations applicable to actions to set aside a fraudulent transfer. Another, she contended and contends here, is section 338 (d), which provides a three-year statute of limitations for actions "for relief on the ground of fraud or mistake." And that statute, appellant continues, does not begin to run until a plaintiff obtains a judgment on the underlying debt. In support of this latter contention, appellant cites––and the parties argue mightily over––a recent and very relevant ruling of Division One of the Fourth District, Cortez v. Vogt (1997) 52 Cal.App.4th 917 (Cortez).

In Cortez, the appellate court reversed a trial court ruling granting summary judgment to a defendant on the basis of the four-year statute of limitations in section 3439.09. The basis of its ruling was that the UFTA and its remedies are "cumulative" to other remedies available to plaintiffs and not exclusive, and hence whether or not an action to set aside a fraudulent transfer was timely had to be evaluated both under section 3439.09 (c) and under section 338 (d).

The Cortez court started its extensive analysis of the issue as follows: "The language of section 3439.09 appears to be straightforward in its reference to the time ‘the transfer was made or the obligation was incurred.’ However, legislative material published in connection with the adoption of the UFTA requires a conclusion a creditor has an option to establish creditor status by judgment and thus cause the limitations period to run from the time the underlying judgment becomes final. [¶]  As demonstrated in the following discussion, the remedies of the UFTA and its predecessor, the Uniform Fraudulent Conveyance Act, are cumulative to the remedies applicable to fraudulent conveyances that existed before the uniform laws went into effect. As to the preexisting remedies, the California Supreme Court has held that the limitations period begins to run at the time of judgment in the underlying action, but if the creditor is unaware of the fraudulent conveyance, the limitations period begins to run when the creditor discovers the fraudulent conveyance. (Adams v. Bell (1936) 5 Cal.2d 697, 703 [Adams], applying Code Civ. Proc., § 338, former subd. 4 [now subd. (d)].)" (Cortez, supra, 52 Cal.App.4th at p. 929.)

The Supreme Court case Cortez relied upon in coming to this conclusion, Adams, antedated not only the current UFTA, but also its predecessor, the Uniform Fraudulent Conveyances Act (UFCA; former section 3439.1 of the Civil Code and Stats. 1939, ch. 329, § 2, p. 1667). Three years before the UFCA was adapted, Adams held that a cause of action governed by former section 338, subdivision 4 (now section 338 (d)) "would accrue on date of judgment . . . ." (Adams, supra, 5 Cal.2d at p. 703.)

The Cortez court held that the rule laid down in Adams still obtains: "In light of the carry-over of remedies from even before the Uniform Fraudulent Conveyance Act, the consistency of the Adams v. Bell rule with the legislative history on the UFTA, and the salutary purposes served by obviating the need for a second lawsuit while the underlying action is being pursued, we conclude the Adams v. Bell rule of accrual at the time of the underlying judgment or later discovery applies." (Cortez, supra, 52 Cal.App.4th at p. 930.)

In support of this conclusion, the Cortez court went into detail regarding, first, the legislative and decisional background of the UFTA, second, the fact that the Adams rule applied both before and during the period (1939-1986) of viability of the UFCA, third, the legislative history of the UFTA, including leading texts relied on by its drafters, and, finally, relevant decisional law from other states. (Cortez, supra, 52 Cal.App.4th at pp. 930-937.) It then summed up its conclusions: "In cases such as this 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, we conclude the limitation period does not commence to run until the judgment in the underlying action becomes final. The primary bases of our conclusion are: [¶]  (a) The contemporaneous legislative adoption of the clear statements of policy and purpose of the UFTA as a cumulative and additional remedy; [¶]  (b) The requirement we implement a construction of the UFTA that is uniform with other states’ laws; and [¶]  (c) The potential of unnecessary litigation if strict time limits are drawn for fraudulent transfer cases in circumstances such as are involved in the present case. We conclude the period of limitations in cases of such pending lawsuits commences to run when the judgment in the underlying action becomes final. [¶]  Accordingly, since the 1993 action here was brought well within four years after the time the judgment in the underlying action became final, the action was timely." (Id. at p. 937.)

Both sides purport to find solace in Cortez. Respondents stress that the fact situation in Cortez is distinguishable from that in the instant case because there the alleged fraudulent transfer was made during the pendency of a lawsuit which was reduced to judgment after the transfer had been accomplished. They also note that this was also the factual pattern in Adams, i.e., there also "the alleged fraudulent conveyance occurred during the pendency of the underlying action establishing the debtor’s liability to the creditor . . . ." (Cortez, supra, 52 Cal.App.4th at p. 932.) They contrast that fact pattern with this case, where the alleged fraudulent transfers occurred in 1993, six years prior to the initiation of any action to establish liability as between appellant and respondents.

Appellant, for her part, contends that Cortez, and particularly its reliance on Adams, makes clear that an action attacking a fraudulent conveyance may, notwithstanding section 3439.09, be brought within three years after a judgment is obtained against the underlying debtor. Such an action, she argues, must also be evaluated for timeliness under section 338 (d). Her suit is timely under that section, she maintains, because her cause of action regarding the fraudulent conveyance did not

accrue for section 338 (d) purposes until entry of the July 21, 1999, order of the Humboldt County Superior Court responsive to the contribution motion brought by her.

Although both parties stretch things a bit in their respective analyses of Cortez, we conclude that appellant is correct. The rule deriving from that case and its reliance on the Adams line of authority is unmistakable: the 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).

Respondent would have us limit the "cumulative remedies" principle of Cortez to the fact situation implicated there. They argue that the rule in Cortez "does not toll the four year statute of . . . section 3439.09 unless the fraudulent transfer occurs during the underlying creditor’s action." That was, indeed, the factual scenario of both Cortez and Adams, but the overall analysis and reasoning of neither case is limited to that scenario.

We hold that, under the principle articulated in Cortez, the statute of limitations applicable to an action such as appellant’s is not just that of section 3934.09, but is also section 338 (d). Thus, the trial court should, on remand, consider the action’s timeliness under that section, as well.

The judgment is reversed. Costs on appeal are awarded to appellant.

_________________________

Haerle, J.

We concur:

_________________________

Kline, P.J.

_________________________

Lambden, J.

Filed 1/31/01

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

BY THE COURT:

The written opinion which was filed on January 10, 2001, has now been certified for partial publication pursuant to rules 976(b) and 976.1 of the California Rules of Court, and it is therefore ordered that the opinion be published in the Official Reports with the exception of part III A.

Dated: __________________ _________________________

Kline, P.J.

Trial Court: San Francisco County Superior Court

Trial Judge: David A. Garcia

Attorneys for Appellant: Christopher G. Metzger, Esq.

Brandford C. Floyd, Esq.

Attorney for Respondent: Richard D. Rosenberg, Esq.

A090484, Macedo v. Bosio Revocable Trust, et al