Staten v. Heale

JACK F. STATEN et al., Plaintiffs and Appellants, v. LEAH HEALE et al., Defendants and Respondents. No. C025463 (Super. Ct. No. 49859) JACK F. STATEN et al., Plaintiffs and Appellants, v. JACK R. ARMSTRONG et al., Defendants and Respondents. (Super. Ct. No. 58111) California Court of Appeal Third Appellate District (Yuba) Filed September 22, 1997 CERTIFIED FOR PARTIAL PUBLICATION*
        APPEAL from a judgment of the Superior Court of Yuba County. Dennis J. Buckley, Judge. Affirmed.

        Timothy W. Pemberton for Plaintiffs and Appellants.

        Michael R. Barrette for Defendants and Respondents.
        Plaintiffs Jack Staten and Jane Staten won a judgment in Nevada against Jack Armstrong. (For convenience, we refer to the Statens collectively as "plaintiff," as did the trial court.) Thereafter plaintiff filed separate suits naming Armstrong, Leah Heale (Armstrong's mother), and Elizabeth Part (Armstrong's aunt), as defendants, alleging that Armstrong had fraudulently transferred real property in California to Heale and Part to avoid the enforcement of the Nevada judgment. The suits were consolidated for court trial.
        After a six-day trial, the trial court issued a tentative decision in favor of defendants. Plaintiff requested a statement of decision, but the trial court rejected the request as untimely. The court then denied plaintiff's motion to withdraw the order rejecting his request for a statement of decision.
        Plaintiff contends: (1) the trial court erred in ruling his request for a statement of decision untimely and in denying his motion to withdraw its order rejecting the request; (2) because his request for a statement of decision was timely, the court's failure to issue a statement of decision is reversible error; (3) the court erred in admitting an accountant's report concerning defendants' transactions among themselves; and (4) the court erred in admitting evidence of Armstrong's transfers to Heale and Part which predated the recordation of the deeds showing the transfers.
        In the published portion of the opinion, we conclude the trial court properly rejected, as untimely, plaintiff's request for a statement of decision. In an unpublished portion of the opinion, we reject plaintiff's other contentions of error. We shall therefore affirm the judgment.

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FACTUAL AND PROCEDURAL BACKGROUND         Plaintiff's opening brief, in gross disregard of rule 13 of the California Rules of Court, contains no "summary of material facts." Therefore we take the pertinent facts mainly from the tentative decision and defendants' brief, reciting them in the light most favorable to the judgment.
        In the late 1970's and early 1980's, defendant Armstrong and Herb Portnoy, acting as partners, bought parcels in the Collins Lake area in Yuba County for investment purposes. Parcel 1 was a 23-acre lakefront parcel; Parcels 2 through 5 were 20 acres each. Only Parcels 1 through 3 are at issue here.
        In 1985 Portnoy died. His estate, which took over his interest in the parcels, did not wish to invest any more money in them. It eventually transferred Portnoy's interest in Parcel 1 to Armstrong, who agreed to assume the debts on that parcel. Needing to borrow money to make upcoming balloon payments on the parcel, Armstrong turned to his mother, defendant Heale, who had already loaned him $30,000 on the project.
        Armstrong and Heale entered into a written agreement whereby Heale would buy Parcel 1 for $136,000, including credit for all amounts previously loaned and for any money she would put into the project afterward. Although the agreement was formed in 1986 or 1987, Armstrong did not convey record title to Heale until April 18, 1991, because he wanted to remain record owner to develop the property. He had done the same thing before on other projects developed with the aid of family members.
        Heale eventually acquired Parcel 2 for a purchase price of $25,000, which included reimbursing Armstrong for the down payment he had made to a third party and assuming the underlying obligation of $20,000. Heale also received one-half of Parcel 3 by deed from Armstrong on payment of $12,500 in cash; Part received the other half of Parcel 3 on the same terms. Armstrong, Heale, and Part executed deeds and other writings memorializing their agreements in 1987. However, the deeds conveying the parcels were not recorded at that time. The deeds conveying Parcel 2 and Heal's half-interest in Parcel 3 were recorded on April 18, 1991, like the deed to Parcel 1. The deed conveying Part's half-interest in Parcel 3 was recorded on July 9, 1991.
        On May 6, 1991, plaintiff's Nevada suit against Armstrong came to trial. On July 11, 1991, the Nevada court rendered judgment for plaintiff in the amount of $151,023.27. Plaintiff registered the judgment in California and tried to enforce it. On discovering Armstrong's conveyances of Parcels 1 through 3, plaintiff filed two essentially identical complaints, one against Amstrong and Part and the other against Armstrong and Heale, each styled "Complaint To Set Aside Transfer Of Real Property Made By Insolvent Debtor, Set Aside Of Transfer Of Real Property Made With Actual Intent To Defraud Creditor (Civil Code [§] 3439 et seq.), Creditor's Suit Against Third Party In Possession Or Control Of Real Property In Which Judgment Debtor Has An Interest." ¹ The complaints alleged that Armstrong was insolvent at the time of the transfers, that they were intended to delay, hinder and defraud plaintiff by putting Armstrong's assets beyond his reach, and that Armstrong had filed bankruptcy but his debt to plaintiff had not been discharged and the bankruptcy trustee had abandoned any interest in the subject property.
        At trial the parties stipulated that plaintiff's claim arose before the date of Armstrong's transfer, that Armstrong was insolvent at all relevant times, and that plaintiff had made out a prima facie case of fraud which shifted the burden to defendants to prove adequate consideration for the transfers. They also stipulated to the values of the parcels of real property at issue.
        All three defendants testified, Armstrong and Heale at length, and were subjected to extensive cross-examination. In addition, defendants presented documentary evidence in the form of the "Poonja report," a report prepared by accountant Mohammed Poonja which purported to compile and summarize the relevant financial transactions of the defendants among themselves and to draw conclusions on how the various monies involved were allocated. ² Finally, Gregory Burke, a certified public accountant, testified as to two points: (1) the Poonja report had been done in accordance with generally accepted accounting standards and accurately reflected the substance of the transactions it covered, and (2) Burke's independent analysis of defendant Heale's cash flow showed that she had the means to make the payments to defendant Armstrong which defendants claimed she had made.
        The trial court issued the following tentative decision:

        "After Plaintiff established by way of proof and stipulation that Defendant Armstrong conveyed property at a time that he was insolvent and at a time when Plaintiff's claim existed, the sole issue before the Court was whether the transfer was for fair consideration or 'reasonably equivalent value.'
        "Having considered six days of testimony, some fifty-six exhibits containing hundreds of entries, and the depositions of the parties, the Court finds by clear and convincing evidence that Defendants have met their burden of proof.
        "The most compelling evidence in support of the Court's finding is the fact that in 1987, several years before Plaintiff obtained his judgment, Defendant Armstrong signed deeds transferring the property to his mother and his aunt and wrote contemporaneous letters discussing the transfers. The cash paid by Betty Part who was not otherwise involved in Armstrong's ventures is further convincing evidence that Defendants' explanations are credible.
        "As argued by Defendant[s'] attorney, the suggestion that the transfers were not for the reasons given but were in furtherance of some longstanding fraudulent scheme, defies logic.
        "Plaintiff objected strenuously and repeatedly to the introduction and consideration of the 'Poonja Report.' Evidence Code section 1509 permits the introduction of such secondary evidence of the content of a writing where such writings cannot be examined in court without great loss of time. Furthermore, at trial, such writings were produced for inspection. Plaintiff complains that the itemized summary was prepared at the direction of Defendant Armstrong who provided all of the allocation information. This method of preparation is consistent with case law interpreting section 1509 and Plaintiff's lament found at page 6 of his post trial brief that 'Thus we have to accept the truth of Mr. Armstrong's uncontradicted testimony, that those figures came from him' is somewhat perplexing. Defendant Armstrong was available for questioning and it is certainly not unusual for triers of fact to accept the uncontradicted testimony of a witness.
        "Given the vast number of transactions and entries dating back to the early 1980's, no attempt will be made to address each independently or to respond to each alleged discrepancy and peculiar or unexplained item argued by Plaintiff. As stated in Evidence Code [section] 1509, the probative value of the "Poonja Report,' together with the testimony[,] lies in . . . 'the general result of the whole.' Plaintiff has expended much time and energy in a determined effort to prove fraud. Arguably the decision to cut his losses and abandon that effort should have been made long before trial, or at least when the 1987 deeds and letters were made known. Even Defendant[s'] Exhibit 'A,' the 1987 'Agreement for Sale of Real Estate' between Armstrong and Heale[,] contains the recital that . . . 'the sales price includes all monies advanced since 1982 as well as all future principal and interest payments to the current lienholders or sellers.' Persuasive evidence unless shown to have been written years after the fact.
        "Plaintiff correctly points out that the 'Poonja Report' did not trace the source of the consideration. Again, we are left with the uncontradicted testimony of Defendant Heale. This testimony would logically be dispositive of the issue unless Plaintiff, who had ample opportunity to do so, could prove that she and her husband did not have the financial ability to make the payments. In that regard, while Mr. Burke's testimony was not particularly impressive and contained at least one obvious error, it probably went beyond that which Defendants were obliged to prove. Plaintiff simply failed to effectively impeach the testimony of the Defendants and he cannot now complain if that uncontradicted evidence is accepted by the Court.
        "On the other hand, Plaintiff also failed to prove that Jack Armstrong had sufficient earnings during the years in question so as to not need loans from his parents. All of the evidence supports the conclusion that Defendant Armstrong provided only 'sweat equity' and was never in a position to finance the various projects. . . .
        "While Plaintiff does point out some examples of inconsistency in the Defendants' transactions, these inconsistencies are not of sufficient import to overcome the persuasive effect of the 1987 deeds and related documentation and to cause one to reject, in its entirety, the paper trail presented by Defendants. . . .
        ". . . . . . . . . . . . . . . . . . . . . . . . . . . . .
        "This Court believes that there is nothing particularly unusual about a parent loaning money to a child and carrying on an informal joint venture with that child. There is also nothing unusual about the venture not succeeding as hoped and the child being unable to repay the monies loaned. Detailed documentary proof of every transaction would be uncommon and could itself be reason for suspicion.
        "In conclusion, although the evidence establishes several compelling 'badges of fraud,' the Court finds unequivocally that Defendant Armstrong did not have fraudulent intent and that adequate consideration was paid for the properties. To borrow one of Plaintiff's more colorful analogies, Jack Armstrong was playing within the rules when he 'handed off legal title to his mother just before he got tackled by the Nevada Court.' The actual date of the handing off of legal title is of no particular significance except insofar as it may be corroborative of Defendant Armstrong's statement in 1989 that he still 'owned' the parcels, if understood to mean that he held legal title.
        ". . . [A] preferential transfer was made and indicia of fraud are present, however, the overriding factor is that the transfer was for adequate antecedent consideration.
        "This Tentative Decision shall serve as the Statement of Decision if same is requested. If not, Defendants' attorney shall prepare the Judgment accordingly."
        Additional facts and procedure are given below as necessary.

[End of Part Not Certified for Publication]
DISCUSSION I         Plaintiff contends that the trial court erred by rejecting his request for statement of decision as untimely. We disagree.

Facts.         The trial court's tentative decision was signed on July 24, 1996. It was filed on July 25, 1996, and the court clerk executed a proof of service by mail on that date. The mailing envelope was date-stamped July 26, 1996.
        On August 8, 1996, plaintiff's counsel signed a request for statement of decision, served it on opposing counsel, and mailed it to the trial court by certified mail. It was filed in the trial court on August 12, 1996.
        The trial court issued an order rejecting the request for statement of decision as untimely because it had not been "made" within the allowable time period (10 days after the tentative decision was mailed to the parties under Code of Civil Procedure section 632, ³ extended by 5 days under section 1013, subdivision (a), for service by mail). ⁴
        Plaintiff moved for withdrawal of the order rejecting his request for statement of decision. He argued chiefly that the court should have calculated timeliness based on the mailing date of his request (August 8), not its filing date (August 12). He also argued that the court should have calculated the beginning of the period from the date stamped on the court's mailing envelope (July 26), not the date of the court clerk's filing of the tentative decision and proof of service (July 25). However, based on the first argument, he maintained that even if the period began to run on July 25 his request was still timely because it was mailed on August 8.
        After plaintiff opposed the motion, the trial court heard argument and orally denied the motion. Since the court had found no timely request for a statement of decision, it then entered judgment in accordance with its tentative decision.

Analysis.         Plaintiff renews on appeal both arguments raised in the trial court. We reject both.

        1. When the period for requesting a statement of decision begins to run.
        Plaintiff's contention that the period for requesting a statement of decision ran from July 26, the date on which the court's mailing envelope was postmarked, rather than July 25, the date of the court's filing and proof of service of the tentative decision, is foreclosed by statute.
        As plaintiff acknowledges, service by mail is normally deemed complete at the time of deposit. (§ 1013, subd. (a).) Where such service is effected by the clerk of a court of record, proof of service may be made by "a certificate by that clerk setting forth the exact title of the document served and filed in the cause, showing the name of the clerk and the name of the court of which he or she is the clerk, and that he or she is not a party to the cause, and showing the date and place of deposit in the mail, the name and address of the person served as shown on the envelope, and also showing that the envelope was sealed and deposited in the mail with the postage thereon fully prepaid." (§ 1013a, subd. (4).) Here, the court clerk's proof of service, which conformed to these requirements, shows the date of deposit as July 25. The date of deposit shown on the proof of service is the date on which service is deemed to have occurred, unless "the date of postage cancellation or postage meter imprint as shown on the envelope . . . is more than one day after the date of deposit for mailing contained in the certificate." (§ 1013a, subd. (4).) Then, and only then, is the date of postage cancellation deemed to be the date on which service occurred. (§ 1013a, subd. (4).) Here, the date of postage cancellation was July 26, only one day after the date of deposit for mailing shown on the proof of service; thus it may not be deemed the actual date of service.
        Plaintiff cites Hutchins v. Galanda (1990) 216 Cal.App.3d 1529, 1531, Tobin v. Oris (1992) 3 Cal.App.4th 814, 825, and Bird v. McGuire (1963) 216 Cal.App.2d 702, 715, as authority for the contrary conclusion. They are not because they do not discuss section 1013a, subdivision (4), or the factual circumstances with which that provision deals.
        Hutchins holds that under section 632 the 10-day period for requesting a statement of decision runs from "the time the clerk mails the copy of the minute order or decision," not the date when the court files the order or decision with the clerk. (216 Cal.App.3d at p. 1531.) On the facts before it the Hutchins court did not have to decide what is "the time the clerk mails the copy of the minute order or decision" when the date shown on the clerk's proof of service differs from that shown on the postmark--the question resolved by section 1013a, subdivision (4). Thus Hutchins is inapposite.
        Tobin also does not discuss section 1013a, subdivision (4). Rather, it discusses subdivision (3), which (1) sets forth a method for proving service by mail where the person making an affidavit of service lacks personal knowledge of the mailing and (2) incorporates a presumption that service is invalid if the mailing envelope is postmarked more than one day after the affidavit's date of deposit. (Tobin, supra, 3 Cal.App.4th at pp. 825-826.) The court's conclusion that this provision does not apply where actual service has admittedly been affected (ibid.) is neither surprising nor apposite to section 1013a, subdivision (4), which addresses an entirely different set of factual circumstances.
        Finally, Bird holds that by analogy to sections 1012 and 1013, former California Rules of Court, rule 220(b) ⁵ and its predecessor, former rule 8.12, required written notice of trial because notice by mail entails the physical act of depositing the notice in the mail facilities. (216 Cal.App.2d at pp. 714-715.) Bird does not hold, as plaintiff asserts, that mailings under sections 1012 and 1013 "are calculated from the date of the physical act of depositing the document in the mail." And even if it did so hold, this general holding would not trump the clear, precise, specific language of section 1013a, subdivision (4).
        The trial court correctly found that the period for requesting a statement of decision began to run on July 25, 1996, the day the clerk deposited the tentative decision in the mail.

        2. When a request for statement of decision is "made."
        Section 632 provides that a request for statement of decision "must be made within 10 days after the court announces a tentative decision . . . ." (Italics added.) Rule 232, which implements section 632, similarly provides: "The court in its tentative decision may . . . direct that the tentative decision shall be the statement of decision unless within ten days either party specifies controverted issues or makes proposals not covered in the tentative decision." (Rule 232(a), italics added.) Neither the statute nor the rule defines what it means to "make" such request or proposal. Plaintiff contends that the request is "made" when deposited in the mail, and that therefore his request was timely because mailed within the 15-day window provided by sections 632 and 1013, subdivision (a)--even if (as we have concluded) that window opened on July 25 rather than July 26. Plaintiff is wrong.
        First, plaintiff cites no authority holding that a request for statement of decision is "made" when deposited in the mail. Most of the decisions he relies on do not even discuss current section 632 or current rule 232, but only address when service by mail is complete under sections 1012 and 1013. ⁶ It is undisputed that the 5-day extension of response time provided by section 1013, subdivision (a), applies to section 632 where the trial court's tentative decision is served on the parties by mail. (In re Marriage of McDole (1985) 176 Cal.App.3d 214, 218-219 [disapproved on another point in In re Marriage of Fabian (1986) 41 Cal.3d 440, 451, fn. 13].) But this does not answer the question whether a request for statement of decision deposited in the mail within 15 days after service of the tentative decision on the parties, but not received by the court until after that period, is timely under section 1013, subdivision (a).
        Furthermore, the only decisions we have found which discuss the timeliness of requests for statements of decision under the current statute and rule suggest that the key event for determining timeliness is the date of receipt in the trial court. (Gordon v. Wolfe (1986) 179 Cal.App.3d 162, 167; In re Marriage of McDole, supra, 176 Cal.App.3d at pp. 218-219.) While these decisions did not address the issue before us now and are therefore not dispositive on this point, they give no comfort to plaintiff.
        Finally, we think plaintiff's interpretation of "made" is untenable as a matter of common sense and ordinary usage. A request for statement of decision calls on the trial court to act. Such a request cannot reasonably be deemed accomplished until the court knows what is requested. (See Safeco Surplus Lines Co. v. Employer's Reinsurance Corp. (1992) 11 Cal.App.4th 1403, 1407-1409 [insurance claim "made" when insurer receives it, not when dated or mailed by claimant].)
        For all the above reasons, we conclude that the trial court was correct in ruling plaintiff's request for statement of decision was not made until it was received by the court and was therefore untimely. We therefore reject plaintiff's contention that the trial court erred reversibly by not issuing a statement of decision on request since there was no timely request for a statement of decision before the court. (Khan v. Medical Board (1993) 12 Cal.App.4th 1834, 1840; In re Marriage of Katz (1991) 234 Cal.App.3d 1711, 1718.)

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II         Plaintiff contends that the trial court erred by admitting the "Poonja report," the purported compilation of defendants' financial transactions among themselves, into evidence over objection. We conclude that this claim of error is waived because plaintiff stipulated on the record to admit the report (a fact mentioned in neither party's briefs). But even if the claim were properly before us, we would reject it because plaintiff has shown no prejudice from the admission of the report.

Facts.         Counsels' opening statements highlighted the importance of the Poonja report as a source of evidence on the key issue: whether Armstrong received adequate antecedent consideration for his transfers of real property to Heale and Part. Plaintiff's counsel asserted that defendants commissioned the report only after they had failed to document the needed consideration during discovery, and that the report's summary, which purported to bear out defendants' version of events, was inconsistent with the raw data used by Poonja. Defendants' counsel retorted that the report was a compilation or summary of 10 years of transactions covering four different parcels and thus admissible under Evidence Code section 1509. ⁷ He also promised to prove through the testimony of a certified public accountant that the report was prepared according to generally accepted accounting standards and accurately represented the transactions it summarized. (As mentioned above, defendants ultimately presented the testimony of CPA Burke to this effect, and the trial court, though underwhelmed by it, found it met defendants' burden on the issues for which it was offered.)
        During his examination of defendant Heale, defendants' counsel began to question her about the report, which had been marked as an exhibit for identification but not yet moved into evidence. Heale testified that she and Armstrong had gone to Coopers and Lybrand, where Poonja worked, to have a report on their transactions prepared, and Poonja was assigned to it. According to Heale, she and Armstrong gave Poonja the data covering their transactions with each other over the previous 10 years and asked him to examine and categorize every transaction. He had summarized and photocopied all the records given him and put them into a binder.
        The trial court indicated that the report would not be admissible without more foundation as to how Poonja acquired the information he allegedly summarized. Plaintiff's counsel interjected that if the report came in he would be unable to cross-examine Poonja on it because Poonja was unavailable as a witness. Defendants' counsel replied that because Poonja had wanted no more involvement in the case, counsel had retained CPA Burke to "redo" the report or to use it as a basis for his own report. The trial court, after noting plaintiff's "running objection," questioned Heale further about how she and Armstrong had worked with Poonja.
        The court then asked defendants' counsel to respond to plaintiff's hearsay objection. Counsel described the report as "simply a compilation of the documents" and reiterated that his CPA could opine as to the standard and accuracy of the report and that the CPA as an expert could properly rely on the report. Plaintiff's counsel retorted that if it was simply a compilation it was cumulative, that Poonja had admitted in deposition that he was not hired to trace transactions or prepare a report according to generally accepted accounting standards but simply to reconstruct the data defendants handed him, and that if defendants had an expert witness they should just call him to testify and forget about the Poonja report. When the trial court cited Evidence Code section 1509, plaintiff's counsel replied that section 1509 makes a compilation admissible only if the data which go into the compilation are separately admissible and their foundation is established. Then he repeated his hearsay objection. Finally, he asserted that Poonja's cover letter, attached to the report, was "rife with opinions."
        Because the day's session was at an end, the trial court wrapped up the discussion by saying to plaintiff's counsel: "Hold off on your objections until the offer is made to admit [the report], and then point out to me that it contains opinions that should be edited out. Because right now, you're flat wrong on the law, on the summary of voluminous writings."
        At the start of the next session, defendants' counsel said: "Can we put our stipulation on the record? It's been stipulated that Exhibit B [the report] would be admitted into evidence save and except the first four pages would be excised therefrom." ⁸ (Italics added.) Counsel further stipulated to admit the accompanying binder which contained photocopies of defendants' checks. Finally, defendant's counsel noted: "The plaintiff is reserving their [sic] rights on all of these issues . . . ."
        At various points in the trial after the stipulation plaintiff's counsel repeated his complaint that it was improper to use the Poonja report to prove any material point when he could not cross-examine Poonja.

Analysis.         Plaintiff now asserts error in the admission of the report only on the ground that it deprived him of his right of cross-examination; thus we deem him to have abandoned any other objection raised at trial. However, even as to the objection he urges here he fails to explain why it is preserved on appeal in light of his stipulation to admit the report (which, as already noted, he fails to mention in his appellate briefs). Even assuming the objection is preserved on appeal, he does not explain why the testimony of CPA Burke (which he also fails to mention) did not give him a sufficient opportunity to cross-examine as to the foundation and accuracy of the report. For both reasons, his claim of error fails.
        A stipulation in proper form which is within the power of the stipulating attorneys binds the parties. (1 Witkin, Cal. Procedure (4th ed. 1996) Attorneys, § 290, p. 319.) A stipulation to admit evidence may overcome objections of competency. (See Exley v. Exley (1951) 101 Cal.App.2d 831, 837; Sterling Drug, Inc. v. Benatar (1950) 99 Cal.App.2d 393, 400; Grunsky v. Field (1905) 1 Cal.App. 623, 624-625. See generally Witkin, Cal. Procedure, op. cit. supra, § 299, p. 326.)
        It is true that in stipulating to admit the report plaintiff purported to "reserv[e] their [sic] rights on all of these issues . . . ." However, it is not clear what "rights" a party has to object to evidence after stipulating that it is properly admissible, unless its proponent attempts to use it for some purpose other than that for which it was admitted. Here the stipulation did not restrict the admissibility of the report to any particular purpose. In any event, plaintiff has cited no authority holding that any objection to evidence is preserved after a stipulation to admit the evidence, and we are aware of none. Therefore we conclude that plaintiff's objection to the report is waived.
        But even if the objection is not waived, as we have noted, the testimony of CPA Burke that he had reviewed and recalculated everything in the report and adopted it as his own, which was fully subject to cross-examination, removes any ground for plaintiff's claim of error. Thus plaintiff cannot show prejudice from the admission of the report even if his objection to it were both preserved on appeal and well-founded.

III         Plaintiff moved in limine to exclude all evidence that defendant Armstrong agreed to transfer the parcels in 1986 because the deeds conveying the parcels were not recorded until 1991. He now contends the trial court erred by denying his motion. We disagree.
        As the trial court explained in its tentative decision, the only issue in this case was whether defendant Armstrong transferred the parcels according to agreements which predated plaintiff's claim against him and for adequate consideration or "reasonably equivalent value." If he did so, then any irregularity in the timing of recordation was immaterial. In other words, this case was not about when the transfers took place, but about when and why they were agreed to. The evidence to which plaintiff now objects was admitted to show those points. The trial court did not err by admitting it.

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DISPOSITION         The judgment is affirmed. Defendants shall receive their costs on appeal.


We concur:
        PUGLIA, P.J.
SCOTLAND, J.


* Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of FACTUAL AND PROCEDURAL BACKGROUND and parts II and III of the DISCUSSION.
¹  The Uniform Fraudulent Transfer Act (Civ. Code, §§ 3439-3439.12) provides that a judgment creditor may obtain avoidance of any transfer made by a debtor "to the extent necessary to satisfy the debtor's claim" (or other remedies as appropriate) if the transfer was made "[w]ith actual intent to hinder, delay, or defraud any creditor of the debtor" and "[w]ithout receiving a reasonably equivalent value in exchange for the transfer . . . ." (Civ. Code, §§ 3439.07, 3439.04.) The Act also provides that a transfer made by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made if the debtor made it "without receiving a reasonably equivalent value in exchange for the transfer . . . and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer . . . ." (Civ. Code, § 3439.05.)
²  Poonja was not a certified public accountant. He was unavailable to testify.
³  Code of Civil Procedure section 632 provides: "In superior, municipal, and justice courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. The request must be made within 10 days after the court announces a tentative decision unless the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision. The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision. After a party has requested such a statement, any party may make proposals as to the content of the statement of decision. "The statement of decision shall be in writing, unless the parties appearing at trial agree otherwise; however, when the trial is concluded within one calendar day or in less than 8 hours over more than one day, the statement of decision may be made orally on the record in the presence of the parties." All subsequent undesignated section references are to the Code of Civil Procedure.
⁴  Section 1013, subdivision (a), provides in part: ". . . [S]ervice [by mail] is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five days, upon service by mail, if the place of address is within the State of California . . . ."
⁵  All subsequent references to rules are to the California Rules of Court.
⁶  Plaintiff cites two decisions construing the former versions of section 632 and rule 232, under which the trial court was required to make "findings of fact and conclusions of law" (former § 632) when a party had timely "served and filed" a request therefor (former rule 232(b)). Neither is helpful to plaintiff's position. In McBride v. Alpha Realty Corp. (1975) 49 Cal.App.3d 925, 928-929, the court held that under the 5-day extension provided by section 1013 a request for findings was timely even though filed more than 10 days after the mailing of the trial court's tentative decision. In Injectronics, Inc. v. Commodore Business Machines, Inc. (1979) 100 Cal.App.3d 185, 187-188, the court followed McBride (though reluctantly) to reach a similar result. However, in both cases the filing of the request occurred within the 15-day window provided by applying section 1013 to the time limit set forth in section 632. (Injectronics, Inc., supra, 100 Cal.App.3d at pp. 187-188; McBride, supra, 49 Cal.App.3d at pp. 928-929.) Therefore, even assuming these decisions are relevant to the current statute and rule, they are not authority for the proposition that a request filed with the court after the 15-day period has run is timely.
⁷  Evidence Code section 1509, an exception to the best evidence rule, provides: "Secondary evidence, whether written or oral, of the content of a writing is not made inadmissible by the best evidence rule if the writing consists of numerous accounts or other writings that cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole; but the court in its discretion may require that such accounts or other writings be produced for inspection by the adverse party."
⁸  Presumably these pages contained Poonja's cover letter.