Gill

Opinion by Judge RAWLINSON; Partial Concurrence and Partial Dissent by Judge ALARCÓN

ORDER AND AMENDED OPINION

ORDER

The opinion filed on February 4, 2003, is hereby amended. With this amendment, a *1039 majority of the panel has voted to deny the petition for rehearing and the alternative petition for rehearing en banc.

Judges Silverman and Rawlinson voted to deny the petition for rehearing and the alternative petition for rehearing en banc. Judge Alarcon voted to grant the petition for rehearing and recommended granting the alternative petition for rehearing en banc.

The full court has been advised of the alternative petition for rehearing en banc, and no active judge of the court has requested a vote on rehearing the matter en banc. Fed. R.App. P. 35.

The petition for rehearing and alternative petition for rehearing en banc filed on February 12, 2003 are DENIED.

No additional petitions for rehearing will be accepted in this case.

OPINION

David A. Gill, Bankruptcy Trustee, (“Trustee”) appeals the district court’s decision affirming the bankruptcy court’s order, which granted summary judgment in favor of the debtor Steven Stern (“Stern”). Stern cross-appeals the district…

Concurring in Part, Dissenting in Part.

I concur in the majority’s holding that the funds in the Plan were not excludable from Stern’s bankruptcy estate. I dissent from the majority’s conclusion that the funds in the Plan were exempt from distribution to Stern’s creditors under California law. I would hold that the Trustee presented sufficient facts to support an inference that Stern transferred funds into the Plan with the intent to hinder, delay, or defraud his creditors. A fraudulent transfer is not exempt from distribution to creditors under California law. Cal. Civ. Code §§ 3439.04 & 3439.05 (West 2002); Maddox v. Robertson (In re Prejean), 994 F.2d 706, 708 (9th Cir.1993). Accordingly, whether the Debtor acted with fraudulent intent is a question that should be determined after a trial on the merits and a determination of the credibility of the witnesses regarding Stern’s intent.

The Trustee presented evidence that on September 15, 1992, Dove Audio, Inc. (“Dove”) received an arbitration award of 4,585,000 dollars against Stern. Stern learned of the award on or about September 30, 1992. On October 22, 1992, the Los Angeles Superior Court issued a writ of mandate to secure…