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Century 21 Real Estate LLC, A Delaware v. San Vicente Real Estate Services

December 11, 2012

CENTURY 21 REAL ESTATE LLC, A DELAWARE LIMITED LIABILITY COMPANY, FORMERLY KNOWN AS CENTURY 21 REAL ESTATE CORPORATION, A DELAWARE CORPORATION, PLAINTIFF,
v.
SAN VICENTE REAL ESTATE SERVICES, INC, A CALIFORNIA CORPORATION DOING BUSINESS AS CENTURY 21 SAN VICENTE; ARNOLD K. FRY, AN INDIVIDUAL; HELEN B. JUPIN, AN INDIVIDUAL, DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the Affidavit of Identity filed by Plaintiff Century 21 Real Estate, LLC in support of its request for issuance of a writ of execution as to judgment debtor San Vicente Real Estate Services, Inc.*fn1 (ECF No. 27).

BACKGROUND

On October 13, 2011, Plaintiff initiated this action by filing the Complaint against Defendants San Vicente Real Estate Services, Inc., Arnold K. Fry, and Helen B. Jupin. (ECF No. 1). On December 14, 2011, Plaintiff filed proof of service of the Summons and Complaint on Defendants. (ECF Nos. 6-8). Defendants did not file an answer or otherwise appear in the case.

On May 1, 2012, the Clerk of the Court entered default against Defendants. (ECF No. 12). On May 8, 2012, Plaintiff filed a Motion for Entry of Default Judgment against Defendants, which the Court granted on June 12, 2012. (ECF No. 15).

On June 19, 2012, the Court entered judgment in favor of Plaintiff and against Defendants San Vicente Real Estate Services, Inc., Arnold K. Fry, and Helen B. Jupin, jointly and severally, in the amount of: (1) $921,826.52 for damages; (2) .18% post-judgment interest on the principal amount from the date of June 19, 2012 until paid; and (3) $5,831.25 for attorneys' fees and costs. (ECF No. 17). On June 20, 2012, Plaintiff filed proof of service of the Notice of Entry of Judgment on Defendants. (ECF No. 18).

On July 24, 2012, Plaintiff filed a Motion for an Order Authorizing the Court Clerk to Include on a Writ of Execution Four Additional Names by Which Defendant San Vicente Real Estate Services, Inc. is Known (ECF No. 25); in support of the Motion, Plaintiff submitted a declaration of its attorney, Gary A. Collis ("Collis"). (ECF No. 25-1). On September 28, 2012, the Court denied the Motion, concluding that Plaintiff's request did not comply with the procedure for execution of a judgment under California law because "Plaintiff did not file the ... motion and its supporting declaration 'with the application for issuance of the writ of execution.'" (ECF No. 26 at 3) (quoting Cal. Civ. Proc. Code § 699.510(c)(1)).

On October 12, 2012, Plaintiff filed Affidavits and Requests for Issuance of Writs of Execution as to Helen B. Jupin (ECF No. 28), San Vicente Real Estate Services, Inc. (ECF No. 29) and Arnold K. Fry. (ECF No. 30). On October 12, 2012, in support of the Affidavit and Request for Issuance of Writ of Execution as to judgment debtor San Vicente Real Estate Services, Inc. (ECF No. 29), Plaintiff filed an Affidavit of Identity, in which Plaintiff's attorney, Collis, stated:

Judgment debtor San Vicente Real Estate Services, Inc. ("San Vicente") is also known by the four following names: Century 21 San Vicente, Inc., Century 21 All San Vicente, Inc., Century 21 San Vicente, and San Vicente Escrow. San Vicente's use of these four names is revealed by the information in Exhibits A through E hereto.

(ECF No. 27 at 1-2). Plaintiff submitted the following documents, which Collis stated that he "recently obtained" from the California Secretary of State: "Articles of Incorporation of Century 21 San Vicente, Inc.," "Certificate of Amendment of Articles of Incorporation of Century 21 San Vicente, Inc.," and "Certificate of Amendment of Articles of Incorporation of Century 21 All San Vicente, Inc." Id. at 2. Plaintiff submitted a document entitled "Fictitious Business Name Statement," which Collis stated that he "recently obtained" from the office of the Recorder of the County of San Diego. Id. Plaintiff submitted "true and correct copies of print-outs that [Collis] made of the following websites: www.facebook.com, www.c21sanvicente.net, and www.arniefry.com"; Collis stated that the print-outs "reveal that San Vicente continues to use its two registered, fictitious names -- Century 21 San Vicente and San Vicente Escrow." (ECF No. 27 at 2). Collis stated that his "investigation into San Vicente's assets has also disclosed that it may own or control assets in one or both of its prior legal names, i.e. Century 21 San Vicente, Inc. and Century 21 All San Vicente, Inc." Id.

DISCUSSION

Under Federal Rule of Civil Procedure 69(a), "[t]he procedure on execution--and in proceedings supplementary to and in aid of judgment or execution--must accord with the procedure of the state where the court is located...." Fed.R.Civ.P. 69(a). California Code of Civil Procedure section 699.510(a) states: "[A]fter entry of a money judgment, a writ of execution shall be issued by the clerk of the court, upon application of the judgment creditor...." Cal. Civ. Proc. Code § 699.510(a). California Code of Civil Procedure section 699.510(c)(1) states:

The writ of execution shall be issued in the name of the judgment debtor as listed on the judgment and shall include the additional name or names, and the type of legal entity, by which the judgment debtor is known, as set forth in the affidavit of identity, as defined in Section 680.135, filed by the judgment creditor with the application for issuance of the writ of execution. Prior to the clerk of the court issuing a writ of execution containing any additional name or names by which the judgment debtor is known that are not listed on the judgment, the court shall approve the affidavit of identity. If the court determines, without a hearing or a notice, that the affidavit of identity states sufficient facts upon ...


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