PETER JB. LOGAN [State Bar No. 083652] NIKKI S. McKENNEDY [State Bar No.

184269] LOGAN LAW GROUP, P.C. San Rafael Corporate Center 750 Linclaro Street, Suite 100 San Rafael, California 94901 Telephone: (415)451-8200 Telefax: (415)451-8228 Attorneys appearing specially for UNITED INDUSTRIES CORPORATION and SPECTRUM BRANDS, INC., wrongfully identified herein as Judgment Debtors-

20C8APR 16 Pi"! 1 = 2 5 LAW AMD MOTION #

SUPERIOR COURT OF THE STATE OF CALIFORNIA CITY AND COUNTY OF SACRAMENTO UNLIMITED JURISDICTION

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STEVEN MICHAEL BREST, et al. Plaintiffs,

Case No.: #95AS02636 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER RECALLING AND QUASHING WRITS OF EXECUTION AND VACATING ORDERS ON AFFIDAVITS OF IDENTITY; OR, ALTERNATIVELY, FOR ORDER TO STAY ENFORCEMENT OF WRITS OF EXECUTION PENDING HEARING ON MOTION Date: Wednesday, April 16, 2008 Time: 1:30 p.m. Dept: 54

v.
DO WE -ANCO, INC., et al.,

Defendants.

I.

INTRODUCTION

This is an enforcement of judgment matter on a default judgment that was entered in August 2002 against KENCO CHEMICAL AND MFG. INC ("Kenco"). In December 2005, the company that had previously been known as Kenco, CORE MARKETS, INC. ("Core"), moved to set aside the default judgment on the ground that plaintiffs had failed to properly serve either Kenco or Core with the Summons and Complaint. This Court granted Core's motion on
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER RECALLING AND QUASHING WRITS OF EXECUTION AND VACATING ORDERS ON AFFIDAVITS OF IDENTITY; OR, ALTERNATIVELY, FOR ORDER TO STAY ENFORCEMENT OF WRITS OF EXECUTION PENDING H E A R I N G ON MOTION

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January 17, 2006 and set aside the default judgment. he Assignee of Record on that default judgment, TERRI ANN BREST-TAYLOR, who is not ar attorney and is representing herself in pro per, continues to chase this void judgment and now is i bout to levy on over $20,000,000 in assets of UNITED INDUSTRIES CORPORATION ("United") and its corporate parent SPECTRUM BRANDS, INC. ("Spectrum"). United and Spectrum are not Kenco and have never been Kenco. They are two completely separate and independent corporations that were never parties to this action. Yet, based upon an egregious misuse of C.C.P. 680.135 (defining "Affidavit of Identity"), the Judgment Creditor has succeeded in having Writs of Execution issued against United's and Spectrum's assets. By this ex parte application, United and Spectrum specially appear to make an urgent request for immediate relief to prohibit the Judgment Debtor and her Levying Officers from executir g on this void and unlawful judgment. II. FACTUAL BACKGROUND

This matter arises out of an entry of default and default judgment that was issued by this Court (Gray, J.) on or about August 30, 2002 in favor of plaintiff Steven Michael Brest in the sum of $20,000,000, plus costs and interest, and against Kenco. [Tab 1 to Request for Judicial Notice, filed and served herewith ("RJN")]. The judgment was subsequently assigned to Terri Ann Brest-Taylor (the "Judgment Creditor."). On or about December 17, 2003, and based upon the Judgment Creditor's Affidavit of Identity dated December 11, 2003, this Court issued an Order on Affidavit of Identity that the judgment debtor Kenco was also known by the additional name of CORE MARKETS, INC. ("Core"). [Tabs 2 and 3, respectively, to RJN]. In or about December 2005, Core specially appeared in this action and moved this Court to set aside the August 30, 2002 default and default judgment previously entered against both Core and Kenco based on, inter alia, improper service of the pleadings. [Tab 4 to RJN. See Notice c f Motion at 1:27-2:4; Memorandum of Points and Authorities at 2:7-12]. As part of its moving papers, Core acknowledged that it had previously been known
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER RECALLING AND QUASHING WRITS OF EXECUTION AND VACATING ORDERS ON AFFIDAVITS OF IDENTITY; OR, ALTERNATIVELY, FOR ORDER TO STAY ENFORCEMENT OF WRITS OF EXECUTION PENDING HEARING ON MOTION

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under various derivations of the Kenco name. And, it admitted that on September 15, 1988, it amended its Articles of Incorporation to change its name from Kenco to Core. [Tab 5 to RJN. See Declaration of David J. Strickland at 2:3-15]. On or about January 17, 2006, this Court (Chang, J.) granted Core's motion on the ground that it as never properly served and ordered the August 30, 2002 default and default judgment

set aside. [Tab 6 to RJN]. Despite this ruling, the Judgment Creditor apparently continues to believe that she has a valid judgment and a legal right to recover the judgment against Kenco. Thus on December 17, 2007, aid January 2, 2008, the Judgment.Creditor submitted two new Affidavits of Identity to this Court, now purporting to identify United and Spectrum as the judgment debtor Kenco in this case. [Tabs 7 and 8 to RJN]. Jnited and Spectrum did not receive any notice of the filing of these new Affidavits of Identity, however, and were unable to present evidence establishing that the Judgment Creditor's allegations were demonstrably false. The only connection between United and Kenco is that in August 1988, United purchased certain assets from Kenco and its corporate parent, Spectrum Group, Inc., a company with no affiliation with Spectrum. [Declaration of Michael Pfefferkorn, 1H17-8, 14]. United and Kenco remained completely separate corporations. [Id. at |8]. Spectrum,

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formerly known as Rayovac Company, acquired United in 2005. [Id. f 12]. It has no current or past cor nection with Kenco. [Id. ^[12]. Nevertheless, with nothing more than the Judgment Debtor's say so, this Court issued Orders on Affidavits of Identity providing that United and Spectrum could be known as Judgme it Debtors in this case. [Tabs 9 and 10 to RJN]. Based upon this Court's Orders on Affidavits of Identity, the Judgment Creditor was able to have Writs of Execution issued to the Sheriffs or Marshal Is of Los Angeles, Ventura, San Bernardino, and Tulare Counties. [Tab 11 to RJN]. Spectrum has now been served with notices that Los Angeles County Sheriff, as Levying Officer, has served Notices of Levy on at least six corporations that are either affiliated with or do business with United and/or Spectrum seeking
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER RECALLING AND QUASHING WRITS OF EXECUTION AND VACATING ORDERS ON AFFIDAVITS OF IDENTITY; OR, ALTERNATIVELY, FOR ORDER TO STAY ENFORCEMENT OF WRITS OF EXECUTION PENDING H E A R I N G ON MOTION ~

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to levy on over $20,000,000 of United's and Spectrum's assets. [Tab 12 to RJN]. Some or all of these were served on or about April 7, 2008.

III.

THE WRITS OF EXECUTION ARE FATALLY DEFECTIVE BECAUSE THEY WERE

ISSUED BASED ON A VOID JUDGMENT THAT THIS COURT HAS ALREADY SET ASIDE.
The Writs of Execution in this case are unenforceable and must be recalled and quashed because they are based upon the August 30, 2002 judgment entered by this Court, which was subsequently set aside by the Court on or about January 17, 2006. To "set aside" a judgment is to make such a judgment void and unenforceable. BARRON'S LAW DICTIONARY (3d ed. 1991) at p. 449; se? also, CODE Civ. PROC. 473(d)("[t]he court may ... order") iln granting Core's motion, this Court concluded that plaintiffs had failed to effect service of the Summons and Complaint on Core, formerly known as Kenco. It was the failure of Core to file a responsive pleading to the Complaint that led to the default judgment. Having concluded that there was never proper service, the Court's ruling on this motion rendered the default judgment void ab initio. No matter what the Judgment Creditor may claim, there is not and cannot be any remaining enforceable default judgment stemming from the attempted service on Kenco/Core. Since there is no valid and enforceable judgment underlying the Writs of Execution, this Court riust immediately recall and quash the Writs. set aside any void judgment or

IV. C.C.P. 187

THE WRITS ARE DEFECTIVE BECAUSE THE JUDGMENT CREDITOR HAS

MISUSED THE PROCEDURE OF C.C.P. 680.135 AND CANNOT MEET THE REQUIREMENTS OF
C.C.P. 680.135, which sets forth the procedure for use of Affidavits of Identity, provides: '"Affidavit of Identity' means an affidavit or declaration executed by a judgment creditor, under penalty of perjury, that is filed with the clerk of the court in which the judgment is entered at the time the judgment creditor files for a writ of execution or an abstract of judgment. The affidavit of identity shall set forth the case name and number, the name
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER RECALLING AND QUASHING WRITS OF EXECUTION AND VACATING ORDERS ON AFFIDAVITS OF IDENTITY; OR, ALTERNATIVELY, FOR ORDER TO STAY ENFORCEMENT OF WRITS OF EXECUTION PENDING HEARING ON MOTION

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of the judgment debtor stated in the judgment, the additional name or names by which the judgment debtor is known, and the facts upon which the judgment creditor has relied in obtaining the judgment debtor's additional name or names. The affidavit of identity shall not include the name or names of any persons, including any corporations, partnerships, or any legal entities not separately named in the judgment in which the judgment debtor is a partner, shareholder, or member, other than the judgment debtor." 'his statute permits a judgment creditor to add an alias or other name by which the judgment debtor is known. It is not a vehicle by which a judgment creditor may add alleged alter egos or separate entities claimed to have successor liability. Yet without notice to United and Spectru n and without any semblance of due process, the Judgment Creditor was permitted to add them as judgment debtors to a vacated default judgment when there were no facts establishing that they were the same entities as the judgment debtor. All the Judgment Creditor did in her Affidavit of Identity was to assert erroneous facts and conclusory allegations that completely lacked evidentiary foundation. As reflected in the accompanying declaration of Michael Pfefferkorn, United's only connection to Kenco is that it acquired some assets and assumed certain limited liabilities in an August 1988 asset sale. It is a completely separate and independent corporation. Spectrum has never rad any connection to Kenco. It acquired United in 2005. These companies cannot be substitited as the judgment debtor under C.C.P. 680.135. Nor can the Judgment Creditor rely upon C.C.P. 187, which grants certain implied powers to the courts to amend a judgment to add the names of additional entities as judgment debtors. Under this statute, the new party to be named must be either the alter ego and/or the successor corporation of the old party; and the new party must have controlled the underlying litigation, meaning that it had a full and fair opportunity to litigate the case so as to satisfy due procesi concerns. NEC Electronics v. Hurt, 208 Cal.App.3d 772, 778 (1989); McClellan v. Northridge Park, 89 Cal.App.4th 746, 753-54 (2001). Neither condition can be met here. More significantly, a Section 187 amendment will not lie, where, as in the instant case, the judgment was entered by default. Long-standing California case law prohibits any

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amendment to the judgment to add additional judgment debtor names under such circumstances
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EXPARTE APPLICATION FOR ORDER RECALLING AND QUASHING WRITS OF EXECUTION AND VACATING ORDERS ON AFFIDAVITS OF IDENTITY; OR, ALTERNATIVELY, FOR ORDER TO STAY ENFORCEMENT OF WRITS OF EXECUTION PENDING H E A R I N G ON MOTION

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because such amendment would violate due process of law as to the additionally named entities. Motores de Mexicali v. Superior Court, 51 Cal.2d 172, 176 (1958). Accordingly, this Court should recall and quash the Writs at issue in this case because they an based on a misuse of the Affidavit of Identity procedure. The Court should also issue an Order vacating its prior Orders on Affidavits of Identity.

V.

THE

JUDGMENT CREDITOR'S

EGREGIOUS

ABUSE

OF

CALIFORNIA'S

ENFORCEMENT OF JUDGMENT PROCEDURE REQUIRES HER To PAY UNITED'S AND SPECTRUM'S COSTS AND ATTORNEYS' FEES.
C.C.P. 699.510(c)(3) provides in pertinent part: "If a person who is not the judgment debtor has property erroneously subject to an enforcement of judgment proceeding based upon an affidavit of identity, the person shall be entitled to the recovery of reasonable attorney's fees and costs from the judgment creditor incurred in releasing the person's property from a writ of execution, in addition to any other damages or penalties to which an aggrieved person may be entitled to by law, including the provisions of Division 4 (commencing with Section 720.010.)." Jnited and Spectrum request an Order requiring the Judgment Creditor to pay their reasonable attorneys' fees and costs as a result of her egregious misuse of the Affidavit of

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Identity procedure. They respectfully request leave to have their attorneys file a declaration

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forthwith setting forth the costs and fees associated with bringing this application for relief.

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VI.
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CONCLUSION

or the foregoing reasons, United and Spectrum respectfully request that the Writs be

immediately recalled and quashed and that this Court's Orders on Affidavits of Identity be

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vacated
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The Writs are based on the August 30, 2002 default judgment against Kenco and Core Moreover, the Judgment

that was previously set aside by this Court on January 17, 2006.
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Credito- misused the procedures governing enforcement of judgments to add United and Spectrum, two completely separate and independent corporations, to the judgment without notice
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and in violation of C.C.P. 680.135 and 187.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER RECALLING AND QUASHING WRITS OF EXECUTION AND VACATING ORDERS ON AFFIDAVITS OF IDENTITY; OR, ALTERNATIVELY, FOR ORDER TO STAY ENFORCEMENT OF WRITS OF EXECUTION PENDING H E A R I N G ON MOTION

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DATED April 1 6, 2008

LOGAN LAW GROUP, P.C.

By:

<(^l^.C^yi~~ PETER B. LOGAN Attorneys appearing specialty for UNITED INDUSTRIES, INC. aftd/SPECTRUM BRANDS, INC., wrongfully identified herein as Judgment Debtors

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER RECALLING AND QUASHING WRITS OF EXECUTION AND VACATING ORDERS ON AFFIDAVITS OF IDEN1 ITY; OR, A L T E R N A T I V E L Y , FOR ORDER TO STAY ENFORCEMENT OF WRITS OF EXECUTION PENDING HEARING ON MOTION '