Fleischmann v. Lotito

THOMPSON, J.

This is an appeal from a judgment in favor of the plaintiffs in an action to set aside as fraudulent certain transfers of property. The appeal is taken on the judgment roll alone and the only question raised is that the complaint does not state facts sufficient to constitute a cause of action.

The complaint alleged the recovery of a judgment in the Los Angeles Municipal Court on a debt owed the plaintiffs by the defendants Frank and Mike A. Lotito; that execution was issued and returned wholly unsatisfied; that, after the contracting of the debt, real property was conveyed by Mike Lotito to John Lotito, a younger brother, without consideration, and personal property was purchased in the name of John Lotito with funds belonging to Frank and Mike Lotito, all of which was transferred by John Lotito to the defendant corporation, West Coast Winery, Inc.; that the transfers to John Lotito and from him to the West Coast Winery, Inc., were without valuable consideration and made with intent to hinder, delay and defraud creditors, including the plaintiffs; that the defendants, John Lotito and West Coast Winery, Inc., received the conveyances and transfers with knowledge of the fraudulent intent and that the defendants had no other property in the state out of which the plaintiffs ’ claim could be satisfied.

The trial court found, in accordance with the allegations of the complaint, that plaintiffs had recovered a judgment against Mike A. and Frank Lotito;° that execution had been returned unsatisfied and the judgment recorded prior to the commencement of this action; that the defendants had no other property in this state out of which the plaintiffs could realize their claim; that the conveyances were made fraudulently, without valuable consideration and in contemplation

[367]

of insolvency and that the defendants John Lotito and West Coast Winery, Inc., took with knowledge of the fraud, concluded that the transfers were void and all of the property subject to the lien of the plaintiffs’ judgment and rendered judgment accordingly.

It is objected by the appellants that no cause of action is stated for the reason that it is not directly alleged that the judgment recovered in the municipal court was unpaid, nor that the plaintiffs are still owners of the judgment.