Judge: Armen Tamzarian, Case: BC588915, Date: 2023-02-14 Tentative Ruling

Case Number: BC588915    Hearing Date: February 14, 2023    Dept: 52

Judgment Creditor Jonathan Neil & Associates, Inc.’s Motion for Sale of Dwelling of Judgment Debtor

Judgment creditor Jonathan Neil & Associates, Inc. moves for an order for sale of judgment debtor John Shaffer Smith III’s dwelling, which is located at 3719 Winford Dr., Tarzana, CA 91356.

Judgment debtor Smith opposes the motion on three grounds. 

First, Smith contends judgment creditor did not give adequate notice and service of the motion.  He relies, however, on the wrong notice provision.  Code of Civil Procedure section 704.770(b) provides that the creditor must serve notice of “a copy of the order to show cause, a copy of the application of the judgment, and a copy of the notice of the hearing” and must personally serve the documents no later than 30 days before the time set for hearing.  That provision applies to the order “to show cause why an order for sale should not be made in accordance with the application,” not the application for that order to show cause.  (CCP § 704.770(a).)  This motion constitutes judgment creditor’s application for the order to show cause, not the order to show cause itself.

Second, Smith argues the writ of execution was for the wrong amount.  He contends he has paid $105,479.95 of the judgment.  His evidence shows he paid that amount—but not on the judgment.  He includes $54,000 of payments made before judgment was entered.  (Smith Decl., Ex. 1, payments dated up to 2017.)  The court entered judgment on February 5, 2018.  Smith’s evidence shows postjudgment garnishment totaling $51,479.95 from May to August 2018.  That amount is less than the $52,078.03 credited in the acknowledgment of partial satisfaction of judgment filed on June 24, 2019.  Judgment creditor establishes the writ of execution issued on October 20, 2022, was for the correct amount of $252,684.63. 

Third, Smith argues judgment creditor did not serve him with several memoranda of costs after judgment.  Smith provides no authority that failing to serve a memorandum of costs after judgment is grounds for denying an application for an order to sell a debtor’s dwelling.  Moreover, each memorandum of costs includes a declaration of service by mail to Smith. 

Judgment creditor’s application meets the requirements of Code of Civil Procedure section 704.760.  “Upon the filing of the application by the judgment creditor, the court shall set a time and place for hearing and order the judgment debtor to show cause why an order for sale should not be made in accordance with the application.”  (CCP § 704.770(a).)  The court hereby finds good cause for the hearing to be set later than 45 days after judgment creditor filed this application.

The application is granted.  The court hereby orders judgment debtor John Shaffer Smith III to show cause why an order for sale should not be made in accordance with this application to be heard on March 29, 2023, at 9:00 a.m.     

Judgment debtor John Shaffer Smith shall file any response to the order to show cause no later than March 16, 2023.  Judgment creditor Jonathan Neil & Associates, Inc. shall file any further papers no later than March 22, 2023.