Judge Cynthia A Freeland, Case 37-2022-00001307-CU-OR-NC 2023-11-03 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2022-00001307-CU-OR-NC, Date: 2023-11-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

SOUTH BUILDING TENTATIVE RULINGS - November 02, 2023

11/03/2023 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited Other Real Property Motion Hearing (Civil) 37-2022-00001307-CU-OR-NC VILLA TRINIDAD HOMEOWNERS ASSOCIATION VS HARBOUR [IMAGED] CAUSAL DOCUMENT/DATE FILED: Application - Other, 09/28/2023

Plaintiff Villa Trinidad Homeowners Association ('Plaintiff')'s motion for an order for sale of non-homestead dwelling is granted.

Plaintiff's request for judicial notice ('RJN') is granted.

Defendant Major M. Harbour ('Defendant') owns certain real property located at 246 Avenida Descanso, Oceanside, CA 92057 (the 'Property') by virtue of a Grant Deed recorded on March 13, 1996. See Plaintiff's RJN, Ex. 3. Defendant currently resides at the real property located at 3162 San Helena Drive, Oceanside, CA 92056 (the 'Harbour Residence'). See Combs Decl., ¶ 11. On January 12, 2022, Plaintiff commenced this action by filing a Complaint against Defendant for breach of Plaintiff's CC&Rs. See ROA No. 1. On April 7, 2023, the court entered a default judgment against Defendant and in Plaintiff's favor issuing both injunctive and monetary relief (the 'Judgment'). See Combs Decl., ¶ 2; ROA No. 33.

Pursuant to the Judgment, the court awarded Plaintiff monetary damages in the amount of $11,254.84, consisting of $1,100.00 in penalty assessments, $9,534.00 in attorneys' fees and costs, and $620.84 under California Civil Code § 5975(c), with interest accruing at the legal rate.

On April 11, 2023, Plaintiff filed a Memorandum of Costs after Judgment in the amount of $40.00. See ROA No. 40; Combs Decl., ¶ 3. That same day, Plaintiff served Defendant with a Notice of Entry of Judgment. See ROA Nos. 36-37. On May 19, 2023, additional costs were entered in the amount of $1,714.26 for total post-judgment costs of $1,754.26. See ROA No. 41; Combs Decl., ¶ 3. On August 11, 2023, the San Diego County Sheriff's Office recorded a Notice of Levy and Writ of Execution against the Property. See Plaintiff's RJN, Ex. 2; Combs Decl., ¶ 5. The San Diego County Sheriff's Office served the recorded Notice of Levy by: (1) mailing it to Defendant on August 15, 2023, and (2) posting it on the Property on August 17, 2023. See Combs Decl., ¶ 6.

On September 14, 2023, Plaintiff filed an ex parte application for an order for sale of the Property and issuance of an Order to Show Cause why an order for sale of the Property should not be issued (the 'OSC'). See ROA No. 51. Defendant did not oppose the ex parte application. On September 26, 2023, the court granted Plaintiff's ex parte application and issued the OSC with briefing per Code. See ROA Nos. 58-59.

California Code of Civil Procedure ('CCP') § 704.750(a) provides that: Promptly after a dwelling is levied upon (other than a dwelling described in subdivision (b) of Section 704.740), the levying officer shall serve notice on the judgment creditor that the levy has been made and Calendar No.: Event ID: TENTATIVE RULINGS

3029351 CASE NUMBER: CASE TITLE: VILLA TRINIDAD HOMEOWNERS ASSOCIATION VS HARBOUR 37-2022-00001307-CU-OR-NC that the property will be released unless the judgment creditor complies with the requirements of this section. Service shall be made personally or by mail. Within 20 days after service of the notice, the judgment creditor shall apply to the court for an order for sale of the dwelling and shall file a copy of the application with the levying officer. If the judgment creditor does not file the copy of the application for an order for sale of the dwelling within the allowed time, the levying officer shall release the dwelling.

Cal. Code Civ. P. § 704.750(a). Upon the filing of the application by the judgment creditor, the court must set a time and place for hearing, not later than 45 days after the application is filed or such later time as the court orders upon a showing of good cause, and order the judgment debtor to show cause why an order for sale should not be issued. See Cal. Code Civ. P. § 704.770(a). At the hearing, the court must determine whether the dwelling is exempt and, if so, the amount of the homestead exemption and the dwelling's fair market value. See Cal. Code Civ. P. § 704.780(b).

The court construes Defendant's lack of opposition as a concession of the motion's merits. See San Diego Rules of Court, Rule 2.1.19.B. In addition, the court finds that Plaintiff has demonstrated entitlement to an order for sale of the Property. The evidence shows that on August 11, 2023, the San Diego County Sheriff's Office recorded a Notice of Levy and Writ of Execution against the Property. The San Diego County Sheriff's Office served the recorded Notice of Levy by: (1) mailing it to Defendant on August 15, 2023, and (2) posting it on the Property on August 17, 2023. Plaintiff has promptly and properly applied for an order of sale under CCP § 704.750. See Cal. Code Civ. P. §§ 704.750, 704.760, 704.780. The Property is a dwelling in which Defendant is not currently residing. The Property has a fair market value of between $400,000.00 and $568,000.00 with an estimated mortgage balance of $97,702.00. See Combs Decl., ¶ 12, Ex. 3. The Property is not subject to a homeowner's exemption or disabled veteran's exemption. Ibid., ¶ 9. The underlying debt is not based on a consumer debt. Ibid., ¶ 10. Defendant, by failing to respond to the OSC, has not shown cause why an order for sale of the Property should not be issued.

In light of the foregoing, the court grants the motion and issues an order that the Property be sold. The Clerk of the Court shall transmit a certified copy of this Order to the San Diego County Sheriff's Office.

See Cal. Code Civ. P. § 704.780(c). If Defendant, Defendant's counsel, Defendant's spouse, and Defendant's spouse's attorney do not appear at the hearing and oppose the OSC, then Plaintiff is directed to comply with the procedures set forth in CCP §§ 704.790(b)-(c). The San Diego County Sheriff's Office shall distribute the sales proceeds in accordance with CCP § 704.850.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, November 3, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of November 3, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

Calendar No.: Event ID: TENTATIVE RULINGS

3029351