Judge: Holly J. Fujie, Case: 22STCP0444, Date: 2023-02-23 Tentative Ruling
Case Number: 22STCP0444 Hearing Date: February 23, 2023 Dept: 56
SUPERIOR
COURT OF THE STATE OF CALIFORNIA
FOR
THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
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Petitioners, vs. RONALD SCIPIO, JR.,
Respondent. |
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[TENTATIVE] ORDER RE: APPLICATION FOR SALE OF DWELLING Date: February 23, 2023 Time: 8:30 a.m. Dept. 56 |
MOVING PARTY: Petitioners
RESONDING PARTY: Respondent
The Court has
considered the moving, opposition and reply papers.
BACKGROUND
On December 27,
2022, Petitioners filed a petition for an order for the sale of dwelling (the
“Petition”). The Petition seeks an order
for the sale of real property owned by Respondent located at 1622 West 38th
Place in Los Angeles (the “Property”) on the grounds that the sale of the
Property may be applied to satisfying a judgment (the “Judgment”) awarded in Petitioners’
favor against Respondent by the Riverside County Court in the case entitled Edward
Roupinian v. Luis Aragon, Case No. RIC1104880 (the “Riverside Action”).
REQUEST FOR JUDICIAL NOTICE
Respondent’s
Request for Judicial Notice is GRANTED as to the existence of the documents but
not to the truth of the matters asserted therein. (See Fremont Indemnity Co. v. Fremont
General Corp. (2007) 148 Cal.App.4th 97, 113.)
DISCUSSION
California Code
of Civil Procedure (“CCP”) section 704.750, subdivision (a) provides:
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
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. (CCP § 704.750, subd. (a).)
Under CCP section
704.760, subdivision (b), if the dwelling is located in a county other than the
county where the judgment was entered:
Under CCP section 704.770:
(a) 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. The time set for
hearing shall be not later than 45 days after the application is filed or such
later time as the court orders upon a showing of good cause.
(b) Not later than 30 days before the time set for
hearing, the judgment creditor shall do both of the following:
(1) Serve on the judgment debtor a
copy of the order to show cause, a copy of the application of the judgment
creditor, and a copy of the notice of the hearing in the form prescribed by the
Judicial Council. Service shall be made personally or by mail; and
(2) Personally serve a copy of each document
listed in paragraph (1) on an occupant of the dwelling or, if there is no
occupant present at the time service is attempted, post a copy of each document
in a conspicuous place at the dwelling. (CCP § 704.770.)
Under CCP section
704.760, an application for order of sale of dwelling shall be made under oath,
shall describe the dwelling, and shall contain all of the
following:
a. A statement whether or not the
records of the county tax assessor indicate that there is a current homeowner’s
exemption or disabled veteran’s exemption for the dwelling and the person or
persons who claimed any such exemption;
b. A statement, which may be based
on information and belief, whether the dwelling is a homestead and the amount
of the homestead exemption, if any, and a statement whether or not the records
of the county recorder indicate that a homestead declaration under Article 5
(commencing with Section 704.910) that describes the dwelling has been recorded
by the judgment debtor or the spouse of the judgment debtor;
c. A statement of the amount of
any liens or encumbrances on the dwelling, the name of each person having a
lien or encumbrance on the dwelling, and the address of such person used by the
county recorder for the return of the instrument creating such person's lien or
encumbrance after recording; and
d.
A
statement that the judgment is based on a consumer debt, as defined in
subdivision (a) of Section 699.730, or that the judgment is not based on a
consumer debt, and if the judgment is based on a consumer debt, whether the
judgment is based on a consumer debt that was secured by the debtor's principal
place of residence at the time it was incurred or a statement indicating which
of the exemptions listed in subdivision (b) of Section 699.730 are applicable.
If the statement indicates that paragraph (7) of subdivision (b) is applicable,
the statement shall also provide the dollar amount of the original judgment on
which the lien is based. If there is more than one basis, the statement shall
indicate all bases that are applicable. (CCP §
704.760.)
Local Rule 3.223(a)
provides that an application for an order for sale of a dwelling must provide
at the hearing competent evidence of the following:
(1) The fair market value of the
property by a real estate expert;
(2) Litigation guarantee or title
report that contains a legal description of the property, the names of the
current owners, a list of all deeds of trust, abstracts of judgments, tax liens
and other liens recorded against the property, whether a declaration of
homestead has been recorded, whether a current homeowner's exemption or
disabled veteran's exemption has been filed with the county assessor, and the
persons claiming such exemption;
(3) The amount of any liens or encumbrances on the
dwelling, and the names and addresses of the lienholders and when the judgment
creditor's lien attached. The judgment creditor must ascertain the
precise amounts of obligations secured by senior liens by making a written
demand for beneficiary statements from senior lienholders pursuant to Civil
Code section 2943. The judgment creditor
may need to conduct an examination pursuant to Code of Civil Procedure sections
708.120 or 708.130 to determine the precise amounts of the junior liens, the
daily rate of interest due on the senior and junior liens, and encumbrances of
record; and
(4) The date of service on the
judgment creditor of the levying officer's notice that the dwelling was levied
upon.
Under CCP, section
704.780, subdivision (a)(1), if the records of the county tax assessor indicate
that there is not a current homeowner’s exemption or disabled veteran’s
exemption for the dwelling claimed by the judgment debtor or the judgment
debtor’s spouse, the burden of proof that the dwelling is a homestead is on the
person who claims that the dwelling is a homestead. (CCP § 704.780, subd. (a)(1).)
CCP section 704.780, subdivision (b) provides:
The court
shall determine whether the dwelling is exempt. If the court determines that
the dwelling is exempt, the court shall determine the amount of the homestead
exemption and the fair market value of the dwelling. The court shall make an order for sale of the
dwelling subject to the homestead exemption, unless the court determines that
the sale of the dwelling would not be likely to produce a bid sufficient to
satisfy any part of the amount due on the judgment pursuant to Section 704.800.
The order for sale of the dwelling subject to the homestead exemption shall
specify the amount of the proceeds of the sale that is to be distributed to
each person having a lien or encumbrance on the dwelling and shall include the
name and address of each such person. Subject
to the provisions of this article, the sale is governed by Article 6
(commencing with Section 701.510 ) of Chapter 3. If the court determines that the dwelling is
not exempt, the court shall make an order for sale of the property in the
manner provided in Article 6 (commencing with Section 701.510 ) of Chapter 3. (CCP § 704.780,
subd. (b).)
Petitioners’
Evidence
On May 17, 2012,
the Riverside County Superior Court entered the Judgment awarding Petitioners
damages in the amount of $529,155.77 for their breach of guaranty claim. (See Declaration of Robert D. Bergman
(“Bergman Decl.”) ¶ 3, Exhibit A.)
Respondent has not
paid any portion of the Judgment. On
June 17, 2022, the Riverside County Court issued an abstract of judgment (the
“Abstract”) that was recorded on July 14, 2022 in the Los Angeles County
Recorder’s Office. (Bergman Decl.
¶ 5, Exhibit D.) A Writ of
Execution was granted on September 26, 2022.
(Bergman Decl. ¶ 6, Exhibit C.)
On December 5, 2022, Petitioners learned that the Los Angeles County
Sheriff recorded a Notice of Levy against the Property. (Bergman Decl., Exhibit E.)
The Property is
located in Los Angeles County and the Los Angeles County Tax Assessor’s website
provides that the Property is subject to the homeowner’s exemption. (See Bergman Decl. ¶ 9, Exhibit
F.) The County Tax Assessor’s website
does not indicate who claimed the exemption.
(See id.) Petitioners were
unable to affirmatively determine whether Respondent currently resides at the
Property. (See Bergman Decl. ¶
20, Exhibit G.) In addition to the
Abstract, the Property is encumbered by a deed of trust recorded on April 24,
2007. (Bergman Decl. ¶ 11, Exhibit H.)
Respondent’s
opposition (the “Opposition”) does not dispute or otherwise address the
presentation of facts set forth in the Petition. Instead, Respondent argues that a sale should
not be ordered because the Judgment in the Riverside Action is void due to improper
service.
The court has power to set aside a judgment that is void as a matter of
law. (See CCP § 473, subd. (d).) To establish personal jurisdiction, compliance
with statutory procedures for service of process is essential; if a default
judgment was entered against a defendant who was not served with a summons as
required by statute, the judgment is void, as the court lacked jurisdiction in
a fundamental sense over the party and lacked authority to enter judgment. (Kremerman v. White (2021) 71
Cal.App.5th 358, 370 [71 Cal.App.5th 358, 370.)
A judgment void on its face because the court lacked personal or subject
matter jurisdiction or exceeded its jurisdiction in granting relief which the
court had no power to grant, is subject to collateral attack at any time. (Rochin v. Pat Johnson Manufacturing Co. (1998)
67 Cal.App.4th 1228, 1239.)
Respondent contends
that the address listed in the Riverside Action’s filings—2623 W.
Lantana Street in Compton—is incorrect and that he never used this address as
his mailing address. (See Declaration
of Ronald Scipio (“Scipio Decl.”) ¶ 2; RJN, Exhibit 3.) Respondent declares that he owned property
located at 2622 West Lantana Street until that property was foreclosed upon in
March 2010. (Scipio Decl. ¶ 3.)
In their reply (the
“Reply”), Petitioners dispute the facts provided in the Opposition and present
some evidence of documents signed by Respondent that list 2623
W. Lantana Street as his address. (See
Declaration of Paul Roupinian (“Roupinian Decl.”) ¶¶ 8-10, Exhibits
A-B.)
Given
the dispute over the validity of the Judgment, the Court finds it appropriate
to defer the resolution of the Petition until the question of the Judgment’s
validity and enforceability against Respondent is decided. The Court therefore CONTINUES the Petition to
allow for further briefing on the issue.
The Court requests further briefing that clearly sets forth Respondent’s
legal and factual bases for relief.
Respondent is to file a supplemental brief no later than March 15, 2023,
and Petitioners are to file a response no later than March 30, 2023. In addition, the Court notes that the
Petition does not appear to provide a calculation of the fair market value of
the Property or request the appointment of an appraiser to determine such
value, and the Court requests that Petitioners also address this issue when
they file their supplemental papers. A
hearing will be held on April 10, 2023 at 8:30 a.m. in this department, at
which point the Court will rule on the Petition.
Moving party is ordered
to give notice of this ruling.
In consideration of the
current COVID-19 pandemic situation, the Court¿strongly¿encourages that
appearances on all proceedings, including this one, be made
by LACourtConnect if the parties do not submit on the tentative.¿¿If
you instead intend to make an appearance in person at Court on this matter, you
must send an email by 2 p.m. on the last Court day before the scheduled date of
the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention
to appear in person.¿ The Court will then inform you by close of business
that day of the time your hearing will be held. The time set for the hearing
may be at any time during that scheduled hearing day, or it may be necessary to
schedule the hearing for another date if the Court is unable to accommodate all
personal appearances set on that date.¿ This rule is necessary to ensure that
adequate precautions can be taken for proper social distancing.
Parties who intend to submit on this
tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed
by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email
and there are no appearances at the hearing, the motion will be placed off
calendar.
Dated this 22nd day of February 2023
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Hon. Holly J.
Fujie Judge of the Superior
Court |
