Judge John B. Scherling, Case 37-2015-00034908-PR-TR-CTL 2023-11-03 Tentative Ruling

Judge: John B. Scherling, Case: 37-2015-00034908-PR-TR-CTL, Date: 2023-11-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - November 02, 2023

11/03/2023 02:00:00 PM 502 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:John B Scherling

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Probate Trust Proceedings Motion Hearing (Probate) 37-2015-00034908-PR-TR-CTL IN RE MATTER OF THE GIACALONE FAMILY TRUST, EXECUTED 10/11/1985, AMENDED ON 10/30/1985, 7/14/2005; 2/26/2007; 9/24/2007; 4/13/2009; 11/14/2010; CAUSAL DOCUMENT/DATE FILED:

Pursuant to San Diego County Superior Court Local Rules, rule 4.23.7, the Court's tentative ruling is as follows: The Application for Order for Sale of Dwelling (ROA 1067) is GRANTED subject to proof of recordation of an Amendment to Abstract of Judgment in compliance with CCP § 674.

Jon Maniscalco's evidentiary objections (ROA 1083) are OVERRULED.

I. BACKGROUND This case concerns the Giacalone Family Trust dated October 11, 1985 ('Trust'), which was executed by Nicola Giacalone and Antoinette Giacalone. The Trust has been divided into two subtrusts: the Survivor's Trust and the Residual Trust.

On November 29, 2017, Jon Maniscalco ('Jon') and Michael Maniscalco filed a petition as beneficiaries of the Survivor's Trust alleging claims against Matteo Giacalone and Madelyn Giacalone ('the Giacalones'). (ROA 32, amended by ROA 75.) On September 13, 2018, Anthony Asaro ('Anthony') filed a petition as the beneficiary of the Residual Trust alleging claims against Jon and the Giacalones. (ROA 77, amended by ROA 246.) Both petitions were tried together. On September 30, 2022, the Court entered $1,094,740 in judgment in favor of Anthony and against Jon and the Giacalones. (ROA 846, 847.) The Court also denied the petition filed by Jon and Michael Maniscalco.

On July 20, 2023, Anthony passed away. On August 4, 2023, Andrew P. Asaro ('Andrew') was appointed as Special Administrator of Anthony's estate.

On September 27, 2023, Andrew, as the Special Administrator, filed the instant Application for Order for Sale of Dwelling, to sell Jon's right, title, and interest in the residential real property located at 3425 Caminito Daniella, Del Mar, CA 92014 ('Daniella Property'), towards satisfying Anthony's judgment against Jon ('Application'). (ROA 1067.) On September 29, 2023, the Court issued an Order to Show Cause re Sale of Property and set a hearing. (ROA 1075.) Calendar No.: Event ID: TENTATIVE RULINGS

3030711 CASE NUMBER: CASE TITLE: IN RE MATTER OF THE GIACALONE FAMILY TRUST, EXECUTED 37-2015-00034908-PR-TR-CTL On October 23, 2023, Jon filed an opposition to the Application. (ROA 1080.) On October 27, 2023, Andrew filed a reply. (ROA 1087.) II. DISCUSSION The application alleges that Jon has not paid any part of the judgment, and as of September 25, 2023, owes $1,205,714.10 on the judgment. Jon and his wife Marlene, as trustees of their revocable family trust, own the Daniella Property, and acquired title as husband and wife in joint tenancy. By a quitclaim deed recorded on April 14, 2006, Jon and his wife, as husband and wife, quitclaimed the Daniella Property to themselves as co-trustees of the Jon and Marlene Maniscalco Family Trust.

Jon and his wife, as trustees of the Trust, provided a deed of trust to First Future Credit Union that was recorded on September 29, 2006, which included an 'Inter Vivos Revocable Trust Rider' signed by Jon and his wife, stating that the Trust was a revocable living trust. On June 6, 2022, Jon and his wife, as trustees of their Trust, recorded a Declaration of Homestead.

On January 31, 2023, Judgment Creditor recorded an Abstract of Judgment in San Diego County, which by operation of law automatically created a judgment lien on the Daniella Property.

In addition, there are two senior liens on this property: a deed of trust recorded by Mortgageit, Inc. for $650,000 on April 13, 2006; and a deed of trust recorded by Washington Mutual Bank for $250,000 on August 21, 2007, for a total of $900,000. There is one junior lien held by the law firm of Van Dyke & Associates for $220,952.35 by deed of trust recorded on February 23, 2023.

On April 21, 2023, Judgment Creditor recorded a second Abstract of Judgment, and a Notice of Levy on September 6, 2023, which are not junior liens required to be accounted for, as they are both in favor of Judgment Creditor.

The Application states that Jessica J. Vance, a licensed California real estate agent and mortgage broker, opined that the current fair market value of the Daniella Property is $3,200,000. Assuming Jon is entitled to a $600,000 homestead exemption under CCP § 704.730, there is at least $1,700,000 of equity available to satisfy the Judgment.

In support of the Application, Andrew argues that although only Jon is liable under the Judgment and title to the Daniella Property is held by Jon and his wife Marlene (as trustees of their revocable family trust), the entire property is subject to sale as community property. The transfer of the Daniella Property to Jon's revocable trust does not prevent Andrew from selling the property, which Andrew is entitled to sell under CCP § 704.710 et seq.

In opposition, Jon argues the judgment on which Andrew relies is currently pending appeal and set for oral argument, yet Andrew is trying to enforce the judgment where there is a real possibility the judgment may be reversed.

Jon further argues that forcing the sale of his personal residence is a drastic measure and should be sought only after other means of collection are exhausted, such as wage garnishment, seizures of the judgment debtor's other property (including real property other than the principal place of residence), or seizing funds from the judgment debtor's bank account. Andrew has not attempted to collect on the judgment through any of these means, or to proceed with a judgment debtor examination to determine the nature and extent of the debtor's assets. Jon further argues that one other obvious means to collect on the judgment which has apparently been ignored is Jon's one-fifth interest in the assets held under the Residual Trust of the Giacalone Family Trust, which amounts to approximately $680,000.

Jon also contends the recorded Abstract of Judgment is fatally defective for failure to include Jon's social Calendar No.: Event ID: TENTATIVE RULINGS

3030711 CASE NUMBER: CASE TITLE: IN RE MATTER OF THE GIACALONE FAMILY TRUST, EXECUTED 37-2015-00034908-PR-TR-CTL security number and the amount of the judgment. In addition, Andrew's appraisal of the Daniella Property is insufficient to establish the property value.

In reply, Andrew argues that Jon's opposition makes numerous arguments that have no relevance and grounds to deny the Application. Andrew contends that Jon's claims about the Abstract of Judgment are wholly irrelevant, and his dispute about the value of the Daniella Property is unsupported, as he failed to offer any evidence of the property's value.

A. Analysis 1. Evidentiary Objections Jon objects to the declaration of Jessica L. Vance (ROA 1068) in its entirety, and specific paragraphs of her declaration on various grounds, including lack of foundation and inadmissible hearsay. The declaration is based on the opinions of Ms. Vance, who is a realtor. She describes the steps she took to appraise the Daniella Property, and no out-of-court statements by another declarant are included in the declaration to even trigger the hearsay rule. Thus, the Objections are OVERRULED as meritless.

2. Application for Sale 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.) The judgment creditor's application must be made under oath, describe the dwelling, and 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.

(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.

(CCP § 704.760.) A homestead is exempt from sale to the extent provided in Section 704.800. (CCP § 704.720(a).) The amount of the homestead exemption is the greater of an amount not exceeding $600,000 ('the countywide median sale price for a single-family home in the calendar year prior to the calendar year in which the judgment debtor claims the exemption'), or $300,000. (CCP § 704.730(a).) 'If the application states the amount of the homestead exemption, the person claiming the homestead exemption has the burden of proof that the amount of the exemption is other than the amount stated in the application.' (CCP § 704.780(a)(2).) Calendar No.: Event ID: TENTATIVE RULINGS

3030711 CASE NUMBER: CASE TITLE: IN RE MATTER OF THE GIACALONE FAMILY TRUST, EXECUTED 37-2015-00034908-PR-TR-CTL In ruling on an application for sale of a dwelling, first, the court must determine whether the dwelling is exempt. If exempt, the court must determine the amount of the homestead exemption and the fair market value of the dwelling. (CCP § 704.780(b). '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.' (Id., emphasis added.) The order for sale '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.' (Id.) Here, Andrew's Application satisfies the requirements of CCP § 704.760, as it provides all the required statements. (ROA 1067.) Andrew provided a copy of the Declaration of Homestead filed by Jon. (Id., at Exh. 5.) The parties do not dispute that Jon's dwelling, the Daniella Property, is a homestead and subject to a homestead exemption of $600,000.

The Court is required to 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.' (CCP § 704.780(b).) Based on the arguments and evidence presented, there is no basis to conclude that the sale of the Daniella Property would not likely produce a bid sufficient to satisfy the debt at issue. The property has been appraised at $3.2 million, which is more than sufficient to cover not only Andrew's judgment, but also the senior liens recorded against the property. In this regard, while Jon argues the appraisal value provided by Ms. Vance is unreliable and insufficient, he presented no evidence to contradict the appraisal. In any event, '[t]he court may appoint a qualified appraiser to assist the court in determining the fair market value of the dwelling.' (CCP § 704.780(d).) Thus, any dispute regarding the appraisal value of the Daniella Property is not grounds to deny the application for sale.

Further, Jon argues less drastic means to satisfy the judgment should be sought, citing to Davis Boat Manufacturing-Nordic, Inc. v. Smith (2023) 95 Cal.App.5th 660. This case is inapposite as it addressed CCP § 699.730, which deals with judgment liens based on consumer debt. Pursuant to CCP § 704.710 et seq. ('Homestead Exemption'), the standard for sale of a dwelling to enforce the judgment here is as set forth in CCP § 704.780. Indeed, Jon does not cite to any legal authority to support the claim that alternative, less drastic measures should be considered before forcing a sale.

The Court also notes that Jon cites to Court of Appeal Case No. 080874, arguing that the pendency of this appeal is reason to delay hearing the Application. However, a review of the Court of Appeal website shows this appeal was voluntarily dismissed as of February 9, 2023. (See Asaro v. Maniscalco et al.

(Feb. 9, 2023, D080874) [nonpub. opn.].) The website also shows other appeals filed in this case, but none are currently pending resolution. Andrew does not address this issue in the reply. Even if an appeal were pending, however, Jon has not filed the bond required to stay enforcement of the judgment per CCP § 917.1.

As to the Abstract of Judgment filed by Andrew, the Court agrees it contains defects, as noted by Jon in his opposition: missing social security number for Jon and the amount of judgment. (ROA 1067, Exh. 6.) The Court finds none of the alleged defects are fatal to the Application under CCP § 674(b), which allows a correction by way of an 'Amendment to Abstract of Judgment,' which 'shall have priority as of the date of recordation of the original abstract of judgment' with exceptions not applicable here. A copy of the judgment is also attached to the Abstract of Judgment. Thus, Jon's arguments relying on the Abstract of Judgment are not grounds to deny the Application.

Therefore, the Application is GRANTED subject to the filing of a proof of recordation of an Amendment to Abstract of Judgment containing all the information required under CCP § 674. In conjunction with such proof, Andrew may file for the Court's signature an amended proposed Order for Sale of Dwelling referencing the Amendment to Abstract of Judgment (with a courtesy copy of the proposed Order and recorded Amendment to Abstract of Judgment delivered directly to Department 502).

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3030711 CASE NUMBER: CASE TITLE: IN RE MATTER OF THE GIACALONE FAMILY TRUST, EXECUTED 37-2015-00034908-PR-TR-CTL Counsel for Andrew Asaro is directed to serve notice of ruling on all parties in accordance with the provisions of CCP § 1019.5(a).

IT IS SO ORDERED.

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