Judge: Latrice A. G. Byrdsong, Case: 23STLC00473, Date: 2023-11-14 Tentative Ruling
Case Number: 23STLC00473 Hearing Date: November 14, 2023 Dept: 25
Hearing Date: Tuesday, November 14, 2023
Case Name: CASA PALMERO HOA, a California Nonprofit Corporation v. LESLIE VINSON, an individual and DOES 1-10
Case No.: 23STLC00473
Motion: Application for Order of Sale of Dwelling
Moving Party: Plaintiff Casa Palmero HOA
Responding Party: None
Notice: N/A
Tentative Ruling: Plaintiff Casa Palmero HOA’s Application for Order of Sale of Dwelling is GRANTED.
BACKGROUND
On January 23, 2023, Plaintiff Casa Palmero HOA (“Plaintiff”), a California Nonprofit Corporation filed a Complaint against Defendant Leslie Vinson (“Defendant”), an individual, alleging causes of action for (1) Breach of Contract and (2) Common Counts.
On May 23, 2023, this Court entered default against Defendant pursuant to Plaintiff’s request. (Request for Entry of Default/Judgment 5/23/23.) On June 9, 2023, this Court entered default judgment against Defendant in favor of Plaintiff and in the amount of $7,604.53. (Default Judgment 6/9/23.)
On June 13, 2023, Plaintiff filed a Writ of Execution for the default judgment in the amount of $7,644.53.
On August 21, 2023, Plaintiff filed an Application for Order of Sale of Dwelling (“Application”). No opposition has been filed.
On October 12, 2023, this Court ordered on its own motion a hearing on the Application to allow Plaintiff’s counsel time to file and serve a proper declaration in compliance with the requirements of Code of Civil Procedure, Section 2015.5.
On October 13, 2023, Plaintiff filed a Supplemental Declaration per court order in support of Application of Sale Dwelling.
MOVING PARTY POSITION
Plaintiff seeks an Order to Show Cause Why an Order to Sell the property located at 1750 Camino Palmero #232, Los Angeles, CA 90046, owned by Defendant should not issue.
OPPOSITION
None as of 11/8/23.
REPLY
None as of 11/8/23.
ANALYSIS
I. Application for Order of Sale of Dwelling
A. Legal Standard
The Code of Civil Procedure (CCP) Section 704.740, provides in pertinent part the following:
“(a) Except as provided in subdivision (b), the interest of a natural person in a dwelling may not be sold under this division to enforce a money judgment except pursuant to a court order for sale obtained under this article and the dwelling exemption shall be determined under this article.
(b) If the dwelling is personal property or is real property in which the judgment debtor has a leasehold estate with an unexpired term of less than two years at the time of levy:
(1) A court order for sale is not required and the procedures provided in this article relating to the court order for sale do not apply.
(2) An exemption claim shall be made and determined as provided in Article 2 (commencing with Section 703.510).”
(CCP § 704.740.)
“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.” (CCP § 704.750(a).) “Service shall be made personally or by mail.” (Ibid.) “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.” (Ibid.) “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.” (Ibid.)
An application for an order for sale must: (1) be made under oath; (2) describe the dwelling; (3) state whether or not the records of the county tax assessor indicate there is a homeowner’s or disabled veteran’s exemption; (4) state whether the dwelling is a homestead, the amount of the homestead exemption, and whether the records of the county recorder indicate that a homestead declaration under Article 5 has been recorded by the judgment debtor or his or her spouse; (5) contain a statement of the amount of liens or encumbrances, the name of the person claiming the lien or encumbrance, and the address of such person as used by the county recorder for the return of the instrument creating the lien; and (6) contain a statement regarding whether or not the judgment is based on a consumer debt as defined by Section 699.730, and if it is, a statement regarding whether the judgment was secured by the debtor’s principal place of residence at the time the debt was incurred. (CCP § 704.760(a)-(d).
CCP, Section 704.770, states the following:
“(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.
(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.)
“If an interest in real property that is subject to a judgment lien is transferred or encumbered without satisfying or extinguishing the judgment lien: (a) the interest transferred or encumbered remains subject to the judgment lien. (CCP § 697.390.)
B. Discussion
Here, Plaintiff Casa Palmero HOA (“Plaintiff”) seeks an Order to Show Cause Why an Order to Sell the property located at 1750 Camino Palmero #232, Los Angeles, CA 90046 (the “Property”), owned by Defendant Leslie Vinson (“Defendant”) should not issue.
In compliance with Code of Civil Procedure (CCP), Section 704.760 et seq., the Application for Order of Sale of Dwelling (“Application”) is made under oath and sets forth the following information and states the title owner of the Property is Leslie Vinson. (App. at pp. 1-2.) Furthermore, on June 9, 2023, judgment was entered in favor of Plaintiff and against Defendant. (Id.) Moreover, the Application has been filed within 20 days of the date the Sheriff served the Notice of Creditor of Levy on Defendant. (Id. at p. 3, Exh. D.) Additionally, the Abstract of Judgment was issued on June 13, 2023, in the amount of $7,604.53. (Id. at p. 2, Exh. A.) Finally, the Writ of Execution was issued on June 13, 2023, in the amount of $7,644.53. (Id. Exh. B.)
The Application also sets forth the legal description of the Property as:
LOT 1 OF TRACK NO. 36170, Condo Unit 232, as per map recorded in Book 946, pages 3, 4, and 5, inclusive, of Maps of the County of Los Angeles, State of California, in the Office of the Country Recorder of said county. Parcel Number 5550-032-054, commonly known as 1750 Camino Palmero, # 232, Los Angeles, CA 90046. (App. p. 3., Exh. E.)
The Property is not the principal residence of Defendant and is used as a rental income property. (Id. at p. 4.) As such, “no homeowner’s or homestead exemption or disabled veteran’s exemption can apply to the subject property.” (Id. at p. 2, 4, Ex. E.)
The Application further provides the liens and encumbrance; and identifies the persons or entities that have the lien and encumbrance and the address of such person used by the county record creating such person’s lien or encumbrance. (App. ¶ A-B, pp. 4-5.)
The Application also contains a statement that CCP, Section 699.730 does not apply because the Property is not the principal residence of the Defendant. Nonetheless, the consumer debt Defendant owes Plaintiff is secured by the subject property owned by Defendant at the time the debt was incurred.
Also, CCP, Section 2015.5 requires declarations, verifications, and writings under oath to be made under penalty of perjury, subscribed by the declarant, set forth the date and place of execution, and be made under the laws of the State of California. Indeed, where a declaration in support of a motion is not signed under penalty of perjury under the laws of the State of California as required by Section 2015.5, it has no evidentiary value and a court must not consider it. (ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 217; see also Kulshrestha v. First Union Commercial Corp. (2004) 33¿Cal.App.4th 601, 610-611 [finding that “each term has meaning and appears for a reason.”)
As ordered by this Court, Plaintiff filed a supplemental declaration in support of the Application, which includes the signature of Declarant Joseph C. Watson, Esq. indicating the declaration was executed on October 13, 2023 in New York.
Therefore, the Court finds that an Order to Show Cause Why an Order to Sell the Property should not issue is warranted under law. Plaintiff has complied with the statutory requirements as set forth above.
II. Conclusion
Accordingly, Plaintiff Casa Palmero HOA’s Application for Order of Sale of Dwelling is GRANTED.
An Order to Show Cause Re: Why the Court Should Not Issue an Order to Sell Dwelling is set for 12/29/2023 at 9:30 a.m. in Department 25 of the Spring Street Courthouse.
Moving party is ordered to give notice.