Judge: Mark A. Young, Case: 18SMCV00233, Date: 2022-10-14 Tentative Ruling

Case Number: 18SMCV00233    Hearing Date: October 14, 2022    Dept: M

CASE NAME:                       Caswell Condominiums v. Osama Lutfi

CASE No.:                             18SMCV00233

MOTION:                              Plaintiffs/ Petitioners’ Application for an Order for Sale of a Dwelling

HEARING DATE:                10/14/2022

Legal Standard

“[T]he 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.” (Code Civ. Proc., § 704.740(a) [emphasis added]; see also Code Civ. Proc., § 704.740(b).)  An application for an order of a sale of a dwelling must be made under oath. (Code Civ. Proc., § 704.760.)  An application for an order of a sale of a dwelling must include particular statements regarding that dwelling. (See Code Civ. Proc., § 704.760(a)-(d).)  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.” (Code Civ. Proc., § 704.770(a).) 

Analysis

“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.” (Code Civ. Proc., § 704.740(b).) 

Analysis

In his late-filed response, respondent Lufti asserts that: a) the fair market value of the property is $1,135,000 and not $1,375,000; and b) there are $1,141,963 of liens, encumbrances, and exemptions on the property. Therefore, respondent asserts that a sale would not be likely to produce a bid.  As an exemption, Lufti claims a homestead exemption of $626,400. (CCP § 704.710(c).) To apply, he must show that he has lived there continuously and that it is his current residence. Lufti provides a (conclusory) declaration that Caswell is the principal dwelling in which he currently resides, and has resided, since 2004. (Lutfi Decl., ¶ 4.)

In reply, an acting member of the Board of Directors for Caswell testifies to facts that persuasively demonstrate that the homestead exemption does not apply. (See Devani Decl., ¶¶ 4-8.) Ms. Devani testifies that Lutfi had informed her that he (Lufti) moved out of the unit and to a new beach house in Venice. Ms. Devani has not seen Lufti at the Association or the Unit in over a year. Critically, Plaintiff provides text messages between Devani and Lufti where Lufti admits that he lives in a new location. (See Devani Decl., Ex. A.) Therefore, the Court concludes that the homestead exemption does not apply.

Since the homestead exemption does not apply, the sale will likely be able to pay off the judgment under either valuation: either $859,437.00 or $618,437.00 in equity.

Therefore, the Court grants the Application and orders the sale of the property.