Judge: Michael E. Whitaker, Case: 20STCV35034, Date: 2023-02-09 Tentative Ruling

Case Number: 20STCV35034    Hearing Date: February 9, 2023    Dept: 32

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged). Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

TENTATIVE RULING

PROCEDURAL BACKGROUND

            On September 14, 2020, plaintiff Joshua Messler (“Plaintiff”) filed this action against defendants Gor Karapetian, Ara Karapetian, and Narine Karapetian (collectively, “Defendants”), asserting causes of action for strict liability and negligence.  The Complaint alleges that, on or about November 2, 2019, defendant Gor Karapetian’s dog attacked Plaintiff and his dog, while Plaintiff was walking in a public place, injuring them. 

            On January 21, 2021, the Court entered default against the Defendants.

            On March 9, 2022, the Court entered default judgment of $55,227.60, against the Defendants.  The clerk issued and filed a Notice of Entry of Judgment that same day.

            On January 3, 2023, Plaintiff filed a verified application for issuance of order for sale of dwelling.  Plaintiff also filed an order to show cause for sale of dwelling, which the Court signed on January 3, 2023, setting the instant OSC.

            On January 27, 2023, defendants Ara Karapetian and Narine Petrossian filed a motion to set aside the default and default judgment.  The hearing for the motion is set for April 12, 2023.

OSC

Plaintiff moves the Court for an order allowing the sale of a house described as 3314 Barnes Circle, Glendale, California 91208 (the “Property”), owned by defendants Ara Karapetian and Narine Petrossian, husband and wife as joint tenants, to satisfy the judgment Plaintiff obtained on March 9, 2022.

ANALYSIS

Interests in real property are subject to attachment.  (Code Civ. Proc., § 487.010, subd. (c)(1).)  “Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this article for a right to attach order and a writ of attachment by filing an application for the order and writ with the court in which the action is brought.”  (Code Civ. Proc., § 484.010.)

            Code of Civil Procedure 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 [see below]), 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.

According to Code of Civil Procedure section 704.760, an application for order for sale of a dwelling shall be made under oath, shall describe the dwelling, and shall contain all of the following:

1. 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.

2. 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.

3. 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.

“‘Homestead’ means the principal dwelling (1) in which the judgment debtor or the judgment debtor’s spouse resided on the date the judgment creditor's lien attached to the dwelling, and (2) in which the judgment debtor or the judgment debtor's spouse resided continuously thereafter until the date of the court determination that the dwelling is a homestead.”  (Code Civ. Proc., § 704.710, subd. (c).)

“An attachment lien attaches to a homestead (as defined in Section 704.710) in the amount of any surplus over the total of the following:  ¶ (1) All liens and encumbrances on the homestead at the time the attachment lien is created.  ¶ (2) The homestead exemption set forth in Section 704.730.”  (Code Civ. Proc., § 487.025, subd. (b).)  Under  Code of Civil Procedure section 704.730, subdivision (a), “[t]he amount of the homestead exemption is the greater of the following:

1. 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, not to exceed six hundred thousand dollars ($600,000).

    

2. Three hundred thousand dollars ($300,000).”

The Court finds that Plaintiff’s application satisfies the requirements above for the following reasons.  First, the application is made under oath. (Application for Order to Sell Dwelling, filed on January 3, 2023 (“Application”), p. 6 – counsel’s verification page.)  Second, it describes the dwelling.  (Application, ¶ 2.)  Second, the application makes the following statements: (a) the Property is a homestead, (b) the amount of the homestead exemption is $600,000, and (c) the records of the county recorder indicate that a homestead exemption has been claimed.  (Application, ¶¶ 6-8.)  Third, the amount of any liens on the Property is provided, including the name of each lienholder and the address of such persons. (Application, ¶ 9.)  Fourth, the application states the fair market value of the Property ($2,739,000), and if sold, has sufficient equity to satisfy all liens, as well as the maximum $600,000 homestead exemption allowed by law.  (Application, ¶ 13.)

However, the Court notes that the owners of the Property, defendants Ara Karapetian and Narine Petrossian, have a pending motion to set aside the default and default judgment on April 12, 2023.  (Evid. Code § 452, subd. (d) [providing that a court may take judicial notice of court records].)  If the Court grants that motion, then an order requiring the sale of their Property cannot stand.

CONCLUSION AND ORDER

Therefore, the Order to Show Cause Re: For Sale of Dwelling is CONTINUED to April 12, 2023, at 1:30 p.m., Dept. 32, Spring Street Courthouse, to be heard on the same day as the hearing on the Motion to Set Aside Default and Default Judgment.

Plaintiff shall provide notice of the Court’s orders and file a proof of service of such.