Judge: Steven A. Ellis, Case: 20STCV35034, Date: 2025-02-04 Tentative Ruling

Case Number: 20STCV35034    Hearing Date: February 4, 2025    Dept: 29

Messler v. Karapetian
20STCV35034
Plaintiff’s Application for Issuance of Order for Sale of Dwelling

Tentative

Plaintiff’s application is denied without prejudice.

Background

On September 14, 2020, Joshua Messler (“Plaintiff”) filed a complaint against Gor Karapetian, Ara Karapetian, Narine Karapetian, and Does 1 through 10, asserting causes of action for strict liability and negligence arising out of an incident on November 2, 2019, in which Plaintiff alleges he suffered injuries as a result of a dog bite.

On January 21, 2021, the default of each of the named defendants was entered.

On August 10, 2021, Plaintiff filed a request to dismiss the Doe defendants.

On March 9, 2022, the Court entered a default judgment in favor of Plaintiff, and against the named defendants, in an amount of $55,227.60.

On January 3, 2023, on Plaintiff’s ex parte application, the Court issued an Order to Show Cause for Sale of Dwelling.

On January 27, 2023, Defendants Ara Karapetian and Narine Petrossian (named as Narine Karapetian) (collectively, “Defendants”), represented by counsel, filed a motion to vacate the default and the default judgment. 

On April 12, 2023, the Court granted the motion to vacate the default and the default judgment.  Plaintiff filed an appeal, and the Court of Appeal affirmed in an unpublished decision dated July 26, 2024.

While the appeal was pending, litigation continued in this Court. 

Defendants filed an answer on June 27, 2023. 

Defendants’ lawyer filed a motion to be relieved, which the Court granted in October 2023. 

On November 21, 2023, the Court granted Plaintiff’s motion for an order deeming Defendants to have admitted the truth of the matters specified in requests for admission; granted Plaintiff’s motion to compel Defendants to respond to form interrogatories, special interrogatories, and requests for production; ordered Defendants to respond to the interrogatories and requests for production within 30 days; and imposed monetary sanctions on Defendants.

On March 11, 2024, the Court granted Plaintiff’s motion for a terminating sanction.  The Court struck Defendants’ answer and reinstated the default judgment entered on March 9, 2022.  Plaintiff gave notice of the ruling later that same day.

On November 19, 2024, Plaintiff filed this verified application for issuance of order for sale of dwelling under Code of Civil Procedure section 704.750, with the hearing set on February 4, 2025.  Plaintiff also filed a proposed Order to Show Cause.  On December 2, 2024, Plaintiff filed a supplement to the application.

No opposition to the application has been filed.

On December 11, 2024, the case was reassigned to Department 29.

Legal Standard

Code of Civil Procedure section 704.740, subdivision (a), provides that, subject to certain exceptions that do not apply here, “the interest of a natural person in a dwelling may not be sold … 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.” 

The term “dwelling” is defined to mean “a place where a person resides.”  (Code Civ. Proc., § 704.710, subd. (a).)  The term “article” refers to Code of Civil Procedure sections 704.710 through 704.850, known as the Homestead Exemption.  “Homestead laws are designed to protect the sanctity of the family home against a loss caused by a forced sale by creditors ....¿ The homestead exemption ensures that insolvent debtors and their families are not rendered homeless by virtue of an involuntary sale of the residential property they occupy.¿ Thus, the homestead law is not designed to protect creditors .... This strong public policy requires courts to adopt a liberal construction of the law and facts to promote the¿beneficial purposes of the homestead legislation to benefit the debtor and his family.”¿ (Wells Fargo Financial Leasing, Inc. v. D & M Cabinets¿(2009) 177 Cal.App.4th 59, 67-68 [citations omitted].) ¿

Code of Civil Procedure section 704.750, subdivision (a), states that after a dwelling is levied upon, “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.”  “Within 20 days after service of the notice, the judgment creditor shall apply to the court for an order for sale of the dwelling.”  (Code Civ. Proc., § 704.750, subd. (a).)  If the judgment creditor fails to do so, “the levying officer shall release the dwelling.”  (Ibid.)

Code of Civil Procedure section 704.760 provides:

“The judgment creditor’s application 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.

(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.”

Code of Civil Procedure section 704.770 states:

“(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.”

Discussion

The statutory requirements for sale of a dwelling are complex and detailed, and strict compliance is required.

Under Code of Civil Procedure section 704.770, subdivision (a), the hearing on the Order to Show Cause must be set within 45 days after the application is filed (or at a later date if good cause is shown).  Here, the application was filed on November 19, 2024.  Absent a showing of good cause, the hearing on the Order to Show Cause could be set no later than 45 days later, or on January 3, 2025.  As the Court cannot set a hearing in the past, and no good cause has been shown, the Court must deny the application without prejudice.

The Court notes that the Order to Show Cause can be issued based on an ex parte application.  Indeed, that is how Plaintiff proceeded previously in this very case, in January 2023 (before the default judgment was set aside and subsequently reinstated).  If Plaintiff wishes to proceed with a forced sale, Plaintiff may follow the statutory requirements, arrange for a new levy, and then bring a timely application for the Court to issue an Order to Show Cause and set a hearing within the time period set forth in the statute.

Conclusion

The Court DENIES WITHOUT PREJUDICE the application for issuance of order for sale of dwelling.

Moving party is ORDERED to give notice.