Judge Theresa M. Traber, Case Number: BC682898, Date: 2024-01-31 Tentative Ruling

Judge: Theresa M. Traber, Case: BC682898, Date: 2024-01-31 Tentative Ruling

Case Number: BC682898 Hearing Date: January 31, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: January 31, 2024 JUDGMENT: August 17, 2022

CASE: Andreas Kratky, et al. v. Downtown Prime, LLC, et al.

CASE NO.: BC682898

MOTION FOR ORDER FOR SALE OF DWELLING

MOVING PARTY: Defendants Downtown Prime, LLC; Moses Babazadeh, David Baradarian, and Pedram Yadidsion

RESPONDING PARTY(S): No response on eCourt as of 1/29/24

CASE HISTORY:

11/08/17: Complaint filed.
07/20/20: Judgment entered.
08/21/20: Appeal filed by Plaintiff Jenna King
02/23/22: Remittitur of Appeal by Plaintiff Jenna King; Judgment affirmed.
08/17/22: Final Judgment entered.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a breach of lease action. Plaintiffs sued Defendants for multiple habitability violations. All parties entered into a move-out settlement agreement. Plaintiff Jenna King contested the settlement agreement, and judgment was entered against her on July 20, 2020. Plaintiff appealed that order, and the Court of Appeal affirmed the judgment.

Defendants move for an order for the sale of the dwelling under Code of Civil Procedure section 704.750.

TENTATIVE RULING:

Defendants’ Motion for Order for Sale of Dwelling is CONTINUED to Friday, March 1, 2024, at 9:00 AM.

Defendants are ordered to serve and file supplemental documentation describing the information set forth in Code of Civil Procedure section 704.760 subdivision (c) within 10 days of this order.

Moving Parties to give notice.

DISCUSSION:

Defendants move for an order for the sale of the dwelling under Code of Civil Procedure section 704.750.

Timing of Application

Code of Civil Procedure section 704.750 provides, in relevant part:

Promptly 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. 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.

(Code Civ. Proc. § 704.750(a).) According to the Notice of Levy included with Plaintiff’s ex parte application to stay execution of the writ of levy on August 30, 2023, the Notice was served on Plaintiff by mail on August 18, 2023. (See August 30, 2023 Ex Parte Application Exh. C.) The last date to file this application was September 12, 2023, 20 days plus five calendar days for mail service after the Notice was served. (See Code Civ. Proc. § 1013.) Although Defendants’ Amended Application was submitted on September 14, 2023, the original Application was served and filed on September 12, 2023. Defendants’ application is therefore timely.

Contents of Application

Code of Civil Procedure section 704.760 sets forth the contents for an application for an order for sale of a dwelling as follows:

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 Civ. Proc. § 704.760.) The application is supported by a declaration from Defendants’ counsel, Alisa E. Sandoval. This Declaration, made under oath, describes the property commonly known as 20003 S. Corning, Los Angeles CA 90034 as:

THE SOUTHEAST 85 FEET OF LOT(S) 265 OF TRACT NO. 1250, AS PER MAP RECORDED IN BOOK 18, PAGES 46 and 47, OF MAPS IN THE OFFICE OF THE COUNTY RECORDER OF LOS ANGELES.

(Declaration of Alisa E. Sandoval ISO Mot. ¶ 3.) Attorney Sandoval states that the records of the county tax assessor indicate that there is a current homeowner’s exemption for the dwelling, but that she believes the property is not the judgment debtor’s primary residence. (Id. ¶ 4.) The declaration does not speak to any liens or encumbrances on the property. Moreover, although the Memorandum of Points and Authorities provides the total amount of liens on the property, it does not describe the holders of those liens as required by subdivision (c). (See Memo of Ps. & As. p.3:15-18.) Attorney Sandoval’s declaration states, on information and belief, that the judgment is not based on a consumer debt. (Sandoval Decl. ¶ 6.)

Defendants’ application does not comply with the requirements of subdivision (c) of section 704.760 of the Code of Civil Procedure. In the interest of an expedient resolution of this issue, the Court will exercise its discretion to permit Defendants to submit supplemental materials setting forth “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.”

CONCLUSION:

Accordingly, Defendants’ Motion for Order for Sale of Dwelling is CONTINUED to Friday, March 1, 2024, at 9:00 AM.

Defendants are ordered to serve and file supplemental documentation describing the information set forth in Code of Civil Procedure section 704.760 subdivision (c) within 10 days of this order.

Moving Parties to give notice.

IT IS SO ORDERED.

Dated: January 31, 2024 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.