Judge: Virginia Keeny, Case: 19STCP02812, Date: 2025-02-20 Tentative Ruling



Case Number: 19STCP02812    Hearing Date: February 20, 2025    Dept: 45

MANUEL RIVERO v. CONCEPCION RIVERO, ET AL.

 

APPLICATION FOR ORDER FOR SALE OF REAL PROPERTY IN DWELLING

 

Date of Hearing:          February 20, 2025                   Trial Date:       N/A

Department:               45                                            Case No.:         19STCP02812

 

Moving Party:             Plaintiff Manuel Rivero

Responding Party:       Unopposed

 

BACKGROUND

 

This case involves a claim for funds Defendant Concepcion Rivero failed to return to Plaintiff Manuel Rivero from their father’s probated estate. On August 6, 2020, the court entered judgment in favor of Plaintiff Manuel Rivero against Defendant Concepcion for $129,598.15. Plaintiff now proceeds as to remaining Defendant Diana Carrada, pursuant to CCP 579. Plaintiff and Defendant judgment/debtor Concepcion Rivero are brother and sister. Defendant Diana Carrada is the daughter of Defendant/judgment debtor Concepcion Rivero.

 

On November 7, 2016, Manuel Lopez Rivero, the father of Plaintiff (“decedent”) (and the father Defendant Concepcion Rivero) died and a petition to administer his estate was filed with this court on April 26, 2016. (LASC Case No. BP173501).  Decedent left his 50% in real property located at 4432 Lennox Blvd., Los Angeles, CA to his children—Plaintiff and Defendant Concepcion. Then, the real property sold on June 30, 2018, for $450,000. The sale of the property left net proceeds of $230,267.48 which was to be distributed to Plaintiff and Defendant Concepcion equally, pursuant to court order.

 

Though Plaintiff is only aged 54 (fifty-four), Plaintiff is susceptible to undue influence due to being permanently disabled because of his mental health disability. (SAC, ¶ 13.) As such, Defendant Concepcion Rivero improperly asked Plaintiff to execute a document declaring that Plaintiff’s portion of the inheritance be issued to her so that she could then purchase a home for her daughter—Defendant Diana Carrada—with the understanding that Concepcion Rivero would repay the funds within six (6) months. No such funds were repaid.

 

On July 3, 2019, Plaintiff filed the original complaint, followed by a first amended complaint on February 20, 2020, and then a Second Amended Complaint (“SAC”) on August 26, 2020, which is now the operative complaint.

 

 

The SAC alleges the following two causes of action against Defendant Carrada:

 

1. Financial Dependent Adult Abuse

2. Imposition of a Constructive Trust

 

Accordingly, the SAC prays for special damages in the sum of $109,257; and punitive damages in the sum of $250,000, as well as attorneys’ fees.

 

On September 6, 2024, Plaintiff filed the instant Application for Order for Sale of Real Property of Judgment Debtor Concepcion Rivero in Dwelling, followed by an Amended version on September 10, 2024. On September 24, 2024, Plaintiff filed the underlying Motion for Order Allowing Sale of Real Property of Judgment Debtor Concepcion, the Notice of Motion, and the Declaration of Alexis Galindo.

 

[Tentative] Ruling

 

1. The Application for Order for Sale of Real Property of Judgment Debtor Concepcion Rivero in Dwelling is granted, contingent on a showing that the pertinent documents were personally served on the dwelling occupant or posted at the dwelling.

 

LEGAL STANDARD

 

Code of Civil Procedure section 704.750, subdivision (a) states: 

 

“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. 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, subdivision (a).)

 

 

 

 

 

 

Requirements of Application--CCP § 704.760  

 

Code of Civil Procedure section 704.760 requires the judgment creditor's application to 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(a)-(d).)

 

 

 

 

Service Requirements—CCP § 704.770

 

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.”   

 

ANALYSIS

 

The instant application is made in connection with a levy on real property with respect to the judgment in the instant case in favor of Plaintiff and Judgment Creditor and against Defendant Judgment Debtor Concepcion, originally entered on August 6, 2020. (Galindo Decl., ¶ 4.) On August 6, 2020, Plaintiff was accordingly awarded judgment against Defendant in the amount of $129,598.15 with interest according to proof at the maximum rate permitted by law and costs of suit herein incurred. (Id., ¶ 3, Ex. A.)

 

Defendant Concepcion acquired her interest in the Subject Property commonly known as 942-944 W. 13th St., San Pedro, CA 90731, APN 7458-018-015, on January 17, 2007 by virtue of a deed. (Galindo Decl., ¶ 5, Ex. B.) Yet, for the last four (4) years, Plaintiff has not been able to collect any funds from Defendant who has insisted to Plaintiff’s Counsel that she has no assets and is presently insolvent. (Id., ¶ 7.) On September 15, 2020, Judgment Creditor Plaintiff’s Counsel recorded an Abstract of Judgment in Orange County as Instrument No. 2020-1112583. (Id., ¶ 9, Ex. D.)  On June 14, 2024, Plaintiff’s Counsel obtained a title report with respect to the Subject Property. (Id., ¶ 8, Ex. C.) The amount due on Judgment Creditor’s lien as of June 18, 2024, the date of the Writ is $179,559.87, plus interest at the judgment rate of 10% per annum; to wit, $35.51 per day. (Id., ¶ 19, Ex. E.)

 

CCP § 704.750(a)—Application for Court Order for Sale of Dwelling—20 Days

 

On August 23, 2024, pursuant to the office of Plaintiff’s counsel, the Los Angeles County Sheriff’s Department levied upon the interest of Judgment Debtor Concepcion Rivero the Subject Property under a Writ of Execution issued on June 18, 2024. (Galindo Decl., ¶ 10, Ex. E.) The Notice to Judgment Creditor Request for Application for Order for Sale of Dwelling, mailed on August 23, 2024, indicates the levy was performed and notice was accordingly mailed on August 23, 2024. (Id., ¶ 11, Ex. F.) Then, on September 6, 2024, Plaintiff filed the original and underlying application to the Court for sale of the dwelling, followed by an Amended version on September 10, 2024.

 

Thus, Plaintiff meets this requirement to apply for the sale of the subject dwelling within twenty (20) days of the levy.

 

CCP § 704.760—Requirements of Application

 

Homeowner’s Exemption or Disabled Veteran’s Exemption

 

Plaintiff’s Counsel declares that according to the title report obtained on June 14, 2024, no declaration of homestead has been recorded. (Galindo Decl., ¶ 12, Ex. C.) Moreover, there is no record of a homeowner’s exemption or a disabled veteran’s exemption filed with respect to the Subject Property. (Id., ¶ 13, Ex. C.) The Court notes that Defendant and Judgment Debtor Concepcion does not oppose the instant application, underlying motion, or dispute the non-existence of a homeowner’s or disabled veteran’s exemption. When the records of the county tax assessor indicate that neither exemption is claimed, the burden of proof to claim the dwelling is otherwise falls on the person who claims otherwise. Thus, Defendant Concepcion fails to meet this burden by failing to oppose or dispute the foregoing.

 

Accordingly, Plaintiff fulfills this requirement to provide a statement as to the status of such exemptions.

 

Liens or Encumbrances

 

With respect to taxes due, the title report indicates “exact amounts should be verified with the County Tax Collector.” (Galindo Decl., ¶ 15, Ex. C, pg. 2.) However, the Los Angeles County Treasurer Tax Collector website reflects 2023-2024 tax bill has been paid. (Id., Ex. H.) The title report does reflect a Federal Tax lien issued by the Internal Revenue Service issued Deed of Trust recorded February 10, 2017, showing an amount of $16,232.75. (Id., ¶ 20, Ex. J.) Plaintiff provides the address for the IRS as 300 N. Los Angeles St Mail Stop 5027 Los Angeles, CA 90012. (Id.)

 

 The title Report also reflects that on January 17, 2007, a Deed of Trust was recorded in the amount of $439,200.00 and was given by Defendant Concepcion to lender Advanced Concepts Enterprises, 409 N. Pacific Coast Highway Ste 700 Redondo Beach, CA 90277, Mortgage Electronic Registration Systems, Inc. being a nominee for the Lender. (Id., ¶ 18.) (See Galindo Declaration, ¶ 16, Ex. I, Ex. C, pg. 2.) The Deed of Trust was assigned to Deutsche Bank National Trust Company. The servicer is PHH Mortgage. (Galindo Decl., ¶ 18.) PHH Mortgage has not responded to Judgment Creditor’s request for a payoff demand. (Id., ¶ 19.) Thus, Plaintiff submits the pay-off would be less than $439,2000. (Id.) Per the concurrently filed Declaration of certified real estate appraiser, Thomas Thomson, Thomson appraises the current fair market value of the Subject Property as $830,000.00. (Id., ¶ 18, Ex. K.)

 

Thus, equity exists in and to the Subject Property, demonstrated as follows: $830,000.00 fair market value of Judgment Debtor's interest. Minus maximum amount of$439,000 to be paid to PHH Mortgage and Tax Lien of $17,000, leaves a total Approximate Equity prior to applying Applicant's lien of $374,000. (Galindo Decl., ¶ 22.)

 

Plaintiff contends that depending on whether the Judgment Debtor Concepcion is entitled to an exemption, and if so, how much, a sale is likely to provide a bid sufficient to satisfy as least a part or the amount due on the instant Judgment. (Galindo Decl., ¶ 23; CCP § 704.780(b).)

 

Here, the Court finds Plaintiff has sufficiently stated any amount of liens or encumbrances, along with their corresponding addresses.

 

Consumer Debt

 

Plaintiff’s counsel declares the instant Judgment is not based on a consumer debt, which is a “debt incurred by an individual primarily for personal, family, or household purposes.” (CCP § 699.730.) Instead, this debt is based upon fraud. (Galindo Decl., ¶ 13.) This Court agrees.

 

Thus, the Court finds Plaintiff sufficiently states whether this is based on a consumer debt or not.

 

 

 

 

CCP § 704.770 Service Requirements

 

The Court notes that the underlying Application was filed on September 6, 2024, and the corresponding hearing is for February 20, 2025. Though the hearing was originally scheduled to take place in November 2024, the hearing is now scheduled for February 20, 2025 after valid continuances. Thus, although the time set for hearing is later than 45 days after the application was filed, the Court finds good cause for such delay, pursuant to case reassignments and the Court record.

 

Judgment Debtor

 

Given Plaintiff must serve the judgment debtor a copy of the OSC for the instant application, a copy of the application itself , and a copy of the notice given for the underlying hearing no less than 30 days before the time set for hearing, the Court finds Plaintiff properly served Defendant the foregoing documents per the relevant Proofs of Service (First Class Mail and Overnight Courier.) Plaintiff first served the application on Defendant Concepcion on September 6, 2024, via overnight courier, a copy of the Amended version and corresponding Galindo Declaration on September 10, 2024 via first class mail, and then the motion itself by overnight courier on September 24, 2024.

 

Thus, Plaintiff properly served the relevant documents on Defendant Concepcion / Judgment Debtor.

 

Dwelling Occupant

 

While it is not clear if there is an occupant present at the dwelling, it is clear that Plaintiff is required to personally serve a copy of each of the foregoing documents at the dwelling or if no occupant is present at the time of service—post a copy of each document in a conspicuous place at the dwelling. Thus, the only requirement Plaintiff appears to not establish here is personal service on the dwelling occupant, or in the alternate, the posting of the documents at the dwelling, if no such occupant is present at the time of personal service.

 

Thus, Plaintiff fails to establish personal service or posting on the dwelling occupant.

 

 

 

 

 

CONCLUSION

 

Plaintiff requests this application be granted and the Court issue its Order that the Subject Property is not exempt and that the Judgment Debtor’s interests in the Subject Property may be sold via a Proposed Order. (Galindo Decl., ¶ 23.)

 

Based on the foregoing, this Court grants Plaintiff’s instant Application, contingent on Plaintiff’s showing that the documents were personally served on the dwelling ocupant via proof of service, or alternative, posted at the dwelling in accordance with § 704.770(b)(2).