Case Number: SS026368 Hearing Date: October 16, 2018 Dept: M

CASE NAME: YU LESEBERG v. FELD

CASE NUMBER: SS026368 PETITION FILED: 7/25/16

HEARING DATE: 10/16/18

TRIAL DATE: N/A

NOTICE: NOT OK

MOTION: Petitioner Yu Leseberg’s Application to Order for Sale of Dwelling and Issuance of OSC

TENTATIVE RULING

Background

This action arises out an attorney fees dispute. The attorney client relationship arose from Petitioner’s representation of Respondent Rolan Feld (“Respondent”) in the licensing of certain songs inherited from Respondent’s father’s estate.

On July 14, 2016, an arbitration award was made against Respondent in the amount of $1,364,520 plus attorney’s fees in the amount of $622,699.51.

On July 25, 2016, Petitioner Yu Leseberg, a professional law corporation (“Petitioner”), filed a petition to confirm the arbitration award. On October 13, 2016, Respondent filed a Petition to Vacate the Arbitration Award. On January 25, 2017, the court denied the motion to vacate the arbitration award and granted the motion to confirm the arbitration award. Judgment was enter in favor of Petitioner Yu Leseberg.

Merits

Petitioner Yu Leseberg now moves for a court order for the sale of dwelling and issuance of an order to show cause why the dwelling should not be sold. Respondent Rolan Feld opposes the motion. A reply was filed.

Petitioner submits evidence that an Abstract of Judgment was recorded on February 23, 2017 in the amount of $1,987,219.51; this amount is consistent with the amount of the corrected judgment. (Mulally Decl., ¶¶ 2-3, Ex. 1, 2) Further, Petitioner argues that Tax Assessor indicates that there is no current homeowner exemption or veteran’s exemption of the dwelling. Lastly, Petitioner states that the valuation of the property is $1,250,000 based the valuation by independent appraiser. (App., Ex. 5)

In opposition, Respondent make numerous arguments attacking the validity of the Judgment which are all irrelevant to the disposition of the motion at bar. Respondent argues that Plaintiff has refused to provide an accounting of funds intercepted and argues that Petitioner has failed to describe the amount currently owed under the judgment. The court finds that these arguments are not well-taken.

Respondent also argues that Petitioner has failed to comply with certain statutory requirements. The notice of levy indicates that it was mailed on March 2, 2018. (Ex. 4) Petitioner then timely filed her application within 20 days of the notice of levy on March 16, 2018. Respondent cites to CCP § 704.770 which requires that the hearing date for the OSC based on the application be set no later than 45 days after the application is filed “or such time as the court orders upon a showing of good cause.” Here, Respondent argues that today’s hearing date (October 16th) is way over the 45 day statutory period from the application date of March 16, 2018, and is therefore improper. Respondent is wrong in that the delay was attributable to the congestion of the court and not petitioner, which falls into the “good cause” exception to the 45 day deadline.

Respondent also argues procedural impropriety in that that there is no valuation of the property in the moving application as required. Respondent is correct: the valuation attached in the moving application is for a separate property (530 S. Hewitt St.) valued at $725,000 whereas Petitioner seek an order selling Respondents’ property at 510 S. Hewitt Ave. In reply, Petitioner admits the error and attaches the correct appraisal of $1,250,000. (Mulally Reply Decl., ¶ 3-4, Ex. 2). This Court finds that the error has been corrected by petitioner with no prejudice to respondent and therefore will not nullify the proposed sale for this error. In an abundance of caution, this Court will delay sale of the property for 30 days to allow Respondent to seek a writ or otherwise respond to the correct appraisal.

Petitioner’s application is GRANTED with the provision that sale shall not proceed until after November 14, 2018.