Case Number: BS171135 Hearing Date: January 17, 2018 Dept: 39

Pacaar Financial Corp. v. JCPE Enterprises, Inc., et al., BS171135

Petition and Application by Applicant Cal-West Equities, Inc. for Order for Sale of Dwelling: the Petition for Order for Sale of Dwelling is CONTINUED to March 19, 2018 at 9:00 a.m. to allow Applicant Cal-West to effect service as required under Code of Civil Procedure, section 704.770.

Background

Applicant Cal-West Equities, Inc. (“Cal-West”) makes this application for an order permitting the sale of real property at 838 N. Shaftesbury Avenue, in San Dimas, California 91773 (the “Subject Property”).

This application arises in connection with a judgment that was entered by the San Bernardino County Superior Court in favor of Paccar Financial Corp., and against Judgment Debtors Rosa Favela (“Favela”) and J.C.P.E. Enterprises, Inc. (“JCPE”), on February 9, 2011 in the total amount of $91,083.04. An abstract of judgment that was recorded on March 7, 2011 in the Orange County Recorder’s Office, and an assignment of judgment was filed with the San Bernardino County Superior Court assigning the judgment to Cal-West on April 21, 2017.) The assignment of judgment was recorded with the Los Angeles County Recorder’s Office on May 23, 2017.

On August 11, 2017, the San Bernardino County Superior Court issued a Writ of Execution in the amount of $24,494.18, plus interest at the daily rate of $4.26, and a notice of levy and writ of execution was recorded on September 22, 2017. On September 22, 2017, the Los Angeles County Sheriff mailed notification to Cal-West Equities that it had levied pursuant to the writ of execution for sale of the Subject Property and that Cal-West is required to apply to the court for an order for sale of the dwelling.

Request for Judicial Notice

The court “may take judicial notice of the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document’s legally operative language…. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265, disapproved on other grounds by Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919, 939.)

Applicant requests the court take judicial notice of eight documents in connection with the subject motion: (1) the judgment entered in favor of Paccar Financial Corp and against JCPE Enterprises, Inc. and Favela in the amount of $91,083.04 by the San Bernardino County Superior Court on February 9, 2011 (Ex. 1); (2) the abstract of judgment recorded on March 7, 2011 in the Los Angeles County Recorder’s Office (Ex. 2); (3) the assignment of judgment recorded with the Los Angeles County Recorder’s Office on May 23, 2017 (Ex. 3B); (4) the writ of execution issued by the San Bernardino Superior Court on August 11, 2017 (Ex. 4); (5) the declaration re: interest after judgment filed with the San Bernardino County Superior Court on July 19, 2017 (Ex. 5); (6) the memorandum of costs after judgment, acknowledgment of credit, and declaration of accrued interest with the San Bernardino County Superior Court on July 19, 2017 (Ex. 6); (7) the grant deed for the Subject Property (Ex. 7); and (8) the notice of levy and writ of execution recorded on October 27, 2017 with the Los Angeles County Recorder’s Office (Ex. 10). These documents are judicially noticeable. (Evid. Code, § 452, subds. (c), (d).)

Discussion

The Enforcement of Judgments Law (Code of Civil Procedure, §§ 680.010-724.260) was adopted in 1982 and provides a comprehensive scheme for the enforcement of civil judgments in California. (Evans v. Paye (1995) 32 Cal.App.4th 265, 276.) Under the Enforcements of Judgments Law, a writ of execution requires a levying officer to enforce the corresponding judgment. (In re Marriage of Schenck (1991) 228 Cal.App.3d 1474, 1479 (Marriage of Schenck).) The officer does so by levying on the debtor’s property, i.e., by seizing the property under the writ, either constructively or actually. (Code Civ. Proc., §§ 699.510-699.530, 700.010-700.200; see also Marriage of Schenck, 228 Cal.App.3d at p. 1479.) To levy on real property, the officer records the writ of execution and a notice of levy with the recorder for the county in which the property is located. (Code Civ. Proc., § 700.015, subd. (a); see also Marriage of Schenck, 228 Cal.App.3d at p. 1479.) The levying officer must serve a copy of the writ and notice of levy on an occupant of the real property. (Code Civ. Proc., § 700.015, subd. (c); see also Marriage of Schenck, 228 Cal.App.3d at 1479.)

Real property dwellings (defined in section 704.710, subdivision (a)) may not be sold to enforce a money judgment except pursuant to a court order for sale obtained under section 704.740, subdivision (a). (See Marriage of Schenck, supra, 228 Cal.App.3d at p. 1480; cf. Gonzalez v. Toews (2003) 111 Cal.App.4th 977, 981 (Gonzalez) [sale of judgment debtor’s dwelling to third party after levy is absolute under section 701.680, regardless of failure to obtain court order under section 704.740.].) Promptly after a real property dwelling has been levied upon, the levying officer must serve notice on the judgment creditor that the levy has been made and that the property will be released from the levy unless the creditor applies to the court for an order of sale. (Code Civ. Proc., § 704.750, subd. (a); see also Marriage of Schenck, supra, 228 Cal.App.3d at p. 1480.) After the creditor files an application for an order of sale, the court sets a time and place for hearing and orders the debtor to show cause why an order for sale should not be made. (Code Civ. Proc., § 704.770, subd. (a); see also Marriage of Schenck, 228 Cal.App.3d at p. 1481.) The hearing must be scheduled not later than forty-five (45) days after the application is filed, unless the time is extended for good cause. (Code Civ. Proc., § 704.770, subd. (a); see also Marriage of Schenck, 228 Cal.App.3d at p. 1481.)

The judgment creditor is required to serve copies of the order to show cause, the application for the order of sale, and the notice of the hearing on the debtors and on occupants of the dwelling at least thirty 30 days before the hearing on the application. (Code Civ. Proc., § 704.770, subd. (b); see also Marriage of Schenck, 228 Cal.App.3d at p. 1479.) These documents must be served on the judgment debtors personally or by mail. (Code Civ. Proc., § 704.770, subd. (b)(1).) The judgment creditor must additionally personally serve a copy of each of the documents on an occupant of the dwelling in question, and if there is no occupant present at the time service is attempted, a copy of each document must be posted in a conspicuous place at the dwelling. (Code Civ. Proc., § 704.770, subd. (b)(2).)

Here, the proof of service filed on December 22, 2017 indicates that copies of: (1) the order to show cause why an order for sale of dwelling should not issue; (2) applicant’s memorandum of points and authorities in support of application for order for sale of dwelling; (3) the declaration of Dan Townsend in support of the application of sale of property; (4) the declaration of Rose Henigman in support of the application for sale of property; (5) the request for judicial notice; and (6) the notice of lodgment of exhibits were served on Rosa L. Favela at the Subject Property on December 5, 2017 by placing the documents in a conspicuous place. The proof of service filed December 6, 2017, indicates that notice of the continuance of the hearing was mailed to Rosa Favela on December 5, 2017. These proofs of service are insufficient to meet the requirements of section 704.770, subdivision (b).

The December 22, 2017 proof of service does not indicate that a copy of the amended petition and application for order for sale of dwelling or that notice of the hearing were included with the documents left at the Subject Property on December 5, 2017. Additionally, the declaration of diligence attached to the December 22, 2017 proof of service does not indicate that the process server attempted to personally serve the occupants of the dwelling prior to “placing the documents in a conspicuous place, as per the clients instructions,” or that there was no occupant present at the time service was attempted. (See 12/22/17 Proof of Service, Declaration of Diligence.) Accordingly, service was improper under section 704.770, subdivision (b)(2).)

Furthermore, the proof of service does not indicate service was performed on judgment debtor JCPE. The California Secretary of State business entity records indicate that the agent for service of process for JCPE is Rosa Favela at its business address of 925 5th Street, San Dimas, CA 91773. The submitted proofs of service indicate that the documents in question were placed at and mailed to the Subject Property—not the address listed for service of process. Applicant submits no evidence or legal authority that would indicate that service on JCPE is proper at the Subject Property. Accordingly, Applicant did not meet the requirements of section 704.770, subdivision (b).

As Applicant’s failure to perform proper service does not appear to be intentional, the court finds that good cause appears for it to set the hearing longer than 45 days from the date the application was filed. (Code Civ. Proc., § 704.770, subd. (a).) The court therefore CONTINUES the hearing on the subject application to March 19, 2018 at 9:00 a.m. to allow Applicant Cal-West to properly serve judgment debtors Favela and JCPE as well as the occupants of the Subject Property with copies of the order to show cause, the application and supporting papers, and notice of the continued hearing. Service must be accomplished at least 30 days before the date of the continued hearing, and must comply with the requirements of Code of Civil Procedure, section 704.770 and all applicable statutes.