NORWALK MANOR HOME OWNERS VS GUZMAN, VICTOR MANUEL

Tentative Rulings

Case Number: 17K07119    Hearing Date: November 13, 2019    Dept: 94

Norwalk Manor Home Owners v. Victor Manuel Guzman and Ninfa Guzman

APPLICATION FOR ORDER OF SALE OF DWELLING

(Code Civ. Proc., §§ 740.740-704.850.)

TENTATIVE RULING:

Plaintiff’s Application for Order of Sale of Dwelling is DENIED without prejudice due to Plaintiff’s failure to satisfy CCP §§ 704.770(a) and (b)(2).

ANALYSIS:

I. Background

Plaintiff Norwalk Manor Home Owners Association (“Plaintiff”) filed the instant action against Defendants Victor Manuel Guzman and Ninfa Guzman (“Defendants”) on June 5, 2017. On November 29, 2017 a default judgment was entered against Defendants. Plaintiff filed the instant Application for Order of Sale of Dwelling (the “Application”) on June 6, 2019. On September 24, 2019, Plaintiff filed a proposed Order to Show Cause Why Order of Sale of Dwelling Should Not Be Made, and the court accordingly set an Order to Show Cause Why Sale of Dwelling Should Not Be Made for November 13, 2019 at 10:30 am in Department 94.

II. Legal Standard

Code of Civil Procedure section 704.770 provides:

(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.

III. Analysis

Here, the requirements from section 704.770 are (1) the time of hearing is proper, (2) service of the order to show cause, the application, and notice of the hearing personally or by mail on the defendant, and (3) service of the same documents personally or by posting at the subject dwelling.

The time set for the hearing is more than 45 days after the application was filed—it is 160 days later. This fails to comply with section 704.770(a) because the time set for hearing shall be not later than 45 days after the application is filed. There is no good cause apparent to the court, and none offered by Plaintiff, addressing why Plaintiff filed the proposed OSC order more than 3 months after the application was filed. Thus, section 704.770(a) is not satisfied.

On 11/8/19, Plaintiff filed a proof of service showing 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 was served by mail on October 1, 2019 on Defendants. Thus, service of the requisite documents was performed by mail at least 30 days before the hearing. Thus, section 704.770(b)(1) is sufficiently satisfied.

Also on 11/8/19, Plaintiff filed a proof of service by posting a copy of each document listed in section 704.770(b)(1) in a conspicuous place at the subject dwelling. However, the proof of service does not state personal service was attempted or that the occupants of the dwelling were not present at the time of service. Section 704.770(b)(2) indicates personal service should be attempted before posting. In the context of service of summons, the court liberally constructs service requirements and uphold service as valid when the requirements are substantially met. (See Summers v. McClanahan (2006) 140 Cal.App.4th 403, 408-411 [discussing “liberal construction” of service process law].) The court sees no reason not to applies the principles governing service of summons to service under section 704.770. Nevertheless, the process server’s failure to indicate that personal service was attempted before posting forecloses a finding of substantial compliance with section 704.770(b)(2). Personal service must have been attempted first, and there is no indication that it was attempted. An analogy would be determining substituted service was valid without a declaration of due diligence showing attempts at personal service. Thus, the court finds the service did not substantially comply with the requirements of section 704.770(b)(2). Therefore, this requirement is not satisfied.

IV. Conclusion & Order

In light of the foregoing, Plaintiff’s Application for Order of Sale of Dwelling is DENIED without prejudice.

Moving party is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.