Filed 7/19/23 WFG National Title Ins. C o. v. Martinez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

WFG NATIONAL TITLE INSURANCE COMPANY, Plaintiff and Respondent,

v.
ANDRES MARTINEZ et al ., Defendants and Appellants. D080800

(Super. Ct. No. CVCO2102170)

APPEAL from an order of the Superior Court of Riverside County, Tamara Wagner, Judge. Affirmed. Law Offices of Vasu Vijayraghavan and Vasumathi Vijayraghavan for Defendants and Appellants. Hershorin & Henry, Lori Hershorin and Sarah Denis for Plaintiff and Respondent.

Andres Martinez and Yvette Heredia (collectively, Defendants), appeal from an order denying their motion to vacate the trial court’s order to force
the sale of their home to satisfy an outstanding civil judgment

. They assert2

that there were various procedural irregularities, and that the t rial court miscalculated the amount owed to them under two separate homestead exemptions. Respondent and judgment creditor WFG National Title Insurance Company (WFG) asserts the appeal should be dismissed as moot
because the house has been sold and the sa le is now final

. We agree that the
sale moots the procedural issues raised on appeal but decline to dismiss the appeal in its entirety. We address Defendants’ argument regarding the homestead exemptions , find no error, and affirm the judgment.

I. FACT UAL AND PROCEDURAL BACKGROUND 1
A. The Underlying Judgment, Lien, and Assignments In May 2007, Buckeye Retirement Co., LLC, Ltd. (Buckeye) obtained a judgment in a civil action for fraud against Martinez in the amount of $103,027 in Kern County (the Kern County Judgment)

. Buckeye subsequently assigned its rights and interest in the Kern County Judg ment to CIRAS, LLC ( CIRAS ), and filed a notice with the Superior C ourt for the County of Kern documenting the transfer

. Approximately five years later, Martinez acquired title, as a single man, to a single

- family home on Briana Way in Riverside County (th e Briana Way Property). A deed of trust recorded a few years later in February 2015
shows that Martinez took out a mortgage loan for $498,485, secured against the Briana Way Property. That March , counsel for Buckeye and CIRAS

1 We hereby grant WFG’s motion to augment the record with additional documents that WFG designated but which were not included in the original clerk’s transcript. (See California Rules of Court, rule 8.155.)3

recorded an Abstract of Judg ment from Kern County in Riverside C ounty , creating a judgment lien on the Briana Way Property

. 2 Martinez did not pay the judgment and interest continued to acc rue . In June 2016, CIRAS filed an application for a renewal of judgment indicating a total amount still owed of $219,543.95. The trial court issued a notice of renewal of judgment and CIRAS recorded the renewal of judgment in Riverside County on February 1, 2017

. CIRAS subsequently assigned the judgment and the associated judgment lien to WFG.
I n January 2019, a grant deed transferring ownership of the Briana Way Property from Martinez , as a single man, to Martinez and “Yvette Y. Heredia, a Single Woman, as Joint Tenants” was recorded in Riverside County

. The deed specified that the tr ansfer was a “bona fide gift” to
Heredia. By April 2021, the amount owed on the judgment had increased to $514,148.20 , and th e value of the Briana Way Property was approximately $790,000

. Counsel for WFG obtained a n otice of l evy against the Briana Way Property on May 14, 2021 . T he Riverside County Sheriff served Martinez
and Heredia with the notice of levy , by posting on June 2, and by mail , on June 3 , 2021.
B. Trial Court Proceedings to Force the Sale of the Briana Way Property O n May 28, 2021, WFG filed a petition for enforcement of the Kern County Judgment in the Superior Court for the County of Riverside. Later that month, WFG filed an “Application by Petitioner [WFG] For Issuance of an Order for Sale” of the Briana Way Property (the Application for Sale)

. On

2 Code of Civil Procedure section 697.310 provides , in relevant part, “ a judgment lien on real property is created under this section by recording an abstract of a money judgment with the county recorder.” All further unspecified statutory references are to the Code of Civil Procedure.4

June 2, 2021, the Court set a hearing on WFG’s petition for July 21, 2021. And, on June 29, 2021, Martinez and Heredia were served with the Application for Sale , the proposed order, and the notice of the hearing , again by posting and regul ar mail. About a week later, on July 6, 2021, Martinez and Heredia each recorded Homestead Exemption Declaration s

. The declaration s had been previously dated and notarized on December 14, 2020 and February 18, 2021 , respectively

. On July 21, 2021, WFG filed an ex parte application for issuance of an order to show cause why the Briana Way Property should not be sold. In the ex parte application, WFG noted that the governing law required that the order to show cause be heard within 45 days of the filing of the Application for Sale and asserted, “[t]herefore, time is of the essence.” The hearing on the ex parte was originally set for July 23 , but the court continued both the hearing on the petition and the hearing for the ex parte to August 1 1 and 25 , respectively

. T he trial court heard argument on the Application for Sale on August 11, 2021 , and took the matter under submission. At the hearing on August 25, the trial court noted that the matter had been complicat ed by the fact
that WFG had f

iled it as a petition rather than an application . WFG explained that the court clerk had required them to file that way , and the

court said it would not fault WFG, and would correct the issue that day, with all parties present

. T he court then denied the petition , granted the ex parte, found good cause to extend the statutory requirement that the hearing be set within 45 days of the filing of the Application for Sale, and set the matter for

a hearing on October 6, 2021 on an order to show cause why the Application for Sale should not be granted

. Martinez ’s counsel asserted Martinez w as5

prejudiced by the issuance of an order to show cause because he had not been adequately served , but the court explained they were “starting all over from today” and Martinez would have an opportunity to be heard on the merits on October 6. Per the trial court’s instructions, WFG served Martinez and Heredia
with all the relevant filings and notices again by posting and mail on September 1, 2021

. Counsel for Martinez appeared a t the hearing on October 6, and both sides presented argument on the merits

. A t the conclusion of the hearing, the trial court granted the Application for Sale , subject to a $75,000 homestead exemption for Martinez

. Martinez asserted he was entitled to a larger exemption based on recent changes in the law, but t he court explained, “under [section] 703.050 [, subdivision] (a), the determination whether the property is exempt or the amount of the exemption shall be made by the application of the exemption s tatutes in effect at the time the judgment creditor’s lien on the property .

. . was created” and that, here, the lien had
been created when the abstract of judgment was recorded in March 2015. For similar reasons, the court declined to grant a separate e xemption for
Heredia. On October 15, 2021, t he court issued written findings of fact, conclusions of law, and an order for sale of the property , consistent with its prior oral ruling

. Pursuant to the trial court’s written order, the proceeds of
the sale were to be distributed as follows: $496,340.17 plus interest to the mortgage lender, PennyMac, LLC; $75,000 to Martinez for the homestead exemption; and the remainder to WFG, up to the outstanding amount on the judgment. Martinez filed a motion to vacate or set aside the trial court’s October 6, 2021 ruling pursuant to section 663 , and asserted the order was based “on6

multiple erroneous or incorrect legal basis [ sic ]

. ” (Boldface omitted.) The
trial court denied the motio n, finding it was “an improper motion for reconsideration and [was] not based on new facts and circumstances regarding this matter.” Martinez and Heredia filed a timely notice of appeal from the trial
court’s denial of the motion to vacate or set aside the October 6, 2021 ruling. 3 They also filed a motion to stay all proceedings pending the appeal, but the trial court denied the motion without prejudice because they had not provided the requisite undertaking. Defendants filed a second motion to stay, but again posted no undertaking, and the Briana Way Property sold to WFG for $790,000 on August 18, 2022. The sale was recorded on September
12, 2022. 4
II. DISCUSSION On appeal, Defendants state they “ will argue the motion to vacate
order was correctly argued under [ ] section 663 and was NOT a disguised motion for reconsideration” (Boldface and capitalization omitted.) But rather than doing so, they assert many of the same arguments as in the motion to vacate, attack ing the merits of the trial court’s October 2021 order for sale

. They contend : 1) the trial court erred in determining the amount of the

3 “A statutory appeal from a ruling denying a section 663 motion is indeed distinct from an appeal of a trial court judgment and is permissible without regard to whether the issues raised in the appeal from the denial of the section 663 motion overlap with issues that were or could have been raised in an appeal of the judgment.” ( Ryan v. Rosenfeld (2017) 3 Cal.5 th 124, 1 3 5.)

4 We hereby grant WFG’s request to take judicial notice of the Sheriff’s Deed reflecting the sale of the Briana Way Property. (See Cal

. Rules of Court, rule 8.252(a); Evid

. Code § § 452, subd. (d) , 459 .)7

homestead exemption [s] ; 2) they were not effectively served with the Application for Sale and Notice of Levy; 3) the proceedings did not c omport with the statutory procedures for obtaining an order for sale as set forth in sections 740.750 and 740.770; and 4) the trial court erred by not requiring an independent appraisal of the property. WFG addresses each of the arguments on the merits, and also filed a separate motion to dismiss, asserting that the appeal is m oot because the sale of the property is now final , which we deferred for consideration along with the present appeal

. As we explain, w e agree that the sale has mooted the procedural issues raised on appeal . However, we decline to dismiss the appeal in its entirely and, instead, address the argument s regarding the value of the homestead exemption on the merits. A. The Sale of the Property Moot s the Pr ocedural Issues Raised on Appeal
W FG filed a motion to dismiss the appeal as moot, based on the sale of the Briana Way Property. Defendants opposed the motion, and this court issued an order stating that the motion would be considered concurrently with the appeal.

“ ‘It is well settled th at an appellate court will decide only actual controversies. Consistent therewith, it has been said that an action which originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised therein have become moot by subsequent acts or events.’ ” ( La M

i rada Ave. Neighborhood Assn. of Hollywood v. City of Los Angeles (2016) 2 Cal.App. 5 th 586, 590 ( La Mirada ) .) Thus, where an event occurs during the pendency of an appeal that precludes the appellate court from providi ng any effective relief, the appeal is rendered moot and must be dismissed. ( Ibid

. ; accord Union of Medical Marijuana Patients, Inc. v. City of8

San Diego (2019) 7 Cal. 5 th 1171, 1190, fn

. 7 [acknowledging appeal is rendered moot if appellate court cannot g rant effective relief]. ) Here, WFG asserts there is no relief this court can provide because, pursuant to section 701.680, subdivision (a), the sale of the Briana Way property “is absolute and may not be set aside for any reason.”
Section 701

. 680 provid es, in relevant part: “(a) Except as provided in paragraph (1) of subdivision (c), a sale of property pursuant to this article is absolute and shall not be set aside for any reason. [¶]

. . . [¶] “(c) If the sale was improper because of irregularities in the proceedings, because the property sold was not subject to execution, or for any other reason: “(1) The judgment debtor, or the judgment debtor ’ s successor in interest, may commence an action within 90 days after the date of sale to se t aside the sale if the purchaser at the sale is the judgment creditor. Subject to paragraph (2), if the sale is set aside, the judgment of the judgment creditor is revived to reflect the amount that was satisfied from the proceeds of the sale and the jud gment creditor is entitled to interest on the amount of the judgment as so revived as if the sale had not been made. Any liens extinguished by the sale of the property are revived and reattach to the property with the same priority and effect as if the sa le had not been made.”

N either Martinez nor Heredia commenced an action to set aside the
sale of the Briana Way Property within 90 days

. They do not contend
otherwise . Rather, t hey rely on section 916 to assert that their filing of the notice of appeal i n this court stayed all proceedings in the trial court. Not so. Section 916 does provide, generally, that the perfecting of an appeal stays all related proceedings in the trial court , but it is expressly limited by section s 917.1 through 917.9. (See § 9 16, subd. (a) [“Except as provided in Sections 917.1 to 917.9”].)9

Section 917.4 provides, in relevant part, “ [t] he perfecting of an appeal
shall not stay enforcement of the judgment or order in the trial court if the judgment or order appealed from direc ts the sale, conveyance or delivery of possession of real property which is in the possession or control of the appellant or the party ordered to sell, convey or deliver possession of the property, unless an undertaking in a sum fixed by the trial court is given that the appellant or party ordered to sell, convey or deliver possession of the property will not commit or suffer to be committed any waste thereon and that if the judgment or order appealed from is affirmed, or the appeal is
withdrawn or dismisse d, the appellant shall pay the damage suffered by the waste and the value of the use and occupancy of the property .

. .” (Italics added.) Here , as the trial court expressly noted in denying Martinez’s request for a stay based on the present appeal , no u ndertaking was given.
A nd, in the absence of an undertaking , the order for sale was not stayed

. As it has now been more than 90 days since the date of the sale, and
neither Martinez nor Heredia have commenced an action to set the sale aside, the sale is now final . This court therefore has no authority to reverse the order for sale or otherwise provide relief from any of the alleged procedural defects in the proceedings regarding the O rder for Sale

. Accordingly, Defendants’ arguments regarding service of process, the alleged procedural irregularities in the trial court, and the absence of an independent appraisal have been rendered moot and need not be address ed on appeal

. (See La Mirada, supra, 2 C al.App.5th at p. 590 ; First Federal Bank of Cal ifornia v. Fegen (2005) 131 Cal.App.4th 798 [dismissing appeal as moot on similar grounds] .)
Martinez and Heredia assert that this court has inherent power to consider issues that are technically moot, but are nevertheless important and10

of continuing interest. (See Abbott Ford, Inc. v. Sup erior C our t (1987) 43 Cal.3d 858, 868

– 869 , fn 8 .) But t hey do not provide any argumen t or support for their contention that the issues that have been rendered moot are nevertheless of important or continuing interest

. Rather, the now mooted
issues are specific to their own case and could have been addressed through the mechanism provided by section 701.680, subdivision (c). W e therefore
decline to exercise our discretion to reach those same issues by way of the present appeal.
T here remains one issue on which this court could potentially provide relief. Martinez and Heredia also asser t that the trial court erred in determining the value of the h omestead e xemption (s) available to them

. On that issue, it is at least conceivable that this court could provide relief. While the sale of the Briana Way Property cannot be undone, the distrib ution of proceeds from the sale could be adjusted. (See Holmes v. Harris ( 9th Cir., Apr. 22, 2022 , Nos. 21

- 55330, 21

- 55566 ) 20 22 U.S. App. LEXIS 11050 at * 3 [examining issue regarding homestead exemption despite final sale].) We therefore decline to dismiss the appeal in its entirety and will, instead,
address th is single issue on the merits.
B. The Court Did Not Err in Calculating the Homestead Exemption A judgment debtor, or the spouse or domestic partner of a judgment debtor, may claim a homestead exemption when a creditor seeking to satisfy a judgment elects to sell the home, or “ ‘dwelling,’ ” that they live in. (See §§ 703.020 [defining persons who m ay claim exemptions], 704.710 et seq. [defining the homestead exemption].) Here, the trial court awarded Martinez a homestead exemption in the amount of $75,000. Martinez and Heredia
assert the trial court erred in determining the amount of the homestead exemption for two reasons . N either has merit.11

First, Martinez and Heredia assert the trial court should have
calculated the homestead exemption pursuant to recent statutory changes to

s ection 704.730. Prior to January 1, 2021 , section 704.730 set the amount of the homestead exemption at $75,000 for an individual judgment debtor , $100,000 if a spouse or member of a family unit had a community interest in the home, and $175,000 if certain other exceptions applied. (See former §
704. 7 30, subd s . (a) , (b); see also § 704.710, subd. (b) [defining “ ‘Family unit’ ” for purposes of the homestead exemption ] .) Effective January 1, 2021,
section 704.730 now provides a homestead exemption in an amount equal to the greater of $300,000 or the “countywide media n sale price for a single

family home in the calendar year prior to the calendar year in which the judgment debtor claims the exemption,” not to exceed $600,000. (§ 704.730, eff. Jan. 1, 2021 ; see also Assembly Bill No. 1885 (2020 Reg. Sess.) Ch. 94 .)
M artinez and Heredia assert that they were entitled to an exemption in the amount of $600,000 based on the current statute , and that the trial court erred by relying instead on the former version

. To the contrary, s ection 703.050, subdivision (a), provides , “[t]he determination whether property is exempt or the amount of an exemption shall be made by application of the exemption statutes in effect (1) at the time the judgment creditor’s lien on the property was created or (2) if the judgment creditor’s lien on the property is the latest in a series of overlapping liens created when an earlier lien on the property in favor of the judgment cre ditor was in effect, at the time the earliest lien in the series of overlapping liens was created.” (Italics added

. ) Here, the judgment creditor’s lien was created by the recording of the

a bstract of j udgment in Riverside County in 2015, or, at the latest , by the recording of the r enewal of j udgment in Riverside County in 2017

. (See § 697.310 , subd. (a) [“Except as otherwise provided by statute, a judgment12

lien on real property is created under this section by recording an abstract of a money judgment wit h the county recorder”].) And , a s the trial court explained, “[s]tatutory increases in the exemption amount arising after the judgment creditor’s attachment lien was recorded do not apply.” ( See § 703.050. subd. (a) ; Barclay v. Boskoski (2022) 52 F.4th 1 172, 1174

- 1175 [ relying on section 703.050, subdivision (a) to conclude, “ [u] nder California law, the exemption [the debtor] could claim would be fixed at the 2014

amount ,” when the lien on his home was first recorded]

. ) Seeking to avoid this result, Martinez and Heredia point to section 703.050, subdivision (c) , which provides, “[n]otwithstanding subdivision (a), in the case of a levy of execution, the procedures to be followed in levying upon, selling, or releasing prope rty, claiming, processing, opposing, and determining exemptions, and paying exemption proceeds, shall be governed by the law in effect at the time the levy of execution is made on the property. ” (Italics added.) As this court has previously explained, “[ s]ection 704.730, which sets the amount of the [homestead] exemption, is not one of the ‘procedures to be followed’ in levying on property. Section 703.050, subdivision (a), is controlling.” ( Berhanu v. Metzger (1992) 12 Cal.App. 4th 445, 447.)
In the alt ernative, they assert Heredia was entitled to a separate homestead exemption in the amount of $75,000, for a total of $150,000. But
Heredia ha d no interest in the Briana Way Property when the judgment lien was first recorded in 2015 , or when the renewal o f judgment was recorded in
2017

. S he did not become vested in title until January 2019, when the grant
deed transferring partial ownership to Heredia as a “bon a fide gift” was recorded. As the trial court found, the conveyance to Heredia did not trigger
an entitlement by her to then claim an additional homestead exemption.13

“The homestead exemption itself does not

. . . have any effect on the claims of creditors secured by liens that have priority over the declaratio n of homestead.” (

Amin v. Khazindar (2003) 112 Cal.App.4th 582, 588.) It is
available only when “a party has continuously resided in a dwelling from the time that a creditors’ lien attaches.” ( Ibid .) Finally, though Defendants now contend they were “co mmon law spouse[s],” Martinez’s counsel represented
that Martinez was not married a t the hearing on October 6, 2021

. Regardless, California does not recognize common law marriages. (See People v. Badgett (1995) 10 Cal.4th 330, 363.) Accordingly, Defenda nts are not entitled to an additional exemption based on Heredia ’s alleged status as the spouse of the judgment debtor. In sum, we conclude the trial court did not err in setting the value of the homestead exemption at $75,000 and decline to address the remaining arguments raised on appeal as they are now moot. III. DISPOSITION The order is affirmed. WFG is entitled costs on appeal.

KELETY, J.

WE CONCUR:

M C CONNELL, P. J.

BUCHANAN, J.