Filed 7/19/23 WFG National Title Ins. Co. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ordered 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 assert
2

that there were various procedural irregularities, and that the trial 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 sale 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. FACTUAL AND PROCEDURAL BACKGROUND1

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 Judgment 

to CIRAS, LLC (CIRAS), and filed a notice with the Superior Court 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 (the 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 Judgment from Kern County in Riverside County, 

creating a judgment lien on the Briana Way Property.2 

Martinez did not pay the judgment and interest continued to accrue. 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.

In 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 transfer was a “bona fide gift” to 

Heredia.

By April 2021, the amount owed on the judgment had increased to

$514,148.20, and the value of the Briana Way Property was approximately 

$790,000. Counsel for WFG obtained a notice of levy against the Briana Way 

Property on May 14, 2021. The 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

On 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 regular mail. 

About a week later, on July 6, 2021, Martinez and Heredia each 

recorded Homestead Exemption Declarations. The declarations 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 11 and 25, 

respectively.

The 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 complicated by the fact 

that WFG had filed 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. The 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 was 
5

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 at the hearing on October 

6, and both sides presented argument on the merits. At 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 the 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 statutes 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 exemption for 

Heredia. 

On October 15, 2021, the 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 “on 
6

multiple erroneous or incorrect legal basis [sic].” (Boldface omitted.) The 

trial court denied the motion, 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, attacking 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.5th

124, 135.)

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 comport 

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 moot because the sale 

of the property is now final, which we deferred for consideration along with 

the present appeal. As we explain, we 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 arguments regarding the 

value of the homestead exemption on the merits. 

A. The Sale of the Property Moots the Procedural Issues Raised on Appeal

WFG 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 that 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 Mirada Ave. Neighborhood Assn. of Hollywood v. City of Los 

Angeles (2016) 2 Cal.App.5th 586, 590 (La Mirada).) Thus, where an event 

occurs during the pendency of an appeal that precludes the appellate court 

from providing any effective relief, the appeal is rendered moot and must be 

dismissed. (Ibid.; accord Union of Medical Marijuana Patients, Inc. v. City of 
8

San Diego (2019) 7 Cal.5th 1171, 1190, fn. 7 [acknowledging appeal is 

rendered moot if appellate court cannot grant 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 provides, 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 set 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 judgment 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 sale had not been made.”

Neither 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, they rely on section 916 to assert that their filing of the 

notice of appeal in 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 sections

917.1 through 917.9. (See § 916, subd. (a) [“Except as provided in Sections 

917.1 to 917.9”].) 
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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 directs 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 dismissed, 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 undertaking was given. 

And, 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 Order 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 addressed on appeal. 

(See La Mirada, supra, 2 Cal.App.5th at p. 590; First Federal Bank of 

California 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 and 
10

of continuing interest. (See Abbott Ford, Inc. v. Superior Court (1987) 43 

Cal.3d 858, 868–869, fn 8.) But they do not provide any argument 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). We therefore 

decline to exercise our discretion to reach those same issues by way of the 

present appeal. 

There remains one issue on which this court could potentially provide 

relief. Martinez and Heredia also assert that the trial court erred in 

determining the value of the homestead exemption(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 distribution of 

proceeds from the sale could be adjusted. (See Holmes v. Harris (9th Cir., 

Apr. 22, 2022, Nos. 21-55330, 21-55566) 2022 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 this 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 may 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. Neither has merit. 
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First, Martinez and Heredia assert the trial court should have 

calculated the homestead exemption pursuant to recent statutory changes to 

section 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 § 

704.730, subds. (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 median sale price for a singlefamily 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.) 

Martinez 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, section 

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 creditor 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 

abstract of judgment in Riverside County in 2015, or, at the latest, by the 

recording of the renewal of judgment in Riverside County in 2017. (See 

§ 697.310, subd. (a) [“Except as otherwise provided by statute, a judgment 
12

lien on real property is created under this section by recording an abstract of 

a money judgment with the county recorder”].) And, as 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 1172, 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 property, 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 alternative, they assert Heredia was entitled to a separate 

homestead exemption in the amount of $75,000, for a total of $150,000. But 

Heredia had no interest in the Briana Way Property when the judgment lien 

was first recorded in 2015, or when the renewal of judgment was recorded in 

2017. She did not become vested in title until January 2019, when the grant 

deed transferring partial ownership to Heredia as a “bona 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 declaration 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 “common law spouse[s],” Martinez’s counsel represented 

that Martinez was not married at 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, Defendants 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:

MCCONNELL, P. J.

BUCHANAN, J.