Filed 9/28/16 Machado v. County of Los Angeles CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

MARIA S. MACHADO, as Trustee, etc.,                                   B266569

                Plaintiff and Appellant,                              (Los Angeles County
                                                                      Super. Ct. No. BC542896)
         v.

COUNTY OF LOS ANGELES,

                Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Elizabeth A. White, Judge. Affirmed.



         Law Office of Michael G. York and Michael G. York for Plaintiff and Appellant.



         Nelson & Fulton, Henry Patrick Nelson and Rina Mathevosian for Defendant and
Respondent.
       Maria S. Machado, as trustee of the Maria S. Machado Trust dated June 3, 1988
(appellant) appeals from a judgment entered after the trial court granted summary
judgment in favor of the County of Los Angeles (the County) on appellant’s claims
against the County for damages arising from the County’s alleged failure to give notice of
the sale of appellant’s property.
       The trial court found that the County gave notice of the sale in accordance with
Code of Civil Procedure sections 701.540 and 701.580.1 Thus, the County was not liable
for damages under section 701.560. Appellant failed to raise a triable issue of material
fact, and summary judgment in favor of the County was warranted.
       We affirm the judgment.
                                    BACKGROUND
       On December 19, 2011, judgment was entered against appellant in a case
captioned Anthony C. Curran, et al v. Maria S. Machado, et al., Los Angeles Superior
Court case No. NC043834 (the prior action). The judgment ordered that the real property
owned by Machado commonly known as 1637 and 1639 West 228th Street, Torrance,
California (the property) be sold and that a writ of sale be issued to the Los Angeles
County Sheriff’s Department (LASD), ordering the sheriff to conduct the sale.
       The LASD scheduled an execution sale for April 3, 2013, at 10:00 a.m. at the
Stanley Mosk Courthouse, 111 N. Hill St., Room 125B, Los Angeles California 90012.
On March 5, 2013, a notice of sale of property was served on appellant, the judgment
debtor, by mail.
       On March 7, 14, and 21, 2013, notice of the sale of property was published in the
Daily Breeze, which is a newspaper of general circulation, printed and published in the
City of Torrance.
       On March 12, 2013, at approximately 11:30 a.m., Deputy Gary Davis posted
notice of the sale of the property at 1637 and 1639 West 228th St., Torrance, California.
The evidence indicated that no occupant was found.

1      All further statutory references are to the Code of Civil Procedure.


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       On March 14, 2013, System Clerk III Francis Espinales posted notice of the sale
of the property at the Stanley Mosk Courthouse, 111 N. Hill St., Room #125B, Los
Angeles, California 90012.
       On April 2, 2013, Anthony C. Curran and Lisa E. Curran (the Currans) and
appellant entered into a stipulation to postpone the April 3, 2013 sale date to a date “on or
after May 30, 2013.” The stipulation was signed by the Currans’ attorney as well as
appellant’s attorney. The LASD conducts sales of property every Wednesday at 10:00
a.m. On April 2, 2013, sale of the property was postponed to Wednesday, June 5, 2013.
On April 3, 2013, at approximately 10:00 a.m., the LASD publicly declared that the sale
of the property was postponed until June 5, 2013, at 10:00 a.m. The postponement was
reflected on the sale sheet which was publicly read at the start of the sale day.
       The Currans and appellant entered into a second stipulation to postpone the June 5,
2013 sale to a date “on or after July 9, 2013.” On June 4, 2013, the LASD received the
stipulation, and postponed the sale to July 10, 2013, at 10:00 a.m. On June 5, 2013, at
approximately 10:00 a.m., the LASD publicly declared that the sale of the property was
postponed to July 10, 2013, at 10:00 a.m.
       The sale was conducted on July 10, 2013, at 10:00 a.m.
                               PROCEDURAL HISTORY
       Appellant filed her complaint against the County on April 17, 2014. Appellant’s
action against the County was based on section 701.560, which provides that “[a] levying
officer who sells property without giving the required notice is liable to the judgment
creditor and the judgment debtor for actual damages caused by failure to give notice.”
(§ 701.560, subd. (b).)
       The County filed an answer on June 5, 2014.
       On February 27, 2015, the County filed a motion for summary judgment. The
County argued that appellant’s claims were barred under the litigation privilege and that
the County gave proper notice of the sale of the property.
       On May 20, 2015, the trial court granted the County’s motion for summary
judgment. The court held that the undisputed facts showed that the sale occurred after the


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County properly gave notice of the sale under section 701.580, and that appellant had
failed to demonstrate a triable issue of material fact.
       Judgment was entered in favor of the County on June 22, 2015. Notice of entry of
judgment was served on June 30, 2015.
       On August 31, 2015, appellant filed her notice of appeal.
                                        DISCUSSION
I. Applicable law and standard of review
       A. Summary judgment review
       We review a grant of summary judgment de novo, deciding independently whether
the facts not subject to triable dispute warrant judgment for the moving party as a matter
of law. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 253 (Nazir).) The
appellate court’s task is to make “‘an independent assessment of the correctness of the
trial court’s ruling, applying the same legal standard as the trial court . . . .’ [Citations.]”
(Brundage v. Hahn (1997) 57 Cal.App.4th 228, 234-235.)
       A defendant moving for summary judgment bears the burden of persuading the
court that there is no triable issue of material fact and that the defendant is entitled to
judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
850 (Aguilar).) To meet this burden, the defendant must show that one or more elements
of the cause of action cannot be established, or that a complete defense to the cause of
action exists. (Ibid.)
       Once the defendant has met that burden, the burden shifts to the plaintiff to show
that a triable issue of one or more material facts exists as to that cause of action or a
defense thereto. (Code Civ. Proc., § 437c, subd. (p)(2).) An issue of fact is created only
by a conflict of evidence, not by speculation, conjecture, conclusory assertions or mere
possibilities. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 166.)
       B. The relevant statutes governing execution sales
       The execution sale of the property was conducted pursuant to the Code of Civil
Procedure statutes governing enforcement of judgment.



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       Notice of execution sales is governed by section 701.540, which provides that
“[n]otice of sale of an interest in real property shall be in writing, shall state the date,
time, and place of sale, shall describe the interest to be sold, and shall give a legal
description of the real property and its street address or common designation, if any.”
(§ 701.540, subd. (a).) Notice of the sale “shall be served, mailed, and posted by the
levying officer” not less than 20 days before the date of sale. (§ 701.540, subd. (b).)
Notice of the sale must be served on the judgment debtor, either personally or by mail.
(§ 701.540, subd. (c).) Notice must also be posted in one public place in the city in which
the interest in real property is to be sold, and at a conspicuous place on the real property.
(§ 701.540, subd. (d)(1) & (d)(2).)
       Pursuant to section 701.560, “[f]ailure to give notice of sale as required by this
article does not invalidate the sale.” (§ 701.560, subd. (a).) However, “[a] levying
officer who sells property without giving the required notice is liable to the judgment
creditor and judgment debtor for actual damages caused by the failure to give notice.”
(§ 701.560, subd. (b).)
       Section 701.580 provides that:
              “The judgment debtor and judgment creditor together may request in
       writing that a sale be postponed to an agreed day and hour. The request
       shall be delivered to the levying officer conducting the sale, and the levying
       officer shall, by public declaration at the time and place originally fixed for
       the sale, postpone the sale to the day and hour fixed in the request. Notice
       of any additional postponements shall be given by public declaration by the
       levying officer at the time and place last appointed for the sale. No other
       notice of postponed sale need be given. . . .”

II. The County has shown that it is entitled to judgment as a matter of law
       In order to prevail on its summary judgment motion, the County was required to
produce evidence showing that there are no triable issues of material fact and it is entitled
to judgment as a matter of law. To this end, the County presented evidence that it gave
the required notice of the sale. Liability is only possible under section 701.560,
subdivision (b), if the levying officer sold the property without giving the required notice.



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Thus, the County’s evidence that it gave notice within the meaning of section 701.560,
subdivision (b), is a complete defense to appellant’s action. (Aguilar, supra, 25 Cal.4th
at p. 850.)
       The County presented evidence that on March 5, 2013, it served on the debtor
written notice of the sale which would take place on April 3, 2013, at 10:00 a.m.. The
notice complied with section 701.540, subdivisions (a), (b), and (c).
       Notice of the sale was also posted in the Daily Breeze, at the property, and at the
courthouse where the sale would take place. Thus, the County complied with sections
701.540, subdivisions (a), (b), (d), (f) and (g).
       Upon receipt of a stipulation to postpone the sale of property to a date “on or after
May 30, 2013,” the LASD publicly declared, at the time and place originally fixed for the
sale, that the sale was postponed to June 5, 2013 at 10:00 a.m. This notice was proper
pursuant to section 701.580. No other notice was required. (§ 701.580.)
       Upon receipt of a second stipulation to postpone the sale to a date “on or after July
9, 2013,” the LASD publicly declared, at the time and place fixed for the sale, that the
sale was postponed to July 10, 2013, at 10:00 a.m. This notice was proper pursuant to
section 701.580. No other notice was required. (§ 701.580.)
       The sale of the property was conducted on July 10, 2013, at 10:00 a.m., as
provided in the most recent notice.
       These undisputed facts show that the County was entitled to judgment as a matter
of law. The levying officer gave the notice required under the law, thus no liability can
attach under section 701.560, subd. (b).
III. Appellant has failed to show a triable issue of material fact
       Because the County met its burden of showing a complete defense to appellant’s
action, the burden shifts to the appellant to show one or more triable issues of material
fact. Appellant has failed to make this showing.
       Appellant argues that the County failed to give her proper notice of the July 10,
2013 execution sale. The parties agree that the County did not provide written notice to
appellant regarding the July 10, 2013 sale, and that notice was provided by public


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declaration as set forth in section 701.580. Appellant argues that public declaration did
not comply with the law under the circumstances of this case for two reasons: first,
public declaration is only sufficient when the judgment creditor and judgment debtor
stipulate to “an agreed day and hour,” which did not happen here. Second, the LASD
was instructed to re-notice the sale, and did not do so. As set forth below, the law does
not support appellant’s arguments that notice was faulty under the circumstances of this
case.
        A. The County’s actions were proper under section 701.580
        As set forth above, the parties may stipulate to postpone an execution sale “to an
agreed date and hour.” (§ 701.580.) Appellants took advantage of this statute by
stipulating to postpone the sale to a date “on or after July 9, 2013.” The stipulation
specified, “the Sheriff is so directed to continue the sale.”
        Once the levying officer receives a stipulation postponing the sale, the officer
“shall,” by public declaration at the time and place originally fixed for the sale, postpone
the sale to the day and hour fixed in the request. (§701.580.) Here, the County
postponed the sale as the parties directed. Because execution sales take place every
Wednesday at 10:00 a.m., the County noticed the sale for the first Wednesday “on or
after” July 9, 2013. Appellant provides no law suggesting that the county’s action was
improper, and we decline to find that it was improper under the circumstances of this
case. Instead, we find that the County carried out the parties’ instructions as precisely as
it could.2
        Appellant complains that she did not have notice of the specific day and hour of
any sale so that she could appear and get notice of a postponed sale date. This is contrary
to the undisputed facts. Appellant received proper written notice of the first sale date:
April 3, 2013, at 10:00 a.m. If she appeared on that date at the specified time, she would
have received notice of the first postponed sale date. Had she again appeared, she would



2      The doctrine of substantial compliance applies to the enforcement of judgments
laws. (In re Marriage of Kerr (1986) 185 Cal.App.3d 130, 133.)

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have received notice of the second postponed sale date. This chain of events comports
with the procedures set forth in the statute.
       Further, because the statute permits parties to come up with a date certain for the
execution sale, any uncertainty regarding the date of sale could have been avoided by the
parties. Having elected not to specify a particular date, as permitted in the statute,
appellant was obligated to show up at the time and date of the previously scheduled sale
in order to receive notice. (§ 701.580.)
       The County did not violate any notice provision, and is entitled to summary
judgment on appellant’s claims.
       B. The County properly re-noticed the sale
       Appellant next argues that the County did not comply with instructions to re-
notice the sale. Appellant cites section 687.010, which provides that “[t]he judgment
creditor shall give the levying officer instructions in writing,” and that “the levying
officer shall act in accordance with the written instructions to the extent the actions are
taken in conformance with the provisions of this title.” (§ 687.010, subd. (a), (b).)
       Appellant states that when the documents were provided to the LASD on June 4,
2013, to postpone the sale, they were provided with instructions. Those instructions
instructed the LASD to “re-notice [the sale] for a date on or soon after July 9.” Appellant
argues that the LASD did not re-notice the sale, but instead proceeded with a
postponement of the prior sale by public declaration.
       We disagree. Having provided written notice of the initial sale, notice of any
additional postponements was properly given by public declaration by the levying officer
at the time and place last appointed for the sale. No other notice of the postponed sale
was required. (§ 701.580.)
       In a related argument, appellant argues that the trial court erred in stating that the
cover letter to the LASD directing that the LASD “re-notice” the sale had no legal effect.
Appellant argues that a court order permitting the LASD to continue the sale to a date
after June 24, 2013, along with the stipulation filed by the parties and the cover letter
instructing the sheriff’s department to “re-notice” the sale must be read together.


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Appellant contends that these documents permitted the sale to be held on any date after
June 24, 2013, but required the sale to be re-noticed.
       We disagree. The court’s order did not contain a directive to the LASD to re-
notice the sale. As the trial court noted, the court’s order contemplated a continuance of
the sale. The order states: “The Los Angeles County Sheriff may continue the sheriff’s
sale in this matter . . . currently set for June 5, 2013 to any date after June 24, 2013
subject to this Court’s further orders.” The stipulation between the parties also
contemplated a continuance, stating “[t]he sale of real property scheduled for June 5,
2013 will be continued to a date on or after July 9, 2013 . . . .” The cover letter directed
the sheriff’s department to re-notice the sale, but because the action was a continuance of
a previously scheduled sale, such notice was properly provided by public declaration in
accordance with section 701.580.
       Appellant has failed to show a triable issue of material fact. The County is entitled
to summary judgment.3
                                       DISPOSITION
       The judgment is affirmed. The County is awarded its costs of appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                   ____________________________, J.
                                                   CHAVEZ

We concur:

__________________________, Acting P. J.
ASHMANN-GERST

__________________________, J.
HOFFSTADT



3      Because we have determined that the County’s actions did not violate the notice
provisions of the Code of Civil Procedure, we do not address the parties’ competing
arguments regarding the applicability of the litigation privilege.

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