Opinion
B197281
6-24-2008
In re Marriage of MALAK and SYRUS PARVIZIAN. MALAK PARVIZIAN, Respondent, v. SYRUS PARVIZIAN, Appellant.
Syrus Parvizian, in pro. per., for Appellant. Law Office of Alex Powell and Alex Powell for Respondent.
Not to be Published
This is an appeal from an order granting a judgment creditors motion for an order for the sale of the judgment debtors property, with the judgment debtor contending the trial court should have found he was entitled to a homestead exemption. We originally rejected this claim for want of an adequate record (In re Marriage of Parvizian (Apr. 23, 2008, B197281) [nonpub. opn.]), then granted rehearing when the missing part of the record was located. Having now considered the issue on its merits, we once again affirm the trial courts order.
FACTS
Malak and Syrus Parvizian married in 1967, separated in 1997, and have been litigating various issues ever since.
A.
In In re Marriage of Parvizian (May 21, 2003, B158111 [nonpub. opn.]), we affirmed a default judgment entered in favor of Malak and an order denying Syruss motion to vacate the default judgment. Malak recorded an abstract of the judgment against Syrus in the amount of $218,491.07.
In Parvizian v. Jewett (Dec. 10, 2003, B163437 [nonpub. opn.]), Division Seven of our court reversed a defense judgment entered in a legal malpractice action brought by Syrus against his former lawyer (Margaret A. Jewett). (See also Parvizian v. Jewett (Mar. 22, 2006, B179122 [nonpub. opn.]), a later unsuccessful appeal by Syrus in the legal malpractice action.)
In Parvizian v. Parvizian (Oct. 17, 2005, B178609 [nonpub. opn.]), an action by Malak against Syrus and Parviz Parvizian (to whom Syrus had fraudulently conveyed real property in Calabasas) to set aside Syruss fraudulent transfers, Division Five of our court affirmed a judgment in favor of Malak. (See also Parvizian v. Parvizian (Aug. 17, 2007, B191718 [nonpub. opn.], another appeal in the fraudulent transfer action.) The judgment in the fraudulent transfer case ordered Parviz to reconvey the Calabasas property to Syrus, and gave Malak the right to enforce the marital dissolution judgment against the Calabasas property.
In In re Marriage of Parvizian (Feb. 28, 2008, B194981 [nonpub. opn.]), we affirmed the trial courts order denying Syruss renewed motion to vacate the default judgment in the marital dissolution proceedings.
B.
Meanwhile, in July 2006, in the marital dissolution proceedings, the trial court issued a writ of execution in favor of Malak to enforce the judgment against Syrus in the amount of $321,166.80 (the amount of the judgment plus interest). In November, Malak applied to the court for an order for the sale of the Calabasas property, explaining in her application that the property was not subject to any homestead declarations by Syrus or Parviz, express or implied, because, if there was a homestead, it had been voided by the judgment in the fraudulent transfer action (which expressly gave Malak the right to levy against the Calabasas property for the full amount due to her under the marital dissolution judgment).
The trial court issued an order to show cause and set the matter for hearing in December 2006. On December 28, the court granted Malaks application, finding on "proof made to the satisfaction of the court that the property is not subject to a homestead exemption in the amount of $150,000 (or in any amount)"; that "the fair market value of the dwelling [was] $ 975,000"; that the property was to be sold; and that Malak was permitted "to make a credit bid to satisfy the amount due" to her under the marital dissolution judgment (at that time, $ 321,166.80 plus interest accruing at $59.86 per day from July 26, 2006). Syrus filed a notice of appeal from the December 28 order.
On February 26, 2007, while this appeal was pending, Syrus filed an ex parte application in which he asked the trial court to vacate the order for the sale of the Calabasas property. The trial court treated the application as a motion, set the matter for hearing, and accepted further briefs from both parties. On March 21, the trial court denied Syruss motion on the ground that the issues he raised were pending on this appeal. Syrus then filed a petition for a writ of supersedeas in which he asked us to stay the sale, which we denied. In June, we granted Syruss motion for permission to amend his notice of appeal to include the March 21 order.
DISCUSSION
In his pro se brief on appeal, Syrus contends he was entitled to a $150,000 homestead exemption. We disagree.
Before the 1982 enactment of the Enforcement of Judgments Law (Code Civ. Proc., §§ 680.010-724.260; Stats. 1982, ch. 1364, p. 5070 et seq.), a homestead could be created only by a declaration recorded by the owner of real property. Now, however, an owner (independent of his right to record a declared homestead) automatically has a homestead exemption on his dwelling as protection against an execution sale. (§§ 704.910-704.995 [declared homestead], 704.710-704.850 [implied dwelling homestead]; Ahart, Cal. Practice Guide: Enforcing Judgments and Debts (The Rutter Group 2007) Property Exempt from Enforcement of Money Judgments, § 6:1036, p. 6E-64.7.)
All section references are to the Code of Civil Procedure.
To prove his claim to a dwelling homestead at the time of the hearing on Malaks motion for an order for the sale of the Calabasas property, Syrus had the burden of proof to establish (1) that the property was his dwelling (§ 704.710, subd. (a) [dwelling is "a place where a person resides"]) and, to determine the amount of the exemption, (2) his age and health (the basic exemption is $50,000 but increases to $150,000 for judgment debtors who are at least 65 years old or disabled). (§ 704.730.) When a homestead (dwelling or declared) is established, the dwelling may not be sold at an execution sale unless the bid amount is sufficient to satisfy all liens and encumbrances plus the amount of the homestead exemption. (§ 704.800.)
Syruss appellate briefs do not point to any evidence in the record showing that he was living in the Calabasas house at the time the execution sale was ordered, or to establish the existence of a declared homestead, or to establish his age or physical condition. To the contrary, Syruss opening brief turns the burden on appeal upside down by inviting Malak to show that the trial courts ruling was correct. (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 [the trial courts orders are presumptively correct and will be affirmed unless the appellant shows prejudicial error].) Our independent review of the record satisfies us that Syrus failed to present the required evidence to the trial court, and that the orders must be affirmed.
DISPOSITION
The orders are affirmed. Malak Parvizian is awarded her costs of appeal.
We concur:
ROTHSCHILD, J.
JACKSON, J.