Essex v. Diaz CA4/3

Filed 10/1/14 Essex v. Diaz CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

TRISTA ESSEX et al.,

Plaintiffs and Appellants, G050064

v. (Super. Ct. No. RIC483005)

HEIDI DIAZ, OPINION

Defendant and Respondent.

Appeal from an order of the Superior Court of Riverside County, Daniel A. Ottolia, Judge. Affirmed. Tiedt & Hurd, John E. Tiedt and Marc S. Hurd for Plaintiffs and Appellants. Peabody Law Firm and Timothy P. Peabody for Defendant and Respondent. * * *

Plaintiffs brought a class action suit against Heidi Diaz as the operator of the “Kimkins” Internet Web site for fraud in connection with a membership diet plan. After a bench trial, the court awarded the plaintiffs’ class approximately $2,300,000 in damages, including $500,000 in punitive damages. Thereafter, plaintiffs attempted to force the sale of Diaz’s dwelling. The trial court denied the application, concluding plaintiffs failed to show the funds used to buy the residence were the fruit of the fraud that resulted in plaintiffs’ judgment, and failed to show the fair market value of the property and any equity in the property that could satisfy some part of the judgment. We affirm. I FACTS Plaintiffs obtained a judgment against Diaz in excess of $2,300,000, including $500,000 in punitive damages, on December 16, 2010. The court found Diaz engaged in false and deceptive advertising in connection with her sale of memberships to a diet Web site. Resolution of the issues presented herein do not require us to detail the actions of Diaz that gave rise to the judgment. On July 10, 2012, subsequent to the sheriff levying on Diaz’s interest in the her dwelling, plaintiffs filed a notice of hearing on their application for an order of sale for Diaz’s personal dwelling pursuant to Code of Civil Procedure1 sections 704.740— 704.760. The application alleged Diaz’s property may qualify for a $75,000 homestead exemption. Plaintiffs alleged Diaz’s dwelling had a $295,000 fair market value. The $295,000 fair market value was based on an exterior-only inspection residential appraisal report that included comparable sales. The appraiser expressly stated he was unaware of