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Tentative Ruling
Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Ralph Partners II, LLC vs Hilda P Sanchez et al

Case No: 18CV00373
Hearing Date: Fri Mar 09, 2018 9:30

Nature of Proceedings: Motion: Summary Judgment

Tentative Ruling: Defendant may present an opposition orally at the hearing pursuant to CRC 3.1351(b).

 

Background: This is an unlawful detainer action (“UDA”) after a foreclosure. On January 23, 2018, plaintiff Ralph Partners II, LLC, filed its complaint against defendant Hilda P. Sanchez. Plaintiff alleges: Plaintiff became the owner of real property located at 1512 ½ Santa Rosa Avenue in Santa Barbara (the “Property”) by purchasing the property at a foreclosure sale. No landlord-tenant relationship exists between plaintiff and defendants. On January 18, 2018, plaintiff caused to be served on defendant written notice to quit and deliver possession of the premises within three days. Defendant has failed and refused to quit and deliver possession and is still in possession of the Property. Plaintiff seeks possession of the Property; damages in the amount of $208.33 per day from January 23, 2018; and costs of suit.

Defendant filed her answer on January 31, generally denying each statement in the complaint and asserting two affirmative defenses: the foreclosure process was improperly conducted and the notice to quit and/or its service were defective.

Plaintiff had previously filed an UDA against defendant, Case No. 17CV04548. That case was dismissed without prejudice. In her answer, defendant refers to the court’s ruling on a motion for summary judgment in that case. (There was an issue regarding a 90 day notice required under CCP §§ 1161a(c) and 1161b for tenants because, in that case, defendant Ian Robinson filed prejudgment claim of right to possession declaring that he occupied the property pursuant to a rental agreement with the defendant Sanchez.)

Motion: Plaintiff moves “for an order granting summary judgment or summary adjudication of all affirmative defenses specified in Defendant’s Answer.” There is no opposition to the motion on file. However, defendant may present an opposition orally at the hearing pursuant to CRC 3.1351(b).

1. Summary Judgment Standards: In an unlawful detainer action, a party may move for summary judgment on five days notice and the motion shall be granted or denied on the same basis as a motion under CCP § 437c. CCP § 1170.7. Summary judgment is appropriate where there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. CCP § 437c(c).

“The party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826, 850 (2001). “[A] plaintiff bears the burden of persuasion that ‘each element of’ the ‘cause of action’ in question has been ‘proved,’ and hence that ‘there is no defense’ thereto. [CCP § 437c(p)(1)].” Id. Plaintiff's initial burden of proof in moving for summary judgment, however, does not include disproving any affirmative defenses asserted by defendants. When a plaintiff meets its burden of proving each element of its cause of action, “the burden shifts to the defendant ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’” Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co., 170 Cal.App.4th 554, 564-565 (2009).

2. Facts: On September 13, 2017, plaintiff was the high bidder at a non-judicial foreclosure sale of the Property. [Olivia Reyes Declaration (“Reyes Dec.”) ¶3] Plaintiff was not the foreclosing beneficiary under the deed of trust foreclosed upon. [Reyes Dec. ¶4; Request for Judicial Notice (“RJN”) Exh. 1] Plaintiff was not related to and had nothing to do with the lending or foreclosure process other than bidding at the auction and had no knowledge of a completing claim. Plaintiff paid $840,000 for the Property, which was more than the $732,539.68 debt secured by the Property. [Reyes Dec. ¶5; RJN Exh. 1]

The trustee’s deed was recorded on September 29, 2017, and contains the recital: “All requirements of law regarding the mailing of copies of notices or the publication of a copy of the Notice of Default or the personal delivery of the copy of the Notice of Default and the posting and publication of copies of the Notice of a Sale have been complied with.” [Reyes Dec. ¶6; RJN Exh. 1] Defendant was the trustor under the deed of trust foreclosed on. [RJN Exh. 2]

No landlord/tenant relationship exists between plaintiff and defendant. [Reyes Dec. ¶15] [Reyes Dec. ¶4] Plaintiff served a three-day notice to quit on Sanchez on January 18, 2018. [Reyes Dec. ¶¶9-11, Exhibits 4 and 5] Defendant continues in possession of the Property. [Reyes Dec. ¶¶16, 17]

3. Title: The purchaser at a trustee’s sale has an immediate right to possession of the property. Farris v. Pacific States Auxiliary Corp., 4 Cal.2d 103, 105 (1935). “[W]here the purchaser at a trustee’s sale proceeds under section 1161a of the Code of Civil Procedure he must prove his acquisition of title by purchase at the sale; but it is only to this limited extent, as provided by the statute, that the title may be litigated in such a proceeding. … [T]he plaintiff need only prove a sale in compliance with the statute and deed of trust, followed by purchase at such sale, and the defendant may raise objections only on that phase of the issue of title.” Evans v. Superior Court, 67 Cal.App.3d 162, 170-171 (1977).

“A recital in the deed executed pursuant to the power of sale of compliance with all requirements of law regarding the mailing of copies of notices or the publication of a copy of the notice of default or the personal delivery of the copy of the notice of default or the posting of copies of the notice of sale or the publication of a copy thereof shall constitute prima facie evidence of compliance with these requirements and conclusive evidence thereof in favor of bona fide purchasers and encumbrancers for value and without notice.” Civil Code § 2924(c). “A ‘conclusive presumption’ requires the trier of fact to find the existence of the presumed fact from the existence of the basic fact. An adverse party is not permitted to introduce evidence to contradict or rebut the existence of the presumed fact.” Melendrez v. D & I Inv., Inc., 127 Cal.App.4th 1238, 1250 n17 (2005) [internal quotation and citation omitted].

(In her answer, defendant suggested that, under Civil Code § 2924h, the trustee’s deed upon sale “needs to be recorded within 15 days following the foreclosure sale in order to claim perfected rights to the property that is superior to the previous homeowner’s rights.” This trustee’s deed was recorded 16 days after the sale. But defendant misreads the statute, which simply provides that, in order for perfection to relate back to the date of sale, the deed must be recorded within 15 days. A deed recorded on the 16th day after the sale still perfects title as of the date of recording.)

The two elements of being a bona fide purchaser (“BFP”) “are that the buyer (1) purchase the property in good faith for value, and (2) have no knowledge or notice of the asserted rights of another.” Id. at 1251. As to the first element, the buyer need not pay fair market value but need only part with something of value in exchange for the property. Id. As to the second element, the buyer must have neither knowledge nor notice of a competing claim. Id. at 1252. The “purpose is to protect those who honestly believe they are acquiring a good title, and who invest some substantial sum in reliance on that belief.” Id. The evidence in Reyes Dec. ¶5 is sufficient to make a prima facie showing that plaintiff is a BFP for value and without notice.

The statutory conclusive evidence does not establish general compliance with the foreclosure statute and deed of trust. However, “there is a common law rebuttable presumption that a foreclosure sale has been conducted regularly and fairly.” Royal Thrift & Loan Co. v. Cty. Escrow, Inc., 123 Cal.App.4th 24, 32 (2004) [internal quotation and citation omitted].

The evidence is sufficient to sustain plaintiff’s burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact with respect to title to the Property.

4. Notice and Detainer: CCP § 1161a(b) provides:

In any of the following cases, a person who holds over and continues in possession of a manufactured home, mobilehome, floating home, or real property after a three-day written notice to quit the property has been served upon the person, … may be removed therefrom as prescribed in this chapter:

* * *

(3) Where the property has been sold in accordance with Section 2924 of the Civil Code, under a power of sale contained in a deed of trust executed by such person, or a person under whom such person claims, and the title under the sale has been duly perfected.

The evidence is sufficient to sustain plaintiff’s burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact with respect to proper service of a notice to quit on defendant.

5. Affirmative Defenses: “‘It is not plaintiff’s initial burden to disprove affirmative defenses . . . asserted by defendant.’” Consumer Cause, Inc. v. Smilecare, 91 Cal.App.4th 454, 473 (2001) (citing Rutter). The 1992 amendment to CCP § 473c “eliminated the former requirement that a plaintiff moving for summary judgment refute each of the defendant’s affirmative defenses….” Montrose Chemical Corp. v. Superior Court, 6 Cal.4th 287, 301 n4 (1993).

Therefore, unless defendant presents evidence supporting her affirmative defense at the hearing, plaintiff is entitled to summary judgment.

Since plaintiff seeks summary adjudication of the affirmative defenses, the court will address them. The court my grant summary adjudication of an affirmative defense “when there is no triable issue of material fact as to the defense, and the moving party is entitled to judgment on the defense as a matter of law.” Kendall-Jackson Winery, Ltd. v. Superior Court, 76 Cal.App.4th 970, 977–78 (1999). “The plaintiff bears the initial burden to show there is no triable issue of material fact as to the defense and that he or she is entitled to judgment on the defense as a matter of law. In so doing, the plaintiff must negate an essential element of the defense, or establish the defendant does not possess and cannot reasonably obtain evidence needed to support the defense.” See's Candy Shops, Inc. v. Superior Court, 210 Cal.App.4th 889, 900 (2012). If plaintiff’s moving papers establish a prima facie showing that meets the plaintiff’s burden, the burden then shifts to the defendant to make a prima facie showing of the existence of a triable material factual issue. Id.

a. Conduct of Trustee’s Sale: Defendant’s first affirmative defense is that the foreclosure process was improperly conducted. As discussed above, plaintiff need only prove a sale in compliance with the statute and deed of trust. Civil Code § 2924(c) provides that the recital in the deed of trust is, for a BFP, conclusive evidence of compliance with all requirements of law regarding the service of or the publication of the notice of default and the posting or publication of the notice of sale. So, unless defendant presents evidence sufficient to sustain her burden of production to make a prima facie showing of the existence of a triable issue of material fact as to whether plaintiff was a BFP for value and without notice of her asserted rights, plaintiff will not be permitted to present evidence regarding compliance with notice requirements.

As to general compliance with the foreclosure statute and deed of trust, the evidence and common law rebuttable presumption that a foreclosure sale has been conducted regularly and fairly sustains plaintiff’s burden on the affirmative defense. So, unless defendant presents evidence sufficient to sustain her burden of production to make a prima facie showing of the existence of a triable issue of material fact as to compliance with the foreclosure statute and the deed of trust, plaintiff is entitled to summary adjudication of this affirmative defense.

b. Notice to Quit and Service: Defendant’s second affirmative defense is that the notice to quit and/or its service were defective. The evidence in Reyes Dec. ¶¶9-11 and Exhibits 4 and 5 is sufficient to sustain plaintiff’s initial burden to show there is no triable issue of material fact as to this defense and that it is entitled to judgment on the defense as a matter of law. Unless defendant presents evidence sufficient to sustain her burden of production to make a prima facie showing of the existence of a triable issue of material fact as to defects in the notice to quit and service thereof, plaintiff is entitled to summary adjudication of this affirmative defense.

6. Order: Unless defendant Hilda P. Sanchez presents sufficient evidence to overcome plaintiff’s prima facie case of the absence of a triable issue of material fact, the court will grant plaintiff Ralph Partners II, LLC’s motion for summary judgment and summary adjudication of two affirmative defenses. Defendant may present an opposition orally at the hearing pursuant to CRC 3.1351(b).

 
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