Judge: Edward B. Moreton, Jr., Case: 24SMCV00123, Date: 2024-04-09 Tentative Ruling

Case Number: 24SMCV00123    Hearing Date: April 9, 2024    Dept: 205

Superior Court of California

County of Los Angeles

Beverly Hills Courthouse | Department 205

Background

This is an unlawful detainer action concerning a property located at 22413 Dardeene Street, Calabasas, CA 91302 (the “Subject Property”). On January 10, 2024, Plaintiff Arkas LLC (“Plaintiff”) filed a Verified Complaint for Unlawful Detainer (the “Complaint”) against Defendants Lloyd Douglas Dix aka Lloyd Dix, Mary Linda Dix aka Mary Dix, Michael Alexander Dix aka Michael Dix, All Unknown Occupants, Tenants, and Subtenants (collectively “Defendants”), and DOES 1 through 20, inclusive.

The Complaint alleges the following: Plaintiff obtained ownership of the Subject Property after a non-judicial foreclosure sale properly conducted in accordance with Civil Code § 2924, that occurred on or about October 31, 2023. (Complaint, ¶ 10.) Plaintiff perfected its title under the sale to the Subject Property as reflected in a duly recorded Trustee’s Deed Upon Sale in Plaintiff’s favor, which was recorded on December 22, 2023. (Complaint, ¶ 11; Exh. 1.) Plaintiff alleges that Defendants are currently in possession of the Subject Property without any right to do so or claim to have a right to occupancy or possession of the Subject Property, without any right to do so. (Complaint, ¶ 12.) On December 29, 2023, pursuant to CCP § 1162(a), Plaintiff caused to be served on Defendants a Three/Thirty/Ninety-Day Notice to Quit by a registered process server. (Complaint, ¶ 13; Exh. 2.) More than three days have passed since the service of the Notice to Quit. (Complaint, ¶ 14.) Defendants have failed and refused to deliver possession of the Subject Property. (Complaint, ¶ 14.) Defendants remain in possession of the Subject Property without the consent of Plaintiff. (Complaint, ¶ 14.)

On February 13, 2024, Defendants Lloyd Douglas Dix (aka Lloyd Dix) and Mary Linda Dix (aka Mary Dix) filed an Answer to the Complaint.

On February 28, 2024, default was entered against All Unknown Occupants, Tenants, and Subtenants.

On March 5, 2024, default was entered against Defendant Michael Alexander Dix (aka Michael Dix).

On March 12, 2024, Plaintiff filed and served the instant Motion for Summary Judgment or, alternatively, Summary Adjudication for Unlawful Detainer. Plaintiff moves for summary judgment in its favor against all Defendants. The motion is brought on the grounds that there is no triable issue of material fact and, as a matter of law, Plaintiff is entitled to summary judgment on its sole cause of action for unlawful detainer.

Plaintiff’s motion is unopposed.

Request for Judicial Notice

            “Courts can take judicial notice of the existence, content and authenticity of public records and other specified documents, but do not take judicial notice of the truth of the factual matters asserted in those documents.” (Glaski v. Bank of America (2013) 218 Cal.App.4^th 1079, 1090.)

            The Court GRANTS Plaintiff’s request for judicial notice.

Motion for Summary Judgment/Summary Adjudication Standard

            The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4^th 826, 843.) Code Civ. Proc. § 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4^th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4^th 59, 67.)

            “The procedures governing a motion for summary judgment in an unlawful detainer action are streamlined (e.g., separate statements are not required under section 437c, subdivision (s) of the Code of Civil Procedure, but such a motion shall be granted or denied on the same basis as a motion under [Code of Civil Procedure s]ection 437c.” (Borden v. Stiles (2023) 92 Cal.App.5^th 337, 344-45.) In the unlawful detainer context, “[a] motion for summary judgment may be made at any time after the answer is filed upon giving five days notice.” (Code Civ. Proc., § 1170.7.) “Motions for summary adjudication are procedurally identical to motions for summary judgment.” (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4^th 1281, 1290.) “The summary judgment statute [is] not intended nor can it be used as a substitute for existing methods in the trial of issues of fact.” (Travelers Indemn. Co. v. McIntosh (1952) 112 Cal.App.2d 177, 182.) The summary judgment “procedure is drastic and should be used with caution.” (House v. Lala (1960) 180 Cal.App.2d 412, 415.) “Any doubt in granting summary judgment should be exercised against the moving party.” (Ibid.)

            “In moving for summary judgment, a plaintiff . . . has met his burden of showing that there is no defense to a cause of action if he has proved each element of the cause of action entitling him to judgment on that cause of action.” (Borden v. Stiles, supra, 92 Cal.App.5^th 337, 345, internal quotations omitted.) “Once the plaintiff . . . has met that burden, 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.” (Ibid., internal quotations omitted.) “The defendant . . . may not rely upon the mere allegations or denials of his pleadings to show that a triable issue of material fact exists.” (Ibid., internal quotations omitted.)

Analysis

Plaintiff contends that this action is brought under CCP § 1161a and that it is entitled to summary judgment.

Relevant Legal Standards for Post-Foreclosure Unlawful Detainers

            “[A] person who holds over and continues in possession of . . . real property after a three-day written notice to quit the property has been served upon the person, or if there is a subtenant in actual occupation of the premises, also upon such subtenant, as prescribed in Section 1162, may be removed therefrom.” (Code Civ. Proc., § 1161a, subd. (b).) Such removal may occur “[w]here 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.” (Code Civ. Proc., § 1161a, subd. (b)(3).) “Delivery of the deed by the trustee makes conclusive the presumption that the sale was properly conducted . . . [under Civil Code section 2924] and recordation of the deed perfects the title.” (Matson v. S.B.S. Trust Deed Network (2020) 46 Cal.App.5^th 33, 41.)

            A notice to quit may be served: (1) by delivering a copy to the occupant personally; (2) if he or she is absent from his or her place of residence, and from his or her usual place of business, by leaving a copy with someone of suitable age and discretion at either place, and sending a copy through the mail addressed to the occupant at his or her place of residence; or (3) if such place of residence cannot be ascertained, or if a person of suitable age or discretion there can not be found, then by affixing a copy in a conspicuous place on the property, and also by delivering a copy to a person there residing, if such person can be found; and also sending a copy through the mail addressed to the occupant at the place where the property is situated. (Code Civ. Proc., § 1162, sudbs. (a)(1)-(3).) Service on a subtenant may be accomplished in a manner articulated in CCP § 1162(a). (Code Civ. Proc., § 1162, subd. (a)(3).) A notice to quit served on one defendant is deemed as sufficient notice to such defendant’s co-occupants. (University of Southern Cal. v. Weiss (1962) 208 Cal.App.3d 759, 769.)

            Under Civil Code section 2924, “[t]he trustee starts the nonjudicial foreclosure process by recording a notice of default and election to sell.” (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4^th 919, 927.) “After a three-month waiting period, and at least twenty days before the scheduled sale, the trustee may publish, post, and record a notice of sale.” (Ibid.) “If the sale is not postponed and the borrower does not exercise his or her rights of reinstatement or redemption, the property is sold at auction to the highest bidder.” (Ibid.)

Plaintiff’s Undisputed Material Facts and Discussion

            Plaintiff’s motion for summary judgment is unopposed and therefore all material facts presented in support of the motion are undisputed. Plaintiff presents the following undisputed material facts: a Deed of Trust (“DOT”), executed by borrower Lloyd Douglas Dix, was recorded against the Subject Property on July 5, 2018, securing a loan in the amount of $400,000.00. (Plaintiff’s Undisputed Material Facts at No. 1.) A Substitution of Trustee (“SOT”) was recorded on November 20, 2018, substituting RESS Financial Corporation in as the new trustee for the DOT, in place of the original trustee which had been First American Title Company. (Id. at No. 2.) On March 31, 2021, RESS Financial Corporation, as Trustee, recorded a Notice of Default and Election to Sell Under Deed of Trust (“NOD”) against the Subject Property, indicating a default amount of $12,335.00 as of March 25, 2021 under the loan secured by the DOT. (Id. at No. 3.) On January 4, 2023, a Notice of Trustee’s Sale (“NOTS”) was recorded against the Subject Property by RESS Financial Corporation, as Trustee, indicating that the Subject Property would be sold, and that the estimated debt at the time was $587,335.88. (Id. at No. 4.)

            On October 31, 2023, the Subject Property was purchased by Plaintiff at a public auction for a winning bid of $750,000.00. (Id. at No. 5.) The Trustee’s Deed Upon Sale (“TDUS”) granting Plaintiff title to the Subject Property was recorded on December 22, 2023 (Id. at No. 6). The Trustee’s Deed Upon Sale contained a recital regarding the notice of default and notice of sale, which indicated that such notices complied with all requirements of the law pertaining to mailing, posting, publication, and recordation (Id. at No. 7), and the Deed of Trust recorded on July 5, 2018, contained language concerning the trustee’s deed upon sale (Id. at No. 8). At the time Plaintiff purchased the Subject Property, Plaintiff made payment for value, in good faith, in legal tender, and without having any notice of any others’ asserted rights and having reviewed title records and not seeing or being aware of any notice of lis pendens on title, and not being aware of any irregularities or defects in the conduct of the nonjudicial foreclosure sale. (Id. at No. 9.)

            Plaintiff presents the following further undisputed material facts: on December 29, 2023, California registered process server, Marco Toscano, served Defendants and all unknown occupants, tenants, and subtenants with a Notice to Quit pursuant to CCP § 1162, by posting copies on a conspicuous place on the property, and mailing the documents to the occupants at the Subject Property. (Id. at No. 10.) Notwithstanding service of the Notice to Quit, Defendants remain in possession of the Subject Property and continue to claim the right to possess the Subject Property. (Id. at No. 11.) The instant unlawful detainer complaint was filed on January 10, 2024, which is more than three days after the Notices to Quit were served. (Id. at No. 12.)

            The Court finds that Plaintiff has met its burden in showing the existence of each element of its cause of action for unlawful detainer pursuant to CCP § 1161a(b)(3). Plaintiff has presented undisputed material facts that: (1) Plaintiff’s acquisition of the Subject Property and the title thereto were in compliance with Civ. Code § 2924; (2) Plaintiff properly served Defendants and all other occupants of the Subject Property with the Notice to Quit; (3) Plaintiff waited the required three days before filing this action after service of the Notice to Quit; and (4) Defendants continue to remain in possession of the Subject Property.

            Given that the motion is unopposed, Defendants have not met their burden in showing the existence of a triable issue of material fact. Moreover, due to the lack of an opposition, there is “an inference that the motion is meritorious.” (Sexton v. Superior Court (1997) 58 Cal.App.4^th 1403, 1410.) By failing to oppose the motion, Defendants have conceded to the arguments raised in the motion because “[c]ontentions are waived when a party fails to support them with reasoned argument and citations to legal authority.” (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4^th 1210, 1215.)

Conclusion

Accordingly, the Court GRANTS Plaintiff’s Motion for Summary Judgment.

Dated: April 9, 2024

__________________________________________

Edward B. Moreton, Jr.

Judge of the Superior Court