Judge: H. Jay Ford, III, Case: 24SMCV02505, Date: 2024-11-19 Tentative Ruling

Case Number: 24SMCV02505    Hearing Date: November 19, 2024    Dept: O

 Case Name:  Kwala, LLC v. Pacific Panorama LLC, et al.  

SUBJECT:                 MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Plaintiff Kwala, LLC

RESP. PARTY:         Defendants Pacific Panorama LLC, Shlomy Weingarten, and Revital Weingarten

TENTATIVE RULING

            Plaintiff Kwala, LLC’s Motion for Summary Judgment is GRANTED. Plaintiff satisfies their burden as moving party to submit admissible evidence of each element of an unlawful detainer cause of action pursuant to CCP § 1161a(b)(3). Defendants do not meet their burden to show a triable issue of fact as the elements of unlawful detainer.

            Plaintiffs Objections Nos. 1, 6–24 are SUSTAINED. Plaintiff’s Objections Nos 2–5 are OVERRULED.

Plaintiffs RJN Nos. 6, 8, 9, 27, 31, 35, and 36 are GRANTED. “[C]ourts have taken judicial notice of the existence and recordation of real property records, including deeds of trust, when the authenticity of the documents is not challenged.” (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264, disapproved of on separate grounds by Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919.) “Judicial notice may be taken of the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Linda Vista Village San Diego Homeowners Assn., Inc. v. Tecolote Investors, LLC (2015) 234 Cal.App.4th 166, 184.)

Plaintiff’s remaining RJNs are not material to the motion.

            Defendant’s Objections to the Plaintiff’s RJN are OVERRULED.

REASONING

            “A plaintiff ...has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc. § 437c, subd. (p)(1).)  

A moving Plaintiff or Cross-Complainant does not bear the burden of disproving a defendant’s affirmative defenses or cross-claims to succeed on a motion for summary judgment. (See Oldcastle Precast, Inc. v. Lumbermens Mut. Cas. Co. (2009) 170 Cal.App. 4th 554, 564 [“Plaintiffs initial burden of proof in moving for summary judgment, however, did not include disproving any affirmative defenses asserted by defendants”].)

            “[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’ [Citation.]” (Behnke v. State Farm General Ins. Co. (2011) 196 Cal.App.4th 1443, 1463; see also Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1153–1154.) “A plaintiff moving for summary judgment establishes the absence of a defense to a cause of action by proving ‘each element of the cause of action entitling the party to judgment on that cause of action.’ [Citation.] The plaintiff need not, however, disprove any affirmative defenses alleged by the defendant. [Citation.] Once the plaintiff's burden is met, the burden of proof 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.’ [Citation.] In meeting this burden, the defendant must present ‘specific facts showing’ the existence of the triable issue of material fact.” (City of Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1081.)  “The court's assessment of whether the moving party has carried its burden—and therefore caused a shift—occurs before the court's evaluation of the opposing party's papers.  Therefore, the burden on the motion does not initially shift as a result of what is, or is not, contained in the opposing papers.” (Mosley v. Pacific Specialty Insurance Company (2020) 49 Cal.App.5th 417, 434–435 [landlord’s failure to address issue of whether they were aware of their tenant’s marijuana growing operation was not grounds to grant summary judgment where moving party failed to satisfy its initial burden as to the issue); Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086-1087 [court cannot grant summary judgment based merely on lack of opposition; court must first determine if the moving party has satisfied its burden].)  

            In addition, the evidence and affidavits of the moving party are construed strictly, while those of the opponent are liberally read. (Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 100. “All doubts as to the propriety of granting the motion (whether there is any issue of material fact [Code of Civil Procedure] § 437c) are to be resolved in favor of the party opposing the motion (i.e., a denial of summary judgment).” (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.)

“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 section 437c.” (KB Salt Lake III, supra, 95 Cal.App.5th at p. 1045.)

In Unlawful Detainer proceedings “[a] motion for summary judgment may be made at any time after the answer is filed upon giving five days notice. Summary judgment shall be granted or denied on the same basis as a motion under Section 437c.” (Code Civ. Proc., § 1170.7.)

I.  Unlawful detainer pursuant to CCP §1161a(b)(3) 

A. Elements of unlawful detainer under CCP §1161a(b)(3)  

“In any of the following cases, 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 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.”  (CCP §1161a(b)(3).) 

Under CCP §1161a(b)(3), three conditions must be satisfied as prerequisites to filing a UD thereunder:  (1) property that has been sold in accordance with Civil Code §2924; (2) pursuant to a power of sale contained in a deed of trust executed by the holdover possessor, or a person under who such person claims; and (3) the title under the sale has been duly perfected.  (See Dr. Leevil, LLC v. Westlake Health Care Center (2018) 6 Cal.5^th 474, 479.)  Duly perfected title requires that title be recorded, and title must be perfected prior to service of a 3-day notice under CCP §1161a(b)(3).  (Ibid. [purchaser who served 3-day notice per CCP §1161a(b)(3) prior to recording title failed to satisfy preconditions of CCP §1161a(b)(3) and was not entitled to UD judgment].) 

“[T]he subsequent purchaser must prove that the statutory requirements have been satisfied, i.e., that the sale was conducted in accordance with section 2924 of the Civil Code and that title under such sale was duly perfected.” (Stephens, Partain & Cunningham v. Hollis (1987) 196 Cal.App.3d 948, 953.) “[I]n this context, perfection of title requires that the instrument of conveyance (the trustee's deed) be recorded pursuant to Government Code section 27280.” (Dr. Leevil, LLC v. Westlake Health Care Center (2018) 6 Cal.5th 474, 479; see also Gov. Code, § 27280.)

B.  Scope of unlawful detainer proceeding under CCP § 1161a(b)(3) 

A “judgment in unlawful detainer usually has very limited res judicata effect and will not prevent one who is dispossessed from bringing a subsequent action to resolve questions of title, [citation,] or to adjudicate other legal and equitable claims between the parties. [Citations.]  A qualified exception to the rule that title cannot be tried in unlawful detainer is contained in Code of Civil Procedure section 1161a, which extends the summary eviction remedy beyond the conventional landlord-tenant relationship to include certain purchasers of property such as Hudgins.  Section 1161a provides for a narrow and sharply focused examination of title. To establish that he is a proper plaintiff, one who has purchased property at a trustee's sale and seeks to evict the occupant in possession must show that he acquired the property at a regularly conducted sale and thereafter ‘duly perfected’ his title. [Citation.] Thus, we have declared that to this limited extent, as provided by the statute, title may be litigated in such a proceeding.”  (Vella v. Hudgins (1977) 20 Cal.3d 251, 255.)

            Thus, in an unlawful detainer action pursuant to CCP §1161a(b)(3), a “narrow and sharply focused examination of title” is permitted.  (Ibid.)  The narrow and sharply focused examination of title includes allegations of technical irregularity in a trustee’s sale.  (Id. at pp. 256 and 258.)  However, activities not directly connected to the conduct of the sale is “much less clear.”  (Id. at p. 256.)   

            “[B]road question of title could not be raised and litigated by cross-complaint or affirmative defense,” in a unlawful detainer action pursuant to CCP § 1161a(b)(3).” (Cheney v. Trauzettel (1937) 9 Cal.2d 158, 159.) “Matters affecting the validity of the trust deed or primary obligation itself, or other basic defects in the plaintiff's title, are neither properly raised in this summary proceeding for possession, nor are they concluded by the judgment.” (Ibid.)

II.  Plaintiff satisfies its burden as moving party 

           
            As the moving party on summary judgment, Plaintiff Kwala, LLC (“Kwala”) was required to establish all three preconditions to service of a 3-day notice under CCP §1161a(b)(3), in addition to proper service of the 3-day notice. Kwala establishes the following:

(1) A proper trustee’s sale in accordance with CC §2924 pursuant to a power of sale based on the evidence presented and the rebuttable presumption of a properly noticed sale under CC §2924(c). (see Dicecca Decl., ¶¶ 9, 1–12, 25, 29, Ex. 5, 7, 8, 22; Klein Decl., ¶ 4; Ince Decl., ¶ 4; Dutcher Decl., ¶ 5, Ex. B; RJN No, 6, 8, 9, 27, 36.)

(2) Duly perfected title by delivery and recordation. (See Ince Decl., ¶ 5; Dicecca Decl. ¶ 29, Exh. 25; RJN No. 35.); and

(3) Service of a 3-day notice to quit after a proper trustee’s sale under CC §2924 and due perfection of title. (See Macario Decl., ¶¶ 4–5, Ex. E–G; Klein Decl. ¶ 7, Ex. 2; Dicecca Decl. ¶¶ 37-39, Exh. 33 [PP’s Resp. to RFA, Set 1, Nos. 19–21, 26], Exh. 34 [SW’s Resp. to RFA, Set 1, Nos.  18–20, 25], Exh. 35 [RW’s Resp. to RFA, Set 1, Nos. 18–20, 25], Ex. 36 [PP’s Resp. to FRG-UD, Set 1, No. 72.3], Exh. 37 [SW’s Resp. to FRG-UD, Set 1, No. 72.3] & Exh. 38 [RW’s Resp. to FRG-UD, Set 1, No. 72.3].)

            Kwala establishes the “Notice to Quit required Pacific and the Weingartens to vacate the Property within three days of service, but Defendants did not vacate the Property within that time and continue to occupy the Property.” (Dicecca Decl. ¶¶ 37-39, Exh. 33 [PP’s Resp. to RFA, Set 1, No. 20-21], Exh. 34 [SW’s Resp. to RFA, Set 1, Nos. 19-20] & Exh. 35 [RW’s Resp. to RFA, Set 1, Nos. 19-20].)

            Kwala establishes that they filed the instant action on 5-28-24, more than three days after the service of the notice to quit on 5-21-24. (Ibid.; see also 5-28-24 Complaint.)

            Kwala has therefore shown that Kwala was the assignee under the Deed of Trust on 4-21-22 (RJN No. 6; Dicecca Decl., Ex. 5.) Kwala has shown that a proper Trustees Deed Upon sale which sets forth compliance with all requirements of law. (RJN, No. 36; Dicecca Decl. ¶ 29, Exh. 25.) Kwala establishes they served a three-day notice to occupants to vacate the premises by personal service on Shlomy Weingarten and by posting and mailing the notice. (Macario Decl. ¶¶ 4-5, Exhs. E-G; Klein Decl. ¶ 7, Exh. 2.) Kwala shows that on 10-3-22 a Notice of Default and Election to Sell under Deed of Trust (“NOD”) based on the 1^st Deed of Trust were recorded on the Property. (RJN No. 9; Dicecca Decl. ¶ 12, Exh. 8)

            Thus, Kwala satisfies its burden as moving party to submit admissible evidence of each element of an unlawful detainer cause of action pursuant to CCP § 1161a(b)(3).

III.  Defendant fails to raise triable issue of material fact as to the Unlawful Detainer Action 

            Defendants Pacific Panorama, LLC (“Panorama”), Shlomy Weingarten (“Shlomy”), and Revital Weingarten (“Revital”) (collectively “Defendants”) argue there are triable issues of fact because Kwala allegedly entered into an agreement with Shlomy, “years before the purported foreclosure,” to maintain the property in exchange for his residency on the property. (Oppo., p. 6; (Tiomkin Decl, ¶¶ 3-5, Exhibits A-C.) Defendants point to a 6-30-14 agreement between Shlomy and Kwala purporting to give Shlomy the right to occupy the Property, however, Shlomy declares that this agreement was part of a plan between Panorama and Kwala where Kwala was to “invest in the development and sell the property for a profit after paying off the encumbrances.” (Shlomy Decl., ¶ 5.). 

Shlomy does not provide any evidence that Kwala owned, or was an agent for the owner, of the Property.  Shlomy does mot provide any evidence that Kwala had the right or authority grant any “occupancy” interest in the property to Shlomy.  Nor does Shlomy provide any evidence any “plan” between Panorama and Kwala was ever finalized. Additionally, Shlomy does not provide any purchase agreement, grant deed, or any other document which would prove that Kwala was  the owner of the property in 2014 when the alleged occupancy agreement was made. (Ripani v. Liberty Loan Corp. (1979) 95 Cal.App.3d 603, 609 [“Civil Code section 1624, subdivision (4), provides that a lease for a period longer than one year is invalid unless the lease, or a note or memorandum thereof, is in writing and subscribed by the party to be charged or his agent, and if by his agent, the lease is invalid unless the agent's authority is in writing and subscribed by the party to be charged”].)

Without evidence provided that Kwala could legally enter into an occupancy agreement with Shlomy on 6-30-14 as an owner, or agent for the owner, of the property, Shlomy has not met his burden to show that there are triable issues of fact as to an existing lease agreement between Kwala and Shlomy.

Defendants argue there are procedural defects within the foreclosure process “such as a failure to provide a Single Point of Contact (SPOC) as required by Civ Code § 2923.7 and lack of proper notification under Civ. Code § 2923.55.” (Oppo., p. 10.) However, Defendants do not point to any competent evidence in the attached declarations to support this argument.  Thus, Defendants provide no evidence to show a triable issue of fact remains regarding the validity of the foreclosure sale.

Kwala’s Motion for Summary Judgment is GRANTED.  Kawla is to submit the proposed judgment of possession.