Judge Mark A. Young, Case Number: 24SMCV03436, Date: 2025-01-07 Tentative Ruling

Judge: Mark A. Young, Case: 24SMCV03436, Date: 2025-01-07 Tentative Ruling

Case Number: 24SMCV03436 Hearing Date: January 7, 2025 Dept: M

CASE NO.: 24SMCV03436

MOTION: Motion for Summary Judgment/Adjudication

HEARING DATE: 1/7/2024

Legal Standard

A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (CCP, § 437c(a).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in¿Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.”¿(CCP,¿§ 437c(f)(1).)¿If a party seeks summary adjudication as an alternative to a request for summary judgment, the request must be clearly made in the notice of the motion. (Gonzales v. Superior Court¿(1987) 189 Cal.App.3d 1542, 1544.)¿ “[A] party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to” subdivision (t). (CCP,¿§ 437c(t).)¿

To prevail, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.¿(CCP, §¿437c(c).)¿The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, “[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment…” (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if adjudication is otherwise proper the motion “may not be denied on grounds of credibility,” except when¿a material fact is the witness’s¿state of mind and “that fact is sought to be established solely by the [witness’s] affirmation thereof.” (CCP, § 437c(e).)¿

Once the moving party has met their burden, the burden shifts to the opposing party “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (CCP § 437c(p)(1).) “[T]here¿is no obligation on the opposing party... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element... necessary to sustain a judgment in his favor.”¿(Consumer Cause, Inc. v.¿SmileCare¿(2001) 91 Cal.App.4th 454, 468.)¿

“The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to¿frame¿the outer measure of materiality in a summary judgment proceeding.” (Hutton v. Fidelity National Title Co.¿(2013) 213 Cal.App.4th 486, 493, quotations and citations omitted.) “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability¿as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Ibid.)¿

EVIDENTIARY ISSUES

Plaintiff’s objections to the Yakobi declaration are SUSTAINED as to nos. 1 [legal conclusion], 2 [relevance], 3 [legal conclusion, foundation], and 4 [legal conclusion].

Plaintiff’s objections to the Zadeh declaration are OVERRULED. (The statements are relevant to a continuance request.)

LASD’s request for judicial notice is GRANTED. Yakobi’s request for judicial notice is GRANTED. (See Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549 [“The court may take judicial notice of recorded deeds”].)

REQUEST FOR A CONTINUANCE

Defendant asserts that there has not been discovery in this action and requests a continuance to secure certain discovery. To justify a continuance under Code of Civil Procedure § 473c(h), the party opposing summary judgment must show: (1) the facts to be obtained are essential to opposing the motion, (2) there is reason to believe such facts may exist, and (3) the reasons why additional time is needed to obtain these facts, (Desaigoudar v. Meyercord, (2003) 108 Cal.App.4th 173.)

Defendant notes that his answer was not filed until September 16, 2024. (Zadeh Decl., ¶ 2.) Plaintiff timely filed the motion for summary judgment on September 25, 2024, before any meaningful discovery had commenced. (Id.) Defendant served discovery requests on Plaintiff on November 6, 2024, with responses originally due December 11, 2024. (Id., ¶¶ 3-4.) Pursuant to Plaintiff’s counsel’s request, responses were extended to December 19, 2024. (Id.) As a result, no discovery responses have been provided to Defendant prior to the filing of their opposition. (Id. at ¶ 4.) Defendant does not explain what discovery would be obtained from Plaintiff through the served discovery.

Defendant desires discovery of the applicable CC&Rs, which they contend might determine the priority interests in this case. Defendant contends that it is possible that the HOA’s judgment lien “relates back” to the CC&Rs, potentially making it a senior priority interest. This request alone would not justify a continuance. Defendant does not explain why he could not obtain a copy of the CC&Rs – a publicly available recorded document accessible to the parties since the inception of the case (and before) – and perform his analysis in the 83 days between the filing of the MSJ and the Opposition. In any event, Plaintiff persuasively shows why any “relation back” to the CC&Rs would fail to create a dispute of material fact precluding summary judgment. (Diamond Heights Village Assn., Inc. v. Financial Freedom Senior Funding Corp. (2011) 196 Cal.App.4th 290, 301-302 [holding hat a Deed of Trust recorded after the HOA’s assessment liens had priority because the HOA had already foreclosed upon those assessment liens when it reduced them to judgment].) Diamond Heights explained:

Once a judgment is obtained, the judgment creditor may create a judgment lien by recording an abstract of judgment or may choose to levy execution, thereby creating an execution lien. (Code Civ. Proc., §§ 674, 697.710; Kahn v. Berman (1988) 198 Cal.App.3d 1499, 1507, fn. 7, 244 Cal.Rptr. 575.) An execution lien does not arise when a writ of execution is issued by the court, but rather when the levying officer levies the property (constructively seizes it) by recording a copy of the writ of execution and notice of levy. (Code Civ. Proc., §§ 697.710, 700.010, 700.015, subd. (a); Kahn, supra, at p. 1508, 244 Cal.Rptr. 575; see generally 8 Witkin, Cal. Procedure (5th ed. 2008) Enforcement of Judgment § 99, p. 143.) The record here does not show that a levy ever occurred to create an execution lien, and the Association makes no claim to having an execution lien. The Association relies exclusively upon its assessment liens, despite having already foreclosed those liens in a 2002 judgment. The claim is unavailing. Those liens were foreclosed and the debts they secured were merged into the judgment. The Association's remedy was to record the judgment [prior to the Financial Freedom mortgage], in which case the judgment lien would have given the Association priority over Financial Freedom. (Code Civ. Proc., § 697.310 et seq.)

Defendant also requested discovery on the foreclosure process, including proofs of service the notices were sent in accordance with nonjudicial foreclosure procedures. Defendant also wants to subpoena Leslie Vinson, the original owner, to confirm that she received the nonjudicial foreclosure notices. Again, Defendant has not shown any reasonable or diligent efforts to secure such evidence before the hearing on this matter.

Analysis

Plaintiff Robert Box (“Plaintiff”) moves for summary judgment, or alternatively, summary adjudication as to each cause of action, against Defendants David Yakobi, Los Angeles Sheriff’s Department, Casa Palmero Homeowners Association, and All Persons Unknown Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in the Complaint Adverse to Plaintiff’s Title, or Any Cloud Upon Plaintiff’s Title Thereto. The complaint alleges four causes of action for 1) set aside sheriff’s sale; 2) quiet title; 3) cancellation of instrument; and 4) declaratory relief.

To prevail in an action to quiet title, the plaintiff must prove title superior to that of defendants. (Gerhard v. Stephens (1968) 68 Cal.2d 864, 918.) “An action to quiet title is akin to an action for declaratory relief in that the plaintiff seeks a judgment declaring his rights in relation to a piece of property.” (Ciara v. Offner (2005) 126 Cal.App.4th 12, 24.) The California quiet title statutes obligate a court hearing a quiet title claim to examine “evidence of plaintiff’s title” along with “such evidence as may be offered respecting the claims of any of the defendants,” in order to determine whether title should be quieted in the plaintiff’s favor. (Code Civ. Proc., § 764.010.)

Elements of a claim for cancellation are: (1) reasonable apprehension that the instrument left standing might cause serious injury to the plaintiff; (2) the instrument is valid on its face; (3) the instrument is void or voidable; (4) the instrument was in existence or under the defendant’s possession and control when the action was filed; and (5) if the interest is voidable rather than void, that the plaintiff acted promptly to rescind. (Civ. Code §§ 3412, 3413; Hironymous v. Hiatt (1921) 52 Cal.App. 727, 731.)

CCP section 1060 provides that a person may bring an action for declaratory relief if he or she “desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property . . ..”

Verified Allegations

The Verified Complaint alleges that the real property that is the subject of this lawsuit is commonly known as 1750 Casa Palmero, #232, Los Angeles, CA 90046 (“Subject Property”). (Compl., ¶ 3.) On June 1, 2007, Vinson executed a deed of trust, subsequently recorded in the official records of Los Angeles County on June 7, 2007, as Document Number 20071381098 (“DOT”). (¶ 15.) On May 7, 2012, an assignment of the DOT was recorded in the official records of Los Angeles County on June 7, 2007, as Document Number 20121478972 memorializing the assignment of the beneficial interest in the DOT to Citibank, N.A., as Trustee for Structured Asset Mortgage Investments II Trust 2007-AR6 Mortgage Pass-Through Certificates Series 2007-AR6. (¶ 16.) On May 9, 2023, a substitution of trustee was recorded in the official records of Los Angeles County as Document Number 20230300006, duly substituting the trustee under the DOT as Idea Law Group, LLC. (¶ 17.)

On August 2, 2023, a Notice of Levy was recorded in the official records of Los Angeles County as Document Number 20230511290 based on a purported judgment obtained by the HOA in the estimated amount of $7,000.00. (¶ 18.) On March 14, 2024, the Subject Property was sold to Plaintiff through a duly noticed nonjudicial foreclosure sale, thereafter recorded on April 1, 2024, as Document Number 20240209582. (¶ 19.)

On April 17, 2024, the Subject Property was sold at a sheriff’s sale performed by the Sheriff to satisfy the HOA’s purported and then-extinguished judgment lien. (¶ 21.) The Sheriff issued a Sheriff’s Deed to Yakobi on May 20, 2024, which was thereafter recorded on May 30, 2024. (Id.)

Plaintiff alleges that the foreclosure sale of the DOT extinguished all junior encumbrances, as well as Vinson’s former title, which would include any purported judgment lien of the HOA, as a matter of law. (¶20.) Due to the foreclosure of the DOT that extinguished the purported judgment lien of the HOA, if any, the resulting sheriff’s sale performed by the

Sheriff was void and of no effect. (¶ 23.) Since the foreclosure of the DOT, Plaintiff has been the sole legal titleholder of the Subject Property by way of its trustee’s deed upon sale. (¶ 24.) The sheriff’s sale conducted by the Sheriff was without authority and voiddue to the extinguishment of any purported judgment lien and that Vinson no longer owned the Subject Property. (¶ 25.) Based on the foreclosure of the senior DOT, the HOA’s purported judgment lien was extinguished, and thus, the resulting sheriff’s sale and sheriff’s deed issued by the Sheriff to Yakobi are void and should be set aside. (¶¶ 26-30.)

Plaintiff’s Undisputed Material Facts

Plaintiff provides additional evidence consistent with the verified allegations.

On August 31, 2023, the Foreclosure Trustee caused a Notice of Default and Election to Sell Under Deed of Trust (the “NOD”) to be recorded in the Official Records of Los Angeles County as Instrument Number 20230581376. (UMF 4.) The NOD provided that, as of August 29, 2023, the Borrower was in default in the amount of $40,048.24. (Ibid.) On February 13, 2024, the Foreclosure Trustee recorded a Notice of Trustee’s Sale indicating that the nonjudicial foreclosure sale of the Property would be held on March 14, 2024. (UMF 5.) The nonjudicial foreclosure sale of the Property was held on March 14, 2024. (UMF 6.) At the time of sale, the amount of unpaid debt was $425,000. (UMF 7.) Plaintiff purchased the Property at the nonjudicial foreclosure sale for $425,001, and the Trustee’s Deed Upon Sale (“TDUS”) perfecting Plaintiff’s title to the Property was recorded on April 1, 2024. (UMF Nos. 7-8.) As such, Plaintiff became the record owner of the Property on April 1, 2024, after the properly conducted non-judicial foreclosure sale. (UMF 6-8.)

Parallel with this nonjudicial foreclosure process, Defendants sought their own Sheriff’s sale. On January 23, 2023, Defendant Casa Palmero Homeowners Association (“HOA”), filed a limited civil action (the “HOA Action”) against the Borrower to collect delinquent homeowners’ association fees owed to the HOA. (UMF 9.) Subsequently, on March 28, 2023, the HOA recorded a Notice of Delinquent Assessment and Claim of Lien against the Property. (UMF

10.) On June 9, 2023, the Court in the HOA Action entered judgment in favor of the

HOA. (UMF 11.) On June 13, 2023, the Court in the HOA Action issued a notice of

levy under writ of execution (money judgment). (UMF 12.) On August 2, 2023, the Sheriff

recorded the Notice of Levy in the Official Records of Los Angeles County as Instrument

No. 20230511290. (UMF 13.) The Property was sold at the Sheriff’s Sale on April 17, 2024, to satisfy the HOA’s purported lien recorded on August 2, 2023. (UMF 14.) On May 20, 2024, the Sheriff issued a Sheriff’s Deed to Yakobi. (UMF 15. ) On May 30, 2024, the Sheriff’s Deed was recorded in the Official Records of Los Angeles County as Document No. 20240351121. (UMF 16.)

Plaintiff explains that the HOA’s Execution Lien attached to the Property on August 2,

2023, did not impair or prevent the enforcement of the security interest against the Property. The beneficiary of the DOT had the right to enforce its security interest through power of sale notwithstanding the existence of the execution lien or levy. CCP section 701.040(a) states:

(a) Except as otherwise ordered by the court upon a determination that the judgment creditor's lien has priority over the security interest, if property levied upon is subject to a security interest that attached prior to levy, the property or obligation is subject to enforcement of the security interest without regard to the levy unless the property is in the custody of the levying officer; but, if the execution lien has priority over the security interest, the secured party is liable to the judgment creditor for any proceeds received by the secured party from the property to the extent of the execution lien.

(Emphasis added.)

As such, a court must determine that a judgment creditor’s lien has priority over a security interest that attached prior to levy, or the security interest will have priority over the lien. The parties do not cite any evidence on the record which would show such court determination. Therefore, the trustee of the DOT had the right to enforce the security interest without regard to Defendants’ levy.

Thus, the undisputed facts demonstrate that the DOT security interest had priority, since it was noticed in 2007 and Defendants’ interest was noticed in 2023. (See Thaler v. Household Finance Corp. (2000) 80 Cal.App.4th 1093, 1099 [“California follows the ‘first in time, first in right’ system of lien priorities.”].) As such, when Plaintiff purchased the Property at the nonjudicial foreclosure sale on March 14, 2024, the HOA’s Execution Lien – a junior security interest – was extinguished. Plaintiff demonstrates that the sheriff’s sale was void because the officer had no authority to sell on the extinguished lien, and could not pass title to Defendant. (See Ram v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1, 11 [“Similarly, a sale is rendered void when the foreclosure sale is conducted by an entity that lacks authority to do so.”]; see Van Bogaert v. Avery (1969) 271 Cal.App.2d 492, 496 [noting that an unauthorized judicial sale is “wholly void because the officer had no authority to sell”].)

In opposition, Defendants cite no disputes of material fact. The LASD disclaims any interest and submits no evidence which disputes the above material facts. Yakobi only submits legal contentions which do not amount to disputes of material fact. For instance, Yakobi contends that Plaintiff has failed to meet its initial burden because Plaintiff does not address the assessment lien's “priority” in relation to the Property’s CC&Rs. As discussed above, Plaintiff’s priority over the CC&Rs would be irrelevant. Moreover, Plaintiff has met his initial burden on summary judgment. Plaintiff does not need to prove that the nonjudicial foreclosure complied with statutory notice procedures (Civ. Code § 2924b.) Indeed, Defendants submit no evidence to dispute of fact which could contest the presumption that a foreclosure sale has been conducted regularly and fairly. (Bank of America v. La Jolla Group II (2005) 129 Cal.App.4th 706, 713.) Otherwise, Defendants only attack the immaterial fact that the Sheriffs caused the Sheriff’s deed to be recorded, as opposed to Yakobi. (UMF 16.)

Lastly, Defendants contend that the sale is “absolute” under CCP section 701.680(a). Far from absolute, section 701.680(a) states “Except as provided in paragraph (1) of subdivision (c), a sale of property pursuant to this article is absolute and shall not be set aside for any reason.” (Emphasis added.) Subsections (b)-(d) discusses the process by which Sheriffs sales may be set aside under appropriate circumstances, including if “the sale was improper because of irregularities in the proceedings, because the property sold was not subject to execution, or for any other reason”. A void interest would certainly be a reason to set aside a sheriff’s sale pursuant to section 701.680.

Plaintiff has shown entitlement to judgment as to each cause of action. Defendants, in turn, do not raise any disputes of material fact. Accordingly, the motion is GRANTED.