Judge Robert C. Longstreth, Case Number: 37-2022-00039599-CU-OR-CTL, Date: 2024-06-04 Tentative Ruling

Judge: Robert C. Longstreth, Case: 37-2022-00039599-CU-OR-CTL, Date: 2024-06-04 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 03, 2024

06/04/2024 02:00:00 PM C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited Other Real Property Summary Judgment / Summary Adjudication (Civil) 37-2022-00039599-CU-OR-CTL VELASCO TELLO VS ENCORE AMERICAN INVESTMENTS INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants Encore American Investments, Inc. and FCI Lender Services, Inc.'s Motion for Summary Judgment (ROA 45) is GRANTED.

The court first concludes this action is barred by res judicata because the issue of title in favor of Defendant Encore American Investments, Inc. ('Encore') was necessarily decided in the prior unlawful detainer action brought by Encore against Plaintiff Gilberto Velasco Tello, his wife Magda Eva Juarez, and Cynthia Morales.

Res judicata 'precludes parties or their privities from relitigating a cause of action that has been finally determined by a court of competent jurisdiction.' (Rice v. Crow (2000) 81 Cal.App.4th 725, 734 (quotation marks and italics omitted).) Further, '[a]ny issue necessarily decided in such litigation is conclusively determined as to the parties or their privities if it is involved in a subsequent lawsuit as to the parties on a different cause of action.' (Ibid., quotation marks omitted.) 'A qualified exception to the rule that title cannot be tried in unlawful detainer is contained in Code of Civil Procedure section 1161a,' which 'provides for a narrow and sharply focused examination of title.' (Vella v. Hudgins (1977) 20 Cal.3d 251, 255.) This is because the purchaser under such situation must demonstrate perfected title in order to evict the former owner and occupant. (Ibid.; see also Code Civ.

Proc. � 1161a(b).) 'The Supreme Court in Vella acknowledged the decisional law holding that 'subsequent fraud or quiet title suits founded upon allegations of irregularity in a trustee's sale are barred by the prior unlawful detainer judgment.' [Citation.] Vella explained that the propriety of applying collateral estoppel to an underlying unlawful detainer judgment brought pursuant to section 1161a became doubtful only if the claims in the second action involved activities or alleged wrongdoing not 'directly connected' with the conduct of the foreclosure sale. [Citation.]' (Malkoskie v. Option One Mortgage Corp. (2010) 188 Cal.App.4th 968, 974.) In the unlawful detainer action, Encore brought a motion for summary judgment. (Def. RJN at Exh. I.) The defendants in that action, including Plaintiff Tello, filed a lengthy written opposition before hearing asserting numerous arguments. (Def. RJN at Exh. J.) Specifically, they asserted among other arguments that the sale of the property was void because Encore lacked the power to sell it; that the unlawful detainer action could not address issues of title and must be dismissed or stayed pending the outcome of this separate civil action; and that Encore failed to provide evidence title had been perfected.

(Ibid.) After hearing the motion, the court took the matter under submission and issued its ruling a week Calendar No.: Event ID: TENTATIVE RULINGS

3135801 10 CASE NUMBER: CASE TITLE: VELASCO TELLO VS ENCORE AMERICAN INVESTMENTS INC 37-2022-00039599-CU-OR-CTL later. (Def. RJN at Exh. K.) The court held that Encore had title to the property, that Encore had conducted a proper foreclosure sale, that Encore had the power to foreclose pursuant to its deed of trust, and that Encore conducted the sale in accordance with Civil Code section 2924. (Ibid.) Judgment was then entered in favor of Encore. (Def. RJN at Exh. L.) Plaintiff had an adequate opportunity to address the issue of title and make any arguments he wished related to title. Indeed, in the opposition to the summary judgment motion, Tello and the other defendants in the unlawful detainer action acknowledged that they 'can and must challenge the validity of the foreclosure sale.' (Def. RJN, Exh. J, p. 2; see Bliss v. Security-First Nat. Bank of Los Angeles (1947) 81 Cal.App.2d 50, 58, 'title to the extent required by section 1161a not only may but must be tried.') The court necessarily had to determine Encore had duly perfected title, and did make this determination, as part of its ruling granting summary judgment in favor of Encore in the unlawful detainer action. That determination is entirely dispositive of Plaintiff's claims in this action against both Encore and FCI, who stands in privity with Encore as the mortgage servicer.

Plaintiff fails to raise any material triable issues in opposition. Plaintiff claims that his counsel in the unlawful detainer action 'specifically told the court that he could not argue title issues in the unlawful detainer as those are the subject of another suit.' (Opp. at 6:14-15.) This claim is belied by Plaintiff's written opposition to the summary judgment motion in the unlawful detainer action, as quoted above.

(Def. RJN at Exh. J.) In any event, the court was not persuaded by any such assertion and rejected Tello's and the other unlawful detainer defendants' request that the unlawful detainer action be stayed while this civil action was litigated. Plaintiff advanced arguments related to title in the unlawful detainer action which the court rejected in ultimately concluding that title was duly perfected by Encore.

As an additional grounds for summary judgment, the court concludes Plaintiff lacks standing to bring his claims in this case. Plaintiff relies on Family Code section 1102 as the basis of his claims in this lawsuit.

However, it is undisputed that Plaintiff quitclaimed whatever interest he may have had in the subject property to his wife, Juarez, in 2017. (Pltf. Resp. Sep. Stmt. at �� 1-3.) The form of the quitclaim deed was sufficient to constitute a transmutation to Juarez's separate property, and no attempt was ever made to change this characterization. Nor has plaintiff demonstrated that the community ever later acquired an interest through mortgage payments or the like, since there is no showing that the value of these payments exceeded the value the community received by living in the home, or that any right to reimbursement constitutes in interest in the property for purposes of Family Code section 1102.

Therefore, Family Code section 1102 does not apply. By the time Juarez obtained a loan from Encore in 2018, secured by the subject property, Plaintiff no longer held any interest in the subject property. (Id. at �� 7-8.) In any event, even if the court were to conclude Plaintiff had standing, summary judgment is appropriate because the claims are time-barred. Family Code section 1102 provides that '[a]n action to avoid an instrument mentioned in this section, affecting any property standing of record in the name of either spouse alone, executed by the spouse alone, shall not be commenced after the expiration of one year from the filing for record of that instrument in the recorder's office in the county in which the land is situated.' (Fam. Code � 1102(d).) Here, the 2018 deed of trust was recorded on May 17, 2018. (Pltf.

Resp. Sep. Stmt. � 8; Def. RJN at Exh. C.) Thus, Plaintiff had until May 17, 2019 to bring this action.

The Complaint was not filed until October 3, 2022. Plaintiff's argument that the transfer took place without his knowledge or consent is unavailing. Plaintiff admits he knew of the deed of trust by 2020.

(Tello Decl. at � 14.) The subject property was also sold at foreclosure on April 13, 2020. (Def. Sep.

Stmt. at � 18.) Thus, even assuming Plaintiff did not discover the relevant facts until sometime in 2020, his Complaint is still untimely.

Defendants' requests for judicial notice (ROA 46) are granted. (Evid. Code � 452(c), (d).) The court declines to rule on Defendants' evidentiary objections, as the evidence to which Defendants Calendar No.: Event ID: TENTATIVE RULINGS

3135801 10 CASE NUMBER: CASE TITLE: VELASCO TELLO VS ENCORE AMERICAN INVESTMENTS INC 37-2022-00039599-CU-OR-CTL objected was not material to the court's disposition of the motion. (Code Civ. Proc. � 437c(q).) Defendants are to submit a proposed Judgment within five (5) days.

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3135801 10