Judge Ronald F. Frank, Case Number: 24TRCV02115, Date: 2024-11-05 Tentative Ruling

Judge: Ronald F. Frank, Case: 24TRCV02115, Date: 2024-11-05 Tentative Ruling

Case Number: 24TRCV02115 Hearing Date: November 5, 2024 Dept: 8

Tentative Ruling¿

¿¿

HEARING DATE: November 5, 2024

¿¿

CASE NUMBER: 24TRCV02115

¿¿¿

CASE NAME: Homebridge Management, Inc. v. Angela L. Cooper, et al.

¿¿

MOVING PARTY: Plaintiff, Homebridge Management, Inc.

RESPONDING PARTY: Defendants, Jabril Spencer

¿¿

TRIAL DATE: Not Set.

¿¿

MOTION:¿ (1) Plaintiff’s Motion for Summary Judgment

(2) CMC

Tentative Rulings: (1) DENIED. Triable issue of fact as to service of the 3/30/90 Day Notice.

(2) The Court will discuss trial setting

I. BACKGROUND¿¿

¿¿

A. Factual¿¿

On June 25, 2024, Plaintiff, Homebridge Management, Inc. (“Plaintiff”) filed an Unlawful Detainer Complaint against Defendants, Angela L. Cooper, all unknown occupants, and DOES 1 through 10. Plaintiff alleges that on March 12, 2024, it acquired ownership of 316 Stepney Street, Unit #D, Inglewood, CA 90302 (“Subject Property”), at a nonjudicial foreclosure sale duly noticed and conducted in accordance with California Civil Code section 2924, and Plaintiff’s title was perfected by the recordation of a Trustee’s Deed Upon Sale in Plaintiff’s favor. (Complaint, ¶¶ 1, 9.) Plaintiff indicates that it is informed and believes that Defendants are currently in possession of the Subject Property, without any right to do so. (Complain, ¶ 10.)

On May 20, 2024, Plaintiff asserts that it caused to be served upon Defendants (by registered process server) a written notice requiring Defendants to quit/vacate and deliver possession of the Subject Property to Plaintiff. (Complaint, ¶ 11, Exhibit 2 (“Notice to Quit”).) Plaintiff’s complaint alleges that no Defendant is entitled to more than three days notice to quit occupation of the Subject Property. (Complaint, ¶ 12.) However, Plaintiff contends that more than three (3) days have passed since the service of the Notice to Quit, and Defendants have failed and refused to deliver possession of the Subject Property, and continue to do so. (Complaint, ¶ 13.) Plaintiff argues that Defendants continue to be in possession of the Subject Property, willfully and without permission of Plaintiff. (Complaint, ¶ 13.) Lastly, Plaintiff asserts that the reasonable value of the use and occupancy of the Subject Property is a sum not less than $107.28 per day. (Complaint, ¶ 14.)

Now, Plaintiff files a Motion for Summary Judgment on its single cause of action for unlawful detainer on the grounds that it argues: (1) Plaintiff obtained title to the Subject Property through its purchase at a non-judicial foreclosure sale held in compliance with Civil Code section 2924, and title has been duly perfected by Plaintiff; (2) Plaintiff properly served a three-day Notice to Quit on Defendant; and (3) Defendant continues to holdover in possession of the Subject Property, despite the expiration of the time period set forth in the Notice to Quit.

B. Procedural

On October 10, 2024, Plaintiff filed this Motion for Summary Judgment. On November 1, 2024, Defendant, Jabril Spencer filed an opposition brief. To date, no reply brief has been filed.

II. REQUEST FOR JUDICIAL NOTICE

With its moving papers, Plaintiff has filed a Request for Judicial Notice, requesting this court take judicial notice of the following:

1. Exhibit 1 - “Deed of Trust and Request for Notice of Default” recorded on or about August 29, 2007, in the Official Records of Los Angeles County as document number 20072013897;

2. Exhibit 2 - “Substitution of Trustee” recorded on or about March 14, 2023, in the Official Records of Los Angeles County as document number 20230161667;

3. Exhibit 3 - “Notice of Default and Election to Sell Under Deed of Trust” recorded on or about March 14, 2023, in the Official Records of Los Angeles County as document number 20230161668;

4. Exhibit 4 – “Notice of Trustee’s Sale” recorded on or about June 21, 2023, in the Official Records of Los Angeles County as document number 20230404205; and

5. Exhibit 5 - “Trustee’s Deed Upon Sale” recorded on or about May 2, 2024, in the Official Records of Los Angeles County as document number 20240290476.

The court GRANTS Plaintiff’s request and takes judicial notice of the above pursuant to California Evidence Code section 451, subdivision (f), 452, and 453.

III. ANALYSIS¿

A. Legal Standard

In an unlawful detainer proceeding, 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.)

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.4th 826, 843.) Code of Civil Procedure Section 437(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.4th 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.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)¿

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc. § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. ) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”¿ (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)¿

Once the moving party has met that 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.¿To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

In an unlawful detainer action or other action brought under chapter 4 of title 3 of part 3 of the Code of Civil Procedure (commencing with section 1159), notice of a motion for summary judgment must be given in compliance with Code of Civil Procedure sections 1010.6 or 1013 and 1170.7.

B. Discussion

i. Whether Subject Property was Sold in Accordance with Civil Code Section 2924, and Title Has Been Duly Perfected

Code of Civil Procedure section 1161a provides that a plaintiff who qualifies as a bona fide purchaser for value, and who presents a trustee’s deed reciting a proper foreclosure process, earns a presumption of ownership, and that the sale was conducted regularly and fairly. (Melendrez v. D & I Inv. (2005) 127 Cal.App.4th 1238, 1258.) Such a recital creates a rebuttable presumption or, rather, constitutes prima facie evidence of compliance for trustees, but it is conclusive evidence of compliance for bona fide purchasers. (Civ. Code, § 2924, subd. (c).)

Here, Plaintiff presents evidence that it purchased the property at a Trustee’s Sale on March 12, 2024, and submits copy of the Trustee’s Deed Upon Sale it recorded in the Official Records of Los Angeles County dated May 2, 2024. (RJN Exh. 5.) Based on the Trustee’s Deed Upon Sale, there is a statutory presumption under Code of Civil Procedure section 1161a that the foreclosure sale was done in accordance with Civil Code section 2924.

ii. Whether Notice was Proper

Code of Civil Procedure section 1162 states that the notice required to be served by section 1161a may be served by any of the following:

“(1) By delivering a copy to the tenant 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 some person of suitable age and discretion at either place, and sending a copy through the mail addressed to the tenant at his or her place of residence.

(3) If such place of residence and business cannot be ascertained, or 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 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 tenant at the place where the property is situated. Service upon a subtenant may be made in the same manner.”

Moreover, California Evidence Code section 647 states that the “return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.”

Where a three-day notice is served by a registered process server, Evidence Code section 647 applies to establish a presumption of the facts set forth therein. (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1421-1422.)

In this case, Plaintiff submits evidence showing that Defendant, Angela Cooper, and all unknown occupants, tenants, and subtenants, and all occupants in possession of the Subject Property were served with a three-day Notice to Vacate. Specifically, Plaintiff’s include the three-day notice (Declaration of Matthew H. Aguirre (“Aguirre Decl.”), Exhibit 1), as well as the declaration of registered process server, Hector Flores. (Aguirre Decl., Exhibit 2.) The declaration of Hector Flores indicates that on May 20, 2024, he attempted to personally serve the notices on Defendants, Angela L. Cooper, and all unknown occupants, tenants, and subtenants, and all occupants in possession of the premises. However, after this unsuccessful attempt, that same date, Hector Flores served the same Defendants by posting a copy for each tenant in a conspicuous place on the Subject Property and by sending a copy to each Defendant by U.S. Mail. (Aguirre Decl., Exhibit 2.) The notice explicitly states that it is being served pursuant to Code of Civil Procedure sections 1161a and 1161b.

Furthermore, the actual proofs of service filed on July 3, 2024, indicate that Defendants were validly served with the notice on June 29, 2024 via posting and mailing the copies to service made pursuant to Code of Civil Procedure section 415.46 by delivering the copies to Jane Doe, a competent member of the household on June 29, 2024, at 1:46PM, and by posting and by first class mail to all occupants. A proof of service document made by a registered process server is subject to a presumption of the truth of the facts contained therein under Evidence Code, section 647. (See Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1427 [123 Cal.Rptr.3d 816, 822].) The court presumes that the notices were properly served on June 29, 2024.

However, to rebut this presumption, Defendant, Jabril Spencer, in his opposition brief, presents testimony in his own Declaration (“Spencer Decl.”), which states that he went to work on May 20, 2024 (the date the Notice was allegedly served) at 11am and returned home at approximately 8-8:30pm., that there is only one entry door to the Subject Property, and that he did not see the Notice posted on the door or at any other conspicuous place at the Subject Property on that day or any day thereafter (Spencer Decl., ¶ 13.) Additionally, Spencer asserts that he also receives mail at the Subject Property from an outdoor communal mailbox, that he checks the mail every day or two, that he checked the mail at least five times between May 20, 2024 and May 30, 2024, and that he did not receive the Notice in the mail during that time, and that the first time he saw the Notice was when he saw it attached to the complaint. (Spencer Decl., ¶ 14.) While the 3/30/90-day notice is shown by registered process server to have been served by posting and mailing to raise the rebuttable presumption of proper service, the Court cannot evaluate the credibility of Mr. Spencer’s declaration on an MSJ. The trier of fact could find Spencer to be more credible than the process server, and service of the 3/30/90-day notice is an essential element of the Plaintiff’s prima facie case.

iii. Whether Defendants Remain in Possession of the Subject Property

Next, Plaintiff asserts that Defendants remain in possession of the property. Specifically, Defendant Spencer admits such in his Prejudgment Claim of Right to Possession filed July 3, 2023, ¶ 2. Plaintiff, thus, has established its compliance with Code of Civil Procedure section 1161a.

iv. Presumption that Foreclosure Sale was Done in Compliance with Civil Code Section 2924

The presumption of ownership given to a bona fide purchaser for value at a foreclosure sale may only be rebutted by substantial evidence of prejudicial procedural irregularity, and it is the burden of the party challenging the trustee’s sale to prove such irregularity and thereby overcome the presumption of the sale’s regularity. (Id.) This burden is heavy, given that evidence of compliance with Civil Code section 2924 can merely be the trust deed’s recital that all the requirements of Civil Code sections 2924 - 2924.5 have been met. (Civ. Code, § 2924, subd. (c).)

In this case, Plaintiff has established a presumption through the Trustee’s Deed that the foreclosure sale was done regularly and fairly. The burden shifts to Defendant to rebut the presumption that the Property was sold in accordance with Civil Code section 2924. Plaintiff argues that Defendant Spencer does not have standing to challenge the foreclosure sale because he was not the borrower under the foreclosed loan nor was he the former title owner of the Subject Property. “As a general rule only parties with an interest in the secured loan or in the real property security itself have standing to challenge or attempt to set aside a nonjudicial foreclosure sale.” (Banc of America Leasing & Capital, LLC v. 3 Arch Trustee Services, Inc. (2009) 180 Cal.App.4th 1090, 1103.) Plaintiff states that the foreclosed borrower was Angela Cooper, not Defendant Spencer.

Here, Defendant Spencer argues that the Notice of Sale upon which Plaintiff relies states that the sale was to occur on August 3, 2024 (Plaintiff’s RJN, Exhibit 4.) However, Defendant Spencer asserts that the Trustee’s Deed Upon Sale presented by Plaintiff reflects a sale date of March 12, 2024, which is more than ten (10) business days after the noticed sale date. Defendant Spencer contends that as of the date the Notice of Sale was recorded (June 21, 2023), he argues First Horizon knew that Spencer was the administrator of his mother’s estate, because Spencer had verbally informed them of the date of his mother, and because Spencer provided Ms. Cooper’s death certificate, Probate order, and Letters of Administration to First Horizon on January 19, 2023. (Spencer Decl., ¶ 9, Exhibits 1, 2.) Thus, Spencer asserts that as administrator of his mother’s estate, he was a “borrower” for the purposes of Civil Code section 2924, subdivision (a)(5) at least as of January 19, 2023. Thus, Spencer argues that First Horizon was required to provide him with written notice regarding the new sale date and time within five business days of the postponement of the sale originally set on August 3, 2023. Here, Defendant Spencer states that Plaintiff presents no evidence to show that such a notice was provided, and thus, Defendant Spencer asserts that there remains a question as to whether the sale was regularly conducted in compliance with Civil Code section 2924.

Plaintiff asserts that Defendant Spencer has not shown evidence that he is a borrower. Pursuant to Civil Code 2920.5, a borrower, “means any natural person who is a mortgagor or trustor and who is potentially eligible for any federal, state, or proprietary foreclosure prevention alternative program offered by, or through, his or her mortgage servicer. Although Spencer’s declaration shows that a certificate of death was filed on May 22, 2018 and that Letters of Administration were filed December 27, 2022, this does not per se transform Defendant Spencer into the borrower. The Court will allow oral argument as to what grounds Defendant Spencer believes he has standing to challenge the foreclosure sale, based on his communications with the lender and his declaration indicating tender of mortgage payments and acceptance of mortgage payments by the lender.

Defendant Spencer also raises issues of the regularity of the foreclosure sale based on the notice. Pursuant to Civil Code section 2924, subdivision (f), “notice of the sale thereof shall be given by posting a written notice of the time of sale and of the street address and the specific place at the street address where the sale will be held…” (Civ. Code, § 2924, subd. (f).) Here, the Notice of Sale states that the place of the sale is “Behind the fountain located in Civic Center Plaza, 400 Civil Center Plaza, Pomona, CA 91766.” Defendant Spencer argues this description is not a specific place. The Court disagrees.

Lastly, Defendant Spencer asserts that another inconsistency presented in Plaintiff’s evidence appears in the Notice of Default, which references the Deed of Trust but which incorrectly states that the balance of principal and interest came due on August 1, 2022, whereas the Balloon Rider on the Deed itself states that the Balloon Payment actually came due a month later on September 1, 2022. The Court seeks oral argument from Plaintiff regarding the inconsistency of dates described in the analyses above, and whether Spencer’s declaration and his opposition brief raise a triable issue of the regularity of the conduct of the sale.

IV. CONCLUSION

Based on the foregoing, this court tentatively DENIED Plaintiff’s Motion for Summary Judgment.