Judge: Stephen Morgan, Case: 22AVUD00029, Date: 2022-12-07 Tentative Ruling
Case Number: 22AVUD00029 Hearing Date: December 7, 2022 Dept: A14
Background
This is an unlawful detainer (“UD”) action. Plaintiff Federal Home Loan Mortgage Corporation, as trustee for Freddie Mac Seasoned Credit Risk Transfer Trust, Series 2017-2, as owner of the Related Mortgage Loan, its assignees and/or successors, (“Plaintiff”) alleges that it is entitled to possession and is the owner of record of a parcel of real property located at 1720 West Imperial Avenue, Lancaster, CA 93534 (“the Property”). Ownership was obtained via a foreclosure sale held pursuant to the power under the Deed of Trust executed by Defendants Brendem Plong and Mareine Plong (“Defendant” and collectively “Defendants”) or their predecessors. Defendants are the former trustor or holdover occupant of the former trustor.
On January 14, 2022, Plaintiff filed its Complaint alleging one cause of action for unlawful detainer following foreclosure sale (based on Cal. Code Civ. Proc. § 1161a.
On February 03, 2022, Defendant filed her Answer.
On March 08, 2022, Brendem Plong defaulted.
On May 27, 2022, the case was removed to federal court by Defendant. The case was stayed.
On June 14, 2022, the case was remanded back to state court by Judge Virginia A. Phillips and stay was lifted.
On July 12, 2022, Plaintiff’s Motion for Summary Judgment was Granted.
On July 25, 2022, Judgment was entered in favor of Plaintiff and the corresponding order was signed by Judge Stephen Morgan and filed.
On July 27, 2022, Defendant filed her Motion to Set Aside and Vacate an Unlawful Detainer Judgment as Void for Fraud Upon the Court, denied after the hearing on the matter on August 08, 2022.
On August 15, 2022, Plaintiff filed an Application for Writ of Possession and the Writ of Possession was issued on August 23, 2022. The Writ of Possession was returned as the address was incorrect.
On October 19, 2022, Plaintiff filed a Motion for an Order to Amend Judgment and Issue a New Writ.
On November 04, 2022, Defendant filed her Motion to Set Aside Void Judgment and Quash Writ of Possession (“Motion to Set Aside”).
Based on the filing timeline and the lack of a document titled “Opposition,” the Court believes that Defendant intends to use the Motion to Set Aside as an Opposition. As such, the Court addresses the motions together.
On November 22, 2022, Plaintiff filed its Opposition to Defendant’s Motion to Set Aside.
No Reply has been filed.
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Analysis
Plaintiff presents that it purchased the Property located at 1720 West Imperial Avenue, Lancaster, CA 93534 at a foreclosure sale held on 12/6/2021. (Compl. ¶¶ 8-11 and Ex. 1.) A Trustee’s Deed Upon Sale to Plaintiff was recorded on 12/27/2021. (Compl. Ex. 1.) The Trustee’s Deed does not identify the subject property address but it identifies the APN as 3122- 040-082 and includes the following Legal Description of the property conveyed:
LOT 3 OF TRACT MAP 52655, IN THE CITY OF LANCASTER, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 1320, PAGES 96 THROUGH 100 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
(Compl. Ex. 1.)
Plaintiff presents that the same APN and Legal Description appear in the Deed of Trust that was foreclosed and the Deed of Trust identifies the property’s common address as 1720 West Imperial Avenue. (Coutts Decl. Ex. A.) However, in correspondence with the Los Angeles County Sheriff regarding execution of the Writ, Plaintiff’s counsel, Melissa Coutts (“Coutts”), learned that the Subject Property is actually commonly known as 1270 West Imperial Street instead of 1270 West Imperial Avenue. (Coutts Decl. ¶ 6-7.) The Sheriff has taken the position that there is no such property as “1270 West Imperial Avenue” and accordingly they will not execute the Writ unless it is amended to reference “1270 West Imperial Avenue” instead. (Id at ¶ 7.)
Plaintiff requests an amendment of the judgment under Cal. Code Civ. Proc. § 473(d) as the Court has the power to amend clerical errors to conform the judgment to the Court's intent. Plaintiff also notes that, despite the error in the address name, Defendants were properly served at the Property, and as a result, no prejudice will result to Defendants by amending the Judgment to reference the correct street name whereas without amending the Judgment, Plaintiff is unable to enforce its Judgment for Possession. (Coutts Deel. ¶ 6.)
As an initial matter, the Court notes that the Motion to Set Aside is signed by both Defendants. Brendem Plong has been in default since March 08, 2022 and, to date, there has been no motion to vacate his default. Once a default is entered, the defendant is no longer able to file a response or otherwise participate in the case. (See Devlin v. Kearney Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-386 [A defendant against whom a default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff's right of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings.] Accordingly, the Court takes the Motion to Set Aside as filed and brought by Defendant Mareine Plong, identified as “Defendant,” alone.
Defendant presents that Cal. Code Civ. Proc. § 1161a has five subdivisions depicting when an individual may be removed from a property. Defendant presents that Plaintiff relies on Cal. Code Civ. Proc. § 1161a(b)(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. “] and that the grammatical structure of the subdivision suggests that three things must occur as conditions precedent to invoke a removal of a tenant or subtenant: (1) the property must be sold in accordance with Cal. Civ. Code § 2924; (2) the sale must occur under a power of sale contained in a deed of trust executed by such person, or a person under whom such person claims; and (3) the title under the sale has been duly perfected. It appears that Defendant is arguing that Plaintiff did not perfect title to the property because the notice of default that was recorded against the property did not contain a declaration. Thus, defendant believes that Plaintiff’s notice to quit is premature and void and Plaintiff’s unlawful detainer action is improper. Defendant argues that the law rebuttable presumption that a foreclosure sale has been conducted regularly and fairly (see Wolfe v. Lipsey (1985) 163 Cal. App. 3d. 633, 639) does not apply to recording requirements. Defendant also presents that the Court has authority to set aside any void order.
Plaintiff presents three arguments: (1) a legal argument that Defendant erroneously asserts that Plaintiff did not follow Cal. Civ. Code §2923.55(c)’s requirements for notice, (2) a procedural argument that Defendant did not comply with Cal. Civ. Proc. § 663a’s requirements, and (3) that Defendant may not raise a challenge to foreclosure proceedings in an unlawful detainer action as “the broad question of title could not be raised [in a summary proceeding] and litigated by cross-complaint or affirmative defense. . .[and] [m]atters affecting the validity of the trust deed or primary obligation itself, or other basic defects in the plaintiffs title, are neither properly raised in this summary proceeding for possession nor are they concluded by the judgment.” (Cheney v. Trauzettal (1937) 9 Cal.2d 158, 160.)
The Court first addresses the procedural argument. Cal. Code Civ. Proc. § 663a provides:
(a) A party intending to make a motion to set aside and vacate a judgment, as described in Section 663, shall file with the clerk and serve upon the adverse party a notice of his or her intention, designating the grounds upon which the motion will be made, and specifying the particulars in which the legal basis for the decision is not consistent with or supported by the facts, or in which the judgment or decree is not consistent with the special verdict, either:
(1) After the decision is rendered and before the entry of judgment.
(2) Within 15 days of the date of mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest.
(b) Except as otherwise provided in Section 12a, the power of the court to rule on a motion to set aside and vacate a judgment shall expire 75 days from the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or 75 days after service upon the moving party by any party of written notice of entry of the judgment, whichever is earlier, or if that notice has not been given, 75 days after the filing of the first notice of intention to move to set aside and vacate the judgment. If that motion is not determined within the 75-day period, or within that period as extended, the effect shall be a denial of the motion without further order of the court. A motion to set aside and vacate a judgment is not determined within the meaning of this section until an order ruling on the motion is entered in the permanent minutes of the court, or signed by the judge and filed with the clerk. The entry of an order to set aside and vacate the judgment in the permanent minutes of the court shall constitute a determination of the motion even though that minute order, as entered, expressly directs that a written order be prepared, signed, and filed. The minute entry shall, in all cases, show the date on which the order is entered in the permanent minutes, but failure to comply with this direction shall not impair the validity or effectiveness of the order.
(c) The provisions of Section 1013 extending the time for exercising a right or doing an act where service is by mail shall not apply to extend the times specified in paragraphs (1) and (2) of subdivision (a).
(d) The moving, opposing, and reply briefs and any accompanying documents shall be filed and served within the periods specified by Section 659a and the hearing on the motion shall be set in the same manner as the hearing on a motion for new trial under Section 660.
(e) An order of the court granting a motion may be reviewed on appeal in the same manner as a special order made after final judgment.
“Section 663a imposes strict time limits which have long since expired. ‘Even . . . a consent that [the] motion be granted . . . could not give the court power to act after the time had elapsed within which proceedings by motion could be instituted.’ [Citation.]” (County of Inyo v. City of LA (1984) 160 Cal.App.3d 1178, 1183-84.)
Here, Defendant did not follow the procedure set out by statute and both the time limits for Defendant to file notice of her intention to make a motion to set aside and vacate judgment as well as the Court’s power to rule on such a motion have elapsed.
The Court also notes that this is Defendant’s second Motion to Set Aside. The Court has already ruled upon a Motion to Set Aside. Defendant did not seek reconsideration of the denial of the first Motion to Set Aside.
Regarding the legal argument, Plaintiff has requested judicial notice of and attached as Exhibit 1 the recorded deed. The Court takes notice of the Exhibit 1 under its authority set out in Cal. Evid. Code § 452 (“Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.”). Exh. 1 includes a Declaration of Due Diligence, signed by Clement J. Durkin, an Operations Senior Specialist, which has the following checked off:
The mortgagee, beneficiary or authorized agent tried with due diligence but was unable to contact the borrower to discuss the borrower's financial situation and lo explore options. for the borrower to avoid foreclosure as required by Cal. Civ. Code Section 2923.55. Thirty days or more have elapsed since these due diligence efforts were completed.
As a declaration is attached, Defendant’s argument in her moving papers is no longer applicable.
Accordingly, the Motion to Set Aside is DENIED.
As the issue regarding the street name in the judgment is a clerical error (“street” versus “avenue”), the Court GRANTS the Motion to Amend Judgment under its authority provided by Cal. Code Civ. Proc. § 473(d) in the interests of justice.
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Conclusion
Defendant Mareine Plong’s Motion to Set Aside Void Judgment and Quash Writ of Possession is DENIED.
Plaintiff Federal Home Loan Mortgage Corporation, as trustee for Freddie Mac Seasoned Credit Risk Transfer Trust, Series 2017-2, as owner of the Related Mortgage Loan, its assignees and/or successors’ Motion to Amend Judgment is GRANTED.