Judge: Stephen Morgan, Case: 23AVUD00441, Date: 2023-10-10 Tentative Ruling

Case Number: 23AVUD00441    Hearing Date: October 10, 2023    Dept: A14

Background

This is an unlawful detainer (“UD”) action. Plaintiff GHI Investment LLC (“GHI”) alleges that on or about June 16, 2022, it purchased the property which is the subject of this action, located at 3109 Kilt Ct., Lancaster, CA, 93535, Los Angeles County (the “Property”), at a trustee’s sale in which Defendant Rodney J. Rouzan (“Rouzan”) was a trustor on the underlying deed and former owner of the Property. GHI presents that the non-judicial foreclosure leading up to the trustee’s sale was conducted in compliance with Cal. Civ. Code § 2924, GHI duly perfected title and paid valuable consideration for the Property. GHI further alleges that in February 2023, it served on Rouzan a Notice to Quit in compliance with Cal. Code Civ. Proc. § 1162, more than three days have elapsed, and Rouzan remains in possession of the Property without GHI’s consent.

On March 29, 2023, GHI filed its Complaint for Unlawful Detainer.

On April 06, 2023, Rouzan filed a Motion to Quash Service, denied on April 19, 2023.

On April 26, 2023, Rouzan filed this Demurrer.

On April 28, 2023, the Court found that this case was related to an unlimited civil case, 23AVCV00191 RODNEY ROUZAN vs SHELLPOINT MORTGAGE SERVICING LLC, et al. (“23AVCV00191”) and deemed 23AVCV00191 the lead case.

On July 31, 2023, GHI substituted attorney Daniel King for LK Professional Law Group.

On August 28, 2023, the Court held an Order to Show Cause RE: Failure to Prosecute Case. No parties appeared. The Court continued the hearing to December 13, 2023.

On September 01, 2023, GHI filed a request to set the case for trial.

On September 20, 2023, the non-jury trial came on for hearing. There was no appearance by Rouzan. The non-jury trial was taken off calendar and Rouzan’s Demurrer was reset for October 10, 2023.

No Opposition has been filed.

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Legal Standard

Standard for Demurrer – A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v.¿Mirda¿(2007) 147 Cal.App.4th 740, 747.) ¿When considering demurrers, courts read the allegations liberally and in context.¿ (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal.App.4th 1216, 1228.)¿ In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.¿ (Cal. Code Civ. Proc. § 430.30(a).)¿A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.¿ (SKF Farms v. Superior Court¿(1984) 153 Cal.App.3d 902, 905.)¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.¿¿(Ibid.)¿¿The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.¿ (Hahn,¿supra,¿147 Cal.App.4th at 747.)¿¿¿¿¿¿¿¿¿¿¿ 

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A general demurrer admits the truth of all factual, material allegations properly pled in the challenged pleading, regardless of possible difficulties of proof.¿¿(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿ Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer.¿¿(Del E. Webb Corp. v. Structural Materials Co.¿(1981) 123 Cal.App.3d 593, 604.)¿ Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken.¿¿(Vance v. Villa Park¿Mobilehome¿Estates¿(1995) 36 Cal.App.4th 698, 709.)¿A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.¿¿(Blank,¿supra, 39 Cal.3d at p. 318.)¿¿¿¿¿¿¿¿¿¿¿¿ 

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Pursuant to¿Code Civ. Proc.¿§430.10(e), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action.¿ It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment.¿¿(Schifando¿v. City of Los Angeles¿(2003) 31 Cal.4th 1074, 1082,¿as modified (Dec. 23, 2003).)¿¿¿¿

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Meet and Confer Requirement– Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Cal. Code Civ. Proc. §§ 430.41 and 435.5.) It appears that this requirement was not satisfied as Rouzan does not discuss any meet and confer effort. (See Decl. Rouzan [generally].) “A determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Cal. Code Civ. Proc. § 430.1(a)(4).) As this Demurrer was filed over six months ago, the Court determines the motion on its merits.

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Discussion

Application – Rouzan demurs under Cal. Code Civ. Proc. § 430.10(c).

Rouzan presents that GHI and other defendants are in default in 23AVCV00191, that both this action and 23AVCV00191 are between himself and GHI, that the cases are based on the same right or obligation (i.e., ownership and possession of property), that the determination of one action would cause res judicate in the other, and that the second action should be abated. It appears Rouzan is also arguing that 23AVCV00191 would determine title, Asuncion v. Superior Court (1980) 108 Cal.App.3d 141 (“Asuncion”) allows a court to stay a UD action while issues of title are litigated, and fairness necessitates a stay.

“In unlawful detainer proceedings, ordinarily the only triable issue is the right to possession of the disputed premises, along with incidental damages resulting from the unlawful detention. (Larson v. City and County of San Francisco (2011) 192 Cal.App.4th 1263, 1297; Friedman et al., Cal. Practice Guide: Landlord-Tenant (The Rutter Group 2012) ¶ 8:4, p. 8-1 (rev. # 1, 2011)). Ordinarily, issues respecting the title to the property cannot be adjudicated in an unlawful detainer action. (Drybread v. Chipain Chiropractic Corp. (2007) 151 Cal.App.4th 1063, 1072 [60 Cal. Rptr. 3d 580]; Friedman, supra, ¶ 7:267, p. 7-58.15 (rev. # 1, 2012).)” (Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367, 385; see also Asuncion, supra, 108 Cal.App.3d at 144 [UD actions “[are] not a suitable vehicle to try complicated ownership issues involving assertions of fraud and deceptive practices”].) Asuncion provides that “after the eviction is transferred to the superior court, a number of procedural devices exist to facilitate accommodating the eviction action with the fraud action . . .” (Asuncion, supra, 108 Cal.App.3d at 146.) The Asuncion court lists a stay the eviction proceedings until trial of the fraud action under Cal. Code Civ. Proc. § 526 to preserve the status quo and consolidations. (Ibid.)

The Court notes that the issue in Asuncion was that the net effect of the parties' dealings was: (1) Financial has loaned the Asuncions about $ 4,800 for 45 days, in return for real property having an equity in excess of $ 20,000, and (2) it was alleged such loan may be usurious, as well as fraudulent and in violation of a number of laws, both state (See id. at 144.)

Rouzan requests a stay based on Asuncion. The Court looks to Cal. Code Civ. Proc. § 526 as Asuncion court relied on it for the determination that a stay of a UD case is appropriate. Cal. Code Civ. Proc. § 526 provides two lists, one in which an injunction may be granted and one in which an injunction cannot be granted.

The Court takes judicial notice of its records regarding this case and 23AVCV00191 under Cal. Evid. Code § 452(d).

Here, the issue is between GHI and Rouzan. GHI alleges a non-judicial foreclosure was completed in compliance with Cal. Civ. Code, a  trustee’s sale occurred, title was perfected, and Rouzan has held over despite a Notice to Quit.

In 23AVCV00191, Rouzan filed a First Amended Complaint (“FAC”) on August 29, 2023, and no defendant is in default as no party has been served with the FAC. The unlimited civil case is not between the same parties. Specifically, the FAC alleges causes of action by Rouzan against various individuals and three corporations, of which one is GHI. Rouzan alleges that (1) a corporate defendant recorded a Notice of Default; (2) the same corporation published and posted information at various times and places notice that the Property was to be sold at public auction; (3) GHI purchased the Property; (4) the purchase has been recorded; and (5) Rouzan was not in default under the terms of the Deed of Trust.

The biggest hurdle here is the bona fide purchaser presumption. “If the trustee's deed recites that all statutory notice requirements and procedures required by law for the conduct of the foreclosure have been satisfied, a rebuttable presumption arises that the sale has been conducted regularly and properly; this presumption is conclusive as to a bona fide purchaser.” (Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 996, as modified (Mar. 11, 2016).) Absent a showing that purchaser here is not a bona fide purchaser, there is no basis to stay the unlawful detainer.

Plaintiff has not sufficiently established in this motion that GHI is not a bona fide purchaser of the Property in question. To the extent that plaintiffs are relying on violations of the Homeowner's Bill of Rights and the loan modification provisions of the civil code, they do not have any effect on the validity of the sale on a third-party purchaser.

Accordingly, the Demurrer is OVERRULED.

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Conclusion