M-CV-0067796 The Bank of New York Mellon vs. Polupan, Alexandar et al

If oral argument is requested, it shall be heard on Thursday, April 12, 2018 at 8:30 a.m. in Department 32:

A motion for summary judgment in an unlawful detainer action may be brought at any time after the answer is filed upon five days notice. (Code of Civil Procedure section 1170.7.) A party is entitled to bring a motion for summary judgment where there are no triable issues of fact. (Code of Civil Procedure section 437c.)

The party seeking summary judgment bears the burden of showing there is no triable issue of material fact and that the party is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The moving party has the burden of showing, by affidavit, facts establishing every element necessary to sustain a judgment in favor of the party. (Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468.) Once a plaintiff proves its prima facie case, the burden of proof shifts to the defendant to prove material facts. (Code of Civil Procedure section 437c(p)(1).)

To prevail in an action for unlawful detainer following a foreclosure, plaintiff must show that (1) plaintiff purchased the property upon foreclosure and title following the foreclosure sale has been duly perfected, (2) defendant was served with a three-day
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written notice to quit the property, and (3) defendant continued in possession after expiration of the notice. (Code of Civil Procedure section 1161a(b)(3).)

Plaintiff provides evidence that it purchased the property at a trustee’s sale and said title was duly perfected. (Plaintiff’s Separate Statement of Undisputed Material Facts (SSUMF) Nos. 4-6.) Plaintiff also shows that defendant was served with a notice to quit and to vacate. (Plaintiff’s SSUMF No. 7.) Finally, Plaintiff submits evidence that defendant remains on the property after the expiration of the notice. (Plaintiff’s SSUMF No. 8.)

As Plaintiff has made a prima facie showing in support of summary judgment, the burden now shifts to the defendant. Therefore, the appearances of all parties are required at the hearing, to be held on Thursday, April 12, 2018 at 8:30 a.m. in Department 32, as defendant may appear to provide evidence of a triable issue of material fact either in writing or orally at the hearing. (California Rules of Court, Rule 3.1351(b), (c).)