16-UDL-00076 CAPITAL ONE, N.A. VS. OSCAR BRAUN, ET AL.

CAPITAL ONE, N.A. OSCAR BRAUN
ADAM N. BARASCH JULIA M. WEI

MOTION FOR SUMMARY JUDGMENT ON HALF MOON BAY COASTSIDE FOUNDATION, INC.’S CLAIM TO POSSESSION BY CAPITAL ONE, N.A. TENTATIVE RULING:

The Motion of Plaintiff Capital One, N.A. (“Plaintiff”) for Summary Judgment to Claim of Possession by Defendant Half Moon Bay Coastside Foundation, Inc. (“Foundation”) is DENIED.

A party moving for summary judgment must produce sufficient evidence to establish a prima facie case. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) The elements to establish the right to possession are: (a) that the property was sold in conformity with Civil Code §2924 and perfected with a recorded deed, (b) that the requisite Notice to Quit was served on the occupants and (c) the continued occupancy after the expiration of the notice. (CCP §1161a(b)(3); Vella v. Hudgens (1977) 20 Cal.3d 251, 255 (a purchaser at a foreclosure sale “need only prove a sale in compliance with the statute and deed of trust, followed by a purchase at such sale…”).)

Plaintiff has presented evidence to establish each of the elements here. Plaintiff demonstrates that Plaintiff properly obtained title to the property through a foreclosure sale. (See Plaintiff’s Request for Judicial Notice, Exhs. B, G and H.) Plaintiff also shows that the Foundation was served with a Notice to Quit. (See Proof of Service from registered process server attached to Verified Complaint.) Lastly, the evidence presented shows that Defendant continues to occupy the property after expiration of the Notice to Quit. (See Barasch Decl., Exhs. C and D.)

In opposition, the Foundation argues that res judicata bars this action in light of the Appellate Department’s determination reversing the granting of the prior summary judgment motion. However, the Foundation has not established that the prior proceeding resulted in a final judgment on the merits, which is one of the elements for res judicata to apply. (See Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797.)

Nevertheless, the Foundation raises triable issues of material fact as to the validity of the Notice to Quit upon which this action is based and whether the Foundation unlawfully continues to occupy the property. The Complaint is based on the fact that Plaintiff served the Foundation with a 3-day/90-day Notice to Quit served on or about March 30, 2016 (“first notice”). The Foundation presents evidence, though, that Plaintiff served a second 3-day/90-day Notice to Quit on or about June 29, 2018 (“second notice”) to Oscar Braun and all occupants in possession. (See Oscar Braun Decl.; see also 3 Day/90 Day Notice to Quit, dated June 29, 2018.) Thus, a triable issue of material fact exists whether service of this second notice constitutes a waiver of the first notice. A valid notice to quit cannot be withdrawn without the consent of both parties. (Devonshire v. Langstaff (1935) 10 Cal.App.2d 369, 373.) The question of whether there was a waiver of the notice to quit is one of intent on the part of both parties to the tenancy. (Id. At 374.) Thus, triable issues of material fact exist as to whether Plaintiff may evict the Foundation based upon the first notice and whether the Foundation remains in unlawful possession.
Plaintiff’s Request for Judicial Notice is GRANTED.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.