Tentative Ruling

Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Strategic Emerging Economics Inc vs David Shor et al
Case No: 19CV06566
Hearing Date: Fri Feb 21, 2020 9:30

Nature of Proceedings: Motion: Summary Judgment/Adjudication

TENTATIVE RULING: Plaintiff’s motion for summary judgment is denied. Plaintiff has failed to present evidence that defendant Judi Shor was served with the three-day notice to quit, a requisite element of an unlawful detainer action.

BACKGROUND:

This is an action for unlawful detainer following a foreclosure sale. As alleged in the complaint, plaintiff Strategic Emerging Economics, Inc. is the owner of real property located at 4630 Via Vistosa, Santa Barbara, California 93110 (the “Property”), having acquired the Property at a trustee’s sale on November 27, 2019. Defendants David Shor and Judi Shor are the former owners of the Property. Following the foreclosure sale, defendants were allegedly served with a three-day notice to quit the premises, but they have failed and refused vacate the Property. On December 12, 2019, plaintiff filed its complaint in unlawful detainer. Defendants responded to the complaint with a verified answer on January 14, 2020.

Plaintiff now moves for summary judgment on the grounds that there are no triable issues of material fact and it is entitled to judgment as a matter of law. For purposes of the motion, plaintiff seeks possession of the Property only, not holdover damages. Defendants oppose the motion.

ANALYSIS:

Request for Judicial Notice

Defendants have requested that the court take judicial notice of the complaint for breach of contract, etc. filed in the matter of David H. Shor and Judi B. Shor v. Strategic Emerging Economics, Inc., et al., Santa Barbara County Superior Court Case No. 18CV04650. Defendants have also requested that the court take judicial notice of the Court Docket in Case No. 18CV04650. Judicial notice may be taken of the “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.” Evid. Code §452, subd. (d). Judicial notice, however, does not extend to the truth of any factual assertions appearing in those records. Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 483. With this understanding, the court will take judicial notice of the requested items.

Evidentiary Objections

“In granting or denying a motion for summary judgment . . . , the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” Code Civ. Proc. §437c, subd. (q).

Defendants objected to portions of the declarations of Joel Shukovsky, a principal of plaintiff finance company, submitted in support of plaintiff’s motion for summary judgment. None of the objected to statements played any part in the court’s ruling on plaintiff’s summary judgment motion and therefore the court declines to rule on any of the objections.

Motion for Summary Judgment

Code of Civil Procedure Section 1170.7 governs summary judgment motions in unlawful detainer actions and provides:

“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.”

Under Code of Civil Procedure Section 437c, subdivision (a), any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or there is no defense to the action. Summary judgment is properly granted if all the papers submitted 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. Code Civ. Proc. §437c, subd. (c). Where the party seeking summary judgment is the plaintiff, the plaintiff has the burden of establishing each element of the cause of action entitling it to judgment on that cause of action. Code Civ. Proc. §437c, subd. (p)(1). If the plaintiff meets this burden, the burden shifts to the defendant to show by admissible evidence that a triable issue of one or more material facts exists as to that cause of action or an affirmative defense. Ibid.

The elements of an unlawful detainer action following a trustee’s sale are set forth in Code of Civil Procedure Section 1161a, which provides:

“(b) In any of the following cases, a person who holds over and continues in possession of a manufactured home, mobilehome, floating home, or real property after a three-day written notice to quit the property has been served upon the person, or if there is a subtenant in actual occupation of the premises, also upon such subtenant, as prescribed in Section 1162, may be removed therefrom as prescribed in this chapter:

* * *

“(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.”

Code Civ. Proc. §1161a, subd. (b) (emphasis added).

Thus, a plaintiff is entitled to judgment in an unlawful detainer action following a foreclosure sale upon establishing (1) that the subject property was sold in accordance with Civil Code Section 2924 under a power of sale contained in a deed of trust, (2) that title was duly perfected in the plaintiff’s favor, (3) that the requisite notice to vacate was served on the defendant as prescribed in Code of Civil Procedure Section 1162, and (4) that the defendant remains in possession of the premises. Evans v. Superior Court (1977) 67 Cal.App.3d 162, 169-170 (purchaser at foreclosure sale entitled to bring unlawful detainer action pursuant to Code of Civil Procedure §1161a against occupant of premises who holds over after sale of the property); in accord, Stephens, Partain & Cunningham v. Hollis (1987) 196 Cal.App.3d 948, 952.

Here, plaintiff has presented evidence of the following:

● On June 1, 2017, defendant borrowers executed a Deed of Trust in favor of plaintiff lender, naming plaintiff as beneficiary with respect to the Property (Shukovsky Dec., ¶4, Ex. 1).

● On June 25, 2018, a Notice of Default and Election to Sell under Deed of Trust was recorded against the Property and thereafter served on defendants (Shukovsky Dec., ¶¶ 5, 7, Exs. 2, 4).

● Defendants failed to cure the default and on December 6, 2018, a Notice of Trustee’s Sale was recorded against the Property and thereafter served on defendants (Shukovsky Dec., ¶¶ 11, 12, Exs. 8, 9).

● The trustee’s sale was postponed after defendants filed for bankruptcy (Shukovsky Dec., ¶14).

● On November 8, 2019, the U.S. Bankruptcy Court for the Central District of California issued a Notice of Dismissal with respect to defendant David Shor’s bankruptcy filing, Case No. 9:19-bk-11659-MB, and on November 22, 2019, the U.S. Bankruptcy Court for the Central District of California issued an Notice of Dismissal with respect to defendant Judi Shor’s bankruptcy filing, Case No. 9:19-bk-11881-MB (Shukovsky Dec., ¶¶ 15, 16, Exs. 11, 12).

● The trustee’s sale occurred on November 27, 2019 (Shukovsky Dec., ¶17).

● On December 3, 2019, plaintiff caused to be recorded with the Official Records of Santa Barbara County a Trustee’s Deed upon Sale with respect to the Property, Document No. 2019-0055643 (Shukovsky Dec., ¶18, Ex. 13).

● On December 5, 2019, defendant David Shor (but not defendant Judi Shor) was personally served with a Three-Day notice to Quit due to Foreclosure (Shukovsky Dec., ¶19, Exs. 14, 15).

● Defendants are still in possession of the Property (Shukovsky Dec., ¶21).

Under Civil Code Section 2924, subdivision (c), there is a statutory presumption that a foreclosure sale was conducted lawfully and fairly if the Trustee’s Deed upon Sale recites that the trustee complied with all statutory requirements for notice of default and notice of sale. Here, the Trustee’s Deed upon Sale contains the proper recitals:

“All requirements per California Statutes regarding the mailing, personal delivery and publication of copies of Notice of Default and Election to Sell under Deed of Trust and Notice of Trustee’s Sale, and the posting of copies of Notice of Trustee’s Sale have been complied with. Trustee, in compliance with said Notice of Trustee’s Sale and in exercise of its powers under said Deed of Trust sold said real property at public auction on 11/27/2019. Grantee, being the highest bidder at said sale became the purchaser of said property for the amount bid, being $1,462,654.80, in lawful money of the United States, in pro per, receipt thereof is hereby acknowledged in full/partial satisfaction of the debt secured by said Deed of Trust.”

(Shukovsky Dec., ¶18, Ex. 13.)

While the above evidence shows that plaintiff purchased the Property at a non-judicial foreclosure sale on November 27, 2019, and that it perfected title to the Property by recording a Trustee’s Deed upon Sale at the Office of the Santa Barbara County Clerk-Recorder on December 3, 2019, the evidence also shows that, after plaintiff perfected title, only defendant David Shor was served with the requisite three-day notice to quit. Defendant Judi Shor was not served.

In order to prevail on an unlawful detainer action, the plaintiff must show, among other things, that it served a three-day written notice to quit on the person or persons holding over at the property. Code of Civil Procedure Section 1162 governs service of a three-day notice to quit and provides:

“[T]he notices required by Sections 1161 and 1161a may be served by any of the following methods:

“(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 cannot 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.”

Code Civ. Proc. §1162 (emphasis added).

Thus, under subsection (2) of Section 1162, if a three-day notice to quit is not personally served on a tenant, it must be delivered to someone of suitable age and discretion at his or her residence and also mailed to the tenant. Here, defendants David Shor and Judi Shor both reside at 4630 Via Vistosa, Santa Barbara, California 93110. (David Shor Dec., ¶3.) On December 5, 2019, Judi Shor was not home when David Shor was served with the three-day notice to quit. (David Shor Dec., ¶4.) The proof of service attached to plaintiff’s motion for summary judgment confirms that the three-day notice to quit was delivered to David Shor, but not Judi Shor. (Shukovsky Dec., ¶19, Ex. 15.) The proof of service also does not indicate that a copy of the three-day notice to quit was mailed to Judi Shor at her residence. (Ibid.)

Because proper service of a three-day notice to quit is a requisite element of an unlawful detainer action, plaintiff’s motion for summary judgment will be denied.