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 Ins vs David Shor et al
Case No: 19CV06566
Hearing Date: Fri Mar 06, 2020 9:30

Nature of Proceedings: Motion: Summary Judgment

Tentative Ruling: Unless defendants David Shor and Judy Shor present sufficient evidence to overcome SEE’s prima facie case of the absence of a triable issue of material fact, the court will grant plaintiff Strategic Emerging Economics, Inc.’s motion for summary judgment. Defendants may present an opposition orally at the hearing pursuant to CRC 3.1351(b).

Background: This is an action for unlawful detainer following a foreclosure sale. In its complaint, plaintiff Strategic Emerging Economics, Inc. (“SEE”), alleges: SEE is the owner of real property located at 4630 Via Vistosa in Santa Barbara, having acquired the property at a trustee’s sale on November 27, 2019. Defendants David Shor and Judi Shor (collectively “Shor” or “defendants”) are the former owners of the Property. Following the foreclosure sale, defendants were 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.

Motion: SEE 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, SEE seeks possession of the property only, not holdover damages. SEE served the motion by overnight delivery on February 26, 2020.

1. Unlawful Detainer and Summary Judgment: In an unlawful detainer action, a party may move for summary judgment on five days notice and the motion shall be granted or denied on the same basis as a motion under CCP § 437c. CCP § 1170.7. Summary judgment is appropriate where there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. CCP § 437c(c). “The party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826, 850 (2001). “[A] plaintiff bears the burden of persuasion that ‘each element of’ the ‘cause of action’ in question has been ‘proved,’ and hence that ‘there is no defense’ thereto. [CCP § 437c(p)(1)].” Id.

The purchaser at a trustee’s sale has an immediate right to possession of the property. Farris v. Pacific States Auxiliary Corp., 4 Cal.2d 103, 105 (1935). “[W]here the purchaser at a trustee’s sale proceeds under section 1161a of the Code of Civil Procedure he must prove his acquisition of title by purchase at the sale; but it is only to this limited extent, as provided by the statute, that the title may be litigated in such a proceeding. … [T]he plaintiff need only prove a sale in compliance with the statute and deed of trust, followed by purchase at such sale, and the defendant may raise objections only on that phase of the issue of title.” Evans v. Superior Court, 67 Cal.App.3d 162, 170-171 (1977).

“A recital in the deed executed pursuant to the power of sale of compliance with all requirements of law regarding the mailing of copies of notices or the publication of a copy of the notice of default or the personal delivery of the copy of the notice of default or the posting of copies of the notice of sale or the publication of a copy thereof shall constitute prima facie evidence of compliance with these requirements and conclusive evidence thereof in favor of bona fide purchasers and encumbrancers for value and without notice.” Civil Code § 2924(c).

CCP § 1161a(b) provides:

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, … 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.

2. Facts: On or about June 1, 2017, Shor executed a Deed of Trust (“DOT”), naming SEE as beneficiary with respect to the property. The rights and remedies of the DOT included foreclosure and sale of the premises. [Joel Shukovsky Dec. ¶4] On June 25, 2018, SEE caused to be recorded a Notice of Default and Election to Sell under DOT (“NOD”) following Shor’s default and a Substitution of Trustee. [Id. ¶¶5, 6] On June 28 and July 5, 2018, the NOD was served on Shor. [Id. ¶¶7, 8] On December 4, 2018, a Substitution of Trustee naming SEE as trustee under the DOT was served on Shor. [Id. ¶¶9, 10] On December 6, 2018, SEE caused a Notice of Trustee’s Sale (“NOTS”) to be recorded. [Id. ¶11] On December 6, 2018, SEE caused a copy of the NOTS to be posted in the manner prescribed by Civil Code §§ 2624f, 2924.08, and a copy of the NOTS was posted at a public place on the bulletin board inside the county courthouse at 1100 Anacapa Street in Santa Barbara. [Id. ¶12] On December 6, 13, 20, 2018, the NOTS was published in the Santa Barbara News Press. [Id. ¶13] The trustee’s sale was delayed by two bankruptcy cases defendants filed, both of which were dismissed. [Id. ¶¶14-16] The Trustee’s Sale occurred on November 27, 2019. SEE was the highest bidder and became purchaser of the property. [Id. ¶17] On December 3, 2019, SEE caused a Trustee’s Deed upon Sale to be recorded. [Id. ¶18]

On December 5, 2019, SEE caused to be served a Three (3) Day Notice to Quit due to Foreclosure to Holdover Owner or Nonresidential Tenant, and Notice to any Renters living at 4630 Via Vistosa in Santa Barbara. [Id. ¶19] The notice was served on David Shor by personally handing a copy to him on December 5, 2019. [Id. ¶20] Judi Shor could not be found at her residence or usual place of business. The three-day notice was served on Judi Shor by leaving a copy with David Shor, a person of suitable age and discretion, on December 5, 2019, at Judi Shor’s residence, and mailing a copy to Judi Shor at her place of residence on December 5, 2019. [Id. ¶21] On December 14, 2019, defendants were duly served with a copy of the summons and complaint in this action and the prejudgment claim of right to possession was served on all unnamed occupants of the premises [Id. ¶22]

Defendants are still in possession of the premises. [Id. ¶23] Defendants have not tendered the amount of the debt for which the property was given as security. [Id. ¶24]

3. Analysis: 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 § 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 CCP § 1162, and (4) that the defendant remains in possession of the premises. Evans v. Superior Court, 67 Cal.App.3d 162, 169-170 (1977).

The evidence described above sustains SEE’s burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact with respect to the unlawful detainer action. Unless defendants David Shor and Judy Shor present sufficient evidence to overcome SEE’s prima facie case of the absence of a triable issue of material fact, the court will grant plaintiff Strategic Emerging Economics, Inc.’s motion for summary judgment. Defendants may present an opposition orally at the hearing pursuant to CRC 3.1351(b).