Case Number: 18CMUD01944 Hearing Date: November 21, 2018 Dept: A

# 6. Breckenridge Property Fund 2016, LLC, v. John Leday, et al.

Case No.: 18CMUD01944

Matter on calendar for: motion for summary judgment

Tentative ruling:

I. Background

This is an unlawful detainer action. Plaintiff Breckenridge Property Fund 2016, LLC, bought the property located at 2600 West Claude Street, Compton, CA 90220, at an August 8, 2018 foreclosure sale. Breckenridge served a notice to quit but defendants John Leday and Erniecia Armijo have remained in possession.

Breckenridge now moves for summary judgment. The motion is unopposed

For the reasons set forth below, the Court grants the motion for summary judgment.

II. Standard

Code Civ. Proc. § 473c(s) exempts unlawful detainer cases from subsections (a) and (b), allowing the cases to proceed under an expediated summary proceeding. Code of Civil Procedure § 1170.7 states, “[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.”

A “motion for summary judgment shall be 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 a judgment as a matter of law.” (C.C.P., § 437c(c).) Once the moving party has met its burden of demonstrating that there is no triable issue as to any material fact, the opposing party cannot rest upon the mere allegations of the pleadings but must present admissible evidence showing that there is a genuine issue for trial. (See Aguilar v. Atlantic Richfield Company (2001) 25 Cal. 4th 826, 844.) “In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom… and must view such evidence… in the light most favorable to the opposing party.” (Id. at 844-45; C.C.P., § 437c(p)(2).)

III. Analysis

The Court grants Breckenridge’s request for judicial notice.

A. Breckenridge’s initial burden

Breckenridge moves for summary judgment for unlawful detainer pursuant to Code Civ. Proc. § 1161a. It must meet its initial burden of demonstrating that there is no triable issue as to any material fact. Breckenridge provides the following evidence:

· Trustee’s Deed Upon Sale showing Breckenridge acquiring the property. (Exh. 1; RJN 1.)

· Breckenridge is a bona fide purchaser for money without any knowledge or notice of competing claims. (Decl. Ryes ¶ 4.)

· On August 24, 2018, Breckenridge served a written notice to quit. (Decl. Reyes ¶¶ 7–8.)

· Defendants have failed to vacate the property and remains in possession. (Decl. Reyes ¶ 10.)

The property was sold pursuant to Civil Code § 2924 which allows a purchaser, under Code of Civil Procedure § 1161a(b), to remove a hold over tenant by serving a 3-day notice to quit. “In an unlawful detainer action brought pursuant to Code of Civil Procedure section 1161a, subdivision (b)(3), the plaintiff must show that he or she acquired the property at a regularly conducted sale and thereafter “duly perfected” title. [Citation.]” (The Bank of New York Mellon v. Preciado (2013) 224 Cal. App. 4th Supp. 1., 9.) “[W]here the plaintiff in the unlawful detainer action is the purchaser at a trustee’s sale, he or she ‘need only prove a sale in compliance with the statute [Civil Code § 2924] 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.” (Ibid.)

The evidence shows that Breckenridge purchased the property at the foreclosure sale and recorded a trustee’s deed upon sale. (RJN 1, 2.) A notice to quit was served on the defendants on August 24, 2018, after which the defendants failed to vacate. (Decl. Reyes ¶ 10.)

Plaintiff has met its initial burden of showing no triable issue of material fact. The burden now shifts to defendant. Because the motion is unopposed, defendants fail to show a triable issue of material fact and summary judgment in favor of Breckenridge is appropriate.

IV. Ruling

The motion for summary judgment is granted.