TENTATIVE RULING

Judge Thomas Anderle Department 3 SB-Anacapa 1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION Caerus Capital LP vs Jackie Torres

Case No: Hearing Date: 1306203 Tue Apr 21, 2009 9:30

Nature of Proceedings: Motion Summary Judgment/Adjudication Plaintiffs motion for summary judgment / adjudication Ruling: The summary judgment is denied; the Court will grant summary adjudication of the 2nd affirmative defense; the Court will deny the remaining requests for summary adjudication. MOTION Separate Statement of Facts Plaintiff is the owner of the residential property at issue, by virtue of his purchase of the property at a Trustees Sale on January 8, 2008. The foreclosure against Mr. John Torres, defendant Jackie Torress father, was duly perfected prior to the sale to plaintiff. Defendant was served with a 60-day notice to quit in compliance with CCP 1162, but remains in possession. She acknowledged receipt of the 60-day notice. She does not contend that plaintiff or anyone acting on its behalf did anything which is alleged to have been a waiver, change, withdrawal or cancellation of the notice to quit. She does not base her claimed right to possession on any non-disturbance agreement, subordination agreement, lease agreement which was senior to the Trustees lien, or any other type of rental agreement which would allow her to remain in possession subsequent to a foreclosure sale. She does not base her claim on any ownership interest / loss of title which was threatened by plaintiff. Defendants affirmative defense alleging that plaintiff is not entitled to possession under CCP 1172 is irrelevant and improper. Plaintiffs single cause of action is for unlawful detainer, and has no cause of action for and does not contend that defendant committed either forcible entry or forcible detainer. The 60-day notice contained the requisite information to terminate the tenancy. It was served in a manner compliant with CCP 1162. Defendant has no information or belief to support her 4th affirmative defense that plaintiffs own misfeasance / malfeasance was the sole cause of its damages, and thus it fails as a

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matter of law. Defendants 5th affirmative defense, asking for a determination of the respective percentage of fault should defendant be found liable, pleads no facts denying any allegations of the complaint, and thus it fails as a matter of law. Defendants 5th affirmative defense is also improper and fails because CCP 431.30(c) prohibits a request for affirmative relief in an answer. Defendant has no information or belief to support her 6th, 7th, and 8th affirmative defense, and thus they fail as a matter of law. Defendants 8th affirmative defense asks for reasonable expense under CCP 128.7, and is therefore improper and fails as a matter of law, because CCP 431.30(c) prohibits a request for affirmative relief in an answer. Defendant is liable for the value of the use and occupation of the premises during the time of holding over, including the fair rental value of the premises from the date of sale until the lessee vacates. Defendant and others unknown have been residing in the premises without payment of rent to plaintiff since 1/8/09. The fair market value of the premises is $66.66/day. Defendant has refused to allow plaintiff to enter the premises to ready the premises for sale. Because defendant refused to surrender the premises to plaintiff, plaintiff was forced to file an unlawful detainer complaint and incur all related expenses. Plaintiff has proven that defendant is wrongfully holding over, rendering defendant liable for actual damages under CCP 1174. Defendant is fully aware, and does not dispute, that plaintiff is the owner of title of the premises. Defendant repeatedly stated that she would not comply with the 60-day notice to quit or any lawful eviction proceedings. Her counsel has repeatedly confirmed his opinion that Torres has no obligation to surrender the premises and that he has so advised her. Despite refusing to surrender possession, defendant has stated no claim of right to possession of any sort. Defendant avoided service of the 60-day notice to terminate. Defendant has repeatedly refused plaintiff needed access to the premises, including by refusing to allow it to ready the premises for sale and show it for sale. Defendant has refused to respond in a meaningful way to written discovery. Argument First, there is no question of fact to bring to a jury in this matter, as all elements of the cause of action for unlawful detainer have been pleaded and remain undisputed. Under CCP 1161a, the required elements for unlawful detainer are (1) plaintiff is a purchaser at a foreclosure sale, (2) the foreclosure has been duly perfected, and (3) the tenant remains in possession after receiving notice to quit pursuant to Section 1162. (A) Plaintiff duly purchased the property at a foreclosures sale. Rick Longpre is the authorized representative of plaintiff Caerus Capital, L.C., and purchased the property at a trustees sale, after non-judicial foreclosure on the loan held by defendants father, John Torres. Defendant and her counsel have been informed from the beginning that plaintiff is the legitimate owner of the property, and that fact has not been disputed. (B) The foreclosure was duty perfected, and that fact is not disputed. The complaint alleges that the property was sold to plaintiff after it was foreclosed upon, and that plaintiff is entitled to possession. Since plaintiff is not the foreclosing lender, it is clear that the foreclosure was perfected prior to its purchase of the property, since it could not have been purchased if this was not so. The Trustees Deed was recorded on 1/22/09. The successful bidder at a foreclosure sale acquires title on execution and delivery of the

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trustees deed. Central Sav. Bank v. Lake (1927) 201 Cal.438. The purchasers title dates back to the date that the security instrument was executed. Sain v. Silvestre (1978) 78 Cal.App.3d 461. Such title is not only free and clear of all subsequent or subordinate encumbrances and interests, but is also free and clear of the interest of the debtor or his or her successor, since that interest is foreclosed by the sale. Hohn v. Riverside County Flood Control & Water Conservation Dist. (1964) 228 Cal.App.2d 605. A bona fide purchasers title is not conditional on any rights of redemption, as such rights are terminated by the sale. Loretz v. Cal-Coast Dev. Corp. (1967) 249 Cal.App.2d 176. (C) Defendant remains in possession after having been served a 60-day notice to quit in compliance with CCP 1162. Second, defendants answer contains sham, irrelevant, and improper affirmative defenses, which are fatally unsupported by even a single fact. A defendant must plead ultimate facts in an affirmative defense. The answer must allege all facts on which the defense is founded. Vitug v. Griffin (1898) 214 Cal.App.3d 488, 493-494. (A) The first affirmative defense alleging insufficient facts to constitute a cause of action is a sham, since defendant acknowledges that all requisite elements of a cause of action for unlawful detainer have been pleaded. (B) The second affirmative defense, alleging that plaintiff is not entitled to possession under Section 1172, is improper. Section 1172 relates to proceedings for forcible entry or forcible detainer, neither of which is alleged in this action. (C) The third affirmative defense, alleging that the 60-day notice to quit served on defendant is defective, has no merit as a matter of law. No facts are pleaded to support the allegation. A notice to terminate a tenancy need not be in any particular form, but should contain the name of the landlord, a statement that the tenancy is being terminated, the address of the premises, and the date of the termination. The notice in this case contains all such information. Further, defendant is a tenant at sufferance, and is not entitled to any notice in any event. Tenancies in sufferance arise when a tenant goes into possession lawfully, the right to remain in possession expires, and he or she continues to occupy the premises without the consent of the owner. Aviel v. Ng (2008) 161 Cal.App.4th 809. No notice to quit is required prior to an action to remove a tenant at sufferance. Kuhn v. Smith (1899) 125 Cal. 615, 617. Unless there is an express or implied agreement between a tenant and the purchaser, with respect to possession, the tenant becomes a tenant at sufferance, and the relationship between tenant and purchaser becomes one of trespasser and owner. Miller & Starr, California Real Estate (3d ed. 2008) 19:32; 19:218. (D) Defendants 4th through 8th affirmative defenses, making wide-ranging allegations of plaintiffs wrongdoing and plaintiffs counsels unethical conduct, are fully unsupported, in applicable, and have no merit as a matter of law. They assert that plaintiffs own misfeasance or malfeasance was the cause of its damages, that defendant is entitled to a determination of respective proportions or percentages of fault, that plaintiff is responsible for all damages by virtue of its wrongful, knowing, and deliberate conduct, that plaintiff orchestrated and engaged in a scheme to defraud defendant and its lawsuit is spurious and without merit, and that the complaint is frivolous, unreasonable and groundless, and entitles defendant to expenses under CCP 128.7. There are no factual allegations to

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support the contentions. As to the allegations of conspiracy and fraud (7th AD), it appears defendant contends plaintiff had some part in the foreclosure proceedings, which she contends involved a bad loan, and that foreclosure proceedings should be reversed. Plaintiff was not John Torres lender, and has repeatedly informed defendant of such. Issues of title are not litigated in an unlawful detainer action, in which the basic purpose is a speedy determination of the right to possession. Further, the 5th and 8th ADs are improper in that the seek affirmative relief. (E) Plaintiff is entitled to immediate possession of the premises. The purchaser at a trustees sale is entitled to immediate possession of the property. Farris v. Pacific States Auxiliary Corp. (1935) 4 Cal.2d 103. If the debtor or his successor remain in possession, the purchaser may bring an unlawful detainer action to recover possession. In such an action, the purchaser need only prove acquisition of title at the sale. Abrahamer v. Parks (1956) 41 Cal.App.2d 82, 84. Defendant has made clear that her refusal to vacate is based on her feeling that her father should not have been foreclosed upon, but that is no defense to the unlawful detainer action. She alleged no facts contesting the legitimacy of the sale or of plaintiffs ownership. A tenant is estopped to deny the landlords title, except when it has been extinguished during the term of the tenancy (Teich v. Arms (1907) 5 Cal.App. 475), or when the relationship is that of vendee-vendor rather than landlord tenant. Kartheiser v. Superior Court (1959) 174 Cal.App.2d 617. (F) Plaintiff is entitled to all compensatory damages incurred. Actual damages are recoverable upon an unlawful detainer, including the value of the use and occupation of the premises during the time of holding over, including the fair rental value of the premises from the date of sale until the lessee vacates. Aviel v. Ng, supra. The full extent of plaintiffs damages cannot be assessed until defendant vacates. However, at $2000/month or $66.66/day, past due rent totals $6,865.98 through April 21. Plaintiff has also incurred costs of serving the 60-day notice by certified mail ($5.21), filing fees ($340), service of process ($225), loss of sale value of premises during holdover ($6,250), and 2 months of homeowners association dues ($628), for a total of $14,314.19. (G) Plaintiff is entitled to treble damages for holding over. Under CCP 735, if a person recovers damage for a forcible or unlawful entry in or upon or detention of any building, judgment may be entered for three times the amount of the actual damages. Such damages are proper if malice is pleaded and proven, which requires that defendant have willfully, deliberately, intentionally, and obstinately withheld possession of the property, knowing there was no valid lease agreement, and against the will of the landlord. Sasson v. Katash (1983) 146 Cal.App.3d 119, 127. Here, defendant was informed within hours of the Trustees sale that plaintiff was the owner. She, her counsel, and the foreclosure consultant she belatedly contacted, were all repeatedly advised that plaintiff was the legitimate owner. Documentary evidence of the sale was provided. Defendant rebuffed all overtures for generous relocation assistance offered by plaintiff, and made clear she had no intention of complying with eviction proceedings. She has never asserted any legitimate or lawful claim of right to possession under an agreement of any sort which might have survived foreclosure. She and others avoided service of the 60-day notice by refusing to answer the door while at the premises. She refused to comply with a lawful notice of entry, which advised that entry was required

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because the property was listed for sale and plaintiff needed to perform necessary cleanup, repairs, and maintenance. She refused to respond to the majority of discovery propounded, and has interposed invalid and untimely objections. She responded to UD interrogatories by responding not applicable to more than half of them, in an attempt to avoid the prohibition on untimely objections. She refused to provide information on whether she has paid rent, when she took possession, the existence of any rental agreement, the identities of other persons residing there and their right to possession. She submitted untimely objections to general form interrogatories, contending that she need not answer them, despite that limited jurisdiction discovery limitations do not apply in unlawful detainer proceedings. Under such circumstances, the court has jurisdiction to award treble damages. A claim for punitive damages is a proper subject for summary adjudication. CCP 437c(f)(1). Evidence Rick Longpre declaration President of Latitude, Inc. (commercial brokerage, management, and investment company) that is the sole member of Latitude Capital, LLC, that is the general partner of plaintiff Caerus Capital, L.P., and acted herein for Caerus. Caerus is a blind pool investment for purchase and sale of distressed real estate. He purchased the property herein on 1/8/09 at a trustees sale on the steps of the courthouse, with the intent to immediately resell it at market rate. On the day after purchase, he hand-delivered a letter to the premises, addressed to the foreclosed owner (John Torres) advising about new ownership, offering to assist with relocation, and warning that unlawful detainer proceedings would be commenced if there was no response. He left the letter at the door, as there was no response. He returned the next day, and spoke to a young woman who identified herself as Jackie Torres, daughter of John Torres, who advised she had been helping him to pay the mortgage while she lived there. Longpre reiterated the relocation assistance offer. Over the next week he left messages seeking access to the premises, and reiterating the relocation offer, but she did not return his calls. On 1/16/09, he received a call from Nationwide Loan Services at 8:00 p.m. He returned the call, but the caller, Brenda Michaelson, did not respond. He received a call from a man at Nationwide on 1/20 or 1/21, who approached the conversation as if declarant was a foreclosure lender. Declarant attempted to correct the misimpression, and explained that he was not a lender, but a purchaser at a trustees sale, after foreclosure had already taken place. Neither the man, nor Ms. Torres, have ever acknowledged that they understood this. On 1/21 he again memorialized the cash for keys offer. On 2/4/09, he went to the premises to inspect it, pursuant to a Notice of Entry served by his attorneys. Ms. Torres refused to allow him to enter, saying that her attorney, Andrew Kulick, advised that she didnt have to cooperate. Her refusal to surrender possession is causing financial damage to plaintiff. When able to gain immediate access, plaintiff can clean and repair the property, and put it on the market. With an Oxnard property, it made $60,000 profit on a total $210,000 investment, which it was able to obtain a contract to sell only 2 weeks after purchase. Plaintiff has also been forced to pay association dues ($1,185.10) and property taxes ($15,766.49) it could otherwise have avoided had it been free to sell the unit. Had it sold in the expected 4-8 week period, plaintiff could have avoided 2 months of association dues, and some portion of the property taxes. Further, the residential market continues to decline by 1-2%/month, and with an estimated property value of $450,000, it will decline $4,500-$9,000 each month.

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Declarant is qualified to express an opinion as to damages, as he has been a licensed real estate broker in California since 1988, and active in SB real estate since 1997. Prior to this business, he was a real estate attorney. He has followed the residential market for decades. He is familiar with the current market for residential properties, and the effect of the economic crisis on that market. He is knowledgeable about what properties are still selling, and what it takes to sell them. He is familiar with residential rentals and rental rates. In his opinion the fair rental value of a 2-bedroom 2-bath unit such as this is $2,000/month, or $66.66/day. His attorney served a demand for inspection of the premises, for which he went to the property. Torres allowed him in. The unit was dirty and smelly, with all surfaces covered in grime. Several walls were sloppily painted in bright red and blue. He was only there for a few minutes, and was unable to assess the extent of cleanup and repair needed, except to conclude it was extensive. Brent Baldwin declaration Attorney for plaintiff. From the time of its purchase of the property, plaintiff has been unable to gain cooperation from the tenant. On 1/30/09, plaintiff served a Notice of Entry under CC 1954, but his client was denied access on the appointed date. Rick Longpre called him from the premises, and told him that her attorney, Andrew Kulick, advised she had no obligation to comply. Declarant called Mr. Kulick, who confirmed he had given the advice, that he was unaware of any legal authority for the access request, and he had advised his client she had no obligation to cooperate with plaintiff, opining that plaintiff must file a UD action to gain possession. Because he appeared to be under the impression that the property was in foreclosure, declarant explained that foreclosure proceedings had concluded and his client had purchased the property in a trustees sale a month prior, that Ms. Torres had no ownership interest in the property or any other secured obligation, and that as far as his client was aware, she was in possession without a rental agreement. Mr. Kulick did not change his opinion that she need not comply, but did not reveal any basis for her claim to possession. Declarant confirmed the conversation in a letter dated 2/6/09, which enclosed the Trustees Deed Upon Sale, the Notice of Entry, and the cash-for-keys offer made by plaintiff. On 3/26/09, plaintiff served by overnight mail a set of UD form interrogatories, a set for general form interrogatories, and a demand for inspection. Declarants associate forwarded a meet and confer letter on 4/6, and on 4/7, Mr. Kulick called to advise that reposes were coming without objection. That was not true, as the responses to the UD interrogatories stated not applicable to half the questions. On 4/10/09, his office received the general interrogatory responses, which consisted entirely of an objection that defendant was not obligated to respond to them. Dana Rosenberg declaration An attorney for plaintiff. On 1/15/09, he served a 60-day notice of termination on plaintiff. He first attempted to serve it in person on Ms. Torress place of employment and at the premises. On two occasions at the premises, he saw movement in the window, but no one would answer the door. He went to her place of business during business hours on three separate occasions, and the door was locked. He posted the notice at the front door of the premises, and sent a copy via certified mail. On 1/16/09, he telephoned defendant to confirm her receipt of the notice. She acknowledged having received it, but advised her lawyer told her she need not comply with the notice or any eviction proceedings. He asked

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for the name of her attorney, but she was unsure of his name, identifying him as being form Nationwide Loan Services. She provided the name Soliman, which declarant then, via Nationwides website, determined was Maher Soliman, its principal, who he confirmed through the State Bars website was not an attorney. He advised Torres that Nationwide was not a law firm, Soliman was not an attorney, and she had received poor advice. She said it may not have been Soliman to whom she spoke, but rather in house counsel for Nationwide. He encouraged her to retain counsel familiar with landlord/tenant law, and provided her with the number of the Lawyer Referral Service of Santa Barbara County. Torres advised him that her father no longer resided at the premises, but that she had paid Nationwide Lending Services a $2,500 fee to stop the foreclosure. He explained that foreclosure had already taken place, that plaintiff had purchased the property, that plaintiff was not a lender, nor the lender her father had used. Torres opined that her father had a bad loan, that foreclosure should not have gone through, and Nationwide would get the sale reversed. Declarant attempted to explain to her that whatever the merits of her fathers dispute with his lender were, they had no impact on plaintiffs right to possession. She was adamant that she would not move, and her attorney had told her she did not have to. Because Torres refused access to the premises for plaintiff, on 1/30 his firm served Notice of Entry. On 2/4, he received a call from plaintiffs agent, Rick Longpre, who was being denied entry by Torres, who advised Longpre her attorneys name was Andrew Kulick. On 3/2/09, the homeowners association noticed all property owners and tenants at the property that it has scheduled fumigation for 4/1. On 3/5, plaintiff received a fumigation notice on plaintiffs behalf, and declarant called Kulick to see if he would confirm that Torres would comply with her obligation to temporarily vacate for fumigation. He was noncommittal, and he said she would probably be forced out by that time anyway. He asked whether Kulick was referring to entry of a default judgment for possession and execution of a writ thereon, and he confirmed that was so. He took Kulicks comments to mean he was conceding that Torres had no right to possession and would have to vacate, and he presumed Kulick was not planning to file an answer. He therefore began preparation of default paperwork, spending about 4 hours thereon. On 3/24/09, Kulick filed an answer for Torres, but the answer provided no facts explaining the basis for her refusal to vacate. Declarant called Kulick and asked that he provide the facts upon which he based the affirmative defenses. Kulick maintained that Torres had no obligation to vacate. The only basis for his contention which is not pleaded in the answer was his opinion that the 60-day notice was defective because the Trust Deed effecting transfer to plaintiff was not recorded until 1/22, a week after the 60-day notice was served. Declarant explained that ownership transferred at the time of sale, and an owner did not have to have proof of ownership before commencing UD proceedings. Plaintiff had advised Torres of its ownership the day after the sale. No facts supporting Torres contention were in her responses to UD interrogatories. On 4/3/09, he went to the premises with Longpre, to inspect the property in compliance with the Demand for Inspection served 3/26, which set the time for inspection on 4/3. Torres allowed them in, and he observed a filthy, foul-smelling residence, with dirt ground into all surfaces. Several walls were painted bright blue and red, with paint haphazardly applied. Torres refused to respond to discovery designed to reveal whether she had any valid claim of right to possession, including interrogatories asking when she took possession, whether there was an agreement under which she claimed tenancy, who

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resides there with here, and on what facts she bases her claim to possession. OPPOSITION: None filed as of 4/20/09. ANALYSIS The court notes that, in unlawful detainer proceedings, summary judgment motions may be brought on 5 days notice. There is no express provision for timing of opposition papers, which could be conceivably be submitted up to the time of the hearing. At the time that this analysis is being prepared, no opposition papers have been submitted. Therefore, the results of the motion cannot be definitively determined, and may change, should opposition papers be presented by defendant. This action is brought under CCP 1161a, which provides, in relevant parts: (b) In any of the following cases, a person who holds over and continues in possession of . . . real property after a three-day written notice to quite 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. *** (c) Notwithstanding the provisions of subdivision (b), a tenant or subtenant in possession of a rental housing unit which has been sold by reason of any of the causes enumerated in subdivision (b), who rents or leases the rental housing unit either on a periodic basis from week to week, month to month, or other interval, or for a fixed period of time, shall be given written notice to quit pursuant to Section 1162, at least as long as the term of hiring itself but not exceeding 30 days, before the tenant or subtenant may be removed therefrom as prescribed in this chapter. Plaintiff contends that it purchased the condominium at issue in a trustees sale on 1/8/09, with the intent of reselling the property. After purchase, plaintiff tried to serve a notice to quit upon the presumed owner/resident. It ultimately discovered that the resident of the property, Jackie Torres, was the adult daughter of the foreclosed upon owner, John Torres. Because plaintiff had no idea on what authority Jackie was living in the premises, how long she had resided at the property, and whether she had a rental agreement with her father, it served her with a 60-day notice to quit, under CCP 1161b(a). Plaintiff filed this action on 3/17/09, seeking possession of the premises, costs incurred in this proceeding, past due rent of $4,533.28, attorneys fees, forfeiture of an unnamed agreement, damages at the rate of $66.66/day from March 17, 2009, statutory damages up to $600 under CCP 1174(b), treble damages for willful and obstinate holding over under CCP 735, and interest at the legal rate. Defendant answered the complaint. Plaintiff served discovery on defendant, and although it quibbles with her responses, no motion to compel has been filed and served. In discussions with defendant and her counsel, defendant has purportedly refused to comply with the eviction proceedings, contending that her father was the victim of a bad loan, which should not have been foreclosed.

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Plaintiff has now moved for summary judgment, also seeking 7 alternate adjudications, contending that it is entitled to judgment in the action, and alternatively that each of defendants affirmative defenses have no merit, that it is entitled to immediate possession, that it is entitled to all damages it seeks, and that it is entitled to treble damages for malicious holdover. Plaintiff asserts in its motion that title is not litigated in unlawful detainer actions, and that it need prove nothing more than its purchase of the property in the trustees sale, in order to pursue this action and this motion. Plaintiffs assertions are not entirely accurate. Generally speaking, it is true that title cannot be tried in unlawful detainer proceedings. However, the California Supreme Court has pointed out that a qualified exception to his rule is contained in CCP 1161a (under which this action is prosecuted), which extends the summary eviction remedy beyond the conventional landlord-tenant relationship to include certain purchasers of property. The court noted that Section 1161a provides for a narrow and sharply focused examination of title. To establish that he is a proper plaintiff, one who has purchased property at a trustees sale and seeks to evict the occupant in possession must show that he acquired the property at a regularly conducted sale and thereafter duly perfected his title. To this limited extent, title is litigated in the proceeding. Vella v. Hudgens (1977) 20 Cal.3d 251, 255. Plaintiffs separate statement acknowledges that Section 1161a contains three elements for an unlawful detainer action, plaintiffs purchase of the property at the trustees sale, due perfection of the foreclosure action against former owner John Torres (defendants father), and service of the notice to quit. [See Facts Nos. 1-3 in separate statement.] However, plaintiffs motion does not entirely appear to recognize the manner in which such elements are to be proven. Indeed, the evidence upon which plaintiff relies in contending that the foreclosure was duly perfected was the conclusion that, if it had not been, plaintiff could not have purchased the property. While the intricate details of the foreclosure process are not required to be established by admissible evidence, the fact that a trustees sale occurred does not, in and of itself, establish that the foreclosure was duly perfected. Even so, if plaintiffs motion contains sufficient evidence to meet the burden, it could potentially be granted, even though it miscomprehends the standards. The case of Moeller v. Lien (1994) 25 Cal.Appa.4th 822, sets forth a description of nonjudicial foreclosure sales, such as that which occurred in this case. It states that CC 2924-2924k provide a comprehensive framework for the regulation of nonjudicial foreclosure sales pursuant to a power of sale contained in a deed of trust. The purposes of the scheme are (1) to provide the creditor/beneficiary with a quick, inexpensive and efficient remedy against a defaulting debtor/trustor, (2) to protect the debtor/trustor from wrongful loss of the property, and (3) to ensure that a properly conducted sale is final between the parties and conclusive as to a bona fide purchaser. The statutory scheme provides that, upon default by trustor, the beneficiary may declare a default and proceed with a nonjudicial foreclosure sale. The process is commenced by recording a notice of default and election to sell by the trustee. The trustee must then wait 3 calendar months before proceeding with the sale. A notice of sale is then published, posted and mailed 20 days before the sale and recorded 14 days before the sale. The trustee may postpone the sale at any time before the sale is completed, upon the giving of the requisite notices. Conduct of the sale is governed by CC 2924g. The property must be sold at public auction to the highest bidder.

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During the foreclosure process, the debtor/trustor is given several opportunities to cure the default and avoid the loss of the property, including a period of reinstatement to make back payments and reinstate the terms of the loan, which continues until 5 days prior to the date of the sale. Section 2924c(a)(1), (e). There is also an equity of redemption, allowing the trustor to pay all sums due prior to the sale, and avoid the sale. CC 2903, 2905. As a general rule, the purchaser at a nonjudicial foreclosure sale receives title under a trustees deed free and clear of any right, title or interest of the trustor. A properly conducted nonjudicial foreclosure sale constitutes a final adjudication of the rights of the borrower and lender. Once the trustees sale is completed, the trustor has no further rights of redemption. The purchaser at a foreclosure sale takes title by a trustees deed. If the trustees deed recites that all statutory notice requirements and procedures required by law for the conduct of the foreclosure have been satisfied, a rebuttable presumption arises that the sale has been conducted regularly and properly. The presumption is conclusive as to a bona fide purchaser. CC 2924(c). Thus, as a general rule, the trustor has no right to set aside a trustees deed as against a bona fide purchaser for value by attacking the validity of the sale, and the conclusive presumption precludes an attack on the trustees sale to a bona fide purchaser, even though there may have been irregularities in the sale procedures. Where the trustor is precluded from suing to set aside the foreclosures sale, the trustor may recover damages from the trustee. In this case, the trustees deed contains the following recitals: This conveyance is made pursuant to the powers conferred upon Trustee by that certain Deed of Trust dated 06/16/2005 and executed by JOHN R TORRES Trustor(s), and Recorded on 06/28/2005 as Instrument NO. 2005-0060439 of official records of SANTA BARBARA County, California, and after fulfillment of the conditions specified in said Deed of Trust authorizing this conveyance. Default occurred as set forth in a Notice of Default and Election to Sell which was recorded in the Office of the Recorder of said County, and such default still existed at the time of sale. 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 and the posting and publication of copies of the Notice of a Sale have been complied with. Trustee, in compliance with said Notice of Trustees Sale and in exercise of its powers under said Deed of Trust, sold the herein described property at public auction on 01/08/2009. Grantee, being the highest bidder at said sale, became the purchaser of said property for the amount bid being 368,870.00 in lawful money of the United States, or by credit bid if the Grantee was the beneficiary of said Deed of Trust at the Tie of said Trustees Sale. In Melendrez v. D & I Investment, Inc. (2005) 127 Cal.App.4th 1238, the court found that a bona fide purchaser, in the context of Section 2924, is one who pays value for the property without notice of any adverse interest or of any irregularity in the sale proceedings. 127 Cal.App.4th at 1250. Thus, the elements are (1) purchase of the property in good faith for value, (2) without no knowledge or notice of the asserted rights of another. 127 CalApp.4th at 1251. The rationale for the second requirement is that the recording laws were not

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enacted to protect those whose ignorance of the title is deliberate and intentional, but to protect those who honestly believe they are acquiring a good title, and who invest some substantial sum in reliance on that belief. A person has notice of a particular fact if that person has knowledge of circumstances which, upon reasonable inquiry, would lead to that particular fact. 127 Cal.App.4th at 1252. Because the Trustees Deed made the recitals set forth in Section 2924(c), prima facie evidence of compliance with the technical requirements of the sale has been established. However, because plaintiff has presented no evidence or information regarding its status as a bona fide purchaser for value, in terms of its lack of knowledge or notice of any asserted rights of another at the time of the purchase, the motion does not suffice to establish a conclusive presumption with respect to the regularity of the sale. See Melendrez v. D & I Investment, Inc., supra,127 Cal.App.4th at 1250, 1251, 1252. As a general proposition, the trustor cannot set aside a foreclosure sale to a bona fide purchaser based on irregularities in the foreclosure sale process, except in the case of fraud. This is generally true because a bona fide purchaser is not chargeable with the fraud of his predecessors, and takes a title purged of any anterior fraud affecting it and free from any equities existing between the original parties. Melendrez v. D & I Investment, Inc., supra, 127 Cal.App. 4th at 1256-1257. Again, since there was no evidence which would establish plaintiff as a bona fide purchaser, defendants challenges to the sale would not be limited to the situation of fraud. However, a nonjudicial foreclosure sale is accompanied by a common law presumption that it was conducted regularly and fairly, which may only be rebutted by substantial evidence of prejudicial procedural irregularity. Melendrez v. D & I Investment, Inc., supra, 127 Cal.App.4th at 1258. Because there is no set time within which a defendant must file an opposition to a motion for summary judgment in an unlawful detainer action, this court cannot conclusively determine, prior to the hearing, whether defendant can present evidence to rebut the presumption of regularity in the trustees sale. If no opposition is filed, and/or no evidence of prejudicial irregularities provided by defendant, the prima facie showing established by the recitals in the trustees deed would be sufficient to meet the burden of establishing the trustees sale was regularly conducted. For purposes of the continued analysis, the Court will assume that the motion has established that the trustees sale was regularly conducted. Certainly, since plaintiff had no information about the status of the defendant in the property, it served a 60-day notice of termination of the tenancy. The motion sets forth the facts with respect to service, which appear to be in compliance with CCP 1161b and 1162. Therefore, barring any contrary evidence submitted by opposition papers prior to the hearing, the elements of an unlawful detainer action under CCP 1161a (due perfection of the foreclosure action, purchase at a trustees sale, and service of the notice to quit), have all been established by (so far) undisputed facts. However, CCP 437c does not provide for a partial summary judgment for liability, when there are issues related to damages which remain. Therefore, summary judgment may not be granted unless the moving party has met its burden, and there are no triable issues of material fact, about either liability or damages. Upon an analysis of, and comparison between, the unlawful detainer complaint and the motion for summary judgment, the court has found that there remains significant question with respect to the types and/or amounts of damages to which plaintiff would be entitled, such that entry of summary judgment is precluded.

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In terms of the damages plaintiff seeks, the motion for summary judgment, in Section II.F., contends that plaintiff is entitled to damages of $14,314.19, including rent at $66.66/day since 1/9/09, costs for certified mail service of the 60-day notice, filing fees, and service of process, $6,250 for the loss in the sale value of the home during the period of the holdover, and $628 for 2 months of homeowners association dues. The Court notes that the motion claims entitlement to damages not sought in the complaint, specifically in the lost in the sale value of the home, and the homeowners association dues. Although the factual basis for the amount sought for loss in the sale value of the home during the period of holdover is set forth in the motion, the motion sets forth not legal authority for inclusion of such amount in the damages sought in this unlawful detainer action. Normally, such damages would include the rental value of the premises during the period of holdover. The Court notes further that the complaint seeks damages not addressed in the motion for summary judgment, specifically statutory damages of up to $600 under CCP 1174(b), and a claim for reasonable attorneys fees. No mention is made in the motion of the claim for statutory damages, and no attempt has been made to support its amount, although plaintiff does contend that defendants holdover was malicious. No basis is set forth in the complaint for any claim for attorneys fees. Not only are these not mentioned or supported in the motion, there is also no disavowal of plaintiffs claim to them. Plaintiff seeks a number of alternative summary adjudications, in the event that summary judgment is not granted. First, plaintiff seeks adjudications that the affirmative defenses asserted by defendant have no merit. In large part, although not exclusively, the adjudication requests are based upon the contention that the affirmative defense are unsupported by any factual allegations, and not attempt is made to establish, by presentation of facts, that they have no merit as a matter of law. This is more of an attack on the adequacy of the pleading, than it is a contention that the alleged affirmative defenses have no merit as a matter of law. The 10-day period within which to demur to the answer expired prior to the filing of this motion (CCP 430.40(b)). Although the court is ordinarily permitted to treat such claims as motions for judgment on the pleadings, the unlawful detainer statutes only provide for summary judgment and discovery motions to be made on 5 day notice; absent an order shortening time for a motion for judgment on the pleadings, this court has no ability or authority to grant it. Therefore, although the 1st, and 3rd through 8th affirmative defenses fail to state sufficient facts to constitute affirmative defense, the motion must be denied. Even if the court had the ability to consider and grant such a motion, however, it would be required to grant leave to amend. However, the court has determined that it is appropriate to adjudicate the 2nd affirmative defense, without leave to amend, to the extent it was intended to assert the defense actually alleged therein. The defense asserts that plaintiff is not entitled to possession under CCP 1172. Section 1172 relates to the evidence to be presented by a plaintiff in an action for forcible entry or forcible detainer, neither of which have been alleged in this case. The court suspects that the reference to Section 1172 was a typographical error, and defendant actually intended to make reference to Section 1162, which relates to the manner of service of a Notice to Quit. However, to the extent that the affirmative defense is intended to relate to Section 1172, it is inapplicable to this proceeding. Defendant would only be allowed to amend to correct the typographical error, if it fact that was what occurred. The alternate adjudication that plaintiff is entitled to immediate possession must be denied. Absent grant of total summary judgment, possession cannot be separately adjudicated.

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Doing so would not entitle plaintiff to judgment on the cause of action, nor does the issue fall within any of the other permissible matters for summary adjudication. In an unlawful detainer action, it is only where damages were being pursued in a separate action could the issue of possession be adjudicated, and a plaintiff could establish entitlement to possession through motion for summary judgment. Northrop Corp. v. Chaparral Energy, Inc. (1985) 168 Cal.App.3d 725. The alternate adjudication that plaintiff is entitled to all compensatory damages it seeks must be denied. First, the only damage claim which is subject to summary adjudication under the express terms of CCP 437c(f)(1), is a claim for punitive damages under CC 3294. Plaintiffs claims for various items of compensatory damages do not fall within this limitation, and cannot be summarily adjudicated. Second, plaintiff has provided the court with absolutely no authority to support its contention that defendant is liablein this unlawful detainer actionfor the lost value of the property during the time of defendants holdover. Plaintiffs alternate request for summary adjudication of its right to treble damages under CCP 735 is denied. As pointed out above, the only damage claims subject to summary adjudication under the express terms of CCP 437c(f)(1) are punitive damages claims under CC 3294. A claim for treble damages under CCP 735, while punitive in nature, does not fall within that limitation, and is not subject to summary adjudication.

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