Homeward Opportunities Fund I Trust 2019-2 v. Taptelis ( 2024 )

Filed 4/2/24 Homeward Opportunities Fund I Trust 2019-2 v. Taptelis
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
HOMEWARD OPPORTUNITIES FUND H049791
I TRUST 2019-2, (Santa Clara County
Super. Ct. No. 21CV378676)
Plaintiff and Respondent,
v.
ILIAS LOUIE TAPTELIS,
Defendant and Appellant.
Upon purchasing property in a nonjudicial foreclosure sale under a borrower’s
deed of trust, the new owner must perfect title under the sale before seeking to evict the
trustor/borrower. (Code Civ. Proc., § 1161a, subd. (b)(3); Dr. Leevil, LLC v. Westlake
Health Care Center (2018) 6 Cal.5th 474 (Dr. Leevil).)1 The parties dispute whether
plaintiff Homeward Opportunities Fund I Trust 2019-2 (Homeward) did so.
Homeward was the beneficiary under a deed of trust executed by defendant-
borrower Ilias Louie Taptelis. After Taptelis filed a preemptive wrongful foreclosure
lawsuit alleging, among other claims, material violation of the Homeowner Bill of Rights
(HBOR)2 and recorded a lis pendens, though without a proof of service, Homeward
1
Undesignated statutory references are to the Code of Civil Procedure.
Until a trustee’s deed has been recorded, a borrower may bring an action for
2
injunctive relief to enjoin a material violation of specified statutory provisions. (Civ.
purchased the property in a nonjudicial foreclosure sale. After the trustee’s deed was
recorded, Homeward served Taptelis with notice to quit the premises and obtained a
judgment of unlawful detainer against him without expunging the lis pendens or
resolving the underlying litigation.
We conclude that in this case recordation of the trustee’s deed sufficed to perfect
Homeward’s title under the sale. Because we reject Taptelis’s various other challenges to
the judgment, we affirm.
I. BACKGROUND
A. The Nonjudicial Foreclosure and the Wrongful Foreclosure Suit
Taptelis borrowed $1.24 million from Recovco Mortgage Management, LLC
(Recovco) to buy property located at Fennel Court. To secure the loan, he executed a
Deed of Trust by which he conveyed the Fennel Court property to Stewart Title of
California, Inc. (Stewart Title) as trustee with power of sale, to hold for the benefit of
Recovco’s designee, Mortgage Electronic Registration Systems, Inc. (MERS). The deed
of trust was recorded in June 2019.
Taptelis defaulted on the loan later in 2019. After his default, these documents
concerning the Fennel Court property were recorded in Santa Clara County: (1) In April
2020, MERS executed an assignment of deed of trust, through which it purported to
assign its beneficial interest under the deed of trust to Homeward;3 (2) in May 2020,
Specialized Loan Servicing LLC (SLS), acting as attorney-in-fact for Homeward,
executed a substitution of trustee, through which Homeward purported to substitute
Code, § 2924, subd. (a).) After a trustee’s deed has been recorded, a material violation of
the same statutes gives rise to a claim for actual economic damages. (Civ. Code, § 2924,
subd. (b).)
3
On appeal, Taptelis disputes whether several of the recorded documents had their
intended effect.
2
Quality Loan Service Corporation (Quality) for Stewart Title as the trustee; and (3) in
June 2020, Quality issued a notice of default and election to sell under the deed of trust.
As stated in the notice of default, as of June 2020, Taptelis needed to pay
$87,221.09 to cure the default. Quality appended a California declaration of compliance
to the notice of default, representing that the mortgage servicer had exercised due
diligence to contact Taptelis at least 30 days earlier to assess his financial situation and
explore options to avoid foreclosure.
Quality’s notice of trustee’s sale, scheduled for December 4, 2020, was recorded
in October 2020.
Two weeks later, Taptelis filed a civil action challenging the foreclosure and
naming various involved entities as defendants, including Homeward. In the complaint,
Taptelis described the documents that had been recorded to date.
Taptelis alleged nine causes of action: (1) violation of the HBOR by filing the
notice of default while Taptelis had a loan modification application pending, that is,
“dual-tracking”; (2) violation of Civil Code section 2923.5, subdivision (b), by SLS and
Quality for failing to provide certain information before filing the notice of default;
(3) violation of Civil Code section 2924.17 by SLS and Quality by submitting a
declaration in support of the notice of default that was not based on reliable and
competent evidence; (4) violation of the implied covenant of good faith and fair dealing
by dual-tracking; (5) negligence in servicing the loan in connection with the alleged
dual-tracking; (6) wrongful foreclosure flowing from the foregoing violations of the
HBOR and Civil Code; (7) cancelation of the assignment, substitution, notice of default,
and notice of trustee’s sale on the ground that they were not based on reliable and
competent evidence and that SLS and Quality improperly filed the notice of default;
(8) violation of the Unfair Competition Law arising out of the foregoing causes of action;
and (9) quiet title.
3
Two days before the foreclosure sale, Taptelis had a lis pendens recorded in
connection with the wrongful foreclosure action. The recorded lis pendens did not
include a proof of service. In 2022, after Homeward moved to expunge, Taptelis
recorded a withdrawal of the lis pendens.
On December 11, 2020, Santa Clara County recorded Quality’s trustee’s deed
upon sale. As set forth therein, Quality sold the Fennel Court property to Homeward
pursuant to the deed of trust through a public auction held on December 4, 2020.
B. The Notice to Quit and this Action
On March 16, 2021, Homeward served notice to quit on Taptelis and all unknown
occupants, tenants, and subtenants at the Fennel Court property. Taptelis did not vacate
the property, so Homeward filed the present unlawful detainer suit.
On March 24, 2021, Homeward filed its verified unlimited civil unlawful detainer
complaint. Homeward alleged that it had obtained ownership of the property pursuant to
a nonjudicial foreclosure on December 4, 2020. Homeward sought to wrest possession of
the property from Taptelis and any other unnamed occupants, tenants, and subtenants.
The next month, in the wrongful foreclosure case, Taptelis filed an ex parte
application shortening time for a hearing on a motion to consolidate that wrongful
foreclosure action with this unlawful detainer action or, in the alternative, a motion to
stay this action. Taptelis had yet to file any motion to consolidate, and the trial court
summarily denied the ex parte.
Taptelis answered the unlawful detainer complaint in June 2021. In September
2021, Taptelis submitted for filing in the wrongful foreclosure case a motion to
consolidate the two cases or to stay this unlawful detainer case. Later in September,
Taptelis filed an ex parte application requesting the unlawful detainer case be stayed. In
the application, Taptelis noted that his duly noticed motion in the wrongful foreclosure
case would otherwise not be heard until after the unlawful detainer trial. The court
denied the ex parte application without prejudice, with instructions to file “[t]he
4
request . . . by noticed motion in the appropriate civil action.” The court later continued
the unlawful detainer trial for two weeks, to October 27, 2021.
On October 18, 2021, Taptelis filed an ex parte application in the wrongful
foreclosure case seeking a stay—pending resolution of his motion to consolidate—of the
trial in this unlawful detainer case. The trial court summarily denied the ex parte
application.
The day of the unlawful detainer trial, asked for his time estimate, Taptelis orally
advised the court that he “would be looking to request a stay.” Taptelis stated that his
motion to consolidate had not been calendared in the wrongful foreclosure case.4 The
trial court acknowledged that the “motion to stay proceedings . . . would be within [its]
jurisdiction” and understood Taptelis’s request as “a motion to continue, so that the other
court can rule on the motion to consolidate.” Reasoning that an unlawful detainer is “a
summary proceeding” that “can’t keep getting continued and wait for the other case,” the
trial court denied the request because “[t]his case has to go forward.”
At the bench trial, over Taptelis’s objections, Homeward relied on judicial notice
of recorded documents—the deed of trust, assignment, substitution, notice of default,
notice of trustee’s sale, and trustee’s deed—to establish that it had perfected title to the
property by way of a nonjudicial foreclosure sale conducted in compliance with
section 2924 of the Civil Code. Homeward called one witness, a process server, to
establish that it had served a notice to quit.
In his defense, Taptelis confirmed he secured his loan from Recovco with a deed
of trust but testified that he never received notice that he had any new creditor and that he
had submitted a loan modification application to his loan servicer. The trial court then
sustained Homeward’s objection that issues with Taptelis’s loan modification application
were beyond the scope of the unlawful detainer. The trial court then sustained relevance
4
Apparently due to issues stemming from the pandemic, Taptelis was not issued a
hearing date in the wrongful foreclosure action until after the unlawful detainer trial.
5
objections to testimony from Taptelis regarding his pending wrongful foreclosure case
and recorded lis pendens. Taptelis did not offer other evidence.
On December 29, 2021, the trial court issued a written ruling. Taking “judicial
notice of the recorded documents, their legally operative language, the names of the
parties, the identification of the document, [and] the recordation date,” the court
concluded that Homeward acquired the property “through foreclosure proceedings, which
were (by benefit of a rebuttable presumption) in accordance with applicable law, namely
Civil Code [section] 2924.” Moreover, the trial court found that “a three[-]day notice to
quit was properly served” based on the testimony and documents introduced through the
process server.
In January 2022, Taptelis filed both a limited civil notice of appeal and an ex parte
application for stay of judgment or writ of possession pending the appeal. The trial court
entered judgment on January 31, 2022, and the writ of possession issued on February 1,
2022.
Taptelis unsuccessfully petitioned this court for a peremptory writ staying the
judgment and the writ of possession.
Taptelis timely filed an amended unlimited civil notice of appeal challenging the
judgment.
We issued an opinion reversing the judgment on October 12, 2023, but
subsequently granted Homeward’s petition for rehearing and requested supplemental
briefing.
II. DISCUSSION
In a postforeclosure unlawful detainer action, the plaintiff must show (1) “the
property has been sold in accordance with [s]ection 2924 of the Civil Code” (2) “under a
power of sale contained in a deed of trust executed by [the] person, or a person under
whom such person claims,” (3) holding over in possession after the service of a notice to
quit, and (4) “the title under the sale has been duly perfected.” (§ 1161a, subd. (b)(3).)
6
Taptelis’s appeal focuses on two elements: (1) whether the property was sold in
accordance with section 2924 of the Civil Code, and (2) whether Homeward duly
perfected title under the sale. The former is addressed through Taptelis’s challenges to
the trial court’s consideration of judicially noticed public records. The latter through
Taptelis’s contention that Homeward did not perfect title due to pending litigation. After
addressing certain threshold arguments, we will reject these core challenges.
A. Homeward’s Claim of Mootness
We reject Homeward’s contention that its sale of the property to a third party
moots Taptelis’s appeal.5
“ ‘Generally, courts decide only “actual controversies” which will result in a
judgment that offers relief to the parties.’ [Citation.] ‘Thus, appellate courts as a rule
will not render opinions on moot questions . . . .’ [Citation.] ‘A case becomes moot
when a court ruling can have no practical impact or cannot provide the parties with
effective relief.’ [Citation.] . . . But, where a court can afford the party at least some
relief, even if not all the relief originally requested, the court should not dismiss a case as
moot.” (City of Cerritos v. State of California (2015) 239 Cal.App.4th 1020, 1031.)
As Taptelis notes, even if he can no longer regain possession of the property, his
appeal is not moot because a reversal could entitle him to restitution. Upon reversal or
modification of a judgment, “the reviewing court may order restitution on reasonable
terms and conditions of all property and rights lost by the erroneous judgment or order, so
far as such restitution is consistent with rights of third parties and may direct the entry of
5
We grant Homeward’s request for judicial notice of (1) the grant deed recorded
on November 8, 2022; (2) the withdrawal of the December 2, 2020 notice of pendency of
action recorded on May 31, 2022; and (3) the order expunging a lis pendens recorded on
November 15, 2022. We also note that the parties agree that Homeward has at least
purported to transfer the property to a third party—we assume for mootness purposes that
the transfer is effective. We deny Taptelis’s request for judicial notice of an excerpt of an
appellate brief submitted to this court in a separate writ proceeding between the parties
because the excerpt is irrelevant to the issues reached herein.
7
a money judgment sufficient to compensate for property or rights not restored.” (§ 908;
see also Shapell Socal Rental Properties, LLC v. Chico’s FAS, Inc. (2022)
85 Cal.App.5th 198, 209–210 (Shapell).)
In Shapell, for example, the prevailing landlord in a commercial unlawful detainer
action argued that the tenant’s appeal was moot because the tenant could not regain
possession of the leased premises. (Shapell, supra, 85 Cal.App.5th at p. 209.) The court
explained that restitution “may include restoring an evicted tenant to possession of the
leased premises,” but that “ ‘ “appellate courts are not apt to invoke [the statute] to
reinstate a tenant’s right to possession after years have gone by” ’ ” and thus, “ ‘ “for all
practical purposes, the only appropriate remedy for vacating tenants who prevail on
appeal, but who failed to obtain a stay, may be a monetary award ‘sufficient to
compensate [the tenant] for the property rights not restored.’ ” ’ ” (Id. at pp. 210–211,
italics omitted.)
Although Shapell concerned a landlord-tenant unlawful detainer proceeding rather
than a postforeclosure proceeding, this is a distinction without a difference as to
mootness. Whatever the basis for the unlawful detainer action, the point remains that a
monetary award of restitution may be available to a prevailing defendant on appeal as an
alternative to the restoration of possessory rights.
In its reply in support of its motion to dismiss, Homeward implicitly concedes that
section 908 creates a right to monetary restitution but argues that restitution would be
unwarranted here. Homeward argues both that Taptelis should litigate any claim for
restitution he may have in the wrongful foreclosure case and that Taptelis cannot obtain
restitution even if he prevails on appeal because he lived “ ‘rent-free’ ” on the property
from December 2020 to February 2022. But Homeward articulates no theory by which
Taptelis could abandon his appeal from the unlawful detainer judgment and yet seek
restitution—the purpose of which would be to return him “so far as possible to the
position[] [he] occupied before the enforcement of or execution on [that] judgment.”
8
(§ 908.) The relief, if any, available in equity may turn on the nature of any error the trial
court made in adjudicating the parties’ respective rights to possession and the relevance
of Taptelis’s wrongful foreclosure claims to that adjudication. Thus, Homeward’s reply
raises only downstream equitable issues to be addressed, if at all, on remand if Taptelis
prevails on appeal, not an inability to afford Taptelis relief if his appeal proves
meritorious.
B. Compulsory Cross-claim
For the first time on appeal, Taptelis contends that Homeward was required to
pursue its unlawful detainer claim as a cross-claim in the wrongful foreclosure action and
that, by failing to do so, Homeward lost standing to pursue the claim and the trial court
lost jurisdiction to adjudicate it. Exercising our discretion to address a question of law on
undisputed facts (see People v. Runyan (2012) 54 Cal.4th 849, 859, fn. 3), we reject
Taptelis’s argument on the merits.
Generally, if a defendant “fails to allege in a cross-complaint any related cause of
action which (at the time of serving his answer to the complaint) he has against the
plaintiff,” the defendant may not later sue the plaintiff for “the related cause of action not
pleaded.” (§ 426.30, subd. (a).) But this provision, like the article (“Compulsory Cross-
Complaints”) that includes it, “applies only to civil actions and does not apply to special
proceedings.” (§ 426.60, subd. (a).) Unlawful detainer proceedings are special
proceedings. (See Tide Water Associated Oil Co. v. Superior Court (1955) 43 Cal.2d
815, 824 (Tide Water); § 1161a [found in pt. 3 of the code, which addresses “special
proceedings” of a civil nature]; Shapell, supra, 85 Cal.App.5th at p. 215.)
Taptelis asserts that the statutory exception for special proceedings inures only to
the benefit of an unlawful detainer defendant, and only to the detriment of a plaintiff
seeking possession: In his reading, an unlawful detainer defendant need not, and cannot,
file cross-claims in an unlawful detainer action but a potential unlawful detainer plaintiff
must file its unlawful detainer claim as a cross-claim in a related wrongful foreclosure
9
action. His argument does not fit the plain language of the statute, and he is admittedly
unable to identify authority supporting his interpretation. We note as well that requiring
prospective unlawful detainer plaintiffs to bring their claims as compulsory cross-claims
in civil actions would frustrate the clear legislative purpose of a summary proceeding to
obtain possession. (See Tide Water, supra, 43 Cal.2d at p. 824.)
Even if section 426.30 could apply to require an unlawful detainer claim to be
brought as a cross-claim, by its terms it applies only to claims against the plaintiff that
have accrued by the time the defendant serves its answer. Homeward answered the
wrongful foreclosure complaint on December 15, 2020.6 Homeward served the notice to
quit three months later, in March 2021. Homeward had no statutory right to file an
unlawful detainer claim against Taptelis, if at all, until he “h[eld] over and continue[d] in
possession of” the property “after a three-day written notice to quit the property ha[d]
been served upon” him. (§ 1161a, subd. (b).) Even where it applies, section 426.30 does
not require a party to file a claim prematurely. Nor would we interpret section 426.30 to
enable Taptelis, by filing a preemptive wrongful foreclosure lawsuit, to compel
Homeward to race to complete the prelitigation steps necessary to initiate an unlawful
detainer action to avoid a forfeiture.
C. Sufficiency of the Judicially Noticed Record to Show Compliance with Civil
Code Section 2924
Relying on judicial notice of the legal effect of the recorded documents, the trial
court ruled that Homeward acquired title to the property through properly conducted
nonjudicial foreclosure proceedings. Taptelis contends that it was substantively and
procedurally improper for the trial court to take judicial notice of the recorded documents
to prove the transfer of authority to foreclose. We reject Taptelis’s substantive
6
We grant Taptelis’s unopposed request for judicial notice of the date on which
Homeward filed its answer in the wrongful foreclosure case. (See Evid. Code, § 452,
subds. (d), (h).)
10
contentions on the merits, concluding that the recorded documents were enough for the
trial court to determine that the property was sold at a nonjudicial foreclosure sale held in
compliance with Civil Code section 2924 for the purposes of section 1161a,
subdivision (b)(3). Assuming that the procedure the trial court employed to grant judicial
notice was improper, we conclude that the procedural error was not prejudicial.
1. The Nonjudicial Foreclosure Process
When a borrower defaults, the beneficiary under a deed of trust may declare a
default and proceed with a nonjudicial foreclosure sale. (Civ. Code, § 2924.) After the
trustee records the notice of default and election to sell and has waited approximately
three calendar months before proceeding with the sale (Civ. Code, § 2924,
subd. (a)(2)-(4)), a notice of sale must be published, posted, mailed and recorded at least
20 days before the sale (Civ. Code, § 2924f), a public auction to the highest bidder (Civ.
Code, § 2924g, subd. (a)). (See generally Royal Thrift & Loan Co. v. County Escrow,
Inc. (2004) 123 Cal.App.4th 24, 32 (Royal Thrift).) Under Civil Code section 2924h,
subdivision (c) the trustee’s sale is “ ‘deemed final upon the acceptance of the last and
highest bid, and shall be deemed perfected as of 8 a.m. on the actual date of sale if the
trustee’s deed is recorded within [21] calendar days after the sale . . . .’ ” (Dr. Leevil,
supra, 6 Cal.5th at p. 481, italics omitted.)
A recital in the trustee’s deed “of compliance with all requirements” regarding
service of the notice of default “shall constitute prima facie evidence of
compliance . . . and conclusive evidence thereof in favor of bona fide purchasers . . . for
value and without notice.” (Civ. Code, § 2924, subd. (c); see also Royal Thrift, supra,123 Cal.App.4th at p. 32.)
2. Legal Principles Regarding Judicial Notice of Recorded Documents
In general, judicial notice of the existence and facial contents of recorded
documents is proper, but courts may not take judicial notice of the truth of facts asserted
within judicially noticed documents. (See Yvanova v. New Century Mortgage Corp.
11
(2016) 62 Cal.4th 919, 924, fn. 1 (Yvanova); Julian Volunteer Fire Co. Assn. v.
Julian-Cuyamaca Fire Protection Dist. (2021) 62 Cal.App.5th 583, 600 (Julian).)
Appellate courts have distinguished between “the truth of specific factual representations
within a document” and “facts that can be deduced, and/or clearly derived from, [the]
legal effect” of “an official document,” such as “the names and dates contained in the
document, and the legal consequences of the document.” (Julian, supra, 62 Cal.App.5th
at p. 600; see also Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265
(Fontenot), disapproved on other grounds by Yvanova, supra, 62 Cal.4th at p. 939, fn. 13
[“a court may take judicial notice of the fact of a document’s recordation, the date the
document was recorded and executed, the parties to the transaction reflected in a recorded
document, and the document’s legally operative language, assuming there is no genuine
dispute regarding the document’s authenticity”]; Herrera v. Deutsche Bank National
Trust Co. (2011) 196 Cal.App.4th 1366, 1374–1375 (Herrera); Poseidon Development,
Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117–1118
(Poseidon).) “Moreover, whether the fact derives from the legal effect of a document or
from a statement within the document, the fact may be judicially noticed where . . . the
fact is not reasonably subject to dispute.” (Scott v. JPMorgan Chase Bank, N.A. (2013)
214 Cal.App.4th 743, 754 (Scott).)
For example, the Fontenot court held that it was proper to take judicial notice that
MERS was the beneficiary under a deed of trust based on MERS’s designation as such on
the judicially noticed deed of trust. (Fontenot, supra, 198 Cal.App.4th at p. 266.)
Similarly, the Poseidon court held that it was proper to take judicial notice of the fact that
Poseidon no longer held its beneficial interest under a deed of trust based on a judicially
noticed assignment of its beneficial interest where Poseidon did not dispute the validity
of the assignment. (Poseidon, supra, 152 Cal.App.4th at p. 1118.)
On the other hand, the Herrera court held that the trial court erred in taking
judicial notice of the assignment of a beneficial interest under a deed of trust to identify
12
the beneficiary in tandem with a substitution of trustee showing that the beneficiary had
put the foreclosing trustee in place. (Herrera, supra, 196 Cal.App.4th at pp. 1374–1375.)
The Herrera court reasoned that the representation in the assignment that the putative
assignor had any interest to assign was disputable hearsay unsupported by any evidence.
(Id. at p. 1375.) Similarly, the substitution’s recital stating that the beneficiary remained
“ ‘the present beneficiary under’ the . . . deed of trust” was disputed hearsay. (Ibid.)
Thus, Herrera held that judicial notice of the legal effect of the documents was improper
“in that case, because the vitality of the assignment was reasonably subject to dispute
without independent proof that the party assigning the interest had the authority to do so.”
(Scott, supra, 214 Cal.App.4th at p. 756, italics omitted.)
3. Whether Judicial Notice of the Legally Operative Language in the
Recorded Documents Established Compliance with Section 2924
Taptelis contends that judicial notice of the recorded documents cannot establish
that the proper entities foreclosed on the property because some of the documents were
invalid, lacking legal effect. We conclude instead that the trial court properly took
judicial notice of the legally operative language in the recorded documents and inferred
their legal effect from that language. (See Julian, supra, 62 Cal.App.5th at p. 600.)
To begin, there is no dispute that the trial court properly considered the deed of
trust, which reflects that Taptelis was the borrower, Recovco was the lender, MERS was
the original beneficiary, and Stewart Title was the original trustee. By its terms, the deed
of trust made “MERS (solely as nominee for Lender and Lender’s successors and
assigns) and the successors and assigns of MERS” the beneficiary of the deed of trust.
The deed of trust included the recital that “Borrower understands and agrees that MERS
holds only legal title” but “has the right: to exercise any or all of those interests,
including, but not limited to, the right to foreclose and sell the [p]roperty.” The deed of
trust also grants “Lender” the right to substitute the trustee.
13
By June 18, 2020, when the notice of default was executed, Quality was acting as
trustee on behalf of Homeward, as the beneficiary. Taptelis challenges the use of judicial
notice of the assignment and substitution to establish their authority to act in those roles.
But we conclude that the legal effect of the assignment and the substitution was within
the proper scope of judicial notice.
Taptelis contends that the assignment has no judicially noticeable legal effect
because (1) it does not mention transfer of the underlying note; (2) the court would need
to examine the agreement between MERS and Recovco to determine whether MERS held
the note before assigning its beneficial interest to Homeward; and (3) it does not have an
attestation that satisfies section 2015.5. As explained below, we reject these contentions.
First, we understand Taptelis to be arguing that Homeward could not take MERS’s
beneficial interest in the deed of trust without holding the underlying promissory note.
That line of argument has been repeatedly rejected in the nonjudicial foreclosure context.
(See Debrunner v. Deutsche Bank National Trust Co. (2012) 204 Cal.App.4th 433, 440–
442 (Debrunner); Shuster v. BAC Home Loans Servicing, LP (2012) 211 Cal.App.4th
505, 511–512 (Shuster); Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1004
(Orcilla); see also Civ. Code, § 2924, subd. (a)(1), (6) [allowing “trustee, mortgagee, or
beneficiary, or any of their authorized agents” to file notice of default]; Gomes v.
Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1155 [“ ‘trustee,
mortgagee, or beneficiary, or any of their authorized agents’ may initiate the foreclosure
process”].) Moreover, Taptelis cites no authority adopting his position in this context.
(Cf. Kelley v. Upshaw (1952) 39 Cal.2d 179, 191–192 [where chattel mortgage was
security for a promissory note and holder of the promissory note assigned the mortgage
without assigning the note, assignment of the mortgage was a legal nullity].) We follow
Debrunner, Shuster, and Orcilla. Even if the lender still held the note, MERS, which
acted as the lender’s “nominee” or agent, assigned its interest as the beneficiary under the
deed of trust to Homeward. (See Fontenot, supra, 198 Cal.App.4th at pp. 270–271 [as
14
“nominee” or agent, MERS could transfer the lender’s interest in the note to a third party,
subject only to any constraints in the agency agreement].) As a result, the court did not
need to examine the agreement between MERS and Recovco to determine whether
MERS held the note prior to assigning its beneficial interest to Homeward.
Second, Taptelis argues that the assignment was not properly before the court
because the notarized copy lacks a section 2015.5 attestation that “certifies under penalty
of perjury under the laws of the State of California” that the recitals are “true and
correct.” (See § 2015.5 [requiring the attestation when “unsworn statement, declaration,
verification, or certificate” is offered in lieu of “sworn statement, declaration,
verification, certificate, oath, or affidavit”].) Taptelis neither articulates why
section 2015.5 applies to an assignment nor offers pertinent authority: the lone case he
cites involves the admissibility of summary judgment declarations lacking the
section 2015.5 attestation. (See Kulshrestha v. First Union Commercial Corp. (2004)
33 Cal.4th 601, 605–606, 618–619.)7 Accordingly, we treat the contention as forfeit.
(See United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 146, 153
(United Grand) [appellant must supply some cogent argument supported by legal
analysis].)
Having rejected Taptelis’s contentions regarding the assignment, we conclude that
the trial court could properly take judicial notice of the legally operative language in the
assignment to conclude that it had the legal effect of assigning the beneficial interest in
the deed of trust from MERS to Homeward. (See Julian, supra, 62 Cal.App.5th at
p. 600.)
As for the substitution of trustee, Taptelis contends that it has no judicially
noticeable legal effect because (1) the assignment being invalid, Homeward produced no
7
Taptelis’s reply brief lacked any response to Homeward’s arguments that
(1) neither the assignment nor the substitution needed to be notarized and (2) Taptelis’s
argument was too cursory to preserve the issue.
15
evidence of authority to effect a substitution; (2) the substitution was executed by SLS as
Homeward’s attorney-in-fact, without evidence of SLS’s authority to act in that capacity;
and (3) the substitution was notarized without a section 2015.5 attestation.
As to the first and third contentions, we reject them consistent with our discussion
of Taptelis’s challenges to the assignment.
As to the second contention, we reject for lack of standing Taptelis’s contention
that Homeward was required to prove that it had authorized SLS to execute the
substitution on its behalf. Borrowers have standing to challenge pre-foreclosure
assignments to the extent the assignments are void, and not merely voidable. (See
Yvanova, supra, 62 Cal.4th at pp. 939–940.) In that context, courts have held that
allegations of robo-signing—documents signed by employees without authority or
fraudulently signed by unnamed entities in the name of another—render assignments
voidable, rather than void. (See Mendoza v. JPMorgan Chase Bank, N.A. (2016)
6 Cal.App.5th 802, 806, 819–820; Kalnoki v. First American Trustee Servicing Solutions,
LLC (2017) 8 Cal.App.5th 23, 46; see also Yvanova, supra, 62 Cal.4th at p. 930 [defining
a “voidable transaction . . . ‘[as] one where one or more parties have the power . . . of
election to do so, to avoid the legal relations created by the contract, or by ratification of
the contract to extinguish the power of avoidance’ ”]; Estate of Stephens (2002)
28 Cal.4th 665, 673 [defining “ ‘[r]atification’ ” as “ ‘the voluntary election by a person
to adopt in some manner as his own an act which was purportedly done on his behalf by
another person’ ”].) Taptelis has neither argued nor explained why SLS’s execution of
the substitution as Homeward’s attorney-in-fact could, if SLS had not in fact been
delegated such authority by Homeward, render the substitution void rather than voidable.
Thus, Taptelis lacks standing to press this challenge to the substitution. The legal effect
16
of the substitution was not disputable, so the trial court did not err in deriving its legal
effect from its legally operative language.8
Having rejected Taptelis’s contentions regarding the substitution, we conclude that
the trial court could properly take judicial notice of the legally operative language in the
substitution to conclude that it had the legal effect of substituting Quality for Stewart
Title as trustee. (See Julian, supra, 62 Cal.App.5th at p. 600.)
Taptelis contends that it was improper for the trial court to take judicial notice of
the legal effect of the notice of default or trustee’s deed. To the extent Taptelis’s
arguments depend on his challenges to the assignment or substitution, we reject them.
But Taptelis also contends that the notice of default was void because the accompanying
“declaration” was “full of conclusory statements” belied by Taptelis’s claim that the
notice of default was recorded while his application for a loan modification was under
consideration. We understand Taptelis to mean that the attached “California declaration
of compliance” (some capitalization omitted) required by subdivision (c) of Civil Code
section 2923.55 contains a false representation that 30 or more days had passed since the
servicer’s diligent effort to contact Taptelis. Taptelis, however, does not address whether
the alleged factual dispute could impact the legal effect of the notice of default. Thus, he
has not satisfied his obligation, as an appellant challenging the trial court’s judgment, to
supply some cogent argument supported by legal analysis to demonstrate error. (See
United Grand, supra, 36 Cal.App.5th at pp. 146, 153.) Moreover, we note the statutory
remedies for a “material violation” of Civil Code section 2923.55—injunctive relief
before recordation of the trustee’s deed upon sale, and actual economic damages
thereafter. (See Civ. Code, §§ 2923.55, subds. (c), (f), 2924.12, subds. (a)-(c), (e).)
8
The allegedly missing evidence here—proof that SLS was Homeward’s attorney-
in-fact—is materially different from the missing evidence in Herrera—chain-of-title
documents showing that the entity purportedly transferring its beneficial interest had any
such interest to transfer. (See Herrera, supra, 196 Cal.App.4th at pp. 1374–1375.)
17
Given the statutory scheme, it is not apparent that the alleged violation of section 2923.55
would, if proven postforeclosure, entitle Taptelis to void the notice of default, unwind the
foreclosure sale, and regain title.
Having rejected Taptelis’s contentions regarding the notice of default and trustee’s
deed, we conclude that both documents were judicially noticeable for their legally
operative language. (See Julian, supra, 62 Cal.App.5th at p. 600.)
For these reasons, we conclude that judicial notice of the recorded documents was
sufficient to establish that the proper entities recorded noticed the default and recorded
the trustee’s deed. Moreover, the legal effect of the recitals in the trustee’s deed is to
create a rebuttable presumption 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.” (§ 2924, subd. (c).) Accordingly, the
judicially noticed documents were collectively sufficient to establish a rebuttable
presumption of compliance with Civil Code section 2924. (See § 2924, subd. (c); Royal
Thrift, supra, 123 Cal.App.4th at p. 32.) The trial court did not err in relying on that
presumption to establish compliance with Civil Code section 2924, as an element
necessary to satisfy section 1161a, subdivision (b)(3).
4. The Judicial Notice Procedure
Taptelis contends that the trial court should have denied Homeward’s request for
judicial notice because Homeward did not afford him with adequate notice that it would
be asking the trial court to judicially notice the recorded documents at trial, either at all or
for their legal effect. Taptelis asserts that the first time he was given notice that
Homeward was seeking judicial notice of the recorded documents was at trial, and from
then he should have been given a reasonable time—five days—to brief his opposition to
judicial notice in writing. Moreover, Taptelis contends that even at trial he was not
advised that judicial notice of the legal effect of the documents would be sought or given
18
an adequate specification of the statutory grounds on which judicial notice was requested.
Taptelis contends that procedural errors denied him due process and are reversible per se.
We conclude, instead, that Taptelis was required but failed to show that the alleged
procedural errors were prejudicial.
Evidence Code section 455, subdivision (a) requires a trial court contemplating
judicial notice of any matter “of substantial consequence” to “afford each party
reasonable opportunity” to respond with information relevant to “the propriety
of . . . judicial notice” and “the tenor of the matter to be noticed.” A judge who discovers
only after submission of a cause that a matter should be judicially noticed
“ ‘may . . . order the cause to be reopened for the purpose of permitting the parties to
provide . . . information concerning the matter.’ ” (Estate of Russell (1971)
17 Cal.App.3d 758, 766; see also Estate of Nicholas (1986) 177 Cal.App.3d 1071, 1090
(Nicholas).)
Two weeks before trial, Homeward served its trial brief, exhibit list, and witness
list. Although there were 17 documents on the exhibit list, including the chain of title
documents, there was only one witness on the witness list—a process server who was
expected to testify about the notice to quit. On the same day, Taptelis filed his trial brief,
the final section of which was his “Objection to Plaintiff’s Exhibits by Judicial Notice,”
(boldface omitted) where he argued that Homeward must lay the foundation for every
document it relied on and could not secure judicial notice of disputed hearsay statements
in judicially noticed documents.
At trial, Taptelis objected to Homeward’s first request for judicial notice on the
ground that no written request for judicial notice had been filed and argued that Evidence
Code section 455 required the trial court to allow him to brief his objections to the
specific request. In the ensuing discussion, Homeward clarified that it would be
requesting judicial notice of the recorded chain of title documents under Evidence Code
sections 452 and 453. Taptelis responded that he “agree[d] with judicial notice” of the
19
date of recordation but disputed the propriety of “judicial notice of any of the facts
because all of the facts in any document that exists are all hearsay.” After the court
distinguished taking “judicial notice of a document” from “taking the statements within
that document . . . as evidence” Taptelis renewed his request for time to file a brief under
Evidence Code section 455. Homeward objected that Taptelis already had fair notice, as
shown by his trial brief disputing the propriety of judicial notice. The trial court ruled
that Taptelis had a “reasonable opportunity” to address the request for judicial notice
orally at the bench trial. After Taptelis renewed his challenges to judicially noticing facts
within the document, Homeward clarified that it was asking for judicial notice of “[j]ust
the document,” and the trial court announced it would take judicial notice of only the
name of the document and the date of the document. In its written order, the trial court
clarified that in taking judicial notice of the documents, and not the hearsay information
they contained: It took judicial notice of the recordation, the date the document was
executed and recorded, the parties to the documented transaction, and the documents’
legally operative language. From those facts, the trial court inferred the legal effect of
the documents.
We are not persuaded that any defect in the judicial notice procedure—whether it
be (1) failing to afford Taptelis a reasonable opportunity to meet the request before the
cause was submitted under Evidence Code section 455; or (2) failing to afford Taptelis an
opportunity to be heard after deciding to modify its initial ruling regarding the tenor of
the matter to be noticed—was prejudicial. First, it is apparent from the record that
Taptelis anticipated Homeward’s request for judicial notice and was prepared to meet it
on the merits. Second, Taptelis has not revealed what different or additional arguments
he would have raised in the trial court had he been given a more complete opportunity to
respond. (See Carlton v. Quint (2000) 77 Cal.App.4th 690, 698 [in the summary
judgment context, encouraging litigants to explain what “prejudice has been suffered by
reason of defective service and/or inadequate notice”].) Third, to the extent he may have
20
raised the legal contentions he has raised on appeal, we have rejected each of them. At
bottom, the trial court made a legal determination that it was appropriate to consider the
legally operative language in the recorded documents on a request for judicial notice.
That legal determination was correct—Taptelis’s additional arguments would not have
changed that. Accordingly, we are satisfied, beyond a reasonable doubt, that the alleged
improprieties in the judicial notice process did not contribute to the verdict obtained—the
trial court would have reached the same result on the request for judicial notice even with
the additional procedures Taptelis contends were required.9
Nor are we persuaded that the alleged procedural defects constitute structural
error. Taptelis never directly argues as much: he argues instead that the taking of
judicial notice amounted to a denial of constitutional due process such that the asserted
error could not be harmless. But even constitutional violations can be harmless, provided
they are not structural errors. (Cassim, supra, 33 Cal.4th at p. 801, fn. 6.) A structural
error is a structural defect in the trial mechanism that defies evaluation for harmlessness.
(See F.P. v. Monier (2017) 3 Cal.5th 1099, 1108.) Consistent with the foregoing
harmlessness analysis, the alleged errors raised here do not belong in that class. (See
generally Nicholas, supra, 177 Cal.App.3d at p. 1090 [conducting harmlessness analysis
assuming trial court improperly took judicial notice of court records].)
9
Taptelis argues that the procedural issues here constitute a violation of his due
process rights under the federal constitution. If he is correct, then the error may be
harmless only if the beneficiary of the error proves beyond a reasonable doubt that it did
not contribute to the verdict obtained. (See Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th
780, 801, fn. 6 (Cassim); Chapman v. California (1967) 386 U.S. 18, 24.) If he is not,
the error may be harmless if it is not reasonably probable that Taptelis would have
achieved a more favorable result in the absence of the error. (See Cassim, supra,
33 Cal.4th at pp. 801–802.) To the extent a lower threshold for harmlessness should
apply here, we would find that lower threshold met as well.
21
D. “Duly Perfected” Title
Taptelis contends that Homeward could not carry its burden of showing that it had
duly perfected title under the sale within the meaning of section 1161a, subdivision (b)(3)
because it was required to prove that the title was free of litigation, but the sale was
conducted with pending wrongful foreclosure litigation alleging dual tracking in violation
of the HBOR and a recorded lis pendens predicated on that suit. In Taptelis’s view, the
trial court prejudicially erred by excluding, through an in limine ruling and sustained
objections at trial, his evidence of the lis pendens, the wrongful foreclosure suit, and the
alleged dual tracking, all of which would have shown that Homeward had not duly
perfected title. In Homeward’s view, it demonstrated duly perfected title by making a
prima facie showing of the propriety of the foreclosure proceedings and its title,
culminating in the recordation of the trustee’s deed.10
The admission or exclusion of evidence on relevance grounds is typically subject
to the trial court’s broad discretion. (See People v. Waidla (2000) 22 Cal.4th 690, 717–
718 [abuse of discretion standard applies where admissibility turns on the relevance of
the evidence]; People v. Navarro (2021) 12 Cal.5th 285, 327.) But “[a]n order that
implicitly or explicitly rests on an erroneous reading of the law necessarily is an abuse of
discretion.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.)
10
In his opening brief, Taptelis argued that the trial court “prejudicial[ly]” erred
by “prohibiting” him “from introducing his senior litigation or lis pendens” to show that
the recording of the trustee’s deed “did not perfect title” such that the unlawful detainer
was improper under Dr. Leevil for lack of perfect title. Mischaracterizing this argument,
Homeward responded that the “closest” Taptelis came to arguing that Homeward’s title
was imperfect was “suggest[ing] that the mere existence of the [w]rongful [f]oreclosure
[c]ase . . . preclude[d] [a] finding of ‘perfect title.’ ” Homeward ignored Taptelis’s
reliance on Dr. Leevil. In supplemental briefing, Homeward contends that Dr. Leevil
does not require post-sale expungement of any properly recorded pre-sale lis pendens to
duly perfect title under a nonjudicial foreclosure sale.
22
Addressing the legal conclusion underpinning the trial court’s evidentiary ruling,
we hold that any error in denying Taptelis the opportunity to introduce evidence about the
alleged HBOR violations, the wrongful foreclosure suit, and the lis pendens was
harmless.11 The lis pendens was void for lack of a proof of service so it did not cloud
Homeward’s title under the sale.12 The prior wrongful foreclosure suit did not of itself
cloud Homeward’s title under the sale. Because no cloud on title has been identified,
Homeward’s recordation of the trustee’s deed was the last step to duly perfect title under
the sale within the meaning of section 1161a, subdivision (b)(3).
1. General Principles Regarding the Scope of Section 1161a(b)(3)
Proceedings
“Unlawful detainer actions are authorized and governed by Code of Civil
Procedure section 1161 et seq. ‘The statutory scheme is intended and designed to
provide an expeditious remedy for the recovery of possession of real property.’ ” (Coyne
v. De Leo (2018) 26 Cal.App.5th 801, 805 (Coyne).) “ ‘It has long been recognized that
the unlawful detainer statutes are to be strictly construed and that relief not statutorily
authorized may not be given due to the summary nature of the proceedings. [Citation.]
The statutory requirements in such proceedings “ ‘must be followed strictly . . . .’ ” ’ ”
(Dr. Leevil, supra, 6 Cal.5th at p. 480.) Because the remedy of unlawful detainer is
11
Although the trial court initially appeared to grant Homeward’s motion in limine
to exclude only evidence of the Homeowner Bill of Rights violations alleged in the
wrongful foreclosure action, the court during trial sustained Homeward’s objection to
evidence of the wrongful foreclosure complaint and lis pendens themselves, based on the
in limine ruling. We understand the trial court’s omission from its written decision of
Taptelis’s argument that Homeward had not “duly perfected” title as an implicit
conclusion that recordation of the trustee’s deed duly perfected Homeward’s title.
12
We do not address whether a valid lis pendens would have prevented
Homeward’s perfection of title under the sale within the meaning of section 1161a,
subdivision (b)(3).
23
“ ‘purely statutory in nature, it is essential that a party seeking the remedy bring [it]self
clearly within the statute.’ ” (Ibid.)
“ ‘Unlawful detainer actions are . . . of limited scope, generally dealing only with
the issue of right to possession and not other claims between the parties, even if related to
the property.’ ” (Coyne, supra, 26 Cal.App.5th at p. 805; see also Vella v. Hudgins
(1977) 20 Cal.3d 251, 255 (Vella); Malkoskie v. Option One Mortgage Corp. (2010)
188 Cal.App.4th 968, 973 (Malkoskie).) As a result, an unlawful detainer judgment
usually has “limited res judicata effect and will not prevent one who is dispossessed from
bringing a subsequent action to resolve questions of title.” (Vella, supra, 20 Cal.3d at
p. 255.)
Section 1161a is a “qualified exception” to the general rule against resolution of
claims other than possession, in that it “provides for a narrow and sharply focused
examination of title.” (Vella, supra, 20 Cal.3d at p. 255.) Section 1161a, subdivision (b)
“enumerate[s] five ‘cases’ in which its substantive provision applies.” (Dr. Leevil, supra,6 Cal.5th at p. 478.) “Section 1161a[, subdivision] (b)(3) is one of those ‘cases.’ ” (Id. at
p. 479.)
“Where the property has been sold in accordance with [s]ection 2924 of the Civil
Code, under a power of sale contained in a deed of trust executed by [the holdover
possessor], or a person under whom such person claims,” a plaintiff seeking a judgment
of unlawful detainer must establish that “the title under the sale has been duly perfected.”
(§ 1161a, subd. (b)(3); Dr. Leevil, supra, 6 Cal.5th at p. 479; see also id. at p. 481; Vella,
supra, 20 Cal.3d at p. 255; Malkoskie, supra, 188 Cal.App.4th at pp. 974–976.) “ ‘Title
is duly perfected when all steps have been taken to make it perfect, i.e., to convey to the
purchaser that which he has purchased, valid and good beyond all reasonable doubt.’ ”
(Dr. Leevil, supra, 6 Cal.5th at p. 479.)
Because they involve a limited examination of title, section 1161a title
determinations may bar “subsequent fraud or quiet title suits founded upon allegations of
24
irregularity in a trustee’s sale.” (Vella, supra, 20 Cal.3d at p. 256.) But they may not bar
other suits challenging activities not directly connected with the conduct of the sale. (See
Gonzalez v. Gem Properties, Inc. (1974) 37 Cal.App.3d 1029, 1035–1037.)
In Cheney v. Trauzettel (1937) 9 Cal.2d 158, an unlawful detainer defendant
“answered and cross-complained, setting up a claim of title and several other defenses,
including the pendency of a quiet title suit between the parties involving the same
property. The trial court . . . struck out the cross-complaint and special defenses, and
gave judgment for plaintiff.” (Id. at p. 159.) Affirming the judgment, the court explained
that the purchaser was required to “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” an unlawful detainer proceeding under section 1161a. (Ibid.) The court
explained that “alleged equitable grounds of attack on plaintiff’s title have no place in the
present summary proceeding, for if such issues are permissible, the proceeding entirely
loses its summary character.” (Id. at p. 160.) Reasoning that “the 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,”
the court held that “[m]atters affecting the validity of the trust deed or primary obligation
itself, or other basic defects in the plaintiff’s title, are neither properly raised in this
summary proceeding for possession, nor are they concluded by the judgment.” (Ibid.)
More recently, the Dr. Leevil court analyzed the statutory requirements under
section 1161a, subdivision (b). The Dr. Leevil court explained that “ ‘[t]itle is duly
perfected when all steps have been taken to make it perfect, i.e., to convey to the
purchaser that which he has purchased, valid and good beyond all reasonable
doubt . . . [citation], which includes good record title [citation], but is not limited to good
record title, as between the parties to the transaction. . . . The court in an unlawful
detainer [action] . . . has jurisdiction to determine the validity of such defenses.’ ” (Dr.
25
Leevil, supra, 6 Cal.5th at p. 479.) The Dr. Leevil court held that title is not perfected
until, “among other things,” the trustee’s deed is recorded. (Ibid.)
The Dr. Leevil court quoted Cheney for the limited scope of an unlawful detainer
action. (Dr. Leevil, supra, 6 Cal.5th at p. 483.) But the Dr. Leevil court highlighted that
limited scope as a reason to adopt a rule requiring a new owner to perfect title before
serving its three-day notice: The unlawful detainer defendant’s “ability to challenge
[plaintiff’s] claim of ownership was limited, and the Court of Appeal erred in suggesting
otherwise. And more generally, if the cloud on a new owner’s title concerns an issue that
cannot be litigated in an unlawful detainer action, and if, as the Court of Appeal
concluded, a new owner can serve a three-day written notice to quit before perfecting
title, then a holdover possessor of the property would have no choice but to vacate the
property upon receipt of the notice. It is possible, however, that the cloud on the title
would prevent the title from ever being perfected, in which case the holdover possessor
would have vacated the property unnecessarily.” (Id. at p. 484.)
Thus, both Cheney and Dr. Leevil agree that the scope of an unlawful detainer
action is limited. But there is tension between Cheney and Dr. Leevil as it relates to
possession of the property during a title dispute. Under the Cheney approach, the
unlawful detainer remedy should be available to enable a buyer to take possession before
resolution of a title dispute that cannot properly be resolved in the unlawful detainer
itself. Under the Dr. Leevil approach, at least those clouds on title that prevent the title
under the sale from being perfected must be resolved before the buyer can initiate
unlawful detainer proceedings possession.13
13
To the extent Homeward contends that courts are “prohibited” by “all
California authorities” (boldface and underlining omitted) from “requir[ing] the unlawful
detainer plaintiff to litigate” defects in title that cannot be raised in an unlawful detainer
proceeding “before being able to proceed in the unlawful detainer,” we disagree.
(Compare Asuncion v. Superior Court (1980) 108 Cal.App.3d 141, 146–147 (Asuncion)
[holding that due process required that “homeowners . . . [be] permitted to raise the
26
2. Significance of Taptelis’s Lis Pendens
As Homeward has acknowledged, a properly recorded lis pendens clouds title.14
(See Integrated Lender, supra, 22 Cal.App.5th at p. 877.) But Homeward contends that
the lis pendens here is ineffective because Taptelis failed to include a proof of service.
(See § 405.23; McKnight v. Superior Court (1985) 170 Cal.App.3d 291, 295, 297, 300–
303 [lis pendens properly expunged for technical violations, including failure to record
proof of service].) Homeward argues that Taptelis’s lis pendens consequently never
clouded title.
Taptelis responds that even if the lis pendens were void for lack of a proof of
service, it was still effective on any party who received actual notice. Alternately,
Taptelis contends that Homeward waived any right to challenge the validity of the lis
affirmative defenses which if proved would maintain their possession and ownership,”
that “title to the property is inevitably in issue in this unlawful detainer action,” and
suggesting stay and consolidation to resolve fraud action implicating title before
adjudication of unlawful detainer]; with Kartheiser v. Superior Court (1959)
174 Cal.App.2d 617, 618–623 [directing trial court to vacate order continuing unlawful
detainer trial pending appeal of judgment allowing trustee’s sale, on the ground the
appeal would inordinately delay the unlawful detainer plaintiff’s right to an early trial];
see also Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367, 385, 387 [holding that trial
court has the power to stay unlawful detainer proceeding or consolidate it with a pending
action in which title is at issue “because a successful claim of title by the tenant would
defeat the landlord’s right to possession”].)
14
Notice of a pending action, or a lis pendens, “may be recorded in an
action . . . ‘which would, if meritorious, affect . . . title to, or the right to possession of,
specific real property.’ ” (BGJ Associates, LLC v. Superior Court (1999) 75 Cal.App.4th
952, 967; see also §§ 405.4, 405.20.) The recording of the lis pendens “ ‘provides
constructive notice of the litigation’ ” and “ ‘clouds title until the litigation is resolved or
the lis pendens is expunged . . . . [Citation.]’ [Citation.] In other words, a party
obtaining an interest in the property subsequent to the lis pendens . . . will be bound by
the judgment in that action.” (Integrated Lender Services, Inc. v. County of Los Angeles
(2018) 22 Cal.App.5th 867, 877 (Integrated Lender); see also Nunn v. JPMorgan Chase
Bank, N.A. (2021) 64 Cal.App.5th 346, 363; Malcolm v. Superior Court (1981) 29 Cal.3d
518, 523, fn. 2.)
27
pendens. (See Biddle v. Superior Court (1985) 170 Cal.App.3d 135, 136–138 (Biddle);
see also J&A Mash & Barrel, LLC v. Superior Court (2022) 74 Cal.App.5th 1, 29 (J&A
Mash & Barrel).)
We conclude that Taptelis’s failure to secure recordation of the lis pendens with
any proof of service rendered the lis pendens void, such that even if a valid lis pendens
could cloud title under the sale, Taptelis’s lis pendens did not.
Section 405.22 requires claimants to serve a copy of the lis pendens to “the parties
to whom the real property claim is adverse and to all owners of record of the real
property affected by the real property claim” prior to recordation of the lis pendens.
Section 405.23 declares a lis pendens “void and invalid as to any adverse party or owner
of record unless the” service requirements set forth in section 405.22 “are met for that
party or owner and a proof of service in the form and content specified in [s]ection 1013a
has been recorded with the” lis pendens.
In Biddle, the trial court expunged “a lis pendens for a technical defect in service,
although the property owners had actual notice and had failed to raise the defect in two
prior motions to expunge.” (Biddle, supra, 170 Cal.App.3d at p. 136.) The Biddle court
issued a peremptory writ directing the trial court to deny the motion to expunge. (Id. at
p. 138.) The court explained that petitioners had “substantially complied with the service
requirement and unquestionably conveyed prompt actual notice to the [property owners],
thereby satisfying the purpose of the statute.” (Id. at p. 137.) The court also explained
that the property owners “waived any service defects by waiting more than a year to
assert them,” litigating “two motions to attack the substantive validity of the lis pendens
without mentioning the defects in service” in the interim. (Id. at p. 138.)
After Biddle was decided, the Legislature adopted the current lis pendens statutes.
(J&A Mash & Barrel, supra, 74 Cal.App.5th at p. 29.) A code comment explained that it
was “ ‘not the intention of . . . section [405.23] to disapprove the principles of waiver
applied in Biddle.’ ” (Id. at p. 24; see also Carr v. Rosien (2015) 238 Cal.App.4th 845,
28
854 (Carr); Rey Sanchez Investments v. Superior Court (2016) 244 Cal.App.4th 259, 264
(Rey Sanchez).)
Carr and Rey Sanchez interpreted Biddle to create a waiver exception to Code of
Civil Procedure section 405.23, which may apply only if two conditions are met: (1) the
claimant substantially complied with the service requirement; and (2) the party seeking
expungement waived any defects in service. (See Carr, supra, 238 Cal.App.4th at
p. 855; Rey Sanchez, supra, 244 Cal.App.4th at p. 264.)15
In Carr, the court held that Carr’s lis pendens was ineffective as to Colón, a
property owner, because Carr did not serve Colón, who did not receive actual notice of
the lis pendens until after selling the property. (Carr, supra, 238 Cal.App.4th at pp. 855–
856.) Moreover, “the fact that the lis pendens is ‘void . . . as to’ Colón would be cold
comfort if it nevertheless prevented Colón from conveying good title to third parties.”
(Id. at p. 856.) The court therefore concluded, “[A] lis pendens that is void as to one
owner is also void as to that owner’s transferees.” (Id. at pp. 856–857.) Accordingly, the
court held that Colón’s deed to another party had priority over Carr’s lis pendens. (Id. at
p. 857.)
The Carr court rejected Carr’s argument that the void lis pendens provided
constructive notice to subsequent purchasers until it was expunged. (Carr, supra,
238 Cal.App.4th at p. 857.) The court explained that the lis pendens need not be
expunged to be void as to an unserved property owner and that a lis pendens void as to an
15
Carr and Rey Sanchez, both of which were authored by the same justice, noted
that the Legislature “explicitly approved of Biddle’s waiver principle, but not its
substantial compliance principle.” (Rey Sanchez, supra, 244 Cal.App.4th at p. 264.)
Those courts “acknowledge[d] this could be read as a rejection of the idea that
substantial, rather than strict, compliance with section 405.22 might suffice to prevent a
lis pendens from being declared ‘void and invalid’ under section 405.23,” but neither
reached the issue. (Ibid.) Both decisions, however, distinguished Biddle on the ground
that claimants in those cases failed to substantially comply with the service requirement.
(Carr, supra, 238 Cal.App.4th at p. 855; Rey Sanchez, supra, 244 Cal.App.4th at p. 264.)
29
unserved party may be valid as to another party who was properly served. (Ibid.)
Otherwise, an unserved owner bringing a successful motion to expunge the lis pendens
would result in a windfall to the served owner (as to whom the lis pendens was valid).
(Ibid.; but see Rey Sanchez, supra, 244 Cal.App.4th at p. 265 [directing the trial court to
order expungement, “mindful that adverse consequences might flow if we ordered the
expungement of a lis pendens that is valid against defendants just because it is invalid as
to petitioner”].)
A third case, J&A Mash & Barrel, held that the claimant either actually or
substantially complied with the service requirement. (J&A Mash & Barrel, supra,
74 Cal.App.5th at pp. 25–31.) In connection with its substantial compliance alternate
holding, the court reasoned that substantial compliance was independently sufficient even
without a waiver. (Id. at pp. 28–31.)
Here, Taptelis argues that he timely served Homeward with the lis pendens
effecting actual notice, although he failed to record the proof of service when he recorded
the lis pendens.16 Whether or not Homeward received actual notice of the lis pendens,
Homeward raised the failure to record a proof of service when it first moved to expunge
the lis pendens more than a year after it was recorded.
16
On Taptelis’s request, we take judicial notice of an April 20, 2021 Taptelis
Declaration and Homeward’s April 28, 2022 motion to expunge the lis pendens, both
filed in the wrongful foreclosure case, as relevant to Taptelis’s waiver argument.
Although appellate courts generally will consider only matters before the trial court at the
time judgment was entered, we are satisfied that exceptional circumstances exist here,
where the documents relate to Homeward’s purported waiver of any defect in the lis
pendens, raised for the first time in Homeward’s petition for rehearing. (See generally
Haworth v. Superior Court (2010) 50 Cal.4th 372, 379, fn. 2.) Our judicial notice does
not extend to the truth of hearsay statements in the documents. (In re Vicks (2013)
56 Cal.4th 274, 314.) We deny Taptelis’s November 7, 2023 request for judicial notice
of documents relating to his substantive claims under the Homeowner Bill of Rights. We
deny Homeward’s March 20, 2024 request for judicial notice of the trial court’s
November 20, 2023 summary adjudication order in the wrongful foreclosure action.
30
We decline to hold that the failure to record a proof of service may be excused by
actual service. Section 405.23 requires both service in compliance with section 405.22
and recordation of a proof of service. Were we to hold that satisfaction of only the first
of these two requirements constituted substantial compliance, we would effectively
rewrite the statute in excess of our authority. (See City of San Jose v. Superior Court
(2017) 2 Cal.5th 608, 616–617.)
Further, we hold that delay in seeking expungement of a lis pendens does not
constitute waiver if the lis pendens is “void and invalid as to any adverse party or owner
of record” (§ 405.23) because no proof of service was recorded. We find Carr persuasive
in its holding that a lis pendens already void by operation of section 405.23 is ineffective
even without expungement. (Carr, supra, 238 Cal.App.4th at p. 857.) That being so,
inaction cannot alone effect a waiver. Biddle is distinguishable because the service issue
was not raised until the third motion to expunge the lis pendens was filed. (See id. at
p. 854 [discussing Biddle].)
We therefore conclude that the lis pendens Taptelis recorded before the
nonjudicial foreclosure sale was void and invalid as to Homeward because Taptelis failed
to record a proof of service. Consequently, the lis pendens did not cloud Homeward’s
title or otherwise impede the trial court’s finding that Homeward duly perfected title
under the sale. (See Carr, supra, 238 Cal.App.4th at pp. 855–857.)
3. Significance of the Wrongful Foreclosure Litigation
Under Dr. Leevil, “an owner that acquires title to property under a power of sale
contained in a deed of trust must perfect title before serving the three-day written notice
to quit required by . . . section 1161a[, subdivision] (b).” (Dr. Leevil, supra, 6 Cal.5th at
pp. 484–485, italics omitted.) “ ‘Title is duly perfected when all steps have been taken to
make it perfect, i.e., to convey to the purchaser that which he has purchased, valid and
good beyond all reasonable doubt.’ ” (Id. at p. 479.) This includes good record title as
between the parties to the transaction. (Ibid.) Dr. Leevil failed to perfect title before
31
serving the three-day notice because it had not yet recorded the instrument of sale (the
trustee’s deed). (Id. at pp. 479–480.) Dr. Leevil thus lacked good record title when it
served the three-day notice.
Here, at least given the invalidity of the lis pendens, Taptelis has not directed our
attention to any insufficiency in Homeward’s showing that it had good record title after it
recorded the trustee’s deed. Accordingly, the barrier that precluded initiation of unlawful
detainer proceedings in Dr. Leevil is not present here.
Taptelis contends that his wrongful foreclosure suit rendered Homeward’s title
imperfect because even without the lis pendens, Homeward had actual notice of the suit.
To endorse Taptelis’s contention would undermine the Legislature’s intent to expedite
postforeclosure unlawful detainer proceedings.
Upon the recordation of the trustee’s deed, Homeward had good record title and
could transfer good title to third parties. (See Carr, supra, 238 Cal.App.4th at pp. 856–
857.) All steps had been taken to convey title to Homeward, valid and good beyond all
reasonable doubt. (See Dr. Leevil, supra, 6 Cal.5th at p. 479.)
We do not read Dr. Leevil as suggesting that resolution of all pending litigation
over the property is a prerequisite to the right of possession under section 1161a. At its
core, the case is about whether the former owner could verify that the entity issuing the
notice to quit was the buyer at the foreclosure sale and that the foreclosure sale had been
perfected. (See Dr. Leevil, supra, 6 Cal.5th at pp. 482–483.) The court’s broader
discussion of perfection of title under the sale may be read to suggest that perfection of
title under the sale requires resolution of clouds on title before the right to possession
may be litigated. (See id. at p. 484; see also Hocking v. Title Ins. & Trust Co. (1951)
37 Cal.2d 644, 649, 652 [discussing perfection of title, including in language that is
quoted in Dr. Leevil].) But although Taptelis continued to seek to unwind the foreclosure
sale in litigation with Homeward, we do not think that Homeward’s title under the sale
32
was cast into reasonable doubt by that litigation, when Taptelis did not properly record
and maintain a valid lis pendens.
E. Requests for Consolidation or Stay
Taptelis contends that he was denied his constitutional right to due process by the
trial court’s refusal to stay the unlawful detainer action until after his consolidation
motion could be heard and its failure to rule on his ex parte application for a stay of
execution of judgment. Reviewing for abuse of discretion, (see Bains v. Moores (2009)
172 Cal.App.4th 445, 480 [stay]; National Electric Supply Co. v. Mt. Diablo Unified
School Dist. (1960) 187 Cal.App.2d 418, 421 [consolidation]), we identify no prejudicial
error.
1. Consolidation or Stay of Trial
The purpose of Taptelis’s requests for consolidation or stay was to delay
resolution of the unlawful detainer action until after the resolution of the wrongful
foreclosure action, such that Taptelis could retain possession of the property until the
latter action was resolved. Taptelis has established no prejudice in the trial court’s
determination that Homeward was entitled to possession despite his pending wrongful
foreclosure suit. We thus have no basis to discern prejudice in the trial court’s deciding
the unlawful detainer proceeding ahead of the wrongful foreclosure action.
Asuncion, despite Taptelis’s reliance, does not compel a different result. There,
Financial “loaned the Asuncions about $4,800 for 45 days, in return for real property
having an equity in excess of $20,000. It [was] alleged such loan may be usurious, as
well as fraudulent and in violation of a number of laws.” (Asuncion, supra,
108 Cal.App.3d at p. 144.) The court noted generally that a summary proceeding “is not
a suitable vehicle to try complicated ownership issues involving assertions of fraud and
deceptive practices.” (Ibid.) But determining that the Asuncions were entitled to defend
the unlawful detainer action based on their claims of fraud, the court suggested stay or
consolidation to facilitate the adjudication of those defenses. (Id. at pp. 146–147.) Here,
33
however, we have determined that the pendency of Taptelis’s wrongful foreclosure action
did not in itself prevent Homeward from obtaining possession under section 1161a,
subdivision (b)(3).
2. Stay of Execution of Judgment
A defendant’s appeal from a judgment of unlawful detainer does not automatically
stay proceedings upon the judgment. “Stay of judgment shall be granted when the court
finds that the moving party will suffer extreme hardship in the absence of a stay and that
the nonmoving party will not be irreparably injured by its issuance. If the stay is denied
by the trial court, the defendant may forthwith file a petition for an extraordinary writ
with the appropriate appeals court.” (§ 1176, subd. (a).)
Taptelis sought a stay of the judgment by ex parte motion; when the trial court
entered judgment without ruling on the ex parte, he petitioned this court for stay of
judgment; and we denied the petition.
Taptelis now argues that the trial court abused its discretion by failing to issue an
order expressly addressing his ex parte motion and denied him the right to be heard.
Having exercised his right to challenge the implicit denial of his motion by petition to
this court, Taptelis has not articulated why the trial court was required to grant the ex
parte motion or why its failure to do so bears on the merits of his appeal from the
judgment itself. We see no basis for relief on these procedural grounds.
III. DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to Homeward.
34
____________________________
LIE, J.
WE CONCUR:
____________________________
GREENWOOD, P. J.
_____________________________
GROVER, J.
Homeward Opportunities Fund I Trust 2019-2 v. Taptelis
H049791