Bank of New York Mellon v. Preciado

1 Filed 8/19/13 (ordered published by Supreme Ct. 3/19/14)

2 SUPERIOR COURT OF CALIFORNIA 3 COUNTY OF SANTA CLARA 4 APPELLATE DIVISION 5 6 THE BANK OF NEW YORK MELLON, Appellate Division No. 1-12-AP-001360 7 Plaintiff and Respondent, (Super. Ct. No. 111CV215286) 8 v. 9 VIDAL A. PRECIADO et al., 10 Defendants and Appellants. 11 12 THE BANK OF NEW YORK MELLON, Appellate Division No. 1-12-AP-001361 13 Plaintiff and Respondent, (Super. Ct. No. 111CV215288) 14 v.

15 ROLAND LUKE et al., 16 Defendants and Appellants. 17 18 THE COURT*

19 The appeal by appellants Vidal Preciado (“Preciado”), Roland Luke (“Luke”), and

20 Kenneth Henderson (“Henderson”) (collectively, “Appellants”) from the unlawful detainer

21 judgments entered on March 16, 2012, came on regularly for hearing and was heard and

22 submitted on August 16, 2013. We hereby hold as follows:

23 Procedural History

24 This is an appeal from two related unlawful detainer actions. Respondent The Bank of 25 New York Mellon (“Bank”) is the owner of 1343 State Street, in Alviso, California. On July 26 25, 2011, Bank acquired title to this property at a trustee’s sale pursuant to foreclosure upon a 27 deed of trust. The property was previously owned by Preciado and occupied by Appellants. 28 * Before Lucas, P. J., Ryan J., and Alloggiamento, J.

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1 On September 1, 2011, Bank served a written notice to Appellants to quit and deliver 2 possession of the property within three days, 30 days, or 90 days (depending on their occupancy 3 status). After waiting more than 90 days, Bank filed two unlawful detainer complaints against 4 Appellants on December 19, 2011. The complaints incorrectly described the property as being 5 located in San Jose instead of Alviso. Appellants filed individual answers to the complaints, 6 and Henderson and Luke also filed individual prejudgment claims of right to possession. 7 Trial on the unlawful detainer actions was held on March 16, 2012, before the 8 Honorable Socrates Manoukian.1 That same day, a judgment was entered in each case which 9 awarded Bank possession of the property, rent, and damages. However, when the sheriff sought 10 to execute the writ, it was discovered that the property was incorrectly listed as being in San 11 Jose. The sheriff was unable to execute the writ due to this error, and Bank moved for an ex 12 parte order to amend the judgment. On April 13, 2012, the court entered an order amending the 13 judgments to change the property address to Alviso. 14 At Appellants’ request, the court stayed Appellants’ eviction for 40 days, up to and 15 including April 28, 2012. Appellants filed individual notices of appeal from the March 16, 16 2012 judgments. 17 Appealability 18 A final judgment in a limited civil case is appealable to the appellate division of the 19 superior court. (Code Civ. Proc., § 904.2, subd. (a).) The trial court entered judgment in these 20 limited civil cases on March 16, 2012. Accordingly, the judgments are appealable to the 21 Appellate Division. 22 Issues on Appeal 23 24 On appeal, Appellants make the following arguments: