U.S. Financial v. McLitus

Filed 8/29/16; published by order of Supreme Court 11/30/16 (see end of opn.)

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO APPELLATE DIVISION

U.S. FINANCIAL, L.P. as Trustee, etc., Appellate Division No.: 37-2016-00200116-CL-UD-CTL Trial Court Case No.: 37-2015-00035881-CL-UD-CTL Plaintiff and Respondent, Trial Court Location: Central Division

v. DECISION/STATEMENT OF REASONS MICHAEL MCLITUS, (CCP § 77(d)) BY THE COURT

Defendant and Appellant.

APPEAL from the January 20, 2016 unlawful detainer judgment entered by the Superior Court San Diego County, Gary G. Kreep, Judge. Following argument on August 25, 2016, this matter was taken under submission. REVERSED and REMANDED. Code of Civil Procedure section 1161a requires a plaintiff to have both perfected the sale and the title in order to bring a summary unlawful detainer action for possession. (Code Civ. Proc., § 1161a, subd (b)(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.”1 (Italics

1 Section 2924h of the Civil Code merely defines when the sale is duly perfected: “The trustee’s sale shall be … deemed perfect as of 8 a.m. on the actual date of the sale if the trustee’s deed is recorded within 15 calendar days after the sale….” (Italics added.) DECISION/STATEMENT OF REASONS (CCP § 77(d)) BY THE COURT

added.)].)

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 remedy of unlawful detainer is a summary proceeding to determine the right to possession of real property. Since it is purely statutory in nature, it is essential that a party seeking the remedy bring himself clearly within the statute. [Citation.] (Baugh v. Consumers Associates, Limited (1966) 241 Cal.App.2d 672, 674-675.) Contrary to the plain reading of the statute, the trial court erroneously concluded “… that under California Civil Code section 2924h(c), title is deemed perfected as of 8 a.m. on the date of the sale because the trustee’s deed upon sale was recorded within 15 calendar days.” (Statement of Decision, italics added.) In this case, the sale was perfected at the time the three-day notice was served, but not the title. Thus, the plaintiff could not provide defendant with a valid three-day notice. The court below mixed the issues of sale and title, but perfecting title is not interchangeable with perfection of the sale under this statutory scheme. Unless and until the Plaintiff has duly perfected title, an unlawful detainer action for possession is not yet ripe for determination. (Stonehouse Homes v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 540-541.)