Smith v. Khun CA3

Filed 9/17/20 Smith v. Khun CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

SAMUEL FITZGERALD SMITH, C088763

Cross-defendant and Appellant, (Super. Ct. No. STKCVPRP20150005215) v.

JASMINE KHUN,

Cross-complainant and Respondent.

In this quiet title action, cross-defendant Samuel Fitzgerald Smith argued his lender JD Brothers, LLC, wrongfully foreclosed upon his home (the home) and sold it to cross-complainant Jasmine Khun.1 Because of this invalid transfer, Smith argued, Khun was not a bonafide purchaser of the home. The trial court disagreed and found Smith failed to prove he held superior title to the home. Consequently, the trial court quieted title in favor of Khun. We affirm.

1 The record reflects Jasmine Khun was erroneously sued as Jasmine Kuhn. We will refer to her by her given name throughout this opinion.

1

FACTUAL AND PROCEDURAL BACKGROUND On July 21, 2015, Khun filed and served Smith with a cross-complaint for quiet title and declaratory relief. Khun alleged she was the rightful owner of the home, despite Smith’s previous lawsuit alleging he was the rightful owner. Due to a series of mishaps, Khun ultimately filed a request for entry of default on the cross-complaint in November 2017. Default was entered the same day it was requested. Both parties were present at the default prove-up hearing, with Smith representing himself.2 “The parties were provided a hearing in open court with the opportunity to present evidence and cross[-]examine witnesses pursuant to [Code of Civil Procedure section ]764.010. The matter was set for short cause hearing and the matter was completed in approximately two (2) hours. The parties were given the opportunity to provide further legal authority to the court and both parties presented the court with points and authorities following the hearing.” In Smith’s points and authorities, he argued Khun was not a bonafide purchaser of the home. He pointed to his success in an unlawful detainer action regarding the home to demonstrate that JD Brothers, LLC, lacked any right to sell the home to Khun at a foreclosure sale. Smith also requested judicial notice of three exhibits. The court took judicial notice of one -- an order vacating judgment in favor of Sutton Funding against Smith in an October 2010 case. The order granting Smith’s motion to vacate the judgment provided that Sutton Funding filed a complaint for judgment against Smith regarding the home. The order does not specify what that complaint alleged or sought as relief. Following judgment in the matter, Smith filed a motion to vacate the judgment and based on “additional findings, the motion [was] granted.”