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Tuzzolino v. Fed. Nat'l Mortg. Ass'n

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Oct 5, 2018
E068822 (Cal. Ct. App. Oct. 5, 2018)

Opinion

E068822

10-05-2018

JOE TUZZOLINO II et al., Plaintiffs and Appellants, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendant and Respondent.

Joe Tuzzolino II and Sheli Tuzzolino, in pro. per., for Plaintiffs and Appellants. Locke Lord, Regina J. McClendon and Xiyi Fu for Defendant and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1501772) OPINION APPEAL from the Superior Court of San Bernardino County. Wilfred J. Schneider, Jr., Judge. Affirmed. Joe Tuzzolino II and Sheli Tuzzolino, in pro. per., for Plaintiffs and Appellants. Locke Lord, Regina J. McClendon and Xiyi Fu for Defendant and Respondent.

Joe Tuzzolino II and Sheli Tuzzolino (collectively, Homeowners) sued American World Financial Group, Inc. (AWFG) and the Federal National Mortgage Association (Fannie Mae) for alleged irregularities related to a foreclosure. The trial court sustained Fannie Mae's demurrer without leave to amend. Homeowners contend the trial court erred. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

A. ORIGINAL COMPLAINT

In February 2015, Homeowners sued AWFG to (1) quiet title, and (2) cancel a void instrument. Homeowners alleged they owned a home in Rancho Cucamonga (the property). In 2006, Homeowners borrowed $412,000 from AWFG. The loan was secured by a deed of trust against the property. Mortgage Electronic Registration Systems, Inc. (MERS) was identified as the beneficiary of the deed of trust. The deed of trust was assigned several times. Homeowners alleged the assignments were invalid, and therefore, the deed of trust and assignments should be canceled and title to the property should be quieted in favor of Homeowners.

Homeowners requested a default judgment. A prove-up hearing was held on June 17, 2016. The trial court denied the request "noting that an u[n]lawful detainer action had been filed by the Federal National Mortgage Association (Fannie Mae) on April 27, 2015 and judgment was entered in favor of Fannie Mae on December 8, 2015." The trial court explained, Homeowners failed to join Fannie Mae, which was a necessary party. The trial court wrote, "[Homeowners] were aware of the foreclosure activity on their property and declined to investigate the proper parties. [Homeowners] are ordered to join Fannie Mae as a defendant."

B. FIRST AMENDED COMPLAINT

In a first amended complaint (FAC), Homeowners sued AWFG and Fannie Mae. Homeowners brought 10 causes of action: (1) wrongful foreclosure; (2) quiet title; (3) declaratory relief; (4) cancellation of instruments; (5) violation of the California Homeowner Bill of Rights; (6) quasi contract; (7) breach of contract; (8) breach of the implied covenant of good faith and fair dealing; (9) unfair business practices (Bus. & Prof. Code, § 17200); and (10) fraud.

Homeowners alleged, "The thrust of [Homeowners'] case is that, as a result of fraudulent documents and egregious breaches of agreements governing the 'Mortgage Pass-Through Certificates['], hereinafter 'MBS Trust', to which [Homeowners'] loan was sold in 2005 [sic], [Homeowners'] loan bec[a]me unsecured. As a result, none of the Defendants named to this action [are] a beneficiary or real party in interest under [Homeowners'] Deed of Trust having the power to collect payments, to exercise the power of sale or to foreclose on [the] Property on February 11, 2015.

"This situation arises from the fact that [Homeowners'] mortgage loan was contributed to a MBS Trust that is known as the Mortgage Pass-Through Certificates, known as the Fannie Mae REMIC Trust 2006-96, hereinafter referred to as the 2006-96 Trust. As prescribed rules governing the trust were violated, the securitization of [Homeowners'] loan failed leaving Defendants without any legal or equitable interest in [the property]."

Homeowners alleged a variety of false documents were recorded related to the property. Homeowners asserted the notice of default was "false and baseless" in that it failed to accurately identify the beneficiary of the deed of trust. Homeowners alleged that Fannie Mae "had no right to collect mortgage payments and associated fees and costs from [Homeowners]." Homeowners contended Fannie Mae did not have a beneficial interest in the deed of trust because improper transfers of the deed of trust had occurred. The transfers were improper because there was no recorded document transferring AWFG's interest to any other party.

The following documents were attached to the FAC: (1) the 2006 deed of trust reflecting MERS was the beneficiary of the deed of trust; (2) a 2011 assignment of the beneficial interest in the deed of trust from MERS to BAC Home Loans Servicing, LP FKA Countrywide Home Loans Servicing LP; (3) a 2013 assignment of the beneficial interest in the deed of trust from Bank of America, N.A. to Green Tree Servicing LLC (Green Tree); (4) a September 23, 2014, notice of default and election to sell, reflecting that Green Tree should be contacted "to arrange for payment to stop the foreclosure" and that $95,020.71 was owed on the loan as of September 19, 2014; (5) a January 5, 2015, notice of trustee's sale; (6) an assignment of deed of trust from Green Tree to Fannie Mae; and (7) a February 18, 2015, trustee's deed upon sale reflecting the grantee was the foreclosing beneficiary, i.e., Fannie Mae.

C. DEMURRER

Fannie Mae demurred to the FAC. Fannie Mae asserted the FAC was barred by res judicata. Fannie Mae asserted Homeowners' claims "were addressed and adjudicated in the unlawful detainer action brought by Fannie Mae against [Homeowners]." Fannie Mae explained that it brought an unlawful detainer action against Homeowners on April 27, 2015. Fannie Mae moved for summary judgment in the unlawful detainer case. Homeowners opposed the summary judgment motion arguing (1) there had been an invalid substitution of trustee; (2) the foreclosure sale did not follow proper procedures; (3) the notice of default contained errors; and (4) the assignments of the deed of trust were void because there was no underlying obligation.

In Fannie Mae's demurrer, it wrote, "On December 8, 2015, the Superior Court granted Fannie Mae's motion for summary judgment. [Citation.] The Judge found that there was no triable issue of material fact because Fannie Mae is the owner of the Property by way of acquiring title to the Property at the trustee's sale. [Citation.] On February 5, 2016, [Homeowners] filed a notice of appeal. On November 21, 2016, the [superior court's appellate division] affirmed the Superior Court's judgment."

Fannie Mae contended that all 10 causes of action in the FAC were premised upon the assignment of the deed of trust being void and the foreclosure notices being invalid. Fannie Mae asserted these issues were addressed or could have been addressed in the unlawful detainer case. Fannie Mae contended the unlawful detainer case was decided on the merits because the trial court found no triable issue of fact as to Fannie Mae being the owner of the property. Fannie Mae went on to explain why Homeowners' FAC failed to allege sufficient facts to support a cause of action.

Fannie Mae filed a request for judicial notice, which included Homeowner's opposition to the motion for summary judgment in the unlawful detainer case. In the opposition, Homeowners questioned "[t]he authenticity of any Assignments of Deed of Trust recorded in the chain of title prior to the foreclosure sale." Homeowners wrote, "All assignment recorded are contested by [Homeowners]."

Also included with the request for judicial notice was the trial court's order granting Fannie Mae's motion for summary judgment. In the order, the trial court wrote, "The Court finds there is no triable issue of material fact and [Fannie Mae] is entitled to Summary Judgment because [Fannie Mae] is the owner of the property . . . having acquired title to the Property at a trustee's sale conducted in accordance with California law as shown by the certified copy of the Trustee's Deed Upon Sale."

D. OPPOSITION

Homeowners opposed the demurrer. Homeowners contended they alleged sufficient facts to support their causes of action. Homeowners asserted the assignments of the deed of trust were invalid. Homeowners wrote, "The fact that this Assignment of Deed of Trust exists without an Assignment of Note calls into question its validity." Homeowners contended Fannie Mae did not have the authority to foreclose because Fannie Mae's interest in the property was not recorded at the time of the foreclosure sale.

E. HEARING

The trial court's tentative ruling was to sustain the demurrer without leave to amend. Homeowners contacted the trial court to state they would not appear at the hearing and submitted on the matter. The trial court granted Fannie Mae's requests for judicial notice. The trial court sustained the demurrer without leave to amend "because the action is barred by res judicata." The trial court entered judgment in favor of Fannie Mae.

F. NOTICE OF MOTION FOR NEW TRIAL

Homeowners filed a notice of motion for new trial. The trial court clerk rejected the notice, explaining,"[Homeowners] motion for new trial is returned by Court for the following reason(s): There was no prior trial; judgment by demurrer ruling."

G. MOTION TO VACATE THE JUDGMENT

Homeowners moved to vacate the judgment. Homeowners asserted the trial court erred by entering judgment against them because (1) AWFG had not appeared in the case; (2) Fannie Mae did not have a legitimate interest in the property because Fannie Mae only had "a fraudulent Assignment of Deed of Trust"; and (3) an unlawful detainer action had limited res judicata effect and typically does not bar a subsequent action for resolving title issues.

H. OPPOSITION

Fannie Mae opposed the motion to vacate the judgment. Fannie Mae explained that the motion was, in effect, a motion for reconsideration. Fannie Mae contended that Homeowners failed to explain why the judgment was void. (Code Civ. Proc., § 473, subd. (d).) Fannie Mae argued that Homeowners missed the 10-day deadline for a motion for reconsideration by filing their motion "more than three months after the Notice of Entry of the Minute Order." Further, Fannie Mae asserted Homeowners' motion was not based upon new or different facts, circumstances or law. (§ 1008, subd. (a).)

All subsequent statutory citations will be to the Code of Civil Procedure, unless otherwise indicated.

I. HEARING

Homeowners filed a notice reflecting they would not appear at the hearing on their motion to vacate the judgment. The trial court denied Homeowners' motion.

DISCUSSION

A. STANDARD OF REVIEW

" 'We review de novo the trial court's order sustaining a demurrer.' [Citation.] In doing so, this court's only task is to determine whether the complaint states a cause of action. [Citation.] We accept as true all well-pleaded allegations in the operative complaint, and we will reverse the trial court's order of dismissal if the factual allegations state a cause of action on any available legal theory." (Brown v. Deutsche Bank National Trust Company (2016) 247 Cal.App.4th 275, 279.)

B. RES JUDICATA

Homeowners contend the trial court erred by finding their lawsuit was barred by res judicata.

Fannie Mae asserts Homeowners forfeited this issue by failing to address the res judicata issue in their opposition to the demurrer. New theories may be raised in an appeal from the sustaining of a demurrer. (B&P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 959.) Accordingly, we address the merits of the issue.

"An unlawful detainer action is a summary proceeding ordinarily limited to resolution of the question of possession. [Citation.] Accordingly, it is true that any judgment arising therefrom generally is given limited res judicata effect. [Citation.] However, a 'qualified exception to the rule that title cannot be tried in unlawful detainer is contained in . . . section 1161a, which extends the summary eviction remedy beyond the conventional landlord-tenant relationship to include certain purchasers of property. [Citation.] [S]ection 1161a, subdivision (b)(3) . . . provides an unlawful detainer action may be filed '[w]here 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 . . . and the title under the sale has been duly perfected.' " (Malkoskie v. Option One Mortgage Corp. (2010) 188 Cal.App.4th 968, 973 (Malkoskie).)

"The Supreme Court in Vella [v. Hudgins (1977) 20 Cal.3d 251, 256] acknowledged the decisional law holding that 'subsequent fraud or quiet title suits founded upon allegations of irregularity in a trustee's sale are barred by the prior unlawful detainer judgment.' [Citation.] Vella explained that the propriety of applying collateral estoppel to an underlying unlawful detainer judgment brought pursuant to section 1161a became doubtful only if the claims in the second action involved activities or alleged wrongdoing not 'directly connected' with the conduct of the foreclosure sale." (Malkoskie, supra, 188 Cal.App.4th at p. 974.)

"The doctrine of collateral estoppel is one aspect of the concept of res judicata." (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341, fn. 3 (Lucido).) "Collateral estoppel, or issue preclusion, 'precludes relitigation of issues argued and decided in prior proceedings.' " (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.)

Collateral estoppel has five requirements: "First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. [Citations.]" (Lucido v. Superior Court, supra, 51 Cal.3d at p. 341.)

We examine if the former and current issues are identical. "The 'identical issue' requirement addresses whether 'identical factual allegations' are at stake in the two proceedings." (Lucido, supra, 51 Cal.3d at p. 342.) In the unlawful detainer proceeding, in Homeowners' opposition to Fannie Mae's motion for summary judgment, Homeowners questioned "[t]he authenticity of any Assignments of Deed of Trust recorded in the chain of title prior to the foreclosure sale." Homeowners also contended, "All assignments recorded are contested by [Homeowners]. [Homeowners have] offered credible evidence that the assignments of deed of trust are and/or would be a sham and a fraud under California law. [Citation.] [Fannie Mae's] title by way of a Trustee's Deed Upon Sale remains a triable issue of fact."

In the current case, in Homeowners' FAC, they alleged, "The thrust of [Homeowners'] case is that, as a result of fraudulent documents and egregious breaches of agreements governing the 'Mortgage Pass-Through Certificates['] [Homeowners'] loan became unsecured. As a result, none of the Defendants named to this action is a beneficiary or real party in interest under [Homeowners'] Deed of Trust." Homeowners alleged Fannie Mae "deliberately misrepresented themselves as the beneficiary of [Homeowners'] debt obligation." Homeowners alleged that Fannie Mae "had no right to collect mortgage payments and associated fees and costs from [Homeowners]." Homeowners contended Fannie Mae did not have a beneficial interest in the deed of trust because improper transfers of the deed of trust had occurred.

In the unlawful detainer case, Homeowners opposed summary judgment on the basis that Fannie Mae could not lawfully foreclose because improper transfers of the deed of trust had taken place. Homeowners raised the same arguments in the FAC. Accordingly, the former and current issues are identical.

Second, we examine if the issue was actually litigated in the unlawful detainer proceeding. An issue is actually litigated when the parties have an opportunity to present their full case. (Lucido, supra, 51 Cal.3d at p. 341.) " ' "An issue may be submitted and determined on a motion to dismiss for failure to state a claim, a motion for judgment on the pleadings, a motion for summary judgment[,] a motion for directed verdict, or their equivalents, as well as on a judgment entered on a verdict. . . . A party urging collateral estoppel must prove that the issue was actually litigated and that the evidence was not restricted, but need not establish that oral testimony, or any particular type of evidence was presented." (Murphy v. Murphy (2008) 164 Cal.App.4th 376, 401.)

In the unlawful detainer case, in opposition to the summary judgment motion, Homeowners wrote, "[Homeowners have] offered credible evidence that the assignments of deed of trust are and/or would be a sham and a fraud under California law." There are no exhibits attached to Homeowners' opposition, but the opposition does include citations to evidence. Given that Homeowners discussed providing evidence and cited to evidence, we conclude they had the unrestricted opportunity to present their evidence to the trial court.

Third, we examine if the issue was necessarily decided in the unlawful detainer proceeding. For the issue to be necessarily decided, it must "not have been 'entirely unnecessary' to the judgment." (Lucido, supra, 51 Cal.3d at p. 342.) Section 1161a, subdivision (b)(3), provides an occupant may be removed from a home after a three-day notice to quit has been served "[w]here 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 claims, and the title under the sale has been duly perfected." " ' "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[] [citation], which includes good record title." ' " (Malkoskie, supra, 188 Cal.App.4th at p. 975.)

In the unlawful detainer action, in order to determine if Homeowners could be removed from the property, the trial court had to decide if Fannie Mae had a good and valid title to the property. Therefore, the issue of whether Fannie Mae properly held the beneficial interest in the deed of trust, such that it could properly be granted title to the property, was a necessary part of the unlawful detainer proceedings.

In rendering its decision, the trial court wrote, "The Court finds there is no triable issue of material fact and [Fannie Mae] is entitled to Summary Judgment because [Fannie Mae] is the owner of the property . . . having acquired title to the Property at a trustee's sale conducted in accordance with California law." Thus, the trial court necessarily decided the issue of whether Fannie Mae legally acquired title to the property.

Fourth, we analyze whether the unlawful detainer decision is final and on the merits. A decision is final when it is "free from direct attack." (Lucido, supra, 51 Cal.3d at p. 342.) On November 21, 2016, the appellate division of the superior court affirmed the trial court's judgment in the unlawful detainer case. There is nothing indicating that any further appeals are pending. Accordingly, we conclude the unlawful detainer decision is final. The trial court decided the issue on the merits because it concluded Fannie Mae is the legal owner of the property.

Fifth, we examine if the same parties are involved. The unlawful detainer proceeding involved Fannie Mae and Homeowners. The current case involves Fannie Mae and Homeowners. Accordingly, the same parties are involved.

In sum, all the requirements for collateral estoppel have been met. In the unlawful detainer proceedings, the trial court heard from Homeowners and Fannie Mae on the issue of whether Fannie Mae legally acquired title to the property. The trial court necessarily decided the issue, and its decision is final and on the merits. Accordingly, the trial court did not err by sustaining the demurrer to the FAC.

Homeowners contend res judicata was not properly applied because the complaint in the instant case was filed before the unlawful detainer action. The unlawful detainer action was decided on December 8, 2015. The demurrer to the FAC was decided on February 23, 2017. "Prior proceeding" in the context of collateral estoppel refers to an earlier judgment. It does not refer to the date on which a case was commenced. (See DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 823 ["the preclusive effect of judgments"].) The unlawful detainer decision that occurred in 2015 was earlier than the demurrer ruling, which occurred in 2017. Therefore, the unlawful detainer proceeding was a "prior proceeding" for purposes of collateral estoppel.

Homeowners rely upon Cheney v. Trauzettel (1937) 9 Cal.2d 158 (Cheney), to support their assertion that an unlawful detainer cause of action does not have preclusive effect upon a subsequent suit to quiet title. In Cheney, the court wrote, "The trial court properly held that in the summary proceeding in unlawful detainer the right to possession alone was involved, and the broad question of title could not be raised and litigated by cross-complaint or affirmative defense. [Citations.] It is true that where the purchaser at a trustee's sale proceeds under section 1161a of the Code of Civil Procedure he must 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 such a proceeding." (Id. at p. 159.)

The instant case falls within the foregoing section 1161a, subdivision (b)(3), exception. Section 1161a, subdivision (b)(3), permits a defendant's eviction upon proof that the plaintiff's "title under the sale has been duly perfected," following a trustee's sale. Fannie Mae sought to evict Homeowners following a trustee's sale, which meant Fannie Mae had to prove its title to the property had been duly perfected.

The record reflects Homeowners raised arguments concerning title in opposition to the motion for summary judgment. One of the point headings in Homeowners' opposition was, "Questions of title may be adjudicated in an eviction based on the purchase of a property at a trustee's sale." Homeowners asserted Fannie Mae could not lawfully take possession of the property because Fannie Mae failed to prove it owned the property. Homeowners asserted Fannie Mae was not the beneficiary at the time of the trustee's sale and therefore could not have properly been granted title to the property. Thus, the record reflects Homeowners raised a title issue in the unlawful detainer proceedings. Because the title issue was part of the unlawful detainer proceedings (§ 1161a, subd. (b)(3)), Homeowners' reliance on Cheney is unpersuasive.

C. WRONGFUL FORECLOSURE

Homeowners contend the trial court erred by not permitting Homeowners to proceed with their wrongful foreclosure cause of action because Fannie Mae's interest in the property was not recorded until after the trustee's sale.

In 2013, Bank of America assigned its beneficial interest in the deed of trust to Green Tree Servicing LLC. On January 23, 2015, Green Tree executed an assignment of its beneficial interest to Fannie Mae. The assignment was recorded on February 18, 2015. The trustee's sale took place on February 11, 2015. The trustee's deed upon sale was recorded on February 18, 2015. The deed reflects the grantee is the foreclosing beneficiary, identified as Fannie Mae. The notice of sale was executed by MTC Financial Inc. dba Trustee Corps., as the trustee of the deed of trust.

As one court has explained, "It has been established since 1908 that this statutory requirement that an assignment of the beneficial interest in a debt secured by real property must be recorded in order for the assignee to exercise the power of sale applies only to a mortgage and not to a deed of trust." (Calvo v. HSBC Bank USA, N.A. (2011) 199 Cal.App.4th 118, 122.)

As another court has explained, "[W]here a deed of trust is involved, the trustee may initiate foreclosure irrespective of whether an assignment of the beneficial interest is recorded. As the trial court succinctly stated in its decision sustaining the demurrer without leave to amend, 'the purpose of [section] 2932.5 is to maintain a clear record of title by requiring mortgagees, given the power to sell real property, to record assignments of that right to assignees. [Citation.] Without a proper record indicating who currently holds the note that gives the power to sell, a purchaser of the property is at risk of buying an encumbered title. [Citation.] In contrast, a deed of trust passes legal title to the trustee, "thus enabling him in executing the trust to transfer to the purchaser a marketable record title." ' " (Haynes v. EMC Mortgage Corp. (2012) 205 Cal.App.4th 329, 336-337.)

Homeowners did not have a mortgage; rather, their loan was secured by a deed of trust. The trustee's sale in this case was conducted at the direction of the trustee, MTC. Because Homeowners had a deed of trust, and the trustee's sale was conducted at the direction of the trustee, there is no error in the assignment of beneficial interest to Fannie Mae being recorded after the trustee's sale.

D. NOTICE OF NON-APPEARANCE

Homeowners contend the trial court erred by rejecting their notice of non-appearance.

Fannie Mae contends this issue is not properly before this court because the rejection of the notice of appearance is not included in Homeowners' notice of appeal. We choose to address the merits of the issue.

The demurrer hearing took place on February 23, 2017. The minute order from the hearing reads, "[Homeowners] contacted the court to state they submit without appearance. [¶] Opposition and reply read and considered." The reporter's transcript from the demurrer hearing reflects the court said, "No check-in by [Homeowners] on this. They were here yesterday and said they would be submitting."

The register of actions for February 24—the day after the demurrer hearing—reads, "Notice of rejection sent. [¶] Notice of non-appearance at 2.23.17 hrg is returned by court for the following reason(s): Court does not accept these types of notices. These should be exchanged between parties."

California Rules of Court, rule 3.1304(c) provides, "A party may give notice that he or she will not appear at a law and motion hearing and submit the matter without an appearance unless the court orders otherwise. The court must rule on the motion as if the party had appeared."

Given that rejection of the notice occurred after the trial court sustained the demurrer without leave to amend, it is unclear how any error prejudiced Homeowners. For example, the trial court did not treat Homeowners as though they defaulted for failing to appear. Homeowners do not explain in what manner the rejection caused a miscarriage of justice to occur. Accordingly, to the extent any error occurred, it is not reversible error. (See F.P. v. Monier (2017) 3 Cal.5th 1099, 1107-1108 [without a showing of prejudice, this court cannot find reversible error].)

E. NOTICE OF MOTION FOR NEW TRIAL

Homeowners contend the trial court clerk erred by rejecting their notice of motion for a new trial. The clerk rejected the notice because it was made following the sustaining of a demurrer and "there was no prior trial." Homeowners are correct that the trial court clerk's reasoning was erroneous—a motion for new trial may be made following the sustaining of the demurrer. (Carney v. Simmonds (1957) 49 Cal.2d 84, 88, 90.)

The record on appeal includes only the notice of motion—there is no memorandum included with the notice. "Within 10 days after filing notice of intention to move for a new trial in a civil case, the moving party must serve and file a memorandum in support of the motion." (Cal. Rules of Court, rule 3.1600(a).) Homeowners filed their notice of intention to move for a new trial on March 8, 2017.

"If the moving party fails to serve and file a memorandum within the time prescribed in (a), the court may deny the motion for a new trial without a hearing on the merits." (Cal. Rules of Court, rule 3.1600(b).) The record does not include a memorandum. The court clerk rejected the notice on March 20, 2017. Thus, the notice was rejected after more than 10 days passed following the filing of the notice. Accordingly, we conclude Homeowners were not prejudiced by the rejection of their notice, because it is reasonably probable the motion would have been summarily denied without a hearing due to the failure to file a memorandum.

Further, Homeowners do not explain how they were prejudiced by the clerk's error. Without a showing of prejudice, this court cannot find reversible error. (F.P. v. Monier, supra, 3 Cal.5th at pp. 1107-1108.) In sum, because (1) prejudice has not been addressed by Homeowners, and (2) it appears reasonably probable that the motion would have been summarily denied, we do not find a miscarriage of justice as a result of the clerk's error and we do not reverse.

F. MOTION TO VACATE THE JUDGMENT

Homeowners contend the trial court erred by denying their motion to vacate the judgment. Homeowners contend they should have been given the opportunity to obtain a default judgment against AWFG.

Fannie Mae contends this issue is not properly before this court because the order denying the motion to vacate was not included in Homeowners' notice of appeal. We choose to address the merits of the issue.

The trial court's judgment reads: "On February 23, 2017, this Court sustained without leave to amend the Demurrer filed by defendant [Fannie Mae] to the First Amended Complaint filed by [Homeowners]. [¶] It is therefore ordered, adjudged, and decreed that judgment be entered in favor of [Fannie Mae] and against [Homeowners] as to each and every cause of action set forth in the first amended complaint and that [Homeowners] take nothing by way of their claims against [Fannie Mae]. [¶] [Fannie Mae] is awarded its costs of suit against [Homeowners] in the amount of $TBD."

The judgment does not reflect that it included AWFG. The judgment only discusses Fannie Mae and Homeowners. Because the judgment does not mention AWFG, the trial court did not err by denying the motion to vacate the judgment.

G. LIS PENDENS

The trial court granted Fannie Mae's motion to expunge a lis pendens recorded against the property. Homeowners contend the trial court erred by granting the motion because Homeowners brought a valid real property claim.

Fannie Mae contends this issue is not properly before this court because the order granting the motion to expunge was not included in Homeowners' notice of appeal, and the order is only reviewable via a petition for writ of mandate (§ 405.39). We choose to address the merits of the issue.

"[A] lis pendens is a recorded document giving constructive notice that an action has been filed affecting title or right to possession of the real property described in the notice. Its effect is that anyone acquiring an interest in the property after the action was filed will be bound by the judgment. . . . Once a lis pendens is filed, it clouds the title and effectively prevents the property's transfer until the litigation is resolved or the lis pendens is expunged. . . . [¶] A lis pendens notice may be recorded in an action which has a 'real property claim,' which is defined by statute as 'the cause or causes of action in a pleading 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, 966-967.) We apply the abuse of discretion standard of review. (Coppinger v. Superior Court (1982) 134 Cal.App.3d 883, 892.)

In the unlawful detainer action, it was determined that Fannie Mae was the rightful owner of the property. The unlawful detainer action was decided in December 2015. The appeal in that case was decided November 21, 2016. The trial court granted the motion to expunge the lis pendens on November 22, 2016. Because the issue of ownership of the property had been litigated through the unlawful detainer proceedings (§ 1161a, subd. (b)(3)), the trial court acted within its discretion by expunging the lis pendens.

Although Homeowners' lawsuit was still pending, it was repetitive of the issues that had already been decided, as discussed ante. It was reasonable for the trial court to expunge the lis pendens, rather than delay expungement pending resolution of a repetitive lawsuit. Otherwise, a lis pendens could remain as a cloud on title while repetitive lawsuits were repeatedly filed.

H. JUDICIAL NOTICE

Homeowners contend the trial court erred by relying on the truth of matters included in the judicially noticed recorded documents. As explained ante, the demurrer was sustained based upon res judicata. Thus, the demurrer was sustained due to judicially noticed court records, not recorded documents. For example, the order granting summary judgment against Homeowners in the unlawful detainer action demonstrated the unlawful detainer action had been decided on the merits.

Fannie Mae contends Homeowners forfeited this issue by failing to oppose the requests for judicial notice in the trial court. We choose to address the merits of the issue. --------

" 'Judicial notice may be taken of the records of a court of this state [citations]. This is not to say, however, that judicial notice may be taken of the truth of facts asserted in every document in a court record.' [Citation.] Judicial notice of findings of fact does not mean those findings are true, but simply that they were made. [Citations.] Thus, while a court can take judicial notice that a court made a particular ruling, it cannot take judicial notice of the truth of a factual finding made in another action." (People v. Moore (1997) 59 Cal.App.4th 168, 178.)

In ruling on the demurrer, the trial court would have needed to take judicial notice of (1) the arguments made in Homeowners' opposition to the summary judgment motion—not crediting the arguments as true, but simply that the arguments were made; (2) the trial court's ruling on the summary judgment motion—again, only that the ruling was made; and (3) the ruling on the appeal from the summary judgment. Accordingly, because it does not appear that the trial court judicially noticed the truth of a finding of fact from the unlawful detainer proceeding, we conclude the trial court did not err.

DISPOSITION

The judgment is affirmed. Respondent is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J. We concur: CODRINGTON

J. FIELDS

J.


Summaries of

Tuzzolino v. Fed. Nat'l Mortg. Ass'n

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Oct 5, 2018
E068822 (Cal. Ct. App. Oct. 5, 2018)
Case details for

Tuzzolino v. Fed. Nat'l Mortg. Ass'n

Case Details

Full title:JOE TUZZOLINO II et al., Plaintiffs and Appellants, v. FEDERAL NATIONAL…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Oct 5, 2018

Citations

E068822 (Cal. Ct. App. Oct. 5, 2018)