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.)

               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..., which includes good
               record title..., but is not limited to good record title, as between the
               parties to the transaction. The term ‘duly’ implies that all of those
               elements necessary to a valid sale exist, else there would not be a sale
               at all.

(Kessler v. Bridge (1958) 161 Cal. App. Supp. 2d 837, 841.)
       As stated by the California Supreme Court: “The property must be sold by public auction to



                                                   -2-
                 DECISION/STATEMENT OF REASONS (CCP § 77(d)) BY THE COURT
the highest bidder (§ 2924h) to whom title is transferred by a trustee's deed. Thereafter, upon
recording of this deed, the purchaser is entitled to bring an unlawful detainer action against the
trustor in order to get possession of the property. (Code Civ. Proc., § 1161a.) [Fn. omitted.]”
(Garfinkle v. Superior Court (1978) 21 Cal. 3d 268, 275, italics added.) And as more recently
reiterated by the Court of Appeal in Salazar v. Thomas (2015) 236 Cal. App. 4th 467: “After the
trustee's deed has been recorded, the purchaser is entitled to bring an unlawful detainer action
against the borrower-trustor or his or her successor to obtain possession of the property.
[Citations.]” (Id. at p. 480, italics added.)
          “A valid three-day pay rent or quit notice is a prerequisite to an unlawful detainer action.
[Citations.] Because of the summary nature of an unlawful detainer action, a notice is valid only if
the lessor strictly complies with the statutorily mandated notice requirements. [Citation.] (Bevill v.
Zoura (1994) 27 Cal. App. 4th 694, 697.)
          A defective notice cannot support an unlawful detainer judgment for possession.
Respondent’s interpretation, on the other hand, would suggest that a post-foreclosure plaintiff could
routinely prematurely issue a three-day notice that includes legal and factual misstatements (e.g.,
that the purchaser has already duly perfected title when it had not yet done so). And as argued by
Appellant, such a practice would practically prevent a defendant from effectively verifying the
identity of the alleged purchaser of a property as a search of recorded documents would prove
futile.
          Absent a sale in accordance with Section 2924 of the Civil Code and a duly perfected title
prior to the issuance of the notice, a post-foreclosure purchaser cannot avail itself of a summary
unlawful detainer eviction proceeding.
          Respondent’s prematurely issued notice was fatally defective, and the unlawful detainer
judgment must be reversed. This matter is remanded to the trial court to vacate the January 20,
2016 judgment and to conduct any further proceedings as necessary consistent with this Decision.


          Appellant is awarded costs on appeal.


                                                   -3-
                   DECISION/STATEMENT OF REASONS (CCP § 77(d)) BY THE COURT
Unanimously reversed and remanded.

KERRY WELLS
Presiding Judge, Appellate Division

JAY M. BLOOM
Judge, Appellate Division

CHARLES R. GILL
Judge, Appellate Division




                                          -4-
                DECISION/STATEMENT OF REASONS (CCP § 77(d)) BY THE COURT
Counsel for Appellant Michael McLitus:
JENNIFER POPLIN, ESQ.
LEGAL AID SOCIETY OF SAN DIEGO, INC.
1764 SAN DIEGO AVE., SUITE 200
SAN DIEGO, CA 92110
619-471-2783

Counsel for Respondent U.S. Financial, L.P. as Trustee, 909 Monserate Ave Trust dated
10/16/2015 (substitution of attorney filed 03/18/16):
JOHN D. FEHER
1919 GRAND AVE SUITE 2F
SAN DIEGO, CA 92109
858-246-6636

Trial Court: The Superior Court, San Diego County, Gary G. Kreep, Judge.




               DECISION/STATEMENT OF REASONS (CCP § 77(d)) BY THE COURT
Filed 12/2/16



                     San Diego County Superior Court Appellate Division,
                            No. 37-2016-00201116-CL-UD-CTL

                                            S237852

            IN THE SUPREME COURT OF CALIFORNIA
                                            En Banc
 ________________________________________________________________________

                909 MONSERATE AVENUE TRUST, Plaintiff and Respondent,

                                                v.

                 MICHAEL McLITUS, Defendant and Appellant.
 ________________________________________________________________________

       The order filed on November 30, 2016, ordering publication of the Appellate
Division opinion is amended as to the title and text of the order as follows:




                 U.S. Financial, L.P., as Trustee, etc., Plaintiff and Respondent,

                                                v.

                         Michael McLITUS, Defendant and Appellant.



       The Reporter of Decisions is directed to publish the Appellate Division opinion in
the above entitled matter in the Official Reports. (Cal. Rules of Court, rule 8.1120(a)(1).)



                                                     ______________________________
                                                           Chief Justice