Filed 4/2/15 Zavieh v. Super. Ct. CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE




MEGAN E. ZAVIEH,
         Petitioner,
v.
THE SUPERIOR COURT OF                                                A142768
ALAMEDA COUNTY,
                                                                     (Alameda County
         Respondent;                                                 Super. Ct. No. HG12-615549)
RWW PROPERTIES, LLC,
         Real Party in Interest.


         Megan E. Zavieh seeks writ review of an order of the superior court granting the
motion of real party in interest, RWW Properties, LLC (RWW), to expunge a notice of
pending action Zavieh recorded regarding the property at issue in this litigation. (Code
Civ. Proc., § 405.39 [order expunging notice of pending action may be reviewed only by
writ of mandate].)1 We conclude the superior court erred in granting expungement and
accordingly order issuance of a writ of mandate.




1
    All undesignated statutory references are to the Code of Civil Procedure.

                                                             1
                         FACTUAL AND PROCEDURAL BACKGROUND
       An understanding of the legal issues presented in this writ proceeding requires us
to recount the events leading up to the foreclosure sale that gave rise to the action below.
We summarize them before reaching the procedural history of the case.2
       Zavieh’s Mortgage, Assignment to JP Morgan Chase, Attempted Modification.
       In March 2000, Zavieh acquired property located at 39827 San Moreno Court,
Fremont, Alameda County, California 94539 (the “Property”) by gift from her father,
James J. Murray. In late 2007, Zavieh obtained a mortgage on the Property from
Washington Mutual Bank. The deed of trust named California Reconveyance Company
(CalRecon) as trustee.
       On October 10, 2008, JP Morgan Chase Bank (Chase) sent Zavieh a letter
informing her Chase had acquired certain assets of Washington Mutual, including the
right to service and collect payments on Zavieh’s loan.
       In June 2009, Zavieh applied to Chase for a loan modification. After this, Zavieh
and Chase exchanged correspondence regarding the necessary documentation. On

2
  We draw the facts from the exhibits submitted in support of the petition. RWW seeks to
expand the record and has attached five exhibits to its return. Although the return lists
six exhibits (A through F), no exhibit A has been attached. Zavieh objects to all the
exhibits as improper attempts to supplement the record. Exhibits C and D are
declarations signed in January 2015, and thus clearly were not before the trial court. We
sustain Zavieh’s objection to the declarations and will not consider them. (See Stanley v.
Superior Court (2012) 206 Cal.App.4th 265, 278, fn. 21 [“the only declarations relevant
to the disposition of this writ are those which were before the trial court when it ruled on
defendant’s motion . . .”].) Exhibit E is a brief filed in an unrelated case, and Exhibit F is
an opinion of the State Bar Court in a disciplinary proceeding. RWW asks us to take
judicial notice of these exhibits, but we decline. RWW did not file a motion seeking
judicial notice as required by the rules. (Cal. Rules of Court, rule 8.252(a)(1) [“To obtain
judicial notice by a reviewing court under Evidence Code section 459, a party must serve
and file a separate motion with a proposed order”], italics added.) Moreover, RWW has
failed to show how these materials are relevant to the matter before us. (See Ct. App.,
First Dist., Local Rules of Ct., rule 9(a), Judicial Notice Requests.)
        Exhibit B is a declaration that appears to have been filed in the court below and is
thus proper for inclusion in the record of this writ proceeding. (Cal. Rules of Court,
rule 8.487(c).) As will become clear, however, this document has no effect on our
disposition of this case.

                                              2
October 20, 2009, Zavieh sent Chase additional documentation the bank had requested,
including a Home Affordable Modification Program (HAMP) hardship affidavit. In that
same month, Zavieh began to fall behind in her payments to Chase.
       In December 2009, Chase sent Zavieh a letter explaining that her “home loan may
be eligible for a loan modification program . . . .” A similar letter followed in January
2010. On January 27, Chase sent Zavieh a letter offering her the chance to participate in
a “Trial Period Plan” (TPP). The letter explained the TPP would not bring her account
current but would lower the monthly payments due. Instead of paying $2,674 per month,
Zavieh would pay $1,292. Payments in the latter amount were due March 1, April 1, and
May 1, 2010.
       In between February and September 2010, seven payments of $1,292 were made
each month to Chase, either by Murray or Zavieh. A further payment was made on
January 8, 2011.3 Between May and November 2010, Zavieh and Chase corresponded
regarding the documentation necessary to process her loan modification request.
       Chase wrote to Zavieh on November 16, 2010, to inform her the owner of her loan
had not approved the requested modification. Chase’s letter stated the owner had based
its refusal to approve the modification on the net present value calculation, which
estimated the cash flow to the owner of the modified and unmodified loan. Chase
therefore told Zavieh it was not able to offer her a permanent loan modification either
through HAMP or any Chase modification program. About one month later, on
December 20, 2010, Chase wrote to Zavieh informing her that her modification request
had been denied for a different reason. The second letter stated that Zavieh was either
current on her loan or had only one payment due and unpaid in the month in which it was
due. The letter also stated Zavieh was not at risk of default because she had significant
equity in the Property and should be able to refinance her loan.



3
 In the court below, Zavieh claimed Chase refused to accept her payment for October
2010 and informed her no further payments would be accepted because she was in
foreclosure.

                                             3
       Although Zavieh and Chase had exchanged a number of letters in 2010 regarding
her loan, in January 2011, Chase wrote to Zavieh expressing concern that it had not heard
from her and informing her she had a past-due balance of $31,778.
       The Foreclosure Sale
       Chase recorded a notice of default (NOD) on June 14, 2011. The NOD stated
Zavieh was in default in the amount of $49,006. 68. It also stated Zavieh had failed to
pay the principal and interest installments from March 2010 and thereafter.
       In late 2011, a notice of trustee’s sale (NOS) was posted at the Property.4
CalRecon conducted a nonjudicial foreclosure sale on December 20, 2011, at which
RWW was the highest bidder. Murray, who claimed to be acting as Zavieh’s agent,
appeared at the sale and announced the sale was being held improperly because of lack of
a timely NOS and other irregularities. A trustee’s deed was issued in favor of RWW and
recorded in the Office of the Recorder for Alameda County (the “Trustee’s Deed”). The
Trustee’s Deed stated: “All requirements of law regarding the mailing of copies of
notices or the publication of a copy of the Notice of Default or the personal delivery of
the copy of the Notice of Default and the posting and publication of copies of the Notice
of a Sale have been complied with.”
       Zavieh’s Action
       On February 2, 2012, Zavieh initiated the action below by filing a complaint to
quiet title and for declaratory relief, naming Chase, CalRecon, and RWW as defendants.
That same day, Zavieh filed a notice of pendency of action in Alameda County Superior

4
  The parties dispute when the NOS was actually posted on the Property. Zavieh claims
it was not posted until December 6, 2011. Her claim is based on a declaration filed by
Murray, who stated he was a tenant in the Property on that date and was physically
present on the day the NOS was posted.
       RWW has attached to its return a declaration filed below by an agent for a
company responsible for posting notices of trustees sales on properties in foreclosure.
(See Cal. Rules of Court, rule 8.487(c).) The agent declared he posted the notice on the
Property on November 29, 2011. The agent attached to the declaration a certificate of
posting dated November 29, 2011, as well as photographs of the Property allegedly
showing the NOS posted there. RWW also notes that the NOS was recorded on
November 28, 2011.

                                             4
Court. Five days later, the notice was recorded in the official records of Alameda
County.
       Zavieh filed her operative fourth amended complaint on or about August 29, 2013.
The complaint’s first cause of action, against defendants Chase and CalRecon, was for
wrongful foreclosure, and the fifth cause of action, against RWW, was for quiet title.
The prayer for relief for the first and fifth causes of action requested rescission of the
trustee’s sale and restoration of title to Zavieh.
       RWW’s Unlawful Detainer Action Against Murray
       On April 18, 2013, RWW filed an unlawful detainer action against Murray to
obtain possession of the Property. The unlawful detainer case (Alameda County Superior
Court case No. RG13-676304) was tried before Judge Victoria S. Kolakowski on July 29,
2013. A “key question” at the unlawful detainer trial was whether RWW was a bona fide
purchaser without notice of alleged defects in the foreclosure process. Murray testified in
the unlawful detainer trial about his appearance at the foreclosure sale and his
announcement of alleged irregularities in the notices preceding it.
       At Murray’s request, Judge Kolakowski provided a statement of decision on a
number of factual questions “to the extent that the facts were addressed to reach the
judgment.” In an amended statement of decision filed November 8, 2013, the court ruled
RWW was a bona fide purchaser for value of the Property. It further ruled Murray’s
announcement did not provide sufficient information to allow an uninformed third party
to conclude there was a serious legal impediment to the sale. It therefore concluded
RWW was a bona fide purchaser without notice within the meaning of Civil Code
section 2924, subdivision (c).5


5
 Civil Code section 2924, subdivision (c) provides: “A recital in the deed executed
pursuant to the power of sale of compliance with all requirements of law regarding the
mailing of copies of notices or the publication of a copy of the notice of default or the
personal delivery of the copy of the notice of default or the posting of copies of the notice
of sale or the publication of a copy thereof shall constitute prima facie evidence of
compliance with these requirements and conclusive evidence thereof in favor of bona fide
purchasers and encumbrancers for value and without notice.”

                                               5
       Murray appealed the unlawful detainer judgment, but Division One of this court
dismissed his appeal (case No. A140794) on February 24, 2014, for failure to procure the
record within the time allowed. (See Cal. Rules of Court, rule 8.140(b)(1).) The
remittitur in that case issued on April 29, 2014, and the unlawful detainer judgment is
now final. RWW obtained possession of the Property on January 29, 2014.
       The Motion to Expunge
       On May 19, 2014, RWW filed a motion to expunge the lis pendens from the
county record and for attorney fees. The motion was set for hearing before Judge Delbert
C. Gee.
       In its motion, RWW argued the notice should be expunged for two reasons. First,
it contended the complaint did not affect either title to or possession of the Property.
RWW argued it was a bona fide purchaser without notice within the meaning of Civil
Code section 2924, subdivision (c) and was thus entitled to a conclusive presumption that
all procedural requirements for the notices of default and sale had been satisfied. RWW
asserted that the judgment obtained against Murray in the unlawful detainer action
collaterally estopped Zavieh from attacking the validity of the title it had obtained at the
nonjudicial foreclosure sale. According to RWW, Zavieh was in privity with Murray,
who acted as her agent, and she was thus bound by the judgment.
       RWW’s second argument was that the true goal of Zavieh’s complaint was
recovery of damages. It contended lis pendens was inappropriate where money damages
would be sufficient to satisfy a plaintiff.
       Zavieh opposed the motion on several grounds. She contended Chase had no
authority to conduct the trustee’s sale, because it had: (1) violated its obligation to
finalize her loan modification, (2) failed to provide the legally required notice of the sale
to her, (3) recorded an invalid NOD, and (4) failed to acquire the right to conduct the
trustee’s sale from Washington Mutual. Zavieh also disputed RWW’s contention that she
was collaterally estopped from challenging its status as a bona fide purchaser without
notice by the unlawful detainer judgment against Murray.



                                               6
       RWW’s reply did not respond to most of Zavieh’s arguments and was devoted
almost exclusively to the issue of collateral estoppel. RWW’s reply argued for the first
time that even if there were facts supporting Zavieh’s claim to set aside the foreclosure
sale, the claim must fail because of Zavieh had not tendered performance on the
underlying default.
       The Trial Court’s Ruling and the Petition for Writ of Mandate
       After announcing a tentative ruling, Judge Gee heard RWW’s motion to expunge
on July 25, 2014. After considering the parties’ arguments, Judge Gee confirmed his
tentative ruling and granted the motion. The order expunging the lis pendens and
granting RWW attorney fees was entered on July 30, 2014.
       On August 19, 2014, Zavieh filed a petition for writ of mandate in this court.
(§ 405.39.) After receiving an informal opposition from RWW and a reply from Zavieh,
on December 2, 2014, we issued an order to show cause directing the parties to brief a
number of issues. Briefing was completed on February 10, 2015, and the parties waived
oral argument.
                                         DISCUSSION
       The sole issue presented for our decision is whether the trial court properly
granted RWW’s motion to expunge. We conclude it erred for two reasons. First, it
incorrectly ruled Zavieh’s first cause of action for wrongful foreclosure did not contain a
real property claim. It committed a further error in holding the collateral estoppel effect
of the unlawful detainer judgment meant Zavieh had failed to establish the probable
validity of her quiet title claim. These errors are sufficient to require us to order issuance
of a writ of mandate. Accordingly, we do not reach the parties’ other arguments.
I.     Governing Law and Standard of Review
       When a party files an action affecting title to real property, it may file a notice of
pendency of the action (also called a lis pendens) in the office of the county recorder.
(§ 405.20; Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 647 (Kirkeby) [“ ‘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.’ ”].)


                                               7
After the notice is recorded, any party to the action may move to have it expunged.
(§ 405.30.)
       The court shall order the notice expunged if it finds the pleading on which the
notice is based does not contain a real property claim. (§ 405.31.) In addition, “the court
shall order that the notice be expunged if the court finds that the claimant has not
established by a preponderance of the evidence the probable validity of the real property
claim.” (§ 405.32.) A “ ‘real property claim’ ” is defined to mean “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 . . . .” (§ 405.4.) A claim has probable validity if “it
is more likely than not that the claimant will obtain a judgment against the defendant on
the claim.” (§ 405.3.) The burden of proof on both issues (i.e., the existence of a real
property claim and the probable validity of the claim) is on the lis pendens claimant, in
this case, Zavieh. (§§ 405.1, 405.30; Howard S. Wright Construction Co. v. Superior
Court (2003) 106 Cal.App.4th 314, 319 (Howard S. Wright) [“Unlike other motions, the
burden is on the party opposing the motion to expunge—i.e., the claimant-plaintiff—to
establish the probable validity of the underlying claim.”], fn. omitted.)
       An order expunging a notice of lis pendens is reviewable only by petition for writ
of mandate. (§ 405.39.) If the motion to expunge is brought under section 405.31
because the pleading on which the notice is based allegedly lacks a real property claim,
the trial court “must engage in a demurrer-like analysis. ‘Rather than analyzing whether
the pleading states any claim at all, as on a general demurrer, the court must undertake
the more limited analysis of whether the pleading states a real property claim.’ ”
(Kirkeby, supra, 33 Cal.4th at pp. 647-648.) Our review of any resulting expungement
order is limited to determining “whether a real property claim has been properly pled by
the claimant.” (Id. at p. 648.)
       If the moving party argues the claimant has failed to establish the probable validity
of a real property claim under section 405.32, the “the plaintiff must ‘at least establish a
prima facie case. If the defendant makes an appearance, the court must then consider the
relative merits of the positions of the respective parties and make a determination of the


                                                8
probable outcome of the litigation.’ ” (Howard S. Wright, supra, 106 Cal.App.4th at
p. 319.) “On review of the trial court’s ruling, the appellate court does not reweigh
conflicting evidence or determine the credibility of witnesses. The reviewing court’s task
is simply to ensure that the trial court’s factual determinations are supported by
substantial evidence. . . . If, however, the material facts are not disputed, then the issue
becomes a question of law for our de novo review. [Citations.]” (Id. at p. 320.)
II.    Zavieh’s First Cause of Action for Wrongful Foreclosure Pleads a Real Property
       Claim.
       Addressing Zavieh’s first cause of action for wrongful foreclosure, the trial court
ruled it did not contain a real property claim. (§ 405.31.) The court’s tentative ruling
stated: “(The Court does not agree with Plaintiff that the First Cause of Action for
Wrongful Foreclosure would affect title to or right to possession of the subject property.
That cause of action indicates that it is directed against Chase and Cal[R]econ only,
neither of whom own or have ever owned the subject property. Therefore, even if
Plaintiff were successful on the First Cause of Action, she would only be entitled to
monetary damages against the named Defendants Chase and Cal[R]econ.)” The trial
court does not appear to have specifically considered the effect of Zavieh’s request for
rescission of the trustee’s sale, and since it concluded the first cause of action did not
contain a real property claim, the court did not undertake any analysis of the probable
validity of the first cause of action. We conclude the first cause of action contains a real
property claim. (§ 405.4.)
       A.     Wrongful Foreclosure
       “To obtain the equitable set-aside of a trustee’s sale or maintain a wrongful
foreclosure claim, a plaintiff must allege that (1) the defendants caused an illegal,
fraudulent, or willfully oppressive sale of the property pursuant to a power of sale in a
mortgage or deed of trust; (2) the plaintiff suffered prejudice or harm; and (3) the plaintiff
tendered the amount of the secured indebtedness or were excused from tendering.
[Citation.] Recognized exceptions to the tender rule include when (1) the underlying debt
is void, (2) the foreclosure sale or trustee’s deed is void on its face, (3) a counterclaim


                                              9
offsets the amount due, [or] (4) specific circumstances make it inequitable to enforce the
debt against the party challenging the sale[.]” (Chavez v. Indymac Mortgage Services
(2013) 219 Cal.App.4th 1052, 1062 (Chavez).)
       Here, as in Chavez, Zavieh’s complaint alleged the existence of an enforceable
agreement to modify her loan and the payment of the amount due under that agreement
until Chase allegedly breached by failing to accept her payments. (Chavez, supra, 219
Cal.App.4th at p. 1063.) She alleged breach of that agreement had prejudiced her. She
also alleged an exception to the tender rule because Chase and CalRecon lacked a
contractual basis to exercise the power of sale because her loan had been modified under
HAMP. (Ibid.) She thus appears to have stated a claim for wrongful foreclosure.
       B.     Rescission of the Trustee’s Deed Would Affect Title to the Property.
       The trial court’s ruling focused not on whether Zavieh had stated the claim, but
instead on the issue of remedy. It concluded success on the wrongful foreclosure cause
of action would entitle her only to damages. But her prayer for relief on that cause of
action seeks rescission of the trustee’s sale and restoration of title to her. She argues that
if she prevails on this claim at trial, Civil Code section 1058.5, subdivision (b)6 would
empower the court to grant the requested relief by ordering CalRecon to record a notice
of rescission of the trustee’s deed. Under Zavieh’s reading of the statute, record title will
then be restored to the status quo prior to recordation of the trustee’s deed.
       RWW makes absolutely no response to this argument. In fact, despite the obvious
importance of the statute to Zavieh’s contentions in this court, neither RWW’s informal

6
  Civil Code section 1058.5, subdivision (b) provides: “Where a trustee’s deed is
invalidated by a pending bankruptcy or otherwise, recordation of a notice of rescission of
the trustee’s deed, which notice properly identifies the deed of trust, the identification
numbers used by the recorder or the books and pages at which the trustee’s deed and deed
of trust are recorded, the names of all trustors and beneficiaries, the location of the
property subject to the deed of trust, and the reason for rescission, shall restore the
condition of record title to the real property described in the trustee’s deed and the
existence and priority of all lienholders to the status quo prior to the recordation of the
trustee’s deed upon sale. Only the trustee or beneficiary who caused the trustee’s deed to
be recorded, or his or her successor in interest, may record a notice of rescission.”
(Italics added.)

                                              10
opposition nor its return mentions Civil Code section 1058.5. While we express no
definitive view on the proper scope or application of this provision, its text suggests it
would allow the trial court to order CalRecon, the trustee named in the trustee’s deed, to
record a notice of rescission that would result in return of title to Zavieh. Since RWW
does not argue otherwise, we conclude it has conceded the point.7 (See, e.g., People v.
Werner (2012) 207 Cal.App.4th 1195, 1212 [respondent’s failure to respond to
appellant’s argument treated as concession].)
       We therefore ask only whether Zavieh has pled facts that would entitle her to the
remedy she seeks. (See Campbell v. Superior Court (2005) 132 Cal.App.4th 904, 922.)
In her cause of action for wrongful foreclosure, Zavieh asserts Chase and CalRecon
conducted the trustee’s sale in a manner that violated her statutory and contractual rights.
Although most of this cause of action concerns alleged defects in the NOD and NOS,
Zavieh also contended below that Chase failed to complete a HAMP modification as
required by law.8 Zavieh further contended Chase never acquired beneficiary status,
which she argued was a prerequisite to commencing the foreclosure process. If the
remedy of rescission is available, then Zavieh’s wrongful foreclosure claim “would, if
meritorious, affect . . . title to, or the right to possession of, specific real property . . . .”
(§ 405.4.) Moreover, damages would not be an adequate remedy here. (Campbell v.
Superior Court, supra, at p. 918 [ “where a party seeks title to property, or some other

7
  Zavieh argued below that rescission of the sale was the proper remedy if she succeeded
on her wrongful foreclosure and quiet title claims, but she did not cite this specific statute
in the trial court. Nevertheless, because section 405.31 requires the court to engage in a
demurrer-like analysis (Kirkeby, supra, 33 Cal.4th at pp. 647-648), we do not believe
Zavieh should be precluded from raising new statutory authority in this court. (See
Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 84-85 [party challenging
judgment of dismissal after demurrer is sustained may raise statutory provision for first
time on appeal].)
8
  In its return, RWW makes a number of arguments about why Zavieh either failed to
qualify for the loan modification or failed to perform her part of the alleged bargain.
RWW made none of these factual arguments below, and it may not make them for the
first time in this court. (People ex rel. Dept. of Transportation v. Superior Court (2003)
105 Cal.App.4th 39, 46 (hereafter Isenhower) [argument not made in trial court not
properly cognizable in appellate court in writ of mandate proceeding].)

                                                 11
interest dependent upon the uniqueness of a particular parcel of property, the party cannot
ordinarily be made whole by money alone”].) We therefore conclude the trial court erred
in ruling the first cause of action did not contain a real property claim. (See § 405.31.)
       The trial court did not address the probable validity of this claim, and we will not
do so in the first instance because it would necessarily entail an examination of the facts
and evidence. (See Code com., 14A West’s Ann. Code Civ. Proc. (2004 ed.) foll.
§ 405.32, p. 346.) It is sufficient for us to hold the trial court erred in ruling Zavieh’s
cause of action for wrongful foreclosure did not contain a real property claim.
III.   The Judgment in the Unlawful Detainer Action Does Not Preclude All of Zavieh’s
       Claims in this Action.
       The trial court found Zavieh’s fifth cause of action for quiet title stated a real
property claim but concluded she had failed to establish the probable validity of that
claim. (§ 405.32.) It held Zavieh was collaterally estopped by the judgment in the
unlawful detainer action against Murray, a judgment that had determined RWW was a
bona fide purchaser without notice entitled to a conclusive presumption that the trustee’s
sale had been regularly conducted. (See Civ. Code, § 2924, subd. (c).) According to the
trial court: “Collateral estoppel applies because (1) the issue presented in the unlawful
detainer action, i.e., was RWW a bona fide purchaser for value of the subject property
pursuant to Civil Code []§ 2924(c), is the same issue presented here; (2) there was a final
judgment on the merits in the unlawful detainer proceeding; and (3) Plaintiff Megan
Zavieh is in privity with James Murray, the defendant in the unlawful detainer action.”
       The elements of collateral estoppel are well established. “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.] The party asserting collateral estoppel bears the burden of




                                              12
establishing these requirements.’ ” (Pacific Lumber Co. v. State Water Resources
Control Bd. (2006) 37 Cal.4th 921, 943.)
       The parties devote much of their briefing to debating whether the final element of
collateral estoppel is present here, i.e., whether Zavieh and Murray were in privity. We
need not resolve that issue, however, because we conclude RWW failed to establish the
first element. Zavieh argues, and we agree, that the issues in the two proceedings are not
identical. For even if we assume the unlawful detainer judgment is binding on Zavieh—a
question we do not decide—that judgment would bar only some, but not all, of the claims
she asserts in this action.
       A judgment in an unlawful detainer action generally has very limited preclusive
effect and will not prevent a party dispossessed of property from bringing a subsequent
action to resolve issues of title. (Vella v. Hudgins (1977) 20 Cal.3d 251, 255 (Vella).)
An exception to this rule is contained in section 1161a, which “provides for a narrow and
sharply focused examination of title. To establish that he is a proper plaintiff, one who
has purchased property at a trustee’s sale and seeks to evict the occupant in possession
must show that he acquired the property at a regularly conducted sale and thereafter ‘duly
perfected’ his title.”9 (Ibid., italics added.) Thus, in an unlawful detainer action brought
under section 1161a, the court necessarily must decide whether the purchaser at the
trustee’s sale acquired legal title to the property at issue in accordance with Civil Code
section 2924. (Malkoskie v. Option One Mortgage Corp. (2010) 188 Cal.App.4th 968,
974.) The resulting unlawful detainer judgment is therefore a determination that the
foreclosure sale was conducted in accordance with Civil Code section 2924. (Ibid.)




9
  Section 1161a, subdivision (b) provides in relevant part: “In any of the following cases,
a person who holds over and continues in possession of . . . real property after a three-day
written notice to quit the property has been served upon the person, . . . may be removed
therefrom as prescribed in this chapter: [¶] . . . [¶] . . . [¶] (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.”

                                             13
       Consequently, a judgment in an unlawful detainer action will preclude
“subsequent fraud or quiet title suits founded upon allegations of irregularity in a
trustee’s sale[.]” (Vella, supra, 20 Cal.3d at p. 256.) The judgment will not, however,
bar subsequent claims not directly connected to the conduct of the trustee’s sale. (Ibid.)
This is because Civil Code section 2924 does no more than “establish presumptions about
the adequacy of notices related to a foreclosure sale[.]” (Bank of America v. La Jolla
Group II (2005) 129 Cal.App.4th 706, 713.) The presumption created by Civil Code
section 2924 does not preclude actions alleging other defects in the foreclosure process.
(See id. at p. 714.) For example, “[n]o statute creates a presumption—conclusive or
otherwise—for any purchaser—bona fide or otherwise—that any recitals in a trustee’s
deed render effective a sale that had no contractual basis.” (Ibid.) “The [Civil Code]
section 2924 presumptions pertain only to notice requirements, not to every defect or
inadequacy short of fraud.” (Ibid.)
       While Zavieh certainly alleges Chase and CalRecon failed to respect the statutory
notice requirements applicable to the trustee’s sale, that is not her only claim. For
example, in addition to the notice defects, her complaint asserts Chase had no power of
sale because it breached the alleged HAMP modification agreement and violated
regulations applicable to HAMP. She claims the breach and violation of the regulations
rendered subsequent “foreclosure actions” improper. Breach of such a modification
agreement, if established, would render the trustee’s sale void because Chase would have
lacked a contractual basis to exercise the power of sale. (Chavez, supra, 219 Cal.App.4th
at p. 1063.) Such a claim is “a challenge not to the statutory proceeding but to something
outside of it.” (Plastino v. Wells Fargo Bank (N.D. Cal. 2012) 873 F.Supp.2d 1179,
1190.) It therefore falls outside the scope of the unlawful detainer judgment.
       Simply put, this action involves issues not presented in the unlawful detainer
proceeding. Thus, even if the unlawful detainer judgment binds Zavieh, it does not
preclude her causes of action in their entirety. (See George v. California Unemployment
Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1488 [state personnel board findings
precluded relitigation of some issues related to plaintiff’s retaliation claim, but did not


                                              14
entirely bar cause of action].) The trial court applied collateral estoppel too broadly to
defeat all claims in the fifth cause of action.10 And since RWW argued only the issue of
collateral estoppel and did not contradict Zavieh’s arguments on the claims falling
outside the scope of the unlawful detainer judgment, it has forfeited any challenge to her
showing of probable validity on those claims. (See Isenhower, supra, 105 Cal.App.4th at
p. 46.)
          The trial court also held that even if Zavieh were not collaterally estopped from
challenging RWW’s status as a bona fide purchaser without notice, her claims would fail
because she had not submitted any admissible evidence that she was willing and able to
tender the full amount of the secured debt. But tender is not required where the
foreclosure sale is void. (Chavez, supra, 219 Cal.App.4th at p. 1062.) Zavieh alleged she
had a binding modification agreement with Chase and had performed under that
agreement until Chase repudiated it. This allegation adequately pleads the sale is void, so
as to excuse tender. (Barroso v. Ocwen Loan Servicing, LLC (2012) 208 Cal.App.4th
1001, 1017 [where borrower alleged she had enforceable modification agreement and had
made all payments when due, no tender necessary because there was no default under
terms of modification agreement].) RWW presented nothing to contradict either Zavieh’s
allegations or evidence on this point.
          Moreover, contrary to the trial court’s view, Zavieh did present evidence beyond
her complaint that she was willing and able to tender the amount of the secured debt. Her
declaration expressly adopted the allegations of her complaint, in which she alleges she
had retirement assets in excess of the amount of the arrearages claimed in the NOD.
Documents submitted below supported that claim. In light of this evidence, the trial
court’s finding on this issue is not supported by substantial evidence. (Howard S. Wright,
supra, 106 Cal.App.4th at p. 320.)


10
  Zavieh’s fourth amended complaint sought to enjoin the unlawful detainer proceedings.
Coordination of the unlawful detainer proceedings with the underlying action here would
have avoided any potential inconsistency in the judgments in the two cases. (See
Asuncion v. Superior Court (1980) 108 Cal.App.3d 141, 146-147.)

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IV.    Conclusion
       For the reasons set forth above, we hold the trial court erred in granting RWW’s
motion to expunge the lis pendens. We emphasize that our holding is limited to that
narrow issue. “We do not mean to suggest how this case should be determined on its
merits. We hold only that as matters now stand it should be heard upon its merits for the
reasons we have stated and that the lis pendens was erroneously expunged.” (Mason v.
Superior Court (1985) 163 Cal.App.3d 989, 999-1000.)
                                       DISPOSITION
       Let a peremptory writ of mandate issue commanding respondent superior court to
vacate its July 30, 2014 order granting RWW’s motion to expunge and awarding attorney
fees and to enter a new and different order denying that motion. This decision shall be
final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).) Zavieh
shall recover her costs in this writ proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(B).)




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                                 _________________________
                                 Jones, P.J.


We concur:


_________________________
Simons, J.


_________________________
Bruiniers, J.




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