Filed 7/24/13 Pacific Mercantile Bank v. Cahbad of California CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



PACIFIC MERCANTILE BANK,

         Plaintiff and Respondent,                                       E055670

v.                                                                       (Super.Ct.No. UDDS1106368)

CHABAD OF CALIFORNIA et al.,                                             OPINION

         Defendants and Appellants.


         APPEAL from the Superior Court of San Bernardino County. Donna G. Garza,

Judge. Reversed.

         Michael J. Simkin for Defendants and Appellants.

         The Wolf Firm and Joseph J. Nardulli for Plaintiff and Respondent.

         This is an unlawful detainer action. In November 2011, plaintiff and respondent

Pacific Merchantile Bank (the Bank) foreclosed on property owned by defendant and

appellant Chabad of California (Chabad) near Running Springs. Defendant and appellant

Asher Asayag was a tenant of Chabad and caretaker of the property. The foreclosure sale

was completed on November 30, 2011.



                                                             1
       In December 2011, the Bank filed an unlawful detainer complaint against Chabad.

On January 11, 2012, the trial court granted a motion for summary judgment filed by the

Bank. Chabad and Asayag appeal from the ensuing judgment.

                                                I

                                 STANDARD OF REVIEW

       The standard of review is well stated in Lona v. Citibank, N.A. (2011) 202

Cal.App.4th 89: “Summary judgment provides ‘courts with a mechanism to cut through

the parties’ pleadings in order to determine whether, despite their allegations, trial is in

fact necessary to resolve their dispute.’ [Citation.] A summary judgment motion ‘shall

be granted if all the papers submitted show that there is no triable issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.’ [Citation.]

‘The pleadings determine the issues to be addressed by a summary judgment motion

[citation], and the declarations filed in connection with such motion “must be directed to

the issues raised by the pleadings.”’ [Citation.] [¶] The moving party ‘bears the burden

of persuasion that there is no triable issue of material fact and that he is entitled to

judgment as a matter of law.’ [Citations.] Defendants moving for summary

judgment . . . meet this burden by presenting evidence demonstrating that one or more

elements of the plaintiff’s cause of action cannot be established or that there is a complete

defense to the action. [Citations.] Once the defendant makes this showing, the burden

shifts to the plaintiff to show that a triable issue of material fact exists with regard to that

cause of action or defense. [Citations.] Material facts are those that relate to the issues in


                                               2
the case as framed by the pleadings. [Citation.] In ruling on the motion, the court must

consider the evidence and inferences reasonably drawn from the evidence in the light

most favorable to the party opposing the motion. [Citation.] [¶] We review an order

granting summary judgment de novo, considering all the evidence set forth in the moving

and opposition papers, except that to which objections have been made and sustained.

[Citations.] In undertaking our independent review, we apply the same three-step

analysis as the trial court. First, we identify the issues framed by the pleadings. Next, we

determine whether the moving party has established facts justifying judgment in its favor.

Finally, if the moving party has carried its initial burden, we decide whether the opposing

party has demonstrated the existence of a triable issue of material fact. [Citations.] ‘We

need not defer to the trial court and are not bound by the reasons for [its] summary

judgment ruling; we review the ruling of the trial court, not its rationale.’ [Citation.]”

(Id. at pp. 100-101; see also Code Civ. Proc., § 437c, subd. (c);1 Aguilar v. Atlantic

Richfield Co. (2001) 25 Cal.4th 826, 843; Hamburg v. Wal-Mart Stores, Inc. (2004) 116

Cal.App.4th 497, 502-503.)

       In unlawful detainer proceedings under section 1161, the proceedings are

streamlined, but the motion is granted or denied on the same basis as a motion under

section 437c. (§ 1170.7; Cal. Rules of Court, rule 3.1351.)




       1 Unless otherwise indicated, all further statutory references are to the Code of
Civil Procedure.

                                              3
                                             II

                                 UNDISPUTED FACTS

       Chabad owned the subject property for many years. The property includes 80,000

square feet of structures, 18 buildings, 6 homes, and a lawful cemetery near Running

Springs. A conditional use permit limits the use of the property to a year-round private

residential school for middle or high school age children. Asayag was caretaker of the

premises and had lived there since 2006.

       In 2007, the Bank loaned Chabad $8.25 million. The loan was secured by a deed

of trust on the property. On June 14, 2011, the Bank recorded a notice of default and

election to sell under the deed of trust. On November 30, 2011, the property was sold to

the Bank at a foreclosure sale. On December 8, 2011, a trustee’s deed upon sale was

recorded. This unlawful detainer action was filed on December 12, 2011.

                                            III

                           THE TRIAL COURT’S RULINGS

       The Bank’s motion for summary judgment was filed on or about January 5, 2012.

After the required responses were filed, the motion was heard on January 11, 2012.

       The trial court granted the motion for summary judgment. In a subsequent order

prepared by the Bank, the court found there was no triable issue of material fact and that

the Bank was entitled to judgment as a matter of law. After reciting the basic facts stated

above, the court found that “the Trustee gave notice in the manner and form required by




                                             4
Civil Code section 2924 et. seq., that the Property would be sold at public auction on

October 20, 2011, to satisfy the obligations secured by Deed of Trust.”

       The sale was actually held on November 30, 2011. The order states: “On

December 6, 2011, after Plaintiff’s title was perfected, Plaintiff caused to be served on

Defendants a Notice to Quit . . . requiring them to quit and deliver up possession of the

premises to Plaintiff within 3 days after service of the Notice.”

       After finding that more than three days had passed and that defendants remained

in possession of the property, the trial court ordered that the Bank be given possession of

the property after a 30-day stay to allow Chabad to vacate the premises.

                                                 IV

                                             ISSUES

       Chabad states: “The primary issues in this litigation and the motion for summary

judgment included Respondent’s improper service of the 3 day notice, failure to name or

serve a notice to terminate the tenancy of Asayag, and failure to comply with several

statutory requirements concerning the foreclosure sale and notice to tenants on the

premises.”

       The Bank argues that the trial court did not err and that there were no triable issues

of fact as to notice or title to the property.

       We think it clear that the Bank has met its initial burden of establishing facts

justifying an unlawful detainer judgment in its favor. The burden therefore shifts to

Chabad to demonstrate the existence of triable issues of material fact.


                                                 5
       Chabad argues that the trial court erred in the way it heard and decided the motion

for summary judgment. It also argues that we must review the case de novo to determine

whether a triable issue of material fact exists and that such a review shows the existence

of factual issues.

       Emphasizing that Chabad’s two sets of issues are different, we will proceed to first

consider the alleged errors of the trial court.

                                                  V

            CHABAD’S ARGUMENT THAT THE TRIAL COURT ERRED

       A.     Did the Trial Court Fail to Follow Section 437c, Subdivision (g)?

       Section 437c, subdivision (g) states, in relevant part: “Upon the grant of a motion

for summary judgment, on the ground that there is no triable issue of material fact, the

court shall, by written or oral order, specify the reasons for its determination. The order

shall specifically refer to the evidence proferred in support of, and if applicable in

opposition to, the motion which indicates that no triable issue exists. The court shall also

state its reasons for any other determination. The court shall record its determination by

court reporter or written order.”

       Chabad argues that the trial court did not specify reasons for its determination in

its minute order or the order granting summary judgment. The argument boils down to

an attack on the order prepared by the Bank and signed by the trial court.




                                                  6
       The order, which was prepared by the Bank, states that “Plaintiff, in support of its

motion, proffered evidence that established each element necessary to sustain judgment it

its favor . . . .” It then lists the evidence supporting the trial court’s conclusion.

       The order fails to refer to any evidence in opposition to the motion, as required by

section 437c, subdivision (g).

       The Bank points out that section 437c, subdivision (g) specifically allows the trial

court to orally state the reasons for its determination. In ruling on the motion, the trial

court said: “I thoroughly went through the files, the documents that had been filed in this

matter. And I . . . took judicial notice of those documents that were proper to take notice

of. . . . [T]he Court found that . . . there was proper service that was done and perfected

on all of these documents that were filed with the Court and noticed to the parties.” The

court then overruled all of Chabad’s evidentiary objections and found there were no

triable issues of fact.

       The trial court failed to refer to any evidence submitted by Chabad, particularly on

the notice issues. It also overruled all of Chabad’s evidentiary objections.

       The Bank cites Barton v. Elexsys Internat., Inc. (1998) 62 Cal.App.4th 1182. In

that case, the trial court declined to issue formal rulings on evidentiary objections but

listed specific undisputed evidence supporting its decision. (Id. at p. 1194.) The

appellate court affirmed, finding no triable issues of material fact. (Ibid.)

       However, the trial court’s ruling in Barton was based on Biljac Associates v. First

Interstate Bank (1990) 218 Cal.App.3d 1410, a case that was subsequently overruled “to


                                                7
the extent it permits the trial court to avoid ruling on specific evidentiary objections.”

(Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532, fn. 8, overruled in part in Biljac

Associates v. First Interstate Bank, supra, 218 Cal.App.3d 1410; see also Demps v. San

Francisco Housing Authority (2007) 149 Cal.App.4th 564 [court that authored Biljac

rejects it]; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 [court that authored

Biljac decides a case in which 764 specific evidentiary objections were made].)

          Chabad cites Young v. Superior Court (1986) 179 Cal.App.3d 28. In that case, the

appellate court discussed the 1983 amendments to section 437c and issued a writ of

mandate ordering the trial court to comply with section 437c, subdivision (g). (Young, at

p. 33.)

          Chabad also cites Tera Pharmaceuticals, Inc. v. Superior Court (1985) 170

Cal.App.3d 530. In Tera Pharmaceuticals, the appellate court also issued a writ of

mandate ordering compliance with section 437c, subdivision (g). (Tera Pharmaceuticals,

at p. 532.) The court stated that the trial court’s order “fail[s] to indicate whether any

issues raised by the motions are without substantial controversy, [and] it completely fails

to detail the conflicting evidence regarding each triable issue of fact. In order to fulfill

the statute’s purpose, the order must identify ‘a conflict in the evidence . . . by reference

to the evidence in support of a particular asserted fact and the evidence in opposition to

that fact.’ [Citation.]” (Ibid.)




                                               8
       We agree with Chabad that the trial court failed to comply with section 437c,

subdivision (g) by failing to cite the undisputed evidence and the conflicting evidence on

the factual issues, and particularly on the notice issue discussed below.

       The Bank contends any error is harmless, citing Santa Barbara Pistachio Ranch v.

Chowchilla Water Dist. (2001) 88 Cal.App.4th 439, 448-449: “The court’s failure to

provide a sufficient statement of reasons is not automatic grounds for reversal, since ‘“[i]t

is the validity of the ruling which is reviewable and not the reasons therefor. [Citation.]”’

[Citations.] ‘The lack of a statement of reasons presents no harm where . . . our

independent review establishes the validity of the judgment.’ [Citations.]”

       We discuss the applicability of the harmless error rule in connection with our de

novo review below.

       B.     Did the Trial Court Fail to Strictly Construe the Moving Papers and

              Liberally Construe the Opposing Papers?

       Chabad next argues that the trial court failed to liberally construe its evidence in

opposition to the summary judgment motion and failed to resolve doubts concerning the

evidence in its favor. (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 717;

Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 19.)

       While the principle is unassailable, Chabad’s application of it seems to be based

on the theory that the trial court erred by not finding in its favor. It argues that the trial

court disregarded all of its arguments, refused to rule on its evidentiary objections, and

failed to find there was conflicting evidence as to material factual issues.


                                               9
       We agree with Chabad that the trial court’s failure to comply with section 437c,

subdivision (g) may have made it more difficult to attack the trial court’s ruling, but we

find that the harmless error rule may apply. We will therefore reserve further discussion

of the specific issues in connection with our de novo review.

       C.     Did the Trial Court Err in Failing to Strictly Construe the Unlawful

              Detainer Statutes?

       Chabad also argues that all of the provisions of the unlawful detainer statute,

including the notice provisions, must be strictly construed, citing Deutsch v. Phillips

Petroleum Co. (1976) 56 Cal.App.3d 586, 592, Vasey v. California Dance Co. (1977) 70

Cal.App.3d 742, 746-748, and Woods-Drury, Inc. v. Superior Court (1936) 18

Cal.App.2d 340, 344. Since the argument relates to the notice issues, we will consider it

in our de novo review of those issues.

       D.     Other Alleged Errors of the Trial Court.

       Chabad argues that the trial court erred in applying Evidence Code provisions

relating to notice. It also contends that the trial court refused to comply with the portion

of Code of Civil Procedure section 437c regarding contrary inferences which may be

drawn from the evidence. It also again objects to the trial court’s blanket overruling of its

evidentiary objections. Finally, Chabad argues that the trial court failed to consider its

declarations in opposition to the motion.




                                             10
       All of these issues are related to the basic question of whether proper notice was

given or to the question of whether other material factual issues exist. We therefore turn

to our de novo review.

                                             VI

                DID CHABAD DEMONSTRATE THE EXISTENCE OF

                            MATERIAL FACTUAL ISSUES?

       As noted above, Chabad’s primary issue is the Bank’s allegedly improper service

of a three-day notice to vacate the premises. The Bank’s statement of undisputed facts

states: “On December 6, 2011, after Plaintiff’s title was perfected, Plaintiff caused to be

served on Defendants a Notice to Quit requiring them to quit and deliver up possession of

the premises to Plaintiff within 3 days after service of the Notice.” The statement cites a

supporting declaration of one of the Bank’s attorneys.

       The statement also cites the notice to quit and its attached proof of service. In the

proof of service, the registered California process server states: “I served the party: [¶]

d. by other means [o]n: Tue., Dec. 06, 2011 at: 10:05 AM by Posting (CCP 1162) in a

conspicuous place, having been unable to ascertain a place of business or to find a person

of suitable age or discretion[.]” (Italics omitted.) The declaration of the process server

was also submitted.

       A certificate of mailing of the notice to quit by another registered process server is

attached to the notice to quit. The declaration of the process server who mailed the notice

was also submitted.


                                             11
       In both notices, the person served is described as “Chabad of California, a

California Corporation and all occupant(s), tenants, or subtenants.” (Capitalization

omitted.)

       In its separate statement of material facts, Chabad alleged that neither Chabad nor

Asayag was served with a notice to quit. Asayag’s supporting declaration clearly states,

in detail, that he was not personally served with the notice to quit, that he never received

such a notice by mail, that no such notice was posted on any of the structures on the

property, and that no such notice was posted on the front gate. The president of Chabad

also submitted a declaration denying that the notice to quit was served.

       The trial court did not discuss these conflicting declarations. It merely stated: “I

find that there is adequate service based upon the proof of services they’ve filed with the

Court. [¶] I find that they were done by a registered process server. That once they’re

registered, you know, they’re basically noted as being reputable in what they testify to in

this matter.”

       As Chabad points out, Evidence Code section 647 states: “The return of a process

server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8

of the Business and Professions Code upon process or notice establishes a presumption,

affecting the burden of producing evidence, of the facts stated in the return.”

       Evidence Code section 641 states: “A letter correctly addressed and properly

mailed is presumed to have been received in the ordinary course of mail.” This is also a

presumption affecting the burden of producing evidence. (Evid. Code, § 630.)


                                             12
       Evidence Code section 604 states: “The effect of a presumption affecting the

burden of producing evidence is to require the trier of fact to assume the existence of the

presumed fact unless and until evidence is introduced which would support a finding of

its nonexistence, in which case the trier of fact shall determine the existence or

nonexistence of the presumed fact from the evidence and without regard to the

presumption. Nothing in this section shall be construed to prevent the drawing of any

inference that may be appropriate.”

       It is therefore clear that Chabad’s declaration created a factual issue which

required resolution at trial. The trial court erred by deciding the factual issue, rather than

merely identifying it.

       In Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, the

three-day notice was served by a registered process server. (Id. at p. 1419.) The

appellate court reversed because the trial court excluded the proof of service as hearsay.

(Ibid.) The appellate court then applied the presumption of Evidence Code section 647 to

find there was evidence of service. (Palm Property Investments, LLC v. Yadegar, supra,

at p. 1427.) It also found that a denial of service in the answer was insufficient: the

defendants had to produce evidence to rebut the presumption of Evidence Code section

647. (Palm Property Investments, LLC v. Yadegar, supra, at p. 1428.) The court found

that the proof of service should have been admitted and the trial court should have

applied the presumption of Evidence Code section 647. (Palm Property Investments,




                                              13
LLC v. Yadegar, supra, at p. 1424.) It therefore reversed and remanded the case for

retrial. (Ibid.)

       In the present case, the requisite evidence of nonreceipt was offered, and the

presumption of Evidence Code section 647 should have disappeared from the case.

“Upon presentation of appellant’s detailed, credible, and unimpeached evidence of no

actual notice—the presumption of such notice (Evid. Code, § 641) ceased to exist. (Evid.

Code, § 604.) The only remaining effect of the ‘Proof of Service’ declaration was to

enable the trial court to draw ‘any inference that may be appropriate.’ (Ibid.)” (Bonzer

v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1481.)

       Chabad’s second notice issue is that the Bank failed to name Asayag as a

defendant in the unlawful detainer action. The only necessary defendants in an unlawful

detainer action are the tenant and any subtenants. (§ 1164.) However, the plaintiff may

also name known occupants of the property. As to unknown occupants, the plaintiff may

proceed against them as Doe defendants, or it may use the more advantageous procedure

of section 1174.3. (See generally Friedman et al., Cal. Practice Guide: Landlord-Tenant

(The Rutter Group 2012) ¶¶ 8:33 to 8:37.2, pp. 8-13 to 8-16.)

       In this case the Bank only named Chabad and Doe defendants in the complaint. It

did not serve the form required by section 415.46 (prejudgment claim of right to

possession) and thus did not elect to take advantage of the section 1174.3 procedures.

The complaint does not refer to tenants or occupants of the property. Although the notice

to quit was addressed to tenants and occupants, the complaint did not allege existence of


                                            14
a landlord-tenant relationship between Chabad and Asayag, nor did it identify Asayag as

an occupant. (Friedman et al., Cal. Practice Guide: Landlord-Tenant, supra, ¶¶ 8:40 to

8.41, p. 8-17.)

       It is interesting to note that the court’s oral decision did not mention Asayag or

any other tenants or occupants. The order signed by the trial court granted the Bank’s

summary judgment motion and required that a judgment be entered giving possession to

the Bank. The order did not mention Asayag or any other tenants or occupants. Finally,

the judgment states: “Judgment is hereby entered in favor of Plaintiff, Pacific

Merchantile Bank and against Defendant, Chabad of California, Asher Asayag and All

Unnamed Occupants pursuant to C.C.P. § 415.46 providing that Plaintiff shall be given

restitution and possession of the property . . . .”

       Section 415.46 refers to a prejudgment claim of right to possession. In this case,

although the Bank did not invoke the procedure, Asayag’s attorney filed a prejudgment

claim of right to possession form under section 1174.3, subdivision (a) on Asayag’s

behalf. By signing the form, Asayag agreed to be added as a defendant to the proceeding

and he agreed that his right to occupy the property would be decided by the court. (See

generally Friedman et al., Cal. Practice Guide: Landlord-Tenant, supra, ¶¶ 8:131.1 to

8:131.27, pp. 8-48 to 8-56.)

       In any event, we agree with Chabad that there are legal and factual issues relating

to the service of the three-day notice to quit on Asayag, the propriety of giving Asayag a




                                               15
three-day notice rather than a 30, 60, or 90-day notice, and the procedures used to

produce a judgment against him and unnamed occupants of the property.

       As discussed above, several of the procedural and substantive errors of the trial

court are subject to harmless error analysis. However, since we have determined that the

trial court also erred in relying on the registered process server’s certificate without

considering the factual issue raised by the opposing declarations, we cannot conclude that

the other procedural and substantive errors were harmless.

       We therefore find that Chabad met its burden of demonstrating the existence of

material factual issues requiring a trial.2

                                              VII

                                       OTHER ISSUES

       A.     Request for Judicial Notice.

       On September 28, 2012, Chabad filed a motion to augment the record on appeal

with a transcript of a hearing held on August 28, 2012. At the hearing, the trial court

stated that the property was “both residential and commercial[.]” Chabad argues that this

statement directly supports its position that the premises were residential and that Asayag

was a tenant entitled to proper notice to terminate his tenancy.

       By order filed on October 15, 2012, we deemed the motion to be a request that we

take judicial notice of the subsequent trial court proceedings. We reserved ruling for


       2It is unfortunate that these issues were raised on summary judgment, as trial was
scheduled for the week following the summary judgment hearing.

                                              16
consideration with the appeal and we subsequently allowed the Bank to file supplemental

briefing on the issues raised by the request for judicial notice.

       After consideration of the arguments, we agree with the Bank that the court’s

remark at the August 28, 2012, hearing is irrelevant to any of the issues in this appeal.

As the Bank points out, our task is to review the propriety of the summary judgment on

the basis of the documents and evidence before the trial court at that time.

       The Bank relies on Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800: “It is

an elementary rule of appellate procedure that, when reviewing the correctness of a trial

court’s judgment, an appellate court will consider only matters which were part of the

record at the time the judgment was entered. [Citation.] This rule preserves an orderly

system of appellate procedure by preventing litigants from circumventing the normal

sequence of litigation. However, the rule is somewhat flexible; courts have not hesitated

to consider postjudgment events when legislative changes have occurred subsequent to a

judgment [citations] or when subsequent events have caused issues to become moot

[citation].” (Id. at p. 813.)

       “‘Because this case comes before us after the trial court granted a motion for

summary judgment, we take the facts from the record that was before the trial court when

it ruled on that motion. [Citation.]’” (Wilson v. 21st Century Ins. Co., supra, 42 Cal.4th

at pp. 716-717.)

       As Wilson demonstrates, our Supreme Court has confirmed the principle that

“‘[r]eviewing courts generally do not take judicial notice of evidence not presented to the


                                              17
trial court’ absent exceptional circumstances. [Citation.]” (Haworth v. Superior Court

(2010) 50 Cal.4th 372, 379, fn. 2.) Haworth then quotes the rule stated in Reserve

Insurance Co. (Haworth v. Superior Court, supra, at p. 379, fn. 2.)

       Finding no exceptional circumstances here, we deny the request for judicial notice.

       B.      Suggestion of Mootness.

       In a footnote, the Bank states: “Since entry of Judgment, the San Bernardino

County Sheriff has evicted Appellants from the Property. Appellants seek to reverse the

Court’s Judgment so they can re-enter the Property.” This footnote raises a number of

questions as to how the Bank was able to convince the sheriff to enforce the judgment

while the case is pending on appeal.

       Since Chabad has been evicted from the property, it can be argued that the

unlawful detainer action is moot. As noted in the Reserve Insurance Co. case quoted

above, mootness can be a reason for taking judicial notice of subsequent events. (Reserve

Insurance Co. v. Pisciotta, supra, 30 Cal.3d at p. 813.) However neither party has raised

the issue so we do not have any argument or record which would allow us to discuss it

further.

       C.      Chabad’s Attack on the Foreclosure Sale.

       Chabad argues that the Bank failed “to comply with several statutory requirements

concerning the foreclosure sale . . . .” It cites its trial court argument that title to the

property was not duly perfected by the Bank in accordance with Civil Code sections 2924

and 2924c. It briefly renews the argument in its opening brief.


                                               18
       The Bank cites Cheney v. Trauzettel (1937) 9 Cal.2d 158. Our Supreme Court

said: “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. [Citations.]” (Id. at p. 159; see also Vella v. Hudgins (1977) 20 Cal.3d 251,

255, citing § 1161a, subd. (b)(3).) Section 1161a, subdivision (b)(3) allows a tenant to

argue that title under the sale has not been duly perfected.

       We agree with the Bank that it established title by purchase at a trustee’s sale. A

general attack on the Bank’s title should not be heard in summary unlawful detainer

proceedings but may properly be presented in a separate action. (Cheney v. Trauzettel,

supra, 9 Cal.2d at p. 161.) As noted above, the statute allows the tenant to argue that title

under the sale has not been duly perfected.

       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


                                              19
favor of bona fide purchasers and encumbrancers for value and without notice.” The

deed in this case states: “All requirements of law regarding the mailing of copies of

notices and the posting and publication of copies of the Notice of Sale have been

complied with.”

                                           VIII

                                     DISPOSITION

      The judgment is reversed. Appellants shall recover their costs on appeal.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                              RICHLI
                                                                               Acting P. J.

We concur:


MILLER
                          J.


CODRINGTON
                          J.




                                            20
