Filed 7/29/26 Tripathi v. Tesconi CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 THREE
ASHISH TRIPATHI,
Plaintiff and Respondent,
A172456
v.
RAYMOND TESCONI, (Alameda County
Super. Ct. No. 24CV078303)
Defendant and Appellant.
Defendant Raymond Tesconi appeals from the trial court’s order
granting plaintiff Ashish Tripathi’s unopposed motion for summary
judgment. Tesconi argues the shortened briefing schedule prevented him
from opposing the motion, and Tripathi failed to establish the required
elements for his unlawful detainer claim. Tesconi further contends the court
erred in denying his motion for a stay of the dispute while his wrongful
foreclosure civil action was proceeding. We are not persuaded and affirm.
BACKGROUND
Tesconi owned and resided at the subject property for nearly 30 years.
He financed the property through two loans: a primary loan held by Wells
Fargo Bank, N.A.; and a junior loan (a loan that sits behind a primary loan in
repayment priority) held by Dark Run Ventures, Inc. (DRV). In 2018,
Tesconi recorded the deed of trust securing DRV’s junior loan (loan). Only
that loan is at issue in this appeal.
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In January 2023, approximately three months before the loan matured,
Mortgage Lender Services, Inc. (MLS), acting as trustee under the deed of
trust, initiated nonjudicial foreclosure based on failure to pay the mortgage
by recording a notice of default election to sell under deed of trust. Tesconi
disputed the default and asserted he had financing available to satisfy the
loan, but the foreclosure proceeded.
MLS later recorded a notice of trustee’s sale. Following several
postponements, the trustee’s sale occurred on April 2, 2024. Tripathi
attended the sale and successfully submitted the highest bid, and the
foreclosure sale was subsequently deemed final pursuant to Civil Code
section 2924m, subdivision (c)(4) (all further statutory references are to the
Civil Code unless otherwise noted). All further dates are in 2024.
Wrongful Foreclosure Action
On April 16, Tesconi filed a wrongful foreclosure complaint against
DRV, its owner, and MLS, alleging causes of action for wrongful foreclosure,
quiet title, misrepresentation, constructive fraud, financial elder abuse,
conversion, monies had and received, breach of fiduciary duty, intentional
infliction of emotional distress, and declaratory relief. The complaint
principally challenged DRV’s conduct leading up to the foreclosure. Among
other things, Tesconi alleged that while he was undergoing cancer treatment,
DRV required him to execute a settlement document, improperly advanced
funds on the primary loan, charged unauthorized interest, refused to provide
an accurate payoff demand, and otherwise prevented him from paying off the
junior loan. As to the foreclosure sale itself, the complaint alleged only that
defendants refused to postpone the sale and that the property may have been
sold to insiders because the purchase price was below market value.
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On May 10, Tesconi recorded a notice of pendency of action (lis
pendens) concerning the property. The notice stated that Tesconi filed an
action against DRV, its owner, and MLS that “alleges a real property claim
affecting” the subject property. On June 7, Tesconi filed a Doe amendment to
his wrongful foreclosure action, adding Tripathi as a defendant.
Unlawful Detainer Action
On May 22, MLS confirmed the trustee’s sale to Tripathi had become
final. MLS provided Tripathi an executed “Trustee’s Deed Upon Sale,” which
he recorded on May 24.
Tripathi thereafter served Tesconi with notices to quit. Although the
record reflects an initial notice served on May 24, Tripathi served a second
three-day notice to quit on May 30. Tesconi did not leave.
Tripathi filed an unlawful detainer action on June 4. The complaint
alleged that Tesconi refused to surrender possession even though Tripathi
had acquired the property through a “properly noticed and conducted non-
judicial foreclosure sale,” perfected title by recording the Trustee’s Deed Upon
Sale, and served Tesconi with a three-day notice to quit. Tesconi’s answer
alleged various affirmative defenses, including that the sale was subject to
recissions and the Trustee’s Deed Upon Sale voidable because “the lender,
prior to foreclosure, violated salient portions of the Homeowners’ Bill of
Rights.”
Motion To Stay
Tesconi moved to stay the unlawful detainer action pending resolution
of the wrongful foreclosure case. He argued the separate action presented
title issues that could not fairly be resolved within the summary unlawful
detainer proceeding. In a supporting declaration, Tesconi asserted he had
attempted to repay the loan, that DRV pursued foreclosure while he was
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recovering from a stroke, and that Tripathi acted as a straw purchaser in a
scheme to acquire the property below market value. In opposition, Tripathi
argued the wrongful foreclosure action challenged only DRV’s preforeclosure
conduct and did not raise issues concerning the statutory validity of the
trustee’s sale and compliance with section 2924.
The trial court denied the motion. It reasoned that a stay is not
warranted merely because a defendant challenges title in a separate action,
as such a rule would effectively halt most postforeclosure unlawful detainer
proceedings. The court noted Tesconi cited no authority requiring or even
supporting a stay under these circumstances, and the authorities he relied
upon were distinguishable. The court emphasized Tesconi did not directly
challenge the postforeclosure trustee’s sale procedures (i.e., the trustee’s sale
failed to comply with section 2924 et seq.) but instead alleged that the
lender’s preforeclosure violations of the Homeowner Bill of Rights rendered
the sale voidable. Because plaintiff’s verified complaint alleged compliance
with the statutory foreclosure scheme and the attached Trustee’s Deed Upon
Sale reflected a facially valid trustee’s sale, the court found no basis to stay
the unlawful detainer proceedings.
Tesconi filed a petition for writ of mandate challenging this order with
the appellate division of the superior court, which was summarily denied.
Motion for Summary Judgment
On November 27, Tripathi moved for summary judgment. The motion
alleged there was prima facie evidence that the foreclosure sale was
conducted in compliance with section 2924 as Tripathi purchased the
property at a trustee’s sale and was subsequently issued a Trustee’s Deed
Upon Sale, which contained recitals stating the foreclosure proceedings were
conducted in accordance with applicable law. It further asserted he was a
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bona fide purchaser and thus took title free of any issues between Tesconi
and MLS or DRV. Finally, it asserted Tripathi properly served Tesconi with
a notice to quit, Tesconi was not challenging the adequacy of that notice, and
Tesconi failed to vacate the property.
Tripathi submitted a supporting declaration, stating he attended the
trustee’s sale, submitted the highest bid at that sale, and was declared the
winning bidder. He declared that, at the time he attended the trustee’s sale
and purchased the property, he was unaware of any dispute regarding the
property or the foreclosure proceedings. Tripathi further stated he served
Tesconi with two separate notices to quit but was required to file the
unlawful detainer action as those notices were ignored.
On December 2, Tripathi moved ex parte to advance the original
February 6, 2025 hearing date on the motion for summary judgment as the
hearing date provided by the court was almost two months after the
scheduled December 16, 2024 trial date, and he had been unable to file the
motion sooner due to Tesconi’s discovery delays. Tripathi provided Tesconi’s
counsel with the requisite notice of the ex parte and asked to be informed if
Tesconi would oppose the application. On December 3, the court granted
Tripathi’s ex parte application and moved the hearing date for the summary
judgment motion to December 12. The court set December 9 as the deadline
for any opposition, and December 10 as the deadline for any reply.
On December 10, the trial court issued a tentative order granting the
motion for summary judgment and noting Tesconi “has not opposed this
motion and has therefore failed to raise triable issues of material fact as to
the unlawful detainer action.” The court provided its form instructions on
how to contest the tentative ruling. Because Tesconi did not contest the
tentative ruling, the court subsequently adopted its tentative and granted the
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motion for summary judgment. The court entered judgment in favor of
Tripathi and ordered issuance of a writ of possession.
Tesconi filed an ex parte motion to stay eviction and enforcement,
which Tripathi opposed as an improper request for reconsideration. The
court conditionally granted the request, providing Tesconi with
approximately 20 days to vacate subject to a rental payment.
Tesconi appealed the judgment.
DISCUSSION
On appeal, Tesconi challenges both the trial court’s summary judgment
ruling and its earlier order denying his request for a stay. We address both
orders in turn.
I. Applicable Law and Standard of Review
A. Summary Judgment
The standard of review of an order granting summary judgment is well
established. On appeal, “we apply the same three-step process as the trial
court.” (Ryan v. Real Estate of Pacific, Inc. (2019) 32 Cal.App.5th 637, 642;
Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) First, we review
the issues framed by the operative pleadings to determine the scope of
material issues. Second, we then determine if the moving party has
discharged its initial movant’s burden of production. Finally, if we determine
the moving party made the requisite prima facie showing of the nonexistence
of a triable issue of fact, we review the opposing party’s submissions to
determine if a material triable issue exists. (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850–851.)
Our review is de novo. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th
at p. 334.) In conducting this review, “we must view the evidence in a light
favorable to [the losing party] [citation], liberally construing [his or] her
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evidentiary submission while strictly scrutinizing [the other party’s] own
showing, and resolving any evidentiary doubts or ambiguities in [the losing
party’s] favor.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
Summary judgment is appropriate “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.” (Code Civ. Proc., § 437c, subd. (c).)
B. Motion To Stay
We review a trial court’s ruling on a motion for a stay under the abuse
of discretion standard. (Bains v. Moores (2009) 172 Cal.App.4th 445, 480.)
“An abuse of discretion occurs if, in light of the applicable law and
considering all of the relevant circumstances, the court’s decision exceeds the
bounds of reason and results in a miscarriage of justice.” (New Albertsons,
Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422.)
II. Summary Judgment Ruling
A. Mootness
As a threshold matter, Tripathi contends the appeal is moot because he
has already obtained possession of the property. We disagree.
“ ‘Generally, courts decide only “actual controversies” which will result
in a judgment that offers relief to the parties.’ [Citation.] ‘Thus, appellate
courts as a rule will not render opinions on moot questions . . . .’ [Citation.]
‘A case becomes moot when a court ruling can have no practical impact or
cannot provide the parties with effective relief.’ [Citation.] . . . But, where a
court can afford the party at least some relief, even if not all the relief
originally requested, the court should not dismiss a case as moot.” (City of
Cerritos v. State of California (2015) 239 Cal.App.4th 1020, 1031.)
Tripathi focuses only on the relief he sought below—possession of the
property—and overlooks the issue presented on appeal: whether Tesconi was
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wrongly dispossessed. If Tesconi were to prevail, this court could reverse or
modify the judgment and order restitution “on reasonable terms and
conditions of all property and rights lost by the erroneous judgment or order.”
(Code Civ. Proc., § 908; see Shapell SoCal Rental Properties, LLC v. Chico’s
FAS, Inc. (2022) 85 Cal.App.5th 198, 209–210.) Because effective relief
remains available, the appeal is not moot.
B. Waiver
Although the appeal is not moot, Tesconi has forfeited the bulk of his
challenge to the summary judgment ruling by failing to oppose the motion or
otherwise raise his arguments in the trial court.
Generally, “a defendant may waive the right to raise an issue on appeal
by failing to raise the issue in the pleadings or in opposition to a summary
judgment motion.” (Wright v. Fireman’s Fund Ins. Companies (1992) 11
Cal.App.4th 998, 1011.) Here, Tesconi filed no opposition to Tripathi’s
motion, submitted no separate statement, and offered no evidence disputing
Tripathi’s title evidence or otherwise demonstrating the existence of a triable
issue of material fact. His failure to file a separate statement alone deprived
the trial court of the procedural mechanism for identifying disputed facts
and, in the court’s discretion, constituted sufficient grounds to grant
summary judgment. (Code Civ. Proc., § 437c, subd. (b); California School of
Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22; Kaplan v. LaBarbera
(1997) 58 Cal.App.4th 175, 179.) Code of Civil Procedure section 437c,
subdivision (c), requires a trial court to grant summary judgment when the
papers before the trial court, together with all reasonable inferences, show no
triable issues of material fact and entitlement to judgment as a matter of law.
(Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511–1512.)
8
Nor may Tesconi cure those omissions on appeal. Appellate review is
confined to the evidence and theories properly presented below. “[U]nless
they were factually presented, fully developed and argued to the trial court,
potential theories which could theoretically create ‘triable issues of material
fact’ may not be raised or considered on appeal.” (Sangster v. Paetkau (1998)
68 Cal.App.4th 151, 163.) Like the trial court, on appeal we consider only the
evidence properly identified in the summary judgment papers, excluding
evidence to which objections were sustained. (Code Civ. Proc., § 437c,
subd. (c); Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 561,
fn. 2.) And because Tesconi raised no evidentiary objections below, any such
objections are forfeited. (Code Civ. Proc., § 437c, subd. (d).)
In response to this failure to oppose summary judgment, Tesconi takes
issue with the court’s ex parte order setting an abbreviated briefing schedule
and advancing the hearing date. But Tesconi likewise forfeited any challenge
to the ex parte order by failing to oppose the ex parte application, object to
the modified briefing schedule, argue that the shortened schedule deprived
him of a meaningful opportunity to respond, or request a continuance. Had
Tesconi believed the shortened notice period prevented him from preparing
an adequate opposition, he was required to make a record by objecting or
seeking additional time. (See Carlton v. Quint (2000) 77 Cal.App.4th 690,
698.)
Likewise, Tesconi cannot now claim on appeal that the shortened
schedule deprived him of due process. A party generally must raise
constitutional claims in the trial court to preserve them for appellate review.
(Bettencourt v. City and County of San Francisco (2007) 146 Cal.App.4th
1090, 1101 [“Typically, constitutional issues not raised in earlier civil
9
proceedings are waived on appeal.”].) Because he failed to raise this issue in
the trial court, he has failed to preserve it for appellate review.
Even overlooking this forfeiture, Tesconi’s due process argument fails
on the merits. “ ‘It is a fundamental concept of due process that a judgment
against a defendant cannot be entered unless he was given proper notice and
an opportunity to defend. [Citation.]’ . . . Due process requires affording a
litigant a reasonable opportunity, by continuance or otherwise, to respond to
evidence or argument that is new, surprising, and relevant.” (In re Marriage
of O’Connell (1992) 8 Cal.App.4th 565, 574.) Whether Tesconi was deprived
of due process is a question of law that we review de novo. (In re Marriage of
Siegel (2015) 239 Cal.App.4th 944, 953.) Here, the record demonstrates
Tesconi received notice of the summary judgment motion, the order
advancing the hearing date, and the revised briefing schedule. Despite that
notice, he failed to file any opposition, requested no continuance, and lodged
no objection to the modified schedule or the trial court’s tentative ruling. In
short, Tesconi was afforded notice and an opportunity to be heard but opted
to ignore the motion. His decision not to avail himself of any of these options
does not establish a denial of due process.
C. Tripathi Met His Burden of Proof
Because we review an order granting summary judgment de novo, we
independently determine whether Tripathi’s undisputed evidence established
each element of his unlawful detainer claim and entitled him to judgment as
a matter of law. (Code Civ. Proc., § 437c, subd. (p)(1).)
To prevail on an unlawful detainer action under Code of Civil
Procedure section 1161a, subdivision (b)(3), Tripathi was required to
establish: (1) he acquired the property through a foreclosure sale conducted
in accordance with Civil Code section 2924; (2) title under the sale was duly
10
perfected; (3) he served Tesconi with a valid three-day notice to quit; and
(4) Tesconi remained in possession of the property after expiration of the
notice period. We address each element in turn.
1. The Trustee’s Sale
Tripathi first had to establish that he acquired the property at a
regularly conducted trustee’s sale under section 2924. (Melendrez v. D & I
Investment, Inc. (2005) 127 Cal.App.4th 1238, 1250 (Melendrez).) “ ‘As a
general rule, there is a common law rebuttable presumption that a
foreclosure sale has been conducted regularly and fairly.’ [Citations.]
Accordingly, ‘[a] successful challenge to the sale requires evidence of a failure
to comply with the procedural requirements for the foreclosure sale that
caused prejudice to the person attacking the sale.’ ” (6 Angels, Inc. v. Stuart-
Wright Mortgage, Inc. (2001) 85 Cal.App.4th 1279, 1284, italics omitted.)
Section 2924, subdivision (c), provides that the recitals in a trustee’s
deed constitute prima facie evidence—and, as to a bona fide purchaser,
conclusive evidence—that the statutory foreclosure requirements were
satisfied. Thus, when a trustee’s deed recites compliance with the statutory
notice requirements, a presumption arises that the foreclosure sale was
regularly and properly conducted. (Lona v. Citibank, N.A. (2011) 202
Cal.App.4th 89, 102.) That presumption “is conclusive as to a bona fide
purchaser.” (Ibid.) Under section 2924, a bona fide purchaser is one who
“(1) purchase[d] the property in good faith for value, and (2) [has] no
knowledge or notice of the asserted rights of another.” (Melendrez, supra, 127
Cal.App.4th at p. 1251, italics omitted.)
Tripathi’s evidence met those requirements. Tripathi’s declaration in
support of summary judgment stated that he purchased the property for
$1,220,100.00 and, at the time of the sale, had no knowledge of any dispute
11
regarding the foreclosure proceedings or the underlying loan. His declaration
also attached the Trustee’s Deed Upon Sale, which recited compliance with
the statutory notice requirements governing both the notice of default and
the notice of sale. Those recitals triggered the conclusive presumption
afforded bona fide purchasers under section 2924, subdivision (c).
The burden therefore shifted to Tesconi to produce evidence of an
irregularity in the foreclosure proceedings. (See Melendrez, supra, 127
Cal.App.4th at p. 1258.) Because he filed no opposition, he produced no such
evidence.
Nor do Tesconi’s appellate arguments demonstrate otherwise. Tesconi
first contends Tripathi purchased the property for substantially less than its
market value. But inadequacy of price alone neither defeats bona fide
purchaser status nor establishes an irregularity in the foreclosure sale.
(Melendrez, supra, 127 Cal.App.4th at p. 1251 [“The first element [of being a
bona fide purchaser] does not require that the buyer’s consideration be the
fair market value of the property”]; Lona v. Citibank, N.A., supra, 202
Cal.App.4th at p. 105 [“ ‘The “mere inadequacy of price, absent some
procedural irregularity that contributed to the inadequacy of price or
otherwise injured the trustor, is insufficient to set aside a nonjudicial
foreclosure sale.” ’ ”].)
Tesconi next argues the pending wrongful foreclosure action and
recorded lis pendens precluded Tripathi from qualifying as a bona fide
purchaser. The undisputed evidence, however, establishes that Tripathi
submitted the successful bid on April 2, 2024, before either the May 10, 2024
recording of the lis pendens or his June 7, 2024 addition as a defendant in the
wrongful foreclosure action.
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Once Tripathi submitted his winning bid, he could not simply rescind
the offer. “[A] bid at a foreclosure sale constitutes . . . ‘an irrevocable offer’ to
purchase the property for the amount of the bid.” (California Golf, L.C.C. v.
Cooper (2008) 163 Cal.App.4th 1053, 1071; Civ. Code, § 2924h, subd. (a);
Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1237.) And, once
the bid is accepted, the sale is complete. (§ 2924h, subd. (c); Angell v.
Superior Court (1999) 73 Cal.App.4th 691, 699–701; Ballengee v. Sadlier
(1986) 179 Cal.App.3d 1, 4–5.) As explained in Matson v. S.B.S. Trust Deed
Network (2020) 46 Cal.App.5th 33, 41, “[d]elivery of the trustee’s deed . . . is a
ministerial act after the sale has been completed by accepting the highest
bid.” Even though the purchaser in Matson attempted to reject the deed of
trust and returned it to the trustee rather than recording it, the court
concluded “these actions had no legal effect as the sale was completed upon
acceptance of the final bid. Delivery of the deed by the trustee makes
conclusive the presumption that the sale was properly conducted [citation],
and recordation of the deed perfects the title.” (Ibid.) Thus, at the time
Tesconi recorded his lis pendens, the trustee’s sale was complete and the
statute provides no manner by which to abort the sale aside from a defect in
the foreclosure process. (Angell, at p. 701.)
Moreover, there is no evidence Tripathi was aware of the lis pendens
before recording the trustee’s deed. While Tesconi recorded the lis pendens
with a proof of service, Tripathi was never served with the document.
Instead, the proof of service only reflects service to an unnamed “successful
bidder” at the property address—which, at the time, was still in possession of
Tesconi. Nor was Tripathi a party to the foreclosure action prior to recording
the trustee’s deed. Accordingly, those later events do not undermine his bona
fide purchaser status.
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2. Title Was Duly Perfected
Tripathi also had to establish that title was duly perfected before he
served the operative three-day notice to quit. (Dr. Leevil, LLC v. Westlake
Health Care Center (2018) 6 Cal.5th 474, 479–480.) “ ‘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.’ ” (Id. at p. 479, italics
omitted.) In other words, “perfection of title requires that the instrument of
conveyance (the trustee’s deed) be recorded pursuant to Government Code
section 27280.” (Ibid.)
The evidence satisfies this requirement. The trustee conveyed to
Tripathi a deed of sale for the subject property, which was recorded on May
24, 2024. Although the record does not establish whether the deed was
recorded before or after an earlier notice to quit served that same day,
Tripathi declared he served a second three-day notice to quit on May 30,
2024. Thus, Tripathi recorded the trustee’s deed six days before the three-
day notice to quit.
In response, Tesconi argues Tripathi failed to establish duly perfected
title because the property remained subject to pending wrongful foreclosure
litigation and a recorded lis pendens. As discussed, however, Tesconi
forfeited that contention by failing to oppose the summary judgment motion.
3. Notice To Quit and Holdover
Finally, Tripathi was required to establish that he properly served a
three-day notice to quit after title was recorded, and Tesconi remained in
possession after expiration of the notice period. (Code Civ. Proc., §§ 1161a,
subd. (b), 1162, subd. (a).)
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Tripathi’s declaration established both facts. He declared that on May
30, 2024, he served the notice to quit by posting it on the front door of the
property and mailing a copy to Tesconi via first class mail. He further
declared that Tesconi remained in possession after service of the notice and
refused to surrender possession. Tesconi identifies no evidence creating a
triable issue regarding either service of the notice or his continued
possession.
In sum, Tripathi submitted undisputed evidence establishing each
element of his unlawful detainer claim. Although Tesconi now advances
several theories challenging the foreclosure sale and Tripathi’s title, those
arguments were never presented to the trial court in opposition to summary
judgment and therefore do not create a triable issue of material fact on
appeal. The trial court properly granted summary judgment.
III. Order Denying Motion To Stay
Tesconi also contends the trial court should have stayed the unlawful
detainer action pending resolution of his separate wrongful foreclosure action
because that action challenged Tripathi’s title. We disagree.
An unlawful detainer action following a trustee’s sale under Code of
Civil Procedure section 1161a permits only a “ ‘narrow and sharply focused
examination of title’ ” directed to the procedural validity of the foreclosure
sale. (Asuncion v. Superior Court (1980) 108 Cal.App.3d 141, 144.)
Accordingly, a purchaser at a trustee’s sale, who then becomes the plaintiff in
an unlawful detainer action, need establish only that the sale complied with
the applicable statutory requirements and that title was duly perfected. (Old
National Financial Services, Inc. v. Seibert (1987) 194 Cal.App.3d 460, 465
(Seibert).) The occupant may challenge only that limited aspect of title;
broader disputes concerning the validity of the underlying loan, deed of trust,
15
or other defects in title fall outside the scope of the summary unlawful
detainer proceeding. (Ibid.)
For that reason, the existence of a separate action involving title does
not, by itself, require a stay of an unlawful detainer proceeding. Rather,
whether a stay is appropriate depends upon the nature of the claims asserted
in the companion action. In Old National Financial Services, Inc. v. Seibert,
supra, 194 Cal.App.3d 460, for example, the trial court denied the defendant’s
request to stay the unlawful detainer action because of a pending fraud
complaint he filed against the plaintiff related to certain loans. (Id. at
p. 465.) This court affirmed, explaining “that where the plaintiff in the
unlawful detainer action is the purchaser at a trustee’s sale, he or she ‘need
only prove a sale in compliance with the statute and deed of trust, followed by
purchase at such sale, and the defendant may raise objections only on that
phase of the issue of title. Matters affecting the validity of the trust deed or
primary obligation itself, or other basic defects in the plaintiff’s title, are
neither properly raised in this summary proceeding for possession, nor are
they concluded by the judgment.’ ” (Ibid., italics omitted.) Because the issues
raised in the other complaint did not relate to whether the trustee’s sale
complied with section 2924 or whether title was perfected, there was no basis
to stay the unlawful detainer. (Seibert, at p. 465.)
Conversely, where the separate action challenges the procedural
validity of the trustee’s sale itself, a stay may be warranted because those
issues overlap with the limited title inquiry permitted under Code of Civil
Procedure section 1161a. In Mehr v. Superior Court (1983) 139 Cal.App.3d
1044 (Mehr), an individual purchased the subject property at a trustee’s sale
and successfully obtained a judgment for possession following an unlawful
detainer proceeding. (Id. at p. 1047.) The Mehrs sought a stay of execution
16
pending their appeal, which the trial court denied. (Id. at pp. 1047–1048.)
On appeal, the court raised concerns with issues of title being litigated in the
unlawful detainer matter. (Id. at p. 1050.) Specifically, the Mehrs filed a
separate lawsuit claiming the “trustee’s sale was void and of no effect”
because the trustee failed to comply with certain statutory requirements for
the sale, and also raised this issue as an affirmative defense to the unlawful
detainer. (Ibid.) Accordingly, the appellate court concluded the Mehrs’
motion for stay of execution pending appeal should be granted. (Ibid.)
Likewise, where the competing claims of ownership present complex
title disputes that cannot fairly be resolved within the summary procedures
governing unlawful detainer, the trial court may stay or consolidate the
actions. (Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367, 371, 393
(Martin-Bragg) [claims of ownership between former domestic partners were
tied to complex commercial transactions involving the property]; Asuncion v.
Superior Court, supra, 108 Cal.App.3d at p. 144 [alleging financial company’s
claim of ownership arose from a loan that was usurious, fraudulent, and in
violation of state and federal laws].)
The present dispute is more analogous to Seibert than to Mehr or
Martin-Bragg. Tesconi’s wrongful foreclosure action principally alleges
misconduct by DRV in servicing the loan. Among other things, it alleges that
Tesconi executed loan documents while impaired by medical treatment, that
DRV improperly advanced funds, charged unlawful interest, acted in bad
faith to prevent repayment of the loan, and otherwise engaged in wrongful
lending practices. Although the complaint also alleges the trustee’s sale
should have been postponed and speculates that the property may have been
sold to insiders because of the purchase price, it does not allege procedural
defects in the trustee’s sale itself or challenge Tripathi’s acquisition of title in
17
a manner relevant to the limited inquiry permitted under Code of Civil
Procedure section 1161a. And the unlawful detainer action only alleged a
right to title based on Tripathi’s purchase at the trustee’s sale, which Tesconi
has not procedurally challenged.
Accordingly, as in Seibert, the issues presented in the wrongful
foreclosure action do not overlap with those properly litigated in the unlawful
detainer proceeding. Unlike Mehr or Martin-Bragg, this case does not
involve unresolved procedural challenges to the foreclosure sale or complex
competing claims of ownership requiring adjudication outside the summary
unlawful detainer process. The trial court therefore acted within its
discretion in declining to stay the unlawful detainer action pending
resolution of the separate lawsuit.
DISPOSITION
The judgment is affirmed. Plaintiff may recover his costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(1), (2).)
PETROU, J.
WE CONCUR:
TUCHER, P. J.
FUJISAKI, J.
A172456 / Tripathi v. Tesconi
18