Filed 7/11/17 Chang v. Superior Court 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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



JOHNNY CHANG et al.,

Petitioners,

v.

THE SUPERIOR COURT OF
SAN BERNARDINO COUNTY,

Respondent;

HOME EXPO FINANCIAL, INC.,

Real Party in Interest.


E068043

(Super.Ct.No. CIVDS1701104)

OPINION


ORIGINAL PROCEEDINGS; petition for writ of mandate. Donna G. Garza, Judge. Petition is granted.
Snell & Wilmer LLP, Jasmin Yang, for Petitioners.
No appearance for Respondent.
Law Office of Edward M. Palmer, Edward M. Palmer and C. Cass. Watters for Real Party in Interest.
In this matter, we have reviewed the petition, the opposition filed by real party in interest, and petitioners’ reply. We have determined that resolution of the matter involves the application of settled principles of law, and that the equities favor petitioners. We conclude that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
DISCUSSION
In unlawful detainer proceedings, the only triable issue is the right to possession of the disputed premises (and incidental damages). (Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367, 385.) Ordinarily, issues of title to the property cannot be adjudicated in an unlawful detainer action because the summary nature of unlawful detainer proceedings denies certain procedural rights enjoyed in ordinary actions. (Ibid.) However, consolidation of a limited action for unlawful detainer and an unlimited action in which title to the property is at issue lies within the discretion of the trial court. (Ibid.) Mandate is appropriate to review an order denying consolidation. (Ibid.)
Here, real party in interest Home Expo Financial, Inc. (hereafter Home Expo), asserts the right to title as an alleged bona fide purchaser of petitioners’ residential property at a trustee’s sale pursuant to foreclosure. It filed a limited action for unlawful detainer in the San Bernardino County Superior Court in case No. UDFS1608973. On the other hand, petitioners contest Home Expo’s claim to title in a separate unlimited action under case No. CIVDS1701104, asserting causes of action for: (1) quiet title; (2) wrongful foreclosure; (3) breach of contract; (4) violation of the Davis-Stirling Act; (5) fraud; (6) accounting; and (7) declaratory relief. Without limitation, they assert irregularities in the execution of the statutory foreclosure notice and sale procedure, including that notice of the right to redemption was not provided until after the redemption period had passed and trustee’s sale taken place. They also allege that the $13,972.05 paid for the property at the trustee’s sale was inadequate, even considering Home Expo’s assumption of the existing trust deeds. They further allege that petitioner Chang’s sister attempted to attend the foreclosure sale to bid on the property but was not allowed to bid in cash; upon her return with a cashier’s check, she was told the property would not be sold that day as noticed, but the trustee’s representative refused to tell her the continued sale date and intended to mislead her to prevent her bidding.
Home Expo contends only that it is a bona fide purchaser with no notice of adverse interest or an irregularity in the sale proceedings in the trustee’s deed, such that it is entitled to a conclusive presumption that the sale of the property was proper. (See Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 102 (Lona); Melendrez v. D&I Investment, Inc. (2005) 127 Cal.App.4th 1238, 1249-1250.) Notwithstanding, a trustee’s sale may be set aside for, among other reasons, alleged irregularity in the procedure coupled with inadequate price, breach of contract, fraud; and sham bidding. (Lona, at p. 106.) Home Expo has not directly addressed these claims. As issues challenging title, they are not appropriate for determination in a summary proceeding such as the unlawful detainer action.
We note that petitioners sought consolidation or a stay in the trial court. The court issued a temporary stay of the limited unlawful detainer action while the parties briefed the quiet title issue, but ultimately denied consolidation and lifted the stay. Despite Home Expo’s contention it is a bona fide purchaser, however, the allegations petitioners raise, if true, could result in the trustee’s sale being set aside and Home Expo’s claim to title eliminated. In addition, petitioners will suffer irreparable injury if they are wrongfully evicted; on the other hand, petitioners are paying monthly rent into their counsel’s trust account in the event Home Expo prevails. Therefore, the risk of injury to Home Expo is reduced.
Accordingly, we have determined that the trial court abused its discretion in refusing petitioners’ request for consolidation or stay, and that the petition should be granted.
DISPOSITION
Let a peremptory writ of mandate issue, directing the Superior Court of San Bernardino County to vacate its order of March 22, 2017, in San Bernardino Superior Court case No. CIVDS1701104, denying petitioners’ request to consolidate or stay the unlawful detainer action, and to enter a new and different order either granting consolidation of the actions for further proceedings or granting such other relief as will permit the issues of title raised by case No. CIVDS1701104 to be heard and determined before trial of the limited action for unlawful detainer, case No. UDFS1608973, without the restrictions that otherwise apply to actions for unlawful detainer. The court shall condition its order on the payment by petitioners of reasonable rent into an escrow, trust, court, or other account as further determined by the trial court, these payments to be disbursed to the party eventually determined to hold title to the subject premises.
Petitioners are directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties. Petitioners to recover their costs.
The stay previously ordered by this court is lifted upon imposition of the consistent order in the superior court.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH
J.
We concur:



RAMIREZ
P. J.



McKINSTER
J.