Filed 2/8/21 Thompson v. Ioane CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SIXTH APPELLATE DISTRICT

RICHARD L. THOMPSON,

Plaintiff and Respondent,

v.

MICHAEL IOANE, SR. et al.,

Defendants and Appellants.

 H046111

 (Santa Cruz County

 Super. Ct. No. CV179290)

This appeal involves a decades-long dispute over real property located on Blue 

Gum Avenue in Capitola (the Blue Gum property). Plaintiff Richard L. Thompson, as 

Successor in Interest to James J. Thompson, successfully moved for summary judgment 

on causes of action for quiet title and declaratory relief, and the trial court entered 

judgment in Thompson’s favor. Defendants Michael S. Ioane, Sr., Shelly J. Ioane, and 

their adult children, Briana C. Ioane, Ashley M. Ioane, and Michael S. Ioane, Jr. 

(collectively, the Ioanes), proceeding in propria persona, appeal.

1

 We shall affirm.

I. BACKGROUND

A. Factual Background2

In late 1992, Arthur Michael Alvarez obtained a $260,000 loan from Commerce 

Security Bank. The note evidencing Alvarez’s loan was secured by a deed of trust (the

1 We refer to the Ioanes by their first names for purposes of clarity. We refer to 

Michael S. Ioane, Sr. as “Michael” and to Michael S. Ioane, Jr. as “Michael, Jr.”

2 We base our factual summary in part on the appellate records in Thompson v. 

Ioane (2017) 11 Cal. App. 5th 1180 (Thompson), case Nos. H043112 and H042104, 
2

Deed of Trust) on the Blue Gum property. The Deed of Trust identified First American 

Title Insurance Company as the trustee. Commerce Security Bank was the beneficiary or 

lender and Alvarez was the trustor or borrower.3

Commerce Security Bank transferred its interest in the Deed of Trust to 

The Prudential Home Mortgage Company, Inc. in January 1993. In June 1994, 

The Prudential Home Mortgage Company, Inc. transferred its interest in the Deed of 

Trust to First Trust National Association, as trustee, Series # 1993-6.

In October 1997, First Trust National Association, as trustee, Series # 1993-6, by 

attorney in fact Norwest Mortgage, Inc., substituted Lonestar Mortgagee Services, LLC 

(Lonestar) as trustee under the Deed of Trust. 

Alvarez defaulted on his loan. Lonestar, through its attorney in fact, recorded a 

Notice of Default and Election to Sell Under Deed of Trust on October 22, 1997.

two prior appeals in this case; we previously granted Michael’s request for judicial notice 

of those appellate records. On November 4, 2019, the Ioanes requested that this court 

take judicial notice of (1) various recorded documents pertaining to the Blue Gum 

property (items 1-18, 23, 27, 32); (2) court records from Michael’s bankruptcy cases 

(items 19, 20, 24-26); (3) other court documents (items 22, 28, 29, 31); (4) institution 

history for First Trust National Association maintained by the National Information 

Center of the Federal Reserve System (item 21); and (5) an email exchange with the 

individual who signed the deed granting the Blue Gum property to the Thompsons (item 

30). Many of these documents are filings in this case or were admitted as evidence below 

such that they already are part of the appellate record and judicial notice is not necessary. 

The remaining documents purportedly establish Briana’s chain of title to the Blue Gum 

property or demonstrate the invalidity of the 1998 foreclosure sale. As discussed below, 

the doctrine of issue preclusion bars the Ioanes from relitigating either of those issues, 

making those documents irrelevant (Jordache Enterprises, Inc. v. Brobeck, Phleger &

Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [declining to take judicial notice of materials 

not “necessary, helpful, or relevant”]). Therefore, the request for judicial notice is 

denied.

3

“In California, the financing or refinancing of real property generally is 

accomplished by the use of a deed of trust. [Citation.] Under a deed of trust, ‘the 

borrower, or “trustor,” conveys nominal title to property to an intermediary, the “trustee,” 

who holds that title as security for repayment of the loan to the lender, or “beneficiary.” ’ 

[Citation.]” (Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 994-995.)
3

The Ioanes contend that Alvarez had executed a second deed of trust, which was 

foreclosed before the first Deed of Trust. They trace their claim of title to that second 

deed of trust.

Michael filed for bankruptcy in the United States Bankruptcy Court for the 

Northern District of California on February 26, 1998 (case No. 98-51454-JRG-13). 

The Ioanes contend that the Blue Gum property was an asset of the bankruptcy estate. 

On July 15, 1998, the bankruptcy court found “that the case [had been] filed in bad faith” 

and ordered the automatic stay “terminated with respect to the interests of Bank United, 

it’s [sic] agents, successors and assigns,” in the Blue Gum property.4 The court further 

ordered “that Bank United may proceed to exercise its rights under its Note and Deed of

Trust, and to conduct and complete a non-judicial foreclosure sale of the Property in any 

manner permitted by law” and that “the relief granted in this order shall be effective in 

any other bankruptcy case . . . subsequently by this debtor filed with regard to the 

Property within one hundred eighty days from the date of entry of this order.” Also on 

July 15, 1998, the bankruptcy court dismissed the case with prejudice “because it was 

filed in bad faith and is an abuse of the bankruptcy process” and ordered that Michael 

was “barred for a period of 180 days from July 8, 1998, from being a debtor in any case

under this title pursuant to 11 U.S.C. §109(g),(1).”

4 Evidence establishing Bank United’s role and connection to the Deed of Trust 

has not been submitted in this matter. Thompson asserts that Bank United acted as “loan 

servicer and as agent on behalf of [First Trust National Association].” For that assertion, 

he relies on allegations in an unlawful detainer complaint involving the Blue Gum 

property and a statement in a court order dismissing a federal civil action brought by 

Michael and Shelly regarding the Blue Gum property. However, we cannot judicially 

notice the truth of those statements. (Lockley v. Law Office of Cantrell, Green, Pekich,

Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [“while courts are free to take judicial 

notice of the existence of each document in a court file, including the truth of results 

reached, they may not take judicial notice of the truth of hearsay statements in decisions 

and court files”].)
4

Despite that order, Michael filed another Chapter 13 bankruptcy case on July 24, 

1998. The Ioanes contend that the Blue Gum property was an asset of the bankruptcy 

estate.

On August 26, 1998, Lonestar executed a Trustee’s Deed Upon Sale granting title 

to the Blue Gum property to Norwest Mortgage, Inc., “the highest bidder” on the 

property at the August 19, 1998 public auction. That Trustee’s Deed Upon Sale 

erroneously identified Norwest Mortgage, Inc. as grantee. Accordingly, a corrective 

Trustee’s Deed Upon Sale was recorded in October 1998 correctly identifying the grantee 

as First Trust National Association, as trustee, Series # 1993-6, by Norwest Mortgage, 

Inc., attorney in fact.

Michael’s second bankruptcy case was dismissed on September 11, 1998.

On October 19, 1998, Bank United filed an unlawful detainer action against 

Michael in Santa Cruz County Superior Court case number MS981411. Bank United 

alleged that it was the servicing agent for the property owner, First Trust National 

Association, as trustee. It further alleged that “[t]he Property ha[d] been sold in 

accordance with Section 2924 of the California Civil Code under a power of sale

contained in a Deed of Trust” and that “Plaintiff’s said principal is the owner of the 

Property by virtue of that certain Trustee’s Deed Upon Sale which was issued thereto.

[First Trust National Association, as trustee]’s ownership of the Property became 

perfected by recordation of said Trustee’s Deed Upon Sale in the Official Records of the 

County of Santa Cruz, State of California.” Attached to and incorporated by reference 

into the unlawful detainer complaint was a Notice to Quit from First Trust National 

Association, as trustee, and Bank United, which was served on Michael and cited Code of 

Civil Procedure Section 1161a. In June 1999, the superior court entered judgment in 

favor of Bank United and against Michael.

Shelly filed for bankruptcy. She and Michael filed an adversary proceeding 

against Bank United and others in her bankruptcy case. In their first amended complaint, 
5

they alleged that they were the owners of the Blue Gum property and that the foreclosure 

sale proceeded in violation of a bankruptcy stay. They sought possession of the Blue 

Gum property, among other relief. On July 10, 2000, the bankruptcy court granted 

summary judgment in favor of Bank United on the causes of action asserted against it by 

the Ioanes in the adversary proceeding.

In 1999, Michael and Shelly filed a separate civil suit against Bank United and 

others in federal district court (case No. 99-21119 SW). They asserted numerous causes 

of action, including one for “a violation of 11 U.S.C. §[§] 362 and 1301 related to the 

automatic stay in bankruptcy proceedings.” The federal court dismissed the action with 

prejudice, “easily conclud[ing] that the present litigation is just one more in a string of 

frivolous lawsuits filed by the Plaintiffs . . . .” Among other things, the court concluded 

that, “[q]uite plainly, Plaintiffs’ claims under 11 U.S.C. §§ 362 and 1301 are frivolous 

and must be dismissed.”

On June 13, 2001, First Trust National Association, as trustee, Series # 1993-6, 

granted the Blue Gum property to James J. Thompson and Doris H. Thompson by grant 

deed.

The Ioanes filed a state court action against, among others, the Thompsons seeking 

to quiet title to the Blue Gum property (case No. CV138163). On July 24, 2002, the 

superior court granted a motion for judgment on the pleadings filed by the Thompsons. 

The court later entered judgment in favor of the Thompsons. This court affirmed that 

judgment on December 19, 2003. (Olson v. Murray (Dec. 19, 2003, No. H024770) 

[nonpub. opn.] (H024770).)

Doris and James Thompson passed away during the pendency of this litigation. 

The trial court substituted their son, Richard L. Thompson, as plaintiff.5

5 For simplicity and consistency, we refer to the plaintiff and respondent 

throughout the opinion as “Thompson.”
6

B. Procedural History6

Thompson filed a verified first amended complaint in 2014 against the Ioanes and 

others seeking a judgment quieting title in his favor, cancellation of various written 

instruments, and declaratory relief.

7

 Thompson later dismissed the cancellation of 

instruments cause of action.

Michael, Shelly, and Michael, Jr. answered the operative first amended complaint. 

In their answer, they admitted that “Briana Ioane claims not just an interest, but is the 

sole owner in fact of the Property” and denied “that Michael Ioane, Sr., Shelly Olson 

Ioane, Michael Ioane, Jr., or Ashley Marie Ioane claim an interest in the Subject 

Property.” Ashley and Briana separately answered the first amended complaint. They 

admitted that “Briana Ioane claims not just an interest, but is the sole owner in fact of the 

Property” and denied that “Ashley Ioane or Michael Ioane, Jr. claims an interest in the 

Subject Property.”

Briana filed a cross-complaint against Thompson, asserting various claims, 

including one for quiet title to the Blue Gum property. The trial court sustained 

Thompson’s demurrer to Briana’s cross-complaint without leave to amend. Briana 

appealed (case No. H042104).

Thompson moved for summary judgment in 2015 on grounds that claim and issue 

preclusion barred the Ioanes’ defenses. The trial court granted that motion and entered 

judgment in Thompson’s favor. Michael, Shelly, and Briana appealed (case 

No. H043112).

We resolved both appeals in a single decision issued on May 25, 2017 in

Thompson. We affirmed the order sustaining Thompson’s demurrer to Briana’s 

cross-complaint without leave to amend on two independent grounds. First, we 

6 Our recitation of the procedural history is based in part on our prior decision in 

this matter, (case Nos. H042104, H043112, and H043350).

7 All the defendants other than the Ioanes defaulted.
7

concluded that the doctrine of claim preclusion barred Briana’s cross-claim seeking to 

quiet title to the Blue Gum property because case No. CV138163 (the Ioanes’ earlier 

quiet title action) and Briana’s cross-complaint involved identical causes of action and 

the same parties and there was a final judgment on the merits in case No. CV138163. 

Second, we determined that judicially noticeable facts showed that Briana’s interest in 

the Blue Gum property depended on a void judgment, such that she could not state a 

claim for quiet title.

We reversed the judgment and directed the trial court on remand to vacate its order 

granting summary judgment in Thompson’s favor. We concluded that “Thompson’s own 

filings in this court and the court below reveal a triable issue of fact as to his chain of 

title. In the operative complaint, Thompson alleged that the basis of his title to the Blue 

Gum property is a grant deed from grantor First Trust National Association. His separate 

statement [of undisputed facts] asserted he purchased the property from Bank United. 

On appeal, Thompson claims he purchased the property from Bank United and ‘[a] deed 

conveying title . . . was delivered by First Trust National Association . . . .’ He also 

contends that First Trust National Association ‘merged or changed its name to Bank 

United,’ but he does not support that contention with citation to the record. Nor does he 

point us to any record evidence explaining the relationship between Bank United and 

First Trust National Association. Accordingly, there is a triable issue of fact as to 

whether Thompson purchased the Blue Gum property from Bank United or First Trust 

National Association. That fact is material to Thompson’s ability to properly trace his 

title.”

8

On remand, the Ioanes unsuccessfully moved for summary judgment. 

8 Contrary to the Ioanes’ contention in this appeal, we did not conclude that 

Thompson intentionally misled this court regarding the relationship between Bank United 

and First Trust National Association, let alone admonish him for dishonesty. We merely 

noted the absence of evidence supporting his assertion about that relationship.
8

Thompson then moved for summary judgment again. Instead of relying solely on 

the doctrines of claim and issue preclusion, as he had in his first summary judgment 

motion, he submitted judicially noticeable recorded documents to affirmatively trace his

title. The trial court granted that motion. The trial court denied motions by the Ioanes to 

amend their answers to the operative first amended complaint and to tax costs.

On July 10, 2018, the court entered judgment in favor of Thompson and against 

the Ioanes. The judgment enjoined the Ioanes “to make no further claim to said Blue 

Gum Property adverse to plaintiff, by legal action or otherwise, on the basis of any fact or 

facts that were proved, or which might have been proved, in the action.” The Ioanes 

timely appealed.

II. DISCUSSION

On appeal, the Ioanes challenge the grant of summary judgment to Thompson as 

well as the orders denying their motions for summary judgment, to amend their answers, 

and to tax costs. We address each order in turn.

A. The Trial Court Did Not Err by Granting Summary Judgment in Favor

of Thompson

1. Legal Principles and Standard of Review

A party is entitled to summary judgment only if there is no triable issue of material 

fact and the party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, 

subd. (c).)9 A plaintiff moving for summary judgment “bears the burden of persuasion 

that ‘each element of’ the ‘cause of action’ in question has been ‘proved,’ and hence that 

‘there is no defense’ thereto.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 

850.) “Once the plaintiff . . . has met that burden, the burden shifts to the defendant . . . 

to show that a triable issue of one or more material facts exists as to the cause of action or 

a defense thereto.” (§ 437c, subd. (p)(1).)

9 All further statutory references are to the Code of Civil Procedure unless 

otherwise indicated.
9

“On appeal from the granting of a motion for summary judgment, we examine the 

record de novo, liberally construing the evidence in support of the party opposing 

summary judgment and resolving doubts concerning the evidence in favor of that party.” 

(Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) “We consider ‘all of 

the evidence the parties offered in connection with the motion (except that which the 

court properly excluded) . . . .’ ” (Id. at p. 452, fn. 3.)

2. Thompson Met his Initial Burden to Prove Each Element of his

Causes of Action

Two causes of action remained when Thompson moved for summary judgment. 

The first is an action seeking to quiet title to the Blue Gum property. The second is an 

action for declaratory relief seeking a declaration that Thompson is the sole owner of the 

fee simple title to the Blue Gum property and that the Ioanes and other defendants have 

no adverse interest in the Blue Gum property.

In moving for summary judgment on those causes of action, Thompson bore the

burden to establish his title to the property and to refute the adverse claims he was 

seeking to extinguish. (Miller v. Boswell (1958) 162 Cal.App.2d 508, 511; Barisich v.

Lewis (1990) 226 Cal.App.3d 12, 19.) Thompson met his burden to establish title to the 

Blue Gum property by tracing, through judicially noticeable recorded documents, his title 

to Alvarez, to whom the Ioanes also trace their title. Thompson also carried his burden to 

refute the Ioanes’ adverse claims to the Blue Gum property. Specifically, he showed that 

Michael, Shelley, Ashley, and Michael, Jr. had disclaimed any interest in the property in 

their answers. And Thompson showed that this court had rejected Briana’s claim of

interest in the Blue Gum property in our prior opinion, holding that it depended on a void 

judgment.
10

3. The Ioanes Failed to Establish the Existence of a Triable Issue of

Material Fact

The burden shifted to the Ioanes to show the existence of a triable issue of material 

fact. They attempt to demonstrate that a triable issue of material fact exists as to the 

validity of the August 1998 foreclosure sale of the Blue Gum property to First Trust 

National Association, as trustee, Series # 1993-6. Specifically, they contend that the 

foreclosure sale was improperly conducted in violation of the automatic stay order in 

Michael’s second bankruptcy; that there were irregularities in various recorded 

documents; and that title did not pass to First Trust National Association, as trustee, 

Series # 1993-6 because First Trust National Association had previously changed its 

name to U.S. Bank Trust National Association. As discussed below, the validity of the 

foreclosure sale has been litigated numerous times over the past 22 years and the sale has 

been held to be valid. The doctrine of issue preclusion bars the Ioanes from attempting to 

resurrect that issue now. Accordingly, they failed to carry their burden to establish the 

existence of a triable issue of material fact.

“Issue preclusion prohibits the relitigation of issues argued and decided in a 

previous case, even if the second suit raises different causes of action. [Citation.] Under 

issue preclusion, the prior judgment conclusively resolves an issue actually litigated and 

determined in the first action. [Citation.]” (DKN Holdings LLC v. Faerber (2015) 61 

Cal.4th 813, 824.) The doctrine of issue preclusion “can be asserted only against a party 

to the first lawsuit, or one in privity with a party.” (Ibid.)

The validity of the foreclosure sale has previously been actually litigated and 

conclusively decided in lawsuits in which the Michael was a party. In 1998, an unlawful 

detainer action was brought pursuant to section 1161a against Michael. The complaint in 

that matter alleged that “[t]he Property ha[d] been sold in accordance with Section 2924 

of the California Civil Code under a power of sale contained in a Deed of Trust” and that 

First Trust National Association, as trustee, Series # 1993-6’s “ownership of the Property 
11

became perfected by recordation of said Trustee’s Deed Upon Sale in the Official 

Records of the County of Santa Cruz, State of California.” “The conduct of the sale and 

the validity of the resulting transfer of title to [First Trust National Association, as trustee, 

Series # 1993-6] were therefore directly in issue in the unlawful detainer case. Because 

the complaint was brought under section 1161a, it was proper for limited issues 

pertaining to the validity of title obtained by [First Trust National Association, as trustee, 

Series # 1993-6] in the sale to be raised and conclusively resolved. [Citations.]” 

(Malkoskie v. Option One Mortgage Corp. (2010) 188 Cal.App.4th 968, 974.) “Indeed, 

because the sole [asserted] basis” for First Trust National Association, as trustee, 

Series # 1993-6’s right to possession of the Blue Gum property “was its ‘duly perfected’

legal title obtained in the nonjudicial foreclosure sale, the validity of [First Trust National 

Association, as trustee, Series # 1993-6’s] title had to be resolved in the unlawful detainer 

action.” (Ibid.) The judgment in the unlawful detainer action has long been final.10

The validity of the foreclosure sale was again litigated in Michael and Shelly’s 

1999 federal civil suit (case No. 99-21119 SW). There, the federal district court 

dismissed their claim for “a violation of 11 U.S.C. §[§] 362 and 1301 related to the 

automatic stay in bankruptcy proceedings” as “frivolous.” Thus, the validity of the 

foreclosure sale—and specifically the claim that it was invalid because it violated the 

bankruptcy automatic stay—was litigated and decided against Michael and Shelly. 

That judgment too has long been final.

All of the Ioanes’ arguments are predicated on the alleged invalidity of the 

foreclosure sale. As noted, the Ioanes offer multiple reasons why the sale was unlawful, 

10 The Ioanes make much of the fact that the unlawful detainer action was brought 

by Bank United, whose precise connection to First Trust National Association has not 

been proven in this action. But, for purposes of issue preclusion, what matters is that the 

judgment in that action conclusively resolved the very same issue raised here—the 

validity of the foreclosure sale and of First Trust National Association, as trustee, 

Series # 1993-6’s resulting title—against Michael.
12

including the alleged invalidity of the Corrective Trustee’s Deed Upon Sale and a 

name-change issue. Regardless of whether those precise factual matters or legal theories 

were presented in the prior actions, the identical issue requirement is satisfied because 

“the factual predicate of the legal issue decided in the prior case[s] [(i.e., validity of the 

foreclosure sale)] was sufficient to frame the identical legal issue in the current

case . . . .” (Textron Inc. v. Travelers Casualty & Surety Co. (2020) 45 Cal.App.5th 733, 

747.)

The preclusive effect of the earlier judgments can be asserted, not only against

Michael and Shelly, but also against those in privity with them. “A privy is one who, 

after rendition of the judgment, has acquired an interest in the subject matter affected by 

the judgment through or under one of the parties, as by inheritance, succession, or 

purchase.” (Bernhard v. Bank of America Nat. Trust & Savings Assn. (1942) 19 Cal.2d 

807, 811.) Only Briana purports to have an existing ownership interest in the Blue Gum 

property, which she claims to have acquired from Michael after the rendition of the 

judgements discussed above. Therefore, she is in privity with Michael, such that issue 

preclusion can be asserted against her based on the unlawful detainer and federal civil 

suits to which Michael was a party.

In sum, all of the Ioanes’ arguments regarding the purported invalidity of the

foreclosure sale are precluded by the unlawful detainer judgment and the judgment in 

case No. 99-21119 SW. This is not the first time this court has reached that conclusion. 

In the Ioanes’ 2003 appeal from the entry of judgment against them in their action to 

quiet title to the Blue Gum property, this court concluded that the “outcome of the

unlawful detainer action[] was sufficient to bar further claims of irregularity in the

foreclosure sale[] . . . .” (case No. H024770.)
13

4. The Ioanes’ Other Arguments Challenging the Grant of Summary

Judgment to Thompson Fail

The Ioanes raise other arguments challenging the order granting summary 

judgment to Thompson. None requires reversal.

The Ioanes contend the trial court erroneously denied portions of their requests for 

judicial notice and excluded certain of their declarations and other filings. This claim of 

error fails for two reasons. First, the Ioanes do not direct us to where the rulings they are 

challenging can be found in the record. On appeal, “ ‘[a]ll intendments and presumptions 

are indulged to support [the judgment] on matters as to which the record is silent, and 

error must be affirmatively shown.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 

564.) To affirmatively show error, a party challenging a judgment or an appealable order 

has the burden of producing and citing to an adequate record. (Ballard v. Uribe (1986) 

41 Cal.3d 564, 574; Cal. Rules of Court, rule 8.204(a)(1)(C) [matters referenced from the 

record in appellate briefs must be supported “by a citation to the volume and page 

number of the record where the matter appears”].) Failure to include citations to the 

appellate record may result in forfeiture of a claim. (Dietz v. Meisenheimer & Herron

(2009) 177 Cal.App.4th 771, 800-801.) Here, the Ioanes forfeited the issue by failing 

to cite the record. Second, the Ioanes do not explain how the rulings prejudiced them. 

An “appellant cannot prevail without establishing that [he or] she was prejudiced by the 

alleged error.” (In re S.C. (2006) 138 Cal.App.4th 396, 407; Cal. Const., art. VI, § 13.)

The Ioanes also argue that the trial court erred by granting summary judgment to 

Thompson on his quiet title cause of action “based on res judicata from the sustained 

demurrer on Briana [Ioane]’s cross complaint.” That claim misconstrues the trial court’s 

ruling. But, regardless of its accuracy, it lacks merit. “ ‘[I]t is axiomatic that 

we review the trial court’s rulings and not its reasoning,’ ” such that we “may affirm a 

trial court’s decision granting summary judgment for an erroneous reason.” (Coral

Construction, Inc. v. City and County of San Francisco (2010) 50 Cal.4th 315, 336.) 
14

Accordingly, the validity of the trial court’s reasoning is of no concern to us and certainly 

does not compel reversal.

Finally, the Ioanes fault the trial court for permitting Thompson to file a second 

motion for summary judgment, arguing that multiple summary judgment motions are 

prohibited under section 437c, subdivision (f)(2) absent a showing of newly discovered 

facts. That provision states: “A party shall not move for summary judgment based on 

issues asserted in a prior motion for summary adjudication and denied by the court unless 

that party establishes, to the satisfaction of the court, newly discovered facts or 

circumstances or a change of law supporting the issues reasserted in the summary 

judgment motion.” (§ 437c, subd. (f)(2).) Thompson’s motion for summary judgment 

falls outside the scope of that provision because the prior motion was one for summary 

judgment, not summary adjudication. (Nieto v. Blue Shield of California Life & Health

Ins. Co. (2010) 181 Cal.App.4th 60, 71-72.) Moreover, the second motion was based in 

part on a different legal theory. Thompson’s first summary judgment motion was based 

exclusively on the doctrines of claim and issue preclusion. The second summary 

judgment motion relies on judicially noticeable recorded documents to establish

Thompson’s chain of title. Accordingly, “the trial court properly exercised its discretion 

in determining that [section 437c, subdivision (f)(2)] did not bar summary judgment 

because the operative motion addressed an issue not raised by the prior motion.” (Id. at 

p. 72.)

For all the foregoing reasons, the trial court did not err in granting summary

judgment in favor of Thompson.

B. Denial of the Ioanes’ Motion for Summary Judgment

The Ioanes filed an unsuccessful motion for summary judgment based on the 

theory that the foreclosure sale was invalid, having been conducted in violation of the 

automatic stay in Michael’s bankruptcy proceeding. As discussed above, the Ioanes are 
15

precluded from relitigating the validity of the foreclosure sale. Accordingly, the trial 

court did not err in denying their motion for summary judgment.

The Ioanes fault the trial court for issuing its order denying their summary 

judgment motion without giving them five days to approve the proposed order, a move 

they say violated California Rules of Court, rule 3.1312(a).

11

 That rule provides that,

unless the court orders otherwise, the prevailing party on any motion, within five days of

the ruling, must serve on the other parties a proposed order for approval as conforming to 

the court’s order. Here, the trial court issued a tentative ruling denying the Ioanes’

summary judgment motion in advance of the summary judgment hearing and adopted a

proposed order prepared by Thompson’s counsel on the day of that hearing. Thompson

does not address the Ioanes’ argument regarding rule 3.1312(a) on appeal. Below, he

asserted that his counsel “presented the Court with a form of proposed order that repeated 

verbatim the substantive portion of the tentative ruling.” The tentative ruling is not in the

record so we cannot confirm the accuracy of that assertion. Nor can we say whether the

trial court violated rule 3.1312(a). It is possible that, in its tentative ruling, the court

ordered the rule 3.1312(a) procedure not be followed; as noted, the rule applies only

“[u]nless . . . the court orders otherwise . . . .” Assuming rule 3.1312(a) was violated, the

Ioanes have not shown that they were prejudiced by that error. Therefore, reversal of the

order denying their motion for summary judgment is not warranted.

C. Denial of the Ioanes’ Motion for Leave to Amend Their Answers to the

Operative Complaint

The Ioanes moved to amend their answers to the operative complaint in 2015 to 

allow Briana to add allegations concerning her chain of title and to delete an admission 

that Michael “never held an interest” in the Blue Gum property. The trial court denied 

that motion on September 18, 2015, reasoning that “[t]he proposed amended answer

11 All further rule references are to the California Rules of Court.
16

presents the same claims previously decided in this matter by Judge Marigonda when he 

sustained a demurrer to the proposed Cross-Complaint of Briana Ioane without leave to 

amend. The moving party is simply trying to relitigate that issue previously decided by 

the Court.”

On February 6, 2018, the Ioanes filed a motion purporting to “reschedul[e]” the 

earlier motion, erroneously claiming it had been taken off calendar as moot. The trial 

court held a hearing on the motion for leave to amend and denied it. The Ioanes say that 

was error, but do not explain how they were prejudiced. It appears that Briana believes 

the amendments would bolster her claim to the Blue Gum property. But that issue has 

been decided and is not subject to relitigation. Accordingly, the trial court did not err 

and, even if it did, the Ioanes cannot establish prejudice.

D. Denial of the Ioanes’ Motion to Tax Costs

Thompson filed a Memorandum of Costs on July 30, 2018. The Ioanes moved to 

tax costs on grounds that the memorandum was untimely. The trial court denied that 

motion, reasoning that the memorandum was timely. We agree.

As the trial court explained, the California Rules of Court provide that “[a]

prevailing party who claims costs must serve and file a memorandum of costs within 

15 days after the date of service of the notice of entry of judgment or dismissal by the 

clerk under Code of Civil Procedure section 664.5 or the date of service of written notice 

of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever 

is first.” (Rule 3.1700(a)(1).) That time period is extended by five calendar days when

service is by mail. (§ 1013, subd. (a).) Here, notice of entry of judgment was served by 

mail on July 10, 2018. Therefore, Thompson was required to serve and file his 

memorandum of costs within 20 days of July 10, 2018. He did so, filing the 

Memorandum of Costs on July 30, 2018.

III. DISPOSITION

The judgment is affirmed. Thompson shall recover his costs on appeal.
_________________________________

ELIA, ACTING P.J.

WE CONCUR:

_______________________________

BAMATTRE-MANOUKIAN, J.

_______________________________

DANNER, J.

Thompson, as Successor in Interest, etc. v. Ioane et al.

H046111