Filed 10/12/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

HOMEWARD OPPORTUNITIES FUND 

I TRUST 2019-2,

Plaintiff and Respondent,

v.

ILIAS LOUIE TAPTELIS,

Defendant and Appellant.

 H049791

 (Santa Clara County

 Super. Ct. No. 21CV378676)

Upon purchasing property in a nonjudicial foreclosure sale under a borrower’s 

deed of trust, the new owner must perfect title under the sale before seeking to evict the 

trustor/borrower. (Code Civ. Proc., § 1161a, subd. (b)(3);1 Dr. Leevil, LLC v. Westlake 

Health Care Center (2018) 6 Cal.5th 474 (Dr. Leevil).) Although the recording of a 

trustee’s deed is typically sufficient to raise a conclusive presumption of title under the 

sale as to a bona fide purchaser for value without notice (Civ. Code, § 2924, subd. (c)), 

plaintiff Homeward Opportunities Fund I Trust 2019-2 (Homeward), the beneficiary 

under a deed of trust executed by defendant-borrower Ilias Louie Taptelis, purchased the 

trust property subject to Taptelis’s duly recorded lis pendens—notice of Taptelis’s

pending wrongful foreclosure action. Homeward thereafter served Taptelis with notice to 

quit the premises and obtained a judgment of unlawful detainer against him, without first 

expunging the lis pendens. Because the lis pendens clouded Homeward’s title under the 

1 Undesignated statutory references are to the Code of Civil Procedure.
2

sale, and Taptelis was denied the opportunity to assert it in the unlawful detainer trial as a 

defense to Homeward’s claim of title, we reverse the unlawful detainer judgment.

I. BACKGROUND

A. The Nonjudicial Foreclosure and the Wrongful Foreclosure Suit

Taptelis borrowed $1.24 million from Recovco Mortgage Management to 

purchase property located at Fennel Court. To secure the loan, he executed a Deed of 

Trust by which he conveyed the Fennel Court property to Stewart Title of California, 

Inc., as trustee with power of sale, to hold for the benefit of Recovco’s designee, 

Mortgage Electronic Registration Systems, Inc. (MERS). The deed of trust was recorded 

in June 2019. 

Taptelis defaulted on the loan later in 2019. After his default, the following 

documents concerning the Fennel Court property were recorded in Santa Clara County: 

(1) In April 2020, MERS executed an Assignment of Deed of Trust, through which it

purported to assign its beneficial interest under the Deed of Trust to Homeward;

2 (2) in 

May 2020, Specialized Loan Servicing LLC (SLS), acting as attorney-in-fact for 

Homeward, executed a Substitution of Trustee, through which Homeward purported to 

substitute Quality Loan Service Corporation (Quality) for Stewart Title as the trustee; and 

(3) in June 2020, Quality issued a Notice of Default and Election to Sell Under Deed of 

Trust. 

As stated in the Notice of Default, as of June 2020, Taptelis needed to pay 

$87,221.09 to cure the default. Quality appended a California Declaration of Compliance 

to the Notice of Default, representing that the mortgage servicer had exercised due 

diligence to contact Taptelis to assess his financial situation and explore options to avoid 

foreclosure 30 days or more before the date of the declaration. 

2 On appeal, Taptelis disputes whether several of the recorded documents had their 

intended effect. 
3

Quality’s Notice of Trustee’s Sale, scheduled for December 4, 2020, was recorded 

in October 2020. 

Two weeks later, Taptelis filed a civil action challenging the foreclosure and 

naming various involved entities as defendants, including Homeward. In the complaint, 

Taptelis described the documents that had been recorded to date. 

Taptelis alleged nine causes of action: (1) Violation of the Homeowner Bill of 

Rights by filing the Notice of Default while Taptelis had a loan modification application 

pending, that is, “dual-tracking”; (2) Violation of Civil Code section 2923.5, subdivision 

(b), by SLS and Quality for failing to provide certain information prior to filing the 

Notice of Default; (3) Violation of Civil Code section 2924.17 by SLS and Quality by 

submitting a declaration in support of the Notice of Default that was not based on reliable 

and competent evidence; (4) Violation of the implied covenant of good faith and fair 

dealing by dual-tracking; (5) Negligence in servicing the loan in connection with the 

alleged dual-tracking; (6) Wrongful foreclosure flowing from the foregoing violations of 

the HBOR and Civil Code; (7) Cancelation of the Assignment, Substitution, Notice of 

Default, and Notice of Trustee’s Sale on the ground that they were not based on reliable 

and competent evidence and that SLS and Quality improperly filed the Notice of Default; 

(8) Violation of the Unfair Competition Law arising out of the foregoing causes of action; 

and (9) Quiet Title. 

Two days prior to the foreclosure sale, Taptelis had a lis pendens recorded in 

connection with the wrongful foreclosure action.

3

3 Although the trial court prevented Taptelis from introducing evidence at trial 

concerning the lis pendens, the parties agree that a lis pendens was in effect throughout 

the trial court proceedings in this action, from before the foreclosure sale until after the 

unlawful judgment detainer was entered. 
4

On December 11, 2020, Santa Clara County recorded Quality’s Trustee’s Deed 

Upon Sale. As set forth therein, Quality sold the Fennel Court property to Homeward

pursuant to the Deed of Trust through a public auction held on December 4, 2020. 

B. The Notice to Quit and this Action

On March 16, 2021, Homeward served notice to quit on Taptelis and all unknown 

occupants, tenants, and subtenants at the Fennel Court property. Taptelis did not vacate 

the property, so Homeward initiated the present unlawful detainer suit. 

On March 24, 2021, Homeward filed its verified unlimited civil unlawful detainer 

complaint. Homeward alleged that it had obtained ownership of the property pursuant to 

a nonjudicial foreclosure on December 4, 2020. Homeward sought to wrest possession of 

the property from Taptelis and any other unnamed occupants, tenants, and subtenants. 

The following month, in the wrongful foreclosure case, Taptelis filed an ex parte 

application shortening time for a hearing on a motion to consolidate that wrongful 

foreclosure action with this unlawful detainer action or, in the alternative, a motion to 

stay this action. Taptelis had not yet filed a motion to consolidate, and the trial court 

summarily denied the ex parte. 

Taptelis answered the unlawful detainer complaint in June 2021. In September

2021, Taptelis submitted for filing in the wrongful foreclosure case a motion to 

consolidate the two cases or alternatively stay this unlawful detainer case. Later in 

September, Taptelis filed an ex parte application in this case requesting it be stayed. In 

the application, Taptelis noted that his duly noticed motion in the wrongful foreclosure 

case would not be heard until after the unlawful detainer trial date. The trial court denied 

the ex parte application without prejudice, with instructions to file “[t]he request by 

noticed motion in the appropriate civil action.” The trial court subsequently continued 

the trial in this action for two weeks, to October 27, 2021. 

On October 18, 2021, Taptelis filed an ex parte application in the wrongful 

foreclosure case seeking a stay—pending resolution of his motion to consolidate—of the 
5

trial in this unlawful detainer case. The trial court summarily denied the ex parte

application. 

The day of the unlawful detainer trial, asked for his time estimate, Taptelis orally 

advised the court that he “would be looking to request a stay.” Taptelis stated that his 

motion to consolidate had not been calendared in the wrongful foreclosure case.

4

 The 

trial court acknowledged that the “motion to stay proceedings . . . would be within [its] 

jurisdiction” and understood Taptelis’s request as “a motion to continue, so that the other 

court can rule on the motion to consolidate[.]” Reasoning that an unlawful detainer is “a 

summary proceeding” that “can’t keep getting continued and wait for the other case,” the 

trial court denied the request because “[t]his case has to go forward.” 

At the bench trial, over Taptelis’s objections, Homeward relied on judicial notice 

of recorded documents—the Deed of Trust, Assignment, Substitution, Notice of Default, 

Notice of Trustee’s Sale, and Trustee’s Deed—to establish that it had perfected title to 

the property by way of a nonjudicial foreclosure sale conducted in compliance with 

section 2924 of the Civil Code. Homeward called one witness, a process server, to 

establish that it had served a notice to quit. 

In his defense, Taptelis confirmed he secured his loan from Recovco with a Deed 

of Trust but testified that he never received notice that he had any new creditor and that 

he had submitted a loan modification application to his loan servicer. The trial court then 

sustained Homeward’s objection that issues concerning Taptelis’s loan modification 

application were beyond the scope of the unlawful detainer. The trial court then sustained 

relevance objections to testimony from Taptelis regarding his pending wrongful 

foreclosure case and recorded lis pendens. Taptelis did not offer other evidence.

On December 29, 2021, the trial court issued a written ruling. The trial court 

“took judicial notice of the recorded documents, their legally operative language, the 

4 Apparently due to issues stemming from the pandemic, Taptelis was not issued a 

hearing date in the wrongful foreclosure action until after the unlawful detainer trial. 
6 

names of the parties, the identification of the document, the recordation date and the court 

[then] deduce[d] the legal effect of those recorded instruments. The court . . . thus 

conclude[d] the following: [Homeward] acquired the subject property through 

foreclosure proceedings, which were (by benefit of a rebuttable presumption) in 

accordance with applicable law, namely Civil Code § 2924.” Moreover, the trial court 

found that “a three[-]day notice to quit was properly served” based on the testimony and 

documents introduced through the process server. 

 In January 2022, Taptelis filed both a limited civil notice of appeal and an ex parte 

application for stay of judgment or writ of possession pending the appeal. The trial court 

entered judgment on January 31, 2022, and the writ of possession issued on 

February 1, 2022. 

 Taptelis unsuccessfully petitioned this court for a peremptory writ staying the 

judgment and the writ of possession. 

 Taptelis timely filed an amended unlimited civil notice of appeal challenging the 

judgment. 

II. DISCUSSION 

 Taptelis makes a series of contentions ranging from threshold challenges to 

Homeward’s unlawful detainer action to fallback challenges to the evidence on which the 

trial court relied. Below, we reject Homeward’s contention that Taptelis’s appeal is moot 

and conclude that, under Dr. Leevil, the title under the trustee’s sale had not been duly 

perfected because Homeward had resolved neither the lis pendens nor the underlying 

litigation. 

A. Homeward’s Claim of Mootness

 As a threshold matter, we reject Homeward’s contention that its sale of the 

property to a third party moots Taptelis’s appeal.5

 

5

 We grant Homeward’s request for judicial notice of (1) the grant deed recorded 

on November 8, 2022; (2) the Withdrawal of December 2, 2020 Notice of Pendency of 
7

“ ‘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.)

As Taptelis notes, even if he can no longer regain possession of the property, his 

appeal is not moot because a reversal would potentially entitle him to restitution. “When 

[a] judgment or order is reversed or modified, the reviewing court may direct that the 

parties be returned so far as possible to the positions they occupied before the 

enforcement of or execution on the judgment or order. In doing so, the reviewing court 

may order restitution on reasonable terms and conditions of all property and rights lost by 

the erroneous judgment or order, so far as such restitution is consistent with rights of 

third parties and may direct the entry of money judgment sufficient to compensate for 

property or rights not restored. The reviewing court may take evidence and make 

findings concerning such matters or may, by order, refer such matters to the trial court for 

determination.” (§ 908; see also Shapell Socal Rental Props., LLC v. Chico’s FAS, Inc.

(2022) 85 Cal.App.5th 198, 209-210 (Shapell).)

In Shapell, for example, the prevailing landlord in a commercial unlawful detainer 

action argued that the tenant’s appeal was moot because the tenant could not regain

possession of the leased premises. (Shapell, supra, 85 Cal.App.5th at p. 209.) The court 

Action recorded on May 31, 2022; and (3) the order expunging a lis pendens recorded on 

November 15, 2022. We also note that the parties agree that Homeward has at least 

purported to transfer the property to a third party—we assume for mootness purposes that 

the transfer is effective. We deny Taptelis’s request for judicial notice of an excerpt of an 

appellate brief submitted to this Court in a separate writ proceeding between the parties 

because the excerpt is irrelevant to the issues reached herein. 
8 

explained that although restitution “may include restoring an evicted tenant to possession 

of the leased premises,” “ ‘ “appellate courts are not apt to invoke [the statute] to reinstate 

a tenant’s right to possession after years have gone by” ’ ” such that “ ‘ “for all practical 

purposes, the only appropriate remedy for vacating tenants who prevail on appeal, but 

who failed to obtain a stay, may be a monetary award ‘sufficient to compensate [the 

tenant] for the property rights not restored.’ ” ’ ” (Id. at pp. 210-211, italics removed.) 

 Although Shapell concerned a landlord-tenant unlawful detainer action rather than 

a post-foreclosure wrongful foreclosure action, this is a distinction without a difference as 

to mootness. Irrespective of the basis for the unlawful detainer action, the point remains 

that a monetary award of restitution may be available to a prevailing defendant on appeal 

as an alternative to the restoration of possessory rights. 

 In its reply in support of its motion to dismiss, Homeward implicitly concedes that 

section 908 creates a right to monetary restitution but argues that restitution would be 

unwarranted here. Homeward argues both that Taptelis should litigate any claim for 

restitution it may have in the wrongful foreclosure case and that Taptelis cannot obtain 

restitution even if his appeal is successful because he lived “ ‘rent-free’ ” on the property 

from December 2020 to February 2022. But Homeward fails to articulate any theory by 

which Taptelis could abandon his appeal from the unlawful detainer judgment and yet 

seek restitution—the purpose of which would be to return him “so far as possible to the 

position[] [he] occupied before the enforcement of or execution on [that] judgment.” 

(§ 908.) The relief, if any, available in equity may turn on the nature of any error the trial 

court made in adjudicating the parties’ respective rights to possession and the relevance 

of Taptelis’s wrongful foreclosure claims to that adjudication. Thus, Homeward’s reply 

raises only downstream equitable issues to be addressed, if at all, on remand; these do not 

establish an inability to afford Taptelis relief if his appeal proves meritorious.
9 

B. General Principles

1. The Nonjudicial Foreclosure Process

“ ‘Upon default by the trustor, the beneficiary may declare a default and proceed 

with a nonjudicial foreclosure sale. (Civ. Code, § 2924 . . . .) The foreclosure process is 

commenced by the recording of a notice of default and election to sell by the trustee. 

(Civ. Code, § 2924 . . . .) After the notice of default is recorded, the trustee must wait 

[approximately] three calendar months before proceeding with the sale. (Civ. Code, 

§ 2924, subd. [(a)(2)-(4)] . . . .) After the [specified time] period has elapsed, a notice of 

sale must be published, posted and mailed [at least] 20 days before the sale and recorded 

[at least 20] days before the sale. (Civ. Code, § 2924f . . . .) . . . The property must be 

sold at public auction to the highest bidder. (Civ. Code, § 2924g, subd. (a) . . . .)’ ” 

(Royal Thrift & Loan Co. v. County Escrow, Inc. (2004) 123 Cal.App.4th 24, 32 (Royal 

Thrift).) Pursuant to Civil Code section 2924h, subd. (c), the trustee’s sale is “ ‘deemed 

final upon the acceptance of the last and highest bid, and shall be deemed perfected as of 

8 a.m. on the actual date of sale if the trustee’s deed is recorded within [21] calendar days 

after the sale . . . .’ ” (Dr. Leevil, supra, 6 Cal.5th 474, 481, italics omitted.)6

 A recital in the trustee’s deed “of compliance with all requirements” regarding 

service of the notice of default “shall constitute prima facie evidence of compliance . . . 

and conclusive evidence thereof in favor of bona fide purchasers . . . for value and 

without notice.” (Civ. Code, § 2924, subd. (c), italics added.) “ ‘Thus, once a deed 

reciting that all legal requirements have been satisfied has been transferred to a buyer at a 

foreclosure sale, the sale can be successfully attacked on the grounds of procedural 

irregularity only if the buyer is not a bona fide purchaser.’ ” (Royal Thrift, supra, 123 

Cal.App.4th at p. 32, italics omitted; Pacific States Savings & Loan Co. v. O’Neill (1936) 

6

 Perfection of the trustee’s sale is distinct from perfection of title. (U.S. 

Financial, L.P. v. McLitus (2016) 6 Cal.App.5th Supp. 1, 3-4.) 
10 

7 Cal.2d 596, 599; Sorensen v. Hall (1934) 219 Cal. 680, 682-683.) “A bona fide 

purchaser is one who has purchased property for value without notice of any defects in 

the title of the seller.” (Walters v. Calderon (1972) 25 Cal.App.3d 863, 876, italics 

added.) 

2. Lis Pendens and Expungement

Notice of a pending action, or a lis pendens, “may be recorded in an action . . . 

‘which would, if meritorious, affect . . . title to, or the right to possession of, specific real 

property.’ ” (BGJ Assocs., LLC v. Superior Court (1999) 75 Cal.App.4th 952, 967; see 

also §§ 405.4, 405.20.) Although the pendency of the action does nothing to confer “any 

rights in the property in and of itself,” the recording of the lis pendens “ ‘provides 

constructive notice of the litigation, such that any judgment later obtained in the action 

relates back to the filing of the lis pendens. [Citation.] A lis pendens clouds title until the 

litigation is resolved or the lis pendens is expunged, and any party acquiring an interest in 

the property after the action is filed will be bound by the judgment. [Citation.]’ 

[Citation.] In other words, a party obtaining an interest in the property subsequent to the 

lis pendens takes with constructive notice of the pending action and will be bound by the 

judgment in that action.” (Integrated Lender Servs., Inc. v. County of Los Angeles (2018) 

22 Cal.App.5th 867, 877 (Integrated Lender); see also Nunn v. JPMorgan Chase Bank, 

N.A. (2021) 64 Cal.App.5th 346, 363; Malcolm v. Superior Court (1981) 29 Cal.3d 518, 

523, fn. 2.) 

 The Legislature has enacted a statutory scheme intended to discourage abuse and 

to make it easier to remove recorded lis pendens before trial. (See Shoker v. Superior 

Court (2022) 81 Cal.App.5th 271, 280-281 (Shoker).) Procedures for expunging 

improper lis pendens are designated by statute. “ ‘If the pleading filed by the claimant 

does not properly plead a real property claim, the lis pendens must be expunged upon 

motion under [section] 405.31.’ ” (Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 

647.) Upon motion under section 405.32, “the court shall order that the notice be 
11 

expunged if the court finds that the claimant has not established by a preponderance of 

the evidence the probable validity of the real property claim.” (See also § 405.30.) On 

such motions, the “court shall direct that the [prevailing] party . . . be awarded the 

reasonable attorney’s fees and costs of making or opposing the motion unless the court 

finds that the other party acted with substantial justification or that other circumstances 

make the imposition of attorney’s fees and costs unjust.” (§ 405.38.) 

 “Any party aggrieved by an order made on a motion” to expunge a lis pendens 

may petition for review by writ of mandate, which must be filed and served no more than 

30 days after service of the order on the expungement motion. (§ 405.39) The order 

expunging the lis pendens does not become effective, and may not be recorded, until the 

time for filing the petition for writ of mandate has passed or, if such a petition is timely 

filed, until the petition is finally adjudicated. (§ 405.35.) Once a lis pendens “has been 

expunged, the claimant may not record another notice of pending action as to the affected 

property without leave of the court in which the action is pending.” (§ 405.36.)

3. Scope of Section 1161a, subd. (b)(3) Proceedings

 “Unlawful detainer actions are authorized and governed by Code of Civil 

Procedure section 1161 et seq. ‘The statutory scheme is intended and designed to 

provide an expeditious remedy for the recovery of possession of real property.’ ” (Coyne 

v. De Leo (2018) 26 Cal.App.5th 801, 805 (Coyne).) “ ‘It has long been recognized that 

the unlawful detainer statutes are to be strictly construed and that relief not statutorily 

authorized may not be given due to the summary nature of the proceedings. [Citation.] 

The statutory requirements in such proceedings “ ‘must be followed strictly.’ ” ’ ” 

(Dr. Leevil, supra, 6 Cal.5th at p. 480.) Because the remedy of unlawful detainer is 

“ ‘purely statutory in nature, it is essential that a party seeking the remedy bring [it]self 

clearly within the statute.’ ” (Ibid.) 

“ ‘Unlawful detainer actions are . . . of limited scope, generally dealing only with 

the issue of right to possession and not other claims between the parties, even if related to 
12

the property.’ ” (Coyne, supra, 26 Cal.App.5th at p. 805; see also Vella v. Hudgins

(1977) 20 Cal.3d 251, 255 (Vella); Malkoskie v. Option One Mortgage Corp. (2010) 188 

Cal.App.4th 968, 973 (Malkoskie).) As a result, an unlawful detainer judgment usually 

has limited res judicata effect and will not prevent one who is dispossessed from bringing 

a subsequent action to resolve questions of title. (Vella, supra, 20 Cal.3d at p. 255.)

Section 1161a is a “qualified exception” to the general rule against resolution of 

claims other than possession, in that it “provides for a narrow and sharply focused 

examination of title.” (Vella, supra, 20 Cal.3d at p. 255.) Section 1161a, subd. (b) 

“enumerate[s] five ‘cases’ in which its substantive provision applies.” (Dr. Leevil, supra, 

6 Cal.5th at p. 478.) “Section 1161a[, subd.] (b)(3) is one of those ‘cases[.] . . . ’ ” (Id. at 

p. 479, italics removed.) “Where the property has been sold in accordance with 

Section 2924 of the Civil Code, under a power of sale contained in a deed of trust 

executed by [the holdover possessor], or a person under whom such person claims,” a 

plaintiff seeking a judgment of unlawful detainer must establish that “the title under the 

sale has been duly perfected.” (§ 1161a, subd. (b)(3); Dr. Leevil, supra, 6 Cal.5th at 

pp. 379, 381; see also Vella, supra, 20 Cal.3d at p. 255; see also Malkoskie, supra, 188 

Cal.App.4th at p. 974-976.)

“ ‘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 [citation], but is not 

limited to good record title, as between the parties to the transaction. . . . The court in an 

unlawful detainer [action] . . . has jurisdiction to determine the validity of such 

defenses.’ ” (Dr. Leevil, supra, 6 Cal.5th at p. 479.) However, an unlawful detainer 

action does not permit the defendant “to litigate every possible issue related to [the 

plaintiff’s] claim of ownership. ‘Matters affecting the validity of the trust deed or 

primary obligation itself, or other basic defects in the plaintiff’s title, are neither properly 
13 

raised in this summary proceeding for possession, nor are they concluded by the 

judgment.’ ” (Id. at p. 483.) 

 Because they involve an examination of title, section 1161a title determinations 

may bar “subsequent fraud or quiet title suits founded upon allegations of irregularity in a 

trustee’s sale.” (Vella, supra, 20 Cal.3d at p. 256.) But they may not bar other suits 

challenging activities not directly connected with the conduct of the sale. (See Gonzalez 

v. Gem Props., Inc. (1974) 37 Cal.App.3d 1029, 1035-1037.) 

C. Compulsory Cross-Claim

 For the first time on appeal, Taptelis contends that Homeward was required to 

pursue its unlawful detainer claim as a cross-claim in the wrongful foreclosure action and 

that, by failing to do so, Homeward lost standing to pursue the claim and the trial court 

lost jurisdiction to adjudicate it. Exercising our discretion to address a question of law on 

undisputed facts (see People v. Runyan (2012) 54 Cal.4th 849, 859, fn. 3), we reject 

Taptelis’s argument on the merits. 

 “Except as otherwise provided by statute, if a party against whom a complaint has 

been filed and served fails to allege in a cross-complaint any related cause of action 

which (at the time of serving his answer to the complaint) he has against the plaintiff, 

such party may not thereafter in any other action assert against the plaintiff the related 

cause of action not pleaded.” (§ 426.30, subd. (a).) But “[t]his article applies only to 

civil actions and does not apply to special proceedings.” (§ 426.60, subd. (a).)7 

Unlawful detainer proceedings are special proceedings. (See Tide Water Assoc. Oil Co. 

v. Superior Court (1955) 43 Cal.2d 815, 824 (Tide Water); § 1161a [found in part 3 of the 

code, which addresses “special proceedings” of a civil nature]; Shapell, supra, 85 

Cal.App.5th at p. 215.) 

7

 “Article 2. Compulsory Cross-Complaints” comprises sections 426.10 through 

426.80. 
14 

 Acknowledging that he has been unable to identify any case in which a party 

contended that an unlawful detainer claim must be brought as a compulsory cross-claim 

in a related wrongful foreclosure action, Taptelis asserts that the statutory exception 

inures only to the benefit of an unlawful detainer defendant, and only to the detriment of 

a plaintiff seeking possession: in his reading, an unlawful detainer defendant need not, 

and cannot, file cross-claims in an unlawful detainer action but a potential unlawful 

detainer plaintiff must file its unlawful detainer claim as a cross-claim in a related 

wrongful foreclosure action. This argument does not comport with the plain language of 

the statute. We note as well that requiring prospective unlawful detainer plaintiffs to 

bring their claims as compulsory cross-claims in civil actions would frustrate the clear 

legislative purpose of a summary proceeding to obtain possession. (See Tide Water, 

supra, 43 Cal.2d at pp. 824.) 

 Even if section 426.30 could apply to require an unlawful detainer claim to be 

brought as a cross-claim, by its terms it applies only to claims against the plaintiff that 

have accrued by the time the defendant serves its answer. Homeward answered the 

wrongful foreclosure complaint on December 15, 2020.8 Homeward served the notice to 

quit later, in March 2021. Homeward had no statutory right to file an unlawful detainer 

claim against Taptelis, if at all, until he “h[eld] over and continue[d] . . . possession of” 

the property “after a three-day notice to quit the property ha[d] been served upon” him. 

(§ 1161a, subd. (b); see also Dr. Leevil, supra, 6 Cal.5th at p. 482 [notice to quit, as first 

step in the removal process, was premature and void where it was served before the 

trustee’s deed was recorded to perfect title].) Under Taptelis’s construction of the statute, 

Homeward would have lost its right to pursue a separate unlawful detainer special 

proceeding by operation of section 426.30 by not serving its notice to quit at least three 

8

 We grant Taptelis’s unopposed request for judicial notice of the date on which 

Homeward filed its answer in the wrongful foreclosure case. (See Evid. Code, § 452, 

subds. (d), (h).) 
15 

days before its deadline to answer Taptelis’s wrongful foreclosure case. Even where it 

applies, section 426.30 does not require a party to file a claim prematurely. 

D. “Duly Perfected” Title

The parties dispute whether anything beyond recordation of the trustee’s deed was 

necessary for Homeward to “duly perfect[]” title under the sale (§ 1161a, subd. (b)(3)), 

clearing the way for the service of the notice to quit. In Taptelis’s view, Homeward 

needed to at least expunge each lis pendens he had noticed (or else resolve the wrongful 

foreclosure litigation altogether) to duly perfect title. The trial court effectively rejected 

this view,9

 precluding Taptelis from introducing evidence of the lis pendens or the 

pending wrongful foreclosure litigation. 

 The admission or exclusion of evidence on relevance grounds is typically subject 

to the trial court’s broad discretion. (See People v. Waidla (2000) 22 Cal.4th 690, 717-

718 [abuse of discretion standard applies where admissibility turns on the relevance of 

the evidence in question]; People v. Navarro (2021) 12 Cal.5th 285, 327.) But “[a]n 

order that implicitly or explicitly rests on an erroneous reading of the law necessarily is 

an abuse of discretion.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.) 

Addressing the legal conclusion underpinning the trial court’s evidentiary ruling, we hold 

that the trial court abused its discretion by excluding evidence of the lis pendens, in that it 

was both relevant and sufficient to defeat Homeward’s unlawful detainer claim. 

Homeward needed to either expunge the lis pendens or resolve the underlying wrongful 

9 Although the trial court initially appeared to grant Homeward’s motion in limine 

to exclude only evidence of the violations of Homeowner’s Bill of Rights alleged in the 

wrongful foreclosure action, the court during trial sustained Homeward’s objection to 

evidence of the wrongful foreclosure complaint and lis pendens themselves, based on the 

in limine ruling. We understand the trial court’s omission from its written decision of 

Taptelis’s argument that Homeward had not “duly perfected” title as an implicit 

conclusion that recordation of the Trustee’s Deed duly perfected Homeward’s title. 
16

foreclosure suit to perfect title. Because it did neither, its notice to quit was premature 

and void.

Under Dr. Leevil, “the new owner must perfect title before serving the three-day 

written notice to quit.” (Dr. Leevil, supra, 6 Cal.5th at p. 477; see also id. at pp. 479-480, 

482-484.) A notice to quit served before the condition is satisfied is “premature and 

void.” (Id. at p. 482.) 

To duly perfect title under a foreclosure sale, the prospective unlawful detainer 

plaintiff must take all steps to make the title perfect, “i.e., to convey to the purchaser that 

which he has purchased, valid and good beyond all reasonable doubt.” (Dr. Leevil, 

supra, 6 Cal.5th at p. 479.) The Supreme Court contemplated that its ruling “requiring a 

new owner to perfect title before serving its three-day notice would avoid the imposition 

of possibly unnecessary relocation expenses on the possessor of the property” because it 

would require the resolution of a “cloud on the new owner’s title concern[ing] an issue 

that cannot be litigated in an unlawful detainer action” before the three-day notice can be 

served. (Id. at p. 484.)10 In so doing, Dr. Leevil treated a cloud on title that cannot be 

litigated in an unlawful detainer action as an impediment to the perfection of title, one 

that must be cleared before the purchaser may serve a notice to quit and commence an

unlawful detainer proceeding. (See also Hocking v. Title Ins. & Trust Co. (1951) 37 

Cal.2d 644, 649 [discussing “perfect title”].) It was immaterial that Dr. Leevil had 

indisputably perfected its title through recordation before filing the unlawful detainer 

proceeding; Dr. Leevil’s failure to do so before serving the notice to quit was fatal to its 

unlawful detainer proceeding. (Dr. Leevil, supra, 6 Cal.5th at pp. 479-481.) 

10 It is implicitly necessary to Dr. Leevil’s rationale that the cloud on title relate to 

the unlawful detainer defendant’s right to possess the property. Here, there is no dispute 

that Taptelis’s lis pendens related to a lawsuit by which Taptelis sought to retain both title 

and the right to possess the property.
17 

 As Homeward has acknowledged, Taptelis’s lis pendens clouded title. (See 

Integrated Lender, supra, 22 Cal.App.5th at p. 877.) Because the lis pendens was 

recorded prior to the foreclosure sale (a sale in fact conducted for Homeward’s benefit), 

Homeward was on notice of that cloud on title before it nominally purchased the property 

from Quality, the trustee Homeward had selected. 

We apply the reasoning of Dr. Leevil as follows. Taptelis’s lis pendens clouded 

title. Insofar as the propriety of Taptelis’s lis pendens could not be litigated in the 

unlawful detainer action itself,11 Homeward was required to, at its option, either expunge 

the lis pendens or resolve the wrongful foreclosure litigation before it could serve the 

notice to quit necessary to initiate an unlawful detainer action. (See Integrated Lender, 

supra, 22 Cal.App.5th at p. 877 [lis pendens clouds title until expungement of the notice 

or resolution of the underlying litigation].) It is undisputed that Homeward did not 

resolve Taptelis’s lis pendens through either avenue at any time prior to entry of 

judgment in this unlawful detainer action. Accordingly, in contravention of Dr. Leevil, 

Homeward prosecuted and prevailed on its unlawful detainer action while Taptelis’s lis 

pendens continued to cloud Homeward’s title. 

 We acknowledge two practical differences between this case and Dr. Leevil. First, 

Homeward’s omission here is not of a routine step to be undertaken in every nonjudicial 

foreclosure, but one necessitated by Taptelis’s filing of a preemptive wrongful 

foreclosure complaint and recordation of a lis pendens. Second, expungement of a lis 

pendens is more onerous than recording a trustee’s deed, the step that was missing in 

Dr. Leevil. (See §§ 405.30-405.32, 405.35.) 

11 To the extent Dr. Leevil may suggest a distinction between title concerns that 

can be litigated in an unlawful detainer action and title concerns that cannot, there was no 

dispute in this case that Taptelis’s wrongful foreclosure case turned on substantive issues 

that were beyond the scope of an unlawful detainer proceeding. (See Dr. Leevil, supra, 6 

Cal.5th at p. 484.) 
18

But we must apply the statute before us, as our Supreme Court has now interpreted 

it. The plain terms of section 1161a, subdivision (b)(3) require the new owner to perfect 

title before serving the notice to quit. (Dr. Leevil, supra, 6 Cal.5th at pp. 477, 479-480, 

482-484.) Without enumerating every step necessary to perfect title, Dr. Leevil explained 

that title is duly perfected when all steps have been taken to make it perfect—“ ‘to 

convey to the purchaser that which he has purchased, valid and good beyond all 

reasonable doubt . . . .’ ” (Id. at p. 479, quoting Kessler v. Bridge (1958) 161 Cal.App.2d 

Supp. 837, 841, citing Hocking, supra, 37 Cal.2d at p. 649.) Dr. Leevil further explained 

that the unlawful detainer statutes—due to the summary nature of the proceedings—must 

be strictly construed: “ ‘[I]t is essential that a party seeking the remedy bring [it]self 

clearly within the statute.’ ” (Id. at p. 480.) Moreover, in addressing the practical 

implications of its holding, the Dr. Leevil court acknowledged that a “cloud” on title is an 

imperfection in title. (Id. at p. 484.) It follows from the dictates of Dr. Leevil that the 

failure to expunge the lis pendens, which Homeward agrees clouded title, before serving 

the notice to quit constituted a failure to perfect title under section 1161a, subdivision

(b)(3).

We acknowledge as well the potential for abusive recordation of lis pendens—that 

is, the filing of preemptive challenges to nonjudicial foreclosures followed by the 

recordation of lis pendens as a means to delay an inevitable, and lawful, post-foreclosure 

eviction. (See, generally, Kan v. Guild Mortgage Co. (2014) 230 Cal.App.4th 736, 741-

744 [holding that certain quiet title theories constituted improper preemptive challenge to 

nonjudicial foreclosure]; Perez v. Mortgage Electronic Registration Systems, Inc. (9th 

Cir. 2020) 959 F.3d 334, 338-340 [discussing California law regarding preemptive 

challenges to nonjudicial foreclosures]; but see Morris v. JPMorgan Chase Bank, N.A.

(2022) 78 Cal.App.5th 279, 295 [some violations of the HBOR give rise to claim for 

preforeclosure injunctive relief].) But the Legislature has put in place guardrails to deter 

potential abuse. (See generally Shoker, supra, 81 Cal.App.5th at pp. 280-282 [noting 
19 

1992 amendments to § 405 et seq.].) The statutory scheme puts the recording party to the 

burden of substantiating the probable validity of the real property claim, rather than 

burdening the party moving for expungement. (§§ 405.30-405.32, 405.35.) Independent 

of a motion to expunge, the court may require a claimant who has recorded a lis pendens 

to furnish an undertaking to a person claiming an interest in the property. (§ 405.34.) 

And the grant or denial of an expungement order is subject to expedited writ review. 

(§ 405.39.) The statute provides for prevailing party fees on a motion to expunge, absent 

“substantial justification or . . . other circumstances mak[ing] the imposition of attorney’s 

fees and costs unjust.” (§ 405.38.) While the prospect of a fee recovery may seem dim 

as against a party already facing a foreclosure, the prospect of fee liability may 

nonetheless serve a deterrent purpose. 

 Homeward has not identified any authority precluding our application of 

Dr. Leevil to the present case. The sole argument Homeward raised in its briefing sought 

to distinguish between “duly perfected” title and “perfect title,” without mention of 

Dr. Leevil. But Dr. Leevil held that the requirement that “title under the foreclosure has 

been duly perfected” (§ 1161a, subd. (b)(2)) means “the new owner must perfect title” 

(Dr. Leevil, supra, 6 Cal.5th at p. 477). 

 We note that the Supreme Court has held “that where the purchaser at a trustee’s 

sale proceeds under section 1161a . . . he must prove his acquisition of title by purchase 

at the sale; but it is only to this limited extent, as provided by statute, that title may be 

litigated in such a proceeding.” (Cheney v. Trauzettel (1937) 9 Cal.2d 158, 159 

(Cheney).) “[T]he plaintiff need only prove a sale in compliance with the statute and 

deed of trust, followed by a purchase at such sale, and the defendant may raise objections 

only on that phase of the issue of title.” (Id. at p. 160.) Building on the foundation laid 

by Cheney, the Supreme Court held that the res judicata effect of an unlawful detainer 

judgment is limited, as to subsequent title challenges, by its narrow purview. (Vella, 

supra, 20 Cal.3d at pp. 255-258; see also Struiksma v. Ocwen Loan Servicing, LLC
20

(2021) 66 Cal.App.5th 546, 554-557 [discussing Cheney and Vella].) But in Dr. Leevil, 

the high court identified these same limitations on the scope of an unlawful detainer 

action as a basis for requiring removal of a cloud on title prior to service of a notice to 

quit. (Dr. Leevil, supra, 6 Cal.5th at pp. 483-484.)

To the extent the high court’s discussion in Dr. Leevil of the practical 

ramifications of its holding—including the benefits of adopting a rule requiring a new 

owner to perfect title before serving the notice to quit—may be characterized as dictum, 

“[a]s an intermediate appellate court, we do not lightly disregard dictum from our 

Supreme Court. ‘ “Even if properly characterized as dictum, statements of the Supreme 

Court should be considered persuasive. [Citation.]” ’ [Citation.] ‘When the Supreme 

Court has conducted a thorough analysis of the issues and such analysis reflects 

compelling logic, its dictum should be followed.’ ” (Bigler-Engler v. Breg, Inc. (2017) 7 

Cal.App.5th 276, 330.) Moreover, our decision hinges on the proper construction of 

section 1161a, subdivision (b)(3), an issue that the Supreme Court squarely addressed in 

Dr. Leevil but had no occasion to address in Cheney. (Compare Dr. Leevil, supra, 6 

Cal.5th at pp. 478-481, with Cheney, supra, 9 Cal.2d at pp. 159-161.)

Cases predating Dr. Leevil support the proposition that recording the trustee’s 

deed entitles the purchaser to commence unlawful detainer proceedings against the 

borrower. (See Garfinkle v. Superior Court (1978) 21 Cal.3d 268, 275; see also Salazar 

v. Thomas (2015) 236 Cal.App.4th 467, 480.) But these cases did not have occasion to 

address the question raised by Taptelis—whether recording of the trustee’s deed is 

sufficient to duly perfect title in favor of one who is not a bona fide purchaser for value 

without notice and who is therefore not entitled to the conclusive presumption of Civil 

Code section 2924, subdivision (c), because the property is subject to a lis pendens at the 

time of the foreclosure sale that the purchaser has not had expunged.

In addition, following Dr. Leevil’s recent construction of section 1161a, we find 

earlier appellate decisions less persuasive. (See Abrahamer v. Parks (1956) 141 
21

Cal.App.2d 82, 83-84 [applying Cheney to hold that unlawful detainer plaintiff was 

required only to prove acquisition of title by purchase at a trustee’s sale, rejecting 

defendants’ attempts to litigate the effect of a lis pendens filed in another action in the 

unlawful detainer proceeding]; Kartheiser v. Superior Court (1959) 174 Cal.App.2d 617, 

620-621 [recognizing general rule that title cannot be tried in a summary unlawful 

detainer proceeding, but ruling that where the validity of the trustee’s sale is attacked 

section 1161a requires proof that the property was duly sold in accordance with statute 

and that the title under the sale had been duly perfected]; but see Martin-Bragg v. Moore 

(2013) 219 Cal.App.4th 367, 370-371, 395 [holding that trial court “abused its discretion 

in refusing [unlawful detainer defendant’s] request to consolidate . . . unlawful detainer 

and quiet title actions for trial” with the effect of resolving a “complex” title dispute 

through a summary unlawful detainer proceeding, and remanding “for determination of 

the parties’ rights to legal and beneficial title to the property, and their respective rights to 

possession based on that determination”].)

Pending further guidance from the Supreme Court, we interpret Dr. Leevil to 

provide that Taptelis was entitled to assert as a defense that his unexpunged lis pendens 

was a cloud on title under the foreclosure sale. Where the lis pendens raised an issue of 

title that could not be adjudicated in an unlawful detainer proceeding, as the parties agree 

is the case here, Homeward could not serve the notice to quit or maintain an unlawful 

detainer action until the lis pendens, or the underlying litigation, had been resolved.12 

The trial court therefore erred in precluding Taptelis from raising the lis pendens to rebut 

Homeward’s claim of duly perfected title. Because the excluded evidence would have 

12 If Taptelis’s lis pendens was facially deficient, as Homeward implicitly suggests 

by arguing that the wrongful foreclosure claims could not impact title to or right to 

possession of the property, that means that the burden of resolving the lis pendens before 

serving the notice to quit would be limited. 
22 

established that Homeward was not (yet) entitled to the remedy it obtained, the error was 

prejudicial. 

E. Remand

 The legal error identified above independently dictates reversal. Accordingly, we 

do not reach Taptelis’s arguments regarding the trial court’s failure to stay the action or 

the taking of judicial notice or the inferences therefrom as they relate to the sufficiency of 

Homeward’s evidentiary showing at trial. Nor do we address Taptelis’s arguments 

concerning the trial court’s implicit denial of his request for a stay of judgment, a remedy 

he already sought from this Court through separate writ proceedings. (See § 1176, 

subd. (a).) Given the complexities in this case—the sale of the property to a third party 

during the pendency of the appeal and the pendency of underlying wrongful foreclosure 

litigation—we will remand the matter to the trial court pursuant to section 908 to 

determine whether and to what extent restitution and/or a money judgment may be 

appropriate. We express no opinion as to whether consolidation may be appropriate on 

remand. 

III. DISPOSITION 

 The judgment is reversed and the matter is remanded for further proceedings 

consistent with this opinion. Costs on appeal are awarded to Taptelis.
____________________________

LIE, J.

WE CONCUR:

____________________________

GREENWOOD, P.J.

_____________________________

GROVER, J.

Homeward Opportunities Fund I Trust 2019-2 v. Taptelis

H049791
Trial Court: Santa Clara County Superior Court

Superior Court No.: 21CV378676

Trial Judge: The Honorable Erik S. Johnson

Attorneys for Defendant and Appellant Law Offices of Ronald H. Freshman 

Ilias Louis Taptelis:

Ronald H. Freshman

Attorneys for Plaintiff and Respondent The Ryan Firm

Homeward Opportunities Fund I Trust 

2019-2: Timothy M. Ryan 

Michael W. Stoltzman, Jr.

Homeward Opportunities Fund I Trust 2019-2 v. Taptelis

H049791