DECISION/STATEMENT OF REASONS (CCP § 77(d)) BY THE COURT

Filed 8/29/16; published by order of Supreme Court 11/30/16 (see end of opn.)

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN DIEGO

APPELLATE DIVISION

U.S. FINANCIAL, L.P. as Trustee, etc.,

Plaintiff and Respondent,

v.

MICHAEL MCLITUS,

Defendant and Appellant.

Appellate Division No.: 37-2016-00200116-CL-UD-CTL

Trial Court Case No.: 37-2015-00035881-CL-UD-CTL

Trial Court Location: Central Division

DECISION/STATEMENT OF REASONS 

(CCP § 77(d)) BY THE COURT

APPEAL from the January 20, 2016 unlawful detainer judgment entered by the Superior 

Court San Diego County, Gary G. Kreep, Judge. Following argument on August 25, 2016, this 

matter was taken under submission.

REVERSED and REMANDED.

Code of Civil Procedure section 1161a requires a plaintiff to have both perfected the sale 

and the title in order to bring a summary unlawful detainer action for possession. (Code Civ. Proc., 

§ 1161a, subd (b)(3) [“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 such person, or a person 

under whom such person claims, and the title under the sale has been duly perfected.”1(Italics 

 

1

Section 2924h of the Civil Code merely defines when the sale is duly perfected: “The trustee’s sale shall 

be ... deemed perfect as of 8 a.m. on the actual date of the sale if the trustee’s deed is recorded within 15 

calendar days after the sale....” (Italics added.)
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DECISION/STATEMENT OF REASONS (CCP § 77(d)) BY THE COURT

added.)].) 

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 remedy of unlawful detainer is a summary proceeding to 

determine the right to possession of real property. Since it is purely 

statutory in nature, it is essential that a party seeking the remedy bring 

himself clearly within the statute. [Citation.]

(Baugh v. Consumers Associates, Limited (1966) 241 Cal.App.2d 672, 674-675.)

Contrary to the plain reading of the statute, the trial court erroneously concluded “... that 

under California Civil Code section 2924h(c), title is deemed perfected as of 8 a.m. on the date of 

the sale because the trustee’s deed upon sale was recorded within 15 calendar days.” (Statement of 

Decision, italics added.) 

In this case, the sale was perfected at the time the three-day notice was served, but not the 

title. Thus, the plaintiff could not provide defendant with a valid three-day notice. The court below 

mixed the issues of sale and title, but perfecting title is not interchangeable with perfection of the 

sale under this statutory scheme. 

Unless and until the Plaintiff has duly perfected title, an unlawful detainer action for 

possession is not yet ripe for determination. (Stonehouse Homes v. City of Sierra Madre (2008) 167 

Cal.App.4th 531, 540-541.)

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..., which includes good 

record title..., but is not limited to good record title, as between the 

parties to the transaction. The term ‘duly’ implies that all of those 

elements necessary to a valid sale exist, else there would not be a sale 

at all.

(Kessler v. Bridge (1958) 161 Cal.App.2d Supp. 837, 841.)

As stated by the California Supreme Court: “The property must be sold by public auction to 
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DECISION/STATEMENT OF REASONS (CCP § 77(d)) BY THE COURT

the highest bidder (§ 2924h) to whom title is transferred by a trustee's deed. Thereafter, upon 

recording of this deed, the purchaser is entitled to bring an unlawful detainer action against the 

trustor in order to get possession of the property. (Code Civ. Proc., § 1161a.) [Fn. omitted.]” 

(Garfinkle v. Superior Court (1978) 21 Cal.3d 268, 275, italics added.) And as more recently 

reiterated by the Court of Appeal in Salazar v. Thomas (2015) 236 Cal.App.4th 467: “After the 

trustee's deed has been recorded, the purchaser is entitled to bring an unlawful detainer action 

against the borrower-trustor or his or her successor to obtain possession of the property.

[Citations.]” (Id. at p. 480, italics added.)

“A valid three-day pay rent or quit notice is a prerequisite to an unlawful detainer action. 

[Citations.] Because of the summary nature of an unlawful detainer action, a notice is valid only if 

the lessor strictly complies with the statutorily mandated notice requirements. [Citation.] (Bevill v. 

Zoura (1994) 27 Cal.App.4th 694, 697.)

A defective notice cannot support an unlawful detainer judgment for possession. 

Respondent’s interpretation, on the other hand, would suggest that a post-foreclosure plaintiff could 

routinely prematurely issue a three-day notice that includes legal and factual misstatements (e.g., 

that the purchaser has already duly perfected title when it had not yet done so). And as argued by 

Appellant, such a practice would practically prevent a defendant from effectively verifying the 

identity of the alleged purchaser of a property as a search of recorded documents would prove 

futile.

Absent a sale in accordance with Section 2924 of the Civil Code and a duly perfected title 

prior to the issuance of the notice, a post-foreclosure purchaser cannot avail itself of a summary 

unlawful detainer eviction proceeding.

Respondent’s prematurely issued notice was fatally defective, and the unlawful detainer 

judgment must be reversed. This matter is remanded to the trial court to vacate the January 20, 

2016 judgment and to conduct any further proceedings as necessary consistent with this Decision. 

Appellant is awarded costs on appeal.
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DECISION/STATEMENT OF REASONS (CCP § 77(d)) BY THE COURT

Unanimously reversed and remanded.

KERRY WELLS

Presiding Judge, Appellate Division

JAY M. BLOOM

Judge, Appellate Division

CHARLES R. GILL

Judge, Appellate Division
DECISION/STATEMENT OF REASONS (CCP § 77(d)) BY THE COURT

Counsel for Appellant Michael McLitus:

JENNIFER POPLIN, ESQ.

LEGAL AID SOCIETY OF SAN DIEGO, INC.

1764 SAN DIEGO AVE., SUITE 200

SAN DIEGO, CA 92110

619-471-2783

Counsel for Respondent U.S. Financial, L.P. as Trustee, 909 Monserate Ave Trust dated 

10/16/2015 (substitution of attorney filed 03/18/16): 

JOHN D. FEHER

1919 GRAND AVE SUITE 2F

SAN DIEGO, CA 92109

858-246-6636

Trial Court: The Superior Court, San Diego County, Gary G. Kreep, Judge.
Filed 12/2/16

San Diego County Superior Court Appellate Division, 

No. 37-2016-00201116-CL-UD-CTL

S237852

IN THE SUPREME COURT OF CALIFORNIA

En Banc

________________________________________________________________________

909 MONSERATE AVENUE TRUST, Plaintiff and Respondent,

v.

MICHAEL McLITUS, Defendant and Appellant.

________________________________________________________________________

The order filed on November 30, 2016, ordering publication of the Appellate 

Division opinion is amended as to the title and text of the order as follows:

U.S. Financial, L.P., as Trustee, etc., Plaintiff and Respondent,

v.

Michael McLITUS, Defendant and Appellant.

The Reporter of Decisions is directed to publish the Appellate Division opinion in 

the above entitled matter in the Official Reports. (Cal. Rules of Court, rule 8.1120(a)(1).)

______________________________

 Chief Justice