1 Randall D. Naiman, Esq. - State Bar No. 81048 NAIMAN LAW ... · PDF file13 Pursuant to California Rules of Court, ... Plaintiff filed the within verified Complaint for Unlawful Detainer

From:WESTERN STATES 909 488 5861 08/22/2008 18:05 #067 P.O01

1 Randall D. Naiman, Esq. - State Bar No. 81048NAIMAN LAW GROUP, PC

2 4660 La Jolla Village Drive, Suite 500San Dieao, California 92122

3 (858) 535,’~-4808 (telephone)(858) 535-4809 (facsimile)

4 Rangl~ ~Nar0,anLaw.¢om (e-real)

5 Attorney for Plaintiff, DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE

5

?SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN BERNARDINO

8CENTRAL DIVISION

9DEUTSCHE BANK NATIONAL TRUST Case No.:UDSS80319"7

10 COMPANY, AS TRUSTEEPLAINTIFF’S OBJECTIONS TO

1 ! EVIDENCE SUBMITTED BYPlaintiff, DEFENDANT IN OPPOSITION TO12 DEFENDANT’S CROSS.MOTION FOR

vs. , SUMMARY JUDGMENT13

Date: August 18, 200814 KATRINA GJURASHAJ; and DOES 1to Time: 7:45 a.m.

6, inclusive Dept: $3115 Action filed: June 2, 2008

Defendants, Trial date: None assigned16

[Filed concurrently with Plaintiff’s Memorandum of17 Points and Authorities In Opposition to Defendant’s

Cross-Motion for Summary judgment; and18 Plaintiff’s Separate Statement of Undisputed Facts

in Opposition to Defendant’s Cross-Motion for19 Summary Judgment]

2O ’ VIA FAX

21

22 Plaintiff, Deutsche Bank National Trust Company, as Trustee ("Plaintiff") submits

23 the following objections to evidence cited by Defendant Katrina Gjurashaj ("Defendant") 24 Opposition to Defendant’s Cross-Motion for Summary Judgment.

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1

PLAINTIFF’S EVIOENTIAP-Y OBJECTIONS TO DEFENOANTS’ EVIDENCE

From:WESTERN STATES 909 488 5861 08/22/2008 18:05 #067 P.UU2

1 .Declaration 9f Katrlna, Gl~trashal

2

3 1. Plaintiff objects to paragraph 3, lines 9-17, page 2, and Exhibits 1-4, of the

4 declaration, on the basis that it is contains, collateral matter, lacks foundation, irrelevant,

5 self-serving and immaterial. Ho..0ver v. Community Hotel Dev, Corp v. Thomson (1985)

6 167 Cal, App.3d 1130, 1137 (bare conclusions of law); Keniston v, American Nat, Ins Co~.

? (1973) 31 Cal, App,3d 803, 813 (no evidentiary facts); J-10ffm~in’V. Sports Car Club of

8 ~ (1986) 180 C.A.3d 119, 126 (in a personal injury action, defendant raised

9 )laintiff’s si’gned release as an affirmative defense; in Opposing defendant’s motion for

10 summary judgment, plaintiff contended that the release was obtained by fraud and undue

t] influence; held, summary judgment affirmed; "[lit was not enough for plaintiff here simply

12 to argue to the court that there had been fraud and undue influence incident to his signing

13 the release; he was required to provide by declaration or reference to depositions, or

14 other discovery product, ,sufficient’ facts to show prima facie the elements of fraud or

15 undue influence.").Plaintiff requests that par.agraph 3, lines 9-17, page 2, and Exhibits 1-

]6 4, of the declaration be stricken,

17

18 Court’s .l~,u inpl on Qbiection~

19 Date: Sustained: ,

20 Overruled: ...I

21 2. Plaintiff objects to paragraph 4, lines 18-20, page 2, of the declaration, on

22 the basis that it is contains a legal conclusion, collateral matter, lacks foundation,

23 irrelevant, ’ ’ Hoover v. Communii¥ Hotel D~v. Cor#.....V.self-serving and immaterial.

=4 ii (1988> 167 Cal. App:3d 1130, 1137 (bare conclus,ons of law); Keniston

25 ~/~erican N.at, Ins. CO_l~ (1973) 31 Cal. App,3d 803, 813 (no evidentiary facts). Plaintiff

26 requests that paragraph 4; lines 18"20; page 2, of the declaration be stricken.

27

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2

PLAINTIFF ’8 I=VIDENTIARY OBJ;~O3IONS TO DEFENDANTS’ EV]DENC~=


1 . Court’s Rulinq on Objections

2 Date: Sustained:

3 Overruled:

4 3. Plaintiff objects to paragraph 5, lines 22-24, page 2, of the declaration, on

5 the basis that it is vague, speculative, contains inadmissible hearsay, collateral matter,

6 irrelevant, self-serving and immaterial. ,Soutl~ern Pac. Co, v, Fish (1958) 166 Cal, App.2d

? 353, 362 (declaration contained hearsay, conclusions and opinions; declaration

8 disregarded); Oliver v, Swiss b.~ (1963) 222 Cal. App.2d 528, 543 (hearsay

9 conclusions; declaration inadmissible). Plaintiff requests that paragraph 5, lines 22-24,

10 page 2, of the declaration be stricken.

1]. C~urt’s Ruling on Objections

12 Date: ’ Sustained:

13 Overruled:

14 4. Plaintiff objects to paragraph 7, line 27, page 2, and lines 1-5, page 3, of’the

15 declaration, on the basis that it is irrelevant, self-serving, and immaterial¯ ..Southern Pac,

16 ~o. v. Fish (1958) 166 Ca,l. App,2d353, 362 (declaration contained hearsay, conclusions

17 and opinions; declaration disregarded); Olive.,r v. Swis~ ~ (1963) 222 Cal. App,2d

18 528, 543 (hearsay and conclusions; declaration inadmissible). Plaintiff requests that

19 paragraph 7, line 27, page 2, and lines 1-5, page 3, of the declaration be stricken.

20

21 Court’s ~uling on Obiecl;jons

22 Date: ..... Sustained:

23 Overruled:’

24

25 5, Plaintiff objects to paragraph 8, lines 6-7, page 3, of the declaration, on the

26 basis that it contains a legal conclusion, .Sguthern R~o, Co. v. Fi~,~ (1958) 166 Cal.

27 App.2d 353, 362 (declaration contained hearsay, conclusions and opinions; declaration

28 disregarded); Oliver v, Swiss Club, T_eJJ (1963) 222 Cal. App.2d 528, 543 (hearsay

3’

PLAINTIFF ’8 EVIDENTIARY OBJECTION8 TO DEFENDANTS’ EVIDENCE

From:WESTERN STATE8 909 488 5861 08/22/2008 18:06 #067 P.O04

1 conclusions; declaration inadmissible). Plaintiff requests that paragraph 8, lines 6-7, page

2. 3, of the declaration be stricken,

3

4 Court’s Rulin~ on Objections

5 Date: Sustained:

6 Overruled:

7

8 6, Plaintiff objects to paragraph 9,, lines 8-12, page 2, of the declaration, on the

£ basis that it is irrelevant, self-serving and immaterial. .8.outhern pac. Co, v. Fish (1958)

10 166 Cal. App.2d 353, 362 (declaration contained hearsay, conclusions and opinions;

tt declaration disregarded); Oliver v. Swiss ~ (1963) 222 Cal. App,2d 528,

12 (hearsay and conclusions; declaration inadmissible).

13 Pursuant to California Rules of Court, Rule 2.305(d), my signature by facsimile set

14 forth below shall be deemed an original signature,

15 Respectfully submitted,’1

16 Dated: August 15, 20088 NAIMAN LAW GROUP, PC

18By: Rand

19 Attorney for Plaintiff, Deutsche Bank NationalTrust Company, as Trustee

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PLAINTIFE ’8 EVIDENTIARY, OBJECTION8 TO DEFENDANTS’ EVIDENCE

From:WESTERN STATES 909 488 5861 08/22/2008 18:06 ~67 P.O05

1 Randall D. Naiman, Esq.. State Bar No. 81048NAIMAN LAW .GROUP PC

2 4660 La Jolla Village Drive, Suite 500San D~ego, California 92122

3 (858) 535-4808 (telephone)(858) 535-4809 (facsimile)

4 Randall@,NBi..m. anLaw.cq.m (e-mail)


6

7SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN BERNARDINO

8

9CENTRAL DIVISION

DEUTSCHE BANK NATI(~NAL TRUST Case No.: UDSS80319710 COMPANY, AS TRUSTEE

’PLAINTIFF’S MEMORANDUM OFPOINTS AND AUTHORITIES IN11

Plaintiff, OPPOSITION TO DEFENDANT’S12 CROSS.MOTION FOR SUMMARY

vs, JUDGMENT13

[Date: August 18, 200814

6,KATRINAinclusiveGJURASHAJ; and DOES 1 to Time: 7:45 am ’Dept: $31

15 Action filed: June 2, 2008, Defendants. Trial date: None assigned

16[Filed oonourrently with Plaintiff’s Separate

17 Statement of Undisputed Facts in Opposition toDefendant’s Cross-Moti0n for Summary Judgment;

18 and Plaintiff’s Objections to Evidence Submitted byDefendant in Opposition to Defendant’s Cross-

19 Motion for Summary Judgment]

20 VIA FAX

21

22 Plaintiff, DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE

23 (Plaintiff’), submits the follow, rig Memorandum of Points and Authonbes in Opposition

24 defendant Katrina- Gjurashaj ("Defendant") Cross-Motion" for Summary Judgment.

25

26

2?(

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT BY PLAINTIFF


1 I,

2 INTRODUCTION3 A. Factual Background

4 This is a residential unlawful detainer action after a non-judicial foreclosure sale,

5 On or about October 5, 2005, the previous owners/borrowers, Robert Gjolaj and

6 Minerva Talcma ("Borrowers") borrowed $440,000.00 from New Century Mortgage

7 Corporation ("Lender")¯ The loan was evidenced by a promissory note (the "Note")

8 secured by a Deed of Trust (the "Deed of Trust") encumbering the real property

9 commonly known as 34202 Pinehurst ’Drve, Yucaipa, California 92399 ("the Property").

10 The Deed of Trust was recorded in the Official Records, County of San Bernardinc, on

11 October 5, 2005, as Document No. 2005-0746457. A true and correct copy of the Deed

12 of Trust is attached as Exhibit "1." Subsequent thereto, Plaintiff acquired all right, title and

13 beneficial interest in the Note and Deed of Trust from Lender.

14 On April 30, 2008, First American LoanStar Trustee Services ("LoanStar"),

15 successor trustee under the Deed of Trust; conducted a trustee’s sale and sold the

16 Property at public auction to Plaintiff. Thereafter, LoanStar delivered a Trustee’s Deed

17 Upon Sale conveying the Property to Plaintiff which was recorded in the Official Records,

18 County of San Bernardino, on May 7, 2008,as Document No. 2008-0204355. A true and

19 correct copy of the Trustee’s Deed Upon Sale is attached hereto as Exhibit "2."

20 On May 20, 2008, a California process server served on Defendant, and each of

21 them, a notice to quit at the Property in compliance with C.C.P;. sec. 1162. Thereafter,

22 the process server executed a Proof of Service attesting to such service.

23 More than thirty’(30)days has elapsed since service of the notice to quit,

24 However, Defendant, and .each of them, continue to remain In possession of the Property.

25 B. Procedural History

26 On June 24, 2008, Plaintiff filed the within verified Complaint for Unlawful Detainer.

2"/ On July 6, 2008, Defendant was served with the subject Summons and Complaint by

28 )ersonal service. On July 6, 2008, All Unknown Occupants were served with the subject

2MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT BY PLAINTIFF


1 Summons and Complaint pursuant to C.C.P. sec: 415.46. On July 11, 2008, Defendant

2 filed a Demurrer to the Complaint. On July 18, 2008, Plaintiff filed an ex parte application

3 to advance the hearing o0 Defendant’s demurrer with the hearing originally scheduled for

4 July 22, 2008. On July 21, 2008, the clerk of the court entered Plaintiff’s Request for

5 Entry of Default against All Unknown Occupants,

6 The ex parte hearing to advance the hearing on Defendant’s demurrer was

7 continued to July 23, 2008, Plaintiff provided notice to Defendant of the continuance. On

8 July 23, 2008, the Court entered the following orders: (1) an order granting Plaintiff’s

9 parte application for an order advancing the hearing on Defendant’s demurrer from

10 August 6, 2008 to July 23, 2008; and (2) overruhng- Defendant’s demurrer and requiring

11 Defendant to file an answer only within five (5) days from July 23, 2008. Defendant filed

12 an answer on July 25, 2008. Theie were no other responses to the Complaint.

13 On August 8, 2008, Plaintiff filed and served via Federal Express a Motion for

14 Summary Judgment with the hearing scheduled for August 18, 2008. On August 12,

15 2008, Defendant sewed via U.S. mail on Plaintiff’s counsel Defendant’s Cross-Motion for

16 Summary Judgment with the hearing scheduled forAugust 18, 2008.

17 II,18 DEFENDANT CROSS-MOTION FOR SUMMARY

JDUGMENT FAILS TO ESTABLISH THAT PLAINTIFF’S19 CAUSE OF ACTION FOR UNLAWFUL DETAINER IS

WITHOUT MERIT OR THAT AN AFFIRMATIVE DEFENSE20 EXISTS21

22 .In a’ motion for summary judgment in an unlawful detainer action pursuant to23 C.C.P, sec, 1161a, a Defendant must show that the cause of action for unlawful detainer24 is without merit, i.e., one or more elements of the cause of acti’on cannot be separately25 established or that an affirmative defense exists as to the cause of action for unlawful26 detainer. C.C,P. sec. 437c(o)(1), (2); A~luilar v. Atlantic Richfield Co. (2001) 25 Cal. th

2? 826, 850; City of Em~ry.v~l.e v. Superior Court (1991) 2 Cal. App:4th 21, 25.28



t

1 ¯ Defendant must meet her burden with competent and admissible evidence. See

2 Leyva y. Superior Court (1985) 164 Cal: App.3d 462, 469. Defendant as moving party

3 cannot simply argue or allege that plaintiff has no evidence to shift the burden of

4 )reduction. Aguilar v..A.tlantic Richfield co, (2001) 25 Cal. th 826, 854. Defendant must

5 ~resent evidence that plaintiff does not possess, and cannot reasonably obtain, needed

6 evidence, Defendant may, but need not, present evidence that negates an element of

7 ~laintiff’s case, Apluilal" v. Atlanl;i¢,Richfield Co. (2001) 25 Cal. th 826, 855, Once

8 defendant has met her initial burden Of production, the burden shifts to plaintiff to make a

g ~rJma facie showing of a triable issue of one or more material facts as to that cause of

10 action or a defense to that cause of actior~. C.C.P, sec. 437c(p).(2); A~uilar v. Atlantic

11 Richfield ~ (2001) 25 Cal. th 826, 850.

12 ODp,osin¢l party rr).~y base ODD, osltion ~o|elv o’n inadeauacv of the movin.q party’~

13 party’S Showinq in suP.port of moron. Beech Aircraft CgrP. v. superior Court (1976)

14 Cal. App.3rd 501, 520. Opposing party is not obligated to file opposing affidavits or

15 declarations. In the alternative, opposing party may file opposition to the substance of the

f ¯16 motion, in addition to attacking adequacy o moving party’s showing.

17 In Defendant’s cross-motion for summary judgment Defendant appears to assert

18 that Plaintiff has no standing to bring this unlawful detainer action, attacks the validity of

19 the deed of trust and the promissory note, ’and the trustee’s sale. All the grounds are

20 meritless.

21 III.

22 PLAINTIFF HAS STANDING TO BRING THIS UNLAWFULDETAINER ACTION

23

24 Plain.tiff, Deutsche Bank National Trust Company, is a national bank chartered

25 undel,’the laws of the United States of America. As a nationally chartered bank, Plaintiff

26 is exempt from California laws requiring foreign corporations to qualify to do business in

27 the State of California,

28

4


From:WESTERN STATE8 909 488 5861 08/22/2008 18:07 #067 P.O09

1 Contrary to Defendant’s allegation in her cross-motion for summary judgment,

2 Plaintiff has standing to pursue this unlawful detainer action. In order for a party to

3 pursue an action, the party plaintiff must have the right to sue meaning that the plaintiff

4 must Own or hold title to the claim or property involved as opposed to third parties who

5 may simply be benefitted by the litigation, The reason behind the real party in interest

6 requirement is to assure that a judgment rendered in favor of the party who has the right

7 to litigate.

6 On or about October 5, 20.05, the Borrowers borrowed $440,000.00 from New9 Century Mortgage Corporation ("Lender"), The loan was evidenced by a promissory note

10 the "Note") secured by a Deed of Trust (the "Deed of Trust") encumbering the real

property commonly known as 34202 Pinehurst Drive, Yucaipa, California 92399 ("the

12 Property"). The Deed of Trust securing the Note and encumbering the Property was

13 recorded in the Official Records, County of San Bernardino, on October 5, 2005, as

14 Document No. 2005-0746457. New Century Mortgage Corporation was the beneficiary

15 ~ursuant to,the Deed of Trust. .,

16 A Corporate Assignment of.Deed of Trust In connection with the Deed of Trust was

17 recorded in the Official Records, COunty of San Bernardino; on June 2, 2006, as

18 Document No. 2006-0377531 ("Assignment"). A true and correct copy of the Corporate

19 Assignment of Deed of Trust is attached hereto as Exhibit "3." The Assignment indicates

20 that New Century Mortgage Corporation transferred all beneficial interest in the Deed of

21 Trust to Plaintiff.

’ I22 According y, since Plaintiff holds title to the Property by virtue of the recorded

23 Trustee’s Deed Upon Sale, Plaintiff has standing to bring this action.

24

25

25

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5MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT SY PLAINTIFF

From:WESTERN STATES 909 488 5861 08/22/2008 18:08 #067 P.010

1IV,

2DEFENDANT CANNOT ESTABLISH A DEFENSE TO THIS

3 ACTION OR SHOW PLAINTIFF’S CAUSE OF ACTIONFOR UNLAWFUL DETAINER IS WITHOUT MERIT ,

4A, Matters. Affecting the Validity of the Trust Deed or Primary

5 Obllgat,on.ltself, or Other Basic Defects In Plaintiff’s Title, CannotBe Raised ,n an Unlawful Detainer Action

6

7 The defenses available to a defendant in an unlawful detainer action based upon a

8 trustee’s sale are extremely limited. The extent to which a plaintiff’s title may be a triable

9 issue in an unlawful detainer action brought pursuant to Code of Civil Procedure 1161a(3)

10 was discussed by the California Supreme Court in Gheney v. Trauzettel, 9 C 2d 158, 160:

11 The trial couff properly held that in the summaryproceeding ~n unlawful detainer the right to possession ~tone

12 was involved and the broad question of title could not beraised and litigated by cross.complaint or affirmative

13 defense,..It is true thatwhere the purchaser at a trustee’ssale proceeds under §11.61a of the Code of Civil Procedure

14 he must prove his aoqu|sttton of title by purchase at the sale;but it is only to th#s limited extent as provided by,statute, that

15 the title may be litigated in such a proceedmg.,.,Mattersaffecting the vahdity of the trust deed or primary obhgation

16 itself, or other basic defects in the plainti,ff,’s title, are neitherproperly raised m this summary proceeding for possession

17 nor are they concluded by the judgment." Chancy v., Trauzette/9 C2d 158, 160. .

18

19 As such, the only issue which may be raised is whether or not the trustee complied

20 with the provisions of Civil Code sections 2924 at seq. Defendant attempts to attack the

21 validity of the deed of trust and primary obligation itself (i.e., note) which Defendant

22 do in this summary proceeding. In order to attack the trustee’s sale, Defendant

23 ~ust tender the full amouht of the outstanding obligation to Plaintiff which Defendant had

24 not done (see below). Accordingly, Defendant cannot attack the trustee’s sale.

25 B, As a Matter of Law, the Answer Does Not Raise a Triable Issue ofFact with Regard to the Foreclosure Because Defendants Have Not

26 Alleged (Nor Can Defendant Prove) a Tender of the Full Amount of2? the Outstanding Debt

28 It is well established that, in any action wherein one party attacks the title of the

;r of real property who purchasedthe same at a foreclosure sale, any objection to6 "

MEMORANDUM OF POINTS ANrl AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT BY PLAINTIFF

From:WESTERN STATES 909 488 5861 08/22/2008 18:08 #067 P.Oll

1the sale may not be raised ~ the .Defendant has tendered the amount of the debt for

2which the property was given as security.

3In the unlawful detainer case. of MGA, Inc. v,. Universal Diversified. Enterprises

4CorporatioJ~ ("MCA") (1972) 27 Cal App 3d 170, the plaintiff purchased real property at

5trustee’s sale which was held pursuant to the power of sale in a deed of trust, The

6defendant refused to vacate the premises, and plaintif filed an unlawful detainer action to

7recover possession and monetary damages. Following trial, judgment was entered in

8favor of plafntiff for recovery of possession as well as monetary damages.

9 The Court of Appeal affirmed the judgment, holding that the defendant was10

~reoluded from raising issues asto the validity of the trustee’s sale, as well as other11 * ¯ p , i i~bjecbons to the plambff s title. The MCA Court held that the defendant trustor’s assertion12

of noncompliance with the procedure for the trustee’s sale, as set forth in C.C. sec. 2924,13

et. seq., did not raise a triable issue of fact, because the defendant had not tendered the14

fq. I amount Of the debt fqr which th~ property,was �liver~ as security.15

Specifically, the MCA Court held:16

,,, defendant’s assertions of plaint’ffs non-compliance with17 Civ Code sect on 2924 did not raise a triable ssue ’because

we do not find in the reooi’d any offer on the part of18 [defendant] to pay the furl amount of the debt for which the

property was 9~ven as security. 8ome,disposition on the part19 of [defendant]to do equity by tendenng the amount of the

debt due is a prerequisite to a demand for a judgment20 ’ canceling the trustee’s sale. Py, V. Plietner, 70 Cal ,Ap, p 2d

576,582, ano cases cited. See also 8himPones v. ,~tnc~ney,21 219 C 637, 649, Crurnmcr,,v., Whitehead, 230 Call App2 d at

268-269; Humb01t Sav nas& Loan S0c, y, March, 136 C22 321.

23 Further, in Crummer v. Whitehead (1964) 230 Cal, App.2d 264, which is another

24 unlawful detainer case, the Court of A’ppeal made it clear that, in an unlawful detainer

25 action brought pursuant to. C.C,P, sec.,1161a, where a defendant is entitled to dispute the

26 validity of the trustee’s sale by which the property became the plaintiff’s and to thereby

2,7 31ace the plaintiff’s title in issue, it is a prerequisite to a trustor’s demand for relief and

2,8 Ltteck on that title that he must h.~ve tendered th~ full amount,,of the debt due. See also,

7

MEMORANDUM OF POINTS AND ANTHOR, ITIE8 IN SUPPQP~T OF MOT{ON FOR SUMMARY JUDGMENT BY PLAINTIFF

From:WESTERN STATE8 909 488 5861 08/22/2008 18:08 #067 P.O]2

e

1 Abd~l}ah v. United Savings Bank; (1996) 43CaI.App.4~h 1101, 1109 (debtor must allege

2 tender of amount of beneficiary’s secured indebtedness in order to maintain any caUSe of

3 action for irregularity in the sale procedure).

4 In Crumm~ v. Whitehead, supra, at pages 268-269, the Court of Appeal explained

5 its rational as follows:

8 "Although this was an action in an unlawful detainer, broughtpursuant to C.C,P. sec, 1161a, subdivision 3, appellant was

7 entitled to d~spute the validity of the trustee’s sale and toplace respondent’s title ~n issue . . . The trial court . . .

8 concludedthat the trustee’s sale was legally held under thepower of sale contained in the deed of trust.. , iT]he trial

9 court’s ruling appears fair and just because we do not findin the record any offer on the part of appellant to pay. the

10 full amount of the debt for which the prop_erty was g,venas $ecur=ty. Some d=sposition on the part of the appellant to

11 do equity, by tendering the amount of the debt due is aprerequisite to her demand for a. judgment canceling the

12 trustee’s sale. [citations]" .(Emphasis added).

13 Finally, in ..K..a.r!sen v. American ~av. & Loan Ass’n (1971) 15 CA3d 112, 118,.the

14 3ourt of Appeal made it clear that, in order to make a valid and effective tender of the

15 amount due, a mere "offer of performance," even if made, is of no effect if the person

16 making it is net able to perl=orm, In other words, if"the offeror, , . ’is without the money

17 necessary to make the offer good and knows it... ’ the tender is without legal force or

18 effect. [citations]." See also, Still v. Plaza Marine Commercial Corp (1971) 21 CA 3d 378,

19 386; _Wein~r v, Van Winkle (1960) 273 CA2d 774, 782,

20 The rule requiring an offer to purchase the property is premised upon the equitable

21 maxim that a court of equity will not order that a useless act be performed. Equity will not

22 interpose its remedial power in the accomplishment of what seemingly would be nothing

23 but an’ idly and expensively futile act, nor will it purposely speculate in a field where there

24 has been no proof as to what beneficial purpose may be. subserved through its

25 intervention, Leonard v, Bank of,~merica (1936) 16 Cal. App.2d 341,344.

26 Here Defendant has not alleged¯ in Defendant’s Answer, as Defendant is required

27 under California law to do, that Defendant is ready, willing, and able to pay the full debt¯ I

28

, 8MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT BY PLAINTIFF

From:WESTERN STATE8 909 488 586] 08/22/2008 ]8:09 #067 P.O]8

1 owing to Plaintiff In order to redeem the Property, nor has Defendant alleged the moans

2 by which Defendant can and will accomplish any such payment.

3 C. Defendant Has Failed to Comply with the Procedural Requirements for

4Serving Defendant’s Cross-Motion

5 Code of Civil Procedure Section 1170.7, which governs motions for summary

6 udgment in unlawful detainer actions provides, In relevant part, as follows:

7 A motion for summary judgment may, be made at any time8 after the answer is filed upbn giving ~ ~ notice,

Summary judgment shah be ,granted or denied ,on the same9 basis as a mo-tion under Section 437c. [Emphasis added.]

10 If the motion is served by mail in California, an additional five (5) days notice 11 ¯ equired. C,C,P. sec. 1005.12 In this case, Defendant served her cross-motion for summary judgment on August13 12, 2008. The earl’iest date Defendant’s cross-motion for summary judgment could be14 head would be August 22, 2008, Accordingly, Defendant’s cross-motion for summary15 ’udgment is statutorily deficient.16 D. Plaintiff Has Established a Prima Facie Case for Unlawful Detainer17

18 Plaintiff has demonstrated in, its.moving papers for summary judgment that Plaintiff

19 is entitled to possession of the Property against Defendant and that Plaintiff has

20 established by a preponderance of the evidence the essential elements for an unlawful

21 detainer action under C.C,P. sec. 1161a after a foreclosure sale: (1) that the property

22 was s01d in accordance with Civil Code Section 2924 and that title has been duly

23 perfected; (2) that the requisite 3-day notice to quit was served In accordance with C,C,P.

24 sec, 1162; and (3) that Defendant-is still in possession of the Property. C.C,P. sec.

25 1161a, Defendant. has not shown in Defendant’s crosS-motion for summary judgment

26 that Pl’aintiff’s cause of action for unlawful detainer is without merit or that an affirmative

2? defense exists as to that cause of action,. .

28

9MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR �~UMMARY JUDGMENT BY PLAINTIFF


1 IV.

2 CONCLUSION ’

3 Since Defendant has failed to show that one or more elements of Plaintiff’s cause

4 of action for unlawful detainer cannot be separately established or that an affirmative

5 defense exists as to Plaintiff’s cause of action, Plaintiff requests that Defendant’s cross-

6 motion for summary judgment be denied.

7 Dated: August 15, 2008 Respectfully submitted,

89

NAIMAN ~, PC10 By:

11 RANDALL D. NAIMAN, ESQ.Attorney for Plaintiff, DEUTSCHE BANK

12 NATIONAL TRUST COMPANY, AS TRUSTEE13

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10MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT BY PLAINTIFF

From:WESTERN STATES 909 488 586] 08/22/2008 ]8:09 #067 P.O]5

Randall D. Naiman Esq. - State Bar No 810481 NAMAN LAW GROUP, PC

4660 La Jolla Village Drive, Suite 5002 San Die~o, California 92122

(868) 53~] 4808 (telephone)3 (858) 535-4809 (facsimile)Randall(~.Nair0anLaw corn (e-mail)4


6

7 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN BERNARDINO8 CENTRAL DIVISION9

10 DEUTSCHE BANK NATIONAL TRUST Case No.: UDSS803197COMPANY, AS TRUSTEE

11 PLAINTIFF’S SEPARATE STATEMENTOF UNDISPUTED FACTS IN

12 Plaintiff, OPPOSITION TO DEFENDANT’SCROSS-MOTION FOR SUMMARY

13 vs. JUDGMENT

Date: August 18, 200814 KATRINA GJURASHAJ; and DOES 1 to Time: 7:45am15 6, inclusive Dept: $31

Action filed: June 2, 2008Trial date: None assigned16 Defendants

17 [Filed concurrently with Plaintiff’s Memorandum ofPoints and Authorities in Opposition to Defendant’s

18 Cross-Motion for Summary Judgment’, andPlaintiff’s Objections to Evidence Submitted byDefendant in Opposition to Defendant’s Cross-19 Motion for Summary Judgment]

2O VIA FAX21 ,

22Plaintiff, DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE23

24(Plaintiff’), submits this separate statement of disputed and undisputed materiel facts,_

25 together with references to supporting evidence, in response to defendant Katnna

26Gjurashaj’s ("Defendant") Separate Statement of Undisputed Material Facts and

27 Supporting Evidence in Support of Cross-Motion for Summary Judgment.

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PLAINTIFF’S REPLY TO DEFENDANT’9 8EPARATE STATEMENT OF UNDISPUTED FACTS AND SUPPORTING EVIDENCE


1 UNDISPUTED MATERIAL FACTS:, SUPPORTING,EVIDENCE:

2On or about September 25, 200’5, Robert Disputed;’ immaterial to ’ cross-3 1. Gjolaj and Minerva Taloma executed an motion for summary judgment.

4 "Adjustable Rate Note" promising to payNew Century Mortgage Co,, a certain sum

5 of money. This loan was evidenced by a6 promissory note ("Note") and secured by

deed of trust ("Deed of Trust")7 . encumbering the property at 34202

Pinehurst Drive, Yucaipa, CA 92399 ("the8 Property"). The Deed of Trust was9 recorded in the Official Records, County of "

San Bernardino.10

2. The N0"ie’executed by Robert Gjolaj, and Disputed; immaterial’ to cross"11 Minerva Taloma, was never properly mQtion for summary judgment.12 Indorsed to Plaintiff Deutsche Bank.

13 3. Katrin’a Gjurashaj and or, Ro’bert Gjolaj, Disputedi"’ immaterial’ to cross-

14 and Minerva Taloma, were never informed motion for summary judgment.of any sale or indorsement of the Note

15 from New Century Mortgage to DeutscheBank.

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17 .... 4’i’ Deutsche’ Bank was "not and is not Disputed; De~Jtsche""’Bank Nationalauthorized to conduct business in the state Trust Company is a national bank

18 of California. charted under the laws of theUnited States of America; as a

19 nationally chartered bank, Plaintiff

20 is exempt from California lawsrequiring fore gn corporations to do

21 business in the State of Californi.a5. Plaintiff lacks standing in this Unlawful Disputed; Deutsche Bank National

22 Detainer action, Trust Company is a national bank23 charted under the laws of the

United States of America; as a24 nationally chartered bank, Plaintiff

is exempt from California laws25 requiring foreign corporations to do26 business in the .State of California...

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PLAINTIFF’S REPLY TO ~EFENDANT’S SEPARATE STATEMENT OF UND~EPuTED FACTS AND SUPPORTING EVIDENCE


.. ,, i .

1 UNDISPUTED MATERIAL FACTS: SUPPORTING EVIDENCE:

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3 6. The Trustee had possession of the Disputed; immaterial .....Original Note as per their representation

4 on the face of the Notice of Default and isable to produce it for this hearing.

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7 DATED: August 15, 2008 Respectfully submitted,

8 NAIMAN LAW GROUP, PC9

11By: RandalfD. Naiman

12 Attorney for Plaintiff, DEUTSCHE BANKNATIONAL TRUST COMPANY. AS TRUSTEE

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PLAtNTtFF’S REPLY TO DEFENDANT’S SEPARATE STATEMENT OF UNDISPUTED FACTS AND SUPPORTING EVIDENCE

Documents

1 Randall D. Naiman, Esq. - State Bar No. 81048 NAIMAN LAW ... · PDF file13 Pursuant to California Rules of Court, ... Plaintiff filed the within verified Complaint for Unlawful Detainer