Downie v. The Rama Fund, LLC CA4/2 ( 2023 )

Filed 3/3/23 Downie v. The Rama Fund, LLC CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
ALEXIS ASHLEY DOWNIE,
Plaintiff and Appellant, E078068
v. (Super.Ct.No. PSC2004861)
THE RAMA FUND, LLC et al., OPINION
Defendants and Respondents.
APPEAL from the Superior Court of Riverside County. David M. Chapman,
Judge. Affirmed.
Law Office of Pauline E. Villanueva, Pauline E. Villanueva for Plaintiff and
Appellant.
Blank Rome, Cheryl S. Chang; Greines, Martin, Stein & Richland, Cynthia E.
Tobisman, Alana H. Rotter, and Joseph V. Bui for Defendants and Respondents.
1
INTRODUCTION
This is the second appeal involving various transactions committed to reverse a
foreclosure sale and to retain possession of property acquired by The Rama Fund (Rama)
at a trustee’s sale. The original purchaser and debtor, Billie Jo Frye, as trustee of the
Brookville Trust, obtained a loan secured by a deed of trust that was assigned to Rama.
When Frye defaulted on the loan, a trustee’s sale was scheduled to take place. Frye,
along with Thomas Downie (original beneficiary of the Brookville Trust) and plaintiff
Alexis Ashley Downie, made various attempts to evade the sale (by filing for bankruptcy
in multiple jurisdictions, including the State of Washington, followed by intra-familial
transfers of title to plaintiff as the newly appointed trustee), which were unsuccessful,
allowing the nonjudicial foreclosure sale to take place in November 2020, where Rama
obtained title to the premises. Rama then sued for unlawful detainer, and judgment was
entered in favor of Rama. (E077654, Rama Fund v. Frye,et al., [Feb. 15, 2023, nonpub.
opn]) Plaintiff then sued Rama and the other entities who participated in the original
purchase of the property by Frye for wrongful foreclosure. The trial court sustained
Rama’s demurrer to plaintiff’s second amended complaint (SAC) without leave to
amend, imposed sanctions on plaintiff and her attorneys, and plaintiff appeals.
On appeal, plaintiff argues the court erred in (1) sustaining the demurrer without
leave to amend, and (2) denying plaintiff’s ex parte motion to consolidate the unlawful
detainer case with the wrongful foreclosure action. We affirm.
2
BACKGROUND
Because this appeal is from a judgment of dismissal upon an order sustaining a
demurrer to the SAC without leave to amend, we summarize and accept as true all well-
pleaded material allegations of the complaint. (T.H. v. Novartis Pharmaceuticals Corp.
(2017) 4 Cal.5th 145, 156-157; see also, Hensler v. City of Glendale (1994) 8 Cal.4th 1,
8, fn. 3; Shoemaker v. Myers (1990) 52 Cal.3d 1, 7.) We do not, however, accept the
truth of contentions or conclusions of fact or law (Blank v. Kirwan (1985) 39 Cal.3d 311,
318), or other allegations inappropriate in a formal legal pleading. We therefore limit the
background to the ultimate facts pled, as well as matters for which judicial notice is
proper.
On March 19, 2014, Billie Jo Frye purchased property in La Quinta. On October
4, 2018,1 Ms. Frye executed a note and deed of trust in favor of Athas Capital Group, Inc.
for a loan in the amount of $ 1,590,500. On October 4, 2018, Athas Capital Group, Inc.,
assigned its interest in the note to defendant Rama Fund.
Frye defaulted on the loan payments, and on August 16, 2019, Rama, through its
agent TD Specialists2, recorded a notice of default and election to sell under deed of trust.
On October 20, 2019, TD Specialists, on behalf of Rama, recorded a notice of trustee’s
sale, originally scheduled to take place on December 17, 2019, although the sale did not
1The SAC erroneously alleges the promissory note and deed of trust were
executed on October 5, 2018, however, the documents themselves indicate otherwise.
2By the time of the hearing on the demurrer to the SAC, Rama was the sole
remaining defendant.
3
actually take place until October 2020 because Frye filed a lis pendens affecting the
property, and made multiple attempts to file for bankruptcy in both California and the
State of Washington, resulting in stays of the state court actions, although ultimately all
of the bankruptcies were dismissed.3
After the dismissal of Frye’s and Brookville’s bankruptcy, a settlement agreement
was reached between Rama Fund and Brookville Trust regarding repayment of the note.
The agreement provided that the total amount of the unpaid debt was $2,043,726.07 and
set out a schedule of payments on the debt. The agreement specifically provided that:
three payments of $275,000 each plus a balloon payment of $1,025,000, would be wired
to Rama, in the total amount of $1,850,000; the first payment was due on or before July
6, 2020, and if it was received timely, Rama would postpone the foreclosure sale,
currently set for July 7, 2020, for 30 days, such that the foreclosure sale will be scheduled
3 Rama requested judicial notice of the various bankruptcy attempts in its
demurrer. The first bankruptcy (filed in the Bankruptcy Court Central District of
California in Los Angeles, in January 2020) was dismissed for failure to file schedules,
statements, or a plan. The second bankruptcy, also filed in the Central District in March
2020, was dismissed in April 2020 for failure to file the proper schedules, but the docket
in that case also notes other bankruptcy filings in different bankruptcy courts in
California. In April 2020, Frye filed a Chapter 11 petition in the Western District Court
of the State of Washington, this time as an entity instead of as an individual. That case
was also dismissed. The last attempt by Frye to discharge the debt was another Chapter
11 matter filed in the Bankruptcy Court Central District of California, in Riverside, in
August 2020, and dismissed in October 2020, after Rama finally received notice of the
filing and made a motion for relief from the stay due to its secured interest in real
property. The bankruptcy court granted the motion made on grounds that the bankruptcy
petition was part of a scheme to hinder, delay, or defraud creditors involved. The
bankruptcy court dismissed that case with a special restriction against filing a new
bankruptcy and an order imposing sanctions. Plaintiff omitted this information in its
complaint, but as matters for which judicial notice is permissible, we consider the
information in reviewing the trial court’s ruling on the demurrer.
4
for a date no sooner than August 6, 2020. The second payment was due on or before
August 6, 2020, and if the first payment and second payments were received timely,
Rama agreed to postpone the foreclosure sale, such that it would be scheduled for a date
no sooner than September 5, 2020. The third payment was due on or before September 4,
2020, and if the first payment, second payment, and third payment were received timely,
Rama agreed to further postpone the foreclosure sale to October 1, 2020. The fourth
balloon payment in the amount of $1,025,000 was due before September 30, 2020.
The agreement further provided that if all the payments were timely, Rama would
apply the funds to the loan and the loan would be extinguished. However, if any payment
were untimely, nonpayment of any installment shall be considered an event of default
under both the deed of trust and note, and Rama, or its successors and assigns, shall have
the right to foreclose on the property, which would be uncontested in all respects by the
borrower, the trust, or Downie.
The first payment was made timely, but the second payment was not. Thomas
Downie (CEO of Brookville and father of Alexis Ashley Downie) requested an extension
to come up with the funds, but Rama denied the request. Plaintiff, Frye and Brookville,
then attempted to obtain funds to prevent the foreclosure sale and on October 9, 2020,
issued a demand for reinstatement of the loan, citing Civil Code section 2924c, to identify
the full past due amount. In the demand letter, counsel for plaintiff represented that
plaintiffs would then pay the full amount to reinstate the loan. Plaintiff also demanded
postponement of the foreclosure sale.
5
On September 9, 2020, a series of intrafamilial transfers resulted in Frye resigning
as trustee of the Brookville Trust, after which Thomas Downie, as CEO of Brookville
Corporation (the business entity) appointed his daughter Alexis Ashley to serve as trustee
in Frye’s place. Then, that same day, plaintiff Alexis Ashley Downie, in her capacity as
trustee, quitclaimed the property to Brookville Corporation.
In the meantime, Rama had sent a reinstatement quote as requested on October 16,
2020 followed by a demand for payoff that had to be received by October 19, 2020
because the foreclosure sale was scheduled for October 20, 2020. Unfortunately, the
response to plaintiff’s demand for reinstatement apparently went to counsel’s spam folder
and the deadline passed for yet another opportunity to become current on their payments,
although the SAC alleges plaintiff’s assumption that Rama and others involved in the
loan reinstatement process, intentionally frustrated plaintiff’s efforts.
Rama purchased the property at the foreclosure sale. Plaintiff filed this suit
against Rama and others who were no longer parties at the time of the SAC. The SAC
was filed on July 6, 2021, and alleges causes of action for wrongful foreclosure, breach of
contract, and quiet title (although the cover page also refers to a cause of action for usury
and another for declaratory relief). On August 9, 2021, Rama demurred to the SAC.
Prior to the court’s ruling on the demurrer, on August 19, 2021, plaintiff filed an
ex parte emergency motion to consolidate this case with an unlawful detainer case filed
by Rama, pending in a different department, in which Rama sought possession of the
property and eviction of plaintiff. The court found no emergency existed and denied the
6
ex parte consolidation motion without prejudice to refile it as a properly noticed motion.
Plaintiff then filed a second ex parte motion to consolidate as well as an ex parte
emergency motion for a restraining order and preliminary injunction to stay the eviction
action. These applications were also denied without prejudice. Finally, on September 1,
2021, plaintiff made a noticed motion to consolidate the two cases (the unlawful detainer
case and the wrongful foreclosure case) for oral argument. The trial court denied the
motion because consolidation was not factually warranted, it was untimely, and not all
the parties had been served.
On September 8, 2021, Rama made a motion for sanctions against plaintiff and her
counsel, seeking $13,544, based on the patently false statements made by plaintiff in the
SAC. On October 1, 2021, the court sustained Rama’s demurrer to the SAC without
leave to amend. On October 8, 2021, the court granted Rama’s motion for sanctions in
part, awarding defendant $5980. The court also made a referral to the State Bar of
California. On November 4, 2021, plaintiff appealed the judgment of dismissal and the
order for payment of sanctions.4
DISCUSSION
A. Challenge to Order Dismissing SAC Without Leave to Amend
“A general demurrer presents the same question to the appellate court as to the
trial court, namely, whether the plaintiff has alleged sufficient facts to justify any relief,
4 Plaintiff has raised no legal challenges to the order imposing sanctions, so we do
not need to address that issue. (Browne v. County of Tehama (2013) 213 Cal.App.4th
704, 726, citing Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826,
1830–1831, fn. 4 [failure to raise a claim of error on appeal forfeits the issue].)
7
notwithstanding superfluous allegations or claims for unjustified relief.” (B & P
Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 952–953, citing
Harnish v. Bramer (1886) 71 Cal. 155, 158; Matteson v. Wagoner (1905) 147 Cal. 739,
742; California Trust Co. v. Cohn (1932) 214 Cal. 619, 628; Alcorn v. Anbro
Engineering, Inc. (1970) 2 Cal.3d 493, 496.)
We review de novo the order sustaining the demurrer, treating the demurrer as
admitting all material facts properly pleaded, but, because only factual allegations are
considered on demurrer, we must disregard any contentions, deductions or conclusions of
fact or law. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318; WA Southwest 2, LLC v. First
American Title Ins. Co. (2015) 240 Cal.App.4th 148, 151, citing People ex rel. Gallegos
v. Pacific Lumber Co. (2008) 158 Cal.App.4th 950, 957.) In reviewing the lower court’s
ruling on demurrer, we base our statement of the factual and procedural background on
the pleadings and such matters as may be judicially noticed. (Careau & Co. v. Security
Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1381, 1386; Hendy v. Losse
(1991) 54 Cal.3d 723, 742.)
“When a demurrer is sustained, we determine whether the complaint states facts
sufficient to constitute a cause of action.” (Blank v. Kirwan, supra, 39 Cal.3d at p. 318,
citing Hill v. Miller (1966) 64 Cal.2d 757, 759.) When a demurrer is sustained without
leave to amend, Blank v. Kirwin, supra, instructs us to “decide whether there is a
reasonable possibility that the defect can be cured by amendment: if it can be, the trial
court has abused its discretion and we reverse; if not, there has been no abuse of
8
discretion and we affirm.” (Blank v. Kirwin, supra at p. 318; Kilgore v. Younger (1982)
30 Cal.3d 770, 781; Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636.) The burden of
proving such reasonable possibility is squarely on the plaintiff. (Cooper v. Leslie Salt
Co., supra, at p. 636.)
In the present case, the trial court did not provide a written tentative ruling to the
SAC, but the SAC alleged the same first three causes of action as the first amended
complaint (FAC), and suffered from the same defect of pleadings which affected the
FAC. In that ruling, the trial court considered the terms of the settlement agreement
(reached by the parties after Rama’s original notice of trustee’s sale, which led to the
various bankruptcy court filings in an effort to stall the foreclosure sale) to be controlling.
Significantly, plaintiff herself attached the agreement as an exhibit to her complaint, so
the court, considering matters only appearing on the face of the complaint or subject to
judicial notice, could properly consider its effect.
In that agreement, binding on plaintiff, Brookville admitted being in default on the
loan, acknowledged the various actions in the bankruptcy court, and reached the
agreement to settle the dispute over the loan. The agreement contains recitals outlining
the various transactions and indebtedness of Frye as trustee and borrower, along with the
other “guarantors” of the loan, binds the borrower, the personal guarantors and Thomas
Downie. The key promises were that Downie would wire three payments of $275,000
each, according to a particular schedule, followed by a balloon payment in the amount of
$1,025,000, totaling $1,850,000, in return for Rama’s agreement to postpone the
9
foreclosure sale. However, “nonpayment of any installment shall be considered an event
of default under both the Deed of Trust and Note, and RAMA, or its successors and
assigns, would have the right to foreclose on the Property, which shall be uncontested in
all respects by Borrower or Downie.”
Plaintiff acknowledged the settlement agreement in her complaint, and even
appended a copy of the agreement, which superseded the original loan agreement and
fully authorized the foreclosure by Rama. Moreover, according to the agreement,
plaintiff agreed that in the event of default on payments, the foreclosure would not be
contested. Yet both of those things happened, giving Rama the right to proceed with the
foreclosure sale without the need to engage in further efforts by plaintiff to reinstate the
loan.
In addition, plaintiff has failed to address the defects in her pleading relating to the
causes of action pled, which we now address. In so doing, we apply the de novo standard
of review to exercise our independent judgment to determine whether the operative
complaint states valid causes of action as a matter of law. (People ex rel. Lungren v.
Superior Court (1996) 14 Cal.4th 294, 300.) For purposes of review, we assume the truth
of properly pleaded factual allegations in the operative complaint and give the complaint
a reasonable interpretation by reading it as a whole and all its parts in their context.
(Ibid.) “We do not assume the truth of contentions, deductions, or conclusions of fact or
law, and may disregard allegations that are contrary to the law or to a fact that may be
10
judicially noticed.” (Fischer v. Time Warner Cable Inc. (2015) 234 Cal.App.4th 784,
790.)
1. The Wrongful Foreclosure Cause of Action.
A cause of action for wrongful foreclosure comprises four elements: “‘“ (1) the
trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real
property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking
the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and
(3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor
tendered the amount of the secured indebtedness or was excused from tendering; and (4)
no breach of condition or failure of performance existed on the mortgagor’s or trustor’s
part which would have authorized the foreclosure or exercise of the power of sale.’””
(Majd v. Bank of America, N.A. (2015) 243 Cal.App.4th 1293, 1306-1307, quoting Miles
v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 408.) The court in
Majd went on to explain that “‘mere technical violations of the foreclosure process will
not give rise to a tort claim; the foreclosure must have been entirely unauthorized on the
facts of the case.’” (Majd, supra, at p. 1307, quoting Miles, supra, at p. 409.)
Here, plaintiff’s cause of action alleges that she made multiple requests for a
reinstatement quote, that a foreclosure date had been scheduled, that the notice of default,
served prior to the initiation of foreclosure, advised plaintiff of the right to bring her
account in good standing by paying all past due payments plus costs, that plaintiff made a
demand for a reinstatement quote but defendants had intentionally provided the wrong
11
fax number and failed to transmit the quote timely to prevent plaintiff from submitting
the demand timely, and that plaintiff was ready, willing and able to transmit the funds to
Rama but were prevented from doing so by defendants, and were thereby excused from
tendering the funds.
Clearly, plaintiff’s allegations do not state a cause of action for wrongful
foreclosure because, among other things, plaintiff was in breach of the settlement
agreement by failing to timely make installment payments as a condition precedent to
postponing the foreclosure. Further, plaintiff had agreed that in the event of default, the
foreclosure would not be contested. Nor did plaintiff show the sale was illegal,
fraudulent, or willfully oppressive.
Finally, where a foreclosure sale has been completed, a debtor must allege tender
of the amount of the secured debt. (Shuster v. BAC Home Loans Servicing, LP (2012)
211 Cal.App.4th 505, 512, citing Karlsen v. American Sav. & Loan Assn. (1971) 15
Cal.App.3d 112, 117; Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101,
1109.) Having had two opportunities to amend the cause of action, the trial court was
justified in dismissing it without leave to amend.
2. Cause of Action for Breach of Contract, Covenant of Good Faith, Fair
Dealing.
The SAC purported to state a claim for breach of contract. In that claim, plaintiff
alleged she executed a deed of trust in favor of Athas which was then assigned to Rama,
that Rama breached the clauses of the promissory note pertaining to the interest rate and
12
charges, that property taxes were to be collected in installments pursuant to the settlement
agreement to which Rama was bound, that Rama failed to pay property taxes respecting
the property, and that defendant’s breached their contractual obligations by failing to
provide plaintiffs with a reinstatement quote.
“‘“[T]he elements of a cause of action for breach of contract are (1) the existence
of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s
breach, and (4) the resulting damages to the plaintiff.’” (Shusha, Inc. v. Century-National
Ins. Co. (Dec. 14, 2022, No. B313907) 87 Cal.App.5th 250, 266, quoting Marina Pacific
Hotel & Suites, LLC v. Fireman’s Fund Ins. Co. (2022) 81 Cal.App.5th 96, 108.)
Plaintiff failed to allege (a) that the contract required Rama to provide plaintiff
with a reinstatement quote, or (b) that Plaintiff made a beneficiary payoff demand (she
made a demand for a reinstatement quote, after alleging that “[w]ithout a beneficiary
payoff demand, the refinance transaction was not able to be completed”; (c) that Rama
failed to pay the real estate taxes,5 or (d) that Rama’s alleged breach damaged plaintiff.
The trial court properly sustained the breach of contract claim without leave to amend.
More importantly, plaintiff’s complaint fails to allege that she or her predecessors in
interest had performed their obligations under either of the contracts mentioned or that
their performance was excused. Plaintiff alleged only that she made a demand for a
5 Along with the demurrer, Rama requested that the court take judicial notice of
the tax collector’s confirmation that real estate taxes were current. This information
contradicts the allegations of the complaint.
13
reinstatement quote and that without a beneficiary payoff demand, the refinance
transaction could not be completed.
Unfortunately, the settlement agreement (which appears to be the focus of this
cause of action) does not contain any provisions granting plaintiff the right to demand a
beneficiary payoff amount or a reinstatement quote. By its plain language, it provides
only that foreclosure would be postponed if plaintiff and her predecessors in interest or
principals were current in making four consecutive installment payments, and that if any
payment were late or unpaid, foreclosure would promptly proceed. Further, even if Rama
had not paid the real estate taxes, plaintiff has failed to allege how she was damaged.
Plaintiff failed to allege a cause of action for breach of contract after two attempts.
The order dismissing it without leave to amend was proper.
3. The Cause of Action for Quiet Title.
Plaintiff’s third cause of action alleges that her quiet title claim is based on her
allegations that Rama did not have legal authority to foreclose on the property, that the
notice of default and notice of trustee’s sale contained amounts that were fraudulent, and
that any notices and deeds issued by TD Specialists were illegal and ineffective, requiring
title to be quieted in the name of Brookville or Frye.
Pursuant to Code of Civil Procedure, section 761.020, a cause of action for quiet
title must include all of the following: “(a) A description of the property that is the
subject of the action . . . .
14
(b) The title of the plaintiff as to which a determination under this chapter is
sought and the basis of the title . . . .
(c) The adverse claims to the title of the plaintiff against which a determination is
sought.
(d) The date as of which the determination is sought . . . .
(e) A prayer for the determination of the title of the plaintiff against the adverse
claims.”
A key element of a quiet title claim “‘is “[t]he adverse claims to the title of the
plaintiff against which a determination is sought.” [Citation.]’” (Maleti v. Wickers
(2022) 82 Cal.App.5th 181, 220, quoting West v. JPMorgan Chase Bank, N.A. (2013)
214 Cal.App.4th 780, 802.) In West, the court explained that after a foreclosure sale, the
lender has no adverse claim to title.
Here, plaintiff alleges only that TD Specialists issued an illegal and ineffectual
deed. Neither TD Specialists, nor the original trustee under the deed of trust has any
claim to title. Rama is the sole party with a claim to title, and judicial notice of the
recorded deed in favor of Rama adequately established Rama’s claim to title. Plaintiff
has not proffered any allegation in her complaint, nor evidence to support her claim to
title. In her opening brief, plaintiff offers no legal theory by which she may claim title to
the property. Dismissal of the quiet title cause of action without leave to amend was
proper.
15
B. Challenge to the Denial of the Motion to Consolidate Actions.
Plaintiff argues the trial court committed prejudicial error by refusing to
consolidate the wrongful foreclosure case with the unlawful detainer case. She also
argues that the ex parte applications were proper. We disagree.
First, we note that plaintiff discusses the standards for making ex parte motions in
general. Plaintiff filed her original wrongful foreclosure complaint in October 2020; the
unlawful detainer action was filed and served on plaintiff in July 2021, plaintiff had
ample time to file a noticed motion to consolidate prior to the trial in the unlawful
detainer action, which took place on August 25, 2021. Instead, plaintiff filed back-to-
back ex parte motions to consolidate.6 Of course this would not guarantee that
consolidation would be ordered, and it would not have provided the relief that plaintiff
really needed, which was to delay the unlawful detainer action. We proceed with the
merits of the claim.
a. The Trial Court Properly Denied the Ex parte Motions.
California Rules of Court, rule 3.1202, provides in pertinent part, “An applicant
must make an affirmative factual showing in a declaration containing competent
testimony based on personal knowledge of irreparable harm, immediate danger, or any
other statutory basis for granting relief ex parte.” (Cal. Rules Ct., rule 3.1202 (c).) A
court will not grant ex parte relief “‘in any but the plainest and most certain of cases.’”
6Plaintiff’s brief also refers to the standard of review for denials of continuances,
but no motion to continue was filed in the present case.
16
(People ex rel. Allstate Ins. Co. v. Suh (2019) 37 Cal.App.5th 253, 257, quoting
Consolidated Const. Co. v. Pacific E. Ry. Co. (1920) 184 Cal. 244, 246.)
Case law does not define “irreparable injury.” In Nakamura v. Parker (2007) 156
Cal.App.4th 327, the reviewing court reversed the denial of an ex parte application for a
domestic violence restraining order where the petitioner alleged facts based on personal
knowledge showing past acts and more recent and recurring acts showing that her
husband intentionally or recklessly caused or attempted to cause her bodily injury and
placed her in reasonable apprehension of imminent serious bodily injury, including
“striking,” “stalking,” “threatening,” “sexually assaulting,” “harassing,” “annoying
telephone calls,” and “destroying personal property.” (Id., at p. 337.) The reviewing
court held that these allegations demonstrated a substantial risk that “great or irreparable
injury” would be the result to her before the matter can be heard on notice. (Ibid.) This
suggests that the “irreparable injury” to which the court rule applies requires a showing of
something more than a potential financial or property loss; instead it refers to threats of
serious bodily injury to the person which would establish the need for warrant emergency
relief without a noticed motion.
Plaintiff’s papers in support of the ex parte motion asserted that denial of the
emergency application would allow the unlawful detainer action to proceed before the
wrongful foreclosure action could be litigated and could result in inconsistent judgments.
These averments do not constitute “irreparable harm, immediate danger, or any other
statutory basis for granting relief ex parte.” Plaintiff was not exposed to risk of
17
irreparable harm or immediate danger by the pendency of the unlawful detainer action,
although she would certainly face economic loss. But the court gave plaintiff an
opportunity to bring a noticed motion.
Instead of following that suggestion, plaintiff filed a second ex parte application
for an order consolidating the matters, which was denied for the same reason: no
emergency. Plaintiff also filed an ex parte application in the wrongful foreclosure action
to enjoin the unlawful detainer action, which also was denied. It was not until September
1, 2021, that plaintiff filed a noticed motion to consolidate the cases “for oral argument.”
However, by that time the unlawful detainer trial had concluded. (E077654, Rama Fund
v. Frye, et al., [Feb. 15, 2023, nonpub. opn.].) The motion to consolidate was therefore
denied as factually unwarranted and untimely.
The trial court’s denials of the ex parte applications were justified: plaintiff may
have been exposed to financial complications but there was no showing of irreparable
harm or injury, especially considering the merits of the motion to consolidate, to which
we now turn.
b. Consolidation Was Not Warranted.
Code of Civil Procedure section 1048, subdivision (a) provides: “When actions
involving a common question of law or fact are pending before the court, it may order a
joint hearing or trial of any or all the matters in issue in the actions; it may order all the
actions consolidated and it may make such orders concerning proceedings therein as may
tend to avoid unnecessary costs or delay.” “Consolidation of cases under Code of Civil
18
Procedure, section 1048, rests within the sound discretion of the trial judge.” (Walker v.
Walker (1960) 177 Cal.App.2d 89, 91-92, citing Fisher v. Nash Bldg. Co. (1952) 113
Cal.App.2d 397, 402 ; Fellner v. Steinbaum (1955) 132 Cal.App.2d 509, 511.) “The
discretion granted to the court must necessarily be broad and will not be interfered with
on appeal, except for an abuse thereof.” (National Electric Supply Co. v. Mt. Diablo
Unified School Dist. (1960) 187 Cal.App.2d 418, 421, and cases there cited.)
In the present case, plaintiff concedes that title cannot be tried in an unlawful
detainer action, citing (Malkoskie v. Option One Mortgage Corp. (2010) 188 Cal.App.4th
968, 973, and Vella v. Hudgins (1977) 20 Cal.3d 251, 255.) “[O]nly claims bearing
directly upon the right of immediate possession are cognizable.” (Vella v. Hudgins,
supra, at p. 255.)
Consequently, a judgment in unlawful detainer usually has very limited res
judicata effect and will not prevent one who is dispossessed from bringing a subsequent
action to resolve questions of title (Cheney v. Trauzettel (1937) 9 Cal.2d 158, 160; Byrne
v. Baker (1963) 221 Cal.App.2d 1, 5-6; Bekins v. Trull (1924) 69 Cal.App. 40, 45), or to
adjudicate other legal and equitable claims between the parties. (Gonzales v. Gem
Properties, Inc. (1974) 37 Cal.App.3d 1029; Union Oil Co. v. Chandler (1970) 4
Cal.App.3d 716 [disapproved on a different point in Green v. Superior Court of San
Francisco (1974) 10 Cal.3d 616, 633, fn. 19.); Haase v. Lamia (1964) 229 Cal.App.2d
654, 658; Patapoff v. Reliable Escrow Service Corp. (1962) 201 Cal.App.2d 484.)
19
Thus, matters affecting the validity of the trust deed or primary obligation itself, or
other basic defects in the plaintiff’s title, are neither properly raised in an unlawful
detainer summary proceeding for possession nor are they concluded by a judgment in
such an action. (Gonzales v. Gem Properties, Inc., supra, 37 Cal.App.3d at p. 1035,
citing Cheney v. Trauzettel, supra, 9 Cal.2d 158, 160.)
Plaintiff’s expressed reason for seeking consolidation was to prevent inconsistent
judgments, but that has not come to pass. Instead, the court properly found the unlawful
detainer action and the wrongful foreclosure case were not factually warranted and the
motion was untimely. These findings are supported by the record and reflect a proper
exercise of judicial discretion.
DISPOSITION
The judgment is affirmed. Respondent Rama is entitled to an award of costs on
appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
SLOUGH
J.
RAPHAEL
J.
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