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SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO APPELLATE DIVISION

Salvatore B. D'Anna

Petitioner,

v.

San Diego SuperiorCourt East County Division

Respondent,

Greenpoint Mortgage Funding, Inc.

Real Party in Interest

Appellate DivisionCase Nos.: To be Assigned Previous Appellate Case Nos.: 37-2009-00090804

Trial Court Case Nos.: 37-2009-00033936

PETITION FOR WRIT OF MANDAMUS FILED ON JUNE 18, 2010 SALVATORE B. D’ANNA, PETITIONER *IMMEDIATE STAY REQUESTED*

Salvatore B. D‟Anna 3941 ¾ Kenwood Dr. Spring Valley, CA 91977 V: (619) 602-6647 F: (619) 374-2268 Email: [email protected] Defendant/Petitioner

Salvatore B. D’Anna, Pro Per

mailto:[email protected]

CERTIFICATE OF SERVICE FOR WRIT OF MANDAMUS - 1

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CERTIFICATE OF SERVICE

I hereby certify that I am not a party to the above-entitled case; that on the date shown

below I served a true and correct copy of this Petitioner’s Writ of Mandamus on the parties

shown below by placing a true copy in a separate envelope, addressed as shown below; each

envelope was then sealed and, with postage fully prepaid, deposited in the United States Postal

Services at Lemon Grove, California.

Respondent: The Honorable Allen J. Preckel

San Diego Superior Court

East Couny Division Dept. 12

250 East Main Street,

El Cajon, CA 92020

San Diego Superior Court

East Couny Division Dept. 1

250 East Main Street,

El Cajon, CA 92020

Counsel for Real Parties in Interest: Brian H. Tran

Tami S. Crosby

Bauer Bergstrom & Winters LLP

1231 E. Dyer Road, Suite 100

Santa Ana, CA 92705

Date: June 18, 2010

By: _______________

Frank D’Anna, Jr.

APPENDIX TO THE PETITION FOR WRIT OF MANDAMUS

APPENDIX TO THE PETITION FOR WRIT OF MANDAMUS

Salvatore B. D’Anna submits the following documents in support

of the petition for writ of mandamus.

1. PETITION FOR WRIT OF MANDAMUS, P. 1

2. MEMORANDUM IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS, P. 8 3. EXHIBIT A- JUNE 11, 2010 ORDER, JUDGMENT, STATEMENT OF DECISION, P. 20-22

4. EXHIBIT B- NOTICE OF DEFENDANTS’ [PROPOSED] STATEMENT OF DECISION P. 23-31

5. EXHIBIT C- DEFENDANTS’ OBJECTION TO PLAINTIFF’S [PROPOSED] STATEMENT OF DECISION, P. 32-37

6. EXHIBIT D- LETTER TO HONORABLE ALLAN J. PRECKEL, PRESIDING JUDGE, P. 38-40 7. PETITIONER'S REQUEST FOR JUDICIAL NOTICE, P. 41

Memorandum of Points and Authorities ISO Writ of Mandate

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF WRIT OF

MANDATE

I. INTRODUCTION

A. Nature of case.

This is a request for another Writ of Mandate to order the trial court to issue a proper

Statement of Decision based on the issues to be decided in Petitioner’s request under Code of

Civil Procedure 632 and ordered to be issued by the Superior Court Appellate Division when

granting Petitioner’s previous Writ of Mandamus in case # 2009-00090804. In granting

Petitioner’s Writ of Mandamus in case # 2009-00090804, the Superior Court Appellate Division

also ordered the trial court to calendar any request made by Petitioner for a hearing to stay

judgment

pending appeal. Instead, the trial court summarily denied any request for a stay and refused to

calendar such a hearing.

At issue is the right of possession to the property located at. El Cajon, CA 92020

after a non judicial foreclosure sale under CCP § 1161a. A qualified exception to the rule that

title cannot be tried in an unlawful detainer proceeding [see Evid Code § 624; 5.45[1][c]] is

contained in CCP § 1161a. By extending the summary eviction remedy beyond the conventional

landlord-tenant relationship to include purchasers of the occupied property, the statute provides

for a narrow and sharply focused examination of title. A purchaser of the property as described

in the statute, who starts an unlawful detainer proceeding to evict an occupant in possession,

must show that he or she acquired the property at a regularly conducted sale and thereafter "duly

perfected" the title [CCP § 1161a; Vella v. Hudgins (1977) 20 C3d 251, 255, 142 CR 414, 572

P2d 28 ]. To this limited extent, as provided by the statute, title may be litigated in the unlawful

detainer proceeding [ Cheney v. Trauzettel (1937) 9 C2d 158, 159, 69 P2d 832 ].

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II. PROCEDURIAL HISTORY

On April 26, 2010, the Appellate Division of the San Diego Superior Court issued an

Order granting Petitioner’s Writ of Mandamus. The appellate division found that the trial court

erred in failing to issue a statement of decision and directed the trial court to vacate its judgment

and issue a statement of decision. On June 9, 2010, the remitter issued.

Prior to the remitter being issued by the appellate division, the court received the parties

proposed statement of decision and objections to the opposing parties proposed statement of

decision. In addition, the court also received Petitioner’s letter to the court asking that either for

a hearing to argue the proposed statements of decision or if the court decided the case in favor of

plaintiff then Petitioner asked the court to schedule a hearing for a stay pending appeal.

On June 11, 2010, the trial court issued a document which Petitioner has not yet received

by mail titled as follows:

ORDER VACATING JUDGMENT ENTERED ON JULY 6, 2009;

STATEMENT OF DECISION; JUDGMENT; AND ORDER

DENYING REQUEST TO STAY JUDGMENT PENDING APPEAL.

Petitioner drove to the court house and obtained a copy of the decision which is the reason for

the filing of the Writ of Mandamus for the second time.

III. ARGUMENT

A. When Statement of Decision Is Required Explaining Factual and Legal Basis

as to Each Principal Controverted Issue

Even though the Appellate Division ordered the trial court to issue a statement of

decision that addressed the controverted issues to be decided that were properly requested by

Petitioner. The trial court simply stated that the issues to be decided that Petitioner requested do

not apply to cases of a summary nature such as unlawful detainer and that petitioner has failed to

establish that 2923.5 applies to unlawful detainer.

Defendants have not shown that Plaintiff’s compliance with Civil Code

2923.5 is an issue that is properly raised in the summary proceeding of an

unlawful detainer action. Thus no specific findings of whether or not

Plaintiff complied with said code section will be made, as it is not a

principal controverted issue before this court.1

1 From Page 2:20-24 of the June 11, 2010 judgment attached as Exhibit A

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The trial court should explain to the appellate court why over a year after trial in this case

and after having the opportunity to respond to previous request for a writ of mandate to order the

trial court to issue a statement of decision based on Civil Code 2923.5, it raised no objections to

the controverted issues to be decided until the new judgment was issued on June 11, 2010 which

says that no statement of decision regarding 2923.5 is required in a summary unlawful detainer

case.

In re Marriage of Hargrave (1985) 163 Cal. App. 3d 346, 209 Cal. Rptr. 764 , was a

proceeding for dissolution of marriage heard by a retired superior court judge sitting as referee.

In determining the value of the goodwill of the husband's business, the referee rejected all the

testimony on that subject and merely issued a statement of the valuation, with no discernible

basis for the calculation. The wife appealed, assigning as error, inter alia, the trial court's failure

to explain the basis for the valuation of the husband's goodwill.

The court of appeal reversed, holding that Code Civ. Proc. § 632 imposes a duty on the

trial court to explain the factual and legal basis for its decision as to each of the principal

controverted issues at trial ( 163 Cal. App. 3d 346, 353-354) . The goodwill value of the

husband's business was undeniably a principal controverted issue in the case. The court noted

that despite the wife's objection to the referee's terse statement of value, she was provided no

explanation of the factual or legal basis of the referee's determination ( 163 Cal. App. 3d 346,

354) . Although family law courts are generally vested with wide discretion, the discretion

intended is not a capricious or arbitrary discretion, but an impartial one, guided and controlled by

fixed legal principles ( 163 Cal. App. 3d 346, 354-355) . The referee's rejection of all the

testimony on the subject of goodwill valuation left a record with no supporting evidence on that

issue. At that point, he should have required the parties to furnish additional evidence or

appointed his own expert to testify on that issue ( 163 Cal. App. 3d 346, 355) . (Although the

trial commenced after the effective date of the 1981 amendment to Code Civ. Proc. § 632, each

party submitted proposed findings of fact and conclusions of law. No one objected to the form of

the proposals, and the court of appeal treated them as statements of decision ( 163 Cal. App. 3d

346, 350-351) .)

The same is true in this case when the court reviewed the proposed statement of decisions

submitted by Petitioner and Real Party in Interest and the court considered them in the decision,

the fact that the issues addressed in the proposed statement of decision which did demonstrate

that Civil Code 2923.5 can be heard in a summary unlawful detainer case as it goes to the

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question of title and if the trustee sale was conducted properly by statute which 2923.5 is part of

those statutes. Petitioner’s Proposed Statement of Decision and Opposition to Real Parties

Proposed statement of decision which the trial court adopted with the addition of part 5 of the

purported statement of decision is attached hereto as Exhibit “B” and made a part hereof.

B. THE STATEMENT OF DECISION ISSUED BY THE COURT DOES NOT

ADDRESS ANY OF THE ISSUES OUTLINED IN PETITIONER’S [PROPOSED]

STATEMENTOF DECISION WHICH THE COURT STATES THAT IT

REVIEWED

Petitioner objected to the Plaintiff’s proposed statement of decision which is attached

hereto as Exhibit “C” and made a part hereof. Plaintiff’s Proposed Statement of Decision is

insufficient to be deemed the decision that the court can adopt as its statement of decision

because it does not address even one of the three controverted issues needed to be decided that

were requested by Defendants at trial.

The statement of decision must resolve these controverted issues that Defendants’

asked to be resolved in both their Trial Brief and their Request for a Statement of

Decision:

1. Whether Greenpoint duly perfected title to Petitioner’s home after the

non judicialforeclosure sale.

2. Whether Greenpoint could have perfected title to Petitioner’s home

without compliance with Civil Code 2923.5.

3. Whether the Recorded Notice of Intention to Preserve Interest in Real

Property due to non compliance with Civil Code 2923.5 which attaches

to any sale of the property is proof that Greenpoint could not have

perfected title.

In Miramar Hotel Corp. v. Frank B. Hall & Co. (1985) 163 Cal. App. 3d 1126, 210

Cal. Rptr. 114 , after a two-day trial on a cross complaint, the trial court took the matter under

submission and subsequently issued a minute order entitled "Memorandum of Decision and

Statement of Decision (Code Civ. Proc. § 632)." The memorandum listed findings that cross

complainant did not justifiably rely on any representation or misrepresentation by cross

defendant or its agents, that no implied or express contract was created, and that the cross

complainant was not entitled to recover attorney's fees. Cross complainant filed a request for a

formal statement of decision pursuant to Code Civ. Proc. § 632 as to certain principal

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controverted issues and various evidentiary factual issues. The trial court entered judgment

without issuing any formal statement of decision. Cross complainants appealed.

The court of appeal reversed, noting that the Legislature, by its enactment of former Code

Civ. Proc. § 632, and the Judicial Council, by its adoption of former Cal. Rules of Ct., Rule 232

[now see Cal. Rules of Ct., Rule 3.1590], created a comprehensive method for informing the

parties and ultimately the appellate courts of the factual and legal basis for the trial court's

decision (163 Cal. App. 3d 1126, 1128) . A properly prepared statement of decision may be

vitally important to the litigants in framing the issues, if any, that need to be considered or

reviewed on appeal. Although entitled "Statement of Decision," the minute order did not

constitute a statement of decision within the meaning of Code Civ. Proc. § 632 because it failed

to explain the factual and legal basis of the court's decision as to the principal controverted issues

at trial, an essential element of a statement of decision. By labeling the minute order a statement

of decision and ignoring cross complainants' request for the issuance of a statement, the trial

court deprived cross complainants of an opportunity to make proposals and objections

concerning the court's statement of decision, a vital aspect of the process. The requirements of

former Cal. Rules of Ct., Rule 232 [now see Cal. Rules of Ct., Rule 3.1590], impose no

substantial burden on the courts, because the trial court is specifically authorized to designate a

party to prepare the statement of decision. The trial court is therefore required only to review the

statement and any objections to it, and to make or order to be made any corrections, additions, or

deletions it deems necessary or appropriate. The issuance of a statement of decision after timely

request is clearly mandatory pursuant to Code Civ. Proc. § 632, and the trial court's failure to do

so required reversal ( 163 Cal. App. 3d 1126, 1129) .

By labeling the judgment and Order in this case as a statement of decision and failing to

address any of the controverted issues that Petitioner requested in asking for a statement of

decision, the trial court has not issued a proper statement of decision and another Writ must be

granted that specifically instructs the trial court on how to properly issue a statement of decision

in this case.

C. LACK OF FINDING AMOUNTS TO REVERSIBLE ERROR

Lack of Finding on Material Issues Amounts to Reversible Error. If the trial

court fails to make findings on material issues that would fairly disclose a determination of the

basis for the trial court's judgment, the failure amounts to reversible error ( Employers Casualty

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Co. v. Northwestern Nat. Ins. Group (1980) 109 Cal. App. 3d 462, 474, 167 Cal. Rptr. 296 ;

Vale v. Union Bank (1979) 88 Cal. App. 3d 330, 340, 151 Cal. Rptr. 784 ).

Statute devolves on trial court the duty of finding facts and as such trial court cannot turn

over to appellate court or to any other tribunal or person the duty of providing a Statement of

Decision. Kaiser v. Mansfield (1956, Cal App 4th Dist) 141 Cal App 2d 428, 297 P2d 98, 1956

Cal App LEXIS 1864. The right to findings is a substantial right, guaranteed by statute for the

benefit of the court and the parties. Davis v. Monte (1927, Cal App) 81 Cal App 164, 253 P 352,

1927 Cal App LEXIS 785.

In an unlawful detainer action such as the case at hand, trial court erred in refusing to

issue a statement of decision when properly requested by the tenants. Espinoza v. Calva (2008,

4th Dist) 2008 Cal App LEXIS 2496. CCP § 632 requires the court, upon request, to issue a

statement of decision explaining the factual and legal basis for its decision as to each of the

principal controverted issues at trial. Failure to determine a material issue in a statement of

decision can, in some circumstances, be reversible error if there is evidence that would support a

finding in the opposing party's favor. Triple A Management Co. v. Frisone (1999, Cal App 5th

Dist) 69 Cal App 4th 520, 81 Cal Rptr 2d 669, 1999 Cal App LEXIS 55.

D. A WRIT OF MANDATE IS PROPER WHEN DIRECT APPEAL IS NOT

AN ADEQUATE LEGAL REMEDY.

Mandate Proper When Direct Appeal Is Inadequate Legal Remedy. While a direct

appeal is generally an adequate remedy at law, it must be both adequate and "speedy" (see Code

Civ. Proc. § 1086). If direct appeal is not speedy, a writ of mandate may issue ( Kawasaki

Motors Corp. v. Superior Court (2000) 85 Cal. App. 4th 200, 205-206, 101 Cal. Rptr. 2d 863 ).

In a nonjury trial, an appellant preserves the record by requesting and obtaining from the

trial court a statement of decision pursuant to Code Civ. Proc., § 632. The statement of decision

provides the trial court's reasoning on disputed issues and is the appellate court's touchstone to

determine whether or not the trial court's decision is supported by the facts and the law. Slavin v.

Borinstein (1994, Cal App 2d Dist) 25 Cal App 4th 713, 30 Cal Rptr 2d 745, 1994 Cal App

LEXIS 564, review denied (1994, Cal) 1994 Cal LEXIS 4674.

Petitioner cited the case of Old National Financial Services, Inc. v. Seibert (1987) 194

Cal. App. 3d 460, 239 Cal. Rptr. 728 , in his proposed statement of decision to establish that the

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noncompliance with Civil Code 2923.5 which is part of the statutory process for the sale of

property in a nonjudicial foreclosure was proper in an unlawful detainer case and was litigated

by the parties and included without objection in Petitioner’s answer to the complaint.

Old National Financial Services, Inc. v. Seibert (1987) 194 Cal. App. 3d 460, 239 Cal.

Rptr. 728 , was a proceeding in unlawful detainer brought by the purchaser of real property at a

trustee's sale under a deed of trust against the former owner. Although affirming a judgment for

plaintiff for restitution and possession of the property, the court of appeal said that Code Civ.

Proc. § 1161a makes the summary remedy of unlawful detainer available against persons holding

over after the property has been sold under a power of sale in a trust deed (Code Civ. Proc. §

1161a(b)(3)), and that under this provision, the remedy is afforded when the property has been

sold in accordance with Civ. Code § 2924 and the title under the sale has been duly perfected (

194 Cal. App. 3d 460, 464) . The court explained that as a general rule, only claims bearing

directly on the right to possession are involved in unlawful detainer proceedings, but that when

title is acquired through proceedings described in Code Civ. Proc. § 1161a, courts must make a

limited inquiry into the basis of the plaintiff's title ( 194 Cal. App. 3d 460, 465) . The court said

that the plaintiff need only prove a sale in compliance with the statute and deed of trust, followed

by purchase at the sale, and the defendant may raise objections only on that phase of the issue of

title ( 194 Cal. App. 3d 460, 465) . The court added that 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 the summary proceeding for possession, nor concluded by the judgment, and that

further, the pendency of another action concerning title is immaterial to the resolution of an

unlawful detainer proceeding ( 194 Cal. App. 3d 460, 465) .

Accordingly, for reasons discussed above, the court should have found that Greenpoint

has not duly perfected title to the property located at 644 Hillsview Rd. El Cajon, CA 92020 due

to non compliance with the newly enacted Civil Code 2923.5. The Declaration required by Civil

Code 2923.5 which was attached and recorded with the Notice of Default claimed to have

negotiated with Mr. D’Anna on July 11, 2006 which was two years before the enactment of Civil

Code 2923.5 and at a time when Mr. D’Anna was not in default and was paying his mortgage on

time. The Notice of Default cannot be recorded until after compliance with Civil Code 2923.5.

The Notice of Default was improperly recorded which makes the non-judicial foreclosure sale

void as a matter of law.

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D. TRIAL COURT REFUSED TO CALENDAR A HEARING FOR

PETITIONER TO STAY JUDGMENT PENDING APPEAL AS ORDERED BY

THE APPELLATE COURT IN GRANTING PETITIONER’S WRIT OF

MANDATE ON APRIL 26, 2010

Petitioner asked the appellate court to issue an immediate stay pending appeal in his Writ

of Mandamus filed on July 16, 2009. The appellate court in their decision granting the writ

petition denied the request for a stay pending appeal as premature. However, the appellate court

stated that “the trial court is directed to calendar any such requests to be heard by the trial court

judge in accordance with Code of Civil Procedure section 1176 if an appeal is filed.”

On June 6, 2010, Petitioner sent a letter to the Honorable Allan J. Preckel, Judge

presiding asking for a hearing either on the submitted proposed statements of decisions of the

parties or if the court renders judgment in favor of Plaintiffs a hearing to stay judgment pending

appeal as ordered by the appellate division in granting the writ of mandate. The letter is

attached hereto as Exhibit “D” and made a part hereof. The letter stated in pertinent part:

As stated on page 4:8-10 of the Order Granting Defendant’s Petition for Writ of

Mandate under the section titled Disposition:

“Petitioner’s request for a stay pending appeal is denied as premature. However, the

trial court is directed to calendar any such requests to be heard by the trial court

judge in accordance with Code of Civil Procedure section 1176 if an appeal is filed.”

Defendants will immediately file a notice of appeal if judgment is entered for Plaintiff

after a written statement of decision has been made. Therefore, should the court issue

such a decision, Defendants request that such a hearing occur before Writ of

Possession is issued by the court.

The final determination of this case will benefit all future parties involved in an

unlawful detainer lawsuit following a nonjudicial foreclosure and any such decision

should be made with this in mind.

Therefore, Defendants request that the court schedule a hearing on the proposed

statement of decisions submitted, or if a statement of decision is written in favor of

Plaintiff, that the court schedule a hearing date for a request of stay pending appeal

prior to issuing any Writ of Possession.

In the June 11, 2010 Judgment, the trial court summarily denied Petitioner’s request for a

stay pending appeal claiming that it is unwarranted in direct contradiction to the order of the

appellate court. Petitioner is entitled to a full hearing on the issue and it is an abuse of discretion to

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summarily deny such a hearing when Petitioner has and can pay rent to the court pending resolution

of the appeal.

Under CCP § 1176, a request for stay of execution must first be directed to the judge who

rendered the judgment. If the stay is denied, the tenant may file "forthwith" a petition for an

extraordinary writ (of supersedeas to stay execution, or of mandate to set aside order denying the

stay) with the appropriate appeals court. CCP § 1176.

Because the stay is equitable relief, in deciding whether to issue a stay, the court will look to

the relative hardships (e.g., will the landlord lose a business opportunity, such as a potential sale, or

will the other tenants be subjected to a continuing nuisance). Although the trial judge has discretion

on whether to grant a stay pending appeal under CCP § 1176, a stay must be granted if the tenant

shows extreme hardship and that the landlord would not be irreparably injured by a stay. CCP §

1176.

The tenant may be able to obtain a stay even without a showing of extreme hardship. See,

e.g., Green v Superior Court (1974) 10 C3d 616, 111 CR 704 (writ issued and stay ordered

(conditioned on payment of rent into court) with no apparent showing of harm because of statewide

importance of issues).

If the trial court denies the tenant's motion to stay the judgment, the tenant may seek a writ of

supersedeas in the appellate court staying execution of the trial court's judgment or a writ of mandate

compelling the trial court to set aside its order denying the stay. CCP § 1176(a); Mehr v Superior

Court (1983) 139 CA3d 1044, 189 CR 138.

The appellate court may issue a temporary stay pending its determination of a petition for

writ of supersedeas or stay during the appeal. Mleynek v Headquarters Cos. (1984) 165 CA3d 1133,

1135, 209 CR 593.

A writ of mandate staying the trial court's judgment will not issue unless a clear abuse of

discretion is shown to appear from the record, i.e., that there were no facts or circumstances to

sustain the trial court's action in refusing the application for the stay. Candeias v Superior Court

(1920) 49 CA 580, 193 P 957. See also Schweiger v Superior Court (1970) 3 C3d 507, 517, 90 CR

729; Kaiser v Hancock (1914) 25 CA 323, 328, 143 P 614. When the trial court has abused its

discretion in denying a stay of execution of judgment pending appeal. See Candeias v Superior Court

(1920) 49 CA 580, 193 P 957;

///

///

///

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E. STAY IS NECESSARY SO PETITIONER DOES NOT LOSE HIS HOME

If this stay and writ are not issued, Defendants may lose possession of their home and the

statement of decision would be moot once they are thrown out of their home. Real Party in

Interest, Greenpoint Mortgage Funding Inc. will suffer no prejudice by the issuance of a stay

pending appeal issued by this court, because Petitioner is prepared to make monthly payments

based upon the reasonable rental value and post an adequate undertaking if required.

In the event that a stay pending appeal is not issued, the property will be lost forever, and

cannot be easily replaced. On the other hand, the subject property will only sit in the non-

performing portfolio waiting to be sold in a market in which homes are not selling at any price,

even if, the lenders were able to make loans on the property. Thus, in a practical sense, if the stay

is granted, Real Party in Interest will at least have the benefit of receiving regular payments from

the Petitioner on the property pending the determination of the appeal

“Prejudice is never presumed; rather it must be affirmatively demonstrated by the

defendant in order to sustain his burdens of proof and the production of evidence on the issue.”

Miller v. Eisenhower Medical Center, (1980) 27 Cal.3d 614, 624, 166 Cal.Rptr. 826.

III. CONCLUSION

This court ordered the trial court to issue a statement of decision based on the

controverted issues submitted to the court during trial as provided for in Code of Civil Procedure

632. Both the trial court and Real Party had the opportunity to object to the previous Writ of

Mandate in case # 2009-00090804 based on this newly asserted reason that Civil Code 2923.5 is

not a controverted issue before the court. Both parties failed to make such an objection and now

should be estopped from doing so in the purported statement of decision issued on June 11, 2010.

Code of Civil Procedure § 1107 allows the respondent or real party in interest, within 5

days after service and filing of the petition, to file a preliminary opposition to the petition, which,

under Cal Rules of Ct 8.490(g), may be filed 10 days after service of the petition and must

include an opposing memorandum and state any material fact not stated in the petition. This

opposition is not considered an answer to the petition but is an attempt to oppose issuance of the

writ when the petition is clearly without merit. The court may issue the alternative writ without

requiring this preliminary opposition. Cal Rules of Ct 8.490(g)(4).

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The respondent or real party in interest, or both, may make a return after the alternative

writ issues, within the time stated in the writ, or if no time is stated, 30 days after the writ is

issued. Cal Rules of Ct 8.490(h). The return may be by demurrer or verified answer or both. Rule

8.490(h). However made, it usually is simply denominated "return."

As stated above, if the trial court believed that the issue regarding Civil Code 2923.5 was

not an issue that could be heard in an unlawful detainer case and therefore the controverted

issues requested to be answered by Petitioner would not be discussed as part of the decision, then

that claim should have been made over a year ago and not when the court is called upon for a

second time to issue a statement of decision on those specific issues including 2923.5.

The trial court should once again be ordered to issue a Statement of Decision as

required by statute. The statement of decision should resolve the controverted issues that

Defendant asked be resolved in both the Trial Brief and the Request for a Statement of Decision

which are stated below:

1. Whether Plaintiff duly perfected title to Defendant’s home after the non

judicial foreclosure sale.

2. Whether Plaintiff could have perfected title to Defendant’s home without

compliance with Civil Code 2923.5.

3. Whether the Recorded Notice of Intention to Preserve Interest in Real

Property due to non compliance with Civil Code 2923.5 which attaches to any

sale of the property is proof that Plaintiff could not have perfected title.

This court should order the trial court not to issue the writ of possession and instead to

determine the fair market value for rent for Petitioner to pay to the court and grant Petitioner’s

request for a stay pending appeal based on rent to be paid to the court.

Respectfully submitted,

Dated: June 18, 2010

By: _____________________________

SALVATORE B. D’ANNA, Pro Per

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VERIFICATION I, SALVATORE B. D’ANNA, declare that I am the defendant in the above entitled action; I have read the foregoing writ of mandate and know the contents thereof. The same is true of my own knowledge, except as to those matters which are therein stated on information and belief, and, as to those matters, I believe it to be true. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: June 18, 2010 By: _____________________________

SALVATORE B. D’ANNA, Pro Per

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN DIEGO, EAST COUNTY DIVISION

GREENPOINT MORTGAGE FUNDING, INC., ) ) 37-2009-00033936-Cl-UD-EC

PLAINTIFF, ) ) ORDER VACATING JUDGMENT

v. ) ENTERED ON JULY 6, 2009; ) STATEMENT OF DECISION;

FRANK D'ANNA and SALVATORE B. D'ANNA,) JUDGMENT; AND ORDER ) DENYING REQUEST TO STAY

DEFENDANTS. ) JUDGMENT PENDING APPEAL

--------------)

II THE COURT FINDS AS FOLLOWS:

II On April 26, 2010, the Appellate Division of the San Diego Superior Court issued an

II Order granting Defendants' petition for writ of mandamus. The appellate division found the

II trial court erred in failing to issue a statement of decision and directed the trial court to vacate

II its judgment and issue a statement of decision. On June 9, 2010, the remittitur issued.

II Prior to the rernittitur being issued by tl"le appellate division, tl"lis court received tl"le

II parties' proposed statements of decision and objections to the opposing party's proposed

statement of decision.

objections.

11/ / / / /

11/ / / / /

The court has reviewed the proposed statements of decision and

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"

II July 6, 2009 Judgment:

II Based on the appellate division's ruling, the judgment entered by this court on July 6,

112009, is hereby vacated.

'I Statement of Decision:

II The above-entitled action came on regularly for a bench trial on June 24, 2009, in

"Department Twelve of the above-entitled court, the Honorable Allan J. Preckel, Judge

II presiding. Plaintiff, Greenpoint Mortgage Funding, Inc., appeared and was represented by

II Ryan Stocking: and Defendants, Frank D'Anna and Salvatore B. D'Anna, were present and

appeared in propria persona. Oral and written arguments were received, evidence was

. presented, the matter was submitted for decision, and the court now makes the following

II Statement of Decision:

II With regard to the issue of restitution and possession of the property located at 644

II HILLSVIEW ROAD, EL CAJON, CA 92020 ("Property"), the court finds as follows:

II 1. Plaintiff obtained title to Property at a Trustee's Sale on February 25, 2009.

2. Title was duly perfected by recording a Trustee's Deed Upon Sale in the Office

I' of the County Recorder in San Diego, California, on March 6, 2009.

II 3. Plaintiff served Defendants a three (3) day Notice to Quit on March 18, 2009.

4. More than three (3) days elapsed and Defendants have failed and refused to

II deliver up possession of the Property.

II 5. Defendants have not shown that Plaintiff's compliance with Civil Code § 2923.5

II is an issue that is properly raised in the summary proceeding of an Unlawful Detainer action.

II Thus, no specific findings of whether or not Plaintiff complied with said code section will be

II made, as it is not a principal controverted issue before this court.

II Judgment:

II Judgment is hereby ordered to be entered for Greenpoint Mortgage Funding, Inc.

II against Frank D'Anna and Salvatore B. D'Anna in the amount of $0.00 past due rent; $0.00

II hold over damages; $365.00 prejudgment costs; and $0.00 attorney fees. Possession of the

II property is. awarded to Plaintiff. All unknown occupants are included in the judgment.

2

.;,..

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II

II Plaintiff has waived all monetary damages.

II Stay of Judgment Pending Appeal:

Defendants filed a letter requesting a hearing for a stay of judgment pending appeal

II pursuant to Code of Civil Procedure § 1176(a) be calendared before the trial court in the

II event judgment is entered on behalf of Plaintiff. The court has read and considered

II Defendants' letter and Defendants' arguments as to why a stay is necessary in this case.

II The court finds that a stay of the enforcement of judgment is not warranted. Accordingly,

II Defendants' request for a hearing and request for a st~ment pending appEtal are

hereby DENIED .

. IT IS SO ORDERED.

DATED:

r J~ OF THE SUPERIOR CO~~

3

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NOTICE OF DEFENDANT’S [PROPOSED] STATEMENT OF DECISION - 1

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Frank D’Anna, Pro Per Salvatore B. D’Anna, Pro Per 3941 ¾ Kenwood Dr. Spring Valley, CA 91977 Telephone: (619) 602-6647 Fax: (619) 374-2268 Email: [email protected]

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO EAST COUNTY DIVISION

Greenpoint Mortgage Funding, Inc.,

Plaintiff,

vs.

Frank D’Anna, Salvatore B. D’Anna

Defendant

) ) ) ) ) ) ) ) )

Case No.: 37-2009-00033936 NOTICE OF DEFENDANTS’ [PROPOSED] STATEMENT OF DECISION Trial Date: June 24, 2009 Judge: Hon. Allan J. Preckel Dept: 12

NOTICE OF DEFENDANTS’ PROPOSED STATEMENT OF DECISION

Frank D’Anna and Salvatore B. D’Anna, Defendants in the above-entitled action hereby

submit the attached Proposed Statement of Decision which states the factual and legal bases for

the trial court’s findings and conclusions regarding the controverted issues decided at trial.

Dated: May 5, 2010 Respectfully submitted, By: ___________________ By: ________________________ Frank D’Anna, Pro Per Salvatore B. D’Anna, Pro Per

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below I served a true and correct copy of this Proposed Statement of Decision on the parties

shown below by placing a true copy in a separate envelope, addressed as shown below;

each envelope was then sealed and, with postage fully prepaid, deposited in the

United States Postal Services at Lemon Grove, California.

Trial Court Judge: The Honorable Allan J. Preckel San Diego Superior Court East Couny Division Dept. 12 250 East Main Street, El Cajon, CA 92020 San Diego Superior Court East Couny Division Dept. 1 250 East Main Street, El Cajon, CA 92020 Counsel for Plaintiff: Brian H. TranTami S. Crosby Bauer Bergstrom & Winters LLP 1231 E. Dyer Road, Suite 100 Santa Ana, CA 92705

Date: May 5, 2010

By: ______________ Frank D'Anna Jr.

CERTIFICATE OF SERVICE OF DEFENDANT'S [PROPOSED] STATEMENT OF DECISION 1

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[Proposed] Statement of Decision - 1

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Plaintiff,

vs.


Defendant

) ) ) ) ) ) ) ) )

Case No.: 37-2009-00033936 DEFENDANTS’ [PROPOSED] STATEMENT OF DECISION Trial Date: June 24, 2009 Judge: Hon. Allan J. Preckel Dept: 12

BACKGROUND

Plaintiff Greenpoint Mortgage Funding, Inc. ("Greenpoint”) filed this unlawful detainer

action on April 22, 2009 after placing a credit bid at the non-judicial foreclosure auction held on

February 26, 2009. Greenpoint seeks a declaration from this court that it is entitled to possession

of the property by virtue of a recorded Trustee’s Deed for the property located at 644 Hillsview

Rd. El Cajon, CA 92020 after a non judicial foreclosure sale under CCP § 1161a. Defendants Frank D’Anna and Salvatore B. D’Anna (“D’Anna”) opposed the unlawful

detainer by claiming as an affirmative defense that Greenpoint had not purchased the property at

a duly elected sale and could not have perfected title to the property due to non-compliance with

the newly enacted Civil Code 2923.5 which required Greenpoint to attempt to negotiate with

D’Anna at least 30 days prior to filing the Notice of Default. Civil Code 2923.5 also required

that Greenpoint sign a declaration stating that they contacted the borrower to assess his financial

situation to try to avoid foreclosure. This matter was originally brought before this court for trial on June 24, 2009. After a

short trial, the matter was taken under submission and subsequently on July 6, 2009 by minute

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order, judgment of possession was ordered for Greenpoint. On July 8, 2009 final judgment in

favor of Greenpoint was entered and mailed to the parties.

Thereafter, on July 16, 2009, D’Anna petitioned the Superior Court Appellate Division

for a Writ of Mandamus to order the trial court to issue a statement of decision addressing all

controverted issues which D’Anna claimed he properly requested per CCP 632.

Greenpoint was asked by the trial court to file a preliminary response to D’Anna’s Writ

of Mandamus. The preliminary response filed by Greenpoint stated that Greenpoint had

complied with Civil Code 2923.5 as stated in their declaration attached to the Notice of Default

by negotiating with D’Anna in July 2006. The Superior Court Appellate Division granted

D’Anna’s Writ of Mandamus and ordered this court to issue a statement of decision.

The fact that a trial court has issued a statement of intended decision does not satisfy the

statutory requirement of Code Civ. Proc., § 632 (either party may orally request statement of

decision prior to time that matter is submitted to court). A court is not bound by its statement of

intended decision and may enter a wholly different judgment than that announced. Neither an

oral expression nor a written opinion can restrict the power of the judge to declare his or her final

conclusion in his or her findings of fact and conclusions of law. The findings and conclusions

constitute the final decision of the court and an oral or written opinion cannot be resorted to for

the purpose of impeaching or gainsaying the findings and judgment. A statement of decision

allows the trial court to review its memorandum of intended decision and to make corrections,

additions, or deletions it deems necessary or appropriate. Such statement thus enables a

reviewing court to determine what law the trial court employed. It is the statement of decision

which allows the court to place upon the record its view of facts and law of the case. Wurzl v.

Holloway (1996, Cal App 2d Dist) 46 Cal App 4th 1740, 54 Cal Rptr 2d 512, 1996 Cal App

LEXIS 649. The findings of fact and conclusions of law constitute the decision. Coveny v. Hale

(1875) 49 Cal 552, 1875 Cal LEXIS 30. A clerk's entry in the minutes is not part of the decision

required by this section. Delger v. Jacobs (1912, Cal App) 19 Cal App 197, 125 P 258, 1912 Cal

App LEXIS 61. A minute entry made shortly after trial by a judge is merely evidence of the

intention of the court as to its decision. Bastajian v. Brown (1941) 19 Cal 2d 209, 120 P2d 9,

1941 Cal LEXIS 462. A minute order is not the decision of the court when findings are required;

the written findings and conclusions constitute the final decision of the court. Perry v. Perry

(1969, Cal App 2d Dist) 270 Cal App 2d 769, 76 Cal Rptr 212, 1969 Cal App LEXIS 1587.

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DISCUSSION

In July 2008, the Governor of California signed into law SB 1137, intended to ameliorate

the deleterious effects on the state economy and local economies and the California housing

market resulting from the foreclosures of residential properties in unprecedented numbers

resulting from subprime lending practices. In SB 1137, the Legislature found and declared (1)

that residential property foreclosures increased seven fold from 2006 to 2007; (2) that more than

84,375 properties were lost to foreclosure in California in 2007; and (3) that 254,824 loans went

into default, the first step in the foreclosure process.

SB 1137 modified the foreclosure process to require mortgagees, beneficiaries, or

authorized agents to provide notice to borrowers and explore options that could avoid

foreclosure. Effective September 6, 2008, a mortgagee, trustee, beneficiary, or authorized agent

may not file a notice of default pursuant to Civ. Code § 2924 until 30 days after the mortgagee,

beneficiary, or authorized agent has contacted the borrower in person or by telephone in order to

assess the borrower's financial situation and explore options for the borrower to avoid

foreclosure.

A notice of default filed pursuant to Civ. Code § 2924 must include a declaration from

the mortgagee, beneficiary, or authorized agent that it has contacted the borrower, tried with due

diligence to contact the borrower, or the borrower has surrendered the property to the mortgagee,

trustee, beneficiary, or authorized agent.

On October 16, 2008 Greenpoint recorded a Notice of Default in the San Diego County

Recorder’s Office. The Declaration of compliance with newly enacted Civil Code 2923.5 was

attached to the Notice of Default stated that Greenpoint contacted D’Anna on July 11, 2006 to

discuss his financial situation to avoid foreclosure.

On February 2, 2009 D’Anna had a Notice of Intention to Preserve Interest in Real

Property recorded in the San Diego County Recorder’s Office due to Greenpoint’s alleged non

compliance with Civil Code 2923.5.

On February 6, 2009 D’Anna sent a Notice of Non Compliance which included a copy of

the recorded Notice of Intention to Preserve Interest recorded on February 2, 2009 to all parties

involved in this matter including two Certified Letters to Greenpoint and two Certified Letters as

well as a fax to the Trustee conducting the non judicial foreclosure sale. All parties sent Notice

of Non Compliance ignored it and proceeded to sell D’Anna’s property on February 25, 2009

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where Greenpoint purchased the property with a credit bid of $204,750.00. Shortly thereafter,

Greenpoint served D’Anna with this unlawful detainer lawsuit filed on April 22, 2009.

Nature of the Case

At issue in this case is the right of possession to the property located at 644 Hillsview Rd.

El Cajon, CA 92020 after a non judicial foreclosure sale under CCP § 1161a. A qualified

exception to the rule that title cannot be tried in an unlawful detainer proceeding [see Evid Code

§ 624] is contained in CCP § 1161a. By extending the summary eviction remedy beyond the

conventional landlord-tenant relationship to include purchasers of the occupied property, the

statute provides for a narrow and sharply focused examination of title. A purchaser of the

property as described in the statute, who starts an unlawful detainer proceeding to evict an

occupant in possession, must show that he or she acquired the property at a regularly conducted

sale and thereafter "duly perfected" the title [CCP § 1161a; Vella v. Hudgins (1977) 20 C3d 251,

255, 142 CR 414, 572 P2d 28 ]. To this limited extent, as provided by the statute, title may be

litigated in the unlawful detainer proceeding [ Cheney v. Trauzettel (1937) 9 C2d 158, 159, 69

P2d 832 ].

Under this section, which was added to the code in 1929, an action in unlawful detainer

by a purchaser at a trustee's sale under a deed of trust is a proper proceeding to remove persons

from the demised premises; and, the remedy being purely statutory, if the determination of the

question of title to realty becomes necessary, the legislature had the right to provide for the trial

of that issue in such a proceeding. Nineteenth Realty Co. v. Diggs (1933) 134 Cal App 278, 25 P

2d 522, 1933 Cal App LEXIS 54.

The title of a purchaser at a sale under a trust deed is involved in an action in unlawful

detainer brought by him to the limited extent that he must prove his acquisition of title by

purchase at the sale, and the defendant may attack the sufficiency of the sale. Cheney v.

Trauzettel (1937) 9 Cal 2d 158, 69 P2d 832, 1937 Cal LEXIS 372; Delpy v. Ono (1937, Cal

App) 22 Cal App 2d 301, 70 P2d 960, 1937 Cal App LEXIS 116; Defenses challenging the

legality of the note, deed of trust, and the sale are proper in an unlawful detainer action under

Code of Civil Procedure Section 1161a(b)(3) ( Seidell v. Anglo-California Trust Co. (1942) 55

Cal. App. 2d 913, 922, 132 P.2d 12 ).

Old National Financial Services, Inc. v. Seibert (1987) 194 Cal. App. 3d 460, 239 Cal.

Rptr. 728 , was a proceeding in unlawful detainer brought by the purchaser of real property at a

trustee's sale under a deed of trust against the former owner. Although affirming a judgment for

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plaintiff for restitution and possession of the property, the court of appeal said that Code Civ.

Proc. § 1161a makes the summary remedy of unlawful detainer available against persons holding

over after the property has been sold under a power of sale in a trust deed (Code Civ. Proc. §

1161a(b)(3)), and that under this provision, the remedy is afforded when the property has been

sold in accordance with Civ. Code § 2924 and the title under the sale has been duly perfected (

194 Cal. App. 3d 460, 464) . The court explained that as a general rule, only claims bearing

directly on the right to possession are involved in unlawful detainer proceedings, but that when

title is acquired through proceedings described in Code Civ. Proc. § 1161a, courts must make a

limited inquiry into the basis of the plaintiff's title ( 194 Cal. App. 3d 460, 465) . The court said

that the plaintiff need only prove a sale in compliance with the statute and deed of trust, followed

by purchase at the sale, and the defendant may raise objections only on that phase of the issue of

title ( 194 Cal. App. 3d 460, 465) . The court added that 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 the summary proceeding for possession, nor concluded by the judgment, and that

further, the pendency of another action concerning title is immaterial to the resolution of an

unlawful detainer proceeding ( 194 Cal. App. 3d 460, 465) . Accordingly, for reasons discussed above, the court finds that Greenpoint has not duly

perfected title to the property located at 644 Hillsview Rd. El Cajon, CA 92020 due to non

compliance with the newly enacted Civil Code 2923.5. The Declaration required by Civil Code

2923.5 which was attached and recorded with the Notice of Default claimed to have negotiated

with Mr. D’Anna on July 11, 2006 which was two years before the enactment of Civil Code

2923.5 and at a time when Mr. D’Anna was not in default and was paying his mortgage on time.

The Notice of Default cannot be recorded until after compliance with Civil Code 2923.5. The

Notice of Default was improperly recorded which makes the non-judicial foreclosure sale void as

a matter of law.

RULING

1. Judgment for defendants. 2. The court declares the rights and obligations of the parties as follows: a. Civil Code 2923.5, effective September 6, 2008, states that a mortgagee, trustee, beneficiary, or authorized agent may not file a notice of default pursuant to Civ. Code § 2924 until 30 days after the mortgagee, beneficiary, or authorized agent has contacted the borrower in person or by telephone in order to assess the borrower's financial situation and explore options for the borrower to avoid foreclosure.

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b. A notice of default filed pursuant to Civ. Code § 2924 must include a declaration from the mortgagee, beneficiary, or authorized agent that it has contacted the borrower, tried with due diligence to contact the borrower, or the borrower has surrendered the property to the mortgagee, trustee, beneficiary, or authorized agent.

c. Code Civ. Proc. § 1161a makes the summary remedy of unlawful detainer available against persons holding over after the property has been sold under a power of sale in a trust deed (Code Civ. Proc. § 1161a(b)(3)), and that under this provision, the remedy is afforded when the property has been sold in accordance with Civ. Code § 2924 and the title under the sale has been duly perfected ( 194 Cal. App. 3d 460, 464) . The court explained that as a general rule, only claims bearing directly on the right to possession are involved in unlawful detainer proceedings, but that when title is acquired through proceedings described in Code Civ. Proc. §

1161a, courts must make a limited inquiry into the basis of the plaintiff's title ( 194 Cal. App. 3d 460, 465) . d. The Declaration recorded by Greenpoint with the Notice of Default stated that Greenpoint contacted Mr. D’Anna on July 11, 2006 to discuss his financial situation and options to avoid foreclosure. Testimony during trial demonstrated that the Mr. D’Anna was not in default or late on any payments in July 2006. e. Evidence during trial submitted by Defendants established that Greenpoint was informed of their non-compliance with Civil Code 2923.5 before the foreclosure sale took place. Greenpoint knew or should have known that they could not have complied with Civil Code 2923.5 two years before the statute was signed into law and at a time when Mr. D’Anna was not in default. f. Compliance with Civil Code 2923.5 is a prerequisite to the filing of the Notice of Default under Civil Code 2924. The Notice of Default cannot be filed under Civil Code 2924 until the requirements included in Civil Code 2923.5 have been completed. Non compliance with Civil Code 2923.5 makes the entire non- foreclosure sale invalid which entitles Defendants to remain in possession of the property at 644 Hillsview Rd El Cajon, CA 92020. g. Greenpoint could not have perfected title by purchasing the property at an authorized trustee sale because the trustee sale was not authorized under the statutes. Therefore, Greenpoint is not entitled to possession of the premises by unlawful detainer pursuant to Code Civ. Proc. § 1161a(b)(3)

and judgment for possession is awarded to the Defendants.

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Pursuant to California Rule of Court 3. 1590(c) this proposed tentative decision will be the statement of decision unless, within ten days, either party specifies controverted issues or makes proposals not covered in this tentative decision.

Dated: _________________________

By: ___________________________ Honorable Allen J. Preckel

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below I served a true and correct copy of this Objection and Opposition to Proposed Statement

of Decision on the shown below by placing a true copy in a separate envelope, addressed as

shown below; each envelope was then sealed and, with postage fully prepaid, deposited in the

United States Postal Services at Lemon Grove, California.

Trial Court Judge: The Honorable Allan J. Preckel San Diego Superior Court East Couny Division Dept. 12 250 East Main Street, El Cajon, CA 92020 San Diego Superior Court East Couny Division Dept. 1 250 East Main Street, El Cajon, CA 92020 Counsel for Plaintiff: Brian H. TranTami S. Crosby Bauer Bergstrom & Winters LLP 1231 E. Dyer Road, Suite 100 Santa Ana, CA 92705

Date: May 21, 2010

By: ______________ Frank D'Anna Jr.

CERTIFICATE OF SERVICE OF DEFENDANT'S [PROPOSED] STATEMENT OF DECISION 1

32

NOTICE OF DEFENDANTS’ OBJECTION TO PLAINTIFF’S [PROPOSED] STATEMENT OF DECISION AND OPPOSITION TO PLAINTIFF’S OBJECTIONS TO DEFENDANTS’

[PROPOSED] STATEMENT OF DECISION.- 1

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Plaintiff,

vs.


Defendant

) ) ) ) ) ) ) ) ) ) ) ) )

Case No.: 37-2009-00033936 NOTICE OF DEFENDANTS’ OBJECTION

TO PLAINTIFF’S [PROPOSED]

STATEMENT OF DECISION AND

OPPOSITION TO PLAINTIFF’S

OBJECTIONS TO DEFENDANTS’

[PROPOSED STATEMENT OF DECISION. Trial Date: June 24, 2009 Judge: Hon. Allan J. Preckel Dept: 12

NOTICE OF DEFENDANTS’ OBJECTION TO PLAINTIFF’S [PROPOSED]

STATEMENT OF DECISION AND OPPOSITION TO PLAINTIFF’S OBJECTIONS TO

DEFENDANTS’ [PROPOSED] STATEMENT OF DECISION.

Frank D’Anna and Salvatore B. D’Anna, Defendants in the above-entitled action hereby

object to Plaintiff’s Proposed Statement of Decision which does not explain the factual and legal

basis for the court’s decision as to each of the principal controverted issues at trial requested

Defendants’ when they asked for the Statement of Decision. Defendants’ also file herewith their

opposition to Plaintiff’s objections to Defendants’ Proposed Statement of Decision.


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Defendants’ Opposition to Plaintiff’s [Proposed] Statement of Decision - 1

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Plaintiff,

vs.


Defendant

) ) ) ) ) ) ) ) )

Case No.: 37-2009-00033936 DEFENDANTS’ OBJECTION TO PLAINTIFF’S [PROPOSED] STATEMENT OF DECISION Trial Date: June 24, 2009 Judge: Hon. Allan J. Preckel Dept: 12

I. DEFENDANTS’ OPPOSITION TO PLAINTIFF’S [PROPOSED]

STATEMENT OF DECISION

Plaintiff’s Proposed Statement of Decision is insufficient to be deemed the decision that

the court can adopt as its statement of decision because it does not address even one of the three

controverted issues needed to be decided that were requested by Defendants at trial.

The statement of decision must resolve these controverted issues that Defendants’ asked

to be resolved in both their Trial Brief and their Request for a Statement of Decision:

1. Whether Greenpoint duly perfected title to Petitioner’s home after the non judicial

foreclosure sale.

2. Whether Greenpoint could have perfected title to Petitioner’s home without compliance with Civil Code 2923.5.

3. Whether the Recorded Notice of Intention to Preserve Interest in Real Property due to non compliance with Civil Code 2923.5 which attaches to any sale of the property is proof that Greenpoint could not have perfected title.

///

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II. OPPOSITION TO PLAINTIFF’S OBJECTIONS TO DEFENDANT’S

PROPOSED STATEMENT OF DECISION

1. Plaintiff objects to Defendants’ Ruling No. 1—Judgement for Defendants because

it “does not correctly reflect the minute order on file”. The minute order on file is not the

judgment of the court and any previous judgment based on that minute order has been vacated by

the Granting of the Writ which ordered the judgment vacated. As previously stated in

Defendants’ proposed statement of decision, “A clerk's entry in the minutes is not part of the

decision required by this section.” Delger v. Jacobs (1912, Cal App) 19 Cal App 197, 125 P 258,

1912 Cal App LEXIS 61.

In addition to the above, the procedures outlined in the California Rules of Court

pursuant to Rule 3.1590 to not apply to trial that are less than 1 day as stated in California Trial

and Post-Trial Civil Procedure Copyright 2009, Matthew Bender & Company, Inc.,.

California Trial and Post-Trial Civil Procedure Copyright 2009 states:

Section 5.33 Applicable Procedures for Statement of Decision Depend

on Length of Trial. The procedures governing statements of decision are determined based on the length of the trial. If the trial takes less than one day, the parties and court need only comply with the basic procedures set out in CCP 632 with respect to the statement of decision. If the trial takes longer than one day, however, the more detailed and formal requirements of Cal Rules Ct, Rule 3.1590(a)-(c) apply [Cal Rules Ct, Rule 3.1590(k)].

Section 5.37 - Once Statement of Decision Is Requested, Other Parties

May Make Proposals As to Content. In trials that are not completed

within one day, any proposals must be made within 10 days of the date the

request for a statement was made [Cal Rules Ct, Rule 3.1590(d), (k)]. No

statute or rule specifies any time limit for such proposals in trials that are

completed within one day, so the time limit in these short trials

presumably is within the discretion of the trial court.

Section 5.38[2] Proposed Statement Not Required in Short Trials. Cal

Rules Ct, Rule 3.1590 is inapplicable to trials completed within one day

[Cal Rules Ct, Rule 3.1590(k); see 5.33], and therefore there is no

requirement that a tentative statement of decision be prepared, filed, or

served in such trials. Conversely, however, there is no statute or rule

prohibiting the court from preparing a proposed decision, designating a

party to do so, or following some or all the procedures specified in Cal

Rules Ct, Rule 3.1590 for longer trials [see 5.33]. Such matters

presumably rest in the court's discretion.

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Section 5.39 Court May Adopt Proposed Statement in Its Entirety,

Reject Portions, or Reject All of It. If a party submits proposed findings

or proposed counter-findings, the court may adopt it in its entirety, reject

portions of it, or reject all of it [see McAdams v. McElroy (1976) 62 CA3d

985, 992, 133 CR 637] .

Section 5.43[4] When Party Raises Substantial Evidence on Material

Issue, Court Must Make Findings on That Issue. The court must make

findings on all material issues raised by the pleading and the evidence [In

re Marriage of Balcof (2006) 141 CA4th 1509, 1531, 47 CR3d 183].

Plaintiff’s objection to Defendants’ Ruling No. 1 is therefore not an issue that may be

properly objected too because the judgment entered by the Clerk based on the previous minute

order has been vacated and the specific California Rules of Court in 3.1590 do not apply to this

case which lasted less than 1 day.

2. Plaintiff objects to Defendants’ Ruling No. 2 by misquoting the decision of the

appellate court in granting Defendant’s Writ of Mandamus. Plaintiff states that “Defendants’

Ruling No. 2 Defendants’ allege among other things, that Plaintiff “could not have perfected title

by purchasing the property at an authorized trustee sale because the trustee sale was not

authorized by the statutes.” Then Plaintiff misquotes the decision of the appellate court in an

attempt to justify their objection. “However, the Superior Court Appellate Division granted

“[Plaintiff’s] request for judicial notice…as to items 4,5, &7 [of the Plaintiff’s Complaint]”.

Plaintiff then goes on to quote section 7 of Plaintiff’s complaint in an unavailing attempt to prove

that Plaintiff duly perfected title by insinuating that the appellate court agreed with this

conclusion when it did not such thing. Plaintiff even attached the order granting Defendant’s

Writ of Mandamus along with various other exhibits including the complaint. The document

that Plaintiff neglected to attach was the “Request for Judicial Notice filed in the appellate court

which had nothing to do with the complaint and the actual complaint was not judicially noticed

by the appellate court because it was not item 4, 5, or 7.

Plaintiff’s Request for Judicial Notice which is on file in both the appellate court as well

as the trial court was submitted and signed on August 7, 2009. Item 1 was the Deed of Trust,

Item 2 was Notice of Default, Item 3 was Trustee’s Deed Upon Sale, Item 4 was Judgment of

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Possession, Item 5 was On-Line Court Docket, Item 6 was the minute order, and Item 7 was the

Notice of Entry of Judgment.

Plaintiff’s objection to Defendants’ Ruling No. 2 fails as not supported by the record

cited. The court should determine whether to impose sanctions for this violation at their own

discretion. Defendants’ believe their proposed statement of decision should be adopted as the

court’s statement of decision in this matter.


VERIFICATION Plaintiff Salvatore D’Anna and Frank D’Anna, declare that we are the Defendants in the above entitled action; We have read the foregoing reply and know the contents thereof. The same is true of my own knowledge, except as to those matters which are therein stated on information and belief, and, as to those matters, I believe it to be true. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: May 19, 2010 By: ___________________ By: ________________________ Frank D’Anna, Pro Per Salvatore B. D’Anna, Pro Per

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Frank D’Anna, Pro Per Salvatore B. D’Anna, Pro Per 3941 ¾ Kenwood Dr. Spring Valley, CA 91977 V: (619) 602-6647 F: (619) 374-2268 June 7, 2010

The Honorable Allan J. Preckel San Diego County Superior Court Department E-12 250 East Main Street El Cajon, CA 92020 Dear Judge Preckel,

I am the Defendant in the Unlawful Detainer case of Greenpoint v. D’Anna, et al. (Case No.: 37-2009-00033936). I am writing to request that the court schedule a hearing on the proposed statement of decision submitted for your consideration. In the alternative, should the court issue a statement of decision in favor of Plaintiff Greenpoint, I request that the court schedule a hearing for a stay of judgment pending appeal. It is my true belief that any final decision in this case would provide valuable guidance and clarity in similar situations that repeatedly confront those facing eviction after a nonjudicial foreclosure sale. Although it is my belief that the current case law does and ought to allow the question of title in unlawful detainer, there is a scarcity of California case law addressing several of the issues to be resolved in these type of cases. Even though no statement of decision or final judgment has been entered at this point, Defendant Frank D’Anna has already received several telephone calls from the reported property manager Jake May who was a witness during the trial of this case. The first call was received about two weeks ago and stated that we would be receiving notice from the sheriff and be evicted shortly. Another call I received just today requested that we allow their appraiser to enter our home to appraise it so it can be sold upon our eviction. All of this contact is improper and unauthorized by any judgment of this court and is contrary to the Order from the Superior Court Appellate Division in Granting my Petition for a Writ of Mandate. This is not a game we are playing, a person’s house is at stake and losing your home is not something to be taken lightly. We did not contest this unlawful detainer case just to get free rent or the house free and clear. To the contrary, we have been and will continue to be willing and able to buy this house outright from the Plaintiff and have also been willing and able to pay monthly rental payments to the court

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The Honorable Allan J. Preckel June 7, 2010 Page 2

while an appeal is pending. We even submitted comparable rentals in the area to give the court an idea of what we should pay to the court pending appeal. In addition, we are still in negotiations to settle our related civil case to save our home and it would be detrimental to that negotiation for us to be thrown out of our home at this time. As stated on page 4:8-10 of the Order Granting Defendant’s Petition for Writ of Mandate under the section titled Disposition:

“Petitioner’s request for a stay pending appeal is denied as premature.

However, the trial court is directed to calendar any such requests to be

heard by the trial court judge in accordance with Code of Civil Procedure

section 1176 if an appeal is filed.”

Defendants will immediately file a notice of appeal if judgment is entered for Plaintiff after a written statement of decision has been made. Therefore, should the court issue such a decision, Defendants request that such a hearing occur before Writ of Possession is issued by the court. The final determination of this case will benefit all future parties involved in an unlawful detainer lawsuit following a nonjudicial foreclosure and any such decision should be made with this in mind. Therefore, Defendants request that the court schedule a hearing on the proposed statement of decisions submitted, or if a statement of decision is written in favor of Plaintiff, that the court schedule a hearing date for a request of stay pending appeal prior to issuing any Writ of Possession. Thank you for your consideration. Respectfully submitted, ________________________ Salvatore B. D’Anna, Pro Per CC: Brian H. Tran Tami S. Crosby Bauer Bergstrom & Winters LLP 1231 E. Dyer Road, Suite 100 Santa Ana, CA 92705

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Certificate of Service - 1

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I hereby certify that I am not a party to the above-entitled case; that on the date shown below I served a true and correct copy of a letter to the Honorable Allan J. Preckel on the parties listed below by placing them in separate envelopes, addressed as shown below; each envelope was then sealed and, with postage fully prepaid, deposited in the United States Postal Services at Lemon Grove, California.

Trial Court Judge

The Honorable Allan J. Preckel San Diego Superior Court East Couny Division Dept. 12 250 East Main Street, El Cajon, CA 92020 San Diego Superior Court East County Division Dept. 1 250 East Main Street El Cajon, CA 92020

Attorneys for Plaintiff

Brian H. Tran Tami S. Crosby Bauer Bergstrom & Winters LLP 1231 E. Dyer Road, Suite 100 Santa Ana, CA 92705 Dated: June 8, 2010 By: __________________ Frank D’Anna Jr.

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REQUEST FOR JUDICIAL NOTICE - 1

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3941 ¾ Kenwood Dr.

Spring Valley, CA 91977

Telephone: (619) 602-6647

Fax: (619) 374-2268

Email: [email protected]

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SAN DIEGO

APPELLATE DIVISION

SALVATORE B. D’ANNA

Petitioner,

vs.

SAN DIEGO SUPERIOR COURT

EAST COUNTY DIVISION

Respondent.

GREENPOINT MORTGAGE FUNDING, INC.

Real Party in Interest

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Appellate Division Case Nos.: Appellate Division Case Nos.: 37-2009-00090804 Trial Court Case Nos.: 37-2009-00033936

PETITIONER SALVATORE B. D’ANNA

REQUEST FOR JUDICIAL NOTICE

FILED JUNE 18, 2010

REQUEST FOR JUDICIAL NOTICE

California Evid C § 452(d) permits the court to take judicial notice of court records. Evidence

Code § 453 requires the court to take judicial notice of the foregoing matters when a party makes

such a request, gives sufficient notice to the opposition to enable it to prepare to respond to the

request, and provides sufficient information to the court to enable judicial notice of the matters

requested. Under the provisions of California Evid C §§ 452 and 453, Petitioner requests the

court to take judicial notice of the following matter: D’Anna v. Superior Court, 37-2009-

00090804, July 16, 2009, San Diego Superior Court Appellate Division, a previous action for

Writ of Mandamus between the same parties.

Respectfully submitted,

Dated: June 18, 2010

By: ________________________


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