Seocwmrxaaunae u 12 13 4 16 17 18, 19 20 21 22 23 24 25 26 27 28 JONAH 8. VAN ZANDT (State Bar No. 224348) severson.com ERSON & WERSON A Professional Corporation One Embarcadero Center, Suite 2600 San Francisco, California 94111 Telephone: (415) 398-3344 Facsimile: (415) 956-0439 ‘Attomeys for plaintiff and respondent HSBC Bank USA, N.A. SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA HSBC BANK USA, N.A., Case No. 113CV258258 Plaintiff, EX PARTE APPLICATION TO EXCUSE HSBC’S LATE FILING OF MOTION TO vs. STRIKE OR TAX COSTS OR, IN THE ALTERNATIVE, FOR LEAVE TO FILE GILDARDO GUZMAN, THE MOTION LATE August 13, 2015, 8:15 am, 5 Defendant. $3002 01964867034. EX PARTE APPLICATION RE HSBC'S MOTION TO STRIKE OR TAX APPEAL COSTS; SUPPORTING MEMOsa aw eon 10 uw 2 13 4 15 16 7 18 19 20 2 22 23 24 25 26 Py 28 EX PARTE APPLICATION Defendant HSBC Bank USA, N.A. (“HSBC”) hereby applies ex parte for an order excusing its late filing of its motion to tax costs or, in the alternative, for leave to file its motion to tax costs late, Good cause exists for this application. Defendant Gildardo Guzman recently filed a /memorandum seeking costs he incurred in successfully appealing the judgment the Court entered against him in March 2014, In that memorandum, Guzman sought $17,240 in expenses for serving |documents he filed in his appeal. Mr, Guzman served the few documents he filed in his appeal by ‘mail. It is not possible that he spent $17,240 to do so. Rather, it appears that Mr. Guzman is attempting to recover his attomey fees through his memorandum of costs, However, attorney fees ‘cannot be recovered through a memorandum of costs on appeal; they can only be recovered through a separate motion for fees. ‘At the time Mr. Guzman filed his costs memorandum, counsel for HSBC, Jonah S. Van Zandt, was preparing for trial in another matter which was scheduled to begin the following week. Due to mistake and excusable neglect, Mr. Van Zandt failed to take appropriate notice of the memorandum of costs and calendar the deadline to file a motion to strike or tax the claimed costs. When Mr. Van Zandt discovered his mistake, he immediately filed this ex parte application, which attaches a motion to tax or strike Mr. Guzman’s costs and was filed two days after the deadline for HSBC to file its motion to strike or tax. Mr. Guzman will not suffer any prejudice if the Court excuses HSBC’s two-day delay in filing its motion, On the other hand, HSBC could suffer irreparable harm if the Court denies this application because if the Court does not consider HSBC's motion to strike or tax, it could possibly award Mr. Guzman over $17,000 in costs to which he is clearly not entitled. For the same reasons, there is good cause to decide this application on an ex parte basis. If is not decided on an ex parte basis, the Court may enter an the issue presented in this applicati order awarding Mr. Guzman over $17,000 in costs that he is not entitled to recover. Such an order would provide a windfall to Mr. Guzman and reward him for his patently unreasonable request of lover $17,000 to mail a handful of documents to HSBC. It would also necessitate further motion som 0180670341. 2 EX PARTE APPLICATION RE HSBC'S MOTION TO STRIKE OR TAN ADPFAL COSTS; SUPPORTING MENOSeow ryaueon i 2 13 4 1S 16 7 18 19 20 2 22 23 24 25 26 27 28 practice by HSBC to relieve itself from the consequences of the excusable neglect of its counsel, costing the parties and the Court needless time and expense. 1202(a) Statement pursuant to Rule Sterling Harwood Law Office of Sterling Harwood & Associates 96 North 3rd Street, Suite 550 E-mail: svharwood|@aol.com Tel: (408) 289-5800 Attorney for Defendant Gildardo Guzman Pursuant to Rule of Court 3.1202(b), HSBC states that it has made no previous ex parte application in this case of the same character or for the same relief. HSBC attempted to ascertain whether counsel for Mr. Guzman would appear at the hearing on this application. As of the time of the filing of this application, counsel for Mr. Guzman had not, responded. This application is based on this application, the memorandum of points and authorities, the supporting declaration of Jonah S. Van Zandt, and on all other documents that have been filed in this matter. DATED: August 12, 2015 SEVERSON & WERSON A Professional Corporation ssorz 0186670341. 3 TEX PARTE APPLICATION RE HSBC'S MOTION TO STRIKE OR TAX APPEAL COSTS; SUPPORTING MEMOu 2 13 4 15 16 7 18 19 20 2 22 23 24 25 26 27 28 MEMORANDUM OF Port 'S AND AUTHORITIES HSBC requests that the Court excuse its late filing of its motion to strike or tax costs defendant Gildardo Guzman seeks on appeal or, in the alternative, grant it leave to file its motion late, In March 2014, the Court entered judgment against Guzman. Guzman appealed and the appellate division reversed. On May 28, 2015, the appellate division issued a remittitur awarding Guzman his costs on appeal. Thereafter, Guzman filed a memorandum of costs." ‘Guzman requested $17,240 for the cost of serving documents he filed in his appeal. Guzman served the handful of documents he filed in his appeal by mail. It could not have cost Guzman $17,240 to do so. (See Van Zandt Decl. Ex. A.) It appears that Mr, Guzman is mistakenly attempting to recover his attomey fees as “costs.” Attorney fees are not recoverable by way of a memorandum of costs.” They can only be sought by way of a separate motion for fees, in which Mr. Guzman would need to establish a statutory or contractual basis for fees and substantiate the amount of fees he seeks. (See ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) HSBC does not believe that Guzman has any entitlement to attomey fees he incurred in his appeal. If he believes otherwise, ‘and wishes to pursue his fees, he must file a motion for attorneys’ fees substantiating his request. He cannot seek his fees through a memorandum of costs. In sum, whether the $17,240 Mr. Guzman seeks for mail service or attorney fees, the request is improper. : It is not clear to HSBC when Mr. Guzman filed his memorandum of costs on appeal and, therefore, whether it was timely filed. Mr. Guzman’s memorandum was due thirty days after May 28, 2015, when the appellate division sent its notice of issuance of the remittitur. (See Cal. Rules of Court, rule 8.891(c)(1).) Because the thirtieth day fell on a Saturday, Guzman’s memorandum was due on Monday June 29, 2015. Guzman did not serve a file-stamped copy of his memorandum of costs on HSBC and HSBC has been unable to obtain one. Hence, HSBC does not know when Guzman filed his memorandum. However, he did not serve the memorandum until July 20, 2015, approximately three weeks after the deadline to file it. Assuming Mr. Guzman filed hhis memorandum near the time he served it, it was filed late. If the Court is inclined to excuse Guzman’s late memorandum of costs, HSBC respectfully requests that it also consider HSBC's ‘motion to tax Guzman’s claimed costs, which is being filed two days late. 2 See Cal. Rules of Court, rules 8.891(4)(2)); 3.1702(b)(1), (€)(1). 5002 01686703411 4 TEX PARTE APPLICATION RE HSBC'S MOTION T0 STRIKE OR TAX APPEAL COSTS; SUPPORTING MEMO12 4 - 16 7 18 19 20 21 2 B 24 25 26 27 28 Good cause exists for this application. Through this application, HSBC asks the Court to excuse the mistake and excusable neglect of its attorney, Jonah S. Van Zandt, which caused HSBC to file its motion to strike or tax costs two days late, As set forth in the accompanying declaration of Mr. Van Zandt, his office received Guzman’s memorandum of costs on the afternoon of ‘Wednesday, July 22. At that time, Mr. Van Zandt was preparing for atrial scheduled to begin in Los Angeles the following Tuesday. Through mistake and excusable neglect, Mr. Van Zandt failed take notice of the memorandum of costs when his office received it. (See Van Zandt Decl., 2.) ‘Asa result, Mr. Van Zandt failed to calendar the deadline for HSBC to file a motion to strike OR tax Guzman’s costs. When Mr, Van Zandt realized his mistake, he immediately prepared and filed this ex parte application, which attaches a copy of HSBC's proposed motion to strike or tax |Guzman’s claimed costs. (See Van Zandt Decl. 3, Ex. 1.) This application was filed two days after HSBC's August 10, 2015 deadline to file the motion to strike or tax costs. “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473(b),) As discussed, HSBC’ failure to timely file its motion to tax Guzman’s costs was due to the mistake and excusable neglect of its attomey, Jonah S. Van Zandt. HSBC respectfully request that the Court excuse this mistake. Critically, Mr. Guzman will not suffer any prejudice if the Court grants this application [and considers HSBC’s motion to strike or tax costs. On the other hand, HSBC will suffer irreparable harm if the Court awards Guzman his requested costs without considering HSBC's motion. As discussed in HSBC’s motion to strike or tax, the costs Guzman seeks are improper and non-recoverable. If the Court awards Guzman his requested costs, HSBC would be required to pay over $17,000 in costs to which Guzman is clearly not entitled. Guzman will receive a windfall ‘based on excusable neglect of HSBC's counsel, which did not prejudice Guzman at all. He will also be rewarded for his patently unreasonable and improper request of over $17,000 for serving a handful of documents by mail som oraaoro1 = 5 ER PARTE APPLICATION RETISBC'S MOTION TO STRIKE OR TAX APVEAL COSTS! SUPPORTING MEMOSoe syaaueeon u 12 3B 14 15 16 7 18 19 20 2 2 23 24 25 26 27 28 Furthermore, the Court has discretion to consider HSBC’s late-filed motion to strike or tax Guzman's claimed costs. Code of Civil Procedure section 3.1700(b)(3) states that a court may extend by 30 days the deadline to file a motion to strike or tax costs. Accordingly, HSBC's two- day delay in filing its motion does not deprive the Court of its discretion to consider the motion. HSBC respectfully submits that justice would be best served by considering HSBC’s motion. ‘A copy of HSBC’s motion to tax Guzman’s costs is attached as Exhibit 1 to the declaration of Jonah S. Van Zandt, HSBC will attempt to file this motion today. Depending on whether the motion is accepted for filing, and for the reasons set forth above, HSBC requests that the Court either excuse HSBC's late filing of the motion or grant it leave to file the motion late, DATED: August 12, 2015 SEVERSON & WERSON ‘A Professional Corporation Arox intiff Umetrespondent HSBC Bank 0020180467036) 1 6 TEX PARTE APPLICATION RF HSTEC'S MOTION 10 STRIKE OR TAX APPEAL COSTS; SUPPORTING MEMOwe yaawaeen 10 n 12 13 14 1S. 16 "7 18 19 20 21 2 2B 24 | 26 yy 28 DECLARATION OF JONAH S. VAN ZANDT 1, Jonah Van Zandt, declare as follows: 1. Laman attorney duly licensed to practice law in the state of California, 1am an associate with the law firm of Severson & Werson, counsel of record for defendant HSBC Bank USA, N.A. (“HSBC”) in this matter. I make this declaration in support of HSBC’s ex parte application to excuse its late filing of its motion to strike or tax the costs defendant Gildardo Guzman seeks on appeal or, in the alternative, to permit HSBC to file its motion late. 2, My office received Mr. Guzman’s memorandum of costs on appeal by mail on Wednesday July 22, 2015. Severson & Werson is also counsel for record for Wells Fargo Bank, IN.A. (“Wells Fargo”) in a matter pending in Los Angeles Superior Court titled Valdes v. Citibank, N.A. etal. (Case No. BC495517). At the time my office received Mr. Guzman’s memorandum of costs, I was preparing for trial in Valdes, which was scheduled to begin the following Wednesday. [Because I was focused on preparing for trial, I failed to take appropriate notice of Mr. Guzman’s ‘memorandum of costs when it was filed. Moreover, my secretary had recently started at our firm and she was unfamiliar with our calendaring procedures. As a result neither I nor my secretary calendared the deadline for HSBC to file a motion to tax or strike the costs Mr. Guzman seeks. 3. HSBC's deadline to file a motion to strike or tax the costs Mr. Guzman seeks on appeal was August 10. On August 11, in reviewing my emails, I noticed that my officer had received Mr, Guzman’s memorandum of costs. I reviewed it and saw that Mr. Guzman is seeking $17,240 for serving documents he filed in this case. Upon reviewing the file, I discovered that Mr. Guzman had served all the handful of documents he served in his appeal by mail and, hence, that he could not have incurred $17,240 in expenses for serving his filings. | then calculated the deadline and leamed that the deadline for HSBC’s motion to strike or tax costs was August 10.1 immediately prepared this ex parte application and a motion to strike or tax Mr. Guzman’s claimed costs. A copy of the motion to strike or tax the costs and my supporting declaration is attached as Exhibit | to this declaration, 4. take full responsibility for failure to take proper notice of Mr. Guzman’s memorandum of costs when he filed and apologize to the Court and Mr. Guzman for the ss002 0196:467034.1 1 TEX PARTE APPLICATION RE TISBC'S MOTION 10 STRIKE OR TAX APREAT. COSTS; SUPPORTING MEMOwear] aueon 10 n 12 13 4 15 16 7 18 19 20 2 22 23 24 25 26 27 28 inconvenience caused by this application. {respectfully submit that my failure to take notice of Mr. Guzman’s memorandum when it was filed was the result of mistake and excusable neglect by me and that my client should not be required to pay costs that Mr. Guzman is not entitled to recover due to my two-day delay in filing the motion to strike or tax the costs sought by Mr. Guzman, 5. Good cause exists for this application. Unless the Court excuses HSBC's late filing of its motion to strike or tax Mr. Guzman’s claimed costs, the Court may award Mr. Guzman costs which are patently unreasonable and to which he is clearly not entitled. Hence, unless the Court [considers HSBC's motion to strike or tax, HSBC could be ordered to pay over $17,000 in ]unwarranted “costs.” HSBC would suffer ireparable harm based on the mistake and excusable neglect of its counsel, which caused a two-day delay in HSBC filings its motion to strike or tax costs and which did not prejudice Mr. Guzman in any way. 6. I gave notice to counsel for Mr. Guzman by email before 10 a.m. on Wednesday, ‘August 12, 2015 that HSBC intended to apply ex parte for the relief it requests in this application. In my email, I informed counsel for Mr. Guzman of the date, time and place of HSBC's application and the nature of the relief sought. In my notice, I asked counsel for Mr. Guzman to let me know if he intended to appear. As of the time of the filing of this application, I had not heard back from counsel for Mr. Guzman. I declare under the penalty of perjury that the foregoing is true and correct. Executed this 12th day of August, 2015, at San Francisco, California, e ZY] ce sso 186670341. 8 EX PARTE APPLICATION RE HISBC'S MOTION TO STRIKE OR TAX APPEAL COSTS; SUPPORTING MEMOEXHIBIT 1JONAH S. VAN ZANDT (State Bar No. 224348) yz@severson.com us 12 25 IRSON & WERSON ‘A Professional Corporation a cout One Embarcadero Center, Suite 2600 . = San Francisco, California 94111 = Telephone: (415) 398-3344 3 ae Facsimile: (415) 956-0439 & Attorneys for plaintiff and respondent HSBC Bank USA, N.A. SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA HSBC BANK USA, N.A. Case No. 113CV258258 Plaintiff, NOTICE OF MOTION TO STRIKE OR TAX COSTS AND SUPPORTING vs. MEMORANDUM OF POINTS AND AUTHORITIES GILDARDO GUZMAN, September 25, 2015 Defendant. 9:15 a.m. 5 NOTICE OF MOTION Please take notice that on the above-captioned date and time or as soon thereafter as ‘counsel may be heard in the Department 5 of the above-entitled Court at 191 North First Street, ‘San Jose, California, plaintiff HSBC Bank USA, N.A. (“HSBC”) will move the Court to strike or tax the costs claimed by plaintiff Gildardo Guzman in his memorandum of costs on appeal filed on lor about July 20, 2015. ‘This motion is based on the ground that the memorandum of costs seeks reimbursement of (@) costs not permitted by California Rules of Court, rule 8.891(d)(1) and other applicable law, and (b) excessive and unreasonable costs, This motion is brought under California Rules of Court, rules 3.1700 and 8.891. ‘The items objected to and the reasons for the objection are stated in the following table: som orenson7s2.1 NGTICE OF MOTION TO STRIKE AND TAX APPEAL COSTS, SUPPORTING MEMOee aan eon 10 12 13 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 Item Objected To Reason For Objection 7, Expenses of servi $17,240 No verification, not costs permitted under Rule 8.278 or applicable law, excessive amount. ‘This motion is based on this notice of motion, the accompanying memorandum of points jand authorities, HSBC’s memorandum of costs on appeal, and all other papers and records on file in this action, DATED: Angust 12, 2015 SEVERSON & WERSON A Professional Corporation sso o1nsacos0 4 22: NOTICE OF MOTION TO STRIKE AND TAX APPEAL COSTS; SUPPORTING MEMO |MEMORANDUM OF POINTS AND AUTHORITIES Defendant Gildardo Guzman (“Guzman”) appealed from an unlawful detainer judgment the Court entered against him in March 2014. The appellate division of this Court reversed the judgment. On May 28, 2015, it issued a remittitur awarding Guzman his costs on appeal. Thereafter, Guzman filed a memorandum of costs on appeal. HSBC moves to strike or tax Guzman’s claimed costs. Although four of the five items in Guzman's memorandum appear reasonable, the fifth is not, Specifically, Guzman seeks to recover $17,240 for serving the documents he filed in his appeal. Guzman served the few documents he filed in this case by mailing them to HSBC. It could not have cost Guzman $17,240 to do this. Moreover, Guzman has failed to to substantiate or explain this exorbitant request, He has simply demanded a cost that, on its face, is patently excessive, Though not clear, it appears that Guzman is mistakenly seeking to recover his attomey fees ‘as costs on appeal. Attomey fees are not recoverable as costs on appeal and, therefore, cannot by sought in a memorandum of costs. Rather, a party secking fees must file a separate motion establishing both the party's entitlement to fees and the reasonableness of the amount of fees requested. HSBC does not believe that Guzman has any entitlement to attorney fees he incurred in his appeal, If he believes otherwise, and wishes to pursue his fees, he must file a motion for attorneys” fees substantiating his request. He cannot seek his fees through a memorandum of costs. For all these reasons and those discussed below, the Court should strike or tax Guzman's request to recover $17,240 for service expenses. I Guzman Has Failed To Prove That He Expended $17,240 Serving ‘Documents In His Appeal. Ordinarily, on a motion to tax costs, the moving party bears an initial burden of showing ‘that an item is not properly chargeable or is unreasonable. (See Nelson v. Anderson (1999) 72 Cal. App.4th 111, 131; Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698- 699.) However, the moving party bears that burden only if the items in the memorandum of costs “appear to be proper charges.” (Ibicl) Notice of Motion to Tax Costs; Memorandum of Points and Authoritieswie ww Sow aa 12 13 4 15 16 7 18 19 20 2 22 23 24 25 26 27 28 As discussed above, Guzman's request for $17,240 for “expenses of service” does not ‘appear to be a proper charge because it could not have cost Guzman $17,240 to serve a handful of documents by mail. (See Van Zandt Decl. Exs. A, B, C.) Because the charge does not appear to be proper, Guzman bears the burden of proving it, Guzman has failed to carry this burden. His memorandum of costs includes no explanation of the $17,240 he seeks to recover or documentation substantiating this amount, Moreover, even assuming that HSBC had the burden to establish that this cost is unreasonable, it has done so. As discussed, Guzman served his filings by mail. (See Van Zandt Decl. Exs. A, B, C.) It is not possible that it cost Guzman over $17,000 to mail a handful of documents to HSBC. In sum, the $17,240 Guzman seeks to recover for service costs is does not appear to be a proper charge and Guzman has failed to provide support for it, The Court should strike this purported cost or, in the alternative, reduce it to an amount approximating the actual cost to Guzman to serve his filings by mail. (See Nelson v. Anderson, supra, 72. Cal.App.4th at p. 132 [reducing request for service costs where prevailing party failed to show that the requested amount ‘was reasonable}.) I, To The Extent Guzman Seeks ‘To Recover His Attorney Fees, His Request is Improper. Unless the court orders otherwise, an award of costs does not include attorney fees. (See Cal. Rules of Court, rule 8.891(d)(2)). Hence, attorney fees may not be recovered through a ‘memorandum of costs. (See ibid.) They may only be recovered through a separate motion for fees, (See ibid ; Cal. Rules of Court, rule 3.1702(6)(1), (€)(1).) Though not clear, it appears that the $17,240 Guzman seeks to recover in his memorandum ‘of costs is for attorney fees.' The appellate division did not order that Guzman recover attorney ‘The Judicial Couneil form that Guzman used to submit his memorandum of costs on appeal includes a line item for “Expenses of service.” (See Van Zandt Decl. Ex. D.) It is under this, line item that Guzman seeks to recover $17,240. Though not clear, Guzman apparently believes that “Expenses of service” refers to expenses he incurred for legal services. But as discussed in the (footnote continued) 2 Novick OF MOTION TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIESfees. (See Van Zandt Decl. Ex. E.) So Guzman cannot recover fees through a memorandum of costs. If he wishes to seek his fees, Guzman must file a separate motion establishing his entitlement to fees and substantiating the amount sought. (See ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) In sum, to the extent Mr. Guzman is seeking attomey fees as “costs” through his memorandum of costs on appeal, the request should be stricken, m1. Conelusion For the reasons stated above, the Court should strike or tax Guzman’s request for $17,240 for the cost of serving filings in his appeal. DATED: August 12, 2015 SEVERSON & WERSON A Professional Corporation accompanying text, attorney fees are not recoverable by way of a memorandum of costs. “Expenses of service,” clearly refers to expenses incurred serving documents, not to attorney fees. 3 "NOTICE OF MOTION 10 TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIESJONAH S. VAN ZANDT (State Bar No. 224348) |ivz@severson.com ‘EVERSON & WERSON ‘A Professional Corporation ‘One Embarcadero Center, Suite 2600 San Francisco, California 94111 ‘Telephone: (415) 398-3344 Facsimile: (415) 956-0439 Atlomeys for plaintiff and respondent HSBC Bank USA, N.A, SUPERIOR COURT HSBC BANK USA, N.A., Plaintiff, vs. GILDARDO GUZMAN, Defendant. SED Pied AUG 12 715 eo0Mt a OF CALIFORNIA COUNTY OF SANTA CLARA Case No. 113CV258258 DECLARATION OF JONAH S. VAN ZANDT IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS AND SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES September 25, 2015 9:15 a.m. 3 Date: Ti Dept: ‘VAN ZANDT DCL. ISO MOTION TO STRIKE OR TAX COSTSema au 10 u 2 13 4 15 16 7 18 19 20 a 2 23 4 25 26 27 28 1, Jonah Van Zandi, declare as follows: 1. Taman attorney duly licensed to practice aw in the state of California. I am an associate with the law firm Severson & Werson, counsel of record for plaintiff HSBC Bank USA, N.A. (“HSBC”) in the above-referenced action. I submit this declaration in support of HSBC’s motion to tax costs. 2. Attached hereto as Exhibit A is a true and correct copy of defendant and appellant |Gildardo Guzman’s notice designating the record on appeal in Mr. Guzman’s appeal from the judgment entered against him on March 28, 2014 in the unlawful detairer action pending in this Court, Case No. 113CV258258. The proof of service for Exhibit A reflects that the notice was served by mail on HSBC. 3. Attached hereto as Exhibit B is a true and correct copy of Mr. Guzman’s opening brief in support of his appeal from the judgment entered against him in the unlawful detainer action. The proof of service for Exhibit B reflects that it was served by mail on HSBC. 4, Attached hereto as Exhibit C is a true and correct copy of Mr. Guzman’s reply brief in support of his appeal from the judgment entered against him in the unlawful detainer action and objection to HSBC’s motion for judicial notice. The proof of service for the Exhibit C reflects that it was served by mail on HSBC. 5. Attached hereto as Exhibit D is a true and correct copy of Mr. Guzman’s memorandum of costs on appeal. 6. Attached hereto as Exhibit E is a true and correct copy of the appellate division's remittitur in this case awarding Mr. Guzman his costs on appeal. I declare under the penalty of perjury that the foregoing is true and correct. Executed on this 12th day of August, 2015, at San Francisco, California. ‘VAN ZANDT DECL. ISO MOTION TO STRIKE OR TAX COSTS:EXHIBIAPP-00: flaw Office of Sterling Harwood and Associates 196 North 3rd Street Suite 550 San Jose, CA 95112 reurvanevo: 408-289-5800 xno: 408-273-6442 ava cone ne Jroner Fontes” Gilardo Guzman SUPERIOR COURT OF CALIFORNIA, COUNTY OF Santa Clara Munaromes 191N. First Street Jemawozecoce. San Jose, CA 95113 PiainitiPetioner Gilardo Gueman DefendenvRespondent! HSBC BANK USA “APPELLANT'S NOTICE DESIGNATING RECORD ON APPEAL | Super ut Gao Nombar (UNLIMITED CIVIL CASE) 1-13-CV-258258 eer our of pea ee Number iam 04/28/2014 Notice: Please read form APP-001 bofore completing tis form, This form must be led in the superior Coun, not in the Court of Appeal. 1. RECORD OF THE DOCUMENTS FILED IN THE SUPERIOR COURT {elect o use the faowing method of provcing the Court of Appeal wih a record ofthe docurens fod Inthe superar chock, b, 6d, 076 and filin any cequrd formation: 8. Did) Acer’ wansept unr rl 8.122 (You must chock (1) or (2) and fou the clerk's ranser section on page 2 of ls form) (1) twat pay te suporor cout clerk for tis tensor mysel when | recive tho clerk’ estimate ofthe cos ofthis transept. | understand that donot pay fortis Wansert. wl ot bo prepard and provided toto Cou of ‘App00L (2) CE | request that tho cor’ ranscpt be provided to ma at no cost because | cannot toro pay tis cost. have ‘tached te folowing documont (chock a 2) (0) 7) Anoréer granting a waive of court foes and costs under rula 350 at seq oF (©) [I An epplicaton for a waiver of court fees and costs undar le 350 et sea. (Use Request to Walve Court Fees (lrm FW001) to prepare and fi his application ) b. (2) Anappendix under nie 8.124 & [—) Tho original superior court file under rule 8.128. (NOTE: Local rules in the Court af Appeal, First, Third, Fourth, and Fifth Appaiiate iste, permit partes fo stpuate fo use the original superior court fle Instead ola clerk’ transcript: you may ‘select this option f your appeals in one of these dlstnets and all he ports have spuiated fo use the origina superior court fe nsteed ofa clerk's transcript inthis case, Altach a copy ofthis spulaton.) 4. (1 Amagreod statement under rue 8.136. (You must complete tem 26(2) below and atach to your agreed statement copies. ‘of al the documents that aro required o bo included in the clarks ranserpt. Those documents ar stad in rule 8.194).) ® (7 Asaties statement under rule 8.137. (You must complete item 2b(3) below and attach to your proposed statement on ‘appeel copies of ll the documents tat are required fo be included in the clerk's ranscript. Those documents av Ista in uo 8.137(0)3)) 2. RECORD OF ORAL PROCEEDINGS IN THE SUPERIOR COURT | elect to proceed: 2 [] WITHOUT 8 record of the oral proceedings in the superior court. | understand tha without record ofthe ora proceedings inthe superior cout, the Cour of Appa wil not beable to consider what was ssid during those proceedings in determining wholhar an error was made inthe supetior cour proceeding. "SEESE IEEE APPELLANTS NOTICE DESIGNATING RECORD ON APPEAL... ais {Unimited Civil Case)APP-003 CereNere: HSBC Bank USA v. G, Guzman Speer Cou Cave Number 4-13-CV-258258, ' CC) WIT the folowing record ofthe oral proceedings inthe superior our: (1) 2) Arepenter's transit under rle 8.130. (You must fi ou the ropetor's ranseritsecton en page 3 ofthis form.) rave (chock al st eoply: (2) CX] Deposited tne approximate cost of ranscribing the designated proceedings wth this noice as provided in ro 8.130(0X3)- (©) (1) Attached 2 copy of Transcript Reimbursement Fund application fled undo rule 8:130(6X1). (©) Atacned te repre writen wae te depot ck thar 9 — [) allot the designated proceedings. (© puter on deste pocaedng. (6) (0 Ache cred vac under 8.130043 (2) (=) Anagresd statement. (Chack and complete either (8) or (b) below.) (©) ‘hae tached an ared store oi oto, (©) 5) Alte parties nave agra in wing (stipulated) o ty to ogree on a stalamont. (You must attach a copy of {his stipulation fo this notice.) understand that, within 40 days after I fle the nolice of appeal, ! must fle tlhe the agreed statement or a notes inceating the partis were unable to agree ona satement end 8 new notice designating the record on appeal ©) () Asetted statement under rue 8.137. (You must atech the motion required under rule 81378) fo this frm) 3. RECORD OF AN ADMINISTRATIVE PROCEEDING TO BE TRANSMITTED TO THE REVIEWING COURT 1 1 roquest tat the clerk transmit fo the reviewing cour under rue 8.123 the racord of the following administrative proceeding ‘hat was admited into evidence, refused, or lodged inthe superior cout ave the te and dete or dales ofthe administrative proceeding) “Tilo of Raminiatrative Proceeding ] Date or Dales: 4, NOTICE DESIGNATING CLERK'S TRANSCRIPT (You must complote this sation Ifyou checked it ta. above indcaing tat you eect to use a clerk's trnserpt asthe recerd of the documents filed in the superir cour.) '& Required documents, The clerk wil automatically include the folowing ems in tho cork’ transit bul you must provide the date each document vas fled or, Ut Is not avaiable, the date the document was signed. Document The and Deseriaion |] (aeons J] ) EE og / 29/201 2) CREAR RTA - 5/30 doles. © eT. Ud — Compleat 03 /Ok/201y to 6 iain © ARATE \ LETT ED “APP Ret 1, 2013) APPELLANT'S NOTICE DESIGNATING RECORD ON APPEAL Peae tot (Unlimited Civil Case)‘APP-003 Soper Court Case Number [beet HSBC Bank USA v. G. Guzman 1-13-CV.258258 4” NOTICE DESIGNATING CLERK'S TRANSCRIPT 5. Additional documents. ('you want any documents from the syperor cour proceeding In adn fo the tems sted ine ‘above foe included in the clerk's transerpt, you must idly those documents here ) (GZ 1 request that the clerk Include the folowing documents om the superior cout proceeding in the transrpt (You must Identify each document you went Inte by ttle and provid the dat t was fied er, W What isnot avetabe tho dato the document was signed) (_Broeurmont Fite ane Deserition —____} [bate of Fins] © Unlawful Detainer Complaint 12/26 (2.0/3 @ Defendant's Response BL 0rf aaley. (10) om (12) See additionst pages. Exhibits tobe Included in clerk's transcript. 1 request thatthe car inctude Inthe transcript the following exhibits that were admit In evidence, refused, or lodged Inthe superior court for eech exhibit give the extiit number, such as Panis #1 or Defendant's , and abot escrito ofthe exhib. Inalcate wiether or ool the cour admitted tvs exhibit ino evidence): (CexnibieRturber] Britton) [ait Reo) |] o ® ° ” o See exetion! pages ‘5. NOTICE DESIGNATING REPORTER'S TRANSCRIPT Se cr cntoge nb ot coat Poss rear eyo mp) fhe et pnp boas ae) 1. [request that the reporters provide (check ono): (1) (2) Mycopy of tre repoterstranscrit in paper format (2) CI Mycopy ofthe reporters ransaipt in computor roadeble formal (2) My copy of tne reporter's transept paper format anda second copy in compute-readable format. (Code OW. Proc, § 271; Cal, Ries of Court, rie 8.430(0().) 1 a2 ‘APPELLANT'S NOTICE DESIGNATING RECORD ON APPEAL ae (Unlimited Civil Case)‘APP-003, Spoor Gout Cane Number [CeteNeme: HSBC Bank USA v. G. Guzman 4-13-CV-258258 1 Preseadings {request that the folowing proceedings in he super cour be Included Inthe reporters transcript. (You must kenty each proceeding you want incoded by its dele, the dopariment in which it ook place, description of the proceedings—for exemple, {ho examhaton of furrs, motions before t,he taking ef lstiony, or he gvng of xy Inrucons—and, you know he name ofthe court rporer wi recorded tne proceedings). [Cats] [Boparinan) [Faria Day] [Bane a Frocetings —] [—Resarore name —] 3/28/14 4 Full TRIAL Marcia Hunter @ ®) o © © 0 [506 ecsational pages. & The proceedings designated in S> GE) incite — [] donot include __—_allof the testimony inthe superior cout. tthe designated proceedings 00 NOT include al ofthe testimony, state the pants that you Intend to ral on eppesl (uo £&.120(@)(2) provides that your pea wil be lined (o these pons unless, on mation, the reviewing court permits othoruse). ate: May 28, 2014 Sterling Harwood 7 ToC TOT FRITH aw "APPELLANTS NOTICE DESIGNATING REGORO ON APPEAL reat (Unlimited Civil Case)s Pos.040 ‘AOREY OR PARTY WNDU ATOR fo Ba Ba or Ten coomr ear STERLING HARWOOD ‘SBN: 194746 [LAW IOF STERLING HARWOOD & ASSOCIATES 96 N. 3rd STREET, STE 550, SAN JOSE, CA 95112-5572 ‘408-289-5800 sary pony, 408-273-6442 ne s00Reonnet SvNarwood | @aol.com _Ariomev Fx nae? GILDARDO GUZMAN [SUPERIOR COURT OF CALIFORNIA, COUNTY OF ‘teeersoonese: 151 N. Pst Stok ‘arrmonr cost: San Jose, CA 95113 ouscnnne Civil Court PLANTIFFIPETITIONER: GILDARDO GUZMAN ‘SANTA CLARA JDcFENOANTIRESPONDENT: HSBC BANK USA Cann PROOF OF SERVICE—CIVIL 1-13-cVv-258258 1 By overnight Detory ance eymessengerservice CJ ayrex J] by Eleconte Serica oer (Do not use this proof of service to show sarvce of a Summons and complaint) 1. Althe time of service I was over 18 yeers of age and not a party to tis action, 2, My residonce or business address I: 96 N. 3rd Street, Suite 550, San Jose, Ca 95112-5572 3.) The tax rumber or electronic service address fom which | served the documents Is (complete if service wes by fox or electronic sence): 4. On (dete): 05/30/2014 | served the folowing documents (speci: Appellant's Notice Designating Record on Appeal (APP-003) [J The documents ae sted in the Attachment fo Proof of Servce-Gil (Documants Served) (form POS-040K0)). 5. I served the documents on the person or persons below, 28 flows: , Name of person served: Scott M. Harris, Esq. 1b. LJ) (Complete it service was by personal service, mai, ovemight delivery, or messenger service.) ‘Business or resident address where poraon was sorved: HARRIS, ROSALES, & HARRIS, 351 S. MARRY ST. PLEASANTON, CA 94566 € £ (Compietot sovvice was by fax or electronic service) (1) ex number or elactronic service eddress whore person was served: (2) Time of serdce: (1 The names, addresses, and ther pplicable Information about persons served is onthe Altechment fo Proof of ‘Servo Ci (Persons Served) (form POS-O40(P)). 6-The dca wre ened he long ean eh 1 TE By puaorl sovee, ponent ered be eczars apart a be aden sin ans (0) Fora TD ey pttyrcsete by an storey, dlvry was made\o he tome} ora ha atom oes by leaving the Sacer, pete lat ee al ryt ore egw ha cae oe ren Gee ease hol ne ata mannose avg) pu ove wan nace chageat ne es ra ear oa que maa tone pono mal unger on Byer oe Sonera tcheil ete manos me Sea bare eae PROOF OF SERVICE—CML Raa eae (Proof of Serica) =ePos.040 Guzman v. HSBC BANK USA 4-19-0V-258258 6.6, [Z1By Untied States mal | ondosed he documens na sealed envelope wr package wdresed tote parson altho ‘addresses in item 5 and (specify one): eed ete pen (1) 2) deposited the seeted envelope with the United States Postal Service, with the postage fully propeld. bled ne anveope fr caleton and meng flog ou onoay busines paces. 1am ody ort wih is busiest preie fr easing and pocsang coespancence fr ating, On sare Gy tl ‘oreopondenc spaced te eecson and men, ts coponte nit orn cre of bsrose wie Unto Sates Pstl Sevna,nasotsenvoape wth porage My Pepa 1am resent or ampoyed inthe county wher th mating oxed. The envelop or package wis lca nthe al (envend sta © [By ovemight every. Loncosed ne comments nan envelope of pachge povided by sn ovrigh era Sara andedcreoes one prene sth esrnsos nom placa Bs srvatpa petepe Tt atocton ‘and overight delvery alan offic ora regulary Ulzed crop box ofthe overnight dalvery carer. 4.2] By messenger sorvce. | served the documents by lacing them n en envelope or package aderessed to the persons altho adresses sted in item 5 and providing them oa professional messanger surce for sorvica (A declaration by the messenger must accompany this Proof of Sarvco or be contained in tho Dactaraton of Messenger below.) ®.() By fax transmission, Based on an agreement ofthe pats to accept sarice by fax transmission, faxed the documents fo the persons at the fax numbers lst in tom 6. No error was reported by the fax mechine thet | used. A copy of bo record ofthe fox tansmission, which | pinted outs atached. {. [2 By electronic service. Based on a court order or an agreement ofthe partes to accept elactonic service, | caused the ‘documents tobe Sant othe parsons atthe electronic service address listed In arn 5. | declore under ponalty of peuy under the laws ofthe Stats of California tha the foregoing Ise and correct. oe oe ,_ Qa Se ) | ora oy eee ie DECLARATION OF MESSENGER [By personal service. | personally delvered the envelope or package received from the dectarant above othe persons atthe ‘adurensesIslod in tem 8. (1) Fora party reprosantod by an alomey, dalvary was made othe attorney or atthe altrmey's Office by leaving he documents in an envelope oF packape, which was cleat iabeled to ident the attomey being served, ‘with a reception or an icivdualn charge ofthe office, Detwoen the hours of nine inthe morning end fe nthe evening. (2) For a party, delvery wes made o the party or by leaving the documents atthe party's residence wth some person nol younger ‘han 18 yeors of age between the hours of eight a the morning and ex In the evening ‘At the time of service, wes over 18 year of en6. Iam nota party tothe above-referenced legs! procescing. | served the envelope or package, os stated above, on (te): | dectre under pensly of perury under the laws of the Stato of Catfomia thatthe foregoing is true and corec. Date: ‘nto oso ocr feptet, oan TT PROOF OF SERVICE—CIVIL {Proof of Service)| IBIT BSUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA APPELLATE DIVISION 744 Case No. 114-AP001470 AS HSBC BANK N.A., Trial Ct, No. 113 CV 258258 Plaintiffs and Respondents, e2VED NOV 10-2014 GILDARDO GUZMAN, oe Defendant and Appellant. Appeal from a Judgment Of ‘The Superior Court, County of Santa ‘The Honorable Derek Woodhouse, Judge APPELLANT'S OPENING BRIEF STERLING HARWOOD, SBN 194746 Law Office of Sterling Harwood & Associates 96 North 3" Street, Suite $50 San Jose, CA 95112-5572 ‘Telephone: 408-289-5800 Attomeys for Defendant/Appellant Gildardo Guzman ——————————EE “a APPELLANT'S OPENING BRIEFCERTIFICATE OF INTERESTED PARTIES, ENTITIES, & RELATED CASES The undersigned certifies that other than Appellant, Gildardo Guzman, no parties or entities have an interest in the outcome of this appeal. The undersigned certifies further that no other case is related to this case. Dated: October 27, 2014 or flakes Poerd Sterling Harwood, Declarant and Attomey for Defendant/Appellant APPELLANT'S OPENING BRIEFCERTIFICATE OF COMPLIANCE Pursuant to rule 8,204(c) of the California Rules of Court, I hereby certify that this brief contains 5,872 words, including footnotes. In making this, certification, I have relied on the word count of the computer program used to prepare the brief. October 27, 2014 Heb Apreerd Sterling Harwood, Declarant and Attorney for Defendant/Appellant i APPELLANT'S OPENING BRIEFTABLE OF CONTENTS: ‘TABLE OF AUTHORITIES INTRODUCTION . STATEMENT OF CASE ... 3 ‘A. Nature of Action and Relief Sought .. 3 B. Summary of Material Facts 4 C. Judgment and Statement of Appealability 3 D. Standard of Review .... 5 FACTS ARGUMENT PLAINTIFF FAILED TO MEET ITS BURDEN OF PRODUCING EVIDENCE .. ‘A. The Elements of Plaintif?’s Case Derive From Two Statutes: C.C.P. § 1161aand C.C. § 2924. B. PlaintiffIs Required To Demonstrate Strict Compliance With These Statutes ... C. Plaintiff Failed To Present Evidence The Sale Was Held “In Accordance With” Civil Code § 2924 .... D. Plaintiff Failed To Present Evidence That Its Title Has Been “Duly Perfected” ... E, Plaintiff's Failure to Present “Clear And Positive” Evidence of Assignment or Overcoming the Gap In Title Is Fatal To Plaintiff's Cause of Action F, The Trial Court Abused Its Discretion, CONCLUSION . [APPELLANT'S OPENING BRIEFTABLE OF AUTHORITIE CASES. Cockerell v. Title Insurance & Trust Co. (1954) 42 Cal.2d 284 ....r-senseeLS Bank of America v. La Jolla Group II (2005) 129 Cal.App.4th 706......13,16 Bell v. H.F. Cox, Inc. (2012) 209 Cal. App. 4th 62, 76.).. 7 Berry v. Society of St. Pius X (1999) 69 Cal.App.4th 354. Bank of New York Mellon v. Preciado (2013) Cal. Sup. Ct. Cheney v. Trauzettel (1937) 9 Cal.2d 158 .. Coppola v. Superior Court (1989) 211 Cal.App.3d 848, Gwin v. Calegaris (1903) 139 Cal. 384.. Heesyv. Vaughn (1948) 31 Cal.2d 701 Hocking v. Title Ins. & Trust Co. (1951) 37 Cal.2d 644... Kelley v. Upshaw (1952) 39 Cal.2d 179. Kelliher v. Kelliher (1950) 101 Cal.App.2d 226. Kessler v. Bridge (1958) 161 Cal.App.2d Supp. 837. ‘Maron v, Howard (1968) 258 Cal.App.2 473... Parker v. City of Fountain Valley (1981) 127 Cal.App.34 9! Wheeler v. Gregg (1993) 90 Cal.App.2nd 348... APPELLANT'S OPENING BRIEFSTATUTES Evidence Code §500... + 8,10 Civil Code. § 904.2.....4... Civil Code § 1091 Civil Code § 1624. +16 Civil Code § 2924... 3, 5-8,11-17, 20 Civil Code § 2924(a)(1).. 8,12 Civil Code § 2924(a)(1)(C). Civil Code § 2932.5. Civil Code § 2936. Code of Civil Procedure §1161a.... -6,8,10,11,19 Code of Civil Procedure § 1161a(b). cel Code of Civil Procedure § 1161a(b)(3).. vw APPELLANT'S OPENING BRIEFINTRODUCTION Defendant brings this appeal almost at the suggestion of the trial judge in this case in the quotation below. This appeal is most certainly not one of first impression. To the contrary. In fac, this very Court, ‘The Appellate Division of the Superior Court of Senta Clara County, has ruled on ‘most ofthe issues already, as the trial court noted: ‘THE COURT: Well, you know, I've been wrong before, and perhaps the Court of Appeals will point that out to me, But I've never litigated the details of title and the like. * (RT 25) ‘These were among the very last words spoken at the tral by the Honorable Derek Woodhouse after he effectively ruled that Plaintiffneed not demonstrate any proof or evidence of compliance with the Statutes. ‘This is particularly ironic based on the fact that before the trial started, Plaintiff stated: Its pretty clear from the answers, if you read it. He admitted everything is true. No affirmative defenses stated on the last page. Idon't belive (sic] they have any defenses to this unlawful detainer action. (RT 4) ‘This statement above was the clearest misrepresentation imaginable, as one can see ftom the unchecked boxes in Defendant's answer pertaining to admissions. Subsequently, the Court responded with: Well, my esteem (sic] colleague, Judge Huber, ruled against you when you made a motion for summary judgment, (RT 4) So here, the Honorable Judge Woodhouse, fully acknowledges the fact, that the prior court concluded that there were in fact, triable facts in this case “ae APPELLANT'S OPENING BRIEFthat should be heard. Itis inconsistent, as a matter of law, for Defendant to defeat Plaintiff's Summary Judgment motion and yet to have witnesses, excluded, including the Defendant himself on the issue of inquiry, by a ruling on the pleadings. However, Plaintiff produced no facts or evidence that would lead the Court to disagree with his “esteem {sic] colleague, Judge Huber.” Yet he did in fact rule in a manner logically inconsistent with Judge Huber. ‘The above would lead one to believe that there must have been some type of evidence introduced during the short trial that the Court had used to make a decision that Judge Huber erred in his judgment, However, the record does nol reflect anything of the sort “The Court Reporter's Transcript of the brief trial speaks volumes all by itself The transeript clearly demonstrates that Plaintiff not only misrepresented the facts to the court on numerous occasions, but continued to do so, even after Defendant's counsel brought this to his attention repeatedly throughout the tril Indeed, the trial judge erred, as a matter of law, in allowing Plaintiff's counsel to take the court down a path of making false and/or misleading statements of facts about what was contained in the pleadings, specifically, the repeated but false claim that Defendant admitted all of Plaintiff's necessary accusations. What's more, the Court failed to acknowledge these erroneous statements and made litte if any attempt to clarify the record and take these facts into consideration in his ruling. Subsequently, Plaintiff persisted in serving misinformation to the Court. Notwithstanding, Plaintiff failed to 22s APPELLANT'S OPENING BRIEFcomply with the statutes, Plaintiff failed to prove compliance with the statutes at trial. And most significantly, Plaintiff failed 0 show any evidence of an attempt at compliance, nor was Defendant allowed to point this out to the court, when the Court admittedly did not understand the argument due to an admitted lack of familiarity with such arguments. “The above, combined with the fact thet the court barred Defendant from introducing any testimonial evidence, prevented Defendant from having, his Expert Witness testify and prevented Defendant from offering up any defense whatsoever. Consequently, the tial court violated Defendant's constitutional rights of due process, the right to be heard, the right to his day {in court. Unlawful Detainer Actions are summary proceedings, however the proceedings are still a trial in a court of law. Despite the numerous procedural errors of the tral court, the most basic questions are: 1) “Did Plaintiff produce at trial sufficient evidence to carry its burden of proof under of C.C.P. § 1161a?”; 2) “Was the Trustee Sale held in accordance with C.C, 2924 and fully in compliance with the relevant statute?" and 3) “Did Plaintiff produce evidence that shows a ‘duly perfected security interest'?” “The undisputed evidence on the pleadings clearly demonstrates in each case in the negative, that the answer to these three questions is Defendant/Appellant Gildardo Guzman appeals from the judgment centered against him in the underlying unlawful detainer action. In its Complaint Plaintif/respondent alleged: “Plaintiff is entitled to immediate possession of the subject premises.” and, “...foreclosure sale and all notices preceding said foreclosure were done in compliance with 3 APPELLANT'S OPENING BRIEFCalifornia Civil Code Section 2924 et seq, and title under said Trustee Sale has been duly perfected on November 27, 2013. ” (CT 3) Mr. Guzman denied those allegations in his Answer or atleast in the subsequent Answer to Plaintifs motion for Summary Judgment (CT 15). STATEMENT OF CAS ‘A. Nature of Action and Relief Sought At issue in this instant matter is unlawful detainer action in which Plaintiff, the alleged purchaser at a purported Trustee Sale, seeks possession of the subject property. Defendant does not seek affirmative relief in this action. He ‘merely prays that Plaintiff take nothing, on the grounds that Plaintiff has failed to present evidence essential to this C.C. § 1161(a) unlawful detainer in which Plaintiff was listed as Grantee on the Trustee’s Deed (CT 4) but was not a party to the underlying loan. The transcript of the trial illustrates that all parties are in agreement that a summary proceeding is not sufficient to litigate these complex issues and as such, Defendant seeks a reversal ofthe judgment handed down by the trial court and the unlawful detainer action be consolidated with Defendant's Quiet Title Action, or in the altemative, be stayed until the quiet ttle action has been completed. Defendant also asks this court to immediately restore possession of the property to Defendant until said prior case can be property litigated. ‘Additionally, Defendant submits that the legal acumen doctrine should be applied here. The legal acumen doctrine is that if a defect in, or invalidity of, a claim to land is such as to require Jegal acumen to oa. APPELLANT'S OPENING BRIEFdiscover it, whether it appears upon the face of the record or pro- ceedings, or is to be proved aliunde, then the powers or jurisdiction of the court may be invoked to remove the cloud created by such defect or invalidity. B. Summary of Material F Defendant Gildardo Guzman took out a mortgage in 2007. The lender was MortgageIT. The beneficiary under the 2007 Deed of Trust was MERS. Plaintiff alleges that as the purchaser at a 2013 Trustee sale and it is entitled to possession of the subject property. Plaintiff bases this, ‘contention on a Trustee’s Deed Upon Sale (CT 4). The Trustee's Deed indicates the sale was based on the 2007 loan but identifies Plaintiffas the foreclosing beneficiary, not Mortgagel. Plaintiff submitted no evidence to show it was a party to the 2007 Joan. Nor did Plaintiff submit any evidence to show how, or even if, HSBC later became a party to the loan such that it had any legal authority to enforce the loan terms or to elect the power of sale, in fact, Plaintiff is a stranger to this property. From the evidence before the Court, there is an obvious gap in title 1g more than a “wild deed,” to the loan. The Trustee's Deed is no which constitutes a break in the chain of title. Accordingly, there is insufficient evidence to demonstrate the sale was held “in accordance with Civil Code § 2924" or that Plaintiff's title was “duly perfected” because there are no facts to prove HSBC ever had authority to conduct the sale in the first place. +5 APPELLANT'S OPENING BRIEFC. Judement and Statement of Appealability The Superior Court of California, Limited Jurisdiction, County of Santa Clara, by the Honorable Derek Woodhouse, judge, entered judgment against Defendant on March 28, 2014, Mr. Guzman filed his Notice of Appeal on April 28, 2014, ‘An appeal of a ruling by a superior court judge or other judicial officer in a limited civil case is to the appellate division of the superior court. [C.CP. § 904.2] Standard of Review The trial court erred in finding that PlaintifT had demonstrated clear and convincing evidence that Plaintiff was in compliance with the statutes, when in fact the evidence does not support such a conclusion. ‘Where an attack is made on the findings or judgment on the ground they are not supported by the evidence, the power of reviewing courts begins and ends with a determination of whether there is any substantial evidence, contradicted or un-contradicted, that will sustain the findings ‘made or the judgment rendered. [Wheeler v. Gregg (1993) 90 Cal.App.2nd 348, 370-371] |. As there is no substantial evidence to support that finding. On review, the appellate court looks to the record to see if there are facts to support the trial court or jury's findings. FACTS Defendant specifically denied in his Answer the allegations made by Plaintiff in its Complaint concerning: (1) whether Plaintiff owns the premises, (2) whether the sale was held in accordance with § 2924 of the 6. APPELLANT'S OPENING BRIEFCivil Code under power of sale contained in the Deed of Trust, and (3) whether Plait had “duly perfected” its title to the property (CT 15). Plaintiff had no legal authority to make the critical election under C.C. § 2424(a)(1)(C) to forego other remedies and invoke the power of sale; and, as a result, Plaintiff could not meet its burden under C.C.P § 1161a to prove the sale was held “in accordance with C.C. § 2924" or that Plaintiff's title had been “duly perfected.” In fact, as brief as the trial transcript is, the words “Duly Perfected” were mentioned approximately 16 times, as Defendant vehemently demand Plaintiff to produce some evidence of compliance with the Statutes, ‘The Honorable Judge did his best to understand Defendant’s argument, however he admitted, “I've never had the issue of compliance with 2924 litigated” (RT A 17). ‘The Trustee’s Deed which Plaintiff submitted and the Court admitted into evidence purports to grant “to HSBC (herein called Grantee) but without covenant or warranty, expressed or implied, allright title and interest in and to that certain property in the County of Santa Clara...”(CT 5). ‘The Trustee’s Deed also identifies HSBC as the foreclosing beneficiary “The grantee herein WAS the foreclosing beneficiary” (CT 5). The Deed of Trust identifies the Lender as “MortgagelT.” It identifies the Trustee as “First American Title Insurance Company” and states that Mortgage Electronic Registration Systems (hereinafter “MERS") is the “beneficiary” acting “solely as a nomince for Lender and Lender's successors and assigns. Plaintiff submitted absolutely no evidence to overcome the 7 APPELLANT'S OPENING BRIEFobvious gap in title between itself (HSBC, the foreclosing beneficiary) and the original lender and beneficiary (MortgagelT and MERS). Plaintiff provided no testimony at trial concerning any assignment of the deed of trust to HSBC, nor did it produce any written evidence to explain how HSBC became a successor beneficiary or was anything more than a complete stranger to the 2007 loan with no authority to elect to conduct the sale. ARGUMENT Plaintiffs bear the burden of establishing: 1) Compliance with CC § 2924; See CAL. EVID. CODE § 500 (2011) (“[A] party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting,”); Wells Fargo Bank, N.A. v. Detelder-Collins (2012) WL 4482587, at *7 (Cal. App. Div. Super. Ct. Mar. 28, 2012) (citing § 500 and putting the evidentiary burden on the UD plainti(h. 2) Post Foreclosure Plaintiff Must Prove Duly Perfected title; including specific foreclosure (not UD) notice and recording, requirements, and requiring the foreclosing entity to have the proper authority to foreclose. CAL. CIV. CODE § 2924(a) (1)-(6). ‘On August 19, 2013, this very Court, The Santa Clara County Superior Court, Appellate Division, in Bank of New York Melton v. Preciado ruled that Personal Service of Notice to Quit Must Be Attempted. On March 19, 2014, ‘The California Supreme Court ordered the publication of said opinion, In an unlawful detainer action brought pursuant to Code of Civil Procedure section 1161, subdivision (b)(3), the plaintiff must show that he acquired the property at a regularly conducted sale and thereafter “duly -8 APPELLANT'S OPENING BRIEFperfected” his title. In many cases, the Trustee’s Deed Upon Sale, duly recorded, will be sufficient proof that the plaintiff acquired the property at a regularly conducted sale and thereafter “duly perfected” its title, Title is duly perfected when all steps have been taken to make it perfect, ic., to convey to the purchaser that which he has purchased, valid and good. {In order to prove compliance with section 2924, the Plaintiff must necessarily prove the sale was conducted by the Trustee. However, Plaintiff's proof fell short. The ‘Trustee’s Deed Upon Sale (CT 4) erroneously indicated, “NDEx West, L.L.C., as the duly appointed Trustee under the Deed of Trust However, the Deed of Trust identified First American Title ” conducted the Trustee’s Sale. Insurance Company as the Trustee. Plaintiff failed to provide any evidence establishing NDEx West, L.L.C.’s authority to conduct the Trustee’s sale. Since Plaintiff failed to provide evidence that NDEx West ‘was properly substituted for the original Trustee, Plaintiff was not entitled ‘to judgment. 3) Proper service of a valid notice to quit; Personal Service of Notice to Quit Must Be Attempted. As a prerequisite to filing an unlawful detainer action, a tenant must be served with either a 3, 30, or 90 days” notice, However, Plaintiff failed to comply with the service requirements, and failed to comply with Code of Civil Procedure section 1162. Scetion 1162 provides three methods of serving these notices, however “Constructive Service” is not one of them. Apparently, in an effort to save money, Plaintiff failed to hire a Process Server to personally serve Defendant, instead Plaintiff paid $45.00 for a “Constructive Service.” (CT 10). Hence Process Server made no effort at personal service, nor did he claim such in his proof of service listed as Exhibit 3 (CT 10). A notice is valid and enforceable only if the lessor has strictly ay APPELLANT'S OPENING BRIEFcomplied with these statutorily mandated requirements for service (Bank of New York Mellon v. Preciado (2013) Cal. Sup. Ct 4); citing (Losornio v, Motta (1998) 67 Cal.App.Ath 110, 113-14; Liebovich v. Shahrokhkhany (1997) 56 Cal.App.4th 511, 513.). As the record clearly indicates, Plaintif indeed, failed to comply with the Statute. Pos? and mail service is not authorized in the first instance. Proper service of termination notices are an essential element of Plaintiff's case in unlawful detainer actions. Defendant is not required to plead ineffective notice as an affirmative defense. 1. PLAINTIFF FAILED TO MEET ITS BURDEN OF PRODUCING FVIDENC Plaintiff must "prove a sale in compliance with the statute and deed of trust, followed by purchase at such sale and the Defendant may raise objections" on that phase of the issue of title. [Cheney v. Trauzettel (1937) 9 Cal.2d 158, 159-160]. Because of the nature of the summary proceedings, an unlawful detainer Plaintiff must strictly adhere to statutory and technical requirements in order to prevail. (WDT-Winchester v, Nilsson (1994) 27 Cal.Apptth 516, 520 (summary nature of unlawful detainer requires strict adherence to statutory requirements, otherwise plaintiff has ordinary remedies for breach of contract); Baugh v. Consumers Associates, Lid. (1966) 241 Cal.App.2d 672, 674-675.) Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting. (Evid. Code § 500), ‘The obligation of a party to sustain the burden of proof requires the production of evidence for that purpose. [Parker v. City of Fountain -10- APPELLANT'S OPENING BRIEFValley (1981) 127 Cal. App.34 99, 113] Where no evidence is introduced upon an issue, a finding thercon should be against the party having the burden of proof (Heesy v. Vaughn (1948) 31 Cal.2¢ 701, 708-709) Without a proper foreclosure sale, the purchaser does not hold valid title 1o the property, and cannot satisfy the perquisite to bringing an UD action under CCP § 1161a. Defendant properly alleged in his response, (CT 15) that neither the beneficiary nor trustee have the authority to foreclose. See Aurora Loan Servs., LLC v, Brown (2012) WL. 6213737, at 7 (Cal. App. Div. Super. Ct. July 31, 2012) (linking invalid title with Plaintiff's lack of standing to sue for possession); U.S. Bank Nat'l Ass'n v. Espero, (2011) WL 9370474, at *4 (Cal. App. Div. Super. Ct. Dec. 27, 2011) (same). A. The Elements of Plaintift”s Case Derive From, ‘Two Statutes: C.C.P. § 1161a and C.C. $2924 Code of Civil Procedure § 11614 (b): In any of the following cases, a person who holds over and continues in possession of... real property ... may be removed therefrom as prescribed in this chapter: (3) Whete the property has been sold in accordance with Section 2924 of the Civil Code, under a power of sale contained in a deed of trust executed by such person, or a person under whom such person claims, and the title under the sale has been duly perfected, [Emphasis added} Civil Code § 2924(a) (1) (C): “The Notice of Default “shall” include: A statement setting forth the nature of each breach actually known to the beneficiary and of his or her clection to sell or cause to be sold the property to satisfy that obligation and any other obligation secured by the deed of trust or mortgage that is in default, sue APPELLANT'S OPENING BRIEFB. PlaintifY'Is Required Fo Demonstrate Siriet ‘Compliance With These Statutes ‘The statutory situations in which the remedy of unlawful detainer is available are exclusive and the statutory procedure must be strictly followed. [Berry v. Society of St. Pius X(1999) 69 Cal.App-4th 354, 363] A non-judicial foreclosure sale under the power-of-sale in a deed of trust or mortgage must be conducted in strict compliance with provisions and applicable statutory law. [Coppola v. Superior Court (1989) 211 Cal. App.3d 848, 868] Plaintiff Failed To Present Evidence The Sale ‘Was Held “In Accordance With” Civil Code § 2924 ‘Another critical element which Plaintiff failed to present indispensable evidence was whether the party electing to conduct the sale had any authority to do so. In other words, was the electing party (HSBC) a bona fide “beneficiary” under C.C. § 2924(a)(1(C)? Under the statute, a stranger to the loan cannot elect to invoke the power of sale in the Deed of Trust. This power is reserved exclusively for ry.” [C.C. § 2924(a}(1)(C)] The language of this part of the the “bene! statute stands in marked contrast to the other parts ofthe statute which provide for the ministerial aspects of § 2924 to be cartied out by delegates of the beneficiary: “the trustee, mortgagee, or beneficiary, or any of their authorized agents.” [C.C. § 2924(a)(1)] But the statute empowers only the oke the “beneficiary” to make the critical election of remedies anc power of sale. “2. APPELLANT'S OPENING BRIEFtis axiomatic that for the sale to have been held “in accordance with Section 2924" the party electing to conduct the sale must have had legal authority to do so. The statute does not empower a stranger to elect the remedy of sale, The “electing beneficiary” must have legal power deriving from the original Note or Deed of Trust. Otherwise, the statute does not permit a sale to take place. Statutory provisions regarding the exercise of the power of sale provide substantive rights to the trustor and limit the power of sale for the protection of the trustor (Bank of America, NAA. v. La Jolla Group II (2005) 129 Cal.App-4th 706,712). Here, Plaintiff was not the original beneficiary. The original lender was MortgagelT and the beneficiary was MERS. But according to the Trustee's Deed, Plaintifi7HSBC “WAS the foreclosing beneficiary.” But Plaintiff failed to produce any evidence to bridge this obvious gap in litle. There is absolutely no evidence Plaintiff had any right to cause the sale to take place, ‘According to the evidence at tril, Plaintiff had no more right to sell this property than did any random person off the street. Strictly speaking, it may not have been necessary for Plaintiff to prove it actually owned the Note atthe time of election of sale. But unless Plaintiff proves who owned the Note at the time of election it is impossible to discern whether the sale was held in accordance with § 2924. ‘As a matter of law, the Note and Deed of Trust cannot be separated. “The assignment of a debt secured by mortgage carries with it the security.” [C.C. § 2936] Assignment of the Note carries the mortgage (Deed of Trust) with it. The purported assignment of a mortgage without 3. APPELLANT'S OPENING BRIEFan assignment of the debt sccured is a legal nullity (Kelley v. Upshaw (1952) 39 Cal.2d 179, 192) In order to carry it?s burden to demonstrate the sale was held in accordance with the law, Plaintiff needed to present evidence at trial showing the party that elected to conduct the sale under {§ 2924(a)(1)(C) had the requisite legal authority to do so. D. Plains Plaintiff must prove affirmatively that the property was duly sold and that “the title under the sale has been duly perfected." Contrary to the rule applying to unlawful detainer where the landlord-tenant relationship is involved, title thus becomes an issue (Kelliher v. Kelliher (1950) 101 Cal. App.2d 226, 232), Title is duly perfected when all steps have been taken to make it perfect, ic. to convey to the purchaser that which he has purchased, valid and good beyond all reasonable doubt. [Mocking v. Title Ins. & Trust Co, (1951) 37 Cal.2d 644, 649] This includes good record title [Gwin v. Calegaris (1903) 139 Cal. 384; Kessler v. Bridge (1958) 161 Cal. App.2d Supp. 837, 841] Here, Plaintiff has failed to prove its title is “valid and good beyond all reasonable doubt.” On the contrary, as a matter of fact, Defendant brought an Expert Witness, Asher Robertson from KMBA ASSET LIQUIDATIONS to explain to the Court that i would be a legal impossibility for Plaintiff to be a real party in interest as Plaintiff is an ineligible entity to actively purchase loans, especially non-performing loans. If the Court would have allowed Mr. Robertson to testify, the 14 APPELLANT'S OPENING BRIEF