BERMUDEZ vs SN SERVICING CORPORATION, A BUSINESS ENTITY, et al.

23CV000213: BERMUDEZ vs SN SERVICING CORPORATION, A BUSINESS ENTITY, et al. 02/11/2026 Hearing on Motion for Summary Adjudication in Department 28

Tentative Ruling

NOTICE: PLEASE TAKE NOTICE that any oral arguments regarding this tentative ruling will be heard at 1:30 pm in Department 28, located at 720 9th Street, Sacramento, CA, the Hon. Richard C. Miadich presiding. Any party who wishes to contest the tentative ruling below must: (1) request a hearing by calling the Law and Motion Oral Argument Request Line at (916) 874-2615, by 4:00 p.m. the Court day before the noticed hearing date, and leave a voicemail message (a) identifying themselves as the party requesting oral argument; (b) indicating the specific matter/motion for which they are requesting oral argument; and (c) confirming that they have notified the opposing party of their intention to appear; and (2) advise the opposing party of the location and time of hearing pursuant to Local Rule 1.06.

If a hearing is not requested by 4:00 p.m. on the Court day before the noticed hearing date, the tentative ruling will become the final order of the Court. If a hearing is requested, the Court prefers in-person attendance by the parties. However, parties may appear by Zoom unless the Court specifically orders in-person attendance. Parties choosing to appear by Zoom are reminded, however, that a Zoom appearance is still a formal appearance before the Court. Parties appearing via Zoom should do so from a quiet location, free from undue distractions, and wear attire suitable for an in-person court appearance.

The parties may join the Zoom session for hearing on the tentative ruling by audio and/or video through the following link: https://saccourt-ca-gov.zoomgov.com/my/sscdept28 SIP Address: 16039062174@sip.zoomgov.com (833) 568-8864 ID: 16039062174

23CV000213: BERMUDEZ vs SN SERVICING CORPORATION, A BUSINESS ENTITY, et al. 02/11/2026 Hearing on Motion for Summary Adjudication in Department 28

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court-Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.Pdf A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.

Tentative Ruling:

Cross-Complainant US Bank Trust National Association as Trustee of the Bungalow Series IV Trust’s (“US Bank”) motion for summary adjudication is ruled upon as follows.

Moving counsel failed to comply with California Rules of Court, rule 3.1350(b), which requires that each issue presented for summary adjudication be stated in the notice of motion and repeated verbatim in the separate statement. However, the Court finds that moving counsel substantially complied with this requirement, and does not deny the motion on this ground. Moving counsel includes two “grounds” for summary adjudication in the notice of motion, and includes one issue in the Separate Statement. (Notice at 2:8-10; Separate Statement at 2:8-9.) However, the Court does not deny the motion on

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV000213: BERMUDEZ vs SN SERVICING CORPORATION, A BUSINESS ENTITY, et al. 02/11/2026 Hearing on Motion for Summary Adjudication in Department 28

this ground.

US Bank’s unopposed request for judicial notice is granted for the limited purposes permitted for judicial notice. (See, Evid. Code §451, subd. (a); §452, sub. (b)-(d); see also, Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th 757, 768 [court may take judicial notice of the existence of court documents but not to the truth of the statements contained therein]; Kilroy v. State of California (2004) 119 Cal.App.4th 140, 145-148; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1569-70.)

On February 4, 2011, at the initial hearing on this matter, the Court continued the hearing to February 11, 2026 to allow time for the Court to review the late-filed reply. The Court, in its discretion, has considered the late-filed reply.

I.

Background

This is a wrongful foreclosure action relating to Plaintiff Omar Bermudez’s (“Plaintiff”) real property located at 864 Oak Lane, Rio Linda, California.

Plaintiff alleges that on November 16, 2021, he submitted a complete loan modification application to SNSC. (FAC, ¶ 12.) On December 1, 2021, SNSC allegedly sent Plaintiff a letter verifying that Plaintiff submitted a complete loan modification application. (Id., ¶ 13.) On December 21, 2021, Plaintiff alleges he received a letter from SNSC indicating that he had been approved for a loan modification, that he would receive a formal offer with terms and conditions of the approval, and that he would have to accept or reject the modification offer within 14 days of receipt of that letter. (Id., ¶ 14.)

Plaintiff alleges the Modification Trial Period Plan (“TPP”) paperwork was mailed to Plaintiff on December 28, 2021, and he received it on January 3, 2022. (Id., ¶ 15.) Plaintiff alleges that the TPP required Plaintiff to make the first good faith payment by no later than December 31, 2021, which was three days before he received the offer. (Ibid.) The TPP allegedly provided that Plaintiff must return the first regular monthly payment and the signed TPP by no later than February 1, 2022. (Id., ¶ 16.)

Plaintiff allegedly contacted SNSC immediately to inquire about the down payment that had been due on December 31, 2021. (Ibid.) On January 14, 2022, Ms. Dani Coe, an Asset Manager with SNSC, emailed Plaintiff and informed him that “the offer is already defaulted and I will be reaching out to the investor to find if they want to allow you to still send in all funds that were required to allow trial modification to continue forward [sic].” (Id., ¶ 17.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV000213: BERMUDEZ vs SN SERVICING CORPORATION, A BUSINESS ENTITY, et al. 02/11/2026 Hearing on Motion for Summary Adjudication in Department 28

Plaintiff alleges that he did not hear back from SNSC following the January 14, 2022 email, and instead received a letter indicating it was unable to grant a modification to Plaintiff on January 17, 2022, which was still within the time frame to accept the TPP. (Id., ¶ 18.) Plaintiff allegedly contacted SNSC to obtain clarification, but no one would speak to him. (Ibid.) On January 25, 2022, SNSC allegedly sent Plaintiff another letter stating that he had defaulted during the TPP by failing to make the trial period payments as provided in the TPP. (Id., ¶ 19.)

Plaintiff alleges that Ms. Coe emailed Plaintiff on the same day and indicated that his only option was to submit an appeal letter and the investor would determine if the investor would approve to resurrect the offer. (Id., ¶ 20.) Plaintiff further alleges that he still had not defaulted on sending in the signed TPP, because it was not due until February 1, 2022. (Ibid.)

Plaintiff filed his original complaint on April 21, 2023. The operative FAC was filed on September 21, 2023, alleging causes of action for (1) violation of Civil Code section 2923.7; (2) violation of Business and Professions Code section 17200 et seq.; (3) wrongful foreclosure; and (4) cancellation of written instrument. On February 22, 2024, the Court sustained Defendants’ demurrer as to the fourth cause of action without leave to amend.

On February 4, 2025, US Bank filed a cross-complaint against Plaintiff for (1) declaratory relief, (2) waste, and (3) ejectment. US Bank now moves for summary adjudication as to its cause of action for ejectment.

US Bank’s cause of action for ejectment alleges, in part:

23. U.S. Bank is the rightful legal owner of the Property after it purchased the Property at a foreclosure sale conducted on November 4, 2022 and its title to the Property was perfected upon the recording of that certain Trustee’s Deed Upon Sale in the office of the county recorder in Sacramento County, as instrument number 202212230890.

24. U.S. Bank is not in possession of the Property because of Cross-Defendant’s ongoing refusal to vacate the Property despite U.S. Bank’s acquisition of title to the Property on November 4, 2022 and expiration of the 3-Day Notice to Quit served on January

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV000213: BERMUDEZ vs SN SERVICING CORPORATION, A BUSINESS ENTITY, et al. 02/11/2026 Hearing on Motion for Summary Adjudication in Department 28

13, 2023.

25. Due to the Cross-Defendant’s continued unlawful occupation of the Property, U.S. Bank has suffered monetary damages due to the loss of use of its Property, including, but not limited to, carrying costs, property taxes, and insurance costs.

(Cross-Complaint, ¶¶ 23-25.)

On December 24, 2025, the Court denied Defendants’ motion for summary judgment, or in the alternative, summary adjudication, against Plaintiff’s complaint, finding triable issue of material fact, at least as to whether Defendants violated Civil Code section 2923.7. (December 24, 2025 Court Order.)

This matter is currently set for trial on April 21, 2026.

Moving Papers. US Bank’s single issue presented in its separate statement is “Cross- Complainant is entitled to judgment as a matter of law with respect to its cause of action for Ejectment.” (Separate Statement at 2:8-9.) US Bank does not submit any supporting declarations in support of its separate statement, but rather only submits evidentiary documents via request for judicial notice. US bank argues, “Cross-Defendant failed to pay his mortgage for nearly 16 years and eventually, after all of Cross-Defendant’s dilatory tactics had failed, the Property was sold at auction to Cross-Complainant.” (Motion, 3:4-6.)

Opposition. Plaintiff argues that he raises a number of triable issues of fact that preclude summary adjudication. Specifically, Plaintiff contends Defendants violated Civil Code section 2923.7 in its communications with Plaintiff as they failed to provide Plaintiff with access to individuals with the ability and authority to stop the foreclosure proceedings, failed to provide him with current, timely, and accurate information regarding the status of the foreclosure prevention alternative, and failed to adequately communicate regarding the foreclosure prevention process and deadlines. Plaintiff argues these facts preclude summary adjudication because Plaintiff’s claims are sufficient to bear on US Bank’s right to title to the Property, and therefore its claim for ejectment.

Reply. US Bank argues that any procedural defect in the moving papers is de minimus

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV000213: BERMUDEZ vs SN SERVICING CORPORATION, A BUSINESS ENTITY, et al. 02/11/2026 Hearing on Motion for Summary Adjudication in Department 28

and is insufficient grounds for denial of the motion. US Bank further argues that none of Plaintiff’s claims or defenses affect title to the Property, and therefore do not affect US Bank’s right to possession.

II.

Legal Standard

In evaluating a motion for summary judgment or adjudication, the Court engages in a three-step process.

First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal.App.4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings.

The Court cannot consider an unpled issue in ruling on a motion for summary judgment or summary adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to a motion for summary judgment or summary adjudication may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.) Indeed, it has often been noted that “[i]t would be patently unfair to allow plaintiffs to defeat [defendant’s] summary judgment motion by allowing them to present a “moving target” unbounded by the pleadings.” (Melican v.

Regents of University of California (2007) 151 Cal.App.4th 168, 176-177.)

Next, the Court must determine whether the moving party has met its burden. A defendant moving for summary judgment or summary adjudication bears the burden of persuasion that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [quoting Code Civ. Proc., §437c(p)(2)].) A defendant is not required to conclusively negate one or more elements of the plaintiff’s cause of action. (Saelzer v.

Advanced Group 400 (2001) 25 Cal.4th 763, 780-781). Rather, to meet its burden, the defendant is required to show only that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar, supra, 25 Cal.4th at pp. 853-855.) Further, the initial burden requires a

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV000213: BERMUDEZ vs SN SERVICING CORPORATION, A BUSINESS ENTITY, et al. 02/11/2026 Hearing on Motion for Summary Adjudication in Department 28

showing that the plaintiff “could not prevail on any theory raised by the pleadings.” (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 939-940.)

At the same time, a defendant cannot shift the burden to the plaintiff simply by suggesting the possibility that the plaintiff cannot prove its case; a moving defendant must still make “an affirmative showing” in support of its motion. (See Aguilar, supra, 25 Cal.4th at p. 854-855, n.23; Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 214.) Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. (Code Civ. Proc. § 437c, subd. (p); see generally Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 326-327.) In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at p. 843)

While a summary adjudication motion is treated largely the same as one for summary judgment, there are a few important differences. One of these differences is that California Rule of Court, Rule 3.1350, subdivision (b) mandates that issues presented for summary adjudication be stated in the notice of motion and repeated verbatim in the separate statement. Another difference is that summary adjudication cannot be granted unless it “completely disposes” of a cause of action, affirmative defense, claim for punitive damages, or question of duty. Code of Civil Procedure section 437c, subdivision (f)(1) provides in its entirety:

A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.

Additionally, according to Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, a moving party’s inclusion of facts in its separate statement effectively concedes each

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV000213: BERMUDEZ vs SN SERVICING CORPORATION, A BUSINESS ENTITY, et al. 02/11/2026 Hearing on Motion for Summary Adjudication in Department 28

fact’s “materiality,” whether intended or not, and if there is a triable dispute relating to any one of these facts, the motion must be denied. (Id. at p. 252 [citing Weil & Brown, Civil Procedure Before Trial, Ch.10:95.1].)

Finally, before turning to the specific issues raised by this motion, the Court reminds the parties of the “Golden Rule” of summary judgment/adjudication: “If it is not set forth in the separate statement, it does not exist.” (Zimmerman, Rosenfeld v. Larson (2005) 131 Cal.App.4th 1466, 1477 (italics in original).)

IV.

Discussion

US Bank’s motion is based on the following purported facts:

On or about February 16, 2007, Plaintiff obtained a mortgage loan from Bank of America, N.A. in the original amount of $360,000 (the “Loan”). Request for Judicial Notice (“RJN”), Ex.1. Repayment of the Loan was secured by a Deed of Trust (the “Deed of Trust”) against the Property, which was recorded on March 12, 2007, in the Sacramento County Recorder’s Office (the “Official Records”) as Book No. 20070312, Page 0686. RIN, Ex.

1. The beneficial interest under the Deed of Trust was eventually transferred to the current beneficiary, U.S. Bank Trust National Association as Trustee of the Bungalow Series IV Trust. RIN, Ex.

2.

On March 20, 2009, just two years after Plaintiff obtained the subject loan, a Notice of Default was recorded in the Official Records listing a past due amount of $17,499.20. RIN, Ex.

3. Eventually, a Notice of Trustee’s Sale was recorded in the Official Records on September 21, 2011. RIN, Ex.

4. A second Notice of Trustee’s Sale was recorded on June 29, 2017, in the Official Records of the County of Sacramento as Instrument No. 201706291254. RJN, Ex.

5. Finally, over eleven years after the recording of the first Notice of Sale, on November 4, 2022, the Property was sold at auction to Defendant, US Bank, who was the

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV000213: BERMUDEZ vs SN SERVICING CORPORATION, A BUSINESS ENTITY, et al. 02/11/2026 Hearing on Motion for Summary Adjudication in Department 28

successful bidder at the Trustee’s Sale. RJN, Ex.

6. Thereafter, on December 23, 2022, a Trustee’s Deed Upon Sale in favor of US Bank was recorded in the Sacramento County Recorder’s Office as Document No. 202212230890. RJIN, Ex. 6.

(Motion, 1:9-24.)

An action for ejectment “awards possession to the prevailing party because he had title at the commencement of the action and because the losing party had no title, or had no such title as would authorize him to withhold possession.” (Zaccaria v. Bank of America Nat. Trust and Sav. Ass'n (1958) 164 Cal.App.2d 715, 719.) “The essential elements of an ejectment action are (1) the plaintiff's valid interest in the property and (2) the defendant's wrongful possession and withholding thereof.” (2710 Sutter Ventures, LLC v. Millis (2022) 82 Cal.App.5th 842, 866.)

The Court concludes that US Bank has failed to meet its initial burden to show that there is no triable issue of material fact as to Plaintiff’s alleged wrongful possession and withholding of the property. US Bank’s evidence, consisting of judicially noticed loan and deed documents, do not prove that Plaintiff’s possession was wrongful. Judicial notice allows for the Court’s notice of the existence of the proffered documents, not the truth of the statements contained therein.

US Bank argues that Plaintiff is only seeking monetary damages in his wrongful foreclosure claim, so his claims do not affect title to the Property or US Bank’s right to possession. Regardless of what Plaintiff is seeking in his affirmative claims in the complaint, on a motion for summary adjudication against the cross-complaint, US Bank must carry its initial burden to show there is no issue of material fact. In this cause of action for ejectment, that includes US Bank showing both that it has valid interest in the Property and that Plaintiff is in wrongful possession.

US Bank has failed to meet its burden. US Bank makes many arguments, such as stating in its memorandum that Plaintiff had not paid his mortgage for nearly sixteen years, and that a notice of default was filed, but US Bank submits no evidence of the underlying facts. While the Court takes judicial notice that the notice of default was recorded, the Court cannot presume that Plaintiff actually defaulted on payments without any supporting declaration or other evidence submitted in support of that conclusion.

The burden does not shift to Plaintiff here.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV000213: BERMUDEZ vs SN SERVICING CORPORATION, A BUSINESS ENTITY, et al. 02/11/2026 Hearing on Motion for Summary Adjudication in Department 28

Accordingly, US Bank’s motion for summary adjudication as to its ejectment cause of action is DENIED.

V.

Disposition

US Bank’s motion for summary adjudication is DENIED in its entirety.

This minute order is effective immediately. Pursuant to California Rules of Court, rule 3.1312, Plaintiff shall prepare an appropriate order which conforms to Code of Civil Procedure section 437c, subdivision (g).