## Facts

- Borrowers executed a note and deed of trust on a residence; the deed of trust was later assigned to a new lender/beneficiary.
- After the borrowers defaulted, the beneficiary initiated nonjudicial foreclosure through a trustee.
- A trustee’s sale was noticed and repeatedly postponed; the sale ultimately occurred about a year later.
- The borrowers did not cure the default before the sale.
- A third party purchased the property at the trustee’s sale and then filed an unlawful detainer action to obtain possession.
- The borrowers filed a separate civil action to set aside the trustee’s sale, initially alleging the trustee’s sale notice was not served as required by statute.
- Defendants supported a motion for summary judgment with evidence that the sale notice was served, though allegedly earlier than the statutory sequence contemplated; the borrowers received more than the minimum statutory notice period.
- In opposing summary judgment, the borrowers attempted to raise additional foreclosure-procedure theories (including alleged defects in the notice of default and sale notice) that were not pleaded, and they sought a continuance for additional time.
- The trial court conducted multiple hearings, allowed supplemental briefing, granted summary judgment for defendants in the set-aside action, and the purchaser later obtained a possession judgment in unlawful detainer.

## Issues

1. Whether a minor deviation from statutory service timing for a trustee’s sale notice invalidates a completed nonjudicial foreclosure sale absent borrower prejudice.
2. Whether a plaintiff opposing summary judgment may rely on foreclosure-defect theories not alleged in the complaint to create a triable issue of material fact.
3. Whether the trial court abused its discretion by denying a continuance of the summary judgment hearing where the court had already allowed multiple hearings and supplemental submissions.

## Decision

- The Court of Appeal affirmed summary judgment for the purchaser, beneficiary, and trustee.
- The court held that premature service of the sale notice, if it occurred, was a minor procedural irregularity that did not justify setting aside the sale because it caused no prejudice and provided the borrowers more than the statutory minimum notice.
- The court held defendants negated the only pleaded claim (nonservice of the sale notice), and the borrowers failed to present admissible evidence creating a triable issue on that claim.
- The court held the borrowers could not defeat summary judgment by raising new, unpleaded theories in opposition papers.
- The court held denial of an additional continuance was not an abuse of discretion given the procedural history and the borrowers’ failure to show specific additional evidence likely to be obtained with more time.

## Legal Principles

- A completed nonjudicial foreclosure sale will not be set aside for technical or minor procedural defects absent a showing of resulting prejudice to the trustor.
- Where the borrower receives at least the statutory minimum notice, a timing irregularity in service that does not affect the borrower’s ability to protect their interests is insufficient to invalidate the sale.
- Summary judgment tests the claims actually pleaded; a party opposing summary judgment generally cannot create a triable issue by asserting new theories outside the complaint.
- A continuance of a summary judgment hearing is discretionary and requires a concrete showing of specific evidence needed and reasons it cannot then be presented.

## Conclusion

The court upheld the trustee’s sale because any notice-timing defect was minor and nonprejudicial, affirmed summary judgment where defendants disproved the only pleaded notice claim, rejected reliance on unpleaded foreclosure theories, and found no abuse of discretion in denying an additional continuance.


Knapp v. Doherty, 123 Cal. App. 4th 76 (Cal. Ct. App. 2004)