Nativi v. Deutsche Bank National Trust Co. (223 Cal. App. 4th 261, 2014)

Opinion

ELIA, J.

In May 2009, the United States Congress enacted the Protecting Tenants at Foreclosure Act of 2009 (PTFA or Act) (Pub.L. No. 111-22, div. A, tit. VH, §§ 702-704 (May 20, 2009) 123 Stat. 1660) and, in 2010, the Congress amended it (Pub.L. No. 111-203, tit. XIV, § 1484 (July 21, 2010) 124 Stat. 2204). The Act provides protections for bona fide tenants of residential real property at foreclosure following the date of its enactment until its sunset at the end of 2014. (PTFA, §§ 702, 704.)

Subsequent to a nonjudicial foreclosure sale of residential property in August 2009, tenants Rosario Nativi (Nativi) and her son Jose Roberto Perez Nativi (hereinafter Jose Perez or Perez) were displaced from the property’s converted garage unit, which they had been renting for several years. At the time of the foreclosure sale, appellants’ operative lease provided for a one-year term through June 1, 2010. Deutsche Bank National Trust Company as trustee for “the American Home Mortgage Assets Trust 2007-5 Mortgage-Backed, Pass-Through Certificates, Series 2007-5” (Deutsche Bank or Bank) was the beneficiary under the deed of trust and the purchaser at the foreclosure sale. Appellants sued respondents Deutsche Bank National Trust Company (in its nontrustee capacity), Deutsche Bank (as trustee), and American Home Mortgage Servicing Inc. (AHMSI).

The trial court granted respondents’ motion for summary judgment based on its determination that the foreclosure sale extinguished the lease under California law and, therefore, the immediate successor in interest did not step into the shoes of the landlord. The court concluded that the federal PTFA merely required the Bank, as the immediate successor in interest, to give a 90-day notice to vacate the premises to appellants and it imposed no affirmative duty on the Bank to assist such tenants in recovering possession of the leased premises. The court further found that appellants could not establish that the Bank excluded them from the property or put their belongings in the backyard.

Appellants now challenge the trial court’s interpretation of the PTFA. They assert that the Act created a landlord-tenant relationship between the Bank arid them for the duration of their lease. The appeal raises difficult questions regarding the proper interpretation of the PTFA and the potential liability of an immediate successor in interest in foreclosed residential real property for breach of the implied covenant of quiet enjoyment and wrongful eviction under California law. The parties have not raised any contention regarding the validity of the PTFA or asserted that Congress exceeded its authority in enacting it. An amicus curiae brief was filed on behalf of the National Housing Law Coalition, National Law Center on Homelessness and Poverty, the AARP, the National Fair Housing Alliance, and the California Reinvestment Coalition in support of appellants. The American Legal and Financial Network filed an amicus curiae brief that supports respondents’ position.

After careful and extensive consideration, this court concludes, solely as a matter of statutory interpretation, that the PTFA causes a bona fide lease for a term to survive foreclosure through the end of the lease term subject to the limited authority of the immediate successor in interest to terminate the lease, with proper notice, upon sale to a purchaser who intends to occupy the unit as a primary residence. The Act impliedly overrides state laws that provide less protection but expressly allows states to retain the authority to enact greater protections. Bona fide tenancies for a term that continue by operation of the PTFA remain protected by California law.

We conclude that the trial court’s analysis was mistaken and respondents were not entitled to summary judgment. Accordingly, the judgment will be reversed.

Appellants also challenge the trial court’s order granting respondent AHMSI’s motion for a protective order. We find the order was not within the trial court’s discretion and reverse.

I

Procedural History

On November 25, 2009, appellants Nativi and Perez filed a complaint against Deutsche Bank National Trust Company, its assigns and successors, and Does 1 to 10 for “restitution of premises,” compensatory and punitive damages, and injunctive relief. The complaint alleged eight causes of action as follows: (1) wrongful eviction in tort, (2) breach of the covenant of quiet enjoyment, (3) breach of implied covenants of quiet enjoyment—tort, (4) illegal entry of landlord (violation of Civ. Code, § 1954), (5) violation of Civil Code section 1940.2, (6) illegal lockout (violation of Civ. Code, § 789.3), (7) violation of the PTFA, and (8) unfair business practices (Bus. & Prof. Code, § 17200).

On December 31, 2009, Deutsche Bank National Trust Company filed a notice of removal that it was removing the action to federal court.

The United States District Court, Northern District of California subsequently determined that, by enacting the PTFA, “Congress did not intend to create a private right of action remedy, but rather intended to provide tenants additional rights which could be used in state court proceedings.” (Nativi v. Deutsche Bank National Trust Co. (N.D.Cal., May 26, 2010, No. 09-06096 PVT) 2010 WL 2179885, p. *4.) The court dismissed the seventh cause of action (violation of the PTFA) (2010 WL 2179885 at pp. *1, *4-*5) and “decline[d] to exercise supplemental jurisdiction over the remaining state law claims” and remanded the matter to the Superior Court of California, County of Santa Clara. (Id. at p. *5.)

On July 1, 2010, appellants filed a first amended complaint, which alleged additional causes of action. Deutsche Bank National Trust Company demurred to the first amended complaint on a number of grounds, most of which were overruled. The trial court struck the seventh cause of action (violation of the PTFA) because the federal court had dismissed it before remanding the case.

On December 3, 2010, appellants filed a second amended complaint against Deutsche Bank National Trust Company, Deutsch Bank (as trustee), and AHMSI and Does 3-10. It alleged nine causes of action against the named defendants: (1) wrongful eviction in tort, (2) breach of the covenant of quiet enjoyment, (3) breach of implied covenants of quiet enjoyment—tort, (4) illegal entry of landlord (violation of Civ. Code, § 1954), (5) illegal lockout (violation of Civ. Code, § 789.3), (6) unfair business practices (Bus. & Prof. Code, § 17200), (7) conversion, (8) trespass, and (9) declaratory and injunctive relief (Code Civ. Proc., §§ 526, 1060). Respondents filed an answer to that complaint.

In April 2011, respondents filed a motion for summary judgment, supporting declarations, and a separate statement of undisputed material facts. They requested judicial notice of the trustee’s deed upon sale, recorded August 12, 2009, in the Santa Clara County Recorder’s Office and appellants’ second amended complaint.

By order filed June 21, 2011, the court accepted the parties’ written factual stipulations for the purposes of all further proceedings in the case.

Appellants filed opposition to respondents’ motion for summary judgment, a separate statement of undisputed facts, and supporting declarations. They filed written evidentiary objections to the evidence submitted by respondents in support of summary judgment.

By written order filed November 15, 2011, the trial court granted respondents’ motion for summary judgment. The trial court concluded that, under California law, the foreclosure sale extinguished the lease and, consequently, Deutsche Bank did not step into the shoes of the former landlord. It also determined that the obligation to give a 90-day notice was the “only burden” imposed on the Bank by the PTFA.

A judgment in favor of respondents and against appellants was filed on November 15, 2011.

By separate written order, also filed on November 15, 2011, the court granted respondent AHMSI’s motion for a protective order with respect to certain documents that the court had ordered it to produce.

On December 13, 2011, appellants filed a notice of appeal from the judgment and from the order granting the motion for a protective order.

II

California Law Background and the Federal PTFA

A. Effect of Foreclosure on Preexisting Tenancy Under California Law

1. Traditional Property Law

“Title conveyed by a trustee’s deed relates back to the date when the deed of trust was executed. (Bank of America v. Hirsch Merc. Co. (1944) 64 Cal.App.2d 175, 184 [148 P.2d 110].) The trustee’s deed therefore passes the title held by the trustor at the time of execution. (Hohn v. Riverside County Flood Control etc. Dist. (1964) 228 Cal.App.2d 605, 612 [39 Cal.Rptr. 647].)” (Dover Mobile Estates v. Fiber Form Products, Inc. (1990) 220 Cal.App.3d 1494, 1498 [270 Cal.Rptr. 183] (Dover).) “The law is clear that the trustee’s deed conveys to the purchaser the trustor’s interest as of the date that the deed was recorded. (Dover Mobile Estates v. Fiber Form Products, Inc.[, supra,] 220 Cal.App.3d 1494, 1498 . . . ; Sain v. Silvestre (1978) 78 Cal.App.3d 461, 471 [144 Cal.Rptr. 478]; Hohn v. Riverside County Flood Control etc. Dist.[, supra,] 228 Cal.App.2d 605, 612-613 . . . .)” (Homestead Savings v. Darmiento (1991) 230 Cal.App.3d 424, 437 [281 Cal.Rptr. 367].)

“A lease is generally deemed to be subordinate to a deed of trust if the lease was created after the deed of trust was recorded. (Bank of America v. Hirsch Merc. Co., supra, 64 Cal.App.2d at p. 184; 3 Miller & Starr, Cal. Real Estate (2d ed. 1989) § 8:82, p. 422.)” (Dover, supra, 220 Cal.App.3d at p. 1498.) “Also, there is no dispute that the general rule is that foreclosure of a senior encumbrance terminates subordinate hens, including leases. (Hohn v. Riverside County Flood Control etc. Dist.[, supra,] 228 Cal.App.2d 605, 613 . . . .)” (Miscione v. Barton Development Co. (1997) 52 Cal.App.4th 1320, 1326 [61 Cal.Rptr.2d 280]; see Dover, supra, 220 Cal.App.3d at p. 1498 [“A lease which is subordinate to the deed of trust is extinguished by the foreclosure sale. [Citations.]”].) Under traditional California law, “[a] foreclosure proceeding destroys a lease junior to the deed of trust, as well as the lessee’s rights and obligations under the lease. (Nelson & Whitman, Real Estate Finance Law [(2d ed. [Lawyer’s Ed.] 1985)] § 15.11, p. 1114.)” (Dover, supra, 220 Cal.App.3d at pp. 1498-1499.) “Thus, if the sale of the landlord’s interest is forced by one having a superior title to that of the tenant, the tenant’s interest will be defeated by the sale under the deed of trust. (Dover, supra, 220 Cal.App.3d at p. 1499.)” (Aviel v. Ng (2008) 161 Cal.App.4th 809, 816 [74 Cal.Rptr.3d 200].)

“When a lease is executed and recorded prior to the recordation of the deed of trust, or if the beneficiary of the deed of trust had notice of a prior unrecorded lease at the time the tmst deed was recorded, the lien of the trust deed is junior to the estate of the lessee and his or her right to occupy the premises. The title of the purchaser at a foreclosure sale of the junior lien is subject to the lessee’s contract right to occupy the premises.” (5 Miller & Starr, Cal. Real Estate (3d ed. 2009) § 11:101, p. 11-307 (rel. 9/2009), fns. omitted; see Civ. Code, §§ 1214 [prior recording of subsequent conveyances], 1215 [defining “conveyance”], 1217 [“An unrecorded instrument is valid as between the parties thereto and those who have notice thereof.”], 3395 [“Whenever an obligation in respect to real property would be specifically enforced against a particular person, it may be in like manner enforced against any other person claiming under him by a title created subsequently to the obligation, except a purchaser or encumbrancer in good faith and for value . . . .”]; R-Ranch Markets #2, Inc. v. Old Stone Bank (1993) 16 Cal.App.4th 1323, 1327 [21 Cal.Rptr.2d 21] [trustee’s sale]; Sumitomo Bankv. Davis (1992) 4 Cal.App.4th 1306, 1314 [6 Cal.Rptr.2d 381] [judicial foreclosure sale]; Dover, supra, 220 Cal.App.3d at p. 1498.)

In the absence of other applicable law providing greater protection to tenants at foreclosure, the purchaser at a foreclosure sale is entitled to recover possession through an unlawful detainer action. (See Code Civ. Proc., § 1161a, subds. (b)(3), (c).)

2. Enactment and Amendment of Code of Civil Procedure Section 1161b

Code of Civil Procedure section 1161b (section 1161b) was enacted in 2008, effective July 8, 2008, in the wake of the foreclosure crisis. (Stats. 2008, ch. 69, §§ 1, 6, 10, pp. 224, 230.) As enacted, it provided: “Notwithstanding Section 1161a, a tenant or subtenant in possession of a rental housing unit at the time the property is sold in foreclosure shall be given 60 days’ written notice to quit pursuant to Section 1162 before the tenant or subtenant may be removed from the property as prescribed in this chapter.” (Italics added; Stats. 2008, ch. 69, § 6, p. 230 [former § 1161b, subd. (a)].) The section did not apply, however, “if any party to the note remains in the property as a tenant, subtenant, or occupant.” (Stats. 2008, ch. 69, § 6, p. 230 [former § 1161b, subd. (b)].) The-enactment of section 1161b was not “intended to affect any local just-cause eviction ordinance.” (Stats. 2008, ch. 69, § 7, p. 230.) The Legislature also declared that “[t]his act does not, and shall not be construed to, affect the authority of a public entity that otherwise exists to regulate or monitor the basis for eviction.” {Ibid.)

Section 1161b was amended in 2012 (Stats. 2012, ch. 562, § 3) and the amendment went into effect on January 1, 2013. (See Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. "(a).) As amended, section 1161b, subdivision (a), provides: “Notwithstanding Section 1161a, a tenant or subtenant in possession of a rental housing unit under a month-to-month lease or periodic tenancy at the time the property is sold in foreclosure shall be given 90 days’ written notice to quit pursuant to Section 1162 before the tenant or subtenant may be removed from the property as prescribed in this chapter.” As amended, section 1161b, subdivision (b), additionally provides that “tenants or subtenants holding possession of a rental housing unit under a fixed-term residential lease entered into before transfer of title at the foreclosure sale shall have the right to possession until the end of the lease term, and all rights and obligations under the lease shall survive foreclosure . . . .” (Italics added.) A fixed-term residential lease is not entitled to this additional protection, however, where “[t]he purchaser or successor in interest will occupy the housing unit as a primary residence,” “[t]he lessee is the mortgagor or the child, spouse, or parent of the mortgagor,” “[t]he lease was not the result of an arms’ length transaction,” or “[t]he lease requires the receipt of rent that is substantially less than fair market rent for the property, except when rent is reduced or subsidized due to a federal, state, or local subsidy or law.” (§ 1161b, subd. (b).) Section 1161b does “not apply if any party to the note remains in the property as a tenant, subtenant, or occupant.” (§ 1161b, subd. (d).)

In enacting the 2012 amendment to section 1161b, the California Legislature was attempting to bring California law in line with the federal PTFA. An Assembly floor analysis of the bill amending section 1161b explained: “The PTFA, which is currently scheduled to sunset on December 31, 2014, generally requires the purchaser of a home at a foreclosure sale to honor a bona fide tenant’s lease unless the purchaser intends to occupy the home as their primary residence. If there is no lease, if the lease is terminable at will (a month-to-month tenancy), or if the purchaser will occupy the home as their primary residence, the tenant must be provided with a 90-day notice to vacate (unless a longer period is required by state or local law). As a result, currently federal law generally provides greater protection to tenants than state law by providing additional time (90 vs. 60 days) and imposes a requirement that the lease be honored under certain circumstances, ffl] This bill would make the state law provisions described above comparable to federal law by providing that a new owner of a foreclosed property must honor a tenant’s lease.” (Assem. Conc. in Sen. Amends, to Assem. Bill No. 2610 (2011-2012 Reg. Sess.) as amended Aug. 20, 2012, pp. 3-4; see Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 2610 (2011-2012 Reg. Sess.) as amended Aug. 20, 2012, pp. 2, 4-5.)

B. Federal Protecting Tenants at Foreclosure Act of 2009

1. Provisions of the PTFA

The PTFA was enacted as part of the Helping Families Save Their Homes Act of 2009 enacted in 2009. (Pub.L. No. 111-22, div. A, tit. VH (May 20, 2009) 123 Stat. 1632.) The PTFA is a very short act, consisting of only four sections. Section 701 of the PTFA establishes its short title.

Section 702 of the PTFA specifies the protections for bona fide tenants of foreclosed properties. Section 702, subdivision (a), of the PTFA provides: “In General.—In the case of any foreclosure on a federally-related mortgage loan or on any dwelling or residential real property after the date of enactment of this title [(May 20, 2009)], any immediate successor in interest in such property pursuant to the foreclosure shall assume such interest subject to—[f] (1) the provision, by such successor in interest of a notice to vacate to any bona fide tenant at least 90 days before the effective date of such notice; and [fl (2) the rights of any bona fide tenant . . .—[f] (A) under any bona fide lease entered into before the notice of foreclosure to occupy the premises until the end of the remaining term of the lease, except that a successor in interest may terminate a lease effective on the date of sale of the unit to a purchaser who will occupy the unit as a primary residence, subject to the receipt by the tenant of the 90 day notice under paragraph (1); or [][] (B) without a lease or with a lease terminable at will under State law, subject to the receipt by the tenant of the 90 day notice under subsection (1), [f] except that nothing under this section shall affect the requirements for termination of any Federal- or State-subsidized tenancy or of any State or local law that provides longer time periods or other additional protections for tenants.”

Section 702, subdivision (b), of the PTFA, provides that for purposes of this section “a lease or tenancy shall be considered bona fide only if—H] (1) the mortgagor or the child, spouse, or parent of the mortgagor under the contract is not the tenant; [][] (2) the lease or tenancy was the result of an arms-length transaction; and [][] (3) the lease or tenancy requires the receipt of rent that is not substantially less than fair market rent for the property or the unit’s rent is reduced or subsidized due to a Federal, State, or local subsidy.”

Section 702, subdivision (c), of the PTFA, states that as used by this section “the term ‘federally-related mortgage loan’ has the same meaning as in section 3 of the Real Estate Settlement Procedures Act of 1974 (12 U.S.C. 2602).” As amended in 2010, section 702, subdivision (c), also provides: “For purposes of this section, the date of a notice of foreclosure shall be deemed to be the date on which complete title to a property is transferred to a successor entity or person as the result of an order of a court or pursuant to provisions in a mortgage, deed of trust, or security deed.” (Pub.L. No. 111-203, tit. XIV, § 1484 (July 21, 2010) 124 Stat. 2204.)

Section 703, subdivision (2), of the PTFA inserted new language at the end of (o)(7)(F) of title 42 United States Code, section 1437f, which concerns low income housing assistance: “In the case of any foreclosure on any federally-related mortgage loan (as that term is defined in section 2602 of title 12) or on any residential real property in which a recipient of assistance under this subsection resides, the immediate successor in interest in such property pursuant to the foreclosure shall assume such interest subject to the lease between the prior owner and the tenant and to the housing assistance payments contract between the prior owner and the public housing agency for the occupied unit, except that this provision and the provisions related to foreclosure in subparagraph (C) shall not. . . affect any State or local law that provides longer time periods or other additional protections for tenants.” (Fn. omitted.)

Under section 704 of the PTFA, a sunset provision, the Act is repealed and its requirements terminate on December 31, 2014.

2. “Shall Assume Such Interest Subject to ”

Appellants assert that the federal statute “created a landlord-tenant relationship for the remaining period of [their] lease, i.e. through June 1, 2010.” They argue that the Bank owed at least the same duties to them as any California landlord owes to its tenant.

Respondents maintain that “the PTFA only provides a defense to eviction proceedings in state court.” They state that “tenants can contest eviction proceedings (i.e., defend an unlawful detainer action) on the grounds that the post-foreclosure owner has not complied” with the PTFA’s requirement to provide notice or permit continued occupancy. They contend there is not a single case in which the PTFA has been asserted as a basis for a tenant’s claims against a “post-foreclosure owner.” They also suggest that the Act “at most provides only that a bona fide tenant has the right to occupy the premises until the end of the remaining term of the lease” and did not make Deutsche Bank the landlord.

“Our goal is to determine the Legislature’s intent and adopt a construction that best effectuates the purpose of the law. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 888 [80 Cal.Rptr.3d 690, 188 P.3d 629]; In re J. W. (2002) 29 Cal.4th 200, 209 [126 Cal.Rptr.2d 897, 57 P.3d 363].) We begin with the statutory language because it generally provides the most reliable indication of legislative intent. (City of Burbank v. State Water Resources Control Bd. (2005) 35 Cal.4th 613, 625 [26 Cal.Rptr.3d 304, 108 P.3d 862]; People v. Gardeley (1996) 14 Cal.4th 605, 621 [59 Cal.Rptr.2d 356, 927 P.2d 713].) 1 “If the statutory language is unambiguous, we presume the Legislature meant what it said, and the plain meaning of the statute controls. [Citation.]” [Citation.] We consider extrinsic aids, such as legislative history, only if the statutory language is reasonably subject to multiple interpretations.’ (Miklosy v. Regents of University of California, at p. 888 .. . .)” (In re W.B. (2012) 55 Cal.4th 30, 52 [144 Cal.Rptr.3d 843, 281 P.3d 906].)

In determining whether section 702 of the PTFA causes a bona fide lease to survive foreclosure despite contrary state law, we begin taking particular note of its phrases “any immediate successor in interest in such property pursuant to the foreclosure shall assume such interest subject to . . .” and “except that a successor in interest may terminate a lease . . . .” (Italics added.) We also observe that, despite respondents’ assertions, the Act does not expressly state that the PTFA’s protections may be invoked only as an affirmative defense. The language of section 702 of the Act seems to indicate that a successor in interest takes title in the foreclosed property subject to a bona fide lease for a term because otherwise it would be nonsensical to provide that an immediate successor has the power to “terminate a lease” as specified.

On the other hand, Congress could have been more straightforward. As indicated, section 703, subdivision (2), of the PTFA, which amended existing law to state the effect of foreclosure on housing assistance, contained more direct language: “the immediate successor in interest in such property pursuant to the foreclosure shall assume such interest subject to the lease between the prior owner and the tenant and to the housing assistance payments contract . . . .” (42 U.S.C. § 1437f, subd. (o)(7)(F), italics added.) Congress could have also said, as did the California Legislature, that “all rights and obligations under the lease shall survive foreclosure . . .” (§ 1161b, subd. (b)).

“To the extent a statutory text is susceptible of more than one reasonable interpretation, we will consider ‘ “a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.” ’ [Citation.]” (Eisner v. Uveges (2004) 34 Cal.4th 915, 929 [22 Cal.Rptr.3d 530, 102 P.3d 915], fn. omitted.) Accordingly, we turn to extrinsic aids to determine whether or not Congress intended bona fide leases for a term to survive foreclosure and bind successors in interest.

3. Legislative History

On May 1, 2009, Senator John Kerry submitted an amendment (Sen. Amend. No. 1036) to add the PTFA, as proposed, to another amendment (Sen. Amend. No. 1018) to a bill (Sen. No. 896, 111 Cong., 1st Sess. (2009)), which was aimed at preventing mortgage foreclosures and enhancing mortgage credit. (155 Cong. Rec. S5029 (May 1, 2009).)

On May 5, 2009, Senator Kerry called up the amendment for consideration. (155 Cong. Rec. S5110 (May 5, 2009.) The senator stated that he was “offering this amendment to address the needs of renters in properties that have been foreclosed.” (Ibid.) He argued: “Congress has already taken extraordinary measures to help troubled borrowers in communities where they have abandoned foreclosed properties, but Congress has done very little to help renters who have been paying their rent regularly on time but, unfortunately, they have landlords who are losing their property to foreclosure. So these renters are absolutely blameless victims in the foreclosure catastrophe that has hit the country. ... [1] These renters often have absolutely no idea that their home is about to be foreclosed. Depending on the State they live in, they may be evicted with absolutely no notice. Obviously, this could be particularly difficult for low-income renters who don’t have the resources to relocate or even to do so very quickly, [f] Under this amendment, tenants in any federally related mortgage loan or any dwelling or residential real property with a lease have a right to remain in the unit until the end of the existing lease. If a new purchaser intends to use the property as a primary residence, then the lease may be terminated, but the tenant has to receive 90 days’ notice to vacate, [f] So what we believe is that this provides an appropriate level of protection. It doesn’t take away the right of someone who takes over the home in foreclosure to be able to then transition that property or it decides if that person is going to keep the property as a rental property, the person who already has a legitimate lease has a right to be able to stay.” (155 Cong. Rec. S5110-S5111 (May 5, 2009).) Senator Kerry declared that “[a] landlord should not be allowed to come in, change the locks, and force out tenants who were there completely legitimately, with an expectation that they were coming home to their same old home.” (Id.., S5111.) He explained: “Furthermore, [it] states specifically that none of the provisions here would affect any State and local law that provides a longer time period or other additional protections to renters. So there is nothing here that reduces the protection renters get.” (Ibid.)

Senator Kerry gave examples of tenants returning home to find locks changed, utilities turned off, or possessions put out on the street. (155 Cong. Rec. S5111 (May 5, 2009).) He stated: “It is well documented how foreclosure is already overpowering countless numbers of homeowners who are unable to pay their mortgages, but foreclosure is also causing a rampage of sudden evictions of renters. My amendment would stop that rampage and help unsuspecting renters from falling victim to foreclosure in which they played absolutely no part.” (Ibid.)

Senator Dodd offered his comments on the amendment. Among other things, he stated that “the measure requires at least 90-days’ notice for all renters in federally related housing, but would honor the full term of any existing lease unless a new owner will occupy the home.” (155 Cong. Rec. S5115 (May 5, 2009).) He explained: “What Senator Kerry is saying here, at least for tenants who are in good standing on their properties, they should not be affected because the property ended up in foreclosure through whatever rationale that may have happened to the landlord. It seems to me, putting people out on the street is not what we ought to be doing at a time such as this.” (Ibid., some capitalization omitted.)

On May 6, 2009, during further debate, Senator Kerry argued: “[W]e have taken a lot of effort to try to help troubled borrowers in communities that have foreclosed properties. Here is the problem that exists. If you are a renter and living in a property that has been foreclosed on, you have nothing to do with the foreclosure, you are paying rent, you have a lease, but a lot of these people are getting kicked out of their apartments, out of their homes, [f] What we want to do is provide them with a provision where they will have 90 days—if the people who foreclosed are going to use that residence as a primary residence. If the residence is going to continue to be a multiple-party residence where they have a number of people renting and they will continue to use it as such, we want to leave those leases in effect until the end of the lease. We are protecting legitimate, low- to moderate-income folks in America who do not get protections otherwise from being just booted out on the street, which is literally what has happened in the absence of this protection.” (155 Cong. Rec. S5174 (May 6, 2009).)

The legislative history of the enactment of the PTFA strengthens the case that its section 702 was intended to cause bona fide leases for a term to survive foreclosure.

4. Administrative Construction

We also take a look at administrative construction of the PTFA as an aid to judicial interpretation. “Although we are not bound by administrative decisions construing a controlling statute, we accord ‘ “great weight and respect to the administrative construction.” ’ [Citation.] The amount of deference given to the administrative construction depends ‘ “upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” ’ [Citation.]” (Hoechst Celanese Corp. v. Franchise Tax Bd. (2001) 25 Cal.4th 508, 524 [106 Cal.Rptr.2d 548, 22 P.3d 324], italics omitted.) “When an administrative agency construes a statute in adopting a regulation or formulating a policy, the court will respect the agency interpretation as one of several interpretive tools that may be helpful.” (Agnew v. State Bd. of Equalization (1999) 21 Cal.4th 310, 322 [87 Cal.Rptr.2d 423, 981 P.2d 52].)

Shortly after the PTFA was enacted, the Department of Housing and Urban Development (HUD) issued a notice, entitled “Protecting Tenants at Foreclosure: Notice of Responsibilities Placed on Immediate Successors in Interest Pursuant to Foreclosure of Residential Property,” dated June 24, 2009. (74 Fed.Reg. 30106-30108 (June 24, 2009), boldface omitted.) HUD indicated that it was “directing this notice to entities and individuals that participate in HUD programs or with whom HUD interacts in its HUD programs” but that “these obligations are not limited to FHA-insured or HUD-assisted housing.” (74 Fed.Reg. 30106 (June 24, 2009).) The notice announced: “[The PTFA] . . . requires that tenants residing in foreclosed residential properties be provided notice to vacate at least 90 days in advance of the date by which the immediate successor, generally, the purchaser, seeks to have the tenants vacate the property. Except where the purchaser will occupy the property as the primary residence, the term of any bona fide lease also remains in effect.” (Ibid.) It specified: “Section 702 [of the PTFA] provides that a tenant under any bona fide lease entered into before the notice of foreclosure has the right to occupy the premises until the end of the remaining term of the lease. The only exception to preserving the remaining term of the lease is for a purchaser who will occupy the unit as a primary residence. Even under this exception, however, the tenant must still be provided with the 90-day advance notice to vacate.” (74 Fed.Reg. 30106, 30107 (June 24, 2009).)

That June 2009 HUD notice further explained that “Section 703 [of the PTFA] makes conforming changes consistent with the Section 702 requirements to the Section 8 rental voucher assistance provisions of the United States Housing Act of 1937 (1937 Act)” (74 Fed.Reg. 30106 (June 24, 2009).) The notice stated: “Section 8(o)(7) of the 1937 Act is further amended by Section 703 to provide that the successor in interest in the case of any foreclosure of a property in which a voucher recipient resides assumes the interest in the property subject to the lease and HAP [housing assistance payment] contract in place before the foreclosure. This provision confirms that the section 8 tenant’s lease is, in effect, a bona fide lease and that the HAP contract survives the foreclosure, just as the lease does.” (74 Fed.Reg. 30106, 30107-30108 (June 24, 2009).)

In a September 28, 2009 letter to “FDIC-Supervised Institutions,” the Federal Deposit Insurance Corporation (FDIC) explained that, under the PTFA, “[a]ll tenants must receive a 90-day notice before being evicted as the result of a foreclosure.” (FDIC Financial Institutions Letter, FIL-56-2009, Sept. 28, 2009 [as of Jan. 23, 2014].) The letter stated: “With some exceptions, the law requires that in the event of foreclosure, existing leases for renters are honored to the end of the term of their lease.” (Ibid.) It further said: “The stated exceptions are for tenants without a lease, tenants with a lease terminable at will under state law, or where the owner acquiring the property will occupy it as a primary residence. In these cases, the tenants must receive a minimum of 90 days notice to vacate the property.” (Ibid.) It advised that “FDIC examiners will monitor and enforce compliance with the requirements of this law in the same manner as other consumer protection laws and regulations.” (Ibid.)

By notice dated October 28, 2010, HUD provided additional guidance on the PTFA. (75 Fed.Reg. 66385-66386 (Oct. 28, 2010).) The notice addressed “the interplay of the PTFA notice requirements with the notice requirements of [the Federal Housing Administration’s] occupied conveyance regulations.” (75 Fed.Reg. 66385, 66386 (Oct. 28, 2010).) It reiterated HUD’s understanding of the PTFA. (75 Fed.Reg. 66385-66386 (Oct. 28, 2010).) It explained that the “date of notice of foreclosure” had been defined by additional legislation. (75 Fed.Reg. 66385, 66386 (Oct. 28, 2010).) It stated: “To fall under the Act, a bona fide lease must be entered into prior to the date of the notice of foreclosure, which is defined as ‘the date on which complete title to a property has been transferred to a successor entity or person as a result of an order of a court or pursuant to the provisions in a mortgage, deed of trust, or security deed.’ ” (Ibid.)

In March 2012, HUD issued a notice providing “further guidance on the relationship between FHA [Federal Housing Administration] regulations and the protections for existing tenants under the PTFA.” (77 Fed.Reg. 15379-15382 (Mar. 15, 2012).) HUD again described the PTFA’s protections of tenants, including the 90-day notice requirement and preservation of the term of bona fide leases. (77 Fed.Reg. 15379-15382 (Mar. 15, 2012).) It indicated that the “requirements of the PTFA apply with respect to properties secured by FHA-insured mortgages as well as those in the Section 8 program.” (77 Fed.Reg. 15379 (Mar. 15, 2012).) As to mortgagee compliance under the PTFA, the notice stated: “Before completion of foreclosure, the mortgagee must confirm the identity of all occupants, determine each occupant’s possible rights for continued occupancy under the PTFA and state or local law, and attempt to obtain documentation of existing leases and tenancies.” (77 Fed.Reg. 15379, 15380 (Mar. 15, 2012).)

The United States Office of the Comptroller of the Currency (OCC) issued a bulletin, dated December 14, 2011, to “Chief Executive Officers of All National Banks and Federal Savings Associations, Department and Division Heads, and All Examining Personnel” regarding “Guidance on Potential Issues With Foreclosed Residential Properties.” (OCC Bulletin, OCC 2011-49, Dec. 14, 2011, boldface omitted, later rescinded and replaced by bulletin 2013-20 [as of Jan. 23, 2014].) In discussing the obligations of the national banks and federal savings associations (collectively, banks) as the owner of a foreclosed property, the OCC’s bulletin warned that “[i]n acquiring title to foreclosed properties, banks assume the primary responsibilities of an owner, including . . . serving as [a] landlord for rental properties.” (Ibid.) The bulletin stated: “The Protecting Tenants at Foreclosure Act of 2009 provides tenants with protections from eviction as a result of foreclosure on the properties they are renting.” (Ibid.) It advised: “When a bank takes title to a house after foreclosure, it must honor any exiting rental agreement with a bona fide tenant and must provide 90 days’ notice to the tenant prior to eviction whether or not the tenant has a rental agreement.” (Ibid)

In early 2013, the FDIC provided guidance to assuming institutions regarding the “Cash for Keys” program. (FDIC, RSAM Guidance 2013-GOO 1, Jan. 7, 2013 [as of Jan. 23, 2014].) It counseled that bona fide leases are protected under the PTFA: “For tenants under a lease who are current on their rental obligations, PTFA prohibits an eviction prior to the end of their lease terms—the lease survives foreclosure. The new owner must fulfill the landlord[s’] responsibilities under the lease, but he is under no legal obligation to renew or extend the lease. There is an exception to the lease protection: if the new owner intends to occupy the rental property as his primary residence, the new owner can break the lease, but the tenant must be given 90 days from the eviction notice date to vacate the property.”

5. Construction of the PTFA

No one disputes that the PTFA mandates that, at a minimum, an immediate successor in interest in foreclosed property give 90 days’ notice to vacate to bona fide tenants of residential property. In light of the legislative history of the PTFA and the Act’s consistent administrative construction, it also appears unmistakable that Congress intended a bona fide lease to survive foreclosure through the end of the lease term by operation of the Act. Congress struck a compromise by preserving bona fide leases for the duration of their remaining terms while providing immediate successors in interest the authority to “terminate a lease” “effective on the date of sale of the unit to a purchaser who will occupy the unit as a primary residence” with the provision of at least 90 days’ notice to vacate. (PTFA, § 702, subd. (a)(2).)

If section 702 of the PTFA were read as only requiring a 90-day notice to vacate, much of its statutory language would be mere surplusage. Similarly, if that section were read as applying only to leases that already survive foreclosure under state law, then the Act’s special protection for bona fide tenancies for a term would be rendered completely superfluous. “The rules of statutory construction direct us to avoid, if possible, interpretations that render a part of a statute surplusage. [Citations.]” (People v. Cole (2006) 38 Cal.4th 964, 980-981 [44 Cal.Rptr.3d 261, 135 P.3d 669].) Courts “must strive to give meaning to every word in a statute and to avoid constructions that render words, phrases, or clauses superfluous. [Citations.]” (Klein v. United States of America (2010) 50 Cal.4th 68, 80 [112 Cal.Rptr.3d 722, 235 P.3d 42].) The well-established principles of statutory construction “preclude judicial construction that renders part of the statute ‘meaningless or inoperative.’ [Citation.]” (Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 715-716 [3 Cal.Rptr.3d 623, 74 P.3d 726].)

Although respondents insist that the PTFA provides nothing more than an affirmative defense to judicial proceedings to oust a tenant from á foreclosed property, we find no language in the Act suggesting such limitation. Moreover, their position appears untenable when examined in the light of the PTFA’s legislative history, the “evils to be remedied,” and administrative construction of the Act by federal entities. “The object that a statute seeks to achieve is of primary importance in statutory interpretation. [Citations.]” (Lusardi Construction Co. v. Aubry (1992) 1 Cal.4th 976, 987 [4 Cal.Rptr.2d 837,. 824 P.2d 643].) Congress clearly intended the Act to put a stop to self-help measures like blocking bona fide tenants’ access, turning off their utilities, or removing the tenants’ possessions. If this court accepted the view that the PTFA could be invoked only defensively in court, bona fide tenancies for a term surviving foreclosure only by operation of the Act would be largely unprotected and immediate successors in interest could interfere with tenants’ possessory rights with impunity so long as they did not commence eviction proceedings or other legal action in which the Act could be raised as a defense. That result would be completely at odds with the aim of the Act.

Similarly, a conclusion that Congress was merely bestowing the isolated right to occupy the leased premises through end of bona fide tenancies for a term would be inconsistent with the statutory language suggesting that bona fide leases for a term continue in effect (“a successor in interest may terminate a lease”) and the protective purposes of the PTFA. Such an interpretation would lead to the absurd result that a bona fide tenant could “occupy” leased premises for the duration of a lease term with no obligation to pay rent as provided by the lease to a successor in interest and a successor in interest in a foreclosed property would not be obligated, by the lease’s implied warranty of habitability, “to maintain leased dwellings in a habitable condition throughout the term of the lease. [Citation.]” (Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1204 [43 Cal.Rptr.2d 836, 899 P.2d 905].)

The interpretation of section 702 of the PTFA that most reasonably comports with congressional intent is that a subordinate bona fide lease survives foreclosure for the remainder of the term by operation of the Act regardless of state law to the contrary and, consequently, the bona fide tenants under that lease and the immediate successor in interest in the

foreclosed property have a landlord-tenant relationship, although the lease may be terminated as provided in the Act. (Cf. Gross v. Superior Court (1985) 171 Cal.App.3d 265, 274 [217 Cal.Rptr. 284] [purchaser of property, which was subject to local rent stabilization ordinance, at nonjudicial foreclosure sale “became a ‘landlord’ by operation of law” even though written lease agreement executed subsequent to the recordation of the deed of trust].)

6. Preemption

Appellants’ amici curiae assert that tenants’ rights under section 702 of the PTFA preempt less protective state law. The United States Supreme Court has recognized that the supremacy clause of article VI of the United States Constitution “may entail pre-emption of state law either by express provision, by implication, or by a conflict between federal and state law. [Citations.]” (New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co. (1995) 514 U.S. 645, 654 [131 L.Ed.2d 695, 115 S.Ct. 1671].) “[Preemption] principles are not inapplicable . . . simply because real property law is a matter of special concern to the States: ‘The relative importance to the State of its own law is not material when there is a conflict with a valid federal law, for the Framers of our Constitution provided that the federal law must prevail.’ [Citations.]” (Fidelity Federal Sav. & Loan Assn. v. de la Cuesta (1982) 458 U.S. 141, 153 [73 L.Ed.2d 664, 102 S.Ct. 3014].) The only reasonable conclusion with respect to the PTFA is that the Congress intended to supplant less protective state law but not “any State or local law that provides longer time periods or other additional protections for tenants.” (PTFA, § 702, subd. (a).) Accordingly, assuming the validity of the PTFA, the Act prevails over state law that would otherwise extinguish a bona fide lease within the meaning of the Act and the immediate successor in interest in foreclosed property takes subject to a bona fide tenancy for a term but it retains the power to terminate the lease as provided by the Act.

7. No Federal Private Right of Action

Appellants do not dispute that the PTFA did not create a private cause of action under federal law. (See, e.g., Nativi v. Deutsche Bank National Trust Co., supra, 2010 WL 2179885 at p. *4; see also Logan v. U.S. Bank National Assn. (9th Cir. 2013) 722 F.3d 1163 [PTFA does not create a private right of action].) The lack of federal private cause of action under the PTFA, however, does not determine state law claims in state courts.

Some federal courts have determined that Congress intended tenant rights established by the PTFA to be enforceable under state law. (See, e.g., Ingo v. Deutsche Bank National Trust Co. (D. Utah, Nov. 29, 2011, No. 2:ll-cv-812 BCW) 2011 WL 5983340, p. *3 [“. . . PTFA was intended to allow tenants who are victims of the foreclosure crisis a protection that can be used in the state courts to combat unlawful evictions.”]; Nativi v. Deutsche Bank National Trust Co., supra, 2010 WL 2179885 at p. *4 [Congress “intended to provide tenants additional rights which could be used in state court proceedings”]; see also Logan v. U.S. Bank National Assn., supra, 722 F.3d at p. 1173 [“. . . PTFA’s nationwide federal policy and requirements are not rendered unenforceable by the absence of a federal private right of action. [Citation.]”].) For example, in Webb v. Green Tree Servicing, LLC (D.Md., June 7, 2012, Civ. A. No. ELH-11-2105) 2012 WL 2065539, the court found it unnecessary to resolve whether the PTFA supports a private right of action because the plaintiff asserted a negligence claim. (2012 WL 2065539 at p. *7, fn. 8.) It noted that “[t]he existence of an express or implied private right of action is not necessary to a negligence claim based on a statutory violation.” (2012 WL 2065539 at p. *7, fn. 8.)

8. Illegality of Converted Garage Unit Does Not Make PTFA Inapplicable

Respondents argue that appellants’ lease was void as a matter of law because the garage unit was illegal and, therefore, the PTFA did not apply. Respondents did not rely upon evidence of the illegality of the garage unit in moving for summary judgment. Moreover, we see nothing in the language or legislative history of the PTFA exempting leases involving illegal rental units. The essential goal of the federal law is to protect vulnerable tenants at foreclosure. Its protective purpose to prevent abrupt dispossession of tenants as a result of foreclosure would be frustrated if we accepted respondents’ argument that the PTFA does not apply to illegal rental units.

In Carter v. Cohen (2010) 188 Cal.App.4th 1038 [116 Cal.Rptr.3d 303] {Carter), a former tenant sued her former landlord for damages for rent overpayments. {Id. at p. 1042.) She had leased a detached guesthouse, which had been constructed without permits, located on a residential property that also contained a house. {Ibid.) She claimed that the rent increases, imposed by her former landlord after he bought the residential property, exceeded the limits set by a municipal rent stabilization ordinance (RSO). (ibid.) The issue on appeal was whether the former tenant was entitled to recover her excess rent payments even though the guesthouse lacked a certificate of occupancy and was not registered under the ordinance. (Id. at p. 1046.) The former landlord contended that the action to recover excess rent payments failed as a matter of law because the rental agreement was unlawful and outside the scope of the ordinance. (Id. at p. 1043.) He maintained that the rental agreement was “void and unenforceable because the guesthouse had been built without permits, lacked a certificate of occupancy, and was unregistered under the RSO.” (Id. at p. 1047.)

The appellate court acknowledged that “[rjental agreements involving units that were constructed without building permits or lack a certificate of occupancy are ordinarily regarded as unlawful and void. [Citations.]” (Carter, supra, 188 Cal.App.4th at p. 1047.) “Generally, ‘the courts . . . will not enforce an illegal bargain or lend their assistance to a party who seeks compensation for an illegal act.’ (Lewis & Queen v. N. M. Ball Sons (1957) 48 Cal.2d 141, 150 [308 P.2d 713] (Lewis & Queen).)” (Ibid) But the appellate court refused to apply the rule in that case because otherwise public policy would be thwarted. (Id. at pp. 1048-1050.)

The appellate court in Carter stated that “the rule barring the enforcement of unlawful contracts is not absolute.” (Carter, supra, 188 Cal.App.4th at p. 1048.) An exception to that rule exists “ ‘[w]hen the Legislature enacts a statute forbidding certain conduct for the purpose of protecting one class of persons from the activities of another, a member of the protected class may maintain an action notwithstanding the fact that he has shared in the illegal transaction. The protective purpose of the legislation is realized by allowing the plaintiff to maintain his action against a defendant within the class primarily to be deterred. In this situation it is said that the plaintiff is not in pari delicto. [Citations.]’ (Lewis & Queen, supra, 48 Cal.2d at p. 153, italics omitted.)” (Ibid) When this exception applies, “a plaintiff’s awareness that he or she may be participating in improper conduct does not bar relief under a statute if raising such a barrier would defeat the aim of the statute.” (Id. at p. 1050.) It noted that “[c]ourts have thus permitted parties to obtain benefits under a law enacted for their protection, despite their participation in transactions that contravened the law [citation].” (Id. at p. 1048.) The appellate court concluded that “[b]ecause ‘[t]he protective purpose of the legislation [was] realized by allowing [Carter] to maintain [her] action against [her landlord]’ (Lewis & Queen, supra, 48 Cal.2d at p. 153), the trial court properly permitted her to assert her RSO claim.” (Id. at p. 1049.)

Similarly in this case, permitting Deutsche Bank, the immediate successor in interest in the foreclosed property, to invoke the general rule that illegal contracts are unenforceable would allow it to circumvent the PTFA and frustrate its fundamental public policy purpose. At this juncture, we need not resolve whether an immediate successor in interest could lawfully terminate a bona fide tenancy for a term if a municipality brought an enforcement action for code violations or whether the PTFA would require the successor in interest to bring the property into compliance to avoid liability.

Ill

Summary Judgment

A. Standard of Review

A reviewing court “owe[s] the superior court no deference in reviewing its ruling on a motion for summary judgment; the standard of review is de novo. [Citation.]” (Coral Construction, Inc. v. City and County of San Francisco (2010) 50 Cal.4th 315, 336 [113 Cal.Rptr.3d 279, 235 P.3d 947].) Thus, “[w]e review the trial court’s decision de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037 [32 Cal.Rptr.3d 436, 116 P.3d 1123].)” (State of California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1017-1018 [90 Cal.Rptr.3d 1, 201 P.3d 1147].)

“First, and generally, from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. ... A defendant bears the burden of persuasion that ‘one or more elements of’ the ‘cause of action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto. (Id., § 437c, subd. (o)(2) [(now (p)(2))].)” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [107 Cal.Rptr.2d 841, 24 P.3d 493], fn. omitted.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Ibid., fn. omitted.)

“Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) “Third, and generally, how the parties moving for, and opposing, summary judgment may each carry their burden of persuasion and/or production depends on which would bear what burden of proof at trial.” (Id. at p. 851.) Thus, where a plaintiff would bear the burden of proof by a preponderance of evidence at trial, a defendant moving for summary judgment “must present evidence that would require a reasonable trier of fact [not] to find any underlying material fact more likely than not—otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” {Ibid., fn. omitted, italics added & omitted.)

“[E]ven though the court may not weigh the plaintiff’s evidence or inferences against the defendants’ as though it were sitting as the trier of fact, it must nevertheless determine what any evidence or inference could show or imply to a reasonable trier of fact.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 856.) In ruling on the motion, the court must view the evidence and inferences in the light most favorable to the opposing party. {Id. at p. 843.)

A motion for summary judgment must be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment may not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.” {Ibid.)

B. State Law Claims

As discussed, we conclude that the trial court erred in its interpretation of the PTFA. Respondents have not identified any legal bar precluding a bona fide tenant whose bona fide tenancy for a term survives foreclosure by operation of the PTFA from seeking state law remedies for violations of the tenant’s rights against an immediate successor in interest in a foreclosed property. Appellants assert that the trial court should not have granted summary judgment in favor of respondents because triable issues of material fact exist with regard to their causes of action for breach of the covenant of quiet enjoyment and wrongful eviction.

1. Pleadings

The pleadings “ ‘set the boundaries of the issues to be resolved at summary judgment.’ (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648 [32 Cal.Rptr.3d 266]; see generally Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673 [25 Cal.Rptr.2d 137, 863 P.2d 207] [‘pleadings serve as the outer measure of materiality in a summary judgment proceeding’].)” (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250 [91 Cal.Rptr.3d 532, 203 P.3d 1127] (Conroy).) When an appellate court reviews a ruling on a motion for summary judgment, it must identify the issues framed by the pleadings. (See Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252 [32 Cal.Rptr.2d 223, 876 P.2d 1022].) “The materiality of a disputed fact is measured by the pleadings [citations] . . . .” (Conroy v. Regents of University of California, supra, 45 Cal.4th at p. 1250; see id. at p. 1254.) Moving defendants have “the burden on summary judgment of negating only those ‘ “theories of liability as alleged in the complainf ’ and [are] not obliged to ‘ “ ‘ “refute liability on some theoretical possibility not included in the pleadings,” ’ ” ’ simply because such a claim was raised in plaintiff’s declaration in opposition to the motion for summary judgment. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 332 [40 Cal.Rptr.3d 313].)” (Id. at p. 1254.) Declarations in opposition to a motion for summary judgment are not a substitute for amending the pleadings to raise additional theories of liability. (Ibid.) “[Sjummary judgment cannot be denied on a ground not raised by the pleadings. [Citations.]” (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663 [42 Cal.Rptr.2d 669].)

In their second amended complaint, appellants generally alleged the following. Appellants became tenants of a two-bedroom unit located at 1156 Stoneylake Court beginning on June 1, 2007. They leased by the year from the former owner, Daisy Cazzali (Cazzali) and the most recent lease commenced on June 1, 2009. Deutsche Bank “purported to foreclose” on the property and, as trustee, took title to it. After it acquired title, the Bank contracted with AHMSI to service the property and AHMSI hired a local real estate company, XL Advisors Inc., doing business as Advisors Real Estate Group (Advisors), to prepare the property for sale and oust its occupants. Advisors was operated by real estate agent Rob Roham and it employed Paulette Diaz. Appellants did not receive any notice from respondents acknowledging their rights as tenants under the PTFA.

Appellants further generally averred the following. All of their “belongings were removed from their home and thrown into the backyard, where the belongings were destroyed.” Respondents deprived them of possession of their home by unlawfully evicting them and refusing to allow them to return to the premises. When appellants tried to access their home they were removed from the property by the police at respondents’ instruction. Appellant Perez returned from a trip at the end of September 2009 to find all of his and his mother’s belongings thrown out into the yard. The police were called to the property and Diaz, acting on behalf of respondents, instructed police to exclude appellant Perez fro