I.

INTRODUCTION

In this unlawful detainer action, defendant and appellant, Cameron DeSmidt

appeals the trial court’s orders (1) denying his request for restitution, (2) denying his

motion for a new trial, and (3) dismissing with prejudice this action filed against him.

We find no error and affirm.

II.

FACTUAL AND PROCEDURAL BACKGROUND

In 2007, DeSmidt took out a mortgage for about $367,000, for a property in

Murrieta. DeSmidt stopped making payments on the mortgage in December 2008. The

property was eventually foreclosed on in a trustee’s sale in February 2017. By that time,

DeSmidt was nearly $600,000 in arrears on the loan, yet he remained in possession of the

property.

Plaintiff and respondent, Federal National Mortgage Association aka “Fannie

Mae” thus filed this unlawful detainer action against DeSmidt in July 2017. Not long

after DeSmidt answered the complaint, Fannie Mae moved for summary judgment. The

trial court granted the motion, entered a judgment of possession for Fannie Mae, and then

issued a writ of possession, which was enforced by a Sheriff’s lockout in February 2019.

DeSmidt vacated the property and Fannie Mae took possession of it. DeSmidt appealed

to the Appellate Division of the Riverside Superior Court, but he did not move to stay the

judgment.

2 In November 2020, the Appellate Division reversed the judgment of possession

for Fannie Mae. The court held that there was a triable issue of fact as to whether Fannie

Mae was “the rightful beneficiary with authority to foreclose” and pursue the unlawful

detainer action. The court therefore found the case had to be “remanded for trial.”

On remand, DeSmidt filed a motion for restitution in July 2021. DeSmidt sought

possession of the property and nearly $130,000 in damages allegedly caused by his 1 eviction from the property. The trial court denied the motion.

After the case was reclassified as an unlimited civil matter, DeSmidt moved again

for restitution in November 2021, this time seeking only possession of the property. The

trial court denied the motion on the ground that “it would be inequitable to reinstate the

possession of the property to [DeSmidt].” The court so found because DeSmidt “was

over half a million dollars in arrears on the property before the foreclosure sale” and “had

not made a mortgage payment since November 1, 2008.”

Fannie Mae then moved again for summary judgment. The trial court denied the

motion as moot because “[t]he only issues in an unlawful detainer action are possession

and holdover damages and/or unpaid rent,” but Fannie Mae already had possession of the

property and was no longer seeking damages. The court noted that “possession is no

longer at issue” because Fannie Mae obtained a judgment of possession for the property

that, although later reversed, DeSmidt did not move to stay. The trial court thus directed

1 The record is silent as to the court’s reasons for denying the motion. The record only includes a minute order stating the motion is denied without prejudice.

3 Fannie Mae to move to dismiss the case since possession and damages were no longer at

issue. A few weeks later, the trial court entered an order dismissing the case with

prejudice.

DeSmidt then moved for a new trial under Code of Civil Procedure section 657

(section 657), challenging the trial court’s order denying him restitution. DeSmidt argued

the trial court erred by finding “possession is not at issue.” According to DeSmidt,

possession remained at issue and had to be decided at trial given the Appellate Division’s

opinion reversing and remanding the trial court’s order granting summary judgment to 2 Fannie Mae. The trial court denied the motion, and DeSmidt timely appealed.

III.

DISCUSSION

DeSmidt contends the trial court erroneously denied his motion for restitution,

dismissed the case with prejudice, and denied his motion for a new trial. We disagree.

A. Restitution

In general, when a judgment is reversed on appeal, the appellant is entitled to

restitution for all things lost by reason of the judgment, unless restitution would be

inequitable. (Levy v. Drew (1935) 4 Cal.2d 456, 459; Stockton Theatres, Inc. v. Palermo

(1953) 121 Cal.App.2d 616, 619 (Stockton Theatres).)

2 The trial court did not enter a signed, written order dismissing the case until we ordered DeSmidt to file a copy of a signed order of dismissal after he appealed. DeSmidt timely complied with our order by requesting and obtaining a signed dismissal order from the trial court and filing it in this court. We liberally construe DeSmidt’s notice of appeal as timely appealing from the trial court’s signed dismissal order.

4 These principles apply in the unlawful detainer context. (See e.g., Stockton

Theatres, supra, 121 Cal.App.2d at p. 619; Munoz v. MacMillan (2011) 195 Cal.App.4th

648, 658 (Munoz).) As relevant here, when a landlord who has secured a writ of

possession evicts a tenant before the appellate rights of the tenant have been exhausted,

the landlord assumes the risk it will be subject to a full accounting and restitution if the

judgment granting the writ of possession is reversed on appeal. (Erickson v. Boothe

(1954) 127 Cal.App.2d 644, 649.) The tenant can recover restitution “in the underlying

unlawful detainer action when a judgment for the landlord is reversed or in a separate

[breach of contract] action instituted to recover losses incurred as a result of a reversed

judgment.” (Munoz, supra, at p. 658.)

Whether the tenant may recover restitution, however, is an equitable determination

that is left to the trial court’s sound discretion. (Munoz, supra, 195 Cal.App.4th at pp.

655-656; Stockton Theatres, supra, 121 Cal.App.2d at p. 632.) We therefore will not

reverse a trial court’s ruling granting or denying restitution unless the ruling is a manifest

abuse of discretion that amounts to a miscarriage of justice. (Munoz, supra, at p. 662;

Wm. R. Clarke Corp. v. Safeco Ins. Co. of America (2000) 78 Cal.App.4th 355, 359.)

The trial court did not abuse its discretion here. By the time DeSmidt moved for

restitution, Fannie Mae had possessed the property for nearly 2.5 years since DeSmidt did

not obtain a stay of the judgment of possession for Fannie Mae while he appealed. The

trial court was well within its discretion in determining that ordering possession of the

property for DeSmidt would be inequitable. (See Munoz, supra, 195 Cal.App.4th at p.

5 658 [“[I]n most [unlawful detainer cases],” courts are loathed “to reinstate a tenant’s right

to possession after years have gone by”].)

The trial court likewise acted well within its discretion by finding DeSmidt was

not entitled to monetary damages as restitution. Although the record is silent as to why

the trial court denied DeSmidt’s request for monetary damages, the trial court could have

reasonably found that awarding him damages would have been inequitable. As the court

later observed in denying him possession of the property as restitution, DeSmidt stopped

making payments on the mortgage in late 2008, meaning that he had not paid a single

mortgage payment for over eight years by the time he was evicted. At that point, he was

nearly $600,000 in arrears on the loan. The trial court thus could have reasonably found

that, although there remained a question as to whether Fannie Mae had the authority to

foreclose on the property and file this unlawful detainer action, there was no question that

DeSmidt was not entitled to remain in the property. As a result, the trial court could have

reasonably found that it would have been inequitable to award DeSmidt damages he

allegedly suffered from being evicted—from a property he had effectively lived in for

free for over eight years.

B. Dismissal

DeSmidt next argues the trial court erred by dismissing the case after finding that

“possession is no longer at issue.” We disagree.

“An unlawful detainer action is a summary proceeding” where “[t]he sole issue

before the court is the right to possession.” (Vasey v. California Dance Co. (1977) 70

6 Cal.App.3d 742, 746-747.) It follows that there is nothing left that the court must decide

once possession of the property has been determined. (See ibid.)

DeSmidt was evicted pursuant to a judgment of possession for Fannie Mae, which

DeSmidt did not move to stay while he appealed. Even though the judgment was later

reversed, possession of the property—the only thing at issue in this unlawful detainer

action—had nonetheless been decided for purposes of this case. (See Boyd v. Carter

(2014) 227 Cal.App.4th Supp. 1, 11 fn 5. [“This summary unlawful detainer proceeding

concerned the right to possession of the premises, a matter that is no longer in issue

because the Carters were forcibly evicted. The judgment having been reversed, the

parties remain free to litigate any claims for damages arising from their lease or

landlord/tenant relationship.”].) Because there was nothing left for the trial court to

decide after Fannie Mae dropped its request for damages, the trial court properly

dismissed the case with prejudice.

C. Motion for New Trial

DeSmidt moved for a new trial on the ground that the court erroneously dismissed

the case with prejudice after finding that “possession is no longer at issue.” Because we

find no error in that decision, we likewise find that the trial court properly denied

DeSmidt’s motion for a new trial.

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IV.

DISPOSITION

The trial court’s order dismissing this case with prejudice is affirmed. Fannie Mae

may recover its costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

RAMIREZ

P. J.

FIELDS

J.

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