Filed 3/17/15 Stevens v. Santa Barbara County Sheriff’s Office CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.111.5.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


DONDI. STEVENS,                                                               2d Civil No. B259070
                                                                            (Super. Ct. No. 1439876)
      Plaintiff and Appellant,                                               (Santa Barbara County)

v.

SANTA BARBARA COUNTY
SHERIFF'S OFFICE et al.,

    Defendants and Respondents.



                   Dondi Stevens brings a taxpayer's suit against respondents, Santa Barbara
County Sheriff's Office (SBCO), Sheriff Bill Brown, Santa Barbara County Clerk
Recorder's Office, County Clerk/Recorder Joseph E. Holland, and county clerk/recorder
employees Melinda Greene and Mary Rose Bryson, based on the theory that his house
was illegally sold at a trustee's sale and he will be wrongfully evicted at some point in the
future. The trial court sustained a demurrer without leave to amend. We affirm.
(Garfinkle v. Superior Court (1978) 21 Cal.3d 268, 280-282 (Garfinkle).) The complaint
is a wrongful foreclosure action, brought under the guise of a taxpayer suit statute (Code
                          1
Civ. Proc., § 526a) to collaterally attack the trustee's sale and unlawful detainer
judgment.

1
 All statutory references are to the Code of Civil Procedure unless otherwise stated.
Section 526a provides in pertinent part: "An action to obtain a judgment, restraining and
               On September 27, 2011, appellant's house at 1248 North San Marcos Road,
Santa Barbara was sold at a trustee's sale after appellant defaulted on a $520,000 deed of
trust. Following the sale, an unlawful detainer action was brought to evict appellant.
               Appellant filed a taxpayer's action alleging that fraudulent mortgage
documents were recorded to foreclose on the property. The complaint states that the
mortgage documents were submitted in the unlawful detainer proceeding "to procure a
claim of 'perfected' title by a non-existent lender, its purported successor or another
foreclosing entity" and that a writ of possession/writ of eviction will be served by the
sheriff sometime in the future.
               The trial court sustained the demurrer on the ground that respondents are
following statutory mandates to record the documents (Gov. Code, § 27201, subd. (a))
and serve any writ of possession that issues in the unlawful detainer proceeding. (Code
Civ. Proc., § 712.030, subd. (a).) The trial court ruled that appellant "has not pled facts
constituting an illegal expenditure of, waste of, or injury to, the estate, funds or other
property of the county. . . ."
                                       Taxpayer Action
               On review, we accept as true properly pleaded allegations of material fact,
but not contentions, deductions or conclusions of fact or law. (Blank v. Kirwan (1985) 39
Cal.3d 311, 318.) Section 526a permits a taxpayer action to enjoin illegal governmental
activity or the illegal expenditure/waste of public funds. (Van Atta v. Scott (1980) 27
Cal.3d 424, 449; see Blair v. Pitchess (1971) 5 Cal.3d 258, 268 [taxpayer suit to enjoin
sheriff from expending public funds to enforce unconstitutional claim and delivery law].)
A taxpayer action does not lie where the challenged governmental conduct is legal.




preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other
property of a county . . . may be maintained against any officer thereof, or any agent, or
other person, acting in its behalf, either by a citizen resident therein, or by a corporation,
who is assessed for and is liable to pay, or within one year before the commencement of
the action, has paid, a tax therein."


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(Coshow v. City of Escondino (2005) 132 Cal.App.4th 687, 714; Lucas v. Santa Maria
Public Airport Dist. (1995) 39 Cal.App.4th 1017, 1027.)
              Here the complaint is outside the purview of section 526a and collaterally
attacks the unlawful detainer judgment. (4 Witkin, Cal. Procedure (3d ed. 2008)
Pleading, § 169, p. 235; Gould v. People (1976) 56 Cal.App.3d 909, 922-923.)
Appellant may not bring a taxpayer action to set aside the trustee's sale. (Smith v. Allen
(1968) 68 Cal.2d 93, 96 [properly conducted foreclosure sale constitutes a final
adjudication of the rights of borrower and lender].) But that is what appellant is suing

for -- an order declaring the unlawful detainer proceeding null and void, and a judgment
restoring the property to appellant. The complaint prays for an injunction enjoining
respondents from "recording, issuing, maintaining, and disseminating fraudulent title
documents which has unlawfully encumbered the title rights of Plaintiff and others
similarly situated." The argument fails because a nonjudicial foreclosure is not state
action or subject to the due process clauses of the federal and state constitutions. (I.E.
Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281, 286-287; Garfinkle, supra, 21
Cal.3d at pp. 280-282; 4 Miller & Starr (3d ed. 2013) Cal. Real Estate, § 10:223, pp. 10-
827 to 10-828.) In Garfinkle, our State Supreme Court held that the power of sale arises
from contract (i.e., the mortgage or deed of trust), and that the regulation of trustee's sales
is designed to restrict creditor behavior. (Garfinkle, supra, 21 Cal.3d at pp. 278-279.)
The ministerial role of the county recorder in a trustee's sale is not state action. (Id., at
p. 280.) "The fact that a purchaser who has acquired rights by virtue of a trustee's deed,
like a party who has acquired rights under any other type of contract, may have a right to
resort to the courts in order to enforce such previously acquired contractual rights when
that becomes necessary, is not sufficient to convert the acts creating these contractual
rights into state action. For to hold otherwise, would be to subject every private contract
to review under the Fourteenth Amendment. [Citation.]." (Ibid..)
              California's statutory regulation of nonjudicial foreclosures does not
convert the actor's conduct (i.e., the foreclosing lender) into state action. (See Jackson v.


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Metropolitan Edison Co. (1974) 419 U.S. 345, 357 [42 L.Ed.2d 477, 487-488];
Homestead Savings v. Darmiento (1991) 230 Cal.App.3d 424, 428-429 [Civil Code
section 2924 does not violate debtor's due process rights].) "The decision whether to
exercise the power of sale is a determination to be made by the creditor. The statutes
[i.e., Civil Code section 2924] merely restrict and regulate the exercise of the power of
sale once a choice has been made by the creditor to foreclosure the deed of trust in that
manner. [Citations.]" (Garfinkle, supra, 21 Cal.3d at pp. 278-279; see also U.S. Hertz,
Inc. v. Niobrara Farms (1974) 41 Cal.App.3d 68, 87.)
                  Post-Foreclosure Action to Obtain Writ of Possession
              Appellant argues that Civil Code section 2924, subdivision (a) requires that
the trustee obtain a court order or judgment before the trustee's sale and that such an
                                                                                            2
order/judgment is a prerequisite to an unlawful detainer action. This misstates the law.
Where the trustor holds over after the trustee's sale, an unlawful detainer action must be
brought to evict the trustor (§ 1161a, subd. (b)(3)). The purchaser must show that he/she
acquired the property at a regularly conducted sale in accordance with Civil Code section
2924 "and that title under such sale was duly perfected. [Citation.]" (Stephens, Partain
& Cunningham v. Hollis (1987) 196 Cal.App.3d 948, 953; see also Evans v. Superior
Court (1977) 67 Cal.App.3d 162, 169 [unlawful detainer action by subsequent
purchaser].) The allegation that section 2924, subdivision (a) is not being enforced in
post-foreclosure unlawful detainer actions does not state a cause of action. (4 Witkin,
Cal. Procedure, supra, Pleading, § 169, p. 235.) "Neither section 526a nor the common


2
 Section 2924, subdivision (a) provides that a power of sale may not be exercised until
the trustee, mortgagee or beneficiary records a notice of default as specified by law.
Excepted from the notice of default procedure, are mortgages or transfers "made pursuant
to an order, judgment or decree of a court of record. . . ." (Civ. Code, § 2924, (subd. (a);
see 27 Cal. Jur.3d. (2011) Deeds of Trust § 268, p. 304.) For example, an equitable
mortgage or mortgage without a power of sale can only be foreclosed by judicial action.
(4 Miller & Starr, Cal. Real Estate, supra, § 10.1, p. 10-18.) Appellant's deed of trust,
however, "irrevocably grants" the trustee a power of sale.


                                             4
law provides a basis for suits by collateral parties to determine the correctness of a
judge's action in a particular case because to do so would violate the state Constitution.
[Citation.] To hold otherwise, would create the absurd and chaotic situation where an
officious and irate stranger to any action with a personal ax to grind could file a collateral
action against a judge under the guise of a taxpayer's suit contesting the outcome of any
civil or criminal action in which he believed the trial court ruled erroneously." (Gould v.
People, supra, 56 Cal.App.3d at p. 922, fn. omitted.)
                                         Conclusion
              Appellant makes no showing that the complaint can be amended to state a
cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Respondents argue
that the action is nearly identical to the taxpayer suit in Lyons v. Santa Barbara County
Sheriff's Office (2014) 231 Cal.App.4th 1499 which was deemed to be frivolous on
appeal. (Id., at p. 1502.) Respondents request that $100 sanctions by imposed for
prosecuting a frivolous appeal. (Code Civ. Proc., § 907; In re Marriage of Flaherty
(1982) 31 Cal.3d 637, 650.) The sanctions request appears in respondent's brief, not by
motion with supporting declaration, and is denied. (See Cal. Rules of Court, rule
8.276(b)(1); Saltonstall v. City of Sacramento (2014) 231 Cal.App.4th 837, 858-859; FEI
Enterprises, Inc. v. Yoon (2011) 194 Cal.App.4th 790, 807.)
              The judgment is affirmed. Respondents are awarded costs on appeal.
              NOT TO BE PUBLISHED.


                                                          YEGAN, J.

We concur:


              GILBERT, P.J.


              PERREN, J.



                                              5
                              Thomas P. Anderle, Judge

                       Superior Court County of Santa Barbara

                         ______________________________


             Dondi Stevens, in pro per. Appellant.


             Michael C. Ghizzoni, County Counsel, County of Santa Barbara; Lisa a.
Rothstein, Senior Deputy, for Respondent.




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