Filed 12/22/14 Stevens v. Santa Barbara 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                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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


LINDA STEVENS,                                                                2d Civil No. B255986
                                                                            (Super. Ct. No. 1439372)
          Plaintiff and Appellant,                                           (Santa Barbara County)

v.

SANTA BARBARA COUNTY
SHERIFF'S OFFICE et al.,

     Defendants and Respondents.



                   Linda Stevens appeals from a judgment on demurrer to her 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. Appellant
claims that she was wrongfully evicted after her home was sold at a trustee's sale. The
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complaint is brought under the guise of a taxpayer suit statute (Code Civ. Proc., § 526a) and
collaterally attacks the trustee's sale and unlawful detainer judgment. The trial court

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 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."
sustained, without leave to amend, respondents' demurrer to the action and an identical
complaint filed by co-owner Richard A. Stevens in Richard A. Stevens v. Santa Barbara
County Sheriff's Office et al., Santa Barbara County, Sup. Ct., No. 1439438. We affirm.
(Garfinkle v. Superior Court (1978) 21 Cal.3d 268, 280-282 (Garfinkle).) This appeal, and
a similar spate of appeals in what is known as the Santa Barbara foreclosure cases, is
frivolous. (See Lyons v. Santa Barbara County Sheriff's Office (Dec. 3, 2014, B256041)
___ Cal.App.4th ___ [2014 DJDAR 15971].)
              On March 15, 2011, appellant's home at 8849 Vereda Del Padre, Goleta was
sold at a trustee's sale after appellant defaulted on a $729,750 deed of trust. Following the
sale, a writ of possession issued in an unlawful detainer action to evict appellant.
              Appellant filed a taxpayer's action alleging that fraudulent mortgage
documents were recorded to foreclose on the property. The complaint states the mortgage
documents were submitted in the unlawful detainer proceeding "to procure a claim of
'perfected' title by a lender, its purported successor or another foreclosing entity which has
unlawfully evicted [appellant]."
              The trial court sustained the demurrer on the ground that no cause of action
was stated: "[T]he parties that you're suing, the Sheriff and the County Recorder have
mandated statutory duties. The County Recorder can't look through a document and say,
'Oh, this is a fraudulent document, I'm not going to file it.' They're statutorily mandated,
statutorily required to accept the documents. So because of that, that's not a basis for a
lawsuit against the County Recorder. And similarly, the Sheriff, when the Sheriff serves the
writ of execution is doing so by order of the Court and so the Sheriff is mandated to go out
and serve the writ of execution, otherwise the Sheriff is in contempt of court."
                                       Taxpayer Action
              On review, we exercise our independent judgment to determine whether a
cause of action has been stated under any legal theory. (Shuster v. BAC Home Loans
Servicing, LP (2012) 211 Cal.App.4th 505, 509.) 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


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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. (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.)

               Appellant's 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 is also
precluded from bringing 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 rights of borrower and lender].) But that is what the complaint prays for: a judgment
restoring the property to appellant. It prays for an injunction enjoining respondents from
recording, issuing, maintaining, and disseminating fraudulent title documents that
"unlawfully encumbered the title rights of Plaintiff" and "have already been used to oust
Plaintiff from Plaintiff's home without due process of law." Appellant asserts that a
foreclosure, followed by an unlawful detainer judgment, is a violation of the takings clause
under the federal constitution. 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 v. Superior
Court, supra, 21 Cal.3d at pp. 280-282 (Garfinkle); 4 Miller & Starr (3d ed. 2011) 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. (Id., 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


                                                 3
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.
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
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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

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, grants
the trustee a power of sale.


                                                4
(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 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's remaining arguments have been considered and merit no further
discussion. The trial court sustained the demurrer because appellant was suing the wrong
person. Appellant makes now showing that the trial court was biased or denied appellant
due process of law. (Betz v. Pankow (1993) 16 Cal.App.4th 919, 926.) Leave to amend is
properly denied where, under the substantive law, no liability exists and the plaintiff fails to
make a prima facie showing that the complaint can be amended to state a cause of action.
(Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)
              The judgment is affirmed with costs to respondents.
              NOT TO BE PUBLISHED.

                                                          YEGAN, J.
We concur:


              GILBERT, P.J.


              PERREN, J.




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                                  James E. Herman, Judge
                         Superior Court County of Santa Barbara
                          ______________________________


      Linda Stevens, in pro per, Appellant.


      Michael C. Ghizzoni, County Counsel, County of Santa Barbara, Lisa A. Rothstein,
Senior Deputy, for Respondents.




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