Filed 12/22/14 Carroll 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                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.111.5.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


JEFFREY CARROLL,                                                                 2d Civil No. B255988
                                                                               (Super. Ct. No. 1439371)
      Plaintiff and Appellant,                                                  (Santa Barbara County)

v.

SANTA BARBARA COUNTY
SHERIFF'S OFFICE et al.,

    Defendants and Respondents.



                   Jeffrey Carroll appeals from a judgment on demurrer to his 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 he was wrongfully evicted after his home was sold at a
trustee's sale. The complaint is brought under the guise of a taxpayer suit statute
                                    1
(Code Civ. Proc., § 526a) and collaterally attacks the trustee's sale and unlawful



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
detainer judgment. The trial court sustained respondents' demurrer without leave to
amend. 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 February 8, 2013, appellant's home at 685 San Felipe Drive, Santa
Barbara was sold at a trustee's sale after appellant defaulted on his $605,500 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
foreclosure 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 which has 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 a 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


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."


                                             2
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 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, housing, maintaining and
disseminating fraudulent title documents which [have] unlawfully encumbered the title
rights of Plaintiff" and for a declaratory judgment that respondents' acts are "null and
void. . . ."
               The trial court correctly found that a taxpayer's action does not lie where
the challenged government conduct is legal. (Humane Society of the United States v.
State Board of Equalization (2007) 152 Cal.App.4th 349, 361.) "Conduct in
accordance with regulatory [or statutory] standards 'is a perfectly legal activity' " and
beyond the scope of a section 526a. (Coshow v. City of Escondino, supra, 132
Cal.App.4th at p. 714.) Courts do not sit as super-legislatures to determine the
wisdom, desirability, or propriety of statutes enacted by the Legislature governing the



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recordation of foreclosure documents or issuance of a writ of possession. (See e.g.,
Estate of Horman (1971) 5 Cal.3d 62, 77.)
              Section 712.010 provides: "After entry of a judgment for possession or
sale of property, a writ of possession or sale shall be issued by the clerk of the court
upon application of the judgment creditor and shall be directed to the levying officer in
the county where the judgment is to be enforced." The clerk of the court has a
ministerial duty to issue the writ of possession. (Ibid.) Once the writ of execution
issues, the sheriff is statutorily required to levy on it. (§ 712.030, subd. (a).) The
levying officer is immune from liability in the execution of "all process and orders
regular on their face and issued by competent authority, whatever may be the defect in
the proceedings upon which they were issued." (§ 262.1; see George v. County of San
Luis Obispo (2000) 78 Cal.App.4th 1048, 1054-1055 [sheriff immune from liability
for wrongful eviction when acting under order and writ of possession issued by
bankruptcy court].)
              Appellant's objection to the recordation of the foreclosure documents is
groundless. The county recorder was required, as a matter of law, to record the
documents when presented. Government Code section 27201, subdivision (a)
provides: "The recorder shall, upon payment of proper fees and taxes, accept for
recordation any instrument, paper, or notice that is authorized or required by statute, or
court order to be recorded . . . . The county recorder shall not refuse to record any
instrument, paper, or notice that is authorized or required by statute, or court order to
be recorded on the basis of its lack of legal sufficiency." (See e.g., Jackson v. County
of Amador (2010) 186 Cal.App.4th 514, 520-522 [county recorder did not violate law
by recording a durable power of attorney and quitclaim deeds that were allegedly
fraudulently procured].) Appellant cites no authority that a county recorder has a duty
to conduct a fraud investigation before recording documents valid on their face.




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                                 Civil Code Section 2924
              The complaint alleges that Civil Code section 2924, which authorizes
nonjudicial foreclosures, violates the due process and equal protection rights of Santa
Barbara residents. Appellant claims 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 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


                                             5
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 order/judgment is a prerequisite to an unlawful detainer action. This misstates the
    2
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 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


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.


                                             6
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.




                                           7
                               James E. Herman, Judge
                       Superior Court County of Santa Barbara
                        ______________________________


      Jeffrey Carroll, in pro per, Appellant.


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




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