Bank of America National Trust & Saving Ass'n v. Hirsch

ROTH, J.,

pro

tem.

This is an appeal from a judgment of dismissal entered after demurrers of respondents Hirsch and Morton to plaintiff’s amended complaint were sustained without leave to amend. The basis of the demurrers is that the action upon its face is barred by the statute of limitations, specifically by the 1933 amendment to section 337 of the Code of Civil Procedure and section 580a of the same code, which, in effect, provide that the time within which an action for money judgment in the nature of a deficiency after foreclosure of a deed of trust or mortgage can be brought shall not extend beyond three months after the time of sale held pursuant to the terms of said trust deed or mortgage. The complaint alleged, among other things, that certain security for

[682]

the promissory note involved had been sold on August 31, 1932. The action itself was not filed until the latter part of 1934. The question presented, therefore, is whether the present case comes within the provisions of the foregoing code sections. The exact question has already been decided by our courts in

Bank

of

America National Trust & Savings Assn.

v.

Dennison, 8

Cal. App. (2d) 173 [47 Pac. (2d) 296] (hearing denied by Supreme Court), in which case the court said at page 299: “ ... we are constrained to hold that the amendment to section 337, and the terms of the new section 580a of the Code of Civil Procedure were not intended by the legislature to operate upon an action for money judgment for the balance due upon an obligation secured by a trust deed after sale thereunder where such sale occurred before the act went into effect. We are satisfied that the legislature intended that the operation of these practically duplicate laws should be limited to cases where the sale took place after their effective date. ... we are equally convinced that these new laws may not fairly be construed as compelling action to be commenced within three months after such effective dates in cases where the sale has previously been made, for both these acts expressly require that action be brought within three months after the