Lyons v. Santa Barbara County Sheriff's Office

Filed 12/3/14

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

KATHLEEN LYONS, 2d Civil No. B256041 (Super. Ct. No. 1439374) Plaintiff and Appellant, (Santa Barbara County)

v.

SANTA BARBARA COUNTY SHERIFF'S OFFICE et al.,

Defendants and Respondents.

Kathleen Lyons brings a misguided taxpayer's suit against respondents, Santa Barbara County Sheriff's Office, 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 theorizes these entities and individuals unlawfully participated in a nonjudicial foreclosure and eviction process. The complaint sounds in the nature of a wrongful foreclosure action. It is brought under the guise of Code of Civil Procedure section 526a to collaterally attack the trustee's sale and unlawful detainer 1 judgment. The trial court sustained a demurrer without leave to amend and dismissed the matter. We affirm the 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 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."

Appellant's condominium was sold at a trustee's sale after she defaulted on a $502,500 note secured by a deed of trust. Following the sale, a writ of possession issued in an unlawful detainer action and appellant was evicted. She then filed the instant action alleging that fraudulent mortgage documents were recorded to foreclose on the property. The complaint states that the mortgage documents were recorded and judicially noticed in the unlawful detainer proceeding "to procure a claim of 'perfected' title by a lender" and that eviction documents were wrongfully issued and executed by the sheriff. The trial court sustained the demurrer stating that appellant has "no lawsuit against the sheriff and against the county [recorder's] office because the [recorder's] office is under a mandatory duty to accept the paperwork that's filed with it. It has no independent duty to determine whether or not that paperwork is fraudulent. Moreover, when the sheriff serves a writ of execution that's by order of the court. The sheriff has no discretion to refuse to serve that order." As we shall explain, the trial court's rationale is, without any doubt, correct. This appeal, and the similar spate of appeals in the Santa Barbara foreclosure cases, are frivolous. In the exercise of our discretion, we elect not to impose sanctions against appellant. Taxpayer Form of Action We treat the demurrer as admitting all material facts properly pleaded, 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 or 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.) Here the complaint is a misguided section 526a collateral attack on the unlawful detainer judgment. (4 Witkin, Cal. Procedure (3d ed. 2008) Pleading, § 169, p. 235; Gould v. People (1976) 56 Cal.App.3d 909, 921-923.) Appellant is 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 is a final adjudication of the rights of borrower and lender].) But