Stevens v. Santa Barbara County Sheriff's Office CA2/6

Filed 12/22/14 Stevens v. Santa Barbara County Sheriff’s Office CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.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

RICHARD A. STEVENS, 2d Civil No. B255954 (Super. Ct. No. 1439438) Plaintiff and Appellant, (Santa Barbara County)

v.

SANTA BARBARA COUNTY SHERIFF'S OFFICE et al.,

Defendants and Respondents.

Richard A. 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 he was wrongfully evicted after his home was sold at a trustee's sale. The trial court sustained a demurrer without leave to amend to the complaint and an identical complaint filed by co- owner Linda Stevens in Linda Stevens v. Santa Barbara County Sheriff's Office et al., Santa Barbara County Sup. Ct., No. 1439372. 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 Civ. Proc., § 526a) to collaterally attack the

1 trustee's sale and unlawful detainer judgment. As we shall discuss, the 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 that the mortgage documents were judicially noticed in the unlawful detainer proceeding "to procure a claim of 'perfected' title by a lender" and that a writ of possession/writ of eviction wrongfully issued. The trial court sustained the demurrer stating: "[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