Carroll v. Santa Barbara County Sheriff's office CA2/6

Filed 12/22/14 Carroll v. Santa Barbara County Sheriff’s office CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.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