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

Filed 3/17/15 Stevens v. Santa Barbara County Sheriff’s Office CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.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

DONDI. STEVENS, 2d Civil No. B259070 (Super. Ct. No. 1439876) Plaintiff and Appellant, (Santa Barbara County)

v.

SANTA BARBARA COUNTY SHERIFF'S OFFICE et al.,

Defendants and Respondents.

Dondi 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 his house was illegally sold at a trustee's sale and he will be wrongfully evicted at some point in the future. The trial court sustained a demurrer without leave to amend. 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 1 Civ. Proc., § 526a) to collaterally attack the trustee's sale and unlawful detainer 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

On September 27, 2011, appellant's house at 1248 North San Marcos Road, Santa Barbara was sold at a trustee's sale after appellant defaulted on a $520,000 deed of trust. Following the sale, an unlawful detainer action was brought 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 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" and that a writ of possession/writ of eviction will be served by the sheriff sometime in the future. The trial court sustained the demurrer on the ground that respondents are following statutory mandates to record the documents (Gov. Code, § 27201, subd. (a)) and serve any writ of possession that issues in the unlawful detainer proceeding. (Code Civ. Proc., § 712.030, subd. (a).) The trial court ruled that appellant "has not pled facts constituting an illegal expenditure of, waste of, or injury to, the estate, funds or other property of the county. . . ." Taxpayer Action On review, 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.