California Court of Appeals, Second District, Sixth Division
Superior Court County of Santa Barbara No. 1439374 James E. Herman, Judge
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Kathleen Lyons, in pro per, for Plaintiff and Appellant.
Michael C. Ghizzoni, County Counsel, and Lisa A. Rothstein, Deputy County Counsel, for 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 judgment. The trial court sustained a demurrer without leave to amend and dismissed the matter. We affirm the judgment.
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 ...