Memoranda Deprivation of Property Interest SDPS 1

8/3/2019 Memoranda Deprivation of Property Interest SDPS 1

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James Alan Bush1211 East Santa Clara Avenue #4

San Jose, CA 95116(408) 217-8282

Plaintiff in pro per

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

CIVIL DIVISION

COMPLAINT FOR DAMAGES ANDINJUNCTIVE RELIEF FOR DEPRIVATIONOF PROPERTY UNDER COLOR OF LAW

[Title 42 U.S.C.S. 1983]

[U.S. Const., amend. XIV, 1, cl. 1.,Cal. Const., art. I, 7(a)]

))))

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James Alan Bush,

Plaintiff,

v.

Sunnyvale Department of PublicSafety, et al.,

Defendants.__________________________________

COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 1

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CONSPIRACY TO DEPRIVE PLAINTIFF OF PROPERTY

I. AN ALLEGATION OF CONSPIRACY TO COMMIT A CIVIL WRONG IS SUFFICIENT TO

STATE A CAUSE OF ACTION AGAINST ALL OF THE ALLEGED CONSPIRATORS IF

THE ALLEGATIONS IN THE COMPLAINT SHOW THAT EACH OF THEM PARTICIPATED

IN THE CONSPIRACY AND THAT ONE OR MORE OF THEM COMMITTED A CIVIL

WRONG PURSUANT TO THE CONSPIRACY CAUSING PLAINTIFF ACTUAL DAMAGES.


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A. Conditions for Liability for Conspiracy. Civil liability for

conspiracy to commit a civil wrong exists where a conspiracy

has been formed and operated to accomplish by concerted action

a criminal or unlawful purpose or a lawful purpose by criminal

or unlawful means which results in actual damage (Taylor v. S &

M Lamp Co. (1961) 190 Cal. App. 2d 700, 706, 12 Cal. Rptr. 323;

Clark v. Lesher (1951) 106 Cal. App. 2d 403, 409, 235 P.2d 71].

B. Liability of Co-conspirators. In an action for damages

arising from a civil conspiracy, the major significance of the

conspiracy lies in the fact that it renders each participant

in the wrongful act responsible as a joint tortfeasor for all

damages ensuing from the wrong, irrespective of whether or not

he/she was a direct actor and regardless of the degree of his/

her activity (Unruh v. Truck Ins. Exch. (1972) 7 Cal. 3d 616,

631, 102 Cal. Rptr. 815, 498 P.2d 1063]

C. Act of One During Conspiracy Is Act of All. The act of one

conspirators during a conspiracy is the act of all of the

conspirator if done in furtherance of the conspiracy (de Vries

v. Brumback (1960) 53 Cal. 2d 643, 648, 2 Cal. Rptr. 764, 349

P.2d 532).

D. Liability of One Who Committed No Overt Act and Gained No

Benefit. Since the act of one during a conspiracy is the act of

all if done in furtherance thereof, defendants who are charged

with participation in a conspiracy may be held liable who in

fact committed no overt act whatsoever and gained no benefit

therefrom (Wetherton v. Growers Farm Labor Assn (1969) 275


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Cal. App. 2d 168, 176, 79 Cal. Rptr. 543, disapproved on other

grounds, Applied Equip. Corp. v. Utton Saudi Arabia Ltd. (1994)

7 Cal. 4th 503, 52 1 n. 10, 28 Cal. Rptr. 2d 475, 869 P.2d 454).

E. Proposition 81 Did Not Change Rule of Joint and Several

Liability Among Conspirators. Despite the passage of the Fair

Responsibility Act of 1986 (Proposition 1), joint and several

liability for noneconomic damages is still the rule in a case

of civil conspiracy, because liability in a case of conspiracy

is not allocated based on comparative fault, but is premised

on the concerted action of all tortfeasors acting as one in

causing a single indivisible injury (Kesmodel v. Rand (2004) 1

19 Cal. App. 4th 1 128, 1 143, 15 Cal. Rptr. 3d 1 18; see Civ.

Code 8 1431.2).

II. TEXT

A. Acts which would be lawful if done by one are often illegal

if done in pursuance of a conspiracy. Carew v. Rutherford, 106

Mass. 10, 8 Am. Rep. 287; Sherry v. Perkins, 147 Mass. 214, 17 N.

E. 307; Vegelahn v. Guntner, 167 Mass. 97, 35 L. R. A. 722, 44

N. E. 1077; Cooke, Trade & Labor Combinations, 4, p. 14, note

2; Temperton v. Russell, 62 L. J. Q. B. N. S. 412; Doremus v.

Hennessy, 2 Ill. App. 391; Barr v. Essex Trades Council, 53 N.

J. Eq. 101, 30 Atl. 881; State v. Glidden, 55 Conn. 46, 8 Atl.

890.


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INTERFERENCE WITH CONTRACTUAL RELATIONSHIP

1. Supreme Court held that interference with a contractual

relationship by lawful but unjustified means is actionable [Imperial

Ice Co. v. Rossier (1941) 18 Cal. 2d 33, 35, 37-39, 112 P.2d 631].

2. Inducement of breach of contract is merely one type of broader tort

of interference with prospective economic advantage [Environmental

Planning & Info. Council v. Superior Court (1984) 36 Cal. 3d 188,

193, 203 Cal. Rptr. 127, 680 P.2d 1086; Buckaloo v. Johnson (1975) 14

Cal. 3d 815, 823, 122 Cal. Rptr. 745, 537 P.2d 865].

3. Interference with income, obstruction of mail, interception of

communications (where intent is to prevent or hinder ability to pay

bills) actionable under 1983 per case law. The right of a party

not to have a state impair its obligations of contract is protected

by U.S. Const., art. I, 10, cl. 1 [So. Cal. Gas Co. v. City of

Santa Ana (9th Cir. 2003) 336 F.3d 885, 887].

4. Intentional interference by third person with contractual

relationship, either by unlawful means or by means otherwise lawful

if there is lack of sufficient justification, is actionable in tort.

[Herron v. State Farm Mut. Ins. Co. (1961) 56 Cal. 2d 202, 205, 14

Cal. Rptr. 294, 363 P.2d 310; Wise v. Southern Pac. Co. (1963) 223

Cal. App. 2d 50, 65, 35 Cal. Rptr. 652]

5. Action arising from conspiracy to interfere with real estate

brokers contractual relationship was stated by general allegation

of formation of conspiracy, defendants wrongful acts, and damage

to plaintiff by breach. [Allen v. Powell (1967) 248 Cal. App. 2d 502,

508-509, 56 Cal. Rptr. 715]


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CASE LAW

I. DEFENDANTS DANIEL CORTEZ AND LAURENE REBER ARE LIABLE FOR THEIR

INTENTIONAL INTERFERENCE WITH PLAINTIFFS CONTRACTUAL RELATIONSHIP

WITH DEFENDANT ADVANTAGE HOMES BECAUSE PLAINTIFF HAD A VALID AND

EXISTING CONTRACT, DEFENDANTS KNEW OF THIS CONTRACT AND COMMITTED

INTENTIONAL ACTS DESIGNED TO INDUCE A DISRUPTION OF THE CONTRACT

WITH, OR A BREACH OF CONTRACT BY, DEFENDANT ADVANTAGE HOMES, AND

THEIR ACTS DID CAUSE ACTUAL DISRUPTION OF THE CONTRACT, RESULTING IN

DAMAGES TO PLAINTIFF.

A. Elements of Intentional Interference With Contractual

Relationship. To plead an actionable wrong for interference

with a contractual relationship, the plaintiff must allege that

(1) he had a valid and existing contract with a third party;

(2) defendant had knowledge of this contract; (3) defendant

committed intentional and unjustified acts designed to interfere

with or disrupt the contract; (4) actual interference with or

disruption of the relationship occurred; and (5) damages were

suffered as a result (Quelimane Co. v. Stewart Title Guar. Co.

(1998) 19 Cal. 4th 26, 55, 77 Cal. Rptr. 2d 709, 960 P.2d 513;

Savage v. Pacific Gas & Elec. Co. (1993) 21 Cal. App. 4th 434,

448, 26 Cal. Rptr. 2d 305).

B. Intent May Be Inferred From Conduct Substantially Certain to

Interfere With Relationship. A partys intent to interfere with

a contract may be established by inference as well as by direct

proof and may be inferred from conduct that is substantially

certain to interfere with the relationship (Savage v. Pacific Gas


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& Elec. Co. (1993) 21 Cal. App. 4th 434, 449, 26 Cal. Rptr. 2d

305).

C. Wrongfulness Independent of Interference With Contract is

Not Element of Intentional Interference With Contractual

Relationship. Because intentionally inducing or causing a breach

of an existing contract is wrongful in and of itself, plaintiff

in an action for intentional interference with an existing

contractual relationship is not required to plead or prove that

defendants conduct is wrongful apart from the interference with

the contract itself (Quelimane Co. v. Stewart Title Guar. Co.

(1998) 19 Cal. 4th 26, 55-56, 77 Cal. Rptr. 2d 709, 960 P.2d 513).

II. DEFENDANTS ARE LIABLE FOR THEIR INTENTIONAL INTERFERENCE WITH

PLAINTIFFS CONTRACTUAL RELATIONSHIP WITH DEFENDANTS STEVE DOE

AND ADVANTAGE HOMES, NOTWITHSTANDING THE FACT THAT THE DISRUPTED

CONTRACT IS TERMINABLE AT WILL.

A. Interference With Terminable-at-Will Contract Actionable. An

action may lie for interference when defendant has unjustifiably

interfered with a terminable-at-will contract to which plaintiff

is a party (Speegle v. Board of Fire Underwriters (1946) 29

Cal. 2d 34, 39-40, 172 P.2d 867; Savage v. Pacific Gas & Elec. Co.

(1993) 21 Cal. App. 4th 434, 448, 26 Cal. Rptr. 2d 305; Kozlowsky

v. Westminster Natl Bank (1970) 6 Cal. App. 3d 593, 598, 86 Cal.

Rptr. 52).

III. THE FACT THAT PLAINTIFF HAS OBTAINED A DECREE OF SPECIFIC

PERFORMANCE IN HIS CONTRACT ACTION AGAINST DEFENDANTS STEVE DOE

AND ADVANTAGE HOMES DOES NOT PRECLUDE HIM FROM RECOVERING DAMAGES


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FOR DEFENDANTS INTENTIONAL INTERFERENCE WITH THE CONTRACT BETWEEN

PLAINTIFF AND DEFENDANTS STEVE DOE AND ADVANTAGE HOMES

A. Specific Performance Not a Bar to Damages. When a third party

has interfered with the performance of a contract, a plaintiff

may bring an action for damages against the interferor,

regardless of the availability of specific performance against

the breaching contractual party (Owens v. Palos Verdes Monaco

(1983) 142 Cal. App. 3d 885, 872, 191 Cal. Rptr. 381; Duff v.

Engelberg (1965) 237 Cal. App. 2d 505, 507-509, 47 Cal. Rptr.

114).

IV. PLAINTIFF IS ENTITLED TO AN AWARD OF PUNITIVE DAMAGES AGAINST

DEFENDANTS DANIEL CORTEZ AND LAURENE WEBER BECAUSE DEFENDANTS

INTENTIONAL INTERFERENCE WITH PLAINTIFFS ECONOMIC RELATIONSHIP WITH

DEFENDANT ADVANTAGE HOMES WAS MALICIOUS.

A. Punitive Damages May Be Awarded for Malicious Intentional

Interference. Punitive damages are available in an action

for intentional interference with economic relations when the

plaintiff demonstrates that the acts of the defendant were

malicious (Duff v. Engelberg (1965) 237 Cal. App. 2d 505, 509, 47

Cal. Rptr. 114; Guillory v. Godfrey (1955) 134 Cal. App. 2d 628,

633, 286 P.2d 474).

V. PLAINTIFF HAS ALLEGED FACTS SUFFICIENT TO STATE A CAUSE OF ACTION

FOR CONSPIRACY TO INTERFERE WITH ECONOMIC RELATIONS BETWEEN

PLAINTIFF AND DEFENDANT ADVANTAGE HOMES BECAUSE PLAINTIFF HAS

ALLEGED THE FORMATION AND OPERATION OF A CONSPIRACY, ACTS DONE

PURSUANT THERETO, AND DAMAGES ARISING THEREFROM.


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A. Elements of Conspiracy to Interfere. To plead an actionable

wrong for conspiracy to interfere with economic relations, the

plaintiff must allege (1) the formation and operation of a

conspiracy, (2) wrongful acts done pursuant to the conspiracy,

and (3) damages arising from the conspiracy (Olivet v.

Frischling (1980) 104 Cal. App. 3d 831, 837, 164 Cal. Rptr. 87;

Wise v. Southern Pac. Co. (1963) 223 Cal. App. 2d 50, 64, 35 Cal.

Rptr. 652).

VI. DEFENDANTS SYLVANA HEALY, STEVE DOE AND TODD SU ARE LIABLE TO

PLAINTIFF FOR THEIR NEGLIGENT PERFORMANCE OF THEIR CONTRACT WITH

PLAINTIFF BECAUSE THIS PERFORMANCE CREATED A FORESEEABLE AND

UNREASONABLE RISK OF ECONOMIC HARM TO PLAINTIFF AND CAUSED DAMAGE

TO PLAINTIFF.

A. Criteria for Determining Duty of Care. The existence of a duty

of care in an action for negligent interference with economic

relations depends on six criteria: (1) the extent to which

the transaction was intended to affect the plaintiff, (2) the

foreseeability of harm to the plaintiff, (3) the degree of

certainty that the plaintiff suffered injury, (4) the closeness

of the connection between the defendants conduct and the

injury suffered, (5) the moral blame attached to the defendants

conduct and (6) the policy of preventing future harm (JAire

Corp. v. Gregory (1979) 24 Cal. 3d 799, 804, 157 Cal. Rptr. 407,

598 P.2d 60).

VII. UNLESS THE INTERFERING CONDUCT IS SHOWN TO BE PRIVILEGED OR

JUSTIFIED, AN OWNER, OFFICER, OR DIRECTOR OF A COMPANY MAY BE


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LIABLE FOR INTERFERING WITH A CONTRACT TO WHICH THE COMPANY WAS A

PARTY.

A. Owner, Officer, or Director of Company Not Shielded From

Liability. Unless the defendants can show that the conduct

was privileged or justified, a claim for interference with

an economic relationship founded in contract may be brought

against an owner, officer, or director of a company whose

contract was the subject of the litigation [Woods v. Fox Broad.

Sub., Inc. (2005) 129 Cal. App. 4th 344, 356, 28 Cal. Rptr.

463)].

B. Tort Liability May Be Imposed Under Alter Ego Doctrine. When a

defendants conduct is not otherwise privileged, the alter ego

doctrine cannot be used as a shield to prevent imposition of

tort liability for intentional interference with an economic

relationship on an owner, director, or manager who caused a

corporation to breach its contract [Shapoff v. Scull (1990) 222

Cal. App. 3d 1457, 1471-1473, 272 Cal. Rptr. 480].

C. Plaintiffs Election. Although it would be inconsistent to

impose liability on an alter ego for both breach of the

corporations contract and for the tort of interference, after

a judgment has been rendered on both claims, the plaintiff

is entitled to elect whether to proceed on the contract claim

or on the tort claim [Shapoff v. Scull (1990) 222 Cal. App. 3d

1457, 1462, 1473, 272 Cal. Rptr. 480].

IIX. DEFENDANT IS LIABLE TO PLAINTIFF FOR HIS/HER NEGLIGENT PERFORMANCE

OF HIS/HER CONTRACT WITH PLAINTIFF BECAUSE THIS PERFORMANCE CREATED


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A FORESEEABLE AND UNREASONABLE RISK OF ECONOMIC HARM TO PLAINTIFF

AND CAUSED DAMAGED TO PLAINTIFF].

A. Criteria for Determining Duty of Care. The existence of a duty

of care in an action for negligent interference with economic

relations depends on six criteria: (1) the extent to which

the transaction was intended to affect the plaintiff, (2) the

foreseeability of harm to the plaintiff, (3) the degree of

certainty that the plaintiff suffered injury, (4) the closeness

of the connection between the defendants conduct and the

injury suffered, (5) the moral blame attached to the defendants

conduct and (6) the policy of preventing future harm [JAire

Corp. v. Gregory (1979) 24 Cal. 3d 799, 804, 157 Cal. Rptr. 407,

598 P.2d 60].

B. Negligent Performance of Contract as Basis for Action. When

the negligent performance of a contract creates an unreasonable

and foreseeable risk of interference with a third partys

economic relations and the negligent performance does in

fact proximately cause injury to the third partys economic

relations, the negligent party may be liable to the third party

in tort [JAire Corp. v. Gregory (1979) 24 Cal. 3d 799, 804-

808, 157 Cal. Rptr. 407, 598 P.2d 60; Chameleon Engg Corp. v.

Air Dynamics Inc. (1980) 101 Cal. App. 3d 418, 420-423, 161 Cal.

Rptr. 463].


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ABUSE OF PROCESS

Attorney who assisted a party in carrying out the misuse of legal

process [Barquis v. Merchants Collection Assn (1972) 7 C3d 94, 97

n1, 101 CR 745]. An attorney who actively participated with a client

in misusing the system to promote a clients wrongful objective

might even be named as a co-conspirator [Weisenburg v. Molina (1976)

58 CA3d 478, 489, 129 CR 813; Anno, 97 ALR3d 688 (1980) (attorney

liability for abuse of process)].

Compensatory damages. Mental suffering [Spellens v. Spellens (1957)

49 C2d 210, 233, 317 P2d 613, 627] and for loss of the use and

enjoyment of property seized [White Lighting Co. v. Wolfson (1968)

68 C2d 336, 347, 66 CR 697, 703; Christensen v. Younger (1975) 47

CA3d 613, 618, 120 CR 923 (one who misuses legal process is liable

for pecuniary loss caused thereby)].

Proving malice. Inferences to be drawn from evidence as lying in

sound discretion of trial judge acting as trier of fact; intention

with which party did act as permissibly inferred from evidence of

partys subsequent conduct [Tranchina v. Arcinas (1947) 78 Cal. App.

2d 522, 524, 178 P.2d 65].

Supreme Court held that the tort of intentional interference

with prospective economic advantage applies when the defendant

interferes with a business or economic relationship not subject to

a legally binding agreement; but, nonetheless, containing a probable

future economic benefit to the plaintiff [Buckaloo v. Johnson (1975)

14 Cal. 3d 815, 822-823, 827, 122 Cal. Rptr. 745, 537 P.2d 865].


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CONSTRUCTIVE FRAUD AND BREACH OF FIDUCIARY DUTY

1. Requirements for action for constructive fraud. [Civ. Code 157]

2. Horning v. Shilberg (2005) 130 CA4th 197, 203, 29 CR3d 717, 723.

3. Brokers relationship with principal is fiduciary, and he must

disclose all facts within his knowledge that are cogent to sale

and which might affect principals willingness to sell. [Earle v.

Lambert, 23 Cal. Rptr. 79, 205 Cal. App. 2d 452]

4. With broker status comes fiduciary duties, which include obligation

of acting with utmost good faith and honesty toward seller, and

preclude broker from assuming a position adverse to seller without

sellers consent; there also flows a duty to disclose to seller all

facts within brokers knowledge which are material to the sale.

[Gray v. Fox, 198 Cal.Rptr. 720, 151 Cal.App.3d 482]

5. Brokers duty of good faith precludes broker from assuming a

position adverse to that of his principal unless the principal

consents and it places upon broker the legal obligation to disclose

to his principle all facts within his knowledge which are material

to matter in connection with which he is employed. [Timmsen v.

Forest E. Olsen, Inc., 86 Cal. Rptr. 359, 6 Cal. App. 3d 860]

6. Under California law, real estate broker has fiduciary duty to

investigate material facts of transaction, and cannot accept

information received from others as being true, and transmit it to

principal, without either verifying information or disclosing to

principal that information has not been verified. [In re King Street

Investments, Inc., 219 B.R. 848]

7. Presumption of negligence from violation of statute, ordinance, or


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regulation. Evid. Code 601, 606, 660, 669.

8. Broker who violates his duty to use reasonable care, skill and

diligence will be liable to principal for any losses which

principal sustains as result of brokers negligence or breach of

duty. [Timmsen v. Forest E. Olsen, Inc., 86 Cal. Rptr. 359, 6 Cal.

App. 3d 860]

9. Breach of real estate agents fiduciary duty to his or her client may

constitute negligence or fraud, depending on the circumstances of

case. [Assilzadeh v. California Federal Bank, 98 Cal. Rptr. 2d 176,

82 Cal. App. 4th 399]

10. A real estate agent, as a fiduciary, is liable to his principal

for constructive fraud even though his conduct is not actually

fraudulent. Assilzadeh, supra.

11. It is unlawful to cause any person to suffer any loss by reason of

any fraud or deceit practiced on them in the sale of a manufactured

home. [Health & Safety Code 18060.5(c)]

12. Fail to exercise reasonable supervision over the activities of

employees who negotiate or promote the sale of manufactured homes.

[Health & Safety Code 18060.5(h)]

UNLAWFUL FORECLOSURE

The California Trustees Sale. It is common practice in California

for a debtor, particularly the purchaser of real property, to secure

his obligation by a deed of trust under which the property purchased is

given as security for payment of the debt. The deed of trust includes

a power of sale which empowers the trustee to sell the property in the


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event of default by the trustor (the debtor) and apply the proceeds of

the sale to the obligation. The trustee acts on the instructions of the

beneficiary of the deed of trust (the creditor), and the relationship

between them is not a fiduciary one. Legal title to the property rests

in the trustee, the deed of trust is recorded, and no court action is

required for the trustee to convey valid title to a third party

The conduct of a sale under the power in a deed of trust is

regulated in California by Civil Code 2924-2924h.

If the debtor argues that the sale was wrongful and in violation

of the underlying contract, he may seek the intervention of the courts

either to restrain the sale or have it set aside after it is held.

1. Standing to challenge sale. Generally, only parties with an

interest in the secured loan or in the real property security

itself have standing to challenge or attempt to set aside a

nonjudcial foreclosure sale. [Royal Thrift & Loan Co. v. County

Escrow, Inc. (2004) 123 CA4th 24, 33, 20 CR3d 37, 44]

2. Setting aside a trustees sale. To set aside a trustees sale

requires substantial evidence of a failure to comply with the

procedural requirements to the challenging partys prejudice.

[6 Angels, Inc. v. Stuart-Wright Mortgage, Inc., supra, 85 CA4th

at 1284, 102 CR2d at 714; Knapp v. Doherty (2004) 123 CA4th 76, 86,

20 CR3d 1, 8, fn. 4; see Residential Capital, LLC v. Cal-Western

Reconveyance Corp. (2003) 108 CA4th 807, 822, 134 CR2d 162, 173 (only

a properly conducted foreclosure sale, free of substantial defects

in procedure, creates rights in the high bidder at the sale)]

3. Fraud or deceit. Fraud or deceit in the foreclosure process is


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likewise ground to set aside the sale. [South Bay Bldg. Enterprises,

Inc. v. Riviera Lend-Lease, Inc. (1999) 72 CA4th 1111, 1121, 85 CR2d

647, 652; Lo v. Jensen (2001) 88 CA4th 1093, 1095-1096, 106 CR2d 443,

444-445 (two competitive bidders joined together in violation of

Civ. Code 2924h(g) and in restraint of competition, resulting in

artificially low price). Additionally, the trustees or beneficiarys

fraudulent conduct during foreclosure proceedings can give rise to

tort damages. [South Bay Bldg. Enterprises, Inc. v. Riviera Lend-

Lease, Inc., supra, 72 CA4th at 1121-1122, 85 CR2d at 652 (trustee

and senior creditor fraudulently conspired to prevent others from

bidding in order to buy property at low price, thereby causing

junior lienholder to lose its security interest); see also CC

2924h(g) (criminalizing acts operating as fraud or deceit on any

beneficiary or junior lienholder)].

4. Mistake. A foreclosure sale may also be set aside where there has

been a mistake of such magnitude that to allow it to stand would

be inequitable to purchaser and parties. [see Bank of America Natl

Trust & Sav. Assn v. Reidy (1940) 15 C2d 243, 248,101 P2d 77, 80]

5. Presumption of negligence from violation of statute. Negligence

is inferred where attorneys fault is clear (expert testimony not

required) and prevailing standard and requisite skill are matters

of general knowledge. [Evid. Code 601, 606, 660, 669]

6. Inadequate sale price coupled with procedural irregularity. An

inadequate sale price coupled with a procedural irregularity may

warrant a set-aside of a completed foreclosure sale just as it may

be a basis for aborting a sale not yet completed. [Knapp v. Doherty


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(2004) 123 CA4th 76, 94-97, 20 CR3d 1, 14-17 (inadequate price

coupled with premature notice of trustees sale, in effect giving

too much notice of sale, not ground for set-aside)]

7. Statutorily-deficient notice. A completed trustees sale based on

a statutorily deficient notice of default and/or notice of sale

is invalid and may be set aside. [Miller v. Cote (1982) 127 CA3d

888, 894, 179 CR 753, 756-757 (notice of default premature and thus

specified default was no default); System Invest. Corp. v. Union Bank

(1971) 21 CA3d 137, 152-153, 98 CR 735, 744-745 (failure to state in

notice of default nature of payment duewhether interest, principal

or otherwise); compare Knapp v. Doherty (2004) 123 CA4th 76, 97-99,

20 CR3d 1, 17-19 (where no evidence presented that notice of default

did not properly state nature or amount of default, inaccuracy

regarding default date immaterial and not basis for set-aside)]

8. Recordation of Notice of Default. A nonjudicial foreclosure is

commenced by the trustee recording a notice of default in the

office of the county recorder for each county where the secured real

property (or any part thereof) is located. [Civ. Code 2924(a)(1)

(trustees power of shall be exercised until trustee first records

notice of default); see also Knapp v. Doherty (2004) 123 CA4th 76,

99, 20 CR3d 1, 18 (one of the signal purposes of the notice of

default is to advise the trustor of the amount required to cure the

default)].

9. Copies of notice mailed to trustor and certain interested parties.

The trustee must also mail a copy of the recorded notice of default

to the trustor (at his or her last known address, if different


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from that specified in the deed of trust), parties holding an

interest of record in the secured property who would be affected by

the foreclosure, and all parties who have duly recorded a request

for copy of the notice and notice of sale (pursuant to Civ. Code

2924b(a)). [Civ. Code 2924b(b)(1),(c) & (e)]

10. Notice of trustees sale. If the trustor does not reinstate the

secured obligation (i.e., cure the default) within three months

after the date of recordation of the notice of default, the trustee

may proceed to give a notice of sale. [CC 2924(a)(2), (3) &

2924f; Knapp v. Doherty, supra, 123 CA4th at 90-92, 20 CR3d at

11-13 (trustee must wait 3 calendar months before proceeding with

sale; but, sale not invalidated by slightly premature notice of sale

that was serviced on borrowers more than requisite 20 days before

initial sale date]

11. To whom notice given; 20-day presale deadline. The trustees notice

of sale must be sent by registered or certified mail, postage

prepaid, at least 20 days before the date of sale, to the trustor,

all other parties to whom the notice of default was required to be

given, plus any state taxing agency that has recorded a notice of

tax lien on the property. [Civ. Code 2924b(b)(2), (c)(3) & (e)]

12. Posting, publication and recordation also required. In addition to

the requisite mailed notice, written notice of the sale must be: (i)

posted (at least 20 days before the date of sale) in a public place

in the city (or judicial district) where the property is to be

sold and in a conspicuous place on the property to be sold; (ii)

published once a week for three consecutive calendar weeks (the


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first publication to be at least 20 days before the date of sale)

in a newspaper of general circulation in the city (or judicial

district or county) where the property is located; and (iii)

recorded with the county recorder of the county where the property

(or any part thereof) is located at least 14 days before the date

of sale. [Civ. Code 2924f(b)(1)]

13. Trustors interim right of reinstatement; five-day presale deadline.

Notwithstanding the trustees recordation of a notice of default and

notice of sale, the trustor has the right to reinstate the secured

obligation by paying all amounts in default (plus the trustees

costs and expenses, see CC 2924c(c) & (d)) no later than five

business days before the date of sale set forth in the initial

recorded notice of sale. [CC 2924c(e) (nothing contained herein

shall give rise to a right of reinstatement during the period of

five business days prior to the date of sale); see Hicks v. E.T.

Legg & Assocs. (2001) 89 CA4th 496, 504, 108 CR2d 10, 16] Thus,

even though the lender has accelerated the loan and declared all

sums due by the recorded notice of default, the statutory right of

reinstatement enables the trustor to avoid foreclosure by paying

only the nonaccelerated amounts actually in default (plus trustees

fees).

14. Distribution of sale proceeds. Proceeds from the trustees

foreclosure sale are applied (i) first, to pay the trustees fees

and expenses in exercising the power of sale and conducting the

sale; (ii) next, to satisfy the debt to the beneficiary (lender);

(iii) next, to the payment of junior creditors in the order of


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their priority; and (iv) the balance, if any, to the trustor (or

its successor in interest). [Civ. Code 2924k(a); Caito v. United

Calif. Bank (1978) 20 C3d 694, 701, 144 CR 751, 754; South Bay Bldf.

Enterprises, Inc. v. Riviera Lend-Lease, Inc. (1999) 72 CA4th 1111,

1118, 85 CR2d 647, 651, fn.6]

15. Irregularity in postponement procedure. A trustees sale may be

avoided for noncompliance with the statutory sale postponement

requirements [Residential Capital, LLC v. Cal-Western Reconveyance

Corp. (2003) 108 CA4th 807, 823, 134 CR2d 162, 174]; however,

the postponement irregularity must arise from the foreclosure

proceeding itself, e.g., in connection with any statutorily required

notices or the bidding process at the sale. [Nguyen v. Calhoun

(2003) 105 CA4th 428, 445, 129 CR2d 436, 450 (alleged nonreceipt of

fax regarding sale postponment did not constitute irregularity in

foreclosure proceeding itself)]

16. Breach of lenders promise to postpone sale. A trusteees sale may

be aborted where the foreclosure sale is conducted in violation of

the lenders oral promise to ponstpone it, so long as the promise

is supported by good consideration. [Raedeke v. Gibraltar Sav.

& Loan Assn (1974) 10 C3d 665, 673, 111 CR 693, 697-698 (borrowers

had cognizable cause of action to avoid sale where they procured

responsible prospective purchaser in reliance on lenders promise

to postpone sale); compare Nguyen v. Calhoun, supra, 105 CA4th at

444-445, 129 CR2d at 450 (borrowers had no basis for avoiding sale

where they failed to notify lender in timely and accurate manner

that prospective purchaser had funding to pay off their defaulted


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loan)]

17. Liability of attorney to party from whom he receives no

compensation. The fact that attorney is receiving all his

compensation from one party to a transaction does not prevent the

relationship of attorney and client from existing with respect to

the other; an attorney who voluntarily undertakes to record for the

mortgagee a mortgage executed by the attorneys client is acting

for the mortgagee as well, and would be liable to the latter if he

negligently delayed the recording and another encumbrance slipped

in ahead of it [Lawall v. Groman, 180 Pa 532, 37 A 98]. To the

effect that reliance need not be shown to establish proximate cause

[Ishmael v. Millington, 241 Cal. App. 2d 520, 50 Cal. Rptr. 592].

18. To be actionable, the attorneys negligence need not be the sole

cause of the clients loss [Ishmael v. Millington, 241 Cal. App. 2d

520, 50 Cal. Rptr. 592]; it is sufficient if the attorneys negligence

is a cause in fact [Starr v. Mooslin, 14 Cal. App. 3d 988, 92 Cal.

Rptr. 583].


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CALIFORNIA CIVIL CODE SECTION 2923.5

(a) (1) A mortgagee, trustee, beneficiary, or authorized agent may not

file a notice of default pursuant to Section 2924 until 30 days

after contact is made as required by paragraph (2) or 30 days

after satisfying the due diligence requirements as described in

subdivision (g).

(2) A mortgagee, beneficiary, or authorized agent shall contact

the borrower in person or by telephone in order to assess the

borrowers financial situation and explore options for the borrower

to avoid foreclosure. During the initial contact, the mortgagee,

beneficiary, or authorized agent shall advise the borrower that

he or she has the right to request a subsequent meeting and, if

requested, the mortgagee, beneficiary, or authorized agent shall

schedule the meeting to occur within 14 days. The assessment of the

borrowers financial situation and discussion of options may occur

during the first contact, or at the subsequent meeting scheduled

for that purpose. In either case, the borrower shall be provided

the toll-free telephone number made available by the United

States Department of Housing and Urban Development (HUD) to find

a HUD-certified housing counseling agency. Any meeting may occur

telephonically.

(b) A notice of default filed pursuant to Section 2924 shall include a

declaration from the mortgagee, beneficiary, or authorized agent

that it has contacted the borrower, tried with due diligence to

contact the borrower as required by this section, or the borrower

has surrendered the property to the mortgagee, trustee, beneficiary,


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or authorized agent.

(c) If a mortgagee, trustee, beneficiary, or authorized agent had already

filed the notice of default prior to the enactment of this section

and did not subsequently file a notice of rescission, then the

mortgagee, trustee, beneficiary, or authorized agent shall, as part

of the notice of sale filed pursuant to Section 2924f, include a

declaration that either:

(1) States that the borrower was contacted to assess the borrowers

financial situation and to explore options for the borrower to avoid

foreclosure.

(2) Lists the efforts made, if any, to contact the borrower in the event

no contact was made.

(d) A mortgagees, beneficiarys, or authorized agents loss mitigation

personnel may participate by telephone during any contact required

by this section.

(e) For purposes of this section, a borrower shall include a

mortgagor or trustor.

(f) A borrower may designate a HUD-certified housing counseling

agency, attorney, or other advisor to discuss with the mortgagee,

beneficiary, or authorized agent, on the borrowers behalf, options

for the borrower to avoid foreclosure. That contact made at the

direction of the borrower shall satisfy the contact requirements of

paragraph (2) of subdivision (a). Any loan modification or workout

plan offered at the meeting by the mortgagee, beneficiary, or

authorized agent is subject to approval by the borrower.

(g) A notice of default may be filed pursuant to Section 2924 when a


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mortgagee, beneficiary, or authorized agent has not contacted a

borrower as required by paragraph (2) of subdivision (a) provided

that the failure to contact the borrower occurred despite the due

diligence of the mortgagee, beneficiary, or authorized agent. For

purposes of this section, due diligence shall require and mean

all of the following:

(1) A mortgagee, beneficiary, or authorized agent shall first attempt to

contact a borrower by sending a first-class letter that includes

the toll-free telephone number made available by HUD to find a HUD-

certified housing counseling agency.

(2) (A) After the letter has been sent, the mortgagee, beneficiary, or

authorized agent shall attempt to contact the borrower by telephone

at least three times at different hours and on different days.

Telephone calls shall be made to the primary telephone number on

file.

(B) A mortgagee, beneficiary, or authorized agent may attempt to contact

a borrower using an automated system to dial borrowers, provided

that, if the telephone call is answered, the call is connected to

a live representative of the mortgagee, beneficiary, or authorized

agent.

(C) A mortgagee, beneficiary, or authorized agent satisfies the telephone

contact requirements of this paragraph if it determines, after

attempting contact pursuant to this paragraph, that the borrowers

primary telephone number and secondary telephone number or numbers

on file, if any, have been disconnected.

(3) If the borrower does not respond within two weeks after the


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telephone call requirements of paragraph (2) have been satisfied,

the mortgagee, beneficiary, or authorized agent shall then send a

certified letter, with return receipt requested.

(4) The mortgagee, beneficiary, or authorized agent shall provide a

means for the borrower to contact it in a timely manner, including

a toll-free telephone number that will provide access to a live

representative during business hours.

(5) The mortgagee, beneficiary, or authorized agent has posted a

prominent link on the homepage of its Internet Web site, if any, to

the following information:

(A) Options that may be available to borrowers who are unable to afford

their mortgage payments and who wish to avoid foreclosure, and

instructions to borrowers advising them on steps to take to explore

those options.

(B) A list of financial documents borrowers should collect and be

prepared to present to the mortgagee, beneficiary, or authorized

agent when discussing options for avoiding foreclosure.

(C) A toll-free telephone number for borrowers who wish to discuss

options for avoiding foreclosure with their mortgagee, beneficiary,

or authorized agent.

(D) The toll-free telephone number made available by HUD to find a HUD-

certified housing counseling agency.

(h) Subdivisions (a), (c), and (g) shall not apply if any of the

following occurs:

(1) The borrower has surrendered the property as evidenced by either

a letter confirming the surrender or delivery of the keys to the


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exceeds the anticipated recovery through foreclosure on a net

present value basis.

(b) It is the intent of the Legislature that the mortgagee, beneficiary,

or authorized agent offer the borrower a loan modification or

workout plan if such a modification or plan is consistent with its

contractual or other authority.

(c) This section shall remain in effect only until January 1, 2013, and

as of that date is repealed, unless a later enacted statute, that

is enacted before January 1, 2013, deletes or extends that date.

CALIFORNIA CIVIL CODE SECTION 2924

(a) Every transfer of an interest in property, other than in trust,

made only as a security for the performance of another act, is to

be deemed a mortgage, except when in the case of personal property

it is accompanied by actual change of possession, in which case it

is to be deemed a pledge. Where, by a mortgage created after July

27, 1917, of any estate in real property, other than an estate at

will or for years, less than two, or in any transfer in trust made

after July 27, 1917, of a like estate to secure the performance of

an obligation, a power of sale is conferred upon the mortgagee,

trustee, or any other person, to be exercised after a breach of

the obligation for which that mortgage or transfer is a security,

the power shall not be exercised except where the mortgage or

transfer is made pursuant to an order, judgment, or decree of

a court of record, or to secure the payment of bonds or other

evidences of indebtedness authorized or permitted to be issued by


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the Commissioner of Corporations, or is made by a public utility

subject to the provisions of the Public Utilities Act, until all of

the following apply:

(1) The trustee, mortgagee, or beneficiary, or any of their authorized

agents shall first file for record, in the office of the recorder of

each county wherein the mortgaged or trust property or some part

or parcel thereof is situated, a notice of default. That notice of

default shall include all of the following:

(A) A statement identifying the mortgage or deed of trust by stating

the name or names of the trustor or trustors and giving the book

and page, or instrument number, if applicable, where the mortgage

or deed of trust is recorded or a description of the mortgaged or

trust property.

(B) A statement that a breach of the obligation for which the

mortgage or transfer in trust is security has occurred.

(C) A statement setting forth the nature of each breach actually

known to the beneficiary and of his or her election to sell or cause

to be sold the property to satisfy that obligation and any other

obligation secured by the deed of trust or mortgage that is in

default.

(D) If the default is curable pursuant to Section 2924c, the

statement specified in paragraph (1) of subdivision (b) of Section

2924c.

(2) Not less than three months shall elapse from the filing of the

notice of default.

(3) After the lapse of the three months described in paragraph


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(2), the mortgagee, trustee or other person authorized to take the sale

shall give notice of sale, stating the time and place thereof, in

the manner and for a time not less than that set forth in Section

2924f.

(b) In performing acts required by this article, the trustee shall

incur no liability for any good faith error resulting from reliance

on information provided in good faith by the beneficiary regarding

the nature and the amount of the default under the secured

obligation, deed of trust, or mortgage. In performing the acts

required by this article, a trustee shall not be subject to Title

1.6c (commencing with Section 1788) of Part 4.

(c) A recital in the deed executed pursuant to the power of sale

of compliance with all requirements of law regarding the mailing

of copies of notices or the publication of a copy of the notice

of default or the personal delivery of the copy of the notice

of default or the posting of copies of the notice of sale or the

publication of a copy thereof shall constitute prima facie evidence

of compliance with these requirements and conclusive evidence

thereof in favor of bona fide purchasers and encumbrancers for value

and without notice.

(d) All of the following shall constitute privileged communications

pursuant to Section 47:

(1) The mailing, publication, and delivery of notices as required by

this section.

(2) Performance of the procedures set forth in this article.

(3) Performance of the functions and procedures set forth in this


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article if those functions and procedures are necessary to carry

out the duties described in Sections 729.040, 729.050, and 729.080 of

the Code of Civil Procedure.

(e) There is a rebuttable presumption that the beneficiary actually

knew of all unpaid loan payments on the obligation owed to the

beneficiary and secured by the deed of trust or mortgage subject to

the notice of default. However, the failure to include an actually

known default shall not invalidate the notice of sale and the

beneficiary shall not be precluded from asserting a claim to this

omitted default or defaults in a separate notice of default.


(a) Except as provided in subdivisions (b) and (c), a person who has

undertaken as an agent of a mortgagee, beneficiary, or owner of a

promissory note secured directly or collaterally by a mortgage or

deed of trust on real property or an estate for years therein, to

make collections of payments from an obligor under the note, shall

mail the following notices, postage prepaid, to each mortgagee,

beneficiary or owner for whom the agent has agreed to make

collections from the obligor under the note:

(1) A copy of the notice of default filed in the office of the

county recorder pursuant to Section 2924 on account of a breach of

obligation under the promissory note on which the agent has agreed

to make collections of payments, within 15 days after recordation.

(2) Notice that a notice of default has been recorded pursuant to

Section 2924 on account of a breach of an obligation secured by a


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mortgage or deed of trust against the same property or estate for

years therein having priority over the mortgage or deed of trust

securing the obligation described in paragraph (1), within 15 days

after recordation or within three business days after the agent

receives the information, whichever is later.

(3) Notice of the time and place scheduled for the sale of the real

property or estate for years therein pursuant to Section 2924f

under a power of sale in a mortgage or deed of trust securing an

obligation described in paragraphs (1) or (2), not less than 15 days

before the scheduled date of the sale or not later than the next

business day after the agent receives the information, whichever is

later.

(b) An agent who has undertaken to make collections on behalf of

mortgagees, beneficiaries or owners of promissory notes secured by

mortgages or deeds of trust on real property or an estate for years

therein shall not be required to comply with the provisions of

subdivision (a) with respect to a mortgagee, beneficiary or owner

who is entitled to receive notice pursuant to subdivision (c) of

Section 2924b or for whom a request for notice has been recorded

pursuant to subdivision (b) of Section 2924b if the agent reasonably

believes that the address of the mortgagee, beneficiary, or owner

described in Section 2924b is the current business or residence

address of that person.

(c) An agent who has undertaken to make collections on behalf of

mortgagees, beneficiaries or owners of promissory notes secured

by mortgages or deeds of trust on real property or an estate for


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years therein shall not be required to comply with the provisions

of paragraph (1) or (2) of subdivision (a) if the agent knows or

reasonably believes that the default has already been cured by or

on behalf of the obligor.

(d) Any failure to comply with the provisions of this section shall

not affect the validity of a sale in favor of a bona fide purchaser

or the rights of an encumbrancer for value and without notice.


No clause in any deed of trust or mortgage on property containing four

or fewer residential units or on which four or fewer residential

units are to be constructed or in any obligation secured by any

deed of trust or mortgage on property containing four or fewer

residential units or on which four or fewer residential units are

to be constructed that provides for the acceleration of the due

date of the obligation upon the sale, conveyance, alienation, lease,

succession, assignment or other transfer of the property subject to

the deed of trust or mortgage shall be valid unless the clause is

set forth, in its entirety in both the body of the deed of trust or

mortgage and the promissory note or other document evidencing the

secured obligation. This section shall apply to all such deeds of

trust, mortgages, and obligations secured thereby executed on or

after July 1, 1972.


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(a) An obligee may not accelerate the maturity date of the principal and

accrued interest on any loan secured by a mortgage or deed of trust

on residential real property solely by reason of any one or more of

the following transfers in the title to the real property:

(1) A transfer resulting from the death of an obligor where the

transfer is to the spouse who is also an obligor.

(2) A transfer by an obligor where the spouse becomes a coowner of

the property.

(3) A transfer resulting from a decree of dissolution of the marriage

or legal separation or from a property settlement agreement

incidental to such a decree which requires the obligor to continue

to make the loan payments by which a spouse who is an obligor

becomes the sole owner of the property.

(4) A transfer by an obligor or obligors into an inter vivos trust in

which the obligor or obligors are beneficiaries.

(5) Such real property or any portion thereof is made subject to a

junior encumbrance or lien.

(b) Any waiver of the provisions of this section by an obligor is

void and unenforceable and is contrary to public policy.

(c) For the purposes of this section, residential real property

means any real property which contains at least one but not more

than four housing units.

(d) This act applies only to loans executed or refinanced on or after

January 1, 1976.


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(a) The provisions of any deed of trust or mortgage on real property

which authorize any beneficiary, trustee, mortgagee, or his or her

agent or successor in interest, to accelerate the maturity date

of the principal and interest on any loan secured thereby or to

exercise any power of sale or other remedy contained therein

upon the failure of the trustor or mortgagor to pay, at the times

provided for under the terms of the deed of trust or mortgage, any

taxes, rents, assessments, or insurance premiums with respect to

the property or the loan, or any advances made by the beneficiary,

mortgagee, or his or her agent or successor in interest shall be

enforceable whether or not impairment of the security interest

in the property has resulted from the failure of the trustor or

mortgagor to pay the taxes, rents, assessments, insurance premiums,

or advances.

(b) The provisions of any deed of trust or mortgage on real property

which authorize any beneficiary, trustee, mortgagee, or his or

her agent or successor in interest, to receive and control the

disbursement of the proceeds of any policy of fire, flood, or other

hazard insurance respecting the property shall be enforceable

whether or not impairment of the security interest in the property

has resulted from the event that caused the proceeds of the

insurance policy to become payable.


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(a) Upon posting a notice of sale pursuant to Section 2924f, a trustee

or authorized agent shall also post the following notice, in the

manner required for posting the notice of sale on the property

to be sold, and a mortgagee, trustee, beneficiary, or authorized

agent shall mail, at the same time in an envelope addressed to the

Resident of property subject to foreclosure sale the following

notice in English and the languages described in Section 1632:

Foreclosure process has begun on this property, which may affect

your right to continue to live in this property. Twenty days or

more after the date of this notice, this property may be sold at

foreclosure. If you are renting this property, the new property

owner may either give you a new lease or rental agreement or

provide you with a 60-day eviction notice. However, other laws may

prohibit an eviction in this circumstance or provide you with a

longer notice before eviction. You may wish to contact a lawyer or

your local legal aid or housing counseling agency to discuss any

rights you may have.

(b) It shall be an infraction to tear down the notice described

in subdivision (a) within 72 hours of posting. Violators shall be

subject to a fine of one hundred dollars ($100).

(c) A state government entity shall make available translations of

the notice described in subdivision (a) which may be used by a

mortgagee, trustee, beneficiary, or authorized agent to satisfy the

requirements of this section.

(d) This section shall only apply to loans secured by residential


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real property, and if the billing address for the mortgage note is

different than the property address.

(e) This section shall remain in effect only until January 1, 2013,

and as of that date is repealed, unless a later enacted statute,

that is enacted before January 1, 2013, deletes or extends that

date.

CALIFORNIA CIVIL CODE SECTION 2924A

If, by the terms of any trust or deed of trust a power of sale is

conferred upon the trustee, the attorney for the trustee, or any

duly authorized agent, may conduct the sale and act in the sale as

the auctioneer for the trustee.

CALIFORNIA CIVIL CODE SECTION 2924B

(a) Any person desiring a copy of any notice of default and of any

notice of sale under any deed of trust or mortgage with power of

sale upon real property or an estate for years therein, as to which

deed of trust or mortgage the power of sale cannot be exercised

until these notices are given for the time and in the manner

provided in Section 2924 may, at any time subsequent to recordation

of the deed of trust or mortgage and prior to recordation of notice

of default thereunder, cause to be filed for record in the office

of the recorder of any county in which any part or parcel of the

real property is situated, a duly acknowledged request for a copy

of the notice of default and of sale. This request shall be signed

and acknowledged by the person making the request, specifying the


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name and address of the person to whom the notice is to be mailed,

shall identify the deed of trust or mortgage by stating the names

of the parties thereto, the date of recordation thereof, and the

book and page where the deed of trust or mortgage is recorded or

the recorders number, and shall be in substantially the following

form:

In accordance with Section 2924b, Civil Code, request is hereby made

that a copy of any notice of default and a copy of any notice of

sale under the deed of trust (or mortgage) recorded _ _ _ _ _ _ ,

_ _ _ _ , in Book _ _ _ _ _ page _ _ _ _ records of _ _ _ _ County,

(or filed for record with recorders serial number _ _ _ _ , _ _

_ _ _ _ _ County) California, executed by _ _ _ _ as trustor (or

mortgagor) in which _ _ _ _ _ _ _ _ is named as beneficiary

(or mortgagee) and _ _ _ _ _ _ _ _ _ _ _ _ _ _ as trustee be

mailed to _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ at _ _ _ _ _ _ _ _

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ .

Name Address

NOTICE: A copy of any notice of default and of any notice of sale will

be sent only to the address contained in this recorded request. If

your address changes, a new request must be recorded.

Signature _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Upon the filing for record of the request, the recorder shall index

in the general index of grantors the names of the trustors (or

mortgagor) recited therein and the names of persons requesting

copies.


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(b) The mortgagee, trustee, or other person authorized to record

the notice of default or the notice of sale shall do each of the

following:

(1) Within 10 business days following recordation of the notice of

default, deposit or cause to be deposited in the United States

mail an envelope, sent by registered or certified mail with postage

prepaid, containing a copy of the notice with the recording date

shown thereon, addressed to each person whose name and address

are set forth in a duly recorded request therefor, directed to the

address designated in the request and to each trustor or mortgagor

at his or her last known address if different than the address

specified in the deed of trust or mortgage with power of sale.

(2) At least 20 days before the date of sale, deposit or cause to be

deposited in the United States mail an envelope, sent by registered

or certified mail with postage prepaid, containing a copy of the

notice of the time and place of sale, addressed to each person

whose name and address are set forth in a duly recorded request

therefor, directed to the address designated in the request and

to each trustor or mortgagor at his or her last known address

if different than the address specified in the deed of trust or

mortgage with power of sale.

(3) As used in paragraphs (1) and (2), the last known address of

each trustor or mortgagor means the last business or residence

physical address actually known by the mortgagee, beneficiary,

trustee, or other person authorized to record the notice of default.

For the purposes of this subdivision, an address is actually known if


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it is contained in the original deed of trust or mortgage, or in

any subsequent written notification of a change of physical address

from the trustor or mortgagor pursuant to the deed of trust or

mortgage. For the purposes of this subdivision, physical address

does not include an e-mail or any form of electronic address for

a trustor or mortgagor. The beneficiary shall inform the trustee

of the trustors last address actually known by the beneficiary.

However, the trustee shall incur no liability for failing to send

any notice to the last address unless the trustee has actual

knowledge of it.

(4) A person authorized to record the notice of default or the

notice of sale shall include an agent for the mortgagee or

beneficiary, an agent of the named trustee, any person designated

in an executed substitution of trustee, or an agent of that

substituted trustee.

(c) The mortgagee, trustee, or other person authorized to record the

notice of default or the notice of sale shall do the following:

(1) Within one month following recordation of the notice of default,

deposit or cause to be deposited in the United States mail an

envelope, sent by registered or certified mail with postage prepaid,

containing a copy of the notice with the recording date shown

thereon, addressed to each person set forth in paragraph (2),

provided that the estate or interest of any person entitled to

receive notice under this subdivision is acquired by an instrument

sufficient to impart constructive notice of the estate or interest

in the land or portion thereof which is subject to the deed of


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trust or mortgage being foreclosed, and provided the instrument is

recorded in the office of the county recorder so as to impart that

constructive notice prior to the recording date of the notice of

default and provided the instrument as so recorded sets forth a

mailing address which the county recorder shall use, as instructed

within the instrument, for the return of the instrument after

recording, and which address shall be the address used for the

purposes of mailing notices herein.

(2) The persons to whom notice shall be mailed under this

subdivision are:

(A) The successor in interest, as of the recording date of the

notice of default, of the estate or interest or any portion thereof

of the trustor or mortgagor of the deed of trust or mortgage being

foreclosed.

(B) The beneficiary or mortgagee of any deed of trust or mortgage

recorded subsequent to the deed of trust or mortgage being

foreclosed, or recorded prior to or concurrently with the deed

of trust or mortgage being foreclosed but subject to a recorded

agreement or a recorded statement of subordination to the deed of

trust or mortgage being foreclosed.

(C) The assignee of any interest of the beneficiary or mortgagee

described in subparagraph (B), as of the recording date of the

notice of default.

(D) The vendee of any contract of sale, or the lessee of any lease,

of the estate or interest being foreclosed which is recorded

subsequent to the deed of trust or mortgage being foreclosed,


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or recorded prior to or concurrently with the deed of trust or

mortgage being foreclosed but subject to a recorded agreement or

statement of subordination to the deed of trust or mortgage being

foreclosed.

(E) The successor in interest to the vendee or lessee described

in subparagraph (D), as of the recording date of the notice of

default.

(F) The office of the Controller, Sacramento, California, where, as

of the recording date of the notice of default, a Notice of Lien

for Postponed Property Taxes has been recorded against the real

property to which the notice of default applies.

(3) At least 20 days before the date of sale, deposit or cause to be

deposited in the United States mail an envelope, sent by registered

or certified mail with postage prepaid, containing a copy of the

notice of the time and place of sale addressed to each person to

whom a copy of the notice of default is to be mailed as provided

in paragraphs (1) and (2), and addressed to the office of any

state taxing agency, Sacramento, California, which has recorded,

subsequent to the deed of trust or mortgage being foreclosed, a

notice of tax lien prior to the recording date of the notice of

default against the real property to which the notice of default

applies.

(4) Provide a copy of the notice of sale to the Internal Revenue

Service, in accordance with Section 7425 of the Internal Revenue

Code and any applicable federal regulation, if a Notice of Federal

Tax Lien under Internal Revenue Laws has been recorded, subsequent


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to the deed of trust or mortgage being foreclosed, against the

real property to which the notice of sale applies. The failure to

provide the Internal Revenue Service with a copy of the notice

of sale pursuant to this paragraph shall be sufficient cause to

rescind the trustees sale and invalidate the trustees deed, at

the option of either the successful bidder at the trustees sale or

the trustee, and in either case with the consent of the beneficiary.

Any option to rescind the trustees sale pursuant to this paragraph

shall be exercised prior to any transfer of the property by the

successful bidder to a bona fide purchaser for value. A recision of

the trustees sale pursuant to this paragraph may be recorded in a

notice of recision pursuant to Section 1058.5.

(5) The mailing of notices in the manner set forth in paragraph (1)

shall not impose upon any licensed attorney, agent, or employee of

any person entitled to receive notices as herein set forth any duty

to communicate the notice to the entitled person from the fact that

the mailing address used by the county recorder is the address of

the attorney, agent, or employee.

(d) Any deed of trust or mortgage with power of sale hereafter

executed upon real property or an estate for years therein may

contain a request that a copy of any notice of default and a copy

of any notice of sale thereunder shall be mailed to any person

or party thereto at the address of the person given therein, and

a copy of any notice of default and of any notice of sale shall

be mailed to each of these at the same time and in the same

manner required as though a separate request therefor had been


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filed by each of these persons as herein authorized. If any deed

of trust or mortgage with power of sale executed after September

19, 1939, except a deed of trust or mortgage of any of the classes

excepted from the provisions of Section 2924, does not contain a

mailing address of the trustor or mortgagor therein named, and

if no request for special notice by the trustor or mortgagor in

substantially the form set forth in this section has subsequently

been recorded, a copy of the notice of default shall be published

once a week for at least four weeks in a newspaper of general

circulation in the county in which the property is situated, the

publication to commence within 10 business days after the filing of

the notice of default. In lieu of publication, a copy of the notice

of default may be delivered personally to the trustor or mortgagor

within the 10 business days or at any time before publication is

completed, or by posting the notice of default in a conspicuous

place on the property and mailing the notice to the last known

address of the trustor or mortgagor.

(e) Any person required to mail a copy of a notice of default or

notice of sale to each trustor or mortgagor pursuant to subdivision

(b) or (c) by registered or certified mail shall simultaneously

cause to be deposited in the United States mail, with postage

prepaid and mailed by first-class mail, an envelope containing an

additional copy of the required notice addressed to each trustor

or mortgagor at the same address to which the notice is sent by

registered or certified mail pursuant to subdivision (b) or (c).

The person shall execute and retain an affidavit identifying the


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notice mailed, showing the name and residence or business address

of that person, that he or she is over the age of 18 years, the

date of deposit in the mail, the name and address of the trustor

or mortgagor to whom sent, and that the envelope was sealed and

deposited in the mail with postage fully prepaid. In the absence of

fraud, the affidavit required by this subdivision shall establish a

conclusive presumption of mailing.

(f) No request for a copy of any notice filed for record pursuant

to this section, no statement or allegation in the request, and

no record thereof shall affect the title to real property or be

deemed notice to any person that any person requesting copies of

notice has or claims any right, title, or interest in, or lien or

charge upon the property described in the deed of trust or mortgage

referred to therein.

(g) Business day, as used in this section, has the meaning

specified in Section 9.

CALIFORNIA CIVIL CODE SECTION 2924C

(a) (1) Whenever all or a portion of the principal sum of any obligation

secured by deed of trust or mortgage on real property or an estate

for years therein hereafter executed has, prior to the maturity

date fixed in that obligation, become due or been declared due by

reason of default in payment of interest or of any installment of

principal, or by reason of failure of trustor or mortgagor to pay,

in accordance with the terms of that obligation or of the deed

of trust or mortgage, taxes, assessments, premiums for insurance,


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or advances made by beneficiary or mortgagee in accordance with

the terms of that obligation or of the deed of trust or mortgage,

the trustor or mortgagor or his or her successor in interest

in the mortgaged or trust property or any part thereof, or any

beneficiary under a subordinate deed of trust or any other person

having a subordinate lien or encumbrance of record thereon, at

any time within the period specified in subdivision (e), if the

power of sale therein is to be exercised, or, otherwise at any

time prior to entry of the decree of foreclosure, may pay to the

beneficiary or the mortgagee or their successors in interest,

respectively, the entire amount due, at the time payment is

tendered, with respect to (A) all amounts of principal, interest,

taxes, assessments, insurance premiums, or advances actually

known by the beneficiary to be, and that are, in default and shown

in the notice of default, under the terms of the deed of trust

or mortgage and the obligation secured thereby, (B) all amounts

in default on recurring obligations not shown in the notice of

default, and (C) all reasonable costs and expenses, subject to

subdivision (c), which are actually incurred in enforcing the terms

of the obligation, deed of trust, or mortgage, and trustees or

attorneys fees, subject to subdivision (d), other than the portion

of principal as would not then be due had no default occurred, and

thereby cure the default theretofore existing, and thereupon, all

proceedings theretofore had or instituted shall be dismissed or

discontinued and the obligation and deed of trust or mortgage shall

be reinstated and shall be and remain in force and effect, the


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same as if the acceleration had not occurred. This section does

not apply to bonds or other evidences of indebtedness authorized

or permitted to be issued by the Commissioner of Corporations or

made by a public utility subject to the Public Utilities Code. For

the purposes of this subdivision, the term recurring obligation

means all amounts of principal and interest on the loan, or rents,

subject to the deed of trust or mortgage in default due after

the notice of default is recorded; all amounts of principal and

interest or rents advanced on senior liens or leaseholds which

are advanced after the recordation of the notice of default; and

payments of taxes, assessments, and hazard insurance advanced after

recordation of the notice of default. Where the beneficiary or

mortgagee has made no advances on defaults which would constitute

recurring obligations, the beneficiary or mortgagee may require the

trustor or mortgagor to provide reliable written evidence that the

amounts have been paid prior to reinstatement.

(2) If the trustor, mortgagor, or other person authorized to cure

the default pursuant to this subdivision does cure the default,

the beneficiary or mortgagee or the agent for the beneficiary or

mortgagee shall, within 21 days following the reinstatement,

execute and deliver to the trustee a notice of rescission which

rescinds the declaration of default and demand for sale and advises

the trustee of the date of reinstatement. The trustee shall cause

the notice of rescission to be recorded within 30 days of receipt

of the notice of rescission and of all allowable fees and costs.

No charge, except for the recording fee, shall be made against


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