Filed 10/8/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

CATHLEEN ROBIN et al.,

Plaintiffs and Respondents,

v.

AL CROWELL,

Defendant and Appellant.

F077325

(Super. Ct. No. CV60202)

OPINION

APPEAL from a judgment of the Superior Court of Tuolumne County. Kevin M. 

Seibert, Judge.

Al Crowell, in pro. per.; Patrick B. Greenwell for Defendant and Appellant. 

Gary S. Garfinkle, Maria J. Garfinkle, Peter H. Gold; Hobin & Hobin, and Richard 

Hobin, for Plaintiffs and Respondents. 

-ooOoo-
2

Plaintiffs, holders of a first deed of trust on certain property, judicially foreclosed, 

but failed to name defendant, the holder of a second deed of trust on the same property, 

as a defendant in that action. After purchasing the property at the foreclosure sale, 

plaintiffs discovered the second deed of trust, and brought this quiet title action to correct 

their mistake and terminate defendant’s lien. Defendant raised the statute of limitations 

in defense. The trial court found in favor of plaintiffs. 

We conclude the statute of limitations on a judicial action to foreclose the first 

deed of trust had run, and the lien had been extinguished, prior to the filing of the quiet 

title action. The 60-year statute of limitations on which the trial court relied applied only 

to a nonjudicial trustee’s sale. The trial court could not exercise the trustee’s power of 

sale through a quiet title action after the expiration of the statute of limitations on a 

judicial action to foreclose. Further, after the judicial foreclosure sale, there was no 

trustee holding title to the property who could transfer title through a trustee’s sale. 

Consequently, plaintiffs’ action was barred by the statute of limitations and the judgment 

must be reversed.

FACTUAL AND PROCEDURAL SUMMARY

Steve and Marta Weinstein owned several parcels of vacant land, which they 

anticipated developing. In 2006, plaintiffs loaned them $450,000, secured by a deed of 

trust on one parcel of the Weinstein’s property (Parcel E or the property). Before 

plaintiffs made the loan, Marta Weinstein represented there were no prior encumbrances 

on Parcel E. Plaintiffs obtained a title report, which showed there was a 2004 deed of 

trust on the property, securing a $250,000 promissory note from the Weinsteins to 

defendant Crowell. Marta Weinstein represented that the Crowell deed of trust was a 

mistake, and obtained from Crowell a partial reconveyance of that deed of trust to 

remove his lien. Plaintiffs and the Weinsteins modified the promissory note to prohibit 

the Weinsteins from encumbering the property again without plaintiffs’ consent while 

plaintiffs’ loan was unpaid. Subsequently, plaintiffs executed the promissory note, 

recorded the deed of trust, and completed the funding of the loan. In 2007, without 
3

plaintiffs’ knowledge, the Weinsteins and Crowell recorded a second deed of trust on the 

property, again securing Crowell’s 2004 promissory note. 

The Weinsteins’ promissory note to plaintiffs permitted plaintiffs to accelerate the 

due date of their loan in the event a tentative subdivision map for the development of the 

property was not approved by January 1, 2008. Plaintiff Cathleen Robin exercised this 

right, accelerating the due date to April 5, 2008, and the Weinsteins failed to make 

payment by that date. Robin subsequently initiated a judicial foreclosure under the deed 

of trust, joining plaintiff, Michael Fontes, as a nominal defendant. The foreclosure 

complaint failed to name Crowell as a defendant, despite his recorded deed of trust. The 

trial court entered a judgment in favor of plaintiffs in the foreclosure action in 2011, 

ordering the sale of the property. In 2014, plaintiffs purchased the property at the 

foreclosure sale for a credit bid of $150,000. 

After the Weinsteins’ one-year redemption period expired, plaintiffs attempted to 

sell the property to the owners of a neighboring property. The title search conducted at 

that time revealed Crowell’s recorded deed of trust. In June 2016, plaintiffs filed this 

quiet title action to clear title to the property. Crowell answered, asserting he held an 

interest in the property superior to plaintiffs’ and raising defenses, including the 

expiration of the statute of limitations. He also filed a cross-complaint for declaratory 

relief, seeking a declaration regarding the extent to which the foreclosure action or 

foreclosure sale affected his interest in the property, and whether plaintiffs could prevent 

him from exercising his rights under his deed of trust. 

The matter was tried to the court and though no statement of decision was 

requested or issued, the court did provide a four-page written decision addressing the 

claims, findings and applicable law. The trial court entered judgment in favor of 

plaintiffs on the complaint and the cross-complaint. It exercised its equitable powers to 

correct a mistake in the prior foreclosure action -- the mistake of failing to include 

Crowell as a party to that action. The trial court granted Crowell a three-month 

redemption right, which it believed would put him in the same position he would have 

been in if he had been included in the Weinstein foreclosure action. The judgment 
4

provided that, if Crowell failed to redeem the property within the allowed time, plaintiffs 

would own the property unencumbered by Crowell’s deed of trust. Crowell appeals from 

the judgment. 

DISCUSSION

I. Standard of Review

In entering its judgment, the trial court stated it was exercising its equitable 

powers to correct a mistake. We review the exercise of equitable powers under the abuse 

of discretion standard. (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 771.) “‘An 

abuse of discretion occurs if, in light of the applicable law and considering all of the 

relevant circumstances, the court’s decision exceeds the bounds of reason and results in a 

miscarriage of justice. [Citations.] The abuse of discretion standard affords considerable 

deference to the trial court, provided that the court acted in accordance with the 

governing rules of law.’” (Kayne v. The Grande Holdings Limited (2011) 198 

Cal.App.4th 1470, 1474-1475.) “The burden is on the party complaining to establish an 

abuse of discretion.” (Dorman v. DWLC Corp. (1995) 35 Cal.App.4th 1808, 1815.)

“When applying the deferential abuse of discretion standard, ‘the trial court’s 

findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed 

de novo, and its application of the law to the facts is reversible only if arbitrary and 

capricious.’” (In re C.B. (2010) 190 Cal.App.4th 102, 123.) The determination of the 

statute of limitations applicable to a cause of action is a question of law we review de 

novo. (McLeod v. Vista Unified School Dist. (2008) 158 Cal.App.4th 1156, 1164.)

II. Statute of Limitations – Quiet Title v. Foreclosure

Defendant’s primary argument for reversal of the judgment is that the trial court 

erred when it concluded the 60-year limitations period set out in Civil Code section 

882.020 applied to plaintiffs’ action. He contends the limitations period applicable to 

judicial foreclosure actions, either four years under Code of Civil Procedure section 3371

1 All further statutory references are to the Code of Civil Procedure, unless 

otherwise indicated.
5

or six years under Commercial Code section 3118, applies to plaintiffs’ action. He 

asserts the limitations period expired no later than April 5, 2014. Plaintiffs respond that

the trial court chose the correct statute of limitations. Alternatively, they assert their 

action was timely, because it was an action to quiet title on the ground of mistake, to 

which a three-year limitations period applies, commencing upon discovery of the cause 

of action (§ 338, subd. (d)). They contend they filed the action promptly upon 

discovering defendant’s trust deed had been re-recorded against the property.

A. Quiet Title Based on Mistake

Plaintiffs’ complaint alleged one cause of action to quiet title to the property. 

“The Legislature has not established a specific statute of limitations for actions to quiet 

title. [Citation.] Therefore, courts refer to the underlying theory of relief to determine 

the applicable period of limitations. [Citations.] An inquiry into the underlying theory 

requires the court to identify the nature (i.e., the ‘gravamen’) of the cause of action.” 

(Salazar v. Thomas (2015) 236 Cal.App.4th 467, 476.) “The gravamen of an action 

depends on the nature of the right sued upon or the principal purpose of the action.” 

(Bank of New York Mellon v. Citibank, N.A. (2017) 8 Cal.App.5th 935, 943.)

Plaintiffs contend the gravamen of their cause of action was mistake. A three-year 

limitations period applies to an action seeking relief on the ground of mistake, and “[t]he 

cause of action in that case is not deemed to have accrued until the discovery, by the 

aggrieved party, of the facts constituting the fraud or mistake.” (§ 338, subd. (d).) “Case 

law has interpreted this accrual provision to mean that ‘a cause of action for ... mistake 

accrues, and the limitations period commences to run, when the aggrieved party could 

have discovered the ... mistake through the exercise of reasonable diligence.’” 

(Creditors Collection Service v. Castaldi (1995) 38 Cal.App.4th 1039, 1044.) 

A quiet title action is a statutory action that seeks to declare the rights of the 

parties in realty. (§ 760.020; Western Aggregates, Inc. v. County of Yuba (2002) 101 

Cal.App.4th 278, 305 (Western Aggregates).) “‘“The object of the action is to finally 

settle and determine, as between the parties, all conflicting claims to the property in 

controversy, and to decree to each such interest or estate therein as he may be entitled 
6

to.”’” (Western Aggregates, supra, at p. 305.) The purpose of a quiet title action is to 

determine any adverse claim to the property that the defendant may assert, and to declare 

and define any interest held by the defendant, “so that the plaintiff may have a decree 

finally adjudicating the extent of his own interest in the property in controversy.’” (Akley 

v. Bassett (1924) 68 Cal.App. 270, 287.) In Lechuza Villas West v. California Coastal 

Comm. (1997) 60 Cal.App.4th 218 (Lechuza), the court observed: “A description of the 

parties’ legal interests in real property is all that can be expected of a judgment in an 

action to quiet title.... It is clear that [the plaintiff’s] desired outcome has been not to 

have legal title declared as it really is, which is the effect of a successful action to quiet 

title, but instead to obtain a judgment changing the title to some portion of the 

property.... This cannot be done by an action to quiet title.” (Id. at p. 243.)

In this case, plaintiffs’ quiet title action did not seek a determination and 

declaration of their rights in the property as they existed at the time the action was filed. 

Plaintiffs did not seek a determination that, as a result of some mistake in the creation, 

execution, or recordation of their interest in the property, or of defendant’s interest in the 

property, the recorded instruments seemed to indicate the parties’ interests were different 

than they actually were, so a declaration of their true interests was needed. Rather, as in 

Lechuza, plaintiffs sought to obtain a judgment changing the parties’ interests in the 

property – in this case, by eliminating defendant’s existing lien. 

A separate type of action is authorized to obtain cancellation of an instrument that 

creates a cloud on the plaintiff’s title. (See Civ. Code, § 3412; Hughes v. Beekley (1927) 

85 Cal.App. 313, 316-317.) An action to remove a cloud on title is directed at a 

particular instrument, and may be brought by “a person against whom it is void or 

voidable”; if the plaintiff prevails, the court will order the instrument “to be delivered up 

or canceled.” (Civ. Code, § 3412; Castro v. Barry (1889) 79 Cal. 443, 446.) In this case, 

plaintiffs have not cited Civil Code section 3412, asserted their action was one to remove 

a cloud from their title, or contended defendant’s deed of trust was void or voidable as to 

them. 
7

The principal purpose of plaintiffs’ action appears to be to remove the lien of 

defendant’s deed of trust from the property. As we discuss in the following sections, 

however, the method available to the holder of a senior trust deed for removal of a junior 

encumbrance from the property is foreclosure of the junior lienholder’s equitable right of 

redemption. Ordinarily this is done by including the junior lienholder in the foreclosure 

action against the trustor under the senior deed of trust. Defendant was omitted from the 

prior foreclosure action. Plaintiffs acknowledge the current action is a “quiet title action

to equitably complete the foreclosure.”

2

 The trial court entered a judgment designed to 

have the same effect as inclusion of defendant in the prior foreclosure. It gave defendant 

an opportunity to exercise his equity of redemption and provided that, if he did not do so, 

title to the property would be quieted in plaintiffs.

We conclude the gravamen of plaintiffs’ action was foreclosure of plaintiffs’ 

senior trust deed against defendant.3 Accordingly, the statute of limitations applicable to 

foreclosure actions governs this case.

2 Respondents’ brief (RB) at page 26. The brief also asserts: “Moreover, to the 

extent the gravamen of the quiet title action is ‘to complete the foreclosure,’” it was 

timely (RB 25); “[t]hus, whether the gravamen is deemed to be correcting the mistaken

omission of the junior lienholder or completing the timely filed judicial foreclosure, or 

both,” the action was timely (RB 26); and “[t]o the extent the gravamen of the instant 

equitable remedy is to complete that process by clearing the title acquired in the judicial 

foreclosure,” the trial court applied the correct statute of limitations (RB 31).

3 Treating a failure to include a particular defendant in an action as a mistake that 

could be corrected by a subsequent equitable action to which section 338, subdivision (d), 

applies would effectively extend the statute of limitations as to any defendant the plaintiff 

failed to name in the original, timely-filed action. The plaintiff could always file a 

second action, after the statute of limitations on the plaintiff’s cause of action had run, 

claiming that the unnamed defendant was mistakenly omitted from the first action, and 

that the statute of limitations on the second action ran from discovery of that mistaken 

omission. This is not the type of mistake section 338, subdivision (d), was intended to 

remedy.
8

III. Statutes of Limitations Applicable to Foreclosures

A. Mortgages and Deeds of Trust

Some background concerning mortgages and deeds of trust is instructive. These 

are two common, similar types of security transactions in real property. (See 4 Witkin, 

Summary of Cal. Law (11th ed. 2020) Security Transactions in Real Property, §§ 3-5.)

“A ‘mortgage’ is ‘a contract by which specific property ... is hypothecated for the 

performance of an act, without the necessity of a change of possession.’” (Aviel v. Ng

(2008) 161 Cal.App.4th 809, 815 (Aviel), citing Civ. Code, § 2920, subd. (a).) Generally, 

it is a two party transaction, involving a mortgagor (debtor) and a mortgagee (creditor), 

and secures a promissory note by placing a lien on the real property. (Bank of Italy Nat. 

Trust & Sav. Assn. v. Bentley (1933) 217 Cal. 644, 654 (Bank of Italy); Civ. Code, 

§ 2927.) Title and right of possession remain in the mortgagor. (Bank of Italy, supra, at 

p. 654.) In the event of a default by the mortgagor, the mortgagee may commence a 

judicial foreclosure action to foreclose the mortgagor’s interest and have the property 

sold to satisfy the debt. (§ 725a.) The mortgage may also confer a power of sale upon the 

mortgagee or another person, which may be exercised after breach of the obligation for 

which the mortgage is given as security. (Aviel, supra, at p. 815.) 

A deed of trust serves a similar function. It “conveys title to real property from 

the trustor-debtor to a third party trustee to secure the payment of a debt owed to the 

beneficiary-creditor under a promissory note.” (Jenkins v. JPMorgan Chase Bank, N.A.

(2013) 216 Cal.App.4th 497, 508 (Jenkins), disapproved on another ground in Yvanova v. 

New Century Mortgage Corp. (2016) 62 Cal.4th 919, 939 & fn. 13.) “There are three 

parties to a deed of trust: (1) the trustor, who owns the property that is conveyed to (2) 

the trustee as security for the obligation owed to (3) the beneficiary.” (Aviel, supra, 161 

Cal.App.4th at pp. 815-816.) A deed of trust ordinarily includes a power of sale 

provision, which permits the trustee, on behalf of the beneficiary, to sell the real property 

security if the trustor fails to repay the debt owed. (Jenkins, supra, at p. 508.) Unlike 

mortgages, which operate under a lien theory, deeds of trust operate under a title theory; 

title passes from the trustor to the trustee, where it remains until the debt is paid or the 
9

property is sold on default. (Bank of Italy, supra, 217 Cal. at p. 655; Dimock v. Emerald 

Properties (2000) 81 Cal.App.4th 868, 876-877.)

“‘[D]eeds of trust, except for the passage of title for the purpose of the trust, are 

practically and substantially only mortgages with a power of sale ....’ [Citation.] In 

practical effect, if not in legal parlance, a deed of trust is a lien on the property.” 

(Monterey S.P. Partnership v. W.L. Bangham, Inc. (1989) 49 Cal.3d 454, 460.) It 

“conveys ‘title’ to the trustee ‘only so far as may be necessary to the execution of the 

trust.’” (Ibid.)

We are concerned in this case with a deed of trust containing a power of sale, 

given by the Weinsteins to plaintiffs to secure payment of a promissory note. 

B. Judicial and Nonjudicial Foreclosures

When the trustor defaults in its obligations under the promissory note and deed of 

trust, the beneficiary ordinarily has two methods to enforce the security interest of the 

deed of trust. (Ung v. Koehler (2005) 135 Cal.App.4th 186, 192 (Ung).) The beneficiary 

may bring an action for judicial foreclosure (§ 725a) or pursue a nonjudicial foreclosure, 

also known as a trustee’s sale, pursuant to the power of sale granted in the deed of trust 

(Civ. Code, §§ 2924-2924l). (Ung, supra, at p. 192.) 

A judicial foreclosure is a court proceeding, usually brought by the trustee or 

beneficiary against the trustor and all parties with recorded interests in the property. 

(§ 726; Diamond Benefits Life Ins. Co. v. Troll (1998) 66 Cal.App.4th 1, 6 (Diamond)) 

“In a judicial foreclosure, if the property is sold for less than the amount of the 

outstanding indebtedness, the creditor may seek a deficiency judgment, or the difference 

between the amount of the indebtedness and the fair market value of the property, as 

determined by a court, at the time of the sale. [Citation.] However, the debtor has a 

statutory right of redemption, or an opportunity to regain ownership of the property by 

paying the foreclosure sale price, for a period of time after foreclosure.” (Alliance 

Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1236 (Alliance); see §§ 726, 729.020, 

729.030.) After a judicial foreclosure, any liens on the property subordinate to the deed 

of trust are extinguished, unless the lien was properly recorded at the time the action was 
10

commenced and the lienholder was not made a party to the action. (§§ 701.630, 726, 

subd. (c); Arabia v. BAC Home Loans Servicing, L.P. (2012) 208 Cal.App.4th 462, 479.)

In a nonjudicial foreclosure, “the trustee exercises the power of sale given by the 

deed of trust.” (Alliance, supra, 10 Cal.4th at p. 1236.) The sale is governed by a 

comprehensive set of statutory provisions. (Civ. Code, §§ 2924-2924l; Moeller v. Lien

(1994) 25 Cal.App.4th 822, 830-831 (Moeller).) The trustor has no right of redemption 

after the sale, and the creditor may not seek a deficiency judgment. (Alliance, supra, at p. 

1236.) As a general rule, the purchaser at a nonjudicial foreclosure sale receives title 

under a trustee’s deed free and clear of any right, title or interest of the trustor or junior 

lienholders. (Moeller, supra, at p. 831; Bank of America v. Graves (1996) 51 

Cal.App.4th 607, 611-612 (Graves).) If the proceeds of the sale exceed the amount 

necessary to pay the costs of the sale and satisfy the senior deed of trust, the excess is 

used to satisfy any obligations secured by junior liens. (Civ. Code, § 2924k.) If there are 

no excess proceeds, a sold-out junior lienor may bring a personal action against the 

trustor on the debt.4 (Graves, supra, at pp. 611-612.) 

1. Statute of Limitations on Judicial Foreclosure

Although a deed of trust technically conveys title to the real property from the 

trustor to the trustee, the security interest it creates is the functional equivalent of a lien 

on the property. (Jenkins, supra, 216 Cal.App.4th at p. 508.) Civil Code section 2911 

provides that a lien is extinguished by the lapse of time within which, under the Code of 

Civil Procedure, an action can be brought upon the principal obligation. Thus, Civil 

Code section 2911 extinguishes the right to bring an action for judicial foreclosure of a 

4 “The term ‘sold-out junior lienor’ refers to the situation in which a senior 

lienholder forecloses its lien, eliminating the junior lienor’s security interest. ‘A senior 

foreclosure sale conveys the property free of all junior liens .... Thus, the junior no 

longer has a lien on the property, and the security has been entirely destroyed. A sold-out 

junior thus holds security that has “become valueless” and is permitted to sue directly on 

the note.’” (Graves, supra, 51 Cal.App.4th at pp. 611-612.)
11

deed of trust upon expiration of the statute of limitations on the underlying debt. (Ung, 

supra, 135 Cal.App.4th at p. 193.)

The general statute of limitations set out in the Code of Civil Procedure for “[a]n 

action upon any contract, obligation or liability founded upon an instrument in writing” is 

four years. (§ 337, subd. (a).)5 Defendant points out that Commercial Code section 

3118, which prescribes a six-year limitations period for “an action to enforce the 

obligation of a party to pay a note payable at a definite time,” may provide the limitations 

period for a promissory note with a specified due date secured by a deed of trust. Civil 

Code section 2911, however, refers specifically to the limitations period set out in the 

Code of Civil Procedure, not the Commercial Code, as the time period that extinguishes 

the lien. We need not determine which limitations period causes a lien to be extinguished 

under Civil Code section 2911, however, because in this case, either time period expired 

before plaintiffs filed this action.

The limitations period for bringing a judicial foreclosure action begins to run upon 

maturity of the obligation secured, that is, when the underlying promissory note comes 

due, but is unpaid. (Flack v. Boland (1938) 11 Cal.2d 103, 106 (Flack).) Robin 

accelerated the maturity date of the promissory note, making payment due on April 5, 

2008; the Weinsteins failed to make payment by that date. Robin filed her action for 

foreclosure against the Weinsteins within four years after that date. She did not file this 

action to foreclose against defendant until more than eight years after maturity of the

note. Accordingly, whether a four-year or a six-year limitations period applies, the 

statutory period expired before plaintiffs filed this action.

A junior lienholder may raise the expiration of the statute of limitations as a 

defense to the senior lienholder’s assertion of priority. (Frates v. Sears (1904) 144 Cal. 

246, 249 (Frates); Brandenstein v. Johnson (1903) 140 Cal. 29, 30-32 (Brandenstein).) 

5 This subdivision was designated as subdivision (a), effective January 1, 2019. 

Prior to that date, it was designated as subdivision (1). The substance of the subdivision 

was not changed.
12

For example, in California Bank v. Brooks (1899) 126 Cal. 198, the mortgagor executed 

promissory notes and a deed of trust to the first mortgagee, and later executed a 

promissory note and deed of trust to the second mortgagee. (Id. at pp. 198-199.) The 

first mortgagee and the mortgagor later substituted two new notes for one of the original 

notes, giving them new due dates. (Id. at p. 199.) When the second mortgagee sued to 

foreclose its mortgage, the court determined the first mortgagee’s substitution of new 

notes for the original one did not discharge the original debt or affect the priority of the 

first mortgage. (Id. at pp. 199-200.) As to the second mortgagee, the debt to the first 

mortgagee was still evidenced by the original note. (Id. at p. 200.) However, “[t]he first 

mortgagee could not renew the note and thereby extend the statute of limitations so as to 

affect the second mortgagee. [The second mortgagee] may take advantage of the statute 

of limitations, although the debtor does not.” (Ibid.) The statute of limitations had run 

on the first mortgagee’s original note before the action for foreclosure of the second 

mortgage was brought. (Id. at p. 201.) Consequently, the court directed that the proceeds 

of the sale of the property were to be distributed to pay off the second mortgage, before 

paying off the renewed first mortgage. (Id. at p. 201.)

The interest of a junior lienholder in the property, as against the senior lienholder, 

is the right of redemption. (Wemple v. Yosemite Gold Mining Co. (1906) 4 Cal.App. 78, 

86.) 

“When the mortgagor and mortgagee contract, the former agrees that, in 

case of a breach of the agreement on his own part, the latter shall sell the land, and 

that the purchaser at such sale shall acquire the legal title, relieved of the lien, as of 

the date of the execution of the mortgage. A subsequent mortgagee knows of this 

relation between the parties, and what he agrees to accept as a security for his 

money is a claim upon the surplus of the proceeds of the first foreclosure sale 

beyond the prior debt. He has no estate in the land itself, nor any lien upon the 

land, except subject to the prior lien; that is, he has a right to be paid out of the 

excess. That is, in effect, a right to redeem, and incidentally--if made a party to a 

foreclosure suit--a right to defend by pleading the Statute of Limitations, or the 

invalidity in whole or in part of the plaintiff’s claim, or that it is paid. These are 

not, however[,] substantive and primary defenses, but grow out of his right to 

redeem--his right to have the fund proceeding from the sale as large as possible. 

Hence, whenever he files a bill to redeem the former mortgage, or to redeem the 
13

former and to foreclose his own, he may allege and show that the claim of the 

prior mortgagee has been exaggerated, or any other kindred fact which will 

increase the fund.” (Carpentier v. Brenham (1870) 40 Cal. 221, 236 

(Carpentier).) 

The junior lienholder has the right to redeem the property from the senior lien, “at 

any time after the claim is due, and before his right of redemption is foreclosed,” by 

paying the obligation secured by the senior lien. (Civ. Code, §§ 2903, 2904, 2905.) If 

the junior lienholder redeems, he becomes subrogated to all the benefits of the senior lien, 

when that is necessary for the protection of his interests. (Civ. Code, § 2904.)

A foreclosure action, as against a junior lienholder, is an action to cut off the right 

of redemption. (Carpentier, supra, 40 Cal. at p. 237.) The junior lienholder is a proper, 

but not a necessary, party to an action to foreclose the senior deed of trust. (Id. at p. 235.) 

The junior lienholder’s right of redemption can be terminated by joinder of the junior 

lienholder in the foreclosure action. (Fox v. California Title Ins. Co. (1932) 120 

Cal.App.264, 266 (Fox).) If the junior lienholder’s interest was recorded prior to the 

commencement of the senior lienholder’s foreclosure action, and the junior lienholder

was not joined in that action, however, the junior lienholder’s interest is not affected by

the judgment and sale in the foreclosure action. (Ibid.; Frates, supra, 144 Cal. at p. 249.)

In Carpentier, the senior mortgagee had judicially foreclosed without naming the 

junior mortgagee as a party, and had purchased the property at the foreclosure sale. 

(Carpentier, supra, 40 Cal. at p. 233.) More than four years after the foreclosure 

judgment was entered, the junior mortgagee brought a foreclosure action under the junior 

mortgage against the purchaser and his successors. (Ibid.) The court rejected the junior 

mortgagee’s argument that the prior foreclosure sale extinguished the senior mortgage, 

and freed her to foreclose as if it had never existed. (Id. at pp. 234-235.) The court held 

the senior foreclosure was valid, in spite of the omission to include the junior mortgagee 

as a party to it. (Id. at p. 235.) The prior foreclosure could not, however, deprive the 

junior mortgagee of her rights. (Ibid.) The junior mortgagee retained the right to redeem 

the prior mortgage and extinguish the senior encumbrance. (Id. at p. 237.) Nonetheless, 
14

the lien of the junior mortgage remained subordinate to the interest of the buyer at the 

prior foreclosure sale, who succeeded to the interest of the senior mortgagee. (Ibid.) 

In Frates, the senior mortgagee, Redfield, had judicially foreclosed without 

naming the plaintiff, the junior mortgagee, as a party, although her mortgage was 

recorded prior to the first foreclosure action. (Frates, supra, 144 Cal. at p. 247.) 

Redfield purchased the property at the senior foreclosure sale. (Ibid.) The plaintiff sued 

to foreclose junior mortgage, naming the mortgagor and Redfield as the defendants. 

(Ibid.) The plaintiff objected to admission of evidence of the judgment roll of the senior 

foreclosure action, because she had not been a party to the action and was not bound by 

the judgment, and because the statute of limitations had run in her favor on enforcement 

of the senior mortgage. (Id. at p. 248.) 

Because the plaintiff’s junior mortgage pre-dated the senior foreclosure and the 

plaintiff was not named as a party in that action, her interest in the property was not 

affected by the prior foreclosure. (Frates, supra, 144 Cal. at p. 249.) The statute of 

limitations barred a foreclosure action on the senior mortgage at the time Redfield pled 

the senior mortgage in answer to the plaintiff’s foreclosure complaint. (Id. at pp. 249-

250.) Accordingly, the court held the plaintiff’s objection to admission of the record of 

the prior foreclosure action should have been sustained, because Redfield’s assertion of 

his senior interest was time barred. (Id. at pp. 249-250.)

Redfield cited Carpentier, where the junior mortgagee’s foreclosure action was 

brought more than four years6 after maturity of the senior mortgage, but the court did not 

hold that the expiration of the statute of limitations on the senior mortgage barred the 

senior mortgagee/purchaser’s assertion of the seniority of his interest. (Frates, supra, 

144 Cal. at p. 250.) The Frates court noted Carpentier stated that, if the senior mortgage 

had not been foreclosed, “‘it would ... have been entitled to priority over the junior 

6 The Carpentier and Frates decisions were issued long before enactment of 

Commercial Code section 3118. The four years they mentioned apparently referred to 

the limitations period set out in section 337 for actions based on written instruments. 
15

mortgage, so long as it was not barred by the statute of limitations,’” seeming to indicate 

“the statute of limitations was available to the plaintiff, who was seeking to foreclose a 

second mortgage as against the first mortgage, which had been foreclosed without 

making the second mortgagee a party.” (Ibid.) The Frates court observed that, while it 

seemed from the facts in Carpentier that the statute of limitations was available to the 

second mortgagee as a defense, in discussing other issues, the Carpentier court seemed 

“to have lost sight of the statute of limitations and its applicability to the facts.” (Frates, 

supra, at p. 250.) In other words, the Carpentier court failed to address the effect of the 

statute of limitations on the respective claims of the parties.

In Diamond, the plaintiff held deeds of trust on property used as a golf course. 

(Diamond, supra, 66 Cal.App.4th at p. 4.) The defendant, who owned adjacent property, 

held easements over portions of the golf course property, which were created and 

recorded after the plaintiff’s trust deeds were recorded. (Ibid.) The plaintiff judicially 

foreclosed under its trust deeds, but failed to name the defendant as a party. The plaintiff 

purchased the property at the foreclosure sale. (Ibid.) It later filed a quiet title action 

against the defendant, and obtained a judgment permitting the defendant to exercise his 

equitable right of redemption, which he would have had if he had been included in the 

foreclosure action. (Id. at pp. 4-5.) The trial court concluded the prior foreclosure action 

did not affect the defendant’s rights, but the plaintiff “retained the right to foreclose 

against [the defendant’s] interest and that right was effectively exercised through the 

quiet title proceedings.” (Id. at p. 5.) There was no statute of limitations issue in 

Diamond, because the defendant failed to raise that defense. (Id. at p. 13.)

To summarize, a junior lienholder is not affected by the foreclosure of a senior 

lien, if the junior lien existed prior to the foreclosure and the junior lienholder was not 

made a party to the senior lienholder’s foreclosure action. To remove a junior lien, the 

holder of the senior lien or the buyer at the senior sale (standing in the shoes of the senior 

lienholder) may file a second action to foreclose the omitted party’s equity of redemption 

(see Winn v. Torr (1938) 27 Cal.App.2d 623, 629) or a quiet title action having the same 

effect (see Fox, supra, 120 Cal.App. 264; Diamond, supra, 66 Cal.App.4th at p. 5). The 
16

junior lienholder may raise the statute of limitations as a defense to the senior 

lienholder’s foreclosure action.

Under Civil Code section 2911, the lien of the deed of trust is extinguished when 

the statute of limitations has run on the underlying debt. Once the statute of limitations 

has run on the underlying obligation, i.e., the promissory note, the lienholder “‘cannot, by 

any affirmative proceedings on his part, invoke the aid of the court for the collection of 

his debt.’” (Marshutz v. Seltzor (1907) 5 Cal.App. 140, 144.) As a result, the expiration 

of the statute of limitations bars both an action on the debt and an action to foreclose the 

lien of the deed of trust. (Flack, supra, 11 Cal.2d at pp. 106.) The expiration of the 

statute of limitations on a senior lien also bars the senior lienholder from asserting the 

priority of its lien in answer to the foreclosure complaint of a junior lienholder. (Frates, 

supra, 144 Cal. at pp. 249-250.) 

In this case, the limitations period on any judicial action to enforce plaintiffs’ 

rights under the deed of trust expired prior to the filing of their quiet title action. By 

filing a quiet title action seeking to complete their prior judicial foreclosure and eliminate 

defendant’s lien on the property, plaintiffs have affirmatively invoked the court’s 

assistance to foreclose defendant’s interest in the property. The time for doing so lapsed 

prior to commencement of the action, and any judicial action for that purpose, including 

this quiet title action, is barred.

2. Nonjudicial Foreclosure

Historically, a judicial foreclosure action under a deed of trust was barred when 

the statute of limitations had run on the underlying obligation and the lien was 

extinguished. Prior to 1982, however, “the power of sale under a deed of trust was not 

barred, or ‘never outlaws.’” (Miller v. Provost (1994) 26 Cal.App.4th 1703, 1707

(Miller); Ung, supra, 135 Cal.App.4th at p. 193.) The power of sale could be exercised 

by the trustee in a nonjudicial foreclosure even after the statute of limitations barred 

judicial foreclosure. (Ung, supra, at p. 193.) “Retention of the right to nonjudicial 

enforcement was justified by the equitable principle that ‘courts will not help the debtor 

to recover ... encumbered property unless he pays his debt.’” (Ibid.) Additionally, it was 
17

supported because California applied a title theory, rather than a lien theory, to deeds of 

trust. (Id. at pp. 195-196.) Title was conveyed to the trustee, who retained it until the 

debt was satisfied or the property was sold to enforce payment. (Hohn v. Riverside 

County Flood Control & Water Conservation Dist. (1964) 228 Cal.App.2d 605, 611 

(Hohn).) Civil Code section 2911 provided that a “lien” was extinguished by the 

expiration of the statute of limitations, and courts held that provision did not apply to the 

power of sale exercisable by the trustee who held title to the property. (Ung, supra, at pp. 

195-196.) In contrast, because a mortgage did not convey title to a trustee, but merely 

created a lien on the property, expiration of the limitations period and extinguishment of 

the lien under Civil Code section 2911 barred both a judicial action to foreclose or collect 

the debt and a nonjudicial foreclosure sale, if the mortgage included a power of sale. 

(Bayer v. Hoagland (1928) 95 Cal.App. 403, 411.) 

In 1982, the Legislature abolished the rule that the power of sale in a trust deed 

“never outlaws.” (Slintak v. Buckeye Retirement Co., LLC, Ltd. (2006) 139 Cal.App.4th 

575, 584.) It enacted the Marketable Record Title Act (Civ. Code, §§ 880.020-887.090; 

the Act), which was designed “to make real property more freely alienable and 

marketable” and “to simplify and facilitate real property title transactions by enabling 

persons to determine the status and security of recorded real property titles from an 

examination of recent records.” (Miller, supra, 26 Cal.App.4th at pp. 1707-1708.) The 

Act limited the time period for exercising a power of sale under a deed of trust. (Id. at p. 

1708.) It provides: “Unless the lien of a ... deed of trust ... has earlier expired pursuant 

to Section 2911, the lien expires at, and is not enforceable by action for foreclosure 

commenced, power of sale exercised, or any other means asserted after, the later of” 10

years after the maturity date of the secured debt, if that date is ascertainable from the 

recorded evidence of indebtedness, or 60 years after recordation of the instrument that 

created the security interest, if the maturity date is not ascertainable from the record. 

(Civ. Code, § 882.020, subd. (a).) 

Civil Code section 2911 has been interpreted to extinguish only the lien of the 

deed of trust, i.e., the security interest enforceable through judicial foreclosure, and not 
18

the power of sale. (Ung, supra, 135 Cal.App.4th at p. 196.) Consequently, the phrase 

“[u]nless the lien of a ... deed of trust ... has earlier expired pursuant to Section 2911” 

refers to the expiration of the statute of limitations on a judicial action to enforce the lien. 

The effect of Civil Code section 882.020 is to (1) limit the time within which the trustee 

can exercise of the power of sale, which is unaffected by Civil Code section 2911, and (2) 

set an outside limit on the time to bring a judicial action, in the event the basic statutory 

limitations period has been extended or tolled (such as, by waiver, agreement of the 

parties, partial payment, or the defendant’s absence from the state) and Civil Code 

section 2911 has not yet barred a judicial action. (See Legis. Comm. comm to Civ. Code, 

§ 882.020; §§ 351, 360, 360.5.)

Plaintiffs’ recorded deed of trust did not reflect the maturity date of the underlying 

promissory note. Accordingly, the 60-year period of Civil Code section 882.020, 

subdivision (a)(2), applied to it, rather than the 10-year period of Civil Code section 

882.020, subdivision (a)(1). The 60-year period did not govern plaintiffs’ time for 

commencing this quiet title action to complete their foreclosure, however, because the 

time for bringing a judicial foreclosure action had “earlier expired pursuant to Section 

2911” before this action was filed. The accelerated maturity date of the Weinsteins’ 

promissory note to plaintiffs was April 5, 2008. This action was filed June 29, 2016, 

more than eight years later. Plaintiffs have not claimed that the four-year or six-year 

limitations period applicable to judicial foreclosure actions was tolled or extended for any 

reason. Consequently, the trial court erred in concluding a 60-year statute of limitations 

applied to this action to judicially enforce plaintiffs’ rights under the deed of trust.

In this case, because there was no extension or tolling of the statute of limitations 

on plaintiffs’ judicial foreclosure action, the limitations period set out in Civil Code 

section 882.020 prescribed only the limit on their time for conducting a trustee’s sale 

under the deed of trust. The parties have not cited, and we have not found, any case in 

which the court considered whether a senior lienholder, who purchased the property at a 

judicial foreclosure sale under the senior deed of trust, could use a subsequent trustee’s 

sale to nonjudicially foreclose against the omitted lien of a junior lienholder. To support 
19

the judgment in this case, the senior lienholder would have to be able to not only conduct 

a subsequent trustee’s sale, but also invoke the assistance of the court to effectively 

substitute a quiet title action for an actual trustee’s sale.

As a practical matter, a senior lienholder cannot conduct a trustee’s sale after the 

property has been sold in the senior lienholder’s judicial foreclosure action. The judicial 

foreclosure sale results in a conveyance of title from the trustee to the buyer at the sale. 

Once the judicial sale is complete, the trustee no longer holds any title to convey through 

a subsequent trustee’s sale. (See Hohn, supra, 228 Cal.App.2d at p. 609 (“the trustee 

holds the legal title, and it would follow logically from this foundation that upon 

consummating one sale, the trustee would have no further title capable of being 

transferred at a later sale”).)

Further, neither the beneficiary nor the trustee can comply with the procedural 

requirements of a trustee’s sale. “The exercise of the power of sale in a deed of trust ‘is 

carefully circumscribed by statute.’ [Citation.] Under these statutes, the beneficiary of a 

deed of trust must record a notice of default prior to exercising a power of sale. 

[Citations.] The contents of the notice of default are specified by [Civil Code] section 

2924. In addition to identifying the encumbered property, the notice of default must 

‘contain[] a statement that a breach of the obligation for which the ... transfer in trust is 

security has occurred, and set[] 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 ....’ [Citation.] [¶] ... The debtor is to be given enough information so the 

default can be cured. “[T]he statute is sufficiently complied with if the notice of default 

contains a correct statement of some breach or breaches sufficiently substantial in their 

nature to authorize the trustee or beneficiary to declare a default and proceed with a 

foreclosure.” [Citation.]’ [Citation.] Because nonjudicial foreclosure is a ‘drastic 

sanction’ and a ‘draconian remedy’ [citation], ‘“[t]he statutory requirements must be 

strictly complied with.”’” (Ung, supra, 135 Cal.App.4th at pp. 202-203.)

The Weinsteins’ obligation under plaintiffs’ deed of trust ended when the judicial 

foreclosure action was complete. (Civ. Code, § 2910; Alliance, supra, 10 Cal.4th at p. 
20

1235.) Once the judgment was final, the sale was complete, and the time for seeking a 

deficiency judgment had lapsed,7there was no further obligation under plaintiffs’ deed of 

trust as to which the Weinsteins could be in default. Consequently, after the foreclosure 

action was complete, plaintiffs could not record a notice of default containing “a correct 

statement of some breach” that warranted a sale of the property. 

“A nonjudicial foreclosure sale under the power of sale in a deed of trust ... must 

be conducted in strict compliance with its provisions and applicable statutory law. A 

trustee’s powers and rights are limited to those set forth in the deed of trust and laws 

applicable thereto.” (Coppola v. Superior Court (1989) 211 Cal.App.3d 848, 868.) 

Plaintiffs have not identified any provision in their deed of trust or in the statutes 

governing nonjudicial foreclosure sales that would authorize a trustee to conduct a sale of 

the property after it was already sold in a judicial foreclosure action. They have not 

pointed us to any provision authorizing the trustee to conduct some other type of 

proceeding to allow a junior lienholder, who was omitted from the prior judicial 

foreclosure action, to exercise his equity of redemption in the absence of a trustee’s sale 

of the property. Consequently, we find no support for the proposition that the power of 

sale in plaintiffs’ deed of trust survived the judicial foreclosure sale and may still be 

exercised despite the previous sale of the property to satisfy the Weinsteins’ obligation 

under plaintiffs’ promissory note and deed of trust. 

We also find no support for the proposition that, after the statute of limitations has 

run on the debt, and the lien of the deed of trust has been extinguished, a party may 

invoke the assistance of the court to effectively substitute a quiet title action for a 

trustee’s sale. Plaintiffs deny that the trial court purported to act as a trustee under the 

deed of trust or effectively conducted a nonjudicial foreclosure sale in that capacity. Yet 

they contend the trial court correctly applied the 60-year limitation period, which, in the 

absence of extension or tolling of the usual statute of limitations on a foreclosure action, 

7 The trial court in the judicial foreclosure action did not make a deficiency award to 

plaintiffs, because plaintiffs did not make a timely request for a deficiency judgment. 
21

applies only to a nonjudicial foreclosure sale. Plaintiffs seem to contend a second 

foreclosure action or a quiet title action having the same effect is a recognized equitable 

remedy by which a senior lienholder can dispose of a junior lien that was inadvertently 

omitted from the prior foreclosure action. They cite Carpentier and Diamond in support. 

Carpentier and Diamond recognized that a senior lienholder could bring a 

subsequent foreclosure or quiet title action against a junior lienholder, in the event the 

junior lienholder was omitted from the senior lienholder’s initial foreclosure action. 

Neither case, however, addressed the effect of the expiration of the statute of limitations 

on the senior lienholder’s subsequent action. In Frates, the Supreme Court addressed 

that issue. It held the senior mortgagee, who had omitted the junior mortgagee from his 

prior foreclosure action and had purchased the property at the prior sale, was barred by 

the expiration of the statute of limitations from raising his senior interest as a defense in 

the junior mortgagee’s subsequent foreclosure action. (Frates, supra, 144 Cal. at pp. 

249-250.) The effect of these three cases is that the senior lienholder, whose foreclosure 

action omitted a junior lienholder, may bring a second foreclosure action or a quiet title 

action to complete the foreclosure and dispose of the junior lien, but the action must be 

commenced during the limitations period applicable to foreclosure actions. Additionally, 

all three cases addressed judicial actions to foreclose or quiet title; none addressed the 

effect of a power of sale in the deed of trust.

We do not believe the court can avoid the effect of Civil Code section 2911 by 

purporting to equitably exercise the power of sale in the senior deed of trust to foreclose 

the junior lienholder’s equity of redemption. Civil Code section 2911 bars use of the 

court’s power to enforce the lien of a deed of trust after the statute of limitations has 

expired on the debt. A quiet title proceeding in court that has the effect of foreclosing 

against the omitted junior lienholder is a court proceeding barred by that statute. 

“A fundamental maxim of jurisprudence is that equity must follow the law. 

[Citation.] Equity is bound by rules of law; it is not above the law and cannot controvert 

the law. [Citation.] Equity penetrates beyond the form to the substance of a controversy, 

but is nonetheless bound by the prescriptions and requirements of the law. [Citation.]
22

While equitable relief is flexible and expanding, its power cannot be intruded in matters 

that are plain and fully covered by positive statute. A court of equity will not lend its aid 

to accomplish by indirect action what the law or its clearly defined policy forbids to be 

done directly.” (Barrett v. Stanislaus County Employees Retirement Assn. (1987) 189 

Cal.App.3d 1593, 1608.)

In substance, plaintiffs’ quiet title action was aimed at completing the prior 

judicial foreclosure that omitted defendant and failed to eliminate his interest in the 

property. The expiration of the applicable limitations period and extinguishment of the 

lien of the deed of trust barred any judicial action to foreclose at the time the quiet title 

action was commenced. The court cannot ignore the limitations period prescribed by the 

Legislature for judicial actions to foreclose against a trustor and junior lienholders, and 

equitably substitute in its place the limitations period prescribed for the trustee’s exercise 

of the power of sale in the deed of trust. (See Norgart v. Upjohn Co. (1999) 21 Cal.4th 

383, 395 [the statute of limitations “operates conclusively across the board, and not 

flexibly on a case-by-case basis”].) Accordingly, we conclude the trial court cannot 

exercise the trustee’s power of sale and the statute of limitations bars any judicial action, 

including this quiet title action, to enforce plaintiffs’ rights under their deed of trust 

against defendant.

C. Conclusion

We conclude the trial court erred in applying the 60-year statute of limitations of 

Civil Code section 882.020 to this quiet title action to foreclose under plaintiffs’ deed of 

trust and eliminate the junior lien of defendant’s deed of trust from the property. The 

four-year (§ 337, subd. (a)) or six-year (Comm. Code, § 3118, subd. (a)) period for 

bringing a judicial action to foreclose expired, and the lien of the deed of trust was 

extinguished (Civ. Code, § 2911) before plaintiffs filed this action. The 60-year period 

prescribed by Civil Code section 882.020 applied only to the time for conducting a 

trustee’s sale of the property under the power of sale in plaintiffs’ deed of trust. Plaintiffs 

did not, and could not, pursue a trustee’s sale. Title to the property was transferred to the 

buyer at the judicial foreclosure sale, and the trustee did not retain any title that could be 
23

transferred in a subsequent trustee’s sale. Plaintiffs’ action is barred by the statute of 

limitations.

DISPOSITION

The judgment is reversed. The trial court is directed to vacate its judgment and 

enter a new judgment in favor of defendant on the complaint and the cross-complaint. 

Defendant is entitled to his costs on appeal.

SMITH, J.

WE CONCUR:

HILL, P.J.

FRANSON, J.