J. & W. C. Shull, Inc., v. Anger

J. & W. C. SHULL, INC. (a Corporation), Appellant, v. LOU ANGER et al., Respondents.

COUNSEL

William B. Rodda for Appellant.

Carpenter, Babson & Fendler for Respondents.

OPINION

Roth, J.

[1] Plaintiff and appellant filed a complaint asking for a deficiency judgment on a note secured by a deed of trust after sale of the property covered by said deed of trust, pursuant to the provisions thereof. Both instruments were executed contemporaneously and prior to the effective date of section 2924 1/2 of the Civil Code. The property covered by the deed of trust was sold within one year contrary to the provisions of said section, which require notice of one year in the event the beneficiary of the deed of trust and payee of the note desired to preserve his right to enforce a judgment for deficiency. The demurrers of the defendants and respondents were sustained without leave to amend, the sole point being that section 2924 1/2 of the Civil Code having been violated, appellant, under the terms thereof, lost its right to sue for a deficiency.

Appellant is correct in its contention that the section is unconstitutional in so far as it affects instruments executed prior to the effective date of the statute. (Brown v. Ferdon, 81 Cal.App. Dec. 1057 [46 PaCal.2d 218; Id., 5 Cal. 2d 226 [54 PaCal.2d 712].)

Judgment reversed with directions to the trial court to allow defendants reasonable time within which to answer.

York, Acting P. J., and Doran, J., concurred.