99 Cal. Daily Op. Ser v. 272, 99 Daily Journald.a.r. 330,3 Cal. Bankr. Ct. Rep. 47in Re Prestige Limited Partnership-concord, a Californialimited Partnership, Debtor.prestige Limited Partnership-concord, Plaintiff-appellee, v. East Bay Car Wash Partners, Defendant-appellant, 164 F.3d 1214 (9th Cir. 1999)

Creditor East Bay Car Wash Partners ("East Bay") timely appeals the district court's order affirming the bankruptcy court's order granting partial summary judgment in favor of debtor Prestige Limited Partnership-Concord ("Prestige") in Prestige's adversary proceeding against East Bay. East Bay's primary contention here is that its attachment of Jerry Brassfield's unpledged assets in a separate state court action on the underlying obligation for breach of guaranty was not an "action" within the purview of Cal.Civ.Proc.Code § 726(a).¹  The bankruptcy court held East Bay violated California's "one action, security-first" rule by pursuing the state court action and attaching Brassfield's unpledged assets, and thereby waived its security interest in Prestige's ground lease under § 726(a). The district court affirmed. We have jurisdiction pursuant to 28 U.S.C. § 158(d),²  see In re Lyons, 995 F.2d 923, 924 (9th Cir. 1993), and we adopt the statement of facts and reasons set forth in the bankruptcy court's published opinion, In re Prestige Ltd. Partnership-Concord, 205 B.R. 427, 434-36 (Bankr.N.D. Cal. 1997).

We supplement this by rejecting East Bay's argument on appeal that newly-enacted Cal.Civ.Proc.Code § 483.012,³  inter alia, provides that the attachment of unpledged assets does not violate § 726(a). The plain text of the new statute expressly limits its application to "an action to foreclose a mortgage or deed of trust...." Cal.Civ.Proc.Code § 483.012. Indeed, the title of § 483.012 is, " [a]ctions to foreclose mortgages or deeds of trust; pursuit of remedies; effect." Id.; accord Lynch v. Rank, 747 F.2d 528, 532 (9th Cir. 1984), amended on reh'g, 763 F.2d 1098 (9th Cir. 1985) (noting "the title of an Act may be a useful aid in resolving ambiguities in a statute") (citations omitted). As it is undisputed that East Bay's state court guaranty action against Brassfield was not at any time an action to foreclose the deed of trust which secured its interest in Prestige's ground lease, § 483.012 does not apply to East Bay's action. Further, there is nothing in the statute's legislative history to suggest otherwise. East Bay's attempt to employ § 483.012 to restore its waived real property security interest consequently fails.

AFFIRMED.