De La Cuesta v. Superior Court

These are consolidated original proceedings in mandate to compel the Orange County Superior Court to determine the prevailing party and amount of reasonable attorney fees pursuant to Civil Code section 1717 in unsuccessful actions to enjoin trust deed foreclosure sales. This court issued alternative writs, but we have concluded that petitioners have misconceived their remedy and lack the necessary beneficial interest requisite to issuance of a peremptory writ. We shall therefore deny issuance of the peremptory writ and discharge the alternative writ heretofore issued.

For purposes of decision the facts may be greatly simplified. Petitioners were unconsented-to nonassuming grantees of parcels of real property which stood as security by way of deeds of trust for loans made earlier by Fidelity Federal Savings and Loan Association, a federally chartered savings and loan. When Fidelity Federal learned of the transfer of the respective properties to petitioners it exercised its due-on-sale rights pursuant to due-on-sale provisions in the deeds of trust. (Reference to Fidelity Federal shall include where the context is appropriate both Fidelity Federal Savings and Loan…