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District Court of Appeal, Second District, Division 1, California.


Civ. 9786.

Decided: February 28, 1936

Louis Ferrari, of San Francisco, and Edmund Nelson, Howard Waterman, Freston & Files, and Ralph E. Lewis, all of Los Angeles, for appellant. I. B. Kornblum, of Los Angeles, for respondent.

This action was brought to recover the deficiency remaining unpaid upon a note originally secured by a deed of trust after sale of the property. The trial court sustained a demurrer without leave to amend, and the appeal is taken from the judgment subsequently entered.

The note and deed of trust were executed May 28, 1930. The note became due May 28, 1933, and the sale was made on October 17, 1933, under the provisions of the deed of trust. The action was commenced January 13, 1934.

The only question presented upon the appeal is the right of the defendant to claim the benefits of sections 580a, Code of Civil Procedure, as added by St.1933, p. 1672, or 2924 1/2, Civil Code, as added by St.1933, p. 1674. The cases of Bennett v. Superior Court, 5 Cal.App.(2d) 13, 42 P. (2d) 80, and Brown v. Ferdon (Cal.Sup.) 42 P.(2d) 80, are determinative of the rights of the parties. Upon their authority, the judgment is reversed.

EDMONDS, Justice pro tem.

We concur: HOUSER, P. J.; YORK, J.

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