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Cal. Civil Code § 2856 (2026)

✓ current as of May 2026
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(a)Any guarantor or other surety, including a guarantor of a note or other obligation secured by real property or an estate for years, may waive any or all of the following:

(1)The guarantor or other surety’s rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to the guarantor or other surety by reason of Sections 2787 to 2855, inclusive.

(2)Any rights or defenses the guarantor or other surety may have in respect of his or her obligations as a guarantor or other surety by reason of any election of remedies by the creditor.

(3)Any rights or defenses the guarantor or other surety may have because the principal’s note or other obligation is secured by real property or an estate for years. These rights or defenses include, but are not limited to, any rights or defenses that are based upon, directly or indirectly, the application of Section 580a, 580b, 580d, or 726 of the Code of Civil Procedure to the principal’s note or other obligation.

(b)A contractual provision that expresses an intent to waive any or all of the rights and defenses described in subdivision (a) shall be effective to waive these rights and defenses without regard to the inclusion of any particular language or phrases in the contract to waive any rights and defenses or any references to statutory provisions or judicial decisions.

(c)Without limiting any rights of the creditor or any guarantor or other surety to use any other language to express an intent to waive any or all of the rights and defenses described in paragraphs (2) and (3) of subdivision (a), the following provisions in a contract shall effectively waive all rights and defenses described in paragraphs (2) and (3) of subdivision (a):

The guarantor waives all rights and defenses that the guarantor may have because the debtor’s debt is secured by real property. This means, among other things:

(1)The creditor may collect from the guarantor without first foreclosing on any real or personal property collateral pledged by the debtor.

(2)If the creditor forecloses on any real property collateral pledged by the debtor:

(A)The amount of the debt may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price.

(B)The creditor may collect from the guarantor even if the creditor, by foreclosing on the real property collateral, has destroyed any right the guarantor may have to collect from the debtor.

This is an unconditional and irrevocable waiver of any rights and defenses the guarantor may have because the debtor’s debt is secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d, or 726 of the Code of Civil Procedure.

(d)Without limiting any rights of the creditor or any guarantor or other surety to use any other language to express an intent to waive all rights and defenses of the surety by reason of any election of remedies by the creditor, the following provision shall be effective to waive all rights and defenses the guarantor or other surety may have in respect of his or her obligations as a surety by reason of an election of remedies by the creditor:

The guarantor waives all rights and defenses arising out of an election of remedies by the creditor, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed the guarantor’s rights of subrogation and reimbursement against the principal by the operation of Section 580d of the Code of Civil Procedure or otherwise.

(e)Subdivisions (b), (c), and (d) shall not apply to a guaranty or other type of suretyship obligation made in respect of a loan secured by a deed of trust or mortgage on a dwelling for not more than four families when the dwelling is occupied, entirely or in part, by the borrower and that loan was in fact used to pay all or part of the purchase price of that dwelling.

(f)The validity of a waiver executed before January 1, 1997, shall be determined by the application of the law that existed on the date that the waiver was executed.

Notes of Decisions
Cited in 19 cases (2 in the last 5 years), 2007–2026 · leading case: Com. Money Ctr., Inc. v. Illinois Union Ins., 508 F.3d 327 (6th Cir. 2007).
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Com. Money Ctr., Inc. v. Illinois Union Ins., 508 F.3d 327 (6th Cir. 2007). “Cal. Civ.Code § 2856(a)(1); Bloom v. Bender, 48 Cal.”
LSREF2 Clover Prop. 4, LLC v. Festival Retail Fund 1, LP, 3 Cal. App. 5th 1067 (Cal. Ct. App. 2016). “) Civil Code section 2856, subdivisions (a)(3) and (c) expressly allow a guarantor to waive antideficiency defenses.”
Gramercy Inv. Trust v. Lakemont Homes Nevada, Inc., 198 Cal. App. 4th 903 (Cal. Ct. App. 2011). · cites it 2× “The second basis for the trial court’s ruling related to the terms of the guaranty agreement itself, by which Lakemont waived applicability of *911 California Code of Civil Procedure sections 580a and 726, subdivision (b), and expressly waived any antideficiency protection…”
California Bank & Trust v. DelPonti, 232 Cal. App. 4th 162 (Cal. Ct. App. 2014). · cites it 3× “13 The Bank does not discuss or challenge the trial court’s factual findings, including the court’s finding that the Bank was guilty of willful misconduct.”
WRI Opportunity Loans II, LLC v. Cooper, 65 Cal. Rptr. 3d 205 (Cal. Ct. App. 2007). “Furthermore, an examination of the history of section 2856 discloses that the Legislature did not intend subdivision (a)(1) to displace or modify this rule, insofar as it applies to the waiver of defenses by guarantors.”
Freestone Capital v. Mka Real Est., 230 P.3d 625 (Wash. Ct. App. 2010). “'" [46] ¶ 66 Here, as to the question of waiver, Cal. Civ.Code § 2856(b) states, A contractual provision that expresses an intent to waive any or all of the rights and defenses described in subdivision (a) shall be effective to waive these rights and defenses without regard to…”
Freestone Capital Partners, LP v. MKA Real Est. Opportunity Fund I, LLC, 155 Wash. App. 643 (Wash. Ct. App. 2010). “’ ” 46 *665 ¶66 Here, as to the question of waiver, Cal. Civ. Code § 2856 (b) states: A contractual provision that expresses an intent to waive any or all of the rights and defenses described in subdivision (a) shall be effective to waive these rights and defenses without regard…”
LFG Nat'l Capital, LLC v. Gary, 874 F. Supp. 2d 108 (N.D.N.Y. 2012). “While the Guild Wineries & Distilleries and Engelman guarantees also include the term “waive,” “the inclusion of any particular language or phrases in the contract” is not required “to waive any rights and defenses,” Cal. Civ.Code § 2856(b). Read as a whole, the language in…”
Womble v. Osborne CA4/3 (Cal. Ct. App. 2016). · cites it 5× “) [2] “Civil Code section 2856 provides that any guarantor or other surety, including a guarantor of a note secured by real property, may waive rights and defenses that would otherwise be available to the guarantor, including antideficiency protections provided by Code of Civil…”
Temple View Capital Funding v. Garnicki CA1/2 (Cal. Ct. App. 2026). · cites it 2× “4th 162, 166 [“Civil Code section 2856 provides that any guarantor or other surety, including a guarantor of a note secured by real property, may waive rights and defenses that would otherwise be available to the guarantor”].”
Cal. Bank & Trust v. Del Ponti (Cal. Ct. App. 2014). · cites it 3× “Civil Code section 2856 provides that any guarantor or other surety, including a guarantor of a note secured by real property, may waive rights and defenses that would otherwise be available to the guarantor.”
IMV 11 Palm v. Pinn CA2/7 (Cal. Ct. App. 2014). · cites it 2× “) Civil Code section 2856 expressly allows guarantors to waive the one-action rule and anti-deficiency protections for real property loans.”
Show all 19 citing cases →
— Cal. Civil Code § 2856(a)(1) — 2 cases
Com. Money Ctr., Inc. v. Illinois Union Ins., 508 F.3d 327 (6th Cir. 2007). “Cal. Civ.Code § 2856(a)(1); Bloom v. Bender, 48 Cal.”
Com. Money Ctr v. Illinois Union Ins (6th Cir. 2007).
— Cal. Civil Code § 2856(b) — 2 cases
Freestone Capital v. Mka Real Est., 230 P.3d 625 (Wash. Ct. App. 2010). “'" [46] ¶ 66 Here, as to the question of waiver, Cal. Civ.Code § 2856(b) states, A contractual provision that expresses an intent to waive any or all of the rights and defenses described in subdivision (a) shall be effective to waive these rights and defenses without regard to…”
LFG Nat'l Capital, LLC v. Gary, 874 F. Supp. 2d 108 (N.D.N.Y. 2012). “While the Guild Wineries & Distilleries and Engelman guarantees also include the term “waive,” “the inclusion of any particular language or phrases in the contract” is not required “to waive any rights and defenses,” Cal. Civ.Code § 2856(b). Read as a whole, the language in…”
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