California Partition Law Blog
Service of process is a crucially important part of every lawsuit in California. If a defendant is not served and thus does not receive notice of a lawsuit, then any judgment entered against them is void for lack of jurisdiction.
While service of process can usually be accomplished with a registered process server or Sheriff, the situation becomes murky when “unknown” defendants are involved. Quiet title actions involve such unknown defendants, who are designated as any and all persons claiming an interest in the property at issue.
But in order is get a valid judgment against these unknown persons, any plaintiff must first follow the exact statutory requirements required to effectuate them with proper service by publication. Failure to follow these requirements can result in future legal action, even after a quiet title lawsuit that is designed to put title issues to rest. The attorneys at Underwood Law Firm are familiar with this process and are here to help guide you through service in quiet title actions.
What is a quiet title action?
A quiet title action is a special type of lawsuit a property owner files to eliminate, establish, and “quiet” any other claims on the same property by other individuals. Once complete, the lawsuit will result in a perfect title enforceable in the courts. A quiet title action is thus an effective tool to establish and settle ownership over real estate.
Because of the effect, quiet title actions have, however, the California Legislature has imposed additional requirements on starting the lawsuit to ensure that any and all persons with a potential property interest are informed of their chance to make their claim in court. This is why many quiet title complaints contain “doe” defendants designated as all other unknown persons claiming any interest in the property at issue.
When will the court authorize service by publication?
If a quiet title action includes unknown persons, then they will eventually have to be served. The Code of Civil Procedure expressly states that these unknown defendants can be served by publication, but only after the plaintiff has made a reasonably diligent effort to serve them on their own.
“If upon affidavit it appears to the satisfaction of the court that the plaintiff has used reasonable diligence to ascertain the identity and residence of and to serve a summons on the persons named as unknown defendants and persons joined as testate or intestate successors of a person known or believed to be dead, the court shall order service by publication pursuant to Section 415.50 and the provisions of this article.” (CCP § 763.010.)
What counts as “reasonable diligence” in serving unknown defendants?
Before allowing a plaintiff to resort to service by publication, the courts necessarily require him to show reasonable diligence in locating the defendant. (Donel, Inc. v. Badalian (1978) 87 Cal.App.3d 327, 332.) “Reasonable diligence” denotes “a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney.” (Watts v. Crawford (1995) 10 Cal.4th 743, 749, fn. 5.)
An affidavit or declaration should show that plaintiff took “those steps a reasonable person who truly desired to give notice would have taken under the circumstances.” (Donel, Inc. v. Badalian (1978) 87 Cal.App.3d 327, 333.) As such, an affidavit or declaration describing Plaintiff’s inquiries into Defendant’s location should state the time, place, and other details of any inquiries and their result.
In other words, any affidavit which seeks service by publication has to thoroughly describe the efforts taken by the plaintiff. Purchasing a property report or title report, conducting record and title searches on the property and neighboring properties, and physically investigating the property are all examples of a reasonably diligent effort to locate and serve unknown persons.
As a counter-example, suppose “Shawn” sues “Julie” in a quiet title action along with all other unknown persons claiming a property interest. Shawn seeks to effectuate service by publication and so writes up a declaration that states: “I made a reasonably diligent effort to identify any unknown persons.”
When he submits this declaration to the court, it, in all likelihood, will deny his request for service by publication. This is because Shawn’s declaration contains only a bare-bones legal conclusion that does not actually detail what efforts he made. In this context, it is important to remember that mere formal compliance with the statute will not suffice. (Donel, Inc., 87 Cal.App.3d at 333.)
What is required once the court allows service by publication?
Quiet title actions have unique statutory rules that impose additional requirements after the court determines an affidavit for publication service is adequate.
First, once the court makes the order for service by publication, the plaintiff must post copies of the summons and complaint in a conspicuous place on the real property at issue. (CCP § 763.020.) The copies, usually, cannot just be taped to the wall inside the property. They have to be out in the open.
Second, Plaintiff has to record a lis pendens. A lis pendens is a special type of notice filed in the court detailing the property at issue in the lawsuit that places a lien on the property for any judgment obtained once the lawsuit is finished.
Lastly, whatever publication is chosen for the service has to describe the property at issue. The easiest way to describe the property is to include its formal legal description, often contained in the deed. If, however, the plaintiff cannot do this, then the description needs to have the property’s street address. The street address requirement is mandatory if a legal description is not used, and a failure to include could result in the service being rendered ineffectual. (Humphrey v. Bewley (2021) 69 Cal.App.5th 571, 578.)
How can the Attorneys at Underwood Law Firm Assist You?
Anyone entering a lawsuit cannot overlook how important the service of the process really is. The last thing a litigant needs is to spend time, money, and effort fixing problems that could have been easily remedied by effectuating service correctly on the first try.
As each case is unique, property owners would be well-served to seek experienced counsel familiar with quiet title actions and the complexities of service. At Underwood Law, our knowledgeable attorneys are here to help. If you are concerned about whether you can quiet title to your property, wondering how to achieve service by publication, or if you just have questions, please do not hesitate to contact our office.
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