Publishing Summons in Quiet Title Actions – What is Required

A real property title defect will prevent you from selling your property or eventually cause future problems. When there is an issue regarding title to real property, a quiet title action is pursued which results in a court order clarifying the parties’ rights and interests. Such issues include ownership, and rights to ownership, removal of liens, boundaries, easements, licenses, and options. If a defendant who has a potential claim cannot be located or served, the court may order that they be served by publication of summons. The legal requirement is that the publication must “particularly describe the property,” plus provide its “common designation.” In a recent decision out of Riverside, the plaintiff was disappointed to learn that publishing just the Assessor’s Parcel Number did not qualify.

In Douglas HUMPHREY v. Peter D. BEWLEY, the trial court ordered service of the summons and first amended complaint by publication. Humphrey filed proof of service by publication. In September, 2014, at Humphrey’s request, the trial court entered the default of all named parties.

In a quiet title action, “Whenever the court orders service by publication, the order is subject to the following conditions: “….The publication shall describe the property that is the subject of the action. In addition to particularly describing the property, the publication shall describe the property by giving its street address, if any, or other common designation, if any; but, if a legal description of the property is given, the validity of the publication shall not be affected by the fact that the street address or other common designation recited is erroneous or that the street address or other common designation is omitted.” (Code Civ. Proc., § 763.020.)

Here, the trial court’s order for publication (conditions for when publication may suffice are set out below) provided: “[T]he [assessor’s] parcel number of the affected property … shall be published below the First Amended Summons in the newspaper publications.” The proofs of service showed that the published notices did not include the legal description or the street address of the property. In accordance with the order, however, they did include the APN.

But this Order did not comply with the CCP provision. The publication must “particularly” describe the property, and must also give its street address. If we assume that the APN is a sufficiently particular description the published notices here did not also include the street address. The statute provides that, if a legal description is given, then the omission of the street address is not fatal. Here, however, the legal description was not given. The APN cannot serve as both the particular description and the common designation.

When a Quiet Title May Be Served by Publication

The CCP provides that “[s]ervice by publication on known defendants in a quiet title action is permitted by court order only if it appears on affidavit that the defendant cannot with reasonable diligence be served in another manner and that either (1) there is a cause of action against the defendant or the defendant is a necessary or proper party to the action, or (2) the defendant has or claims an interest in real or personal property in the state that is subject to the court’s jurisdiction or the relief demanded in the action consists in whole or in part in excluding the defendant from any interest in the property.” Civ. Proc. Code, § 415.50, subd. (a).

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