Ethics: All By Myself: Ethical Duties Prosecuting Quiet Title Actions When The Other Side Is Absent And/Or Unknown

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AKahn_Steven_J lawsuit with no opposition, let alone no appearing defendants at all, may sound like a respite from our adversarial, sometimes inefficient system. It certainly can be something different and, at times, low(er) stress, but it by no means an opportunity to slack. After all, you owe your clients, the Court, and the State Bar a duty of professional competence.[1]

This article discusses two circumstances where you might be all by yourself in the litigation – suing unknown defendants and proceeding to default judgment against them and defaulted parties. Your duties to the Court and your client remain paramount even when you and your client are the only folks actively participating in a case.

One of your very first acts as an attorney is to swear that “[a]s an officer of the court, [you] will strive to conduct [your]self at all times with dignity, courtesy and integrity.”[2] The Contra Costa County Bar Association’s standards of professional conduct follow this theme, devoting an entire section to “Candor to the Court and Opposing Counsel.” [3]

It is not uncommon in litigation to name defendants whom you know will not respond to the complaint, and sometimes those defendants are entirely unidentified throughout the case – the amorphous “persons unknown” or “unknown heirs and devisees.” This is particularly true in quiet title cases, where one purpose of the action – sometimes the sole objective – is to eliminate the potential claims and interests in real property.

There are several ways to name “unknown” defendants in a quiet title action. Save for uncommon circumstances, these defendants likely will never participate in the case:

  • All Persons Unknown Claiming Any Legal or Equitable Right, Title, Estate, Lien or Interest in the Property Described in the Complaint Adverse to Plaintiff’s Title, or Any Cloud on Plaintiff’s Title Thereto are unknown to Plaintiff.”[4]
  • “The Testate and Intestate Successors of [Defendant], Deceased, and All Persons Claiming By, Through, Or Under Such Decedent” – In other words, a deceased, necessary Defendant whose personal representative is unknown to Plaintiff.[5]
  • DOE Defendants of whom Plaintiff is truly ignorant of their identity (who will be dismissed prior to obtaining the final judgment).[6]

Once you name these unknown, unidentified defendants, how do you serve them and known but unlocatable parties while fulfilling your lawyerly duties Most likely, by publication of the summons in a newspaper of general circulation in the county of the real property at issue.[7] This is commonly done on an ex parte basis,[8] which raises an interesting question – How do you give ex parte notice to parties whom you cannot even identify, or to those whom you know but cannot find? Of course, you can’t. Instead, it is your duty to the Court to show a diligent (but ultimately unsuccessful) effort to identify and/or locate these defendants.

The Court is required to examine your attempts to find and serve defendants before issuing an order for publication. This would include efforts to directly communicate with defendants – known and potential – to assess their interest in the property, if any. Keep in mind, however, that if you discover a defendant is represented by counsel, you cannot communicate directly or indirectly with them about the matter, and should instead go through their counsel.[9]

Service by publication is a “last resort” or final method of service authorized by the code.[10] Getting the order of publication is not automatic. Courts are increasingly scrutinizing applications to serve by publication, requiring parties and their counsel to thoroughly prove that there was no other way to identify and/or locate certain defendants.

  • Some effective ways to show due diligence include:
  • Attempted service by mail with acknowledgement of receipt.[11]
  • Inquiries with family members.
  • Inquiries with neighbors of the subject property.
  • Inquiries with former employers.
  • Internet database searches.
  • Hiring of a private investigator, who also searches non-public databases

Eventually you will get all defendants – known and unknown – served and, hopefully, defaulted by the court clerk. Now what? You need to apply for a default court judgment. In quiet title cases, a hearing with live testimony is required.[12]

Some judges are still unaware of this rule, and will issue a judgment without a hearing, or issue a tentative ruling that will naturally go unargued. Both practices are wrong, and potentially very detrimental to you and your client. Judgments entered based solely on written applications, without live testimony, are arguably void for lack of a hearing.[13]

What to do in these situations? If the judge is unfamiliar with the rule, your duty of candor requires that you inform the Court that a hearing is required. Do not assume the judge knows best, and be assertive for the sake of your client and the case!

When putting on your default judgment prove-up hearing, treat it like any other court trial:

  • Present the best evidence whenever possible.
  • Use secondary evidence sparingly.
  • Be mindful of the limitations of a request for judicial notice – The Court can take notice of the existence of a document, but not necessarily its substantive content.[14]
  • Have your client testify as to his or her ownership of the property and any other salient facts that bear on the relief requested.
  • Consider third party witnesses to present evidence that corroborates and explains your client’s claims.
  • Consider employing experts to better explain specialized concepts (e.g. title to real property, historical practices, standard of care in certain industries).

Follow the rules and procedures, and treat a case where your opponent is absent, unknown, and/or deceased just as seriously as you would any other matter. Dedication to candor, procedures, and to some extent decorum, puts you and your client in the best light possible, even if it is shining on nobody else.


Steven J. Kahn is a shareholder in Hoge, Fenton, Jones & Appel’s Tri-Valley office. Steven’s practice focuses on real estate and business litigation, title insurance coverage, escrows, and real estate transactions. He represents individuals, families, businesses, real estate developers, regional and national lenders, title insurers, escrow companies, and real estate professionals throughout Northern California. Steven regularly handles all phases of litigation, including trials, arbitrations, appeals, and mediations. He has litigated and provided counsel to his clients on a wide variety of issues, including: title insurance coverage; escrow procedures and best practices; real estate transaction nondisclosure; defense of real estate professionals; 1031 exchanges; boundary disputes; easements; encroachments; priorities of title and lien priority disputes; and mechanic’s liens. Steven also sits on the Advisory Board of Santa Clara University’s Alexander Community Law Center, in San Jose.


[1] California Rules of Professional Conduct, Rule 3-110 (Failing to Act Competently)
[2] California Rules of Court, Rule 9.4; California Business & Professions Code Section 6067.
[3] Contra Costa County Bar Association, Standards of Professional Courtesy – Part IV.
[4] California Code of Civil Procedure Sections 762.020 & 762.060.
[5] California Code of Civil Procedure Section 762.030(b).
[6] California Code of Civil Procedure Section 474; Woo v. Superior Court (Zarabi) (1999) 75 Cal. App. 4th 169, 177.
[7] California Code of Civil Procedure Sections 415.50(b), 763.010(b).
[8] California Rules of Court, Rule 3.1200 et seq.
[9] California Rules of Professional Conduct, Rule 2-100 (Communication With a Represented Party)
[10] California Code of Civil Procedure Section 415.50(a) (“A summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified.”)
[11] California Code of Civil Procedure Section 415.30.
[12] California Code of Civil Procedure Section 764.010 (“The court shall examine into and determine the plaintiff’s title against the claims of all the defendants. The court shall not enter judgment by default but shall in all cases require evidence of plaintiff’s title and hear such evidence as may be offered respecting the claims of any of the defendants, other than claims the validity of which is admitted by the plaintiff in the complaint. The court shall render judgment in accordance with the evidence and the law.”)
[13] Nickell v. Matlock (2012) 206 Cal. App. 4th 934, 944 (citing Harbour Vista, LLC v. HSBC Mortgage Services, Inc. (2011) 201 Cal. App. 4th 1496, 1506) (“The court shall examine into and determine the plaintiff’s title against the claims of all the defendants. The court shall not enter judgment by default but shall in all cases require evidence of plaintiff’s title and hear such evidence as may be offered respecting the claims of any of the defendants, other than claims the validity of which is admitted by the plaintiff in the complaint. The court shall render judgment in accordance with the evidence and the law.”
[14] See Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal. App. 4th 651, 658-660.

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