Louderback v. Walking U Ranch, LLC, et al.
Case No: 17CV05630
Hearing Date: Tue Apr 09, 2019 8:30

Nature of Proceedings: Motions for Publication/To Withdraw as Counsel

The operative pleadings are the verified second amended pleading, filed by plaintiff on June 1, 2018, and the first amended cross-complaint filed by cross-complainants on December 3, 2018. The court has detailed the parties and issues in previous orders and will not do so here. Trial is scheduled for August 26, 2019, with a trial confirmation conference scheduled for July 29, 2019. Defendant/cross-complainants have filed a motion to amend their answer to the second amended pleading, to add a new allegation to the first amended cross complaint, and to renew the 9th cause of action originally contained in the first amended cross-complaint, scheduled for April 24, 2019.

There are two motions before the court for hearing on April 9, 2019. The first motion is a request for an order to publish a summons by cross-complainants Walking U Ranch, LLC, Kathleen March, and Patrick Bright. The second is a motion to be relieved as counsel, filed by James Procter II, counsel for Walking U Ranch, LLC, Kathleen March, and Patrick Bright. According to Mr. Procter, there “has been an irreparable breakdown of the attorney-client relationship rendering [his] continued involvement in this matter infeasible and unreasonably difficult. The clients have refused to sign a substitution of attorneys allowing me to withdraw without filing this motion.” Each motion will be addressed in seriatim.

A) Motion for Order of Publication of Summons

Cross-complainants in their first amended cross-complaint name as cross-defendants John and Jacqueline Louderback, El Rancho Espanol De Cuyama LLC, as well as Roes 1 to 25, “who are all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in alleged easements to cross Walking U Ranch, LLC . . . (1850 Miranda Canyon, New Cuyama, California 93254[.] ” This is permissible pursuant to Code of Civil Procedure section 762.060, which allows a cross-complainants to name as cross-defendants “all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the property described” in the operative pleading. Cross-complainants, relying on Code of Civil Procedure section 763.010, subdivision (b) (all further statutory references are to the Code of Civil Procedure unless otherwise indicated) contend they have used reasonable diligence to ascertain the identity and residence of for purposes of service of summons on persons named as unknown cross-defendants, but have found no one with an interest. They request the court permit service by publication pursuant to section 415.50, which imposes conditions under which service by publication may occur.

The declaration for publication of summons must be executed by a person who is a competent witness to the proof of facts required by section 415.50, subdivision (a). The first requirement is a showing that reasonable diligence was utilized to locate putative parties. (See, e.g., Watts v. Crawford (1995) 10 Cal.4th 743, 749, fn. 5.) Additionally, the declaration must establish the existence of a cause of action in favor of the cross-complainants against the cross-defendants; or show that the cross-defendants are a necessary or proper party to the action; or establish that the party to be served has or claims an interest in real property that is subject to the jurisdiction of the court; or show that the relief demanded in the action consists wholly or in part in excluding the unnamed party from an interest in the property. (§ 415.50, subd. (a)(1) and (2).) All statutory requirements must be contained in declaration(s) submitted by those with personal knowledge of the facts, meaning that while the reasonable diligence requirement may be shown by counsel, the other jurisdictional requirements are established by the moving party itself (and is often outlined in a separate declaration). (Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2018), ¶ 4.263, p. 4-46.) These showings are jurisdictional prerequisites to the issuance of an order for publication. (Olvera v. Olvera (1991) 232 Cal.App.3d 32, 42, fn. 9.) The moving party’s attorney can execute the declaration about the requirements outlined in section 450.50, subdivision (a)(1) or (2) only if he or she has the requisite personal knowledge of the facts in support. (Harris v. Cavasso (1977) 68 Cal.App.3d 723, 626 [verification by plaintiff’s counsel on information and belief not sufficient as a sworn statement of facts for publication of summons].)

Mr. Proctor, cross-claimants’ counsel, has submitted a declaration in support of the request to publish the summons. He declares that his office “has been unable to ascertain the name or other identifying information for any person or entity who may claim a right, title, estate, lien or easement interest in the Walking U Ranch, LLC, other than persons already appearing in the this lawsuits as plaintiffs, defendants, cross-complainants and cross-defendants. Our efforts include review of title reports on two properties and examining property tax records online.” Mr. Proctor opines that he believes “there are no persons in possession of the Walking U Ranch other than defendants and cross-complainants who have appeared in this action. To my knowledge there are no other persons or entities claiming any right, title estate, lien or interest in the Walking U Ranch, in the 793 acres, or in the access road easement described in the this lawsuit that are not already name[d] and have appeared in the lawsuit.” Mr. Proctor has shown reasonable diligence based on his personal knowledge of the inquiry in support of publication.

The court is concerned, however, that Mr. Proctor’s declaration fails to allege facts, based on his personal knowledge, sufficient to establish (as to the quiet title cause of action) either the existence of a cause of action against the unnamed parties; the unknown parties are necessary; the unknown parties have or claim an interest in the real property at issue; or the relief demanded in the action consists wholly or in part in excluding the unnamed party from any claimed interest in the real property. While this may seem pro forma, but cases are crystal clear that strict compliance with the statutory scheme is mandated. (See, e.g., Calvert v. Al Binali (2018) 29 Cal.App.5th 954, 963 [if there is any situation in which strict compliance can reasonably be required, it is that of service by publication].) Mr. Proctor declares that to his “knowledge there are no other persons or entities claiming any rights, title, estate, lien, or easement interest in the Walking U Ranch, in the 793 acres, or in the access road described” in the lawsuit. While this attestation is relevant to show reasonable diligence, it appears insufficient to support the other jurisdictional prerequisites as outlined in section 415.50, subdivision (a)(1) or (2). Simply put, Mr. Proctor’s declaration appears devoid of any facts from which the trial court could satisfy itself that the jurisdictional prerequisites of section 415.50, subdivision (a) (1) or (2) are present. The verification of the first amended cross-complaint is insufficient for this purpose. (Harris v. Cavasso, supra, 68 Cal.App.3d at pp. 726-727; 3 Witkin, Cal. Proc. (5th ed. 2008), Actions, § 1040, p. 1253.) The omissions are therefore fatal as the declaration currently sits; without the necessary correction, the court fears it has no power to order service of summons by publication. In fact, if it were to do so, service would be ineffective, and any default judgment based on it would be void. (Olvera, supra, 232 Cal.App.3d at p. 41.) Cross-complainants themselves will have to submit a declaration meeting the jurisdictional prerequisites of section 415.50 subdivision (a)(1) or (2) before the order for publication of summons will issue. The court does not anticipate this being a particularly taxing endeavor. But it must be done. The court will allow cross-complainants to submit a new or supplemental declaration before or during the April 9, 2019, hearing.

If this is accomplished to the court’s satisfaction, the court will grant the motion and order publication of the summons in the Santa Maria Times for the period prescribed by Government Code section 6064 (once a week for four successive weeks). The court will expect cross-complainants to comply with section 763.010, 763.020, and 763.030. Further. The court requires that proof that the summons has been published pursuant to section 763.040.

B) Withdrawal By Counsel

Attorney Proctor has filed a motion to withdraw as counsel. Defendants/cross-complainants have filed a response, indicating they do not oppose the request, although they clarify that the reason counsel must withdraw is not because of an irreconcilable conflict, but because “Proctor has informed [] that he has a serious medical problem involving a family member, which requires his main attention, and that therefore [he] cannot try this case, and has little time to work on this case.” Ms. March has filed a declaration in support of these attestations.

It is the intent of the court to grant the request to withdrawal, although it wants to discuss the matter of substitute counsel and any concomitant need/desire for a continuance, and any impact it has on the motion pending before the court for hearing on April 24, 2019. Ms. March indicates in her declaration that she expects her insurance carrier Travelers to appoint counsel — but in the meantime “The Bankruptcy Law Firm, PC will continue as sole counsel for Walking U Ranch, LLC/Bright/March unless and until Travelers appoints a new co-counsel . . . .” Trial is scheduled for August 26, 2019, and the court does not intend to grant a trial continuance. The parties should be prepared to speak to these issues at the April 9, 2019 hearing.

C) Conclusion

In summary, while cross-defendants have shown reasonable diligence, counsel’s declaration has failed to satisfy the jurisdictional showings required under section 415.50, subdivisions (a)(1) or (2). The court directs a cross-complainant with personal knowledge of the required facts to submit a declaration satisfying those requirements either before or during the April 9, 2019 hearing. If this is accomplished, the court will grant the motion, as long as the moving party satisfies the requirements of Government Code section 6064 and sections 763.010, 763.020, 763.030 and 763.040.

The court will tentatively grant the request by Mr. Proctor to withdraw as counsel, although the court wants to hear from the parties about the need for counsel and any possible interruption in how this case will come to trial, including the motion to be heard on April 24, 2019.

The parties are directed to appear at the April 9, 2019 hearing.