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ELECTRONICALLY
RICHARD WALLACE (No. 124286)
BRISCOE IVESTER & BAZEL LLP FILED
155 Sansome Street, Seventh Floor Superior Court of California,
San Francisco, CA 94104 Sone of Sai Freneiece
Telephone: (415) 402-2700 06/20/2018
Facsimile: (415) 398-5630 Clerk of the Court
rwallace@briscoelaw.net BY:EDNALEEN ALEGRE
Deputy Clerk
Attorneys for Plaintiffs
U.A. LOCAL 38 PENSION TRUST FUND; and
UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND PIPEFITTING
INDUSTRY LOCAL UNION NO. 38
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
U.A. LOCAL 38 PENSION TRUST FUND; CASE NO. CGC-18-566280
and UNITED ASSOCIATION OF
JOURNEYMEN AND APPRENTICES OF
THE PLUMBING AND PIPEFITTING
INDUSTRY LOCAL UNION NO. 38, MEMORANDUM IN SUPPORT OF
= PLAINTIFFS’ EX PARTE
Plaintiffs, APPLICATION FOR AN ORDER TO
v. SERVE “McENERNEY” DEFENDANTS
BY PUBLICATION
ALL PERSONS UNKNOWN, CLAIMING DEPT: 206
ANY LEGAL OR EQUITABLE RIGHT,
TITLE, ESTATE, LIEN, OR INTEREST IN
THE PROPERTY DESCRIBED IN THE
COMPLAINT ADVERSE TO PLAINTIFFS’
TITLE, OR ANY CLOUD ON PLAINTIFFS’
TITLE THERETO; ALL PERSONS
CLAIMING ANY INTEREST IN, OR LIEN
UPON, THE REAL PROPERTY HEREIN
DESCRIBED, OR ANY PART THEREOF;
and DOES | through 50, inclusive,
Defendants.
JUDGE: Hon. Teri L. Jackson
This Memorandum is filed in support of the Ex Parte Application of Plaintiffs U.A. Local
38 Pension Trust Fund and United Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry Local Union No. 38 (“Plaintiffs”) for an order to serve by publication the
Summons in this Action on the unknown defendants designated as “ALL PERSONS CLAIMING
ANY INTEREST IN, OR LIEN UPON, THE REAL PROPERTY HEREIN DESCRIBED, OR
1
MEMORANDUM ISO APPLICATION FOR SERVICE BY PUBLICATION ON MCENERNEY DEFENDANTSwe
ANY PART THEREOF” (“McEnerney Defendants”.)
An Order for publication of the Summons should be issued in accordance with Code of
Civil Procedure section 751.06, which requires service by publication in the circumstances of this
Action.
1. This Action Includes Relief Under the Destroyed Land Records Relief Law, Which
Requires Service By Publication.
This Action includes a count — “Count Two” — to establish Plaintiffs’ title in their real
property under the Destroyed Land Records Relief Law, Code of Civil Procedure sections 751.01
to 751.28. [Plaintiffs’ Verified Complaint (“Complaint”), 7:1-21!; Wallace Decl., §2.] That
Law enables property owners to recreate the San Francisco land records that were destroyed in
the 1906 earthquake and fire, by allowing them to file lawsuits to obtain judgments (“McEnerney
Judgments”) that re-establish their record title. [Wallace Decl., § 3.]
After the earthquake and fire, San Francisco was quickly — and not always accurately —
resurveyed, and the legal descriptions in the McEnerney lawsuits and judgments were not always
accurate. Depending on where the calls for the legal descriptions commenced, as a result of those
inaccuracies there are multiple gaps in the record legal descriptions of properties throughout San
Francisco, for which the owners’ record title was not re-established (“McEnerney Gaps”.) In
addition, sometimes there are no recorded McEnerney Judgments at all for particular lots in San
Francisco. [Wallace Decl., J 3.]
Plaintiffs own the real property located in San Francisco, California, identified as Lots 29,
32, 32-A, and 35 of Block 3505. [Plaintiffs’ Affidavit, filed in this Action on May 4, 2018
(“Affidavit”), { 2°; Wallace Decl., | 4.] These lots are situated at the corner of Market Street and
Brady Street. A survey of Plaintiffs’ property revealed a McEnerney Gap within those
contiguous lots (“Subject Gap”.) A McEnerney Judgment is required to establish Plaintiffs’ title
in that Subject Gap. [Wallace Decl., § 4.]
' An accurate copy of the Complaint is Exhibit 5 in the accompanying Wallace
Declaration.
? An accurate copy of Plaintiffs’ Affidavit is Exhibit 2 in the accompanying Wallace
Declaration. 2
MEMORANDUM ISO APPLICATION FOR SERVICE BY PUBLICATION ON MCENERNEY DEFENDANTSwe
As specified in the Paragraph 11 of the Complaint, the legal description of the Subject
Gap is:
BEGINNING AT A POINT ON THE NORTHEASTERLY LINE OF BRADY
STREET (40.00 FEET WIDE), DISTANT THEREON 180.00 FEET
SOUTHEASTERLY FROM THE SOUTHEASTERLY LINE OF MARKET
STREET (120.00 FEET WIDE); THENCE SOUTHEASTERLY ALONG SAID
LINE OF BRADY STREET 0.292 FEET TO A POINT DISTANT THEREON
100.00 FEET NORTHWESTERLY FROM THE NORTHWESTERLY LINE OF
COLTON STREET (33.00 FEET WIDE); THENCE AT A RIGHT ANGLE
NORTHEASTERLY 207.375 FEET TO THE SOUTHWESTERLY LINE OF
STEVENSON STREET (35.00 FEET WIDE); THENCE AT A RIGHT ANGLE
NORTHWESTERLY, ALONG SAID LINE OF STEVENSON STREET, 0.292
FEET TO A POINT PERPENDICULARLY DISTANT 180.00 FEET
SOUTHEASTERLY FROM SAID SOUTHEASTERLY LINE OF MARKET
STREET; THENCE AT A RIGHT ANGLE SOUTHWESTERLY 207.375 FEET
TO THE POINT OF BEGINNING.
BEING A PORTION OF MISSION BLOCK 13
[Wallace Declaration, { 5.]
Plaintiff U.A. Local 38 Pension Trust Fund (“Pension Trust Fund’) also owns the
property in San Francisco identified as Lot 8 of Block 3505. [Affidavit, { 3; Wallace Decl., | 6.]
The address of that lot is 1125 Stevenson Street (“Stevenson Street Property”.) A search of the
Stevenson Street Property’s title did not find a ““McEnerney Judgment” for this property,
revealing a possible defect in the Pension Trust Fund’s title that Plaintiffs seek to remedy with the
Judgment in this Action. [Wallace Decl., § 6.]
As specified in Paragraph 12 of the Complaint, the legal description of the Stevenson
Street Property is:
BEGINNING AT A POINT ON THE SOUTHEASTERLY LINE OF
STEVENSON STREET (35.00 FEET WIDE), DISTANT THEREON 100.917
FEET SOUTHWESTERLY FROM THE SOUTHWESTERLY LINE OF 12TH
STREET (80.21 FEET WIDE); THENCE SOUTHWESTERLY ALONG SAID
LINE OF STEVENSON STREET 50.00 FEET; THENCE AT A RIGHT ANGLE
SOUTHEASTERLY 100.00 FEET; THENCE AT A RIGHT ANGLE
NORTHEASTERLY 50.00 FEET; THENCE AT A RIGHT ANGLE
NORTHWESTERLY 100.00 FEET TO THE POINT OF BEGINNING.
BEING A PORTION OF MISSION BLOCK 13
[Wallace Declaration, ] 6.]
Code of Civil Procedure section 751.05 specifies a particular form of summons for the
McEnermey Defendants in this Action. Under section 751.05, the Summons must include a legal
3
MEMORANDUM ISO APPLICATION FOR SERVICE BY PUBLICATION ON MCENERNEY DEFENDANTSwe
description of the subject property. The form of Summons attached as Exhibit | to the Wallace
Declaration complies with the requirements of section 751.05. (Wallace Declaration, § 2.)
Code of Civil Procedure section 751.06, requires publication of the Summons, as follows:
The summons shall be published in a newspaper of general circulation published in
the county in which the action is brought. The newspaper in which publication is
to be made shall be designated by an order of the court or a judge thereof to be
signed and filed with the clerk. No other order for the publication of the summons
shall be necessary, nor shall any affidavit therefor be required, nor need any copy
of the complaint be served, except as required by this chapter. The summons shall
be published pursuant to Section 6065 of the Government Code, and to each
publication thereof shall be appended a memorandum in substance as follows:
"The first publication of this summons was made in (here insert
name) newspaper on the day of A.D. s" (inserting
the date).
Under Government Code section 6065, the Summons must be published once a week for
eight consecutive weeks. The San Francisco Daily Journal is a newspaper of general circulation
published in San Francisco County, where this Action is brought. (Wallace Declaration, § 9.)
Code of Civil Procedure section 751.08 requires that a copy of the Summons and the
Complaint are posted in a conspicuous place on each separate parcel of the property described in
the Complaint within fifteen days after the first publication of the Summons.
In accordance with these provisions of the Destroyed Land Records Relief Law and the
Government Code, Plaintiffs respectfully requests that the Court issue an Order that:
(a) Directs the Court Clerk to issue the Summons in the form of Exhibit 1;
(b) Orders that the Summons shall be published in that form, in the San Francisco
Daily Journal once a week for eight consecutive weeks.
(c) Orders that a copy of the Summons and the Complaint shall be posted in a
conspicuous place on each separate parcel of the property described in the Complaint within
fifteen days after the first publication of the Summons.
2. The Procedural Requisites for This Application Under Rules of Court 3.1201 —
3.1204 Are Satisfied.
Rule of Court 3.1203(a) requires notice of an ex parte application to “all parties.” Here,
Plaintiffs are the only known parties. Notice on the other parties — the unknown McEnerney
4
MEMORANDUM ISO APPLICATION FOR SERVICE BY PUBLICATION ON MCENERNEY DEFENDANTSwe
Defendants — is impossible. No further notice of this Application is necessary.
An ex parte application for service by publication on the McEnerney Defendants has not
previously been made or refused in this Action, and Rule of Court 3.1202(b) does not apply.
[Wallace Declaration, § 10.]
Rule of Court 3.1202(a) requires the identification of the attorneys or parties. Plaintiffs
U.A. Local 38 Pension Trust Fund and United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry Local Union No. 38 are the only known parties in this action,
and they are represented by the following counsel:
Richard Wallace
Briscoe Ivester & Bazel LLP
155 Sansome Street, Seventh Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
DATED: June 20, 2018 BRISCOE IVESTER & BAZEL LLP
Ct~
RICHARD WALLACE
Attorneys for Plaintiffs
U.A. LOCAL 38 PENSION TRUST FUND and UNITED
ASSOCIATION OF JOURNEYMEN AND APPRENTICES
OF THE PLUMBING AND PIPEFITTING INDUSTRY
LOCAL UNION NO. 38
By:
5
MEMORANDUM ISO APPLICATION FOR SERVICE BY PUBLICATION ON MCENERNEY DEFENDANTS
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we ELECTRONICALLY RICHARD WALLACE (No. 124286) BRISCOE IVESTER & BAZEL LLP FILED 155 Sansome Street, Seventh Floor Superior Court of California, San Francisco, CA 94104 Sone of Sai Freneiece Telephone: (415) 402-2700 06/20/2018 Facsimile: (415) 398-5630 Clerk of the Court rwallace@briscoelaw.net BY:EDNALEEN ALEGRE Deputy Clerk Attorneys for Plaintiffs U.A. LOCAL 38 PENSION TRUST FUND; and UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY LOCAL UNION NO. 38 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO U.A. LOCAL 38 PENSION TRUST FUND; CASE NO. CGC-18-566280 and UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY LOCAL UNION NO. 38, MEMORANDUM IN SUPPORT OF = PLAINTIFFS’ EX PARTE Plaintiffs, APPLICATION FOR AN ORDER TO v. SERVE “McENERNEY” DEFENDANTS BY PUBLICATION ALL PERSONS UNKNOWN, CLAIMING DEPT: 206 ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN, OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFFS’ TITLE, OR ANY CLOUD ON PLAINTIFFS’ TITLE THERETO; ALL PERSONS CLAIMING ANY INTEREST IN, OR LIEN UPON, THE REAL PROPERTY HEREIN DESCRIBED, OR ANY PART THEREOF; and DOES | through 50, inclusive, Defendants. JUDGE: Hon. Teri L. Jackson This Memorandum is filed in support of the Ex Parte Application of Plaintiffs U.A. Local 38 Pension Trust Fund and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry Local Union No. 38 (“Plaintiffs”) for an order to serve by publication the Summons in this Action on the unknown defendants designated as “ALL PERSONS CLAIMING ANY INTEREST IN, OR LIEN UPON, THE REAL PROPERTY HEREIN DESCRIBED, OR 1 MEMORANDUM ISO APPLICATION FOR SERVICE BY PUBLICATION ON MCENERNEY DEFENDANTSwe ANY PART THEREOF” (“McEnerney Defendants”.) An Order for publication of the Summons should be issued in accordance with Code of Civil Procedure section 751.06, which requires service by publication in the circumstances of this Action. 1. This Action Includes Relief Under the Destroyed Land Records Relief Law, Which Requires Service By Publication. This Action includes a count — “Count Two” — to establish Plaintiffs’ title in their real property under the Destroyed Land Records Relief Law, Code of Civil Procedure sections 751.01 to 751.28. [Plaintiffs’ Verified Complaint (“Complaint”), 7:1-21!; Wallace Decl., §2.] That Law enables property owners to recreate the San Francisco land records that were destroyed in the 1906 earthquake and fire, by allowing them to file lawsuits to obtain judgments (“McEnerney Judgments”) that re-establish their record title. [Wallace Decl., § 3.] After the earthquake and fire, San Francisco was quickly — and not always accurately — resurveyed, and the legal descriptions in the McEnerney lawsuits and judgments were not always accurate. Depending on where the calls for the legal descriptions commenced, as a result of those inaccuracies there are multiple gaps in the record legal descriptions of properties throughout San Francisco, for which the owners’ record title was not re-established (“McEnerney Gaps”.) In addition, sometimes there are no recorded McEnerney Judgments at all for particular lots in San Francisco. [Wallace Decl., J 3.] Plaintiffs own the real property located in San Francisco, California, identified as Lots 29, 32, 32-A, and 35 of Block 3505. [Plaintiffs’ Affidavit, filed in this Action on May 4, 2018 (“Affidavit”), { 2°; Wallace Decl., | 4.] These lots are situated at the corner of Market Street and Brady Street. A survey of Plaintiffs’ property revealed a McEnerney Gap within those contiguous lots (“Subject Gap”.) A McEnerney Judgment is required to establish Plaintiffs’ title in that Subject Gap. [Wallace Decl., § 4.] ' An accurate copy of the Complaint is Exhibit 5 in the accompanying Wallace Declaration. ? An accurate copy of Plaintiffs’ Affidavit is Exhibit 2 in the accompanying Wallace Declaration. 2 MEMORANDUM ISO APPLICATION FOR SERVICE BY PUBLICATION ON MCENERNEY DEFENDANTSwe As specified in the Paragraph 11 of the Complaint, the legal description of the Subject Gap is: BEGINNING AT A POINT ON THE NORTHEASTERLY LINE OF BRADY STREET (40.00 FEET WIDE), DISTANT THEREON 180.00 FEET SOUTHEASTERLY FROM THE SOUTHEASTERLY LINE OF MARKET STREET (120.00 FEET WIDE); THENCE SOUTHEASTERLY ALONG SAID LINE OF BRADY STREET 0.292 FEET TO A POINT DISTANT THEREON 100.00 FEET NORTHWESTERLY FROM THE NORTHWESTERLY LINE OF COLTON STREET (33.00 FEET WIDE); THENCE AT A RIGHT ANGLE NORTHEASTERLY 207.375 FEET TO THE SOUTHWESTERLY LINE OF STEVENSON STREET (35.00 FEET WIDE); THENCE AT A RIGHT ANGLE NORTHWESTERLY, ALONG SAID LINE OF STEVENSON STREET, 0.292 FEET TO A POINT PERPENDICULARLY DISTANT 180.00 FEET SOUTHEASTERLY FROM SAID SOUTHEASTERLY LINE OF MARKET STREET; THENCE AT A RIGHT ANGLE SOUTHWESTERLY 207.375 FEET TO THE POINT OF BEGINNING. BEING A PORTION OF MISSION BLOCK 13 [Wallace Declaration, { 5.] Plaintiff U.A. Local 38 Pension Trust Fund (“Pension Trust Fund’) also owns the property in San Francisco identified as Lot 8 of Block 3505. [Affidavit, { 3; Wallace Decl., | 6.] The address of that lot is 1125 Stevenson Street (“Stevenson Street Property”.) A search of the Stevenson Street Property’s title did not find a ““McEnerney Judgment” for this property, revealing a possible defect in the Pension Trust Fund’s title that Plaintiffs seek to remedy with the Judgment in this Action. [Wallace Decl., § 6.] As specified in Paragraph 12 of the Complaint, the legal description of the Stevenson Street Property is: BEGINNING AT A POINT ON THE SOUTHEASTERLY LINE OF STEVENSON STREET (35.00 FEET WIDE), DISTANT THEREON 100.917 FEET SOUTHWESTERLY FROM THE SOUTHWESTERLY LINE OF 12TH STREET (80.21 FEET WIDE); THENCE SOUTHWESTERLY ALONG SAID LINE OF STEVENSON STREET 50.00 FEET; THENCE AT A RIGHT ANGLE SOUTHEASTERLY 100.00 FEET; THENCE AT A RIGHT ANGLE NORTHEASTERLY 50.00 FEET; THENCE AT A RIGHT ANGLE NORTHWESTERLY 100.00 FEET TO THE POINT OF BEGINNING. BEING A PORTION OF MISSION BLOCK 13 [Wallace Declaration, ] 6.] Code of Civil Procedure section 751.05 specifies a particular form of summons for the McEnermey Defendants in this Action. Under section 751.05, the Summons must include a legal 3 MEMORANDUM ISO APPLICATION FOR SERVICE BY PUBLICATION ON MCENERNEY DEFENDANTSwe description of the subject property. The form of Summons attached as Exhibit | to the Wallace Declaration complies with the requirements of section 751.05. (Wallace Declaration, § 2.) Code of Civil Procedure section 751.06, requires publication of the Summons, as follows: The summons shall be published in a newspaper of general circulation published in the county in which the action is brought. The newspaper in which publication is to be made shall be designated by an order of the court or a judge thereof to be signed and filed with the clerk. No other order for the publication of the summons shall be necessary, nor shall any affidavit therefor be required, nor need any copy of the complaint be served, except as required by this chapter. The summons shall be published pursuant to Section 6065 of the Government Code, and to each publication thereof shall be appended a memorandum in substance as follows: "The first publication of this summons was made in (here insert name) newspaper on the day of A.D. s" (inserting the date). Under Government Code section 6065, the Summons must be published once a week for eight consecutive weeks. The San Francisco Daily Journal is a newspaper of general circulation published in San Francisco County, where this Action is brought. (Wallace Declaration, § 9.) Code of Civil Procedure section 751.08 requires that a copy of the Summons and the Complaint are posted in a conspicuous place on each separate parcel of the property described in the Complaint within fifteen days after the first publication of the Summons. In accordance with these provisions of the Destroyed Land Records Relief Law and the Government Code, Plaintiffs respectfully requests that the Court issue an Order that: (a) Directs the Court Clerk to issue the Summons in the form of Exhibit 1; (b) Orders that the Summons shall be published in that form, in the San Francisco Daily Journal once a week for eight consecutive weeks. (c) Orders that a copy of the Summons and the Complaint shall be posted in a conspicuous place on each separate parcel of the property described in the Complaint within fifteen days after the first publication of the Summons. 2. The Procedural Requisites for This Application Under Rules of Court 3.1201 — 3.1204 Are Satisfied. Rule of Court 3.1203(a) requires notice of an ex parte application to “all parties.” Here, Plaintiffs are the only known parties. Notice on the other parties — the unknown McEnerney 4 MEMORANDUM ISO APPLICATION FOR SERVICE BY PUBLICATION ON MCENERNEY DEFENDANTSwe Defendants — is impossible. No further notice of this Application is necessary. An ex parte application for service by publication on the McEnerney Defendants has not previously been made or refused in this Action, and Rule of Court 3.1202(b) does not apply. [Wallace Declaration, § 10.] Rule of Court 3.1202(a) requires the identification of the attorneys or parties. Plaintiffs U.A. Local 38 Pension Trust Fund and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry Local Union No. 38 are the only known parties in this action, and they are represented by the following counsel: Richard Wallace Briscoe Ivester & Bazel LLP 155 Sansome Street, Seventh Floor San Francisco, CA 94104 Telephone: (415) 402-2700 DATED: June 20, 2018 BRISCOE IVESTER & BAZEL LLP Ct~ RICHARD WALLACE Attorneys for Plaintiffs U.A. LOCAL 38 PENSION TRUST FUND and UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY LOCAL UNION NO. 38 By: 5 MEMORANDUM ISO APPLICATION FOR SERVICE BY PUBLICATION ON MCENERNEY DEFENDANTS