Preview
1 Barry L. Goldner, SBN 107126
R. Jeffrey Warren, SBN 266454
2 KLEIN, DENATALE, GOLDNER,
COOPER, ROSENLIEB & KIMBALL, LLP
3 10000 Stockdale Highway, Suite 200
Bakersfield, CA 93311
4 Telephone: 661-395-1000
Facsimile: 661-326-0418
5 Email: bgoldner@kleinlaw.com
jwarren@kleinlaw.com
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Attorneys for Plaintiff SIGI TEHACHAPI, LLC
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF KERN, METROPOLITAN DIVISION
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11 SIGI TEHACHAPI, LLC, a Texas Limited Case No. BCV-23-103832
Liability Company,
12 EX PARTE APPLICATION FOR
ORDER AUTHORIZING SERVICE OF
13 Plaintiff, SUMMONS BY PUBLICATION;
MEMORANDUM OF POINTS AND
14 v. AUTHORITIES
15 CLEARVISTA RANCH LLC, a California Assigned to: Hon. Gina M.
Limited Liability Company; Cervantes
16 CLEARVISTA ENERGY, LLC, a California Div.: L
Limited Liability Company;
17 ALL PERSONS UNKNOWN, CLAIMING BY,
UNDER, OR THROUGH CLEARVISTA
18
ENERGY, LLC;
19 ALL PERSONS UNKNOWN, CLAIMING ANY
LEGAL OR EQUITABLE RIGHT, TITLE,
20 ESTATE, LIEN, OR INTEREST IN THE
PROPERTY DESCRIBED IN THE COMPLAINT
21 ADVERSE TO PLAINTIFF’S TITLE, OR ANY
CLOUD ON PLAINTIFF’S TITLE THERETO;
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and DOES 1 through 50, inclusive,
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Defendants.
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Plaintiff, SIGI TEHACHAPI, LLC, a Texas Limited Liability Company (“SIGI”), will
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and hereby does, apply for an Order directing service of the Summons and Complaint associated
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with the above-captioned action upon: (i) ALL PERSONS UNKNOWN, CLAIMING BY,
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30 #5162745v2 EX PARTE APPLICATION FOR SERVICE BY
PUBLICATION
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1 UNDER, OR THROUGH CLEARVISTA ENERGY, LLC; and (ii) ALL PERSONS
2 UNKNOWN, CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN,
3 OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO
4 PLAINTIFF’S TITLE, OR ANY CLOUD ON PLAINTIFF’S TITLE THERETO, by publication
5 in The Daily Report of Kern County, California.
6 This application is based on section 415.50 of the Code of Civil Procedure; the attached
7 Memorandum of Points and Authorities; all records and documents in the Court’s file on this
8 case; any matter upon which the Court may take judicial notice; and upon such oral arguments as
9 the Court may entertain at the time of hearing on this matter.
10 17 2023
Dated: November ____, KLEIN, DENATALE, GOLDNER
COOPER, ROSENLIEB & KIMBALL, LLP
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12 By: ___________________________________
BARRY L. GOLDNER
13 R. JEFFREY WARREN
Attorneys for Plaintiff SIGI TEHACHAPI,
14 LLC
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30 #5162745v2 EX PARTE APPLICATION FOR SERVICE
BY PUBLICATION
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1 MEMORANDUM OF POINTS AND AUTHORITIES
2 By this application, SIGI seeks authorization to serve, by publication, defendants whose
3 identities are unknown and who—unbeknownst to SIGI—may claim some interest in the Property
4 that is the subject of this action.
5 I. Statement of Facts
6 This action concerns two parcels of vacant land located in Kern County, California: Kern
7 County APN 223-052-11 (“Parcel 1”) and APN 223-052-09 (“Parcel 2”) (together, the
8 “Property”). (Complaint, ¶ 1.1) SIGI is the current owner of the Property. (Id., ¶ 2, Ex. A to
9 Complaint.)
10 SIGI desires to gift a number of parcels of real property, including the Property, to
11 Southern Methodist University. (Complaint, ¶ 3.) In preparation for making the charitable gift, in
12 June 2023, counsel for SIGI obtained a Preliminary Title Report from First American Title
13 Company for the parcels to be included in the anticipated gift. (Id., ¶ 4.) The Preliminary Title
14 Report identified two recorded memoranda of leases (Kern County Recorder Doc. Nos.
15 214074623 and 214074624), purporting to affect title to the Property. (Id., Exs. B and C to
16 Complaint.) The existence of these purported encumbrances on title contradicted SIGI’s
17 understanding as to the state of title when SIGI acquired the property: SIGI had been informed
18 and believed, and continues to be informed and believes, that these encumbrances had been
19 extinguished by virtue of a 2015 foreclosure sale. (Id., ¶ 5.)
20 After reviewing the Preliminary Title Report, SIGI conferred with Southern Methodist
21 University. (Complaint, ¶ 6.) SIGI and Southern Methodist University agree and believe that the
22 leasehold interests documented by the memoranda of leases were extinguished by the 2015
23 foreclosure sale. (Ibid.) Under its belief that the leasehold interests were extinguished, Southern
24 Methodist University has agreed to accept the charitable gift, including the Property. (Ibid.)
25 Southern Methodist University has raised, however, concerns that a future buyer of the Property
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27 SIGI requests that the Court take judicial notice of the verified allegations of the Complaint (and
exhibits attached thereto) cited herein. Because the Complaint is verified and SIGI is requesting
28 judicial notice, no additional declaration is attached.
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BY PUBLICATION
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1 may raise concerns regarding the validity of the leasehold interests. (Id., ¶ 7.) To that extent,
2 Southern Methodist University has required SIGI to obtain a judicial determination that the
3 leasehold interests, and the fee interest of the lessor, have been extinguished. (Ibid.)
4 The defendants SIGI seeks to serve by publication are: (1) fictitiously-named defendants
5 identified as “ALL PERSONS UNKNOWN CLAIMING BY, UNDER, OR THROUGH
6 CLEARVISTA ENERGY, LLC;” and (2) fictitiously-named defendants identified as “ALL
7 PERSONS UNKNOWN, CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE,
8 ESTATE, LIEN, OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT
9 ADVERSE TO PLAINTIFF’S TITLE, OR ANY CLOUD ON PLAINTIFF’S TITLE
10 THERETO.” As explained herein, service of the Complaint on these fictitiously-named
11 defendants by publication is appropriate and necessary.
12 Defendant CLEARVISTA ENERGY, LLC is identified as the lessee in each of the
13 memoranda of leases purporting to encumber title. (Complaint, ¶ 24, Exs. B and C to Complaint.)
14 SIGI has neither information nor belief that CLEARVISTA ENERGY assigned or sublet the
15 Property, or that some other person or entity has succeeded CLEARVISTA ENERGY in interest;
16 however, in an abundance of caution, SIGI has named such fictitious defendants in the lawsuit as
17 “ALL PERSONS UNKNOWN CLAIMING BY, UNDER, OR THROUGH CLEARVISTA
18 ENERGY, LLC.” (Id., ¶ 15.)
19 Other than the specifically-named defendants in the Complaint, SIGI is unaware of any
20 person or entity that may claim an interest in the Property adverse to SIGI or which would cloud
21 SIGI’s title. Still, so that the judgment rendered herein will be “good against all the world as of
22 the time of the judgment,” SIGI has named such fictitious defendants in the lawsuit as as “ALL
23 PERSONS UNKNOWN, CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE,
24 ESTATE, LIEN, OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT
25 ADVERSE TO PLAINTIFF’S TITLE, OR ANY CLOUD ON PLAINTIFF’S TITLE
26 THERETO.” (See Code Civ. Proc., §§ 762.010, 762.020; Harbour Vista, LLC v. HSBC Mort.
27 Servs. Inc. (2011) 201 Cal.App.4th 1496, 1506; Complaint, ¶ 16.)
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1 II. Argument: The Court should authorize service of the Summons and Complaint on
Defendants by publication because Defendants cannot, with reasonable diligence,
2 be served in another manner.
3 SIGI’s application to serve by publication stems from the in rem jurisdiction conferred
4 upon the Court in a quiet title action. In a quiet title action, “[t]he court has complete jurisdiction
5 over the parties to the action and the property described n the complaint and is deemed to have
6 obtained possession and control of the property for the purposes of the action with complete
7 jurisdiction to render the judgment provided for in this chapter.” (Code Civ. Proc., § 760.040,
8 subd. (b).) As recognized by the courts and the Legislature, the purpose of a quiet title action is
9 “to permit a property owner to get a general decree that would be binding on all people.”
10 (Harbour Vista, LLC v. HSBC Mort. Servs. Inc., supra, 201 Cal.App.4th at 1506 fn. 11 [quoting
11 Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1676 (1979-1980 Reg. Sess.) Feb. 29, 1980,
12 p. 2].)
13 To invoke the court’s in rem jurisdiction, a plaintiff in a quiet title action is required to
14 name as defendant all persons with claims adverse to the title of the plaintiff—whether the
15 identities of those persons are known or unknown. (See Code Civ. Proc., §§ 762.010, 762.020.)
16 The defendants SIGI seeks to serve by publication are such unknown persons.
17 Code of Civil Procedure Section 415.50 governs service by publication. Section 415.50
18 provides:
19 A summons may be served by publication if upon affidavit it
appears to the satisfaction of the court in which the action is
20 pending that the party to be served cannot with reasonable diligence
be served in another manner specified in this article and that either:
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(1) A cause of action exists against the party upon whom service is
22 to be made or he or she is a necessary or proper party to the
action.
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(2) The party to be served has or claims an interest in real or
24 personal property in this state that is subject to the jurisdiction
of the court or the relief demanded in the action consists wholly
25 or in part in excluding the party from any interest in the
property.
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(Code Civ. Proc., § 415.50, subd. (a).)
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30 #5162745v2 EX PARTE APPLICATION FOR SERVICE
BY PUBLICATION
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1 The unknown identities of the defendants are precisely why service by publication is
2 appropriate and necessary: Because their identities are unknown, SIGI has no address at which to
3 attempt personal service, substitute service, or service by mail. Still, such unknown defendants
4 are necessary parties to the action—service must be completed. Accordingly, SIGI seeks an Order
5 authorizing service of the Summons and Complaint on (1) the fictitiously-named defendants
6 identified as “ALL PERSONS UNKNOWN CLAIMING BY, UNDER, OR THROUGH
7 CLEARVISTA ENERGY, LLC;” and (2) the fictitiously-named defendants identified as “ALL
8 PERSONS UNKNOWN, CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE,
9 ESTATE, LIEN, OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT
10 ADVERSE TO PLAINTIFF’S TITLE, OR ANY CLOUD ON PLAINTIFF’S TITLE
11 THERETO.”
12 III. Conclusion
13 The identities of the fictitiously-named defendants are unknown. The only manner to
14 effectuate lawful service on these defendants is by publication. The Court should grant SIGI’s
15 application and authorize publication as set forth in the concurrently-lodged proposed order.
16 17 2023
Dated: November _____, KLEIN, DENATALE, GOLDNER
COOPER, ROSENLIEB & KIMBALL, LLP
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18 By: ___________________________________
BARRY L. GOLDNER
19 R. JEFFREY WARREN
Attorneys for Plaintiff SIGI TEHACHAPI,
20 LLC
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30 #5162745v2 EX PARTE APPLICATION FOR SERVICE
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Preview
1 Barry L. Goldner, SBN 107126 R. Jeffrey Warren, SBN 266454 2 KLEIN, DENATALE, GOLDNER, COOPER, ROSENLIEB & KIMBALL, LLP 3 10000 Stockdale Highway, Suite 200 Bakersfield, CA 93311 4 Telephone: 661-395-1000 Facsimile: 661-326-0418 5 Email: bgoldner@kleinlaw.com jwarren@kleinlaw.com 6 Attorneys for Plaintiff SIGI TEHACHAPI, LLC 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF KERN, METROPOLITAN DIVISION 10 11 SIGI TEHACHAPI, LLC, a Texas Limited Case No. BCV-23-103832 Liability Company, 12 EX PARTE APPLICATION FOR ORDER AUTHORIZING SERVICE OF 13 Plaintiff, SUMMONS BY PUBLICATION; MEMORANDUM OF POINTS AND 14 v. AUTHORITIES 15 CLEARVISTA RANCH LLC, a California Assigned to: Hon. Gina M. Limited Liability Company; Cervantes 16 CLEARVISTA ENERGY, LLC, a California Div.: L Limited Liability Company; 17 ALL PERSONS UNKNOWN, CLAIMING BY, UNDER, OR THROUGH CLEARVISTA 18 ENERGY, LLC; 19 ALL PERSONS UNKNOWN, CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, 20 ESTATE, LIEN, OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT 21 ADVERSE TO PLAINTIFF’S TITLE, OR ANY CLOUD ON PLAINTIFF’S TITLE THERETO; 22 and DOES 1 through 50, inclusive, 23 Defendants. 24 25 Plaintiff, SIGI TEHACHAPI, LLC, a Texas Limited Liability Company (“SIGI”), will 26 and hereby does, apply for an Order directing service of the Summons and Complaint associated 27 with the above-captioned action upon: (i) ALL PERSONS UNKNOWN, CLAIMING BY, 28 30 #5162745v2 EX PARTE APPLICATION FOR SERVICE BY PUBLICATION 31 1 UNDER, OR THROUGH CLEARVISTA ENERGY, LLC; and (ii) ALL PERSONS 2 UNKNOWN, CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN, 3 OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO 4 PLAINTIFF’S TITLE, OR ANY CLOUD ON PLAINTIFF’S TITLE THERETO, by publication 5 in The Daily Report of Kern County, California. 6 This application is based on section 415.50 of the Code of Civil Procedure; the attached 7 Memorandum of Points and Authorities; all records and documents in the Court’s file on this 8 case; any matter upon which the Court may take judicial notice; and upon such oral arguments as 9 the Court may entertain at the time of hearing on this matter. 10 17 2023 Dated: November ____, KLEIN, DENATALE, GOLDNER COOPER, ROSENLIEB & KIMBALL, LLP 11 12 By: ___________________________________ BARRY L. GOLDNER 13 R. JEFFREY WARREN Attorneys for Plaintiff SIGI TEHACHAPI, 14 LLC 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 30 #5162745v2 EX PARTE APPLICATION FOR SERVICE BY PUBLICATION 31 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 By this application, SIGI seeks authorization to serve, by publication, defendants whose 3 identities are unknown and who—unbeknownst to SIGI—may claim some interest in the Property 4 that is the subject of this action. 5 I. Statement of Facts 6 This action concerns two parcels of vacant land located in Kern County, California: Kern 7 County APN 223-052-11 (“Parcel 1”) and APN 223-052-09 (“Parcel 2”) (together, the 8 “Property”). (Complaint, ¶ 1.1) SIGI is the current owner of the Property. (Id., ¶ 2, Ex. A to 9 Complaint.) 10 SIGI desires to gift a number of parcels of real property, including the Property, to 11 Southern Methodist University. (Complaint, ¶ 3.) In preparation for making the charitable gift, in 12 June 2023, counsel for SIGI obtained a Preliminary Title Report from First American Title 13 Company for the parcels to be included in the anticipated gift. (Id., ¶ 4.) The Preliminary Title 14 Report identified two recorded memoranda of leases (Kern County Recorder Doc. Nos. 15 214074623 and 214074624), purporting to affect title to the Property. (Id., Exs. B and C to 16 Complaint.) The existence of these purported encumbrances on title contradicted SIGI’s 17 understanding as to the state of title when SIGI acquired the property: SIGI had been informed 18 and believed, and continues to be informed and believes, that these encumbrances had been 19 extinguished by virtue of a 2015 foreclosure sale. (Id., ¶ 5.) 20 After reviewing the Preliminary Title Report, SIGI conferred with Southern Methodist 21 University. (Complaint, ¶ 6.) SIGI and Southern Methodist University agree and believe that the 22 leasehold interests documented by the memoranda of leases were extinguished by the 2015 23 foreclosure sale. (Ibid.) Under its belief that the leasehold interests were extinguished, Southern 24 Methodist University has agreed to accept the charitable gift, including the Property. (Ibid.) 25 Southern Methodist University has raised, however, concerns that a future buyer of the Property 26 1 27 SIGI requests that the Court take judicial notice of the verified allegations of the Complaint (and exhibits attached thereto) cited herein. Because the Complaint is verified and SIGI is requesting 28 judicial notice, no additional declaration is attached. 3 30 #5162745v2 EX PARTE APPLICATION FOR SERVICE BY PUBLICATION 31 1 may raise concerns regarding the validity of the leasehold interests. (Id., ¶ 7.) To that extent, 2 Southern Methodist University has required SIGI to obtain a judicial determination that the 3 leasehold interests, and the fee interest of the lessor, have been extinguished. (Ibid.) 4 The defendants SIGI seeks to serve by publication are: (1) fictitiously-named defendants 5 identified as “ALL PERSONS UNKNOWN CLAIMING BY, UNDER, OR THROUGH 6 CLEARVISTA ENERGY, LLC;” and (2) fictitiously-named defendants identified as “ALL 7 PERSONS UNKNOWN, CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, 8 ESTATE, LIEN, OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT 9 ADVERSE TO PLAINTIFF’S TITLE, OR ANY CLOUD ON PLAINTIFF’S TITLE 10 THERETO.” As explained herein, service of the Complaint on these fictitiously-named 11 defendants by publication is appropriate and necessary. 12 Defendant CLEARVISTA ENERGY, LLC is identified as the lessee in each of the 13 memoranda of leases purporting to encumber title. (Complaint, ¶ 24, Exs. B and C to Complaint.) 14 SIGI has neither information nor belief that CLEARVISTA ENERGY assigned or sublet the 15 Property, or that some other person or entity has succeeded CLEARVISTA ENERGY in interest; 16 however, in an abundance of caution, SIGI has named such fictitious defendants in the lawsuit as 17 “ALL PERSONS UNKNOWN CLAIMING BY, UNDER, OR THROUGH CLEARVISTA 18 ENERGY, LLC.” (Id., ¶ 15.) 19 Other than the specifically-named defendants in the Complaint, SIGI is unaware of any 20 person or entity that may claim an interest in the Property adverse to SIGI or which would cloud 21 SIGI’s title. Still, so that the judgment rendered herein will be “good against all the world as of 22 the time of the judgment,” SIGI has named such fictitious defendants in the lawsuit as as “ALL 23 PERSONS UNKNOWN, CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, 24 ESTATE, LIEN, OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT 25 ADVERSE TO PLAINTIFF’S TITLE, OR ANY CLOUD ON PLAINTIFF’S TITLE 26 THERETO.” (See Code Civ. Proc., §§ 762.010, 762.020; Harbour Vista, LLC v. HSBC Mort. 27 Servs. Inc. (2011) 201 Cal.App.4th 1496, 1506; Complaint, ¶ 16.) 28 4 30 #5162745v2 EX PARTE APPLICATION FOR SERVICE BY PUBLICATION 31 1 II. Argument: The Court should authorize service of the Summons and Complaint on Defendants by publication because Defendants cannot, with reasonable diligence, 2 be served in another manner. 3 SIGI’s application to serve by publication stems from the in rem jurisdiction conferred 4 upon the Court in a quiet title action. In a quiet title action, “[t]he court has complete jurisdiction 5 over the parties to the action and the property described n the complaint and is deemed to have 6 obtained possession and control of the property for the purposes of the action with complete 7 jurisdiction to render the judgment provided for in this chapter.” (Code Civ. Proc., § 760.040, 8 subd. (b).) As recognized by the courts and the Legislature, the purpose of a quiet title action is 9 “to permit a property owner to get a general decree that would be binding on all people.” 10 (Harbour Vista, LLC v. HSBC Mort. Servs. Inc., supra, 201 Cal.App.4th at 1506 fn. 11 [quoting 11 Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1676 (1979-1980 Reg. Sess.) Feb. 29, 1980, 12 p. 2].) 13 To invoke the court’s in rem jurisdiction, a plaintiff in a quiet title action is required to 14 name as defendant all persons with claims adverse to the title of the plaintiff—whether the 15 identities of those persons are known or unknown. (See Code Civ. Proc., §§ 762.010, 762.020.) 16 The defendants SIGI seeks to serve by publication are such unknown persons. 17 Code of Civil Procedure Section 415.50 governs service by publication. Section 415.50 18 provides: 19 A summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is 20 pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that either: 21 (1) A cause of action exists against the party upon whom service is 22 to be made or he or she is a necessary or proper party to the action. 23 (2) The party to be served has or claims an interest in real or 24 personal property in this state that is subject to the jurisdiction of the court or the relief demanded in the action consists wholly 25 or in part in excluding the party from any interest in the property. 26 (Code Civ. Proc., § 415.50, subd. (a).) 27 28 5 30 #5162745v2 EX PARTE APPLICATION FOR SERVICE BY PUBLICATION 31 1 The unknown identities of the defendants are precisely why service by publication is 2 appropriate and necessary: Because their identities are unknown, SIGI has no address at which to 3 attempt personal service, substitute service, or service by mail. Still, such unknown defendants 4 are necessary parties to the action—service must be completed. Accordingly, SIGI seeks an Order 5 authorizing service of the Summons and Complaint on (1) the fictitiously-named defendants 6 identified as “ALL PERSONS UNKNOWN CLAIMING BY, UNDER, OR THROUGH 7 CLEARVISTA ENERGY, LLC;” and (2) the fictitiously-named defendants identified as “ALL 8 PERSONS UNKNOWN, CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, 9 ESTATE, LIEN, OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT 10 ADVERSE TO PLAINTIFF’S TITLE, OR ANY CLOUD ON PLAINTIFF’S TITLE 11 THERETO.” 12 III. Conclusion 13 The identities of the fictitiously-named defendants are unknown. The only manner to 14 effectuate lawful service on these defendants is by publication. The Court should grant SIGI’s 15 application and authorize publication as set forth in the concurrently-lodged proposed order. 16 17 2023 Dated: November _____, KLEIN, DENATALE, GOLDNER COOPER, ROSENLIEB & KIMBALL, LLP 17 18 By: ___________________________________ BARRY L. GOLDNER 19 R. JEFFREY WARREN Attorneys for Plaintiff SIGI TEHACHAPI, 20 LLC 21 22 23 24 25 26 27 28 6 30 #5162745v2 EX PARTE APPLICATION FOR SERVICE BY PUBLICATION 31