web viewa complaint seeking both to quiet title and to cancel the deed under which the defendant ....

15-184 California Forms of Pleading and Practice--Annotated § 184.150 California Forms of Pleading and Practice--Annotated > > Chapter 184 > PART IV.> A.§ 184.150 Complaint for Cancellation [Civ. Code § 3412] of Deed and to Quiet Title [Code Civ. Proc. §§ 760.010-764.080] to Real Property—General Form

[1] FORM Complaint for Cancellation [Civ. Code § 3412] of Deed and to Quiet Title [Code Civ. Proc. §§ 760.010-764.080] to Real Property—General Form

SUPERIOR COURT OF CALIFORNIA, COUNTY OF ____________________

COMPLAINT.FO_R_CA NCE LATION OFDEED AND TO QUIET TITLE TO REAL

____________________ [name], PROPERTYPlaintiff,

vs.____________________ [name(s) of known defendant(s)] [if unknown defendants are included, add:; and 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] [; and DOES I- ____________________, inclusive],

Defendant(s).

Plaintiff alleges:

FIRST COUNT

(Cancellation of Deed)

[1. Plaintiff, ____________________ (name), is, and at all times herein mentioned was, ____________________ (specify entity if other than natural person, e.g., a national banking asso-ciation incorporated under the laws of the United States, engaged in doing business as a trust com-pany in the State of California with its principal place of business in the County of ____________________,) ____________________ (specify special capacity, if any, in which plain-tiff sues, e.g., and executor of the estate of ____________________ (name), deceased).]

[2. Defendant, ____________________ (name), is, and at all times mentioned in this complaint was, ____________________ (specify entity if any defendant is other than natural person, e.g., a national banking association incorporated under the laws of the United States, engaged in doing business as a trust company in the State of California with its principal place of business in the County of ____________________,) ____________________ (specify special capacity, if any, in which defendant is sued, e.g., and executor of the estate of ____________________ (name), de-ceased).]

L_

[3. Defendants DOES I- ____________________, inclusive, are sued in this complaint under fic-titious names. Their true names and capacities are unknown to plaintiff. When their true names and capacities are ascertained, plaintiff will amend this complaint by inserting their true names and capacities in this complaint. Plaintiff is informed and believes and thereon alleges that each of these fictitiously named defendants claim some right, title, estate, lien, or interest in the de-scribed property adverse to plaintiff’s title; that each of them is responsible in some manner for the

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of 12 15-184 California Forms of Pleading and Practice--Annotated § 184.150

(threatened) wrongful conduct alleged; and that their claims, and each of them, constitute a cloud on plaintiff’s title to that property.]

4. There is in existence a certain written instrument that purports to be a deed to certain real property located in the County of ____________________, described in the deed. The form and contents of the purported deed are ____________________ [as set out in the copy of it that is attached hereto as Exhibit A and made a part of this complaint or as follows: ____________________ (set out instrument verbatim, following its form as closely as possible)]. The purported deed is ____________________ [in the possession or under control] of defendant.

5. ____________________ [Allege facts making deed void or voidable against plaintiff, e.g., Plaintiff did not on ____________________ (date), or at any other time, make, sign, or acknowledge the purported deed or authorize any person or persons to do so. Plaintiff is, and at all times mentioned was, the owner of the land purported to be conveyed by the deed].

6. ____________________ [Allege facts showing a reasonable apprehension that if left outstand-ing the instrument may cause serious injury to plaintiff, e.g., On ____________________ (date), the purported deed was recorded in the Official Records of the County of ____________________, Book/Reel ____________________, page/image ____________________. On or about ____________________ (date), defendant ____________________ (name) listed the property with a licensed broker for sale. If the re-corded deed is left outstanding, plaintiff may lose his/her/its property to a purchaser from defen-dant ____________________ (name) for value and without notice of the deed’s invalidity].

[If offering to restore consideration, allege EITHER]

[7. Plaintiff offers to restore all consideration furnished by defendant ____________________ (name) for the purported deed, on condition that defendant ____________________ (name) deliver the deed to the court for cancellation.]

[OR]

[7. On or about ____________________ (date), plaintiff offered to restore to defendant ____________________ (name) all consideration given by him/her on condition that defendant ____________________ (name) reconvey to plaintiff the land described in the purported deed. De-fendant ____________________ (name) refused, and continues to refuse, to reconvey the prop-erty.]

[CONTINUE]

[8. ____________________ (Allege facts establishing a basis for a claim for damages as addi-tional relief, if any, e.g., On ____________________ (date), plaintiff was dispossessed of the above-described property by defendant ____________________ (name) claiming title under the deed that purportedly conveyed the property to defendant ____________________ (name). As a re-sult of such dispossession, plaintiff was deprived of the rent on the premises at the rate of $ ___ __________ per month, from ____________________, to ____________________ (dates)).]

[9. ____________________ (Allege facts establishing a basis for a claim for exemplary dam-ages, if any, e.g., The conduct of defendant(s, and each of them,) in procuring the (forged) deed (and

dispossessing plaintiff of the property) was willful and was intended to injure plaintiff and to de-prive plaintiff of the property purportedly conveyed by the deed. Plaintiff therefore seeks exem-

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plary and punitive damages in the sum of $ _____________.]

SECOND COUNT

(Quiet Title)

10. Plaintiff refers to and herein incorporates Paragraphs 1-8, inclusive, of the First Count.

11. Plaintiff is, and at all times herein mentioned was, the owner in fee simple and in possession and control of that real property situated in ____________________ County, known as ____________________ [street address], ____________________ [city], California, and more particularly described as follows: ____________________ [legal description].

12. The basis of plaintiff’s title is ____________________ [describe basis of plaintiff ’s title, e.g., a deed from ____________________ (name of grantor) granting the above-described property in fee simple to plaintiff dated ____________________ (date), and recorded in the Official Records of the County of ____________________, Book/Reel ____________________, page/ image ____________________ ].

13. Plaintiff is seeking to quiet title against the claims of defendant(s) as follows: defendant(s) ____________________ [name(s) of the named defendant(s)], who claims/claim some right, title, estate, lien, or interest in and to the lands of plaintiff as described in this complaint, based on the purported deed described in Paragraph 4 [ ____________________ (continue with whichever are applicable:; the claims of the successor defendants described in Paragraph ____________________; the claims of all unknown defendants described in Paragraph 14, whether or not the claim or cloud is known to plaintiff; and the unknown, uncertain, or contin-gent claim, if any, of ____________________ (name) more fully described in Paragraph 15)]. De-fendant’s (Defendants’) claim(s) is/are without any right whatever and that/those defendant(s) has/ have no right, title, estate, lien, or interest whatever in the above-described property, or any part of that property[, except the following: ____________________ (set forth any claims of which plaintiff admits the validity, e.g., the utility easement held by Pacific Gas and Electric Com-pany)].

[14. If “all persons unknown” are named as defendants, allege: The defendants named as “all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the prop-erty described in the complaint adverse to plaintiff’s title, or any cloud on plaintiff’s title thereto” (sometimes referred to as “the unknown defendants”) are unknown to plaintiff. These unknown defendants, and each of them, claim some right, title, estate, lien, or interest in the previously de-scribed property adverse to plaintiff’s title; and their claims, and each of them, constitute a cloud on plaintiff’s title to that property.]

[15. If the claim of a named defendant is unknown, uncertain, or contingent, allege: The claim of ____________________ (name of defendant) is ____________________ (unknown or uncer-tain or contingent). If the lack of knowledge, uncertainty, or contingency is caused by a trans-fer to an unborn or unascertained person or class member, or by a transfer in the form of a con-tingent remainder, a vested remainder subject to defeasance, an executory

interest, or a similar disposition, allege: ____________________ (Name), age ____________________, is the person who would be entitled to an adverse claim if ____________________ (describe contingency) had occurred prior to the commencement of this action. If the person is subject to a legal disability, allege: The person is subject to ____________________ (specify legal disability).]

[16. In a case governed by Code Civ. Proc. § 318, allege: Plaintiff was ____________________

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(seized or possessed) of the above-described property within five years of the commencement of this action.]

17. Plaintiff seeks to quiet title as of ____________________ [date]. [If the date is a date other than the date the complaint is filed, allege why a determination as of that date is sought.] WHEREFORE, plaintiff prays judgment against defendants as follows: On

the FIRST COUNT:

1. For a declaration that the purported deed is void;

2. That defendant deliver the purported deed forthwith to the clerk of the court for cancellation; [3.

For damages in the sum of $ _____________;]

[4. For exemplary or punitive damages in the sum of $ _____________;] On

the SECOND COUNT:

5. For a judgment that plaintiff is ____________________ [specify interest claimed, e.g., the owner in fee simple] of the property and that defendant(s) has/have no interest in the property adverse to the plaintiff;

On all COUNTS:

6. For costs of suit herein incurred; and

7. For such other further relief as the court may deem proper.

____________________ [signature] Attorney for Plaintiff

VERIFICATION

I, ____________________ [name], am the plaintiff in the above-entitled action. I have read the foregoing complaint and know the contents of the complaint. The same is true of my own knowledge, except as to those matters that are therein alleged on information and belief, and as to those matters, I believe it to be true.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

____________________ [date]

____________________[signature]

CAUTION: This form does not contain any allegations regarding defendants who are personal repre-sentatives [ Code Civ. Proc. § 762.030(a)] or heirs and intestate or testate successors [ Code Civ. Proc. § 762.030(b)] of persons known or believed by the plaintiff to be deceased. If those defendants are necessary in your particular situation, use the appropriate allegations

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from Ch. 482, Quieting Title.

[2] Use of Form This form is a complaint that may be used to obtain cancellation of a deed that is void or void-able against the plaintiff and to determine the adverse claim asserted under the deed [see Civ. Code § 3412]. A “claim” includes a legal or equitable right, title, estate, lien, or interest in property or cloud on title [ Code Civ. Proc. § 760.010(a)]. A plaintiff who intends to add a quiet title count naming unknown persons as defendants may wish to obtain a title report before commencing the action, because an examination of the record title and an inspection of the property will be nec-essary [see Code Civ. Proc. § 762.060(b)]. Also, the court may order plaintiff to obtain a title re-port and keep it available for inspection and copying by the parties [ Code Civ. Proc. § 762.040(b)].

[3] Allegations [a] Single Cause of Action

If there is a reasonable apprehension that a deed left outstanding may cause serious injury to a person against whom it is void or voidable, the deed may, on that person’s application, be so adjudged and ordered to be delivered up or canceled [ Civ. Code § 3412; see Zakaessian v. Zakaessian (1945) 70 Cal. App. 2d 721, 724-725, 161 P.2d 677 (sufficiency of allegations to state cause of action for cancellation of deed)].

An action to quiet title may be brought to establish title against adverse claims to real property [ Code Civ. Proc. § 760.020(a)].

A complaint seeking both to quiet title and to cancel the deed under which the defendant claims an interest in and to realty states only one cause of action, even if set out as multiple counts in the complaint [ Kejr v. Construction Engineers, Inc. (1952) 111 Cal. App. 2d 817, 819, 245 P.2d 21]. Further, when the count to quiet title depends on the factual allegations of the count to cancel a deed, as in this form, the complaint will stand or fall on the sufficiency of the allegations in the cancellation count [ Leeper v. Beltrami (1959) 53 Cal. 2d 195, 214, 1 Cal. Rptr. 12, 347 P.2d 12; Ephraim v. Metropolitan Trust Co. (1946) 28 Cal. 2d 824, 833, 172 P.2d 501].

For clarity, this form of complaint is set out as one cause of action in two counts, one for can-cellation and one to quiet title. Although both forms of relief are generally sought, there may be situations in which counsel would not wish to seek the further relief to be obtained by the quiet title count. In that case, the second count may be omitted. Chapter 107, Cancellation of Instru-ments, may be consulted for a general form for cancellation of a written instrument.

[b] Cancellation

[i] Elements

The first count of this complaint alleges all of the following: • The identity and capacity of the plaintiff, to be included if the plaintiff is not a natu-

ral person suing in his or her own behalf (Paragraph 1) [see Parker v. Bowron (1953) 40 Cal. 2d 344, 350-352, 254 P.2d 6];

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• The identity and capacity of the defendant, to be included if the defendant is not a natural person or is sued in a particular capacity (Paragraph 2) [see Katleman v. First Nat’l Bank of Nevada (1963) 212 Cal. App. 2d 520, 524, 28 Cal. Rptr. 135 (discharged executor is not subject to suit in representative capacity); Tanner v. Best (1940) 40 Cal. App. 2d 442, 445, 104 P.2d 1084 (requirement of naming existing entity as defendant)];

• Plaintiff’s ignorance of the names of defendants designated by fictitious names(Paragraph 3) [ Code Civ. Proc. § 474];

• The existence of the purported deed and that it is in the possession or under the con-trol of the defendant (Paragraph 4) [see Consol. Concessions Co. v. McConnell (1919) 40 Cal. App. 443, 445, 180 P. 842];

• Facts showing the deed’s actual invalidity (Paragraph 5) [ Civ. Code § 3412; see Hughes v. Beekley (1927) 85 Cal. App. 313, 316, 259 P. 337];

• Facts showing a reasonable apprehension that if left outstanding the deed may cause serious injury to plaintiff (Paragraph 6) [ Civ. Code § 3412];

• An offer to restore consideration received for the deed (Paragraph 7) [see § 184.150[3][b][iii]];

• Facts establishing a basis for a claim for damages as additional relief (Paragraph8); and

• Facts establishing a basis for a claim for exemplary or punitive damages (Para-graph 9) [ Civ. Code § 3294; see § 184.190[9]].

For further discussion of the allegations necessary to state a cause of action for cancellation of a written instrument, see Ch. 107, Cancellation of Instruments.

[ii] Multiple Grounds of Invalidity

If more than one ground of invalidity exists, each of them must be alleged in separate counts, even if inconsistent [ Dryer v. Dryer (1964) 231 Cal. App. 2d 441, 446, 41 Cal. Rptr. 839; Little v. Smith (1920) 47 Cal. App. 8, 12-15, 189 P. 1059; see North Confidence Min-ing & Dev. Co. v. Morrice (1922) 56 Cal. App. 145, 147, 204 P. 851]. For additional forms of allegation relating to other grounds of invalidity, see §§ 184.151-184.156.

[iii] Restoration of Value Received

As a condition of obtaining cancellation of a voidable deed, the party seeking relief is gen-erally required to restore or offer to restore to the defendant everything of value received in the underlying transaction. However, if the deed is void, as in the case of fraud in the ex-ecution or forgery, restoration is not necessary [see Fleming v. Kagan (1961) 189 Cal. App. 2d 791, 796, 797, 11 Cal. Rptr. 737 (action to cancel note, deed of trust, and contract of sale)]. If the complaint clearly shows that the plaintiff has suffered damages in the trans-action equal to or in excess of the sum that would have to be restored to the defendant, the

plaintiff need not restore or offer to restore what was received from the defendant [ Peter-son v. Wagner (1921) 52 Cal. App. 1, 12, 198 P. 25 (action to cancel contracts of sale); see Ch. 107, Cancellation of Instruments].

[iv] Rescission of Underlying Contract

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In some cases, the right to cancel the deed depends on the right to rescind the underlying contract [see, e.g., Leeper v. Beltrami (1959) 53 Cal. 2d 195, 211-216, 1 Cal. Rptr. 12, 347 P.2d 12]. In these situations, a cause of action for rescission should be included in the complaint. For a discussion and forms for use in an action to rescind a contract, see Ch. 490, Re scission and Restitution .

[v] Damages

In an action for cancellation, the court may grant any relief consistent with the case made by the plaintiff and embraced within the issues, including any monetary relief necessary to do complete equity between the parties [ Wright v. Rogers (1959) 172 Cal. App. 2d 349, 367, 342 P.2d 447; see Oswald v. City of El Centro (1930) 211 Cal. 45, 52, 292 P. 1073 (damages of rental value for term that owner deprived of possession because coerced into ex-ecuting lease)]. Exemplary or punitive damages may also be recovered if the defendant has been guilty of oppression, fraud, or malice [ Civ. Code § 3294; Wright v. Rogers (1959) 172 Cal. App. 2d 349, 368, 342 P.2d 447 (exemplary or punitive damages available in action for cancellation when restitution would have little or no deterrent effect)].

[c] Quieting Title

[i] Elements

By statute, a quiet title complaint must include all of the following allegations: • A description of the property that is the subject of the action. In the case of real prop-

erty, the description must include both its legal description and its street address or common designation, if any (Paragraph 11) [ Code Civ. Proc. § 761.020(a)]. This requirement does not preclude the joinder of several properties or of real and per-sonal property, if appropriate (Paragraph 11) [15 Calif. L. Rev. Comm. 1198 (1979)].

• The title of the plaintiff as to which a determination is sought and the basis of the title (Paragraphs 11, 12) [ Code Civ. Proc. § 761.020(b)].

• The adverse claims to the title of the plaintiff against which a determination is sought (Paragraphs 13-15) [ Code Civ. Proc. § 761.020(c)]. If the plaintiff admits the validity of any adverse claim, the complaint must so state (Paragraph 13) [ Code Civ. Proc. § 762.060(c)]. If the claim or the share or quantity of the claim of a per-son required to be named as a defendant is unknown, uncertain, or contingent, the plaintiff must so state in the complaint. If the lack of knowledge, uncertainty, or contingency is caused by transfer to an unborn or unascertained person or class member, or by a transfer in the form of a contingent remainder, a vested remain-der subject to defeasance, an executory interest, or a similar disposition, the plain-tiff must also state in the complaint, so far as is known to the plaintiff, the name, age, and legal disability, if any, of the person in being who would be en-titled to the claim had the contingency on which the claim depends occurred be-fore the commencement of the action (Paragraph 15) [ Code Civ. Proc. § 762.020(b)].

• The date as of which the determination is sought. If the determination is sought

as of a date other than the date the complaint is filed, the complaint must include a statement of the reasons why a determination as of that date is sought (Paragraph 17) [ Code Civ. Proc. § 761.020(d)].

• A prayer for the determination of the title of the plaintiff against the adverse

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claims [ Code Civ. Proc. § 761.020(e)].

Some cases consider a quiet title action to be one for the recovery of real property or its pos-session, and thus, subject to Code Civ. Proc. § 318, which requires the plaintiff to have been seized or possessed of the property within five years prior to commencement of the ac-tion (Paragraph 16) [see Kenney v. Parks (1902) 137 Cal. 527, 530, 70 P. 556; Schoen-feld v. Pritzker (1967) 257 Cal. App. 2d 117, 121, 64 Cal. Rptr. 592]. That limitation pe-riod does not run against a party in possession [ Muktarian v. Barmby (1965) 63 Cal. 2d 558, 560, 47 Cal. Rptr. 483, 407 P.2d 659]. More importantly, when quiet title is merely inci-dental relief sought to remedy some other wrong, the action is governed by laches or the limi-tation period applicable to the basic cause of action giving rise to plaintiff’s right to re-lief [ Leeper v. Beltrami (1959) 53 Cal. 2d 195, 214, 1 Cal. Rptr. 12, 347 P.2d 12; see § 184.150[4]]. For a complete discussion of the allegations necessary to state a cause of action to quiet title to real property, see Ch. 482, Quieting Title.

[ii] Required Defendants

The plaintiff must name as defendants the persons having adverse claims to the title of the plaintiff against which a determination is sought [ Code Civ. Proc. § 762.010]. If the name of a person required to be named as a defendant is not known to plaintiff, the plaintiff must so state in the complaint and must name as parties all persons unknown in the manner described in § 184.150[3][c][iii] [ Code Civ. Proc. § 762.020(a)]. The court on its own motion may, and on motion of any party must, make any orders that appear appropriate for joinder of any additional parties as are necessary or proper [ Code Civ. Proc. § 762.040(a)].

If a person required to be named as a defendant is dead and the plaintiff knows of a personal representative, the plaintiff must join the personal representative [ Code Civ. Proc. § 762.030(a)]. If a person required to be named as a defendant is dead, or is believed by the plaintiff to be dead, and the plaintiff knows of no personal representative, the plaintiff must state these facts in an affidavit filed with the complaint [ Code Civ. Proc. § 762.030(b)(1); see generally Ch. 15, Affidavits, Certificates, and Declarations]. When it is stated in the affidavit that such person is dead, the plaintiff may join as defendants “the testate and intestate successors of ____________________ (name of deceased per-son), deceased, and all persons claiming by, through, or under such decedent,” naming them in that manner [ Code Civ. Proc. § 762.030(b)(2)].

If a person required to be named as a defendant is believed by plaintiff to be deceased, the person believed to be deceased may be named as a defendant as may that person’s suc-cessors. The successors must be denominated as follows: “the testate and intestate succes-sors of ____________________ (name of person believed to be deceased), believed to be deceased, and all persons claiming by, through, or under such person” [ Code Civ. Proc. § 762.030(b)(3)].

[iii] Unknown Defendants

In addition to the persons required to be named as defendants in the action, the plaintiff may name as defendants “all persons unknown, claiming any legal or equitable right, title, es-tate, lien, or interest in the property described in the complaint adverse to plaintiff’s title,

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or any cloud upon plaintiff’s title thereto,” naming them in that manner (Paragraph 14) [ Code Civ. Proc. § 762.060(a)]. If unknown defendants are named, the plaintiff must name as defendants the persons having adverse claims that are of record or known to the plain-tiff or reasonably apparent from an inspection of the property [ Code Civ. Proc. § 762.060(b)]. Naming unknown defendants and serving them by publication [see § 184.150[7]] will en-title plaintiff to a judgment against all persons known and unknown who were parties to the action and all persons not parties to the action and unknown to plaintiff who had a claim that was not recorded when the lis pendens was filed [ Code Civ. Proc. § 764.030], ex-cept that a person who is in open and actual possession of the property cannot be named as an unknown defendant [ Code Civ. Proc. § 763.010(c)].

Some people also additionally designate testate and intestate successors and “all persons un-known” as DOES. That is not recommended because it differs from the statutory lan-guage of Code Civ. Proc. §§ 762.030(b)(2), (3) and 762.060, by which those defendants are to be designated, and because it may limit the in rem effect of the judgment by limit-ing the number of adverse claimants in those classes [see Code Civ. Proc. § 763.030(b)]. However, fictitious defendants may be named as DOES pursuant to Code Civ. Proc. § 474 [see Code Civ. Proc. § 760.060 (rules governing civil actions generally as applicable in quiet title actions unless they are inconsistent with quiet title provisions)].

[4] Statute of Limitations and Laches Various statutes of limitation have been held to apply to quiet title actions: Code Civ. Proc. § 318 has been applied when the action is essentially one to recover real property or possession of real property; the four-year limitation of Code Civ. Proc. § 434 has been applied when the ac-tion was to cancel a deed; and Code Civ. Proc. § 338(d) has been held applicable to an action for cancellation and recovery of real property on the theory that the gravamen of the action was con-sidered fraud [ Leeper v. Beltrami (1959) 53 Cal. 2d 195, 212, 1 Cal. Rptr. 12, 347 P.2d 12]. The current view is that it is ordinarily necessary to refer to the underlying theory of relief to de-termine which statute applies [ Muktarian v. Barmby (1965) 63 Cal. 2d 558, 560, 47 Cal. Rptr. 483, 407 P.2d 659; Leeper v. Beltrami (1959) 53 Cal. 2d 195, 214, 1 Cal. Rptr. 12, 347 P.2d 12]. When the right to quiet title depends on the right to cancellation, as in this form, the court will look to the basis of the right to cancellation to determine the appropriate statute of limitations [ Leeper v. Beltrami (1959) 53 Cal. 2d 195, 211-216, 1 Cal. Rptr. 12, 347 P.2d 12]. For ex-ample, if the gravamen of the action is fraud, the three-year provision of Code Civ. Proc. § 338(d) applies, even if the relief prayed for is cancellation and the recovery of real property [ Turner v. Mil-stein (1951) 103 Cal. App. 2d 651, 659, 230 P.2d 25]. If the right to cancellation depends on the right to rescind the underlying contract, the action must be brought promptly after discovery of the facts that entitle the plaintiff to rescind [ Leeper v. Beltrami (1959) 53 Cal. 2d 195, 215, 1 Cal. Rptr. 12, 347 P.2d 12; see Civ. Code § 1691].

If the party seeking to quiet title is in possession of the land, it is unnecessary to determine which statute would otherwise apply, because no statute of limitations runs against a party seek-ing to quiet title while the party is in possession of the property [ Muktarian v. Barmby (1965) 63 Cal. 2d 558, 561, 47 Cal. Rptr. 483, 407 P.2d 659]. However, the one-year period of limita-tion on an action to set aside a deed to any taxing agency by reason of a tax delinquency [ Rev. & Tax. Code § 175] applies even if the plaintiff is in possession [ Sears v. County of Calaveras (1955) 45 Cal. 2d 518, 521, 522, 289 P.2d 425]. Additionally, the doctrine of laches may still bar the action to quiet title if the plaintiff’s delay in bringing the action has prejudiced the ad-verse claimant [ Muktarian v. Barmby (1965) 63 Cal. 2d 558, 561, 47 Cal. Rptr. 483, 407 P.2d 659].

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For the foregoing reasons, it may be necessary to insert additional allegations to establish that the action is not barred. For instance, it may be necessary to allege when the plaintiff discovered a particular fraud or mistake or other facts to show that the plaintiff acted soon after discovering the problem.

[5] Verification The complaint must be verified [ Code Civ. Proc. § 761.020].

[6] Jurisdiction and Venue Because only the superior court has jurisdiction in quiet title actions [ Code Civ. Proc. § 760.040(a)], a combined action to cancel a deed and quiet title must be brought in superior court. The action is not a limited civil case [ Cal. Const., art. VI, § 10; Code Civ. Proc. §§ 85, 86, 580(b)(3)]. Jurisdiction over actions for cancellation is discussed in Ch. 107, Cancellation of Instruments. Sub-ject to the power of the court to transfer actions, the superior court in the county where the real property, or some part of it, is situated is the proper court for the trial of an action to cancel a deed and to quiet title to real property [ Code Civ. Proc. §§ 392(a), 760.050(a)]. When title or right to possession is to be tried, or permanent injunctive relief is sought, the case will be classified as an unlimited civil case [see Code Civ. Proc. § 88].

[7] Service of Summons The form, content, and manner of the service of summons in quiet title actions is the same as in civil actions generally [ Code Civ. Proc. § 763.010(a)]. If unknown defendants are named, there must also be service by publication and posting [ Code Civ. Proc. § 763.010(b)]. The require-ments for service by publication and posting are discussed in Ch. 482, Quieting Title. The pro-cedure for service of summons is set forth in Ch. 518, Service of Summons and Papers.

[8] Lis Pendens Immediately on the commencement of a quiet title action, which occurs by filing the complaint, the plaintiff must file a lis pendens in the office of the county recorder of each county in which any real property described in the complaint is located [ Code Civ. Proc. § 761.010(a)]. The lis pen-dens gives constructive notice of the pendency of the action to subsequent purchasers or encum-brancers [ Code Civ. Proc. § 405.24]. For forms of lis pendens, see Ch. 348, Lis Pendens.

[9] Cross References For a discussion and forms relating to amendment of pleadings for use when an unknown defendant is sued by a fictitious name, see Ch. 21, Amended and Supplemental Pleadings

For a discussion and procedures for use in an action for cancellation of a written instrument, and for forms of allegations for use in such an action where the rescission of the underlying trans-action is sought or where facts are discovered making the deed voidable, as well as of a form of judgment for cancellation of a deed, see Ch. 107, Cancellation of Instruments

For a discussion and alternative forms of captions and introductions, see Ch. 108, Captions and Introductions

For a discussion of and forms for use in seeking injunctive relief in connection with an action for cancellation of a deed, see Ch. 303, Injunctions

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For a discussion and procedures for use in actions to quiet title, and for forms of complaints for use in actions to quiet title to tax-deeded property and to quiet title against the United States and of an answer and judgment for use in quiet title actions, see Ch. 482, Quieting Title

[10] Decisions [a] Jurisdiction

Actions to try title to real property are within jurisdiction of superior court. Martin v. Pacific S.W. Royalties (1940) 41 Cal. App. 2d 161, 167, 106 P.2d 443

[b] Quieting Title General rule that fraud must be specifically pleaded applies to quiet title actions. Moss Estate Co. v. Adler (1953) 41 Cal. 2d 581, 584, 261 P.2d 732

[c] Statute of Limitations and Laches No statute of limitations runs against party seeking to quiet title while party is in possession of property, although doctrine of laches may still bar action. Muktarian v. Barmby (1965) 63 Cal. 2d 558, 560, 561, 47 Cal. Rptr. 483, 407 P.2d 659

When right to quiet title depends on right to rescind, plaintiff must act promptly or is barred un-der Civ. Code § 1691. Leeper v. Beltrami (1959) 53 Cal. 2d 195, 214, 1 Cal. Rptr. 12, 347 P.2d 12 Plaintiff is required to prove seisin or possession pursuant to Code Civ. Proc. § 318 when ac-tion for reformation of deed is merely incidental to action to quiet title based on plaintiff’s ad-verse possession. Safwenberg v. Marquez (1975) 50 Cal. App. 3d 301, 310, 311, 123 Cal. Rptr. 405

Action to cancel deed on ground of nondelivery is governed by four-year period of limitation pro-vided in Code Civ. Proc. § 343. Estate of Pieper (1964) 224 Cal. App. 2d 670, 689, 37 Cal. Rptr. 46

Action to cancel deed is generally governed by four-year period of limitation provided in Code Civ. Proc. § 343. Zakaessian v. Zakaessian (1945) 70 Cal. App. 2d 721, 725, 161 P.2d 677

Action to cancel deed is governed by three-year period of limitation provided in former Code Civ. Proc. § 338(4) (now see Code Civ. Proc. § 338(d)) when gravamen of action stated involves fraud or mistake. Zakaessian v. Zakaessian (1945) 70 Cal. App. 2d 721, 725, 161 P.2d 677; see Turner v. Milstein (1951) 103 Cal. App. 2d 651, 659, 230 P.2d 25

[d] Venue Action is transitory and proper county for trial is county in which defendants, or some of them, reside when primary purpose of action is to cancel note and deed of trust securing it,

and action to quiet title is merely incidental thereto. Nelson v. Crocker Nat’l Bank (1975) 51 Cal. App. 3d 536, 540, 541, 124 Cal. Rptr. 229 ; Vaughan v. Roberts (1941) 45 Cal. App. 2d 246, 253, 113 P.2d 884

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County in which real property or some part of it is situated as proper county for trial of action for cancellation of recorded contract conveying timber and to quiet title to real property. Kejr v. Construction Engineers, Inc. (1952) 111 Cal. App. 2d 817, 819, 245 P.2d 21

Action for cancellation of deed as involving determination of right or interest of plaintiff in real property, and venue as therefore in county in which real property or part of it is situated. Stanley v. Barney (1932) 123 Cal. App. 139, 140-142, 10 P.2d 1022

[11] Text References Witkin, California Procedure, vol. 3, Actions, §§ 344-388, 459, 618 (4th ed. 1996); vol. 5, Pleading, §§ 613, 633 (4th ed. 1997)

California Forms of Pleading and Practice--Annotated Copyright 2012, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

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web viewa complaint seeking both to quiet title and to cancel the deed under which the defendant ....

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