Handling Evictions of Unknown Occupants Before Trial
| Publication year | 2018 |
| Author | Steven J. André |
Steven J. André
Steven J. André graduated from UC Berkeley with degrees in Political Science and Legal Studies. In 1987, he received his law degree from UC Hastings and was admitted to practice law in California. He presently maintains a general practice in Carmel, California with an emphasis upon litigating real property issues. Steve's other publications are available at https:// works.bepress.com/stevenjandre/.
What happens when you are a new property owner after a foreclosure, a landlord seeking possession, or someone wrongfully dispossessed of real property, and you find you have occupants or subtenants who you did not know about and who refuse to identify themselves? You bring your common law ejectment or statutory eviction action (unlawful detainer, forcible entry and/or detainer) against your known defendant(s). But what about unknown occupants?
In 1991, the state legislature helped you out by enacting California Code of Civil Procedure section 415.46,1 resulting in a new Judicial Council form called a "Prejudgment Claim of Possession" that assists with the eviction of unknown occupants.2 This article explains how that Judicial Council form and the associated procedure works, discussing how to serve process, use default procedures, get a judgment, and obtain a writ that will be effective against unknown occupants of the premises.
Your process server might ascertain the names of unknown occupants, serve those persons as Does (noting the Doe number on both the summons and the proof of service), and you would later amend the complaint under section 474 to substitute the true name of that person for the fictitious appellation.3 Where that does not happen, use of the section 415.46 procedure effectively puts a burden upon the unknown occupant. That procedure requires service by a registered process server, sheriff, or marshal to inquire as to whether there are other adults in possession. The sheriff or marshal may serve those adults in possession directly or effect substitute service upon them by serving the named defendant with a prejudgment claim form, additional copies of the summons and complaint, and mailing those documents by first-class mail.4 Alternatively or in addition, those documents may be conspicuously affixed in a manner "likely to give notice to an occupant" and thereafter mailing them.5 If the "unknown occupant" fails to timely file a response within ten days, then that occupant may be barred from asserting a subsequent claim to a right to possession.
Where, after due diligence, no one is found on the premises to inquire of or to serve, there is no provision in section 415.46 addressing how to effect service upon any unknown occupants. Commonly, when tenants evade service, or the process server otherwise cannot serve by personal or substitute service, service is effected by posting and mailing by certified mail per section 415.45.6 However, some jurisdictions may not be amenable to using this approach for service upon "unknown occupants."7
In Arrieta v. Mahon, the California Supreme Court recognized that due process requires that an unknown occupant be afforded notice and an opportunity for a hearing to assess that person's rights before that person can be locked out by the sheriff executing a writ.8 The pertinent issue after Arrieta should be whether the requisite modicum of notice has been afforded, not whether a process server is able to make inquiry as to who is actually an occupant. Where the court determines that the Order to Post ("OTP") procedure is adequate to give notice to the named defendants, there is no reason why this method would not also provide adequate due process notice of the eviction action to unknown occupants residing at the same premises. Where the OTP is not restricted to named, known occupants, the cautious practitioner or process server may want to send the documents by regular first-class mail, as called for by section 415.46, in addition to the certified mailing called for in the OTP. This would avoid the need to argue substantial compliance with section 415.46 should any challenge to the service be raised by an occupant.9
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The procedure enacted by the legislature in 1991 through sections 415.46 and 1174.25 supplements the postjudgment procedure previously enacted as section 1174.3, following the California Supreme Court's 1982 decision in Arrieta. The earlier enactment of section 1174.3 allowed an occupant, from the point after judgment when the sheriff posts the writ until the time the sheriff arrives to perform the lockout, to make a claim and obtain a hearing from the court to address that person's claim. To qualify to submit a postjudgment claim under this procedure, the occupant must have occupied the premises when the complaint was filed and still occupy the property.
The section 1174.3 procedure also has different hearing timelines depending upon whether the occupant posts, rent when submitting the occupant's claim.10 Persons who occupied the premises after a complaint was filed, are subject to the judgment for possession against the named known occupants when the complaint was filed.11 The hearing permits the occupant, who was present on the premises when the lawsuit was filed, to exercise the opportunity to overcome the presumption that he or she entered into possession under the defendant.12
The prejudgment procedure spelled out by sections 1174.25 and 415.46 involves similar qualifications and hearing rights, but alters the timing from the postjudgment procedure. It advances the occupant's opportunity to have the hearing but terminates the right to make a claim if the occupant fails to act in a timely manner. The legislature enacted sections 415.46 and 1174.25 to provide a plaintiff with an opportunity to require unknown occupants to intervene and get their claims adjudicated before a writ issues. If the unknown occupant fails to come forward in the ten days allowed, the right to make a claim, including at the postjudgment stage, is waived. Therefore, proper service of the prejudgment notice bars an unnamed occupant who does not timely file a prejudgment claim from objecting later, such as when the sheriff arrives after posting the writ to perform the lockout. This ability to prevent a postjudgment claim has been eclipsed in the postforeclosure eviction context13 by an amendment to the prejudgment statutes, making the bar inapplicable to tenants in that situation.14 However, as a procedural matter, how do you block an occupant who fails to file a claim within the ten-day period from a subsequent attempt to delay the eviction by using the pre- or postjudgment claim procedures? That is the subject of the next section.
As the plaintiff, you need to get the court, default clerk, writ clerk, and the sheriff on the same page so any unknown occupants are either added to the case or will be ignored at the time of the lock out. Since inception of section 415.46, each court has devised its own processes to implement this statute. Suppose you get your service of process done and the time passes for any unknown occupants to come forward and file the prejudgment claim qualifying as a general appearance in the case and causing that occupant to be added to your complaint as a defendant. You want to avoid having the sheriff refuse to execute on your writ because it does not allow enforcement as to other persons present at the premises. To avoid this situation, do you...
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