ARONSON, J., Concurring and Dissenting. I concur with the majority’s conclusion the trial court prejudicially erred by entering a default judgment against defendant and appellant HSBC Mortgage Services Inc. As the majority explains, Code of Civil Procedure section 764.010 unmistakably prohibits entry of judgment by default in quiet title actions.1 Accordingly, I agree with my colleagues that we must reverse the default judgment and remand the matter to the trial court for further proceedings.2
I dissent, however, from the majority’s conclusion that a defendant in default may present evidence or otherwise participate in the hearing to determine whether the plaintiff has established a right to quiet title in the subject property. The majority recognizes the oddity of allowing a defendant in default to contest the plaintiff’s evidence, but claims this result is compelled by section 764.010. I disagree. The statute merely requires the trial court to hear evidence of a defendant’s claims, which the plaintiff must present to quiet title in the property under dispute. But the majority sees in section 764.010 a right for a defaulted defendant to participate in the trial, a right heretofore unrecognized in California jurisprudence. In reaching this result, the majority fails to consider the purpose prompting the Legislature’s [1510]statutory framework for adjudicating defaults. (See People v. Pieters (1991) 52 Cal.3d 894, 899 [276 Cal.Rptr. 918, 802 P.2d 420] [courts must “not construe statutes in isolation, but rather read every statute ‘with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness’ ”].) Instead, the majority substitutes a murky and unclear procedure that would allow a defaulted defendant to participate in the plaintiff’s quiet title action.
I also write separately to emphasize that section 764.010 does not authorize a plaintiff (or, under the majority’s interpretation of the statute, a defendant) to rely on declarations to prove (or disprove) a quiet title case. Although the majority concludes section 764.010 requires a hearing in open court to adjudicate a quiet title claim, it fails to address whether evidence may be presented through declarations as Harbour Vista did below.
I. A Defaulted Defendant May Not Participate in Any Hearing or Trial on the Plaintiff’s Quiet Title Action
Based on section 764.010’s language stating the trial court “shall in all cases . . . hear such evidence as may be offered respecting the claims of any of the defendants,” the majority concludes defaulted defendants may present evidence and oppose a plaintiff’s efforts to quiet title in the subject property. According to the majority, “ ‘[a]ny’ defendant has to include a defendant whose default has been taken, and ‘all cases’ must mean even cases in which a default has occurred.” (Maj. opn. ante, at p. 1504.)
The majority concedes section 764.010 does not spell out who may offer evidence “ ‘respecting the claims of any of the defendants.’ ” (Maj. opn. ante, at p. 1502.) Section 764.010 does not state the trial court shall consider evidence that any of the defendants may offer respecting their claims. Nonetheless, the majority concludes the “only sensible alternative” (maj. opn. ante, at p. 1502) is that any defendant, even a defendant in default, may offer evidence “respecting the claims of any of the defendants.” According to the majority, it would be absurd to interpret section 764.010 as allowing only the plaintiff to present evidence on claims asserted by the defendants. The majority, however, fails to consider the nature of quiet title the actions and the evidentiary burden a quiet title plaintiff faces.
Quiet title is a statutory cause of action. (Yeung v. Soos (2004) 119 Cal.App.4th 576, 580 [14 Cal.Rptr.3d 502] (Yeung).) “ ‘Such an action is brought, as authorized by the statute, “for the purpose of determining” any adverse claim that may be asserted therein by a defendant to the land in controversy; and this does not mean that the court is simply to ascertain, as against a plaintiff shown to have a legal interest, whether or not such [1511]defendant has some interest, but also that the court shall declare and define the interest held by the defendant, if any, so that the plaintiff may have a decree finally adjudicating the extent of his own interest in the property in controversy. The object of the action is to finally settle and determine, as between the parties, all conflicting claims to the property in controversy, and to decree to each such interest or estate therein as he may be entitled to. . . . [Citations.]’ [Citation.]” (Lechuza Villas West v. California Coastal Com. (1997) 60 Cal.App.4th 218, 242 [70 Cal.Rptr.2d 399].)
The quiet title statutory scheme requires a plaintiff to name as defendants “the persons having adverse claims to the title of the plaintiff against which a determination is sought.” (§ 762.010.) Moreover, a quiet title complaint must be verified (§ 761.020) and must identify the “specific adverse claims as to which the plaintiff seeks to quiet title.”3 (Cal. Law Revision Com. com., 17A West’s Ann. Code Civ. Proc. (2011 supp.) foll. § 761.020, p. 82; see also § 761.020, subd. (c).)
In much the same way that a declaratory relief action requires an actual and present controversy, a quiet title action requires “antagonistic property interest[s].” (Friends of the Trails v. Blasius (2000) 78 Cal.App.4th 810, 831 [93 Cal.Rptr.2d 193].) In other words, a plaintiff cannot obtain a quiet title judgment unless someone claims a conflicting interest in the same property as the plaintiff. (Ibid.)
To obtain a judgment quieting title, a plaintiff not only must prove an interest in the property (Preciado v. Wilde (2006) 139 Cal.App.4th 321, 326 [42 Cal.Rptr.3d 792]), but also “must prove a title in himself [or herself] superior to that of defendant” (Gerhard v. Stephens (1968) 68 Cal.2d 864, 918 [69 Cal.Rptr. 612, 442 P.2d 692]; see Hines v. Hubble (1956) 144 Cal.App.2d 830, 837 [301 P.2d 592]). Before entering judgment in any quiet title action, the court must “examine into and determine the plaintiff’s title against the claims of all the defendants.” (§ 764.010.)
These requirements demonstrate it is not absurd to interpret section 764.010 to allow a quiet title plaintiff to present evidence “respecting the claims of any of the defendants.” (See California School Employees Assn. v. Governing Bd. of South Orange County Community College Dist. (2004) 124 Cal.App.4th 574, 588 [21 Cal.Rptr.3d 451] [courts “must exercise caution using the ‘absurd result’ rule; otherwise, the judiciary risks acting as a ‘ “super-Legislature” ’ by rewriting statutes to find an unexpressed legislative intent”].) Indeed, a quiet title plaintiff likely will need to present at least some [1512]evidence regarding a defendant’s claim to the property to obtain a judgment quieting title against that defendant, even if the defendant defaulted.
The majority responds that “we cannot really expect plaintiff’s counsel to present evidence or argue in favor of defendant’s adverse claim” due to “both the nature of an adversarial proceeding and an attorney’s duty of loyalty to his or her client . . . .” (Maj. opn. ante, at p. 1504.) The majority, however, conflates the plaintiff’s burden to identify the defendant’s competing claim to the property with advocating the defendant’s claim.
The plaintiff does not advocate the defendant’s claim by presenting evidence showing the basis and scope of the defendant’s claim. To the contrary, the plaintiff advocates his or her own claim by presenting evidence respecting the defendant’s claim because the plaintiff cannot meet the burden to show a superior title without first showing the title the defendant claims. The plaintiff is not required to present evidence establishing the validity of the defendant’s claim, but rather the plaintiff need only present evidence describing the defendant’s claim.
Requiring a party to present evidence or authority respecting an opponent’s claim is not at all unusual in our adversarial system. Indeed, parties are frequently required to identify or present evidence and authority adverse to their own claims or interests. (See, e.g., Batt v. City and County of San Francisco (2007) 155 Cal.App.4th 65, 82-83, fn. 9 [65 Cal.Rptr.3d 716] [counsel has ethical obligation to disclose applicable legal authority adverse to Ghent’s position]; Pierotti v. Torian (2000) 81 Cal.App.4th 17, 32 [96 Cal.Rptr.2d 553] [appellate court sanctioned counsel for failing to discuss applicable, adverse authority]; Rio Linda Unified School Dist. v. Superior Court (1997) 52 Cal.App.4th 732, 740 [60 Cal.Rptr.2d 710] [defendant moving for summary judgment based on plaintiff’s lack of evidence must disclose all evidence material to plaintiff’s claim, including evidence adverse to defendant]; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [92 Cal.Rptr. 162, 479 P.2d 362] [appellant challenging sufficiency of evidence to support trial court ruling must present all material evidence, not merely favorable evidence].)
The majority’s interpretation of section 764.010 also ignores a default’s legal effect and the difference between a default and a default judgment. “ ‘[T]he “default and default judgment are separate procedures.” ’ [Citation.]” (Cisneros v. Vueve (1995) 37 Cal.App.4th 906, 910 [44 Cal.Rptr.2d 682].) A default may be entered against any defendant who fails to respond to a complaint within the time permitted by statute. (§ 585, subds. (a)-(c).) The court clerk has a ministerial duty to enter a defendant’s default on the plaintiff’s request when the court’s records show the plaintiff served the [1513]defendant and the defendant failed to file a responsive pleading. (Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 899 [102 Cal.Rptr.3d 140].)
“The entry of a default terminates a defendant’s rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered. [Citations.] ‘A defendant against whom a default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff’s right of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings.’ [Citation.]” (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-386 [202 Cal.Rptr. 204].)
Once a default is entered against a defendant, the plaintiff ordinarily may apply to the court for a default judgment awarding the relief sought in the complaint.4 (§ 585, subds. (b) & (c).) The court is required to hear the evidence offered by the plaintiff and render judgment in the plaintiff’s favor “as appears by the evidence to be just,” but not in excess of what is sought in the complaint. (Ibid.) To obtain the requested relief, the plaintiff need only make a prima facie showing because the defendant admits the material allegations of the complaint by defaulting. (Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361-362 [85 Cal.Rptr.2d 82].) Consequently, a trial court errs if it applies the usual preponderance of the evidence standard at a default prove-up hearing. (Ibid.) Section 585, subdivision (d), authorizes the trial court to receive the plaintiff’s evidence through affidavits or declarations in lieu of live testimony.
A quiet title cause of action is governed by the statutes and rules generally applicable to civil actions unless otherwise inconsistent with the quiet title statutes. (§ 760.060.) Because section 764.010 states, “[t]he court shall not enter judgment by default,” the foregoing procedures for obtaining a default judgment in civil actions are inconsistent with the quiet title statutes and therefore inapplicable in quiet title actions.
Section 764.010, however, does not prohibit the entry of a default in quiet title actions. (Yeung, supra, 119 Cal.App.4th at p. 581.) Nothing in the quiet title statutes is inconsistent with the trial court entering a default against a defendant who fails to answer and thereafter prohibiting that defendant from participating in the action without first vacating the default. The majority acknowledges that section 764.010 does not prohibit the trial court from [1514]entering a default against a defendant (maj. opn. ante, at pp. 1504-1505), but nonetheless concludes the default essentially has no legal effect because the defendant still may appear in the action and oppose the plaintiff’s efforts to obtain a quiet title judgment.5
Under the majority’s interpretation of section 764.010, a defendant in default may avoid participating in a quiet title action until the hearing or trial on the plaintiff’s complaint, and then appear at that hearing, object to the plaintiff’s evidence, and present evidence in opposition to the plaintiff’s claim without giving the plaintiff notice of any kind. This sort of trial by ambush runs afoul of all notions of due process and fair play forming the foundation for our adversarial system and nothing in the quiet title statutory scheme supports this result.6
By prohibiting default judgments and requiring the trial court to “examine into and determine the plaintiff’s title against the claims of all the defendants,” section 764.010 ensures a plaintiff affirmatively proves the right to a judgment quieting title in his or her name. Section 764.010 prevents a plaintiff from relying on the lower, prima facie standard of proof that otherwise applies in civil actions when a defendant defaults. It also prevents a plaintiff from relying on the complaint’s material allegations that are ordinarily deemed admitted by a defendant who defaults. Simply stated, when a defendant defaults in a quiet title action, section 764.010 requires the plaintiff to prove the case like any other quiet title plaintiff. The only difference is that a defaulted defendant has no right to present evidence or otherwise oppose the plaintiff’s case.
[1515]According to Yeung, interpreting section 764.010 as a prohibition against default judgments is a misnomer because “ ‘it seems only to require a higher standard of evidence at the “prove-up” hearing [].’ [Citation.]” (Yeung, supra, 119 Cal.App.4th at p. 580.) Section 764.010, however, does not impose a higher standard of evidence. When a defendant defaults in a quiet title action, the plaintiff must satisfy the same standard of evidence as any other quiet title plaintiff. Section 764.010 merely excludes quiet title actions from the procedures available for proving up default judgments in ordinary civil actions. It does not, however, grant a defaulted defendant any right to participate in the action without first vacating the default.
II. A Plaintiff May Not Rely on Declarations to Quiet Title
Although the majority concludes section 764.010 requires a hearing in open court where the judge must “examine into and determine the plaintiff’s title against the claims of all the defendants,” the majority also states that oral argument is not required and stops short of prohibiting a plaintiff from using declarations. I agree a hearing in open court is required, but write separately to emphasize that a plaintiff may not prove his or her quiet title claim through declarations, as Harbour Vista sought to do in this case.
As out-of-court statements offered for the truth of the matter asserted, declarations constitute hearsay and are inadmissible unless a statute or other authority creates an exception and authorizes their use. (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1354 [63 Cal.Rptr.3d 483, 163 P.3d 160] [“It is well established, however, that declarations constitute hearsay and are inadmissible at trial, subject to specific statutory exceptions”]; North Beverly Park Homeowners Assn. v. Bisno (2007) 147 Cal.App.4th 762, 778 [54 Cal.Rptr.3d 644]; United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 344 [282 Cal.Rptr. 368] (conc. opn. of Spencer, R J.) [“In the absence of statutory authorization for use, an affidavit is hearsay”]; Rowan v. City Etc. of San Francisco (1966) 244 Cal.App.2d 308, 314, fn. 3 [53 Cal.Rptr. 88] [“Affidavits being hearsay may not be used in evidence except where permitted by statute”].)
When the Legislature intends to allow litigants to offer evidence through declarations, it enacts a statute authorizing their use.7 For example, section [151658]5, subdivision (d), provides that a trial court may accept evidence through declarations in lieu of live testimony when a plaintiff seeks to prove its case against a defaulted defendant in an ordinary civil action. (§ 585, subd. (d) [“the court in its discretion may permit the use of affidavits, in lieu of personal testimony, as to all or any part of the evidence or proof required or permitted to be offered, received, or heard”].)
Similarly, Family Code section 2336, subdivision (a), allows the court to enter a default judgment of dissolution upon proof of the grounds for dissolution presented through declarations. (Fam. Code, § 2336, subd. (a) [“No judgment of dissolution or of legal separation of the parties may be granted upon the default of one of the parties or upon a statement or finding of fact made by a referee; but the court shall, in addition to the statement or finding of the referee, require proof of the grounds alleged, and the proof, if not taken before the court, shall be by affidavit”].)
Section 2009 permits litigants to present evidence on law and motion matters and other miscellaneous proceedings through declarations; “An affidavit may be used to verify a pleading or a paper in a special proceeding, to prove the service of a summons, notice, or other paper in an action or special proceeding, to obtain a provisional remedy, the examination of a witness, or a stay of proceedings, and in uncontested proceedings to establish a record of birth, or upon a motion, and in any other case expressly permitted by statute.”
Nothing in section 764.010, however, permits a quiet title plaintiff to rely on declarations. (See Yeung, supra, 119 Cal.App.4th at p. 581.) The hearsay exception section 585, subdivision (d), creates for default “prove ups” in ordinary civil actions does not apply in quiet title actions because, as explained above, section 764.010 prohibits entry of judgment by default in quiet title actions.
III. Conclusion
In sum, the majority’s interpretation of the quiet title default statute potentially confers unwarranted litigation advantages for a defendant in default. Now a defendant in a quiet title action may choose to default and avoid revealing defense weaknesses during discovery, tactically waiting to contest the plaintiff’s case at the hearing with evidence the plaintiff might [1517]otherwise have shown to be unreliable. I doubt the Legislature intended to create litigation advantages for a defendant in default, which upends the underlying rationale behind established default procedure. The express terms of section 764.010 do not permit a defaulted defendant to participate in the hearing, and the untoward results of the majority’s decision underscore how they misinterpret this section. Consequently, I dissent from this portion of the majority’s opinion.
All statutory references are to the Code of Civil Procedure unless otherwise noted.
The error here is not harmless, as plaintiff and respondent Harbour Vista, LLC (Harbour Vista), contends. The trial court erred in allowing Harbour Vista to prove its case through inadmissible hearsay, and committed the structural error of evaluating Harbour Vista’s evidence under the lower evidentiary burden generally applicable to a default prove-up hearing in civil cases. (See In re Angela C. (2002) 99 Cal.App.4th 389, 394 [120 Cal.Rptr.2d 922] [“ ‘structural’ error or a ‘structural defect[ in the constitution of the trial mechanism . . . affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself’ defies analysis by a harmless error standard. [Citation.] A structural error requires reversal without regard to the strength of the evidence or other circumstances”].)
Section 760.010, subdivision (a), defines “ ‘[c]Iaim’ ” under the quiet title statutes to include “a legal or equitable right, title, estate, lien, or interest in property or cloud upon title.”
In an action on a contract or judgment that seeks money damages only, a plaintiff may apply to the clerk for a default judgment. (§ 585, subd. (a).)
The majority responds that its holding does not deprive a default of its legal effect because the default cuts off the defendant’s right to receive notice of any future hearing dates or documents filed in the action and therefore the defendant likely will not learn of the hearing to adjudicate title until it is too late. (Maj. opn. ante, at p. 1505.) I do not agree.
Regardless of whether a default is entered against a defendant, the defendant has no right to receive notice or any papers other than amended pleadings until the defendant appears in the action. (§ 1010 [“No bill of exceptions, notice of appeal, or other notice or paper, other than amendments to the pleadings, or an amended pleading, need be served upon any party whose default has been duly entered or who has not appeared in the action or proceeding” (italics added)].) Moreover, in today’s information era, court dockets, filings, and calendars are readily available to virtually everyone at the click of a mouse. A defendant who is so inclined may easily decide not to appear after being served, but nonetheless monitor all filings and hearing dates in an action.
The majority suggests the trial court may mitigate any prejudice to a plaintiff caused by a defendant appearing for the first time at the hearing on the merits by continuing the hearing to allow the plaintiff time to respond to the defendant’s evidence or arguments. Nothing in section 764.010, however, entitles a plaintiff to a continuance as a matter of right. Whether to grant a continuance is vested in the trial court’s discretion. Moreover, the delay a continuance causes also prejudices the plaintiff and still provides a defaulted defendant a means in which to engage in gamesmanship.
Most statutes refer to affidavits rather than declarations, but section 2015.5 authorizes a declaration to be used whenever the law requires an affidavit: “Whenever, under any law of this state or under any rule, regulation, order or requirement made pursuant to the law of this state, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may with like force [1516]and effect be supported, evidenced, established or proved by the unsworn statement, declaration, verification, or certificate, in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California. ...”