State of California v. Western Natural Rubber, Inc.

• Decision Date: 14 November 1991
• Docket Number: No. E007218,E007218
• Court: California Court of Appeals Court of Appeals
• Parties: STATE of California, Plaintiff and Respondent, v. WESTERN NATURAL RUBBER, INC., et al., Defendants and Appellants.

Page 495

1 Cal.Rptr.2d 495

235 Cal.App.3d 1495

STATE of California, Plaintiff and Respondent, v. WESTERN NATURAL RUBBER, INC., et al., Defendants and Appellants.

No. E007218.

Court of Appeal, Fourth District, Division 2, California.

Nov. 14, 1991.

Certified For Partial Publication ^*

Reid & Hellyer, Enos C. Reid and Alexandra S. Ward, Riverside, for defendants and appellants.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., and Randall B. Christison, Deputy Atty. Gen., for plaintiff and respondent.

HOLLENHORST, Associate Justice.

Western Natural Rubber, Inc., Eberhard and Brigitte Kleinmann and Otto and Johanna Wittschier (referred to as "property owners") appeal from that portion of the judgment of condemnation in which the trial court denied them relief on their cross-complaint for inverse condemnation.

I FACTS

In March of 1987, the State of California brought an eminent domain action to acquire certain property located in Riverside County for the purpose of constructing a state prison. Named as defendants were the property owners along with ten other parties. (For convenience, we will refer to this as the direct action.) Contending that the State had failed to diligently attempt service of the complaint and summons within six months after the action was filed, property owners brought a cross-complaint for inverse condemnation requesting an order requiring the State to pay the property owners the market value for their interest in the property and for damages for interference with possession and use of the property from the date of the filing of the State's action. (Code Civ.Proc., § 1245.260.) ¹ (For convenience, we will refer to this cross-complaint as the inverse action.)

The State eventually served all defendants and the case proceeded to trial on May 22, 1989. The inverse action was tried to the court at the conclusion of the trial on the direct action.

At the conclusion of the "trial" on the inverse action, the court found in favor of the State. Specifically the court found that the State had attempted service of the complaint and summons on all defendants by mail and therefore had satisfied the requirements of section 1245.260. Judgment was entered and as noted, property owners timely appealed from that portion of the judgment denying them relief on their inverse action. The judgment of condemnation on the State's direct action was not appealed and a final order for condemnation was filed on April 10, 1990. ²

II

LETTER BRIEFS ^**

III SECTION 1245.260

The court found that after filing the complaint in March of 1987, the State attempted to serve all defendants residing within the United States by mail pursuant to section 415.30 by the end of March. Service was also attempted by certified mail on those defendants residing outside the states during that period. Certain of the defendants, such as the property owners, did respond to the service by mail and The State undertook searches to locate those domestic defendants, some of whom it was later discovered were defunct corporations, which the State had been unable to serve by mail. By March of 1988, those parties were served by publication. Of the foreign defendants, all were served by mail with the exception of Dr. Ure, an Austrian. Dr. Ure apparently did not respond to this attempted service. As Austria is not a signatory to the Hague Convention, the State had to arrange for service through the U.S. embassy in Austria and service was completed in early 1989.

promptly filed responsive pleadings. Others were not effectively served by this process and the mail was returned as undeliverable.

Property owners contend the trial court erred in finding that the State's single attempt to serve all of the defendants by mail satisfied section 1245.260. They contend that the State was required to continue to diligently attempt service throughout the six months following the filing of the direct action.

Section 1245.260 as originally enacted in 1975 provided simply that if the government entity did not file its eminent domain action within six months after adopting a resolution of necessity for condemnation, the owner of the property could file an action for inverse condemnation to force the entity to take the property and pay compensation and/or to recover damages for interference with the possession and the use of the property caused by the adoption of the resolution of necessity. It also provided that if the direct action was filed or the resolution of necessity rescinded before the inverse action was commenced, the owner could not thereafter file an inverse action; any inverse action under this section had to be filed within one year and six months after the adoption of the resolution of necessity; and that as an alternative to filing an inverse action the owner could obtain a writ of mandamus to compel the entity to either rescind its resolution or commence its direct action.

In 1978, the statute was amended to close a loophole. Apparently, it was discovered that some public entities were filing their direct actions within six months after the adoption of resolution of necessity but were not serving the complaints, thereby "frustrating the purpose of the statute." (Sen.Com. on Judiciary, Background Information.) Accordingly section 1245.260 was amended to allow the owner to commence an inverse action if the entity has filed its direct action but "has not within six months after the commencement of such proceeding attempted diligently to serve the complaint and the summons relating to such proceeding." The amendment also added that "Service by mail pursuant to Section 415.30 shall constitute a diligent attempt at service within the meaning of this section."

Here, relying on declarations filed by the parties in connection with the motion for leave to file the inverse action, the court found that the State had attempted service by mail pursuant to section 415.30 and that having done so the State was not required to do anything further to effectuate service within six months. ⁵

In support of their contention that more than a single attempt at service is required, property owners contend that the phrase "attempted diligently" is ambiguous and must be interpreted. To support their interpretation of this phrase as requiring more than a single attempt at service by The State argues that the purpose in adding the phrase stating that service by mail constitutes a diligent attempt at service was intended to clarify the otherwise ambiguous phrase "attempted diligently." We agree.

                mail, property owners refer to the legislative materials.  First they refer us to the Senate Committee on Judiciary which states "Under the bill, only a diligent [235 Cal.App.3d 1501] attempt at service of summons and complaint would be required.  [p] If such diligent attempts fail, the general rule that service must be made within 3 years of the filing of the complaint would govern the action."   Property owners also note that when the reference to service by mail was added, it was added at the suggestion of the Association of California Water Agencies.  This association also had recommended in its letter to Senator Sieroty that the statute specifically provide that "[f]ailure to complete and return the acknowledgment as provided in Section 415.30 of the Code of Civil Procedure shall preclude an action in inverse condemnation under this Section."   From the use of the word "attempts" in the Judiciary report and the failure of Senator Sieroty to propose this additional language, property owners argue that the Legislature intended more than one attempt at service to be made and intended to require the public entity to continue to diligently attempt service throughout the six-month period
                

When the words of the statutes are clear and unambiguous, there is no need for statutory interpretation. (In re Waters of Long Valley Creek Stream System (1979) 25 Cal.3d 339, 348, 158 Cal.Rptr. 350, 599 P.2d 656.) Here the statute clearly defines what constitutes a diligent attempt within the meaning of section 1245.260. Resort to legislative materials is therefore unnecessary.

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