Code of Civil Procedure (CCP) section 827.530 - Personal Representatives

Code of Civil Procedure section 872.530 requires the plaintiff to join a deceased defendant’s personal representative or their successor in the partition lawsuit. This statute is important because it allows the plaintiff the opportunity to initiate a partition lawsuit even against a deceased party.

Code of Civil Procedure section 872.530 states:

(a) If a person described in Section 872.510 is dead and the plaintiff knows of a personal representative, the plaintiff shall join such personal representative as a defendant.

(b) If a person described in Section 872.510 is dead, or is believed by the plaintiff to be dead, and the plaintiff knows of no personal representative:

(1) The plaintiff shall state these facts in an affidavit filed with the complaint.

(2) Where it is stated in the affidavit that such person is dead, the plaintiff may join as defendants “the testate and intestate successors of ----------- (naming such deceased person), deceased, and all persons claiming by, through, or under said decedent,” naming them in that manner.

(3) Where it is stated in the affidavit that such person is believed to be dead, the plaintiff may join such person as a defendant, and he may also join “the testate and intestate successors of ----------- (naming such person) believed to be deceased, and all persons claiming by, through, or under such person,” naming them in that manner.

(Amended by Stats. 1976, c. 73, p. 110, § 6.)

What Is an Example?

“Shawn” and “Julie” are an unmarried couple who bought a house in Los Angeles together as tenants in common. Shawn and Julie move into the home and start living together.

Shawn’s friend, Moe, helps them purchase the property and contributes to payments on the property. In exchange, Moe owns a small ownership percentage in the property. After several years, Moe dies of natural causes.

Unfortunately, Shawn and Julie’s relationship eventually deteriorates, and the couple breaks up. They cannot agree on what to do with the home. Shawn wants to sell the house and move on with his life, so he sues Julie for partition by sale.

Shawn knows that Moe owned an interest in the property and is deceased. Shawn does not know if Moe has a personal representative. Thus, when Shawn files his partition complaint, Shawn also files an affidavit stating that Moe is deceased. In the affidavit, Shawn joins Moe’s testate and intestate successors as defendants. With this, Shawn has complied with the requirements of CCP § 872.520.

Law Revision Commission Comments (CCP § 872.530)

1976 Addition

Section 872.530 is new. It is derived from Section 1250.220(b) (eminent domain).

Assembly Committee Comments

The Assembly Committee comment to Section 872.530 is a simple reiteration the Revision Commission comment above. As with all the partition statutes, this is because the Legislature endorsed an overall adoption of the Law Revision Commission suggestions when it passed the new partition statutes in 1976.

In fact, the introduction to Assembly Bill 1671 (the bill that contained the new partition laws) states that the Revision Commission’s recommendations “reflect the intent of the Assembly Committee… in approving the various provisions of Assembly Bill 1671.” This demonstrates that the intent of the Legislature was substantially in line with that of the Revision Commission.

As for the substance of the comment, it points to eminent domain law as the basis for its  inspiration. (CCP § 1250.220.) In the law of eminent domain, a government entity can file a condemnation suit to “take” (forcefully buy-out) private property by providing just compensation to the owner. Just compensation, though, is a Constitutional requirement. Failure to provide it will usually mean a failure for the condemnation suit to proceed.

As such, Code of Civil Procedure section 1250.220 ensures the providing of an opportunity for just compensation to unnamed parties. Like with partitions, the naming of defendants is basically within the control of the plaintiff. (see People v. Shasta Pipe etc. Co. (1968) 264 Cal.App.2d 520, 537.) Thus, the code provides for unnamed defendants claiming an interest in the property to participate in the proceedings.

As to deceased defendants in particular, the Law Revision comment to section 1250.220 states that the section’s provisions are designed to avoid waiting for the appointment and qualification of a decedent’s personal representative. Simply speaking, probate can take a long time. But if the plaintiff knows of a personal representative, then they must name them in the complaint. (see Monterey County v. Cushing (1890) 83 Cal. 507.)

Given the similarities between these statutes, and the comment’s invocation of section 1250.220, litigants can look to this particular eminent domain statute for some guidance in navigating section 872.530.

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