Code of Civil Procedure (CCP) Section 872.230 - Partition Complaint
Code of Civil Procedure section 872.230 outlines the necessary information a plaintiff must have in their complaint. As such, this statute is crucial for litigants to obey if they want to file a proper complaint. Any deviation might expose the plaintiff to a costly demurrer for failure to state a claim.
Code of Civil Procedure section 872.230 states
The complaint shall set forth:
- A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any.
- All interests the plaintiff has or claims in the property.
- All interests of record or actually known to the plaintiff that persons other than the plaintiff have or claim in the property and that the plaintiff reasonably believes will be materially affected by the action, whether the names of such persons are known or unknown to the plaintiff.
- The estate as to which partition is sought and a prayer for partition of the interests therein.
- Where the plaintiff seeks sale of the property, an allegation of the facts justifying such relief in ordinary and concise language.
(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. They decide to buy the house as joint tenants so that they each get fifty percent ownership interest.
Later, Shawn and Julie’s relationship deteriorates. Julie wishes to sell the house and move on with her life. Shawn, however, wants to keep the house because he believes it could be a good investment. Julie decides to sue Shawn for partition. For the partition lawsuit to be successful, Julie’s complaint must comply with Code of Civil Procedure section 872.230.
First, Julie states the property’s street address in Los Angeles and attaches a detailed legal description to the complaint. Next, Julie states that she has a fifty percent interest in the property. Julie then states that Shawn is the other fifty percent owner, and Julie is unaware of anyone else who has an interest in the property. After that, Julie writes her prayer in the complaint asking for a partition by sale of the property, with for the sale proceeds to be distributed according to the parties’ interests.
Finally, since Julie is seeking to sell the property, she must write in her complaint an allegation of facts justifying the sale. Julie states that a physical division would not be financially feasible. Julie further claims that a physical division would dramatically reduce the value of the property. With this, Julie’s complaint for partition is legally proper and complete.Law Revision Commission Comments (CCP § 872.220)
Section 872.230 is new. In addition to the information required by this section, other information may be necessary. See, e.g., Section 872.220 (information relating to title report).
Subdivision (a) requires a description of the property that is the subject of the action. It should be noted that several properties may be joined in one complaint even though located in different counties. See, e.g., Murphy v. Superior Court , 138 Cal. 69, 70 P. 1070 (1902). And, real and personal property may be joined in one action. Section 872.240. As to joinder of property under varying ownership, see Middlecoff v. Cronise , 155 Cal. 185, 100 P. 232 (1909).
Subdivision (b) requires an allegation of all the plaintiff's interest in the property. For interests sufficient to maintain the action, see Section 872.210. Where the plaintiff has a lien on the property as well as an interest sufficient to maintain the action, he must allege his lien as well as his other interest.
Subdivision (c) supersedes the first portion of former Section 753. Unlike the former provision that required all interests to be set out regardless of whether the interests would be affected, subdivision (c) limits the requirement to only those interests the plaintiff reasonably believes will be materially affected by the partition action. Incorporation of a title report should be sufficient to satisfy this requirement as to recorded interests but not as to unrecorded interests known to the plaintiff. It should be noted that there may be interests of record in personal property filed to perfect a security interest under the Commercial Code.
Partition of some or all of the interests in the property may be obtained. Subdivision (d) requires the plaintiff to indicate which estate or estates are intended to be affected by the action. The estates in real property include estates of inheritance, for life, and for years. Civil Code § 761. For provisions relating to parties defendant, see Article 4 (commencing with Section 872.510).
Subdivision (e) requires an allegation of facts justifying a sale of the property where the plaintiff seeks sale. Should the plaintiff fail to seek sale at the time of filing the complaint, he may do so thereafter by amending the complaint subject to the general rules governing amendment. See Sections 471.5, 472, and 473. The defendant may request sale by appropriate pleading in the answer. See Section 872.410.Assembly Committee Comments
The Assembly Committee comment to Section 872.230 is a verbatim repetition of the Revision Commission comment above. This is actually because when the Legislature passed the new partition statutes, they more or less endorsed an overall adoption of the Law Revision Commission’s suggestions. The introduction to Assembly Bill 1671 (which ushered in this statute among others) states that the Revision Commission’s recommendations “reflect the intent of the Assembly Committee… in approving the various provisions of Assembly Bill 1671.”
Republication aside, the Commission comments here provide invaluable advice to any potential litigant seeking a partition.
For instance, failing to allege facts justifying a sale at the initial pleading stage can wind up hampering the plaintiff months down the line once their ability to amend as of right has expired. And even if the plaintiff timely amends, they are still stuck spending additional time and money they shouldn’t have if they’d only remembered to include facts justifying a sale.
As such, section 872.230 should be the first statute any plaintiff looks at before beginning their partition action.