Code of Civil Procedure (CCP) Section 872.310 - Partition Summons
Code of Civil Procedure section 872.310 governs the service of summons for partition lawsuits, which is the same as civil actions. This statute is important because it provides a statutory basis for service by publication.
Code of Civil Procedure section 872.310 states
(a) The form, content, and manner of service of summons shall be as in civil actions generally.
(b) Service on persons named as parties pursuant to Sections 872.530(b) and 872.550, and on other persons named as unknown defendants, shall be by publication pursuant to Section 415.50 and the provisions of this article.
(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 joint tenants. They move in and begin living together in the new home.
After several years, their relationship deteriorates. They cannot agree on what to do with their Los Angeles home, so Shawn sues Julie for partition. In order to properly initiate the lawsuit, Shawn must send Julie service of summons for the partition action in compliance with CCP § 872.310.
To comply with CCP § 872.310, Shawn must send service of summons in generally the same way as civil lawsuits. Shawn sends Julie a court-provided summons form and a copy of his complaint through the mail. With this, Julie is put on notice that she is being sued and Shawn complies with CCP § 872.310.Law Revision Commission Comments (CCP § 872.250)
Section 872.310 supersedes former Section 756.
The provision of former Section 756 that the summons must contain a description of the property is not continued since the property will already be described in the complaint that accompanies the summons. See Section 872.230(a).
The provision of former Section 756 that the summons be directed to all persons “named” as defendants is continued in subdivision (a) which incorporates the general provisions governing the contents of summons in civil actions. See Section 412.20(a)(2) (requiring the summons to contain the names of the parties to the action).
Subdivision (b) makes clear that, where unknown parties (Sections 872.520, 872.550, or otherwise by court order) or heirs (Section 872.530(b)) are involved, service on such parties must be by publication. This continues in part the first sentence of former Section 757. For additional provisions relating to service by publication, see Sections 872.320 and 872.330.Assembly Committee Comments
The Assembly Committee comment to Section 872.310 is word-for-word republication of the Revision Commission comment above. This is because the Legislature essentially 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.”
Here, the comments reiterate the clear-cut wording of the statute allowing for service by publication on unknown defendants. As such, the statute references and incorporates the requirements of Code of Civil Procedure section 415.50. This means that Plaintiffs will be expected to abide by the requirements of section 415.50 to achieve service by publication.
In other words, plaintiffs cannot simply name “unknown” persons claiming an interest in the property and think their work is done. Instead, they’ll need to submit an affidavit to the court demonstrating that these “unknown” persons cannot “with reasonable diligence” be served in another matter. ( Donel Inc., v. Badalian (1978) 87 Cal.App.3d 327, 332.)
And “reasonable diligence” denotes a “thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney.” ( Watts v. Crawford (1995) 10 Cal.4th 743, 749, fn.5.) Put simply, service by publication will not be granted if the plaintiff is just checking the boxes. Mere formal compliance with the statute will not suffice. ( Donel, Inc. , 87 Cal.App.3d at 333.)