Code of Civil Procedure (CCP) Section 872.320 - Partition Publication
Code of Civil Procedure section 872.320 governs service by publication in partition actions. It’s a straightforward statute that provides for additional steps once service by publication has been granted by the court. This statute is important because sometimes service by publication may be necessary, so parties must know the required steps to achieve proper service.
Code of Civil Procedure section 872.320 states
Where the court orders service by publication, such order shall be subject to the following conditions:
(a) The plaintiff shall post, not later than 10 days after the date the order is made, a copy of the summons and complaint on the real property that is the subject of the action.
(b) The plaintiff shall record, if not already recorded, a notice of the pendency of the action.
(c) The publication shall describe the property that is the subject of the action. In addition to particularly describing the property, the publication shall describe the property by giving its street address, if any, or other common designation, if any; but, if a legal description of the property is given, the validity of the publication shall not be affected by the fact that the street address or other common designation recited is erroneous or that the street address or other common designation is omitted.
(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. Eventually, Shawn and Julie get into a big fight. The fight escalates, and Julie leaves. Shawn has no idea where Julie goes after the fight.
Shawn wants to sell the house and move on, so he sues Julie for partition. Shawn attempts to find Julie’s location, but to no avail. Since Shawn cannot locate Julie despite his efforts, the court orders service by publication. Shawn’s service must therefore comply with CCP § 872.320.
Subject to the court’s order of service by publication, Shawn publishes his court papers in the local newspaper. A week after the court’s order, Shawn posts a copy of the summons and complaint on the Los Angeles house. Shawn also records a notice of the pendency of the action with the county recorder. With this, Shawn complies with CCP § 872.320. Now he must wait for Julie’s reply, if she responds at all.Law Revision Commission Comments (CCP § 872.320)
Section 872.320 supersedes former Section 757. While publication will be pursuant to Section 415.50, subdivisions (a) and (b) are new requirements that supplement the publication provisions of Section 415.50 in order to increases the likelihood that persons interested in the property will receive notice of the proceeding. Subdivision (c) continues a provision in the last sentence of former Section 757; the language concerning the street address or other common designation is drawn from Section 692 (execution). See also Civil Code § 2924f (sale under deed of trust). Where personal property is involved, an appropriate manner of special service may be ordered. See Section 413.30.Assembly Committee Comments
Like with many of the partition statutes, section 872.320 does not include an “official” Assembly Comment under its wording. This is primarily due to the Legislature’s overall adoption of the Law Revision Commission’s suggestions when it passed the new partition statutes in 1976. The introduction to Assembly Bill 1671 (which ushered in this statute among others) states that the Commission’s recommendations “reflect the intent of the Assembly Committee… in approving the various provisions of Assembly Bill 1671.” As such, it’s reasonable to assume that the Legislature endorsed the Revision Commission comment for this statute.
That said, section 872.320 is merely another statute addressing summons, and its wording is unambiguous. Provided the plaintiff has submitted the requisite affidavit required to achieve service by publication (see CCP § 415.50), then this statute requires the plaintiff to both post a copy of the complaint on the property, and file and record a lis pendens.