Code of Civil Procedure (CCP) Section 872.330 - Partition Publication as to Certain Defendants

Code of Civil Procedure section 872.330 regulates the effect of service by publication in partition actions. While partition actions allow for service by publication, this statute ensures that publication is only effective as to those named to receive it, preventing unjust defaults.

Code of Civil Procedure section 872.330 states:

(a) Where the court orders service by publication, the publication may:

(1) Name only the defendants to be served thereby.

(2) Describe only the property in which the defendants to be served thereby have or claim interests.

(b) Judgment based on failure to appear and answer following service under this section shall be conclusive against the defendants named in respect only to property described in the publication.

(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.

For Shawn’s service by publication, Shawn arranges to publish his court papers through the local newspaper. In Shawn’s publication, he names Julie as the defendant and describes the Los Angeles property. Additionally, Shawn’s publication states that if Julie fails to appear and answer the service then judgment against her will be conclusive. With this, Shawn complies with CCP § 872.330.

Law Revision Commission Comments (CCP § 872.330)

1976 Addition

Section 872.330 is new. It is derived from Section 1250.125 (eminent domain).

West's Ann. Cal. C.C.P. § 872.330, CA CIV PRO § 872.330.

Assembly Committee Comments

The Assembly Committee Comment to section 872.320 is a simple reiteration of the Revision Commission comment. This is due in large part to the Legislature’s general affirmation 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 to the comment itself, it states that it’s derived from Code of Civil Procedure section 1245.2. Interestingly enough, the same year the Legislature passed the partition statutes in 1976, it also repealed section 1245.2. Now, the substance of that former law can be found in current section 1250.125.

In practice, section 872.320 is unambiguous. It plainly states that service by publication is only effective as to those sought to be served in that manner. Take the example above. If the court grants Shawn the ability to serve Julie by publication, then that service is only valid as to Julie.

So if an unnamed third party appears after default has been entered against Julie, claiming an interest in the property, then Julie’s default is not effective against the third party, even though the court allowed for service by publication. (see Cmty. Dev. Com v. Shuffler (1988) 198 Cal.App.3d 450, 454.)

Client Reviews
“We were in need of a real estate attorney. Eli Underwood provided excellent legal advice and services. He explained everything well and followed through with all important issues that needed attention. We found him to be reliable, courteous, patient and extremely professional. We highly recommend Mr. Underwood without any reservations.” I.S.
"I own a real estate investment company that operates across multiple states (California, Washington, Oregon, Montana, and more), whenever I run into an issue that needs legal attention, Eli is my first call. I've been working with him for years. He is an amazing attorney and I highly recommend him." Thank you for your help Sir!" T.W.
"Mr. Underwood is a fantastic Lawyer with extraordinary ethics. He responds quickly, which is rare these days, and he is very knowledgeable in his craft. It was a pleasure working with him and we will definitely use his services in the future if needed. Thank you for your help Sir!" M.O.
"Eli took our case and controlled every hurdle put before us. I one time commented to him that he must love his job because it seemed that he was always available. When talking about my case to anyone I always bring up where, I believe, the other parties Lawyer tried to take advantage of my wife and me. Eli stopped him in his tracks. On top of it being easy to work with Eli, it was a pleasure to have had him represent us. We were in good hands." E.T
"We were in need of an attorney with considerable knowledge of real estate law and the legal issues related to property ownership. Eli Underwood went above and beyond our expectations. In keeping us abreast of our suit, his communication skills were outstanding. This talent was especially demonstrated when dealing with the apposing counsel. We feel this gave us a tremendous advantage over the opposing party that resulted in us reaching a successful outcome. I would highly recommend Eli Underwood as we found him to be an exceptional attorney." P.B.
"In our need for legal services we found Eli to be well informed and on top of our case and our needs. Our's was not an ordinary case as it was a case with many facets. It was a very convoluted case. There were multiple owners involved in a property dispute where one of the owners sued the rest of the owners with a Partition Suit. Needless to say Eli was instrumental in helping us resolve our differences and gained us a profitable sale all with good end results for all. If you hire Eli Underwood you will not be disappointed!" M.A.