Code of Civil Procedure (CCP) Section 872.410 - Contents of an Answer to a Partition Complaint

Code of Civil Procedure section 872.410 provides the required content in the defendant’s answer for partition lawsuits. As a rule of pleading, this statute is essential for any litigant being forced to answer a partition Complaint. Failure to adequately allege one’s interest in the subject property may forfeit an argument on appeal.

Code of Civil Procedure section 872.410 states

The answer shall set forth:

(a) Any interest the defendant has or claims in the property.

(b) Any facts tending to controvert such material allegations of the complaint as the defendant does not wish to be taken as true.

(c) Where the defendant 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 as joint tenants. They move in and begin living together in the new home. They each own one-half interest in the property. Shawn and Julie generally share the expenses of the property equally.

After several years, their relationship deteriorates. Shawn wants to keep the property, while Julie wants to sell the property. Shawn sues for partition in kind. In his complaint, Shawn alleges that he paid for most of the expenses of the property.

In Julie’s answer, she asserts her one-half interest in the Los Angeles house. Julie also contends that she and Shawn paid for the expenses equally, contrasting Shawn’s claims in his complaint. Julie also alleges that a partition in kind would be impractical and inequitable, so the property should be partitioned by sale. With this, Julie’s answer meets the requirements of CCP § 872.410.

Law Revision Commission Comments (CCP § 872.410)

1976 Addition

Section 872.410 continues portions of former Section 758; subdivision (c) is new. The provision of former Section 758 that the defendant's failure to answer within the time allowed by law would result in the allegations of the complaint being taken as true is now contained in Section 431.20. It should be noted that the requirement in subdivision (a) that the defendant list his interest in the property includes liens as well as other interests claimed by the defendant.

Assembly Committee Comments

As with many of the partition statutes, section 872.410 does not include an “official” Assembly Comment by the California Legislature. This is mainly 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 safe to assume that the Legislature endorsed the Revision Commission comment for this statute.

In practice, though, section 872.410 is plainly a rule of pleading, albeit an important one. Interpreting its predecessor statute, the California Supreme Court stated that the defendant’s stating of his interest in the property within the answer is “a requirement [that] was intended by the Legislature to be mandatory.” ( Ritzman v. Ritzman (1928) 190 Cal. 505, 506.)

Thus, a failure to allege an interest at the trial court level could lead to a court of appeal dismissing any argument to the contrary. “Under these circumstances we are unable to conceive of any process of reasoning by which the defendant can justly claim to have been aggrieved thereby.” ( Id .)

As such, litigants responding to a complaint should take care to abide by the requirements of this statute. Failure to allege all of their interest in the property may lead to a demurrer to the answer or, worse, forfeiture of certain arguments on appeal. (see Paplar, Inc. v. Thayer (1953) 115 Cal.App.2d 333, 338.)

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