Code of Civil Procedure (CCP) section 872.510 - Joinder of Defendants

Code of Civil Procedure section 872.510 requires the plaintiff to include anyone who has an interest in the property as a defendant to the partition lawsuit. This statute is important for two reasons. First, it increases efficiency by having the plaintiff sue all involved parties at once, rather than in individual lawsuits. And second, it ensures proper joinder to avoid potential interest holders coming in once an interlocutory judgment of partition has been entered.

Code of Civil Procedure section 872.510 states:

The plaintiff shall join as defendants in the action all persons having or claiming interests of record or actually known to the plaintiff or reasonably apparent from an inspection of the property, in the estate as to which partition is sought.

(Amended by Stats. 1976, c. 73, p. 110, § 6.)

“Shawn” and “Julie” are an unmarried couple who bought a house in Los Angeles together as tenants in common. Julie’s mother helps them with the purchase of the home, and in exchange receives a small ownership interest percentage. Shawn and Julie move in and begin living together in the new home.

Unfortunately, Shawn and Julie’s relationship later deteriorates, and the couple breaks up. Shawn wants to sell the property and move on with his life, while Julie wants to keep the property. Shawn sues Julie for partition by sale.

Here, Shawn knows that Julie’s mother has an interest in the property he is seeking to partition. To comply with CCP § 872.510, Shawn must join Julie’s mother in the lawsuit as a defendant. That way, Shawn can sue both Julie and her mother in the same lawsuit instead of suing them separately. This saves all the parties, and the court, time and money in litigation.   

1976 Addition

Section 872.510 supersedes former Section 754 (no person having a lien or “conveyance” need be made a party unless of record). Under Section 872.510, only persons having interests in the estate or estates as to which partition is sought need be joined. This provision is elaborated in the succeeding sections of this article. It should be noted that “interest” includes liens and that joinder of additional parties may be necessary under Section 389 (mandatory joinder).

For the effect of failure to join the holder of a recorded interest, see Section 874.220; for the effect of failure to join holders of interests actually known to the plaintiff or reasonably apparent from an inspection of the property, see Section 874.230.

The Assembly Committee comment to Section 872.510 repeats in full the Revision Commission comment above. This is primarily because the Legislature essentially endorsed an overall adoption of the Law Revision Commission suggestions when it passed the new partition statutes in 1976.

Indeed, 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.”

Semantics notwithstanding, the comment here is useful because it expressly points out that “interest” includes lienholders. As such, litigants filing a partition suit should be careful to name as defendants any and all parties holding a lien against the property, such as bank that financed the mortgage or the beneficiary (MERS is a common example) under a deed of trust.

Along those lines, because California financing typically involves deeds of trust, there is some dispute as to whether a plaintiff must name both the trustee and the beneficiary. While the trustee’s function may be limited to invoking the right of sale on default, they are nonetheless the holder of a record interest.

Case law suggests that plaintiffs need only name beneficiaries. In discussing the “interests” the plaintiff must set forth in the Complaint, the Legislative Committee limited the requirement to “only those interests the plaintiff reasonably believes will be materially affected by the partition action.” (Leg. Comm. Comment, CCP § 872.230.)

As such, the question is whether the trustee to a deed of trust holds an interest that will be materially affected by the partition. They do not. In fact, twice the Supreme Court has held to the contrary.

“Because a deed of trust typically secures a debt owed to the beneficiary, it is the beneficiary, not the trustee, whose economic interests are threatened when the existence or priority of the deed of trust is challenged.” (Monterey v. S. P. Partnership v. W.L. Bangham, Inc. (1989) 49 Cal.3d 454, 461.) Indeed, the Court held that when the beneficiary, not the trustee was a party to the action, “the real party in interest was before the court.” (Anderson v. Alexander(1920) 184 Cal. 265.)