Code of Civil Procedure (CCP) section 872.520 - Names and Nature of Interest Unknown
Code of Civil Procedure section 872.520 requires the plaintiff in a partition lawsuit to declare any unknown property interests in the complaint. Following this statute protects the plaintiff from claims of misjoinder, while also protecting those existing “unknown” interests from unwarranted defaults. Oftentimes, this information is found later in discovery, and the plaintiff can amend the complaint accordingly.
Code of Civil Procedure section 872.520 states
(a) If the name of a person described in Section 872.510 is not known to the plaintiff, the plaintiff shall so state in the complaint and shall name as parties all persons unknown in the manner provided in Section 872.550.
(b) If the ownership or the share or quantity of the interest of a person described in Section 872.510 is unknown, uncertain, or contingent, the plaintiff shall so state in the complaint. If the lack of knowledge, uncertainty, or contingency is caused by a transfer to an unborn or unascertained person or class member, or by a transfer in the form of a contingent remainder, vested remainder subject to defeasance, executory interest, or similar disposition, the plaintiff shall also state in the complaint, so far as is known to the plaintiff, the name, age, and legal disability (if any) of the person in being who would be entitled to ownership of the interest had the contingency upon which the right of such person depends occurred prior to the commencement of the action.
(c) The court shall upon its own motion or upon motion of any party make such orders for joinder of additional parties and for appointment of guardians ad litem pursuant to Sections 372, 373, and 373.5 as are necessary or proper.
(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 tenants in common. They move into the home and start living together.
Unfortunately, the couple’s relationship deteriorates, and they break up. Julie wants to sell the house and move on, while Shawn wants to keep the house. Julie sues Shawn for partition by sale.
Before initiating her lawsuit, Julie learns that Shawn gave part of his ownership interest to a third-party family member. Shawn refuses to say who he gave part of his interest to, and Julie investigates but cannot figure it out for herself. Here, Julie must indicate these facts in her complaint pursuant to CCP § 872.520.
Therein, she must state that there is an unknown person with interest in the property. She must also state in the complaint that this unknown person’s share of the interest is unknown to her as of the time of filing. With this, Julie has complied with CCP § 872.520. Julie can now use discovery to find out who the mystery third-party is. Alternatively, Shawn may move to add the third-party to the complaint on his own motion.Law Revision Commission Comments (CCP § 872.520)
Section 872.520 is derived from the last portion of former Section 753. Subdivision (a) incorporates the requirement, formerly found in Section 756, that “all persons unknown” be joined. Subdivision (b) adds the requirement of an indication of possible additional parties, and subdivision (c) provides for joinder of such parties and protection of their interests.Assembly Committee Comments
Section 872.520 is one of many partition statutes without an official comment from the Legislature. This makes sense, though, because the Legislature more or less 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.” Thus, it’s fair to assume that the Legislature’s intent with Section 872.520 was substantially in line with that of the Law Revision Commission.
As to the comment’s substance, it merely provides the derivation for section 872.520. They key takeaways from the statute are that first, subsection (a) is mandatory, not permissive. “The word ‘shall’ is mandatory.” (County of Orange v. Bezaire (2004) 117 Cal.App.4th 121, 129.) Here, the statute explains that if the plaintiff is aware of an interest in the property (they know their former co-owner deed their interest to a family member, for instance) then they must name the unknown party and interest.
The other interesting note is that subsection (c) provides for any party to make a motion for joinder to the court. So if the defendant is aware of a life estate on the property, for instance, they can move to join the life tenant despite their statute as a defendant. Alternatively, the court may do so on its own motion (this is further evidence of the broad equitable powers courts have in partition actions, generally).