Code of Civil Procedure (CCP) Section 873.050 - Persons Ineligible to Be a Referee

Code of Civil Procedure section 872.010 873.050 describes who cannot be appointed as a partition referee in a partition lawsuit. This statute is important because courts must avoid conflicts of interest when appointing a partition referee.

Code of Civil Procedure section 873.050 states

None of the following persons shall be appointed a referee under this title:

(a) A clerk or deputy clerk of the court.

(b) A former or present partner or employee of the judge.

(c) A relative within the third degree of the judge or the judge's spouse or the spouse of such a relative.

(d) An owner of any interest in the property that is the subject of the action.

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

What Is an Example?

“Shawn” and “Julie” are an unmarried couple. They decide to buy a home as joint tenants and move in together.

Unfortunately, Shawn and Julie’s relationship doesn’t work out, and they break up. They cannot agree on what to do with the house. Shawn wants to sell the house and move on with his life, so he sues for partition by sale.

Eventually, the court orders the property to be sold and the sale proceeds distributed. At this point, the court is ready to appoint a referee but must take CCP § 873.050 into account.

Anyone too closely related to the judge cannot be appointed as a referee. This includes clerks, the judge’s former and present partners and employees, the judge’s spouse, the judge’s relatives, and the spouses of the judge’s relatives.

Additionally, the owners of the property at issue in the partition lawsuit cannot be appointed. So, Shawn and Julie cannot be appointed as referees over their own property.

The court appoints a realtor who does not fall under any of the categories in CCP § 873.050 to act as partition referee. This is so the referee can be as much of a third-party neutral actor as possible.

Law Revision Commission Comments (CCP § 873.050)

1976 Addition

Section 873.050 continues provisions formerly found in Section 763.

Assembly Committee Comment

As is the case for many of the partition statutes, section 873.050 does not include a an “official” Assembly Committee Comment from the California Legislature. This is usual, however, because the Legislature essentially endorsed an overall adoption of the Law Revision Commission suggestions when it passed the new partition statutes in 1976.

In fact, 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.” This demonstrates that the intent of the Legislature was substantially in line with that of the Revision Commission.

Here, the comment points out that this statute is based on former section 763. That former section provided, in relevant part, “. . . The court must appoint as referee any person… provided further that no person shall be appointed as referee who is a clerk of the court or deputy clerk, or partner or employee of the judge, or person related to the judge or to his wife within the third degree, or who is married to a relative of the judge within the third degree, or who owns any interest or estate in the property.”

In practice, section 873.050 warrants little in terms of clarification. It makes clear that certain persons cannot be referees because of potential conflicts of interest. For example, the plaintiff, even if they were a broker, could not be the referee in their own partition because of the potential for that person to unfairly inflate their own interest of the property value of the home on the market.

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