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 CommentsThe 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.)