Code of Civil Procedure section 872.550 requires the plaintiff to name unknown persons claiming interest in the property at issue in a specific manner in the partition lawsuit. This statute is important because it provides the requisite statutory guidelines for allowing the plaintiff to properly include unknown parties in their partition suit.
Code of Civil Procedure section 872.550 states
Where partition is sought as to all interests in the property, the plaintiff may join as defendants “all persons unknown claiming any interest in the property,” naming them in that manner.
(Amended by Stats. 1976, c. 73, p. 110, § 6.)
What Is an Example?“Shawn” and “Julie” are an unmarried couple who decide to move in together. They buy a home in Los Angeles as tenants in common. The couple then begin living together.
Eventually, the couple’s relationship deteriorates, and they decide to break up. Shawn wants to sell the entire property and move on with his life, so he sues Julie for partition by sale.
Shawn finds out that, at some point, Julie gave part of her ownership interest to an unknown third party. Shawn cannot find out the identity of the third party but wants to continue with the partition lawsuit.
Due to this unknown party, Shawn joins the unknown third party as a defendant by including “all persons unknown claiming any interest in the property” in his complaint, pursuant to CCP § 872.550. Even if there was no mystery third party, since Shawn is seeking a partition to all interests in the property he could cover his bases by including this statement in his complaint.
Law Revision Commission Comments (CCP § 872.550)1976 Addition
Section 872.550 is new. It is derived from Section 1250.220(c) (eminent domain) and provides a means whereby the plaintiff may give the partition action an in rem effect. For provisions relating to service by publication, see Sections 872.320 and 872.330. For the effect of the judgment, see Section 874.210.
Assembly Committee CommentsAs is the case for several partition statutes, the Legislative Committee comment to section 872.550 is a simple republication of the Revision Commission comment. This is primarily due to the fact that the Legislature essentially endorsed an overall adoption of the Law Revision Commission suggestions when it passed the new partition statutes in 1976.
This is evidenced by 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 a reasonable assumption that the Legislature’s intent with Section 872.550 was substantially in line with that of the Law Revision Commission.
As for the substance of the comment, it points to eminent domain law as the basis for its derivation. (CCP § 1250.220 (c).) In the law of eminent domain, a government entity can file a condemnation suit to “take” (forcefully buy-out) private property by providing just compensation to the owner. Just compensation, though, is a Constitutional requirement. Failure to provide it will usually mean a failure for the condemnation suit to proceed.
As such, Code of Civil Procedure section 1250.220 ensures the providing of an opportunity for just compensation to unnamed parties. As to subdivision (c) of that statute in particular, there, the Law Revision comment provides that plaintiffs may also proceed with naming unknown interest holders via CCP section 474. (see Bayle-Lacoste & Co. v. Superior Court (1941) Cal.App.2d 636.) Regardless, when the fictitiously named party’s real name is discovered, the pleading must be amended accordingly to include it. (Alameda County v. Crocker (1899) 125 Cal. 101.)
Given the similarities between these statutes, and the comment’s invocation of section 1250.220, litigants can look to this particular eminent domain statute for some guidance in navigating section 872.550.