Code of Civil Procedure (CCP) Section 872.030 - Partition Rules of Practice

The California Code of Civil Procedure plays a pivotal role in shaping the legal landscape of civil actions. The California Partition Law starts at section 872.010 and ends at section 874.323. Among the partition provisions, section 872.030 highlights the importance of consistency in the application of laws in partition actions. Section 872.030 applies the general rules of civil actions to partition actions unless they are inconsistent with the partition statute. If the Partition Law differs from the general sections of the Code of Civil Procedure, the Partition Law trumps the other section because partition actions are tailored to the unique nature of partition disputes and often have specialized requirements.

Code of Civil Procedure section 872.030 states:

The statutes and rules governing practice in civil actions generally apply to actions under this title except where they are inconsistent with the provisions of this title.

(Added by Stats. 1976, Ch. 73.)

For example, “Bob” and “Vanessa” both inherited a fifty percent interest in a property. Vanessa would like to sell the property, but Bob refuses. Because a private sale cannot be completed without Bob’s approval, Vanessa filed a partition action against Bob seeking a partition of the property and sale. The court agreed that a partition and sale of the property was the proper remedy instead of a physical division. A court appointed referee is needed to manage the property and conduct the sale pursuant to the partition order.

Under Code of Civil Procedure section 837.040, if both parties consent to a referee nominee, the court shall appoint that nominee as referee. However, Bob and Vanessa could not agree on a referee nominee so the court appointed one. Bob objected on the grounds that the appointment without both parties consent violated Code of Civil Procedure section 640. Section 640 mandates that if the parties do not agree on the selection of the referee, then each party shall submit up to three nominees for appointment and the court shall select a referee from among the nominees.

However, Code of Civil Procedure section 837.040 comments that absent agreement among the parties, the choice of a referee is in the discretion of the court. Therefore, there’s an inconsistency because section 640 requires the parties to submit nominees for the court to choose from to appoint a referee while section 837.040 allows a court to directly appoint a referee without a nomination process. Code of Civil Procedure section 872.030 is relevant because it codifies that the partition statute should be applied if there is an inconsistency with general statutes and rules governing civil actions.

Because section 873.040 falls within the partition statute, it trumps section 640. According to section 873.040, the court can appoint a single referee without the consent of both parties because Bob and Vanessa could not agree on a single referee nominee. Therefore, the court appointment of a referee that neither Bob nor Vanessa nominated was valid and he or she can conduct the sale of the property.

1976 Addition

Section 872.030 makes clear that, although partition is nominally a civil action, this title contains some special procedural provisions that apply to partition despite general rules to the contrary. For example, the partition provisions governing referees apply in partition actions notwithstanding any general provisions to the contrary that might be found in Chapter 6 (commencing with section 638) of Title 8 of Part 2 of the Code of Civil Procedure (references and trials by referees).

When the Law Revision Commission recommended Assembly Bill 1671 as a comprehensive revision of the law relating to partition of real and personal property, they found the California Legislature to be open to virtually all of the Commission’s recommendations. In fact, the official Assembly Committee introduction states that the Law Revision Commission’s proposal “reflects the intent of the Assembly Committee… in approving the various provisions of Assembly Bill 1671.”

As a result, there are some statutes throughout California’s Partition Law, like this one, where there is no official Assembly Committee comment.

In these instances, it’s up to the appellate courts to glean legislative intent from both the statute’s language and historical context. Section 872.030 hasn’t received much interpretive attention over the years. Recently, though, the 4th District Court of Appeal cited to the Law Revision Commission Comments for this statute as indicative of the Legislature’s intent at the time, leaving little doubt that the absence of an Assembly comment was due to the Assembly’s agreement with the Law Revision Commission. (see Starcevic v. Pentech Financial Services, Inc. (2021) 66 Cal.App.5th 365, 378-379.)