California Code of Civil Procedure 872.030 is the California partition statute that provides definitions for terms used throughout the code for partition actions in California. The statute provides that:
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.
California Code of Civil Procedure § 872.030
One court explained the importance of this statute in the context of California Code of Civil Procedure § 872.040 as follows:
Although we conclude the language of the statute is conclusive as to the intent of the Legislature, we find support upon reading section 872.040 in context. The section immediately preceding it is section 872.030, which provides that, unless inconsistent with the provisions of the title, “[t]he statutes and rules governing practice in civil actions generally apply” to partition actions. The comments to section 872.030 highlight that “this title contains some special procedural provisions that apply to partition despite general rules to the contrary.” (Cal. Law Revision Com. coms., 17A pt. 2 West’s Ann. Code Civ. Proc. (2015 ed.) foll. § 872.030, p. 149 [1976 addition].)
Starcevic v. Pentech Financial Services, Inc. (2021) 66 Cal.App.5th 365, 378–379
Law Revision Commission Comments to California Code of Civil Procedure § 872.030
In 1976, the California Law Revision Commission explained California Code of Civil Procedure § 872.030 as follows:
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).
Partition Referee Appointments are Governed by the Partition Statutes, Not Code of Civil Procedure sections 638 and 639
Some parties to a partition may be confused as to whether the generally applicable “referee” provisions of Code of Civil Procedure sections 638 and 639 apply given the specific partition statutes, notably Code of Civil Procedure § 873.010, governing partition referees.
This can be relevant since Rules of Court, Rule 3.904 is part of Chapter 1 entitled “Reference by Agreement of the Parties Under Code of Civil Procedure Section 638.” Moreover, Rules of Court, Rule 3.924 appears under Chapter 2 entitled “Court–Ordered Reference Under Code of Civil Procedure Section 639.”
California Jurisprudence explains that: “The provisions of the partition statutes governing referees apply in partition actions notwithstanding any general provisions to the contrary that might be found in the provisions of the Code of Civil Procedure for references and trials by referees.” 48 Cal. Jur. 3d Partition § 69
California Jurisprudence cites to “Law Revision Commission Comment following Civ. Proc. Code, § 872.030, referring to Civ. Proc. Code, §§ 638 to 645.2.”
In turn, the Law Revision Commission Comment following Code of Civil Procedure § 872.030 provides that “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).” Indeed, Code of Civil Procedure § 872.030 provides that: “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.”
The Court of Appeal reached the same conclusion where an appellant made the “contention [] that the reference was made under section 638, Code of Civil Procedure… The cases cited by appellant upon this point considered references made under section 638, but the reference here made was pursuant to the procedure in actions for partition, to which section 638 does not apply.… Procedure in actions for partition is found in sections 752—801.15, Code of Civil Procedure,” which are now found in CCP 872.010-874.323. Worcester v. Worcester (1966) 246 Cal.App.2d 56, 61.
According, the specific partition statutes govern the appointment of partition referees.
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