California Code of Civil Procedure 872.230 is the California partition statute that specifies the requirement for the contents of the complaint in a partition action. The statute provides that:
The complaint shall set forth:
(a) A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any.
(b) All interests the plaintiff has or claims in the property.
(c) All interests of record or actually known to the plaintiff that persons other than the plaintiff have or claim in the property and that the plaintiff reasonably believes will be materially affected by the action, whether the names of such persons are known or unknown to the plaintiff.
(d) The estate as to which partition is sought and a prayer for partition of the interests therein.
(e) Where the plaintiff seeks sale of the property, an allegation of the facts justifying such relief in ordinary and concise language.California Code of Civil Procedure 872.230
The Law Revision Commission Comment to California Code of Civil Procedure 872.230 explains this statute as follows:
Section 872.230 is new. In addition to the information required by this section, other information may be necessary. See, e.g., Section 872.220 (information relating to title report).
Subdivision (a) requires a description of the property that is the subject of the action. It should be noted that several properties may be joined in one complaint even though located in different counties. See, e.g., Murphy v. Superior Court, 138 Cal. 69, 70 P. 1070 (1902). And, real and personal property may be joined in one action. Section 872.240. As to joinder of property under varying ownership, see Middlecoff v. Cronise, 155 Cal. 185, 100 P. 232 (1909).
Subdivision (b) requires an allegation of all the plaintiff’s interest in the property. For interests sufficient to maintain the action, see Section 872.210. Where the plaintiff has a lien on the property as well as an interest sufficient to maintain the action, he must allege his lien as well as his other interest.
Subdivision (c) supersedes the first portion of former Section 753. Unlike the former provision that required all interests to be set out regardless of whether the interests would be affected, subdivision (c) limits the requirement to only those interests the plaintiff reasonably believes will be materially affected by the partition action. Incorporation of a title report should be sufficient to satisfy this requirement as to recorded interests but not as to unrecorded interests known to the plaintiff. It should be noted that there may be interests of record in personal property filed to perfect a security interest under the Commercial Code. Partition of some or all of the interests in the property may be obtained.
Subdivision (d) requires the plaintiff to indicate which estate or estates are intended to be affected by the action. The estates in real property include estates of inheritance, for life, and for years. Civil Code § 761. For provisions relating to parties defendant, see Article 4 (commencing with Section 872.510).
Subdivision (e) requires an allegation of facts justifying a sale of the property where the plaintiff seeks sale. Should the plaintiff fail to seek sale at the time of filing the complaint, he may do so thereafter by amending the complaint subject to the general rules governing amendment. See Sections 471.5, 472, and 473. The defendant may request sale by appropriate pleading in the answer. See Section 872.410.[1]Law Revision Commission Comment to California Code of Civil Procedure 872.230
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References
| ↑1 | Law Revision Commission Comment to California Code of Civil Procedure 872.230 |
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