Deciding who to name in a partition complaint can be daunting for litigants and partition attorneys.
California Code of Civil Procedure 872.510 provides as follows: “The plaintiff shall join as defendants in the action all persons having or claiming interests of record or actually known to the plaintiff or reasonably apparent from an inspection of the property, in the estate as to which partition is sought.”
“It should be noted that ‘interest’ includes liens,” e.g., deeds of trust and mortgages. See Legislative Committee Comments to Code Civ. Proc. § 872.510.
However, simply because a plaintiff names a lender as a party in a partition action doesn’t mean the lender will respond. Indeed, lenders generally either do not respond to the partition complaint or work with the plaintiff to reach a stipulation confirming the priority of the lien.
Lenders rarely object to a partition action because their only real concern is getting paid. In a partition by sale, for example, a lienholder is going to get paid from the proceeds of sale before the co-owners receive their portion of the proceeds.
A party who has no lien when the action is filed, but obtains one later, need not be made a party. This is because the judgment in the partition action dates back to the lis pendens in the partition action.
Rather, it is that party’s right and duty to intervene and set up the lien and have it adjudicated in the decree. This was addressed in Towle Bros. Co. v. Quinn (1903) 141 Cal. 382, 385, where that court stated: “The plaintiff in the partition suit was not called upon to make the respondent herein a party defendant, for he had no lien of record when that suit was commenced.”
Impact of Failure to Name Lienholders and Other Interested Parties in a Partition Action
An unpublished opinion in 2025 found that the failure to name third parties, such as lenders, simply means that the judgment has no impact on those non-parties, but does not impact the ability of the court to decide the partition so long as co-owners have been named. Cliff R. Russell v. Robert J. Russell (Cal. Ct. App., Aug. 29, 2025, No. A167911) 2025 WL 2490516. As the court explained:
Under section 872.510, partition actions require joinder of “all persons having or claiming interests of record or actually known to the plaintiff or reasonably apparent from an inspection of the property, in the estate as to which partition is sought.”
Robert contends that numerous persons and entities had an interest in the property: the mortgage holder; Robert as an individual, as a beneficiary of his revocable trust, as a tenant on the property, and as a coborrower under the mortgage; Cliff’s sister as a tenant; and the “oral partnership” between Robert and Cliff to own and improve the property. Because they were not joined as parties to this case, Robert argues that the default judgment against Robert’s trust, which was named as a defendant, is void and must be reversed. Robert did not raise this argument in his motions to set aside the judgment. In any event, his argument is incorrect. Section 874.225 provides that, subject to exceptions not material here, the judgment in a partition action “does not affect a claim in the property or part thereof” of nonjoined interest holders if “[t]he claim was actually known to the plaintiff or would have been reasonably apparent from an inspection of the property at the time the lis pendens was filed or, if none was filed, at the time the judgment was entered.” (§ 874.225, subd. (b).) Robert does not demonstrate in his opening brief that any of the persons or entities he thinks should have been joined have lost any claim by Cliff’s failure to join them in the litigation. Moreover, nothing in section 874.225 suggests that the failure to join interest holders voids an interlocutory judgment that was properly entered against a named defendant. It is true that co-owners must be joined to obtain a partition of property. (See Solomon v. Redona (1921) 52 Cal.App. 300, 305-306 [decided under § 389].) But as alleged in the amended complaint, the only owners of the Property are Cliff and Robert as trustee (or more accurately, the trust). The first paragraph of the amended complaint alleges: “The Property is held as a tenancy-in-common by CLIFF R. RUSSELL (‘Plaintiff’), the title owner of an undivided one-tenth (1/10) interest in the Property, and defendant ROBERT J. RUSSELL, TRUSTEE, THE ROBERT JOHN RUSSELL TRUST A/u DATED MARCH 16, 2001, (‘Defendant’), the title owner of an undivided nine-tenths (9/10) interest in the fee simple title to the Property.” By defaulting, Robert as trustee is deemed to have admitted those allegations. (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 281 (Kim) [defaulting defendant admits the well-pleaded factual allegations of the complaint].) All co-owners — Cliff and Robert as trustee of the trust — have therefore been joined to the litigation.
Robert also contends reversal is required under section 389, which states in part: “A person who is subject to service of process and whose joinder will not deprive the [trial] court of jurisdiction over the subject matter of the action shall be joined as a party in the action if … he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may … as a practical matter impair or impede his ability to protect that interest.” (§ 389, subd. (a).) But Robert does not establish that any of the purported interest holders are covered by section 389. And even if they were, their absence from the case would not compel the reversal of the default judgment as to Robert as trustee. “Failure to join an ‘indispensable’ party is not ‘a jurisdictional defect’ in the fundamental sense; even in the absence of an ‘indispensable’ party, the court still has the power to render a decision as to the parties before it which will stand.” (Sierra Club, Inc. v. California Coastal Com. (1979) 95 Cal.App.3d 495, 500.) Robert therefore fails to establish that the default judgment is void as against Robert as trustee.
Talkov Law's Partition Attorneys Can Help
If you want to end your co-ownership relationship, but your co-owner won’t agree, a partition action is your only option. With eleven, full time partition lawyers, Talkov Law is the #1 partition law firm in California and has handled over 500 partition actions throughout California. Every case has resulted in a sale to either a third party or one of the co-owners. Not a single court has denied our clients the right to partition or declared our client to be a non-owner. Plus, for qualified cases, there is no fee until we settle or win your case!
If you're looking to end your co-ownership dispute, contact California's premier partition action law firm by calling Talkov Law at (877) PARTITION (727-8484) or sending us a message today.
