Partition actions in California sometimes involve co-owners who cannot be located. The law allows for service by publication to ensure that a partition attorney in California can end the co-ownership dispute through a judgment of partition, which generally involves a partition by sale. Below, we explain how to name and serve defendants by publication when necessary in a partition action.
Required Defendants Must be Named and Served in a Partition Action
All parties must be named in a partition action since, under Code of Civil Procedure § 872.510: “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.”
When a party cannot be located, is unknown, is deceased, or believes to be deceased, service by publication may be an appropriate method of service.
Types of Unknown Defendants in Partition Actions
The California Partition Statutes describe what happens in the event that either defendants’ names are unknown or the defendants are deceased or believed to be deceased.
As to defendants whose name is unknown, Code of Civil Procedure § 872.520(a) provides that: “If the name of a person described in Section 872.510 is not known to the plaintiff, the plaintiff shall so state in the complaint and shall name as parties all persons unknown in the manner provided in Section 872.550.”
Deceased Defendants with a Known Personal Representative
As to defendants who are deceased and have a known personal representative (executor/administrator), Code of Civil Procedure § 872.530(a) provides that: “If a person described in Section 872.510 is dead and the plaintiff knows of a personal representative, the plaintiff shall join such personal representative as a defendant.”
Defendants Believed to be Dead with No Known Personal Representative
As to defendants who are dead or believed to be dead, but no personal representative is known, Code of Civil Procedure § 872.530(b)(1) provides that: “If a person described in Section 872.510 is dead, or is believed by the plaintiff to be dead, and the plaintiff knows of no personal representative: The plaintiff shall state these facts in an affidavit filed with the complaint.”
How to Name and Serve Defendants Believed to be Dead with No Known Personal Representative
There are two types of such defendants who are dead or believed to be dead but have no personal representative.
First, as to defendants who are dead, Code of Civil Procedure § 872.530(b)(2) provides that:
Where it is stated in the affidavit that such person is dead, the plaintiff may join as defendants “the testate and intestate successors of __________ (naming such deceased person), deceased, and all persons claiming by, through, or under said decedent,” naming them in that manner.
Code of Civil Procedure § 872.530(b)(2)
Second, as to defendants who are believed to be dead, Code of Civil Procedure § 872.530(b)(3) provides that:
Where it is stated in the affidavit that such person is believed to be dead, the plaintiff may join such person as a defendant, and he may also join “the testate and intestate successors of __________ (naming such person) believed to be deceased, and all persons claiming by, through, or under such person,” naming them in that manner.
Code of Civil Procedure § 872.530(b)(3)
Naming a Trust (Successor Trustee) Where the Initial/Prior Trustee Has Died
If the title is held by the deceased defendant as trustee of a trust, it is proper to name the successor trustee of that trust as the defendant. See Prob. Code § 15660(b). If the successor trustee is known, just name that successor trustee. If that successor is not known, it would appear that the operative rule is that this is simply a defendant whose name is unknown, Code of Civil Procedure § 872.520(a) provides that: “If the name of a person described in Section 872.510 is not known to the plaintiff, the plaintiff shall so state in the complaint and shall name as parties all persons unknown in the manner provided in Section 872.550.” In other words, it would not appear to be proper to follow the rule where the “person is dead” since the asset is owned by the trust, and trusts do not die. See Code of Civil Procedure § 872.530(b)(2).
Naming Unknown Parties
As to unknown parties, Code of Civil Procedure § 872.550 explains that: “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.” The effect of this statute is to ensure the certainty of partition judgments. “Subdivision (a) makes clear that all parties to the action are bound by the judgment, including the heirs of a decedent joined pursuant to Section 872.530 and unknown persons joined pursuant to Section 872.550.” Law Revision Commission Comment to Code of Civil Procedure 874.210.
Service by Publication in a Partition Action is Proper
As to the manner of service by publication in a partition action, Code of Civil Procedure § 872.310(b) provides that: “Service on persons named as parties pursuant to Sections 872.530(b) and 872.550, and on other persons named as unknown defendants [under Code of Civil Procedure § 872.520], shall be by publication pursuant to Section 415.50 and the provisions of this article.” See Code Civ. Proc. § 872.310(a) (“The form, content, and manner of service of summons shall be as in civil actions generally.”).
Code of Civil Procedure § 415.50(a), located outside the context of the partition statutes, i.e., under general civil procedure law, then provides the following procedure for service by publication:
A summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that either:
(1) A cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action.
(2) The party to be served has or claims an interest in real or personal property in this state that is subject to the jurisdiction of the court or the relief demanded in the action consists wholly or in part in excluding the party from any interest in the property.
Code of Civil Procedure § 415.50(a)
Furthermore, Code of Civil Procedure § 415.50(c) states that “service of a summons in this manner is deemed complete as provided in § 6064 of the Government Code.” Government Code § 6064 states that “publication of notice pursuant to this section shall be once a week for four successive weeks….The period of notice commences with the first day of publication and terminates at the end of the twenty-eighth day, including therein the first day.”
Procedure of Service by Publication in a Partition Action
The partition statutes also explain the procedure for serving by publication in a partition action. Code of Civil Procedure § 872.320 provides that:
Where the court orders service by publication, such order shall be subject to the following conditions:
Code of Civil Procedure Section 872.320
(a) The plaintiff shall post, not later than 10 days after the date the order is made, a copy of the summons and complaint on the real property that is the subject of the action.
(b) The plaintiff shall record, if not already recorded, a notice of the pendency of the action.
(c) The publication shall describe the property that is the subject of the action. In addition to particularly describing the property, the publication shall describe the property by giving its street address, if any, or other common designation, if any; but, if a legal description of the property is given, the validity of the publication shall not be affected by the fact that the street address or other common designation recited is erroneous or that the street address or other common designation is omitted
The importance of service by publication is made clear by Code of Civil Procedure Section 872.330:
(a) Where the court orders service by publication, the publication may:
Code of Civil Procedure Section 872.330
(1) Name only the defendants to be served thereby.
(2) Describe only the property in which the defendants to be served thereby have or claim interests.(b) Judgment based on failure to appear and answer following service under this section shall be conclusive against the defendants named in respect only to property described in the publication.
When Service by Publication is Sufficient Under Due Process
Where a defendant’s name and address are reasonably ascertainable, notice by mail or other means as certain to ensure actual notice is the minimum the Constitution requires.[1]Mennonite Bd. of Missions v. Adams (1983) 462 U.S 791, 800 (emphasis added); see also Tulsa Professional Collection Services, Inc. v. Pope (1988) 485 US 478, 490-491, 108 S.Ct. 1340, 1347-1348. Furthermore, a defendant’s whereabouts are “reasonably ascertainable” if shown in a public record in the locality in which the proceeding is pending. [2]Mennonite Bd. of Missions v. Adams (1983) 462 U.S. 791, 797-800, fn. 4. If public records do not disclose defendant’s whereabouts, plaintiff must make some effort to locate defendant. The Supreme Court has not set any standards for such efforts except to state that “extraordinary efforts” (e.g., hiring a private investigator) are not required. [3]Id.
We highly recommend speaking with a partition attorney familiar with forcing the sale of jointly owned property, including service of all parties, to ensure that your partition proceeds in a prompt manner.
Contact an Experienced Partition Attorney in California
If you want to end your co-ownership relationship, but your co-owner won’t agree, a partition action is your only option. Our knowledgeable partition lawyers have years of experience ending co-ownership disputes and can help you unlock the equity in your property. For a free, 15-minute consultation with an experienced partition attorney at Talkov Law, call (844) 4-TALKOV (825568), email us at info(at)talkovlaw.com, or fill out a contact form online. Contact Talkov Law today to find out how you can pay nothing today and have your legal fees paid from the proceeds of sale of your property!
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