Plaintiff Sought $415,458.75 In Fees, But Trial Court Reductions and Apportionments Lowered Actual Award to $95,267.41.
In partition actions, Code of Civil Procedure section 874.010(a) authorizes an award of costs to include reasonable attorney’s fees that have been “incurred or paid by a party for the common benefit.” When you get into this area of fee recovery, you will find that much older precedents come into play, which was the situation when the court reviewed defendant’s challenge to a partition fee award in Charco Ventures v. Sandoval, Case No. C060305 (3d Dist. Jan. 22, 2010) (unpublished).
Above: Partition action. Judgment of Solomon. Nicolas Poussin. 1649. Louvre.
There, plaintiff was awarded damages of $190,500 for defendant’s breach of fiduciary duty, ordered paid from the partition sale proceeds of certain property in which plaintiff and defendants were 50/50 cotenants. Plaintiff then sought $415,458.75 for the services of both current and prior counsel. The trial court awarded plaintiff $95,227.61 in fees and $40 in other costs, for a total award of $95,267.41. Because plaintiff (along with another affiliated party) made numerous claims in addition to the partition claim, the primary reductions were for apportioned-out work relating to claims that were “not for the common benefit” of the cotenants. (The trial court actually applied a 54.6% allocation formula, further reduced by a 60/40 split of fees between the two cotenants.)
Defendant appealed.
The fee award was affirmed by a 3-0 panel in a decision authored by Justice Cantil-Sakauye.
Defendant primarily argued that no fees should have been awarded because plaintiff’s fees related to claims not incurred for the “common benefit” of the cotenants. The appellate court rejected this notion, observing that common benefit fees could still be awarded even in contested partition suits. (Capuccio v. Caire, 215 Cal. 518, 528-529 (1932); Riley v. Turpin, 53 Cal.2d 598, 602 (1960).) Because plaintiff’s claims were not spurious, cases refusing to award fees were found distinguishable because they had a very different sets of facts. (E.g., Forrest v. Elam, 88 Cal.App.3d 164, 167, 172-174 [involving spurious claims].) With respect to claims that do involve personal interests alone, the appellate court stated that section 874.040 takes this in account by allowing the court to make an equitable apportionment of fees—something actually done in the Sandoval matter.
Defendant also challenged the 60/40 apportionment in fees made by the lower court, arguing this was askew from the 50/50 presumptive apportionment. However, the appellate panel found the lower court apportioned as a matter of equity—not based on property interests—because defendant undertook pre-litigation efforts to obstruct sale of the property and took meritless positions in the partition suit. The equitable apportionment, under the circumstances, was no abuse of discretion.
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