Second District Panel Disagrees With Contrary Holding in Finney; Approximation of Hours Under Penalty of Perjury Can Be Adequate Fee Substantiation.
The Second District, Division 4 in Lin & Lin v. Jeng, Case No. B232899 (2d Dist., Div. 4 Feb. 23, 2012) (certified for publication) considered the extent of trial court discretion to apportion attorney’s fees under Code of Civil Procedure 874.040, a fee-shifting provision applicable to partition actions. In this case, the appellate panel disagreed with the prior holding of Finney v. Gomez, 111 Cal.App.4th 527, 545-546 (2003) that equitable apportionments can only be made under two circumstances--where litigation arises among only some of the parties, or where the interest of the parties in all items, lots, or parcels of property is not identical. The Lin & Lin panel found Finney was inconsistent with the broad statutory language of section 874.040 and erred in limiting equitable discretion by using Law Revision Commission comments to “trump”
the statutory provision itself. Rather, the statute’s broad language did not limit the trial court’s equitable discretion as Finney earlier held.
With respect to fee substantiation, counsel’s declaration with an approximation of hours, made under penalty of perjury, sufficed, especially given that no specific amount was challenged as being unreasonable by the contesting parties on appeal.
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