Equity: Partition Fee Award For “Common Benefit Of Property” Necessarily Proper And Equivalent To “Common Benefit Of Parties”

 

Substance Is King, Not Labels.

     Above:  15th century depiction of Cain and Abel.  Wikipedia.

     We always have heard that substance, not labels, usually prevails in the law--or, for that matter, equity (even more so). The next case vindicates this general rule.

     In Adrian v. Adrian, Case No. D058877 (4th Dist., Div. 1 Mar. 22, 2012) (unpublished), brothers in a nasty partition by sale dispute eventually hashed it out by which one brother got attorney’s fees in an injunction battle and an unlawful detainer battle for keeping the premises from being damaged by another brother. ($134,468.24 in fees were requested, but the prevailing brother actually got $28,439.37 in granted fees--we do not know if he has happy with this result.)

     On appeal, the reviewing court did sustain that the fees were properly granted to the winning brother. Partition has a lot of equitable fee shifting provisions, including those that allow for a court to allocate fees and costs in favor of a party based on the “common benefit” theory. (See Code Civ. Proc., §§ 874.010, 874.020.) Even though the trial court awarded fees for the “common benefit of the property,” this was no misnomer given that this also the equivalent of “common benefit to the parties” (labels aside, give me a break, said the appellate panel with much more eloquent panache--common benefit is common benefit). Also, it was no abuse to allocate the fees against one of the brothers, because section 874.040 gives this type of equitable apportionment discretion to the lower court in partition actions.