Oh, Brother! -- Case Illustrates Equitable Principles Are Front And Center In Partition Disputes.
Partition disputes are equitable, with a broad fee-shifting statute in the form of Code of Civil Procedure section 874.040 allowing a trial court broad discretion to equitably apportion fees and costs among the parties to the partition action.
In Cummings v. Cummings, Case Nos. H040710 and H041308 (6th Dist. Nov. 23, 2016) (unpublished) (separate decisions), four siblings were involved in a family trust partition action involving a Los Altos Hills property. One brother out of the four siblings opposed a partition for sale of the property and apparently was not amenable to seek viable options to avoid conflict. Eventually, brother lost in the partition actions, prompting the other siblings to seek recoupment of fees and costs after the trial court ordered a partition by sale.
Case No. H040710 involved the trial judge’s award of $115,000 in fees and costs to the prevailing siblings, almost the entire request with some minor cost disallowances. The Sixth District affirmed, determining that brother was unsuccessful in opposing the partition by sale and refused to arrive at a solution short of an acrimonious conflict. (Lin v. Jeng, 203 Cal.App.4th 1008, 1023-1025 (2012) [discussed in our Feb. 24, 2012 post; court’s discretion to apportion in partition actions is equitable, not constrained or tied to the number of parties necessarily involved in such a dispute].)
Brother did not fare any better in Case No. H041308, where his sisters obtained a further fee award of $51,323.56 for other work after the partition by sale order occurred.
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