1/3 DCA Believed Joinder Adequately Teed Up The Issue, Plus It Followed Lin Rather Than Finney On The Discretion Allowable When Making Partition Apportionment Adjudications.
Joinders can pose tricky issues for litigants and practitioners, with lower courts having very different “local, local” rules/protocols (sometimes not even articulated) about how joinders are to be presented for consideration. In the next case, the appellate court reversed the denial of a litigant’s request for apportionment of partition fees and costs under Code of Civil Procedure sections 874.101 and 874.040 based on the litigant’s joinder with a motion by another party.
The 1/3 DCA in Pittman v. Vau, Case No. A148222 (1st Dist., Div. 3 Apr. 27, 2018) (unpublished) believed that the joinder was an appropriate vehicle to raise the apportionment issue, especially given the lack of statutory authority for the practice of joinder in civil motions. However, by analogy to marital dissolution cases, the appellate panel found joinder was the only reasonable alternative to raise the apportionment issue after one party moves and found nothing in the language of section 874.040 which required a noticed motion for recovering partition costs/fees.
Beyond that, however, the 1/3 DCA also followed Lin v. Jeng, 203 Cal.App.4th 1008, 1025 (2012) [2d Dist., Div. 4] rather than Finney v. Gomez, 111 Cal.App.4th 527, 547-548 (2003) [2d Dist., Div. 7] on the issue of whether section 874.040 places limitations on the equitable consideration which a lower court can rely upon in making an apportionment decision. Both Lin and now Pittman agree that the discretion is quite broad, disagreeing with the Finney court’s limitations. However, keep in mind that Pittman is unpublished, but does show a trend in how appellate panels are lining up on the issue.