Panel Follows Lin Rather Than Finney On This Issue.
Although the particular facts are not that scintillating for posting purposes, Rahgoshay v. Luo, Case No. G056735 (4th Dist., Div. 3 Sept. 19, 2019) (unpublished), authored by Justice Fybel, does show how it lined up on the standard to be followed for purposes of apportioning attorney’s fees, referee fees, and other costs based on a partition sale. In effect, the 4/3 DCA panel followed the reasoning in Lin v. Jeng, 203 Cal.App.4th 1008 (2012), a 2/4 DCA decision, over Finney v. Gomez, 111 Cal.App.4th 527 (2003), a 2/7 DCA decision, on the issue. It also looks like Orien v. Lutz, 16 Cal.App.5th 957 (2017), a 2/8 DCA decision, also lines up with Lin. Here is what Justice Fybel had to say in Rahgoshay:
“In Finney v. Gomez (2003) 111 Cal.App.4th 527, 548 to 550 (Finney), the
appellate court held that a trial court may only award costs and fees incurred for the common benefit of the parties in a partition action. The appellate court reversed the judgment because the record showed an ‘absence of any rationale by the trial court and any evidence in the record suggesting the fees were for the common benefit,’ resulting in an abuse of discretion in the award of fees. (Id. at p. 549.) The court in Lin v. Jeng refused to follow the holding of Finney because Finney was based on the Law Revision Commission comment to the statute, and not on the statutory language itself, which was unambiguous. (Lin v. Jeng, supra, 203 Cal.App.4th at p. 1025.) We agree with the analysis of Lin v. Jeng that Code of Civil Procedure section 874.040 permits the trial court to apportion fees and costs following a partition sale based on equitable considerations as well as the parties’ interests in the property. (Lin v. Jeng, supra,
203 Cal.App.4th at p. 1025; see Orien v. Lutz, supra, 16 Cal.App.5th at p. 968 & fn. 12 [recognizing disagreement and following Lin v. Jeng].)”
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