Partition: Trial Judge Did Not Erroneously Order One Sibling In Partition Action To Pay A Greater Share of Attorney’s Fees Than Other Sibling Parties Based On Being Obstreperous During The Course Of The Litigation

Appealing Sibling Ordered To Pay $95,896.43 Out Of $184,847.52 Fee/Costs Award For Partition Litigation Expenses.

            In a partition action, the court has discretion to apportion the costs of the action among the parties in proportion to their interests or “such other apportionment as may be equitable.”  (Code Civ. Proc., § 874.040.)  These costs encompass the reasonable attorney’s fees incurred or paid by a party for the common benefit.  (Code Civ. Proc., § 874.010(a).)  In doing so, both these provisions provide flexible avenues for the trial courts to allocate costs or fees against a party pressing spurious matters (Forrest v. Elam, 88 Cal.App.3d 164, 174 (1979)) or require a party to bear its own fees under certain circumstances (Lin v. Jeng, 203 Cal.App.4^th 1008, 1025-1026 (2012); see also Orien v. Lutz, 16 Cal.App.5^th 957, 968 (2017)). 

            These principles were fully at play in Nyberg v. Moacanin, Case No. B293594 (2d Dist., Div. 5 May 14, 2020) (unpublished), a partition action involving four siblings where a sale of an Old Town Pasadena building was ordered in light of them being tenants in common.  The problem is that one of the siblings apparently was abusive and impeded efforts to list the property for sale, as well as opposed some reasonable steps in the partition action.  The trial judge decided that this sibling should pay $95,896.43 out of the $184,847.52 in fees and costs incurred in the course of the partition action.  Sibling hit with this award appealed, but the 2/5 DCA affirmed.  The facts of record showed no abuse of discretion given sibling’s conduct which was not conducive to selling the property and getting the matter to a resolution.