Code Civ. Proc. § 847.040 Allows For Equitable Considerations In Apportioning Costs, And § 847.010 Authorizes The Award Of Fees Incurred To Defend Meritless Claims.
In Diepen v. Bollinger, Case No. B299696 (2d Dist. Div. 6 September 21, 2020) (unpublished), a trial court granted an elderly mother’s request to partition a house she co-owned with her daughter. Afterward, pursuant to Code Civ. Proc. §§ 847.010 and 847.040, the trial court awarded mother the entirety of the more than $91,000 in fees she had incurred. Daughter argued that not all fees incurred by her mother were recoverable as not all fees were incurred for the common benefit of the parties. The trial court disagreed – finding daughter had raised meritless arguments and taken an unnecessary “hardball” approach during litigation that inflated the fees for both sides, and that a balancing of the equities justified the award to mother.
Daughter fared no better with her argument on appeal. The appellate panel explained that daughter’s argument was based on an outdated understanding of the law, and that § 874.040 – unlike former § 796 which it replaced in 1976 – includes a general equitable exception to the rule of apportioning costs in a partition action in proportion to the parties’ interests in the property. Section 874.040 unambiguously provides the trial court with broad discretion to apportion fees based on equitable considerations, without limit. (Lin v. Jeng, 203 Cal.App.4th, 1008 (2012).) Additionally, § 847.010 authorizes a trial court to find that fees incurred for advocating a meritless position are not for the common benefit and should be borne by the party raising them.
The 2/6 DCA found that an inverse scenario occurred in this case – with mother incurring fees to defend each of daughter’s arguments which served to prolong what should have been a simple partition action. Daughter was responsible for the fees she caused her mother to incur by pressing “spurious matters.” (Forrest v. Elam, 88 Cal.App.3d 164, 173-174 (1979).)
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