Partition: Costs Of Partition, Including Some Reasonable Attorney’s Fees, Were Properly Awarded Against Defendant Brother Who—After 11 Years Of Resistance—Sold A Tenant In Common Property Based On Plaintiff Sister’s Partition Action

Fifth District, In An Emerging Trend, Sides With Lin Opinion On Allowing Partition Costs Award Disproportionate To One Party’s Interest In The Property.

            In Tolley v. Kobzoff, Case No. F078021 (5^th Dist. Dec. 8, 2020) (unpublished), plaintiff sister brought a partition action to force a sale of tenant-in-common property owned with defendants sister and brother.  After 11 years of the brother not selling the property, the partition action finally triggered a sale.  The lower court awarded costs of partition—the cost of a title insurance policy and plaintiff sister’s reasonable attorney’s fees—to be deducted from the brother’s share of sale proceeds, prompting an appeal by brother and the defendant sister.

            The Fifth District affirmed, given that all of these costs were allowable under Code of Civil Procedure section 874.010 in the discretion of the court, including apportionment of “the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.”  After determining that the interlocutory order on costs/fees was appealable because it decided those issues with finality, the appellate panel had to confront the split in appellate thinking between Finney v. Gomez, 111 Cal.App.4^th 527, 545-546 (2d Dist., Div. 7 2003) [apportionment cannot be disproportionately allowed against one party] and Lin v. Jeng, 203 Cal.App.4^th 1008, 1023-1025 (2d Dist., Div. 4 2012) [section 874.040’s broad language does not limit the trial court’s equitable discretion to disproportionately allocate the costs of partition, disagreeing with Finney].  The Tolley panel agreed with the holding in Lin, such that the allocation of costs against single party brother was a discretionary decision for the lower court to make, and was no abuse of discretion under the circumstances.

            BLOG OBSERVATION—Although the conflict on this issue has not been resolved by the California Supreme Court, an emerging majority of intermediate appellate courts have sided with Lin.  (See, e.g., Orien v. Lutz, 16 Cal.App.5^th 957, 968, n. 12 (2d Dist., Div. 8 2017); Pittman v. Vau, Case No. A148222 (1^st Dist., Div. 3 Apr. 27, 2018) [unpublished, discussed in our Apr. 28, 2018 post]; Rahgoshay v. Luo, Case No. G056735 (4^th Dist., Div. 3 Sept. 19, 2019) [unpublished, discussed in our Sept. 23, 2019 post].)