Partition: Court Of Appeal Affirms A Proportionate Share Of Partition Attorney’s Fees Being Awarded Among Litigants In Partition Action Based On Common Benefit Analysis Under CCP § 874.040

Lin Decision Was Followed, Which Seems To Be The Reasoning Adopted By Most Appellate Courts.

            In Thornber v. Colby, Case No. C089687 (3d Dist. Apr. 20, 2022) (unpublished), a trial judge decided that $60,000 in fees incurred by plaintiffs in a successful partition by sale action should be proportionately allocated between plaintiffs and defendants under Code of Civil Procedure section 874.040, which allows for such an allocation where the litigants’ efforts served a “common benefit.”  The appellate court agreed, determining that the allocation can be based on the parties’ respective interests and equitable interests—citing Lin v. Jeng (2012) 203 Cal.App.4^th 1008, 1025 in support of its conclusion.  Given that defendant raised many meritless arguments along the way, the trial court’s ruling was no abuse of discretion.

            BLOG OBSERVATION—The broader “equitable consideration” test in Lin, as this decision demonstrates, is the majority approach, which is at odds with the Finney opinion.  The Third District lines up with Lin.  For a good post delineating this split in appellate thinking on the issue and the emerging majority view, see our December 9, 2020 post on the unpublished case of Tolley v. Kobzoff.