Partition: Attorney’s Fees Denied To Defendant In Partition Action Where Plaintiffs Suit Was Dismissed For Failure To Appear For Trial

The Claimed Fees Did Not Demonstrate That They Were For A “Common Benefit.”

            In partition actions, Code of Civil Procedure section 874.010 provides that the lower court in a partition action shall award attorney’s fees incurred or paid by a party if there was a common benefit to all the parties—it is not a prevailing party statute, but it only spreads fees and costs associated with the partition among those who benefit from it.  Even then, under section 874.040, the lower court apportions fees of partition among the parties in proportion to their interests or as determined to be equitable. 

            “Common benefit” fees were denied by the lower court to a defendant in a partition action brought by plaintiffs, Nguyen v. Le, Case No. G061299 (4^th Dist., Div. 3 Jan. 23, 2023) (unpublished), even though the case was dismissed for plaintiffs’ failure to appear at trial and despite the fact the defendant claiming fees had become a Buddhist nun taking a vow of poverty.  That result did not change on appeal.

            The major problems lurking for the defendant was that the matter was dismissed and that the property was never partitioned, such that every party was left in the same position.  Even then, the record showed defendant was seeking dissolution payments from her ex-husband/defendant during the partition action, payments which did not benefit any of the other parties to the partition action—only her separate interests.  Beyond that, defendant’s son would only benefit from the action given her vow of poverty.  Finally, there was no real attempt to apportion fees such that any “common benefit” allocation was difficult to determine at best.  Fee denial affirmed, in an opinion authored by Justice Bedsworth.