CALIFORNIA ATTORNEY'S FEES

Partition: 34.29% Property Owner Was Properly Saddled With Close To $86,000 In Attorney’s Fees And Costs At The End Of The Day

Losing Party, To The Appellate Court, Refused To List A Property For Sale And Refused To Reimburse Another Party For Paid Taxes—Leading To The Result With Respect To Fees And Costs.

               In this category, we have made many posts which involve partition proceedings, keeping in mind that CCP § 874.040, subdivisions (a) and (e), provide that the lower court has broad discretion to make apportionments which are equitable and just.  These provisions were front and center in affirming a lower court’s apportionment order in Sarad v. Lorenz, Case No. B322452 (2d Dist., Div. 6 Feb. 18, 2025) (unpublished).

               34.29% property owner failed to list a property for sale or pay real estate taxes along the way with respect to other owners, some of which did pay taxes and expenses.   When partition proceeding wound down, the 34.29% property owner had to eat, among other things, close to $86,000 in fees and costs based on his conduct in the proceeding.  He appealed, but to no avail.  Based on the abuse of discretion standard of review applicable to the statutory partition provisions, the appellant was properly saddled with expenses due to bad faith conduct increasing the cost of litigation—in this case, refusing to list the property for sale and to reimburse another party for property taxes paid on appellant’s behalf. 

Appealability, Sanctions: Defendant Unsuccessfully Appeals Trial Court’s Order Adopting Discovery Referee’s Recommendation On Apportionment Of Fees Claiming Apportionment Equated To Monetary Sanctions Exceeding $5,000

4/3 DCA Dismissed The Appeal As The Trial Court’s Interlocutory Order On The Discovery Referee Fees Was Not A Sanctions Order, Did Not Use The Word Sanctions, And Did Not Cite Authority To Impose Sanctions.

            The parties in Glickman v. Krolikowski, Case No. G064853 (4^th Dist., Div. 3 March 7, 2025) (published), stipulated to the appointment of a discovery referee.  The stipulation did not specify what portion of the referee’s fees would be paid by each party, but referenced Code Civ. Proc. § 645.1, with section 645.1(b) allowing for an apportionment of the fees among the parties.  When the trial court issued its reference order to implement the stipulation, it stated that the referee’s initial retainer would be paid 50 percent by each side, and that the referee’s report was to include the referee’s recommended allocation of payment.

Based on the parties’ conduct, the referee granted plaintiff’s apportionment motion and recommended that all of the recently incurred discovery fees of $22,750, plus the $1,750 in fees for the apportionment motion, be allocated to defendant.  Defendant unsuccessfully objected to this allocation, then filed an appeal claiming that one-half of the amount allocated to defendant was the equivalent of a monetary sanction in excess of $5,000 – making it subject to an interlocutory appeal.  Code Civ. Proc. section 904.1(a)(12).

The 4/3 DCA disagreed with defendant’s contention and dismissed the appeal.  The appellate panel found that the trial court’s order allocating discovery referee fees was not a sanctions order as the referee’s recommendation did not use the word sanctions, did not cite authority to impose sanctions, and relied on the discretion allowed for in the trial court’s reference order to apportion fees.  As a result, the trial court’s order was not a monetary sanction subject to appealability.  The trial court’s order was not a final judgment against defendant as reallocation of the payment of discovery referee costs could be made at the end of the lawsuit.  As such, defendant would have had to file a writ petition in order to immediately challenge this order.