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in affirming a lower court’s apportionment order in Sarad v. Lorenz, Case No. B322452 (2d Dist., Div. 6 Feb. 18, 2025) (unpublished).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. 

Partition: Defendant Successfully Defending Against Sole Plaintiff’s Claim To 50% Property Ownership Properly Denied Attorney’s Fees Under Partition Statute

No Common Benefit Was Secured.

            In Gentino v. Yaghoobia, Case No. B321102 (2d Dist., Div. 4 Oct. 12, 2023) (unpublished), plaintiff was defensed by a single defendant in a case alleging that plaintiff had a 50% ownership interest in a Long Beach property, with one of the claims being for partition.  Defendant moved for fees under CCP § 874.010, but that fee request was denied.  On appeal, the reviewing court agreed:  the reason was simple, defendant obtained no “common benefit” between the parties, a requirement for an award of fees under the partition statute.

Partition: Trial Judge’s Award Of Apportioned Fees To A Feuding Couple Is Sustained On Appeal

Husband’s Challenges To Wife’s Fee Recovery Was Rebuffed By Appellate Court.

            A couple in a partition action, with the lower court describing their relationship as “toxic” and “two scorpions in a bottle” (words in the opinion, not ours), ultimately achieved some fee recovery based on common benefit in a contested partition action, with husband awarded $16,750 and wife awarded $19,800.  Husband still appealed in Nielson v. Courtney, Case No. B324058 (2d Dist., Div. 6 May 18, 2023) (unpublished), challenging the fee award to wife.  He was unsuccessful on appeal.  Based on the facts, he presented no reason to deviate from the trial judge’s conclusion, with the appellate court declining husband’s invitation to reweigh the evidence. 

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.

Allocation, Appealability, Partition: $790,967 Postjudgment Fees And Environmental Remediation Award Against Some Partitioning Parties Affirmed On Appeal

Lower Court Retains Lots Of Discretion To Apportion Fees in Partition Action.

            DeMartini v. DeMartini, Case No. A160849 (1^st Dist., Div. 1 June 7, 2022) (unpublished) is a reminder that the partition statutes allow a trial judge broad authority to award and apportion fees to parties in a partition action.  In this one, the lower court did award fees and environmental remediation costs totaling $790,967 against some parties in a partition action.  That stood up on appeal.  As to the threshold appealability issue, merits partition adjudications and post-award fee recovery orders are appealable.   On the merits, the trial judge has great discretion to apportion fees under CCP §§ 874.040 and 874.110(a), such that the fee recovery award was no abuse of discretion.

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. 

Appealability, Lodestar, Partition, Substantiation Of Reasonableness Of Fees: Lower Court’s Award Of Fees To Winning Beneficiaries And Property Owner In Partition Action Was Affirmed On Appeal

Apportionment Under Partition Statutes Is Vested Within Lower Court’s Equitable Discretion.

            In Hofmann v. Hofmann, Case No. F079977 (5^th Dist. July 15, 2021) (unpublished), trustee son Michael was obviously not happy when he lost a partition action to trust beneficiaries (his siblings) and the current property owner.  Beneficiaries and property owner, respectively, filed attorney’s fees motions under the partition statutes, primarily Code of Civil Procedure sections 874.010 and 874.040, which allow the lower court wide discretion to determine if fees were incurred for a common benefit or should be apportioned against a loser who drove up the costs of litigation.  That is what happened to trustee Michael, with the lower court granting the beneficiaries $122,395.81 and the property buyer $191,031.50, about a 50% apportionment based on certain interests.  Michael was unhappy, so he appealed.

            The Fifth District affirmed the fee awards.

            With respect to the beneficiaries, they could not entertain the challenges because Michael failed to appeal the post-judgment fee order—something we have constantly reminded our readers to do.

            Although the appeal was timely as to property buyer, the buyer was entitled to fees under sections 874.010 and 874.040 because Michael engaged in some spurious activities and the “common benefit” apportionment was not out of bounds.  Michael also challenged the amount of fees, but the lower court properly utilized the lodestar method and Michael waived any challenge that the requested fees were “padded” because he failed to include the detailed billing records in the appellate record for review. 

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].)

Partition: No Abuse Of Discretion Where Trial Court Awarded Entirety Of Fees Incurred To Party In Partition Action When Other Party’s Litigation Conduct Unnecessarily Increased Fees For Both Sides

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.4^th, 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).)

Partition, Undertaking: No Abuse Of Discretion In Trial Court’s Denial To Plaintiff Of Fees/Costs Not Incurred In Partition Action, And No Error In Granting Disbursement Of Funds To Defendants While Appeal Was Pending

Plaintiff Was Not Entitled To Recover Code Civ. Proc. §§ 874.010 and 847.040 Fees/Costs Incurred Prior To Defendants’ Assertion Of Partition Claim, Nor To Fees/Costs Incurred Strictly For Plaintiff’s Benefit, And Undertaking Was Required To Stay The Case As Judgment Did Not Consist Of Only Fees/Costs.

            Land Value Holdings, LLC v. Miller, Case No. A153992 (1^st Dist., Div. 3 September 18, 2020) (unpublished), involved a residential property a decedent left to his niece, Clara, for the term of her natural life.  Upon Clara’s death, the property was to be divided equally among six other nieces and nephews – or their surviving issues.  A later probate order confirmed Clara’s life estate and named the nieces and nephews as remaindermen, but failed to include the phrase “or to their surviving issues by right of representation.”

            Four years after Clara passed, the property was scheduled to be auctioned for unpaid property taxes.  Plaintiff, relying on the theory of adverse possession, voluntarily paid the past due taxes and moved for quiet title and ejectment against twenty living issues of the remaindermen – some of whom entered into settlement negotiations and provided plaintiff with assignments and executed quitclaim deeds.  

            In the end, the trial court found plaintiff had achieved only a 41.66% ownership interest in the property based on the assignments it obtained, and that defendants were entitled to an interest in the property based on decedent uncle’s will - approving sale of the property and ordering division of the proceeds.  Based on a partition claim asserted by defendants some three years into the litigation, the trial court granted in part each party’s Code Civ. Proc. §§ 874.010 and 847.040 fees request, to be paid by the other parties in proportion to their respective percentage interests.  As to plaintiff, it sought $206,185.73 in fees, but was awarded only $98,301 – with the trial court determining fees incurred by plaintiff prior to the partition claim were not recoverable.  Plaintiff also suffered a significant reduction to its $36,434.73 costs request – with defendants successfully moving to tax more than half because certain costs were found not reasonable, necessary, nor for the common benefit of the parties.  Plaintiff then unsuccessfully moved for additional fees incurred for post-judgment work – with the trial court finding the fees requested in the late-filed fees request were not incurred for the common benefit of the parties, but for plaintiff alone. 

            After plaintiff appealed, two defendants moved ex-parte for disbursement of certain funds pursuant to the judgment.  Plaintiff opposed – arguing the trial court did not have jurisdiction to rule because plaintiff’s appeal created an automatic stay.  The trial court disagreed, because plaintiff had not given an undertaking, and granted defendants’ ex-parte request.

            On appeal, plaintiff tried to overcome the trial court’s finding that plaintiff was entitled to recover fees/costs only from the date that defendants asserted a partition claim, and only for fees incurred for the common benefit – arguing it had worked for the common benefit from the get-go, and that its cause of action for declaratory relief was essentially a partition action.  The 1/3 DCA found no abuse of discretion.  Plaintiff’s declaratory relief cause of action sought a declaration as to which parties were responsible for the property taxes and upkeep of the property – not the equivalent of a partition action.

            As to plaintiff’s argument that the trial court lacked jurisdiction to grant defendants’ ex-parte motion for disbursement, the appellate panel disagreed.  There was no error in the trial court’s determination that the case was not automatically stayed, and that an undertaking was required to stay the case pending the appeal as the judgment did not only consist of costs/fees.  (Code Civ. Proc. § 917.1; Dowling v. Zimmerman 85 Cal.App.4^th 1400, 1432 (2001).)

Allocation, Partition: Code Civ. Proc. § 874.010 Attorney’s Fee Award Of $105,147.50 For Partition Claim Affirmed Notwithstanding The Inclusion Of Fees Incurred For Other Causes Of Action

All Of The Claims And Defenses In The Action Were Inextricable Intertwined.

            In partition actions, Code Civ. Proc. § 874.010(a) authorizes an award of “[r]easonable attorney’s fees incurred or paid by a party for thee common benefit,” and Code Civ. Proc. § 874.040 requires the trial court to “apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.”

            In Flannery v. Murray, Case No. B287284 (2d Dist., Div. 3 August 24, 2020) (unpublished), plaintiff and defendant purchased a 13-acre horse boarding ranch.  They agreed to be 50/50 owners, and each contributed toward the down payment and improvements, but defendant had a low credit score, so her name was not on the loan nor the title.  The parties’ 20-year relationship ended 7 years later, and litigation ensued over ownership of the parties’ boarding ranch – as well an insurance payout for a fire at the ranch.  Among the many causes of action alleged, both claimed a cause of action for partition.

            In the end, the trial court determined defendant was a half-owner of the ranch along with plaintiff, and was entitled to one-half of the insurance proceeds.  Defendant then moved for a post-judgment fees award pursuant to § 874.010 – seeking from plaintiff one-half of the $371,076.66 in fees she incurred.  Plaintiff opposed – arguing the fees were excessive and that defendant was entitled to recover only the reasonable fees she incurred in prosecuting her partition claim. 

            The trial court disagreed with plaintiff's contention, and awarded defendant $105,147.50 – reduced from the requested $185,538.33 for some excessiveness in time claimed to have been spent by plaintiff’s counsel, for excessive hourly rates, and for time entries for unrelated litigation. 

            Plaintiff appealed – arguing the trial erred because defendant was entitled to fees for no more than 26.5 hours of time spent on her partition claim, not for fees defendant incurred in connection with her other claims or in defense of plaintiff’s claims.

            The 2/3 DCA affirmed – finding no abuse in discretion in the trial court’s determination that all of the claims and defenses in the case related to the partition claims, and finding the trial court properly determined all the attorney fees incurred in the action were inextricably intertwined.  As a result, all the expenses incurred qualified for an award.   (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129-130.)

Partition: Trial Judge Did Not Erroneously Order One Sibling In Partition Action To Pay A Greater Share of Attorney’s Fees Than Other Sibling Parties Based On Being Obstreperous During The Course Of The Litigation

Appealing Sibling Ordered To Pay $95,896.43 Out Of $184,847.52 Fee/Costs Award For Partition Litigation Expenses.

            In a partition action, the court has discretion to apportion the costs of the action among the parties in proportion to their interests or “such other apportionment as may be equitable.”  (Code Civ. Proc., § 874.040.)  These costs encompass the reasonable attorney’s fees incurred or paid by a party for the common benefit.  (Code Civ. Proc., § 874.010(a).)  In doing so, both these provisions provide flexible avenues for the trial courts to allocate costs or fees against a party pressing spurious matters (Forrest v. Elam, 88 Cal.App.3d 164, 174 (1979)) or require a party to bear its own fees under certain circumstances (Lin v. Jeng, 203 Cal.App.4^th 1008, 1025-1026 (2012); see also Orien v. Lutz, 16 Cal.App.5^th 957, 968 (2017)). 

            These principles were fully at play in Nyberg v. Moacanin, Case No. B293594 (2d Dist., Div. 5 May 14, 2020) (unpublished), a partition action involving four siblings where a sale of an Old Town Pasadena building was ordered in light of them being tenants in common.  The problem is that one of the siblings apparently was abusive and impeded efforts to list the property for sale, as well as opposed some reasonable steps in the partition action.  The trial judge decided that this sibling should pay $95,896.43 out of the $184,847.52 in fees and costs incurred in the course of the partition action.  Sibling hit with this award appealed, but the 2/5 DCA affirmed.  The facts of record showed no abuse of discretion given sibling’s conduct which was not conducive to selling the property and getting the matter to a resolution. 

Partition, Prevailing Party, Section 1717: Denial Of Section 1717 Attorneys’ Fees To Partially Successful Defendant In Partition Action Affirmed

Defendant Moved Under Civil Code Section 1717 Claiming Entitlement To Fees Pursuant To A Settlement Agreement She Unsuccessfully Sought To Enforce.

            In Carmody v. Mayne, Case No. D076197 (4^th Dist., Div. 1 March 30, 2020) (unpublished) Plaintiff and Defendant entered into an oral agreement to jointly purchase a single family home as an investment property.  Plaintiff provided the majority of the down-payment funds, but the parties held title as joint tenants rather than as tenants in common. 

            When the parties later decided to end their relationship as investment partners, they entered into a “Conditional Settlement Agreement and Mutual General Release Upon Escrow Closing.”  Under this Settlement Agreement, Defendant was to purchase Plaintiff’s interest in the property subject to certain conditions which included a “Time is of the Essence and Liquidated Damages” provision. 

            Escrow was to close within a year of opening.  When that did not happen, the parties disagreed on how to proceed – with Plaintiff believing the Settlement Agreement had terminated by its own terms, thereby eliminating her obligation to transfer her interests in the property to Defendant, and Defendant claiming the Settlement Agreement was still in effect, with escrow just being “on hold.” 

            Plaintiff filed a partition action, and Defendant cross-complained to enforce the Settlement Agreement.

            Plaintiff successfully demurred to all causes of action in Defendant’s second amended cross-complaint, with the trial court sustaining without leave to amend based on its finding that the Settlement Agreement had expired by its own terms when escrow did not close by the specified deadline, and that Defendant could not amend her cross-complaint to survive demurrer based upon the evidence provided.

            A first trial was then held on the partition action, as stipulated to by the parties, to determine issues of lien amounts and each party’s equity in the property.  A second trial would later be held if necessary to determine fair market value of the property. 

            The trial court determined that the parties were novice real estate investors without an understanding of the legal ramifications of holding property as joint tenants or tenants in common, but agreed with Defendant that the property was held in joint tenancy.  However, based on stipulation by the parties that Plaintiff had contributed $119,485 and Defendant had contributed $64,485 toward the down-payment on the property, the trial court ordered that the stipulated down-payment funds be paid first, then the remaining proceeds divided in accordance with Joint Tenancy law. 

            Defendant then moved for section 1717 attorney fees and costs as the prevailing party pursuant to the Settlement Agreement.  Ultimately, the trial court denied Defendant’s motion for fees – finding she had improperly moved under section 1717 as the attorney fees and costs provision contained in the Settlement Agreement was not in play as Defendant had failed in her attempt to have the Settlement Agreement enforced.  Defendant unsuccessfully appealed the demurrer without leave to amend and the denial of fees, among other issues.

            Not only did the 4/1 DCA affirm, but added that Plaintiff could be entitled to attorney fees and costs under section 1717 because she was successful in getting the second amended cross-complaint dismissed with prejudice by arguing the Settlement Agreement had terminated.

Partition: 4/3 DCA, In Unpublished Decision, Allows Trial Court To Apportion Fees/Costs Following A Partition Sale Based On Equitable Circumstances

Panel Follows Lin Rather Than Finney On This Issue.

            Although the particular facts are not that scintillating for posting purposes, Rahgoshay v. Luo, Case No. G056735 (4^th Dist., Div. 3 Sept. 19, 2019) (unpublished), authored by Justice Fybel, does show how it lined up on the standard to be followed for purposes of apportioning attorney’s fees, referee fees, and other costs based on a partition sale.  In effect, the 4/3 DCA panel followed the reasoning in Lin v. Jeng, 203 Cal.App.4^th 1008 (2012), a 2/4 DCA decision, over Finney v. Gomez, 111 Cal.App.4^th 527 (2003), a 2/7 DCA decision, on the issue.   It also looks like Orien v. Lutz, 16 Cal.App.5^th 957 (2017), a 2/8 DCA decision, also lines up with Lin.  Here is what Justice Fybel had to say in Rahgoshay:

“In Finney v. Gomez (2003) 111 Cal.App.4th 527, 548 to 550 (Finney), the

appellate court held that a trial court may only award costs and fees incurred for the common benefit of the parties in a partition action. The appellate court reversed the judgment because the record showed an ‘absence of any rationale by the trial court and any evidence in the record suggesting the fees were for the common benefit,’ resulting in an abuse of discretion in the award of fees. (Id. at p. 549.) The court in Lin v. Jeng refused to follow the holding of Finney because Finney was based on the Law Revision Commission comment to the statute, and not on the statutory language itself, which was unambiguous. (Lin v. Jeng, supra, 203 Cal.App.4th at p. 1025.) We agree with the analysis of Lin v. Jeng that Code of Civil Procedure section 874.040 permits the trial court to apportion fees and costs following a partition sale based on equitable considerations as well as the parties’ interests in the property. (Lin v. Jeng, supra,

203 Cal.App.4th at p. 1025; see Orien v. Lutz, supra, 16 Cal.App.5th at p. 968 & fn. 12 [recognizing disagreement and following Lin v. Jeng].)”

Partition: Trial Judge Did Not Abuse Her Discretion In Allocation of Fees In Partition Dispute

Fees Were Proportionally Allocated, Although Decreased For One Party A Little More For Vague Billings.

            The lower court in Orien v. Lutz, Case No. B289959 (2d Dist., Div. 8 April 30, 2019) (unpublished), apportioned attorney’s fees in a partition dispute for a common benefit proportionately between three parties under Code of Civil Procedure section 874.040. However, the trial judge also reduced one sibling’s fees by a quarter based on vague billings. That reduction from the proportionate amount was no abuse of discretion, because vague billings can justify such a further decrease from the one-third/one-third/one-third allocation made by the lower court. Affirmed.

Partition, Prevailing Party, Section 1717: $99,761.46 Litigant Prevailing In Undeveloped Land Partition By Sale Dispute Was Entitled To Recovery

Litigant Awarded Fees Did Prevail Under CCP §§ 874.010/874.040 And Civil Code Section 1717.

            In Shadab v. Goldberg, Case No. B277925 (2d Dist., Div. 6 Aug. 22, 2018) (unpublished), one side won a partition by sale of undeveloped land, with the trial court eventually awarding attorney’s fees of $99,761.46 after finding the fee claimant “prevailed” under both a purchase agreement fees clause (Civil Code section 1717) and partition fees and allocation statutes (Code of Civil Procedure sections 874.010 and 874.040). The appellate court affirmed the fee and costs awards. The losing side had a disorganized trial presentation and was obstructionist in nature, both client and counsel.   Fee claimant won all that she sought, so sustaining the result below seemed easy for the reviewing court.

Judgment Enforcement/Partition: Judgment Creditor Failed To File Appeal From Partition Distribution Order So As To Challenge Fees Awarded To Successful Party In Partition Action

Also, Judgment Creditor’s Lien Against Other Tenant In Common Did Not Impact Winning Tenant In Common’s Partition Award.

            The Fourth District, Division 1, in Sikes v. Sikes, Case No. D071576 (4^th Dist., Div. 1 June 27, 2018) (unpublished), dealt with a nasty partition fight between brothers where one brother induced another brother to relocate from the East Coast to San Diego, but denied him the use of one of the residences which was a later subject of dissatisfied brother’s partition action. Dissatisfied brother basically won the partition battle against the other brother, obtaining a much more favorable distribution of proceeds from sale of the properties (including attorney’s fees expended under a common benefit theory). However, lo and behold, a judgment creditor of the losing brother—who had a judgment against the losing brother based on a road rage attack incident--tried to claim priority based on his judgment lien, but the trial court decided that the lien could not attach to winning brother’s successful partition award (attaching only to the losing brother’s award). That determination was affirmed on appeal. However, judgment creditor claimed it was improper for winning brother to obtain common benefit fees, but that challenge failed because creditor did not appeal the partition award so as to have standing to contest the fee ruling.

Partition: Appellate Court Reversed Lower Court’s Denial Of Request To Apportion Fees And Costs Based On Party’s Filing Only A Joinder Motion

1/3 DCA Believed Joinder Adequately Teed Up The Issue, Plus It Followed Lin Rather Than Finney On The Discretion Allowable When Making Partition Apportionment Adjudications.

            Joinders can pose tricky issues for litigants and practitioners, with lower courts having very different “local, local” rules/protocols (sometimes not even articulated) about how joinders are to be presented for consideration.  In the next case, the appellate court reversed the denial of a litigant’s request for apportionment of partition fees and costs under Code of Civil Procedure sections 874.101 and 874.040 based on the litigant’s joinder with a motion by another party.

            The 1/3 DCA in Pittman v. Vau, Case No. A148222 (1^st Dist., Div. 3 Apr. 27, 2018) (unpublished) believed that the joinder was an appropriate vehicle to raise the apportionment issue, especially given the lack of statutory authority for the practice of joinder in civil motions.  However, by analogy to marital dissolution cases, the appellate panel found joinder was the only reasonable alternative to raise the apportionment issue after one party moves and found nothing in the language of section 874.040 which required a noticed motion for recovering partition costs/fees. 

            Beyond that, however, the 1/3 DCA also followed Lin v. Jeng, 203 Cal.App.4^th 1008, 1025 (2012) [2d Dist., Div. 4] rather than Finney v. Gomez, 111 Cal.App.4^th 527, 547-548 (2003) [2d Dist., Div. 7] on the issue of whether section 874.040 places limitations on the equitable consideration which a lower court can rely upon in making an apportionment decision.  Both Lin and now Pittman agree that the discretion is quite broad, disagreeing with the Finney court’s limitations.  However, keep in mind that Pittman is unpublished, but does show a trend in how appellate panels are lining up on the issue.

Partition: Trial Judge Has Considerable Discretion To Apportion Partition Fees And Costs

This Decision Demonstrates Apportionment Can Be A Substantial Percentage To Side Running Up The Costs Of Litigation

            Code of Civil Procedure section 874.040 allows the court in a partition action to apportion costs in proportion to parties’ interests or “as may be equitable,” with costs defined broadly in section 874.010 to include reasonable attorney’s fees incurred/paid for the common benefit, referee’s costs and expenses, and compensation for other professionals employed by the referee in the action.

            Pippins v. Jah, Case No. A150218 (1^st Dist., Div. 5 Apr. 4, 2018) (unpublished) shows how that discretion can be exercised when an apportionment motion is brought and one side has made the litigation more lengthy/expensive through obstructionist activities.  The trial court in this case did apportion over 96% to 100% of certain categories of costs to the obstructionist side, an equitable discretionary ruling affirmed on appeal under the abuse of discretion standard.

Partition/Section 1717: $81,700.50 Fee Award To Partitioning Litigant Reversed Based On Fee Clause In Prior Settlement Agreement

However, Matter Remanded To Examine If Litigant Entitled To Fees Under Partition Fee-Shifting Provisions.

            Orien v. Lutz, Case No. B277323 (2d Dist., Div. 8 Nov. 3, 2017) (published) is a situation demonstrating how contractual fee provisions, interpreted de novo, can lead to reversal of a fee award.  However, the victory may not be complete if there is an independent basis for fee recovery which may have to be addressed on remand, as Orien shows.

            In this one, the parties having undivided proportionate interests in real property reached a settlement agreement confirming that no one waived the right to partition and that any dispute to interpret/declare rights under the settlement agreement would give rights to recover fees to the prevailing party.  One of the parties did seek to partition, which resulted in an interlocutory judgment for partition by sale, with the trial court awarding $81,700.50 (out of a requested $108,934) in fees based on the fees clause (under Civil Code section 1717) to the prevailing litigant.  Curiously, although recognizing that the partitioning litigant incurred fees for the “common benefit” of others under the partition fee-shifting provisions (Code Civ. Proc., §§ 874.010, 874.040), the trial judge declined to apportion fees as required under the partition statutes and awarded them all of the awarded fees to the partitioning litigant under section 1717.  That inspired an appeal.

                 The appeal was successful. 

            On the issue of fee entitlement under section 1717, the 2/8 DCA panel determined that the settlement agreement language did not create a new right, but only confirmed there was no waiver of a partition right.  Given this construction of the agreement, the fee clause did not encompass fee recovery for the partition action because that independent action really was not encompassed within the ambit of the settlement agreement fee provision. 

            That was not the end of the story, however.  Fees in favor of a partitioning litigant, in a contested partition proceeding, can indeed be for the common benefit such that on remand the trial judge needed to exercise discretion under the partition fee-shifting provisions to consider an allocation of fees “to the extent they are reasonable and incurred for the common benefit.”