Will My Attorney Fees Be Paid for by the Other Side in a Partition Case?

WILL MY LAWYER FEES BE PAID FOR BY THE OTHER SIDE IN A PARTITION CASE?

It is Possible for Your Attorney’s Fees to be Paid in a Partition Action!

A party may be entitled to the costs of partition which include reasonable attorney’s fees incurred for the common benefit.  California Code of Civil Procedure Sections (CCP) 873.820, 874.010.

California Partition Law allows a court to divide attorney’s fees based on ownership interests or based on equity (fairness).

California Code of Civil Procedure Section 874.010 states that costs of partition include:

• Reasonable attorney’s fees incurred or paid by a party for the common benefit.
• The fee and expenses of the referee.
• The compensation provided by contract for services of a surveyor or other person employed by the referee in the action.
• The reasonable costs of a title report procured pursuant to Section 872.220 with interest thereon at the legal rate from the time of payment or, if paid before commencement of the action, from the time of commencement of the action.

California Code of Civil Procedure Section 874.020 states:

The costs of partition include reasonable expenses, including attorney’s fees, necessarily incurred by a party for the common benefit in prosecuting or defending other actions or other proceedings for the protection, confirmation, or perfection of title setting the boundaries, or making a survey of the property, with interest thereon at the legal rate from the time of making the expenditures.”

SUMMARY OF CALIFORNIA COURT DECISIONS ON WHEN YOU CAN GET ATTORNEY FEES IN A PARTITION CASE

What are attorney’s fees incurred for the common benefit?

California Partition Law allows for a party to be awarded lawyer’s fees, or part of their lawyer’s fees, based on equity (fairness).  In other words, a party may be entitled to its attorney’s fees if the Court finds that it is fair to do so.

The purpose of the law regarding attorney’s fees in partition cases “was to place the burden of the expense for services of counsel upon those parties sharing in the benefits realized from such services, and that burden is specifically placed upon the parties ‘entitled to share in the lands divided,’ that is, the owners.”  (Stewart v. Abernathy (1944) 62 Cal.App.2d 429, 431–432; see Capuccio v. Caire (1932) 215 Cal. 518, 525.)

While the law in this area has a lot of nuances, one thing that is clear is that trial courts have a lot of discretion in apportioning fees.

Here are some examples of California Appellate Court Decisions related to attorney’s fees in partition claims:

• A trial court may deny reimbursement of attorney’s fees under CCP § 874.010 as not being for the “common benefit”
• A trial court may deny reimbursement of attorney’s fees under CCP § 874.040 under principles of equity
• A party may not be allowed reimbursement for attorney’s fees that are incurred in connection with the real property at issue prior to asserting a partition claim
• A trial court may deny costs as unreasonable, unnecessary, or incurred solely for the benefit of the party seeking reimbursement
• A California Appellate Court found that fees were incurred for the common benefit where a party arguing against the fee award had advocated meritless arguments which caused the other side to incur such fees
• When multiple claims are involved, an award of attorney’s fees incurred pursuing all claims may be granted where the claims are inextricably intertwined

A DEEPER DIVE INTO LAWYER FEES IN PARTITION CASES

• In Gentino v. Yaghoobia (2023), involving a property in Long Beach, the defendant won, with the Court finding that Plaintiff did not have a 50% interest in the property as claimed. The Defendant moved for attorney’s fees, but was denied, with the California Appellate Court (in an unpublished decision) upholding the lower court’s finding that the Defendant’s attorneys’ fees were not incurred for the common benefit, and thus were not to be given under the partition law.  It is important to understand that Appellate Courts review a Trial Court’s finding in this context based on an “abuse of discretion” – in other words, an Appellate Court does not decide whether the fees were incurred for the common benefit –instead, the Appellate Court just decides whether the lower court abused its discretion in making the finding.
• Nielson v. Courtney (2023) involved a property in Newbury Park, Ventura County that was owned by a couple for 16 years. The Trial Court found that both sides were contentious, a “consequence of their ‘toxic relationship,’ one akin to ‘two scorpions in a bottle’” and that because of this, the attorneys on both sides were necessary as the ex-couple “would never have accomplished a partition sale by themselves.”  The Trial Court further found that it was impossible to determine which side refused to cooperate, as both sides went back and forth.   As note above, Appellate Courts do not decide whether the fees were incurred for the common benefit –instead, they simply look over and decide whether the lower court abused its discretion (meaning, the ruling was clearly unreasonable, arbitrary, or erroneous).
• DeMartini v. DeMartini (2022) involved a mixed-use property in Grass Valley, Nevada County that was inherited and owned by siblings and their spouses.  The trial court awarded $790,967 in attorney’s fees and environmental clean-up costs related to the remediation of the property.  The Appellate Court upheld the award, finding no abuse of discretion, demonstrating the leeway a lower court has in apportioning costs under California Partition Law. Since the Department of Toxic Substances Control had apparently required certain clean-up, the Appellate Court found that it “appears to be a prerequisite for the sale of the Property, [and as such] it is difficult to imagine how money spent towards achieving such remediation could be understood as being for anything other than the common benefit.”
• Thornber v. Colby (2022) involved a single-family residence in Rocklin, Placer County. The Court found that Defendant took meritless positions in the case, including unsuccessfully filing a demurrer and cross-complaint, and dragging out a trial with redundant testimony and irrelevant requests, all centered around contesting the authenticity and validity of the deed.  The trial Court ordered $60,000 in attorney’s fees apportioned equally amongst the parties in relation to their interests, and the Appellate Court, in an unpublished decision, affirmed.
• In Lin v. Jeng (2012), the Court found that plaintiff sought to prevent siblings from obtaining interests to which they were entitled, claimed an interest she was clearly not entitled to, and “created unnecessary procedural hurdles” and, as such, it was equitable to require her to bear her own attorney’s fees.
• In a published opinion, the Appellate Court in Orien v. Lutz (2017) found that “fees incurred by a defendant to a partition action [can] be for the common benefit, and therefore allocable in part to the plaintiff, despite the fact that the defendant had ‘resisted partition. ” (citing Riley v. Turpin (1960)). The Court further found that even when fees are incurred in arguing over disputes as to shares and interests, they can be for the common benefit.  The Court held that “[T]he ‘common benefit’ in a partition action is the proper distribution of the “respective shares and interests in said property by the ultimate judgment of the court.”
• After the Appellate Court in Orien v. Lutz remanded the matter back to the Trial Court to apportion attorney’s fees under the Partition Code, the Trial Court determined that each of the 3 parties should have to pay 1/3 of the total attorneys’ fees. The Trial Court also stood by its earlier decision to cut the requested attorney’s fees of the plaintiff from $108,934 to $81,700.50.  Each party was responsible for 1/3 of this amount.  Each party was also 1/3 responsible for the reasonable attorney’s fees of the two Defendants, which was $98,499.00 total.
• Forrest v. Elam (1979). Attorneys fees can be awarded to a defendant when their lawyers “performed services for the common benefit of the parties by resistance to the efforts of [the plaintiff] to take . . . value to which he was not entitled”.  The Court stated that because a partition action “action was contested [is] no bar to the proportional allocation of attorney fees.”  The Court also found that where plaintiff incurred fees based on meritless or unfounded claims to interests they were not entitled to, these fees were not for the common benefit.
• In Riley v. Turpin (1960), under the former partition statute, the Court found that fees incurred by a Defendant could be for the common benefit even where the Defendant “resisted partition, with the claim that plaintiff had no interest in the subject property, that it belonged to defendant alone, and that plaintiff was a mere volunteer in paying the delinquent taxes.”
• Capuccio v. Caire (1932), Court found (under former partition statute) that “counsel fees may be allowed … for services rendered for the common benefit even in contested partition suits.” The Court made clear that fees and costs may still be for the “common benefit” even though they have been incurred in matters “controversial in nature.”  Litigation ceases to be for the common benefit if it “‘arises between some of the parties only,’” or when is a party seeks to deny any benefit to the other parties. See also, Williams v. Miranda (1958).

In the context of awards of attorneys fees per the California Partition Statutes, Appellate Courts only review whether the lower court’s ruling was justified by the evidence or the law.  Indeed, as the Appellate Court in Lin v. Jeng stated, “When a trial court makes a ruling based upon equitable considerations, the abuse of discretion standard applies on review of that ruling”.  Apportionment of attorney’s fees in partition cases is an equitable matter.

However, if attorney’s fees are awarded per contract or settlement agreement, and there is not extrinsic evidence, an Appellate Court will review de novo, meaning “from the beginning” – that is, the Appellate Court will review the contract itself and make its own determination of whether a party was entitled to attorney’s fees under California Civil Code 1717, or not.  In Orien v. Lutz, the Plaintiff unsuccessfully argued that the Trial Court’s award of attorney’s fees was based on a settlement contract, with the Appellate Court finding that the Settlement Agreement did not provide the basis for a partition action—rather, the Appellate Court held, the right to file a partition action is a statutory right, and the Settlement Agreement simply clarified that the parties were not waiving that right.  As such, the Court found that the award of attorney’s fees wasn’t based on successfully enforcing the agreement under Civil Code 1717, but rather was based on the equitable partition statutes, and thus subject to apportionment.

See more:

   Partition Law Past and Present: The Partition of Real Property Act and its Predecessor The Uniform Partition of Heirs Property Act

   What is a Partition Referee?

   Distribution of Proceeds from a Partition Sale: Expenses, Costs, Fees, Liens…and Adjustments Based on Equitable Considerations

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