A co-owner who files a partition action does not have to carry the legal bills alone just because the other owners fight the case. In Capuccio v. Caire (1932) 215 Cal. 518, 528–529, the California Supreme Court held that a partition plaintiff’s reasonable attorney’s fees for work that benefits all owners are divided among all of them, even in a hard-fought, contested partition. The court also held that fees can be shared once they are owed, before they are paid, and that a plaintiff’s own fee deal with her lawyers does not defeat the award.
Why Capuccio v. Caire Matters
Co-owners who want out often ask a fair question: if my sibling or partner fights the partition, am I stuck paying for the whole lawsuit? Capuccio answers no. It remains one of the leading California Supreme Court decisions on attorney’s fees in a California partition action, and later cases still rely on it:
- Fees spent on contested issues can still be for the common benefit and shared by ownership.
- A fee does not have to be paid already. Fees that are owed count.
- The fee award belongs to the co-owner who filed, not to her lawyer, so a separate fee arrangement with counsel does not block it.
Today, Code of Civil Procedure section 874.010 (CCP 874.010 on the costs of partition) makes “Reasonable attorney’s fees incurred or paid by a party for the common benefit” a cost of partition, and CCP 874.040 on apportioning costs tells the court to “apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.” Capuccio explains where that rule came from.
The Facts: Splitting Up Santa Cruz Island
Santa Cruz Island, the largest of the Channel Islands off Santa Barbara County, covers about 58,800 acres. It was owned by the Santa Cruz Island Company. When the company lost its corporate charter in 1912, its stockholders became tenants in common of the island. (Capuccio, at pp. 520–522.)
In 1918, stockholder Aglae Capuccio sued to partition the island. The other owners fought her at nearly every step, including whether they were co-owners at all. The Supreme Court affirmed the interlocutory decree of partition in 1922, and court-appointed referees then divided the land. (Capuccio, at pp. 521–523.)
Capuccio then asked the court to have her attorney’s fees paid by all the owners in proportion to their shares, under former Code of Civil Procedure section 796, the statute in effect at the time. The trial court refused even to hear evidence, ruling that fees are not allowed in a contested partition. In Capuccio v. Caire (1929) 207 Cal. 200, the Supreme Court reversed and sent the motion back. (Capuccio, at pp. 522–527.)
On remand, Capuccio’s lawyer testified that his work for the common benefit over eleven years was worth $75,000, leaving out collateral matters. Another attorney put the value at $87,500. The other owners offered no evidence of their own. The trial court awarded $75,000 and charged the defendants with $64,500 of it. The Santa Cruz Island Company, which had taken over the other defendants’ interests, appealed. (Capuccio, at pp. 527–528.)
How the Supreme Court Decided the Case
A Fight Over the Partition Does Not Defeat Fee Sharing
The company argued that work on the many contested issues could not count as being for the common benefit. The court said it had already rejected that argument in the 1929 appeal, which held that the more just and equitable rule:
“would require a proper division of the expenditures entailed in the maintenance of such actions for the common benefit among those who shall have been found to be entitled to their respective shares and interests in said property by the ultimate judgment of the court regardless of whether or not there had arisen and been litigated controversies”
Capuccio, at p. 528, quoting Capuccio v. Caire (1929) 207 Cal. 200, 208
The court then said what that meant: counsel fees may be allowed “for services rendered for the common benefit even in contested partition suits.” (Capuccio, at pp. 528–529.)
The court noted one limit in the old statute. When litigation arose between only some of the parties, the court could make those parties pay for it. That limit did not help the company, because the trial court had considered only common-benefit work. As the Supreme Court put it, “The trial court was careful.” (Capuccio, at p. 529.)
$75,000 Was a Reasonable Fee
The court found the fee reasonable given “the nature and quantum of the services performed, the protracted character of the litigation, and the great value of the property partitioned.” The referees’ agreed fee of $37,500 for about a year of work also supported it. (Capuccio, at p. 529.)
Fees Owed Count, Not Just Fees Paid
The company argued that the old statute allowed only fees the plaintiff had already expended, meaning paid. The court disagreed. Read reasonably, it held, expended means the same thing as incurred, so fees the plaintiff owes but has not yet paid can be shared. (Capuccio, at p. 530.) Today’s CCP 874.010 says the same thing directly, covering fees incurred or paid for the common benefit.
The Plaintiff’s Fee Deal With Her Lawyers Did Not Matter
Finally, the company argued that Capuccio had promised part of her island interest to her lawyers, making them interested parties who could not receive a fee. The court rejected this: “The Code section provides for an allowance of counsel fees to the plaintiff, in which allowance the attorney has no personal interest.” (Capuccio, at p. 530.) The transfer was for work done for Capuccio alone and had been canceled anyway. Such an agreement can be considered in valuing the services, but it does not take away the plaintiff’s right to the award. (Capuccio, at pp. 530–531.)
The Result
The Supreme Court affirmed every order: the $75,000 fee, its division among the owners, and the denial of the company’s request for special findings. (Capuccio, at p. 531.)
Is Capuccio Still Good Law?
The Legislature replaced former section 796 in 1976 with today’s CCP 874.010 and CCP 874.040, and some later decisions describe Capuccio as superseded by statute. That change concerns the old statute’s single exception. As the Court of Appeal explained in Lin v. Jeng (2012) 203 Cal.App.4th 1008, 1024, “there no longer is a single, specified, exception to an otherwise mandatory rule.” Courts can now make any apportionment that is equitable.
The core holding still stands. In Orien v. Lutz (2017) 16 Cal.App.5th 957, 967, the Court of Appeal relied on Capuccio and held that the current statutes “provide no basis to disregard the clear precedent of Capuccio and Riley.” The common benefit is the proper division of each owner’s share, and “The fact that a party resists the partition does not change this.” (Orien, at p. 967.)
What Capuccio v. Caire Means for California Co-Owners
- If you file for partition and your co-owners fight, your reasonable fees for the common benefit can still be shared by ownership, usually from the sale proceeds. See who pays for a partition action.
- You do not have to pay your lawyer first to have the fees shared.
- Your own fee arrangement with your lawyer does not cancel the award.
- A co-owner who drives up the litigation may end up paying more. Under CCP 874.040 and Lin v. Jeng, the court can shift fees to that owner. See recovering partition attorney’s fees against an uncooperative co-owner.
For how courts split fees today, see also Finney v. Gomez and Stutz v. Davis.
Get Help Forcing the Sale of Co-Owned Property
If your co-owners refuse to sell or buy you out, a partition action can end the standoff, and their resistance does not leave you paying for everything. When you are ready, you can file a partition lawsuit.
Talkov Law can help. With 12 full-time partition attorneys and experience in over 650 partition actions throughout California, our team handles every step of the process, from filing through the sale and the final division of proceeds and fees. Call (877) PARTITION (727-8484) today or contact us online to get started.
