Attorney's Fees in a California Partition Action

Contents hide

1. Attorney’s Fees in a Partition Action in California

2. What is Considered “For the Common Benefit”?

3. Attorney’s Fees Against Parties Advocating a Position of Limited Merit and Pressing Spurious Matters

4. How Much are Attorney’s Fees in California?

5. Contact an Experienced Partition Attorney in California

Attorney’s Fees in a Partition Action in California

Of all of the questions we are asked as partition attorneys, questions revolving around attorney’s fees are some of the most common. Co-ownership disputes and an ensuing partition action can be expensive when a co-owner refuses to cooperate with the sale of the property. Even further, recovering attorney’s fees from an uncooperative co-owner can feel impossible. California partition statutes allow for attorney’s fees to be accounted for in the costs of partition, which are taken out of the proceeds of sale of the property. Among other things, the costs of partition include “Reasonable attorney’s fees incurred or paid by a party for the common benefit.” Code Civ. Proc. § 874.010(a). Generally, “the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.” Code Civ. Proc. § 874.040.

“The fees must be apportioned among the parties in proportion to their interests, unless the court determines that some other apportionment is more equitable. (C.C.P. 874.040. See Finney v. Gomez (2003) 111 C.A.4th 527, 545, 3 C.R.3d 604 [trial court abused discretion in awarding 100% of fees incurred in partition action to plaintiff; fees should have been divided in proportion to parties’ ownership interest in property; additional fees that plaintiff incurred in consulting bankruptcy attorney should not have been awarded at all without evidence that they were for common benefit]; Lin v. Jeng (2012) 203 C.A.4th 1008, 1022, 138 C.R.3d 84 [trial court properly apportioned attorneys’ fees to place entire liability for plaintiff’s fees on plaintiff, rather than apportioning them among her siblings according to their interests; C.C.P. 874.040 permits trial court to apportion based on equitable considerations, which here included finding that plaintiff manipulated process to deprive siblings of their fair share]; Orien v. Lutz (2017) 16 C.A.5th 957, 965, 224 C.R.3d 736 [fees incurred for common benefit by either party in contested partition proceeding may be allocated among parties].)” Partition Actions., 7 Witkin, Cal. Proc. 6th Judgm § 229 (2022) § 229; see In re Flynn, 297 B.R. 599, 605–06 (B.A.P. 9th Cir. 2003), rev’d and remanded on other grounds, 418 F.3d 1005 (9th Cir. 2005).

Yet another court discussed the issue of attorney’s fees in a partition, stating: “We note initially that section 874.010 is not a prevailing party statute. Its purpose is to spread the fees and costs associated with partition among those who benefit from it. (See Capuccio, supra, 215 Cal. at p. 525; Stewart v. Abernathy, supra, 62 Cal. App. 2d at pp. 431-432.) Section 874.040 reinforces this intent; attorney fees are not shifted from one party to another – as would be the case in a prevailing party fee statute – unless it would be equitable to do so. (See, e.g., Lin v. Jeng (2012) 203 Cal.App.4th 1008, 1025-1026.) Absent some inequity, the party incurring the fees and costs pays his or her proportional share.” Nguyen v. Le (Cal. Ct. App., Jan. 23, 2023, No. G061299) 2023 WL 354729, at *3.

In other words, the court may order that a plaintiff is entitled to the entirety of his or her attorney’s fees from the defendant’s portion of the proceeds of sale of the home.

What is Considered “For the Common Benefit”?

Code of Civil Procedure Section 874.010(a) defines one of the costs of partition as “Reasonable attorney’s fees incurred or paid by a party for the common benefit.” The “common benefit” is described as “the proper distribution of the ‘respective shares and interests in said property by the ultimate judgment of the court.'” (Capuccio v. Caire, (1932), 215 Cal. at p. 528, italics omitted, 11 P.2d 1097.) Orien v. Lutz (2017) 16 Cal.App.5th 957, 967.

“In a partition action, a court can only award those costs and fees incurred for the common benefit of the parties. What constitutes ‘for the common benefit’ is to be determined based on the facts and circumstances of each particular case. Typically reviewing courts have not found the fees and costs incurred in adjudicating contentious issues between parties to a partition to be ‘for the common benefit.’ In some instances, the reviewing court has inquired into whose interests were being protected by the services provided, whether the services contributed anything of benefit to the cotenants, or whether one party’s counsel’s services made the proceedings any more advantageous to the other party.” Finney v. Gomez, (2003) 111 Cal. App. 4th 527, 548–49.

“We note that while the presence of contested issues does not bar the allocation of fees in partition actions, defendants are nonetheless protected from plaintiffs who bring unfounded claims or otherwise drive up costs unnecessarily, just as plaintiffs are protected from unscrupulous defendants. Sections 874.010 and 874.040 provide numerous avenues for trial courts to adjust the allocation of costs if, for example, fees are incurred for purposes that unduly exacerbate the dispute or do not provide a common benefit to all parties. For instance, under section 874.010 a court may find that fees incurred ‘advocat[ing] a position of limited merit’ are not for the common benefit and should be borne by the party ‘pressing’ such ‘spurious matters.'” (Forrest, supra, 88 Cal.App.3d at p. 174, 151 Cal.Rptr. 591; id. at p. 173, 151 Cal.Rptr. 591 [proper to reduce fees to plaintiff who presented “a time consuming and meritless contention that he should receive some amount greater than that to which he [was] legally entitled”].) Or, a court may achieve a similar result through an exercise of its equitable discretion under section 874.040 and require a party to bear its own fees. (See Lin, supra, 203 Cal.App.4th at pp. 1025-1026, 138 Cal.Rptr.3d 84 [equitable for plaintiff in partition action to bear her own attorney fees when she sought to prevent her siblings from obtaining interests to which they were entitled, herself claimed an interest to which she “was well aware that she was not entitled,” and created unnecessary procedural hurdles].)12 A court also can adjust the allocation of fees incurred by a party to the extent they are not “reasonable” as required by section 874.010, subdivision (a). (Cf. Finney, supra, 111 Cal.App.4th at p. 550, 3 Cal.Rptr.3d 604 [reversing fee award in partition action when trial court made no determination of reasonableness].) Orien v. Lutz, (2017) 16 Cal. App. 5th 957, 968.

The common benefit “does not include activities that took place before partition entered the picture or activities intended to benefit one party over the others.” Nguyen v. Le (Cal. Ct. App., Jan. 23, 2023, No. G061299) 2023 WL 354729, at *2 (citing Williams v. Miranda (1958) 159 Cal.App.2d 143, 158).

Attorney’s Fees Against Parties Advocating a Position of Limited Merit and Pressing Spurious Matters

The recent published decision in Orien v. Lutz, (2017) 16 Cal. App. 5th 957, 968 made clear that “under section 874.010 a court may find that fees incurred advocating a position of limited merit are not for the common benefit and should be borne by the party pressing such spurious matters,” citing a case in which it was deemed “proper to reduce fees to plaintiff who presented ‘a time consuming and meritless contention that he should receive some amount greater than that to which he was legally entitled.'”

In 2023, an unpublished decision cited the same case in confirming that “Common benefit, however, does not extend to the pressing of spurious matters or advocating for a greater share of the proceeds than one is entitled to.” Nguyen v. Le (Cal. Ct. App., Jan. 23, 2023, No. G061299) 2023 WL 354729, at *2

These cases quote Forrest v. Elam (1979) 88 Cal.App.3d 164, 173 setting forth that: “There is no suggestion in Capuccio [v. Caire, 215 Cal. 518, 526] that the parties should share the cost of attorney fees expended in behalf of one party for the presentation of a time consuming and meritless contention that he should receive some amount greater than that to which he is legally entitled. While the concept of attorney fees expended for the common good does not necessarily preclude sums expended in bona fide dispute between the parties, common benefit is not reasonably construed to include the pressing of spurious matters.”
One recent opinion affirmed the ruling that “Van Diepen incurred attorney fees to defend against challenges of limited merit. Such costs should not be charged to her, but rather to Bollinger as the party ‘pressing’ such ‘spuriousmatters.'” Van Diepen v. Bollinger (Cal. Ct. App., Sept. 21, 2020, No. 2D CIV. B299696) 2020 WL 5626890, at *2.

Accordingly, the law is that recoverable attorney’s fees incurred for the “common benefit…may extend to resisting spurious matters.” Nguyen v. Le (Cal. Ct. App., Jan. 23, 2023, No. G061299) 2023 WL 354729, at *2 (citing Forrest v. Elam (1979) 88 Cal.App.3d 164, 173).

How Much are Attorney’s Fees in California?

Every partition case is different, and there’s no way to predict exactly how much your attorney’s fees will be. The experienced partition attorneys at Talkov Law have the expertise to expedite partition actions, meaning that your overall attorney’s fees and costs will be lower than many other less knowledgeable attorneys. As a very general approximation, most partition actions cost around $8,000, with most ranging from around $5,000 – $14,000 for most cases. Of course, this depends on the complexity and circumstances of each individual case.

Contact an Experienced Partition Attorney in California

If you want to end your co-ownership relationship, but your co-owner won’t agree, a partition action is your only option. Our knowledgeable partition lawyers have years of experience ending co-ownership disputes and can help you unlock the equity in your property. For a free, 15-minute consultation with an experienced partition attorney at Talkov Law, call (844) 4-TALKOV (825568), email us at info(at)talkovlaw.com, or fill out a contact form online. Contact Talkov Law today to find out how you can pay nothing today and have your legal fees paid from the proceeds of sale of your property!