Attorney’s Fees in a California Partition Action

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.

Attorney’s Fees are “Costs of Partition” that Can be Recovered in a Partition

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).

“Except as otherwise provided in this article, 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.

Apportionment of Attorney’s Fees in a Partition – Default Rule is in Proportion to Their Ownership Interests

While Code of Civil Procedure § 874.040, makes it appear that the court can allocate fees fees either in proportion to the ownership interest or in another manner, the default rule is that the apportionment should be in proportion to the ownership interests.

“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).

Attorney’s Fees are Not Awarded to the Prevailing Party in Partition Actions

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.” From these authorities, it is evident that the “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.” 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.

Are Contested Issues for the Common Benefit in a Partition Action?

“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.’ 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. 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).” Orien v. Lutz (2017) 16 Cal. App. 5th 957, 968 (citations omitted).

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 ‘spurious matters.'” 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).

The Trick to Recovering Partition Attorney’s Fees Against an Uncooperative Co-Tenant

Partition of Real Property Act Change to Attorney’s Fees in a Partition

Effective January 1, 2023, the Partition of Real Property Act adds another rule to attorney’s fees as follows:

In an action for partition of property, the court may apportion the costs of partition, including an appraisal fee, pursuant to Section 874.040, except that the court shall not apportion the costs of partition to any party that opposes the partition unless doing so is equitable and consistent with the purposes of this chapter.

California Code of Civil Procedure 874.321.5

This statute exists only in California, meaning it did not derive from the Uniform Partition of Heirs Property Act as did most of the Partition of Real Property Act. This means that there will not be cases from other states interpreting this exact language. Currently, there are no cases in California interpreting this statute, either. From the text of the statute, it would appear that the party moving for attorney’s fees is not required to meet any burden under this statute. However, a party opposing a motion for attorney’s fees can argue that they are being allocated to a “party that opposes the partition” and that doing so is not “equitable and consistent with the purposes of this chapter.” Making clear to the court exactly what this means will require the expertise of a skilled partition lawyer.

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.

Tricks to Collecting Your Legal Fees in a Partition Action

While documenting the non-cooperation of the defendant is a very common way to obtain attorney’s fees in a partition action, such non-cooperation is the exception, not the rule.

In ordinary partitions where each side takes potentially reasonable positions, a better strategy is to make an offer to settle a partition action under Code of Civil Procedure Section 998. If the other side does not obtain a better result, legal fees, Realtor fees, and referee fees can be shifted entirely to the other side.

998 Offers in Partition Actions to Force a Settlement

Talkov Law's Partition Attorneys Can Help

If you want to end your co-ownership relationship, but your co-owner won’t agree, a partition action is your only option. With seven, full time partition lawyers, Talkov Law is the #1 partition law firm in California and has handled over 300 partition actions throughout California. Every case has resulted in a sale to either a third party or one of the co-owners. Not a single court has denied our clients the right to partition or declared our client to be a non-owner. Plus, for qualified cases, there is no fee until we settle or win your case!

If you're looking to end your co-ownership dispute, contact California's premier partition action law firm by calling Talkov Law at (844) 4-TALKOV (825568) or sending us a message today.

Avatar photo
About Talkov Law Partition Attorneys

The partition attorneys at Talkov Law end co-ownership disputes by representing co-owners in real estate partition actions throughout the State of California.

Talkov Law is Rated 5 out of 5 stars based on 39 customer reviews.

Contact Us Today for a Free Consultation & Pay No Retainer

Call Talkov Law to discuss having your legal fees paid from the proceeds of sale of your property and no money down

      Awards and Recognition

      US News and World Report Scott Talkov

      We Have Been Featured On:

      The Real Deal

      Offices Throughout California

      Los Angeles Office
      10880 Wilshire Blvd Ste 1101
      Los Angeles, CA 90024
      Phone: (310) 496-3300

      Orange County Office
      4000 MacArthur Blvd Ste 655
      Newport Beach, CA 92660
      Phone: (949) 888-8800

      San Jose Office
      99 S. Almaden Blvd Suite 600
      San Jose, CA 95113
      Phone: (408) 777-6800

      San Diego Office
      11622 El Camino Real Ste 100
      San Diego, CA 92130
      Phone: (858) 800-3300

      San Francisco Office
      50 California St, Ste 1500
      San Francisco, CA 94111
      Phone: (415) 966-3300

      Riverside Office
      3610 Central Ave, Ste 400
      Riverside, CA 92506
      Phone: (951) 888-3300

      Sacramento Office
      500 Capitol Mall, Suite 2350
      Sacramento, CA 95814
      Phone: (916) 668-3300

      The information on this site, including the Talkov Law Blog, is intended for general information purposes only. By using this site, you agree that any information contained in the site does not constitute legal, financial or any other form of professional advice. Information on this site may be changed without notice and is not guaranteed to be complete, accurate, correct or up-to-date.