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), […]
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 In Gentino v. Yaghoobia, Case No. B321102 (2d Dist., Div. 4 Oct. 12, 2023) (unpublished), plaintiff was defensed by a single defendant in a case alleging that plaintiff had a 50% ownership interest in a Long Beach property, with one of the claims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
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
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
Lower Court Retains Lots Of Discretion To Apportion Fees in Partition Action. DeMartini v. DeMartini, Case No. A160849 (1st Dist., Div. 1 June 7, 2022) (unpublished) is a reminder that the partition statutes allow a trial judge broad authority to award and apportion fees to parties in a partition action.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
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 Apr. 20, 2022) (unpublished), a trial judge decided that $60,000 in fees incurred by plaintiffs in a successful partition by sale action should be proportionately allocated between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
Apportionment Under Partition Statutes Is Vested Within Lower Court’s Equitable Discretion. In Hofmann v. Hofmann, Case No. F079977 (5th 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 July 15, 2021) (unpublished), trustee son Michael was obviously not happy when he lost a partition action to trust beneficiaries (his siblings) and the current property owner.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
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 (5th 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
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
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.
