Stutz v. Davis

Opinion

KINGSLEY, J.

This is an appeal from a judgment awarding attorney fees in a partition proceeding. The appellant contends: (1) the trial

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court used the wrong formula in awarding fees; and (2) that the trial court improperly awarded attorney fees to two defendants in that action. We agree with appellant and reverse the portion of the judgment awarding fees.

Appellant and respondent were owners of commercial real property in Los Angeles County and held title as tenants in common. Appellant owned two-thirds of the property and respondent Stutz owned one-third. Plaintiff Stutz, respondent here, initiated a partition action and named appellant Davis and two lienholders as defendants. The complaint sought to have the property sold at public sale; but, through negotiations, the parties agreed that the property would be sold at private auction between the parties. The auction was held in court and the property was sold to respondent Stutz. The sale was confirmed at a subsequent hearing and attorney’s fees and costs were also awarded. These fees were awarded at respondent’s request and over appellant’s written opposition. The attorney’s fees were awarded as follows: Petitioner Stutz $7,500 plus costs; defendant Davis $2,500 plus costs; and each lienholder $1,000 plus costs. All attorney’s fees and costs were to be paid from the proceeds of the partition sale. The proceeds of the sale were to be paid to appellant, and appellant’s two-thirds interest in the property was being transferred to respondent. Consequently appellant is being charged with all the attorney’s fees. Appellant contends that the trial court was wrong in this 'award. We agree with appellant and therefore reverse.

I

The statutory authority which allows attorney’s fees in partition actions is Code of Civil Procedure section 874.010. This section states, “The costs of partition include: (a) Reasonable attorney’s fees incurred or paid by a party for the common benefit.” This section, read in conjunction with Code of Civil Procedure section 874.040 which states: “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,” leads to the conclusion that costs should be awarded in proportion to the litigant’s interest in the property. The purpose of of the statute is stated in