Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CV019526, SV246738
CANTIL-SAKAUYE, J.
After a final judgment of partition of real property and accounting was entered, the trial court ordered defendant Efren R. Sandoval to pay plaintiff Charco Ventures $95,267.41 in attorney fees and costs pursuant to Code of Civil Procedure section 874.010. Section 874.010 authorizes an award of costs in a partition action to include reasonable attorney fees that have been “incurred or paid by a party for the common benefit.” (Code Civ. Proc., § 874.010, subd. (a).) On appeal, Sandoval argues the trial court made a number of errors in awarding, calculating, and apportioning the fees incurred by plaintiff for the common benefit. We shall affirm the judgment.
Hereafter, undesignated statutory references are to the Code of Civil Procedure.
BACKGROUND
Dr. Stanton M. Charney is a retired ophthalmologist who has owned various real estate investments, usually through a limited partnership, including a limited partnership called Charco Ventures (Charco). Sandoval is a licensed real estate broker who represented Charney and Charco in a series of real estate transactions.
The relationship between Charney and Sandoval broke down as disputes arose between them. One of their disputes involved the sale of a property to which Charco and Sandoval held title together, referred to as the “Holiday” property. Litigation followed. Ultimately, the trial court consolidated two actions filed by Charco against Sandoval, along with two cross-complaints filed by Sandoval. Charco filed a consolidated first amended complaint against Sandoval for fraud, breach of fiduciary duty, dissolution of partnership, partition of the Holiday property, accounting, and declaratory relief. Sandoval’s cross-complaints against Charco and Charney sought rescission of Charco’s half interest in the Holiday property and damages for breach of a partnership contract, breach of fiduciary duty, fraud, and waste.
Charco’s complaint for partition named Sandoval’s wife Cynthia A. Sandoval as an additional defendant. She was also a named plaintiff in the cross-complaint filed in that action. For simplicity, we will refer just to Sandoval in this opinion.
After a court trial in the consolidated actions, the trial court entered an amended judgment which awarded Charco damages totaling $190,500 for Sandoval’s breach of fiduciary duty, ordered the partition by sale of the Holiday property, which it found Charco and Sandoval owned as 50/50 cotenants, and denied any recovery on the cross-complaints. The judgment directed the proceeds from the sale of the Holiday property be applied to pay, among other things, Charco’s “costs, including costs of partition, to be determined by the court upon plaintiff’s filing a memorandum of costs or motion after the final judgment of partition is entered confirming the sale, accounting and distribution of proceeds relating to the Holiday property.” We affirmed the judgment on appeal. (Charco Ventures et al. v. Efren R. Sandoval et al. (May 24, 2007, C051295) [nonpub. opn.].) A final judgment of partition was entered.
Charco and Charney filed a memorandum of costs and a motion seeking attorney fees pursuant to section 874.010 in the total amount of $415,458.75 for the services of both current and prior counsel. Sandoval opposed the motion for attorney fees, claiming, as relevant here, that (a) only $1,462.50 of the fees Charco owed its prior counsel were incurred in the partition action for the common benefit of the parties, (b) the majority of the fees Charco owed its current counsel were not incurred as part of the partition action or for the common benefit of the parties, (c) half of the fees should be denied as services provided to Charney, who was not a party to the partition action, and (d) any fees the court determined were incurred for the parties’ common benefit should be apportioned based on the percentage of interest owned by the parties in the property, i.e., 50/50.
The trial court awarded Charco attorney fees in the sum of $95,227.61 and other costs in the sum of $40 for a total award of $95,267.41.
In its written decision, the trial court explained the basis for its award. First, the court found the partition action was brought for the common benefit of Charco and Sandoval. It found that Sandoval’s unsuccessful defenses and claims made the partition action more complicated, although it also recognized that Charco and Charney made numerous claims in addition to the claim for partition. “Therefore, the court deducted from the attorney’s fees requested those amounts that the court has determined were not related to the partition and/or were not for the common benefit.”
The court then stated it had reviewed the attorney billing records provided in support of the fee request and concluded there was insufficient evidence to show prior counsel’s fees were incurred or paid by a party to the partition action for the common benefit except for $1,462.50 of fees incurred on particular dates that it specified.
The trial court next stated that after reviewing the attorney fees charged by current counsel and the amount of damages awarded on each claim and/or cause of action, it determined the evidence established that 54.6 percent of the fees incurred during specific intervals of time, which it listed, were incurred or paid for the common benefit. The court proceeded to deduct the amount of fees incurred on dates outside of the specified periods from the total fees charged and then multiplied the remaining amount of fees by.546, the percentage of fees it had found were for the common benefit of the parties to the partition action.
The court added the allowable fees of prior counsel to those of current counsel to determine $158,712.68 was the amount of fees that were the reasonable costs of partition. Noting that section 874.040 provides for apportionment of costs of partition “among the parties in proportion to their interests or... such other apportionment as may be equitable[,]” the court apportioned the allowed attorney fees 60 percent to Sandoval and 40 percent to Charco “as a matter of equity” based on the record showing “Sandoval consistently to the time of trial opposed the sale of the ‘Hollywood’ [sic] property that was the subject of the partition action.”
The trial court ordered Sandoval to reimburse Charco’s costs of partition in the amount of $95,227.61 (60 percent of $158,712.68) for reasonable attorney fees and $40 for other costs, making a total award of $95,267.61.
DISCUSSION
I.
Standard of Review
When we review an award of attorney fees, we start from the proposition that the “‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.’ [Citations.]” (Serrano v. Priest (1977) 20 Cal.3d 25, 49; accord Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) For this reason, “[o]ur review of the amount of attorney fees awarded is deferential.” (In re Vitamin Cases (2003) 110 Cal.App.4th 1041, 1051-1052.) We apply an abuse of discretion standard. (Finney v. Gomez (2003) 111 Cal.App.4th 527, 545.)
It is the burden of the party challenging the award to show an abuse of discretion. (Consumer Privacy Cases (2009) 175 Cal.App.4th 545, 556.) “Fees approved by the trial court are presumed to be reasonable.” (Ibid.) However, an abuse of discretion is established where it is shown there is no substantial evidence to support the trial court’s findings or where the trial court’s action violates the applicable law. (Finney v. Gomez, supra, 111 Cal.App.4th at p. 545; In re Vitamin Cases, supra, 110 Cal.App.4th at p. 1052; City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.)
II.
Sandoval Has Not Shown A Misapplication Of Section 874.010
The authority for an award of attorney fees in partition actions is section 874.010, which states, in pertinent part: “The costs of partition include: [¶] (a) Reasonable attorney’s fees incurred or paid by a party for the common benefit.” The purpose of this statute “is to divide the cost of the legal services among the parties benefited by the result of the proceeding.” (Stewart v. Abernathy (1944) 62 Cal.App.2d 429, 433.) Whether attorney fees were incurred for the common benefit “must be decided upon the facts and circumstances in each particular case.” (Ibid.)
Sandoval asserts the trial court erred in its finding of common benefit here. Sandoval appears to contend none of Charco’s current counsel’s fees should have been awarded because in the partition action Charco unsuccessfully challenged Sandoval’s interest in the Holiday property. Sandoval argues “fees incurred in resolving disputed claims of an interest in the property to be partitioned are not incurred for the common benefit.”
Actually, it is settled law that litigation of disputed claims of interest to the property in a partition action does not preclude a finding of common benefit warranting an award of attorney fees under section 874.010.
In the seminal case of Capuccio v. Caire (1929) 207 Cal. 200 (Capuccio I), the California Supreme Court concluded former section 796, the predecessor statute to section 874.010, “require[d] a proper division of the expenditures entailed in the maintenance of [partition] 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 either over the question as to whether or not the parties to the action were cotenants or over the extent of their respective interests as such in the property thus sought to be divided.” (Capuccio I, supra, at p. 208, italics added.) “By this language, [the Supreme Court said] it was our intention to declare that counsel fees may be allowed under the provisions of section 796 of the Code of Civil Procedure for services rendered for the common benefit even in contested partition suits” (Capuccio v. Caire (1932) 215 Cal. 518, 528-529 (Capuccio II)); a conclusion the Supreme Court reaffirmed in Randell v. Randell (1935) 4 Cal.2d 575, 582 and Riley v. Turpin (1960) 53 Cal.2d 598, 602.
In arguing against the finding that Charco incurred fees in the partition action for the common benefit, Sandoval directs our attention to several other cases. (Watson v. Sutro (1894) 103 Cal. 169; Stewart v. Abernathy, supra, 62 Cal.App.2d 429; Williams v. Miranda (1958) 159 Cal.App.2d 143; Forrest v. Elam (1979) 88 Cal.App.3d 164.) We address each case separately and find none of them requires us to question the trial court’s finding of common benefit here.
The Supreme Court affirmed an award of attorney fees in a partition action in Watson v. Sutro, supra, 103 Cal. 169, even though “the amount of the respective equitable interests of plaintiff and appellant Sutro to the realty involved in the litigation was warmly contested.” (Id. at p. 170.) Moreover, while plaintiff’s attorney “did not segregate the value of the services rendered by his firm in furtherance of the personal interests of his client in contesting the claim of title from the value of the services rendered for the common good in the matter of the partition proceedings proper,... the amount and character of labor performed for the common benefit was in evidence before the court, and upon that evidence alone, without the advice of experts, the court had the power to fix the amount of the fee[.]” (Id. at p. 171.)
In Riley v. Turpin, supra, 53 Cal.2d 598, the Supreme Court considered the applicability of two of the other cases relied on by Sandoval. We repeat the Supreme Court’s comments: “In Stewart v. Abernathy[, supra], 62 Cal.App.2d 429, 432-433 [144 P.2d 844], relied upon by plaintiff, the lien holder who sought an allowance of counsel fees had no ownership in the property partitioned, and in Williams v. Miranda[, supra], 159 Cal.App.2d 143, 158 [323 P.2d 794], which plaintiff also cites, the court held that although plaintiff’s action purported to be one in partition, it developed into a proceeding of a different nature. Consequently the holdings that services rendered by counsel in those cases were not for the common benefit have no persuasive effect on the present issues.” (Id. at p. 603.) The same is true here. Charco raised its claims as an owner of the Holiday property and this case, although it involved a multiplicity of other claims, remained a partition action as to the Holiday property throughout the litigation.
In Forrest v. Elam, supra, 88 Cal.App.3d 164, plaintiff filed a partition action against his siblings. (Id. at p. 167.) Although his siblings were willing to sell the property and divide the proceeds equally, plaintiff wanted an additional share of the proceeds based on a limited life tenancy. (Id. at pp. 167, 170-171.) The trial court, as well as the Court of Appeal, rejected plaintiff’s claim to a greater share. (Id. at pp. 167, 172.) The reviewing court then considered the trial court’s award of only a portion of plaintiff’s requested fees under section 874.010. The reviewing court found no abuse of discretion by the trial court. (Forrest v. Elam, supra, at pp. 173-174.) “While the concept of attorney fees expended for the common good does not necessarily preclude sums expended in bona fide dispute between the parties [citation], common benefit is not reasonably construed to include the pressing of spurious matters.” (Id. at p. 173.) Moreover, it was clear from the record the matter could have been simply resolved without the partition action if the plaintiff had not pressed his life estate claim. (Id. at pp. 173-174.) In contrast here, we cannot find Charco and Charney’s claims to have been “spurious” given the judgment in their favor, even though the trial court did not accept all of their positions or proposed remedies. Certainly the record does not reflect the parties’ respective claims could have been resolved without the litigation or that the partition action was unnecessary.
Sandoval, however, relies on the following comment by the Supreme Court in Capuccio I: “[I]t is not to be understood that... we are deciding that the cost of litigating purely controversial issues arising in such actions between parties thereto who have their own counsel and are incurring their own costs in the effort to sustain their adverse claims shall be chargeable or recoverable against the losing party or the parties to such controversy.” (Capuccio I, supra, 207 Cal. at p. 208.) Sandoval fails to recognize the Supreme Court explained in Capuccio II, supra, 215 Cal. 518, that such “sentence was inserted in the opinion for the sole purpose of caring for the exception provided for in the code section itself..., which,... state[d]: ‘When, however, litigation arises between some of the parties only, the court may require the expense of such litigation to be paid by the parties thereto, or any of them.’” (Id. at p. 529.) Such exception has not been continued in section 874.010 and, in any event, is now covered by the authority given in section 874.040 for the trial court to make an equitable apportionment of fees. (Cal. Law Revision Com. com., 17A West’s Ann. Code Civ. Proc. (1980 ed.) foll. § 874.040, p. 586; see fn. 6, post.)
Sandoval has not shown the trial court was precluded from finding a portion of Charco’s current counsel’s fees were incurred for the common benefit because of the disputed issues of interest.
As part of his argument that the trial court erred in finding common benefit, Sandoval takes issue with a portion of the trial court’s decision in which the court states: “The partitioned property was partitioned and the interests divided essentially in accordance with the division prayed for by Charco Ventures.” (Italics added.) While it is true that Charco did not “pray” for the division ultimately ordered by the trial court, the trial court did find Charco and Sandoval each owned a one-half undivided interest in the property as tenants in common as Charco alleged, the trial court granted Charco’s prayer for partition by sale, and the trial court ruled in Charco’s favor regarding several of its damages claims, ordering them to be reimbursed from the proceeds of the Holiday property. Thus, while the statement in the decision may not be literally correct, we do not find it undercuts the trial court’s express finding of common benefit for a portion of Charco’s requested fees.
III.
Sandoval Has Not Met His Burden To Show The Portion Of Fees Awarded By The Trial Court Includes Amounts Not Incurred For The Common Benefit
The trial court’s decision expressly states “the court deducted from the attorney’s fees requested those amounts that the court has determined were not related to the partition and/or were not for the common benefit.” Elsewhere, the decision states that “[a]fter reviewing the attorneys’ fees charged by [Charco’s current counsel], and the amount of damages awarded on each claim and/or cause of action the court has determined that the evidence establishes that 54.6% of the fees incurred on the following dates were incurred or paid by a party for the common benefit: September 24, 2004 - October 14, 2005; October 31, 2005 -- November 25, 2005; January 4-12, 2006 -- September 13, 2007, June 12, 2008, and June 17-19, 2008.” The trial court ordered Sandoval to pay Charco $95,227.61 of the fees it calculated were for the common benefit.
In other words, the trial court reviewed the billing records submitted in support of the motion for attorney fees, keeping in mind the issues litigated and resolved at trial. It determined none of the services of counsel on some dates were for the common benefit of Charco and Sandoval, the parties to the partition action. It determined a portion of the services rendered on other dates were for the common benefit of those parties. The court awarded only the fees it found attributable to the common benefit. The fee award was made in favor of Charco alone.
Sandoval makes several related claims on appeal, that despite the trial court’s statement to the contrary, its award included fees for services not incurred for the common benefit, not related to the partition action, and/or for services rendered to Charney. Sandoval has not, and cannot on this record, support his claims.
A. Fees Incurred For Trying To Reduce Sandoval’s Interest In the Holiday Property
Sandoval claims the trial court’s award of fees included fees incurred in unsuccessfully advancing Charco and Charney’s contention that Sandoval had not made any capital contribution to the purchase of the Holiday property and supporting their attempt to divest Sandoval of any interest in the property, a contention that Sandoval appears to make separately from his previous claim that such efforts precluded a finding of common benefit altogether. To support this claim, Sandoval directs our attention to entries on the billing records of Charco’s current counsel that show charges for communications with an expert witness, Guy Puccio, who Sandoval claims Charney and Charco called to testify on standard of care, an issue unrelated to partition. The Puccio entries are on dates that were included in the time periods for which fees were awarded by the court. Sandoval also directs us to Charney and Charco’s pretrial and posttrial briefs, which contain arguments supporting their position regarding Sandoval’s capital contribution and disgorgement of his interest in the Holiday property.
Sandoval makes both arguments under a single heading that does not clearly indicate which claim he is making. Although we may disregard arguments not properly presented under appropriate separate headings as required by rule 8.204(a)(1)(B) of the California Rules of Court (Heavenly Valley v. El Dorado Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1346), we give Sandoval the benefit of the doubt and reach both claims.
The trial judge, who presided at the court trial in this matter, was in the best position to know whether the fees relating to Puccio were connected to the partition action or not. Having ruled on them, it was also certainly well aware of Charco and Charney’s various arguments relating to Sandoval’s interest in the Holiday property. In its decision on the motion for attorney fees, the trial court stated it was not including fees that were for services unrelated to the partition action or that were not for the common benefit. It proceeded to award only a percentage of the fees charged on the included dates.
Sandoval has not shown the trial court’s statement regarding its exclusion of services not related to the partition or for the common benefit to be incorrect. The fact that some of counsel’s services relating to Puccio may have been rendered on dates falling within the periods of time for which the trial court awarded a percentage of fees does not establish the fact that those specific entries were in the percentage awarded. Nor was the trial court required to make specific findings designating and segregating the various services that it included in the 54.6 percent of fees it found to be for the common benefit. (See Capuccio II, supra, 215 Cal. at p. 530.) We also note Sandoval never challenged at the trial court level any specific billing entry as not being related to the partition of the Holiday property or not for the common benefit of the parties to the partition action, which would have created a record for us to review his point. “Fees approved by the trial court are presumed to be reasonable, and the objectors must show error in the award.” (Consumer Privacy Cases, supra, 175 Cal.App.4th 545, 556.) Sandoval has not met his burden to show error.
B. Fees For Litigating Sandoval’s Interest In Hazel Ridge
We reject Sandoval’s claim that the fees awarded by the trial court improperly included amounts for defeating Sandoval’s claim to an interest in another property referred to as “Hazel Ridge.”
Sandoval bases his claim regarding Hazel Ridge on his interpretation of a sentence in the trial court’s decision. Specifically, Sandoval argues the trial court clearly found the claims Sandoval made to an interest in Hazel Ridge were raised as a defense to the partition action “[b]y stating in its [d]ecision ‘if Sandoval had not raised defenses and affirmative claims contesting the division of the partitioned interest based on an alleged partnership involving numerous transactions, in addition[] to the property subject to partition[,] the matter could have been more easily resolved.’” According to Sandoval, “[t]he court then found that the fees incurred by [Charco and Charney] in defending against Sandoval’s claim to an interest in Hazel Ridge were incurred for the common benefit. Those fees were part of the $157,250.18.” Sandoval argues his claim to an interest in Hazel Ridge was not asserted as a defense to the partition action, which he denied solely on the basis that it was partnership property.
We need not decide whether the trial court could have included some fees related to the litigation of partnership issues in its award. We conclude Sandoval has not shown it did so. Other than the sentence quoted from the trial court’s decision, Sandoval points us to nothing else in the record to show fees related to Hazel Ridge were part of the 54.6 percentage of fees the trial court found to be for the common benefit. The sentence of the trial court’s decision on which Sandoval relies reflects the trial court’s conclusion that the partition action was made more complicated by Sandoval’s assertion of a partnership, which involved a number of transactions, not that it found all partnership issues were covered by section 874.010. The decision makes no mention of Hazel Ridge. We do not view the sentence, interpreting it in the light most favorable to the judgment, as contradicting the trial court’s express statement that it was not including amounts that were not related to the partition action in its award of fees.
C. Fees For Representation Of Charney
Sandoval notes that a number of claims at trial were asserted by and against Charney, who was not a party to the partition action. Sandoval claims the trial court improperly rejected his request to deny some of the requested fees by allocating them to Charney. Sandoval cites Shadoan v. World Savings & Loan Assn. (1990) 219 Cal.App.3d 97, 109, for the proposition that where one attorney represents two different entities, one of which is entitled to recover fees and one of which is not, the court should apportion fees between the entities and deny an award of the fees apportioned to the entity not entitled to recover them.
Sandoval has not shown the trial court did not apportion some fees to the representation of Charney. Charco and Charney together sought an award of $415,458.75 in attorney fees. The trial court awarded Charco alone the sum of $95,227.61 in fees that it calculated were for the common benefit. No error appears on this record.
IV.
The Record Supports The Trial Court’s Apportionment Of Fees
Section 874.040 provides that “[e]xcept 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.”
The Law Revision Commission comment to section 874.040 states: “Although normally the costs of partition are apportioned in proportion to the interests of the parties, there may be cases in which some other arrangement will be equitable.” (Cal. Law Revision Com. com., supra, at p. 586.) Case law is in accord. “Ordinarily” or “normally” costs of partition are awarded according to the respective interests in the partitioned property. (Finney v. Gomez, supra, 111 Cal.App.4th at pp. 545-546; Stutz v. Davis (1981) 122 Cal.App.3d 1, 5.) Any other apportionment must be supported by substantial evidence in the record. (Finney v. Gomez, supra, at p. 547.)
The comment continues as follows: “Where litigation for the common benefit arises among only some of the parties, or where the interests of the parties in all items, lots, or parcels of property are not identical, the court may segregate the costs of partition to the extent practicable and apportion a part among particular parties only. See former Section 796 (last sentence).” In a partition action decided on the default of the defendants, these two situations may turn out to be the only possible grounds for an apportionment not in proportion to the interests of the parties. (See Finney v. Gomez, supra, 111 Cal.App.4th at pp. 547-548.) Where the partition action is fully litigated, however, we do not view the trial court’s equitable discretion to be so limited.
Here the trial court did not apportion the awarded fees according to the parties’ interest in the Holiday property. The court apportioned the allowed attorney fees 60 percent to Sandoval and 40 percent to Charco “as a matter of equity” based on the record showing “Sandoval consistently to the time of trial opposed the sale of the ‘Hollywood’ [sic] property that was the subject of the partition action.”
Pointing to this statement by the trial court, Sandoval claims the trial court improperly apportioned the fees to punish him for defending the partition suit and resisting the attempts by Charco and Charney to divest him of his interest in the property. We do not believe that is what the trial court meant when it based its apportionment on Sandoval’s opposition to the sale of the property. We understand the trial court’s comment to refer to Sandoval’s pre-litigation efforts to obstruct the sale of the Holiday property, including by asserting a meritless claim of partnership with Charney on a number of other properties, which assertion triggered, in part, the litigation between the parties and ultimately necessitated the partition action. The trial court’s comment also appears to reference Sandoval’s persistent efforts to derail the partition action once it was brought by asserting again the nonmeritorious claim that the property was held in a partnership, not as cotenants.
The record supports our interpretation. The record shows Charco wanted to sell the Holiday property in 2001 and 2002. Two offers were received and a contract was signed, but Sandoval would not agree to the sale. Sandoval insisted he was a partner of Charney on properties other than Holiday and the relationship between Charco and Sandoval deteriorated. The relationship devolved to a point where joint ownership and operation of Holiday was not possible and judicial partition by sale was sought. The trial court, which was in the best position to know, stated in its decision that “[i]f Sandoval had not raised defenses and affirmative claims contesting the division of the partitioned interest based on an alleged partnership involving numerous transactions, in addition[] to the property subject to partition[,] the matter could have been more simply resolved.”
Sandoval has not met his burden to show the court’s equitable apportionment was an abuse of discretion.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondent Charco Ventures. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: SIMS, Acting P. J., NICHOLSON, J.