Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CGC-03-421174.
Pollak, J.
This is the second appeal in an action to partition real property that was co-owned by defendant Delia Soriben and plaintiffs Alfredo Z. Gamad, Jr. (Gamad, Jr.), Alfredo G. Gamad, Sr. (Gamad, Sr.), and Felicidad Gamad (collectively the Gamads). In July 2005, the trial court entered judgment finding that Gamad, Jr. and Soriben owned as joint tenants a three-quarters interest in the property, with the remaining one-quarter interest held in joint tenancy by Gamad, Sr. and Felicidad Gamad, and ordering partition consistent with those interests. The court also ordered Soriben to pay a portion of the Gamads’ attorney fees under Code of Civil Procedure section 874.010.
All statutory references are to the Code of Civil Procedure.
In her first appeal, Soriben argued that the trial court erred in failing to order reimbursement for her contributions to the cost of acquiring the property prior to distributing profits on the court-ordered sale of the property. She also argued that the trial court erred in refusing to apportion her attorney fees between the parties. We agreed that the basis upon which the trial court rejected Soriben’s claim for reimbursement was erroneous and remanded to permit the trial court to determine the amount of reimbursement, if any, to which the evidence showed Soriben to be entitled. It was therefore unnecessary to consider the attorney fee issue. (Gamad v. Soriben (May 31, 2006, A111858) [nonpub. opn.].)
On remand, following briefing the court issued a “Decision After Remand” again denying Soriben’s reimbursement claim. The court found that Soriben failed to present credible evidence that she was entitled to any reimbursement. Soriben does not challenge this ruling on the present appeal.
Thereafter, the Gamads moved for an order allocating their postjudgment attorney fees under section 874.010 and for sanctions under section 128.7. They argued that Soriben should pay a greater percentage of the attorney fees than her proportionate interest in the property because she had acted in bad faith throughout the litigation and needlessly increased the costs of partition. The Gamads acknowledged that “this motion was not served on defendant 21 days prior to its filing,” but argued that service would have been futile and that “failure to impose sanctions otherwise justified by defendant’s conduct because of the lack of a useless act would entirely defeat the purpose of the statute.” The court granted the Gamads’ motion for attorney fees under section 874.010 in the amount of $15,160 plus $302.70 in costs. The court did not rule on the request for sanctions. Soriben filed a timely notice of appeal from the attorney fee order.
Soriben has paid and does not challenge the trial court’s initial attorney fee award. Accordingly, the only fees at issue are those incurred following the entry of the initial judgment.
DISCUSSION
Under section 874.010, subdivision (a) the court is authorized in a partition action to award “[r]easonable attorney’s fees incurred or paid by a party for the common benefit.” Section 874.040 states that the court shall apportion the costs and fees of partition “among the parties in proportion to their interests or make such other apportionment as may be equitable.” (Italics added.) As the California Supreme Court long ago clarified, “counsel fees may be allowed under the [statute] for services rendered for the common benefit even in contested partition suits.” (Capuccio v. Caire (1932) 215 Cal. 518, 528-529.) “The presence and litigation of controversial issues between all the parties does not preclude the allowance of attorney’s fees for services connected with such issues where such services are found to be for the common benefit of the parties.” (Randell v. Randell (1935) 4 Cal.2d 575, 582.) A finding of common benefit is particularly appropriate when the dispute concerns only two parties. (See Riley v. Turpin (1960) 53 Cal.2d 598, 603.) We review the trial court’s order for an abuse of discretion. (Finney v. Gomez (2003) 111 Cal.App.4th 527, 547.)
Here, the trial court ordered Soriben and her counsel, jointly and severally, to pay the Gamads 40% of their attorney fees incurred following entry of the initial judgment. The court explained, “defendant and her counsel violated numerous rules of court, engaged in conduct which needlessly increased the costs of litigation, and unduly obfuscated the issues and the facts before the court. Moreover, the court finds that defendant failed or refused to identify any financial or mathematical evidence in the record that could establish her entitlement to any reimbursement or contribution from plaintiffs, despite two separate opportunities to do so. These factors, as well as the nature of the litigation, its difficulty, the skill required, and the parties’ conduct in seeking resolution of the issues herein, this court finds that an award of fees in a different proportion is warranted.”
Soriben’s one-half interest in 75 percent of the property is equivalent to a 37.5 percent interest in the property. Thus, the court’s order deviates from the standard allocation by only 2.5 percent or, in this case, by $947.50.
Soriben argues that she should not be required to pay any portion of the Gamads’ attorney fees incurred on the prior appeal and, alternatively, not more than her proportionate interest in the property. She also argues that the court erred by holding her attorney jointly and severally liable for the attorney fee award.
Although Soriben’s request for allocation of her postjudgment attorney fees was denied, she has not challenged that ruling in the present appeal.
Soriben’s sole argument with regard to the fees incurred on appeal appears to be that she is not liable for her share because the Gamads lost the appeal. Her limited success on appeal, however, does not necessarily mean that the attorney fees incurred by the Gamads in opposition to her appeal were not for the common benefit. (Riley v. Turpin, supra, 53 Cal.2d at pp. 602-603.) To the contrary, the purpose of the fees incurred by the Gamads in the prior appeal was to prevent improper distribution of the common assets and to limit further unnecessary litigation and expenses. Both are goals that serve the common benefit.
Soriben’s complete argument on this issue is as follows: “The authority for an award of attorney fees in actions for partition is . . . section 874.010. This section limits permissible attorney fees to services incurred for the common benefit of the parties. The plaintiffs lost on appeal. Soriben did not derive any benefit from the services rendered by plaintiffs’ attorneys on appeal. The trial court in awarding plaintiffs their attorney fees for their attorney’s appellate work is simply ignoring the order of the Court of Appeal.”
The Gamads argued that Soriben did not support her claim for reimbursement. On remand, the court reviewed the evidence previously admitted and “reaffirmed its conclusion on the split between the plaintiffs and defendant.” The court explained, “The evidence amply supports the parties’ agreement that the senior Gamads’ initial contributions to the down payment and purchase costs were payment in full of their 25% ownership interest in the property. The Gamads were liable for no debt on their 25% share of the property. . . . No credible evidence was presented showing that the senior Gamads ever agreed or expected to make further contributions to the 75% owners to cover the latter’s mortgage and interest expenses on [their] share of the property.” (Italics omitted.) On this record, we cannot conclude that the trial court abused its discretion in finding that the efforts of the Gamads’ attorney following entry of judgment were for the common benefit.
Likewise, Soriben has not demonstrated that the trial court abused its discretion by increasing her share of the attorney fees by 2.5 percent. According to the court, her conduct “needlessly increased the costs of litigation.” Although this court held on the prior appeal that the trial court had rejected Soriben’s claim for reimbursement based on an erroneous legal premise, on remand she failed to establish that any of the evidence admitted at trial established an entitlement to reimbursement. Thus, although she prevailed on the legal issue, substantial time and expense were devoted to a question that did not affect the ultimate partition and distribution of the proceeds from the sale of the property. Moreover, the record amply supports the trial court’s determination that her confusion of the issues and violation of court rules resulted in extra and unnecessary work for the Gamads.
We agree, however, that there is no basis for holding Soriben’s attorney jointly and severally liable for the attorney fee award. While such an order would have been proper as a sanction under section 128.7, section 874.040 only authorizes the court to “apportion the costs of partition among the parties . . . .” (Italics added.)
DISPOSITION
The attorney fee order is reversed insofar as it holds Soriben’s attorney jointly and severally liable but is affirmed in all other respects. The parties are to bear their own costs on appeal.
We concur: McGuiness, P. J. Jenkins, J.