Judge: Curtis A. Kin, Case: 19STCV08504, Date: 2022-12-22 Tentative Ruling

Case Number: 19STCV08504    Hearing Date: December 22, 2022    Dept: 72

MOTION FOR ATTORNEY FEES

Date:               12/22/22 (8:30 AM)

Case:               Lad S. Lengyel et al. v. Richard Schlander et al. (19STCV08504)

TENTATIVE RULING:

Defendant/Cross-Complainant Lori Broussard’s Motion for Attorney Fees is DENIED.

Defendant and cross-complainant Lori Broussard moves for an award of attorney fees in the amount of $59,201.28, comprised of fees she incurred after dismissal of the Cross-Complaint and 25% of fees incurred prior to the dismissal of Cross-Complaint. (Mtn. at 3:24-28; Hacker Decl. ¶ 4.)

In support of the motion, Broussard cites CCP §§ 874.010(a) and 874.040. CCP § 874.040 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.” CCP § 874.010(a) states that costs of partition include “[r]easonable attorney’s fees incurred or paid by a party for the common benefit.”

The above statutes are not applicable. Even though the Court entered judgment in favor of Broussard against plaintiff Steven Lengyel as to the partition cause of action (10/4/22 Judgment), there was never any Court-ordered partition sale. In the Decision Following Court Trial filed on October 4, 2022, the Court noted that the real property for which Steven Lengyel sought partition had been sold and that the remaining dispute was how the proceeds of the sale should be distributed between Steven Lengyel and defendant intervenor William Lengyel. Steven and William agreed that the Court could determine the distribution of the sale proceeds under CCP § 873.850. (See CCP § 873.850 [“When the proceeds of the sale belonging to persons who are parties to the action…have not been allocated among such parties, the action may be continued as between such parties, for the determination of their respective claims thereto, which must be ascertained and adjudged by the court”].)

Because the subject property had already been sold before the Court trial on September 29, 2022, the Court never determined whether Steven had a right to partition, pursuant to CCP § 872.710 et seq., or the manner of partition, pursuant to CCP § 872.810 et seq. Consequently, because no Court-ordered partition ever took place, no “costs of partition,” including attorney fees, can be allocated to Broussard under CCP § 874.040.

The Court notes that, in the October 4, 2022 decision, the Court determined the allocation of proceeds from the sale of the subject property. Notably, Broussard did not appear on September 29, 2022 during the Court trial. (10/4/22 Decision Following Court Trial at 2.) On November 2, 2022, the Court entered judgment pursuant to its findings on October 4, 2022. Pursuant to the November 2, 2022 judgment, the proceeds of the sale of the property have already been apportioned among the parties. To the extent that Broussard maintains that she is entitled to a portion of the sale proceeds, the time to support her claim, if at all, was on September 29, 2022.

Even if the Court could award attorney fees to Broussard under CCP § 874.040, Broussard fails to establish that her requested fees were for the common benefit under CCP § 874.010(a). Broussard maintains that Steven reneged on settlement agreements until Steven accepted an offer to sell the property. (Broussard Decl. ¶ 4; Hacker Decl. ¶ 8.) Any fees incurred before Steven’s agreement to sell the property would have been for litigation of the partition action, not for the common benefit of all property owners. To the extent Broussard incurred costs to maintain the property and bring the property out of foreclosure (Broussard Decl. ¶ 3), the time to seek reimbursement of such costs was during the trial on September 29, 2022, as stated above.

For the foregoing reasons, the motion is DENIED.