Judge: Elaine Lu, Case: 20STCV43619, Date: 2024-01-18 Tentative Ruling





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4. IN ORDER TO IMPLEMENT
PHYSICAL DISTANCING GOING FORWARD AND UNTIL FURTHER NOTICE, THE COURT STRONGLY
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Case Number: 20STCV43619    Hearing Date: January 18, 2024    Dept: 26

Procedural Background

            On November 12, 2020, Plaintiff Gloria Ford (“Ford”) filed the lead action 20STCV43619 against Defendant Corina Sullivan (“Sullivan”) seeking (1) Partition by Sale, and (2) Declaratory Judgment.  On November 20, 2020, Ford filed the operative First Amended Complaint (“Ford FAC”) against Sullivan.  The Ford FAC asserted three causes of action for (1) Partition by Sale, (2) Declaratory Judgment, and (3) Quiet Title. 

            On November 23, 2020, Sullivan filed the related action 20AVCV00838 against Ford for (1) Partition, (2) Accounting, and (3) Breach of Fiduciary Duty and Conversion.  On May 16, 2022, Sullivan filed the operative Second Amended Complaint (“Sullivan SAC”) against Ford.  The Sullivan SAC asserted six causes of action for (1) Partition, (2) Quiet Title, (3) Declaratory Judgment, (4) Intentional Misrepresentation, (5) Negligent Misrepresentation, and (6) Breach of Fiduciary Duty.

            On January 28, 2021, the Ford Action (20STCV43619) and the Sullivan Action (20AVCV00838) were deemed related, and the Ford action was designated as the lead action.  (Minute Order 1/28/21.)  In light of the sale of the property, the parties stipulated on July 5, 2022 to dismiss the first and third causes of action from the Ford FAC and the first and second causes of action from the Sullivan SAC as moot.

            This matter came on for court trial, which commenced on July 18, 2023.  On October 2, 2023, the Court issued its Final Statement of Decision.  On December 15, 2023, Judgment was entered accordingly.

            On December 18, 2023, Ford filed the instant motion for attorneys’ fees pursuant to Code of Civil Procedure sections 874.010(a) and 874.040.  On January 4, 2024, Sullivan filed an opposition.  On January 11, 2024, Ford filed a reply.  On January 16, 2024, Sullivan filed a sur-reply.  In addition, on January 16, 2024, Ford filed an objection and request to strike the sur-reply.

 

Discussion

            “Code of Civil Procedure section 874.040 provides that ‘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.’ These costs include ‘[r]easonable attorney's fees incurred or paid by a party for the common benefit.’ (§ 874.010, subd. (a).)”  (Orien v. Lutz (2017) 16 Cal.App.5th 957, 966.)  However, such attorneys’ fees awarded should be paid by the co-owners in proportion to their ownership interests in the property.  (Stutz v. Davis (1981) 122 Cal.App.3d 1, 5.) 

            Here, Ford’s request for attorneys’ fees is not apportioned by interest in the Property nor does Ford sufficiently break down why under equity – especially given that Sullivan also sought a partition – that 100% of Ford’s legal fees should be borne by Sullivan instead of in proportion to the parties’ interests.  Moreover, as the Court is inclined to consider the additional briefing by Sullivan in sur-reply, the Court finds that it is proper to permit additional briefing by Ford to address the sur-reply.

Conclusion and Order

            Accordingly, the instant motion for attorneys’ fees is continued to February 9, 2024 at 8:30 am.  No later than 10 days prior to the continued hearing, Ford may file an additional brief not to exceed 8 pages and any evidence addressing why all of Ford’s legal fees should be borne by Sullivan instead of by the parties’ proportionate interest and any issue raised in the sur-reply.

Moving Party Ford is to give notice and file proof of service of such.