Judge: Helen Zukin, Case: 20SMCV01144, Date: 2022-07-26 Tentative Ruling
Case Number: 20SMCV01144 Hearing Date: July 26, 2022 Dept: 207
Background
This is an action between Plaintiff Patricia Bilotti
(“Plaintiff”) against Defendant Robert Todd Sali (“Defendant”) for partition of
real property, accounting, and monies had and received. Plaintiff brings this
motion to apportion and distribute $295,917.85 to her from funds remaining
following the parties’ stipulated sale of real property located at 642 Broadway
Street, Venice, California, which previously owned by the parties as joint
tenants. Pursuant to the parties’ stipulation, following the sale of the
property on July 29, 2021, each party received an equal initial payment of
$125,000 and the remaining proceeds, totaling $486,450, remained in escrow to
be allocated between the parties at a later date.
Plaintiff’s motion is unopposed.
Legal Standard
Under Code
Civ. Proc. § 873.820, the proceeds of sale for any property sold shall be applied
in the following order:
(a) Payment of the expenses
of sale.
(b) Payment of the other
costs of partition in whole or in part or to secure any cost of partition later
allowed.
(c) Payment of any liens
on the property in their order of priority except liens which under the terms of
sale are to remain on the property.
(d) Distribution of the
residue among the parties in proportion to their shares as determined by the court.
Pursuant
to Code Civ. Proc. § 874.010 the costs of partition include:
(a) Reasonable attorney’s
fees incurred or paid by a party for the common benefit.
(b) The fee and expenses
of the referee.
(c) The compensation provided
by contract for services of a surveyor or other person employed by the referee in
the action.
(d) The reasonable costs
of a title report procured pursuant to Section 872.220 with interest thereon at
the legal rate from the time of payment or, if paid before commencement of the action,
from the time of commencement of the action.
(e) Other disbursements
or expenses determined by the court to have been incurred or paid for the common
benefit.
In partition
actions, generally an award of costs and fees should be proportionally divided based
on the parties’ ownership interest in the property, balanced with other equitable
considerations. (Finney v. Gomez (2003) 111 Cal.App.4th 527, 545-546.) By
statute, 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. (C.C.P.
§ 874.040; see also Orien v. Lutz (2017) 16 Cal.App.5th 957 [fees incurred
by a defendant to a partition action can be for the common benefit, and therefore
allocable in part to the plaintiff, even though the defendant resists the partition].)
Analysis
Plaintiff moves to distribute certain of the sale proceeds of
the property on the grounds that a party in a partition action may recover
costs of partition in proportion to their interests which were incurred or paid
by a party for the common benefit. (C.C.P. § 874.010.) The distributions sought by Plaintiff can be broadly
divided into two categories: (1) expenses relating to the Broadway property and
its sale, and (2) other expenses incurred by Plaintiff.
With regard to expenses incurred
in connection with the Broadway property or its sale, Plaintiff seeks a total
of $122,539.04, comprised of:
1. $6,440.91
for the costs of removing Defendant’s personal belongings from the property in
advance of the sale;
2. $6,126.44 for
Plaintiff’s one-half share of the $12,252.87 Plaintiff paid for improvements
and landscaping for the property to prepare it for sale; and
3. $109,971.70
for Plaintiff’s one-half share of the $219,943.39 incurred by Plaintiff in
mortgage payments and property taxes from 2014 to the sale of the property in
2021.
The Court finds these amounts are
reasonable and supported by the evidence submitted by Plaintiff. (Bilotti Decl.
at ¶5a and Exs. 7A, 7B, 7C, 7D.) These funds are properly apportioned and
distributed to Plaintiff as expenses relating to the sale of the property under
Code Civ. Proc. § 873.820(a)
and costs relating to the partition of the property which were incurred for the
common benefit of Plaintiff and Defendant under Code Civ. Proc. § 874.010(e).
Accordingly, the Court GRANTS Plaintiff’s request to distribute $122,539.04 to her for these expenses.
The remaining costs sought by
Plaintiff are comprised of (1) costs relating to the care and education of the
parties’ child, (2) attorney and mediator fees incurred by Defendant in prior,
unrelated, divorce proceedings, which were advanced by Plaintiff, and (3) money
Plaintiff advanced to Defendant for child support payments for Defendant’s
other children from his prior marriage.
Plaintiff seeks disbursement of
these funds as costs “incurred
or paid for the common benefit” pursuant to Code Civ. Proc. § 874.010(e).
However, Plaintiff has provided the Court with no authority demonstrating costs
which are unrelated to the property or its partition can be deemed “costs of
partition” under section 874.010(e). There is an admitted dearth of authority
on the interpretation of the phrase “for the common benefit” as it is used in
section 874.010(e). In Finney v. Gomez (2003) 111 Cal.App.4th 527, 548, the
Court stated a general rule that “What
constitutes ‘for the common benefit’ is to be determined based on the facts and
circumstances of each particular case.” The Court in Orien v. Lutz
(2017) 16 Cal.App.5th 957, 967 provided more specific guidance, holding “it is
evident that the ‘common benefit’ in a partition action is the proper
distribution of the ‘“respective shares and interests in said property by the
ultimate judgment of the court.”’ [Citation].”
Code Civ.
Proc. § 873.820(b) directs the Court to allocate sales proceeds to “Payment of the
other costs of partition.” Code Civ. Proc. § 874.010(e) also speaks to the
“costs of partition.” Code Civ. Proc. § 874.020 further provides “The costs of
partition include reasonable expenses, including attorney’s fees, necessarily
incurred by a party for the common benefit in prosecuting or defending other
actions or other proceedings for the protection, confirmation, or perfection of
title, setting the boundaries, or making a survey of the property.” Reading
these statutory provisions in connection with the holding of Orien v. Lutz
indicates that to be recoverable as a “cost of partition,” a cost must relate
in some way to the property or the partition action.
While the
Court is not unsympathetic to Plaintiff and has some discretion under Code Civ.
Proc. § 874.040 to make an equitable apportionment of the costs of partition,
this discretion is not unfettered, and the Court is not free to disregard the
plain language of the statute which limits the allocation of sales proceeds to
“costs of partition” rather than any expenses incurred for the benefit of the
parties generally. Accordingly, the Court DENIES Plaintiff’s request for
distribution and apportionment of $173,378.81 for these costs.
Conclusion
Plaintiff’s motion for distribution and apportionment is
GRANTED in part and DENIED in part. Plaintiff’s request for distribution and
apportionment of $122,539.04 for expenses incurred by Plaintiff in connection
with the sale and maintenance of the Broadway property is GRANTED. Plaintiff’s
motion is otherwise DENIED. Moving party to give notice.