Judge: Wesley L. Hsu, Case: 21PSCV00436, Date: 2023-05-15 Tentative Ruling

Case Number: 21PSCV00436    Hearing Date: May 15, 2023    Dept: L

Background   

Plaintiff Andrade Financial (“Plaintiff”) alleges as follows:

Plaintiff is the owner of an undivided 50% fee interest in the property located at 721 San Bernardino, Pomona, California 91767 (“subject property”); Arturo Nila (“Nila”) is the owner of the remaining 50%. Plaintiff seeks to have the subject property partitioned by sale.

On May 26, 2021, Plaintiff filed a complaint, asserting causes of action against Defendants Nila, U.S. Bank National Association, as Trustee, on behalf of the Holders of Asset Backed Securities Corporation Home Equity Loan Trust 2003-HE2, Asset Backed Pass-Through Certificates, Series 2003-HE2 (“Bank”), State of California Employment Development Department (“EDD”), All persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the property described in the complaint adverse to Plaintiff’s title, or any cloud upon Plaintiff’s title thereto (“All Persons”) and Does 1-25 for:

1.                  Partition of Real Property

2.                  Accounting/Unjust Enrichment

3.                  Quiet Title

4.                  Declaratory Relief

On June 7, 2021, Plaintiff filed a “Notice of Pendency of Action (Lis Pendens).”

On June 17, 2021, EDD filed a disclaimer. On July 29, 2021, Nila’s default was entered. On August 16, 2021, a “Stipulation and Order for Entry of Judgment for Non-Participation of Bank” was filed.

On February 16, 2022, an “Interlocutory Judgment Re Partition of Real Property by Sale” was filed.

On May 24, 2022, an “Order on Plaintiff’s Ex Parte Application for the Clerk of Court to Sign Residential Listing Agreement” was filed. On July 13, 2022, an “Order on Plaintiff’s Ex Parte Application for the Clerk of Court to Sign Residential Listing Agreement” was filed.

An Order to Show Cause Re: Dismissal is set for May 15, 2023.

Legal Standard

“Every court shall have the power to do all of the following: . . . To compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein.” (Code Civ. Proc., § 128, subd. (a).)

“Subject to the limitations of this article, the court may: (a) Authorize or approve contracts of the referee for the services and expenses of surveyors, engineers, appraisers, attorneys, real estate brokers, auctioneers, and others. (b) Allow and direct payment of or reject claims under such contracts. (c) Provide for the date of commencement of any lien provided by law or contract for such claims.” (Code Civ. Proc., § 873.110).

“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.” (Code Civ. Proc., § 874.010).

Discussion

Plaintiff moves the court for an order for final distribution of the sales proceeds for the real property located at 721 San Bernardino Avenue, Pomona, CA 91767 (“subject property”), which is in escrow.

On February 16, 2022, a “Interlocutory Judgment Re Partition of Real Property By Sale” was filed. (Ensberg Decl., ¶ 3, Exh. 1.) The Interlocutory Judgment states, in relevant part, as follows:

13.       There is no dispute as to the joint ownership of the Subject Real Property[1], which, by the Court, is adjudged to be owned 50 percent by ARTURO A. NILA and 50 percent by ANDRADE FINANCIAL.

14.       The costs of sale, including Escrow, of the Subject Real Property will be divided between Defendant Arturo A. Nila, and Plaintiff ANDRADE FINANCIAL, with them together sharing equally the cost of any policy of Title Insurance required for the sale, and any termite inspection and repair under Part 1 not to exceed $8,500.00 without further Order of Court.

15.       After the costs of sale, consensual liens, the Abstract Judgment Lien of EDD, have been paid directly from Escrow, upon the completion of the Sale Transaction, Plaintiff Andrade Financial shall apply to the Court for a final Judgment of Distribution, Costs, and attorney's fees, if any. The Court will be requested to divide in half any remaining sales proceeds after the payment of Plaintiffs Judgment Lien and any other liens or amounts which have not yet been completed or taken care of and been paid. The Consensual Mortgage/Deed of Trust Liens shall be paid, in full, first from the Escrow, prior to the return to Court to divide and distribute the remaining sales proceeds held by the Escrow.

(Id.)

Plaintiff’s counsel Larsen E. Ensberg (“Ensberg”) represents as follows: The subject property sold for the sum of $534,781.82. (Ensberg Decl., ¶ 4, Exh. 2.) The Closing Statement dated October 17, 2022 reflects that total funds due to Plaintiff and Nila, before allocations as between them and damages, amounts to $266,012.84. (Id.)

Plaintiff asserts that it is entitled to $155,460.34 of this $266,012.84, and that the remaining $110,852.50 should be distributed to Nila. (Id., ¶ 8.) Plaintiff’s $155,460.34 is calculated by taking half of $266,012.84 (i.e., $133,006.42), and then adding $20,353.92 in as attorney’s fees, and finally adding in another $1,800.00 for trash removal. (Id., ¶¶ 6-7, Exh. 4.)

Plaintiff appears to be taking the position that Nila should be responsible for paying all of Plaintiff’s counsel’s attorney’s fees in this instant litigation. (Id., ¶¶ 5-6. Exh. 3.) It is unclear to the court why attorney’s fees should not be shouldered equally as between Nila and Plaintiff. Further, Plaintiff has not provided the court with any information regarding how such fees were calculated, including hourly rates and the number of hours expended; as such, the court cannot determine the reasonableness of any such fees.

The court will continue the hearing to June 9, 2023 at 9:30 a.m. Plaintiff’s counsel is instructed to file and serve a supplemental declaration, due no later than five court days prior to the continued hearing date, addressing the court’s concerns regarding attorney’s fees.