Filed 9/21/20 Diepen v. Bollinger CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

BETTY VAN DIEPEN,

Plaintiff, Cross-defendant and Respondent,

v.

TINA SASAKI BOLLINGER,

Defendant, Cross-complainant and Appellant.

2d Civil No. B299696

(Super. Ct. No. 56-2016-00483747-CU-OR-VTA)

(Ventura County)

Tina Sasaki Bollinger appeals from an order to pay attorney fees incurred by her mother, Betty Van Diepen, in a lawsuit to partition a house the two formerly co-owned. Bollinger contends the trial court erred when it ordered her to pay the entirety of Van Diepen’s attorney fees because not all of the fees were “for the common benefit.” (Code Civ. Proc., § 874.010.) We affirm.

FACTUAL AND PROCEDURAL HISTORY

After the trial court granted Van Diepen’s request to partition a Camarillo house she and Bollinger co-owned, Van Diepen moved for attorney fees pursuant to sections 874.010 and 874.040. She claimed Bollinger should pay all of her fees based on the myriad “time-consuming and meritless arguments” Bollinger made at trial. Bollinger opposed Van Diepen’s motion, arguing that only a portion of Van Diepen’s fees were incurred “for the common benefit” of the parties.

The trial court disagreed with Bollinger: “At trial, [Bollinger] raised issues without success that were based on questionable grounds. This had the effect of inflating the fees for both sides.” What drove the litigation “was not an evaluation of the Camarillo property, but [Bollinger’s husband’s] insistence that he was entitled to rent from [Van Diepen] for her long-term tenancy in his Oxnard condominium.” This gave Van Diepen “no choice [but] to file the action for . . . partition. This should never have been necessary.”

The trial court continued: “[Van Diepen] was and is an elderly lady who was needlessly put through the wringer of litigation because of the hard line taken by [Bollinger and her husband].” This was “too much of a hardball approach considering the aggregate of the circumstances.” But “[h]aving taken [that] approach, and lost, the . . . balancing [of] the equities . . . justified awarding [Van Diepen] her fees.” The court ordered Bollinger to pay the entirety of Van Diepen’s attorney fees, more than $91,000.

DISCUSSION

Bollinger contends the trial court erred when it ordered her to pay Van Diepen’s attorney fees because not all of the fees were “for the common benefit” of the parties. We disagree.

“The costs of partition include . . . [r]easonable attorney[] fees incurred or paid by a party for the common benefit.” (§ 874.010, subd. (a).) A trial court shall apportion such fees “among the parties in proportion to their interests or make such other apportionment as may be equitable.” (§ 874.040.) We review an apportionment based on equitable considerations for abuse of discretion. (Lin v. Jeng (2012) 203 Cal.App.4th 1008, 1025 (Lin).) We will uphold that apportionment unless it “exceed[s] the bounds of reason, resulting in a miscarriage of justice.” (Ibid.)

There was no abuse of discretion here. As set forth above, after Van Diepen sued to partition the Camarillo house, Bollinger made a number of arguments contesting Van Diepen’s right to partition and how much each party was owed after the partition sale. The trial court rejected these arguments. So did we in the first appeal in this case. (See Van Diepen v. Bollinger (May 18, 2020, B294191) 2020 WL 2518183, at pp. *3-*5 [nonpub. opn.].) Each of Bollinger’s arguments prolonged what should have been a simple partition action, inflating the fees for both sides. “In light of these facts, we cannot say the trial court exceeded the bounds of reason in finding that an apportionment of . . . attorney fees that placed the entire liability on [Bollinger] was equitable.” (Lin, supra, 203 Cal.App.4th at p. 1026.)

Bollinger counters that the entirety of the attorney fees Van Diepen incurred were not “for the common benefit” of the parties, and were thus not chargeable to her. This argument rests on an outdated understanding of the law. As the Lin court explained, “[s]ection 874.040 was enacted in 1976, and was based [on] former section 796.” (Lin, supra, 203 Cal.App.4th at p. 1023.) Unlike current section 874.040, “[f]ormer section 796 did not include a general equitable exception to the rule that costs in a partition action must be apportioned among the parties in proportion to their interests in the property.” (Ibid.) Challenges to attorney fee awards brought under former section 796 instead “focused [exclusively] on whether the challenged fees were expended for the common benefit” (id. at p. 1024, italics added)—the exact challenge Bollinger raises here.

But such a challenge is now untenable because “there no longer is a single, specified exception to” proportional apportionment of attorney fees. (Lin, supra, 203 Cal.App.4th at p. 1024.) “Instead, section 874.040 broadly allows the trial court to ‘make such other apportionment as may be equitable.’” (Ibid.) It unambiguously permits the court to apportion fees based on equitable considerations, without limit. (Id. at p. 1025.) There was thus no error when the court below considered the equities and apportioned all of Van Diepen’s attorney fees to Bollinger.

This apportionment was also proper under section 874.010. That section permits a trial court to find that fees incurred for “advocat[ing] a position of limited merit” are not “for the common benefit” and should be borne by the party “pressing” such “spurious matters.” (Forrest v. Elam (1979) 88 Cal.App.3d 164, 173-174.) An inverse scenario occurred here: Van Diepen incurred attorney fees to defend against challenges of limited merit. Such costs should not be charged to her, but rather to Bollinger as the party “pressing” such “spurious matters.” (Id. at p. 173.) There was no abuse of discretion.

DISPOSITION

The trial court’s June 6, 2019, order that Bollinger pay Van Diepen’s attorney fees is affirmed. Van Diepen shall recover her costs on appeal.

NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

GILBERT, P. J.

YEGAN, J.
Henry J. Walsh, Judge

Superior Court County of Ventura

______________________________

Schaeffer Cota Rosen, Andrew K. Whitman; Procter, Shyer & Winter and James Norris Procter II, for Defendant, Cross-complainant and Appellant.

Lavere Huff and Paul R. Huff, for Plaintiff, Cross-defendant and Respondent.