A Partition Action in California Can Include Recovery of Attorney Fees

Two or more parties contributing funds to purchase real property as an informal partnership or joint venture is common in California which has increasing home values, and prudent investors agree in a writing how the parties will support the home and pay the other costs associated with joint ownership.  Such written agreements are essential to clarify the rights and duties of the parties, and if they include an attorney fee provision, it needs to be carefully prepared to include recovery of attorney fees if a partition action is filed.

The recent decision in Orien v. Lutz clarified some of the issues involved in a partition action for the sale of jointly owned real property, and the right to recover attorney fees under the statute providing for partition, or under a contract between the owners.   

The trial court found that an attorney fee provision in an earlier settlement agreement between the owners applied to the partition action, and it awarded all fees to plaintiff under Civil Code § 1717 (contractual attorney fee provision), rather than apportioning the costs of partition under Code of Civil Procedure §§ 874.010 and 874.040 (statutory attorney fee provision).

However, the Court of Appeal in Orien ruled that the partition action did not fall within the terms of the agreement's attorney fee provision because it was limited to the purpose of enforcing or preventing the breach of any provision of the agreement, including but not limited to instituting an action for a declaration of such party's rights or obligations hereunder, or for any other judicial remedy.

Because the agreement provided that the owners may sell the property at any time they agree to do so, and it did not prevent any one or more of the parties from filing a partition action with respect to the property in the event the parties were unable to unanimously agree on whether or not the property should be sold, the Court of Appeal held the partition action did not fall with the agreement's attorney fee provision, and no attorney fees were allowed under the contract.

Code of Civil Procedure § 874.010(a) allows a court in a partition action to order payment of attorney fees prior to final judgment if the fees were incurred for the common benefit, and the court is required to apportion attorney fees among the parties under § 874.040.

The Court of Appeal's goal in interpreting a contract is to give effect to the mutual intention of the contracting parties at the time the contract was formed. (Civil Code § 1636.) It ascertains that intention solely from the written contract if possible, but also considers the circumstances under which the contract was made and the matter to which it relates.  The Court considers the contract as a whole and interprets its language in context so as to give effect to each provision, rather than interpret contractual language in isolation. (Civil Code § 1641.) It interprets words in accordance with their ordinary and popular sense, unless the words are used in a technical sense or a special meaning is given to them by usage. (Civil Code § 1644.) If contractual language is clear and explicit and does not involve an absurdity, the plain meaning governs.

Civil Code § 1717 states that in any action on a contract, where the contract specifically provides that attorney fees and costs that are incurred to enforce the contract shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney fees in addition to other costs.

In Orien, the defendants disputed that the right to partition is contractual. They argued that the parties had the right to partition independent of the agreement, and the agreement “neither enlarged nor restricted” that right.

As a matter of California law, the parties had the right to seek partition regardless of the agreement and a co-owner of property has an absolute right to partition unless barred by a valid waiver. Given the plain meaning of the language in the agreement, and considering the matter to which it relates, namely the waivable right to partition, the Court of Appeal concluded that the intent of the language concerning partition was to prevent an implied waiver of the parties' existing right to partition, not to bring that right within the terms of the agreement and its attorney fee clause. The right to partition therefore was not a “provision” within the contract that plaintiff enforced, as required to invoke the attorney fee clause.

Attorney fee provisions, if drafted broadly, can encompass noncontractual claims. Courts have found provisions sufficiently broad to reach noncontractual claims when they apply to actions “arising out of” or “relating to” a contract or its subject matter, or to “any dispute under” an agreement.

In contrast, when an attorney fee provision is limited to actions “to enforce the terms of the agreement or declare rights hereunder,” courts have found this language too narrow to encompass noncontractual claims. A tort claim is not an “action to enforce” an agreement such to bring it within attorney fee provision.

Attorney fees may be allowed for services rendered for the common benefit even in contested partition suits. The more just and equitable rule to be applied would require a proper division of the expenditures entailed in the maintenance of such actions for the common benefit among those who shall have been found to be entitled to their respective shares and interests in said property by the ultimate judgment of the court, regardless of whether or not controversies had arisen and been litigated.

Attorney fees incurred by a defendant to a partition action could be for the common benefit, and therefore allocable in part to the plaintiff, despite the fact that the defendant had resisted partition, with the claim that plaintiff had no interest in the subject property, that it belonged to defendant alone, and that plaintiff was a mere volunteer in paying the delinquent taxes. Again, the fact that the partition action is contested is no bar to the proportional allocation of attorney fees, as even fees incurred resolving contested issues can be for the common benefit.

As illustrated in Orien, prudent co-owners of real property should execute a written agreement regarding their respective rights and duties concerning the property, and should include a broad attorney fee provision that includes the right to recover attorney fees in any partition action to the prevailing party.  This will enable the prevailing party to recover all of its reasonable attorney fees under the contract, and will not limit the attorney fees to apportion the fees between the parties based on a finding of "common benefit".

Proving Fair Market Value of California Real Property

In the world of California real estate, the Fair Market Value (FMV) of the property being transferred is a crucial factor for both the seller and buyer, because the seller does not want to sell for less than the FMV, and the buyer does not want to pay more than the FMV.  Also, the FMV is usually the determining factor in how much a lender will agree to lend with a loan secured by the property.  Appraisals are frequently obtained and accepted by parties to a transaction and lenders, but sometimes there are conflicting appraisals, especially in litigated cases such condemnation-eminent domain and divorces.  

How can you prove FMV at trial when the FMV is contested?

Under the California approved jury instructions, fair market value is the highest price for the property that a willing buyer would have paid in cash to a willing seller, assuming that:

1.         There is no pressure on either one to buy or sell; and

2.         The buyer and seller know all the issues and purposes for which the property is reasonably capable of being used.

This instruction should not be used if there is no relevant market for the property, and instead, a special instruction needs to be approved by the court for an appropriate alternative method of valuation.

FMV is a question for the jury, or judge in a court trial, based on the highest and best use for which the property is geographically and economically adaptable.

In a condemnation case, where a governmental entity files an eminent domain case to take property, the highest and best use is defined as that use, among the possible alternative uses, that is physically practical, legally permissible, market supportable, and most economically feasible. The appraiser must make a determination of highest and best use as part of the appraisal process. 

"Market value" in turn, traditionally has been defined as the highest price estimated in terms of money which the land would bring if exposed for sale in the open market, with reasonable time allowed in which to find a purchaser, buying with knowledge of all of the uses and purposes to which it was adapted and for which it was capable.

Alternative methods of valuation particularly apply to properties such as schools, churches, cemeteries, parks, and utilities for which there is no relevant market; therefore these properties may be valued on any basis that the court finds is just and equitable. However, when there is a market for this property in the private marketplace as demonstrated by the evidence, the trial court errs in admitting evidence of a valuation methodology that ignores the developed market for a particular type of property.

In determining the FMV of the property, the jury must consider both the value of the land and whether any buildings, machinery, or other equipment attached to the property increase or decrease the value of the property.

The jury is required to decide the value of property based solely on the testimony of the witnesses who have given their opinion of fair market value. The jury may consider other evidence only to help it understand and weigh the testimony of those witnesses. The jury may find the same FMV testified to by a witness, or it may find a value anywhere between the highest and lowest values stated by the witnesses. If the witnesses disagreed with one another, the jury should weigh each opinion against the others based on the reasons given for each opinion, the facts or other matters that each witness relied on, and the witnesses’ qualifications.

California's Evidence Code § 813 provides that the FMV of property may be shown only by the opinions of any of the following:

1.          Witnesses qualified to express such opinions (i.e., expert witnesses);

2.         The owner or the spouse of the owner of the property or property interest being valued; or

3.         An officer, regular employee, or partner designated by a corporation, partnership, or unincorporated association that is the owner of the property or property interest being valued, if the designee is knowledgeable as to the value of the property or property interest.

Nothing in the California Evidence Code prohibits a view of the property being valued or the admission of any other admissible evidence (including but not limited to evidence as to the nature and condition of the property.  In an eminent domain proceeding, the character of the improvement proposed to be constructed by the plaintiff) may be admitted for the limited purpose of enabling the court, jury, or referee to understand and weigh the testimony given. Such evidence, except evidence of the character of the improvement proposed to be constructed by the plaintiff in an eminent domain proceeding, is subject to impeachment and rebuttal.

The “owner of the property or property interest being valued” who can give an opinion of value includes, but is not limited to, the following persons: 

1.          A person entitled to possession of the property; or

2.          Either party in an action or proceeding to determine the ownership of the property between the parties, if the court determines that it would not be in the interest of efficient administration of justice to determine the issue of ownership prior to the admission of the opinion of the party.

In determining FMV, comparable sales may be considered under California Evidence Code § 816, which provides that when relevant to the determination of the value of property, a witness may take into account, as a basis for his opinion, the price and other terms and circumstances of any sale or contract to sell and purchase comparable property if the sale or contract was freely made in good faith within a reasonable time before or after the date of valuation.  

In order to be considered comparable, the sale or contract must have been made "sufficiently near in time" to the date of valuation, and the property sold must be "located sufficiently near" the property being valued, and must be "sufficiently alike" in respect to character, size, situation, usability, and improvements, to make it clear that the property sold and the property being valued are comparable in value, and that the price realized for the property sold may fairly be considered as "shedding light" on the value of the property being valued.  Differences, such as a pool, are subject to an adjustment in the FMV.

California Evidence Code §  823 provides that the value of property for which there is no relevant, comparable market may be determined by any method of valuation that is "just and equitable".

The essence of comparability is recent and local sales, and after the trial court resolves this preliminary legal question, it is then ultimately for the jury to determine the extent to which the other property is in fact comparable.

No general rule can be laid down regarding the degree of similarity that must exist to make comparable sales evidence admissible.  It must necessarily vary with the circumstances of each particular case.  Whether the properties are sufficiently similar to have some bearing on the value under consideration, and to be of any aid to the jury, must necessarily rest largely in the sound discretion of the trial court, which will not be interfered with unless abused.

Seeking to prevail in a case based upon appraisals, and the various factors that are considered in determining FMV, requires an organized and substantiated presentation of all of the relevant evidence by competent and experienced legal counsel.

Common Law Duty of Landlords in California is Limited

In the recent California decision in Day v Lupo Vine Street, the Court of Appeal clarified whether a commercial landlord who leases space to an operator of a health studio owed a duty under Health and Safety Code § 104113 or under the common law to acquire and maintain an automated external defibrillator (AED) at the premises or ensure that the operator does so. 
After concluding there is no such duty under section 104113 because it is limited to the "health studio" tenant, the Appellate Court reviewed whether there was a common law duty in addressing the claims for negligence per se and negligence.  The trial concluded that it would be unreasonable to impose a duty on a mere property owner or landlord to inspect property being leased for use as a boxing training gym to ensure compliance with section 104113.

Plaintiffs contended that even if defendant did not have a statutory duty to acquire and maintain an AED, it had a common law duty to ensure the premises were equipped with an AED before Wild Card took possession of the boxing gym.  They contended that this duty required defendant to either provide an AED at the premises that it leased to Wild Card to operate a boxing gym, or to specifically require Wild Card to obtain and maintain an AED as a condition of the lease.

The elements of a cause of action for negligence in California are:
            1.         the defendant had a duty to use due care;
            2.         the defendant breached that duty; and
            3.         the breach was the proximate or legal cause of the resulting injury.

The existence of duty is a question of law to be decided by the court, and the courts have repeatedly declared the existence of a duty by landowners to maintain property in their possession and control in a reasonably safe condition.  However, acknowledgment of the broad proposition that landowners have a duty to exercise reasonable care to maintain their property in a safe condition provides scant guidance to a court that must determine the existence of the landlord’s duty in a particular case.

With regard to landlords, “reasonable care" ordinarily involves making sure the property is safe at the beginning of the tenancy, and repairing any hazards the landlord learns about later.  Because a landlord has relinquished possessory interest in the land, the duty of care to third parties injured on the land is attenuated as compared with the tenant who enjoys possession and control.  Thus, before liability may be thrust on a landlord for a third party’s injury due to a dangerous condition on the land, the plaintiff must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition.

The existence of a duty is not an immutable fact, but rather an expression of policy considerations leading to the legal conclusion that a plaintiff is entitled to a defendant’s protection.  Duty is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same – to conform to the legal standard of reasonable conduct in the light of the apparent risk.

In Rowland v. Christian, the California Supreme Court identified a number of factors that courts may consider to determine whether a duty applies in a particular case:
            1.         the foreseeability of harm to the plaintiff;
            2.         the degree of certainty that the plaintiff suffered injury;
            3.         the closeness of the connection between the defendant’s conduct and the injury suffered;
            4.         the moral blame attached to the defendant’s conduct;
            5.         the policy of preventing future harm;
            6.         the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach; and
            7.         the availability, cost, and prevalence of insurance for the risk involved.

The chief element in determining whether defendant owes a duty or an obligation to plaintiff is the foreseeability of the risk.  But even when a risk is foreseeable, policy considerations may dictate a cause of action should not be sanctioned.

The California Supreme Court recently addressed the issue of whether a large department store owed its customers a duty to make available on its premises an AED for use in a medical emergency in Verdugo v. Target Corp. The Supreme Court observed that when determining whether a business owes a “duty to take precautionary steps prior to the time . . . an injury or illness has occurred” – such as having an AED on premises in case a patron suffers a cardiac arrest – California courts primarily look at a number of factors, including:
            1.         the degree of foreseeability that the danger will arise on the business’s premises; and
            2.         the relative burden that providing a particular precautionary measure will place upon the business.

If the relative burden of providing a particular precautionary safety or security measure is onerous rather than minimal, the governing cases have held that absent a showing of a "heightened" or "high degree" of foreseeability of the danger in question, it is not appropriate for courts to recognize or impose a common law duty to provide the measure.
Addressing the burden of providing an AED for the use of Target’s patrons, the Supreme Court in Verdugo found it would be “considerably more than a minor or minimal burden" on a business establishment. The statutory provisions and related regulations establishing the prerequisites to civil immunity for those entities acquiring an AED reflect the numerous related requirements that a jury is likely to view as reasonably necessary to comply with such a duty. Apart from the initial cost of the AEDs themselves, significant obligations with regard to the number, the placement, and the ongoing maintenance of such devices, combined with the need to regularly train personnel to properly utilize and service the AEDs and to administer CPR, as well as to have trained personnel reasonably available on the business premises, illustrate the magnitude of the burden.  Compliance with these numerous obligations clearly implicates more than a minor or minimal burden.

With respect to foreseeability, the Supreme Court found in Verdugo that there was no allegation that any aspect of Target’s operations or the activities that its customers engage in on the premises gives rise to a high degree of foreseeability that those customers will suffer cardiac arrest on the premises.  Instead, it appears that the risk of such an occurrence is no greater at Target than at any other location open to the public.  Therefore, the Court concluded that Target owed no common law duty to its customers to acquire and make available an AED.

Unlike Target, which was the operator of the business and therefore had possession and control of the premises and would have the ability to ensure compliance with these requirements, the defendant in Lupo Vine Street was a landlord out of possession of the premises.  Imposing a duty to provide an AED in this instance would require defendant to stay in constant contact with its tenant to see if the AED had been used (so it could be tested) and to obtain permission to enter the premises at least every 90 days to inspect the AED. This is a far greater burden than that which would have been imposed on Target.

Second, although plaintiffs contended that it was foreseeable that a patron of the boxing gym might suffer cardiac arrest because it is a matter of common experience and knowledge that people may experience heart problems during strenuous exercise, the Appellate Court questioned whether that purported “common experience and knowledge” may be imputed to the landlord, inasmuch as there is no evidence that any of the principals of defendant had any experience in the sports, health, or fitness business.  Thus, it is uncertain whether there was a sufficiently heightened or high degree of foreseeability of the danger in question to outweigh the considerable burden that would be placed on the landlord if the Appellate Court was to find a common law duty to provide an AED on the premises of the boxing gym.

Finally, even if it is “common experience and knowledge” that people who engage in strenuous exercise may experience heart problems, the question remains whether it is sound policy to require a landlord to investigate all of the dangers posed by the operation of the business of each of its tenants and to provide measures or devices to mitigate injuries caused by the tenant’s business rather than by any dangerous condition on the property itself.  The Appellate Court concluded it is not.  A landlord cannot be held to be responsible for all dangers inherent in a dangerous business. Accordingly, the Appellate Court ruled that the trial court correctly found that the landlord did not owe a duty to provide an AED on the premises where Wild Card operated its boxing gym.  

Having determined that the landlord did not owe a duty to Wild Card’s patrons to provide an AED on the premises, the Appellate Court determined whether defendant owed a duty to require as a condition of its lease that Wild Card provide an AED on the premises. The short answer is that defendant did require Wild Card to provide an AED, because the lease required Wild Card to comply with all laws and statutes, which would include section 104113.  But even if this provision was insufficient because it did not specifically identify section 104113, the Appellate Court concluded, based upon the Rowland factors, that the landlord did not owe a duty to specifically require Wild Card to provide an AED at the premises.

In sum, the balance of the Rowland factors weighed in favor of finding that the landlord did not owe plaintiffs a duty to ensure that Wild Card obtained and maintained an AED on the premises where it operated its boxing gym. Accordingly, the trial court did not err in granting the landlord summary judgment on the ground that plaintiffs could not establish a necessary element of their negligence cause of action.

This decision provides an outline of the issues a landlord should remain aware of regarding the condition of the premises leased to a tenant, and whether a common law duty is owed by the landlord to a tenant.  Although the Lupa Vine Street case addressed a commercial tenancy, it is also beneficial for a landlord of residential property to review the case and the various issues discussed in that decision.