Filed 11/8/22 Hernandez v. Luna CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
ROSIE HERNANDEZ,
Plaintiff and Respondent, E077393
v. (Super.Ct.No. RIC1717405)
DOMINIC LUNA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Randall D. White, Judge.
(Retired Judge of the Riverside Sup. Ct. assigned by the Chief Justice pursuant to art. VI,
§ 6 of the Cal. Const.). Affirmed.
Law Offices of Raul B. Garcia, and Raul B. Garcia for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
1 Dominic Luna appeals from the trial court’s order awarding attorney fees to
plaintiff, Rosie Hernandez. We affirm.
BACKGROUND
In September 2017, Hernandez brought this action against Luna to partition real
property that they co-owned as joint tenants. In December 2018, the parties stipulated to
sell the subject property. After a bench trial in May 2019, the court entered a judgment
dividing the proceeds of the sale equally between the parties. The court rejected Luna’s
argument that he was entitled to a greater share of the sale proceeds.
Hernandez moved for attorney fees, and the court granted the motion in part. The
court awarded her reasonable attorney fees incurred from the commencement of the
action to December 2018, when Luna stipulated to sell the property. The court ordered
Hernandez to submit an accounting of her fees for that period, and it scheduled another
hearing on the matter in several months. Hernandez’s accounting showed that she
incurred $32,975 in attorney fees during the relevant period.
Before the next hearing, Luna filed a notice of appeal from the judgment. The
trial court determined that the pending appeal stayed the proceedings, so it did not rule on
the specific amount of attorney fees to which Hernandez was entitled. It took the hearing
off calendar.
In February 2021, we affirmed the judgment. On remand, Hernandez again
moved for attorney fees. She based her motion on the partition statutes authorizing the
recovery of attorney fees in partition actions, as well as Code of Civil Procedure sections
2 1032 and 1033.5. (Unlabeled statutory citations refer to the Code of Civil Procedure.)
She sought $32,975 in fees for September 2017 to December 2018, plus $21,373.50 in
fees after December 2018 through trial, $42,250 in fees for the appeal, and $1,690 for the
attorney fees motion.
The court granted Hernandez’s motion and awarded her most but not all of the
attorney fees that she sought. Specifically, it awarded her all of her fees from September
2017 to December 2018, all of her fees on appeal, and all of her fees for the motion. But
for the period after December 2018 through trial, the court awarded her only 50 percent
of her attorney fees. The court determined that those fees should be apportioned
according to the parties’ interests in the property, which were 50 percent each.
DISCUSSION
Section 874.040 controls the award of costs in a partition action. Under that
section, “the court shall apportion the costs of partition among the parties in proportion to
their interests” in the subject property “or make such other apportionment as may be
equitable.” (§ 874.040.) Under section 874.010, costs of partition include “[r]easonable
attorney’s fees incurred or paid by a party for the common benefit.” (§ 874.010,
subd. (a).)
“[T]he ‘common benefit’ in a partition action is the proper distribution of the
‘“respective shares and interests in [the] property by the ultimate judgment of the court.”’
[Citation.] This sometimes will require that ‘“controversies”’ be ‘“litigated”’ to correctly
determine those shares and interests [citation], but this ultimately can be for the common
3 benefit as well.” (Orien v. Lutz (2017) 16 Cal.App.5th 957, 967 (Orien).) Section
874.040 gives the trial court the equitable power “to adjust the allocation of costs if, for
example, fees are incurred for purposes that unduly exacerbate the dispute . . . .” (Orien,
supra, at p. 968.)
We review the trial court’s attorney fee order for abuse of discretion. (Orien,
supra, 16 Cal.App.5th at p. 966.) “[T]he ruling must stand unless . . . the trial court
exceeded the bounds of reason, resulting in a miscarriage of justice.” (Lin v. Jeng (2012)
203 Cal.App.4th 1008, 1025.) The appellant bears the burden of showing that the court’s
fee award constituted an abuse of discretion. (Gonzalez v. Santa Clara County Dept. of
Social Services (2017) 9 Cal.App.5th 162, 169.)
Luna has not carried his burden here. First, he contends that Hernandez’s
argument for recovery of fees was “misplaced.” (Boldface omitted.) He claims that she
argued that she was entitled to attorney fees as the prevailing party under section 1032,
subdivision (b). Luna contends that section 874.040 governed the issue, regardless of
whether Hernandez was the prevailing party. It is true that Hernandez relied on section
1032, but she also relied extensively on section 874.040 and argued that it was equitable
to make Luna responsible for all of her fees under that section. Moreover, the court cited
section 874.040 in the attorney fee order, and it expressly concluded that its fee award
represented an “equitable apportionment.” Thus, even if Hernandez erroneously relied in
part on section 1032, the record shows that the court correctly relied on section 874.040.
4 Second, Luna argues that the court did not explain the equitable principles on
which it relied to award Hernandez her attorney fees. On that basis, he argues that we
“can” remand the matter—not that we should or must remand it—for him to offer
evidence showing that he paid most of the mortgage, utilities, taxes, and other expenses
for the subject property. But he provides no authority demonstrating that the court
prejudicially erred by failing to explain its decision in detail. Moreover, he does not
explain why the evidence that he proposes to offer would show that the court
prejudicially erred. And he fails to address Hernandez’s arguments that it was equitable
to make him liable for her fees. The record does not even include the briefing related to
Hernandez’s first motion for attorney fees, in which she persuaded the court that he
should be liable for her fees from September 2017 to December 2018. Luna must
provide reasoned argument supported by citations to authority (Cahill v. San Diego Gas
& Electric Co. (2011) 194 Cal.App.4th 939, 956 (Cahill)) and “an adequate record to
assess error” (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295). His unsupported
arguments and the incomplete record are insufficient to show that the court prejudicially
abused its discretion.
Third, Luna contends that the court should have ordered each party to bear their
own fees or, alternatively, limited its fee award to the period from September 2017 to
December 2018. Both contentions are bare statements unsupported by any reasoned
argument or authority, so they fail for the reasons already discussed.
Free access — add to your briefcase to read the full text and ask questions with AI
Filed 11/8/22 Hernandez v. Luna CA4/2 NOT TO BE PUBLISHED IN 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
FOURTH APPELLATE DISTRICT
DIVISION TWO
ROSIE HERNANDEZ,
Plaintiff and Respondent, E077393
v. (Super.Ct.No. RIC1717405)
DOMINIC LUNA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Randall D. White, Judge.
(Retired Judge of the Riverside Sup. Ct. assigned by the Chief Justice pursuant to art. VI,
§ 6 of the Cal. Const.). Affirmed.
Law Offices of Raul B. Garcia, and Raul B. Garcia for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
1 Dominic Luna appeals from the trial court’s order awarding attorney fees to
plaintiff, Rosie Hernandez. We affirm.
BACKGROUND
In September 2017, Hernandez brought this action against Luna to partition real
property that they co-owned as joint tenants. In December 2018, the parties stipulated to
sell the subject property. After a bench trial in May 2019, the court entered a judgment
dividing the proceeds of the sale equally between the parties. The court rejected Luna’s
argument that he was entitled to a greater share of the sale proceeds.
Hernandez moved for attorney fees, and the court granted the motion in part. The
court awarded her reasonable attorney fees incurred from the commencement of the
action to December 2018, when Luna stipulated to sell the property. The court ordered
Hernandez to submit an accounting of her fees for that period, and it scheduled another
hearing on the matter in several months. Hernandez’s accounting showed that she
incurred $32,975 in attorney fees during the relevant period.
Before the next hearing, Luna filed a notice of appeal from the judgment. The
trial court determined that the pending appeal stayed the proceedings, so it did not rule on
the specific amount of attorney fees to which Hernandez was entitled. It took the hearing
off calendar.
In February 2021, we affirmed the judgment. On remand, Hernandez again
moved for attorney fees. She based her motion on the partition statutes authorizing the
recovery of attorney fees in partition actions, as well as Code of Civil Procedure sections
2 1032 and 1033.5. (Unlabeled statutory citations refer to the Code of Civil Procedure.)
She sought $32,975 in fees for September 2017 to December 2018, plus $21,373.50 in
fees after December 2018 through trial, $42,250 in fees for the appeal, and $1,690 for the
attorney fees motion.
The court granted Hernandez’s motion and awarded her most but not all of the
attorney fees that she sought. Specifically, it awarded her all of her fees from September
2017 to December 2018, all of her fees on appeal, and all of her fees for the motion. But
for the period after December 2018 through trial, the court awarded her only 50 percent
of her attorney fees. The court determined that those fees should be apportioned
according to the parties’ interests in the property, which were 50 percent each.
DISCUSSION
Section 874.040 controls the award of costs in a partition action. Under that
section, “the court shall apportion the costs of partition among the parties in proportion to
their interests” in the subject property “or make such other apportionment as may be
equitable.” (§ 874.040.) Under section 874.010, costs of partition include “[r]easonable
attorney’s fees incurred or paid by a party for the common benefit.” (§ 874.010,
subd. (a).)
“[T]he ‘common benefit’ in a partition action is the proper distribution of the
‘“respective shares and interests in [the] property by the ultimate judgment of the court.”’
[Citation.] This sometimes will require that ‘“controversies”’ be ‘“litigated”’ to correctly
determine those shares and interests [citation], but this ultimately can be for the common
3 benefit as well.” (Orien v. Lutz (2017) 16 Cal.App.5th 957, 967 (Orien).) Section
874.040 gives the trial court the equitable power “to adjust the allocation of costs if, for
example, fees are incurred for purposes that unduly exacerbate the dispute . . . .” (Orien,
supra, at p. 968.)
We review the trial court’s attorney fee order for abuse of discretion. (Orien,
supra, 16 Cal.App.5th at p. 966.) “[T]he ruling must stand unless . . . the trial court
exceeded the bounds of reason, resulting in a miscarriage of justice.” (Lin v. Jeng (2012)
203 Cal.App.4th 1008, 1025.) The appellant bears the burden of showing that the court’s
fee award constituted an abuse of discretion. (Gonzalez v. Santa Clara County Dept. of
Social Services (2017) 9 Cal.App.5th 162, 169.)
Luna has not carried his burden here. First, he contends that Hernandez’s
argument for recovery of fees was “misplaced.” (Boldface omitted.) He claims that she
argued that she was entitled to attorney fees as the prevailing party under section 1032,
subdivision (b). Luna contends that section 874.040 governed the issue, regardless of
whether Hernandez was the prevailing party. It is true that Hernandez relied on section
1032, but she also relied extensively on section 874.040 and argued that it was equitable
to make Luna responsible for all of her fees under that section. Moreover, the court cited
section 874.040 in the attorney fee order, and it expressly concluded that its fee award
represented an “equitable apportionment.” Thus, even if Hernandez erroneously relied in
part on section 1032, the record shows that the court correctly relied on section 874.040.
4 Second, Luna argues that the court did not explain the equitable principles on
which it relied to award Hernandez her attorney fees. On that basis, he argues that we
“can” remand the matter—not that we should or must remand it—for him to offer
evidence showing that he paid most of the mortgage, utilities, taxes, and other expenses
for the subject property. But he provides no authority demonstrating that the court
prejudicially erred by failing to explain its decision in detail. Moreover, he does not
explain why the evidence that he proposes to offer would show that the court
prejudicially erred. And he fails to address Hernandez’s arguments that it was equitable
to make him liable for her fees. The record does not even include the briefing related to
Hernandez’s first motion for attorney fees, in which she persuaded the court that he
should be liable for her fees from September 2017 to December 2018. Luna must
provide reasoned argument supported by citations to authority (Cahill v. San Diego Gas
& Electric Co. (2011) 194 Cal.App.4th 939, 956 (Cahill)) and “an adequate record to
assess error” (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295). His unsupported
arguments and the incomplete record are insufficient to show that the court prejudicially
abused its discretion.
Third, Luna contends that the court should have ordered each party to bear their
own fees or, alternatively, limited its fee award to the period from September 2017 to
December 2018. Both contentions are bare statements unsupported by any reasoned
argument or authority, so they fail for the reasons already discussed. (Cahill, supra, 194
5 Cal.App.4th at p. 956 [“‘The absence of cogent legal argument or citation to authority
allows this court to treat the contention as waived’”].)
Finally, Luna argues that the court erred by awarding fees for the appeal, because
Hernandez relied on distinguishable case law (Neal v. Superior Court (2001) 90
Cal.App.4th 22 )), and she purportedly provided no other authority for awarding appellate
fees. Even if Neal is distinguishable, Luna is incorrect—Hernandez cited other
authorities for awarding appellate fees. (Lunada Biomedical v. Nunez (2014) 230
Cal.App.4th 459, 489; Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211
Cal.App.4th 230, 250.) Those cases and others stand for the well-established principle
that “statutes authorizing attorney fee awards in lower tribunals include attorney fees
incurred on appeal[] . . . .” (Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927;
Conservatorship of McQueen (2014) 59 Cal.4th 602, 605 [“Where a statute provides for
attorney fees, they are generally available both at trial and on appeal”].) Sections
874.010 and 874.040 fall under that general principle—they authorize an award of
attorney fees in partition actions, and they do not expressly preclude an award of
appellate fees. Luna therefore fails to show that the court erred by awarding appellate
fees.
For all of these reasons, Luna has not carried his burden of showing that the
court’s attorney fee order constituted an abuse of discretion.
6 DISPOSITION
The attorney fee order is affirmed. Hernandez shall recover her costs of appeal, if
any. (Cal. Rules of Court, rule 8.278(a)(1).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS MENETREZ J.
We concur:
MILLER Acting P. J. CODRINGTON J.