Code of Civil Procedure (CCP) Section 873.120 - Referee Appointed Attorney

Code of Civil Procedure section 873.120 outlines the requirements for a partition referee to appoint an attorney. The point of the statute is that the attorney must be properly appointed by the referee.

Code of Civil Procedure section 873.120 states:

(a) The referee may employ an attorney only with the approval of the court pursuant to Section 873.110.

(b) The application for approval shall be in writing and shall include the name of the attorney whom the referee wishes to employ and the necessity for the employment.

(c) The attorney so employed may not be attorney for, or associated with or employed by an attorney for, any party to the action except with the written consent of all the parties to the action.

(d) Any claim for compensation for the attorney shall detail the services performed by the attorney.

(Amended by Stats. 1976, c. 73, p. 110, § 6.)

“Shawn” and “Julie” are an unmarried couple. They decide to buy a home as joint tenants and move in together.

Unfortunately, Shawn and Julie’s relationship doesn’t work out, and they break up. They cannot agree on what to do with the property. Shawn wants to sell the home and move on, so he sues for partition by sale.

The court orders the property to be sold and the sale proceeds distributed. The court appoints a referee to oversee the sale.

While organizing the partition, the referee reports to the court that he wants to employ an attorney to look over some contracts regarding the property, which would be necessary for selling the property. Pursuant to CCP § 873.120, the court approves the attorney’s employment. The attorney now works for the partition referee.

1976 Addition

Section 873.120 is new. It is derived from Rule 528 of the California Rules of Court (employment of an attorney by a receiver).

As is the case for most of the partition statutes, section 873.120 does not include a an “official” Assembly Committee Comment from the California Legislature. But this is because the Legislature endorsed an overall adoption of the Law Revision Commission suggestions when it passed the new partition statutes in 1976.

In fact, the introduction to Assembly Bill 1671 (the bill that contained the new partition laws) states that the Revision Commission’s recommendations “reflect the intent of the Assembly Committee… in approving the various provisions of Assembly Bill 1671.” This demonstrates that the intent of the Legislature was substantially in line with that of the Revision Commission.

As to the statute itself, it makes clear that the referee may employ an attorney to assist with various functions, such as getting legal advice on vacating the subject property. But what the referee may not do is employ an attorney who is already representing a party to the action.

This exact situation happened in the unpublished appellate case of Aguilera v. Lyons out of the Fourth District Court of Appeal in 2015.

There, the referee employed the plaintiff’s referee. And while the plaintiffs were aware of the attorney-client relationship, and had no problem with it, the Court of Appeal held that this was not the standard. Instead, the statute required written consent which was never obtained.

Nonetheless, the Court of Appeal held that this relationship, improper as it was, was not grounds for vacating the partition sale because the appellants had failed to demonstrate prejudice. “A court of equity has broad powers and comparatively unlimited jurisdiction to do equity without being bound by any strict rules of procedure.” (Richmond v. Dofflemyer (1980) 105 Cal.App.3d 745, 755.) As such, because the lower court determined the relationship did not ultimately result in inequitable results, the sale was upheld on appeal.