James M. Tacherra v. Ernest J. Tacherra

Defendant Ernest J. Tacherra (“Defendant”), filed a motion on April 24, 2026, for recovery of reasonable fees and costs, and requests that the Court order the receiver in this action, Lawrence Baskin (“Receiver”), to use a portion of the proceeds from the sale of Tacherra Ranch, to pay directly to attorney’s fees for Defendant’s lawyer Elizabeth Brekhus, Esq. The fee request is $115,943.43, which counsel proposes should be assigned to the responsibility of the partners according to their interest in the property, i.e., 65% to Plaintiff James Tacherra (“Plaintiff”) ($75,363.23) and 35% to Defendant ($40,580.20).

On August 31, 2011, the Court entered an interlocutory judgment partitioning the Tacherra Ranch properties. Pursuant to the interlocutory judgment, the Receiver has disposed of all the properties. The Receiver was ordered to distribute 35% of the net proceeds of the sale of the Ranch Property to Defendant, less approximately $145,000 that Defendant owes to the partnership account.

Ms. Brekhus asks for payment of fees and costs of $115,943.43 in attorney fees and costs in satisfaction of her outstanding billing owed for legal work associated with determining the proportional financial percentage of the properties between the two partners.. The request is GRANTED.

I. Fees resulting from common benefit partition distribution

Pursuant to Cal. Code of Civil Procedure § 874.020:

The costs of partition include reasonable expenses, including attorney’s fees, necessarily incurred by a party for the common benefit in prosecuting or defending other actions or other proceedings for the protection, confirmation, or perfection of title, setting the boundaries, or making a survey of the property, with interest thereon at the legal rate from the time of making the expenditures.”

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In determining whether to award attorney's fees, whether the services in question are for the “common benefit” must be decided on the facts and circumstances in each case. (Stewart v. Abernathy (1944) 62 Cal. App. 2d 429, 432-433.) Fees incurred for the “common benefit” include fees incurred to achieve “the proper distribution of the ‘respective shares and interests in said property by the ultimate judgment of the court...’” (Orien v. Lutz (2017) 16 Cal.App.5th 957, 967-968, citations omitted; CCP §874.040 states “the court shall apportion the costs of partition [i.e., the attorney fees incurred for the common benefit] among the parties in proportion to their interests or make such other apportionment as may be equitable.” “[T]hose parties who share in the benefits of the proceeding should share in the costs equal to those benefits.” (Finney v.

Gomez (2003) 111 Cal.App.4th 527, 546-547, referring to Stutz v. Davis (1981) 122 Cal.App.3d 1, 4.).

Defendant argues that the very fact that an interlocutory judgment was entered which awards the Plaintiff with 65 percentage interest is a strong indication that the action provided a common benefit to both parties. Brekhus’ services were to achieve and did achieve the proper distribution of Plaintiff’s and Defendant’s shares and interests in the subject property.

Moreover, the court disagrees with the Plaintiff’s assertion that this case involves a “prevailing party.” This matter involved partition of property, not a contract dispute. (Orien v. Lutz (2017) 16 Cal.App.5th 957, 967-968; “common benefit” determination focuses on whether a partition action results in a proper division and distribution interest in property, without regard to litigation objectives.) Plaintiff’s argument that the court may assign an equitable distribution is contrary to case law, which requires apportionment in proportion to the court determined interest in the property at issue. Id.

II. Payment before final accounting

Defendant argues that there is a priority claim to the proceeds of the sale of the Ranch Property because the attorney client retainer consents to a lien recovery. A holder of an attorney’s lien is entitled to “any available equitable remedy necessary to effect payment of his fee for services rendered in connection with his client's claim out of any recovery upon that claim.” (Epstein v. Abrams (1997) 57 Cal. App. 4th 1159, 1169, citations omitted.) “Public policy favors giving attorneys' contractual liens for legal services priority over judgment creditors' liens crucial for debtors to be able to retain legal counsel, and a debtor's ability to retain counsel may also accrue to the benefit of the client's creditors.” (Pangborn Plumbing Corp. v.

Carruthers & Skiffington (2002) 97 Cal.App.4th 1039, 1047.) A law firm’s reasonable attorney’s fee lien has priority over a judgment lien. (Id. at 1051- 1053) The lien incorporated into the attorney client retainer creates a “first in time” priority, because the proceeds are recovered to the parties because of this litigation. Id at 1052. Here, resolution of the merits by entry of the interlocutory judgment is different from the compensable attorney time that was committed to reach the final decision on apportionment of the property, which follows with the final accounting of the estate for distribution.

The final accounting should include funds remaining after the payment of attorney’s fees.

III. Attorneys’ Fees

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The court will typically scrutinize the reasonableness of the fee petition request under the “lodestar” method by determining the lodestar, which consists of the number of hours reasonably spent by the reasonable hourly rates for that work on a non-contingency basis. The lodestar method requires the trial court to determine a lodestar figure based on careful examination of reasonable hourly compensation of each attorney and consideration of the time spent to perform each task. (Vo v. Las Virgenes Water District, (2000) 79 Cal.App.4th 440, 445-446.)

A. Reasonable Rate.

Plaintiff’s counsel Elizabeth Brekhus, Esq. states in her declaration that her requested fee rate is $500 per hour and $450 for her associate. Her current hourly rate is $850 an hour for regular legal work and $900 an hour for trial work. However, the rate charged was discounted in consideration of the Defendant’s financial circumstances.

The lodestar method requires the trial court to determine a lodestar figure based on careful examination of reasonable hourly compensation of each attorney and consideration of the time spent to perform each task. (Vo, 79 Cal.App.4th 445-446.). “The experienced trial judge is the best judge of the value of professional services rendered in his court.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095, citing Serrano v. Priest (Serrano III) (1977) 20. Cal.3d 25, 49.)

The Plaintiff does not object to the requested fee rate.

Counsel bears the burden of proof to establish “reasonable rates in the local community as a basis for [the fee] award.” (Nemecek & Cole v. Horn (2012) 208 Cal. App. 4th 641, 652; see also Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 155 [explaining the reasonable hourly rate is that prevailing in the community for similar work].) “The relevant ‘community’ is that where the court is located.” (Altavion, Inc. v. Konica Minolta Sys. Lab., Inc. (2014) 226 Cal.App.4th 26, 71.) “[U]se of reasonable rates in the local community, as an integral part of the initial lodestar equation, is one of the means of providing some objectivity to the process of determining reasonable attorney fees.” (Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1243.).

The court finds the hourly rates requested by the Brekhus Law Firm be eminently reasonable, and well in line with, if not significantly below, the reasonable compensable rates charged by Marin County attorneys with similar experience.

B. Hours Worked.

A party who seeks attorney’s fees has the initial burden of “documenting the appropriate hours expended.” (ComputerXpress Inc. v. Jackson, (2001) Cal.App.4th 993, 1020.) Once a documented hour total has been submitted, the opposing party may make objections to the hours claimed. General objections that work is “excessive” or “unreasonable” are insufficient. The objections should be specific. (Premier Med. Mgmt. v California Ins. Guarantee Ass’n, (2008) 163 Cal.App. 4th 550, 563.)

The basis for calculating the lodestar “must be the actual hours counsel devoted to the case, less those resulting from ineffective or duplicative use of time.” (Horsford v. Board of Trustees of Cal. State, (2005) 132 Cal.App. 4th 359, 395.) The court also recognizes these billing records of counsel constitute “verified time statements of the attorneys, as officers of the court, and are entitled to credence in the absence of a clear indication that the records are erroneous.” Id. at 394.

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Plaintiff does not object to the attorney compensatory hours entered in the billing statements submitted by counsel.

Defendant’s counsel submitted detailed contemporaneously created billing statements that were attached to the Brekhus declaration as Exhibit C.

C. Fees and Costs Awarded

Plaintiff’s counsel seeks:

1. $33,962.26 - past due amount relating to costs incurred at the trial of the matter and in connection with the post-trial proceedings; 2. $54,555.16 – fees and costs incurred from April 1, 2020, to the present in connection with this on-going partnership proceeding; and 3. $27,426.01 total consisting of attorney’s fees ($26,827.50) and costs ($598.51) the related Tacherra Ranch Tenants’ Association v. Lawrence Baskin et

The total fee request totaling $115,943.43 is assigned of the partners according to their interest in the property, i.e., 65% to Plaintiff ($75,363.23) and 35% to Defendant ($40,580.20), and shall be distributed from partnership distribution and paid directly by the receiver. This total includes the requested $598.51 in costs.

Defendant to prepare the order.

Parties must comply with Marin County Superior Court Local Rules, Rule 2.10(A), (B), which provides that if a party wants to present oral argument, the party must contact the Court at (415) 444-7046 and all opposing parties by 4:00 p.m. the court day preceding the scheduled hearing. Notice may be by telephone or in person to all other parties that argument is being requested (i.e., it is not necessary to speak with counsel or parties directly.) Unless the Court and all parties have been notified of a request to present oral argument, no oral argument will be permitted except by order of the Court.

In the event no party requests oral argument in accordance with Rule 2.10(B), the tentative ruling shall become the order of the court. IT IS ORDERED that evidentiary hearings shall be in-person in Department L. For routine appearances, the parties may access Department L for video conference via a link on the court website. Kindly turn your camera on when your case is called and make sure the party or lawyer making the appearance is properly identified on the screen.

FURTHER ORDERED that the parties are responsible for ensuring that they have a good connection and that they are available for the hearing while using the virtual remote courtroom. If the connection is inadequate, the Court may proceed with the hearing in the party’s absence. If it is determined that you are diving your car during the hearing, you will be removed from the virtual courtroom. (Yes, this happens).