Filed 11/3/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

STARA ORIEN,

Plaintiff and Respondent,

v.

MISTA L. LUTZ et al.,

Defendants and 

Appellants.

 B277323

 (Los Angeles County

 Super. Ct. No. BC524339)

APPEAL from an order of the Superior Court of Los 

Angeles County, Deirdre H. Hill, Judge. Reversed.

Friedman Stroffe & Gerard and Richard W. Millar for 

Defendants and Appellants.

Schorr Law and Zachary D. Schorr for Plaintiff and 

Respondent.

* * * * * *

Defendants Mista L. Lutz and Russell A. Howells appeal 

from an order granting attorney fees to plaintiff Stara Orien, 
respondent here, after the trial court entered an interlocutory 

judgment of partition in her favor. The trial court found that an 

attorney fee provision in an earlier settlement agreement among 

the parties applied to the partition action, and thus awarded all 

fees to plaintiff under Civil Code section 1717 rather than 

apportioning the costs of partition under Code of Civil Procedure 

section 874.040. We hold that the partition action did not fall 

within the terms of the attorney fee provision. Accordingly, we 

reverse the order.

BACKGROUND

In 2003 plaintiff and defendants received a gift of two 

residences from their mother. Each took an undivided one-third 

interest in the properties.

In 2006 the parties entered into a settlement agreement to 

resolve a probate claim regarding their mother’s estate initiated 

by defendant Howells. Paragraph 11.1 of the settlement 

agreement, entitled “Sale of properties,” stated, “Mista, Stara and 

Russell [(i.e., plaintiff and defendants)] may sell the properties at 

any time they agree to do so. However, this provision shall not 

prevent any one or more of the parties from filing a partition 

action with respect to either or both the properties, in the event 

that Mista, Stara and Russell are unable to unanimously agree 

on whether or not the properties should be sold.”

Paragraph 21.1 of the settlement agreement provided for

attorney fees, stating, “Should any party hereto retain counsel for 

the purpose of enforcing or preventing the breach of any provision 

herein, 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, then the prevailing party shall be 

entitled in addition to such other relief as may be granted, to be 

2
reimbursed by the other party for all costs and expenses incurred 

thereby, including but not limited to, reasonable attorney’s fees 

and costs.”

In October 2013, plaintiff filed a complaint against 

defendants seeking partition by sale of both properties. The 

complaint referred to the 2006 settlement agreement, alleging 

that as part of that agreement “the Parties stipulated that any 

one of them could partition the Properties in the absence of a 

unanimous agreement among them.” The complaint also 

referenced the attorney fee provision in the agreement, and 

plaintiff sought attorney fees and costs in the prayer.

The trial court granted summary judgment for plaintiff, 

and entered an interlocutory judgment for partition by sale. In a 

separate order, the trial court awarded attorney fees to plaintiff 

pursuant to paragraph 21.1 of the 2006 settlement agreement 

and Civil Code section 1717, which governs awards of attorney 

fees for actions on contract.1 The court found that plaintiff’s 

partition action “concerned enforcement of one of the provisions 

of the settlement agreement—paragraph 11.1—that allowed for 

partition by sale of the properties at issue” and therefore fell 

within the attorney fees provision. The court rejected defendants’ 

argument that plaintiff had the right to seek partition 

independent of the agreement: “. . . Defendants, who were 

represented by counsel in the execution of the Settlement 

Agreement, voluntarily included this provision in the agreement. 

Plaintiff, through this action, specifically sought to enforce that 

provision as cited in her complaint.”

1 Code of Civil Procedure section 874.110, subdivision (a), 

allows a court in a partition action to order payment of attorney 

fees prior to final judgment.

3

 
The court found that the fees sought by plaintiff “were 

incurred for the common benefit,” as required to apportion 

attorney fees among the parties to a partition action. (See Code 

Civ. Proc., §§ 874.010, 874.040.) Given its ruling under Civil 

Code section 1717, however, the court declined to apportion fees 

and instead awarded them all to plaintiff.2

Defendants timely appealed.3

DISCUSSION

1. Entitlement to attorney fees under settlement 

agreement

Defendants argue the court erred in interpreting the 

settlement agreement to allow recovery of attorney fees for a 

partition action. We agree with defendants.

“We review de novo a determination of an award of 

attorney fees under a contractual provision where, as here, no 

extrinsic evidence has been offered to interpret the contract, and 

the facts are not in dispute.” (Kangarlou v. Progressive Title Co., 

Inc. (2005) 128 Cal.App.4th 1174, 1177.) “Our goal in 

interpreting a contract is to give effect to the mutual intention of 

the contracting parties at the time the contract was formed. (Civ.

Code, § 1636.) We ascertain that intention solely from the 

2 Plaintiff sought $108,934 in fees. The court reduced this 

amount to $81,700.50 to reflect a number of “unacceptably vague” 

items billed by plaintiff’s counsel. The amount of fees is not at 

issue in this appeal.

3 Interlocutory judgments directing partition are appealable, 

as are orders made after such judgments. (Code Civ. Proc., 

§ 904.1, subd. (a)(1), (2), (9).) An order granting attorney fees is 

an appealable order after judgment. (Whiteside v. Tenet 

Healthcare Corp. (2002) 101 Cal.App.4th 693, 706.)

4

 
written contract if possible, but also consider the circumstances 

under which the contract was made and the matter to which it 

relates. (Id., §§ 1639, 1647.) We consider the contract as a whole 

and interpret its language in context so as to give effect to each 

provision, rather than interpret contractual language in isolation. 

(Id., § 1641.) We interpret 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. 

(Id., § 1644.) If contractual language is clear and explicit and 

does not involve an absurdity, the plain meaning governs. (Id.,

§ 1638.)” (Windsor Pacific LLC v. Samwood Co., Inc. (2013) 213 

Cal.App.4th 263, 274 (Windsor Pacific), disapproved of on other 

grounds by Mountain Air Enterprises, LLC v. Sundowner Towers, 

LLC (2017) 3 Cal.5th 744, 756, fn. 3.)

At issue here are the trial court’s findings that the 

settlement agreement “provided a right to partition by sale” and 

plaintiff’s partition action sought to enforce that contractual 

right, thus entitling plaintiff to attorney fees under paragraph 

21.1 and Civil Code section 1717.4 Defendants dispute that the 

right to partition is contractual. They argue that the parties had 

the right to partition independent of the agreement, and the 

agreement “neither enlarged nor restricted” that right. “At best,”

4 Civil Code section 1717 states, in relevant part, “In any 

action on a contract, where the contract specifically provides that 

attorney’s fees and costs, which are incurred to enforce that 

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’s fees in addition to other costs.” (Civ. Code, § 1717, 

subd. (a).)

5

 
defendants argue, “the settlement agreement merely clarifies 

that none of the settling parties have waived their right to 

partition.” The trial court rejected this argument, noting that 

defendants “voluntarily included this provision in the 

agreement.” 

Defendants are correct that the parties had the right to 

seek partition regardless of the agreement. “A co-owner of 

property has an absolute right to partition unless barred by a 

valid waiver.” (LEG Investments v. Boxler (2010) 183 

Cal.App.4th 484, 493 (LEG Investments), citing Code Civ. Proc., 

§ 872.710, subd. (b).) The trial court, while acknowledging the 

statutory right to partition, apparently found that the language 

in the settlement agreement created an identical right in the 

contract, thus bringing it within the ambit of the attorney fee 

provision.

We disagree with the trial court’s conclusion. Paragraph 

11.1 of the settlement agreement states that the parties may sell 

the properties should they agree to do so, but “this provision shall 

not prevent any one or more of the parties from filing a partition 

action” should they fail to agree to a sale. Giving this language 

its ordinary meaning, the phrase “shall not prevent” does not 

imply the creation of a new right, but the preservation of an 

existing right. That existing right can only be the statutory right 

to partition; the agreement does not mention partition other than

in paragraph 11.1, and the record contains no other possible 

source of that right. So even accepting the trial court’s position 

that a statutory right can effectively be transformed into a 

contractual right by including it in an agreement, the language 

does not reflect that the parties did so here.

6
The fact that the right to partition exists independent of 

the agreement does not render the partition language in 

paragraph 11.1 surplusage. Because the otherwise absolute right 

to partition may be waived by contract (LEG Investments, supra, 

183 Cal.App.4th at p. 493), the wise drafter of an agreement 

among co-owners of property will include language making clear 

no such waiver is intended. To do otherwise risks a later judicial 

finding that the parties have impliedly waived their right to 

partition by virtue of other contractual provisions. (See, e.g., 

ibid. [agreement giving right of first refusal to co-owners implies 

agreement not to bring partition action]; Penasquitos, Inc. v. 

Holladay (1972) 27 Cal.App.3d 356, 358 [waiver of right to 

partition implied by cotenants entering into lease and option 

agreements with third party]; Pine v. Tiedt (1965) 232 Cal.App.2d 

733, 738 [waiver implied when partition “would conflict with a 

prior agreement of the parties as to the use of the property”].)

Given the plain meaning of the language, and 

“consider[ing] . . . the matter to which it relates” (Windsor Pacific, 

supra, 213 Cal.App.4th at p. 274), namely the waivable right to 

partition, we conclude that the intent of the language concerning 

partition in paragraph 11.1 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. 

Indeed, it would be anomalous to hold that by expressly shielding 

an existing right from a particular contractual provision a party 

impliedly intended to subject that right to all other provisions of 

the contract. The more reasonable interpretation is that the 

parties wished to preserve their right to partition free and clear 

of the agreement. The right to partition therefore was not a 

7
“provision” within the contract that plaintiff “enforce[ed],” as 

required to invoke the attorney fee clause.5

Plaintiff argues that she is entitled to recover attorney fees 

so long as her partition action “involved a contract,” regardless of 

whether her claim was contractual in nature. (Boldface omitted.) 

In support, she cites Blickman Turkus, LP v. MF Downtown 

Sunnyvale, LLC (2008) 162 Cal.App.4th 858 (Blickman), which 

states that “ ‘. . . California courts liberally construe the term 

“ ‘ “on a contract” ’ ” as used within [Civil Code] section 1717. 

[Citation.] As long as the action “involve[s]” a contract it is “ ‘on 

[the] contract’ ” within the meaning of section 1717.’ ” (Id. at 

p. 894.)

Blickman addressed whether a cross-complaint asserting 

tort claims6 could be an action “ ‘on a contract’ ” within the 

meaning of Civil Code section 1717. (Blickman, supra, 162 

Cal.App.4th at p. 894.) The cross-complaint was filed by a lessor, 

Mozart, against Blickman Turkus, LP (BTC), the real estate 

agent for a lessee, alleging that BTC had failed to disclose 

material information about the lessee’s financial condition. (Id.

at pp. 865, 867.) BTC was not a party to the agreement 

containing the attorney fee provision, which was between Mozart

and its own real estate agent. (Id. at pp. 865, 867, 894.) BTC 

5 Defendants also argue that the statute governing attorney 

fees in partition actions, Code of Civil Procedure section 874.010, 

should prevail over Civil Code section 1717. Given our holding, 

we need not decide this question.

6 The cross-complaint asserted causes of action for 

concealment, breach of fiduciary duty, negligence, and negligent 

supervision. (See Blickman, supra, 162 Cal.App.4th at pp. 868, 

884, 889, 892.)

8

 
successfully demurred to the cross-complaint and did not seek 

attorney fees. (Id. at p. 866.) On appeal, however, for reasons 

both complicated and irrelevant to this appeal, the parties agreed 

that determination of whether the cross-complaint was “on a 

contract” was necessary to decide whether Mozart was entitled to 

fees for prevailing against BTC’s complaint, in which BTC 

claimed to be a third party beneficiary of the agreement between 

Mozart and its agent. (See id. at pp. 865-866, 892-894.)

The Court of Appeal found the action was “on a contract.”

(Blickman, supra, 162 Cal.App.4th at p. 895.) The court noted 

that the cross-complaint referred to the agreement between 

Mozart and its agent 14 times, attached a copy of the agreement, 

and incorporated it by reference. (Ibid.) The cross-complaint 

“relie[d] heavily on the language of the agreement” as well as 

BTC’s own claims under the agreement to establish certain 

agency relationships, including between Mozart and BTC. (Ibid.) 

Finally, the cross-complaint sought attorney fees, “an item of 

relief for which no colorable basis other than the commission 

agreement appears.” (Ibid.)

Plaintiff, analogizing to Blickman, asserts her claim 

“involved” the settlement agreement because that agreement was 

referenced in and attached to her complaint, and plaintiff relied 

on the agreement “to establish [her] right to partition.” This 

argument is unpersuasive. As discussed, the agreement does not 

“establish” a right to partition, but merely shields the existing 

statutory right from waiver. Thus, regardless of the agreement’s 

inclusion in the complaint, plaintiff did not and could not rely on 

that agreement to establish her right to partition under these

circumstances—her right instead arose under the law, and the 

9
agreement was irrelevant to her claim.7 Blickman, in which the 

cross-complaint referred to and relied on the relevant agreement 

to establish certain necessary facts, is therefore distinguishable.

We acknowledge that attorney fee provisions, if drafted 

broadly, can encompass noncontractual claims. (See Santisas v. 

Goodin (1998) 17 Cal.4th 599, 608 (Santisas).) 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. (Id.

at p. 607; Allstate Ins. Co. v. Loo (1996) 46 Cal.App.4th 1794, 

1799; Thompson v. Miller (2003) 112 Cal.App.4th 327, 336-337.) 

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. (Exxess Electronixx v. Heger 

Realty Corp. (1998) 64 Cal.App.4th 698, 702-703, 709-711

(Exxess); see Gil v. Mansano (2004) 121 Cal.App.4th 739, 745

(Gil) [tort claim not “action to enforce” an agreement such to 

bring it within attorney fee provision].)8

7 The circumstances would be different had defendants 

themselves invoked the settlement agreement and claimed 

plaintiff had waived her right to partition by executing it; in that 

case, plaintiff could rely on paragraph 11.1 to counter this 

argument, and likely would be in a stronger position to seek 

attorney fees were she to prevail.

8 We recognize that the fee provision in Blickman was 

narrow, limited to “ ‘any litigation between the parties hereto to 

enforce any provision of this Agreement’ ” (Blickman, supra, 162 

Cal.App.4th at p. 893), yet the court found the crosscomplainant’s tort claims to be “on a contract” for purposes of 

Civil Code section 1717. (Blickman, at p. 895.) But Blickman

10

 
The language at issue here provides for fees “[s]hould any 

party hereto retain counsel for the purpose of enforcing or 

preventing the breach of any provision herein, 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 . . . .” This is similar to the narrow language in Exxess, 

and by its terms is limited to actions seeking to “enforc[e] or 

prevent[] the breach” of the agreement. Because a partition 

action accomplishes neither of these things, the attorney fee 

provision cannot be interpreted to extend to it.9

never discussed whether the fees provision was sufficiently broad 

to encompass noncontractual claims, perhaps because the parties 

did not raise the issue. Thus Blickman does not support the 

proposition that the attorney fees provision at issue here 

encompasses a noncontractual partition action, especially in light 

of authority expressly holding the contrary. (See Exxess, supra, 

64 Cal.App.4th at pp. 702-703; Gil, supra, 121 Cal.App.4th at 

p. 745.)

9 To the extent plaintiff is suggesting that the clause “or for 

any other judicial remedy” encompasses noncontractual actions, 

we reject this argument. This clause modifies the phrase 

“instituting an action,” that is, a party may recover fees for 

instituting an action either for “a declaration of such party’s 

rights or obligations hereunder” or “for any other judicial 

remedy.” “[I]nstituting an action” is itself presented as an 

example of “enforcing or preventing the breach of any provision 

herein”—thus, the “action” contemplated is a contractual one, 

and “any other judicial remedy” would be limited to remedies 

available in contractual actions.

11

 
2. Entitlement to attorney fees under Code of Civil 

Procedure sections 874.010 and 874.040

Defendants contest the trial court’s finding that the 

attorney fees incurred by plaintiff were for the common benefit 

and therefore, in the absence of an applicable attorney fee 

agreement, allocable among the parties. In the alternative, 

defendants argue that if allocation is warranted, the allocation 

should include not only plaintiff’s fees but defendants’ as well, 

with the plaintiff and each defendant paying one-third of all 

attorney fees. We address these issues to assist the trial court on 

remand. We disagree that fees incurred by plaintiffs in contested 

proceedings cannot be for the common benefit, but agree that 

reasonable fees incurred for the common benefit by defendants to 

a partition action may also be allocated among the parties. The 

trial court may decide in the first instance whether and how to 

allocate fees.

Code of Civil Procedure section 874.04010 provides that “the 

court shall apportion the costs of partition among the parties in 

proportion to their interests or make such other apportionment 

as may be equitable.” These costs include “[r]easonable 

attorney’s fees incurred or paid by a party for the common 

benefit.” (§ 874.010, subd. (a).) We review the trial court’s orders 

regarding attorney fees for abuse of discretion, and its “decision 

will only be disturbed when there is no substantial evidence to 

support the trial court’s findings or when there has been a 

miscarriage of justice.” (Finney v. Gomez (2003) 111 Cal.App.4th 

527, 545 (Finney).)

10 All further statutory references are to the Code of Civil 

Procedure.

12

 
Defendants argue that plaintiff’s partition action was not 

for the common benefit because defendants did not want to 

partition the properties, but to keep them “for their long term 

income and appreciation.” Defendants claim that “[t]hese goals 

were eviscerated by the forced partition and liquidation, exposing 

them to immediate adverse tax consequences and the inability to 

afford comparable replacement properties.” They assert that 

cases from other jurisdictions “have denied attorney’s fees under 

the common benefit doctrine where the partition action was 

adversarial.”

We reject this argument. Our Supreme Court has spoken 

on this issue directly, holding that under former section 796, the 

predecessor to the current partition cost statute, “counsel fees 

may be allowed . . . for services rendered for the common benefit 

even in contested partition suits.” (Capuccio v. Caire (1932) 215 

Cal. 518, 528-529 (Capuccio).) In Capuccio, a defendant argued 

“that the services performed by plaintiff’s counsel in connection 

with the many controverted issues presented by the partition 

litigation” were not “ ‘for the common benefit.’ ” (Id. at p. 528.) 

The Supreme Court rejected this, explaining that “ ‘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 there had arisen and been litigated 

controversies . . . .’ ” (Ibid., italics omitted, quoting Capuccio v. 

Caire (1929) 207 Cal. 200, 208.)

The Supreme Court has also made clear that under former 

section 796 fees incurred by a defendant to a partition action 

13
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.” 

(Riley v. Turpin (1960) 53 Cal.2d 598, 601-603 (Riley). This 

principle has been applied under the current statute as well.

(See Forrest v. Elam (1979) 88 Cal.App.3d 164, 174 (Forrest) 

[proper to allocate portion of defendants’ fees to plaintiff under

§ 874.010 when defendants’ counsel “performed services for the 

common benefit” by contesting plaintiff’s claim to interest to 

which he was not entitled].) Again, the fact that the action was 

contested was no bar to the proportional allocation of attorney

fees; as Forrest demonstrates, even fees incurred resolving 

contested issues can be for the common benefit.

Although former section 796 has been repealed, its 

language concerning “common benefit” is not materially different 

from the current sections 874.010 and 874.040. Former section 

796 stated in relevant part, “The costs of partition, including 

reasonable counsel fees, expended . . . for the common benefit, . . .

must be paid by the parties respectively entitled to share in the 

lands divided, in proportion to their respective interests 

therein . . . .” The current statutory sections, which do not 

change or further define “common benefit,” provide no basis to 

disregard the clear precedent of Capuccio and Riley.11 Moreover, 

11 Defendants note that former section 796, unlike the current 

section 874.040, does not contain language allowing equitable 

apportionment that differs from allocation in proportion to each 

party’s interest in the property. This is true—former section 796 

contains only a limited exception to the rule of proportional 

14

 
cases interpreting those sections continue to permit the allocation 

of attorney fees in contested partition actions. (See, e.g., Forrest, 

supra, 88 Cal.App.3d at p. 174.)

From these authorities it is evident that the “common 

benefit” in a partition action is the proper distribution of the 

“ ‘respective shares and interests in said property by the ultimate 

judgment of the court.’ ” (Capuccio, supra, 215 Cal. at p. 528.) 

This sometimes will require that “ ‘controversies’ ” be 

“ ‘litigated’ ” to correctly determine those shares and interests 

(ibid.), but this ultimately can be for the common benefit as well. 

The fact that a party resists the partition does not change this. 

(See Randell v. Randell (1935) 4 Cal.2d 575, 582 [“The presence 

and litigation of controversial issues between all the parties does 

not preclude the allowance of attorney’s fees for services 

connected with such issues where such services are found to be 

for the common benefit of the parties.”]; Forrest, supra, 88 

Cal.App.3d at p. 174 [defendant’s resistance to plaintiff’s 

unmeritorious claim was for the common benefit].)

We note that while the presence of contested issues does 

not bar the allocation of fees in partition actions, defendants are 

nonetheless protected from plaintiffs who bring unfounded claims 

or otherwise drive up costs unnecessarily, just as plaintiffs are 

allocation, stating that when “ ‘litigation arises between some of 

the parties only, the court may require the expense of such 

litigation to be paid by the parties thereto, or any of them.’ ” (See 

Lin v. Jeng (2012) 203 Cal.App.4th 1008, 1024-1025 (Lin); id. at 

p. 1023 [contrasting § 874.040’s “general equitable exception” 

with former section 796’s “single exception to an otherwise 

mandatory rule”].) But defendants do not explain why this 

distinction makes Capuccio and Riley inapplicable to the case 

here.

15

 
protected from unscrupulous defendants. Sections 874.010 and 

874.040 provide numerous avenues for trial courts to adjust the

allocation of costs if, for example, fees are incurred for purposes 

that unduly exacerbate the dispute or do not provide a common 

benefit to all parties. For instance, under section 874.010 a court

may find that fees incurred “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, supra, 88 

Cal.App.3d at p. 174; id. at p. 173 [proper to reduce fees to 

plaintiff who presented “a time consuming and meritless 

contention that he should receive some amount greater than that 

to which he [was] legally entitled”].) Or, a court may achieve a 

similar result through an exercise of its equitable discretion 

under section 874.040 and require a party to bear its own fees. 

(See Lin, supra, 203 Cal.App.4th at pp. 1025-1026 [equitable for 

plaintiff in partition action to bear her own attorney fees when 

she sought to prevent her siblings from obtaining interests to 

which they were entitled, herself claimed an interest to which she 

“was well aware that she was not entitled,” and created 

unnecessary procedural hurdles].)12 A court also can adjust the 

allocation of fees incurred by a party to the extent they are not 

12 In so holding, Lin disagreed with Finney. Finney relied on 

the Law Revision Commission comments to section 874.040 to 

conclude that a court’s power to apportion costs equitably was 

limited, as in the former section 796, to cases in which the 

litigation arose only among some of the parties to a partition

action. (Finney, supra, 111 Cal.App.4th at pp. 545-546.) Lin

rejected this reasoning as having “ ‘exalted the Comments over 

the statutory language,” which clearly omits the limited 

exception from former section 796. (Lin, supra, 203 Cal.App.4th 

at p. 1025.)

16

 
“reasonable” as required by section 874.010, subdivision (a). (Cf. 

Finney, supra, 111 Cal.App.4th at p. 550 [reversing fee award in 

partition action when trial court made no determination of 

reasonableness].)

On remand, the trial court may exercise its discretion in

allocating fees, including setting the fee amounts and 

determining the appropriate allocation. As in Riley and Forrest, 

in making these determinations the court should consider the 

fees incurred by defendants as well as plaintiff, and allocate them 

appropriately to the extent they are reasonable and incurred for 

the common benefit.

DISPOSITION

We reverse the order granting attorney fees and remand for 

further proceedings consistent with this opinion. The parties 

shall bear their own costs on appeal.

FLIER, J.

WE CONCUR:

RUBIN, Acting P. J.

GRIMES, J.

17