To settle a probate dispute, three heirs entered into a settlement agreement which provided that each took an undivided one-third interest in each of two properties owned by the decedent. The agreement further provided that the three heirs could sell either or both properties any time all three agreed to do so. The same paragraph further provided that the joint sale provision did not prevent any of the heirs from prosecuting a partition action with respect to the properties. Finally, the agreement stated that the prevailing party would be awarded attorney fees in any action brought for the purpose of enforcing or preventing the breach of any provision of the settlement agreement. This decision holds that a partition action brought by one of the heirs was not a proceeding to enforce or prevent breach of the settlement agreement. The right of joint owners of property to petition for partition arises from statute; the settlement agreement merely avoided any waiver of that statutory right. Under Code of Civil Procedure 870.010 and 874.040, in a partition action, the trial court may, in its discretion, allocate among the parties fees incurred by any party, plaintiff or defendant, for the common benefit of all owners. For this purpose, the “common benefit” is the proper distribution of the respective shares and interests in said property by the ultimate judgment of the court, and fees may be allocated despite the fact that the proceeding is contested, some joint owners not wishing to partition the property.
California Court of Appeal, Second District, Division Eight (Flier, J.); November 3, 2017; 2017 WL 5022364.