Can an active litigant who benefits a passive beneficiary recover a portion of his attorney fees and costs?

Thus, the equitable apportionment and the common fund doctrines codified in Labor Code section 3856 permit the active litigant who benefits a passive beneficiary to recover a portion of his attorney fees and costs. "When the employee sues alone, the statute provides that the award of attorney fees is to be 'based solely upon the services rendered by the employee's attorney in effecting recovery both for the benefit of the employee and the employer.' ( 3856, subd. (b)[ ] ) The same standard is used when the employer sues alone ( 3856, subd. (a)) and when both parties are represented by a single attorney ( 3856, subd. (c). Stated differently, the trial court fixes the attorney fees based on the efforts of counsel which [17 Cal.App.4th 318] created the common fund. After fixing the amount of the attorney fee award, the trial court must apportion the fee award between the parties benefitted by the recovery; in doing so, the trial court must decide to what extent the passive beneficiary should contribute to the litigation expenses and fees which created the recovery fund." (Walsh v. Woods, supra, 187 Cal.App.3d at p. 1277, 232 Cal.Rptr. 629, emphasis in original.)