Second District, Division 3 Upholds Fee Award In Second Appeal.
In our January 8, 2010 post, we explored the appeal in Conservatorship of Davis, where the Second District, Division 3 held that Probate Code section 1470(c) did authorize the probate court to order that attorney’s fees for work by an appointed Probate Volunteer Panel (PVP) counsel for a proposed conservatee (even though no formal conservatorship estate was ever created) could be paid from the conservatee’s estate. However, it reversed because the proposed conservator had no notice of the hearing and never stipulated to having a commissioner hear the matter.
Later, however, PVP counsel renewed a fee petition and was granted fees of $18,497.50, to be paid from conservatee’s trust. This prompted a second appeal by the proposed conservator.
This time the fee award was affirmed in Conservatorship of Davis (Davis v. Pitzer), Case No. B225190 (2d Dist., Div. 3 Apr. 7, 2011) (unpublished).
Aside from determining that conservator got proper due process notice and ability to challenge the fee petition request, three other challenges were rejected.
Consevator argued that the fee petition should have been abated because of an earlier civil action for fee recovery commenced by counsel. Wrong, said the appellate court, because a renewed motion in the same case is not a new action, so that it could proceed through the fee petition proceeding.
The next contention was that the fees expended on the first action were beneficial only to counsel, not the proposed conservatee. Wrong again, because the probate court did find a benefit to the conservatee’s estate from PVP counsel’s work, and it would be wrong to have fees paid by a non-appearing third party.
Finally, conservator argued that there was no “estate” because a conservatorship had not been formally created. Wrong for the third time. “Estate” under section 1470(c) is found in conjunction with “person’s estate” wording, which means that payment could be ordered from the conservatee’s estate (versus a conservatorship estate). Furthermore, “estate” also encompassed the assets from conservatee’s inter vivos trust, so no error occurrred in ordering payment from the trust.