If Trial Court Determines Common Facts Overlap Compensable and Noncompensable Claims for Fee Recovery, Usually Treated as Discretionary Exercise Upon Appellate Review.
In Conservatorship of McQueen (Taye v. Drumgoole), Case No. A126825 (1st Dist., Div. 4 Mar. 14, 2011) (unpublished), family attorney and other defendants were found liable for financial elder abuse, concealment, conversion, breach of fiduciary duty, and negligence, with the “sticker shock” really setting in when the lower court awarded plaintiff conservator $320,748.25 in attorney’s fees after the $99,900 compensatory damages award. Family attorney appealed, but could not really attack the fee entitlement basis–after all, Welfare and Institutions Code section 15657.5(a) does allow recovery for reasonable attorney’s fees and costs as well as reasonable conservator fees to a prevailing plaintiff. So, she argued that the trial court should have apportioned fees between compensable claims and noncompensable claims.
This was not a successful pitch on appeal, because the lower court did a good job of creating a record. The trial court found that the evidence developed to prove the elder abuse claim overlapped the noncompensable claims for fraud, breach of fiduciary duty, and conversion. Given that this finding was reviewed under the abuse of discretion standard, the lower court was given its due deference when the appellate court affirmed the fee award, “sticker shock” notwithstanding. (Thompson Pacific Construction, Inc. v. City of Sunnyvale, 155 Cal.App.4th 525, 555-556 (2007).)