Second District, Division 5 Sustains Award Based on Broad Fees Clause in Settlement Agreement and Confirms 60 Day Fee Deadline Does Not Apply in Probate Litigation Matters.
Most of the time in probate matters, attorney’s fees are awarded for services to an estate. (Estate of Trynin, 47 Cal.2d 265, 272-273; see also cases under our category “Probate.”) However, fees can also be awarded under contractual fee clauses in probate settlement agreements, as the next case illustrates.
Estate of Simon, Case No. B209553 (2d Dist., Div. 5 Feb. 23, 2009) (unpublished) involved a settlement agreement that was reached in a prior probate action brought by son against his father and his father’s second wife.
Son also brought a legal malpractice action against the attorneys (objectors) arising out of the prior action. Son filed yet another proceeding to probate a newly discovered will supposedly executed by his mother. The parties stipulated to stay the malpractice action pending resolution of the newly discovered will proceeding. The settlement agreement from the prior action between father, son and mother provided that fees were awardable “for any party hereto to retain an attorney to enforce the terms of this Agreement, against any party who has breached it, and/or is in default . . .” Son and objectors stipulated that the objectors had standing to assert any claims that could have been raised by father. Objectors obtained a summary judgment in the newly discovered will proceeding based on the bar of the settlement agreement and were subsequently awarded $51,205.36 in costs and fees under the settlement agreement fees clause. Son appealed, and lost.
Son first argued that objectors’ fee motion was untimely because it was not filed within 60 days after notice of summary judgment entry as required by California Rules of Court, rule 3.1702(b)(1). Not only was the argument waived, but objectors cited authorities indicating that rule 3.1702 is inapplicable to claims for attorney’s fees in probate court litigation as opposed to civil actions generally. (See Hollaway v. Edwards, 68 Cal.App.4th 94, 97-99 (1998) [discussing former rule 870.2]; Sanabria v. Embrey, 92 Cal.App.4th 422, 426-429 (2001).)
That turned consideration to whether the settlement fees clause was broad enough to allow objectors to receive a fee award. It was, found the appellate panel. Using the objective theory of contract interpretation (the “four corners” rule), the Court of Appeal found that the parties’ stipulation gave objectors standing to assert a fees claim and that the settlement agreement allowed recovery for objectors’ summary judgment based on the settlement agreement (given that son would have been able to recover fees had he prevailed under the settlement). The fees were not excessive, because son did not adequately support his argument and no abuse of discretion was demonstrated.