Although Appealing The Section 17211(b) Fees Award, Trustee Argued Against The Prior Bad Faith Finding And Not Against The Amount Of Fees Awarded Or Beneficiary’s Statutory Entitlement To Them.
In Cronin v. Hurst, Case No. G057303 (4th Dist., Div. 3 May 8, 2020) (unpublished), a trustee, who was found to have engaged in self-dealing and acting in bad faith in the administration of his mother’s revocable living trust, appealed a Probate Code section 17211(b) attorney fees award against him of $117,436.24.
On appeal, the trustee did not argue against the amount of fees awarded or the beneficiary’s statutory entitlement to the fees. Rather, he argued that his due process rights were violated because the fees had been awarded without a noticed motion, and that the trial court had failed to consider evidence that he had acted in good faith in administering the trust.
The 4/3 DCA found his arguments without merit and affirmed.
As to the noticed motion, the appellate panel found that a noticed motion is not required for a trial court to make a determination that a beneficiary is entitled to fees. Probate Code § 17211(b) gives discretion to a trial court to award attorney fees to a trust beneficiary contesting the trustee’s account and conduct as was the case here. Following a full trial on these issues, the trial court issued a statement of decision finding the trustee had acted in bad faith and without reasonable cause. Additionally, based upon its finding of bad faith, the trial court properly exercised its discretion to surcharge the trustee attorney fees and costs – an order that can be made in the statement of decision. (612 South LLC v. Laconic Limited Partnership 184 Cal.App.4th 1270, 1284 (2010).) Once the trial court made the determination that the beneficiary was entitled to the section 17211(b) statutory fees, the only necessary noticed motion related to the fees was for the “prove-up” of the amount of fees to be awarded – a noticed motion that was brought by the beneficiary in this matter.
As to the trustee’s evidence of good faith administration argument, the trustee did not appeal the order granting beneficiary’s petition wherein trustee was found to have acted in bad faith. Beyond that, the record did not reflect – nor did the trustee contend – that he was denied the opportunity to present evidence at trial that he did not act in bad faith or engage in self-dealing.