Case One Rejects Adoption of Lodestar Methodology For Probate Cases; Case Two Determines that Fee Request for Successful Defense of Will Contest Must Be First Directed to the Trial Court Rather than the Appellate Tribunal.
Now we have two cases of interest to probate and estate practitioners.
The first case is Conservatorship of Rice, Case No. A119435 (1st Dist., Div. 1 Oct. 28, 2008) (unpublished), where a probate court ordered an attorney’s fees award of $15,280 split between conservator’s attorney and conservatee’s attorney, where both were involved in the trial of an elder abuse claim. Conservator appealed, and lost. The facts showed that the probate court only awarded about half of the fees requested by conservatee’s attorney, and those had to be split with conservator’s attorney. Probate Code section 2640 confers broad discretion on the probate court to award “reasonable” compensation to an attorney rendering services to a conservator. Conservator mainly argued that the trial court should have awarded her chosen attorney at a higher rate than the $200 per hour rate used in fashioning the actual fee award. Wrong—“A court does not abuse its discretion when it chooses a rate of compensation that is different from the rate billed by counsel.” (Slip Opn., at p. 4.) Appellant then made a creative argument that the $200 hourly rate determination was suspect because the probate court did not utilize the lodestar/multiplier methodology set forth in Ketchum v. Moses, 24 Cal.4th 1122, 1131-1132 (2001) [one of our Leading Cases]. Wrong again—“Although such an approach may well benefit attorneys who practice in the field of probate law, there is no statutory requirement that the probate court base its award on the lodestar method or make such specific findings of fact” (slip opn., at p. 5) and “the underlying case here, no matter how important to all involved, is simply not in the same league as the public policy concerns and the litigation process grappled with in Serrano v. Priest, 20 Cal.3d 25 (the constitutionality of California public school financing), such as to warrant judicial imposition of a lodestar analysis in a probate proceeding where fees are awarded pursuant to statute” (slip opn., at p. 6). The Court of Appeal found that the probate court’s fee award was fair, splitting the fees so as to avoid double-billing the conservatee. Probate Çode section 10814 allows for such apportionment where there are two attorneys, such that the end result was just under the circumstances.
The second case is Estate of Dunn, Case No. C056497 (3d Dist. Oct. 27, 2008) (unpublished), where a litigant successfully defended against a will contest brought by an estranged husband. After litigant won on appeal, she requested that the Third District Court of Appeal award her attorney’s fees and costs pursuant to Probate Code section 10811 and Code of Civil Procedure section 1033.5(a)(10). No go, said the appellate court, because the proper procedure is to seek attorney’s fees from the trial court in the first instance. As support, the Court of Appeal cited California Rules of Court, rule 8.278(a)(4), Probate Code section 10811(a), as well as Estate of Schuster, 163 Cal.App.3d 337 (1984) and Estate of Fulcher, 234 Cal.App.2d 710 (1965). Although the appellate court did award successful litigant costs on appeal, she needed to direct her fee request to the trial court as part of the probate proceedings.