Trial Court Erred in Not Allowing New Proof After Prior Reversal in Leader I.
In our March 24, 2010 post, we discussed Leader v. Cords, 182 Cal.App.4th 1588 (2010) (Leader I), where the appellate court reversed a probate code order denying Probate Code section 17211(b) fees to beneficiaries who were petitioning for an order requiring the trustee to make a final distribution.
On remand to a different probate judge, trustee was not allowed to present evidence despite the prior unqualified reversal on the important bad faith element of section 17211(b), although trustee did make an offer of proof on his subjective state of mind and on his advice of counsel defense. The trial court did not allow this new proof and relied only on transcripts from the earlier proceedings, subsequently finding that trustee had delayed distribution in bad faith and awarding $89,235 in fees and $1,784.93 in costs to trust beneficiaries under section 17211(b). This sequence of events led to another appeal and reversal in Leader v. Cords, Case No. D059224 (4th Dist., Div. 1 July 27, 2012) (unpublished) (Leader II).
The appellate court in Leader II determined that its earlier Leader I reversal was unqualified so that the matter needed to be tried anew, which meant both trustee and beneficiaries could present new evidence on the section 17211(b) elements. It certainly was not harmless error to preclude trustee from presenting subjective mind or advice of counsel evidence, so new proceedings again are to be the course of the day in this matter–meaning we may have yet another post if Leader III (yet another appeal) is taken.
We’re Following the Leader . . . .