Fourth District, Division 2 Found Trustee Brought it on Himself.
In DeRosa v. Masi, Case No. E045145 (4th Dist., Div. 2 June 25, 2010) (unpublished), trustee was ordered to personally reimburse part of a loan used for attorney’s fees in probate litigation battles with a beneficiary substantially prevailing on several key issues. Trustee’s main appellate challenge was that the fees had to be surcharged in proportion to the time spent in trial on issues won by the opponent. Not so, said the appellate court. Besides the lack of legal authority to support such a position, trustees have been surcharged in entirety where the litigation resulted from the fault of the trustee, which was the situation presenting itself in De Rosa. (Estate of Miller, 259 Cal.App.2d 536, 547-548.) Estate of Cassity, 106 Cal.App.3d 569, 572-574 (1980)—trustee’s primary authority—did not dictate a contrary result because the trustee there acted in good faith and the surcharged amounts were a small percentage of those sought by beneficiary, much different from the trustee-laiden fault and beneficiary’s win on the key issues in the overall probate litigation in DeRosa.