Opinion
B322025
07-17-2023
FRED BERGER, Petitioner and Respondent, v. RANDI BERGER, Objector and Appellant.
Terran T. Steinhart for Objector and Appellant. Lewitt, Hackman, Shapiro, Marshall & Harlan and Paul C. Bauducco for Petitioner and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 18STPB03628, Ana Maria Luna, Judge.
Terran T. Steinhart for Objector and Appellant.
Lewitt, Hackman, Shapiro, Marshall & Harlan and Paul C. Bauducco for Petitioner and Respondent.
CURREY, P. J.
INTRODUCTION
Randi Berger (Randi) appeals from an order granting a petition by Fred Berger (Fred) for approval and payment of fees and costs to the law firm of Lewitt, Hackman, Shapiro, Marshall &Harlan (Lewitt Hackman). The fee petition sought attorneys' fees and costs incurred in preparing for, and conducting, a four-day bench trial involving a will contest and competing petitions for appointment of a personal representative. Following an evidentiary hearing, the trial court awarded Lewitt Hackman attorneys' fees in the amount of $181,122.50 and costs in the amount of $10,944.42. Finding no abuse of discretion, we affirm.
We refer to parties who share a surname by their first names to avoid confusion.
FACTUAL AND PROCEDURAL BACKGROUND
We borrow our description of the underlying will contest proceedings from our unpublished opinion in an earlier appeal. (Garrison v. Berger, et al. (Feb. 2, 2021, B300842) [nonpub. opn.] (Garrison).)
Edward Sherman (Edward) died on December 25, 2017. (Garrison, supra, B300842.) He was not married and had no children or grandchildren. Edward was survived by his only sibling, Marcia Sherman (Marcia), who died in October 2018. Edward had appointed Marcia as his attorney in fact in October 2017.
In April 2018, Barbara Garrison (Garrison), Edward's live-in girlfriend, filed a probate petition to be named the administrator of Edward's estate. (Garrison, supra, B300842.) She attached a will drafted in 2017 (the 2017 will), which left his entire estate to her. (Ibid.) In May 2018, Marcia objected to Garrison's petition, alleging Edward was without capacity to make the 2017 will, and that Garrison had "made [Edward] write" it. (Ibid.) One week later, Marcia petitioned to have herself named the administrator of Edward's estate, contending Edward died intestate. (Ibid.)
In November 2018, after Marcia died, Marcia's son Fred petitioned to have himself named the administrator of Edward's estate, also contending Edward died intestate. (Garrison, supra, B300842.) In January 2019, Randi (Fred's sister) petitioned for a will drafted in 2016 (the 2016 will) to be probated with her as executor, and objected to Garrison's petition. (Ibid.) In February 2019, Fred objected to Randi's petition, questioning both the validity of the 2016 will, and whether Randi would act neutrally as executor. Garrison also objected to Randi's petition. (Ibid.)
Fred later agreed the 2016 will was valid, though he still opposed Randi's appointment as executor. (Garrison, supra, B300842.)
A four-day bench trial began in June 2019. (Garrison, supra, B300842.) After hearing testimony from seven witnesses, including Garrison, Randi, and Fred, the court held: (1) the 2017 will was invalid based on testamentary incapacity and undue influence; and (2) the 2016 will was valid. (Ibid.) The court therefore granted Randi's petition for probate of the 2016 will, and appointed Randi as executor. (Ibid.)
Garrison appealed, and a different panel of this court affirmed. (Garrison v. Berger, et al. (Feb. 2, 2021), B300842 [nonpub. opn.])
Fred then filed a petition for approval of payment from Edward's estate of fees and costs to the Lewitt Hackman law firm, attorneys who represented Marcia, and then Fred, in the will contest proceedings. Randi, as executor, objected to Fred's petition on the grounds, inter alia, that the probate court did not have the power to award fees incurred by Fred, and alternatively, the amount of attorneys' fees requested was unreasonable. Randi also filed a brief, and a supplemental brief, arguing Lewitt Hackman was professionally negligent in failing to bring a motion for summary judgment at an early stage in the case, which, according to Randi, would have been successful, making "the cost of the litigation . . . a small fraction of the amount being petitioned for in the instant petition."
After an evidentiary hearing on the fee petition, the court issued a minute order approving the fees and costs requested except for the portion of fees incurred in pursuing a petition for removal of Randi as executor, concluding those fees were prematurely sought. Randi appeals from the order.
DISCUSSION
Randi contends the attorneys' fees awarded to Lewitt Hackman are unreasonable. She does not, however, argue the hourly rates are unreasonable or that time spent on certain tasks is excessive. Rather, her sole argument on appeal regarding the reasonableness of fees is Lewitt Hackman was professionally negligent in failing to prosecute a motion for summary judgment at an early stage of the case. Had it done so, according to Randi, the motion would "probably" have been successful, thereby reducing the amount of fees and costs incurred in the litigation by avoiding the four-day bench trial. As discussed in detail below, we conclude the trial court was well within its discretion to reject this argument and award the fees requested. (See Kasperbauer v. Fairfield (2009) 171 Cal.App.4th 229, 234 [we review the trial court's award of attorneys' fees for abuse of discretion].)
Randi's argument regarding the probability of success of a motion for summary judgment is based on the following facts. In 2017, while Edward was still alive, Marcia retained Lewitt Hackman to negotiate a settlement agreement with Garrison (the settlement agreement). The recitals in the settlement agreement provided, in part, that Edward appointed his attorney in fact, Marcia, to immediately remove Garrison from his residence and that Marcia is authorized to act on Edward's behalf to remove Garrison from his home. Under the terms of the settlement agreement, Garrison agreed to vacate Edward's residence in return for $15,000, and acknowledged and agreed that she had no monetary or other claims against Edward or his estate. On December 19, 2017, Marcia signed the agreement both in her individual capacity, and as Edward's attorney in fact. Garrison signed the agreement on December 26, 2017, the day after Edward died.
After Garrison filed her probate petition, Marcia and Lewitt Hackman exchanged emails regarding whether filing a motion for summary judgment based on the settlement agreement would be a prudent course of action. Marcia expressed concern about the costs of the litigation, and asked about bringing a motion for summary judgment in response to Garrison's petition. In a September 13, 2018 letter to Marcia, Lewitt Hackman explained: "[W]e do not believe that a Motion for Summary Judgment would succeed as, while we can dispute the documents and contentions in [Garrison's] discovery [stating that the power of attorney previously granted to Marcia had been revoked at the time Marcia negotiated the settlement agreement], they likely raise material issues of fact sufficient to defeat a Motion for Summary Judgment. Also, as a Probate matter, the Court would almost certainly order us to a settlement conference before working up and deciding such a motion. Thus, filing a Motion for Summary Judgment would be an expensive and probably unsuccessful exercise. Finally, if we brought a Motion for Summary Judgment which was denied, it could embolden [Garrison's] counsel to assert even more aggressive positions going forward and make the case more difficult to resolve."
In an email sent to Marcia the following day, Lewitt Hackman reiterated: "We can bring a Motion for Summary Judgment based on the [s]ettlement [a]greement if you wish us to. However, as [our] letter explains, [Garrison] has now produced documents and served verified discovery responses which dispute your authority to execute and the enforceability of the [s]ettlement [a]greement .... [T]he court is likely to see [Garrison]'s documents and discovery responses as creating disputes of material fact which would defeat a Motion for Summary Judgment, making it an expensive and likely unsuccessful endeavor."
In its minute order granting the petition for fees, the trial court agreed with Lewitt Hackman's assessment that a motion for summary judgment "would only have added to the estate's litigation expenses" because the "validity of the subject settlement agreement itself created a triable issue of fact[.]" It therefore found "[t]he trial conducted in 2019 could not have been avoided by the filing of a motion for summary judgment by the estate against Garrison as to the execution of a purported settlement agreement between Marcia (as decedent's agent under a power of attorney) and Garrison around the time of decedent's death."
Randi argues that, contrary to the trial court's findings, there are no triable issues of material fact regarding the validity of the settlement agreement because Marcia signed the agreement not only as attorney in fact, but also in her individual capacity. Thus, even if Marcia's status as attorney in fact was disputed, "a motion for summary judgment based upon Marcia's signature in her individual capacity would probably have prevailed because there was no disputed issue of material fact as to the validity of the [settlement agreement] based upon that signature." As the trial court explained, however: "[W]e only know the facts from one side. I have no idea what [Garrison's] position would have been in terms of how that agreement came to be signed, if it was under some sort of duress, I don't know. I think it is very speculative ...." In further response to Randi's counsel's argument that "[t]hey would have won the summary judgment if they had brought it" based on Marcia's signature on the settlement agreement "in her individual capacity[,]" the court stated: "But getting to the idea that somehow the court should ding Lewitt Hackman on their fees because they didn't generate more fees by pursuing the motion for summary judgment, which, again, we don't know - your assessment is that it's a slam dunk, but until it gets sent up the flag pole in front of the person wearing the black robe, we don't know. And even if it had been granted, there likely would have been an appeal .... So, again, I am not sure that your argument on this motion for summary judgment, that somehow that means the court needs - should put a lot of weight to that in terms of assessing the fees."
We agree with the trial court that assessing the probability of prevailing on a motion for summary judgment, and the amount of fees that would have been incurred in pursuing that course, would have been speculative. We therefore conclude the trial court did not abuse its discretion by declining to reduce the fee award to some reasonable amount of fees that Marcia and Fred would have incurred if Lewitt Hackman had filed a successful motion for summary judgment. (See Mallard v. Progressive Choice Ins. Co. (2010) 188 Cal.App.4th 531, 544 ["An attorney fee award will not be set aside 'absent a showing that it is manifestly excessive in the circumstances'"].)
Next, we consider Randi's contention that the trial court erred by not requiring Lewitt Hackman to reimburse Marcia's trust for the $78,000 previously paid to it by Marcia and her trust. Randi argues it was Fred's burden to "adduce evidence to establish what amount of the $78,000" was paid for services for which Lewitt Hackman is seeking to be paid on this fee petition, and because he failed to do so at the evidentiary hearing, Lewitt Hackman should be required to reimburse Marcia's trust "for the full $78,000."
Marcia and/or her trust paid fees to Lewitt Hackman not just for the work incurred in the will contest, but also for legal work performed before the will contest while Edward was still alive, including "inquiring as to whether or not to file a conservatorship."
At the hearing, Lewitt Hackman acknowledged that "to the extent that anything was paid by [Marcia's] trust towards this litigation, it would go back to that trust. It's not coming to Hackman. We're not trying to double dip in any way, shape, or form." Regarding the exact portion of the $78,000 that is reimbursable to Marcia's trust, a Lewitt Hackman attorney stated: "I would have to get the exact number. I would have to look at [that], but we have a record of it, absolutely." Randi's counsel did not respond to Lewitt Hackman's statements at the hearing. Nor did Randi list this issue in her written objections to the fee petition. The issue is therefore forfeited. (See, e.g., Howitson v. Evans Hotels, LLC (2022) 81 Cal.App.5th 475, 489 ["It is well settled that the failure to raise an issue in the trial court typically forfeits on appeal any claim of error based on that issue"].) And, in any event, the trial court properly addressed the issue by ruling as follows: "Lewitt Hackman is to reimburse the estate and/or trust of [Marcia] for any payments received on account of attorney's fees and costs which were paid by her individually and/or her trust [ ] account towards the sums allowed in the above orders." Thus, we discern no error.
DISPOSITION
The order is affirmed. Fred is awarded his costs on appeal.
We concur: MORI, J., ZUKIN, J.