Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIPIP13111 Joan F. Burgess, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
The Neshanian Law Firm and Eric M. Neshanian for Objector and Appellant.
Pamela J. Walls, County Counsel, and Stacy C. Keffer and Eric Stopher, Deputy County Counsel, for Petitioner and Respondent Jerry Wengerd.
OPINION
Ramirez, P.J.
Claris Fisher (Claris), widow of the deceased conservatee, Meyer Fisher (Meyer), appeals from a probate order settling the third and final account of the Riverside County Public Guardian, acting as the successor permanent conservator for Meyer (Prob. Code, §§ 1300, subds. (b), (f), 1301, subds. (c), (e)), and approving attorney’s fees for Laura Dewey (Dewey), attorney for the conservatee. Claris, represented by her son, interposed multiple objections to the conservator’s third and final account, as well as to Dewey’s petition for attorney’s fees, based on arguments that had been made throughout the conservatorship proceeding and affirmed in prior appeals. The trial court approved the Public Guardian’s third and final account and ordered attorney’s fees in the amount of $2,400 payable to Dewey. Claris appeals.
To avoid confusion, the Fishers are referred to by their first names.
All further statutory references are to the Probate Code unless otherwise stated.
There were two prior appeals (Fisher v. Fisher (Jan. 8, 2001, E026617) [nonpub. opn.]; Wengerd v. Fisher (Feb. 22, 2007, E040107) [nonpub. opn.]) and two prior petitions for writ of mandate. (Fisher v. Superior Court (Mar. 3, 2005, E037567) [nonpub. opn.], Fisher v. Superior Court (Mar. 10, 2005, E037638) [nonpub. opn.].) The appeals resulted in affirmances of the trial court’s orders, and both writ petitions were summarily denied. Petitions for review of all decisions were denied. We have granted a request for judicial notice of our case, Wengerd v. Fisher, supra, E040107. We also take judicial notice of Fisher v. Fisher, supra, E026617. However, we decline to take judicial notice of the other matters, because they are not of substantial consequence to the issues in the current appeal. (Evid. Code, § 459.) Additionally, the Rules of Professional Conduct are citable without the requirement of taking judicial notice so we need not do so.
On appeal, Claris raises numerous arguments, which can be grouped as challenges to the order approving the third and final account, and the attorney’s fee award to Dewey. We affirm.
BACKGROUND
On July 29, 1992, Claris filed a petition for temporary and permanent appointment of a probate conservator for the person and estate of Meyer. Meyer objected to the appointment of Claris, because she wanted to seize control of his assets. The report of the court investigator therefore recommended the appointment of a private conservator. The probate court appointed Enzo G. Provenza to act as conservator for Meyer on November 16, 1992. Provenza acted as conservator until difficulties with Claris caused him to seek discharge from his duties, in favor of Claris taking over the duties of conservator. Claris then succeeded as conservator. In August 2001, the Public Guardian was appointed as successor permanent conservator.
In June, 2002, Dewey petitioned for allowance of attorney’s fees, in the amount of $28,610.34, covering the period up through May 2002. Eric M. Neshanian filed a declaration objecting to the payment of such fees on behalf of his mother, Claris, the suspended conservator. On September 20, 2002, the trial court granted Dewey’s petition. In July 2002, the Public Guardian submitted its report and second account of conservator, to which Claris objected, and made further objections.
One objection related to the omission of the promissory notes relating to the conservatee’s interest in Color Lab, Inc. (Color Lab) The conservatee had owned half the stock in a business called Color Lab, which owned real property in Los Angeles, which was sold in 1995 for more than $500,000. The buyer executed two promissory notes for $272,500 each, secured by separate deeds of trust. Payments were made on the notes by the purchaser of the business to Meyer’s former business partner, David Stanton, who forwarded $1,000 per month to the conservator. However, the notes were paid off sometime in 2002, resulting in a cessation of the payments.
Over Claris’s objections, the trial court made an order settling the second account current on December 22, 2005. Claris appealed this decision in Wengerd v. Fisher, supra, E040107, challenging the omission of the two notes for the sale of Color Lab as the major asset of Meyer’s estate. On February 22, 2007, we affirmed because there was “significant doubt about whether the Color Lab obligation still exists.” Claris’s petition for review was denied, and that decision is now final.
The conservatorship was terminated as of September 19, 2007, by the death of Meyer. The Public Guardian submitted a third and final and supplemental account on March 28, 2008. Claris objected, and submitted further objections, to the account because it omitted the Color Lab notes as an asset of the estate. On September 5, 2008, Dewey filed a petition for payment of attorney’s fees. She sought the balance due on the prior court order, approximately $11,000, after having received approximately $17,000. Claris objected to the payment of any attorney’s fees because (a) Dewey was not appointed by the court and had never produced her retainer agreement; (b) the conservatee lacked capacity to retain counsel; (c) she was unauthorized to act in the proceedings due to a lack of attorney-client relationship; (d) the legal services she rendered were not of benefit to the conservatee; (e) she failed to conduct an independent investigation and failed to object to the omission of the Color Lab asset. After a protracted contested hearing, the court issued a statement of decision approving the third and final accounting as well as awarding Dewey $2,400 in attorney’s fees.
In reaching its decision, the court overruled Claris’s objections because they were barred under the doctrine of collateral estoppel. Claris objected, further objected, and filed a second further objection, to the court’s statement of decision, reiterating the complaint that neither the Public Guardian nor Dewey discharged their duties to the conservatee relating to the omission of the Color Lab asset. Over the objections, the order settling the third and final account was filed on May 11, 2009, and an order approving attorney’s fees was filed on September 2, 2009. Claris filed separate notices of appeal from the two orders.
DISCUSSION
Claris’s arguments focus the court’s order approving of the third and final account, and the order approving the award of attorney’s fees.
1. The Order Approving the Public Guardian’s Third and Final Account Was Proper Where Claris’s Objections Were the Subject of the Prior Appeal, and the Decision Is Final.
Claris argues that the order approving the final account must be reversed because the second account was obtained by extrinsic fraud. We disagree. Claris objected to the second account current on grounds including the omission of the Color Lab asset, litigated the existence, vel non, of that asset over the course of several hearings leading to the order settling the second account, failed to produce substantial evidence that such an asset still existed prior to the order settling the second account, and failed to produce any evidence of any genre of fraud sufficient to permit us to revisit the issue.
The 2005 order settling the second account current of the Public Guardian is res judicata. A final judgment or order is res judicata where the court has jurisdiction in the fundamental sense, that is, of the subject matter and the parties. (Law Offices of Stanley J. Bell v. Shine, Browne & Diamond (1995) 36 Cal.App.4th 1011, 1024.) The doctrine of res judicata precludes parties or their privies from relitigating matters that have been finally determined by a court of competent jurisdiction. (Bernhard v. Bank of America (1942) 19 Cal.2d 807, 819.)
Issue preclusion is one component of the doctrine of res judicata. Issue preclusion commonly arises from successive suits on different claims and is referred to as collateral estoppel. (Sabek, Inc. v. Engelhard Corp. (1998) 65 Cal.App.4th 992, 997.) If the second action is on the same claim, issue preclusion based on the earlier determination is referred to as “direct estoppel.” (Ibid.) Both collateral and direct estoppels, like res judicata, have the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation. (Ibid., quoting Parklane Hosiery Co. v. Shore (1979) 439 U.S. 322, 326 [99 S.Ct. 645, 649, 58 L.Ed. 552]; see also Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511.)
For the preclusive effect to apply, several threshold requirements must be fulfilled. First, the issue must be identical to that decided in the former proceeding. Second, the issue must have been actually litigated in the former proceeding. Third, it must have been actually decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Fifth, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. (Hernandez v. City of Pomona, supra, 46 Cal.4th at p. 511.)
Section 2103 provides that when a final judgment or order becomes final, the guardian or conservator and the sureties are released from all claims. (§ 2103, subd. (a).) This section does not apply where the judgment or order is obtained by fraud or conspiracy or by misrepresentation contained in the petition or account or in the judgment or order as to any material fact. (§ 2103, subd. (b).) However, section 2103 requires a showing of extrinsic fraud in order to overcome the res judicata effect of an order approving a guardianship or conservatorship accounting. (Bank of America v. Superior Court (1986) 181 Cal.App.3d 705, 711.)
Courts distinguish between extrinsic and intrinsic fraud. (Buesa v. City of Los Angeles (2009) 177 Cal.App.4th 1537, 1545.) This distinction is important because intrinsic fraud cannot be used to overthrow a judgment. (Id. at p. 1546.) Extrinsic fraud refers to fraud in the obtaining of the order otherwise subject to res judicata effect. (Bank of America v. Superior Court, supra, 177 Cal.App.3d at p. 714.) The seminal definition of extrinsic fraud is “[w]here the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practised on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client’s interest to the other side.” (Lazzarone v. Bank of America (1986) 181 Cal.App.3d 581, 596 [italics omitted], citing United States v. Throckmorton (1878) 98 U.S. 61, 65-66 [8 Otto 61, 25 L.Ed. 93, 95].)
In other words, extrinsic fraud refers to extrinsic factors, designed to keep a party ignorant of the lawsuit, and which prevented one party to the litigation from presenting his or her case. (Groves v. Peterson (2002) 100 Cal.App.4th 659, 665.) Under the doctrines of res judicata and collateral estoppel, a judgment may not be collaterally attacked on the ground that evidence was falsified or destroyed, because that type of fraud is “intrinsic, ” rather than “extrinsic.” (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 10.)
Here, there was no showing that Claris was ignorant of the proceeding, and, based on the numerosity and voluminosity of her objections, it cannot be said she was prevented from presenting her case. Although the court gave Claris every opportunity to produce evidence of extrinsic fraud, she presented no evidence that would meet the well established legal standard. To the contrary, Claris’s theory appears to have been that the conservator and the conservator’s predecessors, as well as the conservatee’s attorney, breached a fiduciary duty to the conservatee to investigate and marshal the allegedly omitted asset. Claris cites no authority to support the premise that a breach of fiduciary duty constitutes extrinsic fraud.
Failing to allege, much less prove, extrinsic fraud, the prior judgment is final and binding on us, as well as Claris.
2. The Attorney-Client Privilege Applied to Testimony by the Conservator Regarding Advice from Counsel Regarding the Discharge of the Conservator’s Duties.
At the hearing, Claris’s counsel attempted to elicit testimony that the conservator’s belief that she did not have a duty to make certain inquiries of Dewey regarding information about Color Lab was due to conversations the conservator had with county counsel, who represented the Public Guardian. The court sustained an objection that the question sought privileged information. On appeal, Claris attempts to argue that the attorney-client privilege does not apply if the lawyer’s services were sought or obtained to enable or aid anyone to commit or plan to commit a fraud, citing Evidence Code section 956. She then attempts to argue that the order approving the second account was obtained by conspiracy, which nullifies the privilege.
The crime-fraud exception applies to communications between an attorney and client relating to the client’s contemplated criminal acts or fraud. (Nowell v. Superior Court (1963) 223 Cal.App.2d 652, 657.) Under Evidence Code section 956, the attorney-client privilege is nullified if the attorney’s services were sought to aid anyone in the commission of a crime or fraud. (NFL Properties v. Superior Court (1998) 65 Cal.App.4th 100, 108.) However, the mere allegation of fraud is insufficient to make the crime-fraud exception applicable, and to nullify the attorney-client privilege. (Dickerson v. Superior Court (1982) 135 Cal.App.3d 93, 100.)
Here, the examination of the Deputy Public Guardian respecting the privileged communications had nothing to do with a contemplated crime or fraud. The privilege was not nullified and the trial court’s ruling was not an abuse of discretion.
3. The Order Approving Attorney’s Fees Was Not an Abuse of Discretion.
Claris makes various attacks on the order approving the award of attorney’s fees. Specifically, she argues that Dewey’s services did not benefit the conservatee, and she apparently complains of evidentiary rulings, such as (a) whether expert testimony was required to establish if Dewey breached the standard of care owed to the conservator, and (b) whether Dewey was required to produce her retainer agreement in order to obtain approval of her fee request. We disagree.
First, Dewey was not required to produce her retainer agreement because her representation of the conservatee was not at issue. Claris has previously sought to challenge Dewey’s authority to represent Meyer, and we have previously affirmed a court order discharging an order to show cause why Dewey should not be relieved as his counsel. (Fisher v. Fisher, supra, E026617.) That decision is final and Dewey’s status as counsel for Meyer cannot be challenged again. Second, the issue of whether Dewey may have breached any standard of care is not an issue in a petition for attorney’s fees for the conservatee.
Claris cites section 2647 in support of her argument that a copy of the retainer agreement was required to be produced before fees could be approved. Section 2647 does not apply to fee requests from the conservatee’s attorney; the section is part of Chapter 8 of the Probate Code, which applies to requests for compensation by the guardian, conservator, or the attorney for the guardian or conservator. (§§ 2640, subd. (a)(3), 2647.) Even if this section governed, the statute does not contain a requirement for the production of the attorney fee agreement as a prerequisite to an award of fees.
Instead, compensation for the attorney for the conservatee is governed by section 1472. Section 1472 provides that the court shall, upon conclusion of the matter, fix a reasonable sum for compensation and expenses of counsel and shall make a determination of the person’s ability to pay all or a portion of that sum. (§ 1472, subd. (a)(1).) The showing required for an allowance of compensation is governed by rule 7.702 of the California Rules of Court, and includes the need for a statement of facts upon which the petition is based. Those facts must (1) show the nature and difficulty of the tasks performed; (2) show the results achieved; (3) show the benefit of the services to the estate; (4) specify the amount requested for each category of service performed; (5) state the hourly rate of the person who performed the services and the hours spent; (6) describe the services rendered in sufficient detail to demonstrate the productivity of the time spent; and (7) state the estimate amount of statutory compensation to be paid by the estate if the petition is not part of a final account or report.
A trial court’s determination of reasonable attorney’s fees is reviewed under the abuse of discretion standard. (Guardianship of K.S. (2009) 177 Cal.App.4th 1525, 1534.) A trial court’s exercise of discretion will not be disturbed on appeal unless the court exercised it in an arbitrary, capricious, or patently absurd manner, resulting in a manifest miscarriage of justice. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1434.)
The value of the estate is an appropriate factor to consider in setting fees, as is the value of the legal services. (Conservatorship of Levitt (2001) 93 Cal.App.4th 544, 549-550.) “Every attorney should be fully and fairly paid for his services, having in mind their nature, their difficulty, the value of the estate, and the responsibility thus cast upon the counselor.” (Estate of Byrne (1898) 122 Cal. 260, 266.)
Here, Dewey’s petition included a statement of facts underlying her petition for fees. The court reduced fees to the amount of $2,400, after deducting 12 hours for travel time, and 1.5 hours for any review after the death of the conservatee in 2007. The court properly exercised its discretion.
4. Claris Has Not Demonstrated Bias by the Court.
Claris’s final contention is that the trial court was biased against the conservatee. In support of her claim, she reiterates the perceived injustices she has suffered since 1992, but cites no appropriate authority. We have thoroughly reviewed the records of both this appeal as well as the most recent appeal in Wengerd v. Fisher, supra, E040107. There is no merit to Claris’s contention.
DISPOSITION
The judgment is affirmed. Costs are awarded to respondent.
We concur: Hollenhorst J., Miller J.