Opinion
No. B155023.
11-4-2003
SUSAN KAY WEISS, Petitioner and Respondent, v. ROY PENUELA, Objector and Appellant; WILLIAM, Appellant.
Law Firm of Roy Penuela and Roy Penuela for Objector and Appellant and Appellant. Susan K. Weiss, in pro. per., for Petitioner and Respondent.
William and his former conservator, attorney Roy Penuela (Roy), appeal a superior court order entered on November 16, 2001, awarding Williams appointed counsel, Susan Kay Weiss, attorney fees of $7,500, payable by the former conservator on behalf of the former conservatee. We affirm. In a prior appeal by William and Roy, we concluded that, as attorney of record for the former conservatee, Weiss is entitled to reasonable attorney fees. In this appeal we find no abuse of discretion in the superior courts determination of the amount of those attorney fees.
In consolidated appeals B153395 and B156690, Roy and William challenged superior court orders entered on August 17, 2001, September 19, 2001, and December 28, 2001, and also moved to disqualify Weiss from representing William in the appeals. In an opinion filed July 15, 2003, we affirmed the challenged orders and denied the motion to disqualify (hereinafter Appeal I). We concluded, among other things, that the superior court did not abuse its discretion in finding that Weiss is entitled to attorney fees.
In addition, on our own motion, we impose sanctions against Roy for filing and prosecuting a frivolous appeal on behalf of William. We conclude that Roy has improperly avoided the payment of Weisss attorney fees, and his current challenge to the amount of those fees, after this court previously determined Weisss entitlement to attorney fees, is wholly without merit and maintained for the purpose of delay.
The instant appeal represents just one of the six appeals and writs Roy has filed in this court on Williams behalf over a one-year period in connection with Williams conservatorship. Roy began his appellate odyssey with a writ petition filed in case No. B144815 on October 6, 2000. The writ petition was summarily denied. Before the end of October 2000, Roy filed four more notices of appeal in quick succession, which became case No. B145517. Roy never filed an opening brief, however, and the case was dismissed on July 18, 2001 pursuant to California Rules of Court, rule 17(a). On January 28, 2002 Roy filed a petition for writ of prohibition and/or mandate to stay or vacate the superior courts order of December 28, 2001 requiring Roy to post a bond pending the appeal in case No. B156690. The petition was denied on January 29, 2002, and the Supreme Court denied review on February 20, 2002.
Although appellants purport to raise numerous federal and state constitutional issues in all of their appeals, the controversy in the case before us boils down to a simple dispute over the amount of attorney fees awarded to Weiss, a court-appointed attorney who represented the conservatee until the superior courts approval of the conservators final accounting. Other issues raised in appellants briefs in this appeal, including whether the superior court had the authority to appoint Weiss in the first instance or award her any attorney fees, whether the superior court abused its discretion in denying the motion to disqualify Weiss prior to the filing and approval of the final accounting, and whether the superior court was biased against William, were decided in Appeal I, and will not be revisited here. Contrary to appellants assertions, the determination of the issue in this appeal does not implicate Williams due process or other constitutional rights.
PROCEDURAL HISTORY
On January 3, 2002 we granted appellants request for judicial notice of Appeal I. Since the complete procedural history of this case is set forth fully in Appeal I, we need not repeat it here. We further take judicial notice pursuant to Evidence Code section 452 of appeal No. B145517.
On November 16, 2001, the superior court granted Weisss request for attorney fees in the amount of $7,500, which appellants challenged in a notice of appeal filed on December 3, 2001. On December 11, 2001 Roy filed a motion in this court to disqualify Weiss from representing William on appeal, which we denied on January 3, 2002.
In compliance with the procedural requirements set forth in In re Marriage of Flaherty (1982) 31 Cal.3d 637 (Flaherty), we advised the parties that the court was considering the imposition of sanctions against Roy and William on the courts own motion. We invited the parties to show cause why sanctions should not be assessed on the ground that the appeal is frivolous or has been taken solely for delay. Roy filed written opposition to the courts motion on October 3, 2003, and also addressed the subject during oral argument. This opinion constitutes the written statement of reasons required by Flaherty. (Flaherty, supra, at p. 654; Guardianship of Melissa W. (2002) 96 Cal.App.4th 1293, 1299.)
DISCUSSION
A. There was no abuse of discretion in the award of attorney fees to Weiss in the amount of $7,500.
Appellants challenge the attorney fee award on the ground that Weisss hourly fee was higher than that of her predecessor. They further assert that Weiss improperly charged for services rendered after the termination of the conservatorship, for time spent opposing the termination of the conservatorship contrary to Williams wishes, and for opposing Williams waiver of the final accounting by Roy and challenging Roys final accounting. Appellants contentions are without merit.
Most of the discussion in appellants briefs concerns issues raised in Appeal I that are not before us in this appeal. We will not revisit those issues here.
As we explained in Appeal I, the superior courts power to determine and order payment of Weisss attorney fees did not abruptly end with the termination of the conservatorship. The superior court generally appoints private legal counsel for a conservatee if the court determines that "the appointment would be helpful to the resolution of the matter or is necessary to protect the persons interests." (Prob. Code, § 1470, subd. (a).) In cases falling under the Lanterman-Petris-Short Act, the court is required to appoint counsel for a mentally ill conservatee. (Welf. & Inst. Code, § 5365.) Appointed counsel is compensated with "a reasonable sum" to be paid from the estate of the conservatee. (Prob. Code, § 1470, subds. (b), (c)(1).) And Probate Code section 2630 provides for the continuing jurisdiction of the court upon termination of the relationship of the conservator and conservatee for any reason "for the purpose of settling the accounts of the guardian or conservator or for any other purpose incident to the enforcement of the judgments and orders of the court . . . ."
Roy takes exception to the attorney fee order on the further ground that, with the termination of the conservatorship, he no longer has any authority to pay Weisss fee from the conservatees estate. During oral argument, Roy represented to the court that William now has sole access to and exclusive control over the estate. Because Roy cannot carry out the superior courts order for payment of Weisss attorney fees from the estate, Roy maintains that the superior courts order is void. Nonsense. On November 16, 2001, when the superior court approved the final accounting and ordered Weisss attorney fees to be paid from the conservatorship estate, Roy still exercised control over the estate as Williams conservator. The courts order clearly fixed liability for the fees in the estate, while reflecting the real-world fact that Roy was still paying the bills and would be the one to actually write the check. Roys failure to comply with the court order until it was no longer in his power to do so did not render the order void.
Probate Code provisions for establishing, administering and terminating conservatorships apply to Lanterman-Petris-Short Act cases. (Welf. & Inst. Code, § 5350.)
In Appeal I, we held that the superior court retained jurisdiction beyond the termination of the conservatorship to resolve matters still pending from the conservatorship, such as ordering reasonable attorney fees to be paid to the court-appointed attorney. Since Weiss was appointed by the court to act as counsel for William while he was still under conservatorship, we held that the court did not err in finding she was entitled to reasonable compensation for legal services she rendered pursuant to that appointment.
The granting of reasonable attorney fees is addressed to the sound discretion of the trial court, and the courts exercise of its discretion will be upheld unless it is arbitrary, capricious, whimsical, or beyond the bounds of reason. (See Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1448 [applying Prob. Code, § 10811, which authorizes payment of extraordinary attorney fees that are "just and reasonable"]; see also Prob. Code, § 2640, subd. (c).) "`The value of [an] attorneys services is a matter with which a judge is necessarily familiar. [Citation.] The nature of the obligation, the difficulty in enforcing it, the amount involved, the skill required, the attention given, the success of the attorneys efforts, are factors to be considered. [Citation.]" (Mandel v. Hodges (1976) 54 Cal.App.3d 596, 623, quoting Still v. Plaza Marina Commercial Corp. (1971) 21 Cal.App.3d 378, 387.)
Taking these factors into account, the superior court awarded Weiss $7,500 in attorney fees for 32 hours of legal services, stating:
"The Court finds that a reasonable fee for Ms. Weiss under the circumstances of this case is $7,500. The Court finds she has expended 32 hours. Her usual hourly rate is $275. Given the fact that she was under court appointment on this case, the Court finds that a reasonable fee given the complexity of this case. The level of acrimony engendered by the conservators behavior and failure to cooperate as well as the particular circumstances under which Ms. Weiss was required to attempt to discharge her duties as counsel made this an extraordinarily difficult case."
At the November 16 hearing on Weisss fee request, appellants presented no evidence to establish that Weisss hourly rate was unreasonable compared to the compensation paid to other attorneys practicing in the Los Angeles Superior Court who share the same qualifications and experience as she. Nor was there any evidence that Weisss charges exceeded her usual fee. Similarly, on appeal, appellants have failed to present any reasoned basis upon which to conclude the superior court abused its discretion in fixing the amount of Weisss attorney fees. The mere fact that one attorneys hourly rate is greater than anothers does not establish that the attorney fees requested are per se unreasonable. We therefore conclude the superior court did not abuse its discretion in fixing Weisss attorney fees, and appellants have presented no legitimate basis for their continuing refusal to pay those fees.
Instead of challenging the attorney fee order in the superior court on substantive grounds, appellants contended that the attorney fee order would be automatically stayed once they filed their notice of appeal, and the superior court would have no jurisdiction to enforce the order. But the superior court determined that the appeal did not automatically stay the attorney fee order, and ordered Roy to post a $10,000 bond as a condition of the stay pending appeal. Although we upheld the order for a bond as a condition of the stay in Appeal I, it appears that no bond was ever posted.
B. Sanctions.
Roy has prosecuted the instant appeal on Williams behalf as though it were merely a continuation of Appeal I. He has made little effort to avoid repeating the same arguments that were presented in Appeal I, or otherwise distinguish the instant appeal in any meaningful way from the prior appeal. Indeed, much of the opening brief in this appeal consists of verbatim repetition of appellants opening brief in Appeal I, and most of appellants reply brief simply reiterates the issues raised in appellants petition for rehearing in Appeal I, which was denied. Thus, despite lengthy briefing, appellants have failed to address the only issue before us: whether the superior court abused its discretion in fixing Weisss attorney fees at $7,500. Accordingly, we find the instant appeal to be wholly without merit and maintained solely for the purpose of delay.
Code of Civil Procedure section 907 allows a reviewing court to "add to the costs on appeal such damages as may be just" when it appears that an appeal is frivolous or taken solely for delay. Rule 27(e)(1) of the California Rules of Court further provides that "[o]n a partys or its own motion, a Court of Appeal may impose sanctions, including the award or denial of costs, on a party or an attorney for: [¶] (A) taking a frivolous appeal or appealing solely to cause delay; . . ."
In Flaherty, the California Supreme Court explained the rationale for the imposition of sanctions against a party by a reviewing court: "An appeal taken for an improper motive represents a time-consuming and disruptive use of the judicial process. Similarly, an appeal taken despite the fact that no reasonable attorney could have thought it meritorious ties up judicial resources and diverts attention from the already burdensome volume of work at the appellate courts." (Flaherty, supra, 31 Cal.3d 637, 649-650.) The court continued, setting forth both an objective and subjective standard for determining whether an appeal is frivolous: "[A]n appeal should be held to be frivolous only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit." (Ibid .)
With respect to the objective standard under Flaherty, the appeal before us indisputably lacks merit. The superior courts determination that Weiss was entitled to attorney fees for her representation of William during the conservatorship came several months before its separate order fixing the amount of those fees. Appellants separately appealed both orders as they were entitled to do. But once we issued our opinion in Appeal I holding that the superior court had properly determined Weiss should be paid a reasonable fee for the legal services she rendered in accordance with her obligations as Williams court-appointed attorney, appellants were foreclosed from challenging Weisss entitlement to fees in any subsequent appeal. Thus, while the appeal of the order setting Weisss fees may arguably have had merit at the time it was commenced, appellants continued prosecution of the appeal on exactly the same basis as Appeal I rendered this appeal frivolous. Once Appeal I was decided, "[this] appeal `should thereupon have been promptly dismissed so as to not put the respondent . . . and this court to the time and expense of reviewing an appeal that, for reasons we have described, had clearly become meritless. (Hale v. Laden (1986) 178 Cal.App.3d 668, 675.)" (Cohen v. General Motors Corp. (1992) 2 Cal.App.4th 893, 896.)
It is equally clear that appellants have pursued the instant appeal for the purpose of delay, thus satisfying the subjective element of the Flaherty test. Appellants have presented no arguable basis for overturning the superior courts order fixing Weisss attorney fees, yet they have refused to pay those fees for two years. And despite the trial courts order to do so, appellants never posted a bond to stay the order for attorney fees pending appeal, even after this court rejected their appeal on the bond issue.
Roy contends that he had nothing to gain by delaying payment of Weisss attorney fees since he has never been paid for his work as Williams attorney in the conservatorship proceedings, and he is not personally liable for payment of Weisss fees. But it is immaterial that Roys efforts on Williams behalf to delay payment of Weisss fees as ordered by the court were not motivated by personal pecuniary gain. Rather, it is sufficient for a finding of frivolousness that the appeal was maintained in order to delay—for whatever reason—the effect of the order for payment of Weisss attorney fees.
It is readily apparent that Roy cannot accept that the trial court was required to appoint counsel for William, or that appointed counsel is required to protect the conservatees fiscal well-being. (Welf. & Inst. Code, § 5365.) Nor does Roy accept that the conservatorship estate is required to compensate appointed counsel with a reasonable sum for her efforts. ( Prob. Code, § 1470, subds. (b), (c)(1).)
Appellants have squandered precious judicial resources in prosecuting this frivolous appeal. "[R]espondents are not the only parties damaged when an appellant pursues a frivolous claim or defense. Others with bona fide disputes, as well as the taxpayers, are prejudiced by the wasteful diversion of an appellate courts limited resources. . . . [A]ppropriate sanctions [may] also be imposed to compensate the state for its expense in processing, reviewing and deciding a frivolous appeal." (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 526-527; accord, Pierotti v. Torian (2000) 81 Cal.App.4th 17, 35; DeRose v. Heurlin (2002) 100 Cal.App.4th 158, 181.)
In determining the appropriate amount of sanctions, "courts may consider `the degree of objective frivolousness and delay[,] and the need for discouragement of like conduct in the future. (Pierotti v. Torian, supra , 81 Cal.App.4th at pp. 33-34.)" (DeRose v. Heurlin, supra , 100 Cal.App.4th at p. 182.) Based on the degree of frivolousness in this case, we conclude that sanctions in the amount of $2,500 will serve the objective of deterrence as well as "vindicate the public interest in the orderly administration of justice." (Id. at p. 181.)
Roy has taken full responsibility for the prosecution of this appeal. Given our understanding of Williams condition and the lack of any evidence that William was personally involved in the decision to continue this appeal, we believe the burden of paying the sanctions properly belongs exclusively to Roy. (Cohen v. General Motors Corp ., supra, 2 Cal.App.4th at p. 897.)
DISPOSITION
The order of the superior court, entered November 16, 2001, is affirmed. Appellant Roy Penuela is ordered to bear respondent Susan Weisss costs of appeal. In addition, the court imposes sanctions on Roy Penuela in the amount of $2,500 for maintaining this frivolous appeal. Roy Penuela is ordered to pay the sanctions to the clerk of this court. The clerk of this court is directed to deposit said sum in the general fund. All sanctions shall be paid no later than 30 days after the date the remittitur is filed.
We concur: NOTT, Acting P.J. and ASHMANN-GERST, J.