Opinion
D074220
01-28-2020
Conservatorship of the Person of JAMES McFARLIN EDWARD ALBREKTSEN, as Conservator, etc., Petitioner and Respondent, v. DONNETTE McFARLIN, Objector and Appellant.
Law Offices of Rosemary-Leonard, Rosemary Meagher-Leonard; Law Office of Shirley J. Mills and Shirley J. Mills for Objector and Appellant. Woodward Law and Caron Woodward for Petitioner and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2016-00009021-PR-CP-CTL) APPEAL from an order of the Superior Court of San Diego County, Robert C. Longstreth, Judge. Affirmed and remanded for further proceedings. Law Offices of Rosemary-Leonard, Rosemary Meagher-Leonard; Law Office of Shirley J. Mills and Shirley J. Mills for Objector and Appellant. Woodward Law and Caron Woodward for Petitioner and Respondent.
Donnette McFarlin, the daughter of conservatee James McFarlin, appeals from an order after a bench trial discharging the conservator, Edward Albrektsen, and awarding the payment of conservator and attorney fees. Donnette claims the trial court erred in declining to issue a statement of decision. She also challenges whether substantial evidence supported: (1) reimbursement of Albrektsen's expenses; and (2) the court's implied finding that Albrektsen did not breach his fiduciary duty by (a) failing to account for rents collected from income on James's real property; (b) disposing of $24,000 taken from James's home safe; and (c) preserving James's personal belongings. Finally, she challenges Albrektsen's authority to liquidate a pay-on-death account. We conclude that the evidence supports the order and affirm. Albrektsen is entitled to an award of costs and attorney fees on appeal, and we remand to the probate court to calculate the amount of those costs and fees.
Albrektsen argues that Donnette's opening brief inaccurately cites the settled statement and cites facts with no reference to the record. He argues that we should disregard all references to the settled statement in the opening brief and disregard all testimony provided by Donnette as unsupported by proper citation to the record. (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379 ["an appellate court may disregard any factual contention not supported by a proper citation to the record"].) Although Donnette's failure to provide correct cites to the settled statement is troubling, we were able to reasonably discern her arguments on appeal and exercise our discretion to address the merits of her claims.
FACTUAL AND PROCEDURAL BACKGROUND
The record consists of a clerk's transcript and a settled statement; there is no reporter's transcript. Our factual background is drawn from the settled statement. "[W]e recite the facts in the light most favorable to the prevailing party . . . ." (Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 747.)
After working 25 years as a nurse, Dorothea left her job when James moved in with her. Although they never married, James and Dorothea lived together, referred to each other as husband and wife, and held themselves out as a married couple for 44 years. Albrektsen is Dorothea's son. He learned about ten years ago that James and Dorothea never married.
Annie is Dorothea's grand-daughter. Dorothea brought Annie to live with her and James when Annie was about five days old and the couple raised her as their own child. Dorothea adopted Annie, but James did not. Nonetheless, James financially supported Annie, she referred to him as "dad" and she lived in the family home since she was an infant without paying rent. Annie was 20 years old at the time of trial. James paid all household expenses for himself, Dorothea, and Annie, including food, utilities, and general maintenance.
In September 2015, James was hospitalized. James told Albrektsen that he wanted Albrektsen to take care of Dorothea and Annie. Before being named conservator, Albrektsen paid household expenses for James, Dorothea and Annie from his personal funds to maintain the home in anticipation of James's return. Albrektsen also paid for James's treatment, accommodations and prescriptions. Albrektsen advanced $41,042.19 of his personal funds for these purposes. When the County of San Diego (the County) sought a family member to serve as conservator, James's daughters, Donnette and Janet Evans, refused. After the County contacted Albrektsen about serving as James's conservator, and with Dorothea's encouragement, Albrektsen agreed to act as conservator.
In May 2016, the court appointed Albrektsen as James's temporary conservator. Albrektsen then began paying for household expenses from a conservatorship account at Chase. Albrektsen paid these expenses believing that James would be returning home and that James would have paid these expenses had he not been hospitalized. James died on July 13, 2016, before the scheduled hearing to appoint Albrektsen as the general conservator. Dorothea died on July 25, 2016. Annie continued to live in the family home until evicted by Donnette. After James's funeral, Donnette moved into the family home.
In October 2016, Albrektsen filed the First and Final Report and Account of Temporary Conservator seeking reimbursement of the $41,042.19 that he personally advanced. Donnette objected, alleging that Albrektsen should not be reimbursed, and should be surcharged for certain actions taken as temporary conservator.
The probate court held a one-day bench trial. At the close of trial, the court ordered that Albrektsen be reimbursed in the amount requested minus $7,313.39, and be awarded attorney fees according to proof. The court directed Albrektsen's counsel to draft a formal order for ex parte approval, including proof of attorney fees. Donnette objected to the proposed order, which the court characterized, in part, as an "untimely request for a statement of decision." After considering the objections, the court added some language and adopted the proposed order.
DISCUSSION
I. Statement of Decision
The trial court is required to issue a statement of decision explaining the factual and legal basis for its decision upon the timely request of any party appearing at the trial. (Code Civ. Proc., § 632; Cal. Rules of Court, rule 3.1590.) A trial commences at the beginning of opening statements or any argument; or if there are no opening statements, when the first witness is sworn or any evidence is admitted. (Code Civ. Proc., § 581, subd. (a)(6).) In trials completed in one calendar day, or within less than eight hours over several days, a request for statement of decision must be made before the matter is submitted for decision. (Code Civ. Proc., § 632; see rule 3.1590(n); Jones v. Adams Financial Services (1999) 71 Cal.App.4th 831, 840.) For court trials lasting longer than one day (or more than eight hours over more than one day), a request for a statement of decision must be made within 10 days after the court announces or serves the tentative decision, whichever is later. (Code Civ. Proc., § 632; rule 3.1590(d).)
Undesignated rule references are to the California Rules of Court.
Here, trial commenced on February 2, 2018. After hearing the evidence, the court issued an oral decision and ordered the prevailing party to prepare a written order. Court adjourned at 4:18 p.m. Because the court completed trial within one calendar day, the request for a statement of decision needed to be made before the matter was submitted for decision. Donnette, however, did not file a request for a statement of decision until March 7, 2018, over one month later. Accordingly, the trial court did not err when it concluded that Donnette's request for a statement of decision was untimely. (In re Marriage of Steinberg (1977) 66 Cal.App.3d 815, 822 [upholding court's refusal to make findings of fact and conclusions of law due to party's failure to timely request them].)
Where, as here, a party fails to request a statement of decision, the doctrine of implied findings applies. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 267.) Under this doctrine, we presume that the "trial court made all factual findings necessary to support the judgment for which substantial evidence exists in the record. In other words, the necessary findings of ultimate facts will be implied and the only issue on appeal is whether the implied findings are supported by substantial evidence." (Ibid.) "[T]he use of a settled statement in lieu of a reporter's transcript does not negate the doctrine of implied findings where the parties waived a statement of decision." (A.G. v. C.S. (2016) 246 Cal.App.4th 1269, 1282.)
Albrektsen held $608,577.71 and sought reimbursement of $41,042.19. The probate court awarded Albrektsen a total of $69,390.56 for reimbursement, which included all costs and fees. Donnette received the remaining balance of $539,187.15.
II. General Legal Principles
The purpose of a conservatorship proceeding is to protect the rights of the proposed conservatee. (Prob. Code, § 1800, subd. (a).) "The relationship of . . . conservator and conservatee is a fiduciary relationship that is governed by the law of trusts, except as provided in this division." (§ 2101.) The conservator is "subject to the regulation and control of the court in the performance of the duties of the office." (§ 2102.) "The . . . conservator . . . has the management and control of the estate and, in managing and controlling the estate, shall use ordinary care and diligence. What constitutes use of ordinary care and diligence is determined by all the circumstances of the particular estate." (§ 2401, subd. (a).) "In determining what constitutes ordinary care and diligence, a professional . . . conservator (such as a trust company or the trust department of a bank) will be held to a greater standard of care based on its presumed expertise than a lay . . . conservator." (Cal. Law Revision Com. com., 52A pt. 2 West's Ann. Prob. Code (2016 ed.) foll. § 2401, p. 201.)
Undesignated statutory references are to the Probate Code.
A conservator who breaches a fiduciary duty may be surcharged for loss or depreciation in value of the estate, any profit made by the conservator through the breach, or any profit that would have accrued to the estate if the loss was the result of the breach. (§ 2401.3, subd. (a).) "If the . . . conservator has acted reasonably and in good faith under the circumstances as known to the . . . conservator, the court, in its discretion, may excuse the . . . conservator in whole or in part from liability under [section 2401.3,] subdivision (a) if it would be equitable to do so. (§ 2401.3, subd. (b).)
"When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics omitted.) Generally, we "must affirm the decision of a trial court if, after resolving all evidentiary conflicts and indulging all reasonable inferences in support of the judgment, there is substantial evidence to support it." (County of Riverside v. City of Murrieta (1998) 65 Cal.App.4th 616, 620.) The testimony of one witness may be sufficient to support the findings. (See Conservatorship of Carol K. (2010) 188 Cal.App.4th 123, 134 [addressing whether record supported a finding of grave disability].)
III. Request for Reimbursement
Albrektsen sought reimbursement from the conservatorship account for $41,042.19 he expended for Dorothea and Annie's maintenance and support during James's hospitalization. These expenses included food and home supplies, Dorothea's medical expenses, telephone bills, and utilities. Among other things, Albrektsen argued that payment of household supplies and utilities were justified to maintain the home for James's return, and that James wanted Dorothea and Annie to be cared for and maintained. The probate court authorized reimbursement of $33,725.06, disallowing $7,317.13 of post-death expenses.
Donnette argues that the probate court erred in awarding reimbursement for Dorothea and Annie's maintenance and support because Albrektsen had no contractual duty to support them and Dorothea (who is not James's spouse or domestic partner) and Annie (an adult) are not family members or "persons entitled to support" as provided by law.
Under section 2420, "[a] conservator has a duty to make payment of the maintenance and support of the conservatee and those legally entitled to the conservatee's support." (Poag v. Winston (1987) 195 Cal.App.3d 1161, 1180.) Three classes of individuals are legally entitled to a reasonable family allowance out of the estate as is necessary for their maintenance according to their circumstances during administration of the estate, namely: (1) the surviving spouse; (2) minor children; and (3) dependent physically or mentally incapacitated adult children. (§ 6540, subd. (a).) Other individuals may be eligible for a reasonable family allowance under a court's discretion, including "[o]ther adult children of the decedent who were actually dependent in whole or in part upon the decedent for support." (§ 6540, subd. (b)(1).) Additionally, any interested person may petition the probate court to grant a family allowance (§ 6541, subd. (a)), or approve a conservator's payment of expenses (§ 2403, subd. (a)).
The term "surviving spouse" under section 6540 is interpreted to include a legal registered domestic partner. (Ross & Cohen, Cal. Prac. Guide: Probate (The Rutter Group 2019) ¶ 7:80.3.)
Donnette contends, and Albrektsen does not dispute, that Dorothea and Annie are not statutorily entitled to a family allowance under section 6540. The record does not reflect that any interested person filed a petition seeking an allowance. Instead, Albrektsen tendered several theories to the probate court arguing that he acted reasonably when he paid the household expenses for Dorothea and Annie during James's hospitalization.
On appeal, Albrektsen contends that the probate court properly awarded reimbursement for maintenance and support of Dorothea and Annie because he had a duty to: (1) maintain James's home, which incidentally benefited Dorothea and Annie as cohabitants; (2) consider James's wishes; and (3) perform outstanding express or implied contracts. He also asserts that equitable principles authorized him to pay Dorothea and Annie's expenses. We need not address each theory because Albrektsen acted properly by maintaining the home and considering James's wishes.
The conservator is entitled to "maintain in good condition and repair" the conservatee's home. (§ 2457, subd. (a).) A conservator also has a statutory duty to "accommodate the desires of the conservatee, except to the extent that doing so would violate the conservator's fiduciary duties to the conservatee or impose an unreasonable expense on the conservatorship estate." (§ 2113.) Before letters of conservatorship are issued authorizing a conservator to act on the conservatee's behalf, the conservator must file an acknowledgment and receipt of a statement of duties and liabilities. (§ 1834, subd. (a).) The acknowledgment and the statement must be in the form prescribed by the Judicial Council. (Ibid.; rules 7.101, 7.1051; see Judicial Council Form GC-348 (Duties of Conservator and Acknowledgment of Receipt of Handbook). Albrektsen signed this form which stated, in part: "Conservatees do not lose all rights or all voice in important decisions affecting their lives. All conservatees have the right to be treated with understanding and respect, the right to have their wishes considered, and the right to be well cared for by their conservators."
Albrektsen's expense statement shows that he paid certain expenses during James's hospitalization which we roughly categorize as pertaining to James, the home and miscellaneous. Albrektsen properly paid for James's expenses during James's hospitalization because he had a statutory duty to support and maintain the conservatee. (§ 2420, subd. (a).) Additionally, the probate court could have reasonably concluded that Albrektsen properly exercised his statutory duty under section 2457 to maintain the family home "in good condition and repair" by paying for household supplies and utilities including water, electricity, cable television, internet, telephone and trash removal. Albrektsen testified that he paid these expenses before being appointed James's conservator from his own personal funds to maintain the home in anticipation of James's return. After being appointed conservator, Albrektsen continued paying these expenses out of the Chase conservatorship account believing that James would be returning home and that James would have paid these expenses had he not been hospitalized.
Finally, the court could have reasonably concluded that the balance of the miscellaneous expenditures (Dorothea's medical expenses, medication, food, pet food, toilet paper) qualified for reimbursement as they "accommodate[d] the desires of the conservatee" and did not impose an unreasonable expense on the conservatorship estate. (§ 2113.) Albrektsen testified that James routinely paid the household expenses for 44 years while living with Dorothea. While hospitalized, James called Albrektsen in September 2015 and asked him to take care of Dorothea. During a hospital visit, James reiterated his wish that Albrektsen take care of Dorothea and Annie. Albrektsen stated that James was very concerned that otherwise, Dorothea and Annie might not be taken care of during his hospitalization. Accordingly, Albrektsen continued to pay the expenses as James had done. Albrektsen believed that James would have paid all of the expenses that benefited Dorothea and Annie had he not been hospitalized.
Annie testified that James supported her financially, paid for her to attend private school, paid for her cell phone, clothes, and all household expenses (e.g. cable, electricity, food, dog food, and home supplies such as toilet paper and paper towels) and he never asked her to pay rent to live there.
Despite conflicting testimony from Donnette and James's sister, Ynetter, the court ruled in favor of Albrektsen. Such credibility determinations are the province of the probate court. (Conservatorship of Amanda B. (2007) 149 Cal.App.4th 342, 347 ["An appellate court . . . will sustain the trial court's factual findings if there is substantial evidence to support those findings, even if there exists evidence to the contrary."].) The probate court did not err in allowing reimbursement of these expenses.
IV. No Breach of Fiduciary Duty
A conservator has a fiduciary relationship with the conservatee. (§ 2101.) A conservator also has a duty to use ordinary care and diligence in managing the estate. (§ 2401.) "The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach." (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086.) Donnette argues that Albrektsen breached his fiduciary duty by failing to (1) account for income on James's rental real property; (2) account for $24,000 taken from James's safe; and (3) preserve James's personal belongings. We address these contentions in turn.
A. Rents
James received income on a rental property located on Greely Avenue. A portion of the income from the Greely property came from the housing authority, and the tenants paid monthly rent of about $400. At trial, Donnette objected to Albrektsen's failure to account for the rent that he collected. On appeal, Donnette complains that Albrektsen breached his fiduciary duty by allowing (1) his brother, Neal, to collect the rents; and (2) Dorothea and Annie to collect rent and use these funds for their personal necessities. Citing the California Rules of Court, Donnette notes that conservators must avoid actual conflicts of interest, be independent from all service providers, and not engage family members to provide services to the conservatee for a profit or a fee. (Rule 7.1059.)
James had another rental property, however, that property had been condemned and was not producing income.
Albrektsen testified that Neal helped to collect the cash portion of the rent from the Greely tenants. These funds were then deposited into the conservatorship account. There is no evidence in the record that Neal retained the cash portion of the rent, or that Albrektsen paid Neal a fee for those services. Accordingly, Donnette has failed to show Albrektsen breached a fiduciary duty by having Neal collect rent.
Donnette next asserts that Albrektsen breached his fiduciary duty by allowing Dorothea and Annie to collect rent and use these funds for their personal necessities. However, before his hospitalization, James allowed Dorothea and Annie to collect the rent and keep these funds for themselves. Based on this testimony, the probate court could have reasonably concluded that Albrektsen did not breach a fiduciary duty in handling the rents in the same manner.
Donnette claims that Albrektsen allowed Dorothea and Annie to collect rent in the sum of $24,000 which Albrektsen failed to account. Donnette, however, did not support this assertion with a citation to the record. Moreover, Albrektsen's temporary conservatorship lasted less than four months. At $400 per month in rental income, the funds at issue would total, at most, $1,600.
B. $24,000 in Cash
In her trial brief, Donnette asserted that Albrektsen breached his fiduciary duty by failing to account for $24,000 in cash taken by Dorothea and Annie. The probate court rejected this assertion, finding Albrektsen did not breach his fiduciary duty because he was not aware of the existence of these funds. The evidence supports this finding. Annie testified that sometime between October 2, 2015 and January 2017, she and Dorothea discovered a safe containing $24,000. She claimed that Dorothea gave part of the money to the housekeeper, part to her, and kept the rest. Albrektsen testified that he did not know about any safe on the property and did not know about the alleged $24,000 found in a safe.
The reference to 2017 appears to be a typographical error because Dorothea died in July 2016 and could not have discovered the money with Annie in January 2017.
The court appointed Albrektsen as conservator on May 2, 2016 and the conservatorship ended upon James's death about two months later. Although it is possible that Dorothea and Annie took the money during the conservatorship period, it is equally possible they took these funds either before or after the conservatorship. Donnette offered no evidence on when the money was taken. Nor did Donnette offer evidence disputing Albrektsen's assertion that he did not know about a safe or any money contained in one. Accordingly, the evidence supports the court's finding that Albrektsen did not breach a fiduciary regarding these funds because he did not know of their existence.
C. James's Personal Belongings
Donnette's trial brief contended that Albrektsen breached his fiduciary duty to care and maintain James's real and personal property. While not entirely clear, it appears that Donnette argues on appeal that Albrektsen breached his fiduciary duty regarding James's personal belongings by failing to consider factors in Rule 7.1059 regarding managing a conservatee's estate.
A conservator may dispose of or abandon valueless property. (§ 2465.) This power may be exercised without court authorization. (Cal. Law Revision Com. com., 52A pt. 2 West's Ann. Prob. Code (2016 ed.) foll. § 2465, p. 255.) The proper exercise of this power is judged by the ordinary care and diligence standard of section 2401 and rule 7.1059. "Common examples of valueless property are stock certificates in companies that have gone out of business, a partnership interest in a partnership that has terminated and had no assets at the time of termination, an old automobile that can be disposed of only by giving it to a junkyard to be hauled at their expense, or old clothing, furniture, and appliances that are best given to charity." (Cal. Conservatorship Practice (Cont.Ed.Bar 2019) § 14.65 p. 14-76.) "When disposing of the conservatee's tangible personal property, [the conservator must] inform the conservatee's family members in advance and give them an opportunity to acquire the property, with approval or confirmation of the court." (Rule 7.1059(b)(17).)
Rule 7.1059(b)(18) also lists factors to consider in disposing of a conservatee's property, including: "(A) The likely benefit or improvement of the conservatee's life that disposing of the property would bring; [¶] (B) The likelihood that the conservatee would need or benefit from the property in the future; [¶] (C) Subject to the factors specified in Probate Code section 2113, the previously expressed or current desires of the conservatee concerning the property; [¶] (D) The provisions of the conservatee's estate plan concerning the property; [¶] (E) The tax consequences of the disposition transaction; [¶] (F) The impact of the disposition transaction on the conservatee's entitlement to public benefits; [¶] (G) The condition of the entire estate; [¶] (H) Alternatives to disposition of the property; [¶] (I) The likelihood that the property will deteriorate or be subject to waste if retained in the estate; and [¶] (J) The benefit versus the cost or liability of maintaining the property in the estate." --------
Albrektsen testified that James was a hoarder and had boxes containing old newspapers, unopened mail from the 1970s, and other worthless items throughout the house. Annie testified that after James died, she and Dorothea cleaned out the house which was full of boxes of worthless items that James had hoarded over the years. They donated items that were in good condition, but threw most things away. Some boxes containing old clothes and paperwork, like old newspapers and unopened mail, were placed outside.
Donnette cited no evidence to support her contention that Albrektsen disposed or abandoned any personal property of value. Rather, Ynetter agreed that the outside boxes contained: old bank statements, including those from accounts that no longer existed; deeds to properties no longer owned by James or anyone in the family; and very old newspapers and old, unopened mail. Ynetter admitted that the old documents may have been damaged by water and the elements long before they were placed in the box she found outside.
The court found Annie and Ynetter's testimony to be credible. On this record, the probate court did not err when it found Albrektsen did not breach a fiduciary duty regarding his handling of James's personal belongings.
V. Use of Chase Bank Account
James had multiple bank accounts. Upon receipt of the letters of conservatorship, Albrektsen attempted to identify James's assets. He was readily able to identify the Chase Bank account. A Chase representative informed Albrektsen that the existing Chase account could not be used as a conservator account. Albrektsen's lawyer told him that Chase was a good bank to work with, so he opened the conservatorship account there and transferred the funds from James's Chase account into a conservatorship account. Albrektsen claimed that he was not aware of the characterization of any of the accounts as pay-on-death accounts, and that the bank had not informed him that the Chase account was characterized as a pay-on-death when he transferred the funds.
Donnette's opening brief identifies the issue on appeal as follows: "The Lower Court erred in Failing to Make Findings as to the Necessity of the Temporary Conservator to Seek Court Approval Prior to Liquidating the Conservatee's Pay-On-Death Accounts without Prior Court Order." (Italics added.) On this issue the settled statement provides: "The court stated that Donnette's argument that she and Janet Evans were financially harmed as a result of Albrektsen's decision to transfer the funds from the Chase pay-on-death account into the conservatorship account is an issue that would be properly handled in [I]n the Estate of James McFarlin matter that is pending before this court, and not in this trial."
Donnette failed to argue or cite any authority showing how the probate court erred by declining to address the issue in this action. Accordingly, we find that Donnette has abandoned her appeal of this issue. (Behr v. Redmond (2011) 193 Cal.App.4th 517, 538 [appellant's "failure to brief the . . . issue constitutes a waiver or abandonment of the issue on appeal"].)
VI. Attorney Fees on Appeal
The probate court awarded Albrektsen attorney fees incurred before and during trial. Albrektsen contends he is entitled to attorney fees as the prevailing party on appeal. We agree.
Section 2640 provides a conservator may petition the court for an order fixing the compensation to the attorney for the conservator. (Id., subd. (a)(3); Serrano v. Unruh (1982) 32 Cal.3d 621, 637 [attorney "fees, if recoverable at all—pursuant either to statute or parties' agreement—are available for services at trial and on appeal"].) Appellate courts have consistently permitted a successful party to recover attorney fees incurred on appeal when a statute expressly permits such an award in the trial court. (Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927.) Because the amount of fees "is a factual issue more properly considered in the first instance by the trial court on remand" (Lindelli v. Town of San Anselmo (2006) 139 Cal.App.4th 1499, 1517), we remand the matter to allow Albrektsen to petition for an award of attorney fees on appeal. We express no opinion as to the amount of attorney fees to be awarded by the probate court.
DISPOSITION
The order is affirmed. Respondent is awarded costs and attorney fees on appeal. (Rule 8.278(a)(4).) The matter is remanded to the probate court to determine reasonable costs and attorney fees incurred on this appeal.
HALLER, J. WE CONCUR: HUFFMAN, Acting P. J. DATO, J.