Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. LP011222 Michael R. Hoff, Judge.
Hochman, Salkin, Rettig, Toscher & Perez and George De Roy for Plaintiff and Appellant.
Fuller & Fuller and Bruce Fuller for Defendant and Respondent.
RUBIN, J.
INTRODUCTION
Half siblings Kathy Liles Booth (appellant) and James Louis Liles (respondent) are residual beneficiaries and appellant is trustee of a testamentary trust. This appeal arises out of respondent’s challenge to the manner in which appellant has administered that trust. Following a nonjury trial, the trial court found appellant not liable for actions involving the trust before she became trustee, found insufficient evidence that appellant misappropriated trust property, denied respondent’s request that appellant be surcharged for certain expenditures and denied his request to remove appellant as trustee. The trial court, however, declined to approve the trust accountings and found appellant had not complied with her duties as trustee. Pursuant to a Probate Code provision, which provides for an award of attorney fees upon a determination that a trustee’s opposition to a beneficiary’s accounting contest “was without reasonable cause and in bad faith . . .,” the trial court ordered appellant to pay respondent’s attorney fees and costs (Prob. Code, § 17211, subd. (b) (§ 17211(b)); it also ordered appellant to pay her own attorney fees and costs out of other than trust property. Appellant contends the trial court erred in awarding respondent attorney fees and ordering appellant to pay her own attorney fees out of nontrust property. We reverse.
All undesignated statutory references are to the Probate Code.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant and respondent had the same father, James F. Liles, but different mothers. Appellant’s mother and respondent’s stepmother was Mary A. Liles. James Liles and appellant held several bank accounts, including CD’s, as joint tenants. Some time in late 1994 or early 1995, appellant and her two sons moved in with her parents for several years. This was done at her father’s request: “[M]y aunt had just passed away, and actually he thought that it would help my mother if she had my life to kind of mess around in with the kids and help taking care of the kids and everything.”
To avoid confusion arising from the fact that many of the witnesses have the last name “Liles,” we refer to them by their first names, except for James F. Liles, who has the same first name as both respondent and as appellant’s son, James Booth. Accordingly, we refer to James F. Liles as “James Liles” to differentiate him from James Booth, to whom we refer as “James.”
When James Liles died on August 10, 2001, he left his entire estate to his widow, Mary, and made appellant executor. As they matured, appellant transferred most of the funds from the joint accounts to Mary, which appellant understood to have been her father’s wishes.
On a number of occasions before his death, James Liles told his sister, Margaret Hayes, that he did not want respondent to inherit any money because “of monies -- many, many monies that have been owed him over the past that he never paid back, and that he didn’t want him to have any part of his monies or any estate. Nothing.” Regarding appellant, James Liles told Margaret that “because of everything that [appellant] had done. Had taken care of him, taken care of her mother, his wife Mary, all the surgeries and all the doctors, everything she went through, that he felt that she deserved to have anything that was left and that he and Mary were in agreement about [appellant] getting the house. The one in Northridge.”
James Liles also repeatedly told his granddaughter, respondent’s daughter Melody, when she visited him in the hospital before his death, “that my father [respondent] was to get nothing from the estate, and he was very adamant about that, and very emotional.” Melody understood why her grandfather felt this way: “My father raised me and I know his history of debt and not paying people back, and how he had borrowed money from my grandparents.” Mary’s niece, Constance Cooper, also knew respondent’s reputation as someone who frequently borrowed money but never paid it back.
After her husband died, Mary set about to create a testamentary trust. She told her sister-in-law Margaret that she knew that her late husband did not want to leave any money to respondent, but Mary intended to leave respondent “something in hopes that he would not give [appellant] a bad time at the end when the time came.”
Mary told respondent that she was preparing a trust but never told him what was in the trust. Mary told Marc Melinkovich, the attorney who prepared the trust, that she did not want respondent to know what was in the trust. Appellant’s son, James, heard respondent ask Mary “what was in the trust and who was getting what, and my grandmother said, ‘You’ll find out when I’m gone.’ ”
Appellant accompanied Mary to the initial consultation with Melinkovich and participated in telephone conversations in which the disposition of the trust property was generally discussed. Melinkovich, however, was satisfied that Mary was making the estate plan she wanted and was not being influenced by anyone. Mary provided Melinkovich with information about the assets she wanted in the trust.
On September 27, 2001, Mary executed the Mary A. Liles Living Trust (the Trust), naming herself as trustee. Schedule A of the Trust identified the Trust assets, without any assigned values, at the Trust’s inception. In addition to appellant and respondent, the Trust named as beneficiaries Mary’s three grandchildren (Patrick Gibson and James Booth (appellant’s sons), and Melody Liles (respondent’s daughter)) and Mary’s niece Constance, among others. The Trust provided for the following special gifts to be distributed after Mary’s death: (1) Mary’s Northridge home or its equivalent value plus $150,000 to appellant; (2) payment of college tuition and book expenses of grandchildren Patrick and James; (3) $25,000 apiece to grandchildren Patrick, James, and Melody; and (4) some smaller monetary gifts to: Constance ($10,000); Bruce Gorman ($5,000); and David Gibson ($5,000).
More specifically, the Trust provided: “If, prior to complete distribution of the trust estate by its terms and conditions as stated elsewhere, either PATRICK GIBSON or JAMES BOOTH is enrolled in a California State University, State College, or Community College, the Trustee shall pay the tuition and book expense of either, or both individuals.”
The remainder of the Trust property, after distribution of the Special Gifts, was to be divided equally between appellant and respondent. The Trust provided that appellant was to receive her share outright but respondent’s share was to “be paid to him at 10% (ten percent) principal, plus all accrued interest, on an annual basis over ten years.”
Appellant was named as the first successor trustee and Constance as the second successor trustee. The Trust required the trustee to “render accounts at least annually . . . to the persons and in the manner required by law.” It also provided: “No individual trustee who is serving without compensation under this trust instrument shall be liable to any interested party for acts or omissions of that trustee, except those resulting from that trustee’s willful misconduct or gross negligence.” The Trust also included a No-Contest Clause.
In the summer of 2004, a few months before Mary’s death, appellant and her son Patrick moved in with Mary. Appellant had signatory authority on several of Mary’s bank accounts, including an account at Bank of America, which was the “household account;” i.e., the account used to pay Mary’s household expenses both before and after appellant moved in with her. Appellant, who was employed, made regular deposits into this account.
Mary was in a car accident on October 7, 2004. She died on November 10, 2004. As a result, appellant became trustee.
Over the next 18 months, appellant worked with accountant Nancy Ward to render various Trust accountings. By the time of the September 2005 trial, appellant had rendered accountings for five different periods, including court-ordered accountings for periods during which Mary was still alive and acting as sole trustee as well as periods before Mary created the Trust. The accountings were for the following periods:
· August 1, 2001, through November 10, 2004: including all known accounts for James F. Liles or Mary Liles, joint or not joint with appellant from shortly before James Liles’s death to the date of Mary’s death;
· September 27, 2001, through November 9, 2004: Trust accounting from inception to the date of Mary’s death;
· November 10, 2004, through April 17, 2005: Trust accounting for the first six months during which appellant was trustee;
· November 10, 2004, through December 31, 2005: Trust accounting for the first year during which appellant was trustee; and
· April 18, 2005, through April 17, 2006: Trust accounting for months 6 through 18 during which appellant was trustee.
We detail only the accountings covering the period during which appellant was trustee because the other accountings are not relevant to the issues on appeal.
This is because the attorney fee award was made pursuant to section 17211(b), which requires an unreasonable and bad faith opposition to an accounting contest. Inasmuch as the trial court found appellant not responsible or liable for transactions that occurred before Mary died (i.e., before appellant became trustee), appellant’s opposition to respondent’s contest of the accountings for periods during which she was not trustee was successful; as such, it could not have been unreasonable or in bad faith.
A. The April 2005 Accounting
Six months after appellant became trustee, on May 18, 2005, her attorney sent respondent an accounting that covered the period of November 10, 2004, through April 17, 2005 (the April 2005 accounting). In conformance with section 1061 et seq., this accounting, and all subsequent accountings, followed the same general format:
· A Summary of Charges And Credits
Schedule A
Property on hand at beginning of account period
Schedule B
Additional Property Received
Schedule C
Receipts
Schedule D
Gain on sale or other dispositions
Schedule E
Disbursements
Schedule F
Losses on sale or other dispositions
Schedule G
Distributions
Schedule H
Property on hand at end of account period.
According to Schedule A of the April 2005 accounting, the Trust had assets of $1,069,481.38 at the beginning of the accounting period (i.e., on the date Mary died). Schedule C reflected receipt of dividends and interest in the amount of $6,307.70 during the accounting period; Schedule E reflected disbursements of $15,149.57. Schedule G reflected that, since Mary’s death, the smaller monetary Special Gifts had been distributed ($10,000 to Constance, $5,000 to Bruce Gorman, and $5,000 to David Gibson). According to Schedule H, after distributions, disbursements, and receipts of interest and dividends, the Trust had $1,040,639.51 at the close of the accounting period.
This amount was comprised of the following assets:
The disbursements included: $10,629.88 for funeral expenses, including a $3,976.50 check to appellant; $4,000 to attorneys; $195 to the accountant; and $241 to the United States Treasury.
In addition to Schedules A through H, the April 2005 accounting also included a “Residual Estimate.” According to the Residual Estimate, of the $1,040,639.51 on hand at the close of the accounting period, $750,000 was earmarked for the following Special Gifts, which had not yet been distributed:
· Appellant ($150,000, plus Mary’s house valued at $525,000)
· Patrick ($25,000)
· James ($25,000)
· Melody ($25,000)
The Residual Estimate did not list any amount for the Special Gift of college tuition and book expenses for Patrick and James. According to the Residual Estimate, after distribution of the listed Special Gifts, there would be $290,639.51 remaining in the Trust. The Residual Estimate calculated that appellant and respondent were each entitled to 50 percent of this amount, or $145,319.76. Since the Trust provided that respondent’s portion was to be distributed in 10 annual installments, respondent was given a check for $14,531.98 (10 percent of $145,319.76).
On September 6, 2005, respondent filed a petition to compel accounting and remove appellant as trustee. He argued for her removal because she had failed to provide respondent with a formal accounting. Respondent also sought to surcharge appellant for certain expenditures pursuant to section 859. Finally, respondent sought attorney fees against appellant.
Section 859 provides: “If a court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property belonging to the estate of a decedent, conservatee, minor, or trust, the person shall be liable for twice the value of the property recovered by an action under this part. The remedy provided in this section shall be in addition to any other remedies available in law to a trustee, guardian or conservator, or personal representative or other successor in interest of a decedent.” The “twice the value” provision is often called a surcharge.
In her answer, appellant generally denied the allegations of the petition. She specifically averred that she caused to be sent to respondent the April 2005 accounting on May 18, 2005. The answer also included a declaration from attorney Melinkovich, who averred that, after trying but failing to make telephone contact with respondent’s attorney, he sent a copy of the April 2005 accounting and respondent’s distribution check directly to respondent by Federal Express on May 18, 2005. A copy of the April 2005 accounting was also attached as Exhibit A to the answer.
B. The December 2005 Accounting
On March 6, 2006, six months after the probate petition, appellant filed with the court a document entitled the First Accounting of Trustee. The First Accounting included accountings for two time periods: (1) November 10, 2004, through December 31, 2005 (the December 2005 accounting); and (2) September 27, 2001, through November 9, 2004 (the November 2004 accounting). Whereas the earlier April 2005 accounting attributed a value of $525,000 to Mary’s house, the December 2005 accounting increased that amount to $540,000. The December 2005 accounting reflected disbursements of an additional $5,463.51. It also reflected that the following additional distributions had been made since the April 2005 accounting: appellant ($209,192.57); respondent ($14,531.98); James ($25,000); Melody ($25,000).
According to the First Accounting, it was filed pursuant to a January 20, 2006, court order, but the record on appeal does not include a copy of that order. As noted, this was actually the second accounting, but the first that was court ordered.
The disbursements made since the December 2005 accounting included: $250 appraisal fee; $738.51 to appellant to reimburse Patrick for his education expenses; an additional $2,475 to the accountants; and an additional $2,000 to the attorneys.
Respondent objected to the First Accounting. Many of those objections focused on claimed missing transactions from the period before appellant became trustee. On May 26, 2006, the trial court ordered appellant to file an accounting of all assets from September 27, 2001 (the date Mary created the Trust), through December 31, 2005.
C. The April 2006 Accounting
Appellant filed the Additional Accountings on June 1, 2006. The Additional Accountings included accountings for the following time periods: (1) April 18, 2005, through April 17, 2006 (the April 2006 accounting); and (2) August 1, 2001, through November 10, 2004, including all accounts held in the names of James F. Liles and/or Mary A. Liles, including accounts held jointly with appellant (the August 2001 accounting).
According to the April 2006 accounting, additional disbursements in the amount of $10,827.15 had been made since the December 2005 accounting. According to Schedule G, no additional distributions had been made. However, the April 2006 accounting included a revised Residual Estimate. In addition to the Special Gifts listed on the prior Residual Estimate, the revised Residual Estimate identified $100,000 as “monies set aside for college as specified in the trust.” As a result, the total value of the remaining property left for appellant and respondent to share equally after distribution of the Special Gifts was reduced to $93,536.77. After respondent’s share was reduced by the amount of his first distribution ($14,531.98), it was estimated that his undistributed share was $79,004.79. Respondent’s second distribution was calculated to be 10 percent of that amount, or $7,900.48.
The disbursements made since December 2005 included an additional $1,425 to the accountants; and an additional $9,402.15 to the attorneys.
In addition to the $100,000 education fund, this reduced amount included additions for Trust income and deductions for Trust expenses.
Respondent objected to the Additional Accountings. As previously, most of respondent’s objections focused on the accountings for periods before appellant became trustee. Respondent also objected to appellant using Trust funds to pay legal fees incurred by appellant defending against the petition. In addition, although respondent had already been given the April 2005 accounting, he complained that the Additional Accountings did not include an accounting covering that time period. So, on June 30, 2006, appellant filed a Supplement to the Additional Accountings, which consisted of a copy the April 2005 accounting that had been provided to respondent on May 18, 2005, and then attached it as an exhibit to the answer to the petition.
D. The Trial
Trial commenced on September 15, 2006. According to the parties’ Joint Trial Statement, the only disputed issues were whether (1) appellant mismanaged the Trust, (2) engaged in self-dealing while trustee, (3) should be removed as trustee and (4) should be surcharged for monies spent before she became trustee. Although the petition sought attorney fees, the Joint Trial Statement did not identify entitlement to attorney fees as a disputed issue. There were a number of witnesses but the main ones were respondent, appellant and accountant Nancy Ward, whom the trial court found qualified as an expert witness. Respondent, who had the burden of proof by a preponderance of the evidence, did not present any expert evidence that challenged the manner in which the accountings were prepared. Rather, the gist of respondent’s case was that he simply did not believe the information contained in the accountings.
Like his written objections to the accountings, much of respondent’s trial testimony concerned transactions occurring before appellant became trustee. Respondent testified that he was dissatisfied with the accountings because there was “still obviously missing money.” When asked to explain, respondent focused on alleged shortcomings in the accounting covering the period before appellant became trustee. Respondent’s complaints about duplications in the accountings also focused on that time period.
Appellant testified that accountant Nancy Ward assisted appellant in the preparation of the accountings. Appellant gave Ward bank statements, cancelled checks and investment account statements for the periods during which appellant had been trustee. In order to compile information for the accountings that covered the period before appellant became trustee, she gave Ward bank records she received from respondent and also “went through drawers, I went through bags, I went through receipts. I did everything I possibly could to -- to -- to figure out what my mother had done.”
Regarding the three promissory notes that respondent complained were not covered in the accountings, appellant testified that Mary told her that when interest rates dropped, people refinanced their properties and paid off those notes.
Regarding the $100,000 reserved for college tuition for her two sons, appellant testified that she arrived at that sum after discussions with her attorney. But during the course of trial, “[a]fter discussing it with my attorney and discussing it with my children, who the money is for, I decided that it would be pertinent to reduce it to 50 percent.”
Accountant Ward testified that she prepared the accountings based on information given to her by appellant. Much of Ward’s testimony focused on the accountings for periods before appellant became trustee.
E. The December 2006 and January 2007 Orders
On December 4, 2006, the trial court filed its “Decision on Submitted Matter; Notice of Entry of Court’s Decision” (the December 2006 order). In it, the trial court observed that “[t]he trial was very complex and involved numerous things and the testimony was not always in harmony. [¶] The trial revealed a very dysfunctional and angry family.” The trial court concluded that:
· Appellant was not responsible or liable for actions involving the Trust while Mary was still alive;
· Respondent “did not meet his burden as to his allegations of, lack of a better term, [appellant] stealing from the Trust;”
· The Trust “invests the authority to determine the amount of the educational fund with” appellant;
· It was not “appropriate to remove [appellant] as [Trustee] a[t] this time.”
Despite finding in appellant’s favor on these issues, the trial court found that respondent’s “exhaustive examination” of appellant “did clearly show that [appellant] did not comply with her duties as Trustee in several areas. The testimony of [appellant] was at times incredible and outrageous. The testimony of [appellant] clearly proved that [appellant] was using the Trust as her own funds and [that] she co-mingled her personal funds with Trust funds. [Appellant] was not forthcoming or timely with preparing, filing or serving proper accountings and [respondent] met his burden as to this issue. Based upon the testimony of [appellant], [respondent] established that [appellant] was cavalier, reckless and indifferent to [respondent’s] rights to his portion of the Trust.” But the trial court gave no specific examples of how appellant was “cavalier, reckless and indifferent” to respondent’s rights.
Regarding attorney fees, the trial court concluded: “As stated above the Court finds [appellant] acted in bad faith as to [respondent] in this action and pursuant to Probate Code section 17211(b), the Court orders that [appellant] pay [respondent’s] Attorney fees and costs. [Appellant] must also pay her own costs and attorney fees from funds other than Trust funds.”
Appellant and respondent both filed objections to the December 4, 2006 order. Appellant argued, among other things, that respondent was not entitled to attorney fees inasmuch as the reasonableness of appellant’s opposition to the petition was demonstrated by the fact that respondent was denied much of the relief he sought. Appellant also argued that she had no “idea what other items [in addition to the Education Fund] the Court feels require clarification in an accounting, and again would be left to her own devices to figure it out. Respectfully, she needs more specific guidance from the court.”
On January 16, 2007, the trial court filed a clarification of its prior order (the January 2007 order). The trial court explained that, although it found appellant not liable for actions involving the trust prior to when she became trustee, “[t]his does not mean that [appellant] does not have to make a good faith effort to attempt to make a clear and rational report and accounting of activities of the Trust so that the condition of the Trust is known on the date of Mary Liles passing. [¶] . . . The Court respectfully orders [appellant] to file an amended accounting and to address the items specifically listed on Page 4 Lines 7 through 22 of [respondent’s objections to the proposed order]. [Appellant] is respectfully ordered to comply with Probate Code sections 1063 and 1064. The ‘educational fund’ allotment needs better accounting. The accounting should be current to December 1, 2006, or later if possible.” The trial court overruled appellant’s objections to the attorney fee award and ordered her to pay respondent’s attorney fees within 30 days of the order becoming final. The trial court concluded: “The remainder of [appellant’s] objections are respectfully overruled. The Court believes that the original proposed statement of decision as to these objections is sufficiently clear.”
The following items were listed on that page and those lines: (1) Richard Liles Promissory Note ($115,919); (2) McElroy Promissory Note ($46,249); (3) Bower promissory note ($58,111); (4) Saunders promissory note ($15,679); (5) Von Doran promissory note ($22,412); Garfield loan ($3,000); (6) Cooper loan ($7,000); (7) Fremont account; (8) Washington Mutual account; (9) Bank of America Investments account; (10) First Entertainment Credit Union account; (11) World Savings “unexplained transactions.”
In addition to filing objections to the January 2007 order, appellant filed a timely notice of appeal on January 31, 2007. On February 6, 2007, appellant filed another accounting. According to the Civil Case Summary, respondent did not object to this last accounting.
DISCUSSION
A. Respondent is Not Entitled to Attorney Fees
Appellant contends that the trial court erred in awarding attorney fees and costs to respondent because there was insufficient evidence that appellant’s opposition to the accounting contest was unreasonable and in bad faith, a requisite to an attorney fee award pursuant to section 17211(b). We agree.
Generally, the beneficiaries of a trust must bear their own attorney fees in contesting an accounting of the trust. This is true even if the contest is successful. Section 17211(b) provides an exception to the general rule. It gives the trial court discretion to award attorney fees to the contesting beneficiary upon a determination that the trustee opposed the contest “without reasonable cause and in bad faith.” (§ 17211(b).)
Section 17211(b) provides: “If a beneficiary contests the trustee’s account and the court determines that the trustee’s opposition to the contest was without reasonable cause and in bad faith, the court may award the contestant the costs of the contestant and other expenses and costs of litigation, including attorney’s fees, incurred to contest the account. The amount awarded shall be a charge against the compensation or other interest of the trustee in the trust. The trustee shall be personally liable and on the bond, if any, for any amount that remains unsatisfied.” (Italics added.)
“In reviewing a trial court’s exercise of discretion, we will reverse only when it is affirmatively shown a prejudicial abuse of discretion has occurred. [Citation.] The test is not whether we would have made a different decision had the matter been submitted to us in the first instance. Rather, the discretion is that of the trial court, and we will only interfere with its ruling if we find that under all the evidence, viewed most favorably in support of the trial court’s action, no judge reasonably could have reached the challenged result. [Citation.]” (Estate of Billings (1991) 228 Cal.App.3d 426, 430 [no abuse of discretion in denying executrix reimbursement of accounting expenses].)
Estate of Bonaccorsi (1999) 69 Cal.App.4th 462 (Bonaccorsi) is instructive. In that case, the trial court surcharged the executor of a probated estate $134,200 and awarded the contestant $50,000 in attorney fees pursuant to section 11003, subdivision (b) (§ 11003(b)). The appellate court affirmed the trial court’s finding that the executor had breached his fiduciary duty to the beneficiaries and affirmed a $36,000 surcharge for the lost rental value of the decedent’s residence, but it reversed a $50,000 surcharge attributed to depreciation of that residence as a result of the executor’s delay in selling it. (Id. at p. 472.) The appellate court also reversed the $50,000 attorney fee award, observing: “Since we reverse a substantial part of the surcharge . . . we cannot fault [the executor] for opposing the contest. The beneficiaries have not asked that any fee award be apportioned between meritorious and unmeritorious claims. The $50,000 fee award for attorney fees for bad faith cannot be sustained under these circumstances.” (Id. at p. 473.)
Section 11003(b), applicable to probated estates, contains identical language to section 17211(b), which is applicable to testamentary trusts. Section 11003(b) provides: “If the court determines that the opposition to the contest was without reasonable cause and in bad faith, the court may award the contestant the costs of the contestant and other expenses and costs of litigation, including attorney’s fees, incurred to contest the account. The amount awarded is a charge against the compensation or other interest of the personal representative in the estate and the personal representative is liable personally and on the bond, if any, for any amount that remains unsatisfied.”
Of the four disputed issues listed in the parties’ Joint Trial Statement, the trial court expressly found in appellant’s favor on two: that she should not be surcharged and that she should not be removed as trustee. Although it expressly found insufficient evidence of misappropriation, the trial court made no express findings on the allegations of self-dealing and mismanagement. The trial court’s finding that appellant comingled her funds with Trust funds and that she was cavalier, reckless and indifferent to respondent’s rights is not tantamount to self-dealing. Based on the express finding of no misappropriation and the absence of an express finding of self-dealing, we conclude that the trial court found no self-dealing. At most, the finding that appellant was cavalier, reckless and indifferent to respondent’s rights could have been intended as a finding of mismanagement, although the trial court did not expressly so find and we observe that appellant was a lay person, not a professional fiduciary. (See, e.g., Estate of Beach (1975) 15 Cal.3d 623, 635 [professional fiduciary held to a higher standard of care than lay person]; Estate of Anderson (1983) 149 Cal.App.3d 336, 352 [same].) At best, the trial court found in favor of respondent on one of four disputed issues at trial. But respondent did not ask that the attorney fees be apportioned between his meritorious and unmeritorious claims. As the court in Bonaccorsi, supra, 69 Cal.App.4th 462, held, under these circumstances, appellant cannot be faulted for successfully opposing the petition and the award of attorney fees cannot be sustained.
Respondent’s efforts to distinguish this case from Bonaccorsi, supra, 69 Cal.App.4th 462 are not persuasive. He argues that in Bonaccorsi the executor successfully challenged the surcharge order upon which the attorney fees were based, but here appellant does not challenge the order that she prepare a new accounting upon which the attorney fee award in this case was based. But respondent’s success in blocking approval of the accountings is not determinative. As the court in Bonaccorsi noted, “[e]ven where successful, the beneficiaries must bear their own attorney fees in contesting an accounting of an estate.” (Id. at p. 473.) To warrant an award of attorney fees pursuant to section 17211(b), there must be more than an insufficient accounting; there must be an unreasonable and bad faith opposition to the accounting contest. Where, as here, the trustee successfully opposes the accounting contest in large measure, it is an abuse of discretion to award attorney fees.
B. The Trial Court Erred In Ordering Appellant to Pay Her Own Attorney Fees From Other Than Trust Property
Appellant also contends the trial court abused its discretion in ordering her to pay her own attorney fees and costs from other than Trust property. We agree.
In Estate of Beach, supra, 15 Cal.3d at page 644, the trial court awarded the executor’s attorneys $14,500 for their defense of the executor against a contest. Our Supreme Court rejected the beneficiaries’ contention that the executor should have borne the cost of defense himself without reimbursement from the estate. It reasoned that the “expenditures were for the purpose of protecting the executor from unjust surcharge for conduct in the administration of the estate which the present proceeding has determined to have been perfectly proper. Such expenditures for an executor’s or administrator’s successful defense against exceptions to his account are chargeable against the estate.” (Ibid.; see also Estate of Cassity (1980) 106 Cal.App.3d 569, 574 [where most but not all charges of malfeasance were disproven, trustee’s successful defense is chargeable against the trust estate].)
Here, as in Estate of Beach and Estate of Cassity, the expenditures were for the purpose of protecting appellant from unjust surcharge and efforts to remove her as trustee. Appellant successfully defended against those efforts. Accordingly, her expenses in doing so were chargeable against the estate.
DISPOSITION
The judgment is reversed with directions to enter a new judgment denying respondent attorney fees and allowing appellant to pay her attorney fees from the Trust estate. Appellant shall recover her costs on appeal.
WE CONCUR:, COOPER, P. J., EGERTON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Mary’s Northridge home
$525,000.00
Banc [sic] of America, Cash
$ 27,013.29
Banc [sic] of America,Securities
$ 25,267.50
Beal Bank CD
$ 50,000.00
Fremont CD, No. 1
$ 66,479.76
Fremont CD, No. 2
$ 66,479.75
World Savings, No. 1
$ 1,100.14
World Savings, No. 2
$ 60,024.12
World Savings, No. 3
$121,172.58
Richard Liles Promissory Note
$104,468.59
Helen Van Doran Promissory Note
$ 19,395.65
Burial plots (2)
$ 3,080.00
$1,069,481.38