Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County No. PN29048, Richard G. Cline, Judge. Affirmed.
McCONNELL, P. J.
Dawn Bricker Pursell and Dale Bricker were cotrustees of their mother's revocable living trust until litigation between them resulted in a compromise settlement (Code Civ. Proc., § 998) under which Pursell returned assets to the trust and a neutral party was named trustee in their place. Pursell appeals an order denying her request for reimbursement of accounting expenses and granting in part Bricker's request for accounting expenses and trustee fees. As to the denial of her request, she principally contends the probate court erred by considering the terms of the compromise settlement since it was not an admission of liability. As to Bricker's awards, she claims abuse of discretion based on several factors, including his alleged agreement to not claim trustee fees and the excessiveness of both awards. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In November 1999 Dorothy Bricker executed a revocable living trust, which replaced a trust she executed in 1992. Dorothy is the beneficiary during her lifetime and her children, Pursell and Bricker, are the remainder beneficiaries. Dorothy also named Pursell as her agent, and Bricker as her alternate agent, under a durable power of attorney and an advance health care directive.
To avoid confusion we refer to the mother as Dorothy.
In April 2003 Dorothy resigned as trustee after a doctor declared her mentally incompetent, and Pursell and Bricker became cotrustees under the terms of the trust. No conservator was appointed for Dorothy and she was able to remain in her Rancho Santa Fe condominium with assistance. Pursell lives near her mother and Bricker lives in New York.
When Bricker became cotrustee he was unaware of Dorothy's finances or the nature or extent of trust assets. He asked Pursell for an accounting, as she had handled her mother's finances for several years under the power of attorney, but she did not comply or cooperate in providing Bricker with financial records. He gathered information on his own, and in early 2006 he petitioned the probate court for an order removing Pursell as cotrustee and requiring her to produce an accounting from 1998, and for the return of trust assets and damages.
The gravamen of the petition was that Pursell took unfair advantage of Dorothy and misappropriated trust assets when her mental condition deteriorated. The petition alleged that in June 1998 Pursell took Dorothy to a doctor who found she had "likely early Alzheimer's dementia," and Pursell told the doctor "she had been aware of her mother's memory decline for 'four to six years.' " In October 1999 Pursell took Dorothy to another doctor, who found "striking deficits of memory and executive function." Pursell told the doctor that Dorothy had been having difficulty handling her finances and tax records and Pursell had helped her retain a new accountant. Pursell, however, revealed neither doctor visit to Bricker. He noticed a change in his mother's behavior when he visited her in December 1999, but he noticed no problem in previous phone calls.
Further, the petition alleged that in June 1998 Dorothy loaned Pursell $100,000 for the purchase of a residence and there was no evidence of repayment; in July 1999 energy stocks Dorothy had held since 1984 were sold for $11,607, and there was no record of their deposit into any of Dorothy's accounts, but the following August she and Pursell opened two joint accounts for the benefit of Pursell's minor children and a total of $11,808 was deposited into the accounts; in August and September 1999 Dorothy and Pursell opened two more joint accounts and $40,000 was transferred to them from Dorothy's accounts; and in December 2000 Pursell deposited $50,000 into her account that came from the closure of one of Dorothy's accounts, and shortly thereafter Pursell closed escrow on a commercial property.
The petition also acknowledged that in 1999 Dorothy loaned Bricker $58,000 to repay student loans, and after he made a few payments she forgave the balance.
Pursell responded with her own petition for the removal of Bricker as cotrustee, or alternatively for a finding that her vote would be the tie-breaker in cases of disagreement, and for an accounting. The petition alleged that Bricker sought to remove her as cotrustee to preserve trust assets for his own benefit rather than spend them on Dorothy. Further, the petition sought $30,000 in damages on the ground Dorothy's condominium should have been refinanced to take advantage of lower interest rates, but Bricker stalled the refinancing for two years.
Pursell later lowered the alleged amount lost to $20,000.
In July 2006 the court appointed a guardian ad litem, Kevin Kravets, for Dorothy. The following December he requested that the cotrustees produce an accounting from the date they became cotrustees, and that Pursell produce an accounting for the earlier period in which she managed Dorothy's funds under the durable power of attorney. Pursell submitted an accounting for November 30, 1999, through December 31, 2006, and Bricker submitted a separate accounting from the time he became cotrustee.
For trial, Bricker's expert witness prepared a summary that claimed damages to the trust of $223,319.90 and interest of $168,528.72, doubled to $783,697.24 for bad faith under Probate Code section 859. Pursell acknowledged she received disbursements totaling approximately $200,000 from Dorothy's trust beginning in 1998. She claimed the funds were gifts, and the issue for trial was whether Dorothy had the mental capacity to form donative intent.
Further statutory references are to the Probate Code unless otherwise specified.
Bricker, however, accepted Pursell's offer to compromise the matter (Code Civ. Proc., § 998) by her return of $115,000 to the trust and transfer of title to a 1975 Mercedes to the trust. Further, the offer to compromise required the removal of Bricker and Pursell as cotrustees and agents under the durable power of attorney and their replacement by a court-appointed trustee. Pursell, however, remained Dorothy's health care agent. On May 14, 2007, the court entered a judgment on the offer to compromise. The judgment provided that Pursell and Bricker "shall each bear their own attorneys fees and costs incurred in connection with this matter."
These changes were deferred until June 4, 2007, when the court made the appointment.
On May 8, 2007, Kravets had filed his second report, which stated, "After an extensive review of the accountings, with particular attention to the accounting of . . . P[ursell], my opinion is that the accountings are appropriate and present no substantive issues requiring further litigation when taken in conjunction with the CCP § 998 Offer in Compromise which ended the immediate litigation." (Italics added.) Further, the report recommended that both accountings were reasonable expenses of the trust and on request the trust should reimburse Pursell and Bricker. The court approved the report, but reserved judgment on whether and to what extent cotrustee expenses should be reimbursed.
Pursell then petitioned the probate court for an award of $45,697.75, the amount her certified public accountant (CPA) charged for preparing her accounting. Bricker filed his own petition for an award of $105,081 in expenses for the time his wife, who has a financial background, spent in preparing his accounting, and for $128,990.20 in trustee fees. The successor trustee objected to both petitions, arguing Dorothy should not have to pay for disputes between her children.
In an October 4, 2007 ruling after the hearing, the court denied Pursell any reimbursement on the grounds her CPA was also her designated expert witness, and "it is not reasonable or in the best interests of the trust to award . . . Pursell any reimbursement." The court explained that although the compromise settlement did not establish liability, the court could consider the pleadings, the course of the litigation, the settlement and reasonable inferences arising therefrom. The court noted that the $115,000 Pursell agreed to pay the trust "was not a gift" and "Bricker appears to be the prevailing party."
After tentatively deciding against Bricker, the court found it was in the trust's best interest to award him "some reimbursement." The court awarded him reduced amounts of $85,993.47 in trustee's fees and $70,054 in accounting fees. The court directed the successor trustee to pay Bricker those sums if in her discretion there were adequate funds available to provide for Dorothy's needs. Any unpaid portion of the award was to be paid on Dorothy's death.
The awards are two-thirds of the amounts Bricker requested.
DISCUSSION
I
Pursell's Accounting Expenses
A
"A trustee is entitled to the repayment out of trust property for the following: [¶] (a) Expenditures that were properly incurredin the administration of the trust. [¶] (b) To the extent that they benefited the trust, expenditures that were not properly incurred in the administration of the trust." (§ 15684.)
The rule of section 15684, however, "is applicable only when the trustee has conducted the affairs of the trust honestly, has dealt fairly with his [or her] beneficiary, and has not attempted to make a secret profit for himself [or herself] out of the trust property or otherwise to deceive and defraud those who entrusted him [or her] with their business." (Kinert v. Wright (1947) 81 Cal.App.2d 919, 927 [discussing former Civ. Code, § 2273, which preceded Prob. Code, § 15684]; Sketchley v. Lipkin (1950) 99 Cal.App.2d 849, 857; Cal. Law Revision Com. com., 54 West's Ann. Prob. Code (1991 ed.) foll. § 15684, p. 634 ["Under this section, a trustee is not entitled to attorney's fees and expenses of a proceeding where it is determined that the trustee breached the trust, unless the court otherwise orders as provided in subdivision (b)"].)
A trustee is a fiduciary who "has a duty to administer the trust solely in the interests of the beneficiaries." (§ 16002, subd. (a); Teixeira v. Domingos (1959) 171 Cal.App.2d 196, 201.) "A violation by the trustee of any duty that the trustee owes the beneficiary is a breach of trust." (§ 16400; see also Rest.2d Trusts, § 201.) "Negligence, which is the failure to meet the standard of care, is . . . a breach of trust by virtue of . . . section 16400." (Estate of Gump (1991) 1 Cal.App.4th 582, 595.) "If the trustee commits a breach of trust, the court may in its discretion deny him [or her] all compensation or allow him [or her] a reduced compensation." (Rest.2d Trusts, § 243; Estate of Gump, supra, at p. 597.) "Where a trustee by reason of his own greed or indifference has breached his duty to the trust and has thereby brought on litigation against it his expense must be borne out of his own property." (Estate of Vokal (1953) 121 Cal.App.2d 252, 259-260.)
A trustee "has a duty to take reasonable steps under the circumstances to take and keep control of and to preserve the trust property." (§ 16006.) Further, " '[t]rustees are . . . under an obligation to render to beneficiaries a full account of all their dealings with the trust property, and where there has been a negligent failure to keep true accounts all presumptions are against them upon a settlement.' " (Blackmon v. Hale (1970) 1 Cal.3d 548, 560; § 16060.)
B
Allowance of trustee expenses rests in the probate court's sound discretion, and its ruling will not be disturbed on appeal absent a showing of manifest abuse. (Estate of Gump, supra, 1 Cal.App.4th at p. 597.) In ruling on a trustee's request for reimbursement, the court may "tak[e] into consideration the interests of the beneficiaries under all of the circumstances." (Johns v. Peterson (1942) 52 Cal.App.2d 720, 723-724.)
Pursell contends the probate court erred as a matter of law by drawing negative inferences from the compromise settlement that she breached her trustee duties, since the compromise was not an admission of liability. Further, she asserts that "without such inferences included in the overall 'circumstances' of the case, the . . . court abused its discretion in denying reimbursement."
"[I]t is well established that a compromise settlement entered into under Code of Civil Procedure section 998 does not constitute an adjudication of liability." (Doran v. North State Grocery, Inc. (2006) 137 Cal.App.4th 484, 491; Code Civ. Proc., § 998, subd. (f).) "[C]ompromise settlements 'ordinarily conclude all matters put in issue by the pleadings — that is, questions that otherwise would have been resolved at trial.' " (Doran v. North State Grocery Store, Inc., supra, at p. 492.)
Although we are mindful of the public policy of encouraging settlements, we disagree with Pursell's position. The issue before the probate court was whether the cotrustees were entitled to reimbursement from the trust for expenses associated with accountings that Dorothy's guardian ad litem, Kravets, asked them to prepare during the course of litigation between themselves. In determining whether Pursell breached her trust duties, as Bricker alleged, thereby overriding the statutory entitlement to expenses (§ 15684), surely the court was not required to ignore the outcome of the litigation — return of significant assets to the trust — and resulting judgment. Pursell cites no authority indicating otherwise.
Moreover, there is authority for the court's consideration of the terms of a compromise settlement in limited circumstances. Here, the court relied on Wong v. Thrifty Corp. (2002) 97 Cal.App.4th 261 (Wong), in which the court considered the terms of a Code of Civil Procedure section 998 compromise in determining the prevailing party for an award of attorney fees under Civil Code section 1717. Although the facts of Wong are not analogous, it indicates that a court is not foreclosed as a matter of law from ever considering the terms of a compromise agreement, even though it does not establish liability for the alleged wrongdoing, but rather may do so when the outcome of the litigation is germane to an outstanding fee or cost issue.
With or without the Wong case, however, we conclude the court's consideration of the compromise settlement was proper here. In determining whether to assess costs against a trust, the "probate court enjoys broad equitable powers." (Hollaway v. Edwards (1998) 68 Cal.App.4th 94, 99.) We decline to circumscribe the probate court's equitable powers by imposing the bright line rule Pursell urges.
"For example, although Code of Civil Procedure section 1032, subdivision (b) entitles a prevailing party in ordinary civil litigation to costs as a matter of right, the probate court retains discretion to decide not only whether costs should be paid, but also, if they are awarded, who will pay and who [will] recover them." (Hollaway v. Edwards, supra, 68 Cal.App.4th at p. 99.)
Pursell strongly relies on Kravets's second report. Notably, however, Kravets intended that in ruling on requests for reimbursement of accounting expenses the court would consider the compromise settlement. His second report stated he found the parties' "accountings are appropriate and present no substantive issues requiring further litigation when taken in conjunction with the CCP § 998 Offer in Compromise which ended the immediate litigation." (Italics added.) In other words, he did not find the accountings appropriate and dispositive in a vacuum, but in conjunction with the judgment that required Pursell to return $115,000 and the title to a car to the trust and to step down as trustee. Kravets recommended reimbursement to both parties, but Pursell acknowledges the court was free to disagree.
Moreover, even without considering the compromise settlement we would uphold the court's ruling. Bricker's declaration stated that when he became cotrustee in 2003, "I knew nothing about the assets of the Trust or how my mother's finances had been handled prior to that time," and "I immediately began inquiring of [Pursell] as to bank account information, asset information, and the like, [and she] was very reluctant to share information with me, and what she did share required close scrutiny to make sure that nothing was omitted." Bricker was required to obtain documents directly from financial institutions to analyze the trust accounts. Another declaration stated, "I had repeatedly attempted to obtain . . . an accounting from my sister since before I took over as Cotrustee, to no avail." (Italics added.) Pursell did not dispute the declarations.
Bricker's declaration also stated Pursell did not advise him until 2005 that he was named as the sole successor trustee of his deceased father Duaine Bricker's (Duaine) trust on the event of his mother's inability to serve. The declaration stated, "I was then required to take the responsibility of sorting through my mother's assets to determine what was properly a part of the Duaine Trust and what was properly part of the Dorothy Bricker Trust. Again, my sister fought me at every step of the way."
"If a trust has more than one trustee, each trustee has a duty to do the following:
[¶] (a) To participate in the administration of the trust. [¶] (b) To take reasonable steps to prevent a cotrustee from committing a breach of trust or to compel a cotrustee to redress a breach of trust." (§ 16013.) "A trustee must exercise reasonable supervision over the conduct of a cotrustee in relation to the trust." (Blackmon v. Hale, supra, 1 Cal.3d at p. 559.) "While a trustee is not strictly liable for the wrongful acts of a cotrustee, a trustee is responsible for the wrongful acts of a cotrustee to which he consented, or which, by his negligence, he enabled the cotrustee to commit." (Middlesex Ins. Co. v. Mann (1981) 124 Cal.App.3d 558, 573.)
Although Bricker and Pursell both had duties to account, he rightfully represented Dorothy's interests by requesting that Pursell produce an initial accounting when they became cotrustees since she had already handled her mother's finances for several years under a power of attorney and had ready access to the trust records. The "trustee's records as to the administration of the trust are deemed a part of the trust estate, and the right of the beneficiaries to an inspection of them stems from their common interest in the property along with the trustee." (Strauss v. Superior Court (1950) 36 Cal.2d 395, 402; § 17200, subd. (b)(7) [cotrustee may petition court to compel another cotrustee "to report information about the trust or account to the beneficiary" after he or she failed to honor a written request].) Pursell's refusal to provide an accounting until 2006 in response to Kravets's request, or to cooperate with Bricker so he could obtain records and produce an accounting earlier, were breaches of her trustee duties that gave the court discretion to deny her reimbursement for accounting expenses.
We find no legal error or abuse of discretion.
II
Bricker's Accounting Expenses
Pursell acknowledges that Bricker is entitled to reimbursement for some portion of his accounting expenses. She contends, however, that the amount is excessive since his wife, Zoila Deleg-Bricker, prepared the accounting, and thus he did not actually incur any out-of-pocket expenses.
Pursell cites three opinions that state a trustee must actually incur expenses to be entitled to an award. However, each of the cases cited former Civil Code section 2273, which predated Probate Code section 15684. Former Civil Code section 2273 provided in part: " 'A trustee is entitled to the repayment, out of the trust property, of all expenses actually and properly incurred by him in the performance of his trust.' " (Estate of Spencer (1936) 18 Cal.App.2d 220, 222; Cagnolatti v. Guinn (1983) 140 Cal.App.3d 42, 50; Petherbridge v. Prudential Sav. & Loan Assn. (1978) 79 Cal.App.3d 509, 517.) The word "actually" was not included in section 15684, and Pursell cites no authority showing Bricker could not obtain accounting fees unless he hired an unrelated accountant and incurred out-of-pocket fees.
Further, Pursell cites no authority for her claim that Deleg-Bricker was unqualified to perform an accounting because she is not a CPA. Deleg-Bricker submitted a declaration that stated she has an MBA in finance from Lally School of Management, Rensselaer Polytechnic Institute, and she is a finance manager with more than nine years of experience, including eight years in corporate finance, project finance, mergers and acquisitions. The declaration stated she had "gained a thorough working knowledge of accounting and bookkeeping principles, as well as record review to verify the accuracy of accounting statements." We see no abuse of discretion in the court's approval of her qualifications.
Additionally, we are unpersuaded by Pursell's assertion that the accounting expenses are improper to the extent they predate the December 2006 request by the guardian ad litem, Kravets, for an accounting. Bricker's efforts to obtain an accounting began shortly after he assumed his cotrustee duties in 2003, and section 15684 does not limit accounting expenses to those incurred after a specific request for an accounting such as Kravets's request. Indeed, Pursell argued at the hearing on this matter that for purposes of reimbursement the timing of her accounting was immaterial, as an accounting was needed whether it occurred in 2003, 2004, 2005 or 2006. Further, the parties agreed that Kravets's request for an accounting was not a catalyst for settlement, as Bricker's investigation and the undertaking of an accounting had already revealed the transfers from the trust to Pursell and the only remaining dispute was whether Dorothy made gifts to Pursell or lacked the mental capacity to do so.
Deleg-Bricker charged $90 per hour for her time, and her declaration stated her normal rate for consulting in financial analysis projects was $125 per hour. She spent 1,167.57 hours on the matter, and she submitted a detailed billing for her time, which shows she performed such tasks as analyzing trust bank accounts, analyzing the refinancing of Dorothy's condominium, formulating budget scenarios, and preparing spreadsheets. Pursell complains that Deleg-Bricker spent significant time doing such things as computerizing data, which could have been done by someone else at a reduced rate. The court, however, reduced her bill by one-third, presumably based on issues of excessiveness.
Under all the circumstances, we find no abuse of discretion.
III
Bricker's Trustee Fees
A
"If the trust instrument does not specify the trustee's compensation, the trustee is entitled to reasonable compensation under the circumstances." (§ 15681.) Dorothy's trust allows the trustee reasonable compensation.
The allowance of fees "rests in the sound discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of a manifest showing of abuse." (Estate of McLaughlin (1954) 43 Cal.2d 462, 465.) If substantial evidence supports the court's ruling, it has properly exercised its discretion. (Id. at p. 466.)
Pursell contends that in awarding Bricker trustee fees the court ignored "compelling and undisputed evidence" that when they accepted their appointments as cotrustees they agreed to forego fees. Pursell submits she detrimentally relied on his agreement, and under principles of equitable estoppel he is not entitled to fees.
Pursell relies on her declaration, which states that on September 22, 2003, she and her attorney, Richard Showen, met with Bricker and his attorney, Thomas Lawler, and Lawler "announced that [Bricker] had agreed that we would serve as co-trustees of the Trust without compensation in the form of trustee's fees, and that we could only be entitled to reimbursement for out-of-pocket expenses on behalf of the Trust." Showen's declaration confirmed Pursell's declaration.
Other evidence, however, conflicted. Bricker's declaration stated, "I never agreed to forego Trustee's fees in this matter." The declaration stated that in October and November 2002, Pursell suggested that neither of them accept fees, but "I responded that because I did not know anything about the nature of the assets of the Trust nor its value, I could not make a decision on that topic and expressly reserved my right to seek compensation." Bricker submitted a November 2002 letter in which he advised Pursell, "Given the fact that, unlike you, I have no idea of the nature of the assets nor the existing value of the Trust, I cannot make a decision as to whether to accept reasonable compensation as a co-trustee for administration of the Trust until I have seen a Trust inventory. Whether or not I ultimately opt to accept such compensation, I nevertheless reserve the right to do so consistent with . . . the Trust. Whether you choose to accept compensation or not is entirely your own decision." Pursell raised the fee issue again in a January 2003 letter, explaining that her attorney told her a trustee is entitled to a reasonable fee and asking Bricker what he thought was "fair." Bricker did not respond.
The Bricker declaration also stated: "By September, 2003, my position on this topic still had not changed. I still did not have sufficient information about the extent and value of Trust assets, and had been provided with an incomplete and inaccurate inventory by my sister in January 2003. . . . Thus, . . . Lawler informed . . . Showen that at that moment in time I did not intend to ask for trustee's fees, consistent with my earlier communications with my sister. I never agreed, however, that I would not at some future time seek Trustee's fees. Moreover, that position would be wholly inconsistent with my express reservation of my right to seek Trustee's fees at a later date."
Further, Lawler submitted a declaration that stated: "It is my recollection that . . . Bricker never agreed unequivocally to forego Trustee's fees in this matter. I have read the Declaration of . . . Showen . . . [that] references a meeting which took place on September 22, 2003, . . . at my office. I do not recall making the statement to . . . Showen that '[Bricker] agreed with [Pursell] that neither [of them] would take trustee's fees from the Trust for their services as co-trustees.' Instead, it is my recollection that I indicated that . . . Bricker did not intend at that time to request Trustee's fees. I do not remember making any agreement on . . . Bricker's behalf that he would never seek such fees, nor do I remember . . . Bricker in my presence ever making such an agreement."
Pursell dismisses Bricker's declaration as "fudg[ing] the point," and Showen's declaration as "also waffl[ing]." This court, however, may not reweigh the evidence or reassess the credibility of witnesses. (Estate of Young (2008) 160 Cal.App.4th 62, 76.) Rather, we " 'consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings]. [Citations.]' " (Ibid.; Estate of McLaughlin, supra, 43 Cal.2d at p. 466.)
The court presumably found in favor of Bricker on the point, and we cannot say it abused its discretion. Accordingly, we are not required to reach the equitable estoppel issue.
B
Additionally, Pursell contends the court abused its discretion by awarding Bricker fees because his "actions were, in many respects, detrimental to the trust administration." She also asserts his fee request "was simply exorbitant and unreasonable on its face," and his claim "was an obvious 'back door' effort to recover for time and costs incurred in the underlying litigation, where both parties, as part of the compromise settlement, agreed to bear their own attorneys' fees and costs." (Italics omitted.)
California Rules of Court, rule 7.776 authorizes the court to consider the following nonexclusive factors in determining trustee compensation: "(1) The gross income of the trust estate; [¶] (2) The success or failure of the trustee's administration; [¶] (3) Any unusual skill, expertise, or experience brought to the trustee's work; [¶] (4) The fidelity or disloyalty shown by the trustee; [¶] (5) The amount of risk and responsibility assumed by the trustee; [¶] (6) The time spent in performance of the trustee's duties; [¶] (7) The custom in the community where the court is located regarding compensation authorized by settlors, compensation allowed by the court, or charges of corporate trustees for trusts of similar size and complexity; and [¶] (8) Whether the work performed was routine, or required more than ordinary skill or judgment."
Further rule references are also to the California Rules of Court.
In arguing detriment, Pursell cites to her declaration, which complains that Bricker paid nearly $33,000 in attorney fees from the trust before this litigation commenced. Bricker's declaration states the amount was actually $30,850.62, and he did not obtain an attorney until after Pursell retained one. It also stated she paid $33,724.36 in attorney fees from the trust. Further, Bricker produced a supporting exhibit showing payment of that amount through numerous trust checks, and copies of most of the checks. Pursell's position is unpersuasive given her own expenditures.
Pursell also cites the statement in her declaration that Bricker cost the trust $20,000 by being initially uncooperative in the refinancing of Dorothy's condominium. The parties' compromise settlement, however, put that factual issue to rest, and it did not require him to pay any damages to the trust.
Further, Pursell cites no authority to support her assertion that the compromise settlement under Code of Civil Procedure section 998 precludes Bricker from obtaining trustee fees incurred in this litigation. "[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat appellant's . . . issue as waived." (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.)
Even without waiver, Pursell's argument is unpersuasive. The judgment on the compromise settlement provides that the parties "shall each bear their own attorney's fees and costs incurred in connection with this matter," and trustee fees fit neither category. At the hearing on this matter, Pursell's counsel acknowledged "that when parties agree to waive their attorney's fees and costs incurred in a matter, that means that they're waiving their right to recover attorney's fees and costs that they . . . otherwise may be entitled to recover if they're deemed the prevailing party." Bricker's counsel agreed that "the term 'costs' has a statutory definition . . . in the context of litigation." Code of Civil Procedure section 1033.5, which enumerates the types of costs the prevailing party may recover under Code of Civil Procedure section 1032, subdivision (b) does not, of course, include trustee fees.
As to the propriety and amount of the award, we cannot say the court abused its discretion. Bricker's declaration shows that when he became cotrustee, he knew nothing of his mother's financial affairs or the trust assets. The trust was in disarray because there had never been an accounting, assets had not been properly segregated between the separate trusts of Dorothy and Duaine, and Pursell had opened several joint bank accounts with Dorothy in which funds from her trust were deposited. Bricker sought Pursell's cooperation in obtaining an accounting, but she was reluctant to share information with him, and she failed to disclose that she had received substantial funds from Dorothy's trust. Bricker was required to gather information directly from banks on the various accounts, which he scanned into his computer and analyzed. At the close of his term as cotrustee, he had caused an accounting to be performed and was "in a position to assist the new Trustee in going forward with Trust administration." Further, Bricker's efforts resulted in Pursell's return of $115,000 and an automobile to the trust. Additionally, his declaration shows he was instrumental in increasing the trust's gross income. It states that between April 1, 2003, and December 31, 2006, the trust's total income was $1,044,469.33, an average of $23,210.43 monthly. In 2005 Bricker took over management of an eight-unit apartment complex that Dorothy's and Duaine's trusts co-own in equal shares. Between January 2003 and February 2005, total rents grew only $100 per month, but by December 2006 total rents increased by $1,195 per month.
Bricker's declaration also states he has a juris doctor degree from the University of Oregon, and although he does not practice law he had clerked in Oregon and Washington. Further, he took his cotrustee responsibilities very seriously because of his concern for Dorothy's well-bring. The declaration explained, "It was clear to me that my mother's affairs had been mishandled, and that my sister had abused her position of trust and confidence with my mother to benefit herself and her family. As a fiduciary, I felt I had an obligation to redress those wrongs, and to place the Trust on a correct footing moving forward." Bricker believed he provided extraordinary services because he was required to recreate Dorothy's finances with little assistance from Pursell, he was required to assume the management of the apartment complex, and he was required to commence and supervise the litigation.
Bricker's declaration states he spent a total of 1,571.84 hours on trust matters over approximately four years, which amounts to a monthly average of approximately 33 hours. The time included 568.78 hours in obtaining records and computerizing them, and meeting with various persons; 502.35 hours related to the litigation, including meeting and corresponding with counsel, reviewing and editing pleadings and participating in depositions; and 500.71 hours in preparing and reviewing correspondence, and in telephone calls. The declaration elaborated that Bricker met and corresponded with "non-litigation counsel, tax counsel, accountants, real estate professionals, and investment professionals in connection with various issues regarding Trust administration," and met and corresponded with litigation counsel and traveled to California "on multiple occasions."
Bricker sought $80 per hour for his time and represented that professional trustees in the San Diego area typically charge fees of between .4 percent and 1.5 percent of the trust assets under management. He submitted an extremely detailed record of his time entries, which included varied tasks such as, "Made 1203 photocopies of check images and bank statements for 4 trust accounts;" "Downloaded each individual check of the [trust] account from the on-line website, and printed them"; "Prepared a list in a spreadsheet showing 12 months of rents from tenants of The Eight [the apartment complex], in order to figure out the differences between records of bank deposits made by [Pursell] and rent receipts sent to me by [the apartment] manager"; and "Met with real estate agents in Hermosa Beach, who did market analysis re apartment buildings."
This court is simply in no position to second guess the probate court's assessment of Bricker's entitlement to fees under the factors set forth in rule 7.776. The court did cut his request by one-third, and thus it believed either that he spent an excessive amount of time or that his requested fee was excessive in light of some of the tasks he performed, such as photocopying and scanning. Under either scenario, however, Pursell has not met her burden of showing a manifest abuse of discretion.
DISPOSITION
The order is affirmed. Bricker is entitled to costs on appeal.
WE CONCUR: McDONALD, J., O'ROURKE, J.