Opinion
NOT TO BE PUBLISHED
APPEAL from order of the Superior Court of San Diego County, No. 37-2007-00100340-PR- CP-NC, David G. Brown, Judge.
HUFFMAN, Acting P. J.
This appeal in a conservatorship case is brought to challenge the probate court's order awarding $10,222 attorney fees in favor of the court-appointed attorney for the proposed conservatee, Bibiano Becerra (Conservatee). The court-appointed attorney, Parisa P. Farokhi (the CAA) began to make appearances for the proposed conservatee in February 2008, after the original petition for conservatorship was filed by appellant Vida F. Negrete, R.N. (Appellant). (Prob. Code, §§ 1471, 1800 et seq.)
All further statutory references are to the Probate Code unless noted.
In November of 2007, Appellant filed that conservatorship petition in her capacity as the original trustee of a private trust that was created in January 2007 as part of the court approval of the compromise of Conservatee's personal injury action against certain parties involved in his 2003 industrial accident, in which he obtained damages for debilitating brain injuries.
Eventually, a competing petition was brought by a private fiduciary, Gerry Donnelly (Donnelly), with the support of Conservatee's wife Liliana Becerra (Wife), in the same case file. Donnelly alleged that Conservatee was now consenting to have the conservatorship established, as proposed by Wife, because he was unable to deal with the conflicts among different family members, some of whom were supporting the positions taken by Appellant. Ultimately, the probate court appointed Donnelly as conservator, and this court recently issued an opinion upholding that order. (Conservatorship of Bibiana Becerra (D052972), the "conservatorship case," filed April 9, 2009; we also concurrently resolved an appeal in the related case involving the removal of Appellant as trustee, Donnelly v. Negrete (D053018); these are referred to here as "our previous opinions.")
Pursuant to California Rules of Court, rule 8.147, the record in D052972 (as augmented) is being used here. The only issues in the current appeal concern the validity of the attorney fees award to the CAA for the period between February 4 and April 1, 2008.
The subject attorney fees order was issued by the probate court at a contested hearing on Appellant's motion to appoint an expert under the Evidence Code, section 730, to assist the court in a trial for determining the true wishes of Conservatee. Both Donnelly and the CAA had opposed that motion. The CAA also requested a fees award and provided a statement of services for the period between February 4 and April 1, 2008, amounting to approximately 45 hours of attorney time and 18 hours of legal assistant time. The probate court granted that request, totaling $10,222, which the court made payable by the trust.
Appellant now challenges the fees order, contending that it represents an abuse of discretion. Her view is that the trust funds should not be used to pay the CAA, because the trial court should not have believed that the CAA was acting appropriately to advocate Conservatee's wishes. In the previous appeals, Appellant was contending that the appropriate procedural protections were not provided, such that Conservatee did not receive due process in the establishment of the conservatorship, and also that he is being represented by parties, including the CAA, who do not advocate his real wishes. Appellant argued she should have been allowed to pursue separate trust proceedings in Los Angeles. Those contentions were unsuccessful in this court.
On the current record, we find no abuse of discretion in the probate court's order for a fee award to the CAA, payable from the trust funds. (§§ 1471, 1472.) The probate court was well aware of all the relevant circumstances to date when it exercised its discretion, and the ruling was well within the bounds of reason. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In our previous opinions, we outlined in detail the factual background of the conservatorship and trust cases. Here, it is necessary only to explain the background events leading up to the probate court's April 4, 2008 award of attorney fees (formalized April 9, 2008) to the CAA, payable by the trust. Shortly after the private trust was established in January 2007, containing approximately $1.6 million settlement proceeds, conflicts arose between Wife and Appellant (the named trustee) about the use of the trust money and the care of Conservatee.
Appellant initiated this action in November of 2007 by filing her petition to establish a conservatorship on the basis that the proposed conservatee could not handle his own affairs and was being unduly influenced by Wife. (§ 1800 et seq.) Appellant represented that Conservatee did not want Wife to be in charge of his affairs, and he wished to divorce her. He has not been able to live at home since 2005, and he has impulse control disorders and eating disorders due to his injuries. In the petition, Appellant represented that there was a Los Angeles court proceeding concerning the trust.
On February 22, 2008, Donnelly filed a cross-petition that was supported by Wife, seeking to establish a conservatorship because Conservatee was unable to manage his financial resources or resist fraud or undue influence, and there was animosity between Wife, his birth family, and the trustee (Appellant). A capacity declaration was filed by Dr. Daniel Gardner, the treating psychiatrist, stating that Conservatee had dementia due to traumatic brain injury but was unaware of his deficits. He evaluated Conservatee as unable to attend court hearings, as of February 2008. Previously, Appellant had obtained a capacity declaration from an examining psychologist, Fernando Melendez, Ph.D., dated December 12, 2007, stating that although Conservatee was mentally impaired, he was able to function and express his wishes.
At a hearing on February 1, 2008, the probate court appointed the CAA for Conservatee, from a list of available counsel who met the court's criteria. (§ 1471, subd. (b) [court appoints counsel to represent the proposed conservatee's interests where it would be "helpful to the resolution of the matter or... necessary to protect [his] interests"].) The CAA filed a report dated March 11, 2008, for a proposed hearing on Appellant's petition, set for March 14. However, Appellant then withdrew the petition she had filed, on the grounds that her psychologist had found Conservatee was competent. Donnelly's petition was still pending, and the treating psychiatrist for Conservatee had filed a declaration that he was not competent. Appellant then filed a motion to have an expert witness appointed to determine Conservatee's true preferences and wishes. (Evid. Code, § 730.) She nominated an experienced probate attorney as the expert. The CAA filed lengthy responses to the competing petitions and objected to the request to appoint the expert witness, as unnecessary.
Meanwhile, at related hearings, the court and counsel were discussing the status of the trust holding the settlement proceeds and Appellant's status as trustee. As noted in our previous opinions, Donnelly had filed a separate petition to have Appellant removed as the trustee, on the grounds that she had an insufficient connection to Conservatee, lacked standing due to the dismissal of her own petition, had not filed trustee's reports, and was wasting assets.
The probate court investigator filed a confidential report, dated March 17, stating that he interviewed Conservatee in Spanish, and found that he did not contest the establishment of the conservatorship and was able to attend the hearing. The investigator reported on the ongoing conflicts between Wife and the birth family of Conservatee, and recommended that the conservatorship be established.
The hearing on April 4 was held for the purpose of resolving the expert witness motion brought by Appellant. At that time, Appellant argued that the CAA should be removed, due to her own lack of confidence in the CAA's level of experience. The court declined to make any such order, since no evidence to support it had been presented. The court denied Appellant's request to have an expert witness appointed under Evidence Code section 730, for lack of justification of the expense, in light of the fact that no trial on competency was necessary, since Conservatee was not objecting to the establishment of the conservatorship. The court discussed the CAA's request for attorney fees, and noted that the probate examiner had evaluated it. The court awarded the CAA the amount requested, $10,222, based on the statement of services provided between February 4 and April 1, and stated it would be payable by the trust, which it found had adequate assets to do so.
It later came out that at the April 4 hearing, the attorney for Appellant had contacted Conservatee without obtaining permission from his attorney, the CAA, although the CAA had requested that all contacts with him be made through her.
Appellant filed her notice of appeal. (§ 1300, subd. (e) [appealable order includes one fixing or directing payment of compensation or expenses of an attorney].) We denied consolidation of this appeal with the conservatorship and trust matters, or with another pending appeal of a later attorney fees and sanctions orders (Negrete v. Becerra (D053519); it is still pending in this court). We have denied an application by Appellant to have separate appellate counsel appointed for Conservatee, which she argued was necessary due to her own lack of confidence in the CAA. In this appeal of the fees order, the CAA has filed the opposing brief. Donnelly has not filed a brief in this matter.
At the time the subject fee order was made, Appellant was still acting as the trustee, and she was also continuing to appear in the conservatorship hearings. Although the CAA questions the standing of Appellant regarding the fees order payable out of the trust, we think the better approach is to address the merits of this appeal, based on a liberal construction of the concept of what parties may be "aggrieved" by an order, and what parties are "interested persons" in conservatorship matters. (Code Civ. Proc., § 902; § 48, subd. (b) ["[t]he meaning of 'interested person' as it relates to particular persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, any proceeding"]; §§ 1825-1826.) This appeal is timely, as filed within 180 days of the written order. (See Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1454-1458.)
DISCUSSION
I
ISSUES PRESENTED; APPLICABLE STANDARDS
Pursuant to section 1471, subdivision (b), the probate court appointed the CAA to represent Conservatee's interests, based on a determination it would be "helpful to the resolution of the matter or... necessary to protect [his] interests." Under section 1471, subdivision (a)(4), the motion proceedings regarding appointment of an expert witness amounted to "[a] proceeding for a court order affecting the legal capacity of the conservatee." Once a person subject to such proceedings has been furnished legal counsel under section 1471, then under section 1472, subdivision (a)(1), the court will "fix a reasonable sum for compensation and expenses of counsel," and determine the person's ability to pay, upon conclusion of the matter.
Appellant essentially contends the record does not contain substantial evidence to support the discretionary fee order or it was untimely, since in her view, the probate court failed to recognize that the CAA was somehow biased or incompetent and thus could not have effectively represented the interests of Conservatee. (See Conservatorship of David L. (2008) 164 Cal.App.4th 701, 710 [in an LPS conservatorship under the Welf. & Inst. Code, a proposed conservatee has a statutory and due process right to effective assistance of counsel]; Borisoff v. Taylor & Faust (2004) 33 Cal.4th 523.) Appellant argues that these circumstances somehow show that the CAA was not rendering proper representation to Conservatee, who therefore should have been allowed to seek to remove her, and that these circumstances should undermine her fees entitlement. (See People v. Marsden (1970) 2 Cal.3d 118.)
Appellant considers herself to be entitled to raise such arguments, within the definitions of section 1829, subdivision (d), regarding persons who may appear at a conservatorship hearing ("any interested person or friend of the proposed conservatee"). (See fn. 4, ante.) She takes the position that she is interested in protecting the assets of Conservatee's trust, against the subject fee order, and the probate court's order failed to protect the relevant interests.
"Where a trial court has discretion to decide an issue, it will generally be reversed on appeal only where it clearly appears a prejudicial abuse of discretion in fact occurred. [Citation.] In other words, a reviewing court will only interfere with a trial court's exercise of discretion where it finds that under all the evidence, viewed most favorably in support of the trial court's action, no judge could have reasonably reached the challenged result. [Citation.]... More specifically, a trial court's exercise of discretion will not be disturbed unless the record establishes it exceeded the bounds of reason or contravened the uncontradicted evidence [citation], failed to follow proper procedure in reaching its decision [citation], or applied the wrong legal standard to the determination [citation]." (Conservatorship of Scharles (1991) 233 Cal.App.3d 1334, 1340 (Scharles).)
In general, when an application for fees is made, the determination of what constitutes "reasonable" attorney fees is within the discretion of the trial court. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096; Conservatorship of Levitt (2001) 93 Cal.App.4th 544, 549-550 (Levitt).) " 'The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.' [Citation.]" (PLCM, supra, at p. 1096.)
In probate cases, such relevant considerations may properly include the value of the subject estate and the degree of responsibility this value places upon the attorney. (Levitt, supra, 93 Cal.App.4th at pp. 549-550, citing Estate of Trynin (1989) 49 Cal.3d 868, 873-874.) Bearing these rules in mind, we evaluate the record before us.
II
ANALYSIS
In our previous opinions, we rejected contentions by Appellant that the probate court erred or abused its discretion by concluding that Conservatee had received sufficient notice of his rights in the proceedings. We upheld an order that Appellant should be removed as trustee. Judge Brown, who made this fees order, participated in a number of hearings in the probate court regarding the conservatorship application and the trust matter. As of the April 4 hearing date, the court had the first report of the court investigator before it. There were also two mental health capacity declarations in the file, and the court received reports from the CAA that outlined the various conflicts that had arisen among Appellant and the family members. The judge was also made aware of the related court proceedings in the previous personal injury lawsuit and the worker's compensation proceedings, as well as the trust matter.
At the time the April 4 order was made and formalized April 9, the issues in the conservatorship matter were limited to dealing with the effect of the two competing petitions, and with Appellant's motion to appoint an expert witness for some kind of trial about the actual wishes of Conservatee. On April 4, the trial court denied that motion, after discussing with counsel the flurry of activity that had preceded the hearing (filing and withdrawal of Appellant's petition, filing of Donnelly's competing petition, submission of reports by the CAA and the probate court investigator, and related trust litigation).
In the Law Revision Commission comments to section 1472 regarding fee awards, the authors state, "The 'matter' to which Section 1472 refers is the particular matter for which counsel was appointed. See Section 1471." (Cal. Law Revision Com. com., 52A West's Ann. Prob. Code (2002 ed.) foll. § 1472, p. 123.) The probate court had appointed the CAA because there were disputes about which other parties were protecting or not protecting the interests of Conservatee. The CAA's reports were particularly important in that procedural context. The request for attorney fees in that setting amounted to a discrete portion of the proceedings which justified submission of the CAA's fees request at that time. (§ 1472, subd. (a)(4).)
Appellant's argument that the probate court abused its discretion in awarding the CAA attorney fees amounts to a contention that Appellant would have done a better job in assessing the interests of Conservatee. However, the probate court did not have to accept her interpretation of the events, and the record supports its opposite conclusions. The relevant factors supported awarding fees to the counsel that the court had appointed from its "qualified for appointment" list. Appellant's motion for appointment of an expert witness lacked merit, and the filing and withdrawal of Appellant's conservatorship petition had caused confusion and expenses to the other parties and counsel involved.
We cannot consider Appellant's arguments to be proof that the CAA was not deserving of fees, nor that the CAA had failed to act in accordance with the wishes of Conservatee. Those arguments are based solely on Appellant's theory that she was the only appropriate person who could represent his rights, and her psychologist was more accurate than the treating neuropsychiatrist. However, the probate court had an adequate basis to conclude that her activities did not benefit Conservatee's interests, but instead worked against him. Because Appellant's petition and litigation activities had staked out a rather extreme position, and Donnelly had been brought in for presentation of Wife's wishes regarding an opposing position, there was clearly a need for a neutral third party to represent Conservatee, pursuant to section 1471. The probate court could appropriately conclude on this record that the CAA was adequately performing her duties.
The only issues before us are whether the probate court's ruling on fees represented an appropriate exercise of discretion in balancing all the different interests asserted. The court had the opportunity to observe the CAA's performance in court, and to evaluate her written submissions, and the order is well grounded in the statement of services provided, which documented the work performed between February 4 and April 1. Much of that work was made necessary by Appellant's questionable strategic activities. Payment out of the trust was justified, because the record shows the trust had adequate assets to pay the CAA, essentially for her efforts toward protecting the trust assets, which in turn served to protect the interests of Conservatee. (§§ 1471, 1472.) Under the standards set forth above, the probate court did not use incorrect procedures nor erroneous legal standards when making the award. (Scharles, supra, 233 Cal.App.3d at p. 1340.) Thus, Appellant has failed to demonstrate any abuse of discretion in the attorney fees award.
DISPOSITION
The order is affirmed. Appellant shall pay the ordinary costs on appeal.
WE CONCUR: NARES, J., AARON, J.