Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BP112601 Michael I. Levanas, Judge.
Hillel Chodos and Jonathan P. Chodos for Objector, Petitioner and Appellant.
Palermo, Barbaro, Chinen & Pitzer, Gloria Pitzer and Philip J. Marr for Petitioner and Respondent.
ALDRICH, J.
INTRODUCTION
This is the second appeal brought by appellant Allen V. C. Davis to challenge an order of the probate court directing him to pay the fees incurred by the court-appointed Probate Volunteer Panel (PVP) attorney out of the estate of the proposed conservatee, Lenabelle Berg Davis, Allen’s wife. In our first opinion, Allen contended that the probate court had no jurisdiction to order payment from Lenabelle’s estate. We held that the probate court manifestly had authority to appoint PVP counsel and to order that payment of counsel’s fees be made from Lenabelle’s estate (Prob. Code, § 1470, subd. (c)), but because Allen did not receive notice that the hearing would involve a fee order, we reversed to allow Allen notice and an opportunity to be heard. In this second appeal, Allen raises numerous issues, many of which he raised in the first appeal. With respect to those arguments not already resolved by the first appeal, Allen has demonstrated no probate court error. Accordingly, we affirm the order.
We refer to the parties by their first names for clarity and intend no disrespect by it.
FACTUAL AND PROCEDURAL BACKGROUND
We repeat most of the background facts from our prior opinion: Allen and Lenabelle were married for more than 60 years. Lenabelle suffered a severe stroke with long-lasting effects.
Previous to Lenabelle’s death, on September 10, 2008, one of the Davis’ daughters, Joann D. Acuff, filed a petition for appointment as conservator of Lenabelle’s person and estate. Allen objected to Joann’s petition for appointment as conservator. There is apparently litigation between Allen and the Davis’s children concerning ownership and control of certain business interests.
In October 2008, the court appointed attorney Gloria Scharre Pitzer as PVP attorney for Lenabelle. That appointment specified that the court would determine attorney fees and that in accepting the appointment, the PVP attorney understood that “except in cases involving unusual problems requiring extraordinary expertise, the hourly rates [for attorney fees] shall not exceed $225.00 per hour when paid by the estate and $125.00 per hour when paid by the County.” (Italics added.)
During this fracas, and before Joann’s petition was heard, Lenabelle passed away on December 21, 2008, leaving a large estate including substantial real estate holdings and business interests generating millions of dollars of annual income.
Three days later, on December 24, 2008, the PVP attorney filed a “Report of Court Appointed Counsel for Conservatee.” The report requested the termination of the conservator proceedings and “[b]ecause of the size of this estate and the complexity of the issues involved herein, ” that the PVP counsel be compensated at a higher rate than normally awarded PVP attorneys. This report and attached description of the PVP attorney’s hourly activities was served on Allen’s attorney, among others.
On January 5, 2009, the matter of appointment of a conservator was heard before a commissioner instead of the judge assigned to the case. Allen’s attorneys did not appear for the hearing, believing that Lenabelle’s death in December had rendered the proceeding moot and so it would be dismissed. The record indicates that the parties stipulated to the judge pro tem, although Allen asserts that he made no such stipulation because he did not appear. The temporary judge ordered the competing petitions for appointment of conservator off calendar, awarded the PVP attorney fees in the amount of $9,170.00 to be paid from Lenabelle’s estate, and discharged her.
Allen then filed his first appeal contending the probate court had no jurisdiction to order the PVP counsel fees be paid from Lenabelle’s estate. Allen did not challenge the amount of the fee award. We held that the probate court had jurisdiction to appoint the PVP attorney and that “Lenabelle’s illness combined with the bitter intra-family litigation leads to the inescapable conclusion that the court would have been remiss had it failed to appoint one.” We next held that the probate court had jurisdiction, i.e., was empowered to direct payment of the PVP attorney’s fees from Lenabelle’s estate. We explained that the court was required to fix a reasonable sum for the PVP counsel’s compensation (Prob. Code, § 1470, subd. (b)) and had the authority to order that payment of such fees and expenses be paid from Lenabelle’s estate and not from the County. (Brown v. Superior Court (1981) 119 Cal.App.3d 189, 192 [where conservatee is financially able to retain private counsel, appointment of public defender as PVP counsel is in excess of probate court’s authority]; Super. Ct. L.A. County, Local Rules, rule 10.87(b)(3).) Where Lenabelle’s estate had the ability to pay a $9,170 fee, the probate court had jurisdiction to order that payment be made from Lenabelle’s estate.
However, we concluded that where Allen was not given notice that the hearing would encompass the PVP attorney’s fee request, and where he could not have stipulated to the temporary judge, reversal of the order was required. The Supreme Court denied Allen’s petition for review of our opinion.
After the remititur was issued, Pitzer filed a new petition for fees. This time, she asked, in addition to the $9,170 previously requested, that the court award her $12,500 for costs and fees incurred in responding to the earlier appeal, for a total of $18,497.50.
Concurrently, to protect against the one-year statute of limitations for claims against a decedent, Pitzer filed a civil complaint on December 18, 2009 against Allen as trustee of the Davis Trust No. 1, alleging that the estate of Lenabelle Berg Davis was indebted to Pitzer for the $9,170 as awarded by the fee order, plus attorney fees of $12,500 for defending the appeal (the civil action).
Allen objected to the PVP attorney’s probate-court petition, arguing that the probate court had no jurisdiction to make any award of fees because (1) there was another action pending between Pitzer and Allen “on the same cause of action;” (2) the PVP attorney should not recover the $12,500 requested for time spent responding to Allen’s appeal rather than benefitting Lenabelle; and (3) there has never been an “estate of Lenabelle Berg Davis” from which this Court would have jurisdiction to direct payment of fees to the PVP attorney where a conservatorship estate was never created and where all of Lenabelle’s assets were held in trust. Allen also raised arguments he raised in the first appeal, namely that the court should not have appointed a PVP counsel in the first place; and that the court should have directed the County to pay the PVP attorney’s fees.
After argument, the probate court awarded Pitzer the fees she requested from Lenabelle’s estate. Allen filed his timely appeal.
DISCUSSION
1. The probate court did not err in ruling on the PVP attorney’s fee motion.
Allen first contends the probate court should have abated the instant proceeding on the PVP attorney’s fee petition because of the existence of another earlier pending proceeding, namely PVP counsel’s civil action seeking recovery of the same $18,497.50. He reasons that the civil action is the earlier suit because it was filed on December 18, 2009, whereas the probate court application for $18,497.50 was filed later, in 2010. As a result, where the instant fee application is the later action, he argues, it should be abated. Allen is wrong.
“ ‘Under the rule of exclusive concurrent jurisdiction, “when two [California] superior courts have concurrent jurisdiction over the subject matter and all parties involved in litigation, the first to assume jurisdiction has exclusive and continuing jurisdiction over the subject matter and all parties involved until such time as all necessarily related matters have been resolved.” [Citations.] The rule is based upon the public policies of avoiding conflicts that might arise between courts if they were free to make contradictory decisions or awards relating to the same controversy, and preventing vexatious litigation and multiplicity of suits.’ [Citation.] Ordinarily, ‘[p]riority of jurisdiction resides in the tribunal where process is first served.’ [Citation.]” (People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 769-770, italics added.)
Here, the earlier case is not the civil action, but clearly the proceeding in the probate court, which commenced in 2008. The PVP counsel’s filing of a new motion for fees in 2010 upon our remititur did not create a new action that would be subsequent to the civil action merely because Allen filed an appeal in this court. With certain exceptions not relevant here, “the filing of a notice of appeal deprives the trial court of jurisdiction of the cause and vests jurisdiction with the appellate court until the reviewing court issues a remititur.” (In re Anna S. (2010) 180 Cal.App.4th 1489, 1499.) The appellate court clerk’s issuance of the remititur effects the transfer of jurisdiction back to the lower court from whence the appeal was taken. (Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 774), “revests jurisdiction in the trial court, ” and “all further proceedings in the case take place in the trial court.” (Eisenberg et al., Cal. Practice Guide Civil Appeals and Writs (The Rutter Group 2010) ¶ 14:2, p. 14-1.) “ ‘The effect of an unqualified reversal (“the judgment is reversed”) is to vacate the judgment, and to leave the case “at large” for further proceedings as if it had never been tried, and as if no judgment had ever been rendered. [Citations.]’ [Citations.] Generally an unqualified reversal has the effect of remanding the case for a new trial on all the issues presented by the pleadings [citation] and the parties have the right to file amended pleadings before a retrial [citation].” (In re Anna S., supra, at pp. 1499-1500, italics added.) Stated succinctly, a renewed motion upon issuance of a remititur after a reversal does not create a new case. The PVP attorney’s request for fees, filed in January and March 2010, is merely an amended pleading in the ongoing case before the probate court. Accordingly, the civil action is the second proceeding that should be abated. Although, “the rule of exclusive concurrent jurisdiction is a rule of policy and countervailing policies may make the rule inapplicable” (People ex rel. Garamendi v. American Autoplan, Inc., supra, 20 Cal.App.4th at p. 770), we can conceive of no policy that would justify abating the probate matter.
2. The evidence supports the probate court’s findings with respect to the fee order.
Allen next argues that there is no basis for the PVP attorney to recover fees incurred in pursuing her original fee claim. He argues that there is no law that the probate court order Lenabelle or her estate to pay for legal work done by the PVP counsel for her own personal economic benefit, namely for amounts she incurred to recover her fees by defending the appeal, rather than to protect the interests of the conservatee.
In the context of conservatorships, “petitioners for fees from an estate must convince a court which in most instances will have firsthand knowledge of the services performed that they have rendered services of value in order to collect.” (Estate of Moore (1968) 258 Cal.App.2d 458, 464; 4 Gold et al., Cal. Civil Practice: Probate and Trust Proceedings (2005) § 25:13, pp. 25-20 – 25-21; accord Conservatorship of Chilton (1970) 8 Cal.App.3d 34, 43 [denying fees].) One who in good faith initiates a conservatorship proceeding but is not appointed is also entitled to just and reasonable costs and counsel fees. (Conservatorship of Chilton, supra, at p. 43; Prob. Code, § 2640.1.) It is presumed that the probate court examined the file, including the fee petition and Allen’s opposition. (GGIS Ins. Services, Inc. v. Superior Court (2008) 168 Cal.App.4th 1493, 1504, fn. 1.) The court was clearly in the position to determine the reasonable value of attorney’s fees incurred in connection with this proceeding. Based thereon, the court found that “the representation by [PVP counsel] was for the benefit of Mrs. Davis” and “that her request for fees were reasonable for the period of time of October 14th, ’08, through January 5th, ’09. [¶] The court finds that her conduct was reasonable thereafter in defending the order made in the probate court. In the Court of Appeals, that it was overturned. [¶] The court orders that [PVP counsel] is granted $18,497.50 payable from the estate of Lenabelle Berg Davis for attorney’s fees. Also, the court grants reimbursement of costs advanced in the amount of $1,090 payable from the estate of Lenabelle Berg Davis.” The first appeal was necessitated by the probate court’s error in ordering a non-appearing party to pay fees, not by any conduct of the PVP counsel, and not because the probate court made a legal error with respect to the substantive issues. The bulk of our previous opinion affirmed the authority of the probate court to order payment of PVP counsel’s fees from Lenabelle’s estate. The record supports the court’s finding challenged here.
3. The probate court was not asked to take evidence.
Allen also contends that the probate court had no jurisdiction, i.e., authority, to award fees without “taking evidence on the petition and objections.” Allen cites Estate of Bennett (2008) 163 Cal.App.4th 1303, which recites the rule that “in probate matters ‘affidavits may not be used in evidence unless permitted by statute. [Citation.]’ [Citation.] Consequently, ‘when challenged in a lower court, affidavits and verified petitions may not be considered as evidence at a contested probate hearing. [Citations.]’ [Citations.]” (Id. at pp. 1308-1309.)
Here, Allen was given notice and appeared at twohearings on the PVP counsel’s fee motion, on May 3, 2010 and May 10, 2010. Thus, Allen was accorded the due process to which we referred in our earlier opinion. In both hearings, Allen opposed the PVP counsel’s fee motion by raising numerous legal issues, which issues the probate court heard and addressed. However, Allen did not raise factual or evidentiaryissues in opposing the fee award; he did not challenge the basis for the PVP attorney’s affidavit or petition. Therefore, the probate court was not called upon to take evidence. (Estate of Bennett, supra, 163 Cal.App.4th at pp. 1308-1309.)
For this reason, we disagree with Allen that the probate court “considered itself bound by this Court’s Opinion to award the fees as requested.”
We observe that chief among the issues Allen raised was whether the probate court had jurisdiction to order that fees be paid from Lenabelle’s estate. This issue was squarely raised and resolved by our prior opinion with the result that the prior opinion is law of the case. Thus, this argument could not be raised for a second time in the probate court. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1518 [“ ‘Under the law of the case doctrine, “ ‘the decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.’ ” [Citation.]’ [Citation.]”].)
Furthermore, Allen waived any challenge to the probate court’s findings based on a lack of evidence. At the close of the hearings, the court made the findings quoted above, namely that the PVP counsel’s representation was for Lenabelle’s benefit and that her request for fees and her conduct responding to Allen’s appeal was reasonable. Allen did not object to those findings on the ground of lack of evidence, or that the court relied on inadmissible affidavits, and so he has forfeited this contention on appeal. (Wiley v. Southern Pacific Transportation Co. (1990) 220 Cal.App.3d 177, 188 [“As a general rule, an appellate court will not consider procedural defects in connection with either relief sought or a defense asserted where no objection was made to the lower court.”].)
4. There is an estate from which to pay the PVP’s fees.
Allen also argues that there is no “estate” from which to pay the fee award.
Probate Code section 1470, subdivision (c) reads in part, “The court shall order the sum fixed under subdivision (b) to be paid: [¶] (1) If the person for whom legal counsel is appointed is an adult, from the estate of that person.” (Italics added.) Allen argues that the “estate” referred to in Probate Code section 1470 is necessarily the conservatorship estate, rather than the “estate of the proposed conservatee.” Where no conservatorship was established, Allen argues, no conservatorship estate exists from which to order payment of the PVP attorney’s fees. Allen is wrong.
Looking at the words of the statute at issue, subdivision (c) of section 1470 of the Probate Code does not limit the definition of “estate” to conservatorship estates only. The statute directs payment from “the estate of that person, ” not from the “estate of the conservatee.” (Italics added.) We decline to read into the statute language which the Legislature opted not to utilize so as to limit the type of estate that must pay fees. We must harmonize statutory sections relating to the same subject, internally and with other law so as to give effect to all and avoid anomalies, if possible. (Mejia v. Reed (2003) 31 Cal.4th 657, 663.) To read into Probate Code section 1470 to limit payment from a conservatorship estate would be to deny payment altogether when, as here, no conservatorship is established. Clearly, the Legislature could not have intended such an eventuality. This makes eminent sense where the test for whether to order payment of attorney fees and other services is whether the services were of value. (Cf. Estate of Moore, supra, 258 Cal.App.2d at p. 463.) Such a result encourages honest assessment when a conservatorship is not necessary, by allowing fees to PVP counsel for services rendered before a conservatorship is ordered.
Allen also argues that no “probate” estate was ever opened for Lenabelle because all of her “assets” were held in an inter vivos revocable trust. In the absence of a probate estate, there was no “estate” from which to order payment of the PVP attorney’s fees under Probate Code section 1470, subdivision (c). To the contrary, the law recognizes many different kinds of “estates.” “The word ‘estate’ when used in connection with probate proceedings encompasses the totality of the assets and liabilities of the decedent, including all manner of property, real and personal, choate or inchoate, corporeal or incorporeal. [Citation.]” (Estate of Adams (1957) 148 Cal.App.2d 319, 323.) “As used in connection with the administration of decedents’ estates, [the] term includes property of a decedent, trust or other person as such property exists from time to time during the administration, and hence may include probate assets as well as property passing by intestacy” (Blacks Law Dict. (6th ed. 1991) p. 547, col. 1, italics added), and through a trust. (Cf. Hall v. Kalfayan (2010) 190 Cal.App.4th 927, 936-937 [the “trust estate”]; Lickter v. Lickter (2010) 189 Cal.App.4th 712, 724 [the “Trust Estate”].) Thus, it is irrelevant that Lenabelle’s assets were contained in a trust as opposed to a will because Probate Code section 1470, subdivision (c) does not specify what sort of “estate” is obligated to pay the PVP attorney fees, and the word “estate” is broad enough to encompass the assets in Lenabelle’s trust.
5. Allen may not challenge the initial appointment of PVP counsel in this appeal.
Allen also contends that the appointment of PVP counsel was made without an evidentiary hearing. His challenge to the appointment order, made in September 2008 comes far too late. This contention could have been raised in the first appeal when Allen challenged the appointment of the PVP attorney on jurisdictional grounds. But, Allen did not raise it then.
Allen’s further arguments aimed at the order appointing PVP counsel, namely that it was never determined that Lenabelle needed or wanted a conservator and that the PVP attorney’s fees should be paid by the County of Los Angeles and not by Lenabelle’s estate, are barred by the doctrine of law of the case. (In re Marriage of Balcof, supra, 141 Cal.App.4th 1509, 1518.)
DISPOSITION
The order appealed from is affirmed. Respondent to recover costs on appeal.
We concur: CROSKEY, Acting P. J., KITCHING, J.