Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. RP03-117507
Swager, J.
Appellant Barbara Robinson, acting as conservator of the person and estate of Charity Rice (conservatee), appeals the probate court’s order awarding attorney fees in the amount of $15,280 to be shared equally between her attorney and attorney Jacqueline Coulter-Peebles (respondent), both of whom were involved in litigating an elder abuse claim brought on behalf of conservatee. We affirm.
STATEMENT OF THE FACTS AND PROCEDURAL HISTORY
Prior to the establishment of this conservatorship, respondent was retained by conservatee on October 18, 2002, to represent her in a dispute she was having with her two granddaughters.
On February 11, 2003, respondent filed an elder abuse action against the two granddaughters on behalf of conservatee and her grandson Warren Brown (Brown), the brother of the two granddaughters.
The elder abuse action was apparently based on allegations that Brown’s sisters had placed conservatee in a nursing home, acquired titled to her residence, and had obtained conservatee’s power of attorney and removed all of her money from her bank accounts.
On October 21, 2004, appellant, who had recently been appointed as conservator, was ordered to substitute in for the conservatee in the elder abuse action.
On April 28, 2005, attorney Samuel U. Ogbu’s law firm (Ogbu) substituted in as appellant’s attorney of record.
On December 26, 2006, the trial court in the elder abuse action issued its tentative statement of decision. The statement indicates that conservatee was represented at trial by Ogbu, and that respondent represented Brown. The order dismissed Brown’s claims. The order also notes that respondent “was allowed by counsel for the conservator to function at trial as lead counsel for both plaintiffs . . . .”
Only two pages of this statement of decision are included in the record. It appears that the elder abuse action was decided in favor of conservatee’s granddaughters.
On April 3, 2007, appellant filed an amended petition for compensation for services rendered to her as conservator by Ogbu in the elder abuse action. Ogbu claimed expenses of $1,709.60 and attorney fees of $22,920 for 76.4 hours at a rate of $300 per hour. He also claimed expenses of $270 and attorney fees of $7,140 for services rendered to appellant in the conservatorship proceeding.
The probate court dismissed without prejudice this aspect of appellant’s request.
On April 6, 2007, respondent filed her petition for compensation for services rendered to conservatee. She claimed $3,137 for costs and services rendered in the conservatorship proceeding from June 19, 2003, to December 22, 2004. She also claimed attorney fees at a rate of $200 per hour for services provided in the elder abuse action, which, together with costs, amounted to a claim of $28,564.86.
On May 16, 2007, appellant filed an objection to respondent’s claim for reimbursement in the elder abuse action, asserting that respondent represented Brown in the lawsuit, not conservatee. In particular, appellant complained that respondent and Brown had refused multiple settlement offers from the granddaughters that appellant had wanted to accept, effectively forcing her to go to trial.
On August 30, 2007, the probate court issued its order awarding attorney fees in the amount of $15,280 (76.4 hours at a rate of $200/hour) for the elder abuse case, to be shared equally by Ogbu and respondent. The court found the $200 rate charged by respondent to be a reasonable rate. The order further states: “Judge Brick’s Decision of 12/26/2006 found that Warren Brown had no standing and thereby dismissed the complaint. Nevertheless, Brown’s attorney, [respondent] continued to participate in the trial. According to Judge Brick, ‘counsel for Brown was allowed by [appellant’s counsel] to function at trial as lead counsel for both plaintiffs.’ Since petitioners have failed to justify why the trial required the participation of both counsel, one set of fees is awarded to be shared by both counsel.” This appeal followed.
The court also awarded $1,709.60 to Ogbu for costs in the elder abuse case, and $3,137 to respondent as fees and costs for services to the conservatorship case.
DISCUSSION
Probate Code section 2640 provides that, upon the conservator’s petition, the court shall allow compensation to an attorney for services rendered to the conservator that “the court determines is reasonable.” (Id., subd. (c)(2).) Although the trial court must award a reasonable amount, that amount of attorney fees may or may not coincide with what the attorney views as reasonable. (Estate of Miller (1968) 259 Cal.App.2d 536, 543.)
The allowance of attorney fees rests largely in the discretion of the trial court and will not be disturbed unless an abuse of discretion is plainly involved. (Guardianship of Jacobson (1947) 30 Cal.2d 312, 325.) “ ‘It is fairly deducible from the cases that one of the essential attributes of abuse of discretion is that it must clearly appear to effect injustice. [Citations.] Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566, quoting Loomis v. Loomis (1960) 181 Cal.App.2d 345, 348–349.)
Appellant first takes the position that the probate court abused its discretion in awarding less than the amount of Ogbu’s request because he performed the work pursuant to a contract with the conservatee which set his rate at $300 per hour. She faults the court for failing to “conduct an analysis to determine the reasonableness” of these fees, complaining that the court “simply anchored its ruling on the findings and order of Judge Brick without any analysis of the reasonableness of the totality of the legal services rendered by appellant’s counsel to her in the Elder Abuse case,” an act she equates with an abuse of its discretion.
It is apparent that the probate court relied on Judge Brick’s finding that Ogbu had allowed respondent to act as lead counsel in the elder abuse proceeding. The court also found that the $200 rate charged by respondent for her services was reasonable. Given that Ogbu apparently acquiesced to respondent acting as lead counsel at trial, we fail to see how the court abused its discretion in reimbursing Ogbu at the rate charged by respondent, rather than at the higher rate he sought. A court does not abuse its discretion when it chooses a rate of compensation that is different from the rate billed by counsel. It was thus within the trial court’s discretion to determine that $15,280 was a reasonable fee for the services provided to the conservatorship.
Appellant further claims that the probate court erred in determining the hourly rate to be $200 because the court “failed to make sufficient findings with respect to the factors recognized by case law that determine whether applying a multiplier is appropriate” as in a lodestar calculation. The so-called lodestar method is a means of calculating the amount of fees to be awarded in an appropriate case. It is described as follows in Ketchum v. Moses (2001) 24 Cal.4th 1122:
“Under Serrano III, [Serrano v. Priest (1977) 20 Cal.3d 25] a court assessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the time spent and reasonable hourly compensation of each attorney . . . involved in the presentation of the case.’ [Citation.] We expressly approved the use of prevailing hourly rates as a basis for the lodestar, noting that anchoring the calculation of attorney fees to the lodestar adjustment method ‘ “is the only way of approaching the problem that can claim objectivity, a claim which is obviously vital to the prestige of the bar and the courts.” ’ [Citation.] In referring to ‘reasonable’ compensation, we indicated that trial courts must carefully review attorney documentation of hours expended; ‘padding’ in the form of inefficient or duplicative efforts is not subject to compensation. [Citation.]
“Under Serrano III, the lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award. [Citation.] The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services. The ‘ “experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.” ’ [Citation.]” (Ketchum v. Moses, supra, 24 Cal.4th 1122, 1131–1132.)
Although such an approach may well benefit attorneys who practice in the field of probate law, there is no statutory requirement that the probate court base its award on the lodestar method or make such specific findings of fact. (See Prob. Code, §§ 2640, subds. (a)(3) & (c), 2642.) The Legislature has addressed the subject of fees and has provided for a “hearing” and required that “the court shall make an order allowing such compensation as the court determines reasonable to the attorney for services rendered” to the conservator, with the attorney’s compensation “charged against the estate.” (Prob. Code, § 2642, subd. (b).) In Conservatorship of Levitt (2001) 93 Cal.App.4th 544, 550–551, it was aptly noted that the Legislature, rather than the judiciary, is the appropriate venue for appellant to raise proposed revisions to the legislation regarding attorney compensation.
Moreover, the underlying case here, no matter how important to all involved, is simply not in the same league as the public policy concerns and the litigation process grappled with in Serrano v. Priest, supra, 20 Cal.3d 25 (the constitutionality of California public school financing), such as to warrant judicial imposition of a lodestar analysis in a probate proceeding where fees are awarded pursuant to statute. Accordingly, probate courts are not required to provide a detailed analysis of every fee awarded, and the trial court did not abuse its broad discretion in reducing Ogbu’s fee award.
Nor do we find fault in the probate court’s decision to apportion the fees between Ogbu and respondent, as both attorneys provided legal services on behalf of conservatee. Even if respondent was representing only Brown by the time of the trial, appellant allowed her to act as lead trial counsel for the benefit of both Brown and conservatee. Moreover, it appears respondent did represent the conservatee in the action prior to the appointment of the conservator. And while appellant faults respondent and Brown for allegedly rejecting the granddaughters’ settlement offers, she does not demonstrate that their interests in continuing to pursue the litigation were adverse to those of conservatee.
In her reply brief, appellant claims that conservatee did not have the mental capacity to enter into a contract with respondent. This argument is not supported by any citation to the record.
Appellant claims that even if respondent is entitled to a share of the attorney fees, it should only be for the 20 hours billed in conjunction with the trial. However, respondent’s actions at trial were doubtless based, in part, on the work that she had done in preparation for trial, including work done on the case before Ogbu was retained by appellant. Under these circumstances, the order to share the attorney fee award with respondent was not arbitrary or capricious.
The probate court’s evident purpose in splitting the attorney fees was to provide compensation to both parties without double-billing the conservatee. Contrary to appellant’s position, we see no indication that the court failed to consider the value of the conservatee’s estate in arriving at this decision. Probate Code section 10814 provides: “If there are two or more attorneys for the personal representative, the attorney’s compensation shall be apportioned among the attorneys by the court according to the services actually rendered by each attorney or as agreed to by the attorneys.” There is substantial evidence that both of the attorneys here provided services to the conservatee in the elder abuse action and that the $200 per hour rate is not unreasonable. We conclude that appellant has failed to carry her burden to establish that the trial court erred or abused its discretion in connection with the fee award from which she appeals.
That appellant does not contest the payment of $3,137 to respondent for services provided in the conservatorship proceeding supports the inference that respondent did have an attorney-client relationship with conservatee for some time after filing the elder abuse action.
DISPOSITION
The order awarding $15,280 in attorney fees to be shared between appellant’s attorney and respondent is affirmed.
We concur: Marchiano, P. J., Margulies, J.