Opinion
F073436
05-24-2018
Conservatorship of the Person and Estate of BENJAMIN H. SMITH. CATHERINE A. AMADOR, Petitioner and Respondent, v. MICHAEL H. SMITH, JR., Objector and Appellant.
Law Offices of Randolf Krbechek and Randolf Krbechek for Objector and Appellant. Pascuzzi, Pascuzzi & Stoker and Catherine A. Amador for Petitioner and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 11CEPR00782)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Debra J. Kazanjian, Judge. Law Offices of Randolf Krbechek and Randolf Krbechek for Objector and Appellant. Pascuzzi, Pascuzzi & Stoker and Catherine A. Amador for Petitioner and Respondent.
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In this conservatorship case in which the Fresno County Public Guardian (the Public Guardian or conservator) was appointed as conservator of the person and estate of Benjamin H. Smith (Benjamin or conservatee), appellant Michael H. Smith, Jr. (Butch), appeals from an order directing payment from the conservatorship estate of approximately $18,000 in attorney fees to respondent Catherine A. Amador of the law firm of Pascuzzi, Pascuzzi & Stoker. Amador did not represent the Public Guardian in the proceedings below, but was attorney of record for Michael H. Smith, Sr., (Michael) and Jenna R. Smith (Jenna). Nevertheless, the trial court granted Amador's petition for a fee award under Probate Code section 2642 to compensate her to the extent that she performed legal services of assistance to, or in cooperation with, the Public Guardian in its role as Benjamin's conservator.
The Smith family members are referred to by their first names or commonly used names for ease of reference; no disrespect is intended.
Unless otherwise indicated, all further statutory references are to the Probate Code.
Butch argues the entire award of attorney fees was improper because section 2642 only provides for an award of attorney fees to the conservator's attorney. While Butch's reading of the statute is correct, his argument falls short because it fails to adequately account for independent equitable grounds for awarding attorney fees in conservatorship proceedings. As more fully explained below, we conclude under established case law a portion of the attorney fee award was proper in this case—namely, the portion attributable to Attorney Amador's services facilitating the successful appointment of the Public Guardian as conservator. However, we agree with Butch that the balance of the fee award was improper. Accordingly, we reverse the trial court's order in part and remand the matter to the trial court to recalculate the amount of the fee award and enter a corrected order in a manner consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
Benjamin was Michael's father and the grandfather of Butch and Jenna. Michael is Butch's and Jenna's father. Benjamin was married to Dorothy Jean Smith (Jean). Benjamin began to suffer from increasing dementia in his old age and, in August of 2010, he executed estate planning documents naming both Jean and Butch as his agents under a power of attorney for health care and as his attorneys-in-fact under a durable power of attorney.
Jean's Efforts to Care for Benjamin
On September 1, 2011, Benjamin's wife Jean filed a petition to be appointed as conservator of Benjamin's person. Benjamin had been diagnosed with mild dementia several years before and she wanted him to stay in an assisted living facility because he was becoming increasingly violent towards her due to his dementia. Jean further alleged a conservatorship was necessary because her grandson Butch disagreed with her about Benjamin's care. Butch opposed Jean's petition and did not want Benjamin to reside in an assisted living facility. While the petition was pending, Jean and Butch agreed Benjamin would live with Benjamin's sister, Grace. A settlement agreement was reached and Jean's petition for a conservatorship was dismissed.
Jean's Own Health Declines
In 2012, after Jean's physical health and mental faculties declined following a major stroke, she was moved into an assisted living facility. In May of 2012, Michael and Jenna petitioned for a conservatorship of Jean's person and estate. Butch objected to having Michael and Jenna serve as the coconservators of Jean's person and estate. Butch asked the Public Guardian be appointed instead. On June 26, 2012, the trial court granted the petition. Michael and Jenna were appointed as coconservators of Jean's person, and the Public Guardian was appointed as conservator of Jean's estate. Afterwards, the trial court directed the Public Guardian manage the entirety of the community estate of Benjamin and Jean.
Petition for Conservatorship of Benjamin's Person and Estate
On September 25, 2012, Michael and Jenna filed a petition for appointment of a conservator of the person and estate of Benjamin, requesting the Public Guardian be appointed as conservator. Attorney Amador represented Michael and Jenna concerning the petition and the related conservatorship issues arising thereafter. The petition asserted a conservatorship was necessary for the care of Benjamin's person and estate, not only because of Benjamin's dementia and vulnerability, but also because of his poor physical condition stemming from the allegedly inadequate care he was receiving from Butch. Additionally, the petition asserted Butch was isolating Benjamin from other family members and possibly dissipating Benjamin's accounts for his own use. Butch opposed the petition and the matter was contested in court.
On October 18, 2012, Jean passed away.
On January 18, 2013, the petition for appointment of a conservator of Benjamin's person and estate was granted by the trial court. As requested by Michael and Jenna, the Public Guardian was appointed to serve as conservator of Benjamin's person and estate. Letters of conservatorship were issued by the trial court on February 13, 2013.
Issues Raised After the Appointment
Shortly after the appointment, Butch filed a motion seeking clarification of whether his power as agent under an advance health care directive signed by Benjamin gave Butch prior authority to make health care decisions for Benjamin. The trial court reviewed the matter and concluded Butch's authority under the advance health care directive took precedence over that of the conservator, and therefore Butch retained the responsibility to make health care decisions for Benjamin. However, the trial court warned that Butch would have to exercise that responsibility faithfully by ensuring Benjamin attended medical appointments and received needed treatment. The trial court also instructed Butch to cooperate fully with the outside caregivers arranged by the Public Guardian to provide daily care for Benjamin.
In May of 2013, Michael brought a petition to terminate Butch's authority to make health care decisions for Benjamin, alleging there had been repeated failures to provide medications, to cooperate with caregivers, and to keep the Public Guardian informed about medical issues. Amador represented Michael in the petition. Butch filed opposition. After the parties were ordered to mediation on these matters, they reached a settlement. In August of 2013, Michael's petition to terminate Butch's authority to make health care decisions for Benjamin was withdrawn.
In the following year, the situation deteriorated once again. In April of 2014, the Public Guardian concluded Butch was incapable or unwilling to provide necessary and appropriate care for Benjamin, and the Public Guardian decided it was necessary to place Benjamin in an assisted living facility to preserve his health and enhance the quality of his life. However, Butch resisted the change by not allowing Benjamin to undergo a "TB test," which was necessary as a condition for admission to the assisted living facility.
On May 1, 2014, a joint petition was filed by Michael and the Public Guardian, seeking permission on an ex parte basis to obtain a tuberculin test for Benjamin. When ex parte relief was denied, a joint petition was filed on May 20, 2014, by Michael and the Public Guardian to have Butch's authority to make medical decisions terminated. The latter petition included declarations filed by (1) Stacy Mauro, the deputy public guardian assigned to Benjamin, (2) Susan Kendakur, the administrator of the care agency hired by the Public Guardian to provide daily caregivers to Benjamin, (3) Lisa Smith, Michael's wife, who frequently visited Benjamin and observed his condition, and (4) Michael. Amador prepared the petition and supporting papers. The joint petition was executed by Amador as well as by the attorney for the Public Guardian, Heather Kruthers of the Fresno County Counsel's Office. At the hearing on May 29, 2014, the parties reached an agreement on the record that "the authority of the agent for health care will be suspended until further order of the Court," a TB test would be provided, and Benjamin would be moved forthwith to a facility for at least 30 days. Under this compromise, the decision on whether to permanently terminate Butch's health care power was postponed until a later date.
Benjamin died one month later, on June 28, 2014.
Petition for Attorney Fees
On July 28, 2015, Amador filed her petition for attorney fees. Specifically, Amador sought an order "directing the payment of $18,041.00 as compensation for services rendered to [Michael] and Jenna, resulting in the appointment of the Conservator and efforts to protect [the] Conservatee thereafter." The fees sought were for services rendered from September 5, 2012 (relating to the petition for conservatorship of Benjamin's person and estate), through June 23, 2014 (regarding the request to terminate Butch's health care authority over Benjamin). The petition for an award of attorney fees provided a detailed account of Amador's involvement in the case, including her cooperative efforts with, and valuable assistance to, the Public Guardian.
On September 4, 2015, Butch filed his opposition to the petition for attorney fees. Butch filed supplemental points and authorities in opposition to the petition on September 23, 2015. There, Butch argued the trial court lacked legal authority to award the attorney fees requested by Amador because she (Amador) was not the conservator's attorney. Butch made additional arguments, including the claim for attorney fees was time barred.
On October 1, 2015, Attorney Amador filed her reply. In the reply, she insisted she provided legal services "to the Conservator" pursuant to section 2642.
On October 9, 2015, Butch filed further points and authorities in opposition to the petition for attorney fees. He reiterated that under section 2642, an award of compensation could only be made from the conservatorship estate to an attorney actually representing the conservator. Since Amador's clients were Michael and Jenna, neither of whom were Benjamin's conservator, the trial court allegedly lacked authority to grant an award of attorney fees. Oral argument was heard by the trial court on October 20, 2015. On October 21, 2015, Butch filed a "Surreply" after oral argument had been held, responding to Amador's statement at oral argument that the Public Guardian's attorney had requested Amador's assistance.
On October 30, 2015, after the petition for attorney fees was taken under submission, a declaration was filed by the deputy public guardian, Stacy Mauro, confirming the cooperation and assistance provided by Amador to the Public Guardian and requesting the petition for attorney fees be granted. Mauro added that due to Amador's assistance and the benefit of her extensive knowledge of the case and the family history, judicial relief came much earlier than it otherwise would have without such help, which was beneficial to the conservator and the conservatee: "Significantly more time would have been spent by the Public Guardian and County Counsel to file the same petitions that she did."
The Trial Court's Order
On January 15, 2016, the trial court issued its order granting the petition for attorney fees, holding the requested attorney fees were authorized under section 2642, were reasonable in amount, and were properly chargeable to the conservatorship estate. The trial court ordered as follows: "[T]he Public Guardian is directed to pay the sum of $18,932.00 to Pascuzzi, Pascuzzi & Stoker from the Conservatorship Estate of Benjamin H. Smith, consisting of $18,041.00 in fees and $891.00 in costs." In rejecting Butch's arguments, the trial court explained the language of section 2642 was sufficient to allow a fee award here, since the services rendered were "to" the conservator in the sense they valuably assisted the conservator, whether or not the conservator was formally Amador's client.
Butch's notice of appeal from the order granting attorney fees followed.
DISCUSSION
I. Standard of Review
The question in the present appeal is not the reasonableness of the amount of attorney fees awarded, but whether the trial court had the legal authority to award them at all. We review the legal basis for an award of attorney fees de novo, as a question of law. (Exarhos v. Exarhos (2008) 159 Cal.App.4th 898, 903.) To the extent our determination requires statutory construction, that, too, is an issue of law that we review de novo. (Ramon v. County of Santa Clara (2009) 173 Cal.App.4th 915, 920.)
Amador has requested judicial notice of purported facts relating to the purpose and staffing of the Public Guardian's office. In view of the limited nature and scope of the legal issues presented in this appeal, we conclude the requested matters were not shown to be relevant and helpful toward resolving the appeal before us. For that reason, we deny the request for judicial notice. (See Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 737.)
II. Attorney Fees in Probate Conservatorship Proceedings
"Code of Civil Procedure section 1021 states the general rule with respect to attorney fees. 'Except as attorneys' fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; ...' This general rule is applicable to probate proceedings." (Estate of Myers (1964) 230 Cal.App.2d 465, 467.)Thus, in the absence of a statutory provision authorizing an attorney fee award or "exceptional circumstances" in which equity may allow recovery of attorney fees, "the services of an attorney must ordinarily be paid by the client employing him." (Estate of Marre (1941) 18 Cal.2d 191, 192.)
We first consider whether the attorney fees at issue were authorized by a specific statutory provision and, second, whether such fees were properly granted under equitable principles applicable to conservatorship proceedings.
A. Statutory Provisions
1. Sections 2640 and 2642
Sections 2640 and 2642 expressly authorize court-ordered compensation to be paid to attorneys from the conservatorship estate. Section 2640 allows the guardian or conservator to petition for payment of compensation to the "attorney for services rendered ... by the attorney to the guardian or conservator of the person or estate or both." (§ 2640, subd. (a)(3).) The compensation awarded to the attorney "may ... include compensation for services rendered before the date of the order appointing the guardian or conservator." (§ 2640, subd. (c).)
Section 2642 is similar except it allows the attorney to petition directly for payment of his or her fees. Section 2642, subdivision (a) states in relevant part as follows: "At any time permitted by Section 2640 and upon the notice therein prescribed, an attorney who has rendered legal services to the guardian or conservator of the person or estate or both ... may petition the court for an order fixing and allowing compensation for such services rendered to that time." Section 2642, subdivision (b) states: "Upon the hearing, the court shall make an order allowing such compensation as the court determines reasonable to the attorney for services rendered to the guardian or conservator. The compensation so allowed shall thereupon be charged against the estate."
In the present case, Amador petitioned for recovery of her fees under section 2642. In granting the petition, the trial court in effect decided the wording of section 2642 was broad enough to allow payment of compensation to an attorney who was not the attorney for the conservator, as long as the services performed were of assistance to the conservator. We reject that expansive construction of the statute.
The record does not support the trial court's further suggestion that Amador may have been acting as the attorney for the Public Guardian. In the proceedings below, the Public Guardian was represented solely by the Fresno County Counsel's Office. The fact the Public Guardian joined in certain petitions filed by Amador's clients, Michael and Jenna, or benefitted by the efforts provided by Amador, did not create an attorney-client relationship.
"We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determine legislative intent, we turn first to the words of the statute, giving them their usual and ordinary meaning. [Citations.] When the language of a statute is clear, we need go no further." (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340.)"If the words themselves are not ambiguous, we presume the Legislature meant what it said, and the statute's plain meaning governs." (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1190.) Here, the plain meaning of the statutory language referring to an attorney's "services rendered to the guardian or conservator" (§ 2642, subd. (b), italics added) is manifestly that the attorney provided such services in his or her capacity as the attorney for the guardian or conservator. That is because, in ordinary usage, an attorney only renders legal services "to" a person who is the attorney's client—which in this context would have to be the conservator. (See, e.g., Provisor v. Haas Realty, Inc. (1967) 256 Cal.App.2d 850, 857 [legal services are necessarily rendered to an attorney's client only, and the fact another party to a transaction, a real estate broker, had substantially benefitted from those legal services did not convert the legal services rendered to his clients into services rendered to the broker].) Thus, to qualify for fees under section 2642, the attorney must have provided the legal services in the course of representing the guardian or conservator as a client.
Our understanding of the plain meaning of section 2642 is confirmed by a consideration of the purposes for the original enactment of the provisions authorizing attorney fees from the conservatorship or guardianship estate. As explained in Reinstein, Land & Katz v. Clune (1973) 30 Cal.App.3d 321 (Reinstein), under probate law prior to 1951, attorney fees were deemed to be expenses of the guardian, and although the guardian was entitled to an allowance or reimbursement if the court found them reasonable and necessary, the guardian was personally liable for the fees of the attorney. (Reinstein, at p. 323.) In 1951, former section 1556 was amended and former section 1556.1 was added to the Probate Code, which changed the law by "provid[ing] for the fixing by the court, upon petition of the guardian or his attorney, of the compensation of the attorney for services rendered to the guardian and for the payment of such compensation directly out of the estate of the ward." (Reinstein, at p. 323.) As discussed in Reinstein, the intended effect of these changes to the prior law was to establish that, in the absence of a contrary agreement, the attorney for a guardian would no longer have a claim against the guardian for payment of attorney fees. Although the guardian was relieved of personal liability for such attorney fees, the attorney could, under the new Probate Code sections, directly petition the court for compensation for his or her legal services rendered to the guardian, which would be paid from the estate. (Reinstein, supra, at pp. 323-325.) In light of these particular statutory objectives, it does not appear the language adopted by the Legislature in the 1951 enactment of former section 1556.1, which allowed compensation to an attorney "who has rendered services to a guardian," contemplated or intended a broadening of the pre-1951 grounds for fee recovery. In other words, the Legislature had in view the same underlying attorney-client relationship that had existed under the prior law—i.e., the attorney for the guardian—but merely altered the rule of personal liability of the guardian and allowed the attorney to petition the court for his or her reasonable fees to be paid directly from the estate.
At that time, guardianship was the only term in use and the only procedure available for a party to assume administration of the estate of an adult unable to manage his or her affairs. The addition to the Probate Code of a distinct category of protective relationship known as a conservator or conservatorship did not occur until 1957. (Board of Regents v. Davis (1975) 14 Cal.3d 33, 37-38.) The current version of the relevant attorney fee statutes, sections 2640 and 2642, refers to the attorneys for guardians or conservators.
As so amended, former sections 1556 and 1556.1 were virtually identical to the wording of the current provisions set forth at sections 2640 and 2642. It is clear that these former sections were the predecessor statutes of the current provisions.
The relevant wording of former section 1556.1 is recited in Reinstein, supra, 30 Cal.App.3d at page 324.
Consistent with this interpretation, we note case law has drawn a bright line between the attorney for the conservator or guardian (or other Probate Code fiduciary) on the one hand, and the attorneys representing other parties to the proceedings on the other hand, with statutory compensation from the estate allowed only to the former. (E.g., Guardianship of Boxley (1953) 115 Cal.App.2d 483, 486 ["The statutory provisions under which the estate of the ward may be charged with the amount of attorneys' fees for services rendered a guardian exclude, by implication, liability of the estate for attorneys' fees ... which are rendered to the incompetent directly or to persons other than the guardian"]; see Hutchinson v. Gertsch (1979) 97 Cal.App.3d 605, 614 [in construing parallel attorney fee provisions relating to an executor's or administrator's attorney, the court stated: "Although ... [former] sections 902, 910 and 911 refer only to services rendered by an attorney to an 'executor' or 'administrator,' which preclude recovery of fees from an estate, under those statutory provisions, for services rendered to persons other than administrators or executors, we must consider whether" the payment of fees may have been allowable under equitable principles].)
Based on the foregoing, we conclude Attorney Amador, who represented only Michael and Jenna in the proceedings below and who did not represent or serve as the attorney for the Public Guardian, was not entitled under section 2642 to an award of statutory attorney fees from the conservatorship estate.
2. Section 2640.1
An additional provision for attorney fees in conservatorship proceedings, section 2640.1, was not applicable here, nor did any party argue its applicability. Section 2640.1 is only available in circumstances where "a person has petitioned for the appointment of a particular conservator and another conservator was appointed while the petition was pending." (§ 2640.1, subd. (a).) Here, the petitioning parties, Michael and Jenna, requested the appointment of the Public Guardian, which was granted.
Section 2640.1 also requires that the petition was filed in the best interest of the conservatee and the services rendered by the attorney facilitated appointment of a conservator. This section appears to be a codification of the specific result reached in the case of Estate of Moore (1968) 258 Cal.App.2d 458, which is discussed in our analysis of equitable grounds for attorney fees in conservatorship proceedings.
B. Equitable Grounds to Allow Fees
It is well established that equitable principles are applicable in probate proceedings to aid a probate court in the exercise of its functions. (Hutchinson v. Gertsch, supra, 97 Cal.App.3d at pp. 614-615; Estate of Moore, supra, 258 Cal.App.2d at p. 463.) Our courts have recognized that, at least under some circumstances, application of equitable powers may permit an award of attorney fees even in the absence of statutory authority. (See, e.g., Hutchinson v. Gertsch, supra, at pp. 614-615; Estate of Moore, supra, at p. 463; Estate of Reade (1948) 31 Cal.2d 669, 671-672.)
For example, in Estate of Moore, supra, 258 Cal.App.2d 458, attorney fees were granted based on equitable principles applicable to conservatorship proceedings. In that case, a physician filed a petition requesting he be appointed as guardian of the person of Kate Moore (the conservatee) and that Bank of America be appointed as guardian of her estate. According to the petition, the conservatee was elderly, recently had a stroke, and she could no longer take care of herself or her property. Shortly after the petition was filed, a third party filed a competing petition to be appointed conservator. (Id. at p. 460.) The trial court denied the physician's petition and appointed the third party to serve as conservator of the person. After the orders were entered, the physician's attorney filed a motion seeking an award of his fees for services rendered in preparing the unsuccessful petition. The trial court granted the motion, ruling the attorney's professional services were "'necessary to safeguard the welfare and best interests of the conservatee.'" (Ibid.)
Bank of America, appointed as the conservator of the estate, appealed the award, arguing the trial court was "without authority to compensate an unsuccessful petitioner for appointment as guardian." (Estate of Moore, supra, 258 Cal.App.2d at p. 460.) In support of its appeal, the bank argued that while the Probate Code allowed guardians, conservators, and their attorneys to be compensated for expenses incurred in petitioning for appointment, the code did not "authorize compensation or reimbursement of expenses for one who has unsuccessfully petitioned for appointment." (Id. at p. 460.)
In beginning its discussion, the Court of Appeal observed the bank's "major premise, that an unsuccessful petitioner for appointment of a guardian or conservator does not earn the right to reimbursement from the estate is generally sound. If the appointment of a guardian or conservator is sought and denied, it usually follows that (1) a caretaker was not needed, and (2) no estate comes under the control of the court from which compensation could be ordered. We think the bank is on solid ground when it argues that a volunteer earns no right to reimbursement for rendering services which have proved unnecessary." (Estate of Moore, supra, 258 Cal.App.2d at p. 461.) However, the court further concluded that, on the record before it, the bank's general law did not apply. The record in the case showed that although the physician's petition had been denied, "substantial success attended his petition and substantial benefits accrued to [the conservatee]" because the physician's initiative in filing the petition served to inform the court and others of the conservatee's condition and her need for a caretaker, and a caretaker had in fact been appointed, which was the physician's ultimate goal. (Id. at pp. 461-462.)
The court proceeded to consider the question of "whether in the absence of statutory authorization, one who in good faith initiates caretaker proceedings in which a guardian or conservator other than the initiator is appointed may be awarded his costs and counsel fees." (Estate of Moore, supra, 258 Cal.App.2d at p. 462.) The court answered that question in the affirmative. It explained under such circumstances, a probate court would have equitable power to award fees:
"Such a petitioner performs a service to the disabled by notifying the court of the disabled's condition and need for protection. If compensation were not available, responsible parties might be discouraged from initiating effective action and becoming parties to caretaker proceedings whose primary benefits accrue to other persons.... [¶] In analogous situations the broad policy of encouraging persons acting in good faith in the interests of
an incompetent has been followed, and compensation has been generally allowed for professional services." (Estate of Moore, supra, 258 Cal.App.2d at p. 462.)
A distinct additional ground for the outcome in Estate of Moore was the applicability of the equitable common-fund doctrine, which allows attorney fees where one has protected, preserved, or increased a fund for the benefit of numerous parties. (Estate of Moore, supra, 258 Cal.App.2d at p. 463.)
In Conservatorship of Cornelius (2011) 200 Cal.App.4th 1198 (Cornelius), the court followed Estate of Moore in concluding a temporary conservator could obtain attorney fees even though a permanent conservatorship was never established. The court explained "[t]he deciding factor in awarding reimbursement in a conservatorship proceeding is not whether a permanent conservatorship is established but whether expenses were incurred in good faith and in the best interests of the proposed conservatee." (Cornelius, supra, at p. 1205.) Using similar reasoning as articulated in Estate of Moore, the court in Cornelius found the "petition to appoint a permanent conservator, and appointment of a temporary conservator pending resolution of that petition, may well benefit the conservatee even if a permanent conservatorship is never established." (Cornelius, supra, at p. 1205.) In finding the petition for a temporary and permanent conservatorship was in fact beneficial to the conservatee, the court noted during the brief duration of the temporary conservatorship there were indications of improved medical care, more regular taking of medications, better living conditions, and the removal from the home of people who had been abusing the conservatee financially. (Cornelius, supra, at pp. 1206-1207.)
However, Cornelius also rested on statutory grounds since, as the court held, the statutory provisions for attorney compensation make no distinction between temporary and permanent conservators. (Cornelius, supra, 200 Cal.App.4th at pp. 1205-1206.) Here, in contrast, we have found the statutory provisions did not apply.
As the Cornelius case reflects, Estate of Moore remains good law. Although it is true section 2640.1 appears to have codified the particular holding in Estate of Moore, that section did not preclude the case's continuing applicability to allow attorney fees on equitable grounds.
In the present case, we conclude Estate of Moore is on point and cannot be meaningfully distinguished. Michael and Jenna initiated a petition for conservatorship of Benjamin's person and estate, and that petition served the vital role of informing the court and others of Benjamin's deteriorating health and inadequate care under Butch's oversight. Although Michael and Jenna initiated the conservatorship process, they did not seek their own appointment as conservators. Rather, they proposed a neutral third party—the Public Guardian—should be appointed, and the Public Guardian was in fact appointed as conservator. Therefore, the petition for conservatorship was successful in its goals, thereby facilitating the needed appointment of the Public Guardian as conservator and, as implicitly found by the trial court in its order awarding fees, such efforts were beneficial to Benjamin, the conservatee.
Therefore, in accordance with the equitable principles and conservatorship policy considerations relied upon in Estate of Moore, as more fully set forth ante, we conclude Amador was entitled to an award of compensation for her attorney services facilitating the appointment of the Public Guardian as conservator of Benjamin's person and estate, including services rendered by her up to and including the date of the Public Guardian's appointment. However, because the dispositive rationale in Estate of Moore related solely to attorney services facilitating the initial appointment of a conservator, we do not believe the same rationale may be used to justify an award of compensation for services rendered after the conservatee was placed into the protective care of a conservator. Consequently, we conclude the trial court erred to the extent it awarded attorney fees to Amador for her services rendered after the Public Guardian was appointed as the conservator for Benjamin's person and estate. Such postappointment fees were not available under the court's equitable power in this particular case and, as discussed ante, could not be awarded under section 2642.
We note no other equitable grounds, such as the common fund doctrine, were raised in the trial court or otherwise indicated on this record.
Accordingly, the trial court's attorney fee award is reversed in part. On remand, the trial court shall correct the amount of the award by deducting therefrom the amount of attorney fees and costs attributable to services performed after the date of the Public Guardian's appointment as the conservator of Benjamin's person and estate. Thereupon, a new order stating the corrected amount and granting to Amador an award of attorney fees and costs payable from the conservatorship estate shall be entered by the trial court.
III. Statute of Limitations
Finally, Butch argues Amador's petition for attorney fees was barred by the statute of limitation set forth in Code of Civil Procedure section 366.2. That section provides a one-year limitation period measured from "the date of death" for maintaining an action against a deceased person based on a "liability of the person." (Code Civ. Proc., § 366.2, subd. (a).) The trial court rejected Butch's statute of limitations argument, pointing out the subject petition for attorney fees was not an action against Benjamin personally, but was a matter relating to the reasonable expenses of the conservatorship estate. The trial court's ruling was clearly correct. This was not a liability or action against Benjamin personally. Attorney fees in this context are deemed expenses of the conservatorship estate itself and, in essence, constitute a cost of the caretaker proceedings or expenses of the conservator or guardian. (See Estate of Ehle (1968) 267 Cal.App.2d 24, 29.) Furthermore, after the death of a conservatee or ward, the probate court retains jurisdiction within the continuing conservatorship or guardianship proceeding to award attorney fees and related expenses or to settle accounts of the conservator or guardian. (Ibid.; see § 2630) Butch has not argued a statutory deadline exists, or was violated, in regard to the completion of that settling or winding-up process of the conservatorship estate. Moreover, under the statute permitting an attorney to petition directly for his or her fees, it states such petition may be brought "[a]t any time permitted by Section 2640" (§ 2642, subd. (a)), which the trial court held was clearly met here. As the trial court found, the petition for attorney fees was timely under the relevant Probate Code provision.
For all of these reasons, we reject Butch's contention the petition for attorney fees filed by Amador was barred under the statute of limitation set forth in Code of Civil Procedure section 366.2.
DISPOSITION
The trial court's order awarding attorney fees is reversed in part, and the matter is remanded to the trial court to correct the amount of the award in a manner consistent with this opinion. Each party is to bear its own costs.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
SMITH, J.