Opinion
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. A245727 consol with No. 30-2008-00115642, Mary Fingal Schulte, Judge.
Law Offices of Patricia A. Painter and Patricia A. Painter for Objectors and Appellant.
Sullivan, Hill, Lewin, Rez & Engel and Candace M. Carroll for Petitioner and Respondents.
OPINION
RYLAARSDAM, ACTING P. J.
This appeal is from a postjudgment order entered in a consolidated probate matter and civil action that awarded petitioner Lewis P. Brown and his brother John J. Brown (collectively respondents) recovery of their attorney fees and prejudgment interest against objector Douglas A. Brown (appellant). The case is related to another pending appeal brought by appellant from the judgment in the underlying case, Estate of Brown, G043282.
Appellant attacks the postjudgment order, arguing respondents failed to timely seek recovery of their attorney fees and interest. He also claims there is no statutory basis for the fee award, and a request for prejudgment interest cannot be awarded in this type of postjudgment proceeding.
We agree with appellant’s latter two grounds and reverse the postjudgment order in its entirety. But since we are reversing the judgment in the related appeal, respondents will be entitled to again attempt to establish a right to recover prejudgment interest upon remand to the superior court.
FACTS AND PROCEDURAL BACKGROUND
After trial, the probate court issued a minute order ruling on the merits of the probate petition and appellant’s complaint. The minute order directed petitioner to prepare a judgment and declared “[a]ny request for attorney[] fees is to be made by noticed motion....” Petitioner prepared and submitted a judgment which, after making some changes by interlineations, the court signed and filed on December 21. The judgment contained a provision declaring “[p]etitioner’s... request for attorney[] fees and interest shall be determined by noticed motion....” The court clerk mailed a copy of the filed judgment to the parties December 22.
On February 25, 2010, respondents filed a motion for attorney fees and prejudgment interest. They presented two theories to support the fee request. First, noting decedent named appellant as executor in his holographic will, respondents argued he “was obligated to implement the [d]ecedent’s estate plan” and his breach of that obligation rendered him “personally liable for... damages” under Probate Code sections 9601 and 9603. Second, citing the probate court’s finding appellant held title to the Leisure World residence under either a resulting or constructive trust, they argued his failure “to distribute the... Leisure World residence” violated “the duty he, as trustee, owed the beneficiaries....” Respondents claimed Probate Code sections 1600, 16420, and 16440 and related case law also supported a recovery of their attorney fees.
As for prejudgment interest, respondents argued they were entitled to recover it from either the date of their “father’s death” or the date of the promissory notes at the rate of 10 percent a year.
Appellant opposed the motion. In part, he argued respondents failed to timely file it, no legal basis existed for an award of attorney fees, and prejudgment interest is an “element[] of a damage claim to be decided by [the] trier of fact, not the subject of a later post[]judgment motion.”
Respondents filed a reply. In part, they argued the time requirements for seeking an award of attorney fees in civil actions did not apply to probate proceedings and, even if they did, they were entitled to be relieved from the default.
After a hearing, the probate court issued a minute order granting respondents’ motion and awarded them over $38,000 in attorney fees and over $23,000 in prejudgment interest to each respondent. The court found they were entitled to relief from default in failing to timely file the motion. As for the fee request, it declared the trial judge’s minute order “suggested that [appellant] had no reasonable basis for acting as he did....” Citing case law “[i]n the context of trust litigation, ” the court ruled “appellate courts have affirmed the probate court’s equitable powers to charge awarded fees against the trust interest of beneficiaries who bring unfounded suits against trustees, against trustees who refuse to distribute trust assets... obligated under trust provisions, or who commit breaches of trust.... Granted, this was not a trust case, but the principle of the probate court’s equitable powers remains the same.” Finally, although acknowledging appellant’s arguments opposing the request for prejudgment interest, citing Civil Code section 3287, subdivision (a), the court awarded each respondent interest “from the date the note is owed....”
DISCUSSION
1. The Scope of Review
Appellant repeats his claim respondents failed to timely file their postjudgment motion for attorney fees. He also contends respondents cannot recover prejudgment interest because it constitutes an element of damages that had to be requested no later than the time for filing a new trial motion and they failed to establish a date from which they were entitled to recover interest.
Since we reverse the judgment in the related appeal from the underlying judgment, the issues concerning the timeliness of respondents’ postjudgment motion and their right to prejudgment interest are moot. They will have another opportunity to timely seek and attempt to establish a right to prejudgment interest before entry of a new judgment. Thus, we proceed to resolve the only remaining issue, respondents’ right to attorney fees.
2. The Attorney Fee Request
Appellant claims respondents were not entitled to recover attorney fees in this case because no statutory or contractual basis exists for an award. Respondents dispute his argument. First, citing Probate Code section 9601 and the fact decedent’s will appointed appellant executor of the estate, respondents claim appellant was a fiduciary and claim case law holds “where fiduciaries’ breaches of trust cause loss to the estate or necessitate legal expenses, probate courts will exercise their discretion to assign such losses and expenses to the disloyal fiduciaries....” Second, citing Probate Code sections imposing similar liability on the trustees of express trusts and cases involving express trusts, respondents contend “no explicit statutory basis is required for an award of attorney fees....” We conclude respondents’ arguments lack merit.
“‘On review of an award of attorney fees after trial, the normal standard of review is abuse of discretion. However, de novo review of such a trial court order is warranted where the determination of whether the criteria for an award of attorney fees... have been satisfied amounts to statutory construction and a question of law.’” (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.) In this case, the right to recover attorney fees presents a question of law subject to de novo review.
Code of Civil Procedure section 1021 declares, “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement... of the parties....” This statute constitutes a codification of the American rule (Soria v. Soria (2010) 185 Cal.App.4th 780, 785), and it applies in probate proceedings (Estate of Beach (1975) 15 Cal.3d 623, 646; Estate of Gerber (1977) 73 Cal.App.3d 96, 117; Estate of Myers (1964) 230 Cal.App.2d 465, 467). Thus, “[t]here is no general rule which permits the recovery of attorney’s fees by a successful litigant. Compensation for the services of an attorney must ordinarily be paid by the client employing him, in the absence of exceptional circumstances....” (Estate of Marre (1941) 18 Cal.2d 191, 192.)
Here, there is no contract between the parties providing for an award attorney fees. Nor do any statutes cited by respondents entitle them to an award of fees.
Probate Code section 9601 applies to a “personal representative” and declares that, unless the court finds a representative “acted reasonably and in good faith under the circumstances, ” he or she “is chargeable with” “[a]ny loss or depreciation in value of the decedent’s estate, ” “[a]ny profit made by the personal representative, ” and “[a]ny profit that would have accrued to the decedent’s estate....” Under Probate Code section 9603, “Section[] 9601... do[es] not prevent resort to any other remedy available against the personal representative under the statutory or common law.”
First, appellant is not now, nor has he ever served as, the court-appointed personal representative of the estate. Respondents cite the fact their father named appellant as the executor in his holographic will. But the probate court rejected appellant’s petition to be appointed executor, choosing instead to appoint petitioner as administrator of the estate. Furthermore, even if Probate Code sections 9601 and 9603 apply to a de facto personal representative, the statutes do not expressly provide for recovery of attorney fees or litigation expenses and there is no case law declaring these statutes create such a right.
Both the probate court and respondents relied on the decision in Estate of Fain (1999) 75 Cal.App.4th 973 to support the fee award. That case is inapposite. Fain involved an action against the former administrator of an estate awarding relief, including attorney fees, based on the prior administrator’s failure to properly manage the estate’s assets. The litigation arose from the respondents’ objections to the former administrator’s untimely filed final account. Because of the former administrator’s fiduciary breaches, extensive discovery was required to identify estate assets.
In support of the fee award, the Court of Appeal cited Probate Code section 8804, which allows for an award of fees where a “personal representative refuses or negligently fails to [timely] file an inventory and appraisal” (Prob. Code, § 8804, subds. (a) & (c)). (Estate of Fain, supra, 75 Cal.App.4th at p. 992.) Citing evidence the former administrator “had failed to marshall all of the estate’s assets and had failed to file a full and complete inventory, thereby necessitating the estate to undertake extensive discovery in order to identify estate assets” (ibid.), Fain also relied on Estate of Gerber, supra, 73 Cal.App.3d 96, which held that, under the Probate Code, “[t]he elements of surcharge representing extraordinary attorney’s fees and executor’s commissions not directly related to the litigation constitute administration expenses which are ordinarily awarded upon a showing that the charges are reasonable and that the services were necessarily incurred in administration [citations]” (id. at p. 118). (Estate of Fain, supra, 75 Cal.App.4th at pp. 992, 994; see also Prob. Code, § 10800 et seq.)
This case does not involve a similar situation. As noted appellant was never appointed the estate’s personal representative and there has been no attempt to recover expenses and fees for extraordinary services to the estate. Furthermore, in denying respondents’ request for a doubling of the recovery under Probate Code section 859, the trial judge expressly rejected their claim appellant had acted in bad faith.
As mentioned above, the general rule precluding an award of attorney fees other than by contract or statute is not absolute. The Supreme Court has recognized fees can be awarded in “exceptional circumstances.” (Estate of Marre, supra, 18 Cal.2d at p. 192.) In Marre, the court stated: “[T]here are certain actions in equity where the courts will award attorney’s fees to a litigant. [Citations.] Thus, plaintiffs who have succeeded in protecting, preserving or increasing a fund for the benefit of themselves and others may be awarded compensation from the fund for the services of their attorneys. [Citations.]” (Ibid.; see also Estate of Reade (1948) 31 Cal.2d 669, 672 [“This [rule] is to compel those for whose benefit the action or proceeding was taken to bear their share of the expenses of the litigation”].) But respondents expressly acknowledged “[t]he[ir]... motion... seeks the payment of... attorney fees not from the estate but from [appellant].” Consequently, the exceptional circumstance recognized in Estate of Marre does not apply here.
Respondents’ and the probate court’s reliance on Probate Code sections 16400 et seq. and cases involving express trusts also lacks merit. First, the trial judge found appellant held title to the Leisure World residence for the benefit of the estate under either a resulting or constructive trust with the sole obligation of transferring title and possession to petitioner for estate administration. The Probate Code does not apply to resulting trusts and only applies to constructive trusts if “created or determined by a judgment... under which the trust is to be administered in the manner of an express trust.” (Prob. Code, § 82, subds. (a)(2) & (b)(1).) That did not occur here.
Second, none of the statutes cited expressly support an award of attorney fees. Probate Code section 16400 merely declares a breach of trust includes “[a] violation by the trustee of any duty that the trustee owes the beneficiary....” Probate Code section 16420 lists the remedies available to a beneficiary for a breach or threatened breach of trust. It does not provide for an award of attorney fees. Probate Code sections 16440 and 16441 describe the measure of a trustee’s liability for a breach of trust in a manner similar to Probate Code sections 9601 through 9603. Again, there is no provision authorizing recovery of attorney fees.
Finally, none of the cases involving express trusts cited in the probate court’s minute order and relied on by respondents support the fee award. Rudnick v. Rudnick (2009) 179 Cal.App.4th 1328 concerned an award of attorney fees payable from the trust under the probate court’s equitable powers. (See Estate of Marre, supra, 18 Cal.2d at p. 192.) The appellant-beneficiaries did not dispute the court’s authority to make such an award, but objected to the portion of the court’s order charging the fees to their future trust distributions. Chatard v. Oveross (2009) 179 Cal.App.4th 1098 concerned a spendthrift trust. The probate court issued a surcharge order impounding the interest of a party who was both the trustee and a beneficiary of the trust. The issue presented was whether, in light of the spendthrift provision, the probate court could impose such a remedy. Finally, Leader v. Cords (2010) 182 Cal.App.4th 1588 reversed an order denying the beneficiaries’ request for an award of attorney fees, finding the underlying litigation constituted a matter related to an accounting, which triggered a right to recover attorney fees as expressly provided for in Probate Code section 17211.
Thus, we conclude no basis exists to support the attorney fee award in this case.
DISPOSITION
The postjudgment order is reversed and the matter remanded to the superior court for further proceedings not inconsistent with this opinion. Appellant shall recover his costs on appeal.
WE CONCUR: MOORE, J., O’LEARY, J.