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Estate of Daley

California Court of Appeals, First District, First Division
Sep 16, 2008
No. A120213 (Cal. Ct. App. Sep. 16, 2008)

Opinion


Estate of GERTRUDE C. DALEY, Deceased. GREGORY P. O’KEEFFE, as Administrator, etc., Petitioner and Respondent, v. RONALD DALEY, Objector and Appellant. A120213 California Court of Appeal, First District, First Division September 16, 2008

NOT TO BE PUBLISHED

City & County of San Francisco Super. Ct. No. PES-94-262684

Swager, J.

Appellant Ronald Daley appeals the portion of the probate court’s order requiring his late mother’s estate to pay attorney fees for counsel that represented Gregory O’Keeffe, the administrator of the estate, in connection with the preparation of the statement of decision filed by the trial court on November 28, 2006. He also objects to the award of attorney fees for preparing O’Keeffe’s second fee petition. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This is the fifth appeal arising out of this contentious and seemingly interminable estate proceeding. Appellant’s sixth and seventh appeals are pending.

The four prior appeals were O’Keeffe v. Daley (Oct. 11, 2006, A109762 [nonpub. opn.]), the consolidated cases, Estate of Gertrude Daley; O’Keeffe v. Daley (Jan. 7, 2008, A113999, A116232 [nonpub. opn.]), and Estate of Gertrude Daley; O’Keeffe v. Daley (Apr. 29, 2008, A118233 [nonpub. opn.]). The court takes judicial notice of these opinions. (See Evid. Code, §§ 452, subd. (d), 459.)

A120596 and A121671.

It is unnecessary to recount the factual background of this protracted estate proceeding in any detail, as this case is well known to the parties and to this court. In appeal number A109762, we affirmed the sale of real property owned by the estate and reversed a judgment against appellant for his alleged debt to the estate.

On April 12, 2006, O’Keeffe filed a fee petition (Fee Petition One) seeking authority to pay his attorney Daniel A. Conrad for services rendered from April 1, 2005, to March 31, 2006, with respect to appeal number A109762. The petition was approved and, in appeal number A116232, we affirmed the probate court’s order requiring the estate to pay $25,704.83 in attorney fees. In appeal number A113999, which we consolidated with appeal number A116232, we affirmed three other court orders that were contested by appellant.

On April 27, 2007, O’Keeffe filed a petition (Fee Petition Two) for approval of payment of $48,667.03 in attorney fees to Conrad for legal services rendered between April 1, 2006, and February 28, 2007, with respect to the first three appeals.

On July 6, 2007, appellant filed his objection to the petition.

On July 13, 2007, the probate court ordered Conrad to file a supplemental declaration identifying the specific appeals for which the services described in his initial declaration were performed.

On July 23, 2007, Conrad’s associate, Robin Rudderow, filed a supplemental declaration in support of the petition. Among other items, Rudderow’s declaration indicates that Conrad’s office billed a total of $5,932 for services provided in connection with Fee Petition One. The declaration states: “The bulk of our time related to [Fee Petition One] was spent researching, preparing and, at the [probate] court’s request, revising several drafts of the Judgment and the Statement of Decision which was requested by [appellant].” The declaration also identifies $1,254 as having been billed in connection with Fee Petition Two.

On October 2, 2007, the probate court filed its order allowing, in part, the fees requested in Fee Petition Two. The court authorized the following payments: (a) $5,538 for services relating to appeal number A109762; (b) $605.53 as reimbursement of costs relating to appeal number A113999; (c) $5,932 for services relating to Fee Petition One; and (d) $1,254 for legal services relating to Fee Petition Two. The court deferred ruling on the remaining requested fees pending the finality of appeal number A113999 and appeal number A116232.

Appellant challenges $3,762 out of the $5,932 awarded in fees with respect to Fee Petition One. He claims this amount represents the time Conrad spent preparing the proposed statement of decision for the probate court. Appellant also challenges the award of $1,254 for fees incurred in connection with Fee Petition Two.

DISCUSSION

I. Standard of Review

“Allowance of litigation expenses rests in the sound discretion of the trial court, whose ruling will not be disturbed on appeal absent an abuse.” (Whittlesey v. Aiello (2002) 104 Cal.App.4th 1221, 1230.)

“ ‘ “The term [judicial discretion] implies the absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. [¶] To exercise the power of judicial discretion all the material facts in evidence must be known and considered, together also with the legal principles essential to an informed, intelligent and just decision.” [Fn. omitted.]’ [Citations.]” (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1448–1449.)

Under this standard, a “ ‘showing on appeal is wholly insufficient if it presents a state of facts, a consideration of which, for the purpose of judicial action, merely affords an opportunity for a difference of opinion. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. To be entitled to relief on appeal from the result of an alleged abuse of discretion it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice . . . .’ [Citation.]” (Estate of Gilkison, supra, 65 Cal.App.4th 1443, 1449.)

II. Fees for Representation of Administrator

In seeking authorization to pay Conrad’s fees, O’Keeffe was requesting “extraordinary” compensation from the estate. A personal representative and its attorney may obtain “ordinary” (statutory) compensation or “extraordinary” compensation for services rendered in the administration of the estate. (See Estate of Hilton (1996) 44 Cal.App.4th 890, 894–895 (Hilton).)

Ordinary statutory compensation—for the more typical services rendered to collect, care for, maintain, and preserve estate property—is usually approved in accordance with a compensation schedule set forth in the Probate Code. (Prob. Code, §§ 10800, 10810; see Ross, Cal. Practice Guide: Probate (The Rutter Group 2007) ¶¶ 16:321 to 16:323, pp. 16–96 to 16–97 [ordinary services include: personal representative’s routine tasks, such as marshaling and inventorying assets, processing claims, collecting rents and receipts, and maintaining the estate books; attorney services routinely incident to estate administration, such as interviewing the client, preparing the initial petition, inventories, status reports and routine probate proceedings, and handling debts and claims].) Compensation for ordinary services is mandatory.

“Extraordinary” compensation may be authorized for exceptional or nonroutine services, to the extent the court in its discretion deems such compensation “just and reasonable.” (Prob. Code, §§ 10801, subd. (a), 10811, subd. (a); Cal. Rules of Court, rule 7.703; see Estate of Trynin (1989) 49 Cal.3d 868, 873; Hilton, supra, 44 Cal.App.4th 890, 894–895; Ross, Cal. Practice Guide: Probate, supra, ¶ 16:325, pp. 16–97 to 16–98 [extraordinary services include sales of real or personal property, carrying on decedent’s business pursuant to court order, court proceedings to determine the testator’s intention concerning undisclosed beneficiaries, defense of personal representative’s account, securing a loan to pay estate debts].)

“The Probate Code authorizes payment of the executor’s attorney’s fees out of the estate for ‘such other litigation or special services as may be necessary for the executor or administrator to prosecute, defend, or perform.’ [Citations.] Where the statutory authorization applies, the attorney’s fees are paid from the estate as an expense of administration . . . . Allowance of attorney’s fees is within the discretion of the probate court, and when the court has made its determination in respect thereto, its judgment will not be interfered with on appeal except only in the face of a plain abuse of discretion. [Citation.] Whether the attorney’s services have conferred a benefit on the estate is merely one of several factors which the court may consider in exercising its discretion.” (Estate of Stokley (1980) 108 Cal.App.3d 461, 473.)

III. Fees Incurred in Preparing the Statement of Decision

Appellant objects to the payment of $3,762, which he claims represents the portion the award allocated for services rendered in preparing the statement of decision pertaining to Fee Petition One. He claims that Conrad is not entitled to compensation because this court, in our prior opinion in the consolidated appeal, observed that a statement of decision was not statutorily required. This argument fails.

We first note that appellant himself asked the probate court for a statement of decision regarding its ruling on Fee Petition One. (Estate of Gertrude Daley; O’Keeffe v. Daley (Jan. 7, 2008, A113999, A116232 [nonpub. opn.]), p. 6.) Thereafter, the court ordered O’Keeffe to prepare a proposed statement in response to appellant’s request. (Ibid.) Appellant now claims that the proposed statement of decision was “a frivolous and unnecessary document.” This contention is manifestly inconsistent with his earlier request that a statement of decision be prepared.

Appellant contends that the doctrine of “the law of the case” precludes the award of attorney fees. The law of the case doctrine holds that when an appellate opinion states a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to through its subsequent progress in the lower court and upon subsequent appeal. (People v. Ramos (1997) 15 Cal.4th 1133, 1161; Clemente v. State of California (1985) 40 Cal.3d 202, 211–212.) For the doctrine to apply, “ ‘ “the point of law involved must have been necessary to the prior decision, . . . the matter must have been actually presented and determined by the court, and . . . application of the doctrine will not result in an unjust decision.” [Citations.]’ [Citation.]” (People v. Ramos, supra, at p. 1161.) “The principal reason for the doctrine is judicial economy. ‘Finality is attributed to an initial appellate ruling so as to avoid the further reversal and proceedings on remand that would result if the initial ruling were not adhered to in a later appellate proceeding.’ [Citation.]” (People v. Stanley (1995) 10 Cal.4th 764, 786–787.)

In our prior opinion, we stated the rule that “ ‘A statement of decision is not required regarding an award of attorney fees [made] pursuant to a motion.’ [Citation.]” (Estate of Gertrude Daley; O’Keeffe v. Daley (Jan. 7, 2008, A113999, A116232 [nonpub. opn.]), p. 12.) We cited this rule solely in response to appellant’s argument that the statement of decision was untimely filed under California Rules of Court, rule 232 [current rule 3.1590] and Code of Civil Procedure section 632. (Estate of Gertrude Daley; O’Keeffe v. Daley (Jan. 7, 2008, A113999, A116232 [nonpub. opn.]), p. 12.) We did not hold that the statement itself was either “frivolous” or “unnecessary.” We simply found that appellant’s timeliness objection was inappropriate given that section 632 applies only “ ‘when there has been a trial followed by a judgment.’ [Citation.]” (Estate of Gertrude Daley; O’Keeffe v. Daley (Jan. 7, 2008, A113999, A116232 [nonpub. opn.]), p. 12.) The point of law we addressed did not pertain to the issue raised by appellant here, namely, whether Conrad is entitled to compensation for preparing the proposed statement of decision as ordered by the probate court. Accordingly, the law of the case doctrine does not apply.

Appellant further claims that the time Conrad spent preparing the statement of decision was excessive and unreasonable. Conrad billed approximately 14 hours in preparing the statement and its revisions. We note that the final version of this document is 11 pages long. We also note that after O’Keeffe submitted the first version of the proposed statement of decision, the probate court ordered him to prepare a more detailed draft. (Estate of Gertrude Daley; O’Keeffe v. Daley (Jan. 7, 2008, A113999, A116232 [nonpub. opn.]), p. 6.) This order was issued in response to appellant’s seven-page request for a statement of decision. (Ibid.) Under these circumstances, we are unable to conclude that the amount billed by Conrad is unreasonable. In sum, the court did not abuse its discretion in awarding fees for the preparation of the proposed statement of decision regarding Fee Petition One.

IV. Fees Incurred in Connection with Fee Petition Two

Appellant claims the probate court erred in awarding $1,254 for time spent preparing Fee Petition Two. He claims that these charges are “a fee for fees for fees” and are not allowed under Estate of Trynin, supra, 49 Cal.3d 868 (Trynin).

In holding that attorneys who represent executors and administrators of a decedent’s estate may properly be awarded fees reasonably incurred in defending their fee petitions, the court in Trynin observed: “It has sometimes been argued, as a reason for denying fees for fee-related services, that permitting such awards will result in the ‘Kafkaesque judicial nightmare’ of an ‘infinite regression of [fees] litigation’ in which each request for fee-related fees is contested and results in yet another request for fee-related fees. [Citation.] Experience in statutory fee-shifting contexts suggests that this perceived problem is largely theoretical and seldom arises in practice. In any event, we are confident that trial courts, in the exercise of the broad discretion granted them in ruling on fee applications, have the means to resolve this problem should it arise.” (Trynin, supra, 49 Cal.3d 868, 879.) Relying on this passage, appellant asserts that the $1,254 award to Conrad for the preparation of Fee Petition Two is “unjustifiable under any rationale.”

Trynin did not hold that fees for fee-related services are never allowable. Rather, Trynin observed that to the extent such fee requests are problematic, probate courts have the discretion to deny them. Thus, Trynin does not stand for the proposition that courts commit an abuse of discretion whenever they authorize the award of such fees. Nor do we believe that the present case has evolved into the “Kafkaesque judicial nightmare” feared by the court in Trynin, at least not with respect to the fee petitions in question. Given the applicable standard of review, we will not substitute our judgment for the judgment of the probate court.

DISPOSITION

The order is affirmed.

We concur: Marchiano, P. J., Margulies, J.


Summaries of

Estate of Daley

California Court of Appeals, First District, First Division
Sep 16, 2008
No. A120213 (Cal. Ct. App. Sep. 16, 2008)
Case details for

Estate of Daley

Case Details

Full title:Estate of GERTRUDE C. DALEY, Deceased. v. RONALD DALEY, Objector and…

Court:California Court of Appeals, First District, First Division

Date published: Sep 16, 2008

Citations

No. A120213 (Cal. Ct. App. Sep. 16, 2008)