Plaintiff and Respondent, v. LOWTHORP RICHARDS McMILLAN MILLER TEMPLEMAN (2011)

The Trial Court Abused its Discretion by Denying

The Attorney Fee Application Without a Fair Hearing

As part of its supervision over trusts, a probate court has a special responsibility to ensure that fee awards are reasonable.  (Donahue v. Donahue (2010) 182 Cal.App.4th 259, 269.)  “Presented with a section 17200 petition to settle an account, ‘the probate court has a duty imposed by law to inquire into the prudence of the trustee's administration.’ ”  (Schwartz v. Labow (2008) 164 Cal.App.4th 417, 427.)  “[A]ttorney fees deriving from probate court litigation are subject to concerns sufficiently unique, we believe, to distinguish them from fees generated in ordinary civil litigation.”   (Hollaway v. Edwards (1998) 68 Cal.App.4th 94, 98.)

Absent evidence supporting the amount claimed for fees, including the firm's billing records, the trial court would be correct in denying the claim over objection.  (See, e.g., Donohue v. Donohue, supra, 182 Cal.App.4th at p. 268 [“ ‘․ it is imperative in trust litigation that records support the contentions of the trustee and others that the trust should pay the disputed compensation and fees' ”].)   Merely presenting billing records to the trustee is not sufficient.   Due to the trial court's “special responsibility” to ensure that fee awards are reasonable, the court must be provided with billing records (redacted to protect confidentiality, if necessary) or other evidence, enabling it to determine the reasonableness of the attorney fee request.

Here, the trial court abused its discretion by denying attorney fees without reviewing the proffered evidence documenting those fees and without determining whether the Trust's provision for “health, maintenance and support” authorizes payment of Kakimoto's attorney fees from the Trust, the very records it had but moments before requested.³  Therefore, we will remand for determination of those issues.   On remand, the noticed motion procedure required by

The order is reversed and the matter is remanded to the trial court to determine whether attorney fees are authorized by the terms of the Trust and, if so to

whom they are to be paid.   The parties shall bear their own costs on appeal.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

J. William McLafferty, Judge

Superior Court County of Santa Barbara

Lowthorp Richards McMillan Miller & Templeman and Darin Marx for Defendants and Appellants.

Reicker, Pfau, Pyle & McRoy LLP, Alan A. Blakeboro and Diana Jessup Lee for Real Party in Interest and Respondent Yuki.

No appearance for Plaintiff and Respondent Kennedy.

FOOTNOTES

FN3. Counsel for respondent urges that the provision in the settlement requiring that each side bear its own attorney fees suggests that appellant implicitly acknowledged that the trust would not be responsible for counsel's fees.   Of course the issue of the payment of fees for “health, maintenance and support” is before the court.   But the mere statement that each side bears its own fees suggests that neither would be accountable for the fees of the other..  FN3. Counsel for respondent urges that the provision in the settlement requiring that each side bear its own attorney fees suggests that appellant implicitly acknowledged that the trust would not be responsible for counsel's fees.   Of course the issue of the payment of fees for “health, maintenance and support” is before the court.   But the mere statement that each side bears its own fees suggests that neither would be accountable for the fees of the other.