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Probate Law & Motion

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Unless notification to the probate clerk has been given as provided above, the tentative rulings shall become the rulings of the court at 3:15 p.m. on the day of the hearing. 

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Tentative Rulings

June 11, 2026, at 3:00 p.m.  

  1. Matter of Gina Stieb Trust
    23PR00269
    Motion for Attorney’s Fees

Tentative Ruling:  Costs are GRANTED in the amount stated in the Memorandum of Costs filed February 13, 2026. M. Todd Gilbert is personally liable for the amounts awarded, which must be paid to the movant within 60 days of notice of entry of the order on this motion. The Court notes that the opposition to this motion does not contest the amount of costs sought, and there is no motion to strike or tax costs.

As to the request for attorney fees, the only possible legal basis cited in the moving papers for the fee award on the facts here is California Probate Code §859.  In examining whether that section allows the Court authority to grant the motion, the Court considers the trust petition and objection, and notes the cross-complaint was adjudicated by stipulated settlement.  The Court’s recollection is that any additional claims arising from the cross-complaint were waived as part of the settlement.  However, neither side has submitted a copy of the transcript of the hearing at which the terms of the settlement were stated for the record, or addressed whether the settlement expressly addressed an award of attorney fees and costs, or whether that was reserved for later determination.  The Court’s recollection is that attorney fees and costs were not expressly addressed by the stipulated settlement but were reserved.

The trust petition includes a claim that respondents wrongfully took, concealed, and/or disposed of the property belonging to Gina, a dependent adult at the time, through the commission of financial abuse as defined in Section 15610.30 of the Welfare and

Institutions Code.  In the petition’s prayer for relief, attorney fees and costs pursuant to Probate Code §859 are also sought for respondents’ bad faith in taking the property of a dependent adult.  The objection filed by respondents included in its request for relief, double damages under Probate Code §859.  (However, other than ancillary relief, such as attorney fees and costs, a court generally does not award affirmative relief on an objection.)  The Court notes that it struck from the proposed judgment a section addressing a reservation of claims under §859, as the judgment did not memorialize an adjudication of such affirmative claims.  The issues decided at trial by the Court’s Amended Statement of Decision did include damages for financial elder abuse.   It did not include an adjudication of any wrongful taking. 

Section 859 is a statute that has two distinctly separate components.  The first part addresses when double damages may be awarded.  That component, and the case law addressing it, are not at issue in the present motion.  The second part addresses when attorney fees may be awarded:

In addition, except as otherwise required by law, including Section 15657.5 of the Welfare and Institutions Code, the person may, in the court's discretion, be liable for reasonable attorney's fees and costs. The remedies provided in this section shall be in addition to any other remedies available in law to a person authorized to bring an action pursuant to this part.

Double recovery under the first component of Probate Code §859 is predicated on a finding of bad faith taking of trust property and adjudication of a right to recovery of that property; Only then does the court assess liability for twice the value of the property recovered by an action under this part. Asaro v. Maniscalco (2024) 103 Cal.App.5th 717, 740.  Petitioner argues this point, calling into question the Court’s jurisdiction to make an award under §859. The Petitioner’s argument conflates the issues of double recovery of the value of property recovered (under the first component of §859) with the issue of recovery of attorney fees (under the second component of §859.) The attorney fees language of §859 is more indefinite and thus potentially more broadly applicable.

Despite both sides seeking damages pursuant to §859, neither provided proper notice to the other, as would be required by Probate Code §851(c)(2) in connection with such a petition.  However, the Court finds no authority stating that an award of attorney fees under Probate Code §859 must be in the context of a successful affirmative Probate Code §850 action.  The instant post-trial motion is a noticed motion for attorney fees which serves the same function. Petitioner argues that there was no finding of a bad faith taking previously, but the statute, as to attorney fees, does not prohibit the Court from making that finding now, in the context of ruling upon this motion, and based on the evidence submitted with the moving papers.

In addition, there is the issue of reciprocity.  The case of Huan v. Pagano, (2026) 118 Cal.App.5th 667, addressed the fee provision of Welfare and Institutions Code section15657.5:

Section 15657.5, subdivision (a), requires the court to award reasonable attorney fees and costs to a plaintiff where the defendant is found liable for financial abuse of an elder. The section contains no reciprocal provision for a prevailing defendant.”[fn5 omitted.] (Wood v. Santa Monica Escrow Co. (2007) 151 Cal.App.4th 1186, 1189, 60 Cal.Rptr.3d 597 (Wood), fn. omitted.)

Id. at 675.  Each side in Huan filed a petition alleging elder abuse and undue influence against the other.  They were tried together with the Haun petitioners prevailing and then seeking attorney fees.  The Paganos opposed the motion in part on the basis that as a respondent to an elder abuse action, Huan could not be awarded their attorney fees as prevailing parties on their petition as the fee provision was unilateral and not reciprocal, and because the fees incurred in prosecuting the Huan petition were inextricably intertwined with defending against the Paganos’ petition.  The appellate court pointed out that statutes with unilateral fee shifting provisions are intended by the legislature to promote prosecution of certain claims, and that if a court awarded attorney fees to a prevailing defendant where the otherwise compensable work overlapped with defending against the claims subject to the unilateral fee provision, a judicially created reciprocity would exist and defeat the legislative purpose.    

“On appeal, Chevron conceded it was not entitled to fees for defending the Cartwright Act cause of action, but argued that under Reynolds it was entitled to fees on issues in common with causes of action for which fees are awardable. The Court of Appeal disagreed. The court pointed out that the Cartwright Act contains a unilateral fee shifting provision under which fees are awarded to a prevailing plaintiff, but not to a prevailing defendant. (Bus. & Prof. Code, § 16750, subd. (a); Carver v. Chevron U.S.A., Inc., supra, 119 Cal.App.4th at p. 503, 14 Cal.Rptr.3d 467.) Such provisions are created by the Legislature as a deliberate stratagem to encourage more effective enforcement of some important public policy. (Carver, supra, at p. 504, 14 Cal.Rptr.3d 467.) To allow Chevron to recover fees for work on Cartwright Act issues simply because they overlap issues related to other causes of action, would create a judicially imposed reciprocity. This result is not intended by the Legislature and would frustrate legislative policy. (Ibid.) The court concluded the unilateral fee shifting provision of the Cartwright Act prohibits an award of fees for successfully defending Cartwright Act and non-Cartwright Act claims that overlap.” (Wood, supra, 151 Cal.App.4th at p. 1191, 60 Cal.Rptr.3d 597.)

Several cases have followed Carver's rationale to preclude attorney's awards for fees that cannot be apportioned where the plaintiff's claims were asserted under statutes with unilateral fee shifting provisions. In each case, the Court of Appeal held that the legislative intent of the laws, to promote prosecution of such claims, would be undermined if overlapping defense fees were awarded. (See Turner v. Association of American Medical Colleges (2011) 193 Cal.App.4th 1047, 123 Cal.Rptr.3d 395 (Turner) [defense attorney's fees were not available under an earlier enacted bilateral fee-shifting provision contained in the Disabled Persons Act (DPA), Civil Code section 55, for intertwined fees incurred in the defense of claims under the Unruh Act and DPA, which contain unilateral fee-shifting provisions, Civil Code sections 52 and 54.3]; Cathy's Creations, supra, 54 Cal.App.5th 404, 269 Cal.Rptr.3d 1 [an award of attorney's fees to prevailing defendants under Civil Code section 1021.5 for defending FEHA claims was limited by FEHA's unilateral fees provision]; and Dane-Elec Corp., USA v. Bodokh (2019) 35 Cal.App.5th 761, 764, 248 Cal.Rptr.3d 163 (Dane-Electric) [“To the extent the wage claim and the contract claim are inextricably intertwined, [Labor Code] section 218.5(a) 's prohibition on recovering attorney fees controls over [a] contractual attorney fees provision”].)

Id. at 676.  The Appellate Court distinguished the facts of the case on appeal from the authorities cited above, finding that Huan was in fact a prevailing petitioner on his own financial elder abuse claim, and so the concern about creating reciprocity in a statutory unilateral fee provision was not implicated:

Unlike this case, the cases on which the Paganos rely all deal with prevailing parties who, although entitled to recover fees pursuant to contract or statute, were denied overlapping fees arising out of their defense to a claim with a unilateral fee-shifting provision. This outcome protects the legislative intention to encourage prosecution of such claims. In contrast to those cases, the legislative intention to encourage financial elder abuse claims is not undermined by awarding overlapping fees to Haun as the prevailing petitioner. For this reason, we agree with the probate court's conclusion that section 15657.5, subdivision (a) does not bar an award of fees for the defense work that overlapped entirely with Haun's successful prosecution of his own financial elder abuse claim.[fn7 omitted.]

Id. at 679.  The Court also found apportionment was not required given the nature of the case and the overlap of issues.

While respondents have not cited section 15657.5 as a basis for their fee award request, the Court finds the above analysis equally applicable to the issues here.  The Court has found no case addressing whether Probate Code section 859 is a unilateral fee statute.  However, the Court finds that section 859 operates in much the same way as section 15657.5, and for the same reasons, should be construed as a unilateral fee provision enacted by the legislature for the purpose of encouraging certain types of claims.  The Court therefore finds section 859 does not create reciprocity.  In light of this, the question then becomes whether respondents can recover attorney fees as prevailing respondents under section 859.  This case is similar to that of Huan in that respondents brought their own petition for financial elder abuse.  However, it is different in that the respondents’ affirmative claims were resolved, albeit in their favor, by a stipulated settlement.  That settlement did not expressly address attorney fees.

The analysis of the question presented here, in the Court’s view, turns on the specific facts in each case.  As the trial court, having heard all the evidence and drawn conclusions about the conduct of the parties in connection with the events at issue, this Court has no concern that an award of attorney fees to the respondents would serve to create an unjust reciprocity that would otherwise create the type of risk that would discourage a person from bringing a claim otherwise encouraged by the legislature.  For example, the Amended Statement of Decision notes, “the only undue influence applied to Gina the day of the signing was by Todd in his attempts to prevent her from signing the trust.”  And, “Aysia pushing for the trust to be signed that day was not coercion of Gina, but protection of Gina from Todd.” And, “Aysia and Hope are credible and [the Court] believes them to be free of wicked motive or mere greed, operating only to help their mother accomplish her will, and acted at all times in an honest and upright manner in all their dealings with Gina's property, accounts and estate plan.” And, “The Court concludes Todd lied to Gina to convince her to do what he wanted, delay signing the trust. This fact alone speaks volumes about Todd's motivations in connection with respecting Gina's wishes versus his own great expectations.”   There is ample evidence in the record to support the conclusion that an award of attorney fees to respondents would be factually aligned with the reasons doing so in the Huan case was legally justified, as well as the legislative purpose of the statute.

Likewise, there is ample evidence in the record to support the conclusion of a wrongful taking by Todd sufficient to justify an award of attorney fees under section 859.  For example, the judgment in this case states, “To the extent not already completed, Petitioner shall immediately relinquish possession of any Trust property, personal property, records, diaries, effects, or items belonging to the Trust or to Gina Stieb.”  And, “The Court notes that issues concerning unpaid rent and mortgage payments arising from Petitioner’s post-death occupancy of the Trust residence have been resolved by agreement of the parties, with payment in the amount of $9,000, due January 9, 2026.” Based on evidence presented at trial, the trust’s real property was wrongfully withheld from the trustee, and valuable personal property was wrongfully taken by the petitioner from the settlor’s residence. This supports a finding the petitioner took trust property without any legitimate basis or proper motive (i.e. in bad faith) and, under the second sentence of Probate Code §859, attorney fees and costs are awardable on that basis.  The Court notes that the petitioner does not contest the reasonableness of the amount of fees sought and the Court finds the amount reasonable.

For the above stated reasons, the motion for attorney fees is GRANTED. M. Todd Gilbert is personally liable for the attorney fees awarded, which must be paid to the movant within 60 days of notice of entry of the order on this motion or as otherwise agreed to by the parties in writing.

There is no proof of service of the reply papers in the court file so the Court has not considered the reply papers.

Counsel for respondents is directed to lodge an updated proposed order that conforms to this ruling.

 

  1. Matter of Frank Busterna and Kathryn Busterna Trust
    24PR00713
    Motion for Damages for Breaches of Trust, Damages for Breach of Fiduciary Duties as Trustee, Surcharge for Breach of Fiduciary Duties as Trustee, for Surcharge for Penalties and Interest Charged Against the Trust for Respondent’s Failure to File and Pay State and Federal Trust Income Taxes, and for Attorney’s Fees and Costs

Tentative Ruling: The Court’s February 14, 2025 ruling states that costs of suit associated with the petition may be claimed pursuant to a memorandum of costs filed with the court and subject to a motion to tax at the conclusion of the matter. The Court’s April 20, 2026 order requires the petitioner to file a memorandum of costs within 60 days for costs incurred. A memorandum of costs was filed and served on April 28, 2026. There is no motion to tax or strike costs. Costs in the amount of $954.24, as stated in the aforementioned memorandum of costs, are GRANTED to the petitioner pursuant to California Probate Code §1002. The respondent shall pay said amount to the petitioner within 60 days of notice of entry of the order on this motion.

APPEARANCES ARE REQUIRED. As discussed during the April 16, 2026 hearing, the Court is inclined to hear from counsel on whether any dispute should be decided based on an in person evidentiary hearing, or if the parties agree to submit on declarations, or any other update resulting from their meet and confer efforts.  The Court is aware of the drop-off ex parte application to continue this hearing and refer the matter to the settlement panel.  The Court will address the ex parte request at this hearing.  The Court is inclined to refer this matter to the settlement panel, but also to set a hearing date should the matter not resolve.

***End of Tentative Rulings***

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