Probate Law & Motion

Advisements

If the tentative ruling is accepted, no appearance by Zoom is necessary unless otherwise indicated. You must notify the probate clerk at (707) 521-6893 if you wish to be heard in response to the tentative ruling. You must inform the clerk concerning your appearance choice: Zoom or in person. Any interested party who wishes to be heard in opposition to a petition must notify all other parties of the intent to appear. Both notifications must be completed no later than 4:00 p.m. on the court day immediately preceding the day of the hearing.

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

September 3, 2026, at 3:00 p.m.  

  1. Matter of the 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 Court thanks the parties for their supplemental briefs.  Both raise valid arguments important for the Court to consider.  The Court’s view is that the precise question before it is not strictly analogous to any other published authority and so appreciates that there may be more than one way to see the issues presented.  That said, the Court is guided by the fact that Probate is a court in equity, and that all courts should endeavor to make orders that serve the ends of justice.  There is only one way to see that question answered fairly here, which is that the request for attorney fees must be granted.   

Probate Code §859 allows the Court authority to grant the motion.  The Court considers the trust petition and objection, and the cross-complaint, which was adjudicated by stipulated settlement, but, importantly, which stipulation expressly left open the question of an award of attorney fees and costs for determination at a later date. 

The Court accepts the Petitioner’s point that awarding attorney fees based only on the adjudication of the trust petition is not procedurally within the statutory structure.  The Court clarifies that it instead awards attorney fees based on the outcome of the cross-complaint, a potential outcome expressly reserved by the settlement agreement.  In so doing, the Court acknowledges that it is now making the finding required by section 859 and in so doing, it considers all its prior findings.

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.  The Court does not find that the second part is necessarily dependent on the first part.

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 already in the record. That evidence includes the additional exhibits admitted in support of the cross-complaint showing the taking of trust property by petitioner.  The evidence also establishes the withholding of the trust real property.  As to whether this was in bad faith, the Amended Statement of Decision notes ample evidence to support such a conclusion, which the Court does.

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.

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

***End of Tentative Ruling***