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Probate Law & Motion

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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

November 21, 2024, at 3:00 p.m. 

  1. The Potts 2000 Revocable Trust
    24PR00276
    Motion for Attorney Fees

Tentative Ruling: The motion is GRANTED. The Court will sign the proposed order lodged September 23, 2024 but will reduce the overall fees and costs awarded to the moving party to $11,826.85.

The Court finds it need not reach the question of whether the underlying petition for accountings (“Petition”) was a “contest of the trustee’s account” for the purposes of California Probate Code (Prob C) §17211(b).  The Court does not base its ruling on a finding of bad faith and does not rely on Prob C §17211(b) in awarding fees here. The Court questions whether the trustee truly opposed the request for an accounting contained in the Petition, and whether such opposition was in bad faith. The response to the underlying petition, filed September 4, 2024, does not expressly request that the petition for an accounting be denied. Instead, the prayer of the response focuses on the petitioner’s surcharge requests. The arguments at paragraphs 14 through 16 do not clearly assert an opposition to the request for an accounting, despite the argument in paragraph 14 regarding the trust’s terms on waiver of accountings. The Court also finds insufficient evidence to show that other efforts of the trustee to resolve the petition, including offering the informal accounting and seeking a withdrawal of the petition, were made in bad faith. Even the delay in revealing that the trustee began acting as trustee prior to the settlor’s death does not seem to have been made in bad faith, as that revelation was discovered in the first instance during the petitioner’s review of the informal accounting, which was volunteered by the trustee. See Declaration of Danielle N. Podshadley at paragraph 14. Bad faith is defined as the opposite of good faith, generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake, but by some interested or sinister motive, not simply bad judgment or negligence, but rather the conscious doing of a wrong because of dishonest purpose or moral obliquity; it contemplates a state of mind affirmatively operating with furtive design or ill will. Pugh v. See's Candies, Inc. (1988) 203 Cal.App.3d 743, 764. The Court finds insufficient evidence to establish the trustee opposed the petition for an accounting in bad faith.

That said, if a trustee commits a breach of trust a beneficiary may commence a proceeding (where appropriate) to compel the trustee to redress a breach of trust by payment of money or otherwise. Prob C §16420(a)(3).

The following facts alleged in the Petition are undisputed: 1) at no time did trustee serve a Prob C section 16061.7 notice; 2) per the terms of the trust, a successor trustee was exempted from the Prob C section 16062 requirements of annual accountings only if they rendered an account at the request of the beneficiary; 3) the beneficiary requested an accounting; 4) the trustee did not account to the beneficiary upon the request of the beneficiary; and 5) a formal demand for an accounting was made 12/2/23, and more than 60 days passed and an accounting was not provided.

On the facts of this case, there is no reason to conclude an accounting would ever have been voluntarily produced by the trustee in the absence of the filing of the Petition on March 22, 2024.  The Court also notes that the trust requires that accounts by the trustee be in accordance with the provisions of Prob C sections 16060 - 16064.  Providing information “informally” does not satisfy the duties of the trustee under the trust.  A trustee must act with reasonable care and skill.  Prob C § 16040.  The Court does not accept that a lack of understanding or knowledge as a lay person, which appears to be the argument of the trustee for not accounting to petitioner prior to the filing of this lawsuit, are sufficient to excuse the failure to meet one of the most basic obligations of a trustee, to be accountable to the trust beneficiaries.  A breach of trust need not be fraudulent, but can arise from negligence, oversight or mere forgetfulness.  White v. Citizens Nat. Trust & Savings Bank of Los Angeles, (1941) 46 Cal.App.2d 418, 422.

The trustee’s failure to administer the trust per its terms (e.g. by failing to account to a beneficiary upon request,) the failure to account, and the failure to keep beneficiaries reasonably informed are breaches of trust. California Probate Code §§16000, 16060, 16062 and 16400. Any legal fees incurred by the moving party in bringing the underlying petition and otherwise litigating this matter (including by filing the present motion) are a direct result of the trustee’s breaches of trust, because this litigation is necessitated by the trustee’s failure to perform his duties. The trustee’s argument that fees incurred after the trustee agreed to provide an accounting are unreasonable is not persuasive, as the petition was not resolved by such agreement, and the additional work performed by counsel on this case (including the filing of the present motion) was reasonably necessary. Therefore, proposed order number one is granted, subject to a reduction in the overall amount.

As discussed above, the Court finds the trustee did commit breach of trust here. If the trustee commits a breach of trust, the trustee is chargeable with any loss or depreciation in the value of the trust estate resulting from the breach of trust, with interest, if appropriate under the circumstances. Prob C §16440(a)(1). Any trust funds the trustee spent to oppose this motion or the underlying petition are a direct result of the trustee’s breaches of trust, because this litigation is necessitated by the trustee’s failure to perform his duties.  Attorney's fees may be allowed and may be made a charge against the interest in the estate of the party causing unfounded litigation. Estate of Ivey (1994) 22 Cal.App.4th 873, 883, as modified (June 16, 1994). Any award contained herein may be made a charge against the trustee’s interest in the trust res.  The Court will therefore also grant proposed order number two.

However, any trust funds used to prepare the accounting are properly charged to the trust.  To the extent there is a dispute over whether any of the fees incurred by the trustee fall into the category of litigating this petition, or the category of those necessary to prepare the accounting, the Court directs the parties to identify them in their statements of issues filed in connection with the future hearing date.  The Court reserves jurisdiction to resolve any such dispute at the future hearing date.

As to the amount of fees requested, the Court finds the rate of $475.00 per hour, charged by counsel for the petitioner, is excessive compared to rates charged in the community by lawyers with similar experience for this type of work. The trial court retains authority to determine whether requested attorney fees are reasonable. Michell v. Olick (1996) 49 Cal.App.4th 1194, 1200. The Court finds $400.00 per hour to be a reasonable rate. The Court does not strike any of the other costs requested. The overall fees and costs awarded to the moving party is $11,826.85, which includes three hours spent preparing the reply.

By this ruling the Court does not make any decision regarding future costs and fees incurred in the course of this litigation, should the litigation continue.

Citation to Unpublished Decisions

Unfortunately, the Court must now take a moment to admonish counsel for the petitioner for including a citation to an unpublished decision.  The citation included the fact that the decision was unpublished so the Court must conclude that use of the reference was intentional.  California Rules of Court, rule 8.1115 states unpublished opinions “must not be cited or relied on by a …party….” (Emphasis added.)  Aside from the fact that citation to an unpublished opinion is prohibited, there are good reasons why this is so.  While addressing the allowed use of unpublished federal court opinions, the concerns highlighted in the below observations are equally valid to unpublished state decisional authority:

 … We must also reiterate this truth: Unpublished decisions from the federal and out-of-state courts were by definition never intended for use as precedent. As Ninth Circuit Court of Appeals Judges Kozinski and Reinhardt have pointed out, unpublished decisions usually do not get the kind of attention that published decisions get. (See Kozinski and Reinhardt, Please Don't Cite This! Why We Don't Allow Citation to Unpublished Dispositions, June 2000 Cal. Law. at pp. 43–44 [contrasting care that must go into opinions intended for use as precedent with work on unpublished “memdispos”].) Thus, even though a litigant can certainly cite and rely on such decisions in state court under the amended rule, California courts are well within their own power to view such “precedent” as having little or no weight in and of itself.

Lam v. Ngo, (2001) 91 Cal.App.4th 832, 841, fn 5.  The use of unpublished state decisions can likewise be a basis for sanctions:

We note with concern that the prosecutor cited and the trial court seemed to be influenced by People v. Hargrove, an opinion that all parties knew had been ordered depublished by the California Supreme Court. (See Cal. Rules of Court, rule 8.1105(e).) We remind counsel that use of a depublished case for this purpose is absolutely prohibited by the California Rules of Court. (Rule 8.1115(a).) The rules authorize reference to unpublished opinions only in a narrow set of circumstances, none of which applied here. (See Rule 8.1115(b).) We realize that depublished and unpublished decisions are now as readily available as published cases, thanks to the Internet and technologically savvy legal research programs. That does not give counsel an excuse to ignore the rules of court. Indeed, persistent use of unpublished authority may be cause for sanctions. (See Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, 885, 271 Cal.Rptr. 513.) Counsel would be well served to heed this advice by a leading treatise writer: “Do not, under any circumstances, cite to an unpublished or depublished opinion (or any unpublished part of a published opinion) ... unless ... one of the narrow exceptions to the noncitation rule applies.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2008) ¶ 9:59, p. 9–18.)

People v. Williams, (2009) 176 Cal.App.4th 1521, 1529.  The Court considered whether to issue an Order to Show Cause why petitioner’s counsel should not be sanctioned for purposefully citing to an unpublished state decision, to which no exception applies, but concluded that in the absence of a persistent practice of doing so, this admonition was likely sufficient. Petitioner’s counsel is therefore admonished, in the absence of the applicable exceptions, not to cite to unpublished decisions.

 

***End Of Tentative Rulings***

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