Filed 11/25/14 Conservatorship of Mazzocco CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
Conservatorship of the Person of DAVID E. MAZZOCCO.
MICHELE MAZZOCCO, E057485 Petitioner and Appellant, (Super.Ct.No. INP10000641) v. OPINION ALEXIS MAZZOCCO et al.,
Objectors and Respondents.
APPEAL from the Superior Court of Riverside County. James A. Cox, Judge.
Affirmed.
Best Best & Krieger and G. Henry Welles for Petitioner and Appellant.
Ward & Ward, Alexandra S. Ward; Swan, Carpenter, Wallis & McKenzie and
Kevin McKenzie for Objector and Respondent Alexis Mazzocco.
No appearance for Objector and Respondent Kenneth Jenkins.
This case involves an issue of attorney’s fees in a conservatorship matter.
Michele Mazzocco objected to two conservatorship petitions related to her uncle.
1 Subsequently, Michele Mazzocco sought an award of attorney’s fees. The probate court
denied the request for attorney’s fees because it concluded the Probate Code did not
authorize the requested award. Michele Mazzocco contends the probate court erred by
denying her request because the court was authorized to award her attorney’s fees. We
affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
David Mazzocco (Conservatee) has assets worth millions of dollars. In 2010,
Conservatee was 88 years old. Conservatee suffers from moderate to severe dementia.
Conservatee is a widower and has no children; however, he has five nieces and
nephews. For 15 years, Conservatee lived with his companion, Betsy Tworoger
(Companion). One of Conservatee’s nieces, Alexis Mazzocco (Trustee) (1) is
Conservatee’s health care agent, under Conservatee’s Advance Health Care Directive;
(2) is the successor trustee of Conservatee’s trust, following Conservatee’s resignation
as trustee; (3) is the primary and possibly sole contingent beneficiary of Conservatee’s
trust; and (4) has Conservatee’s power of attorney.
In late July 2010 Conservatee suffered a heart attack. In August 2010,
Conservatee had heart surgery. The effects of Conservatee’s dementia accelerated
following the heart attack. In September 2010, Trustee moved Conservatee from the
home he shared with Companion to a memory care facility. The facility is a “restricted
. . . secure . . . facility.” Trustee believed Conservatee needed to be placed in the facility
because (1) Conservatee’s doctor advised such a placement, and (2) Companion
2 interfered with home healthcare providers who were caring for Conservatee in his
home.
On November 12, 2010, Companion petitioned the probate court to appoint a
conservator for Conservatee’s person. Companion argued Conservatee had expressed a
desire to live in his home until his death, and to not reside in a care facility. Companion
asserted Conservatee’s best interests would be served by returning Conservatee to his
home, where he could reside with Companion. Companion asserted a conservatorship
was necessary because Conservatee “is financially incapable and has money or property
that requires management or protection.”
Companion asserted Trustee could not be trusted to handle Conservatee’s assets
because (1) Trustee’s son was living in Conservatee’s Oregon condominium;
(2) Trustee’s son was driving Conservatee’s expensive cars; and (3) Trustee was not
using Conservatee’s money to provide the best care for Conservatee. Companion
requested Kenneth Jenkins (Jenkins) be appointed conservator.
On November 17, 2010, Trustee objected to Companion’s petition and petitioned
the probate court to appoint a conservator for Conservatee’s person. Trustee asserted
that Conservatee’s placement in a restricted and secure facility was necessary per the
advice of Conservatee’s doctor. Trustee asserted that Conservatee would be at risk of
harm if returned to his home to reside with Companion because (1) Companion
previously interfered with Conservatee’s in-home caregivers, and (2) Companion was
attempting to isolate Conservatee. Trustee requested she (Trustee) be appointed
conservator of the person.
3 Michele Mazzocco (Niece) is another of Conservatee’s nieces. On November
30, 2010, Niece objected to Companion’s petition and Trustee’s subsequent petition.
Niece objected to Trustee’s subsequent petition because Niece believed Trustee was
attempting to isolate Conservatee in the secure facility, in order to secure Trustee’s role
as the sole beneficiary of Conservatee’s trust. Niece objected to Companion’s petition
because Niece believed Companion wanted Conservatee returned to his home so
Companion could exert influence and control over Conservatee and continue to reside in
Conservatee’s house.
Niece asserted Conservatee needed a conservatorship not just of the person, but
also of his estate. Niece argued that Conservatee’s best interests were not served by
residing in the secure memory facility because Conservatee was being isolated from his
family. Niece tried to contact Conservatee at the facility, but was informed Trustee
forbade such contact. Niece alleged Conservatee had the financial resources to continue
residing at his home with in-home care.
Further, Niece asserted Trustee had a conflict of interest in placing Conservatee
in the secure facility because Trustee, as the sole beneficiary of Conservatee’s trust, had
an interest in minimizing the funds spent on Conservatee’s healthcare. Niece asserted
Trustee had placed Conservatee in a “mediocre locked facility,” rather than provide
more expensive in-home care, in an attempt to save funds for her own future use. Niece
argued Trustee should not have control over Conservatee’s living arrangements due to
Trustee’s conflict of interest.
4 Niece asserted Companion should be removed from Conservatee’s home, and
that Companion’s visitation with Conservatee should be evaluated by the conservator.
Niece contended Companion’s petition was brought to serve her own self-interest
because Companion wanted to continue living in Conservatee’s home and continue
receiving gifts from Conservatee. Niece contended Companion interfered with
Conservatee’s home healthcare in an attempt to continue controlling Conservatee.
Niece argued that an independent conservator should be appointed over
Conservatee’s estate, in addition to Conservatee’s person. Niece asserted the court
should appoint Jenkins as conservator because Jenkins was an independent party.
In January 2011, the probate court appointed Jenkins as temporary conservator of
the person. In April 2011, Companion dismissed her petition to appoint Jenkins as
conservator of the person. Thus, only Trustee’s petition and Niece’s objection remained
active in the case. In January 2012, the probate court appointed Jenkins as conservator
of Conservatee’s person, but did not make an appointment related to Conservatee’s
estate; the parties would only stipulate to Jenkins being conservator of the person.
Conservatee was returned to his home, and Companion was removed from the home.
Niece petitioned the probate court for reimbursement of her attorney’s fees from
Conservatee’s trust, due to her successfully establishing a conservatorship for
Conservatee. Niece reasoned that, since Companion dismissed her petition, only Niece
was advocating for Jenkins to be appointed conservator and for Conservatee to be
returned to his home. Niece requested $12,050 in attorney’s fees and $464.12 in
5 administrative costs be paid by Conservatee’s trust. Niece asserted she should be
awarded her attorney’s fees pursuant to Probate Code section 2640.1.1
Section 2640.1, subdivision (a) provides, “If a person has petitioned for the
appointment of a particular conservator and another conservator was appointed while
the petition was pending, but not before the expiration of 90 days from the issuance of
letters, the person who petitioned for the appointment of a conservator but was not
appointed and that person’s attorney may petition the court for an order fixing and
allowing compensation and reimbursement of costs, provided that the court determines
that the petition was filed in the best interests of the conservatee.”
Trustee objected to Niece’s petition for attorney’s fees and costs. Trustee
asserted she (Trustee) was the sole petitioner in the case, after Companion’s petition
was dismissed. Trustee argued Niece was an objector, not a petitioner. Therefore,
Trustee reasoned Niece could not be awarded attorney’s fees and costs because (1)
Niece was not a petitioner, and (2) Niece did not petition for the appointment of a
conservator, who ultimately was not appointed, as required by section 2640.1. Trustee
argued there was no legal authority for awarding attorney’s fees and costs to Niece.
Niece replied to Trustee’s objection. Niece reasserted that she was the only
person seeking to have Jenkins appointed as conservator and that she was successful in
that endeavor. Niece argued that she was entitled to an award of attorney’s fees because
Conservatee benefitted from Niece’s actions. Niece asserted section 2640.1 authorizes
1 All further statutory references are to the Probate Code unless otherwise indicated.
6 an award of attorney’s fees in cases where a person “petitions for appointment of a
conservator and successfully obtains appointment of a conservator.” Niece argued that,
in her objection, she requested affirmative relief, such as the appointment of Jenkins,
and therefore, Niece was effectively a petitioner in the case. Niece asserted that
California’s liberal pleading rule should cause her “objection” to be considered a
“petition,” since the title of “objection” does not control the issue. Niece argued that
she should not be penalized for electing to not file a duplicative “petition,” which would
have requested the same actions as her “objection.” Additionally, Niece invoked the
public policy of giving an incentive for people to protect elders.
Trustee asserted Niece’s interpretation of the word “petition” was “grossly
overbroad,” because it eliminated the statute’s (§ 2640.1) limiting language. Trustee
again asserted Niece only filed an objection and therefore was not a petitioner. Trustee
contended a “petitioner” was a person who filed a Petition for Appointment of Probate
Conservator, which is a specific Judicial Council form.
In a reply, Niece asserted the probate court has equitable authority to award
attorney’s fees in cases where there is not statutory authority for such an award. Niece
argued that her actions substantially benefited Conservatee and therefore she could have
her attorney’s fees awarded.
The probate court held a hearing on the attorney’s fees issue. The court issued a
tentative opinion reflecting Niece’s actions were valuable, but that her attorneys should
be paid by Niece rather than Conservatee’s trust. The court explained that it rejected the
equity argument because the primary equity case relied upon by Niece, In re Moore’s
7 Estate (1968) 258 Cal.App.2d 458, involved a petitioner who prevailed on part, but not
all of his case. The court explained that a partially successful petition was a key
component to an equitable award of attorney’s fees. Niece asserted the key component
was whether the action significantly benefited the conservatee.
The probate court explained that the case law upon which Niece was relying
predated the creation of section 2640.1. The court explained that section 2640.1
superseded the Moore case. The probate court explained, “[W]hat my fear is that even
though I’m sympathetic with your client’s position, if I started allowing fees to
everybody who came in and objected to a conservatorship, that is certainly not equitable
to the conservatee to allow anybody that comes in that wants to be heard on [a]
conservatorship, and comes in with their attorney, and say[s], ‘Well, now as equity you
need to pay me.’ And so out of some poor old conservatee’s pocket they’re paying for
all the objectors and people who participate for their fees, and I think that’s why the
legislature limited it in their code section.”
Niece asserted the award of attorney’s fees would be limited to cases where the
action benefitted the conservatee and was brought in good faith. Niece further asserted
that her objection was essentially a petition since she requested specific relief. The trial
court concluded, “[A]s much as I would like to order the attorney’s fees, I don’t believe
that it’s proper for me to do so the way the code sections are reading or read. [¶] I
don’t think either of the cases, Cornelius or Moore, overcome the limitations that the
[L]egislature set in the statute, and the [L]egislature has every authority to limit the
court, and I can understand the reasoning why they’ve done it. I’d like to see you paid,
8 but I think you’re going to have to ask your client to pay those fees and not the estate.”
The court denied Niece’s request for attorney’s fees and costs.
DISCUSSION
A. CONTENTIONS
In Niece’s appellant’s opening brief she contends the probate court had equitable
authority to award attorney’s fees. Niece contends she incurred attorney’s fees due to
actions that were executed in good faith, and that served Conservatee’s best interests.
Therefore, Niece contends the probate court erred by denying her request for fees and
costs. Trustee appears to agree the probate court has equitable authority to award
attorney’s fees, but asserts Niece does not meet the criteria for an equitable award of
attorney’s fees. In Niece’s reply, she asserts she meets the criteria for an equitable
award of attorney’s fees pursuant to the “common fund” doctrine.
In the instant case, the probate court concluded attorney’s fees could not be
awarded because the statute and cases provided by Niece did not support such an award
in this case. We review a probate court’s legal conclusion regarding the basis, or lack of
basis, for an award of attorney’s fees de novo, because the issue is a question of law.
(Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4th 918, 923; Ramon v. County of Santa
Clara (2009) 173 Cal.App.4th 915, 920-921.)
B. SECTION 2640.1
Before addressing the issues of general equity and the common fund doctrine, we
address section 2640.1, because that section was the focus of the probate court’s
reasoning. The language of section 2640.1 is set forth ante, but we present it again here
9 for ease of reference. Section 2640.1, subdivision (a) provides: “If a person has
petitioned for the appointment of a particular conservator and another conservator was
appointed while the petition was pending, but not before the expiration of 90 days from
the issuance of letters, the person who petitioned for the appointment of a conservator
but was not appointed and that person’s attorney may petition the court for an order
fixing and allowing compensation and reimbursement of costs, provided that the court
determines that the petition was filed in the best interests of the conservatee.”
A “‘[p]etition’ includes an application or request in the nature of a petition.”
(§ 1430.) The foregoing definition of “petition” could, arguably, include Niece’s
objection wherein she made specific requests regarding the appointment of particular
conservator. While labeled “objection,” the document could be in the nature of a
petition due to the request for a specific conservator to be appointed. Therefore, we will
assume, without deciding, that Niece’s objection was a “petition.”
Assuming that Niece’s filing qualified as a “petition,” in order to receive an
award of attorney’s fees under section 2640.1, Niece would need to show (1) she
petitioned for the appointment of a particular conservator; and (2) while her petition was
pending, a different conservator was appointed. (§ 2640.1, subd. (a).)
Assuming Niece filed a “petition,” her request for attorney’s fees and costs under
section 2640.1 would fail because Niece has not shown she unsuccessfully petitioned
for the appointment of a conservator, rather, Niece was successful—Jenkins was
appointed the conservator of the person. A different conservator was not appointed.
Niece was unsuccessful on the conservator of the estate portion of her request, but a
10 different conservator was not appointed as conservator of the estate; rather, no one was
appointed conservator of the estate. Therefore, Niece’s claim would also fail in that
regard. Under section 2640.1, assuming Niece filed a petition, she cannot receive an
award of attorney’s fees because a different conservator from the one she wanted was
not appointed.
C. COMMON FUND DOCTRINE
We now turn to the common fund doctrine. Niece asserts her attorney’s fees
should be paid by Conservatee’s trust pursuant to the common fund doctrine.
Typically, attorney’s fees cannot be awarded unless specifically provided for by
statute or agreed to by the parties. (Code Civ. Proc., § 1021.) However, there are
equitable exceptions to this rule. (Serrano v. Priest (1977) 20 Cal.3d 25, 34-35.) One
of the exceptions is known as the “common fund” doctrine. The doctrine is well
established: “when a number of persons are entitled in common to a specific fund, and
an action brought by a plaintiff or plaintiffs for the benefit of all results in the creation
or preservation of that fund, such plaintiff or plaintiffs may be awarded attorney’s fees
out of the fund. [Citations.]” (Id. at p. 34.) One of the reasons for the common fund
award of attorney’s fees is fairness to the successful litigant who might otherwise
receive no benefit from the common fund because her share of the common fund is
consumed by the expense of attorney’s fees. (In re Stauffer’s Estate (1959) 53 Cal.2d
124, 132.) In other words, the common fund doctrine prevents the situation where 10
people have a common interest in a fund, one person successfully sues to protect that
fund, but that successful litigant ends up with no money because all the money awarded
11 from that fund is spent on attorney’s fees, while the nine other people who did not sue
are free to enjoy their money from the fund.
Niece’s reliance on the common fund doctrine is not persuasive because there is
no communal sharing of Conservatee’s trust. We do not have the trust documents in the
record; however, we gather from the documents about the trust that it is a living trust.
The current sole beneficiary is Conservatee. The sole contingent beneficiary is Trustee.
Trustee’s interest in the money will not vest until Conservatee’s death. (See In re Estate
of Giraldin (2012) 55 Cal.4th 1058, 1072 [“the beneficiary ‘cannot be accorded all the
rights of a vested beneficiary before the death of the trustor [i.e., the settlor]’”].)
Thus, from what we can gather from the documents discussing Conservatee’s
trust (without seeing the actual trust), the money Niece protected can only be used to
benefit Conservatee. Arguably, all the money could be spent on Conservatee’s
healthcare, leaving nothing for Trustee. Therefore, there is no communal fund. Niece
protected Conservatee’s assets—not assets belonging to multiple people. If
Conservatee passes away, then any remaining assets will benefit only Trustee. Since
the communal element of the common fund doctrine is not met because there is only a
single beneficiary at any given time, we find Niece’s reliance on the common fund
doctrine to be unpersuasive.
D. MOORE, CHILTON, AND CORNELIUS
1. CONTENTION
Niece contends her attorney’s fees should be paid because she litigated in good
faith in order to serve Conservatee’s best interests. Niece cites three cases to support
12 her position: (1) In re Moore’s Estate (1968) 258 Cal.App.2d 458 (Moore);
(2) Conservatorship of Chilton (1970) 8 Cal.App.3d 34 (Chilton); and
(3) Conservatorship of Estate of Cornelius (2011) 200 Cal.App.4th 1198 (Cornelius).
We examine each case in turn in order to understand the rule upon which Niece is
relying.
2. MOORE
In Moore, Dr. Eugene P. Mathias, Moore’s friend and physician, petitioned to be
appointed as guardian of Moore’s person and for Bank of America to be appointed as
guardian of Moore’s estate. (Moore, supra, 258 Cal.App.2d at p. 460.) Two other
people, Moses and Yvonne Rogers, petitioned to be appointed conservators of Moore’s
person and estate. After a hearing, Moses Rogers was appointed conservator of
Moore’s person and Bank of America was appointed conservator of Moore’s estate.
Mathias’s petition for guardianship was denied. (Ibid.) Mathias sought attorney’s fees,
and the probate court ordered Bank of America, as conservator of the estate, “to pay
specified amounts.” (Ibid.)
On appeal, Bank of America argued that an unsuccessful petitioner cannot be
compensated for services rendered to the estate. (Moore, supra, 258 Cal.App.2d at pp.
460-461.) The appellate court accepted the Bank’s major premise that an unsuccessful
petitioner typically cannot be awarded attorney’s fees, but questioned whether that rule
still applies when the unsuccessful petitioner caused “substantial benefits [to] accrue[]”
to the conservatee. (Id. at pp. 461-462.)
13 The appellate court identified the issue as, “whether in the absence of statutory
authorization, one who in good faith initiates caretaker proceedings in which a guardian
or conservator other than the initiator is appointed may be awarded his costs and
counsel fees.” (Moore, supra, 258 Cal.App.2d at p. 462.) The appellate court found the
Probate Code, at that time, did not authorize fees for unsuccessful petitioners; it only
authorized fees for successful petitioners. (Ibid.) However, the court found the
appellant had performed a valuable service “by notifying the court of the disabled’s
condition and need for protection.” (Ibid.)
The appellate court turned to principles of equity to determine if attorney’s fees
could be awarded. (Moore, supra, 258 Cal.App.2d at p. 463.) The court applied the
“general equitable rule permitting one who has protected, preserved, or increased a fund
for the benefit of numerous parties, to be awarded compensation out of the fund for
costs and counsel fees.” The appellate court then explained the “common fund”
doctrine (ibid); we have explained the doctrine ante. The court explained that due to
Mathias’s actions, “a fund in excess of $200,000 was brought under judicial control and
safeguarded from possible dissipation and neglect. In a very real sense his action
preserved a fund for the benefit of the conservatee and her heirs.” (Id. at pp. 463-464.)
Thus, Moore discusses whether an unsuccessful litigant who has indirectly
assisted in preserving a common fund may receive attorney’s fees from that common
fund. (Moore, supra, 258 Cal.App.2d at pp. 463-464.) As the probate court in the
instant case explained, the resolution of this issue has been codified in section 2640.1,
which provides that if a person petitioned for the appointment of a particular
14 conservator, but a different conservator was appointed while that petition was pending,
then the unsuccessful petitioner may seek attorney’s fees if “the court determines that
the petition was filed in the best interests of the conservatee.” Moore is a case from
1968. Section 2640.1 was added to the Probate Code in 1995. (Assem. Bill No. 1466
(1995-96 Reg. Sess.) § 1.) Therefore, the probate court in the instant case could
properly read section 2640.1 as codifying this holding in Moore, since (1) the statute
was added after the issuance of the Moore opinion, and (2) the statute speaks directly to
the issue and resolution in Moore.
We have explained ante why section 2640.1 does not apply in this case. Namely,
it does not apply because a different conservator was not appointed. In terms of the
person, the conservator Niece wanted was appointed. In terms of the estate, a
conservator was not appointed at all. Therefore, section 2640.1 does not apply in this
case.
We have also explained why the common fund doctrine does not apply in this
case. Notably, in Moore, the court found Mathias’s actions preserved a fund that would
benefit “the conservatee and her heirs.” (Moore, supra, 258 Cal.App.2d at p. 464.) In
the instant case, there is, based upon what we gather about the trust, a single contingent
beneficiary whose interest in the assets has not vested. Therefore, there is not a
communal interest in the money. At any point, the money can only benefit a single
person. It will benefit Conservatee, and upon his death, it will benefit Trustee,
assuming any assets are left at that point.
15 Based upon our discussions ante, Moore is not applicable in this case because
(1) a different conservator was not appointed, and (2) there is not a communal aspect to
the fund that was preserved. Therefore, we find Niece’s reliance on Moore to be
unpersuasive.
3. CHILTON
The second case Niece relies upon is Chilton. In Chilton, the probate court
refused to award additional attorney’s fees to an attorney (Arditto) who claimed he
provided services to the conservatee, T. Marie Chilton. (Chilton, supra, 8 Cal.App.3d at
p. 36.) Chilton was “under the domination and undue influence of” Bruce Dickerson
Stevens (Stevens). (Ibid.) Stevens introduced Arditto to Chilton. After the three met,
Arditto agreed to attempt to terminate the existing conservatorship over Chilton’s estate.
Arditto drafted a retainer agreement purporting to retain him as Chilton’s attorney;
however, Chilton did not have the capacity to enter into a contract. (Id. at pp. 36-37.)
Arditto took actions, supposedly on behalf of Chilton. However, Arditto’s actions
purportedly on behalf of Chilton were “of no value to Mrs. Chilton and her Estate” and
“resulted in great and unnecessary expense to the said Estate.” (Id. at pp. 39-40.) At
the same time, Arditto was representing Stevens in three lawsuits. (Id. at p. 39.) During
the relevant time period, Stevens purportedly married Chilton. (Id. at p. 38.)
At the probate court, Arditto argued he should be awarded attorney’s fees from
Chilton’s estate. (Chilton, supra, 8 Cal.App.3d at p. 36.) The probate court refused to
award Arditto fees in addition to the $1,000 fee he had already been awarded for
services to Chilton, so he appealed. (Ibid.) Arditto argued that he spent 400 hours
16 working “solely for the benefit of Mrs. Chilton” and performed various tasks at her
request. (Id. at p. 41.) The appellate court found Arditto actually represented Stevens,
not Chilton, and therefore, was “not entitled to recover for services which may have
incidentally benefited Mrs. Chilton’s estate.” (Id. at p. 43.)
The court then explained that, if it assumed Arditto was correct in asserting he
“brought money into the estate or saved it expense,” then he still could not be awarded
money under Moore because Arditto’s services did not benefit Chilton. (Chilton, supra,
8 Cal.App.3d at p. 43.)
Thus, in Chilton, the attorney could not be awarded fees because (1) he did not
actually have a contract with the client in part because he was representing a person
with interests adverse to the purported client, and (2) even if he helped to preserve a
common fund, as in Moore, he did not act to benefit the conservatee. We have
explained ante, why the Moore rule is not persuasive in this case. Accordingly, we find
Niece’s reliance on Chilton unpersuasive, since it is essentially a repeat of the rule from
Moore.
4. CORNELIUS
The third case relied upon by Niece is Cornelius. In Cornelius, a daughter
sought temporary and permanent conservatorships for her father. A temporary
conservatorship was established for six months. The father objected to the
conservatorship, and the daughter withdrew her petition for a permanent
conservatorship. The probate court awarded compensation and reimbursement to
(1) the lawyers for the temporary conservator, (2) the lawyer who represented daughter
17 in seeking a restraining order against a person who was allegedly taking advantage of
the father, (3) the temporary conservator of the person and estate of the father, (4) the
daughter for her costs and travel expenses, and (5) the nurses and caregivers for the
father. The awards were to be paid from the father’s estate. The father appealed the
award. (Cornelius, supra, 200 Cal.App.4th at pp. 1200, 1203-1204.)
On appeal, the father argued that the Probate Code sections that authorize
payment to a conservator (§ 2641) and the conservator’s attorneys (§ 2642) do not apply
to temporary conservatorships. (Cornelius, supra, 200 Cal.App.4th at pp. 1200, 1204.)
Section 2642, subdivision (a), provides in relevant part, “[A]n attorney who has
rendered legal services to the . . . conservator of the person . . . may petition the court
for an order fixing and allowing compensation for such services rendered . . . .” The
appellate court found there was nothing in the statute that limited the award of fees to
permanent conservatorships, i.e., fees could also be awarded in situations where only a
temporary conservatorship is established. The court made a similar conclusion about
section 2641. (Cornelius, at p. 1204.)
The appellate court then analogized the case to Moore in that the father received
“‘substantial benefits’” from the temporary conservatorship, even if a permanent
conservatorship was not established. (Cornelius, supra, 200 Cal.App.4th at pp. 1204-
1205.) The court explained that the failure to establish a permanent conservatorship
does not mean the temporary conservatorship was unnecessary; rather, what the court
must consider is whether the conservatee benefitted from the temporary conservatorship
and the petitioner acted in good faith—the court should not be focused on whether a
18 permanent conservatorship was established. (Id. at pp. 1205-1206.) The appellate court
found the evidence supported the findings “that the temporary conservatorship was
established in good faith and in the best interests of the [father].” (Id. at p. 1207.) The
appellate court affirmed the award of fees. (Id. at p. 1208.)
In sum, section 2642, subdivision (a) authorizes fees to be paid to “an attorney
who has rendered legal services to the . . . conservator of the person.” Cornelius
provides that if a temporary conservatorship is established, but a permanent
conservatorship never comes to fruition, then the attorney who provided legal services
to the conservator of the person may still collect legal fees, as long as the temporary
conservatorship was sought in good faith and served the best interests of the
conservatee. (Cornelius, supra, 200 Cal.App.4th at p. 1207.)
The direct holding of Cornelius is not applicable in this case because a
permanent conservatorship of the person was established for Conservatee.
5. NIECE’S CONTENTION
Niece asserts that the common thread in Moore, Chilton, and Cornelius is that
fees may be awarded where expenses were incurred in good faith and to serve the best
interests of the conservatee. Thus, all that a person would need to show in order to win
attorney’s fees is that they took action in a probate case in good faith and to serve the
conservatee’s best interests. We reject Niece’s reading of the three cases.
When Moore, Chilton, and Cornelius are read together, they create the rule that a
person can be awarded attorney’s fees if they indirectly, rather than directly, fall within
an established category for an award of fees, and the person acted with good faith and in
19 the conservatee’s best interests. (See Moore, supra, 258 Cal.App.2d at p. 464 [“the
services have been indirectly rendered”].) For example, in Moore, Mathias could not
directly collect attorney’s fees under the common fund doctrine because he indirectly
(rather than directly) assisted in preserving the fund, in that his petition for guardianship
was unsuccessful, but he was the person responsible for initially bringing the matter to
the court’s attention. (Id. at pp. 463-464.) Since Mathias acted in good faith and to
serve the best interests of the conservatee, he could collect under the common fund
doctrine, even though he was indirectly responsible for preserving the common fund.
Thus, the application of the doctrine to him was indirect.
In Cornelius, the daughter and others collected under sections 2641 and 2642,
but to the extent they could not directly collect under those statutes because the
conservatorship was only temporary, the court explained they could indirectly collect
under those statutes because the temporary conservatorship was brought in good faith
and to serve the best interests of the conservatee. (Cornelius, supra, 200 Cal.App.4th at
pp. 1204-1207.)
In Chilton, the attorney purportedly had a retainer agreement with the
conservatee and had spent 400 hours working for her. (Chilton, supra, 8 Cal.App.3d at
pp. 37, 41.) The court rejected the contract aspect of the attorney’s argument, and
rejected the common fund portion of the attorney’s argument because the benefit
element was not shown. (Id. at p. 43.)
In sum, the rule to take away from reading Moore, Chilton, and Cornelius, is that
there must be some basis either in law or equity for collecting attorney’s fees, and if that
20 basis applies indirectly, and the person seeking attorney’s fees acted in good faith and to
serve the best interests of the conservatee, then attorney’s fees may be awarded.
For example, in the instant case, section 2642, subdivision (a), provides, “an
attorney who has rendered legal services to the . . . conservator of the person . . . may
petition the court for an order fixing and allowing compensation for such services
rendered to that time.” Arguably, this statute could indirectly apply to Niece’s attorney.
It was Niece’s objection that requested Jenkins be appointed as conservator of the
person. Ultimately, Jenkins was appointed conservator of the person. To the extent it
could be found Niece’s attorney rendered legal services to the conservator of the person
by indirectly establishing the conservatorship of the person, then fees could be awarded
indirectly under section 2642, if it were also found Niece acted in good faith and to
benefit Conservatee.
The foregoing example is a hypothetical example because Niece did not raise this
argument at the probate court or at this court. Rather, Niece focused primarily on the
portions of Moore, Chilton, and Cornelius that require good faith and a benefit to the
conservatee. In regard to the bases for awarding fees, as set forth ante, Niece relied
upon the common fund doctrine and section 2640.1, neither of which applies in this
case. Therefore, while Niece may have support for the argument that she acted in good
faith and to benefit Conservatee, she did not identify a proper basis for the indirect
award of fees. As set forth ante, section 2642 could provide a proper basis for the
indirect award, but we cannot know for certain because the argument was not developed
on this issue. As a result, Niece’s reliance on Moore, Chilton, and Cornelius is not
21 persuasive because, while she may have acted in good faith and to benefit Conservatee,
she has not identified a proper basis for the indirect award of attorney’s fees. (See
generally Estate of Sobol (2014) 225 Cal.App.4th 771, 783 [issue not raised is
forfeited].)
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RICHLI Acting P. J.
KING J.