Fourth District, Division 3 Affirms Sizable Extraordinary Fee Award Under Abuse of Discretion Standard.
Acting Presiding Justice O’Leary, in the 3-0 unpublished decision in Estate of Fernandez, Case No. G041272 (4th Dist., Div. 3 Dec. 7, 2010) (unpublished), has a nice discussion of the difference between “ordinary” and “extraordinary” compensation in the probate area as well as a good discussion of the abuse of discretion review standard generally applicable to review of the amount of fees awarded.
Extraordinary fees of $101,000 were awarded to special estate administrator, along with $312,666.75 and $257,945 to his two attorneys. The fees were challenged on appeal, but were not overturned.
Justice O’Leary noted the probate arena differences between “ordinary” compensation, based on a sliding scale of the value percentages of the estate accounted for, versus “extraordinary” compensation for which there are no set rates except for the lower court’s gauge of reasonableness. In determining extraordinary compensation, the lower court takes into account the value of the estate, the nature/difficulty of the tasks performed and time spent, the results achieved, whether those results benefited the estate as a whole, and whether the amount of ordinary compensation payable would be reasonable alone. (Ross, Cal. Practice Guide: Probate (The Rutter Group 2009) ¶ 16:327.4 at p. 16-99, ¶ 16:330 at pp. 100-101.)
The problem here was that the litigation was abundant (the trial court’s register of action was 146 pages long) and the fee battle was extensively litigated to boot. Appellants could not surmount the abuse of discretion standard accorded to the lower court fee determinations, with Justice O’Leary colorfully borrowing from the “uphill battle” language in Estate of Gilkison, 65 Cal.App.4th 1443, 1448 [“This is an uphill battle which, absent unusual circumstances, may be equated with confederate General John Bell Hood’s attempt to capture ‘Little Round Top’ at the battle of Gettysburg in the Civil War. General Hood did not succeed.”].
Dead at Little Round Top – position of Berdan’s Sharpshooters – Gettysburg. Stereograph. July 1863.
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