Probate: Former Trustee Properly Surcharged With Attorney’s Fees For Bad Faith Trustee Conduct Relating To Contesting Accounting Objections/Presenting Unsupported Objections To Successor Trustee’s Accountings

However, Lack Of Admissible Evidence Did Require A $78,000 Reduction In The Total Surcharges.

            Justice Fybel in Bronson v. Jones, Case No. G055462 (4^th Dist., Div. 3 Sept. 13, 2019) (unpublished), except in two respects, affirmed a lower court’s surcharging of a former trustee’s attorney’s fees based on her bad faith conduct as a trustee in opposing objections to her reports and in objecting to the successor trustee’s reports.  The 4/3 DCA panel found that the fees incurred by beneficiaries were necessary and reasonable.  Furthermore, bad faith had been demonstrated because former trustee had brought 19 separate objections to successor trustee’s accountings and did not prove any with supporting evidence.  (Prob. Code, § 17211; Powell v. Tagami, 26 Cal.App.5^th 219, 234 (2018).)

            In doing so, Justice Fybel penned an excellent discussion of how a fee claimant presents evidence so it is admissible as far as obtaining reimbursement for an attorney’s work.  Invoices and billing statements authenticated by attorneys (including an attorney who is familiar with a former attorney’s work, if that attorney died or was otherwise unavailable) will support a fee award so as to avoid a hearsay objection.  (See, e.g., Powell v. Tagami, 26 Cal.App.5th at 230 [attorney’s declaration attaching his billing statements as well as billing statements for other attorneys was sufficient basis to determine attorney fees award]; Horsford v. Board of Trustees of California State University, 132 Cal.App.4th 359, 396 (2005) [“[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous”]; Cates v. Chiang, 213 Cal.App.4th 791, 821-822 (2013) [trial court may award attorney fees for work performed by previous counsel based on later counsel’s reconstructed summary of their work]; Weber v. Langholz, 39 Cal.App.4th 1578, 1587 (1995) [declaration of counsel made under penalty of perjury and verified cost memorandum is sufficient to support award of attorney fees].)  One should also read Justice Fybel’s prior decision in Copenbarger v. Morris Cerullo World Evangelism, Inc., 29 Cal.App5th 1, 13 (2018) [reviewed in our October 20, 2018 post before it was certified for publication], where a trial court judgment was reversed because a client improperly attempted to authenticate attorney invoices such that there was no admissible evidence to support the judgment.

            However, in Bronson, $78,000 of the surcharges had to be excised from the judgment, otherwise affirmed, because no admissible evidence was introduced to support the awarded amounts.