No Apportionment Required Because Elder Abuse and Fiduciary Duty Breach Claims Were Intertwined.
In Keading v. Keading, Case No. A153628 (1st Dist., Div. 3 Apr. 28, 2023) (unpublished), a beneficiary successfully obtained an elder abuse finding and successfully removed a trustee under Probate Code section 850, which allows a probate judge under related Probate Code section 859 to award reasonable attorney’s fees to the prevailing party (mandatory under the elder abuse fee shifting statute but discretionary on other claims). The prevailing beneficiary moved for $598,158.93 in fees under the elder abuse statute, arguing no apportionment was necessary because elder abuse and fiduciary breach claims were intertwined, and asking for a 1.75 multiplier. The lower court, after making downward adjustments for duplication (two attorneys at trial) and excessive hourly rates, awarded $441,295.63 in fees under the elder abuse fee shifting statute, inclusive of a 1.25 multiplier.
Removed trustee was miffed, appealing the fee order. The order was affirmed on appeal.
No apportionment was necessary because there was a common nucleus of facts between the elder abuse and fiduciary breach claims. Appellant argued that an evidentiary hearing on the fee request should have been held, but the appellate court agreed that the facial request was reasonable, everyone got to support their respective positions on the fee request, and the probate judge did reduce the fee request. Fee award affirmed.
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