The State Bar of California Trusts and Estates Section 2016 Summer Education Conference Sheraton Grand Sacramento Hotel Sacramento, CA Session 4 Recovering and Defeating Attorney Fees in Trust/Probate Litigation Friday, June 24, 2016 3:00 PM 4:30 PM Conference Reference Materials Points of view or opinions expressed in these pages are those of the speaker(s) and/or author(s). They have not been adopted or endorsed by the State Bar of California Board of Trustees and do not constitute the official position or policy of the State Bar of California. Nothing contained herein is intended to address any specific legal inquiry, nor is it a substitute for independent legal research to original sources or obtaining separate legal advice regarding specific legal situations. 2016 State Bar of California All Rights Reserved
The Recovery and Defeat of Attorney Fees in Probate & Trust Litigation Proceedings Index Item Page: Program Agenda. 1 Select Probate Code Provisions Relating to Attorney Fees 2 Digest of Key Cases Relating to Recovery of Attorney Fees. 20 1. The American Rule AGENDA FOR SEMINAR 2. Overview of Probate Code Attorney Fee Statutes. 3. CCP 128.5 and Levy v. Blum (2001) 92 Cal. App. 4 th 625 4. The equitable power of the probate court under Rudnick v. Rudnick (2009) 179 Cal. App. 4 th 1328 to award attorney fees based on bad faith 5. The standard for recovery of attorney fees under Financial Elder Abuse statutes and supporting case law. 6. Challenging trustee s attorney litigation fees under Terry v. Conlan (2005) 131 Cal. App. 4 th 1445 7. Allocation of litigation fees under common fund theory 8. Recovering attorney fees for the fiduciary client even if your lose under Estate of Tyrnin (1989) 49 Cal. 3d 86 9. Recovery of fees in contested creditors claims litigation under Probate Code 934.c. 10. What is reasonable under Donahue v. Donahue (2010) 182 Cal. App. 4 th 259 11. Use of trust funds with court authorization to defend challenge to validity of a trust under Doolittle v. Exchange Bank (241 Cal. App. 4 th 529. 1
Estate Management Court Supervision PROBATE CODE STATUTES RELATING TO ATTORNEYS FEES DECEDENT S ESTATES 9614. Suspension of powers of personal representative; hearing (a) On petition of an interested person, the court may suspend the powers of the personal representative in whole or in part, for a time, as to specific property or circumstances or as to specific duties of the office, or may make any other order to secure proper performance of the duties of the personal representative, if it appears to the court that the personal representative otherwise may take some action that would jeopardize unreasonably the interest of the petitioner. Persons with whom the personal representative may transact business may be made parties. (b) The matter shall be set for hearing within 10 days unless the parties agree otherwise. Notice as the court directs shall be given to the personal representative and attorney of record, if any, and to any other parties named in the petition. (c) The court may, in its discretion, if it determines that the petition was brought unreasonably and for the purpose of hindering the personal representative in the performance of the duties of the office, assess attorney s fees against the petitioner and make the assessment a charge against the interest of the petitioner. Compensation of Personal Representative and Attorney 10800. Based on value of estate (a) Subject to the provisions of this part, for ordinary services the personal representative shall receive compensation based on the value of the estate accounted for by the personal representative, as follows: (1) Four percent on the first one hundred thousand dollars ($100,000). (2) Three percent on the next one hundred thousand dollars ($100,000). (3) Two percent on the next eight hundred thousand dollars ($800,000). (4) One percent on the next nine million dollars ($9,000,000). (5) One-half of one percent on the next fifteen million dollars ($15,000,000). (6) For all amounts above twenty-five million dollars ($25,000,000), a reasonable amount to be determined by the court. (b) For the purposes of this section, the value of the estate accounted for by the personal representative is the total amount of the appraisal value of property in the inventory, plus gains over the appraisal value on sales, plus receipts, less losses from the appraisal value on sales, without reference to encumbrances or other obligations on estate property. 10801. Additional compensation; employment of tax experts (a) Subject to the provisions of this part, in addition to the compensation provided by Section 10800, the court may allow additional compensation for extraordinary services by the personal representative in an amount the court determines is just and reasonable. 2
(b) The personal representative may also employ or retain tax counsel, tax auditors, accountants, or other tax experts for the performance of any action which such persons, respectively, may lawfully perform in the computation, reporting, or making of tax returns, or in negotiations or litigation which may be necessary for the final determination and payment of taxes, and pay from the funds of the estate for such services. 10802. Compensation provided by will; petition for relief from provision; notice (a) Except as otherwise provided in this section, if the decedent's will makes provision for the compensation of the personal representative, the compensation provided by the will shall be the full and only compensation for the services of the personal representative. (b) The personal representative may petition the court to be relieved from a provision of the will that provides for the compensation of the personal representative. (c) Notice of the hearing on the petition shall be given as provided in Section 1220 to all of the following persons: (1) Each person listed in Section 1220. (2) Each known heir whose interest in the estate would be affected by the petition. (3) Each known devisee whose interest in the estate would be affected by the petition. (4) The Attorney General, at the office of the Attorney General in Sacramento, if any portion of the estate is to escheat to the state and its interest in the estate would be affected by the petition. (d) If the court determines that it is to the advantage of the estate and in the best interest of the persons interested in the estate, the court may make an order authorizing compensation for the personal representative in an amount greater than provided in the will. 10803. Agreement between personal representative and heir or devisee An agreement between the personal representative and an heir or devisee for higher compensation than that provided by this part is void. 10804. Personal representative who is an attorney Notwithstanding any provision in the decedent s will, a personal representative who is an attorney shall be entitled to receive the personal representative s compensation as provided in this part, but shall not receive compensation for services as the attorney for the personal representative unless the court specifically approves the right to the compensation in advance and finds that the arrangement is to the advantage, benefit, and best interests of the decedent s estate. 10810. Compensation for conducting ordinary proceedings (a) Subject to the provisions of this part, for ordinary services the attorney for the personal representative shall receive compensation based on the value of the estate accounted for by the personal representative, as follows: (1) Four percent on the first one hundred thousand dollars ($100,000). (2) Three percent on the next one hundred thousand dollars ($100,000). 3
(3) Two percent on the next eight hundred thousand dollars ($800,000). (4) One percent on the next nine million dollars ($9,000,000). (5) One-half of 1 percent on the next fifteen million dollars ($15,000,000). (6) For all amounts above twenty-five million dollars ($25,000,000), a reasonable amount to be determined by the court. (b) For the purposes of this section, the value of the estate accounted for by the personal representative is the total amount of the appraisal of property in the inventory, plus gains over the appraisal value on sales, plus receipts, less losses from the appraisal value on sales, without reference to encumbrances or other obligations on estate property. 10811. Extraordinary services; additional compensation; contingent fee (a) Subject to the provisions of this part, in addition to the compensation provided by Section 10810, the court may allow additional compensation for extraordinary services by the attorney for the personal representative in an amount the court determines is just and reasonable. (b) Extraordinary services by the attorney for which the court may allow compensation include services by a paralegal performing the extraordinary services under the direction and supervision of an attorney. The petition for compensation shall set forth the hours spent and services performed by the paralegal. (c) An attorney for the personal representative may agree to perform extraordinary service on a contingent fee basis subject to the following conditions: (1) The agreement is written and complies with all the requirements of Section 6147 of the Business and Professions Code. (2) The agreement is approved by the court following a hearing noticed as provided in Section 10812. (3) The court determines that the compensation provided in the agreement is just and reasonable and the agreement is to the advantage of the estate and in the best interests of the persons who are interested in the estate. 10812. Compensation provided by will; petition for relief (a) Except as otherwise provided in this section, if the decedent s will makes provision for the compensation of the attorney for the personal representative, the compensation provided by the will shall be the full and only compensation for the services of the attorney for the personal representative. (b) The personal representative or the attorney for the personal representative may petition the court to be relieved from a provision of the will that provides for the compensation of the attorney for the personal representative. (c) Notice of the hearing on the petition shall be given as provided in Section 1220 to all of the following persons: (1) Each person listed in Section 1220. (2) Each known heir whose interest in the estate would be affected by the petition. (3) Each known devisee whose interest in the estate would be affected by the petition. 4
(4) The Attorney General, at the office of the Attorney General in Sacramento, if any portion of the estate is to escheat to the state and its interest in the estate would be affected by the petition. (5) If the court determines that it is to the advantage of the estate and in the best interest of the persons interested in the estate, the court may make an order authorizing compensation of the attorney for the personal representative in an amount greater than provided in the will. 10813. Agreements for higher compensation An agreement between the personal representative and the attorney for higher compensation for the attorney than that provided by this part is void. 10830. Allowance on compensation; personal representative or attorney; petition; notice; hearing (a) At any time after four months from the issuance of letters: (1) The personal representative may file a petition requesting an allowance on the compensation of the personal representative. (2) The personal representative or the attorney for the personal representative may file a petition requesting an allowance on the compensation of the attorney for the personal representative. (b) Notice of the hearing on the petition shall be given as provided in Section 1220 to all of the following: (1) Each person listed in Section 1220. (2) Each known heir whose interest in the estate would be affected by the payment of the compensation. (3) Each known devisee whose interest in the estate would be affected by the payment of the compensation. (4) The Attorney General, at the office of the Attorney General in Sacramento, if any portion of the estate is to escheat to the state and its interest in the estate would be affected by the petition. (c) On the hearing, the court may make an order allowing the portion of the compensation of the personal representative or the attorney for the personal representative, as the case may be, on account of services rendered up to that time, that the court determines is proper. The order shall authorize the personal representative to charge against the estate the amount allowed. 10832. Compensation for extraordinary services before final distribution Notwithstanding Sections 10830 and 10831, the court may allow compensation to the personal representative or to the attorney for the personal representative for extraordinary services before final distribution when any of the following requirements is satisfied: (a) It appears likely that administration of the estate will continue, whether due to litigation or otherwise, for an unusually long time. (b) Present payment will benefit the estate or the beneficiaries of the estate. (c) Other good cause is shown. 5
11003. Costs; attorney fees; liability of contestant or personal representative found in bad faith (a) If the court determines that the contest was without reasonable cause and in bad faith, the court may award against the contestant the compensation and costs of the personal representative and other expenses and costs of litigation, including attorney s fees, incurred to defend the account. The amount awarded is a charge against any interest of the contestant in the estate and the contestant is personally liable for any amount that remains unsatisfied. (b) If the court determines that the opposition to the contest was without reasonable cause and in bad faith, the court may award the contestant the costs of the contestant and other expenses and costs of litigation, including attorney s fees, incurred to contest the account. The amount awarded is a charge against the compensation or other interest of the personal representative in the estate and the personal representative is liable personally and on the bond, if any, for any amount that remains unsatisfied. 11955. Expenses of partition; attorney fees; unpaid expenses as lien The expenses of partition shall be equitably apportioned by the court among the parties, but each party must pay the party s own attorney s fees. The amount charged to each party shall be included and specified in the order and, to the extent unpaid, constitutes a lien on the property allotted to the party. 12205. Reduction of compensation; personal representative or attorney (a) The court may reduce the compensation of the personal representative or the attorney for the personal representative by an amount the court determines to be appropriate if the court makes all of the following determinations: (1) The time taken for administration of the estate exceeds the time required by this chapter or prescribed by the court. (2) The time taken was within the control of the personal representative or attorney whose compensation is being reduced. (3) The delay was not in the best interest of the estate or interested persons. (b) An order under this section reducing compensation may be made regardless of whether the compensation otherwise allowable under Part 7 (commencing with Section 10800) would be reasonable compensation for the services rendered by the personal representative or attorney. (c) An order under this section may be made at any of the following hearings: (1) The hearing for final distribution. (2) The hearing for an allowance on the compensation of the personal representative or attorney. (d) In making a determination under this section, the court shall take into account any action taken under Section 12202 as a result of a previous delay. Court Order Determining Succession to Property 13157. Attorneys fees The attorney s fees for services performed in connection with the filing of a petition and obtaining a court order under this chapter shall be determined by private agreement between the attorney and the client and are not subject to 6
approval by the court. If there is no agreement between the attorney and the client concerning the attorney s fees for services performed in connection with the filing of a petition and obtaining of a court order under this chapter and there is a dispute concerning the reasonableness of the attorney s fees for those services, a petition may be filed with the court in the same proceeding requesting that the court determine the reasonableness of the attorney s fees for those services. If there is an agreement between the attorney and the client concerning the attorney s fees for services performed in connection with the filing of a petition and obtaining a court order under this chapter and there is a dispute concerning the meaning of the agreement, a petition may be filed with the court in the same proceeding requesting that the court determine the dispute. Collection of Compensation Owed to Deceased Spouse 13604. Refusal to pay; action; attorneys fees (a) If the employer refuses to pay as required by this chapter, the surviving spouse may recover the amount the surviving spouse is entitled to receive under this chapter in an action brought for that purpose against the employer. (b) If an action is brought against the employer under this section, the court shall award reasonable attorney s fees to the surviving spouse if the court finds that the employer acted unreasonably in refusing to pay as required by this chapter. Determination or Confirmation of Property Passing to or Belonging to Surviving Spouse 13660. Attorneys fees The attorney s fees for services performed in connection with the filing of a petition and obtaining of a court order under this chapter shall be determined by private agreement between the attorney and the client and are not subject to approval by the court. If there is no agreement between the attorney and the client concerning the attorney s fees for services performed in connection with the filing of a petition and obtaining of a court order under this chapter and there is a dispute concerning the reasonableness of the attorney s fees for those services, a petition may be filed with the court in the same proceeding requesting that the court determine the reasonableness of the attorney s fees for those services. If there is an agreement between the attorney and the client concerning the attorney s fees for services performed in connection with the filing of a petition and obtaining a court order under this chapter and there is a dispute concerning the meaning of the agreement, a petition may be filed with the court in the same proceeding requesting that the court determine the dispute. TRUSTS Resignation and Removal of Trustee 15642. Removal of trustee; grounds; costs; surrender of property or suspension of powers (a) A trustee may be removed in accordance with the trust instrument, by the court on its own motion, or on petition of a settlor, cotrustee, or beneficiary under Section 17200. (b) The grounds for removal of a trustee by the court include the following: (1) Where the trustee has committed a breach of the trust. (2) Where the trustee is insolvent or otherwise unfit to administer the trust. (3) Where hostility or lack of cooperation among co-trustees impairs the administration of the trust. 7
(4) Where the trustee fails or declines to act. (5) Where the trustee s compensation is excessive under the circumstances. (6) Where the sole trustee is a person described in subdivision (a) of Section 21350 or subdivision (a) of Section 21380, whether or not the person is the transferee of a donative transfer by the transferor, unless, based upon any evidence of the intent of the settlor and all other facts and circumstances, which shall be made known to the court, the court finds that it is consistent with the settlor s intent that the trustee continue to serve and that this intent was not the product of fraud or undue influence. Any waiver by the settlor of this provision is against public policy and shall be void. This paragraph shall not apply to instruments that became irrevocable on or before January 1, 1994. This paragraph shall not apply if any of the following conditions are met: (A) The settlor is related by blood or marriage to, or is a cohabitant with, any one or more of the trustees, the person who drafted or transcribed the instrument, or the person who caused the instrument to be transcribed. (B) The instrument is reviewed by an independent attorney who (1) counsels the settlor about the nature of his or her intended trustee designation and (2) signs and delivers to the settlor and the designated trustee a certificate in substantially the following form: CERTIFICATE OF INDEPENDENT REVIEW I, (attorney's name) (name of instrument) (name of client) legal effect of the designation as trustee of contained in that instrument. I am so disassociated from the interest of the person named as trustee as to be in a position to advise my client impartially and confidentially as to the consequences of the designation. On the basis of this counsel, I conclude that the designation of a person who would otherwise be subject to removal under paragraph (6) of subdivision (b) of Section 15642 of the Probate Code is clearly the settlor's intent and that intent is not the product of fraud * * * or undue influence. (Name of Attorney) This independent review and certification may occur either before or after the instrument has been executed, and if it occurs after the date of execution, the named trustee shall not be subject to removal under this paragraph. Any attorney whose written engagement signed by the client is expressly limited to the preparation of a certificate under this subdivision, including the prior counseling, shall not be considered to otherwise represent the client. (C) After full disclosure of the relationships of the persons involved, the instrument is approved pursuant to an order under Article 10 (commencing with Section 2580) of Chapter 6 of Part 4 of Division 4. (7) If, as determined under Part 17 (commencing with Section 810) of Division 2, the trustee is substantially unable to manage the trust s financial resources or is otherwise substantially unable to execute properly the duties of the office. When the trustee holds the power to revoke the trust, substantial inability to manage the trust's financial resources or otherwise execute properly the duties of the office may not be proved solely by isolated incidents of negligence or improvidence. 8
(8) If the trustee is substantially unable to resist fraud or undue influence. When the trustee holds the power to revoke the trust, substantial inability to resist fraud or undue influence may not be proved solely by isolated incidents of negligence or improvidence. (9) For other good cause. (c) If, pursuant to paragraph (6) of subdivision (b), the court finds that the designation of the trustee was not consistent with the intent of the settlor or was the product of fraud or undue influence, the person being removed as trustee shall bear all costs of the proceeding, including reasonable attorney s fees. (d) If the court finds that the petition for removal of the trustee was filed in bad faith and that removal would be contrary to the settlor's intent, the court may order that the person or persons seeking the removal of the trustee bear all or any part of the costs of the proceeding, including reasonable attorney s fees. (e) If it appears to the court that trust property or the interests of a beneficiary may suffer loss or injury pending a decision on a petition for removal of a trustee and any appellate review, the court may, on its own motion or on petition of a cotrustee or beneficiary, compel the trustee whose removal is sought to surrender trust property to a cotrustee or to a receiver or temporary trustee. The court may also suspend the powers of the trustee to the extent the court deems necessary. (f) For purposes of this section, the term related by blood or marriage shall include persons within the seventh degree. 15645. Nonrevocable trusts; trustee s refusal to transfer administration of trust If the trustee of a trust that is not revocable has refused to transfer administration of the trust to a successor trust company on request of the beneficiaries described in subdivision (c) of Section 15640 and the court in subsequent proceedings under Section 17200 makes an order removing the existing trustee and appointing a trust company as successor trustee, the court may, in its discretion, award costs and reasonable attorney s fees incurred by the petitioner in the proceeding to be paid by the trustee or from the trust as ordered by the court. Compensation and Indemnification of Trustee 15684. Repayment for expenditures A trustee is entitled to the repayment out of the trust property for the following: (a) Expenditures that were properly incurred in the administration of the trust. (b) To the extent that they benefited the trust, expenditures that were not properly incurred in the administration of the trust. 15687. Attorney acting as trustee; dual compensation; disclosure (a) Notwithstanding any provision of a trust to the contrary, a trustee who is an attorney may receive only (1) the trustee s compensation provided in the trust or otherwise provided in this article or (2) compensation for legal services performed for the trustee, unless the trustee obtains approval for the right to dual compensation as provided in subdivision (d). (b) No parent, child, sibling, or spouse of a person who is a trustee, and no law partnership or corporation whose partner, shareholder, or employee is serving as a trustee shall receive any compensation for legal services performed for 9
the trustee unless the trustee waives trustee compensation or unless the trustee obtains approval for the right to dual compensation as provided in subdivision (d). (c) This section shall not apply if the trustee is related by blood or marriage to, or is a cohabitant with, the settlor. (d) After full disclosure of the nature of the compensation and relationship of the trustee to all persons receiving compensation under this section, the trustee may obtain approval for dual compensation by either of the following: (1) An order pursuant to paragraph (21) of subdivision (b) of Section 17200. (2) Giving 30 days advance written notice to the persons entitled to notice under Section 17203. Within that 30-day period, any person entitled to notice may object to the proposed action by written notice to the trustee or by filing a petition pursuant to paragraph (21) of subdivision (b) of Section 17200. If the trustee receives this objection during that 30-day period and if the trustee wishes dual compensation, the trustee shall file a petition for approval pursuant to paragraph (21) of subdivision (b) of Section 17200. (e) Any waiver of the requirements of this section is against public policy and shall be void. (f) This section applies to services rendered on or after January 1, 1994. Duties of Trustees 16061.9. Notification service by trustee; liability of trustee (a) A trustee who fails to serve the notification by trustee as required by Section 16061.7 on a beneficiary shall be responsible for all damages, attorney s fees, and costs caused by the failure unless the trustee makes a reasonably diligent effort to comply with that section. (b) A trustee who fails to serve the notification by trustee as required by Section 16061.7 on an heir who is not a beneficiary and whose identity is known to the trustee shall be responsible for all damages caused to the heir by the failure unless the trustee shows that the trustee made a reasonably diligent effort to comply with that section. For purposes of this subdivision, reasonably diligent effort means that the trustee has sent notice by first-class mail to the heir at the heir s last mailing address actually known to the trustee. (c) A trustee, in exercising discretion with respect to the timing and nature of distributions of trust assets, may consider the fact that the period in which a beneficiary or heir could bring an action to contest the trust has not expired. Powers of Trustees 16243. Payment of trust expenses The trustee has the power to pay taxes, assessments, reasonable compensation of the trustee and of employees and agents of the trust, and other expenses incurred in the collection, care, administration, and protection of the trust. 16247. Hiring persons The trustee has the power to hire persons, including accountants, attorneys, auditors, investment advisers, appraisers (including probate referees appointed pursuant to Section 400), or other agents, even if they are associated or affiliated with the trustee, to advise or assist the trustee in the performance of administrative duties. 10
Proceedings Concerning Trusts 17211. Contests of accounts and opposition to contests without reasonable cause or in bad faith; payment of costs and expenses; personal liability (a) If a beneficiary contests the trustee s account and the court determines that the contest was without reasonable cause and in bad faith, the court may award against the contestant the compensation and costs of the trustee and other expenses and costs of litigation, including attorney s fees, incurred to defend the account. The amount awarded shall be a charge against any interest of the beneficiary in the trust. The contestant shall be personally liable for any amount that remains unsatisfied. (b) If a beneficiary contests the trustee s account and the court determines that the trustee s opposition to the contest was without reasonable cause and in bad faith, the court may award the contestant the costs of the contestant and other expenses and costs of litigation, including attorney s fees, incurred to contest the account. The amount awarded shall be a charge against the compensation or other interest of the trustee in the trust. The trustee shall be personally liable and on the bond, if any, for any amount that remains unsatisfied. Allowance and Rejection of Claims 19255. Rejected claims; actions on claim for referral to referee or arbitration; commencement of action; notice; property distributed; court costs and litigation expenses (a) A rejected claim is barred as to the part rejected unless the creditor brings an action on the claim or the matter is referred to a referee or to arbitration within the following times, excluding any time during which there is a vacancy in the office of the trustee: (1) If the claim is due at the time of giving the notice of rejection, 90 days after the notice is given. (2) If the claim is not due at the time of giving the notice of rejection, 90 days after the claim becomes due. (b) In addition to any other county in which an action on a rejected claim may be commenced, the action may be commenced in the county or city and county wherein the principal place of administration of the trust is located. (c) The creditor shall file a notice of the pendency of the action or the referral to a referee or to arbitration with the court clerk in the trust proceeding, together with proof of giving a copy of the notice to the trustee as provided in Section 1215. Personal service of a copy of the summons and complaint on the trustee is equivalent to the filing and giving of the notice. (d) Any property distributed by the trustee under the terms of the trust after 120 days from the later of the time the notice of rejection is given or the claim is due and before the notice of pendency of action or referral or arbitration is filed and given, excluding therefrom any time during which there is a vacancy in the office of the trustee, is not subject to the claim. Neither the trustee nor the distributee is liable on account of the distribution. (e) The prevailing party in the action shall be awarded court costs and, if the court determines that the prosecution or defense of the action against the prevailing party was unreasonable, the prevailing party shall be awarded reasonable litigation expenses, including attorney s fees. For the purpose of this subdivision, the prevailing party shall be the trustee if the creditor recovers an amount equal to or less than the amount of the claim allowed by the trustee, and shall be the creditor if the creditor recovers an amount greater than the amount of the claim allowed by the trustee. 11
CONSTRUCTION OF WILLS AND TRUSTS 21380. Presumption of fraud or undue influence for certain enumerated transfers; burden of proof; costs and attorney s fees (a) A provision of an instrument making a donative transfer to any of the following persons is presumed to be the product of fraud or undue influence: (1) The person who drafted the instrument. (2) A person in a fiduciary relationship with the transferor who transcribed the instrument or caused it to be transcribed. (3) A care custodian of a transferor who is a dependent adult, but only if the instrument was executed during the period in which the care custodian provided services to the transferor, or within 90 days before or after that period. (4) A person who is related by blood or affinity, within the third degree, to any person described in paragraphs (1) to (3), inclusive. (5) A cohabitant or employee of any person described in paragraphs (1) to (3), inclusive. (6) A partner, shareholder, or employee of a law firm in which a person described in paragraph (1) or (2) has an ownership interest. (b) The presumption created by this section is a presumption affecting the burden of proof. The presumption may be rebutted by proving, by clear and convincing evidence, that the donative transfer was not the product of fraud or undue influence. (c) Notwithstanding subdivision (b), with respect to a donative transfer to the person who drafted the donative instrument, or to a person who is related to, or associated with, the drafter as described in paragraph (4), (5), or (6) of subdivision (a), the presumption created by this section is conclusive. (d) If a beneficiary is unsuccessful in rebutting the presumption, the beneficiary shall bear all costs of the proceeding, including reasonable attorney s fees. WELFARE AND INSTITUTIONS CODE ELDER ABUSE AND DEPENDENT ADULT CIVIL PROTECTION ACT 15657. Defendant liable for physical abuse or neglect; attorney s fees and costs; limits on damages; punitive damages Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law: (a) The court shall award to the plaintiff reasonable attorney s fees and costs. The term costs includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article. 12
(b) The limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code. (c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney s fees permitted under this section may be imposed against an employer. 15657.03. Protective orders The statute below is effective July 1, 2016 (a)(1) An elder or dependent adult who has suffered abuse, as defined in Section 15610.07, may seek protective orders as provided in this section. (2) A petition may be brought on behalf of an abused elder or dependent adult by a conservator or a trustee of the elder or dependent adult, an attorney-in-fact of an elder or dependent adult who acts within the authority of a power of attorney, a person appointed as a guardian ad litem for the elder or dependent adult, or other person legally authorized to seek the relief. (3)(A) A petition under this section may be brought on behalf of an elder or dependent adult by a county adult protective services agency in either of the following circumstances: (i) If the elder or dependent adult has suffered abuse as defined in subdivision (b) and has an impaired ability to appreciate and understand the circumstances that place him or her at risk of harm. (ii) If the elder or dependent adult has provided written authorization to a county adult protective services agency to act on his or her behalf. (B) In the case of a petition filed pursuant to clause (i) of subparagraph (A) by a county adult protective services agency, a referral shall be made to the public guardian consistent with Section 2920 of the Probate Code prior to or concurrent with the filing of the petition, unless a petition for appointment of a conservator has already been filed with the probate court by the public guardian or another party. (C) A county adult protective services agency shall be subject to any confidentiality restrictions that otherwise apply to its activities under law and shall disclose only those facts as necessary to establish reasonable cause for the filing of the petition, including, in the case of a petition filed pursuant to clause (i) of subparagraph (A), to establish the agency s belief that the elder or dependent adult has suffered abuse and has an impaired ability to appreciate and understand the circumstances that place him or her at risk, and as may be requested by the court in determining whether to issue an order under this section. (b) For purposes of this section: (1) Abuse has the meaning set forth in Section 15610.07. (2) Conservator means the legally appointed conservator of the person or estate of the petitioner, or both. (3) Petitioner means the elder or dependent adult to be protected by the protective orders and, if the court grants the petition, the protected person. (4) Protective order means an order that includes any of the following restraining orders, whether issued ex parte, after notice and hearing, or in a judgment: 13
(A) An order enjoining a party from abusing, intimidating, molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, or coming within a specified distance of, or disturbing the peace of, the petitioner, and, in the discretion of the court, on a showing of good cause, of other named family or household members or a conservator, if any, of the petitioner. On a showing of good cause, in an order issued pursuant to this subparagraph in connection with an animal owned, possessed, leased, kept, or held by the petitioner, or residing in the residence or household of the petitioner, the court may do either or both of the following: (i) Grant the petitioner exclusive care, possession, or control of the animal. (ii) Order the respondent to stay away from the animal and refrain from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal. (B) An order excluding a party from the petitioner s residence or dwelling, except that this order shall not be issued if legal or equitable title to, or lease of, the residence or dwelling is in the sole name of the party to be excluded, or is in the name of the party to be excluded and any other party besides the petitioner. (C) An order enjoining a party from specified behavior that the court determines is necessary to effectuate orders described in subparagraph (A) or (B). (5) Respondent means the person against whom the protective orders are sought and, if the petition is granted, the restrained person. (c) An order may be issued under this section, with or without notice, to restrain any person for the purpose of preventing a recurrence of abuse, if a declaration shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse of the petitioning elder or dependent adult. (d) Upon filing a petition for protective orders under this section, the petitioner may obtain a temporary restraining order in accordance with Section 527 of the Code of Civil Procedure, except to the extent this section provides a rule that is inconsistent. The temporary restraining order may include any of the protective orders described in paragraph (4) of subdivision (b). However, the court may issue an ex parte order excluding a party from the petitioner s residence or dwelling only on a showing of all of the following: (1) Facts sufficient for the court to ascertain that the party who will stay in the dwelling has a right under color of law to possession of the premises. (2) That the party to be excluded has assaulted or threatens to assault the petitioner, other named family or household member of the petitioner, or a conservator of the petitioner. (3) That physical or emotional harm would otherwise result to the petitioner, other named family or household member of the petitioner, or a conservator of the petitioner. (e) A request for the issuance of a temporary restraining order without notice under this section shall be granted or denied on the same day that the petition is submitted to the court, unless the petition is filed too late in the day to permit effective review, in which case the order shall be granted or denied on the next day of judicial business in sufficient time for the order to be filed that day with the clerk of the court. (f) Within 21 days, or, if good cause appears to the court, 25 days, from the date that a request for a temporary restraining order is granted or denied, a hearing shall be held on the petition. If no request for temporary orders is 14
made, the hearing shall be held within 21 days, or, if good cause appears to the court, 25 days, from the date that the petition is filed. (g) The respondent may file a response that explains or denies the alleged abuse. (h) The court may issue, upon notice and a hearing, any of the orders set forth in paragraph (4) of subdivision (b). The court may issue, after notice and hearing, an order excluding a person from a residence or dwelling if the court finds that physical or emotional harm would otherwise result to the petitioner, other named family or household member of the petitioner, or conservator of the petitioner. (i)(1) In the discretion of the court, an order issued after notice and a hearing under this section may have a duration of not more than five years, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party. These orders may be renewed upon the request of a party, either for five years or permanently, without a showing of any further abuse since the issuance of the original order, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party. The request for renewal may be brought at any time within the three months before the expiration of the order. (2) The failure to state the expiration date on the face of the form creates an order with a duration of three years from the date of issuance. (3) If an action is filed for the purpose of terminating or modifying a protective order prior to the expiration date specified in the order by a party other than the protected party, the party who is protected by the order shall be given notice, pursuant to subdivision (b) of Section 1005 of the Code of Civil Procedure, of the proceeding by personal service or, if the protected party has satisfied the requirements of Chapter 3.1 (commencing with Section 6205) of Division 7 of Title 1 of the Government Code, by service on the Secretary of State. If the party who is protected by the order cannot be notified prior to the hearing for modification or termination of the protective order, the court shall deny the motion to modify or terminate the order without prejudice or continue the hearing until the party who is protected can be properly noticed and may, upon a showing of good cause, specify another method for service of process that is reasonably designed to afford actual notice to the protected party. The protected party may waive his or her right to notice if he or she is physically present in court and does not challenge the sufficiency of the notice. (j) In a proceeding under this section, a support person may accompany a party in court and, if the party is not represented by an attorney, may sit with the party at the table that is generally reserved for the party and the party s attorney. The support person is present to provide moral and emotional support for a person who alleges he or she is a victim of abuse. The support person is not present as a legal adviser and may not provide legal advice. The support person may assist the person who alleges he or she is a victim of abuse in feeling more confident that he or she will not be injured or threatened by the other party during the proceedings if the person who alleges he or she is a victim of abuse and the other party are required to be present in close proximity. This subdivision does not preclude the court from exercising its discretion to remove the support person from the courtroom if the court believes the support person is prompting, swaying, or influencing the party assisted by the support person. (k) Upon the filing of a petition for protective orders under this section, the respondent shall be personally served with a copy of the petition, notice of the hearing or order to show cause, temporary restraining order, if any, and any declarations in support of the petition. Service shall be made at least five days before the hearing. The court may, on motion of the petitioner or on its own motion, shorten the time for service on the respondent. (l) A notice of hearing under this section shall notify the respondent that if he or she does not attend the hearing, the court may make orders against him or her that could last up to five years. (m) The respondent shall be entitled, as a matter of course, to one continuance, for a reasonable period, to respond to the petition. 15
(n)(1) Either party may request a continuance of the hearing, which the court shall grant on a showing of good cause. The request may be made in writing before or at the hearing or orally at the hearing. The court may also grant a continuance on its own motion. (2) If the court grants a continuance, any temporary restraining order that has been granted shall remain in effect until the end of the continued hearing, unless otherwise ordered by the court. In granting a continuance, the court may modify or terminate a temporary restraining order. (o)(1) If a respondent, named in an order issued under this section after a hearing, has not been served personally with the order but has received actual notice of the existence and substance of the order through personal appearance in court to hear the terms of the order from the court, no additional proof of service is required for enforcement of the order. (2) If the respondent named in a temporary restraining order is personally served with the order and notice of hearing with respect to a restraining order or protective order based on the temporary restraining order, but the respondent does not appear at the hearing, either personally or by an attorney, and the terms and conditions of the restraining order or protective order issued at the hearing are identical to the temporary restraining order, except for the duration of the order, then the restraining order or protective order issued at the hearing may be served on the respondent by first-class mail sent to the respondent at the most current address for the respondent that is available to the court. (3) The Judicial Council form for temporary orders issued pursuant to this subdivision shall contain a statement in substantially the following form: If you have been personally served with a temporary restraining order and notice of hearing, but you do not appear at the hearing either in person or by a lawyer, and a restraining order that is the same as this temporary restraining order except for the expiration date is issued at the hearing, a copy of the order will be served on you by mail at the following address: If that address is not correct or you wish to verify that the temporary restraining order was converted to a restraining order at the hearing without substantive change and to find out the duration of that order, contact the clerk of the court. (p)(1) Information on a protective order relating to elder or dependent adult abuse issued by a court pursuant to this section shall be transmitted to the Department of Justice in accordance with either paragraph (2) or (3). (2) The court shall order the petitioner or the attorney for the petitioner to deliver a copy of an order issued under this section, or a reissuance, extension, modification, or termination of the order, and any subsequent proof of service, by the close of the business day on which the order, reissuance, extension, modification, or termination was made, to each law enforcement agency having jurisdiction over the residence of the petitioner, and to any additional law enforcement agencies within the court's discretion as are requested by the petitioner. (3) Alternatively, the court or its designee shall transmit, within one business day, to law enforcement personnel all information required under subdivision (b) of Section 6380 of the Family Code regarding any order issued under this section, or a reissuance, extension, modification, or termination of the order, and any subsequent proof of service, by either one of the following methods: (A) Transmitting a physical copy of the order or proof of service to a local law enforcement agency authorized by the Department of Justice to enter orders into the California Law Enforcement Telecommunications System (CLETS). (B) With the approval of the Department of Justice, entering the order or proof of service into CLETS directly. 16
(4) Each appropriate law enforcement agency shall make available information as to the existence and current status of these orders to law enforcement officers responding to the scene of reported abuse. (5) An order issued under this section shall, on request of the petitioner, be served on the respondent, whether or not the respondent has been taken into custody, by any law enforcement officer who is present at the scene of reported abuse involving the parties to the proceeding. The petitioner shall provide the officer with an endorsed copy of the order and a proof of service, which the officer shall complete and send to the issuing court. (6) Upon receiving information at the scene of an incident of abuse that a protective order has been issued under this section, or that a person who has been taken into custody is the respondent to that order, if the protected person cannot produce an endorsed copy of the order, a law enforcement officer shall immediately attempt to verify the existence of the order. (7) If the law enforcement officer determines that a protective order has been issued but not served, the officer shall immediately notify the respondent of the terms of the order and where a written copy of the order can be obtained, and the officer shall at that time also enforce the order. The law enforcement officer s verbal notice of the terms of the order shall constitute service of the order and is sufficient notice for the purposes of this section and for the purposes of Section 273.6 of the Penal Code. (q) Nothing in this section shall preclude either party from representation by private counsel or from appearing on the party s own behalf. (r) There is no filing fee for a petition, response, or paper seeking the reissuance, modification, or enforcement of a protective order filed in a proceeding brought pursuant to this section. (s) Pursuant to paragraph (4) of subdivision (b) of Section 6103.2 of the Government Code, a petitioner shall not be required to pay a fee for law enforcement to serve an order issued under this section. (t) The prevailing party in an action brought under this section may be awarded court costs and attorney s fees, if any. (u)(1) A person subject to a protective order under this section shall not own, possess, purchase, receive, or attempt to receive a firearm or ammunition while the protective order is in effect. (2) The court shall order a person subject to a protective order issued under this section to relinquish any firearms he or she owns or possesses pursuant to Section 527.9 of the Code of Civil Procedure. (3) Every person who owns, possesses, purchases, or receives, or attempts to purchase or receive a firearm or ammunition while subject to a protective order issued under this section is punishable pursuant to Section 29825 of the Penal Code. (4) This subdivision does not apply in a case in which a protective order issued under this section was made solely on the basis of financial abuse unaccompanied by force, threat, harassment, intimidation, or any other form of abuse. (v) In a proceeding brought under paragraph (3) of subdivision (a), all of the following apply: (1) Upon the filing of a petition for a protective order, the elder or dependent adult on whose behalf the petition has been filed shall receive a copy of the petition, a notice of the hearing, and any declarations submitted in support of the petition. The elder or dependent adult shall receive this information at least five days before the hearing. The court may, on motion of the petitioner or on its own motion, shorten the time for provision of this information to the elder or dependent adult. 17
(2) The adult protective services agency shall make reasonable efforts to assist the elder or dependent adult to attend the hearing and provide testimony to the court, if he or she wishes to do so. If the elder or dependent adult does not attend the hearing, the agency shall provide information to the court at the hearing regarding the reasons why the elder or dependent adult is not in attendance. (3) Upon the filing of a petition for a protective order and upon issuance of an order granting the petition, the county adult protective services agency shall take all reasonable steps to provide for the safety of the elder or dependent adult, pursuant to Chapter 13 (commencing with Section 15750), which may include, but are not limited to, facilitating the location of alternative accommodations for the elder or dependent adult, if needed. (w) Any willful disobedience of any temporary restraining order or restraining order after hearing granted under this section is punishable pursuant to Section 273.6 of the Penal Code. (x) This section does not apply to any action or proceeding governed by Title 1.6C (commencing with Section 1788) of Part 4 of Division 3 of the Civil Code, Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, or Division 10 (commencing with Section 6200) of the Family Code. Nothing in this section shall preclude a petitioner s right to use other existing civil remedies. (y) The Judicial Council shall develop forms, instructions, and rules relating to matters governed by this section. The petition and response forms shall be simple and concise, and shall be used by parties in actions brought pursuant to this section. (z) This section shall become operative on July 1, 2016. 15657.05. Abduction; attorney's fees and costs; limits on damages; punitive damages Where it is proven by clear and convincing evidence that an individual is liable for abduction, as defined in Section 15610.06, in addition to all other remedies otherwise provided by law: (a)(1) The court shall award to the plaintiff reasonable attorney s fees and costs. The term costs shall include, but is not limited to, costs of representing the abductee and his or her family in this state and any other state in any action related to the abduction and returning of the abductee to this state, as well as travel expenses for returning the abductee to this state and reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article. (2) The award of attorney s fees shall be governed by the principles set forth in Section 15657.1. (b) The limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code. (c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney s fees permitted under this section may be imposed against an employer. 18
15657.1. Attorney's fees; factors The award of attorney s fees pursuant to subdivision (a) of Section 15657 shall be based on all factors relevant to the value of the services rendered, including, but not limited to, the factors set forth in Rule 4-200 of the Rules of Professional Conduct of the State Bar of California, and all of the following: (a) The value of the abuse-related litigation in terms of the quality of life of the elder or dependent adult, and the results obtained. (b) Whether the defendant took reasonable and timely steps to determine the likelihood and extent of liability. (c) The reasonableness and timeliness of any written offer in compromise made by a party to the action. 15657.5. Defendant liable for financial abuse; attorney s fees and costs; limits on damages; punitive damages; statement to be included in judgment (a) Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, in addition to compensatory damages and all other remedies otherwise provided by law, the court shall award to the plaintiff reasonable attorney s fees and costs. The term costs includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article. (b) Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, and where it is proven by clear and convincing evidence that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of the abuse, in addition to reasonable attorney s fees and costs set forth in subdivision (a), compensatory damages, and all other remedies otherwise provided by law, the limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply. (c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any punitive damages may be imposed against an employer found liable for financial abuse as defined in Section 15610.30. This subdivision shall not apply to the recovery of compensatory damages or attorney s fees and costs. (d) Nothing in this section affects the award of punitive damages under Section 3294 of the Civil Code. (e) Any money judgment in an action under this section shall include a statement that the damages are awarded based on a claim for financial abuse of an elder or dependent adult, as defined in Section 15610.30. If only part of the judgment is based on that claim, the judgment shall specify what amount was awarded on that basis. 15657.6. Return of property to elder or dependent adult lacking capacity A person or entity that takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining the real or personal property of an elder or dependent adult when the elder or dependent adult lacks capacity pursuant to Section 812 of the Probate Code, or is of unsound mind, but not entirely without understanding, pursuant to Section 39 of the Civil Code, shall, upon demand by the elder or dependent adult or a representative of the elder or dependent adult, as defined in subdivision (d) of Section 15610.30, return the property and if that person or entity fails to return the property, the elder or dependent adult shall be entitled to the remedies provided by Section 15657.5, including attorney s fees and costs. This section shall not apply to any agreement entered into by an elder or dependent adult when the elder or dependent adult had capacity. 19