Filed 5/08/20 Cronin v. Hurst CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

JAMIE CRONIN,

Plaintiff and Respondent,

v.

JASON W. HURST,

Defendant and Appellant.

G057303

(Super. Ct. No. 30‑2016‑00840418)

O P I N I O N
Appeal from an order of the Superior Court of Orange County, Jacki C. Brown, Judge. Affirmed.

Knypstra Hermes, Bradley P. Knypstra and Grant Hermes for Defendant and Appellant.

Bezaire, Ledwitz & Associates and Richard Seegman for Plaintiff and Respondent.

* * *

I. Introduction

After a trial on three petitions in a trust matter, the trial court issued a statement of decision finding Jason W. Hurst had engaged in self-dealing and acted in bad faith while serving as the trustee. The court ordered that attorney fees be surcharged against him. Jamie Cronin, his sister and a successfully petitioning trust beneficiary, brought a motion based on Probate Code section 17211, subdivision (b) (section 17211(b)) to prove up (fix) the amount of attorney fees. Hurst appeals from the order granting that motion and awarding Cronin $117,436.24. He contends the trial court erred and violated his due process rights by awarding attorney fees without a noticed motion and without considering evidence he had acted in good faith in administering the trust. We conclude otherwise and affirm.

II. Facts and Procedural History

The appellate record does not include the evidence presented at trial and the facts are taken largely from the trial court’s statement of decision. According to the statement of decision, Laila Hurst created a revocable living trust dated August 23, 2012 (the Trust) in order to distribute her assets upon her death, which occurred in March 2015. Laila Hurst was the initial trustee and Hurst, her son, became trustee on her death.

Cronin (Laila Hurst’s daughter and Hurst’s sister) brought a petition to compel an accounting and to instruct the trustee to make a distribution (Cronin’s petition). Joy Linehan (another daughter of Laila Hurst and sister of Hurst) brought a petition to interpret the trust, remove the trustee, and compel an accounting (Linehan’s petition). Hurst filed two petitions: (1) a petition for instructions and (2) a petition to move three items of property into the trust corpus. A major issue raised by Linehan’s petition was the meaning of a trust provision relating to the distribution of one item of real property to Linehan on the condition she maintained employment for a specified period of time. Cronin and Linehan both asserted that Hurst engaged in misfeasance and self dealing, and acted in bad faith, in administering the Trust.

All four petitions were consolidated for trial. Hurst dismissed his petition for instructions before trial. A trial was conducted over several days on Cronin’s petition, Linehan’s petition, and Hurst’s petition to move three items of property into the trust corpus. Following trial, the court granted Cronin’s petition, granted Linehan’s petition as supplemented, and granted, in part, Hurst’s petition to move property. In the statement of decision, the trial court found: “Hurst has failed in his fiduciary duty to the Trust and all beneficiaries, and has done so in certain instances in a way to benefit himself over the others. This constitutes the ‘bad faith’ for which Laila [Hurst] specifically provided for personal liability. Hurst will not be surcharged for mere negligence in his decision(s) as trustee—such as failing to provide a legal accounting on a semi-annual basis—but will be surcharged for costs, fees and losses due to his hostile actions towards the other beneficiary which resulted in his personal profit and their reduced or delayed benefit.” The court granted Linehan’s request to remove Hurst as trustee.

Cronin brought a motion “for entry of order approving her prove up of her attorneys’ fees and costs awarded by the court in its statement of decision and ruling after trial,” which we shall refer to simply as the attorney fees motion. The attorney fees motion was made pursuant to section 17211(b). Hurst opposed the attorney fees motion on the ground he did not act in bad faith or engage in self dealing and had a reasonable basis and belief to take the actions challenged by Cronin and Linehan. In opposition to the attorney fees motion, Hurst submitted his own declaration and a declaration from the attorney who had represented Laila Hurst when she created the Trust.

The trial court granted the attorney fees motion and awarded Cronin $117,436.24. At the hearing on the motion, the court stated Hurst’s opposition was in effect a motion for reconsideration of the trial court’s finding that Hurst had engaged in self dealing and acted in bad faith. The court denied the motion for reconsideration. The court explained: “[Y]ou have to give me reasons why it couldn’t have been presented earlier for me to then go into the merits all over again; i.e., even if the facts themselves were still the same, your interpretation from those facts are now asking the court to reweigh them in light of your purported interpretation of it.” The court confirmed its prior finding of bad faith. Because the court had already found bad faith, the only issue presented by the attorney fees motion was the “prove up” of the amount of fees to be awarded.

Hurst appealed from the order granting the motion for attorney fees. An order awarding attorney fees under section 17211(b) is directly appealable. (Leader v. Cords (2010) 182 Cal.App.4th 1588, 1594-1595.) Hurst did not appeal from the order granting Cronin’s petition and Linehan’s petition.

III. Discussion

Section 17211(b) reads: “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.”

Section 17211(b) grants the probate court “discretion to award attorney fees to a trust beneficiary who ‘contests the trustee’s account,’ if the court determines the trustee’s opposition to the contest was ‘without reasonable cause and in bad faith.’” (Leader v. Cords, supra, 182 Cal.App.4th at p. 1591.) Section 17211(b) applies to a trust beneficiary’s petition to compel an accounting, for a final distribution, and for a determination the trustee’s conduct constituted a breach of the trust. (Leader v. Cords, supra, at p. 1599.)

Following a full trial on the three petitions, the trial court issued a statement of decision finding Hurst had acted in bad faith and without reasonable cause—the factual predicate for awarding attorney fees under section 17211(b)—and ordering that he be surcharged for attorney fees and costs. Hurst did not appeal from the order granting Cronin’s petition, Linehan’s petition, and his own petition, and thereby forfeited any right to appellate review of the trial court’s findings. (Samara v. Matar (2018) 5 Cal.5th 322, 333.) In appealing from the order granting the motion for attorney fees, Hurst does not contend he was denied the opportunity at trial to present evidence he did not act in bad faith or engage in self dealing. Nor does he contend he could not have presented at trial the evidence he presented in opposition to the motion for attorney fees. Nothing in the record, limited as it is, suggests Hurst did not have a full and fair opportunity at trial to argue whether or not he should be surcharged for attorney fees.

Hurst’s contention that the trial court erred by awarding attorney fees without a noticed motion is without merit. The determination of entitlement to statutory attorney fees can be made in the statement of decision without a noticed motion, as it was in this case. (See 612 South LLC v. Laconic Limited Partnership (2010) 184 Cal.App.4th 1270, 1284.) In the statement of decision, the trial court found bad faith and exercised its discretion to surcharge Hurst attorney fees; therefore, the only issue left to be resolved by a noticed motion was the amount of attorney fees to be awarded. Cronin brought a noticed motion for that purpose. In opposing Cronin’s motion for attorney fees, Hurst did not challenge the amount sought and on appeal does not challenge the amount awarded.
 

IV. Disposition

The order granting the motion for attorney fees is affirmed. Respondent to recover costs on appeal.

FYBEL, J.

WE CONCUR:

O’LEARY, P. J.

ARONSON, J.