Penny Collins, et al. v. Sharon Kennedy
Case No: 18CV 00182
Hearing Date: Tue Jun 25, 2019 9:30

Nature of Proceedings: Motion Attorney Fees

Motion of Defendant for Award of Attorney Fees

ATTORNEYS:

For Plaintiff Penny Collins: Self-represented

For Defendant Sharon Kennedy, Trustee: Jana S. Johnston, Allegra Geller-Kudrow, Mullen & Henzell LLP

RULING: For the reasons set forth herein, the Court awards defendant reasonable sanction-based attorney fees of $20,000 to be paid by July 25, 2019.

Background:

On April 23, 2019, the Court held a trial confirmation conference. At that conference, the Court determined that the application of res judicata and evidentiary sanctions precluded plaintiff Penny Collins from introducing evidence sufficient to support any of her claims. The Court therefore determined that defendant Sharon Kennedy, trustee, was entitled to judgment. Also at that conference, the Court expressed its intent to award attorney fees pursuant to Probate Code section 9354, subdivision (c).

On May 8, 2019, the Court entered judgment in favor of defendant. In reviewing the proposed judgment, the Court noted provisions awarding attorney fees to defendant. Upon further consideration, the Court determined not to award attorney fees and struck from the proposed judgment all text relating to the award of attorney fees. The judgment as entered does not award attorney fees.

On June 3, 2019, defendant filed this motion for an award of attorney fees and seeks $57,000 in attorney fees. The motion relies on and cites the Court’s intention at the April 23, 2019, hearing to award attorney fees in this motion.

No opposition or other response has been filed.

Analysis:

“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.” (Prob. Code, § 9354, subd. (c).)

The Court had initially expressed its intent to award attorney fees at the April 23, 2019, conference, and, after reflecting upon the entirety of the litigation, the Court decided to change its mind and did not want to simply make the decision without having the demand of defense counsel based upon what work had been done.

The standard of proof regarding sanction-based fees is that the Court shall first make findings of whether sanctions are appropriate; if so, the Court should then make findings as to what amount of money is reasonable as sanctions.

In this case, based upon all the facts, sanctions are appropriate. Plaintiff never did what the Court repeatedly asked her to do.

The major factors to be considered by a court in fixing reasonable attorney fees include the nature of the litigation and its difficulty; the amount involved; the skill required and the skill employed in handling the litigation; the attention given; the success of the attorney’s efforts and his or her learning, age, and experience in the particular type of work demanded; the intricacies and importance of the litigation; the labor and the necessity for skilled legal training and ability in trying the cause; and the time consumed. When the trial court is informed of the extent and nature of the services rendered, it may rely on its own experience and knowledge in determining their reasonable value. Moreover, the exercise of sound discretion by the trial court in the matter of attorney fees includes also judicial evaluation of whether counsel’s skill and effort were wisely devoted to the expeditious disposition of the case.

In this case the Court awards defendant reasonable sanction-based attorney fees of $20,000 to be paid by July 25, 2019.