Conservatorship of Mazzocco CA4/2

Filed 11/25/14 Conservatorship of Mazzocco CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

Conservatorship of the Person of DAVID
E. MAZZOCCO.

MICHELE MAZZOCCO,
E057485
Petitioner and Appellant,
(Super.Ct.No. INP10000641)
v.
OPINION
ALEXIS MAZZOCCO et al.,

Objectors and Respondents.

APPEAL from the Superior Court of Riverside County. James A. Cox, Judge.

Affirmed.

Best Best & Krieger and G. Henry Welles for Petitioner and Appellant.

Ward & Ward, Alexandra S. Ward; Swan, Carpenter, Wallis & McKenzie and

Kevin McKenzie for Objector and Respondent Alexis Mazzocco.

No appearance for Objector and Respondent Kenneth Jenkins.

This case involves an issue of attorney’s fees in a conservatorship matter.

Michele Mazzocco objected to two conservatorship petitions related to her uncle.

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Subsequently, Michele Mazzocco sought an award of attorney’s fees. The probate court

denied the request for attorney’s fees because it concluded the Probate Code did not

authorize the requested award. Michele Mazzocco contends the probate court erred by

denying her request because the court was authorized to award her attorney’s fees. We

affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

David Mazzocco (Conservatee) has assets worth millions of dollars. In 2010,

Conservatee was 88 years old. Conservatee suffers from moderate to severe dementia.

Conservatee is a widower and has no children; however, he has five nieces and

nephews. For 15 years, Conservatee lived with his companion, Betsy Tworoger

(Companion). One of Conservatee’s nieces, Alexis Mazzocco (Trustee) (1) is

Conservatee’s health care agent, under Conservatee’s Advance Health Care Directive;

(2) is the successor trustee of Conservatee’s trust, following Conservatee’s resignation

as trustee; (3) is the primary and possibly sole contingent beneficiary of Conservatee’s

trust; and (4) has Conservatee’s power of attorney.

In late July 2010 Conservatee suffered a heart attack. In August 2010,

Conservatee had heart surgery. The effects of Conservatee’s dementia accelerated

following the heart attack. In September 2010, Trustee moved Conservatee from the

home he shared with Companion to a memory care facility. The facility is a “restricted

. . . secure . . . facility.” Trustee believed Conservatee needed to be placed in the facility

because (1) Conservatee’s doctor advised such a placement, and (2) Companion

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interfered with home healthcare providers who were caring for Conservatee in his

home.

On November 12, 2010, Companion petitioned the probate court to appoint a

conservator for Conservatee’s person. Companion argued Conservatee had expressed a

desire to live in his home until his death, and to not reside in a care facility. Companion

asserted Conservatee’s best interests would be served by returning Conservatee to his

home, where he could reside with Companion. Companion asserted a conservatorship

was necessary because Conservatee “is financially incapable and has money or property

that requires management or protection.”

Companion asserted Trustee could not be trusted to handle Conservatee’s assets

because (1) Trustee’s son was living in Conservatee’s Oregon condominium;

(2) Trustee’s son was driving Conservatee’s expensive cars; and (3) Trustee was not

using Conservatee’s money to provide the best care for Conservatee. Companion

requested Kenneth Jenkins (Jenkins) be appointed conservator.

On November 17, 2010, Trustee objected to Companion’s petition and petitioned

the probate court to appoint a conservator for Conservatee’s person. Trustee asserted

that Conservatee’s placement in a restricted and secure facility was necessary per the

advice of Conservatee’s doctor. Trustee asserted that Conservatee would be at risk of

harm if returned to his home to reside with Companion because (1) Companion

previously interfered with Conservatee’s in-home caregivers, and (2) Companion was

attempting to isolate Conservatee. Trustee requested she (Trustee) be appointed

conservator of the person.

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 Michele Mazzocco (Niece) is another of Conservatee’s nieces. On November

30, 2010, Niece objected to Companion’s petition and Trustee’s subsequent petition.

Niece objected to Trustee’s subsequent petition because Niece believed Trustee was

attempting to isolate Conservatee in the secure facility, in order to secure Trustee’s role

as the sole beneficiary of Conservatee’s trust. Niece objected to Companion’s petition

because Niece believed Companion wanted Conservatee returned to his home so

Companion could exert influence and control over Conservatee and continue to reside in

Conservatee’s house.

Niece asserted Conservatee needed a conservatorship not just of the person, but

also of his estate. Niece argued that Conservatee’s best interests were not served by

residing in the secure memory facility because Conservatee was being isolated from his

family. Niece tried to contact Conservatee at the facility, but was informed Trustee

forbade such contact. Niece alleged Conservatee had the financial resources to continue

residing at his home with in-home care.

Further, Niece asserted Trustee had a conflict of interest in placing Conservatee

in the secure facility because Trustee, as the sole beneficiary of Conservatee’s trust, had

an interest in minimizing the funds spent on Conservatee’s healthcare. Niece asserted

Trustee had placed Conservatee in a “mediocre locked facility,” rather than provide

more expensive in-home care, in an attempt to save funds for her own future use. Niece

argued Trustee should not have control over Conservatee’s living arrangements due to

Trustee’s conflict of interest.

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 Niece asserted Companion should be removed from Conservatee’s home, and

that Companion’s visitation with Conservatee should be evaluated by the conservator.

Niece contended Companion’s petition was brought to serve her own self-interest

because Companion wanted to continue living in Conservatee’s home and continue

receiving gifts from Conservatee. Niece contended Companion interfered with

Conservatee’s home healthcare in an attempt to continue controlling Conservatee.

Niece argued that an independent conservator should be appointed over

Conservatee’s estate, in addition to Conservatee’s person. Niece asserted the court

should appoint Jenkins as conservator because Jenkins was an independent party.

In January 2011, the probate court appointed Jenkins as temporary conservator of

the person. In April 2011, Companion dismissed her petition to appoint Jenkins as

conservator of the person. Thus, only Trustee’s petition and Niece’s objection remained

active in the case. In January 2012, the probate court appointed Jenkins as conservator

of Conservatee’s person, but did not make an appointment related to Conservatee’s

estate; the parties would only stipulate to Jenkins being conservator of the person.

Conservatee was returned to his home, and Companion was removed from the home.

Niece petitioned the probate court for reimbursement of her attorney’s fees from

Conservatee’s trust, due to her successfully establishing a conservatorship for

Conservatee. Niece reasoned that, since Companion dismissed her petition, only Niece

was advocating for Jenkins to be appointed conservator and for Conservatee to be

returned to his home. Niece requested $12,050 in attorney’s fees and $464.12 in

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administrative costs be paid by Conservatee’s trust. Niece asserted she should be

awarded her attorney’s fees pursuant to Probate Code section 2640.1.1

Section 2640.1, subdivision (a) provides, “If a person has petitioned for the

appointment of a particular conservator and another conservator was appointed while

the petition was pending, but not before the expiration of 90 days from the issuance of

letters, the person who petitioned for the appointment of a conservator but was not

appointed and that person’s attorney may petition the court for an order fixing and

allowing compensation and reimbursement of costs, provided that the court determines

that the petition was filed in the best interests of the conservatee.”

Trustee objected to Niece’s petition for attorney’s fees and costs. Trustee

asserted she (Trustee) was the sole petitioner in the case, after Companion’s petition

was dismissed. Trustee argued Niece was an objector, not a petitioner. Therefore,

Trustee reasoned Niece could not be awarded attorney’s fees and costs because (1)

Niece was not a petitioner, and (2) Niece did not petition for the appointment of a

conservator, who ultimately was not appointed, as required by section 2640.1. Trustee

argued there was no legal authority for awarding attorney’s fees and costs to Niece.

Niece replied to Trustee’s objection. Niece reasserted that she was the only

person seeking to have Jenkins appointed as conservator and that she was successful in

that endeavor. Niece argued that she was entitled to an award of attorney’s fees because

Conservatee benefitted from Niece’s actions. Niece asserted section 2640.1 authorizes

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All further statutory references are to the Probate Code unless otherwise
indicated.

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an award of attorney’s fees in cases where a person “petitions for appointment of a

conservator and successfully obtains appointment of a conservator.” Niece argued that,

in her objection, she requested affirmative relief, such as the appointment of Jenkins,

and therefore, Niece was effectively a petitioner in the case. Niece asserted that

California’s liberal pleading rule should cause her “objection” to be considered a

“petition,” since the title of “objection” does not control the issue. Niece argued that

she should not be penalized for electing to not file a duplicative “petition,” which would

have requested the same actions as her “objection.” Additionally, Niece invoked the

public policy of giving an incentive for people to protect elders.

Trustee asserted Niece’s interpretation of the word “petition” was “grossly

overbroad,” because it eliminated the statute’s (§ 2640.1) limiting language. Trustee

again asserted Niece only filed an objection and therefore was not a petitioner. Trustee

contended a “petitioner” was a person who filed a Petition for Appointment of Probate

Conservator, which is a specific Judicial Council form.

In a reply, Niece asserted the probate court has equitable authority to award

attorney’s fees in cases where there is not statutory authority for such an award. Niece

argued that her actions substantially benefited Conservatee and therefore she could have

her attorney’s fees awarded.

The probate court held a hearing on the attorney’s fees issue. The court issued a

tentative opinion reflecting Niece’s actions were valuable, but that her attorneys should

be paid by Niece rather than Conservatee’s trust. The court explained that it rejected the

equity argument because the primary equity case relied upon by Niece, In re Moore’s

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Estate (1968) 258 Cal.App.2d 458, involved a petitioner who prevailed on part, but not

all of his case. The court explained that a partially successful petition was a key

component to an equitable award of attorney’s fees. Niece asserted the key component

was whether the action significantly benefited the conservatee.

The probate court explained that the case law upon which Niece was relying

predated the creation of section 2640.1. The court explained that section 2640.1

superseded the Moore case. The probate court explained, “[W]hat my fear is that even

though I’m sympathetic with your client’s position, if I started allowing fees to

everybody who came in and objected to a conservatorship, that is certainly not equitable

to the conservatee to allow anybody that comes in that wants to be heard on [a]

conservatorship, and comes in with their attorney, and say[s], ‘Well, now as equity you

need to pay me.’ And so out of some poor old conservatee’s pocket they’re paying for

all the objectors and people who participate for their fees, and I think that’s why the

legislature limited it in their code section.”

Niece asserted the award of attorney’s fees would be limited to cases where the

action benefitted the conservatee and was brought in good faith. Niece further asserted

that her objection was essentially a petition since she requested specific relief. The trial

court concluded, “[A]s much as I would like to order the attorney’s fees, I don’t believe

that it’s proper for me to do so the way the code sections are reading or read. [¶] I

don’t think either of the cases, Cornelius or Moore, overcome the limitations that the

[L]egislature set in the statute, and the [L]egislature has every authority to limit the

court, and I can understand the reasoning why they’ve done it. I’d like to see you paid,

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but I think you’re going to have to ask your client to pay those fees and not the estate.”

The court denied Niece’s request for attorney’s fees and costs.

DISCUSSION

A. CONTENTIONS

In Niece’s appellant’s opening brief she contends the probate court had equitable

authority to award attorney’s fees. Niece contends she incurred attorney’s fees due to

actions that were executed in good faith, and that served Conservatee’s best interests.

Therefore, Niece contends the probate court erred by denying her request for fees and

costs. Trustee appears to agree the probate court has equitable authority to award

attorney’s fees, but asserts Niece does not meet the criteria for an equitable award of

attorney’s fees. In Niece’s reply, she asserts she meets the criteria for an equitable

award of attorney’s fees pursuant to the “common fund” doctrine.

In the instant case, the probate court concluded attorney’s fees could not be

awarded because the statute and cases provided by Niece did not support such an award

in this case. We review a probate court’s legal conclusion regarding the basis, or lack of

basis, for an award of attorney’s fees de novo, because the issue is a question of law.

(Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4th 918, 923; Ramon v. County of Santa

Clara (2009) 173 Cal.App.4th 915, 920-921.)

B. SECTION 2640.1

Before addressing the issues of general equity and the common fund doctrine, we

address section 2640.1, because that section was the focus of the probate court’s

reasoning. The language of section 2640.1 is set forth ante, but we present it again here

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for ease of reference. Section 2640.1, subdivision (a) provides: “If a person has

petitioned for the appointment of a particular conservator and another conservator was

appointed while the petition was pending, but not before the expiration of 90 days from

the issuance of letters, the person who petitioned for the appointment of a conservator

but was not appointed and that person’s attorney may petition the court for an order

fixing and allowing compensation and reimbursement of costs, provided that the court

determines that the petition was filed in the best interests of the conservatee.”

A “‘[p]etition’ includes an application or request in the nature of a petition.”

(§ 1430.) The foregoing definition of “petition” could, arguably, include Niece’s

objection wherein she made specific requests regarding the appointment of particular

conservator. While labeled “objection,” the document could be in the nature of a

petition due to the request for a specific conservator to be appointed. Therefore, we will

assume, without deciding, that Niece’s objection was a “petition.”

Assuming that Niece’s filing qualified as a “petition,” in order to receive an

award of attorney’s fees under section 2640.1, Niece would need to show (1) she

petitioned for the appointment of a particular conservator; and (2) while her petition was

pending, a different conservator was appointed. (§ 2640.1, subd. (a).)

Assuming Niece filed a “petition,” her request for attorney’s fees and costs under

section 2640.1 would fail because Niece has not shown she unsuccessfully petitioned

for the appointment of a conservator, rather, Niece was successful—Jenkins was

appointed the conservator of the person. A different conservator was not appointed.

Niece was unsuccessful on the conservator of the estate portion of her request, but a

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different conservator was not appointed as conservator of the estate; rather, no one was

appointed conservator of the estate. Therefore, Niece’s claim would also fail in that

regard. Under section 2640.1, assuming Niece filed a petition, she cannot receive an

award of attorney’s fees because a different conservator from the one she wanted was

not appointed.

C. COMMON FUND DOCTRINE

We now turn to the common fund doctrine. Niece asserts her attorney’s fees

should be paid by Conservatee’s trust pursuant to the common fund doctrine.

Typically, attorney’s fees cannot be awarded unless specifically provided for by

statute or agreed to by the parties. (Code Civ. Proc., § 1021.) However, there are

equitable exceptions to this rule. (Serrano v. Priest (1977) 20 Cal.3d 25, 34-35.) One

of the exceptions is known as the “common fund” doctrine. The doctrine is well

established: “when a number of persons are entitled in common to a specific fund, and

an action brought by a plaintiff or plaintiffs for the benefit of all results in the creation

or preservation of that fund, such plaintiff or plaintiffs may be awarded attorney’s fees

out of the fund. [Citations.]” (Id. at p. 34.) One of the reasons for the common fund

award of attorney’s fees is fairness to the successful litigant who might otherwise

receive no benefit from the common fund because her share of the common fund is

consumed by the expense of attorney’s fees. (In re Stauffer’s Estate (1959) 53 Cal.2d

124, 132.) In other words, the common fund doctrine prevents the situation where 10

people have a common interest in a fund, one person successfully sues to protect that

fund, but that successful litigant ends up with no money because all the money awarded

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from that fund is spent on attorney’s fees, while the nine other people who did not sue

are free to enjoy their money from the fund.

Niece’s reliance on the common fund doctrine is not persuasive because there is

no communal sharing of Conservatee’s trust. We do not have the trust documents in the

record; however, we gather from the documents about the trust that it is a living trust.

The current sole beneficiary is Conservatee. The sole contingent beneficiary is Trustee.

Trustee’s interest in the money will not vest until Conservatee’s death. (See In re Estate

of Giraldin (2012) 55 Cal.4th 1058, 1072 [“the beneficiary ‘cannot be accorded all the

rights of a vested beneficiary before the death of the trustor [i.e., the settlor]’”].)

Thus, from what we can gather from the documents discussing Conservatee’s

trust (without seeing the actual trust), the money Niece protected can only be used to

benefit Conservatee. Arguably, all the money could be spent on Conservatee’s

healthcare, leaving nothing for Trustee. Therefore, there is no communal fund. Niece

protected Conservatee’s assets—not assets belonging to multiple people. If

Conservatee passes away, then any remaining assets will benefit only Trustee. Since

the communal element of the common fund doctrine is not met because there is only a

single beneficiary at any given time, we find Niece’s reliance on the common fund

doctrine to be unpersuasive.

D. MOORE, CHILTON, AND CORNELIUS

1. CONTENTION

Niece contends her attorney’s fees should be paid because she litigated in good

faith in order to serve Conservatee’s best interests. Niece cites three cases to support

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her position: (1) In re Moore’s Estate (1968) 258 Cal.App.2d 458 (Moore);

(2) Conservatorship of Chilton (1970) 8 Cal.App.3d 34 (Chilton); and

(3) Conservatorship of Estate of Cornelius (2011) 200 Cal.App.4th 1198 (Cornelius).

We examine each case in turn in order to understand the rule upon which Niece is

relying.

2. MOORE

In Moore, Dr. Eugene P. Mathias, Moore’s friend and physician, petitioned to be

appointed as guardian of Moore’s person and for Bank of America to be appointed as

guardian of Moore’s estate. (Moore, supra, 258 Cal.App.2d at p. 460.) Two other

people, Moses and Yvonne Rogers, petitioned to be appointed conservators of Moore’s

person and estate. After a hearing, Moses Rogers was appointed conservator of

Moore’s person and Bank of America was appointed conservator of Moore’s estate.

Mathias’s petition for guardianship was denied. (Ibid.) Mathias sought attorney’s fees,

and the probate court ordered Bank of America, as conservator of the estate, “to pay

specified amounts.” (Ibid.)

On appeal, Bank of America argued that an unsuccessful petitioner cannot be

compensated for services rendered to the estate. (Moore, supra, 258 Cal.App.2d at pp.

460-461.) The appellate court accepted the Bank’s major premise that an unsuccessful

petitioner typically cannot be awarded attorney’s fees, but questioned whether that rule

still applies when the unsuccessful petitioner caused “substantial benefits [to] accrue[]”

to the conservatee. (Id. at pp. 461-462.)

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 The appellate court identified the issue as, “whether in the absence of statutory

authorization, one who in good faith initiates caretaker proceedings in which a guardian

or conservator other than the initiator is appointed may be awarded his costs and

counsel fees.” (Moore, supra, 258 Cal.App.2d at p. 462.) The appellate court found the

Probate Code, at that time, did not authorize fees for unsuccessful petitioners; it only

authorized fees for successful petitioners. (Ibid.) However, the court found the

appellant had performed a valuable service “by notifying the court of the disabled’s

condition and need for protection.” (Ibid.)

The appellate court turned to principles of equity to determine if attorney’s fees

could be awarded. (Moore, supra, 258 Cal.App.2d at p. 463.) The court applied the

“general equitable rule permitting one who has protected, preserved, or increased a fund

for the benefit of numerous parties, to be awarded compensation out of the fund for

costs and counsel fees.” The appellate court then explained the “common fund”

doctrine (ibid); we have explained the doctrine ante. The court explained that due to

Mathias’s actions, “a fund in excess of $200,000 was brought under judicial control and

safeguarded from possible dissipation and neglect. In a very real sense his action

preserved a fund for the benefit of the conservatee and her heirs.” (Id. at pp. 463-464.)

Thus, Moore discusses whether an unsuccessful litigant who has indirectly

assisted in preserving a common fund may receive attorney’s fees from that common

fund. (Moore, supra, 258 Cal.App.2d at pp. 463-464.) As the probate court in the

instant case explained, the resolution of this issue has been codified in section 2640.1,

which provides that if a person petitioned for the appointment of a particular

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conservator, but a different conservator was appointed while that petition was pending,

then the unsuccessful petitioner may seek attorney’s fees if “the court determines that

the petition was filed in the best interests of the conservatee.” Moore is a case from

1968. Section 2640.1 was added to the Probate Code in 1995. (Assem. Bill No. 1466

(1995-96 Reg. Sess.) § 1.) Therefore, the probate court in the instant case could

properly read section 2640.1 as codifying this holding in Moore, since (1) the statute

was added after the issuance of the Moore opinion, and (2) the statute speaks directly to

the issue and resolution in Moore.

We have explained ante why section 2640.1 does not apply in this case. Namely,

it does not apply because a different conservator was not appointed. In terms of the

person, the conservator Niece wanted was appointed. In terms of the estate, a

conservator was not appointed at all. Therefore, section 2640.1 does not apply in this

case.

We have also explained why the common fund doctrine does not apply in this

case. Notably, in Moore, the court found Mathias’s actions preserved a fund that would

benefit “the conservatee and her heirs.” (Moore, supra, 258 Cal.App.2d at p. 464.) In

the instant case, there is, based upon what we gather about the trust, a single contingent

beneficiary whose interest in the assets has not vested. Therefore, there is not a

communal interest in the money. At any point, the money can only benefit a single

person. It will benefit Conservatee, and upon his death, it will benefit Trustee,

assuming any assets are left at that point.

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 Based upon our discussions ante, Moore is not applicable in this case because

(1) a different conservator was not appointed, and (2) there is not a communal aspect to

the fund that was preserved. Therefore, we find Niece’s reliance on Moore to be

unpersuasive.

3. CHILTON

The second case Niece relies upon is Chilton. In Chilton, the probate court

refused to award additional attorney’s fees to an attorney (Arditto) who claimed he

provided services to the conservatee, T. Marie Chilton. (Chilton, supra, 8 Cal.App.3d at

p. 36.) Chilton was “under the domination and undue influence of” Bruce Dickerson

Stevens (Stevens). (Ibid.) Stevens introduced Arditto to Chilton. After the three met,

Arditto agreed to attempt to terminate the existing conservatorship over Chilton’s estate.

Arditto drafted a retainer agreement purporting to retain him as Chilton’s attorney;

however, Chilton did not have the capacity to enter into a contract. (Id. at pp. 36-37.)

Arditto took actions, supposedly on behalf of Chilton. However, Arditto’s actions

purportedly on behalf of Chilton were “of no value to Mrs. Chilton and her Estate” and

“resulted in great and unnecessary expense to the said Estate.” (Id. at pp. 39-40.) At

the same time, Arditto was representing Stevens in three lawsuits. (Id. at p. 39.) During

the relevant time period, Stevens purportedly married Chilton. (Id. at p. 38.)

At the probate court, Arditto argued he should be awarded attorney’s fees from

Chilton’s estate. (Chilton, supra, 8 Cal.App.3d at p. 36.) The probate court refused to

award Arditto fees in addition to the $1,000 fee he had already been awarded for

services to Chilton, so he appealed. (Ibid.) Arditto argued that he spent 400 hours

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working “solely for the benefit of Mrs. Chilton” and performed various tasks at her

request. (Id. at p. 41.) The appellate court found Arditto actually represented Stevens,

not Chilton, and therefore, was “not entitled to recover for services which may have

incidentally benefited Mrs. Chilton’s estate.” (Id. at p. 43.)

The court then explained that, if it assumed Arditto was correct in asserting he

“brought money into the estate or saved it expense,” then he still could not be awarded

money under Moore because Arditto’s services did not benefit Chilton. (Chilton, supra,

8 Cal.App.3d at p. 43.)

Thus, in Chilton, the attorney could not be awarded fees because (1) he did not

actually have a contract with the client in part because he was representing a person

with interests adverse to the purported client, and (2) even if he helped to preserve a

common fund, as in Moore, he did not act to benefit the conservatee. We have

explained ante, why the Moore rule is not persuasive in this case. Accordingly, we find

Niece’s reliance on Chilton unpersuasive, since it is essentially a repeat of the rule from

Moore.

4. CORNELIUS

The third case relied upon by Niece is Cornelius. In Cornelius, a daughter

sought temporary and permanent conservatorships for her father. A temporary

conservatorship was established for six months. The father objected to the

conservatorship, and the daughter withdrew her petition for a permanent

conservatorship. The probate court awarded compensation and reimbursement to

(1) the lawyers for the temporary conservator, (2) the lawyer who represented daughter

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in seeking a restraining order against a person who was allegedly taking advantage of

the father, (3) the temporary conservator of the person and estate of the father, (4) the

daughter for her costs and travel expenses, and (5) the nurses and caregivers for the

father. The awards were to be paid from the father’s estate. The father appealed the

award. (Cornelius, supra, 200 Cal.App.4th at pp. 1200, 1203-1204.)

On appeal, the father argued that the Probate Code sections that authorize

payment to a conservator (§ 2641) and the conservator’s attorneys (§ 2642) do not apply

to temporary conservatorships. (Cornelius, supra, 200 Cal.App.4th at pp. 1200, 1204.)

Section 2642, subdivision (a), provides in relevant part, “[A]n attorney who has

rendered legal services to the . . . conservator of the person . . . may petition the court

for an order fixing and allowing compensation for such services rendered . . . .” The

appellate court found there was nothing in the statute that limited the award of fees to

permanent conservatorships, i.e., fees could also be awarded in situations where only a

temporary conservatorship is established. The court made a similar conclusion about

section 2641. (Cornelius, at p. 1204.)

The appellate court then analogized the case to Moore in that the father received

“‘substantial benefits’” from the temporary conservatorship, even if a permanent

conservatorship was not established. (Cornelius, supra, 200 Cal.App.4th at pp. 1204-

1205.) The court explained that the failure to establish a permanent conservatorship

does not mean the temporary conservatorship was unnecessary; rather, what the court

must consider is whether the conservatee benefitted from the temporary conservatorship

and the petitioner acted in good faith—the court should not be focused on whether a

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permanent conservatorship was established. (Id. at pp. 1205-1206.) The appellate court

found the evidence supported the findings “that the temporary conservatorship was

established in good faith and in the best interests of the [father].” (Id. at p. 1207.) The

appellate court affirmed the award of fees. (Id. at p. 1208.)

In sum, section 2642, subdivision (a) authorizes fees to be paid to “an attorney

who has rendered legal services to the . . . conservator of the person.” Cornelius

provides that if a temporary conservatorship is established, but a permanent

conservatorship never comes to fruition, then the attorney who provided legal services

to the conservator of the person may still collect legal fees, as long as the temporary

conservatorship was sought in good faith and served the best interests of the

conservatee. (Cornelius, supra, 200 Cal.App.4th at p. 1207.)

The direct holding of Cornelius is not applicable in this case because a

permanent conservatorship of the person was established for Conservatee.

5. NIECE’S CONTENTION

Niece asserts that the common thread in Moore, Chilton, and Cornelius is that

fees may be awarded where expenses were incurred in good faith and to serve the best

interests of the conservatee. Thus, all that a person would need to show in order to win

attorney’s fees is that they took action in a probate case in good faith and to serve the

conservatee’s best interests. We reject Niece’s reading of the three cases.

When Moore, Chilton, and Cornelius are read together, they create the rule that a

person can be awarded attorney’s fees if they indirectly, rather than directly, fall within

an established category for an award of fees, and the person acted with good faith and in

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the conservatee’s best interests. (See Moore, supra, 258 Cal.App.2d at p. 464 [“the

services have been indirectly rendered”].) For example, in Moore, Mathias could not

directly collect attorney’s fees under the common fund doctrine because he indirectly

(rather than directly) assisted in preserving the fund, in that his petition for guardianship

was unsuccessful, but he was the person responsible for initially bringing the matter to

the court’s attention. (Id. at pp. 463-464.) Since Mathias acted in good faith and to

serve the best interests of the conservatee, he could collect under the common fund

doctrine, even though he was indirectly responsible for preserving the common fund.

Thus, the application of the doctrine to him was indirect.

In Cornelius, the daughter and others collected under sections 2641 and 2642,

but to the extent they could not directly collect under those statutes because the

conservatorship was only temporary, the court explained they could indirectly collect

under those statutes because the temporary conservatorship was brought in good faith

and to serve the best interests of the conservatee. (Cornelius, supra, 200 Cal.App.4th at

pp. 1204-1207.)

In Chilton, the attorney purportedly had a retainer agreement with the

conservatee and had spent 400 hours working for her. (Chilton, supra, 8 Cal.App.3d at

pp. 37, 41.) The court rejected the contract aspect of the attorney’s argument, and

rejected the common fund portion of the attorney’s argument because the benefit

element was not shown. (Id. at p. 43.)

In sum, the rule to take away from reading Moore, Chilton, and Cornelius, is that

there must be some basis either in law or equity for collecting attorney’s fees, and if that

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basis applies indirectly, and the person seeking attorney’s fees acted in good faith and to

serve the best interests of the conservatee, then attorney’s fees may be awarded.

For example, in the instant case, section 2642, subdivision (a), provides, “an

attorney who has rendered legal services to the . . . conservator of the person . . . may

petition the court for an order fixing and allowing compensation for such services

rendered to that time.” Arguably, this statute could indirectly apply to Niece’s attorney.

It was Niece’s objection that requested Jenkins be appointed as conservator of the

person. Ultimately, Jenkins was appointed conservator of the person. To the extent it

could be found Niece’s attorney rendered legal services to the conservator of the person

by indirectly establishing the conservatorship of the person, then fees could be awarded

indirectly under section 2642, if it were also found Niece acted in good faith and to

benefit Conservatee.

The foregoing example is a hypothetical example because Niece did not raise this

argument at the probate court or at this court. Rather, Niece focused primarily on the

portions of Moore, Chilton, and Cornelius that require good faith and a benefit to the

conservatee. In regard to the bases for awarding fees, as set forth ante, Niece relied

upon the common fund doctrine and section 2640.1, neither of which applies in this

case. Therefore, while Niece may have support for the argument that she acted in good

faith and to benefit Conservatee, she did not identify a proper basis for the indirect

award of fees. As set forth ante, section 2642 could provide a proper basis for the

indirect award, but we cannot know for certain because the argument was not developed

on this issue. As a result, Niece’s reliance on Moore, Chilton, and Cornelius is not

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persuasive because, while she may have acted in good faith and to benefit Conservatee,

she has not identified a proper basis for the indirect award of attorney’s fees. (See

generally Estate of Sobol (2014) 225 Cal.App.4th 771, 783 [issue not raised is

forfeited].)

DISPOSITION

The judgment is affirmed. The parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER
J.

We concur:

RICHLI
Acting P. J.

KING
J.

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