Filed 1/29/21 Conservatorship and Estate of Bessard CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
Conservatorship of the Person and
Estate of ENEZ A. BESSARD.
JOSCELYN JONES,
Petitioner and Appellant,
A156773
v.
GWENDOLYN A. SACCO, (San Francisco County
Objector and Respondent. Super. Ct. No. PCN15298493)
Attorney Joscelyn Jones Torru (Jones) was appointed by the probate
court to represent Enez Bessard, a 92-year-old woman who was the subject of
an intra-family dispute over who should be her conservator. When Jones
subsequently petitioned the probate court for attorney fees under Probate
Code section 1472, the amount and reasonableness of her fee request became
the subject of dispute. Jones requested attorney fees in the amount of
$73,400; one of Bessard’s daughters filed an objection; and the probate court,
after rounds of briefing and a hearing, awarded Jones $46,500, plus
reimbursement of approximately $2,000 in costs. On appeal, Jones
challenges the attorney fees part of the order as an abuse of discretion and
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asks us to award her all of the attorney fees she requested. Because Jones
has given us no basis to find error, we affirm.1
PROCEDURAL AND FACTUAL BACKGROUND
In April 2015, pursuant to authority that permits it to appoint counsel
(§ 1470), the probate court appointed Jones to represent Enez Bessard,
described in the order of appointment as a “Proposed Conservatee.” At the
time of Jones’s appointment and shortly thereafter, multiple competing
pending petitions for conservatorship over Bessard had been filed by
members of her family (daughters, some of whom were half-sisters, and a
granddaughter). The petitions made accusations of wrongdoing by other
petitioners.
On August 27, 2015, Jones filed a petition recommending appointment
of a private professional fiduciary conservator, Paula Bibbs. The petition
described Bessard as diagnosed with dementia and other health problems,
needing assistance with medications and activities of daily living, as well as
“subject to fraud and undue influence” and requiring management,
maintenance, and protection of her estate. The petition noted that due to
conflict between Bessard’s adult children, “competing petitions” for
appointment of conservator had been filed.
On October 21, 2015, Jones filed a petition to have Bibbs named as
temporary conservator in advance of the upcoming hearing on appointment of
conservator, “due to worsening conflict and dissention [sic] among competing
family members”; five competing petitions for conservator had been filed.
The petition recommended that the court accept the resignation of
Gwendolyn Sacco, one of Enez Bessard’s daughters, who had been acting as
1 All statutory references are to the Probate Code. All references to
rules are to the California Rules of Court.
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temporary conservator. The petition stated that “the actions of the
temporary conservator have been detrimental to the conservatee’s mental,
emotional and physical wellbeing,” and reported “continual complaints and
reports of verbal abuse in and around proposed conservatee and current
temporary conservator either initiates or fails to redirect these explosive
episodes.”
On October 27, 2015, the probate court granted the petition and
entered an order appointing Bibbs as temporary conservator of the person
and estate of Bessard and accepting Sacco’s resignation as temporary
conservator.
On November 19, 2015, Bibbs was appointed conservator of Bessard’s
person and estate.
In June 2016 (and as amended in August), Sacco filed a first and final
account of temporary conservator, which included a request for approval of
her fees as temporary conservator and fees for her counsel. Jones filed
objections, including to the payment of attorney fees to Sacco’s attorneys
other than during the period between February 18 and October 27, 2015,
“whereby time was rendered for services that were not of benefit” to the
conservatee’s person or estate “and/or [Sacco] was not serving in the capacity
of conservator.” After briefing and hearing, the probate court (Judge Paul
Alvarado) awarded fees to Sacco’s attorneys in the amount requested
($53,764.17) without reduction (Sacco Fee Order). The attorney hourly rates
for time actually billed ranged from $350 to $375.
In June 2018, Jones filed a petition for her own attorney fees as
appointed counsel to Bessard. In a narrative format, she summarized the
nature and extent of her work for Bessard, totaling 183.5 hours. She sought
compensation at her “regular rate” of $400 per hour (noting that this was the
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hourly billing rate of one of Sacco’s attorneys, Bruce Feder). Jones also
attached detailed time records. In all, she requested $73,400 in attorney fees,
plus expenses in the amount of $2,099.41.
Jones characterized her legal representation for the conservatee as
“complicated by unresolved family differences” among Bessard’s eight living
children from two marriages, who were “unable or unwilling to [work]
together . . . due to years of distrust and historical conflict with one another.”
Jones noted that the conservatee’s estate was valued at $20,859.34, and
that, in addition, Bessard owned a house in San Francisco with an estimated
market value of more than $1 million, currently held in trust outside the
conservatorship estate.
Jones’s petition for attorney fees drew a sharp objection from Sacco,
filed August 22, 2018. Sacco identified herself as the conservatee’s daughter,
the former temporary conservator of the person and estate of Bessard, and
current trustee of the Trust of Enez Anita Bessard. Sacco’s grounds for
objection were detailed and many. She contended Jones had not acted in the
best interests of the conservatee and accrued legal fees and costs that were
unnecessary or wasteful. She objected that there was no agreement covering
the terms of Jones’s representation and Jones should not be paid more than
$325 per hour. She objected to charging for certain work, such as travel time.
She contended that the hourly time recorded for certain legal services was
unreasonable: meetings with the conservatee were twice the length they
should have been given that conservatee could “at best” be in a conversation
with Jones for 5 to 10 minutes before “becoming distracted or agitated”;
fruitless time (16.5 hours and $6,600 in fees) was spent objecting to Sacco’s
own first and final account of temporary conservator which was ultimately
accepted without reduction by the probate court, suggesting that Jones’s
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work was “neither necessary nor beneficial” to conservatee; and Jones took
part in many meetings and communications with “multiple participants . . .
and third parties” that were not necessary or in the best interests of the
conservatee (29 such meetings were identified from Jones’s time records and
disputed). Sacco’s objection was also supported by a declaration from her
husband, George Sacco, disputing a time entry that pertained to him, and
describing a confrontational conversation between himself and Jones.2 In all,
Sacco challenged approximately $30,000 of the attorney fees and costs
requested by Jones, and proposed an additional reduction of approximately
$13,700 based on an hourly rate of $325 rather than $400.
Sacco also noted the small size of the conservatorship estate, and that
the conservatee’s monthly income was approximately $1,200.
Jones filed a detailed declaration in response to Sacco’s objection on
October 2, 2018. She described the case as “complex and challenging,”
quoting language used by Sacco’s former attorney Rowena Navia in support
of her request for fees and costs in 2016, and noting that Sacco’s attorney fees
request covered a shorter period of time and was not reduced by the probate
court. Jones justified her $400 hourly rate as being reflective of her 36 years’
experience, and she denied that the court had set an hourly rate when she
was appointed. In justifying her attorney time and expenses, Jones criticized
Sacco’s conduct and accused her of “continuing myopic self-interests.” Jones
contended that the bulk of her time (23 pages of Jones’s 32-page billing
statement) was spent on legal work before Bibbs was appointed conservator,
and that Sacco’s “actions substantially and during her temporary conservator
2 Sacco’s attorney Milla Lvovich also filed a declaration in support of
the objection but pertaining only to a dispute regarding a continuance that is
not relevant to this appeal.
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appointment solely contributed to the need for the amount, nature and extent
of [Jones’s] billed time and incurred costs.”
As to the value of the conservatee’s estate, Jones responded that the
current “value on hand” cited by Sacco was as of a conservator’s report filed
May 1, 2017, that there would be additional fees and costs incurred by the
conservator (Bibbs) and her attorney after that date, and that Sacco’s “stated
concerns lack understanding of the account period rules and is likewise a
disingenuous effort to justify her baseless concerns” and are further
“exhibition of [Sacco’s] own self-interests.” Jones added that “a petition will
need to be filed with the court for an order directing the Conservatee’s trust
assets, including real property, be brought under the purview and control of
the court’s Conservatorship case” in order to meet the conservatee’s “ongoing
personal daily care needs” and “to manage her current and future estate
obligations.”
Jones filed a further declaration on October 17, 2018, refuting Sacco’s
disputes about whether certain phone calls or meetings actually took place on
June 9, July 14, and October 7, 2015. As to George Sacco’s declaration, she
admitted a “scrivener’s error”: the call was with “Gwen” Sacco, and a day
later.
Sacco responded with a supplemental declaration on October 30, 2018,
noting that Jones did not address Sacco’s objection to $8,960 in billed travel
time or justify her $400 per hour billing rate, and requested the court to set
an appropriate rate. Sacco strongly objected to Jones’s “unsubstantiated
character attacks on me” as unprofessional. She continued to dispute the
accuracy of particular time entries, comparing them to her own daily notes.
Sacco criticized Jones’s rationale that her requested attorney fees are
“appropriate simply because it is comparable” to the award of fees to Sacco’s
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former attorney. Sacco contended that was an insufficient basis to show
Jones’s work benefitted the conservatee and her estate. Sacco described the
conservatee’s estate as “cash-strapped.”
The petition for attorney fees was finally heard on October 31, 2018, by
the Honorable John K. Stewart. The hearing was not reported. There are
“mini-minutes” from the hearing, presumably taken by the courtroom deputy
clerk, reflecting that Jones, Gwendolyn Sacco, and Sacco’s attorney Lvovich,
among others, addressed the court regarding the petition for attorney fees.
The court took the matter under submission.
On December 14, 2018, the court issued a written order, ordering the
payment of attorney fees and costs. The order appears to be an interlineated
copy of a proposed order lodged with the court by Jones (it bears her name
and address above the caption). The court hand wrote, “The Court finds a
reasonable fee for the services provided is $46,500.” It lined out the amounts
that had been typed in the proposed order, and ordered that the conservator
must pay Jones the “total sum of $48,555.41, for legal services rendered in
the amount of $46,500, and reimbursement for costs incurred in the amount
of $2,055.41.”3
3 Jones states in passing in her appellate briefing that Judge Andrew
Cheng heard the argument on her petition for attorney fees (not Judge
Stewart), and that Judge Stewart signed the order. Nothing in the record
supports this statement; even the “mini-minutes” Jones cites for the October
31, 2018 hearing (and that Jones’s appellate counsel suggests we rely on in
lieu of a reporter’s transcript), show Judge Stewart presided. Judge Cheng
appointed Bibbs as temporary conservator.
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Jones filed an appeal, arguing that the trial court abused its discretion
when it reduced her attorney fees request by $26,900. She does not challenge
the costs award.4
DISCUSSION
I.
Section 1472 provides in part that “If a person is furnished legal
counsel under Section 1471: [¶] (1) The court shall, upon conclusion of the
matter, fix a reasonable sum for compensation and expenses of counsel and
shall make a determination of the person’s ability to pay all or a portion of
that sum.” (§ 1472, subd. (a)(1).)
A fundamental principle of appellate review is that the trial court’s
judgment or order is presumed to be correct. (Jameson v. Desta (2018) 5
Cal.5th 594, 608-609.) “We presume an attorney fee award is correct unless
the appellant demonstrates the trial court abused its discretion.” (Taylor v.
County of Los Angeles (2020) 50 Cal.App.5th 205, 209 (Taylor).) A court
abuses its discretion if its ruling is “ ‘so irrational or arbitrary that no
reasonable person could agree with it.’ ” (Sargon Enterprises, Inc. v.
University of Southern Calif. (2012) 55 Cal.4th 747, 773.)
As we have noted, there is no reporter’s transcript from the fee hearing.
Nor is there a settled statement on appeal. Without either, Jones can only
speculate as to how the probate court calculated and determined the size of
the attorney fee award. This creates a big hurdle. (See Taylor, supra, 50
Cal.App.5th at p. 211 [appellant seeking attorney fees did not hire a court
reporter, which “means he lacks a basis for identifying and attacking the
court’s specific calculation method, which we presume was correct”]; Rhule v.
4 Bessard died on February 13, 2019, about two months after the order
at issue was filed.
8
WaveFront Technology, Inc. (2017) 8 Cal.App.5th 1223, 1229 [failure to
provide reporter’s transcript precluded challenge to award of attorney fees as
part of discovery sanctions]; Southern California Gas Co. v. Flannery (2016) 5
Cal.App.5th 476, 487 [“[t]o the extent [appellant] challenges the amount of
the [attorney fee] award to the Gas Co., without a reporter’s transcript,
[appellant] cannot demonstrate the trial court’s award constituted an abuse
of discretion”].)
The burden is on the appellant to establish error, and “where the record
is silent the reviewing court will indulge all reasonable inferences in support
of the judgment. [Citations.] . . . [O]rdinarily, errors not reflected in the trial
record will not, and indeed cannot, sustain a reversal on appeal.” (Yield
Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556–557.)
With these principles in mind, we consider Jones’s specific arguments.
II.
Jones agrees that an award of attorney fees is a matter within the trial
court’s discretion, and urges that we must reverse it if we are “convinced”
that the trial court was “clearly wrong and the court abused its discretion.”
Jones acknowledges that there are no rules of court which list the
factors a trial court must consider in ordering attorney fees for conservatees
under section 1472. So she urges us to consider and adopt standards set
forth in other probate rules, such as rule 7.751, which governs compensation
to the attorney for a conservator, arguing “there is no reason why the same
rule should not apply” here. Or that we should consider the application of
rule 7.955, which applies to court approval of attorney fees in connection with
settlements, compromises or judgments involving minors or persons with
disabilities.
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We decline these suggestions for many reasons. First, there is no
statutory basis for us to impose the requirements of specific rules of court to a
situation for which they were not meant to apply. Second, the argument was
not raised below. And third, our role is not to apply factors and reweigh
evidence, which is precisely what Jones is asking us to do in her brief.5 That
is for the trial court.
Further, there is nothing on the face of the record to suggest that Judge
Stewart, a very experienced probate court and trial court judge, did not weigh
the evidence and exercise his discretion. The court continued the hearing
multiple times to permit the parties to complete their filings, heard
argument, and took the matter under submission to consider it. The written
order states that the court reviewed the “petition and all evidence presented,”
and that the court “finds a reasonable fee for the services provided is
$46,500.” The court did not rubberstamp a proposed order.
The burden is on Jones to show that the probate court abused its
discretion. Her arguments are not convincing.
She argues that her requested hourly billing rate ($400) was the same
rate as one of Sacco’s former attorneys, and that those attorney fees were
granted without reduction in the Sacco Fee Order. But on this record, Jones
5 To that end, Jones refers us to rule 7.702, entitled “Petition for
extraordinary compensation,” which sets forth the requirements for a
statement of facts when an attorney for a conservator petitions for
compensation under rule 7.751. She then purports to “address[ ] the various
factors seriatim,” arguing the merits of what she did. This is misguided for
several reasons. The rule doesn’t apply. Even if it did, rule 7.702 sets forth
the topics that must be covered in a petition (including nature and difficulty
of tasks performed, results achieved, benefit of services to the estate, hourly
rates, description of services). There is no dispute that Jones’s petition for
fees is complete; the issue is whether the court believed the amount of her fee
request was warranted.
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can only speculate what hourly rate the probate judge thought was
appropriate in her case. Further, the submissions that resulted in the Sacco
Fee Order show that although one of Sacco’s attorneys (Bruce Feder) had an
hourly billing rate of $400, Sacco’s request for attorney fees did not seek
compensation for any work done by Mr. Feder. The small amount of work
Mr. Feder performed was not charged to the estate.
In a similar vein, Jones argues that the record “compels the conclusion
the trial court . . . arbitrarily reduced Jones’ attorney’s fees request by
$26,900” and “in effect” determined she was only entitled to bill 116.25 hours
over her three-year representation. (Jones has apparently divided the
amount of the fees she was awarded by $400.) But this, too, is just
speculation on Jones’s part. Without a reporter’s transcript, we cannot say
whether the trial court thought the hourly rate was too high and/or whether
some of the work was excessive or unnecessary. This is the price of the lack
of a record.
In fact, there was conflicting evidence in this ample record. Although
Jones believed her fee request was reasonable, Sacco presented argument as
to why it was not, and argument that was based on evidence to support her
view that a reduction in fees and costs of more than $43,000 was warranted.
So, too, the trial judge might have believed the fees were excessive in light of
the size of the estate. (See § 1472.)
Jones argues that the order is “arbitrary and capricious” and must be
reversed because Sacco’s former attorneys were awarded “$53,764 in attorney
fees for more hours than Jones expended (225.2 hours . . .) for a shorter
representation (1.5 years),” in a case involving complex issues and without
any reduction. But that order, filed in September 2016 (and by a different
probate court judge), is not before us.
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Finally, Jones’s reliance on Schulz v. Jeppeson Sanderson, Inc. (2018)
27 Cal.App.5th 1167, as a basis to find abuse of discretion in this case, is
unavailing. Schulz involved the apportionment of a wrongful death
settlement and an award of attorney fees in a case involving minors.
Attorney fees in such cases are governed by a different statute (§ 3600) and
rule 7.955. The Court of Appeal in Schulz held that the trial court abused its
discretion by, among other things, failing to follow rule 7.955, which required
it to take into account “ ‘the terms of any representation agreement made
between the attorney and the representative of the minor . . . and . . .
evaluate the agreement based on the facts and circumstances existing at the
time the agreement was made.’ ” (Schulz, supra, 27 Cal.App.5th at pp. 1176-
1177, quoting rule 7.955(a)(2).) The fee award was reversed for the trial
court to exercise its discretion in light of the rule in the first instance.
Finally, we note that Jones’s disagreements with Sacco and her
suspicions as to Sacco’s motives and “self interest” in the “maximum pay out”
from the eventual sale of Bessard’s property figure prominently in her
insistence that Sacco’s objections to the fee request have no merit and could
not have formed the basis for the trial court’s reduction in fees. This appears
to be an argument that there was insufficient evidence to support the probate
court’s order. But the absence of a reporter’s transcript precludes an
appellate argument as to the sufficiency of the evidence. (Estate of Fain
(1999) 75 Cal.App.4th 973, 992.) Moreover, “[a] trier of fact is free to
disbelieve a witness, even one uncontradicted, if there is any rational ground
for doing so.” (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1043.)
In short, Jones has not shown error.
DISPOSITION
We affirm the order.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Richman, Acting P.J.
_________________________
Stewart, J.
A156773, Jones v. Sacco
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