Filed 9/25/23 Salzwedel v. Friend CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
WILLIAM A. SALZWEDEL, 2d Civil No. B317038
(Super. Ct. No. 56-2010-
Plaintiff and Appellant, 00387487-PR-CP-OXN)
(Ventura County)
v.
ANGELIQUE FRIEND,
Defendant and Respondent.
William A. Salzwedel was retained as trustee of, and
attorney for, the Moore Family Trust. He was removed as trustee
and ordered to file an accounting. After respondent, the
successor trustee and conservator, objected to the accounting, the
probate court entered a judgment surcharging appellant
$96,077.14 for excessive fees, medical expert fees and costs. We
affirmed that judgment. (Estate of Moore (2015) 240 Cal.App.4th
1101.) After the settlor died, appellant filed a petition and
creditor’s claim to recover $172,915.58 in fees and costs he
incurred in the transition to the successor trustee and in his
defense against the surcharge. The probate court awarded
appellant $16,415.64 in fees incurred during the transition, as an
offset against the surcharge judgment. It denied the remainder
of appellant’s claim because it found, both factually and legally,
those fees and costs were incurred for appellant’s own benefit and
not for the benefit of the trust. Appellant contends the trial court
erred. We affirm.
Facts and Procedural History
Appellant was acting as the attorney for and trustee
of the Moore Family Trust when Lester Moore, the settlor of the
trust, was diagnosed with dementia. The trust’s remainder
beneficiary, his daughter Poppy Helgren, filed a petition for
conservatorship over Lester. The probate court appointed
respondent Angelique Friend as temporary conservator. She
immediately terminated appellant as attorney for the trust.
Appellant was later also removed as trustee and
replaced by respondent. The probate court ordered appellant to
render a trust accounting. That accounting disclosed opening
inventory and cash receipts of $474,348.01. Appellant had paid
himself $148,015.11 in “trustee’s fees,” plus another $32,288.21 in
related professional and litigation fees. He also incurred
$28,452.63 in expenses for medical experts who would opine on
the questions whether Moore required a conservator and had
capacity to retain appellant. The probate court disapproved all
these fees and costs because there was no showing that the
services benefitted Moore and that he had capacity to contract for
them when the services were rendered. Following an evidentiary
hearing, the probate court entered a judgment surcharging
appellant $96,077.14 for excessive attorney’s/trustee’s fees,
medical expert fees and costs. We affirmed the judgment in
Estate of Moore, supra, 240 Cal.App.4th 1101.
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Moore died in 2021. Appellant filed a petition in the
probate court to recover fees he incurred in the transition to the
successor trustee, in voluntarily preparing a revised accounting,
in defending against the surcharge petition and in the appeal
from that judgment. As indicated, the probate court awarded
appellant $16,415.64 for fees incurred during the transition, as
an offset against the surcharge judgment. It found the remaining
fees and costs requested were related to appellant’s defense
against and appeal of the surcharge judgment and to the federal
litigation he initiated after that appeal was unsuccessful. “None
of these services were of benefit to the Conservatee, Lester G.
Moore, nor to his . . . trust.” The probate court denied recovery of
all such fees with prejudice.
Discussion
Appellant contends he is entitled to compensation for
fees and costs incurred in preparing for the surcharge hearing
because he subjectively believed the expenses were necessary and
that belief was objectively reasonable. He is incorrect.
“[T]he costs of a successful defense to a removal or
surcharge petition are generally chargeable against the trust
even though the trustee personally benefits as a result.
[Citation.] However, a trustee is not entitled to indemnity for
fees incurred in an unsuccessful defense of such a petition absent
an additional showing that ‘the trustee subjectively believed that
the expense was necessary or appropriate to carry out the
purpose of the trust and that belief was objectively reasonable.’
[Citation.]” (People ex rel. Harris v. Shine (2017) 16 Cal.App.5th
524, 535.) Any fee award must be “reasonable in amount and
reasonably necessary to the conduct of the litigation, but it must
also be reasonable and appropriate for the benefit of the trust.”
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(Donahue v. Donahue (2010) 182 Cal.App.4th 259, 263
(Donahue).)
Nothing in the record on appeal demonstrates how
fees and costs incurred by appellant in defending against the
surcharge benefitted Moore or the trust itself. The judgment
against appellant in the surcharge proceeding reflects the
probate court’s factual and legal finding that appellant’s services
did not benefit Moore or the trust in the amounts claimed by
appellant, a finding we affirmed in the prior appeal. Appellant’s
defense in that proceeding was intended to protect the fees he
had already been paid, not to protect the trust estate or the
conservatee. Appellant may not recover fees incurred for his own
defense. (Estate of Cassity (1980) 106 Cal.App.3d 569, 572 [trust
may not be charged for “fees incurred in unsuccessfully
contesting a trustee’s surcharge”].)
Estate of Trynin (1989) 49 Cal.3d 868, relied upon by
appellant, does not mandate a different result. There, our
Supreme Court held that the Probate Code authorizes courts, in
their discretion, to award attorney’s fees for time reasonably
spent to establish and defend a fee claim in a probate proceeding.
(Id. at pp. 871.) “This does not mean, however, that an additional
award of fees for fee-related services is invariably required.
Where the trial court reasonably concludes that the amounts
previously awarded the attorney for both ordinary and
extraordinary services are adequate, given the value of the estate
and the nature of its assets, to fully compensate the attorney for
all services, including fee-related services, denial of a request for
fee-related fees would not be an abuse of discretion.” (Id. at p.
880.)
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Here, the probate court exercised its discretion to
deny appellant recovery of fees and costs incurred in the
surcharge hearing because it found those fees did not benefit the
estate and the compensation appellant had already received was
adequate. This is an adverse factual finding and was not an
abuse of discretion. As we held in the prior appeal, the surcharge
hearing established that appellant overcharged the trust and
that his services were not beneficial to it. (Estate of Moore, supra,
240 Cal.App.4th at pp. 1107-1109.) Appellant may not relitigate
this issue. The doctrine of the “‘law of the case’” precludes this
attempt. (People v. Stanley (1995) 10 Cal.4th 764, 786-787.)
Nevertheless, appellant contends the probate court erred because
it did not hold an evidentiary hearing before denying most of his
claim. We disagree. The probate court had discretion to
determine whether or not an evidentiary hearing was
unnecessary. (See, e.g., Conservatorship of Farrant (2021) 67
Cal.App.5th 370, 378.) There were no factual disputes.
Respondent did not challenge the accuracy of appellant’s billing
records; the dispute was whether to award fees for services
performed outside the transition period. The probate court
awarded appellant all of the fees he claimed for services
performed during the transition. It denied the remainder of the
fee claim because it concluded that work did not benefit the trust.
Relying on Hollaway v. Edwards (1998) 68
Cal.App.4th 94 (Hollaway), appellant contends his defense
against the surcharge benefitted the trust because it helped to
resolve disputed issues of importance to the trust. This
argument is non-sensical. The question in the surcharge hearing
was whether appellant had overcharged the trust. The answer to
that question was, yes. In Hollaway, a trustee successfully
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defended herself against a petition for her removal. The probate
court awarded her attorney’s fees incurred in her defense. It
reasoned that, while the fees “may have benefited [the trustee]
personally by eliminating the possibility of individual liability,
they also benefited the trust by eliminating charges raising
serious questions about whether she had and could continue to
administer the trust properly.” (Id. at pp. 99.) Appellant is in
the opposite position. The surcharge proceeding here confirmed
that appellant had overcharged the trust, not that his services
were beneficial to it.
Appellant also contends he should recover the fees he
incurred to revise his initial accounting, so that it conformed to
the “Probate Code format.” But appellant was awarded fees
reasonably incurred to prepare the accounting. He was never
asked to revise it, nor has he shown that the revision benefitted
the trust. Fees may not be awarded for unnecessary work. (See,
e.g., Donahue, supra, 182 Cal.App.4th at p. 263 [fees awarded in
probate proceeding must be “reasonably necessary to the conduct
of the litigation . . . ”].) The trial court acted within its discretion
when it denied recovery of these fees.
Finally, appellant contends he should be reimbursed
for fees paid to Dr. Hyman, who evaluated Lester Moore’s
competency. Recovery of these fees was denied in the prior
proceeding and that judgment is final. It is not subject to
relitigation. For the same reason, we decline to address
appellant’s contentions regarding the accuracy of our prior
opinion in this matter or the probate court’s reliance on it.
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Conclusion
The order granting in part and denying in part
appellant’s Petition and Creditor’s Claim for Additional Fees and
Reimbursement of Costs is affirmed. Costs to respondent.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
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Roger L. Lund, Judge
Superior Court County of Ventura
______________________________
William A. Salzwedel, in propria persona, for
Plaintiff and Appellant.
Thomas E. Olson, for Defendant and Respondent.