Judge: John B. Scherling, Case: 37-2022-00039831-PR-CP-CTL, Date: 2023-09-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - September 01, 2023

09/05/2023  10:30:00 AM  502 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:John B Scherling

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Probate  Conservatorship Of Person And Estate Motion Hearing (Probate) 37-2022-00039831-PR-CP-CTL CONSERVATORSHIP OF ANGELINA HETMER [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 07/20/2023

Pursuant to San Diego Superior Court Local Rule, rule 4.23.7, the court's tentative ruling is as follows: The Motion for Attorney's Fees and Costs filed by Angelina Hetmer is DENIED.

Background On October 5, 2022, Teresa Dillon and Pearl Medina-Hicks (Petitioners) filed a Petition for Conservatorship of the person and estate of Angelina Hetmer. (ROA 1.) On November 21, 2022, Ms. Hetmer filed an objection to the petition. (ROA 10.) On June 27, 2023, the Court found Petitioners had not proffered sufficient evidence raising a factual dispute regarding Ms. Hetmer's residence during the six-month period preceding the filing of the petition for conservatorship. Thus, the Court denied Petitioners' request for an evidentiary hearing on the issue of whether California had jurisdiction over the petition. (ROA 78, Minute Order dated Jun. 27, 2023.) The Court dismissed the petition without prejudice for lack of jurisdiction pursuant to Probate Code §§ 1991(a)(2) and 1993. (Id.) Ms. Hetmer's request for attorney's fees (within ROA 30) was denied without prejudice to the filing of a properly supported petition requesting the same. (Id.) On July 20, 2023, Ms. Hetmer filed a motion for attorney's fees and costs. (ROA 79.) Ms. Hetmer argues the court sitting in probate has discretion and inherent authority under its equitable powers to award attorney's fees. Ms. Hetmer argues the party requesting the attorney's fees must show they acted in the best interests of the conservatee and in good faith. Ms. Hetmer asserts that legal actions were performed in her best interests, and under the holdings in In re Moore's Estate, Conservatorship of Chilton, and Conservatorship of Cornelius, 'it follows that the fees and costs of Angelina Hetmer are authorized in both law and equity.' (Id., at p. 4.) Ms. Hetmer seeks $24,045.27 in attorney's fees and costs to be paid by Petitioners.

Discussion The Court is not in receipt of any opposition from Petitioners. However, it has an independent duty to review the legal basis for an award of attorney's fees and to determine entitlement to the fees. (R.W.L.

Enterprises v. Oldcastle, Inc. (2017) 17 Cal.App.5th 1019, 1025.) Under the American Rule, each party to a lawsuit ordinarily bears their own attorney's fees. (Mountain Air Enterprises, LLC v. Sundowner Calendar No.: Event ID:  TENTATIVE RULINGS

3001823 CASE NUMBER: CASE TITLE:  CONSERVATORSHIP OF ANGELINA HETMER [IMAGED]  37-2022-00039831-PR-CP-CTL Towers, LLC (2017) 3 Cal.5th 744, 751.) This rule is codified in CCP § 1021, which provides in pertinent part that '[e]xcept as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys ... is left to the agreement, express or implied, of the parties ....' In the probate context, attorney's fees may be authorized by statute or agreement. (See, e.g., Prob. Code, § 2640.1, subd. (a).) Ms. Hetmer was the proposed conservatee, who successfully objected to the petition for conservatorship of her person and estate. As such, Ms. Hetmer is not a conservatee, and no conservatorship was established.

In her motion, Ms. Hetmer does not cite to any statutes that would authorize attorney's fees and costs under the circumstances. (See, e.g., Prob. Code, §§ 2640.1, 2645.) The cases Ms. Hetmer cites are factually distinguishable and therefore, inapposite. In Holloway v. Edwards (1998) 68 Cal.App.4th 94, 95-98, the Court of Appeal found the probate court acted within its discretion in awarding attorney's fees to a trustee who successfully defended a co-trustee's petitions for her removal. The key issue in Holloway was whether the time limitations of CRC 870.2 applied to a motion for attorney's fees filed in probate court. Ms. Hetmer is not a trustee who successfully defended against removal, and the timeliness of the motion is not at issue.

In Rudnick v. Rudnick (2009) 179 Cal.App.4th 1328, 1333-1334, the Court of Appeal held the probate court had equitable powers to charge attorney's fees against the minority beneficiaries' trust distributions where the court found the minority beneficiaries' opposition was primarily for causing unnecessary delay and in bad faith, and the trust agreement provided that all expenses incurred by the trustee in administering or protecting the trust would be charged upon the trust estate. Ms. Hetmer is not a beneficiary or trustee who successfully defended or protected a trust, and there is no trust provision providing for payment of fees and/or costs from the estate.

Likewise, In re Moore's Estate (1968) 258 Cal.App.2d 458, Conservatorship of Chilton (1970) 8 Cal.App.3d 34, and Conservatorship of Cornelius (2011) 200 Cal.App.4th 1198, do not stand for the rule that a proposed conservatee or objector to an unsuccessful petition for conservatorship is entitled to attorney's fees.

In re Moore's Estate, supra, addressed a fee motion by the physician of a conservatee for services rendered where conservators were subsequently appointed. (In re Moore's Estate, 258 Cal.App.2d at 460.) The Court of Appeal affirmed the probate court's award of attorney's fees to the physician, holding that one who in good faith initiates caretaker proceedings, although not a conservator, is entitled to costs and attorney's fees from the estate for the value of the services rendered. (Id. at 462.) Again, Ms.

Hetmer is not a conversvatee, a conservatorship has not been established, and no caretaker proceedings are involved. Indeed, Ms. Hetmer is seeking fees from Petitioners, and not from any estate.

Conservatorship of Chilton, supra, involved an attorney seeking fees from the conservators for services rendered to the conservatee. The Court of Appeal affirmed the trial court order denying attorney's fees, finding the attorney was in fact working for the benefit of his friend and client, whose interests were inimical to the best interests of the conservatee, and no services of value had been rendered to the conservatee. (Chilton, 8 Cal.App.3d at 41-43.) Ms. Hetmer is not a conservatee and fees are not being sought from the conservators of the estate.

Lastly, Conservatorship of Cornelius, supra, held that a temporary conservator is entitled to reimbursement of legal fees and other expenses properly incurred for the conservatee's benefit during the term of that temporary appointment regardless of whether a permanent conservator is ever appointed under Probate Code §§ 2641(a) and 2642(a). (Cornelius, 200 Cal.App.4th at 1207.) Ms.

Hetmer was not appointed a temporary conservator nor declared a conservatee. As such, the cases on which Ms. Hetmer relies do not support an award of attorney's fees and costs.

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3001823 CASE NUMBER: CASE TITLE:  CONSERVATORSHIP OF ANGELINA HETMER [IMAGED]  37-2022-00039831-PR-CP-CTL As the moving party, Ms. Hetmer bears the burden to show she is entitled to the claimed fees and costs.

There is no conservatorship estate from which to pay the attorney's fees and costs. Ms. Hetmer does not cite to any legal basis to support an award of fees under the Probate Code to be paid by Petitioners.

Caselaw supports an award of attorney's fees to a party who successfully establishes a conservatorship or acts in the best interests of a conservatee, but neither situation is present here.

Therefore, the motion for attorney's fees and costs is DENIED.

Counsel for Angelina Hetmer is directed to serve notice of this ruling in accordance with the provisions of CCP § 1019.5(a).

IT IS SO ORDERED.

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