Judge: Olga Alvarez, Case: 37-2020-00019629-PR-TR-CTL, Date: 2023-10-25 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

CENTRAL COURTHOUSE TENTATIVE RULINGS - October 24, 2023

10/25/2023  10:30:00 AM  503 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Olga Alvarez

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Probate  Trust Proceedings Motion Hearing (Probate) 37-2020-00019629-PR-TR-CTL IN THE MATTER OF THE JAY & LAEL KOVTUN IRREVOCABLE LIFE INSURANCE TRUST NO. 1, DATED JANUARY 21, 2000 [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 05/22/2023

Pursuant to San Diego Superior Court Local Rule, rule 4.23.7, the court's tentative ruling is as follows: The Motion for Order Fixing Attorney's Fees Awarded at Trial filed by Gordon Kovtun, Trustee, is CONTINUED to January 17, 2024, at 10:30 a.m.

DISCUSSION On May 25, 2021, Gordon Kovtun ('Trustee') filed a petition seeking orders that: (1) former co-trustee Karolyn Kovtun return embezzled trust funds; (2) former co-trustee Karolyn Kovtun turn over all books and records and other trust property to current trustee; and (3) Karolyn Kovtun's share of the trust be surcharged litigation attorney fees and costs incurred by the trustee. (ROA 48.) On February 10, 2023, after a bench trial, the Court found in Trustee's favor. Specifically, the Court found that Respondent acted wrongfully and in bad faith and was liable under Probate Code section 859 for twice the value of the property recovered, 'together with reasonable attorneys fees incurred in this matter, in an amount subject to later proof. Such liability and reasonable fees shall be paid from Ms. Kovtun's beneficial interest in the Trust in the total amount of $18,820.48 (i.e. $2,400.91 + $5,473.19 + $10,946.38) plus reasonable attorneys fees.' (Sic.) (ROA 259, Minute Order dated Feb. 10, 2023, emphasis added.) On May 22, 2023, Trustee filed a motion for attorney's fees pursuant to the Court's February 10, 2023 Order under Probate Code § 859, based on which the Court ordered attorney's fees to be surcharged against Respondent Karolyn Kovtun's ('Respondent') share of the Trust. (ROA 292, Notice of Mot.) Trustee initially requested $147,323 in attorney's fees. (ROA 292, Memo of Ps & As, at p. 1). Based on fees resulting from the instant motion practice, Trustee now requests $155,078 in attorney's fees. (ROA 337, Abbott second suppl. Decl.) On August 17, 2023, Respondent filed an opposition to the motion, arguing Trustee is not entitled to attorney's fees. (ROA 314, Oppo.) On August 23, 2023, Trustee filed a reply. (ROA 317.) The Court found that Trustee is entitlement to the requested attorney's fees, given the Court's ruling in favor of Trustee, awarding reasonable attorney's fees as stated in the Court's February 10, 2023 order.

However, the Court continued the matter for moving party to submit evidence to substantiate the Calendar No.: Event ID:  TENTATIVE RULINGS

3015043 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE JAY & LAEL KOVTUN IRREVOCABLE LIFE  37-2020-00019629-PR-TR-CTL requested amount of fees. (ROA 324, Minute Order dated Aug. 30, 2023.) On September 29, 2023, Trustee filed the supplemental declaration of attorney Daniel Abbott in support of the fee request. (ROA 333, Abbott Supp. Decl.) On October 23, 2023, Respondent filed the supplemental declaration of attorney Christopher Ridgeway in support of the opposition to the fee request. (ROA 335.) On October 24, 2023, Trustee filed the second supplemental declaration of attorney Abbott. (ROA 337.) The Court finds that Trustee once again, did not submit sufficient evidence to support the fee request.

Attorney Abbott's declaration provides the billing rates for all the attorneys who worked on the case, and the total time each attorney spent on the case, but nothing more. Counsel does not provide a breakdown of the tasks performed with sufficient specificity regarding when and what was done, for this Court to determine whether the fees incurred are necessary and reasonable. As noted in the previous Minute Order of August 30, 2023, attorney Abbott's declaration focuses on work that was needed to respond to Respondent's litigation tactics, but it does not elaborate on the specific work Trustee's counsel performed with sufficient details. Indeed, counsel states that '[a]ll timekeepers kept contemporaneous time record reflecting their work on this matter,' but no such records were submitted in support of the motion. (ROA 333, Abbott Supp. Decl., at ¶ 9.) Although under some circumstances, an attorney's declaration may be sufficient to support a motion for attorney's fees, the declaration in this case provides insufficient information. (See City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784-785 [an award of attorney's fees may be based on the verified declaration of counsel alone, without reliance on time records or billing statements; however, the court may require the moving party to produce records sufficient to provide a proper basis for determining how much time was spent on particular claims, and may properly reduce the award based on any failure to maintain appropriate time records.].) Further, the motion fails to comply with the requirements of Local Rule, rule 4.16.2.C.4, which requires that any requests for court approval and/or confirmation of compensation 'must be set forth in a declaration that is separate from the Petition or Account' and include specific information as enumerated in the rule: a. Specify the specific dates during which the services were performed; b. Set forth categories of services rendered, together with the number of hours expended for each such category and the hourly rate sought for each such category; c. Set forth in each category the total number of hours performed by each person who performed the services and the hours spent by each of them; d. Set forth the total cumulative number of hours for each of the following: each attorney, paralegal, law clerk, legal assistant or any other person who performed the services set forth in the declaration; e. Comply with the requirements set forth in rule 7.703(e) of the California Rules of Court if paralegals are used.

f. Set forth information that will assist the court in determining whether the hours incurred and the rate sought are just and reasonable, including a discussion of the nature and difficulty of the tasks performed; the results achieved; the benefit to the trust, ward or conservatee; the background, skill and experience of the person rendering the service; an explanation of why the work required more than ordinary skill or judgment; and the standard rate in the community for such tasks.

(Emphasis added.) Counsel's declaration does not breakdown the work performed by categories of tasks, with the specific dates the tasks were performed, and the amount of time expended on each category by each attorney.

Counsel's second supplemental declaration fails to comply with the local rule as well and does not Calendar No.: Event ID:  TENTATIVE RULINGS

3015043 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE JAY & LAEL KOVTUN IRREVOCABLE LIFE  37-2020-00019629-PR-TR-CTL provide sufficient information. Trustee cites to Martino v. Denevi (1986) 182 Cal.App.3d 553, 559, for the proposition that an attorney's testimony about the total number of hours worked in the case is sufficient for an award of attorney's fees. Unlike in Martino, we have the declaration of a single attorney, among many who worked on the case, and not their testimony. Given the significant amount requested and the length of the trial record in this case, the Court cannot determine whether the requested amount is justified simply based on counsel's general statements regarding the work performed. As noted, the declarations do not comply with the local rule. Thus, the Court finds the declarations are not only deficient, but insufficient.

The Court notes that this case was filed in June 2020 and has built an extensive trial record, based on which moving party is requesting fees. It is the moving's party burden to substantiate the amount of fees requested. The Court will not sift through over three years of the trial record to review the request and determine what is and is not compensable.

Therefore, the motion is CONTINUED one last time to January 17, 2024, at 10:30 a.m., for moving party to submit evidence to substantiate the attorney's fees requested. If no evidence is provided, the court is inclined to deny the request.

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

IT IS SO ORDERED.

Calendar No.: Event ID:  TENTATIVE RULINGS

3015043