Cockren v. Brown CA5

Filed 6/21/22 Cockren v. Brown CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIFTH APPELLATE DISTRICT

DUSTIN J. COCKREN,

F081073

Plaintiff and Respondent,

(Super. Ct. No. BPB-16-002660)

v.

BOB D. BROWN, as Cotrustee, etc. et al., OPINION

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of Kern County. Robert S.

Tafoya, Judge.

Dake, Braun & Monje, Craig N. Braun, for Defendants and Appellants.

Fennemore Dowling Aaron, Kenneth M. Byrum, Leigh W. Burnside, and Daniel

O. Jamison, for Plaintiff and Respondent.

-ooOoo-

Our opinion in this case is issued simultaneously with our opinion in a companion

case, Cockren v. Brown et al., F080282 [nonpub. opn.]). Both appeals arose from the

same case in probate court. Case No. F080282 is the appeal from the probate court’s

ruling on the questions at issue during the trial in the matter. The instant case is an

appeal of the probate court’s ruling on a post-trial motion for attorney’s fees.

These two cases arose from a trust created by William Rommel. We will

summarize the essential facts. Rommel amended and restated an existing trust in 2013.

Rommel was in his 90s at the time, had a broken back, and died two weeks after he

signed the amended trust. A dispute arose as to whether Rommel had included an oil and

gas lease (oil lease) and the oil and gas rights (oil rights) underlying the lease, in the

amended trust.

Dustin Cockren, the petitioner below and respondent on appeal, filed a petition

under Probate Code section 850 against two co-trustees of the amended trust, Bob Brown

and Kelley Brown, seeking distribution, from the trust, of the oil lease, royalty payments

arising from the oil lease, and the oil rights underlying the lease. The co-trustees argued

in the probate court that they could not transfer the oil lease or oil rights to Dustin

because before Rommel died, he did not sign separate transfer documents (apart from the

trust itself) to convey the legal title of his oil lease and oil rights to the trust. The probate

court rejected the co-trustees’ contentions and ruled in favor of Dustin.

Among other remedies, the probate court ordered the co-trustees to execute a

conveyance of Rommel’s oil assets to themselves as trustees and distribute them to

Dustin and to distribute the royalty payments to Dustin as well. The probate court further

found the co-trustees had acted in bad faith under Probate Code section 859 by, among

other things, failing to distribute the royalty payments generated by the oil lease to the

named trust beneficiary (who had assigned her interest to Dustin) and instead distributing

the payments to co-trustee Kelley Brown. Consequently, the probate court surcharged

the co-trustees by awarding Dustin double damages under Probate Code section 859.

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Pursuant to Probate Code section 859, along with imposing the surcharge, the probate

court concluded that “Petitioner [Dustin Cockren] shall also recover his attorney’s fees

and costs incurred in this proceeding by filing a timely memorandum of costs and

separate motion for attorney’s fees under the rules in civil cases.”

As noted, the co-trustees, Bob Brown and Kelley Brown, appealed, in case No.

F080282, the probate court’s ruling. In that case (see above), we affirmed the probate

court’s ruling in all respects, including that court’s determination that the co-trustees had

acted in bad faith under Probate Code section 859, triggering liability for double damages

and attorney’s fees.

As for post-trial proceedings in the probate court, Dustin filed a motion for

attorney’s fees and costs pursuant to Probate Code section 859, and the co-trustees filed

an opposition. The probate court granted Dustin’s motion for attorney’s fees and costs.

This appeal by co-trustees followed. We affirm.

FACTS

To recapitulate, in the underlying probate court case, which was brought pursuant

to Probate Code section 850, the probate court entered judgment in favor of

petitioner/respondent Dustin Cockren, finding that decedent William Rommel intended

to, and did, convey his oil and gas lease and the underlying oil and gas rights to his

revocable living trust, and that such assets, along with the royalty payments generated by

the lease, should have been distributed after his death to the named beneficiary in the

trust instrument and then to Dustin.

The probate court determined the co-trustees had acted in bad faith by

misappropriating the royalty payments generated by the oil and gas lease at issue

(Rommel had entered into the lease with an oil company). In this regard, the court

observed: “There has not been one iota of evidence presented by the Co-Trustees to

justify their retention of these funds, whether in their capacity as co-trustees or in their

individual capacities. Kelley Brown testified the Settlor told her that he intended that the

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royalty checks be given to [the beneficiary named in the trust]. At a minimum, the Co-

Trustees knew these proceeds did not belong to them yet they kept the funds anyway.

This is bad faith plain and simple.” The probate court added: “If [the co-trustees] had

any doubt concerning how to dispose of the royalty checks they received following the

death of the Settlor they were obligated to exercise reasonable due diligence in finding

answers. They did absolutely nothing.” The court awarded Dustin double damages and

attorney’s fees pursuant to Probate Code section 859.

Dustin filed a motion for attorney’s fees and costs. The co-trustees opposed the

motion largely on the basis they had not acted in bad faith and, therefore, attorney’s fees

were not recoverable under Probate Code section 859.1 The probate court granted

Dustin’s motion and awarded him attorney’s fees in the amount of $94,805.90 and costs

of $3,268.99.

DISCUSSION

Where attorney’s fees are recoverable by statute, they are treated as an allowable

cost item under Code of Civil Procedure section 1033.5, subdivision (a)(10)(B). (See

Chinn v. KMR Property Management (2008) 166 Cal.App.4th 175, 194 (Chinn) [a party

may seek recovery of his or her attorney’s fees as an allowable item of cost where such

fees are authorized by contract, statute or law], overruled on other grounds by DeSaulles

v. Community Hospital of Monterey Peninsula (2016) 62 Cal.4th 1140.) The party

seeking fees must file a noticed motion under Code of Civil Procedure section 1033.5,

subdivision (c)(5). (See Chinn, supra, at p. 194 [“the proper method to recover attorney

1 Probate Code section 859 provides, in pertinent part: “If a court finds that a

person has in bad faith wrongfully taken, concealed, or disposed of property belonging to

… a trust, or the estate of a decedent … the person shall be liable for twice the value of

the property recovered by an action under this part. In addition … the person may, in the

court’s discretion, be liable for reasonable attorney’s fees and costs. The remedies

provided in this section shall be in addition to any other remedies available in law to a

person authorized to bring an action pursuant to this part.”

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fees is as an item of costs awarded upon noticed motion”].) An award of costs is subject

to three considerations: (1) “[c]osts are allowable if incurred, whether or not paid”; (2)

“[a]llowable costs shall be reasonably necessary to the conduct of the litigation rather

than merely convenient or beneficial to its preparation”; and (3) “[a]llowable costs shall

be reasonable in amount.” (Code Civ. Proc., § 1033.5, subd. (c)(1), (c)(2), (c)(3).)

The trial court’s ruling on a motion for attorney’s fees is generally reviewed for

abuse of discretion. (See Mepco Services, Inc. v. Saddleback Valley Unified School Dist.

(2010) 189 Cal.App.4th 1027, 1045; Akins v. Enterpise Rent-A-Car Co. (2000) 79

Cal.App.4th 1127, 1134 [“The amount of an attorney fee to be awarded is a matter within

the sound discretion of the trial court.”].)

As explained by our Supreme Court in Ketchum v. Moses (2001) 24 Cal.4th 1122,

1132, the “ ‘ “experienced trial judge is the best judge of the value of professional

services rendered in his court, and while his judgment is of course subject to review, it

will not be disturbed unless the appellate court is convinced that it is clearly wrong.” ’ ”

(See Estate of Hart (1953) 119 Cal.App.2d 310, 318 [unless the complaining party

establishes both a clear case of abuse and a miscarriage of justice, “ ‘an appellate court

will not substitute its opinion and thereby divest the trial court of its discretionary

power’ ”]; also see Premier Medical Management Systems, Inc. v. California Ins.

Guarantee Assn. (2008) 163 Cal.App.4th 550, 556-557; Gouskos v. Aptos Village

Garage, Inc. (2001) 94 Cal.App.4th 754, 762 [“ ‘A decision will not be reversed merely

because reasonable people might disagree.’ ”].)

In regard to a trial court’s granting of an award of attorney’s fees, “[t]he only

proper basis of reversal of the amount of an attorney fees award is if the amount awarded

is so large or small that it shocks the conscience and suggests that passion and prejudice

influenced the determination.” (Akins v. Enterpise Rent-A-Car Co., supra, 79

Cal.App.4th at p. 1134.) However, in the absence of a clear showing otherwise, “ ‘a trial

court should be presumed to have acted to achieve legitimate objectives and, accordingly,

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its discretionary determinations ought not be set aside on review.’ ” (Gouskos v. Aptos

Village Garage, Inc., supra, 94 Cal.App.4th at p. 762.)

Co-trustees Bob Brown and Kelley Brown challenge the probate court’s award of

attorney’s fees to Dustin Cockren on a single ground, namely that the co-trustees “did not

act in bad faith, and thus should not be subject to a $94,805.90 attorneys’ fee award.”

(Unnecessary capitalization omitted.) They urge us to review, under the substantial

evidence standard of review, the trial court’s determination, for purposes of Probate Code

section 859, that the co-trustees acted in bad faith. However, we have already reviewed

the trial court’s determination to this effect in case No. F080282, the companion case to

this matter. We need not repeat our analysis here. Suffice it to say that the probate

court’s determination that the co-trustees acted in bad faith under Probate Code section

859 is affirmed.

In granting Dustin Cockren’s motion for attorney’s fees and costs, and awarding

$94,805.90 in fees and $3,268.99 in costs, the probate court made the following

determinations: (1) “[t]he attorneys’ fees were incurred in providing legal services,

which were reasonably necessary in the litigation of the petition and first amended

petition filed in this matter”; (2) “[t]he time spent in providing such legal services was

reasonable given the nature of the work required, the complexity of the issues presented

and the capability of the attorneys providing such services”; (3) “[t]he rates charged by

the attorneys and paralegals who worked on the case were within the market rate for

comparable levels of attorneys, including partners, in the Kern County area”; (4) “[t]he

costs requested by the memorandum of costs [are] authorized”; and (5) “[a]ll of the fees

and costs incurred by the Petitioner appear to have been driven by the opposition of the

co-trustees.”

Bob Brown and Kelley Brown do not challenge the probate court’s foregoing

determinations and the amounts of the awards of fees and costs, respectively. They have

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not demonstrated an abuse of discretion by the probate court in this regard, nor do we

detect any.

DISPOSITION

The judgment is affirmed. Dustin Cockren shall recover his costs on appeal.

SMITH, J.

WE CONCUR:

HILL, P. J.

FRANSON, J.

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