Ashlock v. Carlson (In re Estate of Ashlock)

Estate of LONNIE LAMONT ASHLOCK, Deceased.

GABRIEL ASHLOCK, as Administrator, etc., Petitioner and Respondent, v. STACEY CARLSON, Objector and Appellant.

Estate of LONNIE LAMONT ASHLOCK, Deceased.

STACEY CARLSON, as Executor, etc., Petitioner and Appellant, v. GABRIEL ASHLOCK, Objector and Respondent.

GABRIEL ASHLOCK, Plaintiff and Respondent, v. STACEY CARLSON, as Trustee, etc., Defendant and Appellant.

F076941

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

May 3, 2019

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 445230)

OPINION

(Super. Ct. No. 445304)

(Super. Ct. No. 445360)

APPEAL from an order of the Superior Court of Stanislaus County. Timothy W. Salter, Judge.

Crabtree Schmidt and Robert W. Crabtree for Objector and Appellant, Petitioner and Appellant, and Defendant and Appellant.

Schofield & Associates, Louis F. Schofield; Curtis Legal Group, and William Broderick-Villa for Petitioner and Respondent, Objector and Respondent, and Plaintiff and Respondent.

-ooOoo-

This appeal concerns the recovery of attorney fees in a probate matter. Based on the lodestar method and a multiplier of 1.5, the recoverable fees were found to be in excess of $1.8 million. The trial court offered little explanation for the multiplier beyond stating, quite accurately, "that this was not a 'run of the mill' probate case ... but rather a very complex case, both factually and legally."

The underlying dispute has been the subject of writ petitions and a prior appeal of an interim judgment. The principal litigants are Stacey Carlson and Gabriel Ashlock, both of whom claimed entitlement to the estate of Gabriel's deceased father. The stakes were high, as the prevailing party stood to inherit millions of dollars. In a nonpublished opinion, this court affirmed findings made in favor of Gabriel with regard to a trust dispute, a will contest, and claims against Stacey for breach of fiduciary duty and financial abuse of a dependent adult. (Estate of Ashlock (Mar. 14, 2019, F074969) (Ashlock I).) The award of attorney fees rests upon those findings.¹

Stacey alleges Gabriel waived the right to recover attorney fees by not filing a timely motion therefor. In the alternative, she contends the trial court erred by ordering extensions of the purported filing deadline. Her secondary position concerns the scope and amount of the award. She also complains of the trial court's refusal to issue a statement of decision. We affirm the challenged order.

FACTUAL AND PROCEDURAL HISTORY

We incorporate by reference the factual and procedural background in Ashlock I and take judicial notice of the disposition therein. To briefly recapitulate, decedent Lonnie Ashlock passed away in 2013. Soon thereafter, Gabriel and Stacey became embroiled in litigation over Lonnie's estate. Stacey petitioned to admit into probate a will signed by Lonnie in 2009. Gabriel opposed the petition on numerous grounds, including the fact Stacey had drafted the will and named herself the sole beneficiary. Gabriel also filed a petition challenging the validity of multiple trust instruments, which Stacey had drafted and executed on Lonnie's behalf in 2013.

On October 25, 2016, following a 53-day bench trial, the trial court issued its first interim judgment. Gabriel was declared the prevailing party and found to be "entitled to his attorneys fees and costs as provided by law." Issues of damages and remedies had been bifurcated from questions of liability, and the bifurcated issues remained to be determined. On November 1, 2016, Gabriel served a notice of entry of judgment. Stacey filed a motion for new trial, which was denied on December 22, 2016.

On January 10, 2017, the parties attended a hearing on a petition regarding Lonnie's 1993 will.² Various other pending matters were discussed, including an objection filed by Stacey to Gabriel's "Initial Administrator Report." The trial court stated its anticipation of a motion by Gabriel to recover his attorney fees, which it scheduled to be heard on February 24, 2017.

On February 10, 2017, during a law and motion hearing on other matters, Gabriel's counsel requested the hearing on attorney fees be continued to February 28, 2017. The continuance was granted without objection. On the date of the continued hearing, Gabriel's counsel stated,

"[W]e've had our hands full in responding to various actions taken by [Stacey] within the last—since we were here last time. These included in the Court of Appeals case, they included in the Federal District Court case. It included in writs of attachment and levies .... [¶] [W]e were supposed to do the motion concerning the foreclosure, we were supposed to do a motion concerning the request for damages and a motion concerning attorney's fees. [¶] We simply couldn't get this done in time, and so we're asking this Court for additional time to respond."

The trial court ordered a nine-week continuance.

On May 2, 2017, the parties and the trial court addressed four pending motions/claims, none of which pertained to Gabriel's attorney fees in Ashlock I. On June 9, 2017, there was a hearing on Gabriel's motion to disqualify Stacey's desired appellate counsel in Ashlock I.³ During the proceeding, the trial court made the following statements:

"One other matter I want to address this morning is [Gabriel's] brief on damages, and Mr. Crabtree filed an objection to that. [¶] ... [¶] But I think it makes more sense to take these things one step at a time, and I think that the first one that I would like to see tackled is the issue of attorney's fees. I did order [Gabriel]—that [Gabriel] was entitled to an award of attorney fees. ... I've never seen any declaration or an itemization of what your services were in taking this matter through trial and what your claim is for attorney's fees. [¶] So it seems to me that that should be the next order of business, and what I would like to do this morning is set a date out in the future when we could have a hearing on that, and then also include a date prior to that when you will have your declarations and itemization of attorney's fees you're claiming, giving [Stacey] an opportunity to file whatever they want to in response to that."

Attorney Schofield responded:

"[F]rankly, it's confusing to Mr. Broderick-Villa and myself if this is the time to make that motion .... And let me explain why. [¶] This is an interim judgment that we have. We can do a motion for attorney's fees based on the work that was done to the—through the time of the interim judgment. But the Court has bifurcated two other issues here ... [including] the nature and extent of the damages. [¶] So what is confusing to us is are we—are we jumping—are we putting the horse—or the cart ahead of the horse here, and that's why we haven't done it."

The trial court replied, "[T]hat is what I think would be best. And then at the time I make a decision on that, we can decide what the next unresolved issue is that I will tackle." Gabriel's counsel then stated his intention to seek attorney fees incurred through October 31, 2016. Stacey's counsel said, "Well, I'm not going to agree to anything, because I don't think the proper procedure is being followed with respect to attorney's fees, anyway. But that will be brought up when a proper motion is made." The trial court rescheduled the motion hearing for August 18, 2017.

On July 27, 2017, Gabriel filed his motion for attorney fees. In a supporting declaration, attorney Broderick-Villa claimed he and other people at his law firm, Curtis Legal Group, PLC, had collectively worked 3,549 hours on the case over a three-year period. Most of the work was attributed to Broderick-Villa, which he valued in the range of $225 to $275 per hour. Slightly less than 500 hours were attributed to paralegals, a law clerk, and other attorneys, whose services were valued at $175 to $315 per hour for the attorneys and $115 per hour for nonattorneys. Attorney Schofield, whom Gabriel had retained as cocounsel, attested to providing approximately $434,518 worth of services at an hourly rate of $395, i.e., approximately 1,100 hours of attorney time. The motion also requested over $148,000 in fees paid to a court-appointed special administrator of the estate, plus a multiplier of 2.0, for a total award of $2,885,258.20.

Stacey filed an ex parte application to continue the motion hearing, which was granted. The hearing date was rescheduled to September 26, 2017. She then filed her opposition papers, which alleged Gabriel's motion was untimely. The opposition also challenged the amount of recoverable fees.

On September 25, 2017, the trial court issued a tentative ruling. The parties were advised of the court's intention to award a subtotal of approximately $1.3 million, minus amounts requested in connection with two specific matters. The request for recovery of the special administrator's fees was denied, and the trial court decided to use a "Lodestar multiplier of 1.5" instead of Gabriel's proposed multiplier of 2.0.

When the motion was heard the following day, Stacey's counsel did not address the issue of the multiplier. Counsel focused on the waiver argument, insisting the motion was untimely. The trial court responded as follows:

"I made a series of orders on virtually every hearing sort of kicking the can down the road. Maybe I shouldn't have done that, but I did do that. I wanted to try to keep things in front of us so we could focus on what still needed to be done. [¶] So there were a series of orders continuing that matter, so for that reason, I don't think the ... statutory provisions you cited do apply."

Stacey's counsel also argued against awarding fees for services not directly...