Estate of Castrillo
Filed 6/28/12 Estate of Castrillo CA1/4
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
Estate of
JOSEPHINE T. CASTRILLO, Deceased.
MAY A. CASTRILLO, as Administrator,
etc.,
Petitioner and Respondent,
v.
JULIO
CASTRILLO et al.,
Objectors and Appellants;
HERB
THOMAS, as Trustee, etc.,
Claimant and Respondent.
A133446
(Alameda
County
Super. Ct.
No. RP08419764)
I.
Introduction
Julio
Castrillo (Julio) and his attorney, Thomas V. Roland (Roland) (collectively,
appellants) , appeal from an order of final distribution (Order) relating to
the Estate of Josephine T. Castrillo (the Estate). Appellants contend that in issuing the Order,
the probate court failed to include payment to Roland for his
representation of Julio in connection with his mother’s estate. They claim there was no support in the record
for the court’s finding that there was no assignment providing for payment of
attorney fees and costs to Roland out of Julio’s distributive share in the
estate.
We
agree, and vacate that portion of the Order granting Julio a distribution from
the estate, with directions that the probate court reconsider the matter of
Roland’s assignment for attorney fees, before ordering such distribution. In all other respects, we affirm the Order.
II.
Procedural and Factual Backgrounds
The
Estate was admitted to probate with the filing of letters of administration in
Alameda County Superior Court on November
12, 2008. The petition was
filed by respondent May A. Castrillo,
daughter of the decedent, Josephine T. Castrillo, naming May and her sisters
Linda and Josephine, and her brothers Edward and Julio, as Josephine’s
survivors and heirs. May was appointed
administrator by order dated July 13,
2009.
In
September 2011, an accounting report and petition for final distribution (the
petition) was filed by May through her attorney, Matthew J. Duncan (Duncan). The petition noted that May’s sister
Josephine was represented by attorney W. Lance Russum (Russum). Because Josephine died intestate, May asked
that each of the five siblings receive 20 percent of the available assets. It was noted that Julio’s portion should be
distributed to a special needs trust set up on his behalf on December 6, 2010,
which was being administrated by Herb Thomas as trustee.
As
to the attorneys involved, the petition requested the court to order further
payment of $11,429.66, to Russum from Josephine’s share, pursuant to an
“Assignment of Partial Interest in Estate and Declaration Pursuant to Probate
Code section 11604.5.”
name="_ftnref2" title="">[2] (Full capitalization omitted.) It was also proposed that the Estate’s
attorney, Duncan, receive $16,100 for his work representing the Estate.
As
to Julio, the report noted that a partial distribution had been made to his
special needs trust in the amount of $46,095.06. The petition requested that Julio receive an
additional $6,696, for a total distribution of $52,791.06.
On
October 4, 2011, Roland
filed a “Declaration of Attorney for Julio Castrillo, Agreement of Attorney and
Client, and Request That Court Order Payment of Attorney Fees and Costs From
Client’s Share of Distribution.” (Full
capitalization omitted.) In his
declaration, Roland stated that his customary hourly fee was $400, and that he
had performed legal services for Julio as enumerated in the document totaling
32 hours. Therefore, Roland requested a
total of $12,800 for attorney fees. In
addition, Roland stated that he had incurred costs in connection with that
representation totaling $1,083.50, which sums together he sought to be paid out
of Julio’s distribution.
The
declaration was accompanied by a copy of an “Attorney-Client Retainer
Agreement” (Agreement), which included an assignment from Julio to Roland of a
partial interest in the Estate “as may be required to pay th[e]se obligations.” The Agreement was signed on March 13, 2009,
by Pauline Castrillo (Pauline), as attorney-in-fact for Julio. Attached to the Agreement was a “Uniform
Statutory Form Power of Attorney” giving Pauline the power to act for
Julio. The power of attorney was signed
by Julio, whose signature was notarized.
The
matter was assigned to an
County Superior Court probate examiner who examined the report and attached
schedules, and submitted a final distribution check sheet to the court. Under “Court to Review,” the examiner noted
three items for the court to consider: (1) a proposed reduction in the
distribution to Josephine; (2) payment to Russum of unpaid attorney fees
in the amount of $11,429.66; and (3) payment of $12,800 in attorney fees and
$1,083.50 in costs to Roland for his representation of Julio.
The
matter was heard on October 11, 2011.
That day, a handwritten declaration was filed by attorney Barbara D.
Hannon (Hannon) of Duncan’s law office, counsel for May, responding to the
examiner’s report. In it, Hannon
recommended certain corrections. As to
Roland’s request for fees and costs, Hannon noted that “[t]he amount claimed by
Attorney Roland is $12,800 fees and $1,083.50 of costs, is submitted to the
court. It would reduce distributive
share to Julio Castrillo to $33,211.56, payable to Trustee Herb Thomas.”
Appearing
at the “calendar department” hearing on October 11, 2011, before Judge Sandra K. Bean were Hannon,
Josephine, Thomas, and Linda. Roland did
not appear. Much of the hearing was
taken up with the matter of a proposed reduction in Josephine’s distributive
share. Near the end of the relatively
short hearing, the following colloquy took place:
“MS.
HANNON: Your Honor, on the rest of the
order—
“THE
COURT: Do you want to fix it
“MS.
HANNON: Then we had the two issues of
Mr. Roland’s fees and Mr. Russum’s fees.
“THE
COURT: Mr. Roland’s fees, there was no
assignment.
“MS.
LINDA CASTRILLO: That’s right.
“THE
COURT: So he needs to pursue whatever
remedies but, Mr. Russum, there was an assignment.”
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“THE
COURT: [Russum] has an assignment for a
certain amount. Whatever the assignment
is, Mr. Russum gets by, by law. If he
has an assignment.
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“THE
COURT: Well, [Russum] has an assignment
against the estate so when the estate is distributed—
“MS.
CASTRILLO: Right.
“THE
COURT: —if there is an assignment that
goes directly to the person who has that document filed with the court.”
The
court then ordered that $6,150.50 be paid to Russum from Josephine’s
distributive share. Roland received
nothing in the final distribution.
Appellants filed their notice of appeal three days later.
III.
Discussion
One
method by which an attorney can secure the payment of fees and expenses from a
client in probate matters is to secure payment from the distributive share of
an heir in probate by way of assignment.
Assignments of interests in probated estates are governed by Probate
Code section 11604,
title="">[4]
which provides in relevant part:
“(a) This
section applies where distribution is to be made to any of the following
persons:
“(1) The
transferee of a beneficiary.
“(2) Any
person other than a beneficiary under an agreement, request, or instructions of
a beneficiary or the attorney in fact of a beneficiary.
“(b) The
court on its own motion, or on motion of the personal representative or other
interested person or of the public administrator, may inquire into the
circumstances surrounding the execution of, and the consideration for, the
transfer, agreement, request, or instructions, and the amount of any fees,
charges, or consideration paid or agreed to be paid by the beneficiary.”
The
statute also empowers the probate court to refuse to order distribution if the
court finds either that:
“(1) The
fees, charges, or consideration paid or agreed to be paid by a beneficiary are
grossly unreasonable.
“(2) The
transfer, agreement, request, or instructions were obtained by duress, fraud,
or undue influence.” (§ 11604,
subds. (c)(1), (2).)
The
purpose of the statute is to provide for judicial supervision of proportional
assignments given by beneficiaries to so-called “heir hunters.” (Estate
of Wright (2001) 90 Cal.App.4th 228; Estate
of Lund (1944) 65 Cal.App.2d 151.)
section was protection against heir hunters, the section is not limited to that
class only. It has been applied to
assignees and transferees generally.
[Citation.]” (
492, 506.)
A
lien assignment against a distributive share of a probated estate can be
enforced under section 11604. (
875.) It is improper for a probate court
to refuse to honor a valid assignment. (
Cal.App.2d 291, 295.)
Rulings
on motions under section 11604 are generally reviewed under the substantial
evidence standard. (Estate of Wright, supra,
90 Cal.App.4th at p. 238.) However,
whether a legal basis exists for an attorney fee award presents a question of
law that is reviewed de novo. (
Construction Co. (2000) 84 Cal.App.4th 671, 677.)
There
is no question that Roland attached the fee agreement he entered into with
Julio to his declaration which was filed with the probate court. This fee agreement included an assignment by
which Roland could seek the payment of fees from Julio’s distributive share of
the estate. No party opposed this
request, or suggested that the assignment was invalid or unenforceable.
In
light of these factors, the probate court in this instance appears to have
simply overlooked Roland’s assignment when it concluded that “there was no
assignment.” No explanation was given
for the refusal to grant the requested fees, but the blanket statement that
“there was no assignment,” rather than there was no “valid” assignment or no
“enforceable” assignment, suggests oversight.
This could have easily occurred in a busy probate calendar
department. Moreover, Roland’s s declaration
was captioned “Declaration of Attorney for Julio Castrillo, Agreement of
Attorney and Client, and Request That Court Order Payment of Attorney Fees and
Costs From Client’s Share of Distribution.”
(Full capitalization omitted.) No
mention is made of an assignment in the caption or the body of his
declaration. Of course, Roland was not
present at the hearing to clarify the issue or to call the court’s attention to
the fact that he did have an uncontested assignment securing his interest in
attorney fees and costs.
While
the apparent oversight is understandable, we nevertheless conclude that it was
error not to award Roland the requested fees and costs from Julio’s
distributive share of the Estate.
Appellants request that we remand the matter to the probate court to
enable that court to “be free to take a fresh look at the case without
unnecessary restrictions.” We
agree. In this way the probate court can
not only consider events occurring since its October 13, 2011 Order, but the
court will also have an opportunity to clarify if it, in fact, perceived a
enforcement of Roland’s fee agreement and assignment.
IV.
Disposition
We
hereby vacate that portion of the Order granting Julio a distribution from the
Estate, with directions that the probate court reconsider the matter of
Roland’s assignment for attorney fees, before ordering such distribution. In all other respects, we affirm the
Order. All sides to bear their own
RUVOLO,
P. J.
We concur:
REARDON, J.
SEPULVEDA, J.
opinion have the last name of Castrillo, we refer to each by his or her first
name to avoid confusion. No disrespect
is intended by such usage.
to Russum pursuant to the assignment in the amount of $15,769.15, leaving a
remaining balance due Russum of $11,429.66.
