Conservatorship of Brokken

Filed 3/15/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
Conservatorship of the Estate of 2d Civ. No. B303898
DORIS MAE BROKKEN. (Super. Ct. No. 17PR00194)
_______________________________ (Santa Barbara County)
BETH BROKKEN et al.,
Respondents,
v.
DORIS MAE BROKKEN,
Appellant.
Respondents Beth and Barry Brokken filed this
conservatorship proceeding on their mother’s behalf. The case
settled before a conservator was appointed.
Respondents requested an award of attorney fees under
Probate Code section 2640.1, 1 which authorizes fees in certain
cases in which a conservator was appointed. The trial court erred
by granting the request. Attorney fees are not available where,
1 All statutory references are to the Probate Code.
as here, the matter is resolved without a conservator’s
appointment. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Respondents are the adult children of appellant Doris Mae
Brokken. Over their mother’s vigorous objection, respondents
petitioned to establish a conservatorship. They alleged that
appellant suffered from ongoing mental health issues and that
her behavior had become increasingly erratic. After two years of
litigation and negotiation, the parties settled the matter without
the need for a conservatorship. Appellant voluntarily agreed to
engage in professional mental health services and the petition
was dismissed.
Respondents sought to recover their attorney fees as part of
the settlement. Appellant did not believe they are legally entitled
to fees, but to facilitate settlement, she agreed to let the probate
court decide whether respondents are entitled to fees and, if so,
the amount of such fees.
Relying upon section 2640.1, respondents filed a motion
seeking $12,584 in attorney fees. Appellant claimed the statute’s
plain language precludes a fee award because a conservatorship
was not established. Subdivision (a) states: “If a person has
petitioned for the appointment of a particular conservator and
another conservator was appointed while the petition was
pending, but not before the expiration of 90 days from the
issuance of letters, the person who petitioned for the appointment
of a conservator but was not appointed and that person’s attorney
may petition the court for an order fixing and allowing
compensation and reimbursement of costs, provided that the
court determines that the petition was filed in the best interests
of the conservatee.”
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Respondents maintained the equitable principles set forth
in Conservatorship of Cornelius (2011) 200 Cal.App.4th 1198(Cornelius), support an award of attorney fees under the unique
circumstances of this case. The probate court granted the fee
request, but not without reservation. It found the statutory
language “clear” but determined Cornelius “does open the door”
to fees. We agree the statutory language is clear but disagree
that Cornelius applies. As we shall explain, that case involved
different probate statutes and is limited to its facts.
DISCUSSION
Standard of Review
Issues of statutory interpretation are subject to de novo
review. (In re Joshua A. (2015) 239 Cal.App.4th 208, 214-215.)
In determining the scope of a statute, “we look first to the words
of the statute, giving effect to their plain meaning. [Citation.] If
the statutory language is clear and unambiguous, we presume
the Legislature meant what it said and the plain meaning of the
statute governs. [Citation.]” (Ibid.) We cannot rewrite a statute
to conform to a presumed intention that is not expressed.
(Jackpot Harvesting Co., Inc. v. Superior Court (2018) 26
Cal.App.5th 125, 142.)
The Plain Language of Section 2640.1 Does Not
Support the Attorney Fees Award
First, we reject respondents’ contention that appellant or
her counsel agreed respondents are legally entitled to a fee award
and that the only issue before the probate court was the amount
of those fees. In objecting to the fee petition, appellant’s counsel
explained: “The parties have agreed that this proceeding shall be
dismissed, but agreed that prior to dismissal, given the dispute
as to the payment of petitioners’ counsel’s fees, petitioners’
counsel would file a petition seeking an order that [appellant] pay
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petitioners’ counsel’s fees.” (Italics added.) Appellant
maintained then, as she does now, that section 2640.1 does not
allow fees absent a conservator’s appointment.
Section 2640.1, subdivision (a) provides that if a person
petitioned for the appointment of “a particular conservator” and
another is appointed while that petition is pending, the court
may award attorney fees and costs to that person if it
“determines that the petition was filed in the best interests of the
conservatee.” Any fees awarded under this section “shall be
charged to the estate of the conservatee.” (Id., subd. (c)(2).)
The probate court acknowledged that the statute’s plain
language does not apply to the facts in this case. Section 2640.1
would apply only if respondents filed their petition for
appointment of a specific conservator and another conservator
was appointed while their petition was pending. That did not
occur. No conservator was ever appointed and, consequently,
appellant never became a conservatee. Thus, there is no “estate
of the conservatee” from which to pay attorney fees. (Id., subd.
(c)(2).) Respondents cite no authority suggesting the court may
order a non-conservatee to pay the fees.
Respondents rely upon Cornelius, supra, 200 Cal.App.4th
1198, to support their argument that section 2640.1 may be read
broadly. In doing so, respondents read Cornelius too broadly. At
most, it stands for the proposition that payment of fees under
sections 2641, subdivision (a) and 2642, subdivision (a) applies to
both temporary and permanent conservatorships. Cornelius
involved a temporary conservatorship. Here, we have a different
statute and no conservatorship. “‘[C]ases are not authority for
propositions not considered.’” (American Federation of Labor v.
Unemployment Ins. Appeals Bd. (1996) 13 Cal.4th 1017, 1039;
B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 11.)
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In Cornelius, a daughter petitioned for a temporary and
permanent conservatorship of her father. (Cornelius, supra, 200
Cal.App.4th at p. 1200.) Following an investigation, the probate
court established a six-month temporary conservatorship. (Id. at
pp. 1200-1201.) Ultimately, the daughter dismissed the petition
for a permanent conservatorship. The court awarded fees and
expenses “to the temporary conservator and her attorneys, to be
paid from the conservatee’s estate.” (Id. at p. 1200.) On appeal,
the father argued the statutes allowing fees apply only to
permanent conservatorships, not to temporary ones. (Ibid.)
Noting that section 2641, subdivision (a) states that a
“‘conservator of the person may petition the court for an order
fixing and allowing compensation for services rendered to that
time,’” and that section 2642, subdivision (a) allows the
conservator’s attorney to do the same, the Court of Appeal
reasoned “[t]he statutes make no distinction between temporary
and permanent conservators, and we perceive no reason to draw
one. 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.” (Cornelius, supra, 200 Cal.App.4th at p. 1204.)
Cornelius does broadly state “[t]he deciding factor in
awarding reimbursement in a conservatorship proceeding is not
whether a permanent conservatorship is established but whether
expenses were incurred in good faith and in the best interests of
the proposed conservatee.” (Cornelius, supra, 200 Cal.App.4th at
p. 1205.) The court clarified, however, that “it does not follow
that the absence of a permanent conservatorship (whether by
court denial or party dismissal) proves that the petition for a
permanent conservatorship and the interim temporary
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conservatorship were not necessary and beneficial to the
conservatee. The petition to appoint a permanent conservator,
and appointment of a temporary conservator pending resolution of
[the] petition, may well benefit the conservatee even if a
permanent conservatorship is never established. It is benefit to
the conservatee, not establishment of a permanent
conservatorship, that a court must look to in deciding whether a
temporary conservator is entitled to reimbursement.” (Ibid.,
italics added.)
Cornelius’s focus, therefore, was on whether two statutes
allowing compensation to a conservator and his or her attorney
apply to both temporary and permanent conservatorships. It
decided they do. But here, there is no conservator or conservatee,
temporary or otherwise, and plain statutory language requiring
both as a prerequisite to attorney fees. (§ 2640.1, subds. (a),
(c)(2).) Under these circumstances, section 2640.1 does not
authorize an award of fees.
DISPOSITION
The order approving respondents’ petition for attorney fees
is reversed. Appellant shall recover her costs on appeal.
CERTIFIED FOR PUBLICATION.
PERREN, J.
We concur:
GILBERT, P. J. YEGAN, J.
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Colleen K. Sterne, Judge
Superior Court County of Santa Barbara
______________________________
Mullen & Henzell, Jana S. Johnston, and Will Tomlinson,
Attorneys for Appellant.
Law Office of Cristi Michelon, Cristi Michelon Vasquez,
Attorneys for Respondents.
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