By: Brian Ramsey, Esq. Second in our series regarding attorney’s fees and “Do I really Have to Pay for This. The general answer is “No!†The “American rule†is that each side has to bear their own attorney’s fees. (California Code of Civil Procedure §1021; In Re Bevelle’s Estate, (1947) 81 Cal.App.2d 720.) However there are some exceptions. Exceptions for Guardianship / Conservatorship Cases Include: California Probate Code 859: Attorney’s fees “may†be awarded if a court finds that a person has in “bad faith†wrongfully taken, concealed, or disposed of property belonging to a conservatee, a minor, an elder, a dependent adult, a trust, or the estate of a decedent, or has taken, concealed, or disposed of the property by the use of undue influence. “Bad faith†is not given a clear definition in the Probate Code, but it essentially means an intentional dishonest act. Contrast this with “good faith†where folks are genuinely doing what they think is right, even if it later turns out to be wrong. California Probate Code 2653(c)(1): If a conservator or guardian is removed by the court, for cause (See Probate Code 2650), the court “shall†award attorney’s fees to the petitioner, unless the court determines that the guardian or conservator that was removed acted in “good faith,†based on the best interests of the ward or conservatee. California Probate Code 2622.5: A guardian or conservator must file an accounting with the court. If a person contests such an accounting without “reasonable cause†and in “bad faith,†the court “may†award attorney’s fees to the guardian or conservator. If awarded, the person will be personally liable for those fees. AND If the person filing the accounting (the guardian or conservator) opposes a contest to the accounting without “reasonable cause†or in “bad faith,†the court “may†award attorney’s fees to the contestant. If awarded, the fees go against whatever compensation the guardian or conservator is entitled to. If that compensation is not large enough to satisfy the award of attorney’s fees, the guardian or conservator will be personally liable for the difference. California Probate Code 2618(c): A guardian, conservator, ward, or conservatee can petition the court to compel a person into court, or to answer written interrogatories, concerning allegations that the person has wrongfully taken property from a ward or conservatee. (See Probate Code 2616.) If it appears that the allegations of the petition are not true, the person’s reasonable attorney’s fee “shall†be awarded against the petitioner, or allowed out of the estate, in the discretion of the court.
General Ways to Obtain Attorney’s Fees
California Code of Civil Procedure 128.5: A court may order a party, the party’s attorney, or both, to pay reasonable attorney’s fees incurred as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.
“Actions or tactics†include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading. The mere filing of a complaint without service thereof on an opposing party does not constitute “actions or tactics†for purposes of this section.
“Frivolous†means totally and completely without merit or for the sole purpose of harassing an opposing party.
Malicious Prosecution: This is a separate lawsuit that is brought after the conclusion of an underlying lawsuit. To succeed in a malicious prosecution lawsuit, the plaintiff must show: (1) that the defendant was actively involved in bringing or continuing the lawsuit; (2) that the lawsuit ended in plaintiff’s favor; (3) that no reasonable person in defendant’s circumstances would have believed that there were reasonable grounds to bring the lawsuit against plaintiff; (4) that defendant acted primarily for a purpose other than succeeding on the merits of the claim; (5) that plaintiff was harmed; (6) and that defendant’s conduct was a substantial factor in causing plaintiff’s harm.
Most of these statutes contain words such as “may,†and “reasonable.†These equivocal words give judges wide discretion to decide whether to award such fees, and if so, in what amount. Judges can, and often do, award lower amounts than what was actually paid or incurred. Judges have the luxury of examining what fees were incurred after the outcome is known – something the attorneys and parties cannot know for certain as they strategize and litigate the case. It is therefore important to have an attorney that not only knows that fee-shifting statutes are available but who can effectively and efficiently obtain the best overall outcome under the specific facts of your matter.
If you are wondering if you’re entitled to attorney’s fees or if someone has threatened to sue you and stated that you’ll have to pay for their attorney’s fees, we encourage you to contact us to see if we can help.
