California
Appeals
Standard of Review
Attorney Fees

Standard of Review-Attorney Fees-Elder Abuse Act-Sanders v. Lawson
 

[[Begin published portion.]]

            b.  The Trial Court’s Award of Trustee Fees was Unauthorized.

            Cheryl contends that the attorney’s fees provision in the Elder Abuse Act, section 15657.5, does not authorize the award of compensation to a trustee and so the $517,869.93 awarded to the trustee here was legal error.  The relevant sentence in section 15657.5, subdivision (a) reads:  “The term ‘costs’ includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.”  (Italics added.)  The referee concluded that that sentence was expansive enough to include the services of a trustee as well.  We disagree with the referee.

            “On review of an award of attorney fees after trial, the normal standard of review is abuse of discretion.  However, de novo review of such a trial court order is warranted where the determination of whether the criteria for an award of attorney fees and costs in this context have been satisfied amounts to statutory construction and a question of law.  [Citations.]”  (Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142.)

            In California a prevailing party in a civil proceeding is entitled to the recovery of costs.  (Code Civ. Proc., § 1032, subd. (b).)  “Code of Civil Procedure ‘[s]ection 1032 is the fundamental authority for awarding costs in civil actions.  It establishes the general rule that “[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” ’  [Citations.]”  (Duale v. Mercedes-Benz USA, LLC (2007) 148 Cal.App.4th 718, 724.)  The “ ‘ “items . . . allowable as costs under Section 1032” ’ ” are enumerated in Code of Civil Procedure section 1033.5.  (Duale, supra, at p. 724.)

            Here, the Elder Abuse Act’s section 15657.5 is the relevant attorney’s fees statute that invokes application of Code of Civil Procedure section 1032 costs, and by reference, the cost list in Code of Civil Procedure section 1033.5.  (Code Civ. Proc., § 1033.5, subd. (c)(5); see Duale v. Mercedes-Benz USA, LLC, supra, 148 Cal.App.4th at p. 724.)  As noted, section 15657.5 reads, in relevant part, “(a) Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, in addition to all other remedies otherwise provided by law, the court shall award to the plaintiff reasonable attorney’s fees and costs.  The term ‘costs’ includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.”  (Italics added.)

            Section 15657.5 makes no mention of trustees.  Instead, it defines the term “costs” to include reasonable fees for the services of a conservator. 

            In support of the award of fees to the trustee, plaintiffs point to the important purpose of the Elder Abuse Act, namely, to encourage private enforcement of laws to protect a particularly vulnerable sector of the population from abuse and custodial neglect.  (Delaney v. Baker (1999) 20 Cal.4th 23, 33.)  They contend that this purpose necessitates an expansive reading of the Elder Abuse Act’s cost provision.  They argue thus that the phrase “includes, but is not limited to,” in section 15657.5 “is broad enough to encompass the fees of the Trustee as well as those of the Conservator.”  We decline plaintiffs’ invitation to expand the scope of statutorily available costs.

            First, the clause in section 15657.5, “includes, but is not limited to,” does not expand the list of items that could be considered costs to trustee fees.  It has long been the law in California that “[c]osts recoverable are only those recoverable by statute or rule of court even though the item may be a reasonable one.  [Citations.]”  (Muller v. Reagh (1959) 170 Cal.App.2d 151, 153; accord, Duale v. Mercedes-Benz USA, LLC, supra, 148 Cal.App.4th at p. 724 [“ ‘ “the right to recover costs exists solely by virtue of statute.”  [Citations.]’ ”].)  Code of Civil Procedure section 1033.5 delineates the items allowable as costs in civil actions where costs are authorized by statute.  (Code Civ. Proc., § 1033.5, subd. (c)(5).)  That comprehensive list does not include trustee fees.  Because the services of a trustee are entirely absent from this list of available costs, there was no authority for the award of fees to the trustee as costs.

            Second, knowing full well what trustees and conservators are, the Legislature did not include fees for trustees’ services when it enacted section 15657.5; it chose only to include fees for conservators’ services.  That is, when adding to the Code of Civil Procedure section 1033.5 list of available costs, the Legislature chose not to include trustee fees in section 15657.5.  “We presume the Legislature meant what it said in the [Welfare and Institutions Code], and that it is aware of the circumstances set forth in the Code of Civil Procedure under which attorneys fees may be recovered.  [Citations.]  Where the words of a statute are clear, we may not add to or alter the statute to accomplish a purpose which does not appear on its face.  [Citation.]”  (Department of Forestry & Fire Protection v. LeBrock (2002) 96 Cal.App.4th 1137, 1139.)  Had the Legislature intended to include as costs in section 15657.5 the reasonable fees for the services of a trustee, it could have said so, given it was aware of the itemized list of costs in Code of Civil Procedure section 1033.5 and the absence therein of a reference to trustees.  We decline to expand the list of statutory costs to include those of the trustee where the Legislature has conspicuously failed to do so.  (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 88.).

            Third, to endorse the interpretation suggested by plaintiffs “would substantially expand the range of recoverable costs, particularly under these facts” (See Golf West of Kentucky, Inc. v. Life Investors, Inc. (1986) 178 Cal.App.3d 313, 317, superseded by statute as stated in Cooper v. Westbrook Torrey Hills (2000) 81 Cal.App.4th 1294), where plaintiffs’ attorneys already had the benefit of a conservator protecting the interests of the persons and estates of Louis and Sylvia, and where the ratio of trustee fees to conservator fees was nearly 50 to 1.  “Modification of costs recoverable on appeal is best left to the Legislature with its fact finding capabilities through hearings at which all interested parties may have input.”  (Ibid.)[9]

            Where fees of a trustee are not authorized by section 15657.5 and Code of Civil Procedure section 1033.5, the trial court acted improperly in awarding the trustee fees for his services here in connection the claims brought under the Elder Abuse Act.

Footnote

eBook Master Table of Contents   
Standard of Review-Table of Contents