Reedy v. Bussell

Filed 2/23/07 Reedy v. Bussell CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment and orders of the Superior Court of Orange County, Marjorie Laird Carter, Judge. Affirmed.

William Salzwedel for Defendant and Appellant.

Meserve, Mumper & Hughes, and Bernard A. Leckie; Alan M. Reedy, for Plaintiff and Respondent.

Todd Bussell appeals from orders allowing attorney fees to be paid out of three trusts, following extensive litigation involving those trusts. Although Todd^[1] disagrees with the fee orders, his appeal does not challenge their merits. Instead, Todd argues the court erred in deciding both the amount and the allocation of fees among the trusts, without holding an evidentiary hearing and without first allowing him to take discovery. We are unpersuaded. The court did hold a hearing on the fee petitions, and those petitions were supported by evidence. The court gave Todd the opportunity to file opposition, and Todd was free to include whatever evidence he believed relevant in his opposition. That is all that is necessary to constitute an evidentiary hearing.

Additionally, the court did not deny Todd the opportunity to take discovery. Our record reflects that Todd never initiated any, and instead waited until a month and a half after the fee petitions were filed to seek an ex parte order allowing him to initiate discovery on shortened time. The court was not required to grant that relief. The orders are affirmed.

* * *

The fee orders at issue in this case authorize payment of fees from each of three trusts set up to benefit the family of Helen Chamness Bussell. The first trust, created by Helens late husband, Elmer, is the Elmer Jacob Bussell Testamentary Trust (the Elmer Trust). The second and third trusts, created by Helen, are collectively entitled the Helen Chamness Bussell Family Trust. That instrument includes both the Initial Trust, which is revocable, and the Gift Trust, which is irrevocable.

Helens daughter, Jacqueline Reedy, is either the sole trustee, or cotrustee of each trust, and is the sole beneficiary of the Initial Trust. Todd is a beneficiary of both the Elmer Trust and Helens Gift Trust. Various petitions have been filed in connection with the trusts, and five of those petitions were joined together for trial in Orange County Superior Court in April of 2005. On September 16, 2005, after that litigation had concluded in the trial court, Reedy filed two motions for orders allowing her to pay fees out of the trusts to the counsel involved in that litigation, as well as for regular trust administration and a quiet title action litigated in San Diego County.

One of the motions sought authorization to pay Meserve, Mumper and Hughes, which had been involved only in the Orange County litigation. The other motion sought authorization to pay Alan Merlin Reedy, APC, for his services in connection with the Orange County litigation, the San Diego quiet title action, and the regular administration of the trusts.^[2] Each motion was supported by a declaration from Reedy, as well as a declaration from counsel setting forth the basic facts of the relevant litigation and the services they had rendered, authenticating attached billing statements, and explaining the proposed division of the fees among the three trusts.

The motion requesting authorization to pay Meserve, Mumper and Hughes, sought approximately $93,000 from the Initial Trust, $74,000 from the Gift Trust, and $56,000 from the Elmer Trust a total of $223,000. The motion requesting authorization to pay Alan Reedy, APC, sought approximately $6,000 from the Initial Trust, $89,000 from the Gift Trust, and $24,000 from the Elmer Trust a total of approximately $119,000.^[3] The court set the motions for hearing on October 21, 2005.

On October 12, 2005, Todd filed opposition to the motions, arguing (1) it was improper for any fees to be paid to Reedys spouse, Alan Reedy; (2) there was no support for any award of extraordinary fees, as Reedys litigation conduct was unreasonable; (3) any fee award prior to the final conclusion of the litigation was premature; (4) an award of fees was inappropriate due to Reedys failure to act impartially in the litigation; (5) no fees should be awarded from the Initial Trust absent some showing of Helens consent; and (6) the proposed distribution of the fees among the trusts was arbitrary.

Reedy filed reply briefs, and on October 20, 2005, the day prior to the scheduled hearing, Helen (acting through her guardian ad litem) filed a response to the motions. She suggested a fairly modest reduction in the amounts of fees payable to Meserve, Mumper and Hughes from the Initial Trust and the Elmer Trust, and took no position with regard to its payment from the Gift Trust. As to the proposed payments to Alan Reedy, Helen concluded the fees sought from the Initial Trust were reasonable, suggested a modest reduction in the fees to be paid from the Elmer Trust, and took no position regarding the Gift Trust (other than to note that the bulk of fees requested related to the San Diego quiet title action.)

Todd also filed additional opposition on the day prior to the hearing. As part of that opposition, Todds counsel asserted he was convinced that there is an active effort toward fee shifting away from the trust of which [Reedy is] sole contingent beneficiary and fees being misallocated to the trusts in which [Todd is contingent beneficiary] in order to unfairly minimize the cost of litigation to Petitioner Reedy. He claimed, for the first time, that he needed to take discovery, including requests for production of documents and at least three depositions, in order to properly respond to the motions. He also sought a continuance of the motion, because [w]hether or not the court grants some discovery for these motions, the court should give a brief continuance so that the voluminous records can be adequately assessed. The normal notice period given for these motions is simply insufficient to adequately assess all this detailed information.

At the October 21 hearing, Todds counsel renewed his request for a continuance, and informed the court that in the event the motions were to be decided that date, he had subpoenaed Alan Reedy to testify in court regarding his allocation of fees. The court explained that although the fee requests had been captioned as motions, it viewed them as petitions, and would treat them as such. And as it was the courts normal practice to grant one continuance of the hearing on a petition, it felt bound to do so in this case. The court cautioned Todd, however, that theres not going to be a trial. [] I dont know what you envisioned [but you] certainly, absolutely, can file opposition, and then the court will decide what the fees are. When Todd responded that what he wanted was to take discovery, the court noted that as no discovery motion had been filed, Im not here to rule on [that]. The court then continued the matter for hearing on November 18, 2005.

Eleven days after the hearing, on November 1, 2005, Todd filed an ex parte application for an order allowing him to take depositions on shortened time, or alternatively, for permission to file a motion on shortened time requesting such relief. His application explained there was good cause for relief because [t]he hearing of the Attorneys Fees motions/petitions is soon approaching on November 18, 2005, . . . [and there is not] enough time to obtain the needed discovery and incorporate the information provided in a complete and thorough response to the motions/petitions for attorneys fees. The ex parte application was denied, and Todd subsequently filed a motion for an order allowing him to take discovery in connection with the fee petitions. The motion was set for hearing on December 2, 2005, after the November 18 hearing date on the fee petitions.

At the November 18 hearing, Todd requested that the fee petitions be continued until December 2, so they could be considered in conjunction with his discovery motion. He acknowledged he had yet to file any written objections to the fee petitions, because he understood that was not to happen today . . . and, in fact, I would need to incorporate the information we got from discovery in that . . . it was premature. The court declined to continue the hearing again, and took the fee petitions under submission.

On November 30, 2005, the court issued its orders granting the fee petitions. It awarded both Meserve, Mumper and Hughes, and Alan Reedy, slightly lower amounts than had been requested.

On December 2, 2005, Todds motion for an order permitting discovery on shortened time came on for hearing, and over Todds objection, it was ordered off calendar as moot.

I

Todd first argues that the fee requests, captioned as motions were actually required to be captioned, and treated, as petitions filed pursuant to Probate Code section 17200. However, he has failed to demonstrate either that he raised any such objection in the trial court, or that these motions were actually treated differently from petitions in any material way. Indeed, the court expressly stated at the first hearing that the requests would be treated as petitions, and granted Todds request for a continuance of the hearing date on the ground that was the courts usual practice in the case of probate petitions.

Todd does point out that in accordance with Probate Code section 1021, subdivision (a), petitions are required to be verified. But while he suggests these fee motions were not technically verified, he fails to acknowledge that they did include sworn declarations which authenticated the proper documents and established the key facts necessary to support the requests. Although he suggests that the declarations were not as complete as he would have liked, he offers no authority suggesting that verified petitions would have been required to include any additional information, and more significantly he does not attack the courts orders on the basis of insufficiency of the evidence.

Todd also notes that trust petitions are required to be served on all beneficiaries (citing Prob. Code,  17203 & 15804) and suggests the record does not show that all of the beneficiaries of [these] trusts . . . were given notice . . . . However, the record Todd has provided us certainly does not establish that they were not, either, and it is his burden to affirmatively demonstrate error on appeal. A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error. [Citations.] (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, italics omitted.) We will consequently presume that proper notices were given.^[4]

II

We thus turn to the crux of this case. Todds main contention is that because he did file opposition to the fee petitions, the court was required to hold an evidentiary hearing to resolve the disputes, and to allow him to take discovery in connection with his opposition. According to Todd, the court ran afoul of these requirements when it chose to take the matters under submission, and then issue a decision, despite its knowledge that the petitions remained at issue pending completion of his proposed discovery. We are unpersuaded.

First, the court did hold an evidentiary hearing in this case. Its just that none of the evidence considered was submitted by Todd. Second, none of the cases Todd relied upon (Coberly v. Superior Court (1965) 231 Cal.App.2d 685; Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d. 678; and Estate of Dunton (1936) 15 Cal.App.2d 729) required the court to delay its ruling indefinitely, until Todd declared himself ready to present his own evidence; nor was it required to actively facilitate his effort to take discovery.

In Estate of Dunton, supra, 15 Cal.App.2d 729, the court did reverse an order granting a fee petition, and directed the probate court to hold a hearing on the petition and . . . take evidence. (Id. at p. 735.) But it did so only because it concluded that no evidence from either side was before the court when it made its initial decision. That is not the case here, as Reedys fee requests were both supported by evidence.

In Coberly v. Superior Court, supra, 231 Cal.App.2d 685, the trial court had stricken a trust beneficiarys objections to the trustees petition, and quashed her efforts at discovery, based upon its erroneous determination that the issues she sought to raise were irrelevant to resolution of the petition. The appellate court reversed, as it concluded the beneficiarys objections were relevant, and must be addressed on the merits. In this case, by contrast, the court never refused to consider Todds arguments or evidence; and did nothing to preclude Todd from offering evidence.

Oak Grove School Dist. v. City Title Ins. Co., supra, 217 Cal.App.2d. 678, is similar to Coberly, albeit not in the probate context. In that case, after plaintiff abandoned an eminent domain claim, defendants sought to recover costs. Plaintiff filed a motion to tax costs, and in connection with the motion, noticed depositions. However, [u]pon motion duly made by defendants, the trial court ordered the service of the notice of the taking of said depositions quashed. The basis of the lower courts ruling was that plaintiff was not entitled to take depositions after judgment, and particularly that plaintiff was not entitled to a deposition as an incident of discovery on a motion to tax costs. (Id. at p. 709.) The appellate court in Coberly disagreed with that rationale, however. It concluded that a motion to tax costs was a special proceeding, and that plaintiff had a right to take discovery in the absence of some showing of extraneous circumstances warranting a suppression order. Because none was shown, the court determined that the order quashing the discovery had been an abuse of discretion.

In this case, by marked contrast to both Coberly and Oak Grove, the court never quashed Todds efforts at discovery. It did not have to, because Todd never initiated any discovery. Todd contends he sought production of records from Alan Reedy, a request objected to by Helen, but that is inaccurate.

The notice contained in our record, which Todd cites to, was served not by him, but by his mother, Letantia. Although Letantia was a party to the litigation concerning the trusts, she is not a trust beneficiary and has no standing to object to the payment of fees by any of the trusts. Helen properly objected to her request for production on that basis. There is no evidence that Todd himself made any attempt to take discovery.

Instead of acting diligently to initiate discovery, Todd waited until November 1, 2005, a month and a half after the fee petitions were filed, to apply, ex parte, for an order allowing him to take discovery on shortened notice. His application explained there was good cause for relief because [t]he hearing of the Attorneys Fees motions/petitions is soon approaching on November 18, 2005 . . . [and there is not] enough time to obtain the needed discovery and incorporate the information provided in a complete and thorough response to the motions/petitions for attorneys fees. He did not, however, suggest that this date had taken him by surprise, or offer any explanation for his prior failure to initiate the proposed discovery. Consequently, while we have no record of the ex parte hearing, and no indication of the courts exact reasoning for denying relief, we could not conclude it was an abuse of discretion to do so.

To the extent Todd found himself in a time crunch vis--vis his desire to take discovery, it appears he had no one to blame but himself. Although he filed an initial opposition to the fee requests, he waited until the date of the scheduled hearing before informing the court of his desire to take discovery. The court made it clear that it would give him a continuance of the hearing, but would not address the issue of discovery. Todd then waited 11 days after that to seek ex parte relief.

According to Todds own authorities, his proper course would have been to promptly initiate his desired discovery; and if Reedy, or any other discovery target had an objection, the onus would have been on them to request an order quashing it. Had that occurred, and the court issued a ruling on such a request, we certainly could have reviewed that ruling just as the courts in Coberly and Oak Grove were asked to do. However, that did not occur in this case.

Instead, Todd simply appeared at the continued hearing on the fee petitions in exactly the same position he had been in at the first hearing he wished to take discovery, but had not actually commenced any. The court was not required to view his inchoate plan for discovery with implementation expected some time in the future as if it constituted progress. Given the fact that Todd had neither initiated any discovery nor offered any new arguments since the previously scheduled hearing, the court was certainly not obligated to delay the proceedings any further. We perceive no error in the decision to take the fee petitions under submission at the continued hearing.

And of course, because the court had taken the fee petitions under submission, and then issued its ruling, there was no error in the courts subsequent decision to dismiss Todds discovery motion as moot. The proposed discovery for which Todds motion sought to obtain a schedule had no purpose once the fee petitions were disposed of. That is the classic definition of mootness: A court will not continue with the review of an . . . award . . . if the award does not affect the present relations of the parties. (Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 862.)

The orders are affirmed. Reedy is to recover her costs on appeal.

BEDSWORTH, J.

WE CONCUR:

SILLS, P. J.

FYBEL, J.

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^[1] With the exception of respondent Jacqueline Reedy, each of the key participants in the events giving rise to these fee petitions shares the last name Bussell. Consequently, for the sake of clarity, we refer to each of the Bussells by first name. No disrespect is intended.

^[2] Attorney Alan Reedy is the husband of respondent Jacqueline Reedy.

^[3] Alan Reedy indicated he was also owed additional fees, in excess of $150,000 incurred by the Initial Trust in connection with litigation, but was not seeking payment of those fees in the current motion. He reserved the right to petition for those fees at a later time.

^[4] In this regard, we must also note that the allegedly unserved beneficiaries were Todds sisters, and his counsel claimed at least one (if not both) of them as his clients during the initial hearing.