Filed 8/29/17 Estate of Webb CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

This appeal involves a dispute between two attorneys over the amount of fees to which each is entitled for services rendered in the probate of decedent Rilla Mary Webb’s estate. Objector Eugene Schneider asserts the probate court erred in failing to set an evidentiary hearing before apportioning the statutory attorney fees. He also challenges the court’s certified settled statement of the unreported hearing on his objections to the petition for final distribution. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On September 28, 2012, a petition for probate of decedent’s estate was filed by objector, who at that time was the attorney for Laura Irvin, the administrator of decedent’s estate.[1] Objector served as attorney for Irvin until he was substituted out on August 18, 2014. He was replaced by Dave Karlinsky, who continues as the attorney for Irvin and is handling the matters of the estate. After Karlinsky was retained, the estate’s primary asset (real property located in Oakland) was sold and a petition for final distribution was filed.

On August 27, 2015, a hearing was held on the petition to resolve a dispute between objector and Karlinsky over how to apportion the statutory fee for the probate of the estate. Based on estate’s value, the total statutory fee to be allocated between the two attorneys is $8,191. It appears objector had proposed an equal split of the fees, but Karlinsky refused his offer. Instead, the petition proposed an 80/20 split, with 80 percent going to Karlinsky and 20 percent to objector. Under this formula, Karlinsky would get $6,553 and objector would receive $1,638. According to the probate court’s settled statement, objector argued at the hearing that a 50/50 split was appropriate based on all the actions he had taken on behalf of the estate. Karlinsky argued all the reasons why he believed an 80/20 split was appropriate.

The matter was originally submitted on declarations and papers, including a declaration executed by Karlinsky on May 7, 2015. Objector challenged this approach under Probate Code section 1022,[2] which permits the use of affidavits and verified petitions in uncontested proceedings. Because the apportionment of attorney fees was contested, the probate court sustained the objection. The court noted in its final order that it had “disregarded any such evidence submitted with the instant petition in its consideration of the issue being contested.” Instead, the court indicated it had conducted its own review of the record in this matter pursuant to Evidence Code section 452, subdivision (d).

On August 28, 2015, the probate court filed its ruling. In its decision, the court stated: “Based on a careful review of all the court’s previous filings in this probate matter, the court concludes that the appropriate fee apportionment between the two attorneys is a 68/32 split, with 68% of the above amount going to Petitioner’s current attorney Dave Karlinsky and 32% going to [objector].” Under the court’s formula, Karlinsky was allocated $5,570 and objector was allocated $2,621.

On October 28, 2015, objector filed a notice of appeal from the probate court’s ruling.[3]

On December 14, 2015, objector filed a motion to use a settled statement of the unreported August 27, 2015 hearing. He alleged that the attorney fee allocation was not at issue at that hearing because he had requested a trial on the apportionment. He also said he had not been afforded “an opportunity to submit an affidavit summarizing his time and activities” during the time he represented Irvin.

On March 16, 2016, the trial court filed its settled statement on appeal.

On April 14, 2016, objector filed an amended exception to the settled statement.

On April 29, 2016, the probate court filed its order striking objector’s amended exception on the ground that it was untimely filed.

DISCUSSION

I.General Principles and Standard of Review

An attorney for the decedent’s personal representative “shall receive compensation” for “ordinary services” provided to the personal representative “based on the value of the estate” and calculated pursuant to a statutory formula. (§ 10810; see Estate of Wong (2012) 207 Cal.App.4th 366, 375.) Section 10814 governs the apportionment of compensation among multiple attorneys for the personal representative: “If there are two or more attorneys for the personal representative, the attorney’s compensation shall be apportioned among the attorneys by the court according to the services actually rendered by each attorney or as agreed to by the attorneys.”[4] The probate court has discretion to apportion statutory attorney fees for ordinary services among a personal representative’s attorneys. (Estate of McManus (1963) 214 Cal.App.2d 390, 400.) We review the manner of that apportionment for abuse of discretion. (Ibid.)

II.An Evidentiary Hearing Was Not Required

Asserting a procedural objection, objector claims the probate court was required to have set an evidentiary hearing upon his invocation of section 1022. He states he desires a formal evidentiary hearing so he can “respond fully and with testimony of percipient witnesses to [Karlinsky’s] allegations” against him.[5] He also argues that the court was barred from relying on its records and previous filings because many of these filings were affidavits. His contentions are not persuasive.

Section 1022 provides, in its entirety: “An affidavit or verified petition shall be received as evidence when offered in an uncontested proceeding under this code.” With respect to contested matters, “t has long been the rule that in probate matters ‘affidavits may not be used in evidence unless permitted by statute. [Citation.]’ [Citation.] Consequently, ‘when challenged in a lower court, affidavits and verified petitions may not be considered as evidence at a contested probate hearing.’ ” ([i]Estate of Bennett (2008) 163 Cal.App.4th 1303, 1308–1309.)

By its terms, section 1022 applies to affidavits or verified petitions that have been “offered” in an uncontested proceeding. There is no dispute that this probate matter was uncontested up until its final phase. The only issue contested in this estate proceeding was the apportionment of the statutory attorney fees. Other than the petition for final distribution and the May 7, 2015 affidavit prepared by Karlinsky, both of which the court expressly disregarded, the documents contained in the court’s record were properly received into evidence when the matter remained uncontested. The court was authorized at any time to consider them under Evidence Code section 452, subdivision (d).[6]

Additionally, the probate court’s settled statement[7] indicates that during the hearing both parties confirmed the accuracy of the court’s understanding of the work that had been done in this probate matter. Reportedly, each side was allowed “a full opportunity to state all their arguments on the matter,” and that the parties confirmed “that the matters raised at the hearing were ‘submitted’ for the court’s determination.” While, as we discuss below, objector also challenges the court’s settled statement, he concedes he was afforded a hearing in which he “chose to respond to the distribution petition’s allegations against him by hearing in open court, rather than by affidavit.”

Objector has not otherwise demonstrated that the probate court abused its discretion by apportioning fees pursuant to section 10814. In the first place, we are unable to independently evaluate the court’s assessment of the attorneys’ efforts because the record submitted on appeal does not contain all of the documents filed in this matter. In any event, when the issue is the allocation of fees between counsel who have worked on a case, “t is well settled that the knowledge and experience of the trial judge afford a sufficient basis for fixing the amount of a lawyer’s fee even though there is no specific evidence on the subject.” ([i]Estate of McManus, supra, 214 Cal.App.2d 390, 400.) “ ‘The judge’s experience and knowledge afford sufficient basis for fixing the amount of the lawyer’s fee even in the absence of specific evidence on the subject.’ ” (Rosenthal v. Rosenthal (1961) 197 Cal.App.2d 289, 299.) Finally, “the matter of awarding compensation for professional services . . . is left . . . [to] the judicial discretion of the trial court, so much so that unless the sum allowed is plainly and palpably exorbitant and such as shocks the conscience of an appellate court, the determination of the trial court will not be disturbed.” (Libby v. Kipp (1927) 87 Cal.App. 538, 544.) In this case, we find no error.

III.The March 16, 2016 Settled Statement

Objector asserts the probate court’s settled statement of March 16, 2016, should be disregarded as beyond its jurisdiction. He complains that instead of certifying his proposed settled statement, to which Irvin had allegedly agreed, the court created its own settled statement that conflicted with the parties’ recollection of events without providing them an opportunity for input. He asks that we strike the court’s settled statement as improper and substitute his proposed settled statement in its place. We decline the invitation.

Relying on Karlinsky’s suggested additions to his proposed settled statement, objector represents that both he and Irvin agreed that the fee issue was not ripe for adjudication. This appears to be a self-serving distortion of the record. The suggested additions to his proposed settled statement do state that the division of the statutory fee issued remained “unresolved.” However, it appears the reason for this circumstance was the pending appeal, and not that the parties had failed to submit the issue to the probate court at the August 27, 2015 hearing.

Moreover, objector has not provided us with reporter’s transcripts of the two hearings conducted with respect to his settled statement motion. We must therefore presume that what occurred at those hearings supports the probate court’s settled statement ruling. (E.g., Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [“ ‘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.’ ”].)

IV.Objector Fails to Demonstrate Prejudice

Assuming for purposes of argument that the probate court erred in making its attorney fee determination, objector has not persuaded us that the error was prejudicial. In assessing prejudice from errors, we apply settled rules. Plaintiff has the burden of affirmatively demonstrating prejudice; that is, that the errors have resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Cucinella v. Weston Biscuit Co. (1954) 42 Cal.2d 71, 82; Paterno v. State of California (1999) 74 Cal.App.4th 68, 105 [appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice].) “ ‘[A] “miscarriage of justice” should be declared only when the court, “after an examination of the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ ” (Seaman’s Direct Buying Service, Inc. v. Standard Oil Co. (1984) 36 Cal.3d 752, 770, overruled in part on other grounds by Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85, 102–103 & Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 393, fn. 5.)

Other than alleging he would have explained the delay in getting the Oakland house sold, objector does not indicate it is reasonably probable he would have achieved a better outcome had he received an evidentiary hearing. As we indicated above, it does not appear that the record submitted with this appeal contains all of the documents that the probate court reviewed in conjunction with its ruling, and we are therefore unable to independently determine how much work either attorney in this case actually performed. In the absence of this evidence, we must presume the probate court acted correctly. (See Sui v. Landi (1985) 163 Cal.App.3d 383, 385–386 [“When an appeal is taken on a partial clerk’s transcript, the evidence is conclusively presumed to support the judgment.”].)

In sum, the probate court made a determination based on the documents contained in the court’s record, exclusive of the petition for final distribution and Karlinsky’s accompanying declaration, that a 62 percent to 38 percent apportionment was a proper split of the statutory attorney fees in this matter. That objector would have preferred a different ruling does not demonstrate an abuse of discretion. Rather, “[d]iscretion is abused only when in its exercise, the trial court ‘exceeds the bounds of reason, all of the circumstances before it being considered.’ [Citation.] There must be a showing of a clear case of abuse and miscarriage of justice in order to warrant a reversal.” (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 281.) Objector does not make that showing here.

DISPOSITION

The order is affirmed.

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Dondero, J.

We concur:

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Humes, P. J.

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Margulies, J.