Filed 8/30/13
                          CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                    DIVISION ONE


FARMERS NEW WORLD LIFE                           B241099
INSURANCE COMPANY,
                                                 (Los Angeles County
        Plaintiff and Respondent,                Super. Ct. No. BC442877)

        v.

FRANK ALLAN REES,

        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Los Angeles County. Robert
L. Hess, Judge. Affirmed.
                                        ______
        Blumberg Law Corporation, Ave Buchwald and John P. Blumberg for Defendant
and Appellant.
        Fulbright & Jaworski, Peter H. Mason and Ryan T. McCoy for Plaintiff and
Respondent.
                                        ______
       Wife is found dead in the street outside the home she shared with husband. Her
death is investigated as a homicide. Husband, who is the sole beneficiary on wife‟s life
insurance policy, is a suspect. Life insurance company files an interpleader action and
deposits the policy benefits plus interest with the trial court. Wife‟s mother, who would
be entitled to the policy benefits if husband were found to have feloniously and
intentionally killed wife, defaults in the action. The court awards husband the
interpleaded funds less attorney fees and costs requested by the life insurance company.
Husband contends the attorney fees and costs award is erroneous because his right to the
policy benefits never was in dispute and no potential for double liability existed, thus
rendering the interpleader action unnecessary and the statutory requirements for attorney
fees and costs unmet. We disagree. Under the circumstances of this case, the life
insurance company was entitled to file an interpleader action, and the court did not err by
exercising its discretion to award attorney fees and costs. We thus affirm the judgment.
                 FACTUAL AND PROCEDURAL BACKGROUND
1.     Wife’s Death and Husband’s Claim for Benefits Under Her Life Insurance Policy
       Frank and Rosamaria Rees married in 1997.1 In May 1998 they each obtained
from Farmers New World Life Insurance Company (Farmers) a life insurance policy with
benefits of $150,000. Rosamaria‟s policy insured her life, and Frank‟s policy insured his
life. They named the other as the sole primary beneficiary and listed no contingent
beneficiaries. According to the terms of Rosamaria‟s policy, if Frank predeceased
Rosamaria, the benefits were to be paid to Rosamaria or to her estate.
       On September 18, 2009, Rosamaria, on her way to pick up Frank from a Gamblers
Anonymous meeting, was shot and killed in the street outside the home she shared with
Frank. She died intestate, without a will and without having borne any children. She was
predeceased by her father but survived by her mother. Farmers‟ insurance agent
informed the company of Rosamaria‟s death on September 23, 2009. A claims officer
contacted Frank, who indicated that the Los Angeles Police Department (LAPD) was

1
        Because they share the same last name, we refer to Frank and Rosamaria by their
first names. We intend no disrespect.

                                             2
investigating Rosamaria‟s death as a homicide. Farmers sent Frank a claim form for the
policy benefits.
       On October 1, 2009, a Special Investigation Unit Manager (manager) for Farmers
spoke with an LAPD detective regarding Rosamaria‟s death. According to the manager‟s
notes, the detective reported that “no one has been ruled out in this death. He said that
[Frank] is a big gambler and has a couple million dollars in life insurance on his wife.”
About two weeks later, on October 14, 2009, Frank submitted a claim to Farmers for the
$150,000 in life insurance benefits. Farmers responded by letter to Frank the next day,
“During our claims evaluation we have contacted the [LAPD] Robbery/Homicide
Division and have been informed that their investigation is ongoing and that no one has
been ruled out as a suspect in the homicide of our insured [Rosamaria] at this time.
Therefore, we will await the results of the police investigation before discharging our
obligation in this case.” About a month later, and then again the following month,
Farmers sent Frank letters repeating essentially the same information. On January 12,
2010, Frank called the manager, who informed “him that the police were still conducting
their investigation and no one had been ruled out as a suspect. [The manager] said that
[he] would call the detective and contact [Frank] if there were any changes in [Farmers‟]
handling.”
       The manager spoke with another LAPD detective on January 18, 2010. The
manager‟s notes stated that the police had “not completed their investigation and [said]
do not pay the claim.” On January 19, 2010, the manager spoke with the initial detective
and noted that the police had “not ruled out Frank . . . as a suspect and the investigation is
ongoing.” Farmers again sent a letter to Frank informing him that the investigation was
ongoing and it would await the results before discharging its obligation. On January 22,
2010, the manager left a message for Frank, in response to a call from him, indicating
that Farmers is “awaiting the police investigation final report and that no one has been
ruled out as a suspect. [The manager] could not give him a time line.”
       For the next four months, February, March, April and May, the manager sent
letters to Frank informing him that, according to the LAPD, the investigation of

                                              3
Rosamaria‟s death still is ongoing and no one has been ruled out as a suspect in her
homicide and that it would await the results of the investigation before discharging its
obligation.2 On May 25, 2010, Frank called the manager asking for the status of the
claim. The manager told Frank he would contact LAPD. According to the manager‟s
notes, the initial detective said that Frank “is still considered a „prime‟ suspect in the
death of his wife.” On June 18, 2010, Farmers sent Frank a letter, again informing him
that the investigation of Rosamaria‟s death still is ongoing, that no one has been ruled out
as a suspect in her homicide and that it would await the results of the investigation before
discharging its obligation.
       Frank retained counsel, who sent Farmers a letter on July 14, 2010. Counsel
requested various documents from Farmers and asked for confirmation that Frank‟s
“claim was complete and that [it] [had] received all the supporting documents needed to
process his claim . . . .” Counsel also requested confirmation that “the only reason the
benefits have not been paid to [Frank] is due to the possibility that he may have been
involved in the killing of his wife. [¶] We would appreciate knowing whether anyone has
accused [Frank] of having been involved in any way in the killing of his wife; and, if so,
who has made the accusation. [¶] We would also appreciate knowing whether anyone
other than [Frank] has made a claim to the benefits of [Rosamaria‟s] life insurance
policy. [¶] Finally, we would appreciate knowing whether your company . . . or someone
acting on behalf of your company has undertaken its own investigation regarding

2
        Rosamaria had a second life insurance policy with another insurer providing
$235,000 in benefits upon her death. She listed Frank as the sole primary beneficiary,
with no contingent beneficiaries, on that policy as well. On March 22, 2010, that insurer
sent a letter to Frank informing him that, “We are currently unable to process your claim
for benefits under the above named life insurance coverage for Rosamaria . . . due to the
manner of death listed on [her] death certificate and that the police investigation is still
ongoing. At this point in time there are two options available to you: (1) Agree to allow
us to pend . . . review of this claim for three (3) months and then follow up on the police
investigation; or (2) We can file a legal proceeding to allow the courts to determine how
to distribute the proceeds from this coverage. Please contact our office in writing as to
which of the above options you would like to pursue.” Frank requested that the insurer
hold the claim for three months.

                                               4
[Rosamaria‟s] demise or whether it is relying solely on the investigation by the
[LAPD] . . . .”3 Based on the receipt of this letter, “and the fact that [the manager] was
informed that [Frank] was still considered a „prime suspect‟ in the murder of
Rosamaria . . . , [the manager] referred this matter to [Farmers‟] legal department and,
subsequently, a decision was made to interplead the life insurance proceeds.”
2.     The Interpleader Action and Award of Attorney Fees and Costs
       On August 3, 2010, Farmers filed a complaint in interpleader identifying Frank‟s
claim for the policy benefits and alleging that, based on LAPD‟s investigation of Frank as
a suspect in the homicide of Rosamaria, “[a]s there is no other primary or contingent
beneficiary, should Frank . . . be convicted of murdering Rosamaria . . . , the life
insurance benefits would go to [her] estate.” Farmers named Frank as a defendant and
alleged, “[o]n information and belief, [that] no probate action has been filed, and no
administrator named, in connection with the death of Rosamaria . . . . If an administrator
has been named, [Farmers] will amend the complaint to name the administrator of
Rosamaria[‟]s . . . estate as a defendant. If no administrator has been named, [Farmers]
will request that the Court assign a representative to protect the estate‟s potential claim.”
       Farmers alleged that, “[b]ecause [LAPD] has not ruled out Frank . . . as a suspect,
[Farmers] has been unable to determine the appropriate payee for the death benefit
proceeds. The claim made by Frank . . . and the potential claim of Ros[a]maria[‟s] . . .
estate are adverse should Frank . . . be accused of Ros[a]maria[‟s] . . . murder. [Farmers]
is unable to safely determine which, if any, of the claims [is] valid.” Farmers “is
indifferent with respect to whether it should pay the death benefits to Frank . . . or the
estate of Ros[a]maria . . . . [Farmers] claims no interest in the proceeds and is a
disinterested stakeholder.” Farmers alleged that it would deposit $154,587, the amount
of the policy benefit plus interest, with the court and that it had incurred attorney fees and

3
        Counsel sent a similar letter to the other insurer pending Frank‟s claim for policy
benefits based on Rosamaria‟s death, as that insurer did not pay Frank‟s claim at the end
of the three-month period for which he had agreed it could hold the claim during the
LAPD investigation. Apparently, at some later point, that insurer paid Frank the policy
benefits.

                                              5
costs as a result of the proceeding. Farmers prayed for a judgment ordering Frank to
interplead and litigate his claim to the death benefits proceeds, appointment of an estate
administrator if necessary, a discharge of its liability and an award “from the death
benefit proceeds deposited with the . . . [c]ourt its costs and reasonable attorney[] fees
incurred in this action . . . .”
       On October 1, 2010, Frank answered the complaint, asserting no affirmative
defenses. He also, on October 19, 2010, filed a first amended cross-complaint, asserting
a cause of action for declaratory relief against Farmers and Rosamaria‟s mother, as the
person who would receive the policy benefits through Rosamaria‟s estate if he were
found to have feloniously and intentionally killed Rosamaria. Frank asked for a judicial
determination that he was entitled to the $150,000 in benefits on Rosamaria‟s policy.
Frank also asserted causes of action against Farmers for breach of contract and bad faith
based on its failure to pay him the policy benefits despite his filing a claim for them.
       On November 22, 2010, Farmers answered the first amended cross-complaint, and
then, on January 7, 2011, filed a first amended complaint in interpleader in which it
added Rosamaria‟s mother as a defendant. According to Farmers, because Rosamaria
died without a will and had no living children, her mother, by virtue of her estate, had a
claim to the life insurance proceeds if Frank were not entitled to receive them.
       Rosamaria‟s mother did not answer or otherwise respond to the first amended
complaint in interpleader. The clerk entered a default against her on March 18, 2011. In
the entry of default Farmers represented that it would seek attorney fees and costs from
the funds deposited with the court. On September 1, 2011, Frank moved for an order
releasing the noncontested portion of the interpleaded funds to him, i.e., the $150,000,
plus interest, in policy benefits less the $7,997.49 in attorney fees and costs requested by
Farmers. According to Frank, because Rosamaria‟s mother had defaulted in the action,
he was the only interested stakeholder and, therefore, entitled to the funds. Soon after the
filing of the motion, on September 19, 2011, the trial court entered a default judgment
against Rosamaria‟s mother. In that judgment, the court ordered that Frank was entitled
to the benefits on Rosamaria‟s policy. On November 1, 2011, Farmers filed an

                                              6
opposition to Frank‟s motion for release of the interpleaded funds. Farmers maintained
that the funds should be held until Frank dismissed his first amended cross-complaint for
breach of contract and bad faith. The court, on November 7, 2011, granted Frank‟s
motion and ordered the clerk to pay Frank the interpleaded funds, $154,587 (plus any
accrued interest), less the $7,997.49 requested by Farmers in attorney fees and costs.
Frank received a check from the court payable to him in the amount of $146,589.51.
       On December 6, 2011, Farmers moved for an order discharging and dismissing it
from the interpleaded portion of the action and awarding it costs and attorney fees of
$7,997.49. Frank opposed the motion, arguing that Farmers was not entitled to attorney
fees and costs or a discharge of liability because it was never faced with a potential viable
claim that could give rise to liability and the equities did not favor such an award. Frank
submitted the declaration of an insurance industry expert, who opined that “Farmers did
not act reasonably and within the standards of the insurance industry in the handling of
[Frank‟s] claim in its investigation and payment of benefits . . . .” On January 19, 2012,
the trial court issued an order discharging Farmers from the interpleader action.
According to the court, “The policy would have been payable to [Rosamaria‟s mother] if
[Frank] had been found to have murdered [Rosamaria], [Code of Civil Procedure]
[s]ection 386[, subdivision] (b)[,] only requires a potential for different claims to an
insurance policy for the interpleader to be permissible, and Farmers . . . had information
that [Frank] was the prime suspect in the murder of his wife, the insured. This seems to
be a situation [that] is appropriate for judicial interpleader.” The court awarded Farmers
attorney fees of $7,506.30 plus $491.19 in costs and directed the clerk to pay Farmers
that amount, which was the balance of the interpleaded funds.
       On March 19, 2012, the court entered judgment, discharging Farmers‟ liability
regarding the death benefits on Rosamaria‟s policy and awarding it $7,997.49 in attorney
fees and costs. Frank dismissed his first amended cross-complaint without prejudice and
filed a notice of appeal from the judgment.




                                              7
                                       DISCUSSION
1.     The Purpose of Interpleader and the Statutory Allowance for an Award of
       Attorney Fees and Costs to the Interpleading Party
       “Any person, firm, corporation, association or other entity against whom
double or multiple claims are made, or may be made, by two or more persons which
are such that they may give rise to double or multiple liability, may bring an action
against the claimants to compel them to interplead and litigate their several claims.”
(Code Civ. Proc., § 386, subd. (b).) “„The purpose of interpleader is to prevent a
multiplicity of suits and double vexation. [Citation.] “The right to the remedy by
interpleader is founded, however, not on the consideration that a [person] may be
subjected to double liability, but on the fact that he is threatened with double vexation in
respect to one liability.” [Citation.]‟ [Citation.]” (Shopoff & Cavallo LLP v. Hyon
(2008) 167 Cal.App.4th 1489, 1513.) “An interpleader action, however, may not be
maintained „upon the mere pretext or suspicion of double vexation; [the plaintiff] must
allege facts showing a reasonable probability of double vexation‟ [citation], or a „valid
threat of double vexation.‟ [Citation.]” (Westamerica Bank v. City of Berkeley (2011)
201 Cal.App.4th 598, 608.)
       “„In an interpleader action, the court initially determines the right of the plaintiff
to interplead the funds; if that right is sustained, an interlocutory decree is entered which
requires the defendants to interplead and litigate their claims to the funds.‟ [Citation.]
Then, in the second phase of an interpleader proceeding, the trial court also has „the
power under [Code of Civil Procedure] section 386 to adjudicate the issues raised by the
interpleader action including: the alleged existence of conflicting claims regarding the
interpleaded funds; plaintiffs‟ alleged position as a disinterested mere stakeholder;
and ultimately the disposition of the interpleaded funds after deducting plaintiffs‟
attorney fees.‟ [Citation.]” (Shopoff & Cavallo LLP v. Hyon, supra, 167 Cal.App.4th
at pp. 1513-1514; see also Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 43
[“interpleader proceeding is traditionally viewed as two lawsuits in one. The first dispute




                                              8
is between the stakeholder and the claimants to determine the right to interplead the
funds. The second dispute to be resolved is who is to receive the interpleaded funds”].)
       Regarding attorney fees and costs, “[a] party to an action who follows the
procedure [for interpleader] set forth in [Code of Civil Procedure] [s]ection 386 . . . may
insert in his motion, petition, complaint, or cross complaint a request for allowance of his
costs and reasonable attorney fees incurred in such action. In ordering the discharge
of such party, the court may, in its discretion, award such party his costs and reasonable
attorney fees from the amount in dispute which has been deposited with the court.
At the time of final judgment in the action the court may make such further provision
for assumption of such costs and attorney fees by one or more of the adverse claimants
as may appear proper.” (Code Civ. Proc., § 386.6, subd. (a).)
2.     The Award of Attorney Fees and Costs in This Interpleader Action Was Proper
       a.     The Funds Deposited with the Court Were “In Dispute”
       Frank contends that the attorney fees and costs award was improper because the
funds Farmers deposited with the court were never “in dispute” as required by statute.
(See Code Civ. Proc., § 386.6, subd. (a) [court has discretion to award costs and
reasonable attorney fees from amount “in dispute” deposited with the court].) According
to Frank, “[b]ecause no one other than [himself], the subject policy‟s named beneficiary,
claimed the funds, they were never „in dispute‟ as that term is used in [Code of Civil
Procedure] section 386.6.” We disagree.
       The first amended complaint in interpleader defined the dispute over the policy
benefits. On the one hand, Frank filed a claim to obtain the benefits as the sole
beneficiary on the policy. On the other hand, Frank was a suspect, at one point “a
„prime‟ suspect in the death of his wife,” and LAPD had an ongoing investigation into
Rosamaria‟s death. If Frank were found to have feloniously and intentionally killed
Rosamaria, he would not have been entitled to the policy benefits, and they would have
been payable to Rosamaria‟s mother through her estate. (See Probate Code, § 252
[“named beneficiary of a bond, life insurance policy, or other contractual arrangement
who feloniously and intentionally kills the principal obligee or the person upon whose

                                             9
life the policy is issued is not entitled to any benefit under the bond, policy, or other
contractual arrangement, and it becomes payable as though the killer had predeceased the
decedent”].) Because of the ongoing investigation, Farmers recognized a dispute over
how it should handle payment of the policy benefits. It thus initiated the interpleader
proceeding.4 That Rosamaria‟s mother defaulted in the action, and the trial court
determined Frank was entitled to the funds, does not mean the funds were not in dispute.
Indeed, whether Frank killed Rosamaria could have been litigated in the interpleader
proceeding. (See Shopoff & Cavallo LLP v. Hyon, supra, 167 Cal.App.4th at p. 1514
[court in interpleader proceeding determines “alleged existence of conflicting claims
regarding the interpleaded funds” and “ultimately the disposition of the interpleaded
funds”]; see also Probate Code, § 254 [determination that beneficiary feloniously and
intentionally killed insured may be based on “final judgment of conviction of felonious
and intentional killing” or court determination by preponderance of evidence whether the
killing was felonious and intentional].) The interpleaded funds thus were “in dispute”
for purposes of an attorney fees and costs award under Code of Civil Procedure
section 386.6, subdivision (a).
       b.     The Argument Against the Attorney Fees and Costs Award Based on a
              Theory of Immunization from Double Liability Fails
       Frank next contends that, based on Insurance Code section 10172, Farmers would
have been immunized from double liability if it had paid him the policy benefits while
LAPD continued to investigate Rosamaria‟s death and, as a result, the interpleader action
was unnecessary. He essentially maintains that the trial court erred in awarding attorney
fees and costs under Code of Civil Procedure section 386.6, subdivision (a), because
Farmers did not have grounds for an interpleader action under Code of Civil Procedure
section 386, subdivision (b).

4
       The original complaint also recognized the dispute between Frank‟s claim to the
policy benefits, on the one hand, and Rosamaria‟s estate, on the other hand. The first
amended complaint simply named Rosamaria‟s mother as a defendant, whereas the
original complaint had requested appointment of an administrator for Rosamaria‟s estate
if one had not already been named.

                                              10
       Frank forfeited the right to contest the propriety of the interpleader action by not
doing so during the initial phase of the proceeding. “A defendant in interpleader has the
right to put in issue the question as to whether or not the facts were such as to entitle the
plaintiff to compel the defendants to interplead. It has therefore been held in effect that,
if the defendants in interpleader have fully litigated their claims without objection, they
will be deemed to have consented to the remedy invoked and granted, and will not later
be heard to object that the plaintiff‟s complaint did not state a cause of action for
interpleader . . . . [Citation.]” (Conner v. Bank of Bakersfield (1920) 183 Cal. 199,
202-203.) As a result, when a defendant does “not raise the issue of the right of the
plaintiff to use the remedy of interpleader while litigating th[e] matter before the trial
court, the question may not be raised on appeal.” (O’Connell v. Zimmerman (1958)
157 Cal.App.2d 330, 337.)
       Here, Frank did not question Farmers‟ use of the remedy of interpleader, but
rather litigated the matter in the trial court. As noted, the court initially determines the
right of the plaintiff to interplead the funds. (Shopoff & Cavallo LLP v. Hyon, supra,
167 Cal.App.4th at p. 1513.) Frank did not contest Farmers‟ decision to interplead the
funds. Rather, he answered the original complaint, without asserting any affirmative
defenses, and stipulated to the filing of the first amended complaint adding Rosamaria‟s
mother as a defendant. He did not answer or otherwise respond to the first amended
complaint, simply requesting that the court release the interpleaded funds to him once
Rosamaria‟s mother had defaulted in the action. Frank, therefore, cannot challenge the
award of attorney fees and costs on the ground that Farmers was not entitled to bring an
interpleader action.
       Frank argues that he did not forfeit an objection to the interpleader action. He
cites Wells Fargo Bank, N.A. v. Zinnel (2004) 125 Cal.App.4th 393 for support. In that
case, the appellate court held that the trial court properly had granted the bank‟s motion
to discharge its liability in an interpleader action but reversed an award of attorney
fees and costs on the ground that the bank did not satisfy the statutory interpleader
requirement in Code of Civil Procedure section 386 to deposit the amount of funds in

                                              11
dispute with the court. (Id. at p. 403.) The appellate court, however, did not address the
question whether the bank had been entitled to maintain an interpleader action—the issue
that Frank forfeited here. (See id. at p. 400 [declining to address defendant‟s argument
that the bank had no right to interplead because she was entitled to the funds].) Nor does
it appear that the bank raised an issue of forfeiture. The question of forfeiture, therefore,
was not before the appellate court, which simply decided that the bank did not have a
right to attorney fees and costs because it had failed to fulfill one of the statutory
requirements for such an award. The case thus does not support Frank‟s argument
against forfeiture.
       In any case, even on its merit, Frank‟s argument against interpleader based on
a theory of immunization from double liability is not persuasive. Frank relies on
Insurance Code section 10172, which provides, “Notwithstanding [s]ections 751
and 1100 of the Family Code and [s]ection 249.5 of the Probate Code, when the proceeds
of, or payments under, a life insurance policy become payable and the insurer makes
payment thereof in accordance with the terms of the policy, or in accordance with the
terms of any written assignment thereof if the policy has been assigned, that payment
shall fully discharge the insurer from all claims under the policy unless, before that
payment is made, the insurer has received, at its home office, written notice by or on
behalf of some other person that the other person claims to be entitled to that payment or
some interest in the policy.” According to Frank, this statute means that, if Farmers
had paid him the policy benefits as the sole beneficiary on Rosamaria‟s policy and he
subsequently were determined to have feloniously and intentionally killed Rosamaria,
Farmers would have been immune from double liability to Rosamaria‟s estate because it
had not received written notice of another claimant. We disagree that the statute rendered
the interpleader action unnecessary.
       Insurance Code section 10172 applies when the proceeds of a life insurance policy
“become payable and the insurer makes payment thereof in accordance with the terms of
the policy.” Given that, at the time Farmers initiated the interpleader action, Frank was a
suspect in his wife‟s homicide, and thus might not have been entitled to the policy

                                              12
benefits based on Probate Code section 252, the proceeds of Rosamaria‟s policy had
not necessarily, as Frank suggests, “become payable.” (Ins. Code, § 10172.) The
interpleader action was an authorized method to determine to whom the proceeds were
payable. Moreover, if Frank were found to have feloniously and intentionally killed
Rosamaria, Probate Code section 252, combined with the policy language, would have
required that Farmers pay the benefits to Rosamaria‟s estate. The interpleader action
enabled Farmers to make a payment “in accordance with the terms of the policy.” (Ibid.)
In any case, Insurance Code section 10172, which refers to Family Code sections 751
and 1100 and Probate Code section 249.5, all addressing interests in and disposition of
community property, appears to relate to community property claims on life insurance
policy proceeds. (Leonard v. Occidental Life Ins. Co. (1973) 31 Cal.App.3d 117, 123
[insurer immunized from double liability when it paid policy benefits to beneficiary
before deceased insured‟s wife made community property claim to proceeds].) Farmers‟
interpleader action, therefore, was not unnecessary based on a purported immunization
from double liability under Insurance Code section 10172.
        The more relevant statute appears to be Probate Code section 256, part of the
Probate Code addressing the “[e]ffect of homicide” on the “[l]iability of an insurance
company.” Probate Code section 256 provides, “An insurance company, financial
institution, or other obligor making payment according to the terms of its policy or
obligation is not liable by reason of this part, unless prior to payment it has received at its
home office or principal address written notice of a claim under this part.” The language
of this statute also did not render the interpleader action unnecessary based on a
purported immunization from double liability. Probate Code section 256 requires the
insurer to make payment “according to the terms of its policy or obligation.” Although
Rosamaria listed Frank as the sole beneficiary on her policy, under the policy terms, if
Frank were to predecease Rosamaria, the benefits were to be paid to Rosamaria or her
estate. And Probate Code section 252 would have required Farmers to pay the policy
benefits as though Frank had predeceased Rosamaria if he were determined to have
feloniously and intentionally killed Rosamaria. The interpleader action thus was a venue

                                              13
for Farmers to determine how to “mak[e] payment according to the terms of its policy or
obligation” under Probate Code section 256.
       The purpose of interpleader is to litigate an issue of one liability. (Shopoff &
Cavallo LLP v. Hyon, supra, 167 Cal.App.4th at p. 1513.) Farmers knew it faced one
liability with respect to the proceeds on Rosamaria‟s life insurance policy. But it wanted
to know to whom it was liable. Given Frank‟s status as a suspect in Rosamaria‟s
homicide, and the statutory requirement that Farmers administer the policy as though
Frank had predeceased Rosamaria if he were found to have feloniously and intentionally
killed her, a reasonable probability of double vexation existed at the time Farmers
filed the interpleader action. (See Westamerica Bank v. City of Berkeley, supra,
201 Cal.App.4th at p. 608.) Indeed, it would be contrary to the statutory scheme for
interpleader and Probate Code section 252, prohibiting a beneficiary who feloniously and
intentionally kills the insured from receiving the life insurance proceeds, to encourage an
insurer to pay the policy benefits to a “suspect” beneficiary simply as a means of
discharging its liability and walking away from the matter. In contrast, the route taken by
Farmers of filing an interpleader action to exhaust the possibility of double vexation
furthers the statutory goals. As a result, the attorney fees and costs award is not
erroneous based on the argument that Farmers filed an unnecessary interpleader action.
       c.     Farmers Did Not Cease Being a Disinterested Stakeholder to Preclude an
              Award of Attorney Fees and Costs
       Frank contends that, during the interpleader litigation, Farmers ceased being a
disinterested stakeholder such that awarding it attorney fees and costs was erroneous
under the statutory scheme for interpleader. According to Frank, when Farmers opposed
his motion to release the interpleaded funds on the ground that the funds should not be
distributed until he dismissed his first amended cross-complaint asserting causes of action
for breach of contract and bad faith, it ceased being a disinterested stakeholder and thus
could not qualify for an award of attorney fees and costs.
       At the time Farmers opposed his motion for release of the funds, however, the
interpleader issues already were resolved. Farmers deposited the funds in dispute with


                                             14
the trial court and asserted its status as a disinterested stakeholder. Rosamaria‟s
mother defaulted in the action, and the court determined that Frank was entitled to
the interpleaded funds. That Farmers sought a dismissal of Frank‟s first amended
cross-complaint does not suggest it was asserting an interest in the interpleaded funds.
In fact, Farmers never claimed an interest in the funds. The court recognized as much by
granting Frank‟s motion to release the funds. As a result, Farmers‟ attempt to obtain a
dismissal of the first amended cross-complaint did not alter its status in the litigation so
as to disqualify it from an award of attorney fees and costs.
       d.     The Award of Attorney Fees and Costs Was Not an Abuse of Discretion
       Frank‟s last contention is that the trial court abused its discretion by awarding
attorney fees and costs in this case. Frank maintains that “it should be held to be an
abuse of discretion for a court to award a life insurance company costs and attorney fees
in an interpleader action because that is a cost of doing business that should be spread
among all policy holders, not just those designated beneficiary claimants who, the carrier
decides, might become subject to an adverse claim. If so, the singular fact that Farmers
filed its complaint in interpleader without having received an adverse claim, in and of
itself, would preclude it from being awarded costs and attorney fees under an abuse of
discretion standard.” We disagree.
       The statutory scheme for interpleader contemplates an award of attorney fees in
the trial court‟s discretion. Nothing in that scheme suggests that life insurance companies
should be exempt from such an award as a routine cost of doing business. Indeed, to
read such an exception into the provision for attorney fees and costs would conflict
with the statutory language that “[a] party to an action who follows the procedure [for
interpleader] set forth in [Code of Civil Procedure] [s]ection 386 . . . may insert in his
motion, petition, complaint, or cross complaint a request for allowance of his costs and
reasonable attorney fees incurred in such action.” (Code Civ. Proc., § 386.6, subd. (a),
italics added.) The provision does not contemplate that a trial court may exercise its
discretion to award attorney fees and costs to only a particular type of party.



                                              15
       Frank‟s additional point that a trial court abuses its discretion by awarding
attorney fees and costs to a life insurance company that files an interpleader action before
it has received an adverse claim is contrary to our decision. As noted, because Frank
would not have been entitled to the policy benefits if he were found to have feloniously
and intentionally killed Rosamaria, either by a final judgment of conviction or by a court
determination by a preponderance of the evidence of a felonious and intentional killing, a
potential for adverse claims existed such that Farmers could interplead the policy
benefits. The absence of Farmers‟ actual receipt of an adverse claim did not cause the
interpleader action to be unnecessary, nor prevent Farmers from recovering attorney fees
and costs under the same statutory scheme for interpleader. The court, therefore, did not
abuse its discretion by awarding Farmers attorney fees and costs even though it had not
received adverse claims.
       Frank‟s further arguments for abuse of discretion, namely that the funds were not
in dispute, that Farmers would not have been exposed to double liability by paying him
the policy benefits and that Farmers ceased being a disinterested stakeholder, simply
repeat his theories for reversal of the attorney fees and costs award. Those arguments are
ones we already have rejected and thus do not suggest the trial court abused its discretion
by awarding Farmers its attorney fees and costs.




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                                  DISPOSITION
     The judgment is affirmed. The parties shall bear their own costs on appeal.
     CERTIFIED FOR PUBLICATION.




                                              ROTHSCHILD, J.
We concur:



             MALLANO, P. J.



             CHANEY, J.




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