Filed 7/1/14 Sheen v. Sheen CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT



CHARLES SHEEN et al.,                                                B243847

         Plaintiffs and Appellants,                                  (Los Angeles County
                                                                     Super. Ct. No. BP092979)
         v.

ANTHONY SHEEN, JR. as Trustee etc.,


NEIL GIELEGHAM et al.,

         Objectors and Respondents.




         APPEAL from an order of the Superior Court of Los Angeles County.
Michael Beckloff, Judge. Reversed and remanded.

         Law Offices of Fritzie Galliani, Fritzie Galliani and Evan D. Marshall for
Plaintiffs and Appellants.

         No appearance for Objectors and Respondents.
                            _______________________________________
       A subset of the beneficiaries under a living trust filed a motion for attorney’s fees
asserting the equity-based “common fund doctrine.” They claimed that litigation they
pursued resulted in a judgment recovering the trust’s main assets from a wrongdoer,
creating a common fund benefiting all of the trust’s beneficiaries, thus justifying an
award of attorney’s fees surcharged against the trust’s assets. Over the course of nearly
six years, one judge of the probate court granted the motion. A second judge then
vacated the order granting the motion for procedural reasons and placed a refiled motion
off calendar pending resolution of other matters. Yet a third probate judge denied a once-
again refiled motion. The common-fund beneficiaries challenge the third and last order
denying their motion for attorney’s fees. We reverse the order and remand for further
proceedings.
                                           FACTS
The Beginning
       In early 1997, Quinlock Sheen (hereafter Ms. Sheen) declared and established the
Quinlock Sheen Living Trust. The trust provided for the distribution of its assets, on Ms.
Sheen’s death, in equal shares to her six adult children, and, in the event a child had died,
to the issue of the deceased child.1
       In 2001, Ms. Sheen, as trustee, deeded certain trust assets, including a house and
adjacent duplex on South Spaulding Avenue in Los Angeles, and other real property in
Missouri, to one of her children, Dolores Sheen. After the transfers, Dolores encumbered
the Spaulding Avenue duplex with two loans secured by deeds of trust.
       Ms. Sheen died in 2002.
The Foundational Probate Court Proceeding and Appeal
       In July 2005, Ms. Sheen’s daughter Eugenia Ringgold, who was both a beneficiary
of the trust was also the trustee of the trust, joined other beneficiaries of the trust, namely,
Charles Sheen and Deryl Gaylord (grandchildren; children of a predeceased son, Robert)

1
      The six children identified in the trust instrument were listed respectively: Herbert
Sheen, Eugenia (Sheen) Ringgold, Dolores (Sheen) Blunt, Robert Sheen, Mildred Imelda
Sheen and Carol (Sheen) Hersha.

                                               2
and Derek Hersha (grandchild; son of a predeceased daughter, Carol), in filing a petition
in the probate court under Probate Code section 850 to restore the trust assets that Ms.
Sheen had transferred to Dolores Sheen in 2001.2 The section 850 proceeding involved
allegations that Ms. Sheen was not of sound mind when she deeded the real properties to
Dolores Sheen, and that Ms. Sheen had acted under Dolores Sheen’s undue influence.
Attorney Fritzie Galliani represented Eugenia Ringgold and the other beneficiaries in the
section 850 proceeding in the probate court.
       Eugenia Ringgold died April 2006; she also had a living trust in place when she
died. Eugenia Ringgold’s living trust generated parallel litigation over who controlled
her living trust, which may have been in line to receive assets distributed out of Ms.
Sheen’s living trust. Tracy Sheen (Eugenia Sheen’s niece; and the daughter of Anthony
Sheen, one of the beneficiary’s under Ms Sheen’s trust) was the named trustee of Eugenia
Ringgold’s living trust. Attorney Fritzie Galliani was also involved in the Eugenia
Ringgold living trust litigation.
       In any event, after Eugenia Ringgold died, the three remaining beneficiaries and
petitioners identified above continued prosecuting the section 850 proceeding through
trial. In May 2006, the trial court (Hon. Judith Chirlin) entered judgment against Dolores
Sheen, and in favor of the beneficiaries, or, perhaps more accurately, favoring the Sheen
living trust. The judgment set aside the real property deeds from Ms. Sheen to Dolores
Sheen, and also ordered that all of Ms. Sheen’s personal property be restored to the trust.
The judgment awarded $100,000 damages against Dolores Sheen for losses caused by a
sale of the Missouri real property to a bona fide third-party, and for other monies that she
had received from the proceeds of a mortgage against the duplex property on Spaulding
Avenue.
       Dolores Sheen pursued an appeal. On appeal, the Galliani law office, by attorney
Leslie Howell, and joined by attorney Evan Marshall, represented the beneficiaries.
Our court eventually affirmed the judgment in the section 850 proceeding, with the

2
       All further undesignated section references are to the Probate Code.

                                               3
exception of the probate court’s denial of an award of statutory “penalty damages”
(see § 859) as to Dolores Sheen. (See In re Estate of Sheen (May 15, 2008, B192495
[nonpub. opn.].) We remanded the section 850 proceeding for reconsideration of the
beneficiaries’ claim for penalty damages against Dolores Sheen. (Ibid.)
The Initial Attorney Fees Motions
       In August 2006, shortly after the trial court entered judgment in the section 850
proceeding, the beneficiaries who brought the proceeding (Charles Sheen, Derek Hersha,
and Deryl Gaylord) filed a motion for an order awarding attorney fees and costs
measured as a percentage of “the amount recovered for the common fund,” pursuant to
the court’s “equitable power under the common fund theory.”3 The motion was made on
the ground that an award of attorneys fees to the Law Office of Fritzie Galliani, for legal
work performed by attorney Leslie Howell, the trial lawyer for the beneficiaries in the
section 850 proceeding, was justified and proper because the proceeding had “resulted in
the creation or preservation of a common fund to the benefit of persons besides the
[three beneficiaries], consisting of numerous [other] beneficiaries of the Quinlock K.
Sheen Living Trust.” The motion sought 40 percent of the value of the assets recovered
based on contingency fee retainer agreements between the beneficiaries and the lawyers
representing the beneficiaries.4


3
       As explained in Consumer Cause, Inc. v. Mrs. Gooch’s Natural Foods Markets,
Inc. (2005) 127 Cal.App.4th 387, 397, the common fund doctrine rests on the principle
that one who expends attorney’s fees in winning a suit that creates a fund from which
others derive benefit may require those passive beneficiaries to bear a share of the fees.
(See also 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 249, pp. 825-827, and
cases cited.)
4
       The contract terms between the beneficiaries and the lawyers are, of course, a
matter between them. Under the common fund doctrine, a court exercises its equitable
power to award attorney’s fees that are in the interest of justice. The initial motion for
attorney’s fees only spoke as to attorney Galliani’s law office, and not as to attorney
Marshall (who worked for beneficiaries on appeal) inasmuch as Dolores Sheen’s appeal
had not yet been completed.


                                             4
       The beneficiaries who won the claims against Dolores Sheen at trial of the section
850 petition, on behalf of and in favor of the Sheen living trust, wanted their attorney’s
fees paid out of trust assets upon the sale of the real and personal property recovered
through their efforts in the section 850 proceeding. As the beneficiaries stated: they
sought “40% of the sales proceeds of the sales proceeds of the real property, personal
property, rents and damages” recovered for the trust. In short, the beneficiaries wanted a
judicially-recognized surcharge or lien upon trust assets to pay attorney’s fees incurred to
their attorneys. Further, they wanted the attorney’s fees lien to be “made senior to other
claims against the [trust].” (Citing Winslow v. Harold G. Ferguson Corp. (1944) 25
Cal.2d 274.)
       The trustee, then Anthony Sheen (who had succeeded Eugina Ringgold, who died
shortly before trial of the section 850 petition), on behalf of the trust, opposed the motion
for common fund attorney fees. Trustee Anthony Sheen expressly conceded that the
Galliani office and attorney Howell were entitled to attorney fees, but argued they should
not be awarded 40 percent of the trust assets, but only fees as to the clients who had
retained them (i.e., Charles Sheen, Derek Hersha, and Deryl Gaylord), and that such fees
should only be paid after all accountings as to the trust were completed, and only as an
ordinary creditor. Attorney Gregory Cole represented trustee Anthony Sheen.
       In October 2006, the trial court (Hon. Aviva Bobb)5 granted the beneficiaries’
motion for attorney fees. In her October 2006 order, Judge Bobb fixed the amount of
attorney’s fees as follows: “ . . . 40% of the proceeds of the entire judgment entered on
May 16, 2006 . . . .” In November 2006, trustee Anthony Sheen filed a motion to vacate
the attorney’s fee award for various procedural errors.
       In January 2007, Judge Chirlin entered a written order vacating the attorney fee
award upon a finding that there had been a “failure of complete and proper service” of the
attorney fee motion.

5
        It is unclear to this court why Judge Bobb entered the order granting attorney fees
on the judgment in the section 850 proceeding when Judge Chirlin had presided over trial
of the section 850 petition.

                                              5
       In March 2007, the beneficiaries re-filed their motion for attorney fees based on
the common fund doctrine.
Further Litigation and Appeals
       As noted above, the original trustee, Eugenia Ringgold, died in April 2006, shortly
before trial of the section 850 petition summarized above. Pursuant to the trust, Anthony
Sheen, succeeded as the trustee of the trust.
       “From virtually the outset” of Anthony Sheen’s trusteeship, he and the attorneys
then representing the beneficiaries in the section 850 proceedings, including the appeal,
“pursued adverse proceedings against one another.” (Sheen v. Galliani (Feb. 24, 2010,
B206086 [nonpub. opn.].) These included a petition in June 2006 by the beneficiaries to
remove Anthony Sheen as trustee, a motion in August 2006 by trustee Anthony Sheen to
disqualify the attorneys who were representing the beneficiaries (i.e., Galliani, Howell
and Marshall), and an application in October 2006 by trustee Anthony Sheen for an order
directing the attorneys for the beneficiaries to turn over to him their “case files” from the
section 850 proceeding, including the then-pending appeal from the final judgment in the
proceeding.
       In October 2006, Judge Bobb entered an order denying trustee Anthony Sheen’s
motion to disqualify the attorneys for the beneficiaries in the section 850 proceeding.6
Trustee Anthony Sheen filed an appeal. We eventually dismissed the appeal as moot in
light of the fact that the attorneys who represented the beneficiaries voluntarily
substituted out of their representation while the appeal was pending. (See Sheen v. Sheen
(June 2, 2009, B196060, as modified on July 2, 2009 [nonpub. opn.].)
       In April 2007, trustee Anthony Sheen (represented by attorney Cole and now
assisted by attorney Neil Gieleghem) filed a complaint for legal malpractice against
attorney Leslie Howell and the Galliani law office, the trial lawyers who represented the
beneficiaries in the successful section 850 proceeding summarized above. (See L.A. Sup.
Ct., No. BC370267.)

6
       Again, it is unclear to this court why Judge Bobb was addressing matters in the
section 850 proceeding in October 2006.

                                                6
       In May 2007, Judge Chirlin entered a case status or management order in the
section 850 proceeding. The order addressed several matters; among its many provisions
the order took the beneficiaries’ renewed motion for common fund attorney fees off
calendar until several other pending matters were resolved.
       In June 2007, attorney Howell and the Galliani law office substituted out as the
beneficiaries’ attorney of record in the section 850 proceeding.
       In July 2007, Judge Chirlin entered another order, in what appears to be a case
management order. The July 2007 order concerned matters such as having property
deeds signed and delivered, sales of properties arranged, and disbursement of trust funds
to pay for the costs of the property sales and for regular maintenance of the properties in
the Sheen living trust. The order provided that no other disbursements would be made
(implicitly encompassing the matter of attorney fees) from the trust without further court
approval.
       At a status conference in October 2007, Judge Chirlin issued an order to show
cause why attorneys Galliani, Marc Hankin, and Evan Marshall (who then had been and
or were still representing the beneficiaries in the section 850 proceedings), including the
then-pending appeal should be barred from further participating in the proceedings.
The OSC also was addressed to whether or not attorneys Galliani, Hankin, and Marshall
should turn over their legal files to trustee Anthony Sheen. This resulted in a further slew
of briefing.
       In December 2007, Judge Chirlin entered an order directing attorneys Galliani,
Hankin and Marshall to produce all records and files pertaining to the section 850
proceedings, including the appeal from the judgment against Dolores Sheen. An appeal
ensued from the “file turnover” order. In early 2010, we modified Judge Chirlin’s order,
and affirmed. (See Sheen v. Galliani (Feb. 24, 2010, B206086 [nonpub. opn.].)
Our disposition read: “The order of December 24, 2007 is modified to provide that the
production shall be to [trustee] Anthony Sheen and his attorney only, and shall be limited
to Howell’s and Galliani’s files and papers that were prepared on or before April 30,
2006. As so modified, the order is affirmed. . . .” (Ibid.)

                                              7
       In July 2008, trustee Anthony Sheen filed renewed motions to disqualify attorney
Howell and the Galliani law office as the beneficiaries’ attorney of record in the section
850 proceeding. The beneficiaries opposed the motion. None of this makes sense to our
court inasmuch as Howell/Galliani no longer represented anyone in the section 850
proceeding as of July 2008.
       In September 2008, Hon. Mitchell Beckloff issued an order giving approval to
attorneys Cole and Gieleghem, the attorneys then representing trustee Anthony Sheen in
the section 850 proceeding, to file a motion to be substituted out of the litigation.7 In
November 2008, Judge Beckloff entered orders granting the motions by attorneys Cole
and Gieleghem to be relieved as counsel for trustee Anthony Sheen.
       In December 2008, Judge Beckloff denied trustee Anthony Sheen’s renewed
motion to disqualify the attorneys for the beneficiaries, finding that such a motion had
been previously denied and was then on appeal, and that trustee Anthony Sheen had
presented no new facts justifying a different result on his renewed motion.
       In January 2009, the former attorneys for trustee Anthony Sheen, that is, attorneys
Cole and Gieleghem, filed a so-called “collection action” seeking to recover about
$800,000 in attorney fees allegedly owed by the trust/trustee. (See L.A. Super. Ct., no.
LC084204.) The collection action was assigned to Judge Beckloff, who then also had the
probate case on the beneficiaries’ section 850 petition. At some point after the collection
action was filed, trustee Anthony Sheen ostensibly made an offer pursuant to Code of
Civil Procedure section 998 to settle the collection action filed by attorneys Cole and
Gieleghem. Trustee Sheen offered to settle the action for $500,000. On June 3, 2010,
Judge Beckloff entered a judgment in the collection action in accord with the settlement
offer under Code of Civil Procedure section 998. The judgment provided for a prompt,
initial payment of $50,000; a further payment of $200,000 after the close of escrow for


7
        Attorneys Cole and Gieleghem apparently claimed they were not being paid, or
there was a risk that they would not be paid, for their legal services, and that this was the
situation because the actions of attorneys for the beneficiaries were exhausting the assets
of Sheen living trust.

                                              8
the sale of the duplex property on Spaulding Avenue, and a final payment of $250,000 on
the trial court’s approval of an accounting in the Sheen living trust probate litigation. The
judgment provided that, in connection with any accounting, trustee Anthony Sheen would
“take the position” that the fees and costs sought by attorneys Gieleghem and Cole were
reasonable.8
       Meanwhile, during a period of time after the commencement of the appeal from
Judge Chirlin’s “file turnover” order (see Sheen v. Galliani, supra, B206086), trustee
Anthony Sheen sought to enforce the “file turnover” order, and the attorneys affected by
the order claimed that an automatic stay existed. Alternatively, they offered to deposit
their legal files with the trial court pending resolution on appeal.
       At some point during all of this, Judge Chirlin apparently recused herself. In
March 2009, Judge Beckloff appointed a receiver to hold the files. The receiver
ultimately ran up a bill of $36,000. When the court set an order to show cause as to the
allocation of trust assets for the receiver’s fees, attorneys Gieleghem and Cole (who were
then still representing trustee Anthony Sheen) told the court that they had attached
everything in the trust with their judgment in their parallel “collection action,” and that
there were no assets left in the Sheen living trust even to pay administrative expenses.
       In February 2012, trustee Anthony Sheen (represented by new counsel, attorney
Reginald Mason) filed a series of appeals from the collection action, including an attack
on the judgment entered pursuant to Code of Civil Procedure section 998. Those appeals
were dismissed by Division Four of our Court after appellants failed to file a timely
opening brief. (Cole v. Sheen, B239290.)




8
        While the $500,000 judgment entered in the “collection action” against the
trust/trustee and in favor of attorneys Cole and Gieleghem seems to be pursuant to section
998, the validity of that judgment is not before us on the appellants’ current appeal.
While we have concerns whether the payment of attorney’s fees should have been by way
of a separate civil “collection action,” as opposed to a matter of administration of the trust
in the probate court proceedings, the appeal before us today only concerns Judge
Beckloff’s order of July 2012 denying the appellants’ refiled motion for attorney’s fees.

                                              9
The Renewed Motion for Attorney’s Fees and the Current Appeal
       In April 2012, the beneficiaries in the original 2006 section 850 proceeding as to
Dolores Sheen to recover trust property –– i.e., Charles Sheen, Derek Hersha and Deryl
Gaylord –– and their former attorneys in the proceeding –– i.e., the Law office of Fritzie
Galliani and Evan Marshall –– refiled a motion for attorney fees based on either or both
(1) the common fund doctrine, and (2) contractual attorney fees assertedly owed under
contingency fee retainer agreements. The motion sought attorney fees for work
performed in both the trial court and on appeal which resulted in recovery of the trust
properties. Basically, the motion was a refilling of the motion for “common fund”
attorney fees that had been granted by Judge Bobb in October 2006, but which was later
vacated on service/notice grounds by Judge Chirlin in October 2007.
       The refiled attorney’s fee motion essentially sought reinstatement of Judge Bobb’s
“common fund” attorney fee order issued in October 2006 which had awarded 40 percent
of the value of the property recovered for the Sheen living trust by the beneficiaries’
successful 2006 proceeding under section 850 (and appeal). Alternatively, the motion
sought a sum specific amount of $720,000, based on contingency fee retainer agreements
between the beneficiaries and attorneys Galliani and Marshall, and the recovery in the
section 850 proceeding. Further, the motion sought the attorney fees to be awarded nunc
pro tunc as of the time of Judge Bobb’s order in 2006, and for a declaration that the Law
Offices of Fritzie Galliani, and Evan Marshall, had a “senior lien” for their attorney fees,
implicitly meaning in front of attorneys Neil Gieleghem and Gregory Cole by virtue of
their 2010 judgment in their “collection action” against the Sheen living trust. Attorneys
Galliani and Marshall also sought imposition of a constructive trust over the assets in the
Sheen living trust to accomplish payment of their fees with priority over other attorney
fees claims.
       The motion for an award of attorney’s fees also explained that attorneys Galliani
and Marshall had offered to enter into an agreement with the trustee, still Anthony Sheen,
under which Galliani and Marshall would share half of any funds they recovered after
costs. As we understand matters, attorneys Galliani and Marshall have offered to share

                                             10
any money –– obtained by virtue of a priority over attorneys Cole and Gieleghem –– with
all of the beneficiaries of the Sheen living trust (except for Dolores Sheen, the
wrongdoer). Further, because the trust assets may have been sold, and attorneys Cole and
Gieleghem may have already gotten their money under the judgment in their “collection
action,” this will mean in the end that attorneys Cole and Gieleghem will have to give
back monies in order that attorney’s fees to attorneys Galliani and Marshall are awarded.
       Upon the refiling of the motion for an award of attorney’s fees, attorney Neil
Gieleghem leveled an accusation that Charles Sheen (one of the original section 850
petitioners, ante) of “confront[ing]” attorney Cole outside the Spaulding Avenue duplex
property.9 Gieleghem also leveled accusations that attorneys Galliani and Marshall were
“colluding” with the beneficiaries of the Sheen living trust in that the attorneys had
offered to share a portion of their recovery of attorney’s fess with the beneficiaries.
Gieleghem accused attorneys Galliani and Marshall and the beneficiaries of the trust of
wrongfully trying to take away money that rightfully belonged to attorneys Gieleghem
and Cole. In this vein, Gieleghem demanded that attorneys Galliani and Marshall, and
trustee Anthony Sheen’s new lawyer, Reginald Mason, immediately produce documents
concerning the alleged “collusion,” and to submit to depositions.
       Gieleghem also served notices of deposition for attorneys Galliani, Marshall and
Mason. Later, Gieleghem dropped deposition subpoenas at the offices of attorneys
Galliani and Marshall. In May 2012, Gieleghem sent an e-mail to trustee Anthony
Sheen’s attorney (Mason) threatening “potential, very severe consequences” for trustee
Anthony Sheen should the then-pending motion for attorney’s fees be granted.
       On May 16, 2012, the parties argued the refiled motion for attorney’s fees to Judge
Beckloff, and he took the matter under submission. On July 13, 2012, Judge Beckloff
denied any attorney’s fees or costs at all on the ground that a “common fund” award was
inappropriate because attorneys Galliani and Marshall had “relied on trust property
values that [were] six years old.” More specifically, Judge Beckloff ruled that “it would

9
       In a later declaration, Charles Sheen testified that he had not been in California at
any time during April 2012.

                                             11
be inequitable to the [panoply of ] trust beneficiaries to award [attorney’s fees as] a
percentage of the trust corpus based on property values from six years ago.”
Further, Judge Beckloff found that the refiled motion for attorney’s fees was a wholly
“new motion,” not a “renewed motion.” As new motion, Judge Beckloff found it was
untimely under California Rules of Court, rule 3.1702.1(b)(1) [motion for attorney’s fees
in a civil case must be filed in the time for filing a notice of appeal].) Having rejected
any attorney’s fees and costs, Judge Beckloff ruled it was unnecessary to address the lien
priority issues.
       The original common-funding beneficiaries Charles Sheen, Derek Hersha and
Deryl Gaylord, joined by their former attorneys Gilliani and Marshall who represented
them in the section 850 proceedings and the subsequent appeal, then filed a notice of
appeal from Judge Beckloff’s July 2012 order denying the refiled motion for attorney’s
fees (with lien priority). We hereafter refer to these beneficiaries and these attorneys
collectively as the appellants.
                                        DISCUSSION
I.      Framework for Appeal
       The appellants’ first contention is that the trial court’s order denying their refiled
motion for attorney’s fees under the common fund doctrine must be reversed because the
order was “abusive,” “disingenuous” and “preposterous” insofar as it was predicated on
the court’s conclusion that fixing the amount of attorney’s fees (whether calculated on a
contingency percentage under an attorney retainer agreement or assessed on a fairness
basis under the common fund doctrine or part of both approaches) based on the value of
trust property at the time it was recovered in 2006 “would be inequitable” in 2012.
No respondent’s brief has been filed.
       To address any issue on this appeal, we start with some very broad predicates.
First, it is undisputed that there are, or were, trust assets to begin with only because of the
appellants’ efforts on their section 850 petition against Dolores Sheen, including securing
a judgment directing her to return trust assets and then winning the subsequent appeal
from that order.

                                              12
       Second, the appellants should have been awarded –– as a matter of equity –– some
measure of attorney’s fees, with those fees surcharged against the trust assets that were
recovered. (See generally 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 249
[discussing common fund doctrine] ;and see also Estate of Reade (1948) 31 Cal.2d 669,
671-672 [common fund doctrine extended to probate proceedings].) We see nothing in
the record to suggest that anybody, at any time, ever presented a meaningful claim or
argument that wholly denying attorney’s fees was appropriate. Indeed, trustee Anthony
Sheen acknowledged in his opposition to the initial motion for attorney’s fees filed way
back in 2006 that an award of attorney’s fees to the beneficiaries was appropriate under
the common fund doctrine; his only challenge was to manner of calculating the amount of
fees to be awarded. In 2006, he challenged the request for an award of 40 percent of the
total value of assets recovered, and argued, instead, that the beneficiaries should be
awarded at most 40 percent of the value of their share of the trust assets recovered. And
the position of the respondents in the trial court (i.e., attorneys Cole and Gieleghem)
basically came down to this statement which may be found in their response to the
receiver’s motion for his fees: “Judgment creditors do not care what, if anything the
Receiver and/or Objectors are paid –– provided they are not paid with Judgment
Creditors’ money, i.e., the trust assets/monies subject to the attachment order [from the
Judgment Creditors’ collection action].” (Italics in original.)
       This brings us to the third predicate in this case, namely, that the dominant issue in
this case, both in the trial court and on this appeal, is a question of priority of liens against
the trust’s assets to secure payment of attorney’s fees. That is, this appeal is essentially a
fight between two sets of attorneys over which one of them is going to take away the
trust’s assets first. With this framework of predicates in place, we turn to the appellants’
appeal.
II.    The Motion was Timely
       We first address the procedural issue of whether the appellants’ motion for
attorney’s fees under the common fund doctrine was untimely. If this procedural bar is
not overcome by the appellants, all other issues as to the propriety an award of attorney’s

                                               13
fees need not be addressed. The appellants contend that Judge Beckloff erred in ruling
that their refiled motion for attorney’s fees under the common fund was untimely under
California Rules of Court, rule 3.1702.1(b)(1). We agree.
       Rule 3.1702.1(a) provides: “Except as otherwise provided by statute, this rule
applies in civil cases to claims for statutory attorney’s fees and claims for attorney’s fees
provided for in a contract. . . . (Emphasis added.) By its plain language, rule 3.1702.1
applies in a “civil case” involving a statutory scheme, and the statutes allow for an award
of attorney’s fees, for example, litigation under the Fair Employment and Housing Act or
FEHA (Govt. Code, § 12900 et seq.). It also applies in a “civil case” involving a
“contract,” and the contract includes an attorney’s fee provision, for example, when a
contract provides that, in the event of litigation on the contract, the prevailing party in the
litigation is entitled to attorney’s fees. The current case involves a probate proceeding to
recover trust assets, and the equity-based common fund doctrine. This type of case does
not fall within the ambit of a “civil case” involving a statutory or contractual right to
attorney’s fees.
       Hollaway v. Edwards (1998) 68 Cal.App.4th 94 is in accord with this view.
There, the court correctly explained that attorney’s fees in probate court litigation “are
subject to concerns sufficiently unique . . . to distinguish them from fees generated in
ordinary civil litigation. . . . As the Supreme Court noted in Estate of Trynin (1989) 49
Cal.3d 868, 873 . . . , ‘An attorney who has rendered services to an estate’s representative
may obtain compensation by petitioning the superior court sitting in probate for an order
requiring the representative to make payment to the attorney out of the estate.’ In
addition, an attorney who performs services in connection with a trust may well wish
(say, for client relations purposes) to recover attorney fees first by way of request for
voluntary payment by the trust before pursuing court intervention . . . . Superimposing
rule [rule 3.1702.1(b)(1)]’s time limitations likely would complicate, and possibly
frustrate, such salutary nonlitigious efforts.




                                                 14
       “Moreover, the probate court enjoys broad equitable powers over the trusts within
its jurisdiction. (Estate of Ivy (1994) 22 Cal.App.4th 873, 883-885 . . . [court exercises
equitable powers pursuant to trust supervision to exempt prevailing beneficiaries from
provisions of Code of Civil Procedure which would undermine their recovery of attorney
fees].) This discretion derives not simply from judicial gloss, but from the Probate Code
itself. For example, although Code of Civil Procedure section 1032, subdivision (b)
entitles a prevailing party in ordinary civil litigation to costs as a matter of right, the
probate court retains discretion to decide not only whether costs should be paid, but also,
if they are awarded, who will pay and who recover them. (Prob. Code, § 1002.) We are
loath to circumscribe the probate court’s discretion by importing California Rules of
Court, rule [3.1702.1(b)(1)]’s strict time limits.” (Hollaway v. Edwards, supra, 68
Cal.App.4th at pp. 98-99.)
       In accord with the statutory language, and the sentiments of the case law, we agree
with the appellants that Judge Beckloff erred in applying California Rules of Court, rule
3.1702.1(b)(1), in the context of their motion for attorney’s fees under the common fund
doctrine.
III.   Denial of Attorney’s Fees was Error
       We also agree with the appellants that Judge Beckloff erred in denying an award
of any attorney’s fees on the ground that the value of the trust assets recovered in the
section 850 had likely changed between 2006 and 2012. First, not one of the
beneficiaries under the trust, nor attorneys Cole or Gieleghem, ever claimed that the 2006
value of the Spaulding Avenue properties was not a relevant basis for calculating an
attorney’s fee award under the common fund doctrine. Second, and perhaps more
importantly, while the valuation of assets issue may have made a calculation of an
appropriate amount of attorney’s fees more difficult, the valuation of assets issue should
not have served as basis for denying any award of attorney’s fees. As noted above, it is
undisputed that the current case is of a type that fits the common fund doctrine model ––
a common fund for the benefit of all of the beneficiaries of the trust was created by the



                                               15
efforts of the subset of beneficiaries who successfully litigated the section 850
proceeding.
       In Estate of Stauffer (1959) 53 Cal.2d 124, 132, the Supreme Court explained that
an award of attorney’s fees under the equitable common fund doctrine should accomplish
the following goals: “fairness to the successful litigant, who might otherwise receive no
benefit because his recovery might be consumed by the expenses; correlative prevention
of an unfair advantage to the others who are entitled to share in the fund and who should
bear their share of its recovery; encouragement of the attorney for the successful litigant,
who will be more willing to undertake and diligently prosecute proper litigation for the
protection or recovery of the fund if he is assured that he will be promptly and directly
compensated should his efforts be successful.” It would not appear that these principles
necessarily correspond with concepts such as the “lodestar” measure of attorney’s fees, or
a straight-percentage contingency fee measure of attorney’s fees. On the contrary, under
the common fund doctrine, an award of attorney’s fees surcharged against a common
fund necessarily entails a sliding scale of “fairness” in that a surcharge against a common
fund to pay such attorney’s fees will incrementally decrease the pay out to those entitled
to a share of a common fund with each incremental increase in the amount of attorney’s
fees awarded. The trial court was not “fair” to anybody by focusing on the valuation of
assets issue to deny attorney’s fees completely where it is undisputed that work was done
to benefit a common fund.
       This is not to say that Judge Beckloff was required to accept the 2006 valuations
of the Spaulding Avenue properties in fixing an appropriate amount of attorney’s fees
under the common fund doctrine. By the time the refiled motion for attorney’s fees came
before him in 2012, Judge Beckloff already had information that the Spaulding Avenue
duplex was in escrow to be sold to a third-party for a “projected ‘net’ to the trust” of
“around $600,000 . . . .” This information came from attorneys Cole and Gieleghem in
their response to the receiver’s motion for his fees. Thus, when Judge Beckloff addressed
the refiled motion for attorney’s fees in 2012, it is inescapable that the litigation by the
common-funding beneficiaries had created a common fund with a value of “around”

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$600,000, at least. In addition, the common fund attorney’s fees could have been
awarded some portion thereof, as “fair” to the beneficiaries who created the trust’s
common fund and to the remaining “passive” beneficiaries of the trust.
       However, it is not our role to exercise equity powers to declare a sum certain
amount of attorney’s fees to be awarded and surcharged against the trust assets under the
common fund doctrine for the first time on appeal. We leave that determination to Judge
Beckloff on remand. We find only that a complete denial of attorney’s fees was
improper.
Lien Priority
       The appellants contend that –– as to attorney’s fees awarded and to be surcharged
against the trust assets under the common fund doctrine –– they should have a “senior”
lien. We note that Winslow v. Harold G. Ferguson Corp. (1944) 125 Cal.2d 274
(Winslow) may or may not support such a conclusion. But this too was not addressed by
Judge Beckloff below because he outright denied the award of attorney’s fees. We leave
the resolution of this question to Judge Beckloff in the first instance on remand.
IV.    Constructive Trust
       Appellants contend they were “entitled” to a constructive trust –– apparently they
mean a constructive trust imposed as to attorneys Cole and Gieleghem –– in order to give
practical effect to the appellants’ “senior” right to attorney’s fees surcharged against the
trust assets under the common fund doctrine. This also was not addressed by Judge
Beckloff, given the nature of his decision. We express no view on what procedural
avenue, if any, would allow the appellants to give practical effect to their senior claim for
attorney’s fees surcharged against the trust assets. Once again, we leave that decision to
Judge Beckloff on remand.
V.     The Judgment in the Collection Action
       In a series of arguments, which include a number of inappropriate, ad hominem
attacks on Judge Beckloff, appellants challenge the validity of the judgment entered in
favor of attorneys Cole and Gieleghem in their collection action. We summarily dismiss



                                             17
these arguments because the appeal before us today is not taken from the judgment in the
collection action.
VI.    Motions on Appeal
       The appellants have filed a motion in our court seeking sanctions against attorneys
Cole and Gieleghem. The motion is denied because neither attorney Cole nor attorney
Gieleghem has undertaken any action in our court justifying they be sanctioned.
       The appellants have filed a motion in our court for a “determination” on certain
“jurisdictional objections” to appellate review. The motion is denied because neither
attorney Cole nor attorney Gieleghem filed anything in our court challenging our
appellate jurisdiction. To the extent they claimed to the appellants, in an exchange of
letters, that such jurisdictional bars existed, those extra-judicial claims are not our
concern.
       Finally, we note that attorney Cole has filed a “joinder” in the respondent’s brief
filed by attorney Gieleghem. Because attorney Gieleghem filed no such brief, we strike
attorney Cole’s “joinder” as a meaningless nullity. This case is addressed pursuant to the
procedures of California Rules of Court, rule 8.220(a)(2) [no respondent’s brief filed].
                                       DISPOSITION
       The trial court’s order dated July 2012, is reversed and remanded to the trial court
for further proceedings in accord with this opinion. Appellants are awarded costs on
appeal.


                                                          BIGELOW, P. J.
We concur:




              RUBIN, J.                     KUSSMAN, J. 



        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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