In the Matter of Conservatorship of Elaine Twitchell

Recommendation re: Discrepancy no. 2 and 3 The Court should find this issue resolved. The schedules were provided via supplement.

Discrepancy no. 4 - Charges do not equal credits (Prob. Code, Sec.1061(c).) Petitioner admits the charges and credits do not match by $2.89. The court should surcharge the conservator this amount.

Recommendation re: Discrepancy no. 4 The Court ordered surcharge of $2.89 at the last hearing on April 1. That amount must be added to the conservatee's account and reflected in the next accounting.

Discrepancy no. 5 - Conservator may not use credit cards without disclosing all of the billing statements to the court. Use of credit cards without court approval violates CRC, Rule 7.1059, subdivisions (b)(1-3, and 8). Credit card charges should be itemized on the Disbursements schedule and organized by category.

Recommendation re: Discrepancy no. 5 The Court resolved this discrepancy on April 1st, ordering no credit cards are to be used after March of 2026.

Discrepancy no. 6 - Title on conservatorship account does not reflect the name of the conservatorship estate. (CRC 7.1059 (b)(7).)

Recommendation re: Discrepancy no. 6 The Court should find this issue tentatively resolved based on the Declaration filed on April 3rd. However, that declaration was not accompanied by an account statement reflecting the change, so future account statements must reflect what was attested to in the Declaration under the penalty of perjury, thus title on the account must reflect the name of the conservatorship estate in compliance with CRC, Rule 7.1059, or perjury proceedings will be recommended.

Discrepancy no. 7 - Sufficiency of the bond must be addressed. (See Local Rule 1742 (a) & (b).) Conservators inexplicably asked for waivers of bond. Bond in a conservatorship proceeding cannot usually be waived. (Prob. Code, Sec.2321.) The only exception is if the Court can make "a determination that the conservatee will not suffer harm as a result of the waiver or reduction of the bond." (Id. at subd. (b).) Petitioners offer no facts or analysis as to how this Court can make that determination, nor why it should.

The amount of the bond given by an admitted surety insurer must be the sum of the following (Prob C Sec.2320(c); Cal Rules of Ct 7.204(c)): The value of the personal property of the estate; The probable annual gross income of all estate property; The sum of the probable annual gross payments from specified county, state, and federal public welfare programs; A reasonable amount for the cost of recovery to collect on the bond, including attorney fees and costs (see Sec.9.4A for rules for determining this amount); and The value of any real property for which the conservator holds an independent power of sale (Prob C Sec.2591(c)).

Recommendation re: Discrepancy no. 7 The Court should find this issue unresolved. On April 15th the Court ordered conservators to obtain bond, but no bond is on file.

Discrepancy no. 8 - Attorney's fees were paid without court approval. Although it appears some steps have been taken to give the fees back, this does not explain why they were paid in the first place. Fees can only be paid from the conservatorship estate after court authorization. (Prob. Code, Sec.Sec. 2640-2643.) (See Prob. Code, Sec.Sec.2430(a)(4), 2640(a), 2641(a), 2642(a), 2647.) If a conservator pays or receives compensation, or if an attorney for the conservator receives any payment from the conservatorship estate without advance court approval, the court may surcharge and remove the conservator and impose any other sanction authorized by law. (CRC, Rule 7.755(a).)

Recommendation re: Discrepancy no. 8 It is recommended the Court sanction attorneys for conservator at least $500 for prepayment of fees without a court order. There was no reasonable rationale for why the fees were paid in the first place, and the payment appears to be due to a lack of experience and expertise in the area of conservatorship law.

Attorney's fees (Comstock) There are three primary issues with the Petition for Attorney's Fees filed by Marie Comstock. The first issue is the rate being charged for paralegal work. The $250/hr fee for paralegal work is far from commensurate of the fee this Court regularly approves for paralegals with extensive experience in conservatorship law (which is apparent this paralegal does not have), and was not supported by a declaration of compliance with CRC. Rules 7.754 and 7.703.

Not only do the extensive errors in the work product submitted to this court in this case speak to the lack of experience in conservatorship law, but it also speaks volumes that no evidence was submitted in support of the paralegal's expertise in the area of conservatorship law, which is required to justify any hourly rate, let alone rates that are considered by this Court to be the top rates in this legal community if the Court approved them. Proof of the reasonable hourly rate must be based upon more than simply the affidavit of the attorney requesting the fees; a supporting affidavit from independent counsel practicing in the forum community should also be provided. (Blum v. Stenson (1984) 465 U.S. 886, 895, fn. 11; Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.)

The moving party must also present evidence of the qualification and experience of the attorneys who performed the work upon which the request is based. (Ajaxo, Inc. v. E-Trade Group (2005) 135 Cal.App.4th 21, 65.) Since this was not done, and the errors in the submissions from the very beginning of this case have caused numerous hearings and supplements that have wasted precious court resources to review, the Court should find the hourly rate unreasonable under the circumstances, and allow $150 for the paralegal and $400 for the attorney.

The second issue is a request to pay fees for unbilled work. This is a non-starter under well settled precedent, and under the California Rules of Court. An appropriate fee petition will contain a summary of the total hours, the proposed hourly rate, and the amount of compensation sought. The petition must be accompanied by a detailed description of each service, the date, duration, rate, and total charges. Cal Rules of Ct 7.702, 7.751(b). If compensation is requested for legal services performed by a paralegal, the petition must state that such services were performed under the direction and supervision of an attorney and must set forth the hours spent and services performed by the paralegal. Prob C Sec.2640(c). Thus, it is recommended the Court deny the request to approve $1,167.50 of unbilled fees.

The third, and final issue is overbilling for work that appears to be clerical in nature. In several descriptions of the work performed, the nature of the work appears to be clerical or administrative in nature. There are several examples of phone calls and emails to the client for what can only be described as status updates on the case, or worked performed in the pursuit of obtaining a bond. Though most of this work was performed by the paralegal, even at the $150/hr rate recommended for paralegal work, the entries amount to a significant overcharge. It is recommended the Court find that 5.2 hours of work being billed was clerical in nature, and allow only $60/hr for that work. Thus, it is recommended the Court approve the fee request, but only with a reduction of $3,603.19, for a total fee of $4,952.

Appearances: The court is open to the public for court business. The court is also conducting hearings via Zoom videoconference. Meeting ID: 161 956 1423

Passcode: 137305

Tentative Ruling: Estate of Norma Jean Hansen Tentative Ruling: Estate of Norma Jean Hansen