Conservatorship of McQueen CA1/4

Filed 2/3/15 Conservatorship of McQueen CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Conservatorship of the Estate of IDA McQUEEN.

FESSHA TAYE, as Conservator, etc., Plaintiff and Respondent, A134337 v. (Alameda County CAROL VERES REED, Super. Ct. No. HP05237122) Defendant and Appellant.

I. INTRODUCTION For the second time, we review this case involving $56,974.50 in attorney fees and costs (collectively fees) awarded to plaintiff Fessha Taye, conservator for a mentally and physically disabled elder. Plaintiff, on behalf of his conservatee, prevailed in an action against defendant Carol Veres Reed finding defendant liable for financial abuse of an elder; and we affirmed that judgment on appeal. (Conservatorship of McQueen (Mar. 14, 2011, A126825 [partial pub. opn.] McQueen I.) Defendant then paid the $402,000 judgment, including interest, in full. Thereafter, pursuant to the fee-shifting provision of the Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act) (Welf. & Inst. Code, § 15657.5, subd. (a)), the trial court awarded plaintiff an additional $56,974.50 in fees. The $56,974.50 represented two categories of fees––for being the

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prevailing party in the appeal in McQueen I, as well as fees incurred in bringing a fraudulent transfer action against defendant. In the first appeal in this case, we held plaintiff’s fee request was untimely under the Enforcement of Judgments Law (EJL) (Code Civ. Proc., § 685.080, subd. (a)) by virtue of the fact that the judgment in McQueen I had already been fully paid by defendant when plaintiff filed her fee request. (Conservatorship of McQueen (Feb. 7, 2013) A134337 [nonpub. opn.].) After granting plaintiff’s petition for review, the Supreme Court reversed in part and affirmed in part, holding that Code of Civil Procedure section 685.080, subdivision (a), applied only to preclude plaintiff from recovering fees incurred in prosecuting the fraudulent transfer action. (Conservatorship of McQueen (2014) 59 Cal.4th 602, 612 (McQueen II). However, plaintiff was entitled to recover fees for defending the judgment in McQueen I on appeal. (Id. at p. 612.) Per our Supreme Court’s instructions on remand to this court, the essential remaining issues are: (1) ruling on “plaintiff’s request for costs and attorney fees incurred in this appeal;” and (2) apportioning and modifying plaintiff’s prior $56,974.50 lump sum award to allocate only appellate fees for defending the judgment in McQueen I, which are recoverable, and to exclude the fees from the fraudulent transfer case, which are not recoverable. (McQueen II, supra, 59 Cal.4th at p. 616.) As to the first point, we find plaintiff is entitled to fees incurred in this appeal for successfully defending the appellate fee award; and we remand the matter so the trial court can determine the amount of these fees. As to the second point, we remand the matter to the trial court to determine the numerical division of fees. Accordingly, the trial court’s prior award of $56,974.50 in fees is reversed and the matter remanded for further proceedings consistent with the views set forth in this opinion. II. FACTS AND PROCEDURAL HISTORY The factual and procedural history of the underlying litigation is set forth in detail in our prior opinion in McQueen I and the California Supreme Court’s opinion in