Sheen v. Sheen CA2/8

Filed 5/26/16 Sheen v. Sheen CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

CHARLES SHEEN et al., B263952

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. Daniel S. Murphy, Judge. Affirmed. Evan D. Marshall for Plaintiffs and Appellants. Gieleghem Law Office and Neil Gieleghem for Objector and Respondent Neil Gieleghem. Law Offices of Gregory A. Cole and Gregory A. Cole for Objector and Respondent Gregory A. Cole. ____________________________________

We affirm a probate court order granting a motion to tax the entirety of $2,640.24 in claimed fees and costs incurred on a prior appeal on the ground that the claimed costs were sought from persons whom were not liable for such costs. FACTS Background We have entertained multiple previous appellate court proceedings arising from the probate litigation giving rise to the current appeal. We summarized the facts of the protracted litigation in a prior appeal (Sheen v. Sheen (July 1, 2014, B243847) [nonpub. opn.]) (hereafter Sheen Trust I)), and see no need to restate that long history for the instant appeal. It is sufficient for present purposes to recall that a subset of the beneficiaries under a living trust, Charles Sheen, Derek Hersha, and Deryl Gaylor (collectively Sheen), have long been seeking an award for attorney’s fees based on the equity-based “common fund doctrine.” Sheen claims that litigation which he initiated resulted in a judgment recovering the bulk of the trust’s assets from a wrongdoer, thereby creating a common fund benefitting all of the trust’s beneficiaries, which justifies an award of attorney’s fees in Sheen’s favor (and, thus, in favor of Sheen’s attorneys ultimately), to be surcharged against the trust’s assets. In an opinion issued roughly two years ago, we reversed a probate court order denying any award of attorney’s fees surcharged against the trust’s assets, based largely on evidentiary-procedural grounds. (See Sheen Trust I, supra, typed opn. at p. 17.) In the same opinion, we declined to address Sheen’s claim that attorney’s fees surcharged against the trust’s assets, to the extent such fees were ultimately was awarded, would have a “seniority lien” over any other “claim” against the trust’s assets. (Ibid.) The only other “claim” against the trust’s assets that is involved in this probate litigation is not truly in the form of any pending claim against those assets. Rather, two attorneys who previously represented the trustee, Neil Gieleghem and Gregory Cole, have already been paid money or assets from the trust’s assets for attorney’s fees billed to the trustee. Sheen wants those fees paid back, replacing monies into the trust’s assets.