Appeal from a judgment of the Superior Court of Orange County, Gregory H. Lewis, Judge. Reversed. (Super. Ct. No. 05CC07646).
The opinion of the court was delivered by: Fybel, J.
CERTIFIED FOR PUBLICATION
Probate Code section 17211, subdivision (b)*fn1 permits a probate court to award attorney fees to the beneficiary of a trust who "contests the trustee's account" if the court determines the trustee's opposition to the contest was "without reasonable cause and in bad faith." Based on section 17211(b), the trial court (not a probate court) granted the motion for attorney fees brought by Richard C. Soria, Jr., Barbara Soria, Eleanor I. Soria, and Renee R. Soria (Grandchildren), and awarded them attorney fees against their grandparents Richard R. Soria and Lynda F. Soria (Grandparents). Grandparents appeal from that order and the portion of the amended judgment incorporating the attorney fees award. We reverse.
Section 17211(b) does not permit recovery of attorney fees in this case for the simple reason Grandchildren did not contest a trustee's account. Instead, Grandchildren pursued a civil action against Grandparents, alleging they breached their duties as trustees, and sought an injunction to compel Grandparents to produce an account. The very existence of a trust was in dispute. At trial, there was no contest of a trustee's account within the meaning of section 17211(b). The recent decision of Leader v. Cords (2010) 182 Cal.App.4th 1588 (Leader) is distinguishable and does not alter our conclusion Grandchildren could not recover attorney fees under section 17211(b).
Section 17211(b) permits an attorney fees award only as a surcharge against the trustee's compensation from or interest in the trust. Because this case was prosecuted as a civil lawsuit, the attorney fees award became part of a money judgment against Grandparents and was not surcharged against future compensation or interest in the trust. Section 17211(b) does not permit attorney fees to be awarded in such a manner.
FACTS AND PROCEEDINGS IN THE TRIAL COURT
Richard C. Soria, Sr. (Father), and Irene R. Sarinana (Mother) are the parents of Grandchildren. Grandparents are the parents of Father.
On March 13, 1993, Father and Mother owned property on West Fourth Street in Santa Ana. On that date, Father and Mother, on the one hand, and Grandparents, on the other, entered into a written agreement (the Agreement).
The Agreement, handwritten on a form, identified Father and Mother as the "First Part" and identified Grandparents as the "Second Part." The handwritten portion of the Agreement reads: "The First Part agrees to sign over Grant deed of house, Located at 5417 W 4th St. City of Santa Ana, County of Orange. State of Calif. Lot 8 block tract 547. Reasons being First Part cannot afford completions of or pmts. of 1st & 2nd mor[t]gage total of $1200.00 per mo. [¶] First Part agreement is only. [¶]... [¶] when second Part is paid all money paid out to to [sic] date on mor[t]gage's & has spent on constructions & will have to spend [¶] at such time if divorce occurs between First Parts & or Second part is paid back in full, Grant deed will be turned back to [¶] Richard C. Soria--Father [¶] Richard C. Soria Jr[.] son [¶] Barbara Soria--daughter [¶] Eleanor I. Soria--daughter [¶] Rene R. Soria--daughter."
In June 2005, Mother and Grandchildren sued Grandparents and Father, alleging the Agreement was a trust agreement, Grandparents were the trustees, and Father, Mother, and Grandchildren were the beneficiaries. The complaint alleged that pursuant to the Agreement, Grandparents "agreed and appointed to be the trustees, of a trust, and receive legal title to the Subject Property, for safe keeping purposes and for the sole benefit of [the beneficiaries]." Mother and Grandchildren alleged that in August 2003, they demanded that Grandparents, as trustees, transfer legal title to the house to the beneficiaries and provide an accounting, and that Grandparents refused to comply with those demands. The first amended complaint, the operative pleading, asserted causes of action for fraud, breach of contract, rescission, breach of fiduciary duty, common counts, and money had and received, and requested an injunction to convey the property to Mother and Grandchildren and to prepare an accounting.
Mother and Grandchildren filed and pursued the lawsuit as a civil action rather than as a probate matter.
In November 2006, the trial court granted Grandparents' non-statutory motion for judgment on the pleadings on the ground every cause of action in the complaint was time-barred under the relevant statutes of limitations. In a prior opinion, Sarinana v. Soria (Aug. 28, 2007, ...