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Estate of Dennis Wong, Deceased. v. Peter Bresler

June 27, 2012


Trial Court: Superior Court of San Francisco County Trial Judge: Hon. Mary E. Wiss (San Francisco County Super. Ct. No. PES 03285256)

The opinion of the court was delivered by: Haerle, J.



This is an appeal from two probate court orders awarding statutory attorney fees to respondent Peter Bresler (Bresler), the first of several attorneys who represented appellant Donna Wong (appellant) in her capacity as executor of the estate of her deceased husband, Dennis Wong (the Wong estate).

Appellant claims that Bresler is not entitled to statutory compensation for his probate work in this case because (1) the parties did not execute a written fee agreement entitling Bresler to that compensation, and (2) appellant rescinded her attorney services agreement with Bresler on the ground of constructive fraud. We reject these contentions and affirm the probate court orders at issue in this appeal.


A. Background

In 1988, Dennis Wong and his wife executed a living trust in which to hold their assets. Unfortunately, however, Dennis Wong died in December 2002, without having transferred his assets (principally numerous pieces of real property in San Francisco) into that trust.

In early 2003, appellant retained Bresler's law partner, Faye Lee, to assist her with estate planning in the wake of her husband's death. Shortly thereafter, appellant retained Bresler and his law firm, Bresler & Lee, to assist her with trust administration and probating the Wong estate. As Bresler concedes on appeal, the parties did not execute a written contract retaining Bresler to perform probate work on behalf of the executor.

In September 2005, appellant became dissatisfied with Bresler's work, terminated his employment and retained an attorney named Mark Cederborg to assist her with closing the probate estate. The substitution of attorney form pursuant to which Bresler withdrew from this case was fully executed on October 28, 2005.

In an October 29, 2005, letter addressed to both appellant and Cederborg, Bresler advised that his firm had completed all of the work necessary to close the Wong estate, alluded to a misunderstanding regarding when appellant wanted to file her final petition and report, and expressed regret that he would not be able to conclude the probate matter for her. Bresler also discussed the status of various matters, advised that he would submit an invoice for non-probate services, and stated that "[l]ater, your new counsel and I will attempt to work out an allocation of the statutory fees for work on the Probate."

By letter dated December 23, 2005, Bresler submitted a "final invoice" in the amount of $5,000 for two items of non-probate work performed by his firm. In that letter, Bresler reiterated that "[w]e will contact your current attorney, and coordinate for an apportionment of fees from the probate." There is no evidence that appellant either responded to this letter or made any payment to Bresler.

In April 2010, attorney Benjamin Gale, appellant's counsel in this appeal, was substituted in as the third attorney for the executor in this case.

B. The Executor's Reports

On June 14, 2010, appellant filed a first and final report and petition for settlement (the final report) which she verified under penalty of perjury. According to the final report, the Wong estate was valued at $8,347,800.86, the executor and the executor's attorneys were each entitled to statutory compensation in the total amount of $96,478.01, and the executor and all of her attorneys waived their right to that statutory compensation. Appellant also requested authorization from the court to pay $5,000 compensation to her current attorney, Mr. Gale.

On November 29, 2010, appellant filed an amended final report and petition, which was also verified by her (the amended final report). Several waivers were filed in conjunction with the amended final report, including a "Waiver of Attorneys Fees," pursuant to which Mark Cederborg waived any right he had to attorney fees with respect to the Wong estate. Although appellant attempted to obtain a similar waiver from Bresler, Bresler declined to provide one.*fn1

In her amended final report, appellant reiterated that she was entitled to "total statutory compensation of $96,478.01" for her work as executor, and that the executor's attorneys were also entitled to a statutory fee in that same amount. Appellant also made a representation to the court that she and her present counsel waived their statutory compensation and she requested authorization to pay Mr. Gale $8,000 as compensation for his services. Appellant amended her prior final report by admitting that Bresler and Lee had "not waived their claim for attorneys fees and have not entered into an agreement with present counsel to share fees." Therefore, appellant stated that she was filing a petition "herewith requesting the court to determine the amount, if any, to be paid to Bresler . . . ."

Appellant did not actually file a petition regarding Bresler's claim for attorney fees. She did, however, file a declaration which addressed this subject. Therein, appellant stated that Bresler's law partner, Faye Lee, told her that the attorney fees that would be charged for probating the Wong estate would be "no more than $5000," and that neither Lee nor Bresler had ever asked her to execute a written attorney services agreement. In her declaration, appellant also stated that she had been dissatisfied with the Bresler firm's work because "they took too long to prepare . . . documents and made an unreasonable number of mistakes." Therefore, she met with Bresler and Lee in December 2005 and asked them to withdraw from this case.*fn2

On December 2, 2010, appellant filed a memorandum of points and authorities in which she argued that Bresler was not entitled to any attorney fees in this case because he violated Business and Professions Code section 6148 by failing to secure a written attorney services agreement. Appellant reasoned that the alleged violation gave her the option to void her contact with Bresler and, under principles of rescission, Bresler was never formally employed as the attorney for the executor. Appellant also argued that Bresler failed to make a timely claim for quantum meruit relief.

C. Petition for Apportionment of Attorney Fees

On December 6, 2010, Bresler filed a petition for apportionment of attorney fees, pursuant to Probate Code section 10810 et seq. In support of his fee request, Bresler documented attorney work performed for appellant individually, and for appellant as executor of the Wong estate. As to the second category, Bresler further divided the work of his firm into "statutory probate work" and "extraordinary" services. Bresler requested that the court award him 75 percent of the statutory attorney fees, plus extraordinary fees. In support of this request, Bresler alleged, among other things, that he had completed preparing almost all of the final petition when appellant discharged him in September 2005 and that he incurred extraordinary fees defending against appellant's wrongful attempt to preclude him from recovering his statutory compensation.

A hearing on the petition to apportion fees was conducted on December 21, 2010, before the Honorable Mary E. Wiss. On February 9, 2011, the court filed an order settling the amended final report (the February 2011 order). The court found, among other things that "Bresler and Lee are entitled to $72,358.51 in statutory fees and reimbursement for costs in the amount of $10,134.95, and are not entitled to extraordinary fees." The court ordered appellant to pay those amounts to Bresler and Lee and also authorized ...

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