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Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107


Matter of Tondi Nicole Page Trust

Case No: 16PR00304
Hearing Date: Thu Jan 04, 2018 9:00

Nature of Proceedings: Motion for Attorney Fees

In the Matter of the Tondi Nicole Page Trust of 1996, #16PR00304, Judge Sterne


Hearing Date:                January 4, 2018


Matter:                          Motion for Approval of Payment of Attorneys’ Fees and other Costs to Seed Mackall LLP Incurred for the Months of August, September, and October 2017



For Trustee: Alan D. Condren (Seed Mackall)

For Beneficiary/Objector: Andrew H. Covner (Norman Dowler – Ventura)


Tentative Ruling: The court denies trustee Barton E. Clemens, Jr.’s Motion for Approval of Payment of Attorneys’ Fees and other Costs to Seed Mackall LLP Incurred for the Months of August, September, and October 2017. 

Background: Barton E. Clemens, Jr., is the trustee of the irrevocable Tondi Nicole Page Trust of 1996. Ms. Page is the trustor and beneficiary of the trust. On July 13, 2016, Clemens filed a petition under Probate Code § 17200(a) and (b)(5) to pass on his sale of business real estate located at 608-614 Chapala Street in Santa Barbara. The purchaser, Daketta Pacific, was a former client of Clemens’ law practice. Page has maintained the sale of the Chapala property to Daketta Pacific was the result of collusion and was for less than fair market value.


On May 31, 2016, Page filed a civil action (Case No. 16CV02334) against Clemens and his law firm Seed Mackall LLP alleging breach of contract, negligence, breach of fiduciary duties (attorneys), breach of fiduciary duties (trustee), and fraud. On October 13, 2016, the court dismissed that action without prejudice to Page refiling her claims in probate court. On December 29, 2016, Page filed her petition for breach of trust by Clemens; breach of fiduciary duty by Clemens as attorney, legal malpractice by Clemens and Seed Mackall; fraud by intentional concealment; and termination of the trust.


On August 17, 2017, the court considered the issue of Clemens’ payment of pendente lite attorney fees to Seed Mackall. The court ordered: “Past attorney fees paid by the Trust on behalf of Mr. Clemens to Seed, Mackall need not be refunded at this time, but will await a determination of their propriety for payment in the final disposition of this matter. Going forward, payment of fees by the trust to the Seed, Mackall firm on behalf of Mr. Clemmons will be reviewed quarterly; this review will determine if the fees may be paid in advance of the final disposition of this matter. Any such payment will, however, be subject to a final determination of their ultimate approval or requirement for reimbursement of the trust in the final disposition of the litigation.”


At the hearing, counsel for Page discussed previous payment of fees incurred as of the end of March 2017, in the amount of $29,000. [8/17/17 Hearing Transcript (“Tr.”) 7:9-8:1] Clemens’ counsel did not respond to that or suggest how much had been paid as of August 17. The court stated that $29,000 is a relatively modest amount and no review of that amount was necessary at that point in time. The court stated those fees “would be dealt with at the end of the litigation in any event.” [Tr. 8:2-7] In the present motion, Clemens reveals that, through July 2017, he paid Seed Mackall $120,384.70 from trust assets.

Trial is now scheduled for May 21, 2018.

Motion: On November 2, 2017, Clemens moved the court for approval of payment of fees to Seed Mackall in the amount of $61,521.14 for legal services in the months of August, September, and October. Clemens has since reduced that request to $55,311.14. The fees requested relate to the prior issue of attorney fees litigated in August and preparation for trial of this matter, including Page’s deposition. The fees are not related to other trust administration matters.


The court has previously considered the decision in Kasperbauer v. Fairfield, 170 Cal.App.4th 785 (2009). There, the court held that attorneys hired by a trustee to aid in administering the trust were entitled to reasonable fees paid from trust assets. “Preparing the accounting and responding to the beneficiaries’ objections to that accounting are aspects of trust administration.” Id. at 235. The court determined that the trial court “did not abuse its discretion in ordering that reasonable attorney fees be paid from trust assets as those fees are incurred.” Id. The court noted that the objecting beneficiaries “may seek reimbursement from [the former trustee] at the conclusion of the case should they prevail on their claim that [the former trustee] breached his fiduciary duty or that his expenditures for Trust administration were excessive.” Id. at 238.


The court is of the view that the present litigation is of a decidedly different character. Preparation of an accounting and dealing with objections to that accounting fall squarely within trust administration. Here, the trustee is defending himself from claims of self-dealing or collusion with a former client. Those allegations, if true, take the matter outside the normal administration of a trust estate.


The court agrees with the “better practice” identified by the California Supreme Court: “[A] trustee has a right to charge the trust for the cost of successfully defending against claims by beneficiaries. The better practice may be for a trustee to seek reimbursement after any litigation with beneficiaries concludes, initially retaining separate counsel with personal funds.” Wells Fargo Bank v. Superior Court, 22 Cal.4th 201, 21 n4 (2000)


Seed Mackall has been paid over $120,000. The court will not require disgorgement of that amount or a motion to approve it at this time. However, propriety of that compensaiton, and further compensation, if any, shall wait until conclusion of the litigation. There is no question that there are sufficient assets in the trust estate to reimburse the trustee if he is successful in defending against the beneficiary’s claims.


The court exercises its discretion over the issue of interim litigation fees and denies trustee Barton E. Clemens, Jr.’s Motion for Approval of Payment of Attorneys’ Fees and other Costs to Seed Mackall LLP Incurred for the Months of August, September, and October 2017.

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