SAN FRANCISCO — California's First District Court of Appeal recently decided to uphold the Marin County Superior Court's decision to not award attorney's fees but also decided against not awarding costs in Patricia
Davis Daneman Amster vs. Frank I. Mulberg, as trustee, etc.
In its April 17 decision, the appeals court said that "Frank I. Mulberg served as trustee for a trust with a single beneficiary, Patricia Davis Daneman Amster." The appeals court said that the two initially had a good relationship, but it didn't last, with both filing complaints with the probate court about Mulberg’s compensation.
"Following a trial, the probate court issued a statement of decision finding Mulberg breached his fiduciary duties, approving a trustee’s fee of $227,897.59, and surcharging Mulberg for excess fees totaling $267,222.16," the court said in its decision. "The court subsequently denied Amster’s motion for attorney fees and costs... and also granted Mulberg’s motion to tax costs."
In November 2009, Arlene T. Davis allegedly executed the Patricia Davis Daneman Amster 2009 Irrevocable Trust, of which Amster, Davis' daughter, would be the only beneficiary. The appeals court said that after Davis' death in September 2011, Amster appointed Mulberg as trustee. Before he was appointed, Mulberg had acted as Amster’s personal counsel. The court later found Amster was a demanding beneficiary.
In January 2014, Amster filed a complaint, alleging that Mulberg refused to respond to her information requests or resign as trustee. The appeals court said that Mulberg also filed a complaint "for approval of the trust accounting, requesting approval of the settlement of the trust accounts and for instructions with respect to issues raised by Amster."
Marin County Superior Court ruled on Sept. 10, 2015 that Mulberg could collect a portion of the money he was after, but how much he could get was determined by the court's "local rules."
The appeals court said Amster requested "attorney fees and costs."
The appeals court decided to uphold the superior court's decision not to award attorney's fees because "there was overwhelming evidence Mulberg’s opposition to Amster’s contest was brought in good faith and with reasonable cause."
The appeals court sided with Amster on the issue of costs.
"Amster next asserts the probate court erred in denying her motion for costs and granting Mulberg’s motion to tax costs," the court said in its ruling. "We agree the trial court abused its discretion."
The appeals court remanded the case to the trial court.