Nisttahuz – Trust

The fee motion was denied, in part, because Intervenors failed to show (1) the requested fees had not already been paid and (2) their fee agreement did not address statutory fees. Intervenors were made aware of the need to make those showings in an opinion issued by the Fourth Appellate District, Division Three on October 21, 2025—more than three months before they filed their renewed motion for fees. The relevant portion of that opinion reads: “Interveners fail to show they are entitled to statutory fees under Flannery [v. Prentice (2001) 26 Cal.4th 572] for several reasons . . . Third, Interveners have not shown they satisfy Flannery’s requirements that all fees directly attributable to the financial elder abuse claim have not already been paid and that their fee agreement does not address statutory fees.” (Lombardi v. Meier Law (October 21, 2025, G064289) [nonpub. opn.] at pp. 9-10.)

By their motion for reconsideration, Intervenors attempt to address their failure to make the required showings by belatedly submitting the relevant fee agreements. (Motion at 4:10-12 [“The January 10, 2019 Stafford Law retainer and the March 1, 2021 Reid & Hellyer retainer now fill that evidentiary gap”].) They argue the now-submitted retainer agreements are “new” facts “because they were not part of the record on the renewed motion [for fees] and are now submitted to address the precise evidentiary deficiency identified in the Court’s order”]. (Motion at 4:24-26.)

As set forth above, in order to meet the jurisdictional threshold for a Section 1008 motion, Intervenors must show they could not, with reasonable diligence, have discovered or produced the newly offered evidence at the original hearing. (Craddock, supra, 112 Cal.App.5th 284 at 304.) Intervenors do not make the required showing regarding the newly offered 2019 and 2021 retainer agreements.

Intervenors also argue the motion for reconsideration is supported by a “new” fact, i.e. a retainer agreement between

themselves and Pamela Lund—the current trustee—dated March 31, 2026. Intervenors argue this new retainer agreement transforms their request for fees from an intervenor’s request for fees to a trustee’s request for payment of fees. Intervenors also argue the March 31, 2026 retainer agreement creates a “new” circumstance because it includes a term that the first $100,000 of any fees recovered will be used to reimburse the trust.

The retainer agreement was entered into after the renewed fee motion was filed (02/03/26) but before the reply brief was filed (04/01/26) and the hearing on the motion (04/22/26). Accordingly, it could, with reasonable diligence, have been produced” before the original hearing. The retainer agreement is neither a “new” fact nor creates a “new” circumstance.

In the absence of any new facts, law, or circumstances, the court is without jurisdiction to consider the motion for reconsideration under Section 1008.

However, a court may always reconsider its own ruling, even at a party’s suggestion outside of Section 1008. As explained in Le Francois v. Goel (2005) 35 Cal.4th 1094, 1105: “We cannot prevent a party from communicating the view to a court that it should reconsider a prior ruling (although any such communication should never be ex parte). We agree that it should not matter whether the judge has an unprovoked flash of understanding in the middle of the night or acts in response to a party's suggestion. If a court believes one of its prior interim orders was erroneous, it should be able to correct that error no matter how it came to acquire that belief.” Under that authority, the court reconsiders its prior ruling, taking into account the arguments of the parties on the motion for reconsideration (which was fully briefed).

In its original ruling, the court denied Intervenors’ request for attorneys’ fees based, in part, on a finding that the requested fees were “unreasonably inflated” creating “a special circumstance permitting the trial court to . . . deny [fees] altogether. (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 990 (Chavez).) Intervenors argue Chavez is not available in this case because it addressed an award of discretionary fees while the fees awarded here, on a finding of financial elder abuse, are mandatory.

Welfare & Institutions Code section 15657.5, which governs the award of fees, reads in pertinent part: “Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, in addition to compensatory damages and all other remedies otherwise provided by law, the court shall award to the plaintiff reasonable attorney’s fees and costs.” (Emphasis added.) An

award of fees based on a finding of financial elder abuse is usually mandatory. However, in discussing a mandatory award of fees on a separate statute with similar language (Code of Civ. Proc. § 425.16) the Fourth Appellate District, Division Three explained:

“Because the Legislature specified the prevailing defendant ‘shall be entitled to recover his or her attorney's fees and costs’ (§ 425.16, subd. (c)), an award is usually mandatory. The Legislature, however, did not intend recovery of fees and costs as a windfall. The prevailing party is entitled to a reasonable award; consequently, the trial court need not simply award the sum requested. To the contrary, ascertaining the fee amount is left to the trial court's sound discretion. Trial judges are entrusted with this discretionary determination because they are in the best position to assess the value of the professional services rendered in their courts.

“Inflated fee requests constitute a special circumstance. In emphasizing that a trial court retains the discretion to award attorney fees in an amount that is less than the lodestar amount, the Ketchum court noted, ‘To the extent a trial court is concerned that a particular award is excessive, it has broad discretion to adjust the fee downward or deny an unreasonable fee altogether.’ Specifically, the Ketchum court stated, ‘“A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.’”

“The Serrano IV court explained, ‘“If ... the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked in the first place. To discourage such greed, a severer reaction is needful....’” The Serrano IV court noted in a lengthy citation the numerous means a party may employ to inflate a fee request, justifying denial of fees altogether: ‘See, e.g., . . . Lund v. Affleck (1st Cir. 1978) 587 F.2d 75, 77 [if initial claim is ‘exorbitant’ and time unreasonable, court should ‘refuse the further compensation’]; . . . Farris v. Cox (N.D. Cal. 1981) 508 F.Supp. 222, 227 [time on fee petition denied for

‘overreaching’]; Vocca v. Playboy Hotel of Chicago, Inc. (N.D. Ill. 1981) 518 F.Supp. 900, 901–902 [fee denied in entirety on ground of counsel's dilatoriness and hours claimed for clerical work]; Jordan v. United States Dept. of Justice (D.D.C. 1981) 89 F.RD, 537, 540 [revd. (1982) 223 U.S. App.D.C. 325 [691 F.2d 514]] [fee denied in entirety on ground of unreasonable request and inadequate documentation].)’”

(Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321–1322 (Christian Research), certain citations omitted.)

In support of their argument that mandatory fees may never be denied, even when the requestd fees are inflated, Intervenors cite Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761. Although certain language in Almanor may be interpreted as supporting Intervenors’ position, Almanor does not address the question of whether mandatory fees may be denied when the requesting party has overinflated the amount of fees requested. Rather, it addresses the issue of whether the court can deny fees pursuant to Code of Civil Procedure section 1033(a) when the amount recovered is less than the statutory minimum to be classified as an unlimited civil matter. (Id. at pp. 777-779.) That is not the question here.

The language from Chavez that the court relied on in denying Intervenors’ request for fees (i.e., “A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether”) was first uttered by the California Supreme Court in Serrano v Unruh (1982) 32 Cal.3d 621, 635 (Serrano) and repeated in Ketchum v. Moses (2001) 24 Cal.4th 1122, 1137 (Ketchum) before being quoted in Chavez. While Chavez and Serrano addressed discretionary fee awards, Ketchum—like Christian Research—addressed a mandatory fee award. Based on the language from Ketchum and Christian Research, this court is persuaded that whether the fee award is mandatory or discretionary, the court may deny fees altogether where—as here—the requesting counsel submits an unreasonably inflated fee request.

Accordingly, for the reasons set forth more fully in the court’s May 1, 2026 ruling (e.g., failure to acknowledge amounts already paid, request for fees incurred before the financial elder abuse claim was asserted, failure to apportion the fees, billing errors, and overbilling), the court declines to alter its ruling.

The court finds Intervenors’ motion for fees is unreasonably inflated within the meaning of Serrano, Ketchum, Chavez, and Christian Research and the motion is DENIED.