In the Matter of the Jerry W. McKibben and Karen V. Tallent Revocable Living Trust

In the Matter of the Jerry W. McKibben and Karen V. Tallent Revocable Living Trust dated June 23, 2010, 15PR-0352

Hearing: Motion for Attorney Fees

Date: September 2, 2026

On June 23, 2010, spouses Jerry McKibben (Decedent) and Karen Tallent (Respondent) created the Jerry W. McKibben and Karen V. Tallent Revocable Living Trust (the Trust). Decedent passed away on October 13, 2014, leaving Respondent as the sole trustee. On November 22, 2016, Decedent’s son, Keith McKibben (Petitioner), filed a petition under Probate Code section 17200 seeking Respondent’s removal as trustee for various alleged breaches of trust.

Phase I of the trial began on March 18, 2021, and the Court issued its “Ruling on Phase I of Trial,” on May 9, 2021 (Phase I Ruling). Phase II of the trial occurred in June and July 2024. The Court issued an Amended Statement of Decision on September 18, 2025, and judgment was entered on November 17, 2025. On January 30, 2026, Respondent filed an appeal.

Currently on calendar is Petitioner’s Motion for Attorney’s Fees (Motion). Petitioner seeks an award of $3,130,747 consisting of a $2,087,165 lodestar amount (comprised of approximately 4,673 hours of attorney time, 1,482 hours of paralegal time, and 548 hours of legal secretary time) at prevailing hourly rates in San Luis Obispo County times a 1.5 multiplier.

Respondent opposes the amount of fees requested arguing they are excessive and unreasonable and should be adjusted down based on the novelty and difficulty of the questions involved, the skill displayed in presenting them, the extent to which the nature of the litigation precluded other employment by the attorneys, and the contingent nature of the fee award. (Opposition, p. 2, ln. 25-p. 3, ln. 10.)

In calculating an attorney fee award, the Court multiplies the number of hours reasonably expended by the reasonable hourly rate prevailing in the community for similar work. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1134.) The party seeking fees bears the burden of establishing entitlement to an award and documenting the reasonable hours and billing rate. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320.) “The evidence should allow the court to consider whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended.” (Id.) Inefficient or duplicative efforts will not be compensated. (Id. at pp. 1315, 1324 [fee award reduced where “much of the work done by the different lawyers was duplicative and unnecessary”].)

1. Reasonable Hourly Rate

Petitioner’s counsel is based in San Luis Obispo County and asserts the proposed hourly rates are reasonable in the legal market where the action is filed. (Rey v. Madera Unified School Dist. (2012) 203 Cal.App.4th 1223, 1241; Nichols v. City of Taft (2007) 155 Cal.App.4th 1233.) In determining

reasonable hourly rates “the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009), the difficulty or complexity of the litigation to which that skill was applied (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 700) . . . and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases. (Heritage, at p. 1009.)” (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 437.)

The Court is aware of prevailing rates for local attorneys of similar experience doing similar work as Petitioner’s counsel and finds the proposed billing rates of $385 per hour for attorney work, $150 per hour for paralegal work, and $120 per hour for legal secretary work within the reasonable range of rates prevailing in the community for similar work.

2. Contingent Fee Agreement and Multiplier

Respondent argues that “[s]ince Petitioner’s counsel assumed the risk of nonpayment by entering into a contingency fee arrangement, there should be no adjustment to the lodestar amount based on additional risk to Petitioner’s counsel.” (Opposition, p. 4, lns. 13-15.) Relevant law holds otherwise.

A contingent fee contract does not preclude a party from an award of reasonable statutory attorney fees. (Aetna Life & Casualty Co. v. City of Los Angeles (1985) 170 Cal.App.3d 865, 881.) Attorney’s fees are commonly enhanced based on the contingent risk factor because it compensates the lawyer not only for the legal services rendered but for loaning those services knowing they may not be compensated. Competent counsel may be reluctant to work on a contingent basis absent increased payment for taking on risk. (Cates v. Chiang (2013) 213 Cal.App.4th 791, 823.)

Petitioner’s counsel litigated the case for more than eight years on a contingent/deferred payment basis. (Bailey Dec., ¶¶ 2, 13.) As stated above, the billing rates are reasonable for the work performed. Counsel actively litigated the action and Respondent engaged in conduct that prolonged and complicated the litigation such as failing to provide annual accountings and failing to transfer trust assets in compliance with the Court’s Phase I Ruling. (Amended Statement of Decision, p. 9, ¶¶ 6, 7.) Respondent was represented by five different law firms or attorneys during the pendency of the case, each such change requiring new counsel to come up to speed and requiring Petitioner’s counsel to repeatedly address new arguments or redo meet-and-confers. (Bailey Dec., ¶ 3.)

An upward multiplier is warranted given these factors. The Court finds that a 1.5 multiplier is reasonable.

3. Other Factors and Multiplier

Respondent argues that other factors, specifically novelty and difficulty of the case, the skill displayed by counsel, and the extent to which the case prevented counsel from taking on other employment, do not support a multiplier. (Opposition, p. 3, ln. 14-p. 4, ln. 7.) The Court disagrees.

The case involved the contested interpretation of trust documents and application of trust law. The trust estate included multiple parcels of real property and other assets, some of which Respondent disposed of, which the Court found in violation of her fiduciary duties. The Court determined that assets were misclassified as separate property, Respondent did not provide annual accountings and comingled trust asset with her personal property. This was not just a simple “breach of fiduciary duty and mismanagement of trust assets” case as Respondent suggests.

Respondent argues Petitioner’s attorney “belabored the case horribly in every respect. He refused to work in good faith with my attorneys (frankly, his obnoxious behavior is in my view the reasons many of my former attorneys exited the case).” (Opposition, p. 3, lns. 25-28). She offers no evidence to support the argument, and it is not conceivable that five attorneys or legal firms withdrew from representation due to opposing counsel’s behavior. The Court witnessed the conduct of the parties and counsel throughout the litigation and finds no basis for Respondent’s claim.

Petitioner’s presentation of the number of hours his counsel’s firm devoted to the case provides some evidence that counsel was prevented from taking other employment. (Bailey Dec., ¶ 17.)

4. Reasonable Number of Hours

The party seeking fees bears the burden of documenting the reasonable hours or lodestar amount. (Christian Research Institute v. Alnor, supra, 165 Cal.App.4th at 1320.) “The evidence should allow the court to consider whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended.” (Id.) Petitioner submits counsel’s heavily redacted billing statements as evidence satisfying this requirement. (Bailey Dec., ¶ 10; Ex. A.) Because of the redactions the billing records do not allow the court to consider whether the case was overstaffed, how much time the attorneys spent on particular claims and whether the hours were reasonably expended. (See, e.g., Ellis v. Toshiba America Information Systems, Inc. (2018) 218 Cal.App.4th 853, 881.)

While billing entries or portions of invoices that describe confidential communications or work performed for a client are protected by the attorney-client privilege (County of Los Angeles Board of Supervisors v. Superior Court (2017) 12 Cal.App.5th 1264, 1274–75), this does not relieve Petitioner’s burden to document reasonable fees incurred.

With regard to attorney work-product, absolute protection applies only to writings that reflect “an attorney’s impressions, conclusions, opinions, or legal research or theories.” (Coito v. Superior Court (2012) 54 Cal.4th 480, 485 (Coito); Code Civ. Proc. § 2018.030, subd. (a).) All other work product receives qualified protection and can be discovered upon a court finding the denial of discovery will unfairly prejudice the opposing party. (Code Civ. Proc., § 2018.030, subd. (b).) Whether documents constitute work product is determined on a case-by-case basis. (Coito, supra, 54 Cal.4th at p. 488.)

Many redactions make it impossible to tell what the attorney or paralegal were working on. The Court cannot, therefore, dismiss the possibility of overstaffing and duplication of work. There are

an inordinate number of entries involving communication between attorneys, inside and outside counsel’s firm, and between attorney and paralegal which makes it appear work was duplicated or inefficient.

Further, Petitioner includes in his lodestar calculation 548 billable hours of legal secretary time although there are no legal secretary entries in the billing records and no description of non-clerical work done by the legal secretary. (Bailey Dec., ¶ 10.) There are paralegal billing entries for clerical work despite counsel’s assertion to the contrary. (See, Bailey Dec., ¶ 10; Ex. A, 3/11/19 entries for nearly 3 hours of time “[s]canning in documents into drive, and organizing client files”; 7/3/2019 entry, “[m]ailed Notice of Pendency for Cedarwood property to Kern County Clerk Reporters office.”; 10/17/2019 entry, “[m]ail meet and confer letter.”; 8/3/2020 entry, “[f]iling of notice of supplemental discovery conference statement.”)

“A trial court may not rubber stamp a request for attorney fees, but must determine the number of hours reasonably expended.” (Donahue v. Donahue (2020) 182 Cal.App.4th 259, 271.) Multiple hours spent in correspondence and phone calls between the different law firms representing the parties may be the basis for finding duplication of work. (See, Thayer v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 834, 840–841.) Here, Petitioner is represented by only one law firm whose firm billed a lot of time communicating with one another and outside attorneys. Absent evidence of what they were communicating about, some of the billing entries fail to support reasonable fees.

Despite these shortcomings in Petitioner’s supporting evidence, “California courts do not require detailed time records, and trial courts have discretion to award fees based on declarations of counsel describing the work they have done and the court’s own view of the number of hours reasonably spent.” (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 698–699.)

In addition to reviewing the billing records, the Court presided over much of the litigation and the bifurcated trial and can determine the number of hours reasonably spent. The Court finds the number of attorney hours spent communicating with other attorneys and a paralegal about unspecified topics to be excessive and reduces the number of attorney hours by 500 hours to 4,173 hours. The Court reduces paralegal hours by 100 due to excessive unspecified communications and clerical work and finds there is insufficient support for the legal secretary hours. The Court finds a lodestar of $1,813.905 consisting of 4,173 attorney hours at $385 per hour and 1,382 paralegal hours at $150 per hour to be reasonable.

5. Ruling

The Court awards a total of $2,720,857.50 in attorney’s fees consisting of a lodestar of $1,813.905 enhanced by a 1.5 multiplier.

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