Filed 2/25/22 Conservatorship and Estate of Bower CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Conservatorship of the Person and Estate of 

DAVID BOWER.

ANDREA BOWER,

 Petitioner and Appellant,

v.

LYNN BOWER,

 Objector and Respondent.

 G059112, G059568

 

 (Super. Ct. No. 30-2011-00471248)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Jacki C. 

Brown, Judge. Affirmed in part and dismissed in part.

Law Office of Alan S. Yockelson and Alan S. Yockelson for Petitioner and 

Appellant.

Thompson & Colegate, Susan Knock Beck and Laura A. Zamora for 

Objector and Respondent.
2

INTRODUCTION

Andrea Bower, the former conservator for her late brother David Bower, 

has appealed from two postjudgment orders awarding David’s widow, Lynn Bower, 

attorney fees and costs incurred during the litigation of Andrea’s accountings for the 

third, fourth, and fifth periods of her conservatorship. The probate court previously 

entered two judgments – one on Andrea’s amended third accounting and the other on her 

fourth and fifth (and final) accountings – that found much to be desired in the way 

Andrea had conducted herself as David’s conservator. Andrea appealed from both 

judgments, and we issued our consolidated opinion on January 21, 2022.

1

 

Before the appeals on the two judgments had been decided, Lynn made two 

motions for attorney fees in the probate court: one for the attorney fees and costs incurred 

in objecting to Andrea’s fourth and fifth accountings, and the other for fees and costs 

incurred in retrying the third accounting. In both cases, the court had ordered Andrea to 

pay these expenses as part of the judgments, the amounts to be determined later. In both 

cases, the order rested on a finding of Andrea’s bad faith. 

The court held hearings on the fee amounts and awarded Lynn $113,959 for 

the fourth and fifth accountings and $125,392 for the trial of the amended third 

accounting. Andrea has appealed from both awards, and we have consolidated the two 

appeals for decision.

We dismiss the appeal from the order granting attorney fees relating to the 

fourth and fifth accountings, case No. G059112. Andrea’s sole issue with respect to that 

order was the court’s authority to hear and decide a motion for attorney fees while the 

appeal on the judgment from the fourth and fifth accounting was pending. The appeal is 

no longer pending, and we affirmed the basis for the attorney fee award – the court’s 

1

Conservatorship of Bower (Jan. 21, 2022, G058209 & G058808) [nonpub. opn.].
3

finding that Andrea acted without reasonable cause and in bad faith. The appeal of the 

attorney fee order for the fourth and fifth accountings is now moot. 

We affirm the order granting attorney fees incurred in the retrial of the 

amended third accounting, case No. G059568. Andrea’s argument that the court could 

not hear the motion while the appeal from the judgment was pending has been rendered 

moot by the issuance of the opinion on the amended third accounting. She has raised two 

additional issues in the appeal from this order. First, she disputes the basis of the fee 

award for the retrial. But the basis for awarding fees was part of the judgment on the 

amended third accounting, and Andrea failed to raise this issue as part of the appeal from 

that judgment. She cannot raise it now. Second, she contends that the court erred in 

awarding fees for clerical activities at attorney rates. She did not provide this court with 

an adequate record for review, so the issue is waived.

FACTS

A detailed account of the facts underlying these two appeals can be found 

in the opinion regarding Andrea’s three accountings issued on January 21, 2022. Briefly, 

Andrea submitted an accounting for the third conservatorship period (November 2014 

through December 2015) that the probate court substantially rejected. Pursuant to the 

court’s order, the third accounting was subsequently retried, after the court had tried 

Andrea’s fourth and fifth (and final) accountings and entered a judgment on them. 

Andrea appealed from the judgment on the fourth and fifth accountings and then from the 

subsequent judgment on the amended third accounting. We largely upheld the probate 

court on both judgments.

One of the findings in the statement of decision after trial of the amended 

third accounting was that Andrea had acted in bad faith in failing to comply with the 

court’s order following the original trial of the third accounting. Consequently, Andrea 

had to pay Lynn’s attorney fees for the retrial. The judgment on the amended third 

accounting included this order. 
4

The judgment on the fourth and fifth accountings also included an order to 

pay Lynn’s attorney fees. The court found that Andrea’s opposition to Lynn’s objections 

to these accountings was without reasonable cause and in bad faith, a condition of fee 

awards under Probate Code sections 2622.5, 11003 and 17211.2 The amounts of these 

fees were to be determined after separate hearings. 

The hearing on the amount of fees for the fourth and fifth accountings took 

place on February 26, 2020. The court awarded Lynn $113,959 in fees and costs for 

litigating these accountings. 

The hearing on the amount of fees for the trial of the amended third 

accounting took place on July 10, 2020. The court awarded Lynn $125,392 in fees and 

costs for the amounts incurred in retrying the third accounting. 

Andrea has separately appealed from both attorney fee orders. We have 

consolidated the cases for decision, and the parties have waived oral argument.

DISCUSSION

I. Jurisdiction

The issue common to both appeals is the probate court’s authority to rule 

on Lynn’s motions for attorney fees while the appeals from the two judgments on the 

third, fourth, and fifth accountings were pending. This is Andrea’s sole issue with

respect to the order granting fees for the fourth and fifth accountings. It is one of three 

issues in the appeal from the order awarding fees on the amended third accounting. 

2

All further statutory references are to the Probate Code unless otherwise indicated.

Section 2622.5, subdivision (b), provides, “If the court determines that the

opposition to the objections was without reasonable cause and in bad faith, the court may award the objector the 

costs of the objector and other expenses and costs of litigation, including attorney’s fees, incurred to contest the 

account. The amount awarded is a charge against the compensation of the guardian or conservator, and the guardian 

or conservator is liable personally and on the bond, if any, for any amount that remains unsatisfied.”

Section 11003, subdivision (b), provides, “If the court determines that the opposition to the contest

was without reasonable cause and in bad faith, the court may award the contestant the costs of the contestant and 

other expenses and costs of litigation, including attorney’s fees, incurred to contest the account. The amount 

awarded is a charge against the compensation or other interest of the personal representative in the estate and the 

personal representative is liable personally and on the bond, if any, for any amount that remains unsatisfied.” 
5

Relying on section 1310, subdivision (a), Andrea claims that filing a notice 

of appeal effected a stay such that the probate court could not rule on attorney fees before 

the appeals from the judgments were concluded. The court ruled that it could. 

Section 1310 subdivision (a), provides, “Except as provided in subdivisions 

(b), (c), (d), and (e), an appeal pursuant to Chapter 1 (commencing with Section 1300) 

stays the operation and effect of the judgment or order.” None of the four subdivisions

referred to in subdivision (a) applies. 

The parties have not directed us to any cases specifically addressing 

whether the stay of section 1310 applies to postjudgment attorney fee orders, and we 

have found none. From the statutory language, however, it appears that the stay of 

section 1310 applies only to the orders referred to in Chapter 1, commencing with section 

1300. The orders appealable under section 1300 include settling an account of a 

fiduciary, approving or confirming the acts of a fiduciary, directing payment of a cost, 

fixing the compensation or expenses of an attorney, fixing of the compensation of 

expenses of a fiduciary, and surcharging a fiduciary. Sections 1301, 1301.5, 1302, 

1302.5, 1303, and 1304, the other sections in Chapter 1, refer to orders affecting a 

guardianship, a conservatorship, a decedent’s estate, a power of attorney, and a trust. 

None of these sections includes a postjudgment award of attorney fees as an appealable 

order. It does not appear to us that the stay of section 1310 applies to such an award.3

We need not decide this question, however, because, with the issuance of 

our opinion regarding the judgments on the underlying accountings, the issue has become 

moot. Even if Andrea is correct, “an action which originally was based upon a justiciable 

controversy cannot be maintained on appeal if the questions raised therein have become 

3

The stay of an ordinary civil appeal, as provided under Code of Civil Procedure section 916, 

definitely does not stay a postjudgment award of attorney fees. (See Korchemny v. Piterman (2021) 68 Cal.App.5th 

1032; Bankes v. Lucas (1992) 9 Cal.App.4th 365, 368,superseded by statute on other grounds; Nazemi v. Tseng

(1992) 5 Cal.App.4th 1633, 1639, superseded by statute on other grounds; Silver v. Gold (1989) 211 Cal.App.3d 17, 

26; Hoover Community Hotel Development Corp. v. Thomson (1985) 168 Cal.App.3d 485, 487 [attorney fees 

incidental to merits of matter on appeal]; In re Marriage of Sherman (1984) 162 Cal.App.3d 1132, 1140.) 
6

moot by subsequent acts or events.” (Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 

1, 10.)

In this case, we can render no effectual relief to Andrea on her appeal from 

the attorney fee order relating to the fourth and fifth accountings, now that the decision 

on the appeal from the underlying judgment is final. We upheld the grounds for 

awarding the fees – Andrea’s lack of reasonable cause and her bad faith in opposing 

Lynn’s objections. The most we could do with respect to this order, even if Andrea is 

correct, is to return the order to the probate court to be reissued – a pointless exercise. 

With respect to the attorney fee award relating to the amended third 

accounting, the probate court’s lack of authority to hear and decide the motion was one of 

three issues on appeal. Subsequent events have mooted this issue as well. We now turn 

to the other two.

II. Attorney Fees for Amended Third Accounting

Andrea has identified two issues relating solely to the probate court’s 

attorney fee award for the amended third accounting. First, she argues that the court 

abused its discretion in awarding fees under section 2622.5, subdivision (b), because it 

did not make a finding of lack of reasonable cause in addition one of bad faith. Both, she 

maintains, are required to support an award of fees. Second, Andrea disputes charges for 

activities such as calendaring and preparing proofs of service at the attorney rate of $300 

per hour. 

We cannot review the first issue as part of this appeal because the ruling

that Andrea was liable to Lynn for these attorney fees was part of the court’s judgment on 

the amended third accounting. Andrea did not dispute the basis for the fee award when 

she appealed from that judgment, which appeal has now been decided. She therefore

cannot raise this issue in a subsequent appeal. “‘[T]the issues raised by the appeal from 

the order [on attorney fees] must be different from those arising from an appeal from the 

judgment. [Citation.] “The reason for this general rule is that to allow the appeal from 
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[an order raising the same issues as those raised by the judgment] would have the effect 

of allowing two appeals from the same ruling[.]” [Citation.]’ [Citations.]” (P R Burke 

Corp. v. Victor Valley Wastewater Reclamation Authority (2002) 98 Cal.App.4th 1047, 

1053; see also Hersey v. Vopava (2019) 38 Cal.App.5th 792, 797 [appeal from 

postjudgment order does not reopen time to appeal from underlying judgment].) 

The only issue before the probate court on Lynn’s fee motion was how 

much to award, not whether she was entitled to fees. The amount of the fees is thus the 

only issue we can review as part of an appeal from the postjudgment order.

Andrea’s appeal from the judgment on the amended third accounting did 

not include any issue with respect to the grounds for awarding Lynn her attorney fees for 

the retrial or with respect to the failure of the court to make a finding of lack of 

reasonable cause.4 She cannot obtain review of this issue in a subsequent appeal.

As to the second issue, there is a problem with the record. Andrea’s 

original opposition to Lynn’s fee motion exceeded the page limits allowed by California 

Rules of Court, rule 3.113(d) by quite a bit. Lynn protested regarding the length and, in 

accordance with the court’s ruling on that objection, Andrea revised the opposition to 

comply with page limitations. The court took note of the rule violation, but agreed to 

consider the revised opposition.5 

The appellant’s appendix does not include the revised opposition, only the 

over-long one. We therefore have no written record of what the court had before it when 

it ruled on Andrea’s objections and, more importantly, nothing in writing to tell us what 

objections were placed before the probate court at the hearing.

4

Lynn’s request for judicial notice of Andrea’s opening brief on appeal from the judgment on the 

amended third accounting is granted. We have also taken judicial notice of our opinion of January 21, 2022.

5

The register of actions records an opposition filed by Andrea on June 18, 2020, which is the date 

of the opposition in the appellant’s appendix. Another opposition, presumably the one considered by the court, was 

filed on June 22. The second opposition is not in the appellant’s appendix.
8

The reporter’s transcript of the hearing reflects a few of Andrea’s 

objections to billing at attorney rates for secretarial or paralegal tasks and taking too long 

to do them.6 “[T]here is no reason why those people [i.e., secretaries and paralegals] 

can’t do things like filing a proof of service, scanning documents, copying documents 

onto a flash drive, exchanging an e-mail with a court reporter, driving to the courthouse 

to pick up an order. . . . [¶] . . . There’s no reason to bill 12 minutes at $300 an hour to 

press a couple [of] keys; the same with reviewing a notice of change of address.” 

The court’s written ruling does not specifically discuss billing secretarial 

tasks at attorney rates. Instead, the court refers to “56 separate instances in which the 

amount or type of service is contested,” presumably in the revised opposition that is not 

part of the record.7 The court characterized the basis of disputing each objectionable item 

as “merely that [Andrea’s] counsel would not have either performed that service or taken 

that amount of time to do it.” 

It is possible that what the court meant by “counsel would not have 

performed that service” is that a secretary or paralegal would have done it instead. It is 

also possible, however, that the court meant the service would not have been performed 

at all. Because we do not have the opposition that the court reviewed with the “56 

separate instances,” we cannot tell what the court meant.8 

Andrea’s opening brief is similarly unhelpful. She argues that “[m]ost of 

the challenged time entries include clerical work” and cites to pages in the opposition that 

the probate court did not consider. Because we do not have the opposition that the court 

was looking at when it made its ruling, we have no way to corroborate this statement.

6

The record initially did not include a reporter’s transcript of the hearing because counsel had 

entered the wrong hearing date on the notice designating the record on appeal. We permitted Andrea to file the 

transcript of the hearing after briefing was completed. 

7

As the court stated, it was Andrea’s burden to show “with specificity each item that is not justified

for payment, with individualized argument and citations to the evidence in support of that argument.” 

8

The court disallowed .7 hours for “travel to the courthouse,” indicating that it had scrutinized the 

bills for tasks that did not require an attorney. This was the only time entry disallowed on that ground.
9

The appellant is responsible for presenting our court with a complete record 

for our review. “It is the burden of the party challenging the fee award on appeal to 

provide an adequate record to assess error. [Citations.] . . . Because they failed to furnish 

an adequate record of the attorney fee proceedings, defendants’ claim must be resolved 

against them.” (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.) 

DISPOSITION

The appeal from the attorney fee order for the fourth and fifth accountings, 

case No. G059112, is dismissed as moot. The attorney fee order for the amended third 

accounting, case No. G059568, is affirmed. Respondent’s request for judicial notice is 

granted. Respondent is to recover her costs on appeal.

BEDSWORTH, ACTING P. J.

WE CONCUR:

FYBEL, J.

GOETHALS, J.