Filed 5/26/16 Sheen v. Sheen CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

CHARLES SHEEN et al.,

Plaintiffs and Appellants,

v.
ANTHONY SHEEN, JR. as Trustee etc.,

NEIL GIELEGHAM et al.,
Objectors and Respondents. B263952
(Los Angeles County Super. Ct. No. BP092979)

APPEAL from an order of the Superior Court of Los Angeles County.
Daniel S. Mur phy, Judge. Affirmed.
Evan D. Marshall for P laintiffs and Appellants. Gieleghem Law Office and Neil Gieleghem for Objector and Respondent Neil Gieleghem. Law Offices of Gregory A. Cole and Gregory A. Cole for Objector and Respondent Gregory A. Cole.

____________________________________2

We affirm a probate court order granting a motion to tax the entirety of $2,640.24
in claimed fees and costs incurred on a prior appeal on the ground that the claimed costs were sought from persons whom were not liab le for such costs.
FACTS Background We have entertained multiple previous appellate court proceedings arising from the probate litigation giving rise to the current appeal. We summarized the facts of the protracted litigation in a prior appeal ( Sheen v. Sheen (July 1, 2014, B243847) [nonpub. opn.]) (hereafter Sheen Trust I )), and see no need to re state that long history for the instant appeal. It is sufficient for present purposes to recall that a subset of the beneficiaries under a living trust
, Charle s Sheen, Derek Hersha, and Deryl Gaylor ( collectively Sheen)
, have long been seek ing an award for attorney’s fees based on the equity

- based “common fund doctrine.” Sheen claim s that litigation which he initiated
resulted in a judgment recovering the bulk of the trust’s assets from a wrongdoer, thereby creating a common fund benefit ting all of the trust’s beneficiaries, which justif ies an award of attorney’s fees in Sheen’s favor (and, thus, in favor of Sheen’s attorneys ultimately), to be surcharged agains t the trust’s assets. In an opinion issued roughly two years ago, we r eversed a probate court order
den ying any award of attorney’s fees surcharged against the trust’s assets , based largely

on evidentiary

- procedural grounds . (See Sheen Trust I, supra
, t yped opn. at p. 17 .)
In the same opinion , we declined to addr ess Sheen’s claim that attorney’s fees surcharge d against the trust ’s asset s , to the extent such fees were ultimately was awarded
, would have a “seniority lien” over an y other “ claim ” against th e trust ’s assets

. ( Ibid .)
The only other “ claim ” against the trust ’s assets that is involved in th is pro bate litigation is not tr uly in the form of any pending claim against th ose assets . Rather, two attorneys who previously represented the trust ee , Ne il Gieleghem and Gregory Cole
, have already been paid money or assets from the trust ’s assets for attorney’s fees billed to
the trust ee

. Sheen wants those fees paid back , replacing monies in to the trust ’s assets

.3

To that end, Sheen seek s a “ surcharge ” or der against the trust ’s assets that will actually
take the form of , or otherwise include, a judgment imposing a constructive trust over attorneys Gielegh e m and Cole, thus essentially compelling them to return the fees they previously received back in t o the trust ’s assets . The two attorneys would then have to g et in line behind Sheen, who would take his common fund doctrine attorney’s fees first.
The Instant Costs Dispute
In October 2014, shortly after the issuance of the remittitur in Sheen Trust I , Shee n filed a memorandum of costs on appeal seeking $2,640.23
, to be paid by the prior trustee of the trust, and by attorneys Gieleghem and Cole as well , apparently in some manner of joint and several responsibility order. In November 2014, attorney Gieleghem
, asserting
he was a “specially appearing non

- party , ” filed a motion to tax the costs claimed in Sheen’s memorandum of costs. Attorney Cole filed a joinder in attorney Gieleghem’s
motion.
On Ma rch 3, 2015 , the parties argued the costs issues to the pro bate court, and the court took the matter under submission. On March 12, 2015, the court entered a seven

page order granting attorney Gieleghem’s motion to tax costs on appeal, including the joinder by attorney Cole. The court’s order found the costs sta ted in Sheen’s memorandum of costs on appeal were reasonable, but explain ed that an award for costs incurred on appeal could not be ordered to be paid by attorneys Gieleghem and Col e because they were not actual ly parties to the probate litigation, and She en had not present ed a persuasive argument in support of the proposition that costs could be ordered to be paid by a person who, for purposes of a cost award, was not a party to a probate
action. The court’s order concludes: “Attorneys for former trustee , Neil Gieleghem and Gregory Cole
, are not personally liable for [Sheen]’s costs on appeal.” Sheen filed a timely notice of appeal from the order entered on March 12, 2014.
DISCUSSION Before turning to the costs order that is at issue in the instant a ppeal, we digress for a moment to note that the probate court has issued an order on Sheen’s overriding4

claim that attorney’s fee under the common fund doctrine should be surcharged against
the trust ’s assets , and , further, that the fees should have a seni ority lien in front of the fees already paid to attorneys Gieleghem and Cole. In other words, the probate court has
issued a ruling on whether to impose a judgment for constructive trust over Gieleghem and Cole to compel them to repay monies into the trus t ’s assets . That ruling is now the subject of an appeal filed by Sheen that is pending in our court. (Case No . B268762.)
In short, the major issue raised by Sheen in the probate litigation, namely, whether or not the probate court may issue orders that would have the effect of compelling attorneys Gieleghem and Cole to put monies back into the trust ’s assets is pending in our court.
As to Sheen’s instant appeal, which might be viewed on some level as raising the issue of whether or not the probate cour t may issue orders that have the practical effect of compelling attorneys Gieleghem and Cole to p ay monies into the trust ’s assets, we find
th at Sheen has failed to show any error in the probate court’s order as to the costs claimed for the appeal in Sheen I

. Probate Code section 1002 provides:

“Unless it is otherwise provided by [the Probate Code] or by rules adopted by the Judicial Council, either the superior court or the court on appeal may, in its discretion, order costs to be paid by any party to the proceedings , or out of the assets of the estate, as justice may require.”

We have read nothing in Sheen’s briefs on appeal which persuades us that the trial court erred in ruling that attorneys Gieleghem and Cole do not fit within the definition of
a “ party ” to the ongoing probate proceedings for purposes of issuing an award for costs in
Sheen I pursuant to Probate Code section 1002. On appeal, as he did below, Sheen offers extensive arguments asserting the proposition that the probate court has “ju risdiction” over attorneys Gieleghem and Cole, i.e., the court has power to issue orders affecting the two attorneys . Sheen’s point, essentially, is that the court has jurisdiction over the two attorneys because they acted as lawyers of record in the prob ate proceedings at one point.5

Sheen’s arguments do not persuade us to reverse the costs order. While it is correct that

a trial court generally ha s “ jurisdiction ” over the attorneys who appear before the court, for example, a court may sanction a lawyer for misconduct as provided in the law, this
does not necessarily means that the attorney thereby is a “party” to the action in which he represents a party, for purposes of Probate Code section 1002.
In concluding that Sheen has failed to persuade us that there is error in the costs
order at issue in his instant appeal, we stress that no thing in this opinion should be
construed by any body , whether or not fitting the label of party, nonparty, attorney,
former attorney, or anything else, as having any releva nce on the issues in volved in Sheen’s pending appeal in case N o. B268762. In short, we stress that nothing in this opinion, in any measure , has addresse d the issue of whether a probate court has the authority to impose a constructive trust over a trust ee ’ s former attorney to compel th at attorney to repay attorney’s fees back into the trust ’s assets. That issue will be addressed
in case No

. B268762.
DISPOSITION The probate court’s order is affirmed. Attorney Gieleghem’s motion to augment
the record on a ppeal is denied. Each party to bear its own costs on appeal.

BIGELOW, P.J.
We concur:

RUBIN, J.

GRIMES, J.