Conservatorship of Armando Isabel Perez (UPDATED 2/13/24)

Case Number

21PR00508

Case Type

Hearing Date / Time

Wed, 02/14/2024 - 08:30

Nature of Proceedings

First Accounting and Report of General Conservator

Tentative Ruling

Probate Notes:

Discrepancy no. 1 – Transfers between conservatorship cash accounts need not be reported. (See Prob. Code, § 1063, subd. (b).)  For the next accounting, please do not include these entries.

Update for 2/14/24 hearing: Resolved via supplement filed January 30, 2024.

Discrepancy no. 2 – Several expenditures do not have sufficient description to keep them from appearing unusual or questionable.  A supplement to the petition must be filed explaining the following vaguely labeled expenditures, including the nature and purpose of the expenditure in sufficient detail to allow the court to analyze the necessity of the expenditure (Prob. Code, § 1064(a)(2)):

• Lou Emery Handiman - $1,472.81
• All Secure Pro transactions
• All Nail & Spa Solon Transactions
• Mission Security - $43,730 – July 13, 2023
• Jared Phillips - $2,200 – May 9, 2023

Update for 2/14/24 hearing: Resolved via supplement filed January 30, 2024.

Discrepancy no. 3 – Amount spent on groceries and restaurant food is excessive for one person.  Roughly $12,000 was spent on groceries and restaurants during the accounting period, totaling $1,000 month.  Many of those charges appear sufficiently high to reflect multiple people’s meals being paid for.

Consult USDA Food Plans: Cost of Food (http://www.cnpp.usda.gov/usdafoodplanscostoffood.htm )

Update for 2/14/24 hearing: Resolved via supplement filed January 30, 2024.

                                   

Discrepancy no. 4 – Increase in bond request is improperly calculated.  Property on hand at end of account is $314,330.71.  The probable annual gross income now that all back payments from SSI and the tribe have been paid is (roughly) $30,000 per month ($360,000/yr). Together, this equals $674,330.71.  A reasonable amount for the cost of recovery, per CRC, Rule 7.207(b) is $70,919.69. Thus, bond should be $745,250.40.

Update for 2/14/24 hearing: Resolved at prior hearing.

Discrepancy no. 5 –  Overhead costs not reimbursable. Fee requests by Conservator and Attorney for Conservator contain items that violate Local Rule 1732(b), which states:

The following expenses are considered by the court to be a business expense and are not ordinarily reimbursable costs or fees:

Photocopy expenses;

Telephone charges;

Computer research fees;

Clerical services;

Travel to and from court; and

Communication with the probate examiner and/or attorney.

Update for 2/14/24 hearing: Resolved via supplement filed January 30, 2024. It is recommended the Court reduce the cost request by all amounts for postage. (CCP, §1033.5(b)(3).)

Discrepancy no. 6 – Several of the Conservator’s billing entries are overly vague, thus do not provide the Court with sufficient information to determine whether the fee request for those entries are just and reasonable.  Billing entries must be sufficiently descriptive so that the court has enough facts to conclude the work performed was “just and reasonable.”  Thus is usually interpreted to mean that the work performed was necessary, the amount of time to complete the task reflects competence and skill, and the rate charged was within the community standard.

If the description is overly vague, “the reasonableness of the sums allowed by the court and the full nature of each service alleged to have been rendered must be determined from the declarations in the petition and in such inferences as may be drawn from documents in the record of the estate proceeding as reported in the clerk's transcript.” (In re Fulcher's Estate (1965) 234 Cal.App.2d 710, 718.)

Phrases such as ‘court appearances,’ ‘initial investigation, study and preparation,’ ‘determination of complex issues,’ ‘sales of property,’ ‘services in connection with the collection of notes and accounts,’ ‘services in negotiating and completing the settlement of the issues presented by * * * and subsequent services in effectuating,’ ‘extensive preparation in advance of the hearing,’ ‘extensive office consultation, research, interviewing of witnesses, collection of evidence,’ ‘preparation and filing of * * * tax returns * * * including numerous conferences' lend little towards informing of the extent of the extraordinary services performed, without the taking of evidence to substantiate with particularity the actual services, item by item, for which extra compensation is sought.

(Id. at p. 717.)

There were several entries in the Conservator’s billing statements that are objectionably vague.  Some brief examples of the vague entries are provided here, with what follows the / as the immediate questions those entries raise:

• “TC with Sindelar” / What does this mean? What did anyone do? What result was achieved?
• “VM with Mission Security” / Is this just checking a voice mail? Did the Conservator need skill to do that? How is this not clerical?
• “TC with Danilee Liscon” / What does this mean? What did anyone do? What result was achieved?
• “39 incoming emails, 33 from attorneys, 2 property vendors, 1 from conservator, 1 from ranch hand, 2 security company.” / What was in the emails? Did reading them require specialized skill past general clerical work? What, if anything, was accomplished? Is the Conservator benefiting the Conservatee’s estate by fielding all the emails?
• “Zoom meeting with J. Dominguez & C Vasquez” / What did this meeting have to happen? What was discussed? What was accomplished? Did it benefit the estate???
• “Schedule Perez Cardiologist appt”, “Schedule Perez Haircut” “Schedule Perez nail appt.” / Why is someone getting paid $150/her to do clerical/secretarial work?

Compared to the much more detailed description of the work performed by the Conservator’s attorneys, the difference is clear.  Since the Court must divine the information not contained in the billing entries from other information available in the myriad filings in this case and the related cases, the Court would be required to spend valuable resources to hunt down that information. 

If these entries were few and far between, they would be excusable or easily disapproved.  But the Conservator’s entire billing statement is so riddled with these vague entries, that the resulting recommendation to the court would be equivalent to placing the sticker price of a Toyota Prius on a Ferrari and selling it at a booth in a flea market.

Thus, it is recommended the Court either disallow $47,432 of the fee request, or order the Conservator to amend her billing statements to meet the requirements of the CA Rules of Court, so this Court can more easily review them for just and reasonable compensation.

UPDATE for 2/14/24 hearing: Supplements resolve the discrepancies noted above. It is recommended the Court approve the fees in full.  From the amount of work performed on this case by the Conservator, the Court should inquire as to the actual hours spent by Ms. McConnell for all work performed that was not included on the billing statement.  It is apparent from the entries that the Conservator likely spent hours of unbilled time on this case, so the Court should determine if a higher fee award should be given.

Attorney’s fees.  Both attorneys’ billing statements contain several hours dedicated to work on this accounting.  This leaves the court questioning who prepared the accounting?  If Mr. Stroh was retained solely for litigation purposes, and the account is not being challenged, the Court should not approve what amounts to double work done on the accounting by two attorneys perfectly capable of performing that work alone.  It is recommended the Court require a reconciliation of the hours spent on the accounting by both attorneys, and an agreement between them who should get paid for the work on the accounting. 

There is only one other remarkable issue related to fees: Ms. Scott’s billing statements. Ms. Scott does not employ a paralegal or secretary, thus it appears she is charging attorney fee rates for clerical work. 

Although her billing statement contains much more detailed descriptions of the work performed than the Conservator’s statements, there are several vague entries for phone calls and emails that should not be approved at the attorney rate.  It is recommended her fee request should be approved with a $2,520 reduction.

UPDATE for 2/14/24 hearing: Supplements resolve discrepancies noted above. The supplements adequately explain the issues previously noted with attorney billing. It is recommended the Court approve the fees in full.