Opinion
A150546
04-28-2020
Estate of VIDYAGAURI KANTILAL KHATRI, Deceased. RAJESHKUMAR KANTILAL KHATRI, Contestant and Appellant, v. PRADEEP KANTILAL KHATRI et al., Objectors and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. PRO123880)
This is the third lawsuit and the second appeal between Rajeshkumar Khatri (Roger) and Pradeep Khatri (Peter), who are brothers engaged in a long-running dispute over division of family assets. This lawsuit was filed after their mother died in October 2013 and left her estate to Peter. Kantilal Khatri (Kantilal) and Vidyagauri Khatri (Vidya) immigrated to California over 40 years ago and purchased a hotel in Redwood City. By the time of Kantilal's death in 1993, the family business consisted of six commercial income properties. Kantilal and Vidya had two sons, Roger and Peter. Following prior litigation, in Khatri I, over the family assets after Kantilal's death, the family partnership was dissolved. Roger was awarded four of the commercial properties, and Vidya continued to own the remaining commercial properties, as well as the family residence in Belmont.
We adopt the parties' convention and intend no disrespect by referring to Rajeshkumar Khatri as Roger, to Pradeep Khatri as Peter, to Kantilal Khatri as Kantilal, and to Vidyagauri Khatri as Vidya.
Vidya died in October 2013 and left all of her assets to Peter. Roger contested Vidya's will and other testamentary documents, claiming lack of testamentary capacity and undue influence among other claims. Following a 16-day bench trial, the court found in favor of Peter and awarded him attorneys' fees and costs based upon Code of Civil Procedure sections 128.5 and 2033.420. Roger appeals from the judgment denying and overruling the claims made in his will contest and petition to determine validity of his mother's will and trusts and other transfers, and from the judgment awarding Peter attorneys' fees and costs under sections 128.5 and 2033.420.
All statutory references are to the Code of Civil Procedure unless stated otherwise.
BACKGROUND
A. Khatri I
In 2003, Peter, individually and on behalf of Vidya, sued Roger, seeking to rescind agreements regarding family income properties and to dissolve a family partnership established in the 1980's, which owned six income properties. Vidya, separately represented by attorney Albert Martin, cross-complained against her sons, seeking to rescind certain agreements that divided the properties and provided her with a $1,500-per-month income. The trial court entered an interlocutory judgment finding Roger had a 50-percent ownership interest and a 50-percent income interest in the partnership, Vidya had a 50-percent ownership interest and a 25-percent income interest, and Peter had a 25-percent income interest. The court rescinded the agreements regarding the partnership assets, ordered the partnership to be dissolved, and appointed a referee to oversee the dissolution. The trial court found that Vidya's sons "clearly unduly influenced her behavior—both Peter and Roger at various times instructed her to sign documents, sometimes documents they themselves prepared without adequate explanation of either the content of the document or her statutory rights . . . . There was a resulting benefit to them and a detriment to her. [Citation.] Mother, by these transactions was 'relieved' . . . of millions of dollars in assets and support consistent with the lifestyle of the family. [¶] Accordingly, judgment enters for Mother on the rescission cause of action as Mother's consent to the agreements was given by undue influence." The court later adopted most of the referee's recommendations and ordered four properties, with a combined appraised value of $10.275 million, to be allocated and transferred to Roger, and two properties, with a combined appraised value of $9,374,285, to be allocated and transferred to Vidya. Roger was also ordered to pay Vidya and Peter $783,398.50. Roger appealed, and we affirmed in an opinion issued on June 9, 2011. (Khatri v. Khatri (June 9, 2011, A128718, A129175) [nonpub. opn.].)
B. Khatri II
In 2012, Peter and Vidya (through Peter) sued Roger for elder abuse. On November 7, 2014, the court granted Roger's motion for summary judgment, finding he was entitled to judgment based on his "affirmative defenses of res judicata and/or collateral estoppel or, in the alternative, due to the time-bar of the applicable statute of limitations and/or the plaintiff's failure to file a compulsory claim in earlier litigation among and between the Khatri family members." This case was not appealed.
The court's order includes these concluding comments: "As to the foregoing legal conclusions that it has reached, the Court also believes them to be reasonable and appropriate in light of the manifest Bleak House aura of these two Khatri v. Khatri cases—bearing the hallmark of a potentially endless family feud, that has already gone on for years, that begs to be quelled before any more litigation 'blood' is spilled."
C. Khatri III
After Vidya's death, in November 2013, Peter filed a petition for probate of will and for letters testamentary and a petition to administer estate. Roger filed a contest and objection to probate. Roger's Fifth Amended Contest and Grounds of Objection to Probate of Purported Will(s) sought to invalidate 16 inter vivos transfers of property, three powers of attorney, six trust transactions, and six wills and codicils on the grounds of (1) lack of capacity; (2) undue influence, fraud, and concealment, duress, menace, coercion, mistake, or as to disqualified donees; and (3) lack of due execution. The trial court's statement of decision explains: "The gist of the Thirty-One Causes of Action . . . is that every Deed executed by Vidya during the period 2002 to 2014, every Transfer of Personal Property by Vidya, every power of attorney executed by Vidya during the period 2001 to 2003, and every Will or Codicil executed by Vidya during the period 2001 to 2012 is invalid due to lack of capacity, undue influence (including Fraud, and Concealment, Duress, Menace, Coercion, Mistake, or distribution to Disqualified Donees), or lack of due execution, and that Vidya died intestate. Roger's Fifth Amended Contest seeks to impose, on behalf of Vidya's estate, a constructive trust over all property transferred by Vidya during her lifetime, so that all such property can be divided equally between Roger and Peter, Vidya's sole intestate heirs."
Following a 16-day bench trial, the court found against Roger on all claims and found "clear and convincing evidence that each of the 31 documents is NOT invalid due to lack of capacity, undue influence (including fraud, concealment, duress, menace, coercion, mistake, and transfer to disqualified donee) or lack of due execution." The court found Roger's claims were "frivolous in that he proceeded to trial with negligible evidence of lack of capacity at the time of execution, zero evidence of undue benefit, and in the face of overwhelmingly clear and convincing evidence that the Thirty-One documents in question were NOT invalid due to lack of capacity, undue influence . . . or lack of due execution . . . ." The tentative statement of decision stated, "Peter appears to be entitled to Costs and Attorneys Fees . . . incurred in connection with Denials of Requests for Admissions proved false at trial," and ordered Peter to file a motion for costs and attorneys' fees pursuant to section 2033.420, subdivisions (a) and (b), and "a motion for any other Costs or Attorneys Fees that Peter contends he is entitled to."
Peter filed two motions for attorneys' fees and costs, one under section 2033.420 seeking $865,559.25 in fees and $138,621.55 in costs, and one under section 128.5 seeking $1,497,680.75 in fees and $346,874.19 in costs. Roger opposed both motions. The court held a hearing on the attorneys' fees motions and on Roger's objections to the tentative statement of decision. The court overruled Roger's objections, adopted the tentative statement of decision, and granted both of Peter's attorneys' fees motions. On December 30, 2016, the court issued an order and judgment granting both motions and awarding a total of $1,497,680.75 in fees and $346,874.19 in expenses, which were the amounts Peter incurred for the entire action. On the same day, the court entered judgment denying and overruling each of Roger's causes of action and dismissing the fifth amended contest with prejudice. Roger appeals from both the dismissal of the fifth amended contest and the award of attorneys' fees and costs.
The trial court granted both attorneys' fees motions, finding that Peter is entitled to fees of $865,559.25 and costs of $138,621.55 under section 2033.420 for amounts incurred from August 27, 2015, to December 16, 2015, and that he was entitled to fees of $1,497,680.75 and costs of $346,874.19 for costs under section 128.5, representing fees and costs incurred during the entire action. However, because the awards are not cumulative, the total amount awarded was fees of $1,497,680.75 and costs of $346,874.19.
Khatri IV is a fourth lawsuit filed by Roger in 2014, seeking to enforce a creditor's claim for ownership of two commercial properties and the family residence. In March 2015, following a demurrer and motion to strike filed by Peter, Roger filed a request for dismissal.
DISCUSSION
A. Dismissal of Roger's Fifth Amended Contest Is Affirmed
1. Standard of Review
"In general, in reviewing a judgment based upon a statement of decision following a bench trial, 'any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision.' " (Estate of Young (2008) 160 Cal.App.4th 62, 75-76.) "Moreover, findings of fact are liberally construed to support the judgment." (Id. at p. 76.) The trier of fact is the exclusive judge of the credibility of the evidence. (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065.) "It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.)
We keep these standards in mind when we review whether substantial evidence supports the trial court's determination of Roger's undue influence claims.
The trial court's statement of decision overrules Roger's claims of lack of capacity, undue influence, and lack of execution. On appeal, Roger argues generally that the trial court erred by not shifting the burden of proof to Peter and by ruling in favor of Peter on all causes of action. Roger's opening brief, however, does not include separate headings or specific arguments explaining how the trial court's overruling of Roger's claims of lack of capacity or lack of execution are erroneous. Instead, his arguments focus on the trial court's rulings on his undue influence claims. We likewise analyze the trial court's determination of the undue influence claims and deem forfeited any argument that the court's findings on the issues of lack of capacity and lack of execution were erroneous. (Cal. Rules of Court, rule 8.204(a)(1)(B); see People v. McElroy (2005) 126 Cal.App.4th 874, 884, fn. 3 [defendant waives claim of error not placed under separate heading].)
2. Undue Influence
a. The trial court did not err by failing to apply presumption of undue influence.
Roger argues the trial court erred by failing to apply a presumption of undue influence to the testamentary documents Roger contested and by failing to shift the burden of proof to Peter to establish no undue influence. "Undue influence must be proven by clear and convincing evidence that a testamentary or other donative disposition was made as a result of undue pressure, argument, entreaty or other coercive acts inconsistent with any conclusion that the disposition was the voluntary and freely spontaneous act of the testator or settler. 'Undue influence, then, is the legal condemnation of a situation in which extraordinary and abnormal pressure subverts independent free will and diverts it from its natural course in accordance with the dictates of another person.' " (Conservatorship of Davidson (2003) 113 Cal.App.4th 1035, 1059, overruled in part on other grounds in Bernard v. Foley (2006) 39 Cal.4th 794, 816.)
"Normally, the party contesting a testamentary disposition bears the burden of proving undue influence. [Citation.] However, under certain narrow circumstances, a presumption of undue influence may arise, shifting to the proponent of the disposition the burden of proving by a preponderance of the evidence that the donative instrument was not procured by undue influence. This will occur only if all of the following elements are shown: (1) the existence of a confidential relationship between the party making the donative transfer and the person alleged to have exerted undue influence; (2) active participation by the latter in the actual preparation or execution of the donative instrument; and (3) the receipt by that person of undue profit from the executed instrument. It is for the trier of fact to determine whether the presumption will apply, and whether the burden of rebutting it has been satisfied." (Conservatorship of Davidson, supra, 113 Cal.App.4th at pp. 1059-1060.) Such findings are reviewed for substantial evidence. (Estate of Auen (1994) 30 Cal.App.4th 300, 311-312.)
Here, it was undisputed that Peter had a confidential relationship with Vidya. The trial court found, however, that Roger did not establish either the active participation prong or the undue profit prong of the three-part test for a presumption of undue influence. The statement of decision finds: "There was some evidence that Peter facilitated or had some involvement in the various meetings between Vidya and her various attorneys, but no evidence that Peter was actively involved in creation of the estate plans or that he made any suggestions concerning estate plans that Vidya followed. To the contrary, the attorney witnesses[] provided detailed, credible evidence that Peter was not involved in creation of the estate plans and inter vivos transfers and the court found this testimony more credible and of greater probative value than Roger's speculation that Peter was somehow involved. Thus this court finds that Roger has failed to meet his burden of establishing active procurement. [¶] But the evidentiary burden for which Roger utterly failed to provide even a scintilla of credible evidence was the element of undue benefit. Roger failed to provide any evidence whatsoever that Vidya's efforts to give Peter a share of the family wealth equal to that already conferred on Roger by giving Peter 100% of Vidya's share of the estate constituted an undue benefit. There was zero evidence of any estate plan that ever gave Roger more than 50% of the family wealth."
The statement of decision summarizes the testimony of attorneys who worked with Vidya on her estate plans and finds that "[e]very single attorney had detailed conversations with Vidya about the family, her estate, and her plans and found her to be competent. The testimony of the attorney witnesses was especially compelling because they were all professionals present during and helping with the actual execution of the various documents or estate plans executed by Vidya and were percipient witnesses to Vidya's lucidity at and around the moment of execution."
Roger contends evidence at trial established Peter's active participation in obtaining the estate planning documents and property transfers, including his meetings with Vidya's counsel and causing Vidya to sign documents in English without translation. The evidence Roger references shows that Vidya asked Peter to make appointments for her with estate planning attorneys, Peter or sometimes other family members took her to the meetings, and Peter was present at some of the meetings with Vidya's attorneys. Roger cites to Dr. Canick's testimony in support of his argument that Vidya signed documents in English without translation. Dr. Canick, who was retained by Roger as an expert witness, never met Vidya. In fact, Dr. Canick referenced the presence of an interpreter at the videotaped meeting in December 2012 where Vidya signed the trust and pourover will. Vidya's estate planning attorney Albert Miller also testified that either friends or family (but "never . . . Peter") translated the documents she signed.
The record shows that Peter had some involvement in meetings between Vidya and her attorneys and that he "facilitated" them, but Peter's actions do not amount to active involvement. (See Estate of Bould (1955) 135 Cal.App.2d 260, 275 ["[T]he mere fact of the beneficiary procuring an attorney to prepare the will is not sufficient 'activity' to bring the presumption into play [citations]; or selection of attorney and accompanying testator to his office [citations]; or mere presence in the attorney's outer office [citations]; or presence at the execution of the will [citations]; or presence during the giving of instructions for the will and at its execution [citations]"].) Here, substantial evidence supports the court's finding that Peter was not actively involved in preparation of Vidya's estate planning documents, but rather—as Vidya's son and power of attorney—he facilitated her meetings with her attorneys. (See ibid. ["Some incidental activity in the execution, rather than the preparation of the will, is not enough to swing the burden"].)
The record also supports the court's finding that Peter did not unduly profit from the testamentary documents Roger contests. The issue is not whether Peter profited from Vidya's disposition of her estate but whether his profit was "undue." "The determination of this issue is based on a qualitative assessment of the evidence, not a quantitative one. 'To determine if the beneficiary's profit is "undue" the trier must necessarily decide what profit would be "due." These determinations cannot be made in an evidentiary vacuum. The trier of fact derives from the evidence introduced an appreciation of the respective relative standings of the beneficiary and the contestant to the decedent in order that the trier of fact can determine which party would be the more obvious object of the decedent's testamentary disposition.' " (Conservatorship of Davidson, supra, 113 Cal.App.4th at pp. 1060-1061.)
Here, the record shows that as early as the 1993 family trust in effect prior to their father's death, Roger and Peter were named as equal beneficiaries of the assets owned by their parents. Following the decision in Khatri I, the family partnership was dissolved and the family assets were split between Roger and Vidya. Vidya herself explains in a videotape of the December 2012 execution of her trust and pourover will that she was not leaving any assets to Roger because he already had taken his share; she states "he took everything and went." Substantial evidence supports the trial court's finding that Peter did not receive an undue benefit from the testamentary documents Roger contests, and therefore no presumption of undue influence applied and the burden did not shift to Peter to prove an absence of undue influence. (Conservatorship of Davidson, supra, 113 Cal.App.4th at p. 1061.)
b. Substantial evidence supports the trial court's finding of no undue influence.
Although the trial court found the presumption of undue influence did not apply, it also found that "Peter established by clear and convincing evidence that every single one of the estate planning documents and inter vivos transfers were NOT the result of undue influence." The trial court found "every single lawyer witness testified credibly and persuasively about Vidya's determination and absolute clarity that Roger and Peter were to receive equal shares of the total family fortune" and that "each of the non-family witnesses confirmed that Vidya knew what she was doing, was clear on the details of each transaction, and was adamant that Peter should receive a share of the family wealth equal to that previously provided to Roger and that the mechanism for accomplishing that goal was to give Peter 100% of Vidya's half share of the family wealth."
Roger argues that once the burden shifts, Peter must prove no undue influence by clear and convincing evidence. Roger cites Bank of America v. Crawford (1945) 69 Cal.App.2d 697, 701 in support of his position, and the trial court's statement of decision also cites Crawford. Crawford involved an allegation of undue influence in the marital confidential fiduciary relationship. More recent cases in the marital context hold that the burden of rebutting the presumption of undue influence is by a preponderance of the evidence. (In re Marriage of Matthews (2005) 133 Cal.App.4th 624, 631.) In cases involving application of the presumption to contest testamentary dispositions, the burden to rebut the presumption is by a preponderance of the evidence. (See Conservatorship of Davidson, supra, 113 Cal.App.4th at p. 1062 [where presumption applies, "respondent would then only have been required to prove the absence of undue influence by a preponderance of the evidence"]; Estate of Sarbia (1990) 221 Cal.App.3d 599, 605 ["If this presumption is activated, it shifts to the proponent of the will the burden of producing proof by a preponderance of evidence that the will was not procured by undue influence"].) As discussed above, here the trial court found that the presumption of undue influence did not apply. It then found that even if the presumption did apply, Peter had rebutted the presumption under the higher clear and convincing evidence standard.
The record establishes that the original 1993 trust names Roger and Peter as equal beneficiaries of the assets owned by their parents. The 2000 Heggstad petition and order, issued after their father's death, confirmed that all of the father's real property assets were part of the 1993 trust, under which Roger and Peter were named as equal beneficiaries. Even Roger testified that as of 2002 he understood that Peter would inherit three of the six properties. The trial court's 2010 judgment in the Khatri I litigation effectively divided the family business, giving Roger four commercial properties and leaving Vidya with two commercial properties of roughly equivalent value, plus the Belmont residence.
Estate of Heggstad (1993) 16 Cal.App.4th 943, 947-950 holds that real property may be made part of a trust's assets without a separate deed transferring property to the trust if the owner of the real property is the settlor creating the trust, with him- or herself as the trustee, and the transfer complies with the statute of frauds.
The amendments Vidya made to her testamentary documents during and following Khatri I were explained by her attorney Albert Martin, who began representing her during the Khatri I litigation and represented her in estate planning matters until her death in 2013. Martin testified Vidya understood English and spoke broken English, but he used an interpreter during trial preparation, and family members (other than Peter) translated estate planning documents. In 2005, Martin drafted a trust amendment and pourover will in which Vidya gave the Belmont residence to Peter. Martin's notes from his meeting state Vidya "knows her heirs and extent of her assets" and wishes to amend her trust to give the home to Peter and that "Roger Khatri [is] to get no part of estate as he already has extensive assets, some of which he took from her." Martin discussed with Vidya on multiple occasions that she did not want Roger to inherit any of her assets, and that she felt Roger had already received his share of the total family assets and Peter should receive the remainder upon her death. He drafted an amendment to her trust and a pourover will again in 2011, and his notes state "she is adamant that she does not want her son Roger to share in her estate as he took assets from her and they have been in extensive litigation against each other over assets. She wants her estate to go to her other son Peter. [¶] . . . [¶] [Roger] only cares about her money and . . . he has already gotten assets from her when husband died and later—and attempted to take away all her assets and wouldn't agree to pay her money to live on. [¶] . . . [¶] She assures me in English and Gutarati [sic] that she has not been pressured in any way to do this. She states Peter has taken care of me and Roger did not. . . . He moved away." Martin documented that Vidya was physically ill but had capacity and knew her relatives and the extent of her assets. Martin read the estate plan to her and had a family member translate the document in Gujarati.
In 2012, Martin reviewed his file and realized that due to the judgment in Khatri I, the trust which he previously amended had been rescinded. Therefore, he drafted the November 30, 2012 last will and testament for Vidya on an emergency basis. He spoke with Vidya in English, and her granddaughter translated the document; Peter was not present. The will left all of her assets to Peter and expressly disinherited Roger. The next month, Martin prepared a new trust and pourover will, which Vidya signed on videotape. Martin's notes of his meeting with Vidya prior to her videotaped signing state that she confirms she wants her estate to go to Peter and to leave nothing to Roger. Peter was present at the videotaped signing, but before the signing, Martin met with Vidya alone in another room to review the estate plan. Martin explained that one of Vidya's expressed reasons for disinheriting Roger was that he had "stabbed [her] in the heart" because he moved out of the Belmont home after Kantilal died.
Martin's relationship with Vidya spanned approximately 10 years. During this period, Martin believed Vidya definitely had cognitive capacity and he never saw her confused or disoriented. Over the years, they had many discussions about Roger. In addition to being angry that Roger moved away, Vidya was also upset because during negotiations prior to Khatri I, when the family was discussing dividing up the family assets after Kantilal died, Roger refused Vidya's request for a $15,000 monthly allowance out of the approximately $150,000 monthly income the assets were generating. Peter agreed to the request. Vidya was also upset with Roger because he was awarded the Redwood City hotel in Khatri I. Consistently over the 10-year period during which Martin represented Vidya, her desire for Peter to receive her assets did not change and Martin never concluded that Peter exercised any undue influence on Vidya.
Mitchell Miller, another of Vidya's attorneys, testified Vidya was upset that Roger received the Redwood City hotel, which had great sentimental value to Vidya because it was the first hotel she and her late husband had purchased.
Other estate planning attorneys who worked with Vidya over the years also found that she was clear in her desire to disinherit Roger and leave her estate to Peter. Mitchell Miller and Benjamin Harvey worked with Vidya on drafting deeds to transfer her properties to Peter in December 2012. Vidya stated that "Roger stole my hotel" and that she was angry with him. They believed she had testamentary capacity and there were no signs of undue influence. Yatin Patel was an attorney at Miller's firm and fluent in Gujarati. He met privately with Vidya and Harvey before she signed the deeds transferring her properties to Peter, and he prepared a certificate of independent review stating Vidya understood the nature of the deed transfers, was clear in her wishes to transfer her properties to Peter, and was not under undue influence.
Even Roger testified that prior to Khatri I, he and Peter had tried to negotiate an equal split of the collective family properties, which he thought was fair.
Based upon the record, we find substantial evidence supports the trial court's finding that "there was clear and convincing evidence that Vidya's determination to give Peter a share of the family fortune equal to that already provided to Roger was not the result of any mysterious aura of influence exerted by Peter, but existed before Peter was in a position to exert influence, and was significantly reinforced by behavior of Roger that had nothing to do with Peter's influence over Vidya."
B. Section 128.5 Does Not Apply to This Action
The trial court found Roger lacked a good faith basis for filing his contest and petition and for prosecuting it through trial, and awarded Peter sanctions under section 128.5. As an initial matter, Roger argues section 128.5 does not apply because this action was filed prior to January 1, 2015, the effective date of section 128.5. We agree.
Because we find that section 128.5 does not apply to this action, we do not reach Roger's arguments that the court erred by imposing section 128.5 sanctions without making a subjective bad faith finding and without first imposing a 21-day safe harbor period. We express no opinion on these issues.
1. Statutory History
"Section 128.5, authorizing sanctions for certain bad faith actions or tactics, was originally enacted in 1981. (Stats. 1981, ch. 762, § 1, p. 2968.) As subsequently amended in 1994, the provision applied only to proceedings initiated on or before December 31, 1994. (Stats. 1994, ch. 1062, § 1, pp. 6395-6396; see Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 810 [11 Cal. Rptr.3d 298, 86 P.3d 354].) Concurrently with the creation of the 1994 sunset date for section 128.5, the Legislature adopted section 128.7, which permitted the court to award sanctions for pleadings and motions filed for an improper purpose and applied to complaints or petitions filed on or after January 1, 1995 and to any pleading, motion or similar paper filed in those proceedings. (Stats. 1994, ch. 1062, § 3, pp. 6397-6398; see Olmstead, at p. 810." (Nutrition Distribution, LLC v. Southern SARMs, Inc. (2018) 20 Cal.App.5th 117, 123-124 (Nutrition Distribution, LLC).)
Section 128.7, which remains in effect, was modeled on rule 11 of the Federal Rules of Civil Procedure and is narrower in scope than section 128.5. (Nutrition Distribution, LLC, supra, 20 Cal.App.5th at p. 124, fn. 4.) Section 128.7 applies to every "pleading, petition, written notice of motion, or other similar paper" presented to the court (§ 128.7, subd. (a)) and requires attorneys (or unrepresented parties) to certify, through their signatures on documents filed with the court, that the pleading or motion has merit and is not being presented for an improper purpose. (§ 128.7, subd. (b)(1)-(4); Nutrition Distribution, LLC, at p. 124, fn. 4.)
After sunsetting in 1995, "[s]ection 128.5 was revived in 2014 by Assembly Bill No. 2494 (2013-2014 Reg. Sess.), effective January 1, 2015 (Stats. 2014, ch. 425, § 1). It authorize[d] a trial court to order a party, the party's attorney or both to pay reasonable expenses, including attorney fees, incurred as a result of bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. (§ 128.5, subd. (a).)" (Nutrition Distribution, LLC, supra, 20 Cal.App.5th at p. 124.)
San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306 (San Diegans) addressed the question of whether revived section 128.5, which contained no date restriction, applied to actions pending as of the effective date of January 1, 2015, or whether it applied only to actions filed after January 1, 2015. (Id. at pp. 1315-1316.) It held that section 128.5 applied to any action pending as of January 1, 2015. (Ibid.)
San Diegans also addressed whether section 128.5 required a finding of subjective bad faith and whether the 21-day safe harbor provisions applied. (San Diegans, supra, at pp. 1317, 1318.)
"In urgency legislation enacted August 7, 2017 (Stats. 2017, ch. 169, § 1), the Legislature amended section 128.5 'to clarify the previous legislative intent.' (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 984 (2017- 2018 Reg. Sess.) as amended Apr. 20, 2017, p. 1, italics omitted.)" (Nutrition Distribution, LLC, supra, 20 Cal.App.5th at p. 129.) Among other amendments, Assembly Bill No. 984 amended section 128.5, subdivision (i) to state, "This section applies to actions or tactics that were part of a civil case filed on or after January 1, 2015." (§ 128.5, subd. (i).)
Other amendments in Assembly Bill No. 984 relate to the safe harbor period and the subjective bad faith standard. (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 984 (2017-2018 Reg. Sess.) as amended Apr. 20, 2017, pp. 5-6.)
The legislative history makes clear the legislative intent to apply revived section 128.5 only to cases filed after the January 1, 2015 effective date. (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 984 (2017-2018 Reg. Sess.) as amended Apr. 20, 2017, p. 6.) The author's statement explains that "AB 2494 . . . took effect January 1, 2015 and was intended to be prospective and apply only to cases filed after January 1, 2015. In spite of the plain meaning of the statute and documented legislative intent, the Court of Appeal held in San Diegans for Open Government v. City of San Diego (247 Cal.App.4th 1306, 1311) that the statute applied retroactively to any actions pending as of January 1, 2015. This anomalous decision has caused confusion amongst trial courts . . . ." (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 984 (2017-2018 Reg. Sess.) as amended Apr. 20, 2017, p. 6.) The Legislature further states "this bill [AB 984] seeks to clarify the intent behind the enactment of AB 2494 (Cooley, Chap. 425, Stats. 2014) and abrogate several of the holdings under San Diegans. [¶] This bill clarifies the applicability of the statute. This bill makes it abundantly clear that it applies to actions or tactics that were part of a civil case filed on or after January 1, 2015. Accordingly, this applies to cases filed on or after January 1, 2015. . . . [I]t would abrogate the San Diegan court's holding about cases pending as of January 1, 2015." (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 984 (2017-2018 Reg. Sess.) as amended Apr. 20, 2017, pp. 6-7.)
Roger filed an unopposed request for judicial notice of the legislative history, which we grant.
2. Analysis
Questions of statutory construction are subject to independent review. (People v. Blackburn (2015) 61 Cal.4th 1113, 1123.) It is undisputed that Peter filed this probate petition in November 2013 and Roger filed his contest in December 2013. Section 128.5 was not then in effect. During the pendency of the litigation, section 128.5 was revived with an effective date of January 1, 2015. (§ 128.5.) The San Diegans decision was filed on June 7, 2016. (San Diegans, supra, 247 Cal.App.4th 1306.) In December 2016, the trial court issued its order awarding sanctions under section 128.5. The question before us is whether section 128.5 applies to this matter, which was filed before January 1, 2015. The legislative history makes clear that it does not.
Peter argues that the 2017 amendments to section 128.5 are not retroactive and that because section 128.5 did not contain any date restrictions at the time the sanction order was issued, it applied to all cases pending at that time. We disagree.
"A basic canon of statutory interpretation is that statutes do not operate retrospectively unless the Legislature plainly intended them to do so. [¶] A corollary to [this rule] is that a statute that merely clarifies, rather than changes, existing law does not operate retrospectively even if applied to transactions predating its enactment. . . . Our consideration of the surrounding circumstances can indicate that the Legislature made material changes in statutory language in an effort only to clarify a statute's true meaning. [Citations.] Such a legislative act has no retrospective effect because the true meaning of the statute remains the same. [Citations.] [¶] One such circumstance is when the Legislature promptly reacts to the emergence of a novel question of statutory interpretation: ' "An amendment which in effect construes and clarifies a prior statute must be accepted as the legislative declaration of the meaning of the original act, where the amendment was adopted soon after the controversy arose concerning the proper interpretation of the statute . . . . [¶] If the amendment was enacted soon after controversies arose as to the interpretation of the original act, it is logical to regard the amendment as a legislative interpretation of the original act.' " (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243-244.)
Although "a legislative declaration of an existing statute's meaning is neither binding nor conclusive in construing the statute[,] . . . the Legislature's expressed views on the prior import of its statutes are entitled to due consideration and we cannot disregard them. [¶] '[A] subsequent expression of the Legislature as to the intent of the prior statute, although not binding on the court, may properly be used in determining the effect of a prior act.' " (Western Security Bank v. Superior Court, supra, 15 Cal.4th at p. 244.)
We find Assembly Bill No. 984 makes clear the Legislature's intent that Assembly Bill No. 2494 applies only to cases filed on or after January 1, 2015, and that Assembly Bill No. 984 abrogates the contrary ruling in San Diegans. (Assem. Bill No. 984 (2017-2018 Reg. Sess.) as filed Aug. 7, 2017.) The 2017 amendment to subdivision (i) was adopted soon after the controversy arose—beginning with the San Diegans decision—regarding whether section 128.5 was intended to apply to cases filed before January 1, 2015. The legislative history states "bill [AB 984] . . . seeks to clarify the intent behind the enactment of AB 2494 (Cooley, Chap. 425, Stats. 2014) and abrogate several of the holdings under San Diegans. [¶] This bill clarifies the applicability of the statute. This bill makes it abundantly clear that it applies to actions or tactics that were part of a civil case filed on or after January 1, 2015. Accordingly, this applies to cases filed on or after January 1, 2015. . . . [I]t would abrogate the San Diegan court's holding about cases pending as of January 1, 2015." (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 984 (2017-2018 Reg. Sess.) as amended Apr. 20, 2017, pp. 6-7.) The Legislature's intent is also expressed in its statement justifying enactment of Assembly Bill No. 984 as an urgency statute: "In order to avoid further confusion or inconsistent decisions among courts regarding the application of Section 128.5 of the Code of Civil Procedure . . . , including . . . whether the statute applies to a case that was filed on or after January 1, 2015, instead of applying to a case pending as of January 1, 2015; to apply the statute equally to similarly situated parties; and to prevent further injustice, as quickly as possible, it is necessary for this act to take effect immediately." (Assem. Bill No. 984 (2017-2018 Reg. Sess.) § 3.)
Peter's brief does not cite any cases other than San Diegans for the proposition that former section 128.5 applied to cases pending as of January 1, 2015. The two cases he cites as new authority pursuant to California Rules of Court, rule 8.254, both involve litigation that commenced after January 1, 2015. (See In re Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 124, 128; CPF Vaseo Associates, LLC v. Gray (2018) 29 Cal.App.5th 997, 1003, fn. 3.)
"If the Legislature acts promptly to correct a perceived problem with a judicial construction of a statute, the courts generally give the Legislature's action its intended effect." (Western Security Bank v. Superior Court, supra, at p. 246.) Here, the Legislature acted promptly to clarify its intent that section 128.5 apply only to cases filed after January 1, 2015. In so doing, it abrogated San Diegans. (See In re Marriage of Sahafzadeh-Taeb & Taeb, supra, 39 Cal.App.5th at p. 128 ["[N]o vestige remains of the holdings in . . . [San Diegans] concerning the requirements of section 128.5"].) Because Roger's contest was filed prior to January 1, 2015, section 128.5 does not apply and we reverse the trial court's award of sanctions under section 128.5.
C. Award of Attorneys' Fees Under Section 2033.420 Is Affirmed
1. Background
Peter's motion for attorneys' fees and costs pursuant to section 2033.420 argued he was entitled to his reasonable attorneys' fees and costs incurred from August 27, 2015, through trial, based upon Roger's denial of Peter's requests for admissions of matters Peter proved at trial. The requests asked Roger to admit that each contested instrument and document was executed by Vidya with requisite capacity, without undue influence, fraud, duress, coercion, menace, or mistake; that Peter was not a disqualified donee; and that each instrument or document was validly executed. Peter argued the requests went to the core issues raised by Roger. He argued further that Roger had no reasonable basis to believe he would prevail in his contest and that all of the testimony during the four-week trial related to the issues of capacity and undue influence, which were resolved in favor of Peter. Peter submitted declarations from his three attorneys explaining the division of labor among them and attaching copies of their invoices from August 2015 through trial. Peter also submitted his own declaration attesting to his payment of expenses of $45,628.17 and attaching supporting invoices. Peter's motion requested a total of $865,559.25 in fees and $138,621.65 in costs.
Roger's opposition acknowledged that the 196 requests for admissions he denied without objection in August 2015 related to the core case issues, but he argued that his denials were based on a good faith and reasonable belief he would prevail. He listed 14 evidentiary bases for his belief, including his own testimony that Vidya intended to transfer her assets to Peter and Roger equally; the Khatri I statement of decision and judgment finding that Peter and Roger unduly influenced Vidya as to estate planning documents in 2001; Peter's "active and often concealed participation" in Vidya's estate planning; and the testimony of Roger's expert neuropsychologist Jonathan Canick. Roger also argued the requested fees were not reasonable and that any fee award should be offset by $389,745, which is the amount Roger requested when he prevailed in Khatri II.
Roger's fee request in Khatri II was denied without prejudice.
Following a hearing on the motion for fees, the trial court issued an order and judgment finding Roger lacked a good faith basis for denying the requests for admissions on August 27, 2015, and the amounts Peter incurred to disprove Roger's denials were reasonable. The trial court awarded Peter $865,559.25 in fees and $138,621.65 in costs, and declined to apply any offset. The order states that Roger's "own case-in-chief failed to provide any credible evidence that Vidya ever intended a testamentary outcome other than that her two sons should share equally in the family assets, and failed to present any evidence that would support a judgment that Vidya ever changed her testamentary intent, whether as a result of a lack of testamentary capacity, undue influence, fraud and concealment, duress, menace, coercion, and/or mistake, or lack of due execution. Roger also failed in his case in chief to present evidence that would support a judgment that Vidya lacked the requisite capacity to execute any of the challenged instruments and deeds, or that any of the challenged instruments and deeds effecting a relatively even split of the family assets was the product of any undue influence by Peter or his family. Nor did Roger ever articulate to the Court a coherent explanation why an equal division of family assets between the two sons, after taking into account the 50% interest in the six partnership properties already owned by Roger at the time of the 1993 Trust could be considered inequitable by Vidya." The order addressed in detail each of the 14 evidentiary bases Roger's opposition asserted provided him with a good faith and reasonable belief he would prevail on his claims and found none of them, either individually or collectively, sufficed.
The order ruled on both the section 128.5 motion and the section 2033.420 motion. Roger asserted the same 14 evidentiary bases in opposition to both motions, arguing that they provided him with a good faith belief his claims were not frivolous and a good faith belief he would prevail at trial.
2. Standard of Review
Section 2033.420, subdivision (a) states: "If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so . . . and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees." (§ 2033.420, subd. (a).) Subdivision (b) requires the court to impose such sanctions unless an objection was sustained, the admission was of no substantial importance, the responding party "had reasonable ground to believe that that party would prevail on the matter," or "[t]here was other good reason for the failure to admit." (§ 2033.420, subd. (b).)
"The determination of whether 'there were no good reasons for the denial,' whether the requested admission was 'of substantial importance,' and the amount of expenses to be awarded, if any, are all within the sound discretion of the trial court. [Citation.] On appeal, the trial court's decision will not be reversed unless the appellant demonstrates that the lower court abused its discretion." (Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 508.) An abuse of discretion occurs when it is shown the court's ruling is arbitrary or capricious (Culbertson v. R.D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 710) or exceeds the bounds of reason. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 566 [abuse of discretion requires a showing that the trial court " 'exceed[ed] the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power' "].)
3. Analysis
a. The trial court did not abuse its discretion in finding Roger lacked a good faith basis for denying requests for admissions.
Roger argues he denied the requests for admissions in good faith and the trial court abused its discretion in finding otherwise. Regarding the undue influence issue, Roger argues he "denied these disputed facts in good faith, and with a reasonable belief that Peter, and not Roger, had the burden of proof to establish these disputed facts." According to Roger, even if he had introduced no evidence of undue influence, he would have been justified in denying the requests "on the presumption alone." Roger's argument ignores that he had the burden of establishing the three elements required to trigger the presumption and he failed to do so. (Conservatorship of Davidson, supra, 113 Cal.App.4th at pp. 1059-1060.) He also ignores established case law holding that "[s]ome incidental activity in the execution, rather than the preparation of the will, is not enough to swing the burden." (Estate of Bould, supra, 135 Cal.App.2d at 275.)
Roger further asserts that his good faith and reasonable belief of undue influence was "based upon substantial evidence uncovered in and prior to discovery," but he does not identify the specific evidence or whether he learned of the unspecified evidence prior to responding to Peter's requests for admissions. (Brooks v. American Broadcasting Co., supra, 179 Cal.App.3d at p. 511 [court considers reasonableness inquiry based upon information available at the time of denial of request for admission].) "Any reference in an appellate brief to matter in the record must be supported by a citation to the volume and page number of the record where that matter may be found. (Cal. Rules of Court, rule 8.204(a)(1)(C).) This rule applies to matter referenced at any point in the brief, not just in the statement of facts." (Sky River LLC v. County of Kern (2013) 214 Cal.App.4th 720, 741.) Roger's general reference to unspecified evidence fails to persuade us the trial court abused its discretion in finding that he did not have a "reasonably entertained good faith belief that [he] would prevail on the [undue influence] issue at trial." (Brooks v. American Broadcasting Co., 179 Cal.App.3d at p. 511.)
Regarding the lack of capacity issue, Roger argues his denials were in good faith based upon evidence that Vidya was in ill health, particularly in 2012 and 2013 and that Dr. Anderson testified she was in cognitive decline, had a poor memory, and scored 15 out of 30 on the Montreal Cognitive Assessment Test (MOCA) that he administered in April 2013. Roger further argues he relied upon his expert neuropsychologist Jonathan Canick's testimony that Vidya lacked cognitive and testamentary capacity. Roger raised similar issues below, and the court found Dr. Canick's reliance on Vidya's MOCA score was rebutted by Dr. Anderson and "for purposes of determining whether Dr. Canick's expert opinions constituted a good faith basis for challenging the 31 instruments on the basis of lack of testamentary capacity and undue influence, the Court notes that Roger failed to produce any percipient witness testimony of Vidya's behavior that would have been consistent with Dr. Canick's opinion. Dr. Canick's testimony was contradicted by Roger's own testimony of how his mother was acting, which was inconsistent with Dr. Canick's view and consistent with her having sufficient capacity to execute the challenged instruments and deeds . . . in 2012."
Dr. Anderson is a psychiatrist who was retained by Peter or Vidya's counsel in Khatri II to examine Vidya and opine as to whether she was able to have her deposition taken.
On cross-examination Dr. Anderson explained multiple factors that may have contributed to Vidya's MOCA score, such as anxiety, fatigue, and education level, and he opined that she had testamentary capacity because she understood she had two sons, knew her basic assets, and knew what she wanted to give to whom.
The trial court further found that Roger presented no evidence as to when he first obtained Dr. Canick's opinion and that Dr. Canick supported his opinion by citing to "facts" with no evidentiary support. Specifically, "Dr. Canick stated he understood Vidya was using a 'cheat sheet' in the video of her signing the trust and will on December 19, 2012, in order to remember the names of family members, but the testimony of Al Martin and the interpreter refuted any inference that Vidya had been provided a 'cheat sheet.' Dr. Canick also said his opinion was based on Vidya being 'delusional' because she believed Roger had stolen from her and 'evicted' her, and that these delusions supported his opinion that she lacked testamentary capacity. However, the evidence, including, most significantly, the Statement of Decision by Judge Pfeiffer in Khatri I, showed that Roger had obtained Vidya's agreement for the loan against the Redwood City Motel through deceit and constructively evicted her from her home by leaving her alone to care for his adolescent children who remained in her house without her consent, forcing her to move to Peter's home. Roger knew that these 'facts' that Dr. Canick used to support his opinion had no basis in the evidence when he filed his initial challenge. Dr. Canick's opinion, resting in considerable part on 'facts' that had no support in the evidence, does not constitute a 'good faith' basis for Roger pursuing his challenge."
Roger's own belief that Vidya lacked capacity, even if firmly held, is insufficient for him to avoid a cost of proof award under section 2033.420. (Brooks v. American Broadcasting Co., supra, 179 Cal.App.3d at p. 511.) Instead, he needed to prove that at the time he denied the requests to admit Vidya had testamentary capacity, he reasonably believed he would prevail on this issue at trial. (Grace v. Mansourian (2015) 240 Cal.App.4th 523, 530.) In light of the substantial evidence contrary to Dr. Canick's opinion from Vidya's attorneys, family members, and even Roger himself, who all testified to Vidya's mental clarity, we find the court did not abuse its discretion by rejecting Roger's assertion that he reasonably believed he would prevail in proving Vidya lacked testamentary capacity. (Brooks v. American Broadcasting Co., at p. 512.)
b. Roger forfeited argument that the fees and costs requested did not relate to disproving Roger's denials of requests for admissions.
Roger argues the trial court erred by awarding fees and costs in the absence of evidence the amounts incurred were for work "actually required to prove the narrow and discrete issues that supposedly should have been admitted." Roger did not raise this issue below. In his reply brief, Roger admits this issue was "not litigated" in the trial court but claims he preserved the issue for appeal by challenging the requested fees and costs as "unreasonable and unsupported." He further asserts he "never had the opportunity to present evidence or have that issue litigated" but because he objected to the requested fees as "improper," this preserved the issue for appeal. We disagree.
Roger submitted an opposition brief below with supporting declarations, which made three arguments: (1) he had a good faith belief in his denials of the requests for admissions; (2) the requested fees and costs are not reasonable because Peter retained three law firms and the total attorney time was excessive; and (3) any fees and costs awarded should be offset by amounts Roger incurred in Khatri II because Judge Buchwald denied Roger's motion for attorneys' fees in Khatri II without prejudice. Neither Roger's opposition brief below nor his argument at the hearing below asserted that the attorneys' fees and costs Peter requested did not relate to Peter's proof of matters that Roger denied. " ' "Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider. [Citation.] In our adversarial system, each party has the obligation to raise any issue or infirmity that might subject the ensuing judgment to attack. . . ." [Citation.]' [Citation.] [¶] By failing to do that here, [Roger has] forfeited [this claim] on appeal." (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.)
Although we find Roger forfeited the issue of whether the fees and costs awarded to Peter were costs of proof of Roger's denials of requests for admissions, we note that Roger incorrectly argues Peter's motion was "fatally defective" because it did not attempt to assign his requested fees to proving the denied facts. In support of this claim, Roger cites to Peter's motion for section 128.5 sanctions rather than to Peter's motion for attorneys' fees under section 2033.420. Indeed, Peter's motion for attorneys' fees under section 2033.420 argues that "Roger's outright denial of RFAs seeking admissions that each contested instrument and document was executed by Vidya with requisite capacity, without undue influence, fraud, duress, coercion, menace, or mistake, that Peter was not a disqualified done [sic], and that each instrument or document was validly executed is sufficient to award Peter for all of the fees and expenses he incurred from the date of the denials," and that "[a]ll of the testimony of all of the witnesses was relevant and material to Roger's challenges to the wills, codicils, trust amendments, trusts, powers of attorney and deeds."
c. Trial court did not abuse its discretion in finding the fees and costs requested were reasonable.
Finally, Roger argues the attorneys' fees and costs awarded were not reasonable. Much of this argument reiterates Roger's argument that Peter did not prove the amounts he requested were necessary to disprove Roger's denials. As discussed above, Roger forfeited this issue by not raising it below.
Roger challenges the reasonableness of the fee award based on excessive hours and generally asserts duplicative work by the three law firms representing Peter. He cites to the declarations of Peter and his three attorneys and the attached billing records, which constitute nearly 100 pages. But he does not provide a specific citation to even one instance in the billing records demonstrating duplicative work. "[B]lock citations do not comply with California Rules of Court, rule 8.204(a)(1)(C) and frustrate the court's ability to evaluate [Roger's] position." (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 611.)
The declarations of Peter's attorneys establish that John Hill was retained as the lead trial counsel and his former partner David Schwartz was retained to handle law and motion matters. Peter also retained Stephen Vernon, who is an experienced probate attorney. The three attorneys declared they divided tasks and minimized duplication of efforts. At the hearing on the motion, the court confirmed it had reviewed the requests and supporting documents and stated "this is a case which has created this enormous quantity of documents, litigation, pretrial discovery motions and the amount of fees, costs that have been requested in this case I feel are reasonable."
" 'The "experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong" '—meaning that it abused its discretion." (PLCM Group, Inc. v. Dexler (2000) 22 Cal.4th 1084, 1095.) We find no abuse of discretion in awarding Peter $865,599.25 in attorneys' fees and $138,621.65 in costs under section 2033.420. (See Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1248 [argument that billing is duplicative and unreasonable, unsupported by citation to record or explanation of which fees were challenged gives no basis to disturb trial court's fee ruling].)
DISPOSITION
The judgment is affirmed in part and reversed in part. We affirm the dismissal of Roger's fifth amended contest with prejudice. We reverse the order granting Peter's motion for attorneys' fees under section 128.5 and awarding him fees of $1,497,680.75 and costs of $346,874.19. We affirm the order granting Peter's motion for attorneys' fees under section 2033.420 and awarding Peter fees of $865,559.25 and costs of $138,621.65. On remand the trial court shall enter a new order denying Peter's motion for attorneys' fees under section 128.5 and awarding Peter, under section 2033.420, fees of $865,559.25 and costs of $138,621.55. Peter's motion for sanctions for a frivolous appeal is denied. The parties shall bear their own costs on appeal.
/s/_________
Jackson, J. WE CONCUR: /s/_________
Siggins, P. J. /s/_________
Fujisaki, J.