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Mittelman v. Testman2/7/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
John Mittelman appeals from a probate court order disallowing certain disbursements for attorney fees from the Valen Theresa French Testman 1997 Trust (the Trust), which Mittelman, as trustee of the Trust, made to his own law firm and to the attorney for a trust beneficiary's guardian ad litem. Mittelman contends (1) the disbursements were authorized by the consent of all Trust beneficiaries, including objecting beneficiary Andre Testman Sr. (Testman), which consent operates as a waiver and estoppel to Testman's objections to the disbursements; (2) the disbursements were approved by the superior court presiding over an action seeking to compromise a medical malpractice claim of the minor beneficiary; and (3) Testman released his right to object to payment of Mittelman's fees by virtue of a settlement and compromise of legal malpractice claims Testman had asserted against Mittelman.
With respect to Mittelman's disbursement of fees to the attorney for the minor's guardian ad litem, we conclude the probate court correctly ruled it was made without required court approval. As for Mittelman's disbursement to his own law firm, we conclude substantial evidence supports an implied finding the disbursement was made for services rendered on the minor's behalf, and likewise was without requisite court approval. Consequently, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 1996, Valen Theresa French Testman (Valen ) retained attorney John Mittelman to represent her in her medical malpractice claim against Kaiser Foundation Health Plan, Inc. (Kaiser) and Southern California Permanente Medical Group. Apparently ignorant of the potential conflicts of interest, Mittelman also undertook to represent Valen's husband, Testman, and their minor child Andre Testman II (the minor) for Testman's loss of consortium and his and the minor's potential wrongful death claims. In August 1997, Valen created the Trust, naming Mittelman as successor trustee upon Valen's death. Subject to certain conditions, Testman was an income beneficiary of the Trust.
In September 1997, Valen, individually and purporting to act on the minor's behalf as his guardian ad litem, and Testman entered into a settlement with Kaiser, in which Kaiser agreed to pay $175,000 to Valen "as trustee of [the Trust] or any successor trustee of [the Trust] and to her attorneys, Law Offices of John R. Mittelman" and make structured payments having a net present value of $271,000 to the minor's guardian ad litem, conditioned upon court approval of the minor's compromise. Valen died on September 11, 1997, the same day that Mittelman, in his capacity as Valen's attorney and as successor trustee of the Trust, signed the Kaiser Settlement Agreement for her "individually and as Guardian Ad Litem for [the minor.]" On September 19, 1997, Mittelman received $175,000 into his client trust account.
In 1998, Testman asserted claims against Mittelman for legal malpractice, breach of fiduciary duties and trustee malfeasance. In or about March 1998, the parties settled the action for Mittelman's payment of $89,000 to Testman in exchange for a release of all claims. According to sworn declarations in the record by Mittelman and his counsel, at the settlement conference, Mittelman and his attorney, Testman and Testman's attorney, and the minor's guardian's counsel purportedly ag
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