113 Cal.Rptr.2d 294 (2001)
93 Cal.App.4th 544
CONSERVATORSHIP OF the Person
and Estate of Joel M. LEVITT.
Frumeh Labow, as
Conservator, etc., Petitioner,
Marc B. Hankin, Claimant and Appellant.
Conservatorship of the Person and Estate of Peggy Page.
Frumeh Labow, as
Conservator, etc., Petitioner,
Marc B. Hankin, Claimant and Appellant;
Kathryn Stanley, as Executor, etc., Claimant and Respondent.
Court of Appeal, Second District,
October 31, 2001.
Review Denied January 29, 2002.
Evan D. Marshall; Law Offices of Marc B. Hankin and Marc B. Hankin, Los
Angeles, for Claimant and Appellant.
Offices of A. George Glasco and A. George Glasco for Objector and Respondent.
Appellant Marc B. Hankin is a
recognized leader in the field of elder law and the drafter of the Elder
Abuse and Dependent Adult Civil Protection Act (Welf.
& Inst.Code, § 15600 et seq.). (1 Cal. Elder
Law (Cont.Ed.Bar 1995) p. xiii.) He represented
professional conservator Frumeh Labow in successful efforts to protect the modest
estates of Joel Levitt and Peggy Page. In response to Hankin's request for
attorney's fees in the two matters, the trial court praised Hankin's work
but awarded approximately 15 percent less than he had requested in each
case, citing among other things the size of the estates involved. Hankin
appeals from the awards, arguing that fee reduction based on the size of an
estate is bad policy and will dissuade attorneys from undertaking representation
of middle-income elders who are being subjected to physical and financial
abuse. We do not question the need to protect elders such as
Levitt and Page nor the social value of Hankin's efforts.
Nevertheless, Hankin's appellate issue must be assessed by the standard of
abuse of discretion. We find no abuse. Accordingly, we affirm.
1. Conservatorship of Levitt
of early 1997, Levitt was a 77-year-old legally blind widower with no
children. He had a history of alcohol abuse and depression. His memory had
begun to fail. Arrangements were made for Levitt to have a live-in
caretaker. The caretaker, 46-year-old Barbara Gold, arrived on March 3,
1997. Almost immediately, Gold had Levitt sign checks that were made out to
her. On April 11, 1997, Levitt and Gold were married in Las Vegas. Gold
continued her efforts to control Levitt's assets. Levitt's niece became
concerned. On April 25, 1997, Labow, a
professional conservator being represented by Hankin, filed a petition for
conservatorship of Levitt's person and estate.
counsel and in propria persona, Gold resisted the
petition. Contentious litigation ensued, during which Labow
also filed a petition to annul the marriage and a civil action for damages.
Ultimately, Labow prevailed. By that time, Levitt
had been permanently placed in a residential care facility.
filed her first and final account and request for fees on October 7, 1999. Levitt's
assets at that point, which included the estimated value of his home, were
approximately $370,000. As part of the pleading, Hankin requested
attorney's fees of $72,537.14 and $1,044.89 in expenses, to be paid by
Levitt's estate. The request was based on 324 hours of services at $225.00
per hour for the majority of the work and at $250.00 per hour for more
recent services, less a retainer that had been paid by Levitt's relatives. Labow requested $29,027 in fees. Attorney George Glasco, who had associated in with Hankin to conduct
certain trial proceedings, requested $17,550. The Probate Volunteer Panel
("PVP") attorney also filed a 296*296 petition for fees,
requesting $36,405.00 for 161.8 hours at $225.00 per hour.
whose fee requests in previous elder abuse cases had been denied in part by
the trial court, urged that his fees be paid in full irrespective of the
size of the estate in order to encourage attorneys such as himself to take
cases of financial elder abuse. As the hearing commenced, the court stated
that while it appreciated the work done on the case, "I also have to
consider the size of the estate here as far as making distributions. And
the court has a problem in making any distribution that is over one-third
of what the estate is. I have some problems where we deplete an estate in
order to save the estate and it doesn't do much good." As the hearing continued, the court
acknowledged that Levitt could remain in the residential care facility into
which he had been placed for the remainder of his life because, if his
assets were exhausted, the payments would be taken over by Medi-Cal. The PVP attorney stated that
Hankin's billing was appropriate, and if not for the intervention of the
conservator, it is unlikely that Levitt would have lived very long under
response, the court stated: "[T]here is a strong indication that
[Gold] was in there for nothing but the money. There is no question that
this was a difficult case. [U] You [Hankin] are missing the point.... I am
not upset about anybody's hours. I am not even upset about the pay rate
other than the fact that I have to consider the size of the estate when I
am looking at the pay rate.[¶] To say that no one
would take [this type of case] ... but I have got to tell you, I heard that
for 10 years over in criminal where they said, if you want good attorneys
to take death penalty cases, you have got to pay them the extraordinary
rate on it, that's not true. There are people who will work for a little
bit less and they will still do an outstanding job and not throw people out
on the streets. [¶] I know that this is going to be uncomfortable for you
and for everybody here, but I am going to cut the rates down on all this.
And I am doing it not because I [don't think] the work justifies it. I
think the time spent does justify it. I don't think the estate justifies
trial court then ordered that Hankin be paid $64,000 for his services. Labow was awarded $27,000, Attorney Glasco
was awarded $14,000, and the PVP attorney was awarded $32,000. The award to
Hankin was set forth in an order filed February 3, 2000. Hankin filed a
timely notice of appeal.
2. Conservatorship of Page
1997, Peggy Page was a widow in her early 80's. She had moderate cognitive
impairment and was isolated from her family. Her neighbor, Charles Davis,
had ingratiated himself to Page and had taken over her finances. A manager
of Page's bank made out a report of suspected elder abuse when he observed
that Davis had effectively taken control of Page's account. Kathryn
Stanley, a niece of Page's late husband, contacted Adult Protective
Services and was referred to conservator Labow
and to Hankin.
ensuing litigation was even more contentious than in Levitt. Again, Glasco ultimately associated in with Hankin. Davis's
appointment as Page's temporary conservator was rescinded in favor of Labow. Davis was ultimately declared a vexatious
litigant. Page died in December 1998. Shortly before Page's death, Labow filed an action against Davis and his attorney,
among others, seeking to recover misappropriated assets.
filed her first and final account and request for fees on November 18,
1999. The assets of Page's estate at that 297*297 point were approximately
$130,000. Hankin requested $82,515 in fees and $6,628 in costs for 363
hours in services rendered, mostly at the rate of $250 per hour. Labow requested $14,094 in fees. The PVP attorney requested
$7,962 in fees.
superior court probate attorney's calendar notes state that Hankin's fee
request appeared high based on the size of the estate, but that Hankin's
and Labow's efforts preserved a portion of the
estate and "Davis would have killed [Page] by depriving her of food
and of medication that would have hastened her demise...." At the
hearing, the trial court ruled as follows:
Court: As far as the fees are concerned in establishing the reasonableness
of the fees—[¶] ... It seems like all the judges are disagreeing with you
as far as fees are concerned. But I have got to set what I feel is
reasonable and I am going to do that at this time. [¶] As far as the conservator's
fees go, I am going to be setting that at $13,100. [¶] As far as the
attorney's fees go, I am going to be setting that at $69,000. [¶] As far as
attorney cost, I am going to be setting that at $6,628.26. [¶] PVP fees, I
am setting at $7,962.50. [¶] Those fees are set after the court has reviewed
the file, reviewed the services, and the court feels, taking everything in
consideration of the file, the services rendered, the
court thinks that is a reasonable value of the services that were rendered
in the case.
Hankin: Your Honor, can you explain why you reduced my fee?
Court: Counsel, it seems like we always go through this with you, and it
seems like every judge is arguing with you and I am not going to get into
an argument on this, [¶] I will tell you this that it is my job to look at
the estate, the value of the services, what services were rendered, whether
they were reasonable, the value of the services that were rendered and the
value of the estate. [¶] My evaluations of those may be different from
yours, may be different from a third person, may
be different from a fourth person. But, I have got to make that determination.
[¶] I have read everything that you have put in there. And I just think that the reasonable value
of the services is what I stated on the record. It is not that I am disagreeing
or cutting you down, it is what I find, what I think are
the reasonable value of the services. They just happen to disagree with what
award to Hankin was set forth in an order filed May 24, 2000. Hankin filed a timely notice of appeal.
Prefatory to his legal argument,
Hankin forcefully presents his policy position, noting that his intervention
in the cases at bench protected the lives of the conservatees
in addition to their financial assets, that the greed and persistence of
adversaries such as Gold and Davis require a high degree of skill in conducting
the litigation, and
that compensation for attorney services in elder abuse cases is both
unpredictable and delayed. Hankin also refers to information
he has gathered to demonstrate that skilled lawyers would not risk taking
an elder abuse case that did not involve a large estate. He further notes
that the Los Angeles County Board of Supervisors has recognized the problem
Ultimately, Hankin contends that "the trial court abused its
discretion by failing to consider all factors or to give a reasoned basis
for the award, and by arbitrarily reducing Hankin's fee request." We
is well established that the determination of what constitutes reasonable
attorney fees is committed to the discretion of the trial court....
[Citations.]' " (PLCM
Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096, 95 Cal. Rptr.2d
198, 997 P.2d 511.) In cases of elder abuse, an award of attorney's
fees is to be based on "all factors relevant to the value of the
services rendered...." (Welf. & Inst.Code, § 15657.1.) A factor which must be
specifically considered is "[t]he value of the abuse-related
litigation in terms of the quality of life of the elder or dependent adult,
and the results obtained." (Id., § 15657.1, subd.
the law is equally clear that the value of an estate is also an appropriate
factor to consider in setting fees. Indeed, Welfare and Institutions Code
section 15657.1 incorporates by reference the factors set forth in rule
4-200 of Rules of Professional Conduct of the State Bar of California,
among which is "[t]he amount involved and the results obtained."
(Id., rule 4-200(B)(5).)
stated in PLCM
Group, Inc. v. Drexler, supra, 22 Cal.4th at page 1096, 95 Cal.Rptr.2d
198, 997 P.2d 511, "`The value of legal services performed in a
case is a matter in which the trial court has its own expertise.
[Citation.] ... The trial court makes its determination after consideration
of a number of factors, including the nature of the litigation, its
difficulty, the amount involved, the skill required in its handling,
the skill employed, the attention given, the success or failure, and other
circumstances in the case.' [Citation.]" (Italics added.) Similarly,
of Trunin (1989) 49 Cal.3d 868, 873-874, 264 Cal.Rptr. 93, 782 P.2d 232, the Supreme Court held
that "`[e]very [probate] attorney should be fully and fairly paid for
his [or her] services, having in mind their nature, their difficulty, the
value of the estate, and the responsibility thus cast upon the
counselor.' [Citation.]" (Italics added.) In Estate
of Beach (1975) 15 Cal.3d 623, 645, 125 Cal.Rptr.
570, 542 P.2d 994, the Supreme Court noted the trial court "could
properly consider not only the time spent but also such factors as the
value of the estate, the skills exercised, the amount in dispute, and
the results obtained. [Citations.]" (Italics added.)
v. California Highway Patrol (1998) 61 Cal.App.4th 629, 647, 71
Cal.Rptr.2d 632, Hankin argues that a fee award is erroneous when based
on an incorrect application of legal standards. But unlike Flannery,
the trial court's consideration of the size of the estates involved here
was manifestly proper. Nor did the trial court fail to give a reasoned
basis for its fee awards. Hankin misplaces reliance on Ramos
v. Countrywide Home Loans, Inc. (2000) 82 Cal.App.4th 615, 626, 98
Cal.Rptr.2d 388, in which the trial court failed to explain a ruling
that would have resulted in some of plaintiffs' counsel being 299*299 paid
$800 per hour, an amount that the appellate court found to be reasonable
only in a "truly pioneering and high risk case[
]." No such lack of explanation exists here. Accordingly, we find no
basis upon which to conclude that the trial court erred in setting the
amount of Hankin's fee in these matters.
Although Hankin has not prevailed
in these appeals, the brevity of our analysis should not be read as a lack
of concern over the importance of the issue presented. Simply put, Hankin
is in the wrong forum. Hankin fears that, to the extent the fees awarded below
are the most that can be expected in cases involving abused elders with
modest assets, qualified attorneys will be dissuaded from pursuing the
noble cause of challenging elder abuse. But the law is clear that the trial court has broad
discretion in setting fees, and it is therefore unlikely that Hankin will
ever be able to demonstrate an abuse of that discretion in a situation
similar to the ones here.
Unlike the courts, the Legislature
has the capacity to conduct the kind of fact finding required to determine
the degree to which fee awards throughout state may have undermined the representation
of less-than-affluent elders. And it is only through the legislative
process that the policy determinations derived from such fact finding may
ultimately be implemented.
We expect that Hankin and other
members of the elder abuse bar have coordinated efforts with offices of
county counsel, public guardian, and adult protective services to work on
specific legislative proposals to improve access to the justice system for
victims of elder abuse, as suggested in the order of the Los Angeles County
Board of Supervisors that we have quoted above. (Ante, fn. 2.) We
commend their efforts.
orders under review are affirmed. The parties are to bear their own costs
concur: ORTEGA, Acting P.J.
(MIRIAM A.), J.
concur, but write separately to distance myself from the majority's
suggestion that there is a need for legislative action in this area. (Typed
opn., p. 299.)
our opinion explains, the trial court has broad discretion to determine an
appropriate fee in cases such as these, and is authorized to consider all
relevant factors, including the time involved, the results obtained, and
the size of the abused elder's estate. In the sound exercise of that
discretion, the court can (as it did in these cases) consider the fact that
a greater award of attorneys' fees, even where earned, would deplete the
abused elder's estate to the detriment of the elder and, ultimately, to his
heirs. I would not risk a 300*300 diminution of that discretion, and would
leave well enough alone.
 On March 27, 2001, we granted Hankin's
motion to consolidate the Levitt and Page matters for purposes of oral argument
 At Hankin's request, we have taken
judicial notice of Los Angeles County Board of Supervisors' Order No. 14,
adopted on September 12, 2000. The order states that "elderly persons
with modest estates do not have ready access to legal advice and
assistance, which would enable them to effectively redress the exploitation
of their assets or obtain properly documented estate planning for their
protection." It further advises, among other things, that "County
Counsel, Public Guardian and Adult Protective Services work with the State
and County Bar Associations on specific legislative proposals that would
help improve access to the justice system for elderly persons with modest
incomes who have been victims of financial exploitation or need assistance
on estate planning matters."
 In her respondent's brief in the Page
matter, executor Kathryn Stanley argues issues that we cannot consider because
she has not filed a cross-appeal. (Kardly v.
State Farm Mat. Auto. Ins. Co. (1995) 31 Cal.App.4th 1746,
1748-1749, fn. 1, 37 Cal.Rptr.2d 612
.) Other of her
issues have been waived by failure to present them
to the trial court. (See California
Indemnity Ins. Premium Finance Co. v. Fireman's Fund Ins. Co. (1995)
40 Cal. App.4th 1633, 1641, 47 Cal.Rptr.2d 743; Santantonio v. Westinghouse Broadcasting Co.
(1994) 25 Cal.App.4th 102, 113, 30 Cal. Rptr.2d 486). We further find
no support for Stanley's request that this court issue findings of fact
pursuant to California Rules of Court, rule 23, or her request for