Trunick v. Callaway CA5

Filed 6/11/25 Trunick v. Callaway CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT SHELLEY TRUNICK, as Co-Trustee, etc., et al., F086766 Plaintiffs and Appellants, (Super. Ct. No. BPB-18-002894) v. RICHARD CALLAWAY, OPINION Defendant and Respondent. APPEAL from an order of the Superior Court of Kern County. Brett V. Myers, Commissioner. Dake, Braun & Monge, Craig N. Braun; Darling & Wilson and Joshua G. Wilson for Plaintiffs and Appellants. Ventura Coast Law, Kymberley E. Peck; Ferguson Case Orr Paterson and Wendy C. Lascher for Defendant and Respondent. -ooOoo- This appeal arises from probate litigation related to a trust created by the Callaway family for Callaway family members. Two beneficiaries of the trust (siblings Richard Callaway and Gary Callaway) brought an amended petition for removal of the co-trustees of the trust (their other two siblings, Shelley Trunick and Wayne Callaway), for breaches of various fiduciary duties. Following a court trial, the probate court found the co- trustees had violated multiple fiduciary duties and committed “an extreme act of misconduct” that constituted “a breach of trust.” The probate court ordered the reversal of various actions taken by the co-trustees and removed the co-trustees. The probate court also found that Richard Callaway (Richard), who took the lead in the litigation on behalf of himself and Gary Callaway, was the “prevailing party” on his amended petition for removal of the co-trustees. The probate court awarded prejudgment attorney fees and costs to Richard pursuant to Probate Code section 17211,1 subdivision (b). The court observed that fees and costs “incurred on the amended petition for removal” were granted based on an “extreme act of misconduct undertaken in bad faith” by co-trustees. In a prior appeal filed in this court, co-trustees Shelley Trunick and Wayne Callaway (co-trustees) appealed the trial court’s judgment on Richard’s petition for removal of trustees. In that appeal, co-trustees did not challenge the trial court’s award to Richard, pursuant to section 17211, of prejudgment attorney fees and costs. We affirmed the judgment in its entirety, including the provision awarding prejudgment attorney fees and costs to Richard. We subsequently lost jurisdiction over the judgment. While co-trustees’ appeal of the judgment on Richard’s petition for removal of co- trustees was pending, Richard brought a motion for attorney fees and costs in the probate court, as authorized by the judgment. Co-trustees did not timely oppose Richard’s motion for attorney fees and costs. The probate court granted Richard $72,073.50 in attorney fees and $11,558.35 in costs. Co-trustees now appeal the probate court’s order granting Richard $72,073.50 in attorney fees. Co-trustees’ contentions on appeal are, however, directed to the underlying judgment, which awarded attorney fees to Richard pursuant to section 17211, subject to 1 All statutory references are to the Probate Code unless otherwise stated. 2. an appropriate motion to determine the amount of fees. More specifically, co-trustees now contend the probate court erroneously awarded fees pursuant to section 17211, subdivision (b). Since we no longer have jurisdiction over the underlying judgment that awarded the attorney fees under section 17211, these contentions are untimely and unavailing. Accordingly, we affirm the probate court’s order granting $72,073.50 in attorney fees and $11,558.35 in costs, to Richard. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND The factual background of this matter was extensively detailed in this court’s opinion in co-trustees’ prior consolidated appeal, which arose from the trial court’s respective judgments on (1) Richard’s amended petition for removal of co-trustees and (2) co-trustees’ petition for approval of trustee accounting. (See Trunick, et al. v. Callaway, et al., (May 1, 2025, F084692, F085293) [nonpub. opn.].) Accordingly, we need not repeat it here. A. Prior Appeal from Judgment on Richard’s Amended Petition for Removal A combined trial o