Background: A Short Period With Lasting Consequences
In late 2019, Charles Frazier, age 83 and undergoing cancer treatment, could no longer live independently in his San Diego–area home. After being discharged from the hospital on November 15, he moved into the Escondido home of close friends Michael and Kelly Pagano.
Within weeks of his move, the Paganos took Frazier to meet with their estate planning attorney to revise his existing estate plan. Frazier expressed a desire to remove his estranged daughter as a beneficiary of his trust.
Over the next two weeks, Frazier and the Paganos met with the attorney three times. On December 20, 2019, Frazier executed a new trust (the “2019 Trust”), which allocated a substantial portion of his assets to the Paganos. Kelly Pagano also assisted in transferring Frazier’s assets into the new trust.
Frazier’s health continued to decline. On January 6, 2020, at Kelly Pagano’s request and without an in-person examination, Frazier’s oncologist provided a letter stating that Frazier lacked capacity to manage his financial and personal affairs. Such letters are often used to activate powers of attorney or successor trustee provisions.
Two days later, the Paganos moved Frazier into a hospice care facility. On January 9, 2020, Frazier’s nephews, Jeff Frazier and Theodore Haun, visited him and learned for the first time about the 2019 Trust.
According to the nephews, Frazier stated that he did not want to sign the new trust and felt pressured to do so. He asked for help retaining new counsel to restore his prior estate plan, which provided for distribution of his assets to his siblings. With their assistance, Frazier executed another trust on January 11, 2020 (the “2020 Trust”).
Frazier passed away on January 20, 2020.
Competing Allegations of Financial Elder Abuse
Two days after Frazier’s death, Kelly Pagano filed a civil action in San Diego Superior Court against Jeff Frazier, Theodore Haun, the attorney who prepared the 2020 Trust, and the notary who witnessed it. The complaint alleged financial elder abuse and sought to preserve the Paganos’ claimed rights under the 2019 Trust.
In May 2020, Haun, acting as trustee of the 2020 Trust, filed a probate petition asserting financial elder abuse by the Paganos and requesting confirmation that the 2020 Trust was valid and enforceable.
The following month, Kelly Pagano filed a competing probate petition. She alleged that Jeff and Haun had committed financial elder abuse and asked the probate court to determine the parties’ respective rights under both the 2019 and 2020 trusts.
The Probate Court Rules in Favor of the 2020 Trust
The probate court stayed the civil action and conducted an eight-day trial on the consolidated probate petitions.
In its statement of decision, the court observed that all parties “loved and respected” Frazier and acknowledged that the Paganos provided him with meaningful care during his final weeks. Nonetheless, the court concluded that the Paganos had exercised undue influence over Frazier and that the 2019 Trust conferred an undue benefit on them.
By contrast, the court found no undue influence in connection with the 2020 Trust and determined that Jeff Frazier and Haun did not receive an improper benefit from that instrument.
The court granted Haun’s petition, denied Kelly Pagano’s petition, and found that the Paganos had committed financial elder abuse. As a result, Haun prevailed both as the petitioner asserting an elder abuse claim and as the respondent defending against the Paganos’ competing claim.
The probate court awarded Haun damages exceeding $39,000 and doubled that amount pursuant to statutory penalty provisions applicable to financial elder abuse. The court reserved the issue of attorney fees and costs for later determination.
Haun subsequently sought more than $595,000 in attorney fees, supported by evidence that his counsel devoted more than 1,600 hours to the litigation over three years. The probate court reduced the request and awarded approximately $536,000 in fees.
Appellate Court Upholds the Fee Award
The Paganos appealed, arguing that attorney fees were not recoverable because the work on Haun’s elder abuse claim overlapped with the work defending against their claim. Relying on Carver v. Chevron (2004), they contended that when some claims permit fee shifting and others do not, fees must be apportioned or denied.
The Court of Appeal rejected those arguments. It explained that Haun’s role in the probate proceeding was that of a petitioner asserting statutory elder abuse claims, functionally equivalent to a plaintiff. Although he also successfully defended against the Paganos’ allegations, he did not seek fees as a prevailing defendant under a contract or statute providing unilateral fee rights.
The court further noted that awarding fees in this context was consistent with the Legislature’s intent to encourage the prosecution of financial elder abuse claims. Where claims are closely intertwined, and where the prevailing party succeeds on a claim that authorizes fee recovery, an award of overlapping fees does not undermine that policy.
The Court of Appeal affirmed the probate court’s attorney fee award and awarded Haun his costs on appeal.
