Estate of Bodmann, 116 Cal. App. 5th 401 (2025), reh’g denied (Nov. 21, 2025)

Summary: The Probate Court may deny appointment of a nominated executor where the nominee’s pre-appointment conduct constituted mismanagement and demonstrated unfitness to serve as a fiduciary under the Probate Code.  The court affirmed that Probate Code sections 8402(a)(3) and 8502(a) permit consideration of conduct occurring before formal appointment, including actions that harm estate administration, undermine cooperation among interested parties, or reflect an inability to faithfully discharge fiduciary duties. The decision reinforces the probate court’s broad discretion to protect estates by prioritizing fiduciary fitness over testamentary preference when misconduct is shown.

Daniel Bodmann died leaving a will that nominated multiple biological and stepchildren as executors of his estate.  However, he did not nominate his wife of thirty years, Heather.  Following his death, disputes arose among certain children and Heather concerning the handling of estate affairs including the management of Dan’s insurance business, Bodmann Insurance.  Relevant to this dispute, Dan’s will devised Bodmann Insurance to his daughter, Andrea, who was a licensed insurance agent. 

Prior to his death, Heather, Andrea, and Dan’s stepson Tom Krause, were all involved in the management of Bodmann Insurance.  Following Dan’s death however, tensions arose between Heather and Tom concerning the management of Bodmann Insurance.   Before any formal appointment by the probate court, Tom, one of the nominated executors had multiple negative interactions with Heather regarding Bodmann Insurance, which the Court would later evaluate.

Tom and his brother, Dan, Jr., filed a petition for probate seeking to be appointed as executors of the Estate of Dan, and Heather filed a competing petition for probate.  Both Tom and Dan, Jr. objected to Heather’s Petition and she in turn, objected to theirs.

After an eleven-day trial, the Court found that Tom was not qualified to act as executor of the Estate due to his conduct following the death of Dan and prior to the initiation of formal probate proceedings.  Specifically, the Court found that Tom’s conduct impaired the business and amounted to badly, improperly, or unskillfully managing estate assets.  Thus, pursuant to Probate Code Sections 8502(a) and 8402(a)(3), the Court had sufficient grounds to deny Tom’s petition to be appointed as executor of Dan’s estate, even though he was nominated in the will. 

In sum, the conduct of a nominated executor or proposed estate representative prior to the initiation of any formal probate proceedings can be considered by the Court when ruling on a petition for probate. 

Gamo v. Merrell, 113 Cal. App. 5th 656, 335 Cal. Rptr. 3d 772 (2025)

Summary: The Court held that a prevailing defendant in a financial elder abuse action may recover cost-of-proof fees under Code of Civil Procedure section 2033.420, and that such fees are not barred by the Elder Abuse Act’s unilateral attorney-fee provision favoring prevailing plaintiffs.

The Elder Abuse Act provides that a successful plaintiff is entitled to their attorney’s fees and costs after trial.  This provision is unilateral and designed as a deterrent to prevent elder abuse.  Within the Act, there is no reciprocal provision for defendants that prevail in their defense against claims of elder abuse.  The Court in Gamo v. Merrell evaluated whether this unilateral fee award barred a defendant’s entitlement to cost-of-proof fees. 

Here, Plaintiff, was an eighty-one-year-old man who purchased a Maserati from Defendant, J Star Auto.  Plaintiff alleged that he was the victim of elder financial abuse because in order to induce him into purchasing the vehicle, Defendant made false oral promises to him.  Had such false representations not been made, he would not have completed the purchase.  Based on these events, Plaintiff sued Defendant for multiple causes of action, including elder financial abuse. 

During the litigation of the dispute, Defendant served requests for admission, which Plaintiff either denied or withdrew.  The case then proceeded to trial, where a jury found in favor of the Defendant and concluded that there was no misrepresentation.

Following trial, Defendant then filed a motion for attorney’s fees and more precisely, cost-of-proof fees under Code of Civil Procedure Section 2033.420 relating to the Requests for Admission that were served on Plaintiff.  The Superior Court denied the motion finding that the unilateral attorney-fee provision in the Elder Abuse Act barred Defendant from recovering attorney’s fees.  Defendant appealed this decision.

Reversing the Superior Court, the Court of Appeal found that the Superior Court erred in denying cost-of-proof fees as such fees have a distinct purpose and encourage efficient litigation.  Further, the Court of Appeal held that cost-of-proof fees do not conflict with the unilateral fee provision provided in the Elder Abuse Act as cost-of proof fees can be awarded without interfering with the public policy behind the unilateral fee provision in the Elder Abuse Act. 

Thus, because Defendant’s entitlement to cost-of-proof fees can be harmonized with the Elder Abuse Act and its purpose, Defendant was not barred from being awarded such fees.