Thursday, February 19, 2026
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Court of Appeal:
Prevailing Elder Abuse Plaintiff May Recover Fees for Defense
Opinion Says Unilateral Nature of Fee Shifting Provision at Stake Does Not Preclude Award That Includes Overlapping Costs of Defending Against Competing Undue Influence Claims
By Kimber Cooley, associate editor
A financial elder abuse law that permits only prevailing plaintiffs to recover attorney fees does not bar the recovery of costs associated with defending against competing undue influence claims so long as the expenses are inextricably intertwined with those associated with the prosecution of his causes of action, Div. One of the Fourth District Court of Appeal held yesterday.
At issue is Welfare and Institutions Code §15657.5, which provides:
“Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, in addition to compensatory damages and all other remedies otherwise provided by law, the court shall award to the plaintiff reasonable attorney’s fees and costs.”
Sec. 15610.30, in turn, specifies that “financial abuse” of an elder includes assisting in the appropriation of property by undue influence. No parallel provision allows prevailing defendants to recover for the cost of defending against elder abuse claims.
Yesterday’s opinion, written by Presiding Justice Judith McConnell and joined in by Justices Joan K. Irion and Martin N. Buchanan, distinguishes the court’s 2002 decision in Carver v. Chevron U.S.A. Inc. and its progeny, which stand for the proposition that cost awards that cannot be apportioned between covered and excluded work are precluded by unilateral fee-shifting provisions. McConnell wrote:
“The question presented in this appeal is whether an award of attorney’s fees under a unilateral fee-shifting provision…for a successful financial elder abuse claim was improper because the petitioner in the probate case was also the cross respondent in an unsuccessful competing claim for elder abuse. Relying primarily on this court’s decision in Carver, the…[unsuccessful parties]…assert that…because all of the attorney’s fees for the competing claims were inextricably intertwined and overlapping, [the petitioner] should not have been awarded any fees….[W]e disagree with this interpretation of the statute and relevant case law and affirm the probate court’s judgment.”
Estate Planning
Challenging the fee award were Kelly and Michael Pagano, who took over the care of a former neighbor, Charles Frazier, in November 2019 after he became physically impaired at 83 years of age due to an aggressive form of cancer. The following month, the Paganos took him to meet with their estate planning attorney, who drafted a new trust that included provisions providing that the couple would receive a large portion of his estate.
After Frazier was moved into a hospice care facility in January 2020, his nephew, Theodore Haun, visited his uncle, who allegedly told him that he felt pressured to sign on to the new estate plan. A revised trust was executed on Jan. 11, 2020, and Frazier died nine days later.
In May 2020, Haun, as trustee of the January trust, filed a petition in probate court alleging that the Paganos had committed financial elder abuse and seeking confirmation that the most recent document was enforceable. That June, Kelly Pagano filed a competing request seeking to settle the parties’ rights and asserting that Haun had exercised undue influence over Frazier to take his property in bad faith; the matters were later consolidated.
Following a 2023 bench trial on the competing petitions, San Diego Superior Court Judge Kevin A. Enright ruled that the Paganos had exercised undue influence over Frazier relating to the December trust within the meaning of §15619.30. He granted Haun’s petition and denied the Paganos’ application.
In March 2024, Enright awarded Haun $536,448 in attorney fees, rejecting the Paganos’ assertion that their competing claim for elder abuse gutted his ability to recover. The judge found that apportionment was not possible because the parties’ claims were intertwined but that Haun’s claim was “exactly the type of claim that the legislature intended to promote by providing a unilateral fee shifting provision.”
Cases Are Distinguishable
McConnell wrote:
“The Paganos rely on Carver and cases like it to contend the probate court erred by awarding fees to Haun. These cases, however, are distinguishable. [They] hold that an award of fees to the successful defendant or cross-defendant contravenes the Legislature’s intent to encourage prosecution by allowing prevailing party fees only to plaintiffs. Here, there is no such infringement of legislative intent. As an initial matter, in this case the successful party is not the defendant. As the petitioner in a probate action, Haun is equivalent to the plaintiff.”
Noting that “[i]n all of the cases the Paganos cite…the prevailing defendants and cross-defendant were seeking fees under a contractual or statutory provision that authorized such an award” separate from a coexisting unilateral fee shifting statute under which they would not be entitled to recover, she continued:
“[T]he cases on which the Paganos rely all deal with prevailing parties who, although entitled to recover fees pursuant to contract or statute, were denied overlapping fees arising out of their defense to a claim with a unilateral fee-shifting provision. This outcome protects the legislative intention to encourage prosecution of such claims.”
No Conflict
Adding that “no such conflict exists…here,” she opined:
“In contrast to those cases, the legislative intention to encourage financial elder abuse claims is not undermined by awarding overlapping fees to Haun as the prevailing petitioner. For this reason, we agree with the probate court’s conclusion that section 15657.5, subdivision (a) does not bar an award of fees for the defense work that overlapped entirely with Haun’s successful prosecution of his own financial elder abuse claim.”
Applying those principles, she concluded:
“Under our analysis, any attorney’s fees that Haun incurred in the prosecution of his claims, or that were incurred in his defense of Kelly’s claims but were inextricably intertwined with the prosecution of his claim, were properly awarded by the probate court….Only those fees that were incurred for work attributable solely to defending against Kelly’s petition were unavailable for an award. The record before this court supports the probate court’s determination that because of the nature of the case, which was centered entirely on the two competing claims of financial elder abuse, all of the fees incurred by Haun were recoverable under section 15657.5, subdivision (a).”
The case is Haun v. Pagano, 2026 S.O.S. 451.
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