Trusts and Estates
Asaro v. Maniscalco
Cite as D080874
Filed July 12, 2024
Fourth District, Div. One
By Erika J. Gasaway
Hopkins & Carley
www.hopkinscarley.com/
Headnote: Breach of Fiduciary Duty – Double Damages
Summary: The penalty in Probate Code section 859 for damages double the value of the trust property is in addition to the remedy in Probate Code section 856 for return of the trust property, and the penalty may be awarded to the individual who brought the action.
After an eight day trial, the Probate Court held a trustee breached his fiduciary duties to the trust and committed financial elder abuse against the first spouse to die, while acting as co-trustee with the surviving spouse. The trustee was ordered to pay to the contesting beneficiary the amount of trust property taken, pursuant to Probate Code section 856, plus twice the value of the property taken, pursuant to Probate Code section 859, and the beneficiary’s attorney’s fees. The trustee appealed.
The appellate court affirmed, agreeing with Estate of Ashlock (2020) 45 Cal.App.5th 1066 and disagreeing with Conservatorship of Ribal (2019) 31 Cal.App.5th 519. Probate Code section 856 allows the court to order the return of the property taken; Section 859 separately allows the court to order an additional penalty for culpable conduct up to twice the value of the property returned. Rather than “treble damages,” the opinion concluded the calculation is the joint effect of sections 856 and 859. In addition, the appellate court affirmed that Section 859 does not limit to whom the damages must be paid. In this case, the Probate Court properly exercised its discretion to award the damages to the petitioner-beneficiary because the petitioner was the only beneficiary who acted and the award prevented the trustee from sharing in the recovery in his role as a beneficiary