Congratulations to Attorney Amber Kim for successfully recovering all attorney fees, costs and interest incurred in defending against a Petition for Surcharge in probate court and also ultimately a dismissal of that same Petition for Surcharge.
In a California conservatorship, the surety issued a co-fiduciary bond for two principals who separately had the duty of care over the person and the estate. The surety only issued the bond on the consideration of a third indemnitor. After years of the principals’ failure to account, and even transfer of courts and several Judges retirement or leaving the bench, Amber Kim was able to obtain an approved order on the account such that the successor conservator of the estate could proceed with the next period of accounting and petition for surcharge.
During the probate proceedings, the indemnitors breached their obligations to indemnify, hold the surety harmless, and post collateral security. Accordingly, the surety filed a civil action against its indemnitors for recovery of its losses and performance of the collateral demand. The indemnitors disputed payment on multiple bases, including the belief they did not have responsibility for the failure of their co-fiduciary, and the argument the indemnity agreement was unconscionable. Competing motions for summary judgment/adjudication were filed, and ultimately through pleadings and oral argument by Amber Kim, Esq., the court ruled in the surety’s favor entitling recovery of all attorney’s fees, costs, and interest.
Thereafter, the indemnitors filed an appeal. However, with Summary Judgment in hand, the surety was able to recover all of its losses through an escrow sale in Nevada. By this time, with accumulated interest, the surety was owed nearly $100,000. The entire judgment was satisfied.
Shortly after the indemnitors agreed to dismiss their appeal. In the matter of the conservatorship, the successor conservator also agreed to dismiss the petition for discharge, and the court on the record, discharged and exonerated the bond. Accordingly, the surety never incurred a bond loss, but it was still entitled and recovered pursuant to its indemnity agreements all the attorney’s fees, costs and interest it was owed.
