If you’re an executor or personal representative defending an estate against financial elder abuse claims, understanding your rights to recover legal costs is critical. A recent California appellate decision provides crucial clarity on when prevailing defendants can—and cannot—recover attorney fees in these cases.
Who This Matters For
This case is essential reading for:
- Executors and personal representatives defending estates against elder abuse allegations
- Trustees and fiduciaries facing litigation over financial transactions with elderly parties
- Business owners who serve older clients and want to understand their legal exposure
- Estate planning attorneys advising clients on risk management strategies
The Key Legal Question: Can Defendants Recover Fees After Winning?
California’s financial elder abuse statute (Welfare and Institutions Code section 15657.5(a)) includes a “unilateral fee provision”—meaning it awards attorney fees to prevailing plaintiffs but not to prevailing defendants. This creates an intentional imbalance designed to encourage victims to file legitimate claims without fear of paying a defendant’s legal bills if they lose.
But what happens when a defendant wins and wants to recover costs associated with discovery disputes? That’s exactly what the California Court of Appeal addressed in Gamo v. Merrell (2025) 113 Cal. App. 5th 656.
The Case: What Happened in Gamo v. Merrell
An 81-year-old man purchased a Maserati and later claimed the dealership promised him a $6,500 trade-in credit but only provided $2,000. He sued for financial elder abuse, fraud, and violations of the Consumers Legal Remedies Act (CLRA).
During discovery, the sellers asked him to admit basic facts—such as that he initialed each page of the contract. He denied or withdrew these admissions. At trial, a jury found in favor of the sellers on all claims.
The sellers then sought approximately $490,000 in attorney fees under two theories:
- Cost-of-proof fees under Code of Civil Procedure section 2033.420 for proving facts the plaintiff unreasonably refused to admit
- CLRA fees under Civil Code section 1780(e) for defending against a bad faith claim
The trial court denied both requests, ruling that the elder abuse statute’s unilateral fee provision barred all fee recovery.
The Appellate Court’s Groundbreaking Ruling
The Court of Appeal reversed in part, creating an important distinction between different types of attorney fees:
Cost-of-Proof Fees: Allowed
The court held that cost-of-proof fees under CCP section 2033.420 serve a completely different purpose than prevailing party fees:
- They don’t reward a party for winning the case
- They sanction unreasonable discovery conduct—specifically, refusing to admit facts without any reasonable basis
- They encourage efficient litigation by penalizing parties who force opponents to prove undisputed facts
- A party can even lose at trial and still recover cost-of-proof fees
The court reasoned that these two statutes can work together without conflict: “Because cost-of-proof fees neither reward the prevailing party nor punish a losing party in a lawsuit, they do not interfere with unilateral fee provisions”.
CLRA Fees: Denied
The court affirmed the denial of CLRA fees, but not on the merits. The sellers failed to provide a separate legal argument explaining why CLRA fees should be treated differently from prevailing party fees. Since they simply referred back to their cost-of-proof argument without addressing the materially different nature of CLRA fees, the court deemed the argument waived.
What This Means for Executors and Personal Representatives
You Can Recover Some Fees—But Strategy Matters
If you’re defending an estate or trust against elder abuse claims, this decision provides a pathway to recover substantial legal costs—but only if you handle discovery correctly:
- Serve comprehensive requests for admission early in the case
- Focus on undisputed facts that the opposing party should reasonably admit (contract signatures, receipt of documents, basic timeline facts)
- Document unreasonable refusals to admit facts that are clearly proven
- Track costs separately for proving each disputed fact at trial
- File a properly supported motion under CCP section 2033.420 after prevailing
The Limits: What You Cannot Recover
Even after this decision, prevailing defendants still cannot recover:
- General attorney fees for successfully defending the elder abuse claim itself
- Fees for defending “intertwined” claims that arise from the same transaction
- Fees under other statutes unless you provide separate, distinct legal arguments
How Can Executors Protect Themselves from Personal Liability?
The best defense is proactive estate planning and administration that minimizes litigation risk:
- Maintain impeccable records of all transactions involving elderly beneficiaries or parties
- Obtain written acknowledgments and contemporaneous documentation
- Consider trust provisions that address potential disputes before they arise
- Work with experienced probate counsel who understand discovery strategy and fee recovery options
Precedents That Shaped This Decision
The court analyzed several key California cases to reach its conclusion:
- Carver I & II: Established that unilateral fee provisions override bilateral contractual fee agreements for overlapping claims
- Wood v. Santa Monica Escrow Co.: Applied this reasoning to financial elder abuse cases, barring contractual fees for intertwined tort claims
- Richmond: Held that different statutes with different purposes can coexist—the Cartwright Act’s unilateral provision doesn’t bar anti-SLAPP fees because they serve non-conflicting goals
The Gamo court extended the Richmond reasoning to cost-of-proof fees, emphasizing that harmonizing statutes with distinct purposes serves the public interest.
What Happens Next in This Case?
The case has been remanded to the trial court to determine whether the sellers are actually entitled to cost-of-proof fees under the factual circumstances. The trial court must now evaluate:
- Whether the plaintiff’s refusal to admit specific facts was unreasonable
- Whether the sellers ultimately proved those facts at trial
- What expenses were reasonably incurred in proving each disputed fact
- Whether the requested fee amount is reasonable
Practical Takeaways for Estate Administration
For executors and personal representatives managing estates and facing potential litigation:
- Discovery is now a cost-recovery opportunity. Well-crafted requests for admission can shift the financial burden back to plaintiffs who refuse to admit basic facts.
- Document everything. The ability to prove what you spent proving each fact is essential to recovering cost-of-proof fees.
- Understand what’s protected and what’s not. You still can’t recover general defense fees, but you can recover discovery sanction fees.
- Don’t assume all fee requests are the same. Each statutory basis for fees requires its own legal analysis and argument.
How California Probate and Trust Can Help
At California Probate and Trust, our experienced probate and trust administration attorneys help executors and personal representatives navigate complex litigation while protecting estates from unnecessary losses. We understand how to:
- Defend estates against financial elder abuse allegations
- Implement strategic discovery practices that position you for cost recovery
- Minimize your personal liability as an executor or trustee
- Recover appropriate fees and costs when you prevail
If you’re an executor facing litigation or concerned about potential claims, don’t wait until you’re in the middle of a lawsuit to develop your strategy.
Schedule Your Free Consultation Today
Our estate planning and probate attorneys offer free consultations to help you understand your legal obligations and protect yourself from personal liability. Whether you’re dealing with an active dispute or want to implement preventive measures, we’re here to provide the experienced guidance you need.
Contact California Probate and Trust today to discuss your situation with a qualified probate attorney who understands the complexities of elder abuse litigation and cost recovery.
Source: Gamo v. Merrell (2025) 113 Cal. App. 5th 656, Filed August 14, 2025, Fourth District, Division Three. Full case details available at California Lawyers Association.
