Did You Know

There is now a split of authority in the Courts of Appeal as to how to calculate double damages under Probate Code section 859 (“Section 859”). On the one hand, the Fourth District Court of Appeal in the Conservatorship of Ribal (2019) 31 Cal.App.5th 519, held that if an underlying damage award is $10, then under Section 859, the court can award an additional $10, for a total of $20; but doubling damages does not mean adding $20 to a $10 underlying damages award for a total of $30, which would in effect be the equivalent of treble damages.

However, the Fifth District Court of Appeal in Ashlock v. Carlson (2020) 2020 WL 1041066, 14-18, recently held just the opposite – i.e., that because Probate Code section 856 grants the probate court the power to order a conveyance of money or property and to grant other appropriate relief, and Probate Code section 859 permits the court to award damages in the amount of twice the value of the property recovered – then this statutory scheme permits for the recovery of lost property plus double damages (or, in the above hypothetical, the underlying $10 would be returned plus a $20 double damages award, for a total of $30 awarded.)

Because of this split in authority, this issue is now ripe for resolution before the California Supreme Court.