Costs Were Not Governed By CCP §§ 1032 or 998 Given How the Matter Was Tried.
Feuding nephew beneficiaries of a trust set up by a widow without issue tried a case in probate court involving claims of undue influence, lack of capacity, and elder abuse. The judge hearing the case, by a “close margin” denied the petition for relief, which inspired the prevailing nephew to file a cost memorandum for $60,313.38 ($46,463.03 of which was for expert witness fees).
In Blanchard v. Blanchard, Case No. A137777 (1st Dist., Div. 2 Feb. 25, 2014) (unpublished), the probate judge granted a motion to strike the entire costs memorandum request, prompting an appeal.
The costs ruling was affirmed. Contrary to prevailing nephew’s claims, the trial judge’s cost determination—because the matter was tried as a probate (not civil) matter—was governed by Probate Code section 1002, which allows the probate court to award costs in its discretion, not under the mandatory rubrics of CCP §§ 1032 or 998 (because 998 offers had been made). Rather, the parties’ trying of the case as a probate matter was seen as dispositive, because the elder abuse claim could have transferred to the civil department and tried there, but it never was. This means section 1002 reigned supreme, with the appellate court not having to decide if the lower court separately had discretion under section 998 to award expert witness fees.