Section 998 Inapplicable In Probate Proceeding.
In a dispute involving the reformation of the terms of a “tontine” or survivalist partnership agreement, a probate estate was denied “costs-of-proof” attorney’s fees under Code of Civil Procedure section 2033.420 and had stricken its memorandum seeking post-remand costs based on Code of Civil Procedure section 998 and Probate Code section 1002. Those determinations were affirmed on appeal in Estate of Silveira, Case Nos. A141310/A141421 (1st Dist., Div. 3 Aug. 31, 2015) (unpublished).
The estate served trustee of a related trust with RFAs about the book value of the deceased’s partnership interest at the time of death, with the trustee serving objection-only responses claiming they were premature and called for expert opinions. The court ordered further responses, and the trustee responded that she was unable to admit the matters based on a reasonable inquiry and information known/obtainable. Rather than challenge the responses directly, estate’s attorney chose to send out an identical, new set of RFAs, drawing the same responses from trustee as before—with the estate not challenging these RFA responses either. After entry of judgment, the estate sought cost-of-proof sanctions of $173,690.72 in fees and costs. The lower court denied the motion because the estate did not properly challenge the second or third RFA requests and because the trustee had reasonable grounds for denying the RFAs. The appellate court agreed. Estate’s failure to timely move to compel RFA responses waived the right to compel further responses as well as costs-of-proof sanctions. (Code Civ. Proc., § 2033.290(c); Wimberly v. Derby Cycle Corp., 56 Cal.App.4th 618, 635-636 (1997).)
Estate served the trustee with two pre-hearing offers to compromise, neither of which was accepted. Estate then moved to recover over $88,300 in costs and expert witness fees, prompting a motion to tax costs from trustee under CCP § 998, a ruling also sustained by the appellate court. Initially, it agreed that Probate Code section 1002, which authorizes the lower court in its discretion to impose costs “as justice may require,” trumps the mandatory language of CCP § 998—citing an analogous family law case. (In re Marriage of Green, 213 Cal.App.3d 14, 24 (1989).) Beyond that, the lower court’s conclusion that the overall results of the litigation were “mixed,” requiring each side to bear its own costs, constituted no abuse of discretion.
Trivia: The antic movie The Wrong Box, with a cast that included Peter Sellers, Michael Caine, Dudley Moore, and other wonderful English actors, involved the last survivors of a tontine fighting over the fortune. The movie is based on a comic novel by Robert Louis Stevenson and Lloyd Osbourne.
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