Costs, Probate: Probate Code Section 1002 Takes Precedence Over General CCP § 1032(b) Prevailing Party Provisions

Probate Court Has Discretion To Determine Whether Costs Should Be Awarded, Who Should Pay Them, And Who Should Recover Them.

            Peccia v. Guerrero, Case No. B316614 (2d Dist., Div. 3 Dec. 4, 2023) (unpublished) is an opinion reminding practitioners that specific Probate Code provisions may take precedence over more general CCP prevailing party statutory provisions.

            In this case, petitioners and respondents got involved in probate disputes involving two different subtrusts, with each side partially prevailing on certain claims relating to the different subtrusts.  The lower court determined that no attorney’s fees or costs should be awarded to either side.  One of the petitioners appealed, but he did not obtain a change in result.

Under Probate Code section 1000(a), the “rules of practice applicable to civil actions” apply to proceedings under the Probate Code, “[e]xcept to the extent that this code provides applicable rules.” Section 1002 provides: “Unless it is otherwise provided by this code or by rules adopted by the Judicial Council, either the superior court or the court on appeal may, in its discretion, order costs to be paid by any party to the proceedings, or out of the assets of the estate, as justice may require.”  Case law holds that, notwithstanding CCP § 1032(b) mandatory prevailing party costs provisions generally applicable, the probate court has specialized discretion to determine whether costs should be awarded, who pays them, and who recovers them.  (Hollaway v. Edwards, 68 Cal.App.4^th 94, 99 (1998).)  In this instance, given partially prevailing parties on both sides of the “litigation coin,” the probate court did not abuse its discretion in not awarding CCP prevailing party costs to appellant.