In Dicta, Appellate Court Suggested 998 Offers May Not Be Barred In Probate Litigation.
Estate of Howell, Case No. D081920 (4th Dist., Div. 1 May 23, 2024) (unpublished) is interesting reading for probate practitioners.
This case involved a battle over attorney fee compensation to be divided between the administrator wife of a deceased attorney and another attorney (who was a friend of the deceased attorney and appointed to wind down the law practice). That latter attorney brought significant fees into the practice being wound down. The attorney sent a CCP § 998 offer to administrator wife to the tune of $300,000, which was not accepted. The matter proceeded to trial, with the attorney getting $872,914 and with wife obtaining $237,428. Attorney used a forensic accountant expert who the lower court found very helpful in establishing the court’s division of fee compensation, later awarding $53,240.80 in expert witness fees to the attorney. Wife appealed the postjudgment expert witness fee order.
The 4/1 DCA affirmed. It found the lower court had discretion to award the expert fees under Probate Code sections 1000 and 1002. However, the panel then stated that it did not believe that CCP § 998 offers were barred in probate litigation, so that was another ground on which to affirm—even though it did not have to determine if section 1002 superseded “the constellation” of CCP §§ 1032, 1033.5, and 998 or whether the CCP governs in the absence of more Probate Code specificity. The expert fee award was no abuse of discretion no matter which analytical path was chosen.
BLOG UNDERVIEW—For those interested in this area, see our December 4, 2023 post on Peccia v. Guerrero, an unpublished opinion suggesting that section 1002 does supersede CCP §§ 1032, 1033.5 (although section 998 was not at issue).
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