Schmidt - Trust

the entirety of the letter could have been sent the first week of December 2025.

Petitioners further argue that no sanctions should be awarded because of the "very abbreviated meet-and-confer period before Respondent's counsel filed the Motion." (Id. at 7:7-8.) The court finds such argument unpersuasive. It was Citibank that imposed the short time limit for Respondent to file the motion to quash, even over Respondent's objection. (Id. at Ex. D.) Moreover, Petitioners do not address their failure to serve Respondent with a Notice to Consumer or with a copy of the subpoena. Had Petitioners given proper notice of the subpoena to Respondent, Respondent would have had sufficient time to meet and confer before filing a motion to quash. Instead, Respondent had to prepare and file a motion to quash in a short period of time during the holiday season.

Finally, Petitioners argue that sanctions should not be awarded because they ultimately narrowed the scope of the subpoena in good faith and because the subpoena was not oppressive or unreasonable. The court is not persuaded. While the subpoena itself may not have been oppressive, the lack of notice, as well as the failure to remedy or explain the lack of notice, does indicate bad faith. Moreover, with proper notice, the subpoena could have been narrowed during the meet and confer process without the necessity of filing a motion to quash.

On the record presented, there appears to be no substantial justification (i.e., reasonable basis in law or fact) for opposing the instant motion. The court AWARDS Respondent attorney’s fees of $3,060.00 pursuant to Code of Civil Procedure section 1987.2, payable by Petitioners to Garrett Charchidi, LLP within 30 days of notice of this ruling, extended for method of service, or by any further date as agreed upon by the parties in writing.

By stipulation of the parties, the initial subpoena issued on 11/25/26 is ORDERED quashed, and Petitioners may serve Citibank with the revised subpoena attached as Exhibit "I" to the declaration of Jonathan J. Coleman (ROA 88).

01194033 Schmidt - TENTATIVE RULING Trust Case: Schmidt - Trust 01194033

Calendar No: 6 Date: 08/19/26

MOTION TO STRIKE OR TAX COSTS (ROA 480)

Respondents Christine Wysocki and Kathryn Welton (collectively, "Respondents") have filed a motion to strike or tax the Memorandum of Costs and the Memorandum of Attorney's Fees filed by Petitioner David G. Schmidt ("Petitioner"). (ROA 480.)

On 8/18/26, the court issued a minute order deeming the Memorandum of Attorney's Fees (ROA 462) a motion and setting it for hearing on 11/20/26 at 9:00 a.m. in Department CM05. (ROA 565.) Said minute order also directed that the instant motion proceed only as to the request to strike or tax costs.

Accordingly, this motion proceeds solely as a motion to strike or tax costs.

“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.” (Prob. Code § 1002, emphasis added.)

The right to costs is governed strictly by statute, and courts cannot award costs that are not statutorily authorized (Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765.) Subdivision (a) of Code of Civil Procedure Section 1033.5 lists items that are allowable as cost, while subdivision (b) lists items that are not allowable as costs. Moreover, subdivision (c)(4) of Section 1033.5 allows the court discretion to award or deny items of costs not mentioned in the statute, but this does not extend to items explicitly disallowed (Rojas v. HSBC Card Services Inc. (2023) 93 Cal.App.5th 860).

Pursuant to Probate Code section 1002, the probate court has discretion whether to award costs and how to allocate payment of costs. There is no case law stating the probate court has discretion to award costs specifically disallowed by Code of Civil Procedure section 1033.5(b).

"In ruling upon a motion to tax costs, the trial court's first determination is whether the statute expressly allows the particular item and whether it appears proper on its face; ‘if so, the burden is on the objecting party to show [the costs] to be unnecessary or unreasonable.’” (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29, citation omitted.)

“If the items in a cost memorandum appear proper, the verified memorandum is prima facie evidence the expenses

were necessarily incurred by the defendant; the burden of showing an item is not properly chargeable or is unreasonable falls on the objector.” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 858.)

Here, Respondents first seek to strike the entirety of the Memorandum of Costs based on allegations of trial misconduct, discovery misuse, and bad faith conduct warranting sanctions pursuant to Code of Civil Procedure section 128.5. None of these arguments are applicable to a motion to strike or tax costs set forth in a memorandum of costs. Thus, Respondents' motion to strike the MOC in its entirety is denied.

Respondents also move to tax the following specific costs:

Item 4 - Deposition Costs

Petitioner requests a total amount of $40,774.33 in costs for depositions.

Fees for "necessary" depositions are expressly allowable as costs. (Code Civ. Proc. § 1033.5(a)(3).)

Respondents argue that the total amount should be reduced because Petitioner did not prevail on his incapacity claim. Respondent does not specify how the amount should be reduced. Attachment 4E to the MOC lists costs for approximately 20 depositions that were taken. Respondent does not argue that all 20 depositions were taken for the purpose of proving a lack of capacity, nor does Respondent point to any depositions that were taken solely for such purpose. Moreover, Petitioner correctly argues that the issue of capacity is also relevant to the element of vulnerability in the cause of action for undue influence. Thus, the court denies the vague request to "reduce" the total amount.

Nonetheless, fees for expert witnesses not ordered by the court are expressly disallowed by Code of Civil Procedures section 1033.5(b)(1). Respondent argues that costs in the amount of $2,500 for Dr. Leka's fees should be disallowed.

Accordingly, the court grants the motion to tax costs for Item 4 in the amount of $2,500.

Item 11 - Court Reporter Fees Established by Statute

As to costs for court reporter fees, Respondents argue that Petitioner "fails to support the request for $11,656.00 as established by statute." Such argument is made in

conclusory fashion without any facts, law, or argument offered in support. Thus, the court is not required to consider it. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956; Quantum Cooking Concepts, Inc. v. LV Assocs., Inc. (2011) 197 Cal.App.4th 927, 934; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830; People v. Stanley (1995) 10 Cal.4th 764, 793.)

The motion to tax costs for Item 11 is denied.

Item 13 - Models, Enlargements, and Photocopies of Exhibits

Respondents argue that Petitioners failed to prove that the exhibits were used at trial and aided the trier of fact.

As stated above, in ruling on a motion to tax costs, the court determines whether the cost is allowed and if it appears proper on its face. If so, the party objecting to the costs has the burden of showing that the cost is unnecessary or unreasonable. (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29, citation omitted; Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 858.)

Here, the costs requested are allowable and appear proper. Respondents have not made any showing that the amount of $408.18 was unnecessary or unreasonable.

The motion to tax costs for Item 13 is denied.

Item 15 - Other

Respondents argue that Petitioner failed to show necessity, reasonableness and authority for subpoena costs of $5,902.01. Once again, Respondents bear the burden of showing that costs are unnecessary or unreasonable. Respondents have not met that burden. The court exercises its discretion under Code of Civil Procedure section 1033.5(c)(4) to allow such costs.

Respondents correctly argue that fees for experts not ordered by the court, and the costs of postage, telephone, and photocopying (except for exhibits) are expressly disallowed by statute. (Code Civ. Proc. § 1033.5(b)(1) and (3).) Investigation expenses are also prohibited costs. (Code Civ. Proc. § 1033.5(b)(2). Thus, the court cannot allow Petitioner to recover costs in the amount of $57,687.50 for expert consultation fees or $343.42 for miscellaneous other fees that include postage, copy fees, and Data Tree searches.

The court grants the motion to tax costs for Item 15 in the amount of $58,030.92.

Counsel for Respondents is to ordered to give notice of this ruling.

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