Judge: Colin Leis, Case: 19STCV33960, Date: 2023-09-15 Tentative Ruling

Case Number: 19STCV33960    Hearing Date: September 15, 2023    Dept: 74

Tatro Tekosky Sadwick LLP v. Douglas MacLean, et al.

Motion for Attorney Fees

The court considered the moving papers, opposition, and reply.

In January 2020, Defendant served Plaintiff with requests for admission (RFAs). Plaintiff served responses containing multiple denials on March 11, 2020. In January 2023, the court entered judgment for Defendant. Defendant thereafter filed this motion under Code of Civil Procedure section 2033.420 to recover the attorney’s fees and costs it incurred in needing to prove matters that Plaintiff purportedly wrongfully denied in response to the RFAs.

Section 2033.420 states in pertinent part, “If a party fails to admit . . . the truth of any matter . . . and if the party requesting that admission thereafter proves . . . the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees.” (Code Civ. Proc., § 2033.420, subd. (a).) Section 2033.420 is a cost-shifting statute intended to compensate a party for the additional costs it incurred in proving a matter that the party should not have needed to incur because the party’s opponent should have admitted those matters during discovery. (City of Glendale v. Marcus Cable Associates, LLC (2015) 235 Cal.App.4^th 344, 354, 359.)

            Section 2033.420 limits recovery to the attorney’s fees and costs incurred from the time of the wrongful denial. (Yoon v Cam IX Trust (2021) 60 Cal.App.5^th 388, 395.) Here, Plaintiff served its denials on March 11, 2020. Thus, Defendant at most may recover attorney’s fees and costs incurred only on or after March 11, 2020. Defendant’s motion seeks a lodestar recovery, calculated as an hourly rate multiplied by total hours. (See Mtn. pp. 12-13; Decl. Matthew Eanet p. 2 ¶14.) Defendant’s lodestar calculation does not make clear, however, whether the total hours involved only legal work on or after March 11, 2020. But even if one assumes the hours are only for work on or after March 11, Defendant’s motion misapprehends the expenses that the statute makes recoverable. The statute allows recovery only for expenses incurred in proving the wrongfully denied matter. But Defendants’ motion seeks recovery for expenses that Defendant did not incur in proving a wrongfully denied matter (e.g. preparing post-closing trial briefs, which black letter law establishes are not evidence or proof). Winning at trial is not necessarily the same as proving “the truth of the matter” that one’s opponent wrongfully denied during discovery, and a motion to recover expenses under section 2033.420 must show more than victory at trial. In short, Defendant’s motion does not meet the threshold of showing the expenses it incurred on or after March 11, 2020, “in making . . . proof” (§ 2033.420, subd. (a)) that entitled Defendant to recover those expenses. Given the fatal defect in Defendant’s motion, the court need not reach Plaintiff’s contention that Plaintiff had a reasonable basis for Plaintiff’s denials.

The court denies the motion.

Defendant shall give notice.