Judge: Daniel S. Murphy, Case: BC59957, Date: 2023-01-06 Tentative Ruling

Case Number: BC59957    Hearing Date: January 6, 2023    Dept: 32

BACKGROUND

            Plaintiff Jorge Perez initiated this action against Defendant Hibachi Buffet on May 2, 2017, asserting negligence and premises liability for a slip and fall. On October 7, 2019, a jury returned a verdict in favor of Plaintiff. Judgment was originally entered on November 12, 2019, but the trial court granted a motion for judgment notwithstanding verdict, thereby vacating the original judgment. On December 2, 2022, the Court of Appeal reversed, effectively reinstating the November 12, 2019 judgment.

            On December 7, 2022, Plaintiff filed the instant motion to recover attorneys’ fees incurred in proving the truth of matters that Defendant denied in requests for admission.

LEGAL STANDARD

“If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or 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(a).) “The court shall make this order unless it finds any of the following:

(1) An objection to the request was sustained or a response to it was waived under Section 2033.290. (2) The admission sought was of no substantial importance. (3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter. (4) There was other good reason for the failure to admit.” (Id., subd. (b).)

DISCUSSION

By failing to oppose the motion, Defendant concedes its merit and confirms that an award of costs is warranted.

Plaintiff seeks to recover $200,630. A party may move to recover “reasonable” expenses incurred in proving the truth of matters denied in RFAs. (Code Civ. Proc., § 2033.420(a).) Plaintiff’s counsel’s hourly rate of $450 is reasonable given his experience. (See Kramer Decl. ¶¶ 25-27.) However, the number of hours claimed is unreasonably high. Plaintiff may only recover the costs of proving the denied RFAs, not the entire costs of litigation.

Plaintiff’s counsel avers that he spent 241.25 hours “proving that Defendant was negligent, that Plaintiff was not negligent, that Defendant's negligence caused the subject incident, and that Plaintiffs injuries were caused solely by Defendant's negligence.” (Kramer Decl., ¶¶ 29, 33.) This essentially encompasses the entire scope of the litigation. Additionally, the hours include generic litigation costs such as “appearing at depositions, preparing witnesses for deposition and trial including my client, preparing opening statement and closing arguments, crafting our trial strategy and preparing for trial, questioning witnesses, attending to all trial matters and appearing at trial . . . .” (Id., ¶ 30.) The firm’s paralegal claims an additional 89.5 hours spent on the same broad issues. (Twitty Decl. ¶¶ 4-7.) The associate attorney claims an additional 269.6 hours on general litigation tasks such as reviewing discovery responses, opposing motions, and “briefing other matters.” (Johnson Decl. ¶¶ 10-12.)

These costs are not limited to proving the truth of matters denied in the RFAs. The Court finds that Plaintiff’s law firm could not have reasonably spent around 600 hours on proving 17 RFAs. Plaintiff is essentially attempting to recover all the costs of litigation, which is not the purpose of Section 2033.420. The Court finds that Plaintiff’s counsel could only have reasonably spent 50 hours related to the RFAs in question, given the simplicity of the issues involved and Defendant’s failure to contest the facts at trial. At a rate of $450 per hour, this results in a total of $22,500.

CONCLUSION

            Plaintiff’s motion to recover costs of proof is GRANTED in the amount of $22,500.