Judge: Deborah C. Servino, Case: 30-2017-00945345, Date: 2022-10-07 Tentative Ruling

Defendant Ana Martinez’s motion for attorney’s fees and costs pursuant to Code of Civil Procedure 2033.420, is denied.

Martinez moves for an award of $67,177.38 in fees, costs and expenses against Plaintiff Michael Barnes, under Code of Civil Procedure section 2033.420, subdivision (a), in connection with his denial of 21 requests for admission. In the requests, Martinez asked Barnes to admit that he had “no facts” or “documents” to support certain contentions made in Plaintiffs’ complaint, including, that: Martinez “pawned some of your stolen items”; “a majority of the stolen items remain in the possession, custody or control of [Martinez]”; Martinez “continues to have possession, custody or control of the majority of the stolen items”; Martinez “wrongfully converted the stolen items for her own use and possession without plaintiff’s knowledge or consent”; Martinez “acted willfully, fraudulently, maliciously, oppressively, despicably and with a conscious disregard of plaintiff’s rights”; Martinez “is in possession of all or some of the stolen items”; and, Martinez “is in possession of proceeds obtained from the sale of disposition of all the stolen items.” Martinez also asked Barnes to admit he was not aware of any person “who may have witnessed the events that transpired,” supporting each contention, above. Subject to his objections of “vague, ambiguous and unintelligible” and “attorney-client and/or work product privileges,” Barnes responded to each request with a denial.

Code of Civil Procedure section 2033.420 provides:

(a) 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.

(b) 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.

(Code Civ. Proc., § 2033.420.)

In ruling on the motion, the court “must make an initial determination that there was a request for admission and a denial, and that the moving party proved what was denied.” “If the moving party succeeded in proving what was denied, the judge must grant the motion and order reimbursement of the moving party's reasonable expenses incurred in making that proof, including reasonable attorney's fees,” unless one of the exceptions under subdivision (b) applies. (Cal. Judges Benchbook: Civ. Proceedings Discovery (CJER 2022) § 22.39.) “The party seeking to benefit from an exception listed in section 2033.420, subdivision (b) ‘bears the burden to establish the exception.’”  (Spahn v. Richards (2021) 72 Cal.App.5th 208, 216, citation omitted.)

Here, Martinez established “there was a request for admission and a denial,” but she only proved the truth of some of the requests that were denied. Specifically, at trial, Martinez proved that Barnes did not have any documents or witnesses to support the allegations made in the complaint, as it was clear that Barnes was attempting to prove his conversion claim against Martinez without documents or persons who witnessed the events alleged in the complaint.

On the other hand, as Barnes points out, while the jury “ultimately did not decide in Plaintiffs’ favor, this does not mean that Plaintiff Barnes did not have evidence. It only meant that the jury was not persuaded by the evidence presented.” (Opp., at p. 6.) The requests appear to have been drafted to support a motion for summary judgment under Code of Civil Procedure section 437c, subdivision (p)(2), as Barnes was asked to admit he had “no facts” to support these contentions. The “relevant question” under section 2033.420 is “whether the litigant had a reasonable, good faith belief he or she would prevail on the issue at trial,” (Samsky v. State Farm Mutual Automobile Ins. Co. (2019) 37 Cal.App.5th 517, 526), but Martinez asked Barnes to admit he had no facts whatsoever.

Although Martinez arguably proved that Barnes did not have a reasonable basis for denying that he had no documents or witnesses to support his allegations, these issues concerned how Barnes would prove his claim, i.e., what forms of evidence, but did not go to issues of substantial importance. Likewise, whether Barnes had facts, documents, or witnesses to seek an award of punitive damages was only secondary to, and completely dependent on, Barnes proving the primary issue of whether Martinez was liable for conversion.

Lastly, Martinez appears to be asking to recover all fees, costs, and expenses she incurred from the inception of this case, without distinguishing which ones were “incurred in making that proof.” Fees under section 2033.420 “can be awarded only for the period after [the responding party] denied the requests for admissions.” (Yoon v. Cam IX Trust (2021) 60 Cal.App.5th 388, 395.) Assuming for the sake of argument that Martinez was entitled to an award under subdivision (a), she has not shown that she incurred the entirety of the requested $67,177.38, “in making that proof.”

The denial of the instant motion is without prejudice as to the upcoming motion to tax or strike costs, as it appears that Martinez seeks costs on a separate ground as the prevailing party.  (See Opp. to Mot. to Tax or Strike Costs [ROA 450].) 

Plaintiffs shall give notice of the ruling.