Superior Court of California 

County of Los Angeles 

Department 78 

 

IRAJ KASHANI,

Plaintiff, 

vs. 

FARZANA SHEIKH., et al., 

Defendants. Case No.: BC709480

MOTION FOR COSTS OF PROOF, INCLUDING ATTORNEY’S FEES FILED BY DEFENDANTS FARZANA SHEIKH, SAEED MALA, AND DANIAL SHEIKH 

The motion for attorney’s fees and costs under Civ. Code, section 2033.420 filed by Defendants Saeed Mala and Danial Sheikh is DENIED.

Moving party to give notice. 

PROCEDURAL HISTORY 

Plaintiff Iraj V. Kashani filed his Complaint against Farzana Sheikh alleging three causes of action for embezzlement, conversion, and conspiracy on June 8, 2018.

On March 28, 2019, Plaintiff filed Doe Amendments naming Saeed Mala, Sohail Sheikh, and Danial Sheikh as defendants in this action.

On January 29, 2020, Plaintiff filed the operative First Amended Complaint.

On March 5, 2020, Saeed Mala, Farzana Sheikh, and Danial Sheikh (Danial) filed a Cross-Complaint.

On September 23, 2020, the Cross-Complaint was dismissed.

On May 25, 2023, Plaintiff again filed Doe Amendments naming Saeed Mala and Danial Sheikh as defendants in this action.

On September 18, 2023, the Court issued a statement of decision ruling in favor of Plaintiff against Farzana Sheikh and in favor of Defendants Danial Sheikh and Saeed Mala. 

DISCUSSION 

Defendants Danial Sheikh and Saeed Mala move for attorney’s fees under Code Civ. Proc., section 2033.420 on the grounds that Plaintiff failed to admit that Defendants did not conspire to steal money from Plaintiff.

Code of Civil Procedure section 2033.420, subdivision (a) provides that a party may seek the reasonable expenses including attorney fees of proving requests of admission that were denied by a responding party: 

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., section 2033.420, subd. (a).) 

Code of Civil Procedure, section 2033.420 shifts costs and expenses of proof only where the responding party refused to admit, i.e., denied, a request. (See Code Civ. Proc., section 2033.240, subd. (a) [“If a party fails to admit . . . .”].)  Costs may be awarded when the requesting party proves the matter at trial or on a motion for summary judgment. (Barnett v. Penske Truck Leasing Co., L.P. (2001) 90 CA4th 494, 497-499.)

A Court must award costs under Code Civ. Proc., section 2033.420 if a party fails to admit the genuineness of any document or fact which is later proven at trial unless one of the following exceptions applies:

(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 grounds to believe that that party would prevail on the matter. 

(4) There was other good reason for the failure to admit. 

 

(Code Civ. Proc., section 2033.420, subd. (b).)  

In evaluating whether a good reason exists for denying a request for admission, courts may consider the state of discovery at the time the request for admission was propounded. (Universal Home Improvement, Inc. v. Robertson (2020) 51 Cal.App.5th 116, 131; Pappas v. Chang (2022) 75 Cal.App.5th 975, 994.) 

Here, the requests for admission at issue were propounded on Plaintiff in April 2020. At that point, Plaintiff had recently filed an amended complaint and Defendants had just filed a Cross-Complaint. Discovery was ongoing and, based on Defendants’ counsel’s billing entries, appears to have extended into mid-2021. To admit that Mala and Danial Sheikh did not participate in the alleged conspiracy would have conceded Plaintiff’s claims against them had no merit. At that stage of discovery, it would not have been reasonable for Plaintiff to concede that Mala and Danial Sheikh were not involved in the alleged conspiracy. Thus, the Court finds that Plaintiff had good reason to deny the requests for admission. 

In the alternative, for the reasons stated by Plaintiff, the Court finds that Plaintiff had reasonable grounds to believe at the time of the denial of the admissions that Plaintiff would prevail at trial.

However, even if no exception applies, Defendants’ demand for fees and costs is co-extensive with expenses that would have been incurred regardless of whether the RFAs at issue were admitted.

Only expenses resulting from a responding party’s failure to admit a request for admission are awardable under Code Civ. Proc., section 2033.420. (Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724, 737.) Recoverable expenses are limited to reasonable expenses incurred in proving the admissions. (Association for Los Angeles Deputy Sheriffs v. Macias (2021) 63 Cal.App.5th 1007, 1028.) The requested amounts must be segregated from costs and fees expended to prove other issues. (Grace v. Mansourian (2015) 240 Cal.App.4th 523, 529.) Fees and expenses that would have been generated even if the responding party had admitted the requests for admission are not recoverable. (Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724, 737.)

Here, Defendants’ counsel’s billing entries cover the entire case. However, Defendants’ counsel does not address the fact that he represented a third defendant, Farnaza Sheikh, who was found liable in this matter. Defendants’ counsel fails to distinguish tasks separate and apart from those required for the defense of the third defendant, Faranza Sheikh.  Regardless of whether Danial Sheikh and Mala remained as defendants, they would have been deposed, documents would have been sought from them, and they would have testified at trial due to their close familial relationships to Defendant Faranza Sheikh and their involvement in matters relating to this case. Danial Skeikh was Defendant’s Faranza Sheikh’s son and had numerous deposits of cash into his bank accounts, including some admittedly supplied by Defendant Faranza Sheikh. Defendant Mala was Defendant Faranza Sheikh’s brother-in-law and worked for Plaintiff prior to Defendant Faranza Sheikh. Additionally, Defendant Sheikh called both of these individuals when Plaintiff confronted her about her theft. 

Defendants’ motion for attorney’s fees under Code Civ. Proc., section 2033.420 is denied.

DATED:  March 26, 2024 

_______________________

Hon. Jill Feeney  

Judge of the Superior Court