Judge: Melvin D. Sandvig, Case: PC058730, Date: 2023-04-07 Tentative Ruling

Case Number: PC058730    Hearing Date: April 7, 2023    Dept: F47

Dept. F47

Date: 4/7/23                                                           

Case #PC058730

 

MOTION FOR ATTORNEYS’ FEES

 

Motion filed on 12/20/23.

 

MOVING PARTY: Defendants Colleen Montgomery and Larry Campbell

RESPONDING PARTY: Plaintiff Jeffrey Drummen

NOTICE: ok

 

RELIEF REQUESTED: An order awarding Defendants Colleen Montgomery and Larry Campbell attorneys’ fees that were incurred in this litigation in the amount of $65,277.00 against Plaintiff Jerry Drummen pursuant to CCP 2033.420.

 

RULING: The motion is denied.   

 

SUMMARY OF FACTS & PROCEDURAL HISTORY

 

In this action, Plaintiff Jeffrey Drummen (Plaintiff) claimed that Defendants Colleen Montgomery and Larry Campbell (Defendants) breached a settlement agreement entered between Plaintiff and former defendant Julia Surtshin, as Trustee of the Surtshin Family Trust (Surtshin) on 6/27/09 regarding maintenance of trees on the Prairie Property which encroached onto the Shoshone Property.  Surtshin was the former owner of property located at 17550 Prairie Street, Northridge, CA (Prairie Property).  Plaintiff was the owner of real property located at 9264 Shoshone Avenue, Northridge, CA (Shoshone Property).

 

On 6/2/09, Surtshin sold the Prairie Property to Defendants Gregory and Leanna Samples (the Samples).  On 11/30/17, the Samples sold the property to Defendants.  Plaintiff alleges that on 4/16/18 he was required to sell the Shoshone Property and the purchase price was reduced because of repairs of walkways, a wall, fences and structural damages caused by the trees on the Prairie Property. 

 

On 8/21/18, Plaintiff filed this action against Surtshin, the Samples and Defendants.  The operative First Amended Complaint contained causes of action for breach of settlement agreement and negligence, both of which were alleged against Defendants.  The action went to trial against the Samples and Defendants.   

 

On 7/7/22, the jury returned a verdict in favor of Defendants and against Plaintiff and in favor of Plaintiff and against the Samples in the amount of $13,799.98.  Plaintiff’s Motion for Judgment Notwithstanding the Verdict and Motion for Additur or New Trial were denied.

 

On 12/20/23, Defendants filed the instant motion seeking an order awarding Defendants  attorneys’ fees that were incurred in this litigation in the amount of $65,277.00 against Plaintiff pursuant to CCP 2033.420.  Plaintiff has opposed the motion and Defendants have filed a reply to the opposition. 

 

ANALYSIS

 

CCP 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.

  

 

On or about 5/8/19, Defendants served Plaintiff with Requests for Admissions, Set 1.  (Abraham-Orejuela Decl. ¶8, Ex.A).  On 5/16/19, Plaintiff served responses to the Requests for Admissions.  (Id. ¶9, Ex.B).  On 6/19/19, Plaintiff served further responses to the Requests for Admissions.  (Id. ¶10, Ex.C).

 

In their motion, Defendants fail to provide any substantive argument in support of their request for an award of attorneys’ fees pursuant to CCP 2033.420.  Defendants merely cite CCP 2033.420, set forth the 20 Requests for Admissions in Set 1 and Plaintiff’s responses or indicate that Plaintiff failed to provide responses to certain of the Requests for Admissions and then conclude that they are entitled to an award of $65,277.00.  (See Motion p.4:15-p.9:17).  Then, Defendants argue that the fees sought are reasonable based on the hourly rates charged and the fact that defense counsel has performed work on this case since October 2018.  (See Motion, p.9:18-p.10:4).

 

Plaintiff did not provide unqualified admissions to Requests for Admissions numbers 1, 2, 3, 4, 5, 8, 9, 10, 11 and failed to respond to Requests for Admissions numbers 12, 13, 14, 15, 16, 17, 18, 19 and 20.  (Abraham-Orejuela Decl., Ex.B, C).  Defendants provide no explanation as to why they did not move to have Requests for Admissions numbers 12-20 admitted since Plaintiff failed to provide responses to those requests which would have saved them any fees/costs associated with proving those matters at trial (if, they were proved).  See CCP 2033.280.

 

Also, CCP 2033.420 would not be operative until after Plaintiff failed to admit the Requests for Admissions; therefore, any expenses incurred prior to 5/16/19, at the earliest, and 6/19/19, at the latest, would not be recoverable.  See Garcia (1994) 28 CA4th 724, 736; Wimberly (1997) 56 CA4th 618, 638.  Further, CCP 2033.420 only authorizes those expenses “incurred in making that proof,” (i.e., proving the matters denied or not admitted by the opposing party).  Garcia, supra at 737; See also In re Tobacco Cases II (2015) 240 CA4th 779, 807-808.

 

Defendants have failed to establish that they actually proved the truth of the matters in the subject Requests for Admissions.  See Grace (2015) 240 CA4th 523, 529-530 (Costs of proof are only recoverable where the moving party actually proves the matters that are the subject of the requests which means evidence must be introduced.).  In the reply, Defendants state without any supporting evidence (i.e., deposition or trial transcripts) that “Plaintiff himself testified in deposition and trial that he never talked to my clients about trees.”  (See Reply, p.3:22-23).  Again, without any supporting evidence, Defendants conclude that the requests were of substantial importance and claim that they “had to do a whole trial because Plaintiff maintained a case based on the idea that my clients had knowledge of the tree issues and then testified the other way at trial.”  (See Reply, p.5:27-28).  Defendants provide no evidence to support their claim that “[e]ach of requests on which the motion was based has at least some direct relationship to one or more of these central issues.  In fact, each request goes to the very heart of one or more issues.”  (See Reply, p.5:28-p.6:2).

 

Even if Defendant had met their burden of establishing that each of the requests at issue were of substantial importance and were actually proved at trial, Defendants have failed to set forth the hourly fees or the time spent to prove the information in each request (if they, in fact were proved).  Instead, the motion includes conclusory statements regarding the reasonableness of the hourly fees which is not supported by the accompanying declaration and seeks to recover all of Defendants’ attorneys’ fees incurred from the inception of the case.  (See Motion, p.9:25-28, p.10:1-4; Abraham-Orejuela Decl.).  The exhibit attached in support of the fees requested fails to establish the time spent and/or fees incurred to prove each of the Requests for Admissions at issue.  (See Abraham-Orejuela Decl., Ex.E); See Grace, supra; Wimberly, supra.

 

CONCLUSION

 

Based on the foregoing, the motion is denied.