Judge: Michelle Williams Court, Case: 18STCV01200, Date: 2022-09-06 Tentative Ruling

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Case Number: 18STCV01200    Hearing Date: September 6, 2022    Dept: 74

18STCV01200           PAUL G PESCHEL vs JOSHUA BORDIN-WOSK

Defendant Joshua Bordin-Wosk’s Motion to Recover Reasonable Expenses and Attorneys’ Fees against Plaintiff Maribel Garcia for Failure to Admit Truth of Matter Specified in Requests for Admission

TENTATIVE RULING:  Defendant Joshua Bordin-Wosk’s Motion to Recover Reasonable Expenses and Attorneys’ Fees against Plaintiff Maribel Garcia for Failure to Admit Truth of Matter Specified in Requests for Admission is GRANTED.  Pursuant to Code of Civil Procedure section 2033.420, Plaintiff Maribel Garcia is ordered to pay Defendant Joshua Bordin-Wosk $11,022.45 within 30 days.

Background

On October 17, 2018, Plaintiffs Paul G. Peschel and Maribel Garcia filed this action against Defendants Joshua Bordin-Wosk, Bordin Martorell, LLP, Bordin Semmer, LLP, Brenna Johnson, Johnson Employment Law, Thomas E. Nanney, Sean D. Muntz, and Rahn Muntz O’Grady LLP. The complaint asserted three causes of action: (1) legal malpractice, (2) legal malpractice, and (3) breach of fiduciary duty.  

On April 28, 2021, the Court issued an order granting Defendants Bordin Martorell, LLP, Bordin Semmer, LLP, and Joshua Bordin-Wosk’s motion for summary judgment.

Motion

On December 16, 2021, Defendant Joshua Bordin-Wosk filed the instant motion requesting the Court order Plaintiff to pay $11,022.45 because of Plaintiff’s failure to admit certain requests for admission.

The motion is unopposed. (Code Civ. Proc. § 1005(c).)

Motion for Fees for Failure to Admit Request for Admissions

Standard

Pursuant to Code of Civil Procedure section 2033.420(a), “[i]f 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.” Additionally, “[t]he 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(b).)

“Costs of proof are available against a party only, not its counsel.” (Estate of Manuel (2010) 187 Cal.App.4th 400, 404.) “[I]f a party denies a request for admission (of substantial importance) in circumstances where the party lacked personal knowledge but had available sources of information and failed to make a reasonable investigation to ascertain the facts, such failure will justify an award of expenses . . .” (Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 510.) “An RFA has ‘substantial importance’ if it is ‘central to disposition of the case.’” (Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 690. See also Brooks, supra, 179 Cal.App.3d at 509 (“as a general rule a request for admission should have at least some direct relationship to one of the central issues in the case, i.e., an issue which, if not proven, would have altered the results in the case.”).)

Sanctions for failing to admit requests for admissions may be awarded after summary judgment. (See Barnett v. Penske Truck Leasing (2001) 90 Cal.App.4th 494, 499.) “The statute does not require that fees and costs must be separately allocated to each specific request for admission, particularly not where, as here, virtually all the requests relate to a single issue.” (Association for Los Angeles Deputy Sheriffs v. Macias (2021) 63 Cal.App.5th 1007, 1030.) The statute only applies after a denial is served. (Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724, 736.)

Defendant Met His Burden and the Motion is Unopposed

On February 20, 2019, Defendant Joshua Bordin-Wosk served Requests for Admission to Plaintiff Maribel Garcia, Set One, seeking the following admissions:

(1)   Admit that Joshua Bordin-Wosk never represented you.

(2)   Admit that you never engaged Joshua Bordin-Wosk in an attorney-client relationship.

(3)   Admit that Bordin Semmer, LLP never represented you.

(4)   Admit that you never engaged Bordin Semmer, LLP in an attorney-client relationship.

(5)   Admit that Bordin Martorell, LLP never represented you.

(6)   Admit that you never engaged Bordin Martorell, LLP in an attorney-client relationship.

(Lupton Decl. Ex. A.) On April 26, 2019, Plaintiff provided verified responses unequivocally denying each of these requests without objection. (Lupton Decl. Ex. B.) On September 9, 2020, Plaintiff Garcia admitted at her deposition that she did not have any communication with Defendant Joshua Bordin-Wosk, was not aware of having had any communication with his firm, and did not consider Defendant or his firm to be her attorney. (Lupton Decl. Ex. C, Garcia Depo. at 22:17-19, 139:11-143:23.)

On April 28, 2021, the Court granted Defendant’s motion for summary judgment, finding “[t]he moving defendants proffer sufficient evidence, primarily in the form of Garcia's deposition testimony, that she never had an attorney-client relationship with them because she never retained them or otherwise considered them to be her attorneys. [Citation] Defendants did not otherwise provide any legal advice and their involvement in Garcia's action was limited to being copied on emails regarding Peschel's representation and/or participating in conference calls connected with Peschel's representation.”

Plaintiff failed to oppose the instant motion for fees and expenses motion and therefore has not demonstrated any of the exceptions in Code of Civil Procedure section 2033.420(b) apply. There were no objections or waiver of the right to a response, the admissions went to a key issue in this action regarding the existence of a duty owed to Plaintiff Garcia, the Court does not find any reasonable ground to believe Plaintiff would prevail on the issue, and there do not appear to be any other good reasons for Plaintiff’s failure to admit the requests. (Code Civ. Proc. § 2033.420(b).)

Defendant seeks $11,022.45 consisting of $9,468.00 in attorneys’ fees and $1,554.45 in costs against Plaintiff. The attorneys’ fees, at a rate of $240.00 per hour, include 9.35 hours associated with preparing for and taking Garcia’s deposition, 13.6 hours drafting the motion for summary judgment, 14.0 hours reviewing the opposition and drafting the reply, 2.0 hours preparing for and attending the hearing, and 0.5 hours drafting the judgment. (Lupton Decl. ¶ 10.) The requested costs include $999.60 for the deposition and $554.85 in court fees for the summary judgment motion. (Id. ¶ 11.) The Court finds these expenses were incurred in proving the admissions false and are recoverable under Code of Civil Procedure section 2033.420.

The motion is GRANTED.