Judge Richard J. Burdge, Case 20STCV48511 2022-12-16 Tentative Ruling

MOVING PARTY: Defendants QUI & C. CORP dba T & L GRANITE COUNTERTOP WAREHOUSE (erroneously sued as T&L PREFAB-SLAB SUPPLY, INC. and QUI & C CORP)

OPPOSING PARTY: Defendants QUI & C. CORP dba T & L GRANITE COUNTERTOP WAREHOUSE (erroneously sued as T&L PREFAB-SLAB SUPPLY, INC. and QUI & C CORP)

Both parties filed motions to recover costs of proof for having to prove matters to which the other party did not admit. Both sides essentially asked the other side to admit that it was negligent and that negligence was the cause of Plaintiff’s injuries. Both sides served objections to the requests for admission but concluded with the statement that without waiving the objections DENY.

Both sides contend in their oppositions that the other side never filed a motion to compel with respect to the objection and thereby waived the right to seek costs of proof. (See P’s Obj. 4:11-5:13; Ds’ Obj. 3:7-23.) Both sides cite Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 623 in support of that position.

Defendants make other arguments why Plaintiff’s motion should be denied. To the extent necessary, those will be discussed later.

The parties are correct that Wimberly states: “Wimberly is not entitled to costs associated with the medical care issue, because he made no motion to compel a further response after Derby objected to the request for admission. (§ 2033, subd. (l ).) (Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 636.) That conclusion was further refined in American Federation of State, County & Municipal Employees v. Metropolitan Water Dist. of Southern Calif. (2005) 126 CA4th 247, 268, in which the court found that after stating objections to the request the party responded to the entire request, “leaving no aspect of the request for admission unresolved and nothing to be addressed by the trial court in a motion to compel further responses. This is so, despite the Local's boilerplate statement ‘[w]ithout waiving these objections,’ because the Local then went on to flatly “Deny” each request at issue. The MWD properly construed such responses as unequivocal denials and expended time and effort proving the truth of the matters to the trial court.” (American Federation of State, County & Municipal Employees v. Metropolitan Water Dist. (2005) 126 Cal.App.4th 247, 268.) The awarding of costs of proof in those circumstances was appropriate unless another exception applied.

One exception to the costs of proof sanctions is if the party reasonably believed it would prevail on the issue at the time the response was given. “The relevant question is whether the litigant had a reasonable, good faith belief he or she would prevail on the issue at trial. [Citations.]” (Orange County Water Dist. v. The Arnold Engineering Co. (2018) 31 Cal.App.5th 96, 119 italics omitted.)” (Samsky v. State Farm Mutual Automobile Ins. Co. (2019) 37 Cal.App.5th 517, 526.) “[I]n considering this issue, a court may properly consider whether at the time the denial was made the party making the denial held a reasonably entertained good faith belief that the party would prevail on the issue at trial. . . . In our view, there must be some reasonable basis for contesting the issue in question before sanctions can be avoided.” (Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 511.)

In this trial, the court observed the witnesses, read the briefs and heard the arguments of counsel. Although in closing argument, Defendants’ counsel, after considering all the evidence and the arguments from the other side conceded that Defendants could have done better to create a safe environment, Defendants believed and argued to the jury that Plaintiff’s negligence should be totally responsible for her injury. That position was supported by Defendants’ testimony, the video, and expert testimony. At the same time Plaintiff had strong arguments, supported by much of the same testimony that she was not negligent or the cause of the injury.[1] For those reasons, the court exercises its discretion not to award costs of proof damages to either side.

[1] A number of other arguments were raised about the nature and amount of the costs sought, the court will not address them, given the ruling on the motions.