Judge Walter P. Schwarm, Case 30-2021-01183151 2023-08-22 Tentative Ruling

Judge: Walter P. Schwarm, Case: 30-2021-01183151, Date: 2023-08-22 Tentative Ruling

Moving Party’s (Data Mortgage, Inc.) Motion for Costs for Proof under CCP 2033.420 (Motion), filed on 3-24-23 under ROA No. 196, is DENIED without prejudice.

The court GRANTS Responding Party’s (LoanCare LLC) Request for Judicial Notice (RJN), filed on 8-8-23 under ROA No. 289, as to Exhibit 2 only as to the existence of Exhibit 2. (Evid. Code, § 452, subd. (d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1570.) The court GRANTS the RJN as to Exhibit 4 pursuant to Evid. Code, § 452, subd. (d). The court GRANTS the RJN as to Exhibit 3 pursuant to Evidence Code section 452, subdivision (d), to the extent it requests the court to take judicial notice of its ruling on 10-4-22. The court DENIES the RJN as to Exhibit 1.

Code of Civil Procedure section 2033.420, subdivision (a), states, “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.”

City of Glendale v. Marcus Cable Associates, LLC, (2015) 235 Cal.App.4th 344, 354 (Glendale), states, “Unlike sanctions imposed as a penalty for the nine types of discovery misconduct itemized in Code of Civil Procedure section 2023.010, an award of costs of proof for a denial of a request for admission involves the weighing of a number of factors, such as whether the matter denied was of ‘substantial importance;’ whether there was a ‘reasonable basis’ for the denial; whether the party making the denial knew or should have known at the time that the requested matter was of ‘substantial importance’ and was true; whether there were ‘other good reasons for the denial’; and whether and to what extent the responding party made a good faith effort otherwise to resolve the matter. [Citations.] Also, unlike sanctions for discovery misconduct, costs of proof under section 2033.420 are awarded after trial; therefore, an award of such costs is not a device used by trial courts to control pretrial proceedings. Instead, as with attorney fees and costs awarded after judgment to a prevailing party, an award of costs of proof is a fee shifting and cost allocation mechanism that is available against parties. And, unlike sanctions for discovery misconduct, such costs cannot be awarded against attorneys. [Citation.]”

Evidence Code section 190 states, “Evid. Code § 190 provides: “ ‘Proof’ is the establishment by evidence of a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.”

The Motion states, “When this Court granted DMI’s motion for judgment on the pleadings, DMI proved the truth of the matters in LoanCare’s denial of the requests for admissions. (Exhibit 1, requests 39-54.) That proof entitled DMI to costs, including attorney’s fees. [¶] This Court dismissed all of LoanCare’s affirmative defenses because there were no facts to support those affirmative defenses. DMI’s motion narrowed issues for trial.” (Motion 10:10-14.)

Eckler v. Neutragena Corporation (2015) 238 Cal.App.4th 433, 439 (Eckler), states, “ ‘A motion for judgment on the pleadings serves the function of a demurrer, challenging only defects on the face of the complaint.’ [Citation.] As with a demurrer, ‘[t]he grounds for a motion for judgment on the pleadings must appear on the face of the complaint or from a matter of which the court may take judicial notice.’ [Citation.]” “A trial court’s determination of a motion for judgment on the pleadings accepts as true the factual allegations that the plaintiff makes. [Citations.] In addition, it gives them a liberal construction.” (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516 (Gerawan).)

Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-114 (Fremont), explains, “StorMedia stated: ‘In ruling on a demurrer, a court may consider facts of which it has taken judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) This includes the existence of a document. When judicial notice is taken of a document, however, the truthfulness and proper interpretation of the document are disputable. (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374 [228 Cal.Rptr. 878].)’ [Citation.] [¶] Joslin v. H.A.S. Ins. Brokerage, supra, 184 Cal.App.3d at page 374, 228 Cal.Rptr. 878 stated: ‘Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. (See Middlebrook–Anderson Co. v. Southwest Sav. & Loan Assn. (1971) 18 Cal.App.3d 1023, 1038 [96 Cal.Rptr. 338].) On a demurrer a court's function is limited to testing the legal sufficiency of the complaint. (Marina Tenants Assn. v. Deauville Marina Development Co. (1986) 181 Cal.App.3d 122, 127 [226 Cal.Rptr. 321].) “A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.” (Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879 [138 Cal.Rptr. 426].) The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. (See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605 [176 Cal.Rptr. 824].)’ [Citation.]”

A motion for judgment on the pleadings is a pretrial procedure used to challenge defects in the face of a pleading. Similar to Fremont, a motion for judgment on the pleadings is not a contested evidentiary hearing regarding the parties to present proof. Moving Party’s Motion for Judgment on the Pleadings (MJOP), filed on 5-18-22 under ROA No. 149, did not submit any evidence because it was unnecessary for Moving Party to provide proof to support its MJOP. When the court issued its ruling on the MJOP, the court did not resolve conflicts in the evidence to determine whether Moving Party had proved the genuineness of a document or the truth of any matter that Responding Party failed to admit.

The court’s ruling that granted the MJOP (10-4-22 Minute Order) did not determine that Moving Party had Party had proved the genuineness of a document or the truth of any matter that Responding Party failed to admit. Further, as discussed by Glendale, Code of Civil Procedure section 2033.420 is not a procedure to control pretrial proceedings.

Based on the above, the court DENIES Moving Party’s (Data Mortgage, Inc.) Motion for Costs for Proof under CCP 2033.420, filed on 3-24-23 under ROA No. 196, without prejudice. The court DENIES the Motion without prejudice because either party may bring a motion pursuant to Code of Civil Procedure section 2033.420 after trial or motion for summary judgment that requires Moving Party or Responding Party to present evidence relevant to an admission.

Responding Party is to give notice.