[Originally published as RFAs: The Underutilized Strategy for Recovering Attorney’s Fees, by Lily Li, in Orange County Lawyer Magazine, December 2015, Vol. 57 No.12 on page 40.]
A successful motion for attorney’s fees can be just as important as winning at trial, especially when it comes to your client’s satisfaction with the outcome of litigation. What are your options, however, when there are no obvious attorney fee-shifting provisions in your case? A recent decision out of the Fourth Appellate District bolstered the use of a “costs of proof” motion under Code of Civil Procedure § 2033.420, based on defendants’ unreasonable denials of various requests for admissions. Grace v. Mansourian, No. G0495 at 6-7 (9th Cir. filed Aug. 17, 2015) (certified for publication on Sep. 15, 2015), available at http://www.courts.ca.gov/opinions/nonpub/G049590.PDF.
In Grace, plaintiffs served requests for admission in the lower court concerning a traffic collision. These requests asked the defendant to admit he failed to stop at a red light, that this failure was negligent, and that it caused the traffic accident in question. The defendant denied all of these requests, despite eyewitness testimony and a police report to the contrary. The defendant’s sole reason for denying the request was his perception that the light was yellow. A jury found the defendant negligent, and awarded the plaintiff $410,000. The plaintiff then moved for nearly $200,000 in attorney fees and costs to recover expenses in proving the facts that the defendant had denied, but should have admitted. The trial court denied this motion.
The appellate court reversed, ruling that a trial court is required to award plaintiff’s costs and fees unless it finds a defendant “had reasonable ground to believe [he or she] would prevail on the matter” or “[t]here was other good reason for the failure to admit.” Id. at 6(citing Cal. Civ. Proc. § 2033.420(b)(3)-(4)). The Grace court determined that the defendant did not have a reasonable ground to believe he would prevail at trial given substantial evidence (police report and eyewitness testimony) that he was negligent. The court ruled that even if the defendant reasonably believed the light was yellow, not red, this does not constitute “reasonable grounds” to believe he would prevail at trial.
Significantly, the Grace court clarifies the definition of what constitutes “reasonable grounds” to deny a request for admission. In an earlier case cited by the Grace court—Brooks v. Am. Broad. Co. 179 Cal. App. 3d 500 (1986)—the responding party denied a request for admission based on the anticipated testimony of the responding party’s father, where there was no expert report to the contrary. The Brooks court found this to be enough “reasonable grounds” to deny the request. The Grace court, in comparison, found defendant’s sole testimony insufficient “reasonable grounds” to prevail at trial, where there was eyewitness testimony and an expert report to the contrary. Thus, it appears that the appeals court will weigh the probative value of each party’s testimony in considering whether a denial of a request for admission is appropriate. If the propounding party has third-party or expert testimony supporting the facts contained within a request for admission, the responding party should be able to contest these facts with their own third-party or expert testimony, respectively, before denying the request for admission.
Aside from the responding party’s “reasonable ground to believe [he or she] would prevail on the matter,” a responding party can also deny a request if “[t]here was other good reason for the failure to admit.” Cal. Civ. Proc. § 2033.420(b)(3)-(4). Although this part of the test was not central to the decision by the Grace court, counsel should be aware of these other “good reasons” before allowing a client to deny a request for admission or proceeding with a “costs of proof” motion after prevailing at trial. Grace at 7.
The Brooks decision outlines several of these additional considerations. For instance, costs of proof are not appropriate for relatively trivial issues in a case, though sometimes such seemingly trivial issues can develop substantial importance later on in the case. Consequently, a court should “assess whether at the time the request was denied it was reasonably possible for the party making the denial to have appreciated that the requested admission involved a central issue . . .in the case.” Brooks,179 Cal. App. 3d at 510. In Grace, this consideration did not apply, as the determination of whether defendant ran a red light, or was negligent in doing so, was of obvious substantial importance to the case from the very beginning.
Another appropriate consideration is whether the responding party attempted, in good faith, to reach a resolution of the issue, such as agreeing to stipulate to the facts of the matter, with reasonable conditions. Finally, the Brooks court also considered circumstances where the responding party learned of additional facts after the original request, and later advised opposing counsel of this error. The Brooks court emphasized, however, that these circumstances do not define or limit the other “good reasons” for denying a request, and that the ultimate decision in what factors to consider lies within the discretion of the trial court.
The scope of “other good reasons” can also involve the application of federal court decisions because Brooks, along with later decisions, highlights Rule 37(c) of the Federal Rules of Civil Procedure as the progenitor of Civil Procedure Code section 2033.420. See City of Glendale v. Marcus Cable Assoc., LLC, 235 Cal. App. 4th 344, 353 n.6 (2015). Thus, when considering what other “good reasons” apply for denying a request for admission, it is appropriate to look to federal court decisions interpreting Rule 37(c). Be warned, though, that the post-1970 provisions of Rule 37(c) apply to all failures to admit requests for admission, including responses that state the respondent “cannot truthfully admit or deny.” Section 2033.420, in contrast, only applies to sworn denials, and does not encompass equivocal responses (though these may be subject to separate discovery sanctions). Smith v. Circle P Ranch Co.,87 Cal. App. 3d 267, 277-78 (1978).
In summary, requests for admission can be a powerful and underutilized strategy for recovering attorney’s fees and costs post-trial. Early requests, seeking admissions regarding the crux of liability in a case, can either limit the issues at trial, if admitted, or recover the majority of litigation costs, if denied without good reason. For those on the receiving end of requests for admission: be careful. Make sure you have competent evidence backing any denial or other “good reasons,” or your client may end up paying for everyone’s battle.
– Lily Li is a former commercial and IP litigator at Brown Wegner McNamara LLP. She can be reached at firstname.lastname@example.org.
*Disclaimer* This article is not legal advice or legal opinion, and the contents are intended for general informational purposes only. Circumstances may differ from situation to situation. The views expressed herein are those of the Author. They do not necessarily represent the views of the Orange County Lawyer magazine, the Orange County Bar Association, The Orange County Bar Association Charitable Fund, or their staffs, contributors, or advertisers. All legal and other issues must be independently researched.